I study the intersection of intellectual property law and new technologies, with an emphasis on the laws of copyright and trademark and emergent Internet-based technologies. My past work has considered amateur digital creativity, the law of search engines, computer trespass and hacking, virtual worlds and video games, and authorial attribution interests. My current projects are listed below.
The titles of the articles, essays, and book chapters below will generally link to full text versions, unless those are unavailable online — in which case I’ll be glad to email you a reprint. I’m always happy to correspond about works in progress, if you have ideas or publications you’d like to share.
Works in Progress:
NSF Grant #1250774: A Legal and Structural Investigation of Online User-Generated Content Systems (forthcoming)
Legal Issues in Online Games (forthcoming)
in International Encyclopedia of Digital Communication and Society (Wiley-Blackwell)
Online games raise somewhat different concerns than communication generally, given their nature as intellectual property commodities as well as platforms for social interaction. Some of the primary legal issues raised by online games are: 1) the state’s ability to limit the distribution of online games to minors, 2) the intersection of intellectual property law and online games, and 3) the laws that set the rules for public access to, and permissible actions within, online games.
Amateur Hour (forthcoming) (with Dan Hunter)
A book about the intersection of user-generated content, copyright law, and cultural policy. (Some related slides here.)
Game State (forthcoming) (with Constance Steinkuehler)
in The Gameful World (forthcoming MIT Press)
Nominative Fair Use Makes No Sense (forthcoming)
A law review article on the problems with nominative fair use doctrine. (Rebecca Tushnet’s summary here.)
Copyserfs (forthcoming) (with Dan Hunter)
A law review article on the emerging relationship between copyright, platforms, and user-generated content. (Summary here.)
Moral Metadata (forthcoming)
An essay considering Roberta Kwall’s book, The Soul of Creativity (2009).
Walled Gardens & the Stationers’ Company 2.0
in 15 IDP. Revista de Internet, Derecho y Política (UOC)
Copyright law originated as a law designed to regulate the commerce of printing, not as a law designed to protect the interests of authors. The Statute of Anne changed this by vesting copyright with the author and thereby creating the possibility of pre-publication negotiations. Today that bargain is being broken. In our era of cloud-computing and Web 2.0, non-author intermediaries provide platforms that
constitute the tools of authorship, the tools of publicity, and the tools of commercial distribution.
This book chapter considers how the digital game Minecraft has both enabled and benefited from various Web 2.0 practices. I begin with an explanation of the concept of Web 2.0 and then consider how that concept applies to the space of digital games.
Virtual Law (2012)
in The Oxford Handbook of Virtuality (forthcoming)
This chapter considers the relationship between the “virtual” and the law, concluding that the concept of virtual law can be misleading. Virtual law is best understood as the real law that governs disputes concerning representations and simulations.
48 Houston Law Review 779 (2011)
This article identifies four “daemons” of trademark jurisprudence. They are: the daemon of identity, the daemon of creativity, the daemon of efficiency, and the daemon of fair use. These daemons ultimately threaten the core mission of trademark law. Accordingly, I propose that we expose their machinations and attempt to cabin their influence.
Foreword: Paving the Path of Cyberlaw
38 William Mitchell Law Review 1 (2011)
A brief reflection on “the law of the horse.”
109 Michigan Law Review 1011 (2011) (Book Review)
This is a book review of Michael Carrier’s Innovation for the 21st Century. Professor Carrier is an expert on the intersection of antitrust and intellectual property. His book is targeted at a broad readership and explains how intellectual property laws today often hamper innovation. This review responds to Professor Carrier’s arguments for a radical reformation of copyright law. The review argues that while Carrier’s suggested reforms are laudable, the legal reform of copyright ought to be even more ambitious in scope.
Property Outlaws, Rebel Mythologies, and Social Bandits
20 Cornell Journal of Law & Public Policy 377 (2010) (Book Review)
This is a book review of Sonia Katyal and Eduardo Peñalver’s Property Outlaws, which attempts to rehabilitate the image of those who violate property laws. The book explain, persuasively, that certain forms of illegal trespass and theft can be both socially valuable and politically expressive. This review draws on the work of historian Eric Hobsbawm in order to respond to some of the overarching themes of the book, noting additional complexities regarding both the popular opinions of outlaws and the political valence of outlawry.
73 Brooklyn L. Rev. 1327 (2008) (Article)
This article explores the practice of Google (and other search engines) of selling “paid placement” advertising in search results. The article summarizes Google’s rise to prominence as the leading public search engine and explains how search advertising has fueled the company’s financial success. The latter half of the article discusses the relevance of trademark law to Google’s search results, arguing that trademark law can and should play a limited role in helping to constraint Google from abusing its power as a influential gatekeeper to the world’s information.
