As argued in my recent article on private copyright enforcement and feedback loops, a deficit of transparency and public participation in private copyright enforcement has fostered gross overreach by copyright owners. A recent example of copyright overreach is amply demonstrated by the so-called Anti-Counterfeiting Trade Agreement, which was negotiated secretly and addresses far more than mere “counterfeiting.” (See here for a law professors’ letter I’ve signed against ACTA.)

It’s good to see such concerns echoed in the Congress’ just-released Declaration. For example:

International intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation. New rules should be made within the existing forums responsible for intellectual property policy, where both developed and developing countries have full representation, and where the texts of and forums for considering proposals are open. All new international intellectual property standards must be subject to democratic checks and balances, including domestic legislative approval and opportunities for judicial review.

Along similar lines, the Declaration calls excessive IP enforcement out to task, noting that “Government and private IP enforcement are commandeering greater social resources in order to impose stricter penalties than ever before, with fewer safeguards and less procedural fairness.” The Declaration contains many other important ideas, such as making sure that new IP protections are rooted in transparent research that demonstrates the need for new IP rights, including addressing the fact that fair uses and other IP limitations also generate economic value. Other important mentions are the importance of libraries and archives, strengthening IP exceptions, rejuvenating notice-based formalities, and much more.

I’d go on, but instead you should read the full document at http://infojustice.org/washington-declaration. Even better, sign it. (I did: I’m # 95.).

Chicago is a beautiful town.

It wasn’t all play. My presentation focused on my ongoing Cyberskills project, which uses live, online role-playing simulations to teach law. I presented portions of two papers, the abstracts for which are provided below:

Best Practices for the Law of the Horse:
Teaching Cyberlaw (and Law) with Online Role-Playing Simulations

Judge Frank Easterbrook once mocked Cyberlaw as “the law of the horse,” a subject lacking in cohesion and therefore unworthy of inclusion in the law school curriculum. This Article responds squarely to Easterbrook’s challenge and concludes that Cyberlaw is a course that can be taught particularly well in law schools when learning occurs through live, online role-playing imulations. These techniques have been successfully used by the author for the past three years, casting students as lawyers in realistic simulations that unfold on the live internet. Unlike other Articles responding to Easterbrook, this Article bypasses a doctrinal or theoretical approach, avoiding (for now) the longstanding debate between Cyberlaw exceptionalists and unexceptionalists. Because Easterbrook’s attack is ultimately educationally rooted, the Article takes a pedagogical approach, concluding that Cyberlaw presents a unique opportunity for holistic and experiential legal education that combines doctrine, theory, skills, and values in a highly engaging manner. Accordingly, in light of the recent studies Best Practices in Legal Education and the Carnegie Report, the Article explains how the author came to develop such a course and outlines how such a course might be structured. The Article concludes with a response to Easterbrook’s existential (“surface”) and normative (“illumination”) attacks on Cyberlaw, concluding that both are without merit.

Navigating the Uncharted Waters of Teaching Law
with Online Simulations

The internet is more than a place where the Millennial Generation communicates, plays, and shops. It’s also a medium that raises issues central to nearly every existing field of legal doctrine, whether basic (such as torts, property, or contracts) or advanced (such as Intellectual Property, Criminal Procedure, or Securities Regulation). This creates tremendous opportunities for legal educators interested in using the live internet for experiential education. This Article examines how live websites can be used to create engaging and holistic simulations that tie together doctrine, theory, skills, and values in ways impossible to achieve with the case method. In this Article, the author discusses observations stemming from his experiences teaching law courses using live, online roleplaying simulations that cast students in the role of attorneys. The Article concludes that such simulations have significant benefits for law students, and surprisingly, can also benefit scholars who use simulations proactively to deepen the synergies between their teaching and scholarship. However, the resources required for simulations may also exacerbate long-standing systemic tensions in legal education, particularly regarding institutional resources as well as the sometimes conflicting roles of faculty as teacherscholars. Because the American Bar Association will almost certainly, and appropriately, require law schools to expand their simulation offerings, the benefits and tradeoffs of simulations teaching must be addressed now.

Live websites provide a dynamic “sandbox” for role-playing simulations that cast students as lawyers acting for fictional clients. Such simulations, initially crafted for a Cyberlaw class, can also be used in a wide variety of other courses. This provides a highly configurable platform for the immersive and holistic learning of knowledge, skills, and professional identity, including realistic fact-finding, advocacy, negotiation, ethical traps, and much more. The workshop will first provide background on relevant technology and methodology. We will then move to a mini role-playing exercise using the live Internet, followed by a discussion of the benefits and challenges of online simulations.

Interested readers can find my presentation materials, including a sample scoresheet incorporating all MacCrate skills factors, here.

Does the three-year program of legal education work well? This depends entirely on what legal educators do with the three years. If legal educators are lazy, uninspired or indifferent to their responsibility to educate, three years is certainly too long. But if they are thoughtful, focused and creative, three years may not be long enough.

Rose Cuison Villazor says:

Ultimately, the question about reducing the cost of legal education should be less about its length but rather its quality. Law schools must put greater emphasis in developing and strengthening programs that would help law students become engaged and ethical lawyers. These include increasing the availability of skills-based courses, clinical and internship programs, enhanced academic support and mentoring services, providing more mentoring and offering more interdisciplinary courses. By enhancing the traditional model instead of radically changing it, many law students might just view their legal education as an important investment in time and money.

For more, go to the main debate page.

H/T to Therapeutic Jurisprudence page on Facebook.

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.

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?”

Click here to view the embedded video.

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.

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 Networkworld.com 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 Networkworld.com, we don’t know (yet) what happened, and Newsday is being tight-lipped with the reasons.

Well, Apple? Newsday?

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).

Thinvisibility: n.

1. Being neither completely visible nor completely invisible.
2. Being a tiny, shiny needle in a haystack of information overload.
3. Being invisible to everyone except data aggregators and digital preservationists such as Google, the Wayback Machine, the NSA, and others.
4. Being invisible to employers, colleges, police, neighbors, friends, exes, stalkers, acquaintances, and others, who are not interested in you, until they are.
5. Being visible.