The Role of International Rules in Blockchain-Based Cross-Border Commercial Disputes

[excerpt] The concept of online dispute resolution (ODR) is not new. 1 But, with the advent of Web 3.0, the distributed web that facilitates pseudonymous and cross-border transactions via blockchain\u27s distributed ledger technology, 2 the idea of, and pressing need for, appropriate dispute resolution models for blockchain-based disputes to support this novel system of distributed consensus and trust of which blockchain proponents boast, is a primary concern in rapid development. 3 The common goal of each project is to utilize smart contracts to facilitate superior, quicker[,] and less expensive proceedings by eliminating so many of the tedious and protracted trappings of traditional arbitral proceedings, such as the sending and receiving of documents via courier. , Despite myriad approaches, all emerging blockchain-based dispute resolution services (BDR solutions) generally seek to bridge the divide between automated performance mechanisms, like smart contracts, and the human judgment traditionally required to settle legal disputes.5 How our existing legal frameworks must develop to ensure that smart contracts 6 facilitate, rather than frustrate, the parties\u27 intent is a critically important question to ask as the blockchain stack\u27s infrastructure and application layers are being built and, ultimately, scaled. Indeed, interest is high in the race to create alternative dispute resolution mechanisms to resolve disputes arising from blockchain-based commercial transactions that, due to the transnational, borderless, pseudonymous, and distributed nature of blockchain, clearly necessitate international solutions.

Safe Harbor for the Innocent Infringer in the Digital Age

The primary goal of this Article is three-fold: (1) to explore the role of the innocent infringer archetype historically and in the digital age; (2) to highlight the tension between customary and generally accepted online uses and copyright law that compromise efficient use of technology and progress of the digital technologies, the Internet, and society at large; and (3) to offer a legislative fix in the form of safe harbor for direct innocent infringers. Such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far easier than ever to commit, extremely difficult to police, and often causes little, if any, cognizable market harm. Safe Harbor was judged one of the best law review articles related to entertainment, publishing and/or the arts published in the 2013-14 academic publishing cycle and selected for inclusion in the 2014 edition of the Entertainment, Publishing and the Arts Handbook, an anthology published annually by Thomson Reuters (West)

In the Title IX Race Toward Gender Equity, The Black Female Athlete is Left to Finish Last: The Lack of Access for the “Invisible Woman

Although each of us is defined by race and gender, those of us who are neither white nor male often experience invisibility as a result of our dual subordinate status.... Black women have been disproportionately located at the lower end of the economic hierarchy and, therefore, have been unable to afford private golf, swimming, or tennis lessons. Overt racial discrimination prevented black women from gaining access to the sports participated in by white women. To the extent that the main thrust of solutions to gender inequity and a lack of adherence to Title IX mandates has been the addition of opportunities in the country club sports or those sports not traditionally accessible to Black women, we lose yet again

Introductions

An introduction to the Symposium and an introduction to Blockchain technology in preparation for the topics of the rest of the symposium

De-Gentrified Black Genius: Blockchain, Copyright, and the Disintermediation of Creativity

