Anticircumvention Rules: Threat to Science

Scientists who study encryption or computer security or otherwise reverse engineer technical measures, who make tools enabling them to do this work, and who report the results of their research face new risks of legal liability because of recently adopted rules prohibiting the circumvention of technical measures and manufacture or distribution of circumvention tools. Because all data in digital form can be technically protected, the impact of these rules goes far beyond encryption and computer security research. The scientific community must recognize the harms these rules pose and provide guidance about how to improve the anticircumvention rules.

Samuelson, Pamela. Science (2001). Articles>Intellectual Property>Copyright

The Constitutional Law of Intellectual Property After Eldred v. Ashcroft  

The past decade has witnessed an extraordinary blossoming of scholarship on the constitutional law of intellectual property, much of which focuses on copyright law. This article suggests that the scholarly debate will and should continue and that the proponents of constitutional limits are likely to enjoy some successes in the future, even if they did not do so in the Eldred case itself.

Samuelson, Pamela. University of California Berkeley (2003). Articles>Intellectual Property>Copyright>Case Studies

The Copyright Grab

The Clinton administration, through its white paper on intellectual property, is proposing a wholesale giveaway to its supporters in the copyright industry--at your expense.

Samuelson, Pamela. Wired (1996). Articles>Intellectual Property>Copyright

Copyright, Commodification, And Censorship: Past As Prologue--But To What Future?  

Copyright, commodification, and freedom of expression have often been viewed as harmonious and complementary concepts. In Harper and Row Publishers, Inc. v. Nation Enterprises, for example, the Supreme Court characterized copyright law as the 'engine of free expression.' Holding a left-leaning news magazine liable for copyright infringement for publishing excerpts from Gerald Ford's forthcoming memoirs was not, in the Court's view, to condone an act of private censorship. It was in harmony with first amendment principles because copyright incentives would ensure that these memoirs would reach the public through the normal operation of the marketplace.

Samuelson, Pamela. University of California Berkeley (1999). Articles>Intellectual Property>Copyright

Does Information Really Have to be Licensed?    

Discusses the proposed Article 2B of the Uniform Commercial Code, which will be presented to US state legislatures for enactment. It would 'validate shrinkwrap and other mass-market licenses of information' and establish other electronic commerce rules. Samuelson sees a danger in such licenses, in that consumers are said to have agreed to their provisions by 'token assent' such as clicking 'I agree.'

Samuelson, Pamela. Communications of the ACM (1998). Articles>Intellectual Property>Contracts

DRM {and, or, vs.} the Law    

Copyright industries are hoping that digital rights management (DRM) technologies will prevent infringement of commercially valuable digital content, including music and movies. These industries have already persuaded legislatures in the U.S., the European Union, and other countriesto adopt broad anti-circumvention rules to protect DRM from being hacked, and courts have interpreted these statutes even more broadly than the lawmakers intended.

Samuelson, Pamela. Communications of the ACM (2003). Articles>Intellectual Property>Copyright

Economic and Constitutional Influences on Copyright Law in the United States

Despite the many signs of convergence of European and U.S. copyright laws, this article contends that copyright law in the United States will continue to differ in two significant respects from authors' rights laws of member states of the European Union.

Samuelson, Pamela. University of California Berkeley (2000). Articles>Intellectual Property>Copyright>International

Five Challenges for Regulating the Global Information Society  

Information technology (IT) is unquestionably having a profound effect on many aspects of the social, cultural, economic, and legal systems of planet Earth. IT has enabled significant advances in global communications technologies, particularly the Internet, that make it more possible than ever before to contemplate the development of a global information society. (Originally published in Regulating the Information Society, Chris Marsden, ed., Routledge Press 2000.)

Samuelson, Pamela. University of California Berkeley (2000). Articles>Intellectual Property>Copyright

Good Legal Writing: of Orwell and Window Panes

George Orwell once wrote that `[g]ood prose is like a window pane.' What I take Orwell to have meant by that remark is that when people read good prose, it makes them feel as if they've `seen' something more clearly.

Samuelson, Pamela. University of Pittsburgh Law Review (1984). Articles>Writing>Legal>Minimalism

Intellectual Property and Economic Development: Opportunities for China in the Information Age

The information sector of the Chinese economy, although it has grown in recent years, remains a sector with a far greater potential for growth than has occurred to date. Intellectual property law can help fulfill China's further aspirations for growth of its economy. Markets for information products and services can only thrive when intellectual property rights are secure.

Samuelson, Pamela. University of California Berkeley (1999). Articles>Intellectual Property>Copyright>China

Intellectual Property Arbitrage: How Foreign Rules Can Affect Domestic Protections  

Differences in national intellectual property rules may cause economic activity to shift from one jurisdiction to another such that a higher protection rule in one jurisdiction will be undermined by lower protection rules in other jurisdictions. This article illustrates this phenomenon with four examples: as to rules on the enforceability of anti-reverse engineering clauses of software licenses, the protectability of bio-engineered research tools, peer to peer file sharing, and exceptions to anti-circumvention rules. It considers several options nations may have to respond to intellectual property arbitrages, none of which is likely to be very effective.

