content_source,document_name,page_number,main_topic,metadata,chunk_text,len
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,1,What is Law?,Class 4,"Harvard Law Review Vol. 62, No. 4, February 1949 © 1949 by The Harvard Law Review Association Cambridge, Mass., U.S.A. THE CASE OF THE SPELUNCEAN EXPLORERS by LON L. FULLER IN THE SUPREME COURT OF NEWGARTH, 4300 The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court of General Instances of the County of Stowfield. They bring a petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice. TRUEPENNY, C. J. The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot. The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 2 of 27 The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave. Since it was known that the explorers had carried with them only scant provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before access to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours. When communication was reestablished the men asked to speak again with the physicians. The chairman of the physicians' committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among the party a judge or other official of the government who would answer this The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 3 of 27 question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do so. Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers' wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.",880
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,2,What is Law?,Class 4,"From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice. Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions. After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 4 of 27 ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error. It seems to me that in dealing with this extraordinary case the jury and the trial judge followed a course that was not only fair and wise, but the only course that was open to them under the law. The language of our statute is well known: ""Whoever shall willfully take the life of another shall be punished by death."" N. C. S. A. (N. S.) § 12-A. This statute permits of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves. In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law. FOSTER, J. I am shocked that the Chief Justice, in an effort to escape the embarrassments of this tragic case, should have adopted, and should have proposed to his colleagues, an expedient at once so sordid and so obvious. I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth. If this Court declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 5 of 27 in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.",975
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,3,What is Law?,Class 4,"For myself, I do not believe that our law compels the monstrous conclusion that these men are murderers. I believe, on the contrary, that it declares them to be innocent of any crime. I rest this conclusion on two independent grounds, either of which is of itself sufficient to justify the acquittal of these defendants. The first of these grounds rests on a premise that may arouse opposition until it has been examined candidly. I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that the case is governed instead by what ancient writers in Europe and America called ""the law of nature."" This conclusion rests on the proposition that our positive law is predicated on the possibility of men's coexistence in society. When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of our precedents and statutes has ceased to exist. When that condition disappears, then it is my opinion that the force of our positive law disappears with it. We are not accustomed to applying the maxim cessante ratione legis, cessat et ipsa lex to the whole of our enacted law, but I believe that this is a case where the maxim should be so applied. The proposition that all positive law is based on the possibility of men's coexistence has a strange sound, not because the truth it contains is strange, but simply because it is a truth so obvious and pervasive that we seldom have occasion to give words to it. Like the air we breathe, it so pervades our environment that we forget that it exists until we are suddenly deprived of it. Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men's coexistence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force. Had the tragic events of this case taken place a mile beyond the The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 6 of 27 territorial limits of our Commonwealth, no one would pretend that our law was applicable to them. We recognize that jurisdiction rests on a territorial basis. The grounds of this principle are by no means obvious and are seldom examined. I take it that this principle is supported by an assumption that it is feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth's surface. The premise that men shall coexist in a group underlies, then, the territorial principle, as it does all of law. Now I contend that a case may be removed morally from the force of a legal order, as well as geographically. If we look to the purposes of law and government, and to the premises underlying ourpositive law, these men when they made their fateful decision were as remote from our legal order as if they had been a thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our courts and writ-servers by a solid curtain of rock that could be removed only after the most extraordinary expenditures of time and effort. I conclude, therefore, that at the time Roger Whetmore's life was ended by these defendants, they were, to use the quaint language of nineteenth-century writers, not in a ""state of civil society"" but in a ""state of nature."" This has the consequence that the law applicable to them is not the enacted and established law of this Commonwealth, but the law derived from those principles that were appropriate to their condition. I have no hesitancy in saying that under those principles they were guiltless of any crime. What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself. Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate men's relations with one another, it was necessary for them to draw, as it were, a new charter of government appropriate to the situation in which they found themselves. It has from antiquity been recognized that the most basic principle of law or government is to be found in the notion of contract or agreement. Ancient thinkers, especially during the period from 1600 to 1900, used to base government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory. Moralists replied that, if the compact was a fiction from a historical point of view, the notion of compact or agreement furnished the only ethical justification on which the powers of government, which The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 7 of 27 include that of taking life, could be rested. The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible. Fortunately, our Commonweal",943
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,4,What is Law?,Class 4,"Fortunately, our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of historical truth that our government was founded upon a contract or free accord of men. The archeological proof is conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original charter. If, therefore, our hangmen have the power to end men's lives, if our sheriffs have the power to put delinquent tenants in the street, if our police have the power to incarcerate the inebriated reveler, these powers find their moral justification in that original compact of our forefathers. If we can find no higher source for our legal order, what higher source should we expect these starving unfortunates to find for the order they adopted for themselves? I believe that the line of argument I have just expounded permits of no rational answer. I realize that it will probably be received with a certain discomfort by many who read this opinion, who will be inclined to suspect that some hidden sophistry must underlie a demonstration that leads to so many unfamiliar conclusions. The source of this discomfort is, however, easy to identify. The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances. There is much that is fictitious about this conception even when it is applied to the ordinary relations of society. We have an illustration of this truth in the very case before us. Ten workmen were killed in the process of removing the rocks from the opening to the cave. Did not the engineers and government officials who directed the rescue effort know that the operations they were undertaking were dangerous and involved a serious risk to the lives of the workmen executing them? If it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one? Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 8 of 27 with some precision how many deaths the construction of them will require; statisticians can tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss. If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and their companion Whetmore found themselves? This concludes the exposition of the first ground of my decision. My second ground proceeds by rejecting hypothetically all the premises on which I have so far proceeded. I concede for purposes of argument that I am wrong in saying that the situation of these men removed them from the effect of our positive law, and I assume that the Consolidated Statutes have the power to penetrate five hundred feet of rock and to impose themselves upon these starving men huddled in their underground prison. Now it is, of course, perfectly clear that these men did an act that violates the literal wording of the statute which declares that he who ""shall willfully take the life of another"" is a murderer. But one of the most ancient bits of legal wisdom is the saying that a man may break the letter of the law without breaking the law itself. Every proposition of positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose. This is a truth so elementary that it is hardly necessary to expatiate on it. Illustrations of its application are numberless and are to be found in every branch of the law. In Commonwealth v. Staymore the defendant was convicted under a statute making it a crime to leave one's car parked in certain areas for a period longer than two hours. The defendant had attempted to remove his car, but was prevented from doing so because the streets were obstructed by a political demonstration in which he took no part and which he had no reason to anticipate. His conviction was set aside by this Court, although his case fell squarely within the wording of the statute. Again, in Fehler v. Neegas there was before this Court for construction a statute in which the word ""not"" had plainly been transposed from its intended position in the final and most crucial section of the act. This transposition was contained in all the successive drafts of the act, where it was apparently overlooked by the draftsmen and sponsors of the legislation. No one was able to prove how the error came about, yet it was apparent that, taking account of the contents of the statute as a whole, an error had been made, since a literal reading of the final clause rendered it inconsistent with everything that had gone before and with The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 9 of 27 the object of the enactment as stated in its preamble. This Court refused to accept a literal interpretation of the statute, and in effect rectified its language by reading the word ""not"" into the place where it was evidently intended to go.",992
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,5,What is Law?,Class 4,"The statute before us for interpretation has never been applied literally. Centuries ago it was established that a killing in self-defense is excused. There is nothing in the wording of the statute that suggests this exception. Various attempts have been made to reconcile the legal treatment of self-defense with the words of the statute, but in my opinion these are all merely ingenious sophistries. The truth is that the exception in favor of self-defense cannot be reconciled with the words of the statute, but only with its purpose. The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the following line of reasoning. One of the principal objects underlying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defense. When the rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the same reasoning is applicable to the case at bar. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same considerations that were applied by our predecessors in office centuries ago to the case of self-defense. There are those who raise the cry of judicial usurpation whenever a court, after analyzing the purpose of a statute, gives to its words a meaning that is not at once apparent to the casual reader who has not studied the statute closely or examined the objectives it seeks to attain. Let me say emphatically that I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth and that it exercises its powers in subservience to the duly expressed will of the Chamber of Representatives. The line of reasoning I have applied above raises no question of fidelity to enacted The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 10 of 27 law, though it may possibly raise a question of the distinction between intelligent and unintelligent fidelity. No superior wants a servant who lacks the capacity to read between the lines. The stupidest housemaid knows that when she is told ""to peel the soup and skim the potatoes"" her mistress does not mean what she says. She also knows that when her master tells her to ""drop everything and come running"" he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence from the judiciary. The correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective. I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside. TATTING, J. In the discharge of my duties as a justice of this Court, I am usually able to dissociate the emotional and intellectual sides of my reactions, and to decide the case before me entirely on the basis of the latter. In passing on this tragic case I find that my usual resources fail me. On the emotional side I find myself torn between sympathy for these men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me.",730
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,6,What is Law?,Class 4,"As I analyze the opinion just rendered by my brother Foster, I find that it is shot through with contradictions and fallacies. Let us begin with his first proposition: these men were not subject to our law because they were not in a ""state of civil society"" but in a ""state of nature."" I am not clear why this is so, whether it is because of the thickness of the rock that imprisoned them, or because they were hungry, or because they had set up a ""new charter of government"" by which the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men passed from the jurisdiction of our law to that of ""the law of nature,"" at what moment did this occur? Was it when the entrance to the cave was blocked, or when the threat of starvation reached a certain undefined degree of intensity, or when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties. Suppose, for example, one of these men had had his twenty-first birthday while he was imprisoned within the mountain. On what date would we have to consider that he The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 11 of 27 had attained his majority - when he reached the age of twenty-one, at which time he was, by hypothesis, removed from the effects of our law, or only when he was released from the cave and became again subject to what my brother calls our ""positive law""? These difficulties may seem fanciful, yet they only serve to reveal the fanciful nature of the doctrine that is capable of giving rise to them. But it is not necessary to explore these niceties further to demonstrate the absurdity of my brother's position. Mr. Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered to administer the laws of that Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If these men were indeed under the law of nature, whence comes our authority to expound and apply that law? Certainly we are not in a state of nature. Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case. What a topsyturvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provisions of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract by violence - for though my brother passes over in convenient silence the effect of Whetmore's withdrawal, this is the necessary implication of his argument. The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had concealed upon his person a revolver, and that when he saw the defendants about to slaughter him he had shot them to death in order to save his own life. My brother's reasoning applied to these facts would make Whetmore out to be a murderer, since the excuse of self-defense would have to be denied to him. If his assailants were acting rightfully in seeking to bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck. All of these considerations make it impossible for me to accept the first part of my brother's argument. I can neither accept his notion that The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 12 of 27 these men were under a code of nature which this Court was bound to apply to them, nor can I accept the odious and perverted rules that he would read into that code. I come now to the second part of my brother's opinion, in which he seeks to show that the defendants did not violate the provisions of N. C. S. A. (N. S.) § 12-A. Here the way, instead of being clear, becomes for me misty and ambiguous, though my brother seems unaware of the difficulties that inhere in his demonstrations.",809
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,7,What is Law?,Class 4,"The gist of my brother's argument may be stated in the following terms: No statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statute is to deter. The application of the statute making it a crime to kill another to the peculiar facts of this case would contradict this purpose, for it is impossible to believe that the contents of the criminal code could operate in a deterrent manner on men faced with the alternative of life or death. The reasoning by which this exception is read into the statute is, my brother observes, the same as that which is applied in order to provide the excuse of self-defense. On the face of things this demonstration seems very convincing indeed. My brother's interpretation of the rationale of the excuse of selfdefense is in fact supported by a decision of this court, Commonwealth v. Parry, a precedent I happened to encounter in my research on this case. Though Commonwealth v. Parry seems generally to have been overlooked in the texts and subsequent decisions, it supports unambiguously the interpretation my brother has put upon the excuse of self-defense. Now let me outline briefly, however, the perplexities that assail me when I examine my brother's demonstration more closely. It is true that a statute should be applied in the light of its purpose, and that one of the purposes of criminal legislation is recognized to be deterrence. The difficulty is that other purposes are also ascribed to the law of crimes. It has been said that one of its objects is to provide an orderly outlet for the instinctive human demand for retribution. Commonwealth v. Scape. It has also been said that its object is the rehabilitation of the wrongdoer. Commonwealth v. Makeover. Other theories have been propounded. Assuming that we must interpret a statute in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed? A similar difficulty is presented by the fact that although there is authority for my brother's interpretation of the excuse of self-defense, there is other authority which assigns to that excuse a different The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 13 of 27 rationale. Indeed, until I happened on Commonwealth v. Parry I had never heard of the explanation given by my brother. The taught doctrine of our law schools, memorized by generations of law students, runs in the following terms: The statute concerning murder requires a ""willful"" act. The man who acts to repel an aggressive threat to his own life does not act ""willfully,"" but in response to an impulse deeply ingrained in human nature. I suspect that there is hardly a lawyer in this Commonwealth who is not familiar with this line of reasoning, especially since the point is a great favorite of the bar examiners. Now the familiar explanation for the excuse of self-defense just expounded obviously cannot be applied by analogy to the facts of this case. These men acted not only ""willfully"" but with great deliberation and after hours of discussing what they should do. Again we encounter a forked path, with one line of reasoning leading us in one direction and another in a direction that is exactly the opposite. This perplexity is in this case compounded, as it were, for we have to set off one explanation, incorporated in a virtually unknown precedent of this Court, against another explanation, which forms a part of the taught legal tradition of our law schools, but which, so far as I know, has never been adopted in any judicial decision. I recognize the relevance of the precedents cited by my brother concerning the displaced ""not"" and the defendant who parked overtime. But what are we to do with one of the landmarks of our jurisprudence, which again my brother passes over in silence? This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court refused to accept this defense. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother's demonstrations would compel us to overrule Commonwealth v. Valjean, and many other precedents that have been built on that case. Again, I have difficulty in saying that no deterrent effect whatever could be attributed to a decision that these men were guilty of murder. The stigma of the word ""murderer"" is such that it is quite likely, I believe, that if these men had known that their act was deemed by the law to be murder they would have waited for a few days at least before carrying out their plan. During that time some unexpected relief might have come. I realize that this observation only reduces the distinction to a matter of degree, and does not destroy it altogether. It is certainly The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 14 of 27 true that the element of deterrence would be less in this case than is normally involved in the application of the criminal law",923
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,8,What is Law?,Class 4,"There is still a further difficulty in my brother Foster's proposal to read an exception into the statute to favor this case, though again a difficulty not even intimated in his opinion. What shall be the scope of this exception? Here the men cast lots and the victim was himself originally a party to the agreement. What would we have to decide if Whetmore had refused from the beginning to participate in the plan? Would a majority be permitted to overrule him? Or, suppose that no plan were adopted at all and the others simply conspired to bring about Whetmore's death, justifying their act by saying that he was in the weakest condition. Or again, that a plan of selection was followed but one based on a different justification than the one adopted here, as if the others were atheists and insisted that Whetmore should die because he was the only one who believed in an afterlife. These illustrations could be multiplied, but enough have been suggested to reveal what a quagmire of hidden difficulties my brother's reasoning contains. Of course I realize on reflection that I may be concerning myself with a problem that will never arise, since it is unlikely that any group of men will ever again be brought to commit the dread act that was involved here. Yet, on still further reflection, even if we are certain that no similar case will arise again, do not the illustrations I have given show the lack of any coherent and rational principle in the rule my brother proposes? Should not the soundness of a principle be tested by the conclusions it entails, without reference to the accidents of later litigational history? Still, if this is so, why is it that we of this Court so often discuss the question whether we are likely to have later occasion to apply a principle urged for the solution of the case before us? Is this a situation where a line of reasoning not originally proper has become sanctioned by precedent, so that we are permitted to apply it and may even be under an obligation to do so? The more I examine this case and think about it, the more deeply I become involved. My mind becomes entangled in the meshes of the very nets I throw out for my own rescue. I find that almost every consideration that bears on the decision of the case is counterbalanced by an opposing consideration leading in the opposite direction. My brother Foster has not furnished to me, nor can I discover for myself, any formula capable of resolving the equivocations that beset me on all sides. I have given this case the best thought of which I am capable. I have scarcely slept since it was argued before us. When I feel myself inclined The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 15 of 27 to accept the view of my brother Foster, I am repelled by a feeling that his arguments are intellectually unsound and approach mere rationalization. On the other hand, when I incline toward upholding the conviction, I am struck by the absurdity of directing that these men be put to death when their lives have been saved at the cost of the lives of ten heroic workmen. It is to me a matter of regret that the Prosecutor saw fit to ask for an indictment for murder. If we had a provision in our statutes making it a crime to eat human flesh, that would have been a more appropriate charge. If no other charge suited to the facts of this case could be brought against the defendants, it would have been wiser, I think, not to have indicted them at all. Unfortunately, however, the men have been indicted and tried, and we have therefore been drawn into this unfortunate affair. Since I have been wholly unable to resolve the doubts that beset me about the law of this case, I am with regret announcing a step that is, I believe, unprecedented in the history of this tribunal. I declare my withdrawal from the decision of this case. KEEN, J. I should like to begin by setting to one side two questions which are not before this Court. The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions - a confusion of which the judiciary should be the last to be guilty. I wish to state that if I were the Chief Executive I would go farther in the direction of clemency than the pleas addressed to him propose. I would pardon these men altogether, since I believe that they have already suffered enough to pay for any offense they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, nor to take into account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this Commonwealth.",951
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,9,What is Law?,Class 4,"The second question that I wish to put to one side is that of deciding whether what these men did was ""right"" or ""wrong,"" ""wicked"" or ""good."" That is also a question that is irrelevant to the discharge of my The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 16 of 27 office as a judge sworn to apply, not my conceptions of morality, but the law of the land. In putting this question to one side I think I can also safely dismiss without comment the first and more poetic portion of my brother Foster's opinion. The element of fantasy contained in the arguments developed there has been sufficiently revealed in my brother Tatting's somewhat solemn attempt to take those arguments seriously. The sole question before us for decision is whether these defendants did, within the meaning of N. C. S. A. (N. S.) § 12-A, willfully take the life of Roger Whetmore. The exact language of the statute is as follows: ""Whoever shall willfully take the life of another shall be punished by death."" Now I should suppose that any candid observer, content to extract from these words their natural meaning, would concede at once that these defendants did ""willfully take the life"" of Roger Whetmore. Whence arise all the difficulties of the case, then, and the necessity for so many pages of discussion about what ought to be so obvious? The difficulties, in whatever tortured form they may present themselves, all trace back to a single source, and that is a failure to distinguish the legal from the moral aspects of this case. To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth. Now, of course, my brother Foster does not admit that he is actuated by a personal dislike of the written law. Instead he develops a familiar line of argument according to which the court may disregard the express language of a statute when something not contained in the statute itself, called its ""purpose,"" can be employed to justify the result the court considers proper. Because this is an old issue between myself and my colleague, I should like, before discussing his particular application of the argument to the facts of this case, to say something about the historical background of this issue and its implications for law and government generally. There was a time in this Commonwealth when judges did in fact legislate very freely, and all of us know that during that period some of our statutes were rather thoroughly made over by the judiciary. That was a time when the accepted principles of political science did not designate with any certainty the rank and function of the various arms of the state. We all know the tragic issue of that uncertainty in the brief civil war that arose out of the conflict between the judiciary, on the one hand, and the executive and the legislature, on the other. There is no The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 17 of 27 need to recount here the factors that contributed to that unseemly struggle for power, though they included the unrepresentative character of the Chamber, resulting from a division of the country into election districts that no longer accorded with the actual distribution of the population, and the forceful personality and wide popular following of the then Chief Justice. It is enough to observe that those days are behind us, and that in place of the uncertainty that then reigned we now have a clear-cut principle, which is the supremacy of the legislative branch of our government. From that principle flows the obligation of the judiciary to enforce faithfully the written law, and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice. I am not concerned with the question whether the principle that forbids the judicial revision of statutes is right or wrong, desirable or undesirable; I observe merely that this principle has become a tacit premise underlying the whole of the legal and governmental order I am sworn to administer. Yet though the principle of the supremacy of the legislature has been accepted in theory for centuries, such is the tenacity of professional tradition and the force of fixed habits of thought that many of the judiciary have still not accommodated themselves to the restricted role which the new order imposes on them. My brother Foster is one of that group; his way of dealing with statutes is exactly that of a judge living in the 3900's.",813
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,10,What is Law?,Class 4,"We are all familiar with the process by which the judicial reform of disfavored legislative enactments is accomplished. Anyone who has followed the written opinions of Mr. Justice Foster will have had an opportunity to see it at work in every branch of the law. I am personally so familiar with the process that in the event of my brother's incapacity I am sure I could write a satisfactory opinion for him without any prompting whatever, beyond being informed whether he liked the effect of the terms of the statute as applied to the case before him. The process of judicial reform requires three steps. The first of these is to divine some single ""purpose"" which the statute serves. This is done although not one statute in a hundred has any such single purpose, and although the objectives of nearly every statute are differently interpreted by the different classes of its sponsors. The second step is to discover that a mythical being called ""the legislator,"" in the pursuit of this imagined ""purpose,"" overlooked something or left some gap or imperfection in his work. Then comes the final and most refreshing part of the task, which is, of course, to fill in the blank thus created. Quod erat faciendum. The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 18 of 27 My brother Foster's penchant for finding holes in statutes reminds one of the story told by an ancient author about the man who ate a pair of shoes. Asked how he liked them, he replied that the part he liked best was the holes. That is the way my brother feels about statutes; the more holes they have in them the better he likes them. In short, he doesn't like statutes. One could not wish for a better case to illustrate the specious nature of this gap-filling process than the one before us. My brother thinks he knows exactly what was sought when men made murder a crime, and that was something he calls ""deterrence."" My brother Tatting has already shown how much is passed over in that interpretation. But I think the trouble goes deeper. I doubt very much whether our statute making murder a crime really has a ""purpose"" in any ordinary sense of the term. Primarily, such a statute reflects a deeply-felt human conviction that murder is wrong and that something should be done to the man who commits it. If we were forced to be more articulate about the matter, we would probably take refuge in the more sophisticated theories of the criminologists, which, of course, were certainly not in the minds of those who drafted our statute. We might also observe that men will do their own work more effectively and live happier lives if they are protected against the threat of violent assault. Bearing in mind that the victims of murders are often unpleasant people, we might add some suggestion that the matter of disposing of undesirables is not a function suited to private enterprise, but should be a state monopoly. All of which reminds me of the attorney who once argued before us that a statute licensing physicians was a good thing because it would lead to lower life insurance rates by lifting the level of general health. There is such a thing as overexplaining the obvious. If we do not know the purpose of § 12-A, how can we possibly say there is a ""gap"" in it? How can we know what its draftsmen thought about the question of killing men in order to eat them? My brother Tatting has revealed an understandable, though perhaps slightly exaggerated revulsion to cannibalism. How do we know that his remote ancestors did not feel the same revulsion to an even higher degree? Anthropologists say that the dread felt for a forbidden act may be increased by the fact that the conditions of a tribe's life create special temptations toward it, as incest is most severely condemned among those whose village relations make it most likely to occur. Certainly the period following the Great Spiral was one that had implicit in it temptations to anthropophagy. Perhaps it was for that very reason that our ancestors expressed their prohibition in so broad and unqualified a form. All of this is conjecture, of course, but it remains abundantly clear that neither I nor my brother Foster knows what the ""purpose"" of § 12",737
