Old Laws/New Media

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Topic Owners: Shubham Mukherjee, Debbie Rosenbaum, Matt Sanchez

back to syllabus

Precis This topic concerns the tension between old laws and new media. The Internet has threatened the way many "traditional" companies do business. Many of these companies have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes to cyberspace. Critics assert that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

Perhaps the clearest -- and most high profile -- example of this phenomenon is the RIAA and its struggles to adapt to Internet distribution of music. This class will use the RIAA and its efforts to use old pre-Internet laws to curb file sharing as a case study for exploring the tension between old laws and new media. The purposes of the class include understanding the tension, understanding and evaluating strategies that have been used to address the tension to date, and considering what the right approach should be.


Subject matter of the class

Part I. Background (~30 minutes)

Topic Introduction
Record industry's attempts to apply existing copyright law to online file-sharing

Part II. Case study: RIAA vs. Tenenbaum (60 mins)

Abandon the old laws and use self-help or create private sector enforcement



Continue employing the existing imperfect statutory scheme
  • Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.
Let courts adapt the case law to technology
  • Example: Grokster, where the Supreme Court created a new category of liability
  • Example: The issue of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
  • Reading: Sony "Betamax" case
Lobby for new laws in Congress
  • DMCA
  • Reading: (will prepare an excerpted version as a reading)

Part III. The Internet in the Courtroom (30 mins)

Part IV. Closing Discussion: What are the pros and cons of various ways to adjust old laws to new media? (30 mins)

Abandon the old laws and use self-help or create private sector enforcement
Continue employing the existing imperfect statutory scheme
  • Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.
Let courts adapt the case law to technology
  • Example: Grokster, where the Supreme Court created a new category of liability
  • Example: The issue of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
  • Reading: Sony "Betamax" case
Lobby for new laws in Congress
  • DMCA
  • Reading: (will prepare an excerpted version as a reading)
Make Internet regulation part of the administrative state (i.e., empower the FCC)
Other ideas?

Guest

Professor Charles Nesson

Tools / innovations for the presentation

  • Question Tool
    • To do before: post/vote for questions/concerns about the readings.
    • During class: continue live conversation online.
    • To do before: Create your own account, if you wish. (Be sure to "friend" both joelfightsback and debbierosenbaum!)
    • During class: Opportunity to micro-blog
    • Note from Debbie: I've been twittering for a few weeks and love it. It allows me not only to post my random thoughts of the moment -- often academic or worldly in nature -- but also to essentially keep a live journal. I encourage you all to try it for the semester. At least during classes; at the end, you'll be nostalgic -- promise.
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