This Article proposes a new explanation for the favored status of certain personal uses. Drawing on the principle of copyright exhaustion - the notion that once the copyright holder parts with a particular copy of a work, its power to control the use and disposition of that copy is constrained - we argue that many personal uses are rendered lawful by virtue of the simple fact of copy ownership. Owning copies entitles consumers to make certain uses of those copies and the works embodied in them, even in ways that may appear inconsistent with the rights of copyright holders. Under exhaustion, any copy owner has the right to reproduce, modify, and distribute her copy in order to fully realize its value qua copy.

In a variety of personal use cases, courts have been swayed by arguments that highlight the defendant’s purchase or rightful ownership of a copy. But the prevailing approaches to personal use take copy ownership into account inconsistently and awkwardly, forcing courts to shoehorn their intuitions about ownership into doctrines designed to address very different questions. In contrast, exhaustion places copy ownership at the center of the digital personal use debate. And it helps us reconcile our intuitions about the proper scope of consumer control over copies they own with our formal legal articulations of the scope of infringement liability.

Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped today to limit copyright exclusivity in order to enable copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. We argue that first sale is not simply an isolated limitation on the distribution right. Instead, it is a component of a broader principle of copyright exhaustion that emerges from early case law preceding the Supreme Court’s foundational decision in Bobbs-Merrill v. Strauss. This context reveals a common law of copyright exhaustion that embraces a set of user privileges that includes not only alienation, but renewal, repair, adaptation, and preservation. Despite congressional recognition of exhaustion in sections 109 and 117 of the Copyright Act, this Article concludes that courts have ample room to apply and continue to develop common law rules that preserve the many benefits of the first sale doctrine in the digital marketplace.

Unbranding represents a striking departure from branding orthodoxy, which stresses the maintenance of brand equity through the gradual evolution of a brand. After examining the factors that prompt firms to take the radical step of eliminating an established brand, this Article considers two legal regimes for restraining unbranding in the name of consumer protection.

The first is trademark law. Despite the fit between the potential harms of unbranding, namely consumer confusion and increased search costs, and the established rationales for trademark protection, this Article concludes that trademark doctrine is structurally incapable of fully addressing the threat of unbranding because of its focus on inter-brand confusion. The second and more promising approach relies on the rubrics of false and deceptive advertising. Both section 43(a) of the Lanham Act and section 5 of the Federal Trade Commission Act provide a legal basis for targeting unbranding. Ultimately, this Article concludes that because consumers lack standing and competitors often lack sufficient incentives to sue under the Lanham Act, the FTC is best positioned to protect against the harms of unbranding.

But Peak has faced sustained scholarly criticism for both expanding the scope of the copyright grant and misreading statutory language, legislative history, and precedent. By backing away from the categorical holding in Peak, the Second Circuit sidestepped many of its faults. But Cartoon Network gives rise to another set of concerns, chief among them the absence of a clear standard for distinguishing transitory instantiations from those sufficiently permanent to qualify as copies. While Peak offers a uniform, predictable, but overly inclusive rule for RAM copies, Cartoon Network provides an outcome more consistent with sound statutory interpretation and copyright policy, but lacking in predictive power.

The difficulties inherent in both Peak and Cartoon Network flow in part from their treatment of the statutory requirement that fixed copies persist for longer than a “transitory duration.” Peak ignored this requirement altogether, while Cartoon Network treated it as determinative without articulating its contours. Without a clearer conception of the outer bounds of transitory duration, courts are ill equipped to undertake the more nuanced analysis of RAM instantiations Cartoon Network suggests.

This paper attempts to bring the contours of “transitory duration” into sharper focus. It draws on three sets of considerations: the application of the transitory duration requirement in the context of copyrightability; qualitative considerations related to the function of RAM instantiations; and a comparison of the work RAM copies do in the copyright system and the traditional role of the reproduction right. On the basis of these considerations, this paper offers a set of concrete factors courts should take into account when classifying RAM instantiations. These factors will lend greater predictability to the RAM instantiation analysis without sacrificing consistency with the text of the Copyright Act and the policies that underlie it.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As a result, the public figure doctrine looks only to the status of the plaintiff in determining the appropriate degree of fault.