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,11,What is Law?,Class 4,"Considerations similar to those I have just outlined are also applicable to the exception in favor of self-defense, which plays so large a role in the reasoning of my brothers Foster and Tatting. It is of course true that in Commonwealth v. Parry an obiter dictum justified this exception on the assumption that the purpose of criminal legislation is to deter. It may well also be true that generations of law students have been taught that the true explanation of the exception lies in the fact that a man who acts in self-defense does not act ""willfully,"" and that the same students have passed their bar examinations by repeating what their professors told them. These last observations I could dismiss, of course, as irrelevant for the simple reason that professors and bar examiners have not as yet any commission to make our laws for us. But again the real trouble lies deeper. As in dealing with the statute, so in dealing with the exception, the question is not the conjectural purpose of the rule, but its scope. Now the scope of the exception in favor of selfdefense as it has been applied by this Court is plain: it applies to cases of resisting an aggressive threat to the party's own life. It is therefore too clear for argument that this case does not fall within the scope of the exception, since it is plain that Whetmore made no threat against the lives of these defendants. The essential shabbiness of my brother Foster's attempt to cloak his remaking of the written law with an air of legitimacy comes tragically to the surface in my brother Tatting's opinion. In that opinion Justice Tatting struggles manfully to combine his colleague's loose moralisms with his own sense of fidelity to the written law. The issue of this struggle could only be that which occurred, a complete default in the discharge of the judicial function. You simply cannot apply a statute as it is written and remake it to meet your own wishes at the same time. Now I know that the line of reasoning I have developed in this opinion will not be acceptable to those who look only to the immediate effects of a decision and ignore the long-run implications of an assumption by the judiciary of a power of dispensation. A hard decision is never a popular decision. Judges have been celebrated in literature for their sly prowess in devising some quibble by which a litigant could be deprived of his rights where the public thought it was wrong for him to assert those rights. But I believe that judicial dispensation does more harm in the long run than hard decisions. Hard cases may even have a certain moral value by bringing home to the people their own responsibilities toward the law that is ultimately their creation, and by reminding them that there is no principle of personal grace that can relieve the mistakes of their representatives. The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 20 of 27 Indeed, I will go farther and say that not only are the principles I have been expounding those which are soundest for our present conditions, but that we would have inherited a better legal system from our forefathers if those principles had been observed from the beginning. For example, with respect to the excuse of self-defense, if our courts had stood steadfast on the language of the statute the result would undoubtedly have been a legislative revision of it. Such a revision would have drawn on the assistance of natural philosophers and psychologists, and the resulting regulation of the matter would have had an understandable and rational basis, instead of the hodgepodge of verbalisms and metaphysical distinctions that have emerged from the judicial and professorial treatment. These concluding remarks are, of course, beyond any duties that I have to discharge with relation to this case, but I include them here because I feel deeply that my colleagues are insufficiently aware of the dangers implicit in the conceptions of the judicial office advocated by my brother Foster. I conclude that the conviction should be affirmed. HANDY, J. I have listened with amazement to the tortured ratiocinations to which this simple case has given rise. I never cease to wonder at my colleagues' ability to throw an obscuring curtain of legalisms about every issue presented to them for decision. We have heard this afternoon learned disquisitions on the distinction between positive law and the law of nature, the language of the statute and the purpose of the statute, judicial functions and executive functions, judicial legislation and legislative legislation. My only disappointment was that someone did not raise the question of the legal nature of the bargain struck in the cave - whether it was unilateral or bilateral, and whether Whetmore could not be considered as having revoked an offer prior to action taken thereunder. What have all these things to do with the case? The problem before us is what we, as officers of the government, ought to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities. When the case is approached in this light, it becomes, I think, one of the easiest to decide that has ever been argued before this Court. Before stating my own conclusions about the merits of the case, I should like to discuss briefly some of the more fundamental issues involved - issues on which my colleagues and I have been divided ever since I have been on the bench.",939
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,12,What is Law?,Class 4,"I have never been able to make my brothers see that government is a human affair, and that men are ruled, not by words on paper or by abstract theories, but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking. Of all branches of the government, the judiciary is the most likely to lose its contact with the common man. The reasons for this are, of course, fairly obvious. Where the masses react to a situation in terms of a few salient features, we pick into little pieces every situation presented to us. Lawyers are hired by both sides to analyze and dissect. Judges and attorneys vie with one another to see who can discover the greatest number of difficulties and distinctions in a single set of facts. Each side tries to find cases, real or imagined, that will embarrass the demonstrations of the other side. To escape this embarrassment, still further distinctions are invented and imported into the situation. When a set of facts has been subjected to this kind of treatment for a sufficient time, all the life and juice have gone out of it and we have left a handful of dust. Now I realize that wherever you have rules and abstract principles lawyers are going to be able to make distinctions. To some extent the sort of thing I have been describing is a necessary evil attaching to any formal regulation of human affairs. But I think that the area which really stands in need of such regulation is greatly overestimated. There are, of course, a few fundamental rules of the game that must be accepted if the game is to go on at all. I would include among these the rules relating to the conduct of elections, the appointment of public officials, and the term during which an office is held. Here some restraint on discretion and dispensation, some adherence to form, some scruple for what does and what does not fall within the rule, is, I concede, essential. Perhaps the area of basic principle should be expanded to include certain other rules, such as those designed to preserve the free civilmoign system. But outside of these fields I believe that all government officials, including judges, will do their jobs best if they treat forms and abstract concepts as instruments. We should take as our model, I think, the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result. The most obvious advantage of this method of government is that it permits us to go about our daily tasks with efficiency and common sense. My adherence to this philosophy has, however, deeper roots. I The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 22 of 27 believe that it is only with the insight this philosophy gives that we can preserve the flexibility essential if we are to keep our actions in reasonable accord with the sentiments of those subject to our rule. More governments have been wrecked, and more human misery caused, by the lack of this accord between ruler and ruled than by any other factor that can be discerned in history. Once drive a sufficient wedge between the mass of people and those who direct their legal, political, and economic life, and our society is ruined. Then neither Foster's law of nature nor Keen's fidelity to written law will avail us anything. Now when these conceptions are applied to the case before us, its decision becomes, as I have said, perfectly easy. In order to demonstrate this I shall have to introduce certain realities that my brothers in their coy decorum have seen fit to pass over in silence, although they are just as acutely aware of them as I am. The first of these is that this case has aroused an enormous public interest, both here and abroad. Almost every newspaper and magazine has carried articles about it; columnists have shared with their readers confidential information as to the next governmental move; hundreds of letters-to-the-editor have been printed. One of the great newspaper chains made a poll of public opinion on the question, ""What do you think the Supreme Court should do with the Speluncean explorers?"" About ninety per cent expressed a belief that the defendants should be pardoned or let off with a kind of token punishment. It is perfectly clear, then, how the public feels about the case. We could have known this without the poll, of course, on the basis of common sense, or even by observing that on this Court there are apparently four-and-a-half men, or ninety per cent, who share the common opinion. This makes it obvious, not only what we should do, but what we must do if we are to preserve between ourselves and public opinion a reasonable and decent accord. Declaring these men innocent need not involve us in any undignified quibble or trick. No principle of statutory construction is required that is not consistent with the past practices of this Court. Certainly no layman would think that in letting these men off we had stretched the statute any more than our ancestors did when they created the excuse of self-defense. If a more detailed demonstration of the method of reconciling our decision with the statute is required, I should be content to rest on the arguments developed in the second and less visionary part of my brother Foster's opinion.",933
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,13,What is Law?,Class 4,"Now I know that my brothers will be horrified by my suggestion that this Court should take account of public opinion. They will tell you that The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 23 of 27 public opinion is emotional and capricious, that it is based on half-truths and listens to witnesses who are not subject to cross-examination. They will tell you that the law surrounds the trial of a case like this with elaborate safeguards, designed to insure that the truth will be known and that every rational consideration bearing on the issues of the case has been taken into account. They will warn you that all of these safeguards go for naught if a mass opinion formed outside this framework is allowed to have any influence on our decision. But let us look candidly at some of the realities of the administration of our criminal law. When a man is accused of crime, there are, speaking generally, four ways in which he may escape punishment. One of these is a determination by a judge that under the applicable law he has committed no crime. This is, of course, a determination that takes place in a rather formal and abstract atmosphere. But look at the other three ways in which he may escape punishment. These are: (1) a decision by the Prosecutor not to ask for an indictment; (2) an acquittal by the jury; (3) a pardon or commutation of sentence by the executive. Can anyone pretend that these decisions are held within a rigid and formal framework of rules that prevents factual error, excludes emotional and personal factors, and guarantees that all the forms of the law will be observed? In the case of the jury we do, to be sure, attempt to cabin their deliberations within the area of the legally relevant, but there is no need to deceive ourselves into believing that this attempt is really successful. In the normal course of events the case now before us would have gone on all of its issues directly to the jury. Had this occurred we can be confident that there would have been an acquittal or at least a division that would have prevented a conviction. If the jury had been instructed that the men's hunger and their agreement were no defense to the charge of murder, their verdict would in all likelihood have ignored this instruction and would have involved a good deal more twisting of the letter of the law than any that is likely to tempt us. Of course the only reason that didn't occur in this case was the fortuitous circumstance that the foreman of the jury happened to be a lawyer. His learning enabled him to devise a form of words that would allow the jury to dodge its usual responsibilities. My brother Tatting expresses annoyance that the Prosecutor did not, in effect, decide the case for him by not asking for an indictment. Strict as he is himself in complying with the demands of legal theory, he is quite content to have the fate of these men decided out of court by the Prosecutor on the basis of common sense. The Chief Justice, on the other hand, wants the application of common sense postponed to the The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 24 of 27 very end, though like Tatting, he wants no personal part in it. This brings me to the concluding portion of my remarks, which has to do with executive clemency. Before discussing that topic directly, I want to make a related observation about the poll of public opinion. As I have said, ninety per cent of the people wanted the Supreme Court to let the men off entirely or with a more or less nominal punishment. The ten per cent constituted a very oddly assorted group, with the most curious and divergent opinions. One of our university experts has made a study of this group and has found that its members fall into certain patterns. A substantial portion of them are subscribers to ""crank"" newspapers of limited circulation that gave their readers a distorted version of the facts of the case. Some thought that ""Speluncean"" means ""cannibal"" and that anthropophagy is a tenet of the Society. But the point I want to make, however, is this: although almost every conceivable variety and shade of opinion was represented in this group, there was, so far as I know, not one of them, nor a single member of the majority of ninety per cent, who said, ""I think it would be a fine thing to have the courts sentence these men to be hanged, and then to have another branch of the government come along and pardon them."" Yet this is a solution that has more or less dominated our discussions and which our Chief Justice proposes as a way by which we can avoid doing an injustice and at the same time preserve respect for law. He can be assured that if he is preserving anybody's morale, it is his own, and not the public's, which knows nothing of his distinctions. I mention this matter because I wish to emphasize once more the danger that we may get lost in the patterns of our own thought and forget that these patterns often cast not the slightest shadow on the outside world.",902
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,14,What is Law?,Class 4,"I come now to the most crucial fact in this case, a fact known to all of us on this Court, though one that my brothers have seen fit to keep under the cover of their judicial robes. This is the frightening likelihood that if the issue is left to him, the Chief Executive will refuse to pardon these men or commute their sentence. As we all know, our Chief Executive is a man now well advanced in years, of very stiff notions. Public clamor usually operates on him with the reverse of the effect intended. As I have told my brothers, it happens that my wife's niece is an intimate friend of his secretary. I have learned in this indirect, but, I think, wholly reliable way, that he is firmly determined not to commute the sentence if these men are found to have violated the law. No one regrets more than I the necessity for relying in so important a matter on information that could be characterized as gossip. If I had my way this would not happen, for I would adopt the sensible course of sitting down with the Executive, going over the case with him, finding The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 25 of 27 out what his views are, and perhaps working out with him a common program for handling the situation. But of course my brothers would never hear of such a thing. Their scruple about acquiring accurate information directly does not prevent them from being very perturbed about what they have learned indirectly. Their acquaintance with the facts I have just related explains why the Chief Justice, ordinarily a model of decorum, saw fit in his opinion to flap his judicial robes in the face of the Executive and threaten him with excommunication if he failed to commute the sentence. It explains, I suspect, my brother Foster's feat of levitation by which a whole library of law books was lifted from the shoulders of these defendants. It explains also why even my legalistic brother Keen emulated Pooh-Bah in the ancient comedy by stepping to the other side of the stage to address a few remarks to the Executive ""in my capacity as a private citizen."" (I may remark, incidentally, that the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers' expense.) I must confess that as I grow older I become more and more perplexed at men's refusal to apply their common sense to problems of law and government, and this truly tragic case has deepened my sense of discouragement and dismay. I only wish that I could convince my brothers of the wisdom of the principles I have applied to the judicial office since I first assumed it. As a matter of fact, by a kind of sad rounding of the circle, I encountered issues like those involved here in the very first case I tried as Judge of the Court of General Instances in Fanleigh County. A religious sect had unfrocked a minister who, they said, had gone over to the views and practices of a rival sect. The minister circulated a handbill making charges against the authorities who had expelled him. Certain lay members of the church announced a public meeting at which they proposed to explain the position of the church. The minister attended this meeting. Some said he slipped in unobserved in a disguise; his own testimony was that he had walked in openly as a member of the public. At any rate, when the speeches began he interrupted with certain questions about the affairs of the church and made some statements in defense of his own views. He was set upon by members of the audience and given a pretty thorough pommeling, receiving among other injuries a broken jaw. He brought a suit for damages against the association that sponsored the meeting and against ten named individuals who he alleged were his assailants. When we came to the trial, the case at first seemed very complicated The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 26 of 27 to me. The attorneys raised a host of legal issues. There were nice questions on the admissibility of evidence, and, in connection with the suit against the association, some difficult problems turning on the question whether the minister was a trespasser or a licensee. As a novice on the bench I was eager to apply my law school learning and I began studying these question closely, reading all the authorities and preparing well-documented rulings. As I studied the case I became more and more involved in its legal intricacies and I began to get into a state approaching that of my brother Tatting in this case. Suddenly, however, it dawned on me that all these perplexing issues really had nothing to do with the case, and I began examining it in the light of common sense. The case at once gained a new perspective, and I saw that the only thing for me to do was to direct a verdict for the defendants for lack of evidence.",861
https://yalelawtech.org/wp-content/uploads/2020/01/thecaseofthespelunceanexplorers-nullopoena.pdf,The Case of The Speluncean Explorers,15,What is Law?,Class 4,"I was led to this conclusion by the following considerations. The melee in which the plaintiff was injured had been a very confused affair, with some people trying to get to the center of the disturbance, while others were trying to get away from it; some striking at the plaintiff, while others were apparently trying to protect him. It would have taken weeks to find out the truth of the matter. I decided that nobody's broken jaw was worth that much to the Commonwealth. (The minister's injuries, incidentally, had meanwhile healed without disfigurement and without any impairment of normal faculties.) Furthermore, I felt very strongly that the plaintiff had to a large extent brought the thing on himself. He knew how inflamed passions were about the affair, and could easily have found another forum for the expression of his views. My decision was widely approved by the press and public opinion, neither of which could tolerate the views and practices that the expelled minister was attempting to defend. Now, thirty years later, thanks to an ambitious Prosecutor and a legalistic jury foreman, I am faced with a case that raises issues which are at bottom much like those involved in that case. The world does not seem to change much, except that this time it is not a question of a judgment for five or six hundred frelars, but of the life or death of four men who have already suffered more torment and humiliation than most of us would endure in a thousand years. I conclude that the defendants are innocent of the crime charged, and that the conviction and sentence should be set aside. TATTING, J. I have been asked by the Chief Justice whether, after listening to the two opinions just rendered, I desire to reexamine the position previously taken by me. I wish to state that after hearing these opinions I am greatly strengthened in my conviction that I ought not to The Case of the Speluncean Explorers 01/21/2007 03:58 PM http://www.nullapoena.de/stud/explorers.html Page 27 of 27 participate in the decision of this case. The Supreme Court being evenly divided, the conviction and sentence of the Court of General Instances is affirmed. It is ordered that the execution of the sentence shall occur at 6 a.m., Friday, April 2, 4300, at which time the Public Executioner is directed to proceed with all convenient dispatch to hang each of the defendants by the neck until he is dead. POSTSCRIPT Now that the court has spoken its judgment, the reader puzzled by the choice of date may wish to be reminded that the centuries which separate us from the year 4300 are roughly equal to those that have passed since the Age of Pericles. There is probably no need to observe that the Speluncean Case itself is intended neither as a work of satire nor as a prediction in any ordinary sense of the term. As for the judges who make up Chief Justice Truepenny's court, they are, of course, as mythical as the facts and precedents with which they deal. The reader who refuses to accept this view, and who seeks to trace out contemporary resemblances where none is intended or contemplated, should be warned that he is engaged in a frolic of his own, which may possibly lead him to miss whatever modest truths are contained in the opinions delivered by the Supreme Court of Newgarth. The case was constructed for the sole purpose of bringing into a common focus certain divergent philosophies of law and government. These philosophies presented men with live questions of choice in the days of Plato and Aristotle. Perhaps they will continue to do so when our era has had its say about them. If there is any element of prediction in the case, it does not go beyond a suggestion that the questions involved are among the permanent problems of the human race.",652
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,1,Fair Use and the DMCA,Class 7,"Harvard Law Review March 1990 Commentary *1105 TOWARD A FAIR USE STANDARD Pierre N. Leval [FNa] Copyright 1990 by the Harvard Law Review Association; Pierre N. Leval Random distribution has dealt me a generous share of copyright suits involving claims of fair use. The court of appeals' disagreement with two of my decisions [FN1] provoked some rethinking, which revealed that my own decisions had not adhered to a consistent theory, and, more importantly, that throughout the development of the fair use doctrine, courts had failed to fashion a set of governing principles or values. Is this because no rational defining values exist, or is it rather that judges, like me, have repeatedly adjudicated upon ad hoc perceptions of justice without a permanent framework? This commentary suggests that a cogent set of governing principles exists and is soundly rooted in the objectives of the copyright law. Not long after the creation of the copyright by the Statute of Anne of 1709, [FN2] courts recognized that certain instances of unauthorized reproduction of copyrighted material, first described as “fair abridgment,”' later “fair use,”' would not infringe the author's rights. [FN3] In the United States, the doctrine was received and eventually incorporated into the Copyright Act of 1976, which provides that “the fair use of a copyrighted work . . . is not an infringement of copyright.”' [FN4] What is most curious about this doctrine is that neither the decisions that have applied it for nearly 300 years, nor its eventual statutory formulation, undertook to define or explain its contours or objectives. In Folsom v. Marsh, [FN5] in 1841, Justice Story articulated an often-cited summary of how to approach a question of fair use: “In short, we must often . . . look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”' [FN6] The 1976 Copyright Act largely adopted his summary. [FN7] These formulations, *1106 however, furnish little guidance on how to recognize fair use. The statute, for example, directs us to examine the “purpose and character”' of the secondary use as well as “the nature of the copyrighted work.”' Beyond stating a preference for the critical, educational, and nonprofit over the commercial, the statute tells little about what to look for in the “purpose and character”' of the secondary use. It gives no clues at all regarding the significance of “‘the nature of”’ the copyrighted work. Although it instructs us to be concerned with the quantity and importance of the materials taken and with the effect of the use on the potential for copyright profits, it provides no guidance for distinguishing between acceptable and excessive levels. Finally, although leaving open the possibility that other factors may bear on the question, the statute identifies none. [FN8] Curiously, judges generally have neither complained of the absence of guidance, nor made substantial efforts to fill the void. Uttering confident conclusions as to whether the particular taking was or was not a fair use, courts have treated the definition of the doctrine as assumed common ground. The assumption of common ground is mistaken. Judges do not share a consensus on the meaning of fair use.
Earlier decisions provide little basis for predicting later ones. Reversals [FN9] and divided *1107 courts [FN10]
are commonplace. The opinions reflect widely differing notions of the meaning of fair use. Decisions are not
governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns.
Justification is sought in notions of fairness, often more responsive to the concerns of private property than to
the objectives of copyright.
Confusion has not been confined to judges. Writers, historians, publishers, and their legal advisers can only
guess and pray as to how courts will resolve copyright disputes. After recent opinions of the Second Circuit casting serious doubt on any meaningful applicability of fair use to quotation from previously unpublished letters,
[FN11] publishers are understandably reluctant to pay advance royalties or to undertake commitments for biographical or historical works that call for use of such sources.
The doctrine of fair use need not be so mysterious or dependent on intuitive judgments. Fair use should be
perceived not as a disorderly basket of exceptions to the rules of copyright, nor as a departure from the principles governing that body of law, but rather as a rational, integral part of copyright, whose observance is necessary to achieve the objectives of that law.",749
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,2,Fair Use and the DMCA,Class 7,"I. THE GOALS OF COPYRIGHT The Supreme Court has often and consistently summarized the objectives of copyright law. The copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. This utilitarian goal is achieved by permitting authors to reap the rewards of their creative efforts. [C]opyright is intended to increase and not to impede the harvest of knowledge. . . . The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors. . . . [The Constitution's grant of copyright power to Congress] “is a means by which an important public purpose may be achieved. It *1108 is intended to motivate the creative activity of authors and inventors by the provision of a special reward . . . .”' “The monopoly created by copyright thus rewards the individual author in order to benefit the public.”' [FN12] The fundamental historic sources amply support the Supreme Court's explanation of the copyright objectives. The copyright clause of the Constitution, for example, evinces the same premises: “The Congress shall have Power . . . : To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”' [FN13] Several aspects of the text confirm its utilitarian purpose. [FN14] First is its express statement of purpose: “To promote the Progress of Science and useful Arts . . . .”' By lumping together authors and inventors, writings and discoveries, the text suggests the rough equivalence of those two activities. In the framers' view, authors possessed no better claim than inventors. The clause also clearly implies that the “exclusive right”' of authors and inventors “to their respective Writings and Discoveries”' exists only by virtue of statutory enactment. [FN15] Finally, that the right may be conferred only “for limited times”' confirms that it was not seen as an absolute or moral right, inherent in natural law. The time limit considered appropriate in those days was relatively brief-a once-renewable fourteen-year term. [FN16] A similar utilitarian message is found in the original British copyright statute, the Statute of Anne of 1709. 103 HVLR 1105 Page 2 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. [FN17] Its caption declares that *1109 this is “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors . . . during the Times therein mentioned.”' [FN18] The preamble declares the statute's purpose to be “for the Encouragement of Learned Men to compose and write useful Books.”' [FN19] Elaborating the justification, the preamble exhibits a prevalent concern for the financial entitlements of authorship by noting that the practice of pirated publication without the author's consent “too often [[[causes] the Ruin of [Authors] and their Families.”' [FN20] The copyright law embodies a recognition that creative intellectual activity is vital to the well-being of society. It is a pragmatic measure by which society confers monopoly-exploitation benefits for a limited duration on authors and artists (as it does for inventors), in order to obtain for itself the intellectual and practical enrichment that results from creative endeavors. If copyright protection is necessary to achieve this goal, then why allow fair use? Notwithstanding the need for monopoly protection of intellectual creators to stimulate creativity and authorship, excessively broad protection would stifle, rather than advance, the objective. First, all intellectual creative activity is in part derivative. There is no such thing as a wholly original thought or invention. Each advance stands on building blocks fashioned by prior thinkers. [FN21] Second, important areas of intellectual activity are explicitly referential. Philosophy, criticism, history, and even the natural sciences require continuous reexamination of yesterday's theses. Monopoly protection of intellectual property that impeded referential analysis and the development of new ideas out of old would strangle the creative process. Three judicially created copyright doctrines have addressed this problem: first, the rule that the copyright does not protect ideas, but only the manner of expression; [FN22] second, the rule that facts are not within the copyright protection, notwithstanding the labor expended by the original author in uncovering *1110 them; [FN23] and finally, the fair use doctrine, which protects secondary creativity as a legitimate concern of the copyright.",738
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,3,Fair Use and the DMCA,Class 7,"II. THE NATURE AND CONTOURS OF FAIR USE The doctrine of fair use limits the scope of the copyright monopoly in furtherance of its utilitarian objective. As Lord Ellenborough explained in an early dictum, “[W]hile I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science.”' [FN24] Thus, the introductory language of our statute explains that fair use may be made for generally educational or illuminating purposes “such as criticism, comment, news reporting, teaching . . . scholarship, or research.”' [FN25] Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design. Although no simple definition of fair use can be fashioned, and inevitably disagreement will arise over individual applications, recognition of the function of fair use as integral to copyright's objectives leads to a coherent and useful set of principles. Briefly stated, the use must be of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity. One must assess each of the issues that arise in considering a fair use defense in the light of the governing purpose of copyright law. 103 HVLR 1105 Page 3 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. A. The Statutory Factors Following Story's articulation, the statute lists four pertinent “factors to be considered”' “in determining whether the use made of a work in any particular case is a fair use.”' [FN26] They are, in summary, the purpose and character of the use, the nature of the copyrighted work, the quantity and importance of the material used, and the effect of the use upon the potential market or value of the copyrighted work. [FN27] Each factor directs attention to a different facet of the problem. The factors do not represent a score card that promises victory to the winner of the majority. Rather, they direct courts to examine the issue from every pertinent corner and to ask in each case whether, *1111 and how powerfully, a finding of fair use would serve or disserve the objectives of the copyright. 1. Factor One-The Purpose and Character of the Secondary Use.-Factor One's direction that we “consider[] . . . the purpose and character of the use”' [FN28] raises the question of justification. Does the use fulfill the objective of copyright law to stimulate creativity for public illumination? This question is vitally important to the fair use inquiry, and lies at the heart of the fair user's case. Recent judicial opinions have not sufficiently recognized its importance. In analyzing a fair use defense, it is not sufficient simply to conclude whether or not justification exists. The question remains how powerful, or persuasive, is the justification, because the court must weigh the strength of the secondary user's justification against factors favoring the copyright owner. I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. [FN29] A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely “supersede the objects”' of the original. [FN30] If, on the other hand, the secondary use adds value to the original-if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. [FN31] Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses. The existence of any identifiable transformative objective does not, however, guarantee success in claiming fair use. The transformative justification must overcome factors favoring the copyright owner. A biographer or critic of a writer may contend that unlimited quotation enriches the portrait or justifies the criticism. The creator of a derivative work based on the original creation of another may claim absolute*1112 entitlement because of the transformation. Nonetheless, extensive takings may impinge on creative incentives. And the secondary user's claim under the first factor is weakened to the extent that her takings exceed the asserted justification. The justification will likely be outweighed if the takings are excessive and other factors favor the copyright owner. The importance of a transformative use was stressed in the early decisions, which often related to abridgements. For example, Gyles v. Wilcox [FN32] in 1740 stated: Where books are colourably shortened only, they are undoubtedly infringement within the meaning of the [Statute of Anne] . . . . 103 HVLR 1105 Page 4 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. But this must not be carried so far as to restrain persons from making a real and fair abridgment, for abridgments may with great propriety be called a new book, because . . . the invention, learning, and judgment of the [ [ [secondary] author is shewn in them . . . . [FN33] In the United States in 1841, Justice Story wrote in Folsom: [N]o one can doubt that a reviewer may fairly cite [quote] largely from the original work, if . . . [its design be] . . . criticism. On the other hand, it is as clear, that if he thus [quotes] the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, [infringement will be found]. [FN34]",990
