Copyright (c) 2008 All rights reserved. http://works.bepress.com/michael_madison Recent documents in Michael J. Madison en-us Thu, 03 Jan 2008 10:51:40 PST 3600 http://works.bepress.com/michael_madison/13 http://works.bepress.com/michael_madison/13 Thu, 07 Dec 2006 11:33:04 PST This Commentary on Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 Case W. Res. L. Rev. 673 (2003), observes that debates over a variety of copyright law issues can be - and in fact, often are - structured in narrative terms, rather than in terms of doctrine, policy, or empirical inquiry. I suggest a series of such narratives, each framed by a theme drawn from a feature film. The Commentary suggests that we should recognize more clearly the role of narrative in intellectual property discourse, and that intellectual property narratives should be examined critically. Michael J. Madison Law and Society http://works.bepress.com/michael_madison/12 http://works.bepress.com/michael_madison/12 Thu, 07 Dec 2006 11:29:08 PST This article analyzes the legitimacy of the software license as a institution of governance for computer programs. The question of the open source license is used as a starting point. Having conducted a broader inquiry into the several possible bases for the legitimacy of software licensing in general, the article argues that none of the grounds on which software licensing in general rests are sound. With respect to open source software in particular, the article concludes that achieving a legitimate institutional form for the goals that open source proponents have set for themselves may require looking beyond licensing as such. Michael J. Madison Computer Law http://works.bepress.com/michael_madison/11 http://works.bepress.com/michael_madison/11 Thu, 07 Dec 2006 11:26:17 PST The title of the article is a deliberate play on architect Robert Venturi?s classic of post-modern architectural theory, Complexity and Contradiction in Architecture. The article analyzes metaphorical ?architectures? of copyright and cyberspace using architectural and land use theories developed for the physical world. It applies this analysis to copyright law through the lens of the First Amendment. I argue that the ?simplicity? of digital engineering is undermining desirable ?complexity? in legal and physical structures that regulate expressive works. Michael J. Madison Intellectual Property Law http://works.bepress.com/michael_madison/10 http://works.bepress.com/michael_madison/10 Thu, 07 Dec 2006 11:19:58 PST ProCD, Inc. v. Zeidenberg, which enforced a "shrinkwrap" license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds rather than resists this trend. This article argues that instead of regulating shrinkwrap itself, reinforcing an adjudicative environment that focuses on public values inherent in copyright and information policy is the best means of preserving fair use and the public domain as meaningful concepts. Michael J. Madison Intellectual Property Law http://works.bepress.com/michael_madison/9 http://works.bepress.com/michael_madison/9 Wed, 29 Nov 2006 13:37:36 PST This Article reviews recent developments in the law of "access" to "information," that is, cases involving click-through agreements, the doctrine of trespass to chattels, the anti-circumvention provisions of the Digital Millennium Copyright Act, and civil claims under the Computer Fraud and Abuse Act. Though the objects of these different doctrines substantially overlap, the different doctrines yield different presumptions regarding the respective rights of information owners and information consumers. The Article reviews those presumptions in light of different metaphorical premises on which courts rely: Internet-as-place, in the trespass, DMCA, and CFAA contexts, and contract-as-assent, in the click-through context. It argues that the different doctrines should be applied consistently with one another and consistent with an understanding of the relevant metaphor that is based on consumer and user experiences of the Internet, rather than on formal property-based constructs. Michael J. Madison Computer Law http://works.bepress.com/michael_madison/8 http://works.bepress.com/michael_madison/8 Wed, 29 Nov 2006 13:29:35 PST I review Eugene Volokh's recent book, Academic Legal Writing. The book is nominally directed to law students and those who teach them (and for those audiences, it is outstanding), but it also contains a number of valuable lessons for published scholars. The book is more than a writing manual, however. I argue that Professor Volokh suggests implicitly that scholarship is underappreciated as a dimension of the legal profession. A well-trained lawyer, in other words, should have experience as a scholar. The argument sheds new light on ongoing discussions about the character of law schools. Michael J. Madison Legal Profession http://works.bepress.com/michael_madison/7 http://works.bepress.com/michael_madison/7 Mon, 27 Nov 2006 15:09:43 PST Michael J. Madison Intellectual Property Law http://works.bepress.com/michael_madison/5 http://works.bepress.com/michael_madison/5 Tue, 31 Oct 2006 10:19:20 PST This Essay was written as part of a Symposium on open access publishing for legal scholarship, held at Lewis & Clark Law School. It makes the claim that "open access" publishing models will succeed, or not, to the extent that they account for the existing "economy of prestige" that drives law reviews and legal scholarship. What may seem like a lot of uncharitable commentary is intended instead as an expression of guarded optimism: Imaginative reuse of some existing tools of scholarly publishing (even by some marginalized members of the prestige economy - or perhaps especially by them) may facilitate the emergence of a viable open access norm. Michael J. Madison Legal Profession http://works.bepress.com/michael_madison/6 http://works.bepress.com/michael_madison/6 Tue, 31 Oct 2006 10:19:20 PST Software licensing and licensing of digital information in general create a regime of information governance for the Internet and beyond. This Article proposes to describe how this regime works--or fails to work--in legal terms. Michael J. Madison Computer Law http://works.bepress.com/michael_madison/4 http://works.bepress.com/michael_madison/4 Tue, 31 Oct 2006 10:19:19 PST Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? I argue that this and related questions are appearing more frequently in legal scholarship as a number of computer technologies, which I collect under the heading "social software," increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. In this Essay, I argue that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. I suggest that such a framework be organized along three dimensions, which crudely track dimensions by which groups arise and sustain themselves: regulation of places, of things, and of stories. Michael J. Madison Law and Society