Procedure scholarship

Aereo‘s Errors

2 Journal of International & Comparative Law 171 (2014)

This article scrutinizes the United States Supreme Court’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc. Aereo’s streaming television service allowed subscribers to watch broadcast television on a computer, tablet, or smartphone without requiring them to be directly connected to cable, satellite, or a local antenna. Aereo’s system was designed to comply with existing copyright law by using thousands of antennas, each of which was designated for only one subscriber at a time. Aereo was sued for copyright infringement by a number of leading television broadcasters. The United States Supreme Court, over a heated Scalia dissent, concluded that Aereo was ‘highly similar’ to a cable company, and that it therefore made ‘public performances’ falling within the plaintiffs’ exclusive rights. Because the Aereo decision was unnecessary, unsound, and unwise, this article proposes steps that should be taken in order to avoid frustrating the development of beneficial ‘cloud’ computing services.


Civil Procedures for a World of Shared and User-Generated Content

48 University of Louisville Law Review 911 (2010)

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


Looking for Fair Use in the DMCA’s Safety Dance

3 Akron Intellectual Property Journal 121-170 (2009)

Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act (DMCA) provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the third wheel, the users of internet services. This Article puts forth a fair-use friendly way of reading the DMCA to better protect users of online services. This Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech.


Showdown at the Domain Name Corral: Property Rights and Personal Jurisdiction Over Squatters, Poachers and Other Parasites

58 University of Pittsburgh Law Review 911 (1997)

This paper on domain names disputes has two main goals. The first is to analyze the principal points of litigation in domain name disputes, namely, personal jurisdiction and trademark liability. The second is to propose an analytic framework to better help resolve matters of jurisdiction and liability. Regarding personal jurisdiction, domain names are problematic because an internet site can be viewed almost anywhere, potentially subjecting the domain name owner to suit everywhere. For example, should a Florida domain name owner automatically be subject to suit in Alaska where the site can be viewed? If not, then where? Regarding liability, trademark law would normally permit multiple persons to use identical or similar trademarks, so long as the products or locations are sufficiently remote. Put differently, in the real world, UNITED AIRLINES can co-exist with the UNITED WAY. But on the internet, there can only be one UNITED.COM. As an aid to analysis, the paper proposes three categories of domain name disputes, with suggestions on how to resolve jurisdictional and liability issues for each. First, some disputes concern cybersquatters, those who speculatively purchase domain names with the intention of selling them for profit. Second, other disputes concern ‘parasites,’ those who have no intention of selling the domain, but instead hope to gain financially from confused users. Third, some disputes concern ‘twins,’ where the domain name owner and challenger both have legitimate claims to using the same name in the brick-and-mortar world. Through these three categories, the paper suggests ways of resolving issues of personal jurisdiction and trademark liability.