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,4,Fair Use and the DMCA,Class 7,"Courts must consider the question of fair use for each challenged passage and not merely for the secondary work overall. This detailed inquiry is particularly important in instances of a biographical or historical work that quotes numerous passages from letters, diaries, or published writings of the subject of the study. Simply to appraise the overall character of the challenged work tells little about whether the various quotations of the original author's writings have a fair use purpose or merely supersede. For example, in the recent cases of biographies of Igor Stravinsky [FN35] and J.D. Salinger, [FN36] although each biography overall served a useful, educational, and instructive purpose that tended to favor the defendant, some quotations from the writings of Stravinsky and Salinger were not justified by a strong transformative secondary objective. The biographers took dazzling passages of the original writing because they made good reading, not because such quotation was vital to demonstrate an objective of the biographers. These were takings of protected expression without sufficient transformative justification. *1113 I confess to some error in Salinger's case. Although the majority of the biographer's takings were of unprotected facts or ideas and some displayed transformative value in sketching the character portrait, other takings of highly expressive material exhibited minimal creative, transformative justification. My finding of fair use was based primarily on the overall instructive character of the biography. I failed to recognize that the nontransformative takings provided a weak basis for claiming the benefits of the doctrine and that, unless attention were focused on the individual passages, a favorable appraisal of the constructive purpose of the overall work could conceal unjustified takings of protected expression. The converse can also be true: a low estimation of the overall merit of the secondary work can lead to a finding for the copyright owner in spite of a well-justified, transformative use of the particular quotation that should justify a favorable finding under the first factor. Although repentantly agreeing with Judge Newman's finding of infringement in at least some of the challenged passages, I respectfully disagree with his reasoning, which I contend failed to recognize the need for quotation as a tool of accurate historical method. His opinion suggested a far-reaching rule-that unpublished matter is off-limits to the secondary user, regardless of justification. “[Unpublished] works normally enjoy complete protection against copying any protected expression.”' [FN37] The Second Circuit's New Era opinion carried this suggestion further. [FN38] In New Era, unlike Salinger, various persuasive justifications were proffered as to why quotation was necessary to accomplish the biographer's objective. For example, the biographer sought to support a portrait of his subject as a liar by showing he had lied; as a bigot by showing he had made bigoted pronouncements; as pompous and self-important by quoting self-important statements. The biographer similarly used quotations to show cruelty, paranoia, aggressiveness, scheming. [FN39] These are points which often cannot be fairly *1114 demonstrated without quotation. The Second Circuit's majority opinion rejected the pertinence of even considering the necessity of quotation of unpublished matter to communicate such assessments. Citing Salinger, it reasserted that “[unpublished] works normally enjoy complete protection.”' [FN40] 103 HVLR 1105 Page 5 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. I believe the Salinger/New Era position accords insufficient recognition to the value of accurate quotation as a necessary tool of the historian or journalist. The biographer who quotes his subject is characterized as a parasite or free rider. If he copies “more than minimal amounts . . . he deserves to be enjoined.”' [FN41] Nor does this restriction “interfere . . . with the process of . . . history,”' the Salinger opinion insists, because “[t] he facts may be reported”' [FN42] without risk of infringement. Can it be seriously disputed that history, biography, and journalism benefit from accurate quotation of source documents, in preference to a rewriting of the facts, always subject to the risk that the historian alters the “facts”' in rewriting them? [FN43] As to ideas, the analysis is similar. If the secondary writer has legitimate justification to report the original author's idea, whether for criticism or as a part of a portrait of the subject, she is surely permitted to set it forth accurately. Can ideas be correctly reported, discussed, or challenged if the commentator is obliged to express the idea in her own different words? The subject will, of course, reply, “That's not what I said.”' Such a requirement would sacrifice clarity, much as a requirement that judges, in passing on the applicability of a statute or contract, describe its provisions in their own words rather than quoting it directly. *1115 Is it not clear, furthermore, as Chief Judge Oakes' separate opinion in New Era recognized, [FN44] that at times the subject's very words are the facts calling for comment? If a newspaper wishes to report that last year a political candidate wrote a personal letter demeaning a race or religion, or proclaiming ideals directly contrary to those now stated in his campaign speeches, how can it fairly do this without quotation from the letter? If a biographer wished to show that her subject was cruel, jealous, vain, or crazy, can we seriously contend she should be limited to giving the reader those adjectives, while withholding the words that support the conclusion? How then may the reader judge whether to accept the biographer's characterization?",898
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,5,Fair Use and the DMCA,Class 7,"The problem was amusingly illustrated in the fall-out of Salinger. After the decision, the biographer rewrote his book, this time without quotations. Resorting to adjectives, he described certain of Salinger's youthful letters as “self-promoting . . . boastful”' [FN45] and “buzzing with self-admiration.”' [FN46] A reviewer, who had access to the letters, disagreed and proclaimed that the letters were in fact “exuberant, self-deprecating and charged with hope.”' [FN47] Where does that leave the reader? What should the reader believe? Does this battle of adjectives serve knowledge and the progress of the arts better than allowing readers to judge for themselves by reading revelatory extracts? The Second Circuit appears divided over these propositions. After the split vote of the original New Era panel, rehearing en banc was narrowly defeated by a vote of 7-5. [FN48] Judge Newman, joined by three colleagues, argued that rehearing en banc was warranted “to avoid misunderstanding on the part of authors and publishers . . .-misunderstanding that risks deterring them from entirely lawful writings in the fields of scholarly research, biography, and journalism.”' [FN49] His opinion recognized that “even as to unpublished writings, the doctrine of fair use permits some modest copying of an author's expression . . . where . . . necessary fairly and accurately to report a fact set forth in the author's writings.”' [FN50] In this discussion, Judge Newman retreated substantially from his position expressed in Salinger of normally complete protection. [FN51] *1116 Quoting is not necessarily stealing. Quotation can be vital to the fulfillment of the public-enriching goals of copyright law. The first fair use factor calls for a careful evaluation whether the particular quotation is of the transformative type that advances knowledge and the progress of the arts or whether it merely repackages, free riding on another's creations. If a quotation of copyrighted matter reveals no transformative purpose, fair use should perhaps be rejected without further inquiry into the other factors. [FN52] Factor One is the soul of fair use. A finding of justification under this factor seems indispensable to a fair use defense. [FN53] The 103 HVLR 1105 Page 6 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. strength of that justification must be weighed against the remaining factors, which focus on the incentives and entitlements of the copyright owner. 2. Factor Two-The Nature of the Copyrighted Work.-The nature of the copyrighted work is a factor that has been only superficially discussed and little understood. Like the third and fourth factors, it concerns itself with protecting the incentives of authorship. It implies that certain types of copyrighted material are more amenable to fair use than others. Copyright protection is available to very disparate categories of writings. If it be of original authorship, i.e., not copied from someone else, and recorded in a fixed medium, it is protected by the copyright. [FN54] Thus, the great American novel, a report prepared as a duty of employment, a shopping list, or a loanshark's note on a debtor's *1117 door saying “Pay me by Friday or I'll break your goddamn arms”' are all protected by the copyright. [FN55] In the early history of copyright, British courts debated whether letters written for private communication should receive any protection at all from the Statute of Anne. [FN56] The question was soon satisfactorily settled in favor of protection, and I do not seek to reopen it. I do not argue that writings prepared for private motives should be denied copyright protection. In the unlikely event of the publication of the Collected Shopping Lists (or Extortion Notes) of a Renowned Personage, of course only the author should enjoy the author's rights. When it comes to making fair use, however, there is a meaningful difference between writings conceived as artistic or instructive creation, made in contemplation of publication, and documents written for a private purpose, as a message or memo, never intended for publication. One is at the heart of the purpose of copyright-the stimulation of creative endeavor for the public edification. The others are, at best, incidental beneficiaries. Thus, the second factor should favor the original creator more heavily in the case of a work (including superseded drafts) created for publication, than in the case of a document written for reasons having nothing to do with the objectives of copyright law. The statutory articulation of this factor derives from Justice Story's mention in Folsom of the “value of the materials used.”' [FN57] Justice Story's word choice is more communicative than our statute's “nature of,”' as it suggests that some protected matter is more “valued”' under copyright law than others. This should not be seen as an invitation to judges to pass on literary quality, but rather to consider whether the protected writing is of the creative or instructive type that the copyright laws value and seek to foster.",809
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,6,Fair Use and the DMCA,Class 7,"The Nation, Salinger, and New Era opinions discussed the second factor solely in terms of whether the copyrighted work was published or unpublished. The Nation opinion observed that the unpublished status of a copyrighted work is a critical element of its nature and a *1118 “factor tending to negate the defense of fair use”'; [FN58] “the scope of fair use is narrower with respect to unpublished works.”' [FN59] The Second Circuit in Salinger and New Era extended this principle. As interpreted in Salinger, the Supreme Court's discussion “conveys the idea that [[[unpublished] works normally enjoy complete protection against copying any protected expression.”' [FN60] However extreme this formulation may be, the word “normally”' suggests that in the unusual instance fair use may be made of unpublished matter. New Era, however, rejected fair use even when necessary for accurate presentation of a fact; the court thus created an apparently insurmountable obstacle to the fair use of unpublished matter. Under the Salinger/New Era view, the unpublished nature of a quoted document trumps all other considerations. The Supreme Court and the Second Circuit justify these positions by the original author's interest in con103 HVLR 1105 Page 7 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. trolling the circumstances of the first public revelation of his work [FN61] and his right, if he so chooses, not to publish at all. [FN62] These are indeed legitimate concerns of copyright law. An author who prefers not to publish a work, or wishes to make aesthetic choices about its first public revelation, will generally have the legal right to enforce these wishes. [FN63] Due recognition of these rights, however, in no way implies an absolute power to bar all quotation, regardless of how persuasive the justification. A ban on fair use of unpublished documents establishes a new despotic potentate in the politics of intellectual life-the “widow censor.”' A historian who wishes to quote personal papers of deceased public figures now must satisfy heirs and executors for fifty years after the subject's death. When writers ask permission, the answer will be, “Show me what you write. Then we'll talk about permission.”' If the manuscript does not exude pure admiration, permission will be denied. [FN64] The second factor should not turn solely, nor even primarily, on the published/unpublished dichotomy. At issue is the advancement of the utilitarian goal of copyright-to stimulate authorship for the *1119 public edification. Inquiry into the “nature”' or “value”' of the copyrighted work therefore determines whether the work is the type of material that copyright was designed to stimulate, and whether the secondary use proposed would interfere significantly with the original author's entitlements. Notwithstanding that nearly all writings may benefit from copyright, its central concern is for the protection of material conceived with a view to publication, not of private memos and confidential communications that its authors do not intend to share with the public. [FN65] The law was not designed to encourage shoppers to make written shopping lists, executives to keep orderly appointment calendars, or lovers to write love letters. Certainly it was not to encourage the writing of extortion notes. To conclude that documents created for purposes outside the concerns of copyright law should receive more vigorous protection than the writings that copyright law was conceived to protect is bizarre and contradictory. To suggest that simply because a written document is unpublished, fair use of that document is forbidden, or even disfavored, has no logical support in the framework of copyright law. I do not argue that a writer of private documents has no legal entitlement to privacy. [FN66] He may well have such an entitlement. The law of privacy, however, and not the law of copyright supplies such protection. Placing all unpublished private papers under lock and key, immune from any fair use, for periods of fifty to one hundred years, conflicts with the purposes of the copyright clause. Such a rule would use copyright to further secrecy and concealment instead of public illumination. [FN67] I do not dispute that publication can be important in assessing the second factor. Publication for public edification is, after all, a central concern of copyright. Thus, a work intended for publication is a favored protectee of the copyright. [FN68] A secondary use that imperils *1120 the eventual publication of a creation en route undermines the copyright objective. I therefore agree with the Supreme Court, on the particular facts of the Nation case, that the nature of the copyrighted work strongly favored its protection- but not merely because it was unpublished. In that case, the Nation, a weekly magazine of news and comment, published purloined extracts from the memoirs of former President Gerald Ford, shortly prior to the scheduled appearance of the first authorized serialization in Time Magazine. [FN69] Time then cancelled its plan to print the memoir and withheld payment of the balance of the license fee. [FN70] The Supreme Court rejected the Nation's claim that the newsworthiness of the President's memoir justified a finding of fair use. [FN71] The critical element was that President Ford's memoir was written for publication, and was on its way to publication at the time of the Nation's gun-jumping scoop. The Supreme Court emphasized that the Nation's scoop unreasonably diminished the rewards of authorship. [FN72] The Court noted further that if the practice 103 HVLR 1105 Page 8 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. were tolerated on the grounds of newsworthiness, it would discourage public figures from writing and publishing valuable memoirs. [FN73] Read in context rather than excerpting isolated phrases, the Nation decision communicates a concern for protection of unpublished works that were created for publication, or on their way to publication, and not for unpublished matter created for private ends and held in secrecy.",973
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,7,Fair Use and the DMCA,Class 7,"It is not always easy to draw the distinction between works created for publication and notations or communications intended as private. A diary, memoir, or letter can be both-private in the first instance, but written in contemplation of possible eventual publication. In a sense, professional authors are writing either directly or indirectly for publication in their private memos and letters, as well as in their manuscripts. In private letters and notebooks, they practice the writer's*1121 craft, trying out ideas, images, metaphors, cadences, which may eventually be incorporated into published work. [FN74] The attempt to distinguish, for purposes of the second fair use factor, between work created for publication and other written matter should recognize that the copyright objectives include a reasonable solicitude for the ability of the author to practice the craft in the privacy of the laboratory. A critique of an author's writing based solely on rough drafts that the author had superseded might well be an unreasonable intrusion. [FN75] On the other hand, notwithstanding the highly protected status of a draft, the privacy of the laboratory should yield in some situations. Assume the following hypothetical cases: (1) An author's first novel is greeted with critical acclaim for its elegant style and masterful command of the language. A skeptical critic undertakes to show that the author is a literary fraud, the creation of a talented and unscrupulous editor. In support, the critic quotes brief excerpts from the author's very different original manuscript, revealing a grammatical ignorance and stylistic awkwardness she contends could not conceivably have come from the same pen as the elegant published version. The author sues to enjoin publication of the review. (2) Author A publicly accuses Author B of plagiarism; A claims that B's recently published book steals a metaphor from a letter A wrote to B. B denies the charge and asserts that his first draft, written before he received A's letter, included the same language. The critic quotes from B's first draft, disproving B's defense by showing that the metaphor was not yet present. Both examples seem convincing cases of fair use, in which the critic's productive and transformative justification would take precedence over the author's interest in maintaining the privacy of the unpublished draft. [FN76] *1122 In summary, several principles emerge from considering the second factor in light of the copyright objectives: this factor concerns the protection of the reasonable expectations of one who engages in the kinds of creation/authorship that the copyright seeks to encourage. Thus, a text, including drafts, created for publication, or on its way to publication, presents a far stronger case for protection against fair use than matter written exclusively for private purposes. The more the copyrighted matter is at the center of the protected concerns of the copyright law, the more the other factors, including justification, must favor the secondary user in order to earn a fair use finding. The fact that a document is unpublished should be of small relevance unless it was created for or is on its way to publication. [FN77] If, on the other hand, the writing is on its way to publication, and premature secondary use would interfere significantly with the author's incentives, its as yet unpublished status may argue powerfully against fair use. Finally, this factor is but one of four-it is not a sufficient basis for ruling out fair use. There is no logical basis for making it determinative, as was effectively done in Salinger and New Era. Although the second factor implies a characterization of the protected work on a scale of copyright-protected 103 HVLR 1105 Page 9 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. values, no category of copyrighted material is either immune from use or completely without protection. Wholesale appropriation of the expressive language of a letter, without a transformative justification, should not qualify as fair use, even though the writer of the letter had never considered publication. On the other hand, if a sufficient justification exists, and the quotations do not cause significant injury to the author's entitlements, courts may allow even quotations from an unpublished draft of a novel. 3. Factor Three-Amount and Substantiality.-The third statutory factor instructs us to assess “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”' [FN78] In general, the larger the volume (or the greater the importance) of what is taken, the greater the affront to the interests of the copyright owner, and the less likely that a taking will qualify as a fair use. *1123 This factor has further significance in its bearing on two other factors. It plays a role in consideration of justification under the first factor (the purpose and character of the secondary use); and it can assist in the assessment of the likely impact on the market for the copyrighted work under the fourth factor (the effect on the market). As to the first factor, an important inquiry is whether the selection and quantity of the material taken are reasonable in relation to the purported justification. A solid transformative justification may exist for taking a few sentences that would not, however, justify a taking of larger quantities of material.",870
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,8,Fair Use and the DMCA,Class 7,"In its relation to the market impact factor, the qualitative aspect of the third test-“substantiality”'-may be more important than the quantitative. In the case of President Ford's memoir, a taking of no more than 400 words constituting “ 'the heart of the book' ” [FN79] caused cancellation of the first serialization contract-a serious impairment to the market for the book. As to the relationship of quantity to the market, presumptively, of course, the more taken the greater the likely impact on the copyright holder's market, and the more the factor favors the copyright holder. Too mechanical a rule, however, can be dangerously misleading. One can imagine secondary works that quote 100% of the copyrighted work without affecting market potential. Consider, for example, a lengthy critical study analyzing the structure, symbolism and meaning, literary antecedents and influences of a single sonnet. Fragments dispersed throughout the work of criticism may well quote every word of the poem. Such quotation will not displace the market for the poem itself. If there is strong justification and no adverse market impact, even so extensive a taking could be a fair use. Too rigid a notion of permissible quantity, furthermore, can seriously distort the inquiry for very short memos or communications. If a communication is sufficiently brief, any quotation will necessarily take most or all of it. Consider, for example, the extortion note discussed above. [FN80] A journalist or historian may have good reason to quote it in full, either for historical accuracy, to show the character of the writer, or to suggest its effect on the recipient. The copyright holder, in seeking to enjoin publication, will argue that the journalist has taken not only the heart but the whole of the protected work. There are three responses, which relate to the first, second, and fourth factors. First, there may be a powerful justification for quotation of the entirety of a short note. Second, because the note was written for private motives and not for publication, quotation will not diminish *1124 the inducement to authors to create works for the public benefit. Finally, because the note is most unlikely to be marketed as a work of its author, there is no effect on its market. Courts must then evaluate the significance of the amount and substantiality factor in relation to the copyright objectives; they must consider the justification for the secondary use and the realistic risk of injury to the entitlements of authorship. 4. Factor Four-Effect on the Market.-The fourth factor addresses “the effect of the use upon the potential market for the copyrighted work.”' [FN81] In the Nation, the Supreme Court designated this “the single most important element of fair use.”' [FN82] The Court's recognition of the importance of this factor underlines, once 103 HVLR 1105 Page 10 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. again, that the copyright is not a natural right inherent in authorship. If it were, the impact on market values would be irrelevant; any unauthorized taking would be obnoxious. The utilitarian concept underlying the copyright promises authors the opportunity to realize rewards in order to encourage them to create. A secondary use that interferes excessively with an author's incentives subverts the aims of copyright. Hence the importance of the market factor. [FN83] Although the market factor is significant, the Supreme Court has somewhat overstated its importance. When the secondary use does substantially interfere with the market for the copyrighted work, as was the case in Nation, this factor powerfully opposes a finding of fair use. But the inverse does not follow. The fact that the secondary use does not harm the market for the original gives no assurance that the secondary use is justified. [FN84] Thus, notwithstanding the importance of the market factor, especially when the market is impaired by the secondary use, it should not overshadow the requirement of justification under the first factor, without which there can be no fair use. How much market impairment must there be to turn the fourth factor against the secondary user? By definition every fair use involves some loss of royalty revenue because the secondary user has not paid royalties. [FN85] Therefore, if an insubstantial loss of revenue *1125 turned the fourth factor in favor of the copyright holder, this factor would never weigh in favor of the secondary user. [FN86] And if we then gave serious deference to the proposition that it is “undoubtedly the single most important element of fair use,”' [FN87] fair use would become defunct. The market impairment should not turn the fourth factor unless it is reasonably substantial. [FN88] When the injury to the copyright holder's potential market would substantially impair the incentive to create works for publication, the objectives of the copyright law require that this factor weigh heavily against the secondary user. Not every type of market impairment opposes fair use. An adverse criticism impairs a book's market. A biography may impair the market for books by the subject if it exposes him as a fraud, or satisfies the public's interest in that person. Such market impairments are not relevant to the fair use determination. The fourth factor disfavors a finding of fair use only when the market is impaired because the quoted material serves the consumer as a substitute, [FN89] or, in Story's words “supersede[s] the use of the original.”' [FN90] Only to that extent are the purposes of copyright implicated.",906
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,9,Fair Use and the DMCA,Class 7,"B. Are There Additional Factors? 1. False Factors.-The language of the Act suggests that there may be additional unnamed factors bearing on the question of fair use. [FN91] The more I have studied the question, the more I have come to conclude that the pertinent factors are those named in the statute. Additional considerations that I and others have looked to are false factors that divert the inquiry from the goals of copyright. They may have bearing on the appropriate remedy, or on the availability of *1126 another cause of action to vindicate a wrong, but not on the fair use defense. (a) Good Faith.-In all areas of law, judges are tempted to rely on findings of good or bad faith to justify a decision. Such reasoning permits us to avoid rewarding morally questionable conduct. It augments our discretionary power. It provides us with an escape from confronting questions that are difficult to understand. The temptation has been particularly strong in dealing with the difficult issue of fair use. [FN92] This practice is, however, misguided. It produces anomalies that conflict with the goals of copyright and adds to the confusion surrounding the doctrine. 103 HVLR 1105 Page 11 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. Copyright seeks to maximize the creation and publication of socially useful material. Copyright is not a privilege reserved for the well-behaved. Copyright protection is not withheld from authors who lie, cheat, or steal to obtain their information. If they have stolen information, they may be prosecuted or sued civilly, but this has no bearing on the applicability of the copyright. Copyright is not a reward for goodness but a protection for the profits of activity that is useful to the public education. The same considerations govern fair use. The inquiry should focus not on the morality of the secondary user, but on whether her creation claiming the benefits of the doctrine is of the type that should receive those benefits. This decision is governed by the factors reviewed above-with a primary focus on whether the secondary use is productive and transformative and whether it causes excessive injury to the market for the original. No justification exists for adding a morality test. This is of course not an argument in favor of immorality. It favors only proper recognition of the scope and goals of a body of law. A secondary user, like an original author, may be liable to criminal prosecution, or to suit in tort, if she has stolen information or has committed fraud. Furthermore, if she has infringed upon a copyright, morally reprehensible conduct may influence the remedy, including the availability of both an injunction and additional damages for willfulness. [FN93] This false morality factor derives from two misunderstandings of early precedent. The first results from the use of words like “piracy”' and the Latin phrase “animus furandi”' in early decisions. In rejecting the defense of fair use, courts sometimes characterized the offending secondary work as having been written animo furandi (with intention of stealing). Although this characterization seemed to imply that fair *1127 use requires honest intentions, the courts reasoned in the opposite direction. The decisions did not explore the mental state of the secondary user to determine whether fair use was shown. They examined the secondary text to determine whether it made a productive transformative use or merely restated the original. If they found no productive use justifying the taking, judges adorned the conclusion of infringement with words like piracy or animus furandi. [FN94] The morality of the secondary user's conduct played no role in the decision. The irrelevance of the morality of the secondary user's conduct was underlined in decisions like Folsom v. Marsh. [FN95] There Justice Story emphasized not only the good faith and “meritorious labors”' of the defendants, but also the usefulness of their work. Finding no “bona fide abridgement”' [FN96] (what I have described as a transformative use), Justice Story nonetheless concluded with “regret”' that good faith could not save the secondary work from being “deemed in law a piracy.”' [FN97] A second misleading assumption is that fair use is a creature of equity. [FN98] From this assumption it would follow that unclean hands and all other equitable considerations are pertinent. Historically this notion is incorrect. Litigation under the Statute of Anne began in the law courts. [FN99] Although plaintiffs who sought injunctions could sue, and did, in the courts of equity, [FN100] which exercised parallel jurisdiction, the fair use doctrine did not arise out of equitable considerations. Fair use was a judge-made utilitarian limit on a statutory right. It balances the social benefit of a transformative secondary use against injury to the incentives of authorship. The temptation to determine fair use by reference to morality also can lead to examination of the conduct and intentions of the plaintiff *1128 copyright holder in bringing the suit. The secondary user may contend that the copyright holder is disingenuously invoking copyright remedies as a device to suppress criticism or protect secrecy. [FN101] Such considerations are also false leads. 103 HVLR 1105 Page 12 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. Like a proprietor of land or an owner of contract rights, the copyright owner may sue to protect what he owns, regardless of his motivation. His rights, however, extend only to the limits of the copyright. As fair use is not an infringement, he has no power over it. Whether the secondary use is within the protection of the doctrine depends on factors pertinent to the objectives of the copyright law and not on the morality or motives of either the secondary user or the copyright-owning plaintiff",955
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,10,Fair Use and the DMCA,Class 7,"(b) Artistic Integrity.-There are many who deplore our law's failure to protect artistic integrity. French law enforces the concept of the droit moral d'artiste, which covers among other things a right of paternity (the right to be acknowledged as author of the work), the right to preserve a work from mutilation or change, the right to withdraw or modify a work already made public, and the right to determine whether or not a work shall be published. [FN102] Those who would adopt similar rules in United States law seek a place for them in the copyright law, which is understandable in view of the absence of other niches. I do not oppose our adoption of such rights for artists. I do, however, oppose converting our copyright law, by a wave of a judicial magic wand, into an American droit moral. To do so would generate much unintended mischief. Our copyright law has developed over hundreds of years for a very different purpose and with rules and consequences that are incompatible with the droit moral. As the copyright privilege belongs not only to Ernest Hemingway but to anyone who has drafted an interoffice memo or dunning letter or designed a computer program, it would be preposterous to permit all of them to claim, as an incident to copyright, the right to public acknowledgement of authorship, the right to prevent publication, the right to modify a published work, and to prevent others from altering their work of art. If we wish to create such rights for the protection of artists, we should draft them carefully as a separate body of law, and appropriately define what is an artist and what is a work of *1129 art. [FN103] Those difficult definitions should be far narrower than the range of copyright protection. We ought not simply distort copyright to convey such absolutes. (c) Privacy.-The occasional attempt to read protection of privacy into the copyright is also mistaken. [FN104] This trend derives primarily from an aberrational British case of the mid-nineteenth century in which there had been no replication of copyrighted material. Queen Victoria and Prince Albert had made etchings which were exhibited privately to friends. The defendant Strange, a publisher, obtained copies surreptitiously. Strange wrote descriptions of the etchings and sought to publish his descriptions. Prince Albert brought suit to enjoin this intolerable intrusion. The Lord Chancellor, expressing concern for the privacy of the royal family and disapproval of the surreptitious manner by which the defendant had obtained copies of the etchings, affirmed the grant of an injunction. [FN105] Prince Albert's case is noteworthy as the seed from which grew the American right of privacy, after fertilization by Brandeis and Warren. [FN106] But it should not be considered a meaningful precedent for our copyright law. The decision reflects circumstances that distinguish British law from ours- particularly the absence from British law of two of our doctrines. First, although British society placed a higher value on privacy than we do, English law did not have a right of privacy. [FN107] In this country, a right to privacy has explicitly developed to shield private facts from intrusion by publication. [FN108] Second, *1130 British law did not include a strong commitment to the protection of free speech. [FN109] American law, in contrast, maintains a powerful constitutional policy that sharply disfavors muzzling speech. Serious distortions will occur if we permit our copyright law to be twisted into the service of privacy in103 HVLR 1105 Page 13 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. terests. First, it will destroy the delicate balance of interests achieved under our privacy law. For example, the judgment that, in the public interest, the privacy right should terminate at death would be overcome by the additional fifty years tacked onto copyright protection. Such a change would destroy the policy judgment developed under privacy law denying its benefits to persons who have successfully sought public attention. In addition, as a result of the preemption provisions of the federal copyright statute, [FN110] construing the copyright law to encompass privacy might nullify state privacy laws. Moreover, the copyright law is grotesquely inappropriate to protect privacy and obviously was not fashioned to do so. Copyright protects only the expression, not the facts revealed, and thus fails to protect the privacy interest involved. [FN111] Because the copyright generally cannot be enforced without a public filing in the Library of Congress, the very act required to preserve privacy would ensure its violation. Finally, incorporating privacy concerns into copyright would burden us with a bewilderingly schizophrenic body of law that would simultaneously seek to reveal and to conceal. Privacy and concealment are antithetical to the utilitarian goals of copyright.",787
