Can a digital music file, lawfully made and purchased, be resold by its owner under the first sale doctrine?

In a decision this past weekend, a U.S. District Court answers: no. More on the decision, and a link to the court’s opinion, at Wired.

Also: Today, the United States Court of Appeals for the Second Circuit decided that the online streaming of over-the-air television broadcasts by the startup, Aereo, is permitted. More on the decision, which is bound to be appealed, at ArsTechnica.

Interesting Cyberlaw and Other Academic Papers: Spring 2012

Do Not Track as Contract by Joshua Fairfield, Washington & Lee University, School of Law, Vanderbilt Journal of Entertainment and Technology Law, Vol. 14, No. 3, p. 101, 2012, arguing that as a matter of contract law, browser do-not-track options are enforceable against corporations.

The Anonymous Internet by Bryan H. Choi, Yale Law School, Information Society Project, Maryland Law Review (forthcoming).

From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting by Juliet M. Moringiello, Widener University School of Law, and William L. Reynolds II, University of Maryland Francis King Carey School of Law, Maryland Law Review (forthcoming).

Forcing Forgetfulness: Data Privacy, Free Speech, and the ‘Right to Be Forgotten’ by Robert Kirk Walker, UC Hastings College of Law.

Unwrapping Shrinkwraps, Clickwraps, and Browsewraps: How the Law Went Wrong from Horse Traders to the Law of the Horse by Cheryl B. Preston, Brigham Young University – J. Reuben Clark Law School, and Eli McCann, 26 BYU J. PUB. L. 1 (2011).

Tackling Twitter and Facebook Fakes: ID Theft in Social Media by Alexander Tsoutsanis, DLA Piper and Leiden Law School, World Communications Regulation Report, 2012/4 p. 1-3.

Reclaiming Copyright From the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody by Aaron Schwabach, Thomas Jefferson School of Law, Buffalo Intellectual Property Law Journal, 2012.

Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act by Sean M. Flaim, Catholic University of America, Columbus School of Law, NYU Journal of Intellectual Property and Entertainment Law (forthcoming).

Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law by Bruce E. Boyden, Marquette University Law School, Arkansas Law Review, Vol. 64, 2012.

A Due Process Right to Record the Police by Glenn Harlan Reynolds, University of Tennessee College of Law, and John A. Steakley, Washington University Law Review, Vol. 89, No. XXX, 2012.

The New Federal Crowdfunding Exemption: Promise Unfulfilled by C. Steven Bradford, University of Nebraska College of Law, Securities Regulation Law Journal, Vol. 40, No. 3, Fall 2012, arguing that the recent crowdfunding bill signed by President Obama into law is flawed because the regulatory cost of selling securities through crowdfunding might still be too high.

How to Fix Copyright: a three part series of posts by William Patry at The Volokh Conspiracy on the heels of the release, earlier this month, by Oxford University Press of Patry’s new book with the same title. Patry, currently Senior Copyright Counsel at Google, served as a copyright counsel to the U.S. House of Representatives in the early 1990s and is the author of a seven volume treatise on U.S. copyright law.

Part 1
Part 2
Part 3

When Paintings are Easily Reproduced: Hrag Vartanian writing at on the issues about to be unleashed in the art world by affordable, high quality 3D printers:

“So far, the debate about artistic copyright has been safely in the realm of design and photography … . but how will that conversation change when anything can be easily reproduced and presented without proof of origin or even the original artist’s touch? … . A copyright lawyer by day, Steiner bought a glob-erific clown painting by Allison Schulnk … He then proceeded to have a replica of the work fabricated on a ZPrinter 650 3D printer. The result is a quite good monochromatic reproduction of the painting that is full of the brushstrokes and textures that until recently we thought we couldn’t so easily reproduce. Looking at the potential in this art work, I realized it was only a matter of time (months?) before paintings with their grooves and quirks could be churned out at will.”

photo of artwork at Palm Springs Art Museum © 2012 j.r.mchale



Has James Joyce Been Set Free?

On New Year’s Eve, the Twitter feed of UbuWeb, an online archive of the avant garde, posted a link to an article in The Irish Times about the expiry of European copyright on the work of James Joyce. The link was accompanied by a curt message to Joyce’s grandson and sole living descendent: “Fuck you Stephen Joyce. EU copyright on James Joyce’s works ends at midnight.” While the language may have been unusually confrontational, the sentiment it expressed is widespread. The passage into public domain of Joyce’s major works has been talked up in certain quarters as though it were a bookish version of the destruction of the Death Star, with Stephen Joyce cast as a highbrow Darth Vader suddenly no longer in a position to breathe heavily down the necks of rebel Joyceans.

Mark O’Connell on what the post-Stephen will bring:

See also at

Why Johnny Can’t Read Any New Public Domain Books in the US: Because Nothing New Entered the Public Domain

“Jazz Pioneer ‘Jelly Roll’ Morton’s Music Finally Free For Re-use In Europe — A Hundred Years Too Late”.

“The copyright wars are just the beta version of a long coming war on computation … There will be programs that run on general-purpose computers, and peripherals, that will freak even me out. So I can believe that people who advocate for limiting general-purpose computers will find a receptive audience. But just as we saw with the copyright wars, banning certain instructions, protocols or messages will be wholly ineffective as a means of prevention and remedy. As we saw in the copyright wars, all attempts at controlling PCs will converge on rootkits, and all attempts at controlling the Internet will converge on surveillance and censorship. This stuff matters because we’ve spent the last decade sending our best players out to fight what we thought was the final boss at the end of the game, but it turns out it’s just been an end-level guardian. The stakes are only going to get higher.”

From “Lockdown: The Coming War on General-Purpose Computing” by Cory Doctorow at (based on his keynote speech to the Chaos Computer Congress in Berlin, December 2011; youtube video of the full speech).

Chilling Effects: Careful What You Download – What You Don’t Know Can Cost You

Chilling Effects: Careful What You Download – What You Don’t Know Can Cost You

Larry Lessig: “For the Love of Culture: Google, Copyright and Our Future”

Larry Lessig: “For the Love of Culture: Google, Copyright and Our Future”


D’Agostino: Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use (2008)

D’Agostino: Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use (2008)