New article on SSRN: “Civil Procedures for a World of Shared and User-Generated Content”

I’ve posted a draft of my forthcoming article Civil Procedures for a World of Shared and User-Generated Content to SSRN. It’ll appear in print in the University of Louisville Law Review. Here’s the abstract:

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 source of procedures, the relevant actors, and the functions of enforcement (the descriptive framework), the Article suggests principles of transparency, participation, 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.

You can find the abstract and download the article here.

Lessig’s modalities, football helmets, and “cerebellum custard”

I’ve been thinking about Larry Lessig’s modalities for an upcoming piece I have coming out on copyright enforcement. And because my beloved Pittsburgh Steelers are playing the Dolphins of my adoptive hometown today, I’m also thinking about football.  As any football fan knows, the league is concerned over head injuries and last week fined several players a total of $175K for hits to the head. Is this a solution, or just a publicity band-aid? Sorry, NFL, it’s the latter.

Today’s New York Times carries a really well-written editorial by former Bronco Nate Jackson. He says:

Before the 1950s, when they wore soft helmets without face masks, players didn’t lead with their heads. They dived at opponents’ legs and corralled them with their arms. Leading with the head meant facial disfigurement and lots of stitches. But once leather was replaced by hard plastic, enclosing the head in protective armor, all bets were off. Couple that with the size of today’s players and the speed of the modern game, and you have a recipe for cerebellum custard.

In reading it, I couldn’t help but think of Lessig. Jackson notes that part of the problem is that modern helmets make it easier to make aggressive, head-first hits. He also notes that a player’s “manhood” will be questioned if he shies away from helmet contact.  In Lessig’s terms, regulation is done by the combined interactions of laws, social norms, markets, and architecture (or “code” in the case of computers).

The helmet problem is a paradigmatic case of the difficulties of regulation. Even if NFL rules (“law“) prohibit certain kinds of contact, it still takes place. So the NFL is trying a band-aid solution through fines and possible suspension (“markets“).

But I doubt that the problem will be solved merely through the occasional penalty or fine. A major reason for the massive amount of head hits and injuries is because of social “norms,” namely, players and coaches who expect aggressive play. Jackson says “The N.F.L. could also try educating coaches, who now believe that a headless hit is an ineffectual one, about the perils of head-first tackling, in hopes that over time safer techniques would become the norm.” (Note the use of “norm” there?!) Maybe some education will help, but I suspect that “prisoner’s dilemma” thinking will prevent any coach or player from voluntarily abandoning techniques that might risk a won-loss record. That’s not a justification, it’s a fact. When a player’s manhood is defined by his aggressiveness and lack of fear, then fines, penalties, and best practices won’t cut it. When a coach’s success is defined by his won/loss record, he’ll put winning first. And when a league’s bottom-line stems largely from hard hits, it may apply band-aids as long as possible, blinding itself to the real source of the problem.

The source of the problem? Ultimately, it’s one of “architecture” – here, the physical architecture of the game. It’s what enabled more aggressive play, as well as the success that gave rise to the norms of let-slip-the-dogs-of-war head-butting Havoc. And that, in turn, brings us back to law. But here the law is one the NFL can’t fight. It’s physics: force = mass x acceleration. Combining helmeted heads with bigger, faster players, and you have a recipe for what Jackson aptly calls “cerebellum custard.”

What’s the solution? Jackson toys with the idea of doing away with helmets altogether and returning to the earlier “rag days” of “bloody noses.” Maybe. But in a day of 300-lb. linemen, that’s a recipe for instant death, not instant replay. My instinct is that the NFL’s desire to make money and its fear of losing its fan base will outweigh any meaningful efforts to reform the game. As Jackson says:

But stiffer on-field penalties, fines, suspensions, seminars, summit meetings, press releases — these are knee-jerk public-relations reactions that will do little. The only way to prevent head injuries in football is no more football. It is a violent game by design. The use of helmets plays a critical role in creating that violence. The players understand the risks, and the fans enjoy watching them take those risks. Changing the rules enough to truly safeguard against head injuries would change the game beyond recognition. It wouldn’t be football anymore.

Short of better helmets, smaller players, or meaningful changes to player/coach/league norms, I am not hopeful. But being a indirect part of the problem, at 1PM, I and millions of others will be watching the gladiators go at it on CBS.

Maybe we really are the Romans.

David Letterman’s live IP demand to Joaquin Phoenix: real or hoax?

I’ve read many a cease-and-desist letter, and I’ve even written a few, but I’ve never seen an IP demand issued personally on late-night TV. Here’s David Letterman, complaining to Joaquin Phoenix about the use of portions of Phoenix’s infamous 2009 Late Show appearance for a new movie. Many will recall Phoenix’ bizarre, bearded 2009 appearance, where Phoenix claimed to be quitting acting to become a hip-hop artist. Since then, it’s come out that the appearance was part of a Borat-style false-reality performance, as part of Casey Affleck’s mockumentary I’m Still Here.