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,11,Fair Use and the DMCA,Class 7,"C. Injunction One of the most unfortunate tendencies in the law surrounding fair use is the notion that rejection of a fair use defense necessarily *1131 implicates the grant of an injunction. Many commentators have disparaged the overly automatic tendency of courts to grant injunctive relief. [FN112] The copyright statute and its predecessors express no preference for injunctive relief. The 1976 Act states only that a court “may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”' [FN113] Moreover, the tendency toward the automatic injunction can harm the interests of plaintiff copyright owners, as well as the interests of the public and the secondary user. Courts may instinctively shy away from a justified finding of infringement if they perceive an unjustified injunction as the inevitable consequence. [FN114] *1132 Legal rhetoric has dulled thought on the injunction remedy. It is a venerable maxim that irreparable injury is “presumed”' in a case of copyright infringement. [FN115] Injunction thus follows as a matter of course upon a finding of infringement. In the vast majority of cases, this remedy is justified because most infringements are simple piracy. Successful fabric designs, fashion accessories, toys, and videos instantly spawn parasitic industries selling cheap copies. These infringers incur no development cost, no advertising expense, and little risk. They free-ride on the copyright owner's publicity, undercut the market, and deprive the copyright owner of the rewards of his creation. Allowing this practice to flourish destroys the incentive to create and thus deprives the public of the benefits copyright was designed to secure. It is easy to justify enjoining such activity. In fact, the presumption of irreparable harm is probably unnecessary. It merely simplifies and reduces the cost of proving what could be shown without a presumption. Such cases are worlds apart from many of those raising reasonable contentions of fair use. Historians, biographers, critics, scholars, and journalists regularly quote from copyrighted matter to make points essential to their instructive undertakings. Whether their takings will pass the fair use test is difficult to predict. It depends on widely varying perceptions held by different judges. Yet there may be a strong public interest in the publication of the secondary work. And the copyright owner's interest may be adequately protected by an award of damages for whatever infringement is found. In such cases, should we indulge a presumption of irreparable harm and grant injunctions as a matter of 103 HVLR 1105 Page 14 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. course? According to the Salinger opinion, “if [a biographer] copies more than minimal amounts of (unpublished) expressive content, he deserves to be enjoined . . . .”' [FN116] Judge Miner's majority opinion in New Era extended this *1133 proposition, expressly rejecting the idea that the public interest in publication of an informative biography could outweigh the copyright owner's preference for an injunction. [FN117] Upon application for rehearing en banc, Judge Newman, author of the Salinger opinion but not a part of the New Era panel, writing in favor of rehearing of New Era, retracted Salinger's seminal assertion. Judge Newman explained that his phrase “‘deserves to be enjoined”’ had meant nothing more than “deserves to be found liable for infringement.”' [FN118] He pointed out that in Salinger there had been no dispute over the appropriateness of injunctive relief. Because at the time of the lawsuit the book was in prepublication copy, the infringing passages could be easily excised or altered without destroying the book. Thus there was no good reason to deny the injunction. Judge Newman's New Era opinion goes on to argue convincingly that the public interest is always relevant to the decision whether to grant an injunction. [FN119] The customary bias in favor of the injunctive remedy in conventional cases of copyright infringement has no proper application to the type of case here discussed. When a court rejects a fair use defense, it should deal with the issue of the appropriate remedy on its merits. [FN120] The court should grant or deny the injunction for reasons, and not simply as a mechanical reflex to a finding of infringement. Plaintiffs should be required to demonstrate irreparable harm and inadequacy of compensation in damages. [FN121] As Chief Judge Oakes noted in his separate opinion in New Era, “Enjoining publication of a book is not *1134 to be done lightly. . . . [T]he grant or denial of an injunction remains an open question, to be determined by carefully balancing the appropriate factors.”' [FN122] As with other issues arising in connection with a fair use defense, analysis of this issue should reflect the underlying goals of the copyright law to stimulate the creation and publication of edifying matter. In considering whether the plaintiff would suffer irreparable harm, the court should focus on harm to the plaintiff's interest as copyright owner. A public figure may suffer irreparable injury to his reputation if publication of extracts from his private papers reveals him to be dishonest, cruel, or greedy. An individual suffers irreparable harm by the revelation of facts he would prefer to keep secret. But those are not the types of harms against which the copyright law protects; despite irreparability, they should not justify an injunction based on copyright infringement. Only injuries to the interest in authorship are the copyright's legitimate concern",901
https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf,Toward a Fair Use Standard,12,Fair Use and the DMCA,Class 7,"Critics of these views express concern that obstacles to injunctive relief may undermine the incentives of authorship for which copyright law was created. If the grant or denial of injunction is informed by the concerns of copyright law, such a worry will prove groundless. If the infringement is of a type likely to diminish creative incentives, the court should favor an injunction. In a case like the Nation, where the infringement deprives the author of significant monetary and non-monetary rewards of authorship, and where, as the Supreme Court found, such infringement diminishes the incentive to public figures to write valuable memoirs, an injunction would be justified. If, on the other hand, the original document had been created for purely private purposes and not as a work of authorship for the public benefit, denial of an injunction would not adversely affect creative incentives. For reasons similar to those discussed under the second factor, courts should more readily grant an injunction where the original is a work of authorship created with a view to publication (or is on its way to publication) than in the case of private communicative documents created for reasons that are not the concerns of copyright law. [FN123] *1135 In my argument against automatically granting injunctive relief, I have deliberately refrained from invoking the support of the first amendment's opposition to prior restraints. I have excluded such arguments not 103 HVLR 1105 Page 15 103 Harv. L. Rev. 1105 © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. because they are irrelevant but because they are unnecessary and risk importing confusion. Although copyright often results in suppression of speech, its underlying objectives parallel those of the first amendment. “[T]he Framers intended copyright . . . to be the engine of free expression.”' [FN124] It “is intended to increase and not to impede the harvest of knowledge”'; [FN125] “[t]o promote the Progress of Science and the useful Arts”'; [FN126] to encourage “Learned [writers] to compose and write useful Books.”' [FN127] It was never intended to serve the goals of secrecy and concealment. Thus, the copyright law on its own terms, and not merely in deference to the first amendment, demands caution in awarding oppressive injunctions. III. CONCLUSION A question to consider in conclusion is whether imprecision-the absence of a clear standard-in the fair use doctrine is a strength or a weakness. The case that it is a weakness is easy to make. Writers, publishers, and other would-be fair-users lack a reliable guide on how to govern their conduct. The contrary argument is more abstract. Perhaps the abundance of disagreement reflects the difficulty of the problem. As Justice Story wrote in 1841, it is not easy “to lay down any general principles applicable to all cases.”' [FN128] A definite standard would champion predictability at the expense of justification and would stifle intellectual activity to the detriment of the copyright objectives. We should not adopt a bright-line standard unless it were a good one-and we do not have a good one. We can nonetheless gain a better understanding of fair use and greater consistency and predictability of court decisions by disciplined focus on the utilitarian, public-enriching objectives of copyright-and by resisting the impulse to import extraneous policies. Fair use is not a grudgingly tolerated exception to the copyright owner's rights of private property, but a fundamental policy of the copyright law. *1136 The stimulation of creative thought and authorship for the benefit of society depends assuredly on the protection of the author's monopoly. But it depends equally on the recognition that the monopoly must have limits. Those limits include the public dedication of facts (notwithstanding the author's efforts in uncovering them); the public dedication of ideas (notwithstanding the author's creation); and the public dedication of the right to make fair use of material covered by the copyright.",638
https://yalelawtech.org/wp-content/uploads/2011/09/campbell-v-acuff-rose-music.pdf,CAMPBELL v. ACUFF-ROSE MUSIC,1,"Fair Use: Remix, Reimagine, Reuse",Class 8,"Supreme Court of the United States CAMPBELL v. ACUFF-ROSE MUSIC No. 92-1292. Argued Nov. 9, 1993. Decided March 7, 1994. Justice SOUTER delivered the opinion of the Court. We are called upon to decide whether 2 Live Crew's commercial parody of Roy Orbison's song, “Oh, Pretty Woman,” may be a fair use within the meaning of the Copyright Act of 1976, 17 U.S.C. § 107 (1988 ed. and Supp. IV). Although the District Court granted summary judgment for 2 Live Crew, the Court of Appeals reversed, holding the defense of fair use barred by the song's commercial character and excessive borrowing. Because we hold that a parody's commercial character is only one element to be weighed in a fair use enquiry, and that insufficient consideration was given to the nature of parody in weighing the degree of copying, we reverse and remand. I In 1964, Roy Orbison and William Dees wrote a rock ballad called “Oh, Pretty Woman” and assigned their rights in it to respondent Acuff-Rose Music, Inc. See Appendix A. * * * Acuff-Rose registered the song for copyright protection. Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs are collectively known as 2 Live Crew, a popular rap music group. In 1989, Campbell wrote a song entitled “Pretty Woman,” which he later described in an affidavit as intended, “through comical lyrics, to satirize the original work....” * * * On July 5, 1989, 2 Live Crew's manager informed Acuff-Rose that 2 Live Crew had written a parody of “Oh, Pretty Woman,” that they would afford all credit for ownership and authorship of the original song to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for the use they wished to make of it. Enclosed with the letter were a copy of the lyrics and a recording of 2 Live Crew's song. See Appendix B. * * * Acuff-Rose's agent refused permission, stating that “I am aware of the success enjoyed by ‘The 2 Live Crews’, but I must inform you that we cannot permit the use of a parody of ‘Oh, Pretty Woman.’” * * * Nonetheless, in June or July 1989, 2 Live Crew released records, cassette tapes, and compact discs of “Pretty Woman” in a collection of songs entitled “As Clean As They Wanna Be.” The albums and compact discs identify the authors of “Pretty Woman” as Orbison and Dees and its publisher as Acuff-Rose. Almost a year later, after nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement. The District Court granted summary judgment for 2 Live Crew, reasoning that the commercial purpose of 2 Live Crew's song was no bar to fair use; that 2 Live Crew's version was a parody, which “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison song” is; that 2 Live Crew had taken no more than was necessary 2 to “conjure up” the original in order to parody it; and that it was “extremely unlikely that 2 Live Crew's song could adversely affect the market for the original.” * * * The District Court weighed these factors and held that 2 Live Crew's song made fair use of Orbison's original. * * * The Court of Appeals for the Sixth Circuit reversed and remanded. * * * Although it assumed for the purpose of its opinion that 2 Live Crew's song was a parody of the Orbison original, the Court of Appeals thought the District Court had put too little emphasis on the fact that “every commercial use ... is presumptively ... unfair,” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984), and it held that “the admittedly commercial nature” of the parody “requires the conclusion” that the first of four factors relevant under the statute weighs against a finding of fair use. * * * Next, the Court of Appeals determined that, by “taking the heart of the original and making it the heart of a new work,” 2 Live Crew had, qualitatively, taken too much. * * * Finally, after noting that the effect on the potential market for the original (and the market for derivative works) is “undoubtedly the single most important element of fair use,” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985), the Court of Appeals faulted the District Court for “refus[ing] to indulge the presumption” that “harm for purposes of the fair use analysis has been established by the presumption attaching to commercial uses.” * * * In sum, the court concluded that its “blatantly commercial purpose ... prevents this parody from being a fair use.” * * * We granted certiorari, 507 U.S. 1003 (1993), to determine whether 2 Live Crew's commercial parody could be a fair use.",826
https://yalelawtech.org/wp-content/uploads/2011/09/campbell-v-acuff-rose-music.pdf,CAMPBELL v. ACUFF-ROSE MUSIC,2,"Fair Use: Remix, Reimagine, Reuse",Class 8,"II It is uncontested here that 2 Live Crew's song would be an infringement of Acuff-Rose's rights in “Oh, Pretty Woman,” under the Copyright Act of 1976, 17 U.S.C. § 106 (1988 ed. and Supp. IV), but for a finding of fair use through parody. From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, “[t]o promote the Progress of Science and useful Arts....” U.S. Const., Art. I, § 8, cl. 8. For as Justice Story explained, “[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” * * * [F]air use remained exclusively judgemade doctrine until the passage of the 1976 Copyright Act. * * * Congress meant § 107 “to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way” and intended that courts continue the common-law tradition of fair use adjudication. * * * The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U.S. 207, 236 (1990). * * * The text employs the terms “including” and “such as” in the preamble paragraph to indicate the “illustrative and not limitative” function of the examples given, § 101; see Harper & Row, supra, 471 U.S., at 561, which thus provide only general guidance about 3 the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. * * * A The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1). This factor draws on Justice Story's formulation, “the nature and objects of the selections made.” Folsom v. Marsh, supra, at 348. The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see § 107. The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely “supersede[s] the objects” of the original creation, Folsom v. Marsh, supra, at 348; * * * or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, * * * the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, * * * and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court's equal division. * * * Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. * * * The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals dissent, as “a song sung alongside another.” 972 F.2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” or as a “composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.” For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. * * * If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to 4 make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. * * *",956
https://yalelawtech.org/wp-content/uploads/2011/09/campbell-v-acuff-rose-music.pdf,CAMPBELL v. ACUFF-ROSE MUSIC,3,"Fair Use: Remix, Reimagine, Reuse",Class 8,"The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law. Here, the District Court held, and the Court of Appeals assumed, that 2 Live Crew’s “Pretty Woman” contains parody, commenting on and criticizing the original work, whatever it may have to say about society at large. As the District Court remarked, the words of 2 Live Crew’s song copy the original’s first line, but then “quickly degenerat[e] into a play on words, substituting predictable lyrics with shocking ones ... [that] derisively demonstrat[e] how bland and banal the Orbison song seems to them.” 754 F.Supp., at 1155 (footnote omitted). Judge Nelson, dissenting below, came to the same conclusion, that the 2 Live Crew song “was clearly intended to ridicule the whitebread original” and “reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses.” * * * Although the majority below had difficulty discerning any criticism of the original in 2 Live Crew's song, it assumed for purposes of its opinion that there was some. * * * We have less difficulty in finding that critical element in 2 Live Crew's song than the Court of Appeals did, although having found it we will not take the further step of evaluating its quality. The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” * * * While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works. The Court of Appeals, however, immediately cut short the enquiry into 2 Live 5 Crew's fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly culled from Sony, that “every commercial use of copyrighted material is presumptively ... unfair....” Sony, 464 U.S., at 451, 104 S.Ct., at 792. In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred. The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term “including” to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into “purpose and character.” As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. * * * Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.” Harper & Row, supra, at 592, 105 S.Ct., at 2246 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that “[n]o man but a blockhead ever wrote, except for money.” * * *",914
https://yalelawtech.org/wp-content/uploads/2011/09/campbell-v-acuff-rose-music.pdf,CAMPBELL v. ACUFF-ROSE MUSIC,4,"Fair Use: Remix, Reimagine, Reuse",Class 8,"Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a “sensitive balancing of interests,” * * * noted that Congress had “eschewed a rigid, bright-line approach to fair use,” * * * and stated that the commercial or nonprofit educational character of a work is “not conclusive,” * * * but rather a fact to be “weighed along with other[s] in fair use decisions.” * * * The Court of Appeals’s elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common-law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the “fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.” * * * But that is all, and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance. The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry than the sale of a parody for its own sake, let alone one performed a single time by students in school. * * * B The second statutory factor, “the nature of the copyrighted work,” § 107(2), draws on Justice Story's expression, the “value of the materials used.” Folsom v. Marsh, 9 F.Cas., at 348. This factor calls for recognition that some works are closer to the core of 6 intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied. * * * We agree with both the District Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls within the core of the copyright's protective purposes. * * * This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works. C The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” § 107(3) (or, in Justice Story's words, “the quantity and value of the materials used,” Folsom v. Marsh, supra, at 348) are reasonable in relation to the purpose of the copying. Here, attention turns to the persuasiveness of a parodist's justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the extent of permissible copying varies with the purpose and character of the use. * * * The facts bearing on this factor will also tend to address the fourth, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives. * * * The District Court considered the song's parodic purpose in finding that 2 Live Crew had not helped themselves overmuch. * * * The Court of Appeals disagreed, stating that “[w]hile it may not be inappropriate to find that no more was taken than necessary, the copying was qualitatively substantial.... We conclude that taking the heart of the original and making it the heart of a new work was to purloin a substantial portion of the essence of the original.” * * * The Court of Appeals is of course correct that this factor calls for thought not only about the quantity of the materials used, but about their quality and importance, too. In Harper & Row, for example, the Nation had taken only some 300 words out of President Ford's memoirs, but we signaled the significance of the quotations in finding them to amount to “the heart of the book,” the part most likely to be newsworthy and important in licensing serialization. * * * We also agree with the Court of Appeals that whether “a substantial portion of the infringing work was copied verbatim” from the copyrighted work is a relevant question, * * * for it may reveal a dearth of transformative character or purpose under the first factor, or a greater likelihood of market harm under the fourth; a work composed primarily of an original, particularly its heart, with little added or changed, is more likely to be a merely superseding use, fulfilling demand for the original.",769
https://yalelawtech.org/wp-content/uploads/2011/09/campbell-v-acuff-rose-music.pdf,CAMPBELL v. ACUFF-ROSE MUSIC,5,"Fair Use: Remix, Reimagine, Reuse",Class 8,"Where we part company with the court below is in applying these guides to parody, and in particular to parody in the song before us. Parody presents a difficult case. Parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable. * * * 7 What makes for this recognition is quotation of the original's most distinctive or memorable features, which the parodist can be sure the audience will know. Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the song's overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original. But using some characteristic features cannot be avoided. We think the Court of Appeals was insufficiently appreciative of parody's need for the recognizable sight or sound when it ruled 2 Live Crew's use unreasonable as a matter of law. It is true, of course, that 2 Live Crew copied the characteristic opening bass riff (or musical phrase) of the original, and true that the words of the first line copy the Orbison lyrics. But if quotation of the opening riff and the first line may be said to go to the “heart” of the original, the heart is also what most readily conjures up the song for parody, and it is the heart at which parody takes aim. Copying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart. If 2 Live Crew had copied a significantly less memorable part of the original, it is difficult to see how its parodic character would have come through. * * * This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free. In parody, as in news reporting, see Harper & Row, supra, context is everything, and the question of fairness asks what else the parodist did besides go to the heart of the original. It is significant that 2 Live Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends. 2 Live Crew not only copied the bass riff and repeated it, but also produced otherwise distinctive sounds, interposing “scraper” noise, overlaying the music with solos in different keys, and altering the drum beat. * * * This is not a case, then, where “a substantial portion” of the parody itself is composed of a “verbatim” copying of the original. It is not, that is, a case where the parody is so insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against the parodists. Suffice it to say here that, as to the lyrics, we think the Court of Appeals correctly suggested that “no more was taken than necessary,” * * * but just for that reason, we fail to see how the copying can be excessive in relation to its parodic purpose, even if the portion taken is the original's “heart.” As to the music, we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song's parodic purpose and character, its transformative elements, and considerations of the potential for market substitution sketched more fully below.",626
https://yalelawtech.org/wp-content/uploads/2011/09/campbell-v-acuff-rose-music.pdf,CAMPBELL v. ACUFF-ROSE MUSIC,6,"Fair Use: Remix, Reimagine, Reuse",Class 8,"D The fourth fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.” § 107(4). It requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market” for the original. * * * The enquiry “must take account not only of harm to the original but also of 8 harm to the market for derivative works.” * * * Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets. In moving for summary judgment, 2 Live Crew left themselves at just such a disadvantage when they failed to address the effect on the market for rap derivatives, and confined themselves to uncontroverted submissions that there was no likely effect on the market for the original. They did not, however, thereby subject themselves to the evidentiary presumption applied by the Court of Appeals. In assessing the likelihood of significant market harm, the Court of Appeals quoted from language in Sony that “ ‘[i]f the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.’ ” * * * The court reasoned that because “the use of the copyrighted work is wholly commercial, ... we presume that a likelihood of future harm to Acuff-Rose exists.” * * * In so doing, the court resolved the fourth factor against 2 Live Crew, just as it had the first, by applying a presumption about the effect of commercial use, a presumption which as applied here we hold to be error. No “presumption” or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes. Sony's discussion of a presumption contrasts a context of verbatim copying of the original in its entirety for commercial purposes, with the noncommercial context of Sony itself (home copying of television programming). In the former circumstances, what Sony said simply makes common sense: when a commercial use amounts to mere duplication of the entirety of an original, it clearly “supersede[s] the objects” * * * of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur. * * * But when, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred. Indeed, as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it (“supersed[ing] [its] objects”). * * * We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because “parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,” * * * the role of the courts is to distinguish between “[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.” * * * This distinction between potentially remediable displacement and unremediable disparagement is reflected in the rule that there is no protectible derivative market for criticism. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market. “People ask ... for criticism, but they only want praise.” * * * Thus, to the extent that the opinion below may be read to have considered harm to the market for parodies of “Oh, Pretty Woman,” * * * the court erred. * * *",707
https://yalelawtech.org/wp-content/uploads/2011/09/campbell-v-acuff-rose-music.pdf,CAMPBELL v. ACUFF-ROSE MUSIC,7,"Fair Use: Remix, Reimagine, Reuse",Class 8,"In explaining why the law recognizes no derivative market for critical works, including parody, we have, of course, been speaking of the later work as if it had nothing but a critical aspect (i.e., “parody pure and simple,” supra, at 1177). But the later work may have a more complex character, with effects not only in the arena of criticism but also in protectible markets for derivative works, too. In that sort of case, the law looks beyond the criticism to the other elements of the work, as it does here. 2 Live Crew's song comprises not only parody but also rap music, and the derivative market for rap music is a proper focus of enquiry. * * * Evidence of substantial harm to it would weigh against a finding of fair use, because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U.S.C. § 106(2) (copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market. Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original, neither they, nor Acuff-Rose, introduced evidence or affidavits addressing the likely effect of 2 Live Crew's parodic rap song on the market for a nonparody, rap version of “Oh, Pretty Woman.” And while Acuff-Rose would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of “Oh, Pretty Woman” and another rap group sought a license to record a rap derivative, there was no evidence that a potential rap market was harmed in any way by 2 Live Crew's parody, rap version. The fact that 2 Live Crew's parody sold as part of a collection of rap songs says very little about the parody's effect on a market for a rap version of the original, either of the music alone or of the music with its lyrics. The District Court essentially passed on this issue, observing that Acuff-Rose is free to record “whatever version of the original it desires,” * * * the Court of Appeals went the other way by erroneous presumption. Contrary to each treatment, it is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary hole will doubtless be plugged on remand. III It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of “Oh, Pretty Woman” rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.",567
https://yalelawtech.org/wp-content/uploads/2011/09/campbell-v-acuff-rose-music.pdf,CAMPBELL v. ACUFF-ROSE MUSIC,8,"Fair Use: Remix, Reimagine, Reuse",Class 8,"APPENDIX A TO OPINION OF THE COURT “Oh, Pretty Woman” by Roy Orbison and William Dees Pretty Woman, walking down the street, Pretty Woman, the kind I like to meet, Pretty Woman, I don't believe you, you're not the truth, No one could look as good as you Mercy Pretty Woman, won't you pardon me, Pretty Woman, I couldn't help but see, Pretty Woman, that you look lovely as can be Are you lonely just like me? Pretty Woman, stop a while, Pretty Woman, talk a while, Pretty Woman give your smile to me Pretty Woman, yeah, yeah, yeah Pretty Woman, look my way, Pretty Woman, say you'll stay with me 'Cause I need you, I'll treat you right Come to me baby, Be mine tonight Pretty Woman, don't walk on by, Pretty Woman, don't make me cry, Pretty Woman, don't walk away, Hey, O.K. If that's the way it must be, O.K. I guess I'll go on home, it's late There'll be tomorrow night, but wait! What do I see Is she walking back to me? Yeah, she's walking back to me! Oh, Pretty Woman. APPENDIX B TO OPINION OF THE COURT “Pretty Woman” as Recorded by 2 Live Crew Pretty woman walkin' down the street Pretty woman girl you look so sweet Pretty woman you bring me down to that knee Pretty woman you make me wanna beg please Oh, pretty woman Big hairy woman you need to shave that stuff Big hairy woman you know I bet it's tough 11 Big hairy woman all that hair it ain't legit 'Cause you look like ‘Cousin It’ Big hairy woman Bald headed woman girl your hair won't grow Bald headed woman you got a teeny weeny afro Bald headed woman you know your hair could look nice Bald headed woman first you got to roll it with rice Bald headed woman here, let me get this hunk of biz for ya Ya know what I'm saying you look better than rice a roni Oh bald headed woman Big hairy woman come on in And don't forget your bald headed friend Hey pretty woman let the boys Jump in Two timin' woman girl you know you ain't right Two timin' woman you's out with my boy last night Two timin' woman that takes a load off my mind Two timin' woman now I know the baby ain't mine Oh, two timin' woman Oh pretty woman",405
https://yalelawtech.org/wp-content/uploads/2009/09/harrypottercase.pdf,WARNER BROS. ENTERTAINMENT INC. and J.K. ROWLING,1,Fair use and the DMCA,Class 7,"II. The Allegedly Infringing Work Defendant RDR Books is a Michigan-based publishing company that seeks to publish a book entitled “The Lexicon,” the subject of this lawsuit. (Tr. (Rapoport) at 150:19-151:2.) Steven Vander Ark, a former library media specialist at a middle school in Michigan (Tr. (Vander Ark) at 248:4-6), is the attributed author of the Lexicon (Def. Ex. 502 (Vander Ark Decl.) at ¶ 1). He is also the originator, owner, and operator of “The Harry Potter Lexicon” website (id.), a popular Harry Potter fan site from which the content of the Lexicon is drawn (id. at ¶ 30). A. The Origins of the Lexicon An immediate fan of the Harry Potter novels, Vander Ark began taking personal notes to keep track of the details and elements that unfold in the Harry Potter world while reading the second book in the series in 1999. (Tr. (Vander Ark) at 335:2-17.) After joining an online discussion group about the Harry Potter books, Vander Ark expanded 6 his notes to include descriptive lists of the spells, characters, and fictional objects in Harry Potter to share with fellow fans. (Id. at 335:20-336:9.) These lists included brief descriptions or definitions of the terms. (Id. at 336:8-11.) Vander Ark began work on his website, “The Harry Potter Lexicon” (the “website” or “Lexicon website”), in 1999 and opened the website in 2000. (Id. at 336:23.) His purpose in establishing the website was to create an encyclopedia that collected and organized information from the Harry Potter books in one central source for fans to use for reference. (Id. at 338:6-21; Def. Ex. 502 (Vander Ark Decl.) at ¶ 13.) At its launch, the website featured Vander Ark’s descriptive lists of spells, characters, creatures, and magical items from Harry Potter with hyperlinks to cross-referenced entries. (Tr. (Vander Ark) at 337:7-10, 336:4-7.) In response to feedback from users of the website, Vander Ark developed an A-to-Z index to each list to allow users to search for entries alphabetically. (Id. at 343:2-21.) The website presently features several indexed lists of people, places, and things from Harry Potter, including the “Encyclopedia of Spells,” “Encyclopedia of Potions,” “Wizards, Witches, and Beings,” “The Bestiary,” and “Gazetteer of the Wizarding World.” (Pl. Exs. 14 (Bradley Decl.) at ¶ 5, 14C.) In addition to these reference features, the website contains a variety of supplemental material pertaining to Harry Potter, including fan art, commentary, essays, timelines, forums, and interactive data. (Pl. Exs. 14 (Bradley Decl.) at ¶ 3, 14A.) The website is currently run by a staff of seven or eight volunteers, including four primary editors (Tr. (Vander Ark) at 340:14-16), all of whom were recruited to help update and expand the website’s content after the publication of the fifth book in the Harry Potter series. (Id. at 339:18-340:24.) The website uses 7 minimal advertising to offset the costs of operation. (Id. at 349:24-350:10.) Use of the website is free and unrestricted. (Id. at 293:8-12; 351:25-352:4.) The content of the encyclopedia entries on the Lexicon website is drawn primarily from the Harry Potter series, the companion books, “The Daily Prophet” newsletters, the “Famous Wizard Cards,” and published interviews of Rowling. (Tr. (Vander Ark) at 348:7-13; Def. Ex. 502 (Vander Ark Decl.) at ¶ 14). According to Vander Ark, some additional content is drawn from outside reference sources, including Bullfinch’s Mythology, Field Guide to Little People, New Shorter Oxford English Dictionary, and online encyclopedias such as Encyclopedia Mythica. (Tr. (Vander Ark) at 346:12- 348:19; Def. Ex. 502 (Vander Ark Decl.) at ¶ 14.) Frequently, these sources are not cited in the website’s encyclopedia entries. Vander Ark’s purpose in including additional information from outside sources or from his own knowledge was to enrich the experience of readers of the Harry Potter series by illuminating “the incredibly rich world and hidden meanings” contained within them. (Tr. (Vander Ark) at 345:21-346:6.) Vander Ark has received positive feedback, including from Rowling and her publishers, about the value of the Lexicon website as a reference source. In May 2004, Vander Ark read a remark by Rowling posted on her website praising his Lexicon website as follows: “This is such a great site that I have been known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing). A website for the dangerously obsessive; my natural home.” (Tr. (Rowling) at 118:2-119:2). In July 2005, Vander Ark received a note from Cheryl Klein, a Senior Editor at Scholastic Inc., American publisher of the Harry Potter series, thanking him and his staff “for the wonderful resource [his] site 8 provides for fans, students, and indeed editors & copyeditors of the Harry Potter series,” who “referred to the Lexicon countless times during the editing of [the sixth book in the series], whether to verify a fact, check a timeline, or get a chapter & book reference for a particular event.” (Def. Ex. 502 (Vander Ark Decl.) at ¶ 39; Def. Ex. 502A.) In September 2006, Vander Ark was invited by Warner Brothers to the set of the film The Order of the Phoenix, where he met David Heyman, the producer of all the Harry Potter films. Heyman told Vander Ark that Warner Brothers used the Lexicon website almost every day.2 (Tr. 386:8-20; Def. Ex. 502 (Vander Ark Decl.) ¶ 39.) Finally, in July 2007, Vander Ark visited the studios of Electronic Arts, the licensed producer of the Harry Potter video games, where he observed printed pages from the Lexicon covering the walls of the studio. (Tr. at 387:3-13; Def. Ex. 502 (Vander Ark Decl.) ¶ 39.) Prior to any discussions with RDR Books about publishing portions of the Lexicon website as a book, Vander Ark was aware of Rowling’s public statements regarding her intention to write a Harry Potter encyclopedia upon completion of the seventh book in the series. (Tr. (Vander Ark) at 247:10-12, 250:21-251:13; Def. Ex. 502 at ¶ 37.) In June 2007, just before the release of the seventh book, Vander Ark emailed Christopher Little Literary Agency, Rowling’s literary agent in the United Kingdom, and suggested that he would be “a good candidate for work as an editor, given [his] work on the Lexicon,” should Rowling start working on an encyclopedia or other reference to the Harry Potter series. (Pl. Ex. 12C.) The literary agency advised him that Rowling intended to work alone and did not require a collaborator. (Tr. (Vander Ark) at 250:14- 20; Pl. Ex. 12 (Blair Decl.) at ¶ 12; Pl. Ex. 12C.)",1091
