Speech and Copyright in a Digital Environment: Theoretical and Practical Aspects (UFL)

Prof. Hiram A. Meléndez-Juarbe

Course dates and hours: Tuesday, Wednesday, Thursday, 4:00pm-5:00pm (March 18-April 3)

Course website: http://www.elplandehiram.org/cyberlawufl

Out of Class Availability: By appointment and via email (address in this link)

I. COURSE DESCRIPTION

The copyright system is essential to shaping public discourse in a digital environment. Yet, the relationship between copyright law and  freedom of speech has never been clear (and gets murkier by the minute!)

In this portion of the course we will take a close look at key aspects of the copyright system’s impact on the expressive environment in a digitally connected world. To that end, we will engage traditional positive law and doctrinal particulars from the perspective of legal, constitutional and social theory. As a theoretical exercise, the course does not attempt to replace basic intellectual property or cyberlaw courses. Rather, the objective is to help students develop a general understanding from a theoretical perspective.

The course is organized around three thematic clusters.

In Week One (“Copyright, Political Principles and Legal Protection”) we will explore theoretical underpinnings of both copyright law and freedom of expression (particularly the First Amendment). Copyright is a complex and variegated domain of social life where intense struggle and competition over the use of intellectual works can be observed. These struggles are reflected in arguments about concepts such as property, incentives, welfare, the public domain, technological change, users, and innovation, among others. Similarly, the system of freedom of expression is also multidimensional and disorganized. Particularly in the Unites Staes, it is concerned with democratic self-determination, individual autonomy, the search for truth and democratic legitimacy, among other principles, making it famously challenging to pinpoint a set of values behind which we can confidently say the First Amendment stands.   It is partially because of this cacophony of values that these two systems are hard to synchronize.  The objective of this part of the course is to map out these difficulties as they present challenges to robust public discourse in a digitally interconnected milieu.

In Week Two (“Private Ordering and Market Morality”) we will examine the role of private actors in shaping the expressive environment, particularly as these actors design fundamental aspects of our contexts for action. Through this perspective, the traditional dichotomy between the public and the private will be evaluated. Furthermore, as market institutions (through the aegis of welfare economics) become prevalent spaces for social interaction and for the distribution of “information goods”, it becomes imperative to consider the morality of these institutions.

Finally, in Week Three (“Speech, Intermediaries and Innovation”)  our reflections on copyright, speech and digital life come together in the regulation of online intermediaries. The aim of this section of the course is to tease out general lessons from intermediary regulation and enforcement.

 

II. METHOD OF INSTRUCTION, QUESTIONS AND THOUGHT PAPERS

The course will be conducted through a combination of lectures and active student participation. Most class assignments will consist of articles or book selections. Students are expected to read the material before each class, identify the authors’ main arguments and form an opinion.

A. Questions

Before each class, each student will prepare and submit by email 2 written questions relating to the materials assigned for that day.

B. Thought Paper

Each student will be required to write one 2000 word  “thought  paper” at the end of the course (this is a ceiling, not a minimum word count).  (updated 3/21/14)

A Thought Paper consists of an individual reflection in which the student shows her analytical skills and creativity while evaluating the assigned material and themes discussed in class. Independent research is not required or recommended. A paper that merely summarizes the works under analysis is considered a poor essay. This essay should present the student’s overall and holistic take on the course and should present each student’s considered assessment of the most salient themes for her, after deeply reflecting on class discussions and the assigned material.    Students should submit by email their topic ideas no later than the last day of classes (April 3) and they should be approved by the professor that week.  The essay is due on Friday April 11 at 11:59 pm and should be submitted by email to the professor.

III. EVALUATION

A. Student Participation, 20%

Each student will be expected to prepare for, attend, participate in every class as well as submit written Questions. Students are expected to complete all of their assigned readings and materials for a particular class before coming to class and to attend every class. Students should expect their class participation evaluation to be negatively affected by unexcused absences.

B. Thought Paper 80% 

The paper will be evaluated according to the following criteria: originality of insight; quality of written prose (including spelling and editing); ability to integrate and link readings and ideas; and, overall persuasiveness, style and precision.

