Internet Law
Symposium Issue: Virtual Worlds
The Pocket Part is proud to present our second symposium issue of the academic year, which examines legal issues surrounding the growing presence and influence of virtual worlds. This week presents the second and final part of the two issue symposium.
John Doe Subpoenas: Toward a Consistent Legal Standard
118 Yale L.J. 320 (2008). This Note considers the rising trend of anonymous online harassment and the use of John Doe subpoenas to unmask anonymous speakers. Although anonymity often serves as an important shield for valuable speech, it also protects online harassment that can chill or completely silence the speech of its targets. This Note argues that the public figure doctrine should be adapted to John Doe subpoenas to distinguish between online harassment and more valued anonymous speech. It then divides John Doe subpoena standards into six constituent factors, evaluates each one, and proposes a final standard that consistently balances the needs of plaintiffs and defendants and helps judges to distinguish online harassment from other forms of anonymous speech.
Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257
Wealth Without Markets?
116 Yale L.J. 1472 (2007) The Wealth of Networks: How Social Production Transforms Markets and Freedom BY YOCHAI BENKLER NEW HAVEN: YALE UNIVERSITY PRESS, 2006. PP. 528. $40.00
E-Discovery of Dynamic Data and Real-Time Communications: New Technology, Practical Facts, and Familiar Legal Principles
Regulation by Software
114 Yale L.J. 1719 (2005) This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or a bad choice to solve a regulatory problem.
The Law and Economics of Reverse Engineering
111 Yale L.J. 1575 (2002) Reverse engineering has a long history as an accepted practice. What it means, broadly speaking, is the process of extracting know-how or knowledge from a human-made artifact. Lawyers and economists have endorsed reverse engineering as an appropriate way to obtain such information, even if the intention is to make a product that will draw customers away from the maker of the reverse-engineered product. Given this acceptance, it may be surprising that reverse engineering has been under siege in the past few decades. While some encroachments on the right to reverse-engineer have been explicit in legal rulemaking, others seem implicit in new legal rules that are altogether silent on reverse engineering, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Economic Espionage Act of 1996 (EEA). TRIPS is an international treaty that, among other things, obligates member states of the World Trade Organization to protect trade secrets, yet it neither requires nor sanctions a reverse engineering privilege. The EEA created the first federal cause of action for trade secrecy misappropriation. Its lack of a reverse engineering defense has troubled some commentators because rights granted under the EEA arguably implicate certain reverse engineering activities previously thought to be lawful. Among the explicit legal challenges to reverse engineering are these: In the 1970s and 1980s some states forbade the use of a direct molding process to reverse-engineer boat hulls. In the late 1970s and early 1980s, the semiconductor industry sought and obtained legislation to protect chip layouts from reverse engineering to make clone chips. In the mid-1980s and early 1990s, a controversy broke out about whether decompilation, a common form of reverse engineering of computer programs, was legal as a matter of copyright law. Even after U.S. courts ruled that decompilation was acceptable for purposes such as achieving interoperability, a related controversy broke out over the enforceability of licenses forbidding reverse engineering of software and other digital information. More recently, questions have arisen about whether the decompilation of computer programs infringes upon patent rights in software components. In 1998, Congress outlawed the reverse engineering of technical protections for digital versions of copyrighted works and prohibited both the creation and distribution of tools for such reverse engineering (except in very limited circumstances) as well as the disclosure of information obtained in the course of lawful reverse engineering. Our objectives in this Article are, first, to review legal developments regarding the right to reverse-engineer, and second, to understand their economic consequences. We start in Part II with a discussion of the well-established legal right to reverse-engineer manufactured goods. In our view, the legal rule favoring reverse engineering in the traditional manufacturing economy has been economically sound because reverse engineering is generally costly, time-consuming, or both. Either costliness or delay can protect the first comer enough to recoup his initial research and development (R&D) expenditures. If reverse engineering (and importantly, the consequent reimplementation) of manufactured goods becomes too cheap or easy, as with plug-molding of boat hulls, it may be economically sound to restrict this activity to some degree. In Parts III, IV, and V, we consider the law and economics of reverse engineering in three information-based industries: the semiconductor chip industry, the computer software industry, and the emerging market in technically protected entertainment products, such as DVD movies. In all three contexts, rules restricting reverse engineering have been adopted or proposed. We think it is no coincidence that proposals to restrict reverse engineering have been so common in information-based industries. Products of