Virtual Trademarks (with Candy Dougherty)
24 Santa Clara Computer & High Tech. L.J. 749 (2008) (Article)
This article explores the legal puzzles that arise from the use of trademarks in virtual worlds such as Second Life. In real life, when you sell a pair of shoes and use the “Nike” brand on them without authorization, this constitutes trademark infringement. If you sell a pair of virtual shoes to an avatar in Second Life, do the same legal rules apply? This article attempts to answer that question. It also explores the boundaries of secondary liability claims against virtual world owners based on trademark infringements by users.
User-Generated Content & Virtual Worlds
10 Vand. J. Ent. & Tech. L. 893 (2008) (Essay)
This invited essay discusses the intersection of two trends: the growth of social virtual worlds (explored earlier in The Laws of the Virtual Worlds) and the growth of Web-based amateur content (explored earlier in Amateur-to-Amateur). The essay considers first the difficulty inherent in the concept of “user-generated content.” It then explains that while most virtual world users see authorship tools as a key appeal of virtual world platforms, the deployment of these tools creates both legal and business risks for developers.
Against Cyberproperty (with Michael Carrier)
22 Berkeley Tech. L.J. 1485 (2007) (Essay)
This essay makes the case against “cyberproperty,” the expansion of trespass to chattels doctrine to enjoin non-harmful electronic contact with Internet-connected computers. The essay argues that cyberproperty is not supported by traditional theories of property, is unsound as a matter of legal policy, and that provides a blunt and unwieldy tool for addressing Internet-based harms.
87 Boston University Law Review 41 (2007) (Article)
This article explores the importance of authorial attribution to artists and authors in light of new forms of digital distribution. The article argues that despite the absence of any “moral rights” provisions in United States law, the provision of authorial attribution is growing in importance in the online context. The article argues the copyright law must be revised to embrace popular attribution norms. As a first step, it proposes incorporation attribution practices into copyright’s “fair use” analysis.
40 Indiana L. Rev. 23 (2007) (Article)
The first part of this article recounts the development of cyberproperty doctrine, focusing on two cases: Thrifty-Tel, Inc. v. Bezenek and Intel v. Hamidi. The second part of the articles examines the theoretical and rhetorical engines driving arguments for cyberproperty and reveals how they are based on false analogies.
The Trademark Function of Authorship
85 Boston University Law Review 1117 (2005) (Article)
This article explains how authorial attribution acts as an incentive to authorial production, offers valuable information to consumers, and provides additional social benefits. It then describes how the Supreme Court, in Dastar Corp. v. Twentieth Century Fox Film Corp. (2003), held that federal trademark law does not address the misattribution of authorship. The article argues the Dastar approach is misguided. Consumers can and should be protected from misattribution of authorship where such misattribution leads to significant consumer harms.
Amateur-to-Amateur (with Dan Hunter)
46 William & Mary Law Review 951 (2004) (Article)
This article examines how copyright is slipping in importance in light of modern information practices. It explains how the centralized commercial control of information content has been the driving force behind copyright’s expansion. However, the current trend in digital information sharing is toward decentralization and disintermediation. Prior functions of copyright are increasingly being performed by individuals and disorganized, distributed groups. We conclude that copyright law needs to be adjusted in order to recognize the opportunity and desirability of decentralized content, and the expanded marketplace of ideas it promises.
Virtual Crime (with Dan Hunter)
49 New York Law School Law Review 293 (2004) (Essay)
This essay explores the emerging issue of criminal activity in virtual environments. (Note: since this essay was written in 2004, much of what it anticipated has come to pass today — virtual crimes have been prosecuted in many parts of the world.)
The Laws of the Virtual Worlds (with Dan Hunter)
92 California Law Review 1 (2004) (Article)
This article, published in 2004, was the first major law review article to comprehensively consider the legal issues raised by emerging virtual worlds. It offers a history of virtual worlds, explores the arguments for and against virtual property, and considers the difficulties of virtual law and governance. (Note: since this article was published, many court cases around the world have addressed legal disputes concerning activities in virtual worlds. Many of these disputes are described in Virtual Justice.)
Free Access and the Future of Copyright
27 Rutgers Computer & Technology Law Journal 293-331 (2001) (Article)
This article notes the abundance of material being offered by amateur artists and authors on the internet and argues that copyright law should be adapted to accord greater respect to these authors. It argues that copyright law should be simplified, that free access content should be subsidized, that authorial attribution interests should receive greater protection, and that “clickwrap” contracts should not be enforced when they act to unfairly prejudice authors online.
Search Engines, HTML, and Trademarks: What’s the Meta For?
86 Virginia Law Review 835-84 (2000) (Note)
This student note addresses trademark disputes over HTML “meta” tags — lines of code that attempt to influence the ranking decisions of search engines. It argues that the use of a competitor’s trademarks in meta tags should generally not constitute trademark infringement. (Note: meta tag infringement liability is additionally problematic today, given significant changes in search engine technology.)