Week One- Copyright, Political Principles and Legal Protection 

Tuesday, March 18- Collective Self Determination

  • Owen Fiss, Free Speech and Social Structure, 71 Iowa L Rev 1405 (1986).
  • Neil W. Netanel, Copyright in a Democratic Civil Society, 106 YALE L. J. 283 (1996) (pages 341-64)

Recommended

Wednesday, March 19- Autonomy values and Copyright in a digital environment

  • Seana Shiffrin, A Thinker-Based Approach to Freedom of Speech, 27 CONST. COMM. 283 (2011)
  • Jennifer Rothman, Liberating Copyright: Thinking Beyond Free Speech, 95 Cornell L. Rev. 463 (2010) (Read Abstract and pages 513-28)
  • Peter K Yu, Moral Rights 2.0,  LANDMARK INTELLECTUAL PROPERTY CASES AND THEIR LEGACY (2010)

Thursday, March 20- Democratic Culture, Capabilities and The User

  • Jack Balkin, The Future of Free Expression in a Digital Age, 33 Pepp. L. Rev. 427 (2009).
  • Julie Cohen, The Place of the User in Copyright Law, 74 Fordham Law Rev. 347 (2005) (Read 347-49; 362-67; 370-73) (updated 3/17/14)

Week Two- Private Ordering and Market Morality

Tuesday, March 25- Technopolitics

  • Bruno Latour, Where are the Missing Masses?  The Sociology of a Few Mundane Artifacts, in Wiebe Bijker & John Law, Eds., Shaping Technology / Building Society: Studies In Sociotechnical Change 225 (1997)
  • Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501 (1999) (Introduction and Part I)
  •  Jonathon Penney, Understanding the New Virtualist Paradigm (2009)

Wednesday, March 26- Liberalism’s  Public / Private Divide 

    • Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001)
    • Robert P. Merges, Contracting Into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 Cal. L. Rev. 1293 (1996) (as edited in Robert Merges & Jane Ginsburg, Foundations of Intellectual Property, Foundation Press 2004) (read pages 185-191) (updated 3/21/14)
    • Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)

Thursday, March 27- Moral limits of markets?

  • Authors Guild v. Hathitrust, 11 CV 6351, New York Southern District Court, Opinion and Order October 10, 2012 (pages 1-4, 14-22) (emphasize Facts and Fair Use factors 1 and 4) (updated 3/21/14)
  • Margaret Jane Radin, Market-Inalienability, 100 HARV L. REV. 1849 (1987) (pages 1859-70; 1903-09) (updated 3/21/14)
  • Michael Sandel, What Money Can’t Buy: The Moral Limits of Markets, as edited in Rethinking Commodification: Cases and Readings in Law and Culture (Martha Ertman & Joan Williams, Eds, 2005), (pages 122-127)
  • Diane Leenheer Zimmerman, Is There A Right To Have Something To Say? One view of the public domain, 73 Fordham L. Rev. 297 (2004) (pages 366-370)

Week Three- Speech, Intermediaries and Innovation

Tuesday, April 1- Bouncers and Chaperones (Collateral Censorship and Divergence of Interests)

  • Reinier H. Kraakman, Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy, 2 J. L. ECON. & ORG. 53 (1986) (pages 61-66)
  • Assaf Hamdani, Gatekeeper Liability, 77 S. CAL. L. REV. 53 (2003)(pages 910-930)
  • Fonovisa v. Cherry Auction, 76 F. 3d 259 (9th Cir. 1996)
  • Felix T. Wu, Collateral Censorship and the Limits of Intermediary Immunity, 87 Notre Dame Law Review 293 (2011) (pages 298-309)

Wednesday, April 2- Intermediaries in a global context

  • Digital Millennium Copyright Act, 17 USC sections   512(c); § 512(i); 512(f); § 512(m); § 512(j).
  • Claudio Ruiz Gallardo and J. Carlos Lara Gálvez, Liability of Internet Service Providers (ISPs) and the exercise of freedom of expression in Latin America and Intermediaries in Towards an Internet Free of Censorship: Proposals for Latin America (Center for Studies on Freedom of Expression and Access to Information) (2012) (pages 17-23- “II.C.II. The regulation of Internet service provider liability in Chile”)
  • Copyright Modernization Act of Canada (2012), Sections 41.25-41.27 (“Provisions Respecting Providers of Network Services or Information Location Tools”)
  • Leaked TPP Text (SECTION I: INTERNET SERVICE PROVIDERS, Article QQ.I.1)
  • Copyright Alert System, Memorandum of Understanding (2011) (Read pages 8-14, skim the rest)

Recommended: 

Thursday, April 3- Technological Innovation,  Intermediation and Generativiy

  • Randal Picker, Rewinding Sony: The Evolving Product, Phoning Home and the Duty of Ongoing Design (2005)
  • Fred Von Lohman, Fair Use as Innovation Policy, 23 BERKELEY TECH. L. J 1 (2008)