BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 44 2003 Number 2

[Pages 289-290]
A NOTE OF THANKS
Alfred C. Yen*

[Pages 291-322]
AN EXCLUSIVE RIGHT TO EVOKE
Stacey L. Dogan*

Abstract:  Ten years ago, in White v. Samsung Electronics America, Inc., the U.S. Court of Appeals for the Ninth Circuit held that a robot violated Vanna White’s publicity rights. Since White, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed away from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons and avoid significantly chilling free expression, courts should at least cabin the right to evoke and ensure that, when utilized, it serves the law’s normative goals.

[Pages 323-358]
CYBERLAW 2.0
Michael Geist*

Abstract:  This Article outlines two versions of cyberlaw. The first, characteristic of the scholarship of the late 1990s, is typified by a borderless Internet and national laws that cease to have effect at their real-space borders, the regulatory power of code, and the virtue of self-regulatory solutions to Internet and e-commerce issues. In Cyberlaw 2.0, the borderless Internet becomes bordered, bordered laws become borderless, the regulation of code becomes regulated code, and self-regulation becomes industry consultation, as government shifts toward a more traditional regulatory approach. The Article assesses each of these changes, calling attention to recent developments in copyright law, domain name dispute resolution, privacy, and Internet governance. At the heart of each is the question of the appropriate governmental role in Internet regulation and the need for cyberlaw to reconcile how government and regulation fit within the tensions of ever-changing technologies.

[Pages 359-398]
THE INTERNET AND THE PERSISTENCE OF LAW
Justin Hughes*

Abstract:  Since legal commentators first confronted cyberspace, three broad stories have emerged to describe the interrelation of law and the Internet: the “no-law Internet,” the “Internet as a separate jurisdiction,” and Internet law as “translation” of familiar legal concepts. This Article reviews these stories, focusing on how ongoing “translation” is giving way to a growing convergence in Internet law. The Article makes the case for convergence among legal responses to cyberspace and proposes a basic taxonomy for different models of convergence. With this taxonomy, the Article examines the ways in which convergence is occurring, as well as its effects on both Internet law and traditional, national legal norms. The Article concludes that the common legal norms being forged will affect national legal systems more deeply than traditional “international” or “transnational” law, and that the conversation on this affect has only just begun.

[Pages 397-432]
COPYRIGHT LAW’S THEORY OF THE CONSUMER
Joseph P. Liu*

Abstract:  Copyright law has a rather well-developed theory of the author, but it has no similarly well-developed conception of the consumer. This exploratory Article is an attempt to begin piecing together a coherent image of the copyright consumer. The author argues that copyright law currently conceives of consumers in one of two ways, either as passive consumers of copyrighted works or as active authors in their own right. This binary conception of the consumer, however, is incomplete, as it neglects important and complex consumer interests in autonomy, communication, and creative self-expression. By examining these additional interests, it is possible to begin constructing a richer and more complex image of the copyright consumer. This image, in turn, can help shed light on some of the current debates over the proper shape and scope of copyright law.

[Pages 433-508]
RIGHTS OF ACCESS AND THE SHAPE
OF THE INTERNET
Michael J. Madison*

Abstract:  This Article reviews recent developments in the law of access to information, that is, cases involving click-through agreements, the doctrine of trespass to chattels, the anti-circumvention provisions of the Digital Millennium Copyright Act, and civil claims under the Computer Fraud and Abuse Act. Though the objects of these different doctrines substantially overlap, the doctrines yield different presumptions regarding the respective rights of information owners and consumers. The Article reviews those presumptions in light of different metaphorical premises on which courts rely: Internet-as-place, in the trespass, DMCA, and CFAA contexts, and contract-as-assent, in the click-through context. It argues that the different doctrines should be rendered consistent with one another and with an understanding of the relevant metaphor that is based on consumer and user experiences of the Internet, rather than on formal property-based constructs.

[Pages 509-544]
CONTROLLING OPPORTUNISTIC AND ANTI-COMPETITIVE INTELLECTUAL PROPERTY LITIGATION
Michael J. Meurer*

Abstract:  This Article analyzes two methods of controlling rent-seeking costs associated with opportunistic and anti-competitive intellectual property lawsuits. One method discourages rent-seeking costs by reducing the credibility of weak lawsuits. This can be accomplished by restricting preliminary injunctions, encouraging declaratory judgment suits, adjusting the substantive law to encourage summary judgment for defendants, and shifting attorney fees from rent-seeking plaintiffs to prevailing defendants. In addition, antitrust suits have a limited role in deterring the most egregious anti-competitive conduct. A more extreme method eliminates rent-seeking costs by restricting or eliminating certain intellectual property rights. Such an extreme measure is justified if a right generates relatively little direct social benefit, and pre- and post-trial control measures are not effective in containing rent-seeking costs.

[Pages 545-576]
TRADING POSTS IN CYBERSPACE: INFORMATION MARKETS AND
THE CONSTRUCTION OF
PROPRIETARY RIGHTS
Ruth L. Okediji*

Abstract:  Technological innovation is a predominant source of persistent economic growth. Endogenous factors, principally human capital, financial capital, and government intervention play an important role in how the innovation process can enhance welfare through the grant of intellectual property rights. However, the expansive reach of such proprietary interests in cyberspace has important implications for how e-commerce might contribute to overall economic growth. Thus far, the scope of intellectual property rights in cyberspace has been examined in isolation from empirical data reflecting how businesses seek to create value and effectively capture the benefits that the Internet offers over real-space markets. This Article argues that expansive construction of intellectual property rights distorts the informational properties of such rights and reintroduces high search and use costs to transactions in cyberspace. It also deters development and use of innovative business strategies that could generate greater value from e-commerce. Consequently, there is a need for more government intervention in regulating competition for markets in cyberspace.

[Pages 577-652]
THE FIRST SALE DOCTRINE IN THE ERA OF DIGITAL NETWORKS
R. Anthony Reese*

Abstract:  The first sale doctrine has been essential to the balance in copyright law between authors’ rights and public access to works. The growth of digital technology, however, has drastically changed the means of disseminating many types of works and, as a result, has undermined the first sale doctrine. This Article considers the long-term impact of technological change on the first sale doctrine. The Article focuses on the affordability and availability effects of the doctrine, reviewing the traditional causes and benefits of these effects, as well as the ways in which electronic commerce has weakened and could continue to weaken them. The Article concludes that it is still too early to determine the ultimate impact of digital technology on affordability and availability but suggests means of preserving these effects even as the first sale doctrine itself faces increasing technological challenge.

[Pages 653-688]
INTERNET POINTS OF CONTROL
Jonathan Zittrain*

Abstract: The online availability of pornography and unauthorized intellectual property has driven Internet growth while giving rise to efforts to make the Internet more regulable. Early efforts to control the Internet have targeted the endpoints of the network—the sources and recipients of objectionable material—and to some extent the intermediaries who host others’ content. Recently, attention has shifted to the intermediaries near would-be recipients of content. The U.S. Commonwealth of Pennsylvania permits its attorney general to obtain a court order requiring ISPs to block Pennsylvanians’ access to Internet locations designated as containing illegal pornography. If successful, this approach could be employed for other regulatory purposes, such as controlling the online distribution of copyright-infringing materials. While the Pennsylvania law suffers from a number of technical limitations and constitutional vulnerabilities, with some adjustments to Internet architecture and data carriage practices this approach could become a comprehensive scheme for widespread content control that overcomes a number of enforcement barriers and jurisdiction-related objections.