15 research outputs found
Best Practices for the Law of the Horse: Teaching Cyberlaw and Illuminating Law Through Online Simulations
In an influential 1996 article entitled Cyberspace and the Law of the Horse, Judge Frank Easterbrook mocked cyberlaw as a subject lacking in cohesion and therefore unworthy of inclusion in the law school curriculum. Responses to Easterbrook, most notably that of Lawrence Lessig in his 1999 article The Law of the Horse: What Cyberlaw Might Teach, have taken a theoretical approach. However, this Articleâalso appropriating the âLaw of the Horseâ monikerâconcludes that Easterbrookâs challenge is primarily pedagogical, requiring a response keyed to whether cyberlaw ought to be taught in law schools. The Article concludes that despite Easterbrookâs concerns, cyberlaw presents a unique opportunity for legal educators to provide capstone learning experiences through role-playing simulations that unfold on the live Internet. In fact, cyberlaw is a subject particularly well-suited to learning through techniques that immerse students in the very technologies and networks that they are studying. In light of recommendations for educational reform contained in the recent studies Best Practices for Legal Education and the Carnegie Report, the Article examines the extent to which âCybersimulationsâ are an ideal way for students to learnâin a holistic and immersive mannerâlegal doctrine, underlying theory, lawyering skills, and professional values. The Article further explains how the simulations were developed and provides guidance on how they can be created by others. The Article concludes with a direct response to Easterbrook, arguing that cyberlaw can indeed âilluminateâ the entire law
Teaching Law Online: Yesterday and Today, But Tomorrow Never Knows
Although the role of âonlineâ in legal education has grown over the past several decades, online teaching became a lifeline in Spring 2020 when the COVID-19 pandemic shuttered classrooms nationwide. Online teaching is now necessary, but also problematic. Schools and teachers therefore need to carefully consider how to make effective use of online tools and techniques. This essay reflects on the authorâs career-long experiences in online law teaching, much of which predates the COVID-19 pandemic. âWith a little helpâ from a Beatles song or two, the essay reflects the yesterday, today, and tomorrow of online legal education. It closes with that most scholarly of prescriptions: The Beatlesâ Top Ten hits relevant to teaching online
Civil Procedures for a World of Shared and User-Generated Content
Scholars often focus on the substance of copyrights as opposed to the procedures used to enforce them. Yet copyright enforcement procedures are at the root of significant overreach and deserve greater attention in academic literature. This Article explores three types of private enforcement procedures: direct enforcement (cease-and-desist practice); indirect enforcement (DMCA takedowns); and automated enforcement (YouTubeâs Content ID filtering program). Such procedures can produce a âsubstance-procedure-substanceâ feedback loop that causes significant de facto overextensions of copyrights, particularly against those creating and sharing User-Generated Content (UGC). To avoid this feedback, the Article proposes descriptive and normative frameworks aimed towards the creation of better procedures. Looking to the relevant actors, the source of procedures, and the functions of enforcement (the descriptive framework), the Article suggests principles of participation, transparency, and âbalanced accuracyâ (the normative framework) that might lead to private enforcement procedures that accommodate the reasonable cost and efficiency needs of copyright owners without trampling on UGC
Navigating the Uncharted Waters of Teaching Law with Online Simulations
The Internet is more than a place where the Millennial Generation communicates, plays, and shops. It is also a medium that raises issues central to nearly every existing field of legal doctrine, whether basic (such as Torts, Property, or Contracts) or advanced (such as Intellectual Property, Criminal Procedure, or Securities Regulation). This creates tremendous opportunities for legal educators interested in using the live Internet for experiential education. This Article examines how live websites can be used to create engaging and holistic simulations that tie together doctrine, theory, skills, and values in ways impossible to achieve with the case method. In this Article, the author discusses observations stemming from his experiences teaching law courses using live, online role-playing simulations that cast students in the role of attorneys. The Article concludes that such simulations have significant benefits for law students and can also benefit scholars who use simulations proactively to deepen the synergies between their teaching and scholarship. However, the resources required for simulations may also exacerbate long-standing systemic tensions in legal education, particularly regarding institutional resources as well as the sometimes conflicting roles of faculty as teacher-scholars. Because the American Bar Association will almost certainly, and appropriately, require law schools to expand their simulation offerings, the benefits and tradeoffs of simulations teaching must be addressed now