But the development of many-to-many media, like the internet, challenges the assumptions that underlie the public figure doctrine. Many-to-many media increase access to the means of mass communication, creating variety among speakers that Court neither considered nor predicted in constructing the public figure doctrine. In such a heterogeneous and dynamic communications environment, the uniform treatment of defamation defendants should be questioned.

This Article suggests that in determining whether the actual malice standard should apply, courts should consider not only variations among plaintiffs, but they should also demonstrate sensitivity to the increased diversity among defamation defendants. By considering a plaintiff's ability to avail herself of corrective counter speech not in isolation, but in light of the reach of the defendant's publication, courts can more usefully apply the actual malice standard in the contemporary communications environment.

At the conclusion of the third and most recent rulemaking, the Librarian of Congress, acting on the advice of the Register of Copyrights, announced six classes of works exempt from the DMCA's anticircumvention provision for the three-year period ending October 27, 2009. This Article describes those exemptions and argues that the rulemaking signals a significant shift in the Copyright Office's evaluation of proposed DMCA exemptions that suggests an increase in narrowly tailored exemptions in future rulemakings. But despite the Copyright Office's apparent increased receptiveness to exemption proposals, the rulemaking process faces limitations that render it incapable of fully resolving the DMCA's adverse effect on noninfringing uses.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and the Second Circuit's recent analysis of them in United States v. Martignon.

In broad terms, the limits inherent in Clause 8 divide into two categories: limits on the sorts of works in which Congress can grant exclusive rights and limits on the types of exclusive rights Congress can use to protect those works. Those limits constrain Congress any time it attempts to legislate within the core subject matter of its copyright power-grants of exclusive rights in expression. Otherwise, they are effectively stricken from the Constitution, violating the basic canon of construction that rejects readings that render text superfluous.

Once the limits of Clause 8 are understood to apply regardless of the power Congress employs, a component of the public domain firmly and permanently rooted in the Constitution emerges. This public domain, defined by the limits of Clause 8, includes both unoriginal and unwritten expressive works - two classes of works that, as a constitutional matter, cannot be the subject of federal grants of exclusive rights. By extending exclusive rights to unwritten live performances, the anti-bootlegging statutes run afoul of the external limits of Clause 8.

The Article first addresses the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG's internal strategizing demonstrates a failure to adequately value security and privacy. After taking stock of the then-existing technological environment that both encouraged and enabled the distribution of these protection measures, the Article examines law, the third vector of influence on Sony BMG's decision to release flawed protection measures into the wild, and argues that existing doctrine in the fields of contract, intellectual property, and consumer protection law fails to adequately counter the technological and market forces that allowed a self-interested actor to inflict these harms on the public.

The Article concludes with two recommendations aimed at reducing the likelihood of companies deploying protection measures with known security vulnerabilities in the consumer marketplace. First, Congress should alter the Digital Millennium Copyright Act (DMCA) by creating permanent exemptions from its anti-circumvention and antitrafficking provisions that enable security research and the dissemination of tools to remove harmful protection measures. Second, the Federal Trade Commission should leverage insights from the field of human computer interaction security (HCI-Sec) to develop a stronger framework for user control over the security and privacy aspects of computers.

Subjecting restrictions on interoperability to antitrust scrutiny, and the resulting mandatory disclosure of technical information, is one approach to holding anticircumvention law in check. But a number of considerations suggest antitrust is a poor tool for lessening the DMCA's impact on interoperability. Whether characterized as tying, denial of essential facilities, or refusal to deal, the use of anticircumvention law to impede interoperability is unlikely to consistently trigger antitrust enforcement. In part, the limits on the ability of antitrust to address the impact of the DMCA stem from its deference to the legislative process. Antitrust rarely interferes with the exercise of legitimately acquired IP rights.

Rather than relying on antitrust to limit the DMCA's restriction of interoperability, this Article proposes a solution that addresses that restriction at its source. Expanding the DMCA's existing interoperability exemption would create an environment more hospitable to interoperable technologies. But in order to preserve the protections the DMCA offers copyright holders, this expanded exemption must disaggregate restrictions on the use of interoperable software and devices from the restrictions on access and copying that Congress intended to enable. The former can be ignored only to the extent the latter are respected.