Bill D. Herman Copyright (c) 2011 All rights reserved. http://works.bepress.com/billdherman Recent documents in Bill D. Herman en-us Fri, 02 Dec 2011 01:59:28 PST 3600 The Evolution of the US DRM Debate, 1987-2006 http://works.bepress.com/billdherman/4 http://works.bepress.com/billdherman/4 Wed, 30 Nov 2011 21:48:14 PST Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of opposition, anchored by nonprofits that were founded in the relatively recent past to stand up for the rights of computer users and technological innovators. By the mid-2000’s, this group had substantially slowed the expansion of copyright and even won substantial legislative support for proposals to limit copyright’s reach. Despite being badly outspent and having far fewer allies in Congress, this “strong fair use” coalition had fought the “strong copyright” coalition to a draw in two key debates in the mid-2000’s. By looking at the political histories of all of these proposals in one place, this article shows an unmistakable trajectory in the politics of copyright toward an era in which copyright industries face a permanent voice of opposition.

]]> Bill D. Herman Communications Law Computer Law Intellectual Property Law Law and Technology Legislation Politics Science and Technology The Evolution of the US DRM Debate, 1987-2006 http://works.bepress.com/billdherman/3 http://works.bepress.com/billdherman/3 Wed, 30 Nov 2011 09:34:42 PST Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of opposition, anchored by nonprofits that were founded in the relatively recent past to stand up for the rights of computer users and technological innovators. By the mid-2000’s, this group had substantially slowed the expansion of copyright and even won substantial legislative support for proposals to limit copyright’s reach. Despite being badly outspent and having far fewer allies in Congress, this “strong fair use” coalition had fought the “strong copyright” coalition to a draw in two key debates in the mid-2000’s. By looking at the political histories of all of these proposals in one place, this article shows an unmistakable trajectory in the politics of copyright toward an era in which copyright industries face a permanent voice of opposition.

]]> Bill D. Herman Communications Law Computer Law Intellectual Property Law Law and Technology Science and Technology Opening Bottlenecks: On Behalf of Mandated Network Neutrality http://works.bepress.com/billdherman/2 http://works.bepress.com/billdherman/2 Sun, 12 Nov 2006 15:23:38 PST This paper calls for mandated “network neutrality,” the principle that broadband service providers (BSPs) should generally treat all nondestructive data equally. Without such a mandate, BSPs will likely begin charging content providers for the right to send data at the fastest speeds available. The present frequency with which BSPs block some data entirely will also likely increase.

Neutral networks are preferable for two key reasons. First, they spawn innovation, as illustrated by the explosive online innovation to date. Second, neutral networks better distribute communication power, promoting First Amendment values. Extant and likely future acts of discrimination erode both goals. The danger is real in the highly concentrated broadband market; BSPs have the incentives and means to engage in a high degree of broadband discrimination.

This paper further demonstrates that ad hoc regulation is ineffective in dissuading even grossly anticompetitive network discrimination. Further, network congestion can be and is managed adequately without resorting to discrimination. Finally, it rejects Christopher Yoo’s call for multiple special-purpose networks as both unrealistic and undesirable.

]]> Bill D. Herman Communications Law Computer Law Law and Technology Science and Technology Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings http://works.bepress.com/billdherman/1 http://works.bepress.com/billdherman/1 Sun, 12 Nov 2006 15:23:36 PST 17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.

Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for Section 1201 were laundered through international treaties, obscuring the anticircumvention clause’s domestic origins. Further, we conclude that the exemption proceeding is constructed not to protect noninfringing users, but to limit courts’ ability to exonerate them via the traditional defenses to copyright infringement.

We then conduct a content analysis of the first two proceedings, conducted in 2000 and 2003. Exemption proponents generally interpret the law’s intent in terms of policy goals such as fair use, whereas opponents see jurisdictional, procedural, and definitional obstacles to the granting of exemptions. The Register of Copyrights’ interpretation of the law closely resembles that of opponents and, on more than one key point, she refers proponents back to Congress. We conclude that the Register has constructed a venue that is hostile to the interests of noninfringing users; in light of congressional rhetoric to the contrary, this constructs a catch-22 for many who earnestly wish to engage in otherwise legal activities.

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