During yesterday’s interview, the two performers (Phoenix now cleaned up) discussed the film. After pleasantries, Letterman shifted into the IP issues (about 2:45 in). According to Letterman, his lawyers said he could sue, but that Phoenix’ lawyers claimed the use was fair use because it was for a documentary. Of course, it turned out to be otherwise — in Dave’s words, “Guess what, it’s no documentary. It was a theatrical ruse.” Moreover, he said, “I’m in it . . . at a pivotal point in the film.”

And now the demand: “Now you owe me a million bucks.” Ultimately, Phoenix promised, “We’ll work it out,” asking “but, can we talk about it privately?”

I find it odd in these days of sophisticated transactional lawyering that — regardless of any possible fair use — a commercial use like this would not have been cleared, in writing, in advance. Indeed, considering the “pivotal” role that the 2009 Letterman show appearance played in the film, it would appear crucial to nail down permission for that piece of IP, fair use or not. This is a film, where real money is at stake and risk-taking is usually quite low.

So is the demand real? Who knows. But for what it’s worth, a Letterman writer earlier claimed that Dave knew that the earlier, original 2009 appearance was a hoax. So I don’t know, but I sure hope that Dave’s demand is a gag. Considering that the Affleck/Phoenix movie is intended to explore the relationship between media and celebrity, it would be fitting to add our society’s constant stream of IP demands to the mix.

But then again, sometimes a demand is just a demand.

Does an Apple a day keep the Newsday away?

A few days ago, I posted a YouTube video showing a viral ad from Newsday advertising its new iPad app.  The video shows a guy using an iPad to swat a fly, with the iPad shattering. Cool!

But the video is now down, and I wonder why. It wasn’t taken down by a DMCA take-down sent to YouTube, because the video now says it was removed by the user. An article at confirms that Newsday removed the video. A Newsday rep stated: “We have taken the commercial ‘Flypaper’ down and its short, glorious run appears to be over.”

But why? Was the notoriously thin-skinned Apple upset? If so, that’s idiotic. Is Apple worried that people will start assaulting insects with their technology? Remember, Apple: iPads don’t kill people, people kill people!

Bottom line: if Apple is putting pressure on Newsday, shame on Apple. If Newsday — a news organization — is caving to demands from Apple, then double-shame on Newsday.

But as pointed out by, we don’t know (yet) what happened, and Newsday is being tight-lipped with the reasons.

Well, Apple? Newsday?

The fallacy of echo chambers: is everyone really mad at everyone?

Bob Greene makes a timely post at CNN comparing today’s social climate to that of 1955. He discusses a July 4, 1955 cover story from Life Magazine that paints the era as a time of utopian happiness. Greene asks whether we were really that happy then, and conversely, whether we are as angry now as the news media would have us believe.

The 1955 article paints a rosy world, straight out of Pleasantville.  Witness the headline:

In a sense, it really was a different era. As the 1955 Life article claims, “Embroiled in no war, impeded by no major strikes, blessed by almost full employment, the U.S. was delighted with itself and almost nobody was mad with nobody.” But Greene notes the dark underbelly of the era: “Racial inequity was widespread, constrictive conformity was all around, intolerance of anything different was itself tolerated … your list could go on and on.”

More importantly, Greene compares the fantasies of yesteryear with the “anger” of today:

If monolithic national happiness was, in fact, being sold as a commodity back then, a case can also be made that the commodity being sold to us today is national animosity. Just about every day, we are told how furious we are at each other. If . . . Life magazine was endeavoring to promote the notion of consensus, what we are being relentlessly barraged with now is a message of anti-consensus. And that may be just as false an impression, in its own way, as the everyone’s-joyful pitch was in 1955.

Cass Sunstein makes a similar, important point, one that others have made, and one that bears emphasis.  In an age of information overload, people are drawn like bees to viewpoints that reinforce pre-existing social and political beliefs. I’ve written about the problems of information overload in the trademark context. Here, in the context of social tensions, the echo chamber is even more dangerous. It’s easy to read the Drudge Report or Huffington Post and pat yourself on the back — left shoulder or right, as the case may be — for being so clever as to believe things that other smart (or sometimes smart) people are saying. It’s quite another to force yourself to question your beliefs by reading things that challenge them. Moreover, the loss of shared communal experiences (something that Sunstein correctly bemoans) means that you’re losing out on beliefs and values that you may not even know about.

And now for something completely different….  Not only were the pundits of the 1950s wrong about themselves. They also got the future wrong. Witness this 1959 cover of Superman, where the Big Blue Boy Scout battles evil-doers from the year 2000, who use ray guns from flying cars.

Me, my 2001 Tiburon doesn’t fly, let alone possess a ray gun. But thank goodness it can get NPR on Satellite radio (as well as Fox and CNN).