For our first class on Monday, January 14, please read the materials in the “Public Performance” assignment. We will discuss the scope of the public performance right in Internet transmissions: what it is, and what it ought to be.
Here is the official description of this seminar:
This seminar will examine the interaction between copyright and new digital technologies. The readings will combine close doctrinal attention to the evolving caselaw with theoretical and policy-oriented perspectives. Students will each write a paper and be responsible for leading class discussion on one topic. Course topics will be selected partly on the basis of current controversies, but are likely to include distributed authorship; computer-generated works; ownership of digital rights; open-source licensing; the changing meanings of “reproduction,” “distribution,” and “public”; ownership of digital objects and first sale; new forms of fair use; intermediary liability; mass infringement lawsuits; privatized enforcement; mass digitization; and the future of music, libraries, journalism, the Internet, and human creativity.
In the Spring 2013 semester, the course will focus principally on the shifting nature of infringement on the Internet. We will pay particular attention to judicial interpretations of sections 106, 107, 109, and 512 of the Copyright Act, and to how the resulting doctrines interact.
Your work for the class will consist of weekly readings, in-class discussion, and a paper. You will be responsible for helping lead discussion once, and for critiquing one of your classmates’ papers.
This course requires that you have taken Copyright Law, as it presumes that you are familiar with the copyright canon as presented in, e.g., Julie E. Cohen, Copyright in a Global Information Economy.
All readings will be linked from this syllabus. For cases, I highly recommend printing the National Reporter System version available as a PDF from Westlaw. For law review articles, I highly recommend printing the Hein Online PDF version. (I have provided hyperlinks to other versions of cases and articles as a convenience for those without all-you-can-eat access to these electronic databases.) You will also need a copy of the 1976 Copyright Act as amended through the present.
Each class session will be focused around a specific problem in copyright law drawn from a recent case (listed in bold in this syllabus). You should read this case with care, as we will examine its reasoning closely in class. Anything in these cases—from standing to remedies—is fair game, and we will typically work through every significant issue these cases raise. One of my major goals for the seminar is to bring out the interdependence of copyright doctrines: changes to one have significant impications for others. These cases will serve as a springboard for the larger issues we will discuss.
The law review articles serve a dual function. We will use them to reflect on the doctrinal and policy problems presented by the cases, debating which proposed solutions would be better or worse. We will also use them to reflect on how to read legal scholarship and how to write it. As lawyers, you will be regular consumers of law review articles and other analytical materials that discuss trends in the law. We will read some excellent papers this semester and some less-than-excellent ones, and the seminar is partly about learning to tell the difference.
There may be a few additional readings—most of the problems we are considering are live issues, so there may be significant developments in the law during the semester. I will post them to this syllabus and announce them in class. Check the syllabus each week before you start the week’s readings.
We meet Mondays 1:20 to 3:20 in room H5021.
Here are my policies about class:
Please arrive promptly. I promise that we will end on time, but that means we must start on time.
I expect you to be in class, unless you have a compelling reason to be absent (e.g. illness) and have notified me beforehand.
Do the readings and be prepared to discuss them in detail. Being right is not essential — indeed, there is no definitively “right” answer to any of the problems we are considering — but having thought through the issues is.
Bring the day’s readings with you to class, in hardcopy.
Be respectful of and courteous towards your classmates. One of the skills you are learning as law students is how to be friendly and professional while disagreeing.
The classroom generally will be a computer- and cell-phone-free zone. Bring a pad of paper, pens, and your undivided attention.
Each week—except the first week and the last three weeks—two of you will be “on” for the week. You will be responsible for being subject-matter experts on that week’s topics, which means (a) preparing that week’s materials especially carefully, and (b) potentially doing additional readings so that you understand crucial pieces of context. We will meet the previous week to discuss the issues and craft a reading plan.
“We don’t check the statements of the ‘young gentlemen’ around here. We simply cashier them if it ever turns out that they have not told the truth.”
We are members of an academic community built on respect, trust, and honesty. I will take you at your word; in return, I expect you to be truthful and candid in your dealings with me and your classmates.
Your conduct in this course is subject to the Student Disciplinary Code. In particular, it should go without saying that all your work for this course—most especialy your paper—must be your own. I encourage you to discuss your ideas with me, each other, and your other colleagues in depth. But anything you submit as your own work conform to the highest standards of proper citation and attribution.
Your principal work product for the semester will be an original research paper of approximately 10,000 to 12,000 words, inclusive of footnotes but exclusive of the table of contents and other non-content matter. Papers shorter than this minimum will need to be especially focused and polished; papers longer than this maximum will need to justify their length with correspondingly extensive coverage.
Your paper topic can relate in any way to copyright and digital technologies. I will apply a rebuttable presumption against case comments, i.e. papers that discuss a single judicial decision and critique its reasoning. (The same goes for legislative comments that critique a proposed bill.) Better papers identify a trend in multiple decisions, or bring an unexpected doctrine to bear on a problem, or explain how the law should make sense of a new technology. In addition to the topics on the syllabus, here are some other potential directions for papers:
The effects of widespread high-quality digital content creation tools (e.g. Photoshop and ProTools).
Ownership issues around computer-generated works.
The copyright status of APIs (application programming interfaces).
Copying norms and knockoffs in the app economy.
The Copyright Alert System.
The application of criminal copyright law to secondary infringers, as in the aborted RojaDirecta prosecution.
The use of copyright law to apply seizure remedies to nontraditional items (like servers and domain names).
Users’ proprietary and copyright interests in cloud-stored copies of their data.
Territoriality issues raised by cross-border piracy.
Termination of transfers and digital derivative works.
