Prometheus Radio Project v. FCC: The Persistence of Scarcity

Part I traces the history of broadcast regulation, emphasizing the development of the scarcity doctrine and the subsequent deregulatory trend. Part II examines the FCC\u27s 2003 rule changes and the Third Circuit\u27s analysis of those modifications in Prometheus Radio Project v. FCC. Part III analyzes the assumptions underlying the FCC\u27s proffered explanation for its rule changes, ultimately concluding that they lack justification, and offers suggestions for responsible ownership deregulation. Part IV calls on Congress to reassert itself as the final arbiter of media policy

The Penumbral Public Domain: Constitutional Limits on Quasi-Copyright Legislation

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress\u27 copyright authority under Article I, Section 8, Clause 8. The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts\u27 sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and the Second Circuit\u27s recent analysis of them in United States v. Martignon. In broad terms, the limits inherent in Clause 8 divide into two categories: limits on the sorts of works in which Congress can grant exclusive rights and limits on the types of exclusive rights Congress can use to protect those works. Those limits constrain Congress any time it attempts to legislate within the core subject matter of its copyright power-grants of exclusive rights in expression. Otherwise, they are effectively stricken from the Constitution, violating the basic canon of construction that rejects readings that render text superfluous. Once the limits of Clause 8 are understood to apply regardless of the power Congress employs, a component of the public domain firmly and permanently rooted in the Constitution emerges. This public domain, defined by the limits of Clause 8, includes both unoriginal and unwritten expressive works - two classes of works that, as a constitutional matter, cannot be the subject of federal grants of exclusive rights. By extending exclusive rights to unwritten live performances, the anti-bootlegging statutes run afoul of the external limits of Clause 8

Fixing RAM Copies

Scholars, litigants, and courts have debated the status of so-called “RAM copies” - instantiations of copyrighted works in the random access memory of computing devices - for decades. The Second Circuit’s decision in Cartoon Network v. CSC Holdings has recently reignited the controversy over these putative copies. There the court held that CSC did not create copies within the meaning of the Copyright Act when it buffered fleeting segments of television programs. In many respects, the Second Circuit’s holding is a straightforward application of the Act’s nested definitions of “copies” and “fixed.” But because the court declined to apply the bright line rule that emerged from MAI v. Peak and its progeny - that all temporary instantiations incidental to the use of digital technologies qualify as copies - Cartoon Network has met with vigorous disapproval from copyright industry representatives. But Peak has faced sustained scholarly criticism for both expanding the scope of the copyright grant and misreading statutory language, legislative history, and precedent. By backing away from the categorical holding in Peak, the Second Circuit sidestepped many of its faults. But Cartoon Network gives rise to another set of concerns, chief among them the absence of a clear standard for distinguishing transitory instantiations from those sufficiently permanent to qualify as copies. While Peak offers a uniform, predictable, but overly inclusive rule for RAM copies, Cartoon Network provides an outcome more consistent with sound statutory interpretation and copyright policy, but lacking in predictive power. The difficulties inherent in both Peak and Cartoon Network flow in part from their treatment of the statutory requirement that fixed copies persist for longer than a “transitory duration.” Peak ignored this requirement altogether, while Cartoon Network treated it as determinative without articulating its contours. Without a clearer conception of the outer bounds of transitory duration, courts are ill equipped to undertake the more nuanced analysis of RAM instantiations Cartoon Network suggests. This paper attempts to bring the contours of “transitory duration” into sharper focus. It draws on three sets of considerations: the application of the transitory duration requirement in the context of copyrightability; qualitative considerations related to the function of RAM instantiations; and a comparison of the work RAM copies do in the copyright system and the traditional role of the reproduction right. On the basis of these considerations, this paper offers a set of concrete factors courts should take into account when classifying RAM instantiations. These factors will lend greater predictability to the RAM instantiation analysis without sacrificing consistency with the text of the Copyright Act and the policies that underlie it

Rethinking Anticircumvention\u27s Interoperability Policy

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ( DMCA ) represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective. One approach to counteracting the DMCA\u27s restrictions on interoperability is to rely on antitrust scrutiny and the resulting mandatory disclosure of technical information. But both doctrinal and policy considerations suggest that antitrust offers a less than ideal means of lessening the DMCA\u27s impact on interoperability. Rather than relying on antitrust, this Article proposes a solution that addresses the restriction of interoperability at its source. This approach broadens the DMCA\u27s existing interoperability exemption to create an environment more hospitable to interoperable technologies. To preserve the protections the DMCA offers copyright holders, this expanded exemption would disaggregate control over interoperable software and devices from the control over access and copying that Congress intended the DMCA to enable

Tattoos & IP Norms

The U.S. tattoo industry generates billions of dollars in annual revenue. Like the music, film, and publishing industries, it derives value from the creation of new, original works of authorship. But unlike rights holders in those more traditional creative industries, tattoo artists rarely assert formal legal rights in disputes over copying or ownership of the works they create. Instead, tattooing is governed by a set of nuanced, overlapping, and occasionally contradictory social norms enforced through informal sanctions. And in contrast to other creative communities that rely on social norms because of the unavailability of formal intellectual property protection, the tattoo industry opts for self-governance despite the comfortable fit of its creative output within the protections of the Copyright Act. This Article relies on qualitative interview data drawn from more than a dozen face-to-face conversations with professionals in the tattoo industry. Based on those interviews, it offers a descriptive account of the social norms that have effectively displaced formal law within the tattoo community, provides a set of complementary cultural and economic explanations for the development of those norms, and outlines the broader implications of this research for intellectual property law and policy

