Old Laws/New Media
Topic Owners: Shubham Mukherjee, Debbie Rosenbaum, Matt Sanchez
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Premise This topic concerns the tension that occurs when we attempt to apply old laws to new media (i.e., digital content distributed over the Internet). The discussions in this session should provide a useful legal perspective on the societal issues addressed in the sessions regarding music, news, and other communications media. As Professor Zittrain has suggested, we can coordinate with the Internet and Publication week and/or Future of News week if possible.
Subject matter of the class
The class will be split into two parts:
Introduction to legal issues that arise in connection with new media
The Internet and other digital media raise a number of questions about communication law and policy: Should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? How have the courts, Congress, and other lawmaking bodies responded to new media technologies? What regulatory regime is emerging, if any, to govern new media? We will use the Joel Tenenbaum copyright infringement lawsuit as a case study, in conjunction with Professor Charles Nesson, to raise these questions. Articles about Joel's case can be found at Computer World, here, and here. In addition to copyright law, we may also discuss the controversial issues that have come up in speech-related law (e.g., defamation and anonymous speech rights) and privacy laws.
General relationship between technological change and the law
Looking beyond individual cases, legal doctrines, and policies, the class will explore general relationships between technological change and the law. What drives changes in laws that govern media technologies? How do old media industries use their influence to shape laws that affect new media? What characteristics of the legal system especially the dynamics of litigation and congressional lawmaking affect society's response to new media? What's the role of citizen activists in shaping laws? How does social science research (e.g., studies about the effects of new media) bear on legal decisions?
During this second part of class, we'll be guided by the following series of questions:
- How has new media affected traditional communications and media industries and challenged traditional law? Consider Sony
- Given what we've learned from the RIAA situation with Joel Tenenbaum, should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? Consider Tenenbaum filings. Consider controversial FCC proposal that would impose common carrier-like responsibilities on the recipient of wireless spectrum and opposition asserting that these responsibilities would unduly interfere with the free market.
- What regulatory regime should emerge to govern new media? i.e. Do we apply old laws to new technologies, or do we create new regulations? Consider MGM, DMCA, and CDA. Consider also RIAA's new strategy in which the private sector is attempting to create their own "regulatory" regime.
- How can we create sound policy that aligns with both traditional legal and moral aspirations while according with today's technological realities? Consider Reno v. ACLU.
- Other questions to consider:
- What IS new media? Consider Lessig article.
- How do we deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments?
Guests
- Google Telecom Lawyer Rick Whitt (invitation extended)
- Google Antitrust Lawyer Dana Wagner (invitation extended)
- Berkman Center's David Ardia, who runs the Citizen Media Law Project
- Cary Sherman of RIAA
- Professor Charles Nesson (invitation extended)
- Public Citizen Litigation Group Attorney Paul Alan Levy
- Electronic Frontier Foundation Attorney Fred Von Lohmann
Readings for Class
- The links in the writeup above.
Copyright-related readings
- Various court documents and media coverage from the Sony v. Tenenbaum case
- Discussion of RIAA's new tactics to curb file sharing
- Sony Corporation v. Universal City Studios, 464 U.S. 417(1984) (Supreme Court decision that manufacturers of video recorders can not be held liable when they are used to violate copyright).
- Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005) (Internet services that facilitate file sharing of copyrighted materials can be held liable for infringement)
- Digital Millennium Copyright Act (1998 law that extended U.S. copyright principles to digital materials)
- Some Like It Hot by Lessig
Speech-related readings
- Materials related to online defamation and anonymity law (AutoAdmit, Roommates.com, etc.)
- CDA, especially Section 230.
- Reno v. ACLU, 521 U.S. 844 (1997) (Supreme Court decision striking down parts of Communications Decency Act and also the Court's leading statement on the constitutional status of the Internet)
Other readings
Possible Tools
- Berkman Question Tool or Google Moderator.
- YouTube
- Webcast. Distribute the Question Tool or Google Moderator link so remote listeners can help steer the discussion.