the information economy differ from traditional manufactured products in the cost and time imposed on a reverse engineer. With manufactured goods, much of the know-how required to make the goods remains within the factory when the products go to market, so that reverse engineering can capture only some of the know-how required to make the product. The information-rich products of the digital economy, in contrast, bear a higher quantum of applied know-how within the product distributed in the market. For so-called digital content (movies, sound recordings, and the like), the relevant knowledge is entirely on the surface of the product, at least in the absence of technical protections such as encryption. Technical protections create costs for reverse engineers. When computer programs are distributed in object code form, a difficult analytical process is required to ascertain information embedded in the program, but it is there for the taking if a reverse engineer is willing to spend the time to study it. For computer chips, the relevant knowledge is circuit design, which is not only embodied within the chip, but also readily accessible using technologies discussed below. The challenge is to design legal rules that protect information-rich products against market-destructive cloning while providing enough breathing room for reverse engineering to enable new entrants to compete and innovate in a competitively healthy way. Part III focuses on the semiconductor chip industry. When the competitive reverse engineering and copying of semiconductor chip designs became too easy and too rapid to enable innovators to recoup their R&D costs, Congress responded by enacting the Semiconductor Chip Protection Act of 1984 (SCPA) to protect chip makers from market-destructive cloning while affirming a limited right to reverse-engineer chips. The SCPA allows reverse engineers to copy circuit design to study it as well as to reuse information learned thereby in a new chip, but it imposes a forward engineering requirement that inevitably increases a second comer's development time and increases its costs. In the context of the chip industry, we think this restriction on reverse engineering is economically sound. Part IV focuses on the software industry. Reverse engineering is undertaken in the software industry for reasons different from those in other industrial contexts. The most economically significant reason to reverse-engineer software, as reflected in the case law, is to learn information necessary to make a compatible program. The legal controversy over whether copies made of a program during the decompilation process infringe copyrights has been resolved in favor of reverse engineers. But as Part IV explains, the economics of interoperability are more complex than legal commentators have acknowledged. On balance, however, we think that a legal rule in favor of reverse-engineering computer programs for purposes of interoperability is economically sound. Part V discusses the emerging market for technically protected digital content. Because technical protection measures may be defeated by countermeasures, copyright industry groups persuaded Congress to enact the Digital Millennium Copyright Act (DMCA), which creates new legal rules reinforcing technical measures used by copyright owners to protect their works. It protects them against most acts of circumvention, against the manufacture and distribution of circumvention technologies, and against dissemination of information resulting from privileged acts of circumvention. In our view, these new rules overly restrict reverse engineering, although the core idea of regulating trafficking in circumvention technologies may be justifiable. Part VI steps back from particular industrial contexts and considers reverse engineering as one of the important policy levers of intellectual property law, along with rules governing the term and scope of protection. The most obvious settings for the reverse engineering policy lever are "on" (reverse engineering is permissible) and "off" (reverse engineering is impermissible). However, our study reveals five additional strategies for regulating reverse engineering in the four industrial contexts studied: regulating a particular means of reverse engineering, adopting a "breadth" requirement for subsequent products, permitting reverse engineering for some purposes but not others, regulating tools used for reverse engineering, and restricting the dissemination of information discerned from reverse engineering. In this discussion, we distinguish between regulations affecting the act of reverse engineering and those affecting what the reverse engineer can do with the resulting information. Some restrictions on reverse engineering and on post-reverse-engineering activities may be economically sound, although we caution against overuse of restrictions on reverse engineering because such restrictions implicate competition and innovation in important ways. Part VI also considers policy responses when innovators seek to thwart reverse engineering rights by contract or by technical obfuscation. Intellectual property law in the United States has an important economic purpose of creating incentives to innovate as a means of advancing consumer welfare. The design of intellectual property rules, including those affecting reverse engineering, should be tailored to achieve these utilitarian goals and should extend no further than necessary to protect incentives to innovate. Intellectual property rights, if made too strong, may impede innovation and conflict with other economic and policy objectives.