Samuelson, Pamela. University of California Berkeley (2003). Articles>Intellectual Property>Copyright>International

Intellectual Property Rights for Digital Library and Hypertext Publishing Systems

Computers and the concomitant capability they have provided for making copyrighted works available in digital form in networked environments have created many new kinds of expressive opportunities. Computer technology together with communications technology has enabled authors to create digital libraries and hypertext publishing systems. Active development of such systems is now underway. While some difficult technical problems must be solved to build these systems, technical obstacles are thought to be surmountable. Less clear, however, is what kind of intellectual property scheme can be used to make digital library or hypertext publishing systems commercially viable.

Samuelson, Pamela and Robert J. Glushko. University of California Berkeley (1993). Articles>Intellectual Property>Copyright

Legally Speaking: Did MGM Really Win the Grokster Case?  

MGM's media blitz has given the impression that the entertainment industry won an overwhelming and broad victory against peer to peer (p2p) file sharing and file sharing technologies when the Supreme Court announced its decision in the MGM v. Grokster case on June 27, 2005. MGM can, of course, point to the 9-0 vote that vacated the Ninth Circuit Court of Appeals' decision that Grokster could not be charged with contributory infringement because it qualified for a safe harbor established by the Supreme Court in 1984 in its Sony v. Universal decision (see my Legally Speaking column of June 2005). The safe harbor protects technology developers who know, or have reason to know, that their products are being widely used for infringing purposes, as long as the technologies have, or are capable of, substantial noninfringing uses (SNIUs). The Court in Grokster saw no need to revisit the Sony safe harbor. However, it directed the lower courts to consider whether Grokster actively induced users to infringe copyrights, a different legal theory.

Samuelson, Pamela. University of California Berkeley (2006). Articles>Intellectual Property>Copyright>History

Legally Speaking: Does Information Really Want To Be Licensed?  

Although Louisiana and Illinois once passed laws to validate software shrinkwrap licenses, neither statute survived closer review. In the Vault v. Quaid decision, federal judges refused to enforce the Louisiana law insofar as license terms interfered with consumer rights under federal copyright law. The Illinois software shrinkwrap license enforcement statute was subsequently repealed due to industry dissatisfaction with it.

Samuelson, Pamela. Communications of the ACM (1998). Articles>Intellectual Property>Contracts

On Author's Rights in Cyberspace: Are New International Rules Needed?

How will the availability of information over the Internet affect authors and their readers and publishers? Decisions over access to electronic information are being made on national and international levels with little regard for new technologies and their impact on new markets. New regulations may indeed only restrict access to information and impede the application of new technologies by authors and their audiences. Additionally, these legal solutions may only retard the development of more appropriate models for cyberspace.

Samuelson, Pamela. First Monday. Articles>Intellectual Property>Copyright

Preserving the Positive Functions of the Public Domain In Science    

Science has advanced in part because data and scientific methodologies have traditionally not been subject to intellectual property protection. In recent years, intellectual property has played a greater role in scientific work. While intellectual property rights may have a positive role to play in some fields of science, so does the public domain. This paper will discuss some of the positive functions of the public domain and ways in which certain legal developments may negatively impact the public domain. It suggests some steps that scientists can take to preserve the positive functions of the public domain for science.

Samuelson, Pamela. Data Science Journal (2003). Articles>Intellectual Property>Copyright>Scientific Communication

Technology in and Beyond the Classroom

Many professors are using the Internet and the Web in connection with teaching traditional classes. Even if you don't want to use the Internet or the Web extensively, you may want to consider using them for some communication functions (see below) or for some information technology topics you might choose to include in a traditional course. Civil procedure professors, for example, may find it useful to visit websites linking to caselaw and commentary about the criteria for obtaining personal jurisdiction over those who maintain websites or on cyberspace as its own jurisdiction. Torts professors may find of interest Web-based materials on the potential liability of online service providers for torts committed by users. A panoply of materials about the Communications Decency Act and the Reno v. ACLU case are available on various websites for constitutional law courses. At the very least, law professors may want to treat the Internet and the Web as useful sources of information when preparing their classes.

Samuelson, Pamela. University of California Berkeley (1998). Articles>Technology>Regional>China

Review: Toward a "New Deal" for Copyright for an Information Age  

A century of Congressional deference to industry-negotiated compromises has produced, Litman argues, a copyright law that is both incomprehensible and unfair. This incomprehensibility might be tolerable if copyright law governed only commercial relations among industry participants, all of whom can have copyright counsel. To the extent that copyright law applies to the conduct of ordinary persons, its incomprehensibility presents serious difficulties. Moreover, to the extent that copyright law makes illegal many ordinary activities of individuals--for example, making private copies of music for oneself or to share with a friend or forwarding articles to friends via the Internet--it has become unfair as well. In Digital Copyright, she outlines a framework for a copyright law that would be a new and better deal for the public and would be short, comprehensible, and normative in character.

Samuelson, Pamela. University of California Berkeley (2002). Articles>Reviews>Copyright

Toward a New Politics of Intellectual Property  

Until very recently, copyright has been on the periphery of law and public policy concerns because it provided highly technical rules to regulate a specialized industry. The politics of copyright largely focused on intra-industry bickering. The typical response of the legislature to such intra-industry struggles has been to propose that affected parties meet behind closed doors and hammer out compromise language that would thereafter become enacted into law. It didn’t matter much if the language negotiated in the heat of the night was incomprehensible (as has so often been the case) because the affected parties understood it, and that was all that mattered. Copyright law has, as a consequence, become highly complex and effectively unreadable. One reason why a new politics of intellectual property is necessary is that copyright now affects everyone.

Samuelson, Pamela. University of California Berkeley (2002). Articles>Intellectual Property>Copyright