Fixing RAM Copies

Scholars, litigants, and courts have debated the status of so-called “RAM copies” - instantiations of copyrighted works in the random access memory of computing devices - for decades. The Second Circuit’s decision in Cartoon Network v. CSC Holdings has recently reignited the controversy over these putative copies. There the court held that CSC did not create copies within the meaning of the Copyright Act when it buffered fleeting segments of television programs. In many respects, the Second Circuit’s holding is a straightforward application of the Act’s nested definitions of “copies” and “fixed.” But because the court declined to apply the bright line rule that emerged from MAI v. Peak and its progeny - that all temporary instantiations incidental to the use of digital technologies qualify as copies - Cartoon Network has met with vigorous disapproval from copyright industry representatives. But Peak has faced sustained scholarly criticism for both expanding the scope of the copyright grant and misreading statutory language, legislative history, and precedent. By backing away from the categorical holding in Peak, the Second Circuit sidestepped many of its faults. But Cartoon Network gives rise to another set of concerns, chief among them the absence of a clear standard for distinguishing transitory instantiations from those sufficiently permanent to qualify as copies. While Peak offers a uniform, predictable, but overly inclusive rule for RAM copies, Cartoon Network provides an outcome more consistent with sound statutory interpretation and copyright policy, but lacking in predictive power. The difficulties inherent in both Peak and Cartoon Network flow in part from their treatment of the statutory requirement that fixed copies persist for longer than a “transitory duration.” Peak ignored this requirement altogether, while Cartoon Network treated it as determinative without articulating its contours. Without a clearer conception of the outer bounds of transitory duration, courts are ill equipped to undertake the more nuanced analysis of RAM instantiations Cartoon Network suggests. This paper attempts to bring the contours of “transitory duration” into sharper focus. It draws on three sets of considerations: the application of the transitory duration requirement in the context of copyrightability; qualitative considerations related to the function of RAM instantiations; and a comparison of the work RAM copies do in the copyright system and the traditional role of the reproduction right. On the basis of these considerations, this paper offers a set of concrete factors courts should take into account when classifying RAM instantiations. These factors will lend greater predictability to the RAM instantiation analysis without sacrificing consistency with the text of the Copyright Act and the policies that underlie it

Relative Access to Corrective Speech: A New Test for Requiring Actual Malice

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment. The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court\u27s understanding of the means of communicating with mass audiences. As a result, the public figure doctrine looks only to the status of the plaintiff in determining the appropriate degree of fault. But the development of many-to-many media, like the internet, challenges the assumptions that underlie the public figure doctrine. Many-to-many media increase access to the means of mass communication, creating variety among speakers that Court neither considered nor predicted in constructing the public figure doctrine. In such a heterogeneous and dynamic communications environment, the uniform treatment of defamation defendants should be questioned. BEAK This Article suggests that in determining whether the actual malice standard should apply, courts should consider not only variations among plaintiffs, but they should also demonstrate sensitivity to the increased diversity among defamation defendants. By considering a plaintiff\u27s ability to avail herself of corrective counter speech not in isolation, but in light of the reach of the defendant\u27s publication, courts can more usefully apply the actual malice standard in the contemporary communications environment

Rethinking Anticircumvention\u27s Interoperability Policy

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ( DMCA ) represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective. One approach to counteracting the DMCA\u27s restrictions on interoperability is to rely on antitrust scrutiny and the resulting mandatory disclosure of technical information. But both doctrinal and policy considerations suggest that antitrust offers a less than ideal means of lessening the DMCA\u27s impact on interoperability. Rather than relying on antitrust, this Article proposes a solution that addresses the restriction of interoperability at its source. This approach broadens the DMCA\u27s existing interoperability exemption to create an environment more hospitable to interoperable technologies. To preserve the protections the DMCA offers copyright holders, this expanded exemption would disaggregate control over interoperable software and devices from the control over access and copying that Congress intended the DMCA to enable

Prometheus Radio Project v. FCC: The Persistence of Scarcity

Part I traces the history of broadcast regulation, emphasizing the development of the scarcity doctrine and the subsequent deregulatory trend. Part II examines the FCC\u27s 2003 rule changes and the Third Circuit\u27s analysis of those modifications in Prometheus Radio Project v. FCC. Part III analyzes the assumptions underlying the FCC\u27s proffered explanation for its rule changes, ultimately concluding that they lack justification, and offers suggestions for responsible ownership deregulation. Part IV calls on Congress to reassert itself as the final arbiter of media policy

The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident

Late in 2005, Sony BMG released millions of Compact Discs containing digital rights management technologies that threatened the security of its customers\u27 computers and the integrity of the information infrastructure more broadly. This Article aims to identify the market, technological, and legal factors that appear to have led a presumably rational actor toward a strategy that in retrospect appears obviously and fundamentally misguided. The Article first addresses the market-based rationales that likely influenced Sony BMG\u27s deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG\u27s internal strategizing demonstrates a failure to adequately value security and privacy. After taking stock of the then-existing technological environment that both encouraged and enabled the distribution of these protection measures, the Article examines law, the third vector of influence on Sony BMG\u27s decision to release flawed protection measures into the wild, and argues that existing doctrine in the fields of contract, intellectual property, and consumer protection law fails to adequately counter the technological and market forces that allowed a self-interested actor to inflict these harms on the public. The Article concludes with two recommendations aimed at reducing the likelihood of companies deploying protection measures with known security vulnerabilities in the consumer marketplace. First, Congress should alter the Digital Millennium Copyright Act (DMCA) by creating permanent exemptions from its anti-circumvention and antitrafficking provisions that enable security research and the dissemination of tools to remove harmful protection measures. Second, the Federal Trade Commission should leverage insights from the field of human computer interaction security (HCI-Sec) to develop a stronger framework for user control over the security and privacy aspects of computers