https://yalelawtech.org/wp-content/uploads/2009/09/harrypottercase.pdf,WARNER BROS. ENTERTAINMENT INC. and J.K. ROWLING,2,Fair use and the DMCA,Class 7,"B. RDR Books’ Acquisition and Marketing of the Lexicon Roger Rapoport is the president of Defendant RDR Books. Rapoport learned of Vander Ark and the Lexicon website when he read an article in his local newspaper dated July 23, 2007, profiling Vander Ark as a well known figure within the Harry Potter fan community and the proprietor of the Lexicon website who “holds the key to all things ‘Harry Potter.’” (Tr. (Rapoport) at 153:2-154:15; Pl. Ex. 77.) Recognizing a publishing opportunity, Rapoport contacted Vander Ark on August 6, 2007 about the possibility of publishing a Harry Potter encyclopedia based on some of the materials from the Lexicon website. (Tr. (Vander Ark) at 357:10-19.) Rapoport denies seeing any coverage by national news outlets of Rowling’s appearance on NBC’s Today Show on July 25, 2007 (Tr. (Rapoport) at 156:10-158:4), where Rowling stated that she intended to write a Harry Potter encyclopedia. (Def. Ex. 506a; Tr. (Rapoport) at 155:20-156:5.) At his first meeting with Rapoport in August 2007, Vander Ark raised his concerns regarding the permissibility of publishing the Lexicon in view of Rowling’s plan to publish an encyclopedia and her copyrights in the Harry Potter books. (Tr. (Vander Ark) at 251:14-22, 358:2-4). Prior to August 2007, Vander Ark had developed and circulated the opinion that publishing “any book that is a guide to [the Harry Potter] world” would be a violation of Rowling’s intellectual property rights. (Pl. Ex. 20 (Lares Decl.) at ¶ 3, Pl. Ex. 21 (Lawliss Decl.) at ¶ 3); see also Tr. (Vander Ark) at 251:20-22.) Vander Ark had even stated on a public internet newsgroup that he would not publish the Lexicon “in any form except online” without permission because Rowling, not he, was 10 “entitled to that market.” (Pl. Ex. 27 (Blumsack Corrected Supp. Decl.) at ¶ 12; Pl. Ex. 27G). Vander Ark changed his mind about publishing the Lexicon after Rapoport reassured him that he had looked into the legal issue and determined that publication of content from the Lexicon website in book form was legal. (Tr. (Vander Ark) at 357:10- 359:5.) Rapoport agreed to stand by this opinion by adding an atypical clause to the publishing contract providing that RDR would defend and indemnify Vander Ark in the event of any lawsuits. (Tr. (Vander Ark) 359:6-10, 360:8-21; Def. Ex. 502 (Vander Ark Decl.) at ¶ 28; Pl. Ex. 14J.) Rapoport and Vander Ark agreed that the content of the book would be limited to the encyclopedia sections of the Lexicon website that presented descriptions of the persons, places, spells, and creatures from the Harry Potter works. (Tr. (Vander Ark) at 359:14-21; Def. Ex. 502 (Vander Ark Decl.) at ¶ 28.) They conceived of the book as an encyclopedia organized in the A-to-Z format, rather than by topic as the Lexicon website is organized, to allow the user to find information as quickly as possible. (Tr. (Vander Ark) at 366:25-367:24.) The idea was to publish the first complete guide to the Harry Potter series that included information from the seventh and final Harry Potter novel. (Id. at 361:12-24.) Vander Ark believed that there was an advantage to being the first reference guide on the market to cover all seven Harry Potter books. (Id. at 255:7-14, 361:9-15). He also believed that by virtue of it completeness, the Lexicon would be most useful for the purpose it sought to serve, namely helping readers and fans to find information from the Harry Potter novels. (Id. at 361:17-362:6.) RDR Books intended to have a manuscript of the Lexicon completed within twoto-three weeks of execution of the publishing contract. (Tr. (Vander Ark) at 255:15-18.) 11 The plan was to rush the book to market by late-October 2007, in part, to capitalize on the interest generated by the last Harry Potter book and the surge in sales during the holiday season. (Tr. (Rapoport) at 165:14-165:21, 167:10-17.) RDR Books initially planned a print-run of 10,000 copies of the Lexicon, but would undertake subsequent print-runs if the book was successful. (Tr. at (Rapoport) 238:22-239:20.) Even before his initial meeting with Vander Ark, Rapoport began working to secure foreign publishers for the proposed Lexicon project and had contacted Methuen Publishing in the United Kingdom to gauge their interest in doing such a project. (Tr. (Rapoport) at 160:18-161:18.) He marketed the Lexicon to foreign publishers, as well as to U.S. bookstores and book sellers, as the “definitive” Harry Potter encyclopedia. (Tr. (Rapoport) at 160:18-161:15, 213:5-214:4; Tr. (Vander Ark) at 361:9-16; see also Pl. Exs. 114, 117.) Some of Rapoport’s marketing communications mischaracterized Rowling’s statements about the Lexicon website, giving the impression that she supported the publication of the Lexicon book. (Tr. at (Rapoport) 175:2-176:5; Pl. Ex. 89.) One marketing flyer for the Lexicon prominently displayed Rowling’s 2004 statement praising the Lexicon website. (Tr. (Rapoport) at 171:3-6; Pl. Ex. 14 (Bradley Decl.) at ¶ 17; Pl. Ex. 22 (Murphy Decl.) at ¶ 15; Pl. Ex. 22A). As a result of Rapoport’s marketing efforts, RDR Books secured oral contracts with foreign publishers for rights to the Lexicon in England, Canada, France, Australia, New Zealand, and China, and an order from Borders bookstore3 in the United States. (Tr. (Rapoport) at 187:2-11; 240:15- 241:4; Pl. Ex. 137).",867
https://yalelawtech.org/wp-content/uploads/2009/09/harrypottercase.pdf,WARNER BROS. ENTERTAINMENT INC. and J.K. ROWLING,3,Fair use and the DMCA,Class 7,"C. Plaintiffs’ Objections to Publication of the Lexicon Rowling’s literary agent, Neil Blair of the Christopher Little Literary Agency, first learned of the Lexicon book when he saw an advertisement on www.PublishersMarketplace.com announcing that RDR Books would be publishing the Lexicon, scheduled for release in late October 2007. (Pl. Exs. 12 (Blair Decl.) at ¶ 14, 12D). On September 18, 2007, counsel for Rowling and Warner Brothers forwarded a letter to Vander Ark by email, copying Rapoport, notifying them that the Lexicon appeared to infringe Rowling’s copyrights and requesting that RDR Books cease publication of the book. (Tr. at (Rapoport) 190:7-13; Pl. Ex. 15 at ¶ 3). Rapoport replied to Plaintiffs’ counsel that he intended to study the various issues with RDR Books’ legal advisers (Pl. Ex. 15 (Cendali Decl.) at ¶ 5) and that his work had been interrupted by personal circumstances (id. ¶ 7). Meanwhile he continued to market the Lexicon book domestically and abroad. (Tr. (Rapoport) at 193:2-25, 194:4-14, 208:3-17; Pl. Exs. 110- 130, 133-140.) On October 3, 2007, after receiving no substantive response from RDR Books, Plaintiffs’ counsel wrote again to Rapoport emphasizing their clients’ concerns and asking for a prompt substantive response. (Pl. Ex. 15 (Cendali Decl.) at ¶ 6.) On October 5, 2007, when pitching the Lexicon to a Brazilian publisher, Rapoport asked for confirmation that the agent would not speak with the local publisher of the Harry Potter novels about the Lexicon. (Pl. Ex. 120.) On October 8, 2007, despite having received a cease-and-desist letter and a subsequent letter from Plaintiffs’ counsel, Rapoport told a German publisher who raised copyright concerns that a lawsuit was unlikely. (Tr. (Rapoport) at 198:6-19; Pl. Ex. 121.) 13 On October 11, 2007, RDR Books sent the chairman of Warner Brothers a ceaseand-desist letter claiming that Warner Brothers had violated Vander Ark’s rights in the “Hogwarts Timeline” of events from the Harry Potter novels that was featured on the Lexicon website. (Pl. Ex. 14 (Bradley Decl.) at ¶ 12; Pl. Ex. 14H). RDR Books also stated that it was seeking “tangible rewards” for Vander Ark in exchange for Warner Brothers’ purported use of the timeline as an extra feature of the DVD versions of the first three Harry Potter films. (Id.) On October 19, 2007, Warner Brothers responded to RDR Books’ letter regarding the timeline with a request for a copy of the “print version” of the Lexicon website referred to by RDR Books to aid its evaluation of any potential claims. (Pl. Ex. 15 (Cendali Decl.) at ¶¶ 8-9). RDR Books refused, stating that Warner Brothers could print the material from the Lexicon website. (Tr. (Rapoport) at 205:21- 206:13; Pl. Ex. 15 (Cendali Decl.) at ¶ 9.) On October 19 and 24, 2007, Plaintiffs’ counsel sent two more letters to RDR Books, asking for a substantive response to their clients’ concerns regarding the Lexicon and for confirmation that RDR Books would not publish the Lexicon until it attempted to resolve the matter in good faith. (Pl. Ex. 15 (Cendali Decl.) at ¶¶ 9, 11.) RDR Books’ responses deflected the inquiries (id. ¶ 10) and stated that Plaintiffs’ objections were “unwarranted” (id. ¶ 12). On October 31, 2007, Plaintiffs called Rapoport to offer a last chance to agree to cease publication, or at least delay publication, and to provide Plaintiffs with a copy of the manuscript and proposed cover, in effort to resolve the matter. (Id. ¶ 13.) RDR refused to delay publication and refused to provide a copy of the manuscript. (Id.) Plaintiffs filed suit on October 31, 2007, at which time they also moved by order to show cause for a preliminary injunction. (Id. ¶ 13; Compl.) 14 Since the filing of this lawsuit, RDR Books has revised the front and back covers of the Lexicon. Specifically, RDR Books removed the quotation of Rowling’s 2004 statement about her use of the Lexicon website from the back cover of the Lexicon after Plaintiffs presented a survey in this litigation demonstrating that 38% of respondents believed that the appearance of the quote on the proposed book cover meant that Rowling endorsed the book. (Tr. (Rapoport) at 237:6-13; Pl. Ex. 13C (Blumsack Decl.); Pl. Ex. 16 (Helfgott Decl.) at ¶ 2). RDR Books changed the title from “The Harry Potter Lexicon” to “The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials.” Additionally, the final revision of the front cover of the Lexicon displays the following disclaimer: Harry Potter and the names of fictitious people and places in the Harry Potter novels are trademarks of Warner Bros. Entertainment, Inc. This book is not written, prepared, approved, or licensed by Warner Bros. Entertainment, Inc., Scholastic Corporation, Raincoast Books, Bloomsbury Publishing Plc, or J.K. Rowling, nor is the author, his staff members, www.HP-Lexicon.org or the publisher in any way affiliated with Warner Bros. Entertainment, Inc., Scholastic Corporation, Raincoast Books, Bloomsbury Publishing Plc, J.K. Rowling, or any other person or company claiming an interest in the Harry Potter works. (Def. Ex. 501a.) RDR Books maintains, however, that the original cover was truthful and did not infringe any rights of Plaintiffs. (Def. Ex. 501 (Rapoport Decl.) at ¶ 6.)",858
https://yalelawtech.org/wp-content/uploads/2009/09/harrypottercase.pdf,WARNER BROS. ENTERTAINMENT INC. and J.K. ROWLING,4,Fair use and the DMCA,Class 7,"D. The Content of the Lexicon The Lexicon is an A-to-Z guide to the creatures, characters, objects, events, and places that exist in the world of Harry Potter. As received by the Court in evidence, the Lexicon manuscript is more than 400 type-written pages long and contains 2,437 entries organized alphabetically. The first few pages contain a list of abbreviations used throughout the Lexicon to cite to the original sources of the material. 15 The Lexicon manuscript was created using the encyclopedia entries from the Lexicon website. (Tr. (Vander Ark) at 365:1-5; Def. Ex. 502 (Vander Ark Decl.) ¶30.) Because of space limitations for the printed work, which seeks to be complete but also easy to use, about half of the material from the website was not included in the Lexicon manuscript. (Tr. 365:1-11, 366:9-18; Def. Ex. 502 (Vander Ark Decl.) ¶¶ 30, 31, 33.) The Lexicon itself makes clear that the only source of its content is the work of J.K. Rowling. The first page of the Lexicon manuscript states: “All the information in the Harry Potter Lexicon comes from J.K. Rowling, either in the novels, the ‘schoolbooks,’ from her interviews, or from material which she developed or wrote herself.” (Pl. Ex. 1 at 1). While Vander Ark claims that the Lexicon uses material from outside reference sources, such as Bullfinch’s Mythology, Field Guide to Little People, New Shorter Oxford English Dictionary, and online encyclopedias (Tr. (Vander Ark) at 346:12- 348:19; Def. Ex. 502 (Vander Ark Decl.) at ¶ 14), it is not possible to confirm this claim because, aside from four dictionary citations, no other citations to third-party works appear in the Lexicon. (Tr. (Vander Ark) at 295:13-296:13). The Lexicon entries cull every item and character that appears in the Harry Potter works, no matter if it plays a significant or insignificant role in the story. The entries cover every spell (e.g., Expecto Patronum, Expelliarmus, and Incendio), potion (e.g., Love Potion, Felix Felicis, and Draught of Living Death), magical item or device (e.g., Deathly Hallows, Horcrux, Cloak of Invisibility), form of magic (e.g., Legilimency, Occlumency, and the Dark Arts), creature (e.g., Blast-Ended Skrewt, Dementors, and Blood-Sucking Bugbears), character (e.g., Harry Potter, Hagrid, and Lord Voldemort), group or force (e.g., Aurors, Dumbledore’s Army, Death Eaters), invented game (e.g., 16 Quidditch), and imaginary place (e.g., Hogwarts School of Witchcraft and Wizardry, Diagon Alley, and the Ministry of Magic) that appear in the Harry Potter works. The Lexicon also contains entries for items that are not explicitly named in the Harry Potter works but which Vander Ark has identified, such as medical magic, candle magic, wizard space, wizard clothing, and remorse. Some of the entries describe places or things that exist in the real world but also have a place in the Harry Potter works, such as moors, Greece, and Cornwall. Each entry, with the exception of the shortest ones, gathers and synthesizes pieces of information relating to its subject that appear scattered across the Harry Potter novels, the companion books, The Daily Prophet newsletters, Famous Wizard Cards, and published interviews of Rowling. The types of information contained in the entries include descriptions of the subject’s attributes, role in the story, relationship to other characters or things, and events involving the subject. Repositories of such information, the entries seek to give as complete a picture as possible of each item or character in the Harry Potter world, many of which appear only sporadically throughout the series or in various sources of Harry Potter material. The snippets of information in the entries are generally followed by citations in parentheses that indicate where they were found within the corpus of the Harry Potter works. The thoroughness of the Lexicon’s citation, however, is not consistent; some entries contain very few citations in relation to the amount material provided. (See, e.g., Pl. Ex. 1, entry for “Dumbledore, Albus Percival Wulfric Brian” (containing no citations in a five-page entry); entry for “Granger, Hermione Jean” (containing no citations in a three-page entry); entry for “Chamber of Secrets” (containing one citation for nearly two 17 pages of material); entry for “Crouch, Bartemius ‘Barty’, Sr.” (containing one citation for nearly a full page of material).) When the Lexicon cites to one of the seven Harry Potter novels, the citation provides only the book and chapter number. Vander Ark explained that page numbers were excluded from the citations because the various editions of the Harry Potter books have different pagination, but the chapter numbers remain consistent. (Tr. (Vander Ark) at 277:19-278:1.) The Lexicon neither assigns a letter to each edition nor specifies a standard edition while providing a conversion table for other editions, practices which Plaintiffs’ expert Jeri Johnson testified were common for reference guides. (Tr. (Johnson) at 594:11-16, 594:20-595:3.) While not its primary purpose, the Lexicon includes commentary and background information from outside knowledge on occasion. For example, the Lexicon contains sporadic etymological references, (e.g., Pl. Ex. 1, entries for “Colloportus,” “Lupin, Remus,” “Alohamora,” “Fidelius Charm”), analogies to characters outside the Harry Potter world such as Merlin, and observations of Rowling’s allusions to other works of literature such as “the weird sisters” from Shakespeare’s Macbeth. The Lexicon also points to the very few “flints,” or errors in the continuity of the story, that appear in the Harry Potter series. (See Tr. (Vander Ark) at 297:15-298:4.)",886
https://yalelawtech.org/wp-content/uploads/2009/09/harrypottercase.pdf,WARNER BROS. ENTERTAINMENT INC. and J.K. ROWLING,5,Fair use and the DMCA,Class 7,"While there was considerable opining at trial as to the type of reference work the Lexicon purports to be and whether it qualifies as such (no doubt in part due to its title), the Lexicon fits in the narrow genre of non-fiction reference guides to fictional works. As Defendant’s expert testified, the Harry Potter series is a multi-volume work of fantasy literature, similar to the works of J.R.R. Tolkien and C.S. Lewis. Such works lend themselves to companion guides or reference works because they reveal an elaborate 18 imaginary world over thousands of pages, involving many characters, creatures, and magical objects that appear and reappear across thousands of pages. (Tr. (Sorensen) at 504:16-23; id. at 507:1-5 (testifying that she found 19 or 20 companion guides to J.R.R. Tolkien’s works, and about 15 guides to C.S. Lewis’s works).) Fantasy literature spawns books having a wide variety of purposes and formats, as demonstrated by the books about Harry Potter that Plaintiffs entered into evidence. (Pl. Exs. 73, 74, 75, 192; 13E-13G.) The Lexicon, an A-to-Z guide which synthesizes information from the series and generally provides citations for location of that information rather than offering commentary, is most comparable to the comprehensive work of Paul F. Ford, Companion to Narnia: A Complete Guide to the Magical World of C.S. Lewis’s The Chronicles of Narnia (Pl. Ex. 62), or the unauthorized A-to-Z guide by George W. Beahm, Fact, Fiction, and Folklore in Harry Potter’s World: An Unofficial Guide (Pl. Ex. 192).4 At trial, Rowling testified that the Lexicon took “all the highlights of [her] work, in other words [her] characters’ secret history, the jokes certainly, certain exciting narrative twists, all the things that are the highlights of [her] stories.” (Tr. (Rowling) at 647:6-10). She compared this taking of her work to plundering all of the “plums in [her] cake.” (Tr. (Rowling) at 647:3-6). At trial, the testimony of Rowling and the expert opinion of Johnson focused at length on the Lexicon’s verbatim copying of language from the Harry Potter works. Johnson testified that in particular, entries that deal with invented terms, creatures, places and things from the Harry Potter books use “again and 4 The Companion to Narnia, however, is far more erudite and informative than the Lexicon. The Harry Potter guide by Beahm does not provide citations for the sources of its information and is less comprehensive than the Lexicon in that it covers only certain categories of information (e.g., Fabulous Beasts, Wizards, Magical Spells, etc.). 19 again the specific, very colorful, idiosyncratic . . . nouns and phrases of Ms. Rowling.” (Tr. (Johnson) at 619:7-9.) Although it is difficult to quantify how much of the language in the Lexicon is directly lifted from the Harry Potter novels and companion books,5 the Lexicon indeed contains at least a troubling amount of direct quotation or close paraphrasing of Rowling’s original language.6 The Lexicon occasionally uses quotation marks to indicate Rowling’s language, but more often the original language is copied without quotation marks, often making it difficult to know which words are Rowling’s and which are Vander Ark’s. (Tr. (Rowling) at 57:6-15, 58:24-59:12, 59:19-60:2; Tr. (Johnson) at 619:3-12.) For example, in the entry for “armor, goblin made,” the Lexicon uses Rowling’s poetic language nearly verbatim without quotation marks.7 The original language from Harry Potter and the Deathly Hallows reads: “Muggle-borns,” he said. “Goblin-made armour does not require cleaning, simple girl. Goblins’ silver repels mundane dirt, imbibing only that which strengthens it.” (Pl. Ex. 10 at 303.)8 The Lexicon entry for “armor, goblin made” reads in its entirety: 5 Rowling went so far as to say that “if Mr. Vander Ark had put quotation marks around everything he has lifted, most of the Lexicon would be in quotation marks.” (Tr. (Rowling) at 64:19-21.) 6 Some of the most extensive direct quotation occurs where the Lexicon reproduces a song or poem that appears in the novels, such as the “Hogwarts’ School Song,” the Sorting Hat Song, and the poem, “His Eyes are as Green as a Fresh Pickled Toad.” (Pl. Ex. 11 (Birchall Decl.) at ¶ 8, Pl. Ex. 11E-11G.) During his testimony at trial, Vander Ark conceded that these entries took too much and offered to remove the poems and songs from the Lexicon. (Tr. (Vander Ark) at 397:1-3.) In its post-trial brief, Defendant acknowledged this testimony (Def. Post-trial Br. ¶ 51, at 17), but did not confirm that Vander Ark’s proposal would be adopted by RDR Books. 7 Italics are used in the block quotations to highlight the original language that is copied or paraphrased. The italics do not appear in the originals. 8 Having determined that the charts introduced by Plaintiffs (Pl. Exs. 47, 48, 43, and 44) do not consistently represent the language from the Lexicon with accuracy, the Court relies not on the charts but on the underlying texts themselves for its comparisons. 20 Some armor in the wizarding world is made by goblins, and it is quite valuable. (e.g.,HBP20) According to Phineas Nigellus, goblin-made armor does not require cleaning, because goblins’ silver repels mundane dirt, imbibing only that which strengthens it, such as basilisk venom. In this context, “armor” also includes blades such as swords. Although the Lexicon entry introduces Rowling’s language with the phrase, “According to Phineas Nigellus,” it does not use quotation marks.",884
https://yalelawtech.org/wp-content/uploads/2009/09/harrypottercase.pdf,WARNER BROS. ENTERTAINMENT INC. and J.K. ROWLING,6,Fair use and the DMCA,Class 7,"The Lexicon entry for “Dementors” reproduces Rowling’s vivid description of this creature sometimes using quotation marks and sometimes quoting or closely paraphrasing without indicating which language is original expression. The original language appears in Chapters 5 and 10 of Harry Potter and the Prisoner of Azkaban as follows: . . . Its face was completely hidden beneath its hood. . . . There was a hand protruding from the cloak and it was glistening, grayish, slimy-looking, and scabbed, like something dead that had decayed in water. . . . And then the thing beneath the hood, whatever it was, drew a long, slow, rattling breath, as though it were trying to suck something more than air from its surroundings. * * * “Dementors are among the foulest creatures to walk this earth. They infest the darkest, filthiest places, they glory in decay and despair, they drain peace, hope, and happiness out of the air around them. Even Muggles feel their presence, though they can’t see them. Get too near a dementor and every good feeling, every happy memory will be sucked out of you. If it can, the dementor will feed on you long enough to reduce you to something like itself . . . soulless and evil. . . .” (Pl. Ex. 6 at 83, 187.) The Lexicon entry for “Dementors” reads in its entirety: Dementors are some of the most terrible creatures on earth, flying tall black spectral humanoid things with flowing robes. They “infest the darkest, filthiest places, they glory in decay and despair, they drain peace, hope, and happiness out of the air around them,” according to Lupin (PA10). Dementors affect even Muggles, although Muggles can’t see the foul, black creatures. Dementors feed on positive human emotions; a large crowd is like a feast to them. They drain a wizard of his power if left 21 with them too long. They were the guards at Azkaban and made that place horrible indeed. The Ministry used Dementors as guards in its courtrooms as well (GF30, DH13). There are certain defenses one can use against Dementors, specifically the Patronus Charm. A Dementor’s breath sounds rattling and like it’s trying to suck more than air out of a room. Its hands are “glistening, grayish, slimy-looking, and scabbed”. It exudes a biting, soul-freezing cold (PA5). Another example of verbatim copying and close paraphrase can be found in the Lexicon entry for “Mirror of Erised.” The original language from Harry Potter and the Sorcerer’s Stone reads: It was a magnificent mirror, as high as the ceiling, with an ornate gold frame, standing on two clawed feet. There was an inscription carved around the top: Erised stra ehru oyt ube cafru oyt on wohsi. * * * . . . “It shows us nothing more or less than the deepest desire of our hearts. You [Harry Potter], who have never known your family, see them standing around you. Ronald Weasley, who has always been overshadowed by his brothers, sees himself standing alone, the best of all of them. However, this mirror will give us neither knowledge or truth. Men have wasted away before it, entranced by what they have seen, or been driven mad, not knowing if what it shows is real or even possible.” (Pl. Ex. 4 at 207, 213). The first paragraph of the Lexicon entry reads: A magnificent mirror, as high as a classroom ceiling, with an ornate gold frame, standing on two clawed feet. The inscription carved around the top reads “Erised stra ehru oyt ube cafru oyt on wohsi,” which is “I show you not your face but your heart’s desire” written backwards (that is, in what is called ‘mirror writing’). When you look into the mirror you see the deepest, most desperate desire of your heart. The mirror has trapped people who can’t bear to stop staring into it, unsure if what they see is going to actually happen. Harry sees his family in the Mirror; Ron sees himself as Head Boy and Quidditch champion (PS12). The Lexicon entry for “Boggart” takes strands of dialogue from Harry Potter and the Prisoner of Azkaban and closely paraphrases it in the third person. The original work contains the following bits of dialogue: “Boggarts like dark, enclosed spaces.” 22 “It’s a shape-shifter. . . . It can take the shape of whatever it thinks will frighten us most.” “Nobody knows what a boggart looks like when he is alone, but when I let him out, he will immediately become whatever each of us most fears.” (Pl. Ex. 6 at 133.) The Lexicon entry begins as follows: A shape shifter that prefers to live in dark, confined spaces, taking the form of the thing most feared by the person it encounters; nobody knows what a boggart looks like in its natural state.",802
https://yalelawtech.org/wp-content/uploads/2009/09/harrypottercase.pdf,WARNER BROS. ENTERTAINMENT INC. and J.K. ROWLING,7,Fair use and the DMCA,Class 7,"An example of particularly extensive direct quotation is found in the Lexicon entry for “Trelawney, Sibyll Patricia,” the professor of Divination at the Hogwarts School who tells two important prophecies in the story. The Lexicon not only reproduces her prophecies word-for-word in their entirety, but in doing so, reveals dramatic plot twists and how they are resolved in the series. For example, the first prophecy reads: “The one with the power to vanquish the Dark Lord approaches. . . . Born to those who have thrice defied him, born as the seventh month dies . . . and the Dark Lord will mark him as his equal, but he will have power the Dark Lord knows not . . . and either must die at the hand of the other for neither can live while the other survives. . . . The one with the power to vanquish the Dark Lord will be born as the seventh month dies. . . .” (Pl. Ex. 8 at 841 (ellipses in original).) The Lexicon entry reproduces this prophecy exactly but in italics and indented. (Pl. Ex. 1, entry for “Trelawney, Sibyll Patricia.”) The Lexicon entry continues by discussing what happens as a result of this prophecy: “Severus Snape was eavesdropping on this conversation and he reported the first part of the Prophecy to the Dark Lord. Voldemort immediately began searching for this threat, and centered his attention on the child of Lily and James Potter. (OP 37).” The entry then quotes the second prophecy, but without a citation to where it appears in the Harry Potter series. 23 A number of Lexicon entries copy Rowling’s artistic literary devices that contribute to her distinctive craft as a writer. For example, the Lexicon entry for “brain room,” uses Rowling’s evocative literary device in a very close paraphrase. The original language from Harry Potter and the Order of the Phoenix reads: For a moment it seemed suspended in midair, then it soared toward Ron, spinning as it came, and what looked like ribbons of moving images flew from it, unraveling like rolls of film. (Pl. Ex. 8 at 798.) The Lexicon entry reads in part: . . . When Summoned, the brains fly out of the tank, unspooling ribbons of thought like strips of film, which wrap themselves around the Summoner and cause quite a bit of damage (OP35). . . . The Lexicon entry for “Clankers” copies a vivid simile created by Rowling and reproduces a thought in the mind of Harry Potter as a factual statement using nearly identical wording. The original language from Harry Potter and the Deathly Hallows reads: Ron passed the bag to Griphook, and the goblin pulled out a number of small metal instruments that when shaken made a loud, ringing noise like miniature hammers on anvils. . . . . . . Harry could see [the dragon] trembling, and as they drew nearer he saw the scars made by vicious slashes across its face, and guessed that it had been taught to fear hot swords when it heard the sound of the Clankers. (Pl. Ex. 10 at 536). The Lexicon entry reads: A number of small metal instruments, which when shaken make a loud, ringing noise like tiny hammers on anvil [sic]. Anyone visiting one of the high-security vaults at Gringotts must carry one of these, shaking it to make noise. The dragon guarding those vaults has been conditioned to back away at the sound, apparently by being taught to fear hot swords whenever it hears the Clankers (DH26). 24 Similarly, the Lexicon entry for “Marchbanks, Madam Griselda” uses an artful simile from the original works to describe this character. Rowling’s language in Harry Potter and the Order of the Phoenix reads: . . . Harry thought Professor Marchbanks must be the tiny, stooped witch with a face so lined it looked as though it had been draped in cobwebs; Umbridge was speaking to her very deferentially. . . . (Pl. Ex. 8 at 710.) The Lexicon entry reads in part: . . . Madam Marchbanks in June 1996 was tiny and stooped, her face so lined it appeared draped in cobwebs. . . . The Lexicon’s close paraphrasing is not limited to the seven Harry Potter novels, but can be found in entries drawn from the companion books as well. For example, the entry for “Montrose Magpies” uses language from Quidditch Through the Ages. The original language reads: The Magpies are the most successful team in the history of the British and Irish League, which they have won thirty-two times. Twice European Champions . . . . The Magpies wear black and white robes with one magpie on the chest and another on the back. (Pl. Ex. 2 at 35-36.) The Lexicon entry reads: The most successful Quidditch team in history, which has won the British and Irish league thirty-two times and the European Cup twice. Their robes are black and white, with one magpie on the chest and another on the back (QA7). (See also Pl. Ex. 1, entry for “Woollongong Shimmy.”) The same close paraphrasing takes place in the Lexicon entries drawing from Rowling’s other companion book, Fantastic Beasts & Where to Find Them. For example, the entry for “Chinese Fireball” closely tracks the original language, which reads: 25 The only Oriental dragon. Scarlet and smooth-scaled, it has a fringe of golden spikes around its snub-snouted face and extremely protuberant eyes. The Fireball gained its name for the mushroom-shaped flame that bursts from its nostrils when it is angered. . . . Eggs are a vivid crimson speckled with gold. . . . (Pl. Ex. 3 at 11.) The Lexicon entry reads: A species of dragon native to China. The Fireball is a scarlet dragon with golden spikes around its face and protruding eyes. The blast of flame from a fireball forms a distinctive mushroom shape. Eggs of a Fireball are vivid crimson, flecked with gold (FB).",992
https://yalelawtech.org/wp-content/uploads/2009/09/harrypottercase.pdf,WARNER BROS. ENTERTAINMENT INC. and J.K. ROWLING,8,Fair use and the DMCA,Class 7,"Instances of such verbatim copying or close paraphrasing of language in the Harry Potter works occur throughout the Lexicon. (See, e.g., Pl. Ex. 1, entries for “Apparition,” “Bubtotuber,” “Pince, Madam Irma,” “Twycross, Wilkie,” “Lovegood, Luna,” “thirdfloor corridor,” “Slytherin common room.”) Rowling provides numerous examples in Plaintiffs’ Exhibit 47, “a chart [she] made to show what [she] felt was the constant pilfering of [her] work.” (Tr. (Rowling) at 57:23-24.) Aside from verbatim copying, another factual issue of contention at trial was the Lexicon entries that contain summaries of certain scenes or key events in the Harry Potter series. Most frequently, these are the longer entries that describe important objects, such as the “Deathly Hallows,” or momentous events, such as the “Triwizard Tournament,” or that trace the development of an important character, such as Harry Potter, Lord Voldemort, Severus Snape, and Albus Dumbledore. Plaintiffs’ expert testified at length that in her opinion these entries constitute “plot summaries,” (Tr. (Johnson) at 592:14-22, 611:13-22, 623:4-624:11), while Defendant’s expert characterized them as character studies or analysis. 26 Neither of these characterizations is exactly apt. Without endorsing one characterization or another, such entries in the Lexicon do encapsulate elements of the very elaborate and wide ranging plot (sometimes in chronological order, sometimes not) confined to the subject of the entry. In the entries for significant characters, these plot elements are occasionally used to support an observation about the character’s nature or development. For instance, the three-and-a-half page entry for “Lovegood, Luna” contains the following paragraph: Luna came into her own during her sixth year at Hogwarts. With Harry, Ron, and Hermione gone from school, she joined Ginny and Neville to revive the D.A. and resist the Death Eaters’ influence at Hogwarts. She was kidnapped on the Hogwarts Express on her way home for the Christmas holidays (DH25) because of what Mr. Lovegood had been writing in The Quibbler, and imprisoned in the cellar at the Malfoy Mansion along with Ollivander. She was helpful in their efforts to escape the Malfoy Mansion, and then fought bravely, again, at the Battle of Hogwarts (DH31). (See also, e.g., Pl. Ex. 1, entry for “Malfoy, Draco,” ¶¶ 5, 6, 7.) But other times, the presentation of plot details, in effect, summarizes a vignette or portion of a scene. In the same entry for “Lovegood, Luna,” the Lexicon summarizes a scene on the Hogwarts Express found on pages 185 to 188 of Chapter 10 of Harry Potter and the Order of the Phoenix: Harry met Luna for the first time aboard the Hogwarts Express on September 1, 1995. He, Ginny, and Neville shared a compartment with her on the train (OP10). She was reading a copy of The Quibbler magazine upside down. She informed the others that her father is the editor of The Quibbler, a magazine which most in the Wizarding World consider a joke. She laughed a little too loud; she stared at the other kids, and generally made an odd traveling companion. Harry privately thought, when Cho happened by their compartment to say hello, that he would much rather have been sitting with “cooler” kids than Luna and Neville. (Compare Pl. Ex. 8 at 185-88.) 27 The entries for the hero and the villain of the Harry Potter series (Harry Potter and Lord Voldemort) present the closest thing to “plot summaries,” but are more aptly characterized as synopses or outlines of the narrative revolving around those characters. Because Harry Potter and Lord Voldemort drive the narrative and because they appear in nearly every chapter of the series, an encapsulation of the events surrounding them ultimately yields a synopsis of the primary narrative thread in the Harry Potter series. The Lexicon entry for “Potter, Harry James” is eleven pages long and chronicles each year of Harry Potter’s life at the fictional Hogwarts School, providing the reader with all of the main events of the story through all seven of Rowling’s novels, leading up to Harry Potter’s final battle with Lord Voldemort. (Pl. Ex. 11 (Birchall Decl.) at ¶ 5). The ninepage entry for “Voldemort, Lord” begins by providing the pre-story for the character, which is included in the sixth Harry Potter novel, giving background into the character as a child. (Tr. (Rowling) at 146:10-13). The entry then proceeds to describe chronologically all of the events surrounding this character in the Harry Potter story from books one through seven, and also gives an account of this character’s death in the last Harry Potter novel. (Tr. (Rowling) at 62: 12-20; Tr. (Johnson) at 623:6-624:11). Although the entries proceed chronologically and do not use the same plot structure as do the Harry Potter novels (which structure the plot so as to create an interesting drama), the entries do provide a skeleton of the plot elements that hold the story togetherFinally, Plaintiffs established the Lexicon’s extensive copying from Rowling’s
companion books, Quidditch Through the Ages and Fantastic Beasts & Where to Find
Them, the schoolbooks used by the students attending the Hogwarts School. These two 
28
books are very short, fifty-six and fifty-nine pages,9
 respectively. They are written in
non-narrative form (Tr. (Vander Ark) at 396:21-25) and present fictional facts without
commentary (id. (Rowling) at 63:18-20), in a similar way to the Lexicon. When
questioned about his use of these books in creating the Lexicon, Vander Ark testified:
. . . Fantastic Beasts and Quidditch [Through] the Ages had sections of
them which were essentially encyclopedias already which presented quite
a problem. We wanted to be complete, but we certainly didn’t want to
replace Ms. Rowling’s encyclopedia content which presented us with quite
a challenge of how to do that, how to include information, but not to
include all of it. And that was what we decided to do. We said we’ll
intentionally leave things out and put a very clear note, Please go read her
books, which is what we did. ",965
https://www.law.cornell.edu/constitution/articlei#section8,Constitution Art 1 Sec. 8 clause 8,1,Digital Copyright,Class 6,"Section 8.
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.",412
https://www.copyright.gov/title17/92chap1.html#105,"17 USC §102, 103, 105, 106",1,Digital Copyright,Class 6,"102. Subject matter of copyright: In general28
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

