96 Indiana Law Journal 361 (2021)

Device makers from Apple to John Deere have adopted strategies to thwart the repair of the products they sell. In response, state legislatures across the country are considering bills that would require firms to share replacement parts, tools, software updates, and documentation with independent repair shops and consumers. Beyond those legislative proposals, the policy battle over repair extends to courts, administrative agencies, and even presidential campaigns. In part, the repair debate turns on two very different conceptions of consumer attitudes and expectations. Do consumers prefer the convenience and simplicity of replacing their devices when something goes wrong? Or do they expect and value the ability to repair the things they own? This Article presents the results of a nationwide survey of consumers of electronic devices and explores its implications for the burgeoning right to repair movement

62 William & Mary Law Review 487 (2020) (with Dave Fagundes)

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and case law on the subject is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private benefits, copyright abandonment is potentially costly for rights holders but broadly beneficial for society. Nonetheless, rights holders—ranging from lauded filmmakers and photographers to leading museums and everyday creators—make the counterintuitive choice to abandon valuable works. This Article analyzes two previously untapped resources to better understand copyright abandonment. First, we survey four decades of U.S. Copyright Office records, exposing both the motivations for abandonment and the infrequency of the practice. Second, we examine every state and federal copyright abandonment case, a corpus of nearly three hundred decisions. By distilling this body of law, this Article distinguishes abandonment from a set of related doctrines and reveals the major fault lines in judicial application of the abandonment standard. Finally, we highlight the potential of abandonment to further copyright’s constitutional aims by suggesting a series of reforms designed to better align copyright holder incentives with the public good.

87 George Washington Law Review 783 (2019) (with Chris Jay Hoofnagle & Aniket Kesari)

Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across devices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered.

While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as product and service—tethers yoke the consumer to a continuous post-transaction relationship with the seller. The consequences of that dynamic will be felt both at the level of individual consumer harms and on the scale of broader, economy- wide effects. These consumer and market-level harms, while distinct, reinforce and amplify one another in troubling ways.

Seller contracts have long sought to shape consumers’ legal rights. But in a tethered environment, these rights may become nonexistent as legal processes are replaced with automated technological enforcement. In such an environment, the consumer-seller relationship becomes extractive, more akin to consumers captive in an amusement park than to a competitive marketplace in which many sellers strive to offer the best product for the lowest price.

94 Notre Dame Law Review 1314 (2019) (with Dave Fagundes)

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the clown egg register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller derby skaters, tattoo artists, and other subcultures—have developed an elaborate informal scheme in lieu of state- created copyright or trademark law to regulate their creative production. Second, this Article explores a rarer phenomenon in the norm-based IP context: formalized registration related to norm-based ownership rules. It shows that the Register exists not only to support those rules, but also serves a host of non- exclusion functions, including expressing members’ professionalism, conferring a sense of prestige, and creating a historical record. Finally, this Article shows how its analysis of the Clown Egg Register offers lessons for the study of registers in the context of tangible and intellectual property alike.

32 Berkeley Technology Law Journal 733 (2018)

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and reveals the ways in which the Office has overstepped any reasonable definition of its expert knowledge. The Article concludes with a set of recommendations to better align the Office’s agenda with its expertise by, first, reducing the current regulatory burdens on the Office, and second, building greater technological and economic competence within the Office, better equipping it to address contemporary questions of copyright policy.

165 University of Pennsylvania Law Review (2017) (with Chris Jay Hoofnagle)

Retailers like Apple and Amazon market digital media to consumers using the familiar language of ownership, including phrases like "buy now,” “own,” and ”purchase." Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a very different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. Those terms limit consumers' ability to resell, lend, transfer, and even retain the digital media they acquire.

This article presents the results of the first-ever empirical study of consumers’ perceptions of the marketing language used by digital media retailers. We created a fictitious Internet retail site and surveyed a nationally representative sample of nearly 1300 online consumers. The resulting data reveal a number of insights about how consumers understand—or misunderstand—digital transactions. A surprisingly high percentage of consumers believe that when they “Buy Now,” they acquire the same sorts of rights to use and transfer digital media goods that they enjoy for physical goods. The survey also strongly suggests that these rights matter to consumers. Consumers are willing to pay more for them and are more likely to acquire media through other means, both lawful and unlawful, in their absence. Finally, our study suggests that a relatively simple and inexpensive intervention—adding a short notice to a digital product page that outlines consumer rights in straightforward language—is an effective means of significantly reducing consumer misperceptions.

90 Notre Dame Law Review 1213 (2015) (with Jason Schultz)

Copyright law sets up an inevitable tension between the intellectual property of creators and the personal property of consumers — in other words, between copyrights and copies. For the better part of the last century, copyright law successfully mediated this tension through the principle of exhaustion — the notion that once a rights holder transfers a copy of a work to a new owner, its rights against that owner are diminished.

