Cyberlaw is Dead and We Will Kill It
Chapter in Research Handbook on Information Law and Governance (Sharon Sandeen, Christoph Rademacher, & Ansgar Ohly, eds.) (Edward Elgar forthcoming 2021)
Cyberlaw is not Computers and the Law or Intellectual Property on the Internet. It is something far richer and more important. But cyberlaw is also ephemeral, a temporary mode of analyzing technological disruption in real time, until the day when intermediated networks become ubiquitous and cyberlaw will simply become “law.” At that time, cyberlaw will disappear, for the same reason that we no longer study “automobile law.” But for now, cyberlaw remains an important waystation, a central hub, in the study of emergent and powerful networks. This chapter uses teachings from major philosophers of the 18th, 19th, and 20th centuries — namely Hume, Nietzsche, and Heidegger — to reconcile and build upon the writings of some of today’s leading cyber-scholars. Synthesizing these teachings, the chapter argues that cyberlaw should be understood as the study of how code, including intermediated networks, fosters disruptive feedback loops between power structures and prescriptive norms. Thus, although cyberlaw will someday merge into the general structure of the law, cyberlaw’s lasting legacy will be a methodology for studying the disruptive interplay of prescriptive norms and power structures, and how they create, destroy, and create again.
Link: http://ssrn.com/abstract=3731093
Teaching Law Online: Yesterday and Today, But Tomorrow Never Knows
St. Louis University Law Journal, Forthcoming 2021
Although the role of “online” 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 author’s career-long experiences in online law teaching, much of which predates the COVID-19 pandemic. “With a little help” 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 Beatles’ Top Ten hits relevant to teaching online.
Link: http://ssrn.com/abstract=3731103
The Procedural Foundations of Intellectual Property Information Regulation
Originally published in 24 Lewis & Clark Law Review 109 (2020), reprinted in 2020 Intellectual Property Law Review (Thomson Reuters)
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’s 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.
Link: http://ssrn.com/abstract=3590341
Aereo‘s Errors
2 Journal of International & Comparative Law 171 (2014)
This article scrutinizes the United States Supreme Court’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc. Aereo’s 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. Aereo’s 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 ‘highly similar’ to a cable company, and that it therefore made ‘public performances’ falling within the plaintiffs’ 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 ‘cloud’ computing services.
Link: http://ssrn.com/abstract=2497705
Super-Intermediaries, Code, Human Rights
8 Intercultural Human Rights Law Review 19 (2013)
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’ 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.
Link: http://ssrn.com/abstract=2491067
Best Practices for the Law of the Horse: Teaching Cyberlaw and Illuminating Law Through Online Simulations
28 Santa Clara Computer and High Technology Law Journal 657 (2012)
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 Article — also appropriating the “Law of the Horse” moniker — concludes that Easterbrook’s challenge is primarily pedagogical, requiring a response keyed to whether cyberlaw ought to be taught in law schools. The Article concludes that despite Easterbrook’s 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 “Cybersimulations” are an ideal way for students to learn — in a holistic and immersive manner — legal 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 “illuminate” the entire law.
Link: http://ssrn.com/abstract=2333884
Navigating the Uncharted Waters of Teaching Law with Online Simulations
38 Ohio Northern University Law Review (2012)
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.
Link: http://ssrn.com/abstract=1944664
Civil Procedures for a World of Shared and User-Generated Content
48 University of Louisville Law Review 911 (2010)
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 (YouTube’s Content ID filtering program). Such procedures can produce a “substance-procedure-substance” 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 “balanced accuracy” (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.
Link: http://ssrn.com/abstract=2056334
Looking for Fair Use in the DMCA’s Safety Dance
3 Akron Intellectual Property Journal 121-170 (2009)
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.
Link: http://ssrn.com/abstract=1347429
Internet Infoglut and Invisible Ink: Spamdexing Search Engines with Meta Tags
12 Harvard Journal of Law and Technology 43 (1998)
This Article addresses ‘spamdexing,’ 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 webpage’s code, particularly by using ‘meta tags,’ indexing keywords that can be hidden in a webpage’s 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 ‘noise’ into search engine databases, rendering searches ‘imprecise’ – 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 user’s search terms to the search goal, and of a website owner’s meta tags to actual website content. It is also necessary to consider the reasonableness of each party’s 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.
Link: http://ssrn.com/abstract=1469706
Showdown at the Domain Name Corral: Property Rights and Personal Jurisdiction Over Squatters, Poachers and Other Parasites
58 University of Pittsburgh Law Review 911 (1997)
This paper on domain names disputes has two main goals. The first is to analyze the principal points of litigation in domain name disputes, namely, personal jurisdiction and trademark liability. The second is to propose an analytic framework to better help resolve matters of jurisdiction and liability. Regarding personal jurisdiction, domain names are problematic because an internet site can be viewed almost anywhere, potentially subjecting the domain name owner to suit everywhere. For example, should a Florida domain name owner automatically be subject to suit in Alaska where the site can be viewed? If not, then where? Regarding liability, trademark law would normally permit multiple persons to use identical or similar trademarks, so long as the products or locations are sufficiently remote. Put differently, in the real world, UNITED AIRLINES can co-exist with the UNITED WAY. But on the internet, there can only be one UNITED.COM. As an aid to analysis, the paper proposes three categories of domain name disputes, with suggestions on how to resolve jurisdictional and liability issues for each. First, some disputes concern cybersquatters, those who speculatively purchase domain names with the intention of selling them for profit. Second, other disputes concern ‘parasites,’ those who have no intention of selling the domain, but instead hope to gain financially from confused users. Third, some disputes concern ‘twins,’ where the domain name owner and challenger both have legitimate claims to using the same name in the brick-and-mortar world. Through these three categories, the paper suggests ways of resolving issues of personal jurisdiction and trademark liability.
Link: http://ssrn.com/abstract=1473884
Updated Feb. 5, 2021