103. Subject matter of copyright: Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
105. Subject matter of copyright: United States Government works37
(a) In General.—Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

(b) Copyright Protection of Certain Works.—Subject to subsection (c), the covered author of a covered work owns the copyright to that covered work.

(c) Use by Federal Government.—

(1) Secretary of defense authority.—With respect to a covered author who produces a covered work in the course of employment at a covered institution described in subparagraphs (A) through (L) of subsection (d)(2), the Secretary of Defense may direct the covered author to provide the Federal Government with an irrevocable, royalty-free, worldwide, nonexclusive license to reproduce, distribute, perform, or display such covered work for purposes of the United States Government.

(2) Director of national intelligence authority.—With respect to a covered author who produces a covered work in the course of employment at the covered institution described in subsection (d)(2)(M),38 the Director of National Intelligence may direct the covered author to provide the Federal Government with an irrevocable, royalty-free, world-wide, nonexclusive license to reproduce, distribute, perform, or display such covered work for purposes of the United States Government.

(d) Definitions.—In this section:

(1) The term “covered author” means a civilian member of the faculty of a covered institution.

(2) The term “covered institution” means the following:

(A) National Defense University.

(B) United States Military Academy.

(C) Army War College.

(D) United States Army Command and General Staff College.

(E) United States Naval Academy.

(F) Naval War College.

(G) Naval Post Graduate School.

(H) Marine Corps University.

(I) United States Air Force Academy.

(J) Air University.

(K) Defense Language Institute.

(L) United States Coast Guard Academy.

(M)38 United States Merchant Marine Academy.

(M)38 National Intelligence University.

(3) The term “covered Secretary”38 means—

(A) the Secretary of Transportation, with respect to the United States Merchant Marine Academy;

(B) the Secretary of Homeland Security, with respect to the United States Coast Guard Academy; or

(C) the Secretary of Defense, with respect to any other covered institution under paragraph (2).

(4) The term “covered work” means a literary work produced by a covered author in the course of employment at a covered institution for publication by a scholarly press or journal.",621
https://www.copyright.gov/title17/92chap1.html#105,"17 USC §102, 103, 105, 106",2,Digital Copyright,Class 6,"106. Exclusive rights in copyrighted works39
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

106A. Rights of certain authors to attribution and integrity40
(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

(1) shall have the right—

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right—

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

(b) Scope and Exercise of Rights.—Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.

(c) Exceptions.—(1) The modification of a work of visual art which is the result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).

(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.

(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).

(d) Duration of Rights.—(1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.

(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.

(3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.

(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.

(e) Transfer and Waiver.—(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.

(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.",970
https://www.cnn.com/2020/06/09/perspectives/ron-wyden-section-230/index.html,Ron Wyden: I wrote Section 230,1,"Defamation, Private Photos, and Hate Speech",Class 15,"There has never been a more important time to fight for free speech online than right now.

President Donald Trump is waging an all-out war on the press and nearly anyone who tries to hold him accountable or point out his lies, including Twitter.