The sufficiency of online contracts (esp. clickwrap and browsewrap) in satisfying the Copyright Act’s statute of frauds.
Compilation copyrights in user-generated databases.
Dynamically generated mashups and the derivative works right.
Copyright as a constraint on search-engine indexing of web content in the shadow of antitrust law.
Anticommons problems and license fragmentation in open source software.
Copyright liability of crowdfunding platforms and contributors to infringing projects.
Small claims procedures for infringement, esp. online.
The consequences of a proposed copyright-related treaty.
The mental state elements of direct and secondary and infringement.
A comparative European (or other international) perspective on any of the above.
You will produce your paper as a series of deliverables, each with its own deadline. Failure to meet one of these deadlines will result in an automatic third-of-a-grade reduction, and more for protracted lateness. You should submit your outlines, drafts, etc. to me via email, in .doc, .docx, or .pages format, before class on the due date.
February 4: Topic proposal due. This should include:
A concise, specific statement of your research topic. “Secondary liability” is too general; “secondary liability of nontraditional payment systems like Bitcoin exchanges” is better.
A preliminary thesis. This should generally either be a legal conclusion about your chosen issue, or a proposal for how courts or Congress should or should not change the law on the issue. Your proposal will need to provide some reason to believe that your research will eventually support your thesis. It’s okay if, in the end, you reach a different conclusion. But if you don’t have a conclusion in mind to support or refute when you start, you will end up floundering and reading aimlessly.
A brief research outline that explains the main sources you intend to start by reading. For a typical paper, these will include cases, law review articles, treatises, news articles, and quite possibly other sources. Identifying the relevant literature is an important part of demonstrating that your project is achievable over the course of a semester.
A brief preemption analysis showing that no one else has already published a paper that says what you plan to say. This typically means checking what has been published in law reviews, but depending on your topic, you may need to look elsewhere, as well.
March 11: Detailed outline due. This should include:
A fully-written introduction to your paper, setting up the argument and explaining your thesis. Depending on the topic, 500 to 1000 words is a good length.
An outline of your paper descrbing in detail what each section of your paper will contribute. A good format is to create and format the section and sub-section headings of your paper, and within them, write the thesis sentence for each paragraph the section will contain. Another reasonable format is narrative: write a 2500 to 3000 word version of the entire paper, with a paragraph or two for each section the final paper will contain.
A bibliography listing the sources you have read and expect to cite in the finished paper. List each source in proper Bluebook citation style as it would appear the first time it is cited in a footnote, in the order specificed by the Bluebook. The bibliography is not just a list of what you hope to look at someday: it should demonstrate that you have done detailed and scholarly library research and fully understand the range of primary and secondary materials on your topic.
April 8: First draft due. This is not a short “rough” draft, full of sloppy writing and passages to be filled in later. No, this draft should be substantially complete and substantially clean. Completeness means that the draft should be roughly the same length as the final draft will be, and say everything that it will. Cleanness means complete sentences, well-organized paragraphs, no missing portions of the argument, consistent fonts, spell-checked by computer and by hand. It is fine if your paper changes substantially between first and final drafts. But you need something to start from: the only way to edit effectively is to start from a version in which you have honestly confronted the problems your paper faces and ventured a solution to them. It is fine to keep the footnotes brief at this stage: one good way is to use only Bluebook short forms, with the expectation that you will fill in the longer versions before the final draft.
April 15-22: In-class “presentations”: In these sessions, we will discuss your papers. (The schedule of whose paper is discussed which week will be worked out in March so that related papers are grouped on the same day.) The papers will be distributed to the class a week in advance; there will be no other readings. Since everyone will have read the paper before arriving, we will dispense with formal presentations. Instead, each paper will have a designated commentator drawn from the class. The commentator will give a brief (~5 minute) critique of the paper, pointing out things that it does well, probing its limits, and giving suggestions for improvements in the final version. Then we will move into general discussion of the paper.
April 29 at 5:00 PM for May graduates and May 14 at 5:00 PM for all others: Final drafts due. The goal is publishable-quality work. You should settle for nothing less, because I will not.
We will meet at least once before each deadline to dicsuss your ideas and progress.
For students graduating in May, the
Research and Writing Sources
In researching your papers, preparing for class, and satisfying your curiosity, you will find it helpful to consult a diversity of sources. In my personal experience, the following are especially helpful:
For treatises, no copyright research project is complete without a careful read of the relevant portions of Patry (available on Westlaw) and Nimmer (available on Lexis). Both are detailed and insightful. But, for reasons detailed by Ann Bartow be very wary of taking either of them at face value!
For most law review articles, the best electronic version is the PDF you can obtain from the “print/download” command in Hein Online. You should be familiar with Hein’s search and citator functons, both of which are extremely helpful in running down the literature on a topic. Unfortunately, the most recent issues are often not yet in Hein. Lexis and Westlaw are good for searching more recent scholarly literature, but for printing fair copies, check SSRN, law-review websites, and professors’/law schools’ digital repository. Depending on the subject, it is often worth checking JSTOR, as well.
For printing cases, it is hard to beat the typsetting of the National Reporter System, available as PDFs through Westlaw. For quick case lookups, Google Scholar is fast, free, and easy to use. For more careful research, including Shepardizing a case or running through all of the cases on a point of law, you should switch to one of the commercial databases.
The library offers research consultations to students working on seminar papers. I recommend that you schedule one as soon as possible after settling on a topic.
Email is the best way to reach me and will generally lead to the fastest response.
My office hours are the times I reserve for student meetings, not the only times I am available. Appointments are recommended but not required. If my office hours are inconvenient for you, email me to set up another time or just drop by. If the door to my office is open, please feel free to come in.