Architecture as Crime Control
111 Yale L.J. 1039 (2002) Building on work in architectural theory, Professor Katyal demonstrates how attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw has been transformed by the insight that architecture can regulate behavior in cyberspace; Professor Katyal applies this insight to the regulation of behavior in real space. The instinct of many attorneys is to focus on criminal law as the dominant method of social control without recognizing physical constraints--constraints that are sometimes even shaped by civil law. Ironically, even an architectural problem in crime control--broken windows--has prompted legal, not architectural, solutions. The Article considers four architectural concepts: increasing an area's natural surveillance, introducing territoriality, reducing social isolation, and protecting potential targets. These mechanisms work in subtle, often invisible, ways to deter criminal activity and, if employed properly, could stymie the need for architectural self-help solutions that are often counterproductive because they increase overall crime rates. Professor Katyal then illustrates specific legal mechanisms that harness the power of architecture to prevent crime. Distinguishing situations where the government acts as a builder, as a civil regulator, and as a criminal enforcer, the Article suggests solutions in a variety of legal fields, drawing on property, torts, taxation, contracts, and criminal law. Procurement and taxation strategies can promote effective public architecture; crime impact statements, zoning, tort suits, and contractual regulation may engender private architectural solutions as well. Criminal law, particularly through forfeiture, may also play a role. Several problems with architectural regulation are considered, such as the extension of social control and potential losses in privacy. Professor Katyal concludes by suggesting that local jurisdictions devote more attention to architecture as a constraint on crime instead of putting additional resources toward conventional law enforcement.
Deliberative Trouble? Why Groups Go to Extremes
110 Yale L.J. 71 (2000) In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more extreme point in the direction indicated by the median of predeliberation judgments. This is true if a group decision is required; if individuals are polled anonymously afterwards, they are likely to shift in precisely the same way. The underlying mechanisms are twofold. The first involves people's desire to stand in a particular relation to the group, perhaps for reputational reasons, perhaps to maintain their self-conception. Shifts occur as people find that it is necessary to alter their positions in order to maintain their self-conception or their desired relation to the group. The second mechanism involves limited "argument pools," as members of groups with a certain initial tendency typically hear a large number of arguments in support of that tendency, and few arguments in the other direction. When arguments are skewed toward a particular point of view, group members will move in the direction of that point of view. In a finding of special importance to democratic theory, group polarization is heightened if members have a sense of shared identity. And in an equally important finding, group polarization is diminished, and depolarization may result, if members have a degree of flexibility in their views and groups consist of an equal number of people with opposing views. In the abstract, and without knowing anything about the underlying substance, it is impossible to say whether group polarization is good or bad. But the mechanisms that underlie group polarization raise serious questions about the view that deliberation is likely to yield correct answers to social questions. Like-minded people engaged in discussion with one another may lead each other in the direction of error and falsehood, simply because of the limited argument pool and the operation of social influences. This point very much bears on deliberation within insulated groups and hence on emerging communications technologies, which allow a high degree of individual filtering; insulation and filtering can compound error. The point also bears on the design of deliberating courts, legislatures, and regulatory agencies. Above all, an understanding of group polarization helps explain why like-minded people, engaged in deliberation with one another, sometimes go to astonishing extremes and commit criminal or even violent acts. This is the dark side of "enclave deliberation." But I have also emphasized that deliberation within protected enclaves can be highly desirable. Partly as a result of group polarization, enclave deliberation can produce positions that would otherwise fail to emerge and that emphatically deserve a public hearing. The case for enclave deliberation is strengthened by evidence that members of low-status groups are likely to be silent in, or silenced by, broader deliberating bodies. Group polarization within enclaves might even operate as a counterweight to this problem. In the abstract, it is not possible to specify the appropriate mix of enclave deliberation and deliberation within larger publics. But an appreciation of group polarization helps show why a free society takes steps to protect deliberation within enclaves, to ensure that those inside enclaves hear alternative views, and to ensure as well that those outside of particular enclaves are exposed to what enclave members have to say. Above all, it is important to avoid a situation in which people are exposed to softer and louder echoes of their own voices. In a heterogeneous society, this form of self-insulation can create serious deliberative trouble, in the form of mutual incomprehension or much worse. Legal arrangements will increase or reduce that trouble. I have outlined some approaches that might ensure that heterogeneity, far from being a source of social fragmentation, will operate as a creative force, helping to identify problems and even solutions that might otherwise escape notice.