At the same time, images and videos of horrific police violence against black Americans — especially the deeply disturbing killing of George Floyd — have been posted to Facebook and Twitter, sparking an outpouring of anger and protest. Videos of unacceptable brutality against peaceful protesters have filled up our social media feeds.

A law Americans probably don’t talk about at the dinner table each night, called Section 230 of the Communications Decency Act, is crucial to both of these stories.

Republican Congressman Chris Cox and I wrote Section 230 in 1996 to give up-and-coming tech companies a sword and a shield, and to foster free speech and innovation online.

Essentially, 230 says that users, not the website that hosts their content, are the ones responsible for what they post, whether on Facebook or in the comments section of a news article. That’s what I call the shield.

Dairy cows stand in a barn at Stone-Front Farm in Lancaster, Wisconsin, U.S., on Thursday, April 23, 2020. Production hit an all-time high in March, the U.S. Department of Agriculture said this week, expanding even before the usual seasonal peak which typically takes place in May. Photographer: Daniel Acker/Bloomberg/Getty Images
Related article
Dairy farmers are dumping millions of gallons of milk. This could make it stop

But it also gave companies a sword so that they can take down offensive content, lies and slime — the stuff that may be protected by the First Amendment but that most people do not want to experience online. And so they are free to take down white supremacist content or flag tweets that glorify violence (as Twitter did with President Trump’s recent tweet) without fear of being sued for bias or even of having their site shut down. Section 230 gives the executive branch no leeway to do either.

That’s not to say that social media companies have it all figured out. In fact, I have a lot of complaints with the big tech companies when it comes to violating Americans’ privacy. I even wrote legislation that would put executives like Mark Zuckerberg in jail if they lie to the government about protecting Americans’ privacy. And Facebook, in particular, seems to prioritize preserving what Trump says rather than focusing on creating a more welcoming platform for many users.

However, it is undeniable that social media — as a direct result of Section 230 — has been a huge megaphone for people who want to challenge those in power.

But now, as part of his crusade against social media companies, Trump is proposing to revoke Section 230 of the Communications Decency Act.

Without Section 230, sites would have strong incentives to go one of two ways: either sharply limit what users can post, so as to avoid being sued, or to stop moderating entirely, something like 8chan — now operating under the name 8kun — where anonymous users can post just about anything and speech supporting racism and sexism is common.

I think we would be vastly worse off in either scenario. Just look at Black Lives Matter and the protests against police violence over the past week as an example. The cellphone video that captured the officer kneeling on George Floyd’s neck spread across social media platforms — and it’s the reason Americans learned about his unjust killing in the first place. So many of these cases of unconscionable use of force against black Americans have come to light as a result of videos posted to social media.

In a world without 230, I cannot imagine that Facebook or Twitter would allow posts about police violence that could possibly be defamatory. These horrible injustices would never get the public attention they deserve. And accountability would be even less likely.

Now what it seems Trump would like is the other scenario — for platforms to be “neutral.” Let’s not kid ourselves. Trump’s attempt to abolish Section 230 is essentially a way of bullying social media companies so that he may post what he wants without any challenge.

And so without 230, I think that a lot of sites would choose not to moderate at all, and thus avoid responsibility for anything their users post. It goes without saying that there would be a lot more false, dangerous content out there, from revenge porn to posts supporting white supremacy. The internet would become the cesspool that anti-230 activists claim it is today.

I’ve seen some commentators say Trump would be in big trouble without Section 230. I couldn’t disagree more.

Trump is the president of the United States of America — the most powerful person in the world. He can call a press conference, which news networks will likely carry live, get reporters to repeat his statements and have an army of surrogates parrot his talking points on every imaginable medium.

If Twitter banned Trump tomorrow, he wouldn’t have any trouble spreading his message to every corner of the world.

But without 230, the people without power — people leading movements like #MeToo and Black Lives Matter — would find it far harder to challenge the big corporations and powerful institutions. Without 230, I believe that not a single #MeToo post would have been allowed on moderated sites.

So that’s why I strongly oppose the president’s executive order, and legislation like the EARN IT Act, by senators Lindsey Graham and Richard Blumenthal, which would give Trump and Attorney General William Barr massive leverage to dictate speech online.

Americans don’t want to be at the mercy of speech police, online or anywhere else. Section 230 gives sites, speakers and readers choices, and ensures that those choices will survive the hostility of those with power. It would be a terrible mistake to do away with it, especially now.",979
https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf,"Counterman v. Colorado, Barrett's Dissent",1,"Defamation, Private Photos, and Hate Speech",Class 15,"BARRETT, J., dissenting SUPREME COURT OF THE UNITED STATES No. 22–138 BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO [June 27, 2023] JUSTICE BARRETT, with whom JUSTICE THOMAS joins, dissenting. Billy Counterman was convicted under a Colorado law that prohibits true threats. As everyone agrees, the statute requires that the speaker understand the meaning of his words. Ante, at 4, n. 1. The question is what more the First Amendment requires. Colorado maintains that an objective standard is enough—that is, the government must show that a reasonable person would regard the statement as a threat of violence. Counterman, however, argues that the First Amendment requires a subjective test—that is, the speaker himself must intend or know the threatening nature of the statement. It should be easy to choose between these positions. True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard. Nonetheless, the Court adopts a subjective standard, though not quite the one advanced by Counterman. The Court holds that speakers must recklessly disregard the threatening nature of their speech to lose constitutional protection. Because this unjustifiably grants true threats preferential treatment, I respectfully dissent. 2 COUNTERMAN v. COLORADO BARRETT, J., dissenting I Since the founding, the First Amendment has allowed the government to regulate certain “areas of speech” “because of their constitutionally proscribable content.” R. A. V. v. St. Paul, 505 U. S. 377, 382–383 (1992) (emphasis deleted). This includes true threats, which are “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U. S. 343, 359 (2003); see also R. A. V., 505 U. S., at 388 (“[T]hreats of violence are outside the First Amendment”). True threats carry little value and impose great cost. See Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942) (“[A]ny benefit that may be derived from [true threats] is clearly outweighed by the social interest in order and morality”). “[B]y their very utterance,” true threats “inflict injury.” Ibid. They provoke “the fear of violence,” create “disruption,” give rise to “the possibility that the threatened violence will occur”—and the list goes on. Black, 538 U. S., at 360 (internal quotation marks omitted).1 The nature of a true threat points to an objective test for determining the scope of First Amendment protection: Neither its “social value” nor its potential for “injury” depends on the speaker’s subjective intent. Chaplinsky, 315 U. S., at 572. They can relate, of course—a speaker who does not intend to threaten is less likely to utter a statement that could be taken that way. But the Constitution ultimately declines to protect true threats for objective reasons, not —————— 1 Indeed, the Colorado Legislature considered these very harms when it enacted the statute at issue here. The statutory findings explain that stalking, harassment, and threats have “an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim.” Colo. Rev. Stat. §§18–3–601(1)(f), 18–3–602(1) (2022). So the legislature passed the statute to “encourag[e] and authoriz[e] effective intervention” before the covered conduct could “escalate into behavior that has even more serious consequences.” §18– 3–601(2). Cite as: 600 U. S. ____ (2023) 3 BARRETT, J., dissenting subjective ones. So an objective test “complements the explanation for excluding threats of violence from First Amendment protection in the first place.” United States v. Jeffries, 692 F. 3d 473, 480 (CA6 2012). II The Court agrees that “[t]he existence of a threat depends not on ‘the mental state of the author,’ but on ‘what the statement conveys’ to the person on the other end.” Ante, at 6. And it acknowledges that “[w]hen the statement is understood as a true threat, all the harms that have long made threats unprotected naturally follow.” Ibid. Nonetheless, the Court holds Colorado’s statute unconstitutional. Why? Because the Court installs a prophylactic buffer zone to avoid chilling protected speech—a buffer zone that protects true threats unless the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” Ante, at 1, 4–5. That reasoning is flawed. A The Court’s first error is awarding true threats “pride of place among unprotected speech.” Elonis v. United States, 575 U. S. 723, 767 (2015) (THOMAS, J., dissenting). We have held that nearly every category of unprotected speech may be regulated using an objective test. In concluding otherwise, the Court neglects certain cases and misreads others. Start with fighting words—a category of unprotected speech that the Court skips past. Fighting words are “personally abusive epithets” that are “inherently likely to provoke violent reaction.” Cohen v. California, 403 U. S. 15, 20 (1971). Under our precedent, legislatures may regulate fighting words even when the speaker does not intend to provoke the listener (or does not recklessly disregard that possibility). Chaplinsky, 315 U. S., at 572–573 (rejecting First Amendment challenge to a state law punishing 4 COUNTERMAN v. COLORADO BARRETT, J., dissenting “fighting words” according to a reasonable-person standard); Cantwell v. Connecticut, 310 U. S. 296, 309–310 (1940) (statements unprotected when they are “likely to provoke violence and disturbance of good order, even though no such eventuality be intended”). Instead, we ask only whether “the ordinary citizen,” using her “common knowledge,” would reasonably understand the statement as a “direct personal insult.” Cohen, 403 U. S., at 20; see also Texas v. Johnson, 491 U. S. 397, 409 (1989).",924
https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf,"Counterman v. Colorado, Barrett's Dissent",2,"Defamation, Private Photos, and Hate Speech",Class 15,"The Court similarly overlooks the category of “false, deceptive, or misleading” commercial speech. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 638 (1985); In re R. M. J., 455 U. S. 191, 203 (1982) (“Truthful advertising . . . is entitled to the protections of the First Amendment,” but “[m]isleading advertising may be prohibited entirely”); Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 142 (1994) (“[F]alse, deceptive, or misleading commercial speech may be banned”). Here, too, our cases suggest that First Amendment protection depends on objective falsity rather than the speaker’s intention. See In re R. M. J., 455 U. S., at 202 (“[R]egulation—and imposition of discipline—are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive” (emphasis added)); see also Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S. 229, 250–253 (2010). Thus, the government is “free to prevent the dissemination of commercial speech that is false, deceptive, or misleading,” without regard to whether the speaker knew that the recipient would be deceived or misled. Zauderer, 471 U. S., at 638. Or take obscenity, which we have long held is “not protected by the freedoms of speech and press.” Roth v. United States, 354 U. S. 476, 481 (1957). Speech qualifies as ob- Cite as: 600 U. S. ____ (2023) 5 BARRETT, J., dissenting scene if the “‘average person, applying contemporary community standards,’” would conclude that “the work, taken as a whole, appeals to the prurient interest.” Miller v. California, 413 U. S. 15, 24 (1973). The jury must also make an objective judgment about whether the speech “depicts or describes” sexual conduct “in a patently offensive way,” and whether it “lacks serious literary, artistic, political, or scientific value.” Ibid. The speaker’s “‘belief as to the obscenity or non-obscenity of the material is irrelevant.’” Hamling v. United States, 418 U. S. 87, 120–121 (1974). So long as the defendant has “knowledge of the contents of the materials,” her speech may be constitutionally regulated. Id., at 123. An objective, reasonable-person standard applies. In an effort to bolster its position, the Court floats a different standard for obscenity laws, asserting that “the First Amendment demands proof of a defendant’s mindset to make out an obscenity case.” Ante, at 8. By “mindset,” the Court apparently means that the defendant must have some awareness that an average person would consider the materials obscene. But the Court draws this conclusion from cases rejecting a strict liability standard—for example, we have held that the proprietor of a bookstore cannot be liable for possessing an obscene book unless he knew what was in it. Smith v. California, 361 U. S. 147, 149, 155 (1959); Mishkin v. New York, 383 U. S. 502, 510–512 (1966); see also Ginsberg v. New York, 390 U. S. 629, 643–644 (1968).2 Knowing what the material depicts is not the same as knowing how the average person would react to it—just —————— 2The Court also cites Elonis v. United States, ante, at 8, 9, n. 4, which Counterman argues puts a “gloss” on obscenity doctrine, Tr. of Oral Arg. 6–7. While Elonis briefly discusses the necessary mens rea for a conviction under a federal obscenity statute, it does so only in dicta. 575 U. S. 723, 739–740 (2015). Elonis does not alter the doctrinal framework for assessing the constitutionality of obscenity laws: That case involves true threats, not obscenity, and it interprets a federal statute, not the Constitution. 6 COUNTERMAN v. COLORADO BARRETT, J., dissenting as there is an important difference between Counterman’s knowledge of what his words meant and his knowledge of how they would be perceived. Though the Court conflates the two, our obscenity cases have repeatedly refused to require the latter as a matter of constitutional law. Hamling, 418 U. S., at 120–123; Rosen v. United States, 161 U. S. 29, 41–42 (1896). So obscenity doctrine does not help Counterman. The Court leans hardest on defamation law, but its argument depends on a single, cherry-picked strand of the doctrine. Yes, New York Times Co. v. Sullivan requires public figures and public officials to show “actual malice” on a defamation claim, and we have defined “actual malice” as “knowledge that [the statement] was false” or “reckless disregard of whether it was false or not.” 376 U. S. 254, 279– 280 (1964). But that is not the full story. A private person need only satisfy an objective standard to recover actual damages for defamation. Gertz v. Robert Welch, Inc., 418 U. S. 323, 347–350 (1974). And if the defamatory speech does not involve a matter of public concern, she may recover punitive damages with the same showing. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 760– 761 (1985) (plurality opinion). We have justified that distinction on the ground that public-figure defamation claims may deter “would-be critics of official conduct . . . from voicing their criticism,” which would “dampe[n] the vigor and limit the variety of public debate.” Sullivan, 376 U. S., at 279. Not only that, but “the state interest in protecting” public figures is weaker, since they tend to “enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements.” Gertz, 418 U. S., at 344. So, despite what the Court says, Sullivan does not stand for the broad proposition that the First Amendment “demand[s] a subjective mental-state requirement.” Ante, at 6. Instead, it simply raises the bar for borderline unprotected speech Cite as: 600 U. S. ____ (2023) 7 BARRETT, J., dissenting with high social value (because of its proximity to public discourse) and low potential for injury (because public figures can engage in counterspeech).",977
https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf,"Counterman v. Colorado, Barrett's Dissent",3,"Defamation, Private Photos, and Hate Speech",Class 15,"Sullivan’s rationale does not justify a heightened mens rea for true threats. Because true threats are not typically proximate to debate on matters of public concern, the Court’s newly erected buffer zone does not serve the end of protecting heated political commentary. Nor can public figures use counterspeech in the public square to protect themselves from serious threats of physical violence. And perversely, private individuals now have less protection from true threats than from defamation—even though they presumably value their lives more than their reputations. See Gertz, 418 U. S., at 347–350. The Court has therefore extended Sullivan in a way that makes no sense on Sullivan’s own terms. I will give the Court this much: Speakers must specifically intend to incite violence before they lose First Amendment protection. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (defining incitement as “advocacy . . . directed to inciting or producing imminent lawless action and likely to incite or produce such action”); see also Hess v. Indiana, 414 U. S. 105, 108–109 (1973) (per curiam). Once more, however, our precedent itself explains the difference. Incitement, as a form of “advocacy,” often arises in the political arena. See Brandenburg, 395 U. S., at 447 (Ku Klux Klan rally held to plan a “‘marc[h] on Congress’”); Hess, 414 U. S., at 106 (antiwar demonstration); Abrams v. United States, 250 U. S. 616, 620 (1919) (pamphlets about the President’s “‘shameful, cowardly silence about the intervention in Russia’”). A specific intent requirement helps draw the line between incitement and “political rhetoric lying at the core of the First Amendment.” NAACP v. Claiborne Hardware Co., 458 U. S. 886, 926–927 (1982). The Court does not contend that targeted threats and political commentary share a similarly close relationship. 8 COUNTERMAN v. COLORADO BARRETT, J., dissenting In sum, our First Amendment precedent does not set a “baseline ban on an objective standard.” Ante, at 10. Precedent does more than allow an objective test for true threats; on balance, it affirmatively supports one. B The Court’s analysis also gives short shrift to how an objective test works in practice. Two key features of true threats already guard against the risk of silencing protected speech. Thus, there is no need to go further and adopt the Court’s heightened standard. First, only a very narrow class of statements satisfies the definition of a true threat. To make a true threat, the speaker must express “an intent to commit an act of unlawful violence.” Black, 538 U. S., at 359 (emphasis added). Speech that is merely “offensive,” “‘poorly chosen,’” or “unpopular” does not qualify. Brief for Petitioner 31, 36, 42. The statement must also threaten violence “to a particular individual or group of individuals”—not just in general. Black, 538 U. S., at 359. These tight guardrails distinguish true threats from public-figure defamation, the model for the Court’s rule. While defamatory statements can cover an infinite number of topics, true threats target one: unlawful violence. Second, the statement must be deemed threatening by a reasonable listener who is familiar with the “entire factual context” in which the statement occurs. State v. Taveras, 342 Conn. 563, 572, 271 A. 3d 123, 129 (2022). This inquiry captures (among other things) the speaker’s tone, the audience, the medium for the communication, and the broader exchange in which the statement occurs.3 Each consideration helps weed out protected speech from true threats. —————— 3Colorado’s test provides a good example. Juries must apply the following nonexhaustive factors to determine whether a statement is a true threat: “(1) the statement’s role in a broader exchange, if any, including Cite as: 600 U. S. ____ (2023) 9 BARRETT, J., dissenting Our decision in Black illustrates the point. There, the Court considered a Virginia law that prohibited cross burning “‘with the intent of intimidating any person or group of persons.’” 538 U. S., at 348. Notably, the statute included a presumption: “‘Any such burning of a cross shall be prima facie evidence of an intent to intimidate.’” Ibid. After three men were convicted under the statute, they challenged it as facially unconstitutional. We upheld the general prohibition on cross burning, concluding that the First Amendment allows the government to ban “a particular type of threat.” Id., at 362–363. A plurality then went on to address the statutory presumption. While cross burning “may mean that a person is engaging in constitutionally proscribable intimidation,” the plurality reasoned, the act is not monolithic. Id., at 365. Cross burning could be directed “at an individual” or “at a group of like-minded believers”; it could be done “on a neighbor’s lawn” or “at a public rally”; it could be done with the property owner’s “permission” or without it. Id., at 366. The presumption “blur[red] the line” between these different situations and “ignore[d] all of the contextual factors that are necessary to decide whether a particular cross burning” was covered by the statute or not. Id., at 365, 367. Thus, the presumption was unconstitutionally overbroad. The Black plurality’s reasoning can be boiled down to the following insight: When context is ignored, true threats cannot be reliably distinguished from protected speech. The reverse also holds: When context is properly considered, constitutional concerns abate. See, e.g., Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (concluding that a statement was “political hyperbole” instead of a true threat based on “context,” “the expressly conditional nature of the statement,” and the “reaction of the listeners”). One more point: Many States have long had statutes like Colorado’s on the books. See Brief for Illinois et al. as Amici Curiae 16–17. Before we took this case, the vast majority of Courts of Appeals and state high courts had upheld these statutes as constitutional. So objective tests are effectively the status quo today, yet Counterman still struggles to identify past prosecutions that came close to infringing on protected speech. Tr. of Oral Arg. 28–30. The silence is telling.",988
https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan,New York Times v. Sullivan,1,"Defamation, Private Photos, and Hate Speech",Class 13,"New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the freedom of speech protections in the First Amendment to the U.S. Constitution restrict the ability of public officials to sue for defamation.[1][2] The decision held that if a plaintiff in a defamation lawsuit is a public official or candidate for public office, then not only must they prove the normal elements of defamation—publication of a false defamatory statement to a third party—they must also prove that the statement was made with ""actual malice"", meaning the defendant either knew the statement was false or recklessly disregarded whether it might be false.[2] New York Times Co. v. Sullivan is frequently ranked as one of the greatest Supreme Court decisions of the modern era.[3]

The underlying case began in 1960, when The New York Times published a full-page advertisement by supporters of Martin Luther King Jr. that criticized the police in Montgomery, Alabama, for their treatment of civil rights movement protesters.[2] The ad had several factual errors regarding the number of times King had been arrested during the protests, what song the protesters had sung, and whether students had been expelled for participating.[2] Based on the inaccuracies, Montgomery police commissioner L. B. Sullivan sued the Times for defamation in the local Alabama county court.[2] After the judge ruled that the advertisement's inaccuracies were defamatory per se, the jury returned a verdict in favor of Sullivan and awarded him $500,000 in damages.[2] The Times appealed first to the Supreme Court of Alabama, which affirmed the verdict, and then to the U.S. Supreme Court, which agreed to hear the case.

In March 1964, the Court issued a 9–0 decision holding that the Alabama court's verdict violated the First Amendment.[1] The Court reasoned that defending the principle of wide-open debate will inevitably include ""vehement, caustic, and...unpleasantly sharp attacks on government and public officials."" The Supreme Court's decision, and its adoption of the actual malice standard, reduced the financial exposure from potential defamation claims and frustrated efforts by public officials to use these claims to suppress political criticism.[4][5] The Supreme Court has since extended Sullivan's higher legal standard for defamation to all ""public figures"". This has made it extremely difficult for a public figure to win a defamation lawsuit in the United States.

Background
On March 29, 1960, The New York Times carried a full-page advertisement titled ""Heed Their Rising Voices"", paid for by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South.[6][7] In the advertisement, the Committee solicited funds to defend Martin Luther King Jr., against an Alabama perjury indictment. The advertisement described actions against civil rights protesters, some of them inaccurately, some of which involved the police force of Montgomery, Alabama. Referring to Alabama ""official authority and police power"", the advertisement stated: ""They have arrested [King] seven times. ... "", whereas he had been arrested four times; and that ""truckloads of police ... ringed the Alabama State College Campus"" after the demonstration at the State Capitol, whereas the police had been ""deployed near"" the campus but had not actually ""ringed"" it and had not gone there in connection with the State Capitol demonstration.[1] Although the Montgomery Public Safety commissioner, L. B. Sullivan, was not named in the advertisement, Sullivan argued that the inaccurate criticism of actions by the police was defamatory to him as well because it was his duty to supervise the police department.[1]


The advertisement published in The New York Times on March 29, 1960, that led to Sullivan's defamation lawsuit.
Because Alabama law denied public officers recovery of punitive damages in a libel action on their official conduct unless they first made a written demand for a public retraction and the defendant failed or refused to comply, Sullivan sent such a request.[1] The Times did not publish a retraction in response to the demand. Instead, its lawyers wrote a letter[8] stating, among other things, that ""we ... are somewhat puzzled as to how you think the statements in any way reflect on you,"" and ""you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you.""[1]

Sullivan did not respond but instead filed a libel suit a few days later. He also sued four African-American ministers mentioned in the ad: Ralph Abernathy, S.S. Seay Sr., Fred Shuttlesworth, and Joseph Lowery.

The Times subsequently published a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who alleged the publication charged him with ""grave misconduct and ... improper actions and omissions as Governor of Alabama and ex officio chairman of the State Board of Education of Alabama.""[1] When asked to explain why there had been a retraction for the Governor but not for Sullivan, the Secretary of the Times testified:

We did that because we didn't want anything that was published by the Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the state and we had by that time learned more of the facts which the ad purported to recite and, finally, the ad did refer to the action of the state authorities and the Board of Education presumably of which the Governor is the ex officio chairman  ...

However, the Secretary also testified he did not think that ""any of the languages in there referred to Mr. Sullivan.""[1]

The jury returned a verdict for Sullivan and awarded him $500,000 in damages ($5.1 million in 2023). The state supreme court affirmed[9] on August 30, 1962, saying ""The First Amendment of the U.S. Constitution does not protect libelous publications"". The Times appealed to the United States Supreme Court.[10][11]

Constitutional law scholar Herbert Wechsler successfully argued the case before the United States Supreme Court. Louis M. Loeb, a partner at the firm of Lord Day & Lord who served as chief counsel to the Times from 1948 to 1967,[12] was among the authors of the brief of the Times.",1005
https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan,New York Times v. Sullivan,2,"Defamation, Private Photos, and Hate Speech",Class 13,"Decision
On March 9, 1964, the Supreme Court issued a unanimous 9–0 decision in favor of the Times that vacated the Alabama court's judgment and limited newspapers' liability for damages in defamation suits by public officials.

Opinion of the Court

Justice William J. Brennan Jr., the author of the Supreme Court's unanimous opinion
Justice William J. Brennan Jr. authored the Court's opinion, and five other justices joined it.[a] The Court began by explaining that criticizing government and public officials was at the core of the American constitutional rights to freedom of speech and freedom of the press.[13]

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ""was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."" ... ""[I]t is a prized American privilege to speak one's mind, although not always with perfect taste, on all public institutions."" ... The First Amendment, said Judge Learned Hand, ""presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many, this is, and always will be, folly; but we have staked upon it our all.""

— Sullivan, 376 U.S. at 269–70 (citations omitted).[14]
The Court said that because of these core American free-speech principles, it would have to consider Sullivan's defamation claims ""against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.""[15]

With this background, the Court framed the case around the question of whether this American constitutional commitment to free speech required loosening traditional defamation laws.