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor K.J. Greene, which explores and challenges cultural misappropriation of Black musicians and composers, and build upon my own scholarship that explores the copyright transfer termination right as a potential legal tool for social and economic justice for creatives of color. I also reference an empirical study titled U.S. Copyright Termination Notices 1977–2020: Introducing New Datasets, to explore data and extrapolations regarding likely impacts of § 203 terminations since 2013. In this Article, I explore the paths of artists who leveraged opportunity through assignments and licenses and, later, artists who exercised their termination rights to secure a better deal with the original transferee, terminated and entered into contracts with other transferees, or went it alone and exploited their copyrights on their own. The termination right clearly benefits all copyright creators; however, members of marginalized and disenfranchised communities may stand to benefit even more from the second bite of the copyright apple. I assert that utilizing blockchain’s decentralized technology, smart contracts, and non-fungible token standards can better protect Black artists against disenfranchisement at the hands of a codified system of intentional friction to discourage or deny the reclamation of rights. Accordingly, in Part II, I examine the history in America and throughout the African diaspora of cultural misappropriation and critique the gentrification of Black creative genius. I explore gentrification as it is applied more broadly to real property and then discuss its application to intellectual property, generally, and copyright specifically. In Part III, I discuss the subject matter of copyright protection and the nature and mechanics of the transfer termination right. Specifically, I examine the history, purpose, and congressional intent of the right, as well as the method and the complexities of timing of notice and termination. In Part IV, I examine the pre-window fervor and speculation of stakeholder commentators around the likely impact of § 203 terminations prior to 2013. I examine the actual impact since 2013 and a forecast of likely trends, as described in the termination notices study, written by Joshua Yuvaraj, Rebecca Giblin, Daniel Russo-Batterham & Genevieve Grant. Finally, in Part V, I discuss the role that blockchain technology, smart contract code, and non-fungible token standards could play in automating codified protections. Removing the educational and legalistic barriers to exercising one’s termination rights and automating the transfer termination process could ensure that all artists have actual—not theoretical—rights, especially disenfranchised creatives victimized first by powerful industry intermediaries and then by the copyright regime created by those same industry stakeholders (and blessed by Congress) to protect industry, rather than creator, interests

Blockchain and the Genesis of Creative Justice to Disintermediate Creativity

Historically, the art market has been shrouded in opaqueness and exclusivity, permissioned access and asymmetry of information that rivals the systemic ills of legacy financial markets that led to the Great Recession. Moreover, legacy art market stakeholders have, through the centuries, been entrenched in elitist and inequitable notions of art that excluded Black artists. These legacy intermediaries have also consistently demonstrated a deep and enduring disdain for any art connected to the digital world. That is, until the age of COVID-19 and the dramatically increasing value and dominance of the non-fungible token (NFT) market. This Essay explores why, and how, the technology that Satoshi intended for the disintermediation of financial markets has demonstrated incredible potential to disintermediate the art world and enfranchise Black and brown artists. The often-exclusionary bright line between revered “fine art” expressed in physical form, and digital art, has begun to blur. So too has the invisible racial dividing line used to segregate artists based on race. If measuring creative justice in terms of the building blocks of the future of creativity, we are at the genesis

User Safer Harbor from Statutory Damages: Remixing the DOC\u27s IP Task Force White Paper

In Safe Harbor for the Innocent Infringer in the Digital Age (Safe Harbor), I argued that certain classes of direct innocent infringers of copyright—namely, accidental and mea culpa infringers—should be afforded safe harbor from liability in light of current accepted online practices of users deemed essential for the proper functioning and progress of the Internet and digital technology. I offered a statutory amendment to Section 512 of the Copyright Act, one that would apply specifically to direct users and protect them in ways similar to the protections currently available to online service providers. In this Article, I approach the same topic from the damages phase and argue that a user’s actual or constructive knowledge of a copyright holder’s rights should be a factor in determining whether the holder’s damages award should be limited to the currently discretionary minimum award. Knowledge could even serve to create a presumption of culpability during the damages phase after liability has been determined. However, notice of copyright alone should not serve as a complete bar to a defendant’s ability to assert an innocent infringement defense that triggers a minimum statutory damage award. This approach is fairer and more just, especially in light of the fact that copyright infringement is a strict liability offense and exposes even the ordinary, low-level infringer to damage awards that are often questioned by commentators and judges alike as egregious and, in some cases, unconstitutional. Accordingly, I argue that in lieu of—or in addition to—my user safe harbor proposal in Safe Harbor, Congress should adopt a more meaningful minimum statutory damage award under Section 504(c) for certain classesof noncommercial infringement and commercial infringement causing little or no economic harm. This proposal would apply in cases where liability is established and the use is not otherwise legally permitted or excused. It would reduce statutory damage awards for technically infringing uses that support progress because they are socially beneficial, technologically desirable, or both... In light of the Department of Commerce’s 2016 Internet Policy Task Force report on statutory damages and the Copyright Office Section 512 Roundtables on the same topic, I discuss the report’s findings, as well as Canada’s approach to user rights for illustrative purposes, against the backdrop of my own recommendations