Aereoâs Errors
This article scrutinizes the United States Supreme Courtâs decision in American Broadcasting Companies, Inc. v. Aereo, Inc. Aereoâs streaming television service allowed subscribers to watch broadcast television on a computer, tablet, or smartphone without requiring them to be directly connected to cable, satellite, or a local antenna. Aereoâs system was designed to comply with existing copyright law by using thousands of antennas, each of which was designated for only one subscriber at a time. Aereo was sued for copyright infringement by a number of leading television broadcasters. The United States Supreme Court, over a heated Scalia dissent, concluded that Aereo was âhighly similarâ to a cable company, and that it therefore made âpublic performancesâ falling within the plaintiffsâ exclusive rights. Because the Aereo decision was unnecessary, unsound, and unwise, this article proposes steps that should be taken in order to avoid frustrating the development of beneficial âcloudâ computing services
Internet Infoglut and Invisible Ink: Spamdexing Search Engines with Meta Tags
This Article addresses \u27spamdexing,\u27 namely, the practice of stuffing invisible keywords into webpages in order to try to get more favorable listings with search engines. For instance, some website owners will stuff the trademarks of competitors into a webpageâs code, particularly by using \u27meta tags,\u27 indexing keywords that can be hidden in a webpageâs source code. Although meta tags are not typically viewed by users, the code can be read by search engines, with the result that webpages may be improperly boosted in search engine rankings. Such practices can confuse the public and have also spurred trademark lawsuits. But the real harm of spamdexing is best explained not by law, but instead by information science. Namely, spamdexing introduces \u27noise\u27 into search engine databases, rendering searches \u27imprecise\u27 - i.e., overinclusive. With that in mind, the Article proposes looking to relevance and reasonable expectations. Specifically, it is necessary to consider the relevance of a website userâs search terms to the search goal, and of a website ownerâs meta tags to actual website content. It is also necessary to consider the reasonableness of each partyâs desire to use such terms for searching and indexing purposes, along with the interests of trademark owners. There is a tension between these interests, as searchers and website owners will tend to externalize the costs of information dissemination and retrieval, and trademark owners may sometimes object to legitimate uses of meta tags. Finally, the Article provides a broader view of new forms of dissemination and retrieval, examining the roles that libraries have traditionally played, and those that the Internet-as-library may yet play
Looking for Fair Use in the DMCA\u27s Safety Dance
Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ( DMCA ) provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the third wheel, the users of internet services. This Article puts forth a fair-use friendly way of reading the DMCA to better protect users of online services. This Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech
The Procedural Foundations of Information Regulation
In the academy, legal scholarship on intellectual property, or IP, abounds, most of it focusing on the substance of IP. Far less, however, is written about the procedural aspects of IP. This Article focuses on the often-ignored procedural foundations of IP and suggests-at a minimum-that procedure so thoroughly pervades IP that IP\u27s true foundations might be in procedure rather than substance. Considering IP as procedure may further allow us to recognize that IP procedures may need to be reconceptualized within a broader field of information regulation procedures
Super-Intermediaries, Code, Human Rights
We live in an age of intermediated network communications. Although the internet includes many intermediaries, some stand heads and shoulders above the rest. This article examines some of the responsibilities of Super-Intermediaries such as YouTube, Twitter, and Facebook, intermediaries that have tremendous power over their users\u27 human rights. After considering the controversy arising from the incendiary YouTube video Innocence of Muslims, the article suggests that Super-Intermediaries face a difficult and likely impossible mission of fully servicing the broad tapestry of human rights contained in the International Bill of Human Rights. The article further considers how intermediary content-control procedures focus too heavily on intellectual property, and are poorly suited to balancing the broader and often-conflicting set of values embodied in human rights law. Finally, the article examines a number of steps that Super-Intermediaries might take to resolve difficult content problems and ultimately suggests that intermediaries subscribe to a set of process-based guiding principles-a form of Digital Due Process-so that intermediaries can better foster human dignity