Stanford Center for Internet and Society

Next month Stanford CIS is hosting a conference about Legal Futures. Judging by the list of participants, the upcoming even should be nothing less than electrifying. This post is unrelated to the conference. In fact, it is not about legal “futures” at all. Rather, it is about legal “pasts.”

I have never seen an SSRN paper receiving 1700 recorded downloads in mere three days or so. This is exactly what happened to “The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident” by Deirdre Mulligan and Aaron Perzanowski, forthcoming in the Berkeley Technology Law Journal. It is by far the most meticulous analysis of the Rootkit debacle available. Among other things, the authors propose to amend the DMCA to lodge a statutory exception that would allow both circumvention and trafficking in TPMs to the extent undertaken to investigate or eliminate protection measures that create or exploit security flaws or vulnerabilities that compromise the security of personal computers.

Today was the official publication of a new amendment to the German Copyright Act. The amendment will enter into force in January 1st, 2008. After four long years of discussions, debates and negotiations, the final text is now available. A few highlights:

Prof. Niva Elkin-Koren has uploaded a paper titled Making Room for Consumer Under the DMCA, to be published soon in the BTLJ. The paper provides a terrific analysis and introduces an original perspective, proposing to perceive users of copyrighted works as participating consumers in information markets. This perspective underlies the argument for granting consumers more solid and meaningful protections within copyrights law, inter alia, a right to access cultural goods - despite DRMs. From the abstract:

In Torres-Negrón v. J & N Records, L.L.C., the First Circuit determined two issues: whether the plaintiff composer’s submission of a tape recording of himself singing his song and clapping its rhythm by memory, without reference to his original work, met the deposit copy requirement of 17 U.S.C. § 408(b); and whether the failure to submit a deposit copy is a jurisdictional defect in a federal copyright infringement case. Affirming a decision of the United States District Court for the District of Puerto Rico, the First Circuit found that plaintiff’s copyright application was incomplete because it included only a reconstruction of the song, and not a bona fide copy. The court deemed this a material defect and thus denied federal subject matter jurisdiction.


Torres-Negrón v. J & N Records, L.L.C.

Intellectual Property as Property: Delineating Entitlements in Information, authored by Prof. Henry Smith was published last summer in the Yale Law Journal. It is an important article, a must-read for IP theory fans, all the more for law-and-economics folks. A blog post is perhaps not the ideal venue to discuss Smith’s insights in depth. The breadth of the theoretical discussion it begs is vast and the potential application of the information cost theory to property issues is enormous. My limited aim here is to share some thoughts about possible applications to copyright law and the tendency to protect technological access-controls under the copyright statue.

The attorney of Jammie Thomas has resolved to appeal the jury verdict entered against her last week. That closely-followed trial culminated in awarding $222k in damages for willful copyright infringement to the music industry. The appeal would focus on jury instruction no. 15, the making-available quandary.

William Patry has an interesting post today about imbalanced educational campaigns directed to children concerning copyright violations. I suppose that one of the toughest challenges to those who try to produce more "balanced" campaigns for kids, telling them that they must “respect” copyright, is that we, grownups and educators, are not always sure about it ourselves.

Section 102 of the Copyright Act has been receiving quite some attention in legal commentary recently. Professor Pamela Samuelson authored an article challenging the influential Nimmer treatise’s interpretation of subsection 102(b) and Nimmer’s restrictive reading of Baker v. Selden. (William Patry has commented in his blog on Samuelson’s article.) In a recent paper, Professor Dan Burk is discussing the application of section 102(b) to copyrightability of methods.