De-Gentrified Black Genius: Blockchain, Copyright, and the Disintermediation of Creativity

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor K.J. Greene, which explores and challenges cultural misappropriation of Black musicians and composers, and build upon my own scholarship that explores the copyright transfer termination right as a potential legal tool for social and economic justice for creatives of color. I also reference an empirical study titled U.S. Copyright Termination Notices 1977–2020: Introducing New Datasets, to explore data and extrapolations regarding likely impacts of § 203 terminations since 2013. In this Article, I explore the paths of artists who leveraged opportunity through assignments and licenses and, later, artists who exercised their termination rights to secure a better deal with the original transferee, terminated and entered into contracts with other transferees, or went it alone and exploited their copyrights on their own. The termination right clearly benefits all copyright creators; however, members of marginalized and disenfranchised communities may stand to benefit even more from the second bite of the copyright apple. I assert that utilizing blockchain’s decentralized technology, smart contracts, and non-fungible token standards can better protect Black artists against disenfranchisement at the hands of a codified system of intentional friction to discourage or deny the reclamation of rights. Accordingly, in Part II, I examine the history in America and throughout the African diaspora of cultural misappropriation and critique the gentrification of Black creative genius. I explore gentrification as it is applied more broadly to real property and then discuss its application to intellectual property, generally, and copyright specifically. In Part III, I discuss the subject matter of copyright protection and the nature and mechanics of the transfer termination right. Specifically, I examine the history, purpose, and congressional intent of the right, as well as the method and the complexities of timing of notice and termination. In Part IV, I examine the pre-window fervor and speculation of stakeholder commentators around the likely impact of § 203 terminations prior to 2013. I examine the actual impact since 2013 and a forecast of likely trends, as described in the termination notices study, written by Joshua Yuvaraj, Rebecca Giblin, Daniel Russo-Batterham & Genevieve Grant. Finally, in Part V, I discuss the role that blockchain technology, smart contract code, and non-fungible token standards could play in automating codified protections. Removing the educational and legalistic barriers to exercising one’s termination rights and automating the transfer termination process could ensure that all artists have actual—not theoretical—rights, especially disenfranchised creatives victimized first by powerful industry intermediaries and then by the copyright regime created by those same industry stakeholders (and blessed by Congress) to protect industry, rather than creator, interests

Sampling, Looping, and Mashing... Oh My!: How Hip Hop Music is Scratching More Than the Surface of Copyright Law

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship. For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition. And hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without thepermission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music. Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films (410 F.3d 792), as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley (687 F. Supp. 2d 1325), is but one poignant example. Courts in the Sixth Circuit apply a per se infringement standard when a defendant copies any part of a sound recording. By contrast, courts in the Eleventh Circuit consider substantial similarity and the de minimis defense traditionally applied in all infringement cases. These differences, in turn, have lead to unclear judicial definitions, distinctions and interpretations for the role of substantial similarity and what constitutes a de minimis use, a fair use, and a derivative work. The resulting incongruent decisions reflect an inconsistent application of federal law. This inconsistency threatens to diminish both the quality and quantity of second-generation cumulative musical works. Accordingly, copyright law’s fragmented application is proving troublesome forthe music industry, generally, and for music genres like hip hop in particular. Ultimately, this article suggests that music copyright reform is needed and, perhaps, inevitable as technology continues to outpace and stress the law just as the law continues to stress and under-perform in balancing the rights/access continuum. To that end, this article posits that any fix should sample patent to remix copyright. By this I mean music copyright reform should consider and incorporate policies supporting reverse engineering in the patent context, which encourages and values cumulative creation to bolster innovation. Intellectual property should be most narrowly tailored when innovation in the field tends to be highly cumulative. Such is the case in the creation of music. The need for narrowly-tailored intellectual property laws is especially valid in light of the essential role to both of access to first-generation works and a firmly established custom of borrowing in the creative process. Therefore, copyright law must be remixed to achieve an optimal balance between a copyright holder’s exclusive rights and the legal space a second generation innovator needs to build upon existing works in order to create new ones in cumulative creative genres like music