Rather than an idiosyncratic carveout or exception, exhaustion is an inherent part of copyright law’s balance between the rights of creators and the rights of the public. Nonetheless, many rights holders and some courts see exhaustion as nothing more than a loophole or market inefficiency that allows consumers to make unauthorized uses of intellectual property rightly controlled by the copyright owner. Two developments threaten to curtail exhaustion and consumer interests. First, content owners have endeavored to eliminate the personal property interests of consumers, redefining the notion of ownership by characterizing their transactions with consumers as licenses. Second, the tangible copy is rapidly disappearing as copyright markets shift from the distribution of physical products to exchanges of networked information.

In short, the equilibrium between personal and intellectual property that exhaustion enabled depends on doctrinal assumptions about the copyright marketplace that are quickly becoming outdated. By examining the basic functions of copy ownership, this Article will attempt to construct a notion of consumer property rights in digital media that acknowledges the shift away from tangible artifacts while preserving exhaustion’s central role in the intellectual property system.

98 Minnesota Law Review 511 (2013)

The U.S. tattoo industry generates billions of dollars in annual revenue. Like the music, film, and publishing industries, it derives value from the creation of new, original works of authorship. But unlike rights holders in those more traditional creative industries, tattoo artists rarely assert formal legal rights in disputes over copying or ownership of the works they create. Instead, tattooing is governed by a set of nuanced, overlapping, and occasionally contradictory social norms enforced through informal sanctions. And in contrast to other creative communities that rely on social norms because of the unavailability of formal intellectual property protection, the tattoo industry opts for self-governance despite the comfortable fit of its creative output within the protections of the Copyright Act.

This Article relies on qualitative interview data drawn from more than a dozen face-to-face conversations with professionals in the tattoo industry. Based on those interviews, it offers a descriptive account of the social norms that have effectively displaced formal law within the tattoo community, provides a set of complementary cultural and economic explanations for the development of those norms, and outlines the broader implications of this research for intellectual property law and policy.

96 Minnesota Law Review 2067 (2012) (with Jason Schultz)

Copyright law struggles to provide a coherent framework for analyzing personal uses. Although there is widespread agreement that at least some such uses are non-infringing, the doctrinal basis for that conclusion remains unclear. In particular, the prevailing explanations of fair use and implied license are both flawed in important respects.

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.

58 UCLA Law Review 889 (2011) (with Jason Schultz)

As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. The limitations first sale places on the exclusive right of distribution are of little importance when the alienation and use of copies entails their reproduction. This fact of the modern copyright marketplace has led to calls for statutory clarification of digital first sale rights.

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.

104 Northwestern University Law Review 1067 (2010)

Scholars, litigants, and courts have debated the status of so-called “RAM copies” - instantiations of copyrighted works in the random access memory of computing devices - for decades. The Second Circuit’s decision in Cartoon Network v. CSC Holdings has recently reignited the controversy over these putative copies. There the court held that CSC did not create copies within the meaning of the Copyright Act when it buffered fleeting segments of television programs. In many respects, the Second Circuit’s holding is a straightforward application of the Act’s nested definitions of “copies” and “fixed.” But because the court declined to apply the bright line rule that emerged from MAI v. Peak and its progeny - that all temporary instantiations incidental to the use of digital technologies qualify as copies - Cartoon Network has met with vigorous disapproval from copyright industry representatives.

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.


24 Harvard Journal of Law & Technology 1 (2010)

This Article addresses the phenomenon of unbranding. Unbranding occurs when a firm chooses to discontinue its use of a brand that has developed negative associations among consumers in favor of a new brand, often in hopes of escaping the consequences of inferior products or illegal activity. Companies like AIG, Blackwater, Philip Morris, and WorldComm have all employed this strategy in recent years.

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.

42 UC Davis Law Review 1549 (2009)

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ("DMCA") represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective.

One approach to counteracting the DMCA's restrictions on interoperability is to rely on antitrust scrutiny and the resulting mandatory disclosure of technical information. But both doctrinal and policy considerations suggest that antitrust offers a less than ideal means of lessening the DMCA's impact on interoperability. Rather than relying on antitrust, this Article proposes a solution that addresses the restriction of interoperability at its source. This approach broadens the DMCA's existing interoperability exemption to create an environment more hospitable to interoperable technologies. To preserve the protections the DMCA offers copyright holders, this expanded exemption would disaggregate control over interoperable software and devices from the control over access and copying that Congress intended the DMCA to enable.

10 University of Pennsylvania Journal of Constitutional Law 1081 (2008)

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

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.

22 Berkeley Technology Law Journal 1157 (2007) (with Deirdre Mulligan)

Late in 2005, Sony BMG released millions of Compact Discs containing digital rights management technologies that threatened the security of its customers' computers and the integrity of the information infrastructure more broadly. This Article aims to identify the market, technological, and legal factors that appear to have led a presumably rational actor toward a strategy that in retrospect appears obviously and fundamentally misguided. 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.

94 California Law Review 833 (2006)

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

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.