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=2345003
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=1699429
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.