The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

— Sullivan, 376 U.S. at 271.
In answer, the Court held that the advertisement's inaccuracies did not remove its free-speech constitutional protections. The Court reasoned that ""erroneous statement is inevitable in free debate, and ... must be protected if the freedoms of expression are to have the breathing space that they need ... to survive"".[16] It concluded that the importance of safeguarding the ""breathing space"" created by the First Amendment's protections required giving constitutional protection to ""erroneous statements honestly made"".[17] The Court analogized Alabama's libel law to the infamous Alien and Sedition Acts passed in the late 1790s during the presidency of John Adams.[17] It reasoned that a broad interpretation of libel laws that protected government officials from criticism would produce situations similar to those under the Alien and Sedition Acts, which had been historically criticized.[17]

Because of the importance of free debate about public officials, the Court held that it was not enough that Alabama's libel law—like most libel laws in the English common law tradition—allowed defendants to use the truth of their defamatory statements as a defense.[13] Instead, the Court held that under U.S. law, any public official suing for defamation must prove that the defendant made the defamatory statement with ""actual malice"".

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ""actual malice"" – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

— Sullivan, 376 U.S. at 279–80.[18]
The Court said that besides proving ""actual malice"", the First Amendment's protections also imposed two other limitations on libel laws. First, a public official seeking damages must prove that the defendant's defamatory statement was about the official individually, not about government policy generally. Second, unlike in traditional common law defamation lawsuits where the defendant had the burden to prove that his or her statement was true, in defamation suits involving American public officials the officials must prove that the defendant's statement was false.[17]",694
https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan,New York Times v. Sullivan,3,"Defamation, Private Photos, and Hate Speech",Class 13,"International comparisons
The rule that somebody alleging defamation should have to prove untruth, rather than that the defendant should have to prove the truth of a statement, stood as a departure from the previous common law. In England, the development was specifically rejected in Derbyshire County Council v. Times Newspapers Ltd[19] and it was also rejected in Canada in Hill v. Church of Scientology of Toronto[20] and more recently in Grant v. Torstar Corp.[21] In Australia, the outcome of the case was followed in Theophanous v. The Herald & Weekly Times Ltd,[22] but Theophanous was itself overruled by the High Court of Australia in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

50th anniversary
In 2014, on the 50th anniversary of the ruling, The New York Times released an editorial in which it stated the background of the case, laid out the rationale for the Supreme Court decision, critically reflected on the state of freedom of the press 50 years after the ruling and compared the state of freedom of the press in the United States with other nations. The editorial board of The New York Times heralded the Sullivan decision not only as a ruling which ""instantly changed libel law in the United States"", but also as ""the clearest and most forceful defense of press freedom in American history.""[23] The board added:

The ruling was revolutionary because the court for the first time rejected virtually any attempt to squelch criticism of public officials—even if false—as antithetical to ""the central meaning of the First Amendment."" Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher—capable of calling public officials instantly to account for their actions and also of ruining reputations with the click of a mouse.[23]

In a 2015 Time magazine survey of over 50 law professors, both Owen Fiss (Yale) and Steven Shiffrin (Cornell) named New York Times v. Sullivan ""the best Supreme Court decision since 1960,"" with Fiss noting that the decision helped cement ""the free-speech traditions that have ensured the vibrancy of American democracy"" and Schiffrin remarking that the case ""overturned the censorial aspects of the law of libel and made it far easier in what’s left of our democracy for citizens—including the Fourth Estate—to criticize the powerful.""[3]

Later developments
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) held that public figures who are not public officials may still sue news organizations if they disseminate information about them which is recklessly gathered and unchecked.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974): Actual malice not necessary for defamation of private person if negligence is present.
Time, Inc. v. Hill, 385 U.S. 374 (1967). Extension of actual malice standard to false light invasion of privacy tort.
Hustler Magazine v. Falwell, 485 U.S. 46 (1988): Extending standard to intentional infliction of emotional distress.
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990): Existing law is sufficient to protect free speech without recognizing opinion privilege against libel claims.
Further developments
In February 2019, the Supreme Court denied a petition brought by Katherine McKee, one of the women that accused Bill Cosby of sexual assault, which claimed that Cosby had leaked a letter that permanently damaged her reputation, and had sought civil action against Cosby on this matter. Lower courts rejected her case based on New York Times Co., stating that she ""thrust herself to the forefront of a public controversy"", making her a limited public figure and requiring the higher standard of malice to be demonstrated. The denial by the Supreme Court did not include a vote count, but Justice Clarence Thomas wrote the solitary opinion on the case, agreeing that denial was appropriate per New York Times Co., but stating that he believed that decision of New York Times Co. was made wrongly. Thomas wrote ""If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we"".[24]

In March 2021, federal judge Laurence Silberman called on the Supreme Court to overturn New York Times v. Sullivan, stating that the New York Times and The Washington Post are ""virtually Democratic Party broadsheets"". Silberman's dissent also accused big tech companies of censoring conservatives and warned that ""Democratic Party ideological control"" of mainstream media may be a prelude to an ""authoritarian or dictatorial regime"" that constitutes ""a threat to a viable democracy"".[25][26]

Judge Silberman's dissent produced significant public discussion of Sullivan and potential reforms. Many conservative-leaning outlets endorsed Silberman's criticisms of Sullivan.[27] Most liberal-leaning outlets and several moderate conservatives condemned Silberman's decision for its tone and the substantive idea of loosening defamation standards.[28] However, some liberal scholars and a Harvard Law student writing in the Wall Street Journal embraced significant reforms to Sullivan.[29]

In the July 2021 denial of certiorari in Berisha v. Lawson, Justice Thomas dissented and reiterated his opposition to New York Times v. Sullivan. Justice Neil Gorsuch also questioned the usefulness of NYT v. Sullivan when applied to today's media and social media.[30] Thomas reiterated his stance against the New York Times v. Sullivan decision in the Court's denial to grant certification in October 2023 to hear a case brought by Don Blankenship claiming defamation from news agencies; Thomas argued in a dissent to the denial that NYT v. Sullivan allows news agenices to ""cast false aspersions on public figures with near impunity"".[31]

On March 19, 2023, The New York Times published a story reviewing the original advertisement and the legal case.[32]
",911
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),1,"Fair Use: Remix, Reimagine, Reuse",Class 8,"KAGAN, J., dissenting SUPREME COURT OF THE UNITED STATES No. 21–869 ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [May 18, 2023] JUSTICE KAGAN, with whom THE CHIEF JUSTICE joins, dissenting. Today, the Court declares that Andy Warhol’s eye-popping silkscreen of Prince—a work based on but dramatically altering an existing photograph—is (in copyright lingo) not “transformative.” Still more, the Court decides that even if Warhol’s portrait were transformative—even if its expression and meaning were worlds away from the photo—that fact would not matter. For in the majority’s view, copyright law’s first fair-use factor—addressing “the purpose and character” of “the use made of a work”—is uninterested in the distinctiveness and newness of Warhol’s portrait. 17 U. S. C. §107. What matters under that factor, the majority says, is instead a marketing decision: In the majority’s view, Warhol’s licensing of the silkscreen to a magazine precludes fair use.1 You’ve probably heard of Andy Warhol; you’ve probably seen his art. You know that he reframed and reformulated—in a word, transformed—images created first by others. Campbell’s soup cans and Brillo boxes. Photos of celebrity icons: Marilyn, Elvis, Jackie, Liz—and, as most —————— 1By the time of the licensing, Warhol had died and the Warhol Foundation had stepped into his shoes. But for ease of exposition, I will refer to both the artist and his successor-in-interest as Warhol. 2 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting relevant here, Prince. That’s how Warhol earned his conspicuous place in every college’s Art History 101. So it may come as a surprise to see the majority describe the Prince silkscreen as a “modest alteration[]” of Lynn Goldsmith’s photograph—the result of some “crop[ping]” and “flatten[ing]”—with the same “essential nature.” Ante, at 8, 25, n. 14, 33 (emphasis deleted). Or more generally, to observe the majority’s lack of appreciation for the way his works differ in both aesthetics and message from the original templates. In a recent decision, this Court used Warhol paintings as the perfect exemplar of a “copying use that adds something new and important”—of a use that is “transformative,” and thus points toward a finding of fair use. Google LLC v. Oracle America, Inc., 593 U. S. ___, ___–___ (2021) (slip op., at 24–25). That Court would have told this one to go back to school. What is worse, that refresher course would apparently be insufficient. For it is not just that the majority does not realize how much Warhol added; it is that the majority does not care. In adopting that posture of indifference, the majority does something novel (though in law, unlike in art, it is rarely a good thing to be transformative). Before today, we assessed “the purpose and character” of a copier’s use by asking the following question: Does the work “add[] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message”? Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994); see Google, 593 U. S., at ___ (slip op., at 24). When it did so to a significant degree, we called the work “transformative” and held that the fair-use test’s first factor favored the copier (though other factors could outweigh that one). But today’s decision—all the majority’s protestations notwithstanding—leaves our first-factor inquiry in shambles. The majority holds that because Warhol licensed his work to a magazine—as Goldsmith sometimes also did—the first factor goes against him. See, e.g., ante, at 35. It does Cite as: 598 U. S. ____ (2023) 3 KAGAN, J., dissenting not matter how different the Warhol is from the original photo—how much “new expression, meaning, or message” he added. It does not matter that the silkscreen and the photo do not have the same aesthetic characteristics and do not convey the same meaning. It does not matter that because of those dissimilarities, the magazine publisher did not view the one as a substitute for the other. All that matters is that Warhol and the publisher entered into a licensing transaction, similar to one Goldsmith might have done. Because the artist had such a commercial purpose, all the creativity in the world could not save him. That doctrinal shift ill serves copyright’s core purpose. The law does not grant artists (and authors and composers and so on) exclusive rights—that is, monopolies—for their own sake. It does so to foster creativity—“[t]o promote the [p]rogress” of both arts and science. U. S. Const., Art. I, §8, cl. 8. And for that same reason, the law also protects the fair use of copyrighted material. Both Congress and the courts have long recognized that an overly stringent copyright regime actually “stifle[s]” creativity by preventing artists from building on the work of others. Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks omitted); see Campbell, 510 U. S., at 578–579. For, let’s be honest, artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others. That is the way artistry of all kinds—visual, musical, literary—happens (as it is the way knowledge and invention generally develop). The fair-use test’s first factor responds to that truth: As understood in our precedent, it provides “breathing space” for artists to use existing materials to make fundamentally new works, for the public’s enjoyment and benefit. Id., at 579. In now remaking that factor, and thus constricting fair use’s boundaries, the majority hampers creative progress and KAGAN, J., dissenting undermines creative freedom. I respectfully dissent.2 ",937
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),2,"Fair Use: Remix, Reimagine, Reuse",Class 8,"I A Andy Warhol is the avatar of transformative copying. Cf. Google, 593 U. S., at ___–___ (slip op., at 24–25) (selecting Warhol, from the universe of creators, to illustrate what transformative copying is). In his early career, Warhol worked as a commercial illustrator and became experienced in varied techniques of reproduction. By night, he used those techniques—in particular, the silkscreen—to create his own art. His own—even though in one sense not. The silkscreen enabled him to make brilliantly novel art out of existing “images carefully selected from popular culture.” D. De Salvo, God Is in the Details, in Andy Warhol Prints 22 (4th rev. ed. 2003). The works he produced, connecting traditions of fine art with mass culture, depended on “appropriation[s]”: The use of “elements of an extant image[] is Warhol’s entire modus operandi.” B. Gopnik, Artistic Appropriation vs. Copyright Law, N. Y. Times, Apr. 6, 2021, p. C4 (internal quotation marks omitted). And with that m.o., he changed modern art; his appropriations and his originality were flipsides of each other. To a public accustomed to thinking of art as formal works “belong[ing] in —————— 2One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion selfrefuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment. Cite as: 598 U. S. ____ (2023) 5 KAGAN, J., dissenting gold frames”—disconnected from the everyday world of products and personalities—Warhol’s paintings landed like a thunderclap. A. Danto, Andy Warhol 36 (2009). Think Soup Cans or, in another vein, think Elvis. Warhol had created “something very new”—“shockingly important, transformative art.” B. Gopnik, Warhol 138 (2020); Gopnik, Artistic Appropriation. To see the method in action, consider one of Warhol’s prePrince celebrity silkscreens—this one, of Marilyn Monroe. He began with a publicity photograph of the actress. And then he went to work. He reframed the image, zooming in on Monroe’s face to “produc[e] the disembodied effect of a cinematic close-up.” 1 App. 161 (expert declaration). At that point, he produced a high-contrast, flattened image on a sheet of clear acetate. He used that image to trace an outline on the canvas. And he painted on top—applying exotic colors with “a flat, even consistency and an industrial appearance.” Id., at 165. The same high-contrast image was then reproduced in negative on a silkscreen, designed 6 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting to function as a selectively porous mesh. Warhol would “place the screen face down on the canvas, pour ink onto the back of the mesh, and use a squeegee to pull the ink through the weave and onto the canvas.” Id., at 164. On some of his Marilyns (there are many), he reordered the process—first ink, then color, then (perhaps) ink again. See id., at 165– 166. The result—see for yourself—is miles away from a literal copy of the publicity photo. Andy Warhol, Marilyn, 1964, acrylic and silkscreen ink on linen And the meaning is different from any the photo had. Of course, meaning in great art is contestable and contested (as is the premise that an artwork is great). But note what some experts say about the complex message(s) Warhol’s Marilyns convey. On one level, those vivid, larger-than-life paintings are celebrity iconography, making a “secular, profane subject[]” “transcendent” and “eternal.” Id., at 209 (internal quotation marks omitted). But they also function as a biting critique of the cult of celebrity, and the role it plays",705
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),3,"Fair Use: Remix, Reimagine, Reuse",Class 8,"Cite as: 598 U. S. ____ (2023) 7 KAGAN, J., dissenting in American life. With misaligned, “Day-Glo” colors suggesting “artificiality and industrial production,” Warhol portrayed the actress as a “consumer product.” The Metropolitan Museum of Art Guide 233 (2012); The Metropolitan Museum of Art, Marilyn (2023) (online source archived at https://www.supremecourt.gov). And in so doing, he “exposed the deficiencies” of a “mass-media culture” in which “such superficial icons loom so large.” 1 App. 208, 210 (internal quotation marks omitted). Out of a publicity photo came both memorable portraiture and pointed social commentary. As with Marilyn, similarly with Prince. In 1984, Vanity Fair commissioned Warhol to create a portrait based on a black-and-white photograph taken by noted photographer Lynn Goldsmith: As he did in the Marilyn series, Warhol cropped the photo, so that Prince’s head fills the whole frame: It thus becomes “disembodied,” as if “magically suspended in space.” Id., at 8 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting 174. And as before, Warhol converted the cropped photo into a higher-contrast image, incorporated into a silkscreen. That image isolated and exaggerated the darkest details of Prince’s head; it also reduced his “natural, angled position,” presenting him in a more face-forward way. Id., at 223. Warhol traced, painted, and inked, as earlier described. See supra, at 5–6. He also made a second silkscreen, based on his tracings; the ink he passed through that screen left differently colored, out-of-kilter lines around Prince’s face and hair (a bit hard to see in the reproduction below—more pronounced in the original). Altogether, Warhol made 14 prints and two drawings—the Prince series—in a range of unnatural, lurid hues. See Appendix, ante, at 39. Vanity Fair chose the Purple Prince to accompany an article on the musician. Thirty-two years later, just after Prince died, Condé Nast paid Warhol (now actually his foundation, see supra, at 1, n. 1) to use the Orange Prince on the cover of a special commemorative magazine. A picture (or two), as the saying goes, is worth a thousand words, so here is what those magazines published: Andy Warhol, Prince, 1984, synthetic paint and silkscreen ink on canvas Cite as: 598 U. S. ____ (2023) 9 KAGAN, J., dissenting It does not take an art expert to see a transformation— but in any event, all those offering testimony in this case agreed there was one. The experts explained, in far greater detail than I have, the laborious and painstaking work that Warhol put into these and other portraits. See 1 App. 160– 185, 212–216, 222–224. They described, in ways I have tried to suggest, the resulting visual differences between the photo and the silkscreen. As one summarized the matter: The two works are “materially distinct” in “their composition, presentation, color palette, and media”—i.e., in pretty much all their aesthetic traits. Id., at 227.3 And with the change in form came an undisputed change in meaning. Goldsmith’s focus—seen in what one expert called the “corporeality and luminosity” of her depiction—was on Prince’s “unique human identity.” Id., at 176, 227. Warhol’s focus was more nearly the opposite. His subject was “not the private person but the public image.” Id., at 159. The artist’s “flattened, cropped, exotically colored, and unnatural depiction of Prince’s disembodied head” sought to “communicate a message about the impact of celebrity” in contemporary life. Id., at 227. On Warhol’s canvas, Prince emerged as “spectral, dark, [and] uncanny”—less a real person than a “mask-like simulacrum.” Id., at 187, 249. He was reframed as a “larger than life” “icon or totem.” Id., at 257. Yet he was also reduced: He became the product of a “publicity machine” that “packages and disseminates commoditized images.” Id., at 160. He manifested, in short, the dehumanizing culture of celebrity in America. The message could —————— 3The majority attempts to minimize the visual dissimilarities between Warhol’s silkscreen and Goldsmith’s photograph by rotating the former image and then superimposing it on the latter one. See ante, at 9 (fig. 6); see also Brief for Goldsmith 17 (doing the same thing). But the majority is trying too hard: Its manipulated picture in fact reveals the significance of the cropping and facial reorientation that went into Warhol’s image. And the majority’s WarGold combo of course cannot obscure the other differences, of color and presentation, between the two works.",720
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),4,"Fair Use: Remix, Reimagine, Reuse",Class 8,"ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting not have been more different. A thought experiment may pound the point home. Suppose you were the editor of Vanity Fair or Condé Nast, publishing an article about Prince. You need, of course, some kind of picture. An employee comes to you with two options: the Goldsmith photo, the Warhol portrait. Would you say that you don’t really care? That the employee is free to flip a coin? In the majority’s view, you apparently would. Its opinion, as further discussed below, is built on the idea that both are just “portraits of Prince” that may equivalently be “used to depict Prince in magazine stories about Prince.” Ante, at 12–13; see ante, at 22–23, and n. 11, 27, n. 15, 33, 35. All I can say is that it’s a good thing the majority isn’t in the magazine business. Of course you would care! You would be drawn aesthetically to one, or instead to the other. You would want to convey the message of one, or instead of the other. The point here is not that one is better and the other worse. The point is that they are fundamentally different. You would see them not as “substitute[s],” but as divergent ways to (in the majority’s mantra) “illustrate a magazine about Prince with a portrait of Prince.” Ante, at 15, 33; see ante, at 22–23, and n. 11, 27, n. 15, 35. Or else you (like the majority) would not have much of a future in magazine publishing. In any event, the editors of Vanity Fair and Condé Nast understood the difference—the gulf in both aesthetics and meaning—between the Goldsmith photo and the Warhol portrait. They knew about the photo; but they wanted the portrait. They saw that as between the two works, Warhol had effected a transformation. B The question in this case is whether that transformation should matter in assessing whether Warhol made “fair use” of Goldsmith’s copyrighted photo. The answer is yes—it should push toward (although not dictate) a finding of fair Cite as: 598 U. S. ____ (2023) 11 KAGAN, J., dissenting use. That answer comports with the copyright statute, its underlying policy, and our precedent concerning the two. Under established copyright law (until today), Warhol’s addition of important “new expression, meaning, [and] message” counts in his favor in the fair-use inquiry. Campbell, 510 U. S., at 579. Start by asking a broader question: Why do we have “fair use” anyway? The majority responds that while copyrights encourage the making of creative works, fair use promotes their “public availability.” Ante, at 13 (internal quotation marks omitted). But that description sells fair use far short. Beyond promoting “availability,” fair use itself advances creativity and artistic progress. See Campbell, 510 U. S., at 575, 579 (fair use is “necessary to fulfill copyright’s very purpose”—to “promote science and the arts”). That is because creative work does not happen in a vacuum. “Nothing comes from nothing, nothing ever could,” said songwriter Richard Rodgers, maybe thinking not only about love and marriage but also about how the Great American Songbook arose from vaudeville, ragtime, the blues, and jazz.4 This Court has long understood the point—has gotten how new art, new invention, and new knowledge arise from existing works. Our seminal opinion on fair use quoted the illustrious Justice Story: “In truth, in literature, in science and in art, there are, and can be, few, if any, things, which . . . are strictly —————— 4 In the spirit of this opinion, I might have quoted that line without further ascription. But lawyers believe in citations, so I will tell you that the Rodgers lyric (which is, of course, from the Sound of Music) is used— to make the same point I do—in Rob Kapilow’s Listening for America: Inside the Great American Songbook From Gershwin to Sondheim (2019). One of that book’s themes is that even the most “radically new” music builds on existing works—or as Irving Berlin put the point, “songs make history, and history makes songs.” Id., at xv, 2. And so too for every other form of art. See infra, at 26–34 (making this point at greater length—and with pictures!). 12 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Id., at 575 (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CC Mass. 1845)). Because that is so, a copyright regime with no escape valves would “stifle the very creativity which [the] law is designed to foster.” Stewart, 495 U. S., at 236. Fair use is such an escape valve. It “allow[s] others to build upon” copyrighted material, so as not to “put manacles upon” creative progress. Campbell, 510 U. S., at 575 (internal quotation marks omitted). In short, copyright’s core value—promoting creativity—sometimes demands a pass for copying. To identify when that is so, the courts developed and Congress later codified a multi-factored inquiry. As the majority describes, see ante, at 14, the current statute sets out four non-exclusive considerations to guide courts. They are: (1) “the purpose and character of the use” made of the copyrighted work, “including whether such use is of a commercial nature”; (2) “the nature of the copyrighted work”; (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; and (4) “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U. S. C. §107. Those factors sometimes point in different directions; if so, a court must weigh them against each other. In doing so, we have stated, courts should view the fourth factor—which focuses on the copyright holder’s economic interests—as the “most important.” See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 566 (1985).5 But the overall balance cannot —————— 5The fourth factor has, to use the majority’s repeated example, forced many a filmmaker to pay for adapting books into movies—as we noted two Terms ago. See Google LLC v. Oracle America, Inc., 593 U. S. ___, ___ (2021) (slip op., at 30) (explaining that film adaptations may founder on “[t]he fourth statutory factor” because “[m]aking a film of an author’s book” may result in “potential or presumed losses to the copyright",1071
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),5,"Fair Use: Remix, Reimagine, Reuse",Class 8,"Cite as: 598 U. S. ____ (2023) 13 KAGAN, J., dissenting come out right unless each factor is assessed correctly. This case, of course, is about (and only about) the first. And that factor is distinctive: It is the only one that focuses on what the copier’s use of the original work accomplishes. The first factor asks about the “character” of that use—its “main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish.” Webster’s Third New International Dictionary 376 (1976). And the first factor asks about the “purpose” of the use—the “object, effect, or result aimed at, intended, or attained.” Id., at 1847. In that way, the first factor gives the copier a chance to make his case. See P. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1116 (1990) (describing factor 1 as “the soul of ” the “fair use defense”). Look, the copier can say, at how I altered the original, and what I achieved in so doing. Look at how (as Judge Leval’s seminal article put the point) the original was “used as raw material” and was “transformed —————— owner”). The majority asserts that it is “aware of no authority for the proposition” that the fourth factor can thus protect against unlicensed film adaptations, insisting that the first factor must do (or at least share in) the work. Ante, at 29, n. 17; see ante, at 16, 28–29, 36. But Google is the “authority for the proposition”: That’s just what it said, in so many words. And anyway, the majority’s own first-factor test, applied consistently, would favor, not stop, the freeloading filmmaker. As you’ve seen (and I’ll discuss below), that test boils down to whether a follow-on work serves substantially the same commercial purpose as the original—here, “depict[ing] Prince in magazine stories about Prince.” Ante, at 12–13; see ante, at 22–23, and n. 11, 27, n. 15, 33, 35. A film adaptation doesn’t fit that mold: The filmmaker (unlike Warhol, in the majority’s view) wants to reach different buyers, in different markets, consuming different products. The majority at one point suggests it might have some different factor 1 test in its back pocket to deal with this problem. See ante, at 35, n. 22. But assuming the majority’s approach, as stated repeatedly in its opinion, is truly the majority’s approach, factor 1 won’t help the author in the book-to-film situation. Under that approach, it is the fourth factor, not the first, which has to “take[] care of derivative works like book-to-film adaptations.” Ante, at 29, n. 17. It’s a good thing the majority errs in believing that the fourth factor isn’t up to the job. 14 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting in the creation of new information, new aesthetics, new insights.” Id., at 1111. That is hardly the end of the fair-use inquiry (commercialism, too, may bear on the first factor, and anyway there are three factors to go), but it matters profoundly. Because when a transformation of the original work has occurred, the user of the work has made the kind of creative contribution that copyright law has as its object. Don’t take it from me (or Judge Leval): The above is exactly what this Court has held about how to apply factor 1. In Campbell, our primary case on the topic, we stated that the first factor’s purpose-and-character test “central[ly]” concerns “whether and to what extent the new work is ‘transformative.’” 510 U. S., at 579 (quoting Leval 1111). That makes sense, we explained, because “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” 510 U. S., at 579. We then expounded on when such a transformation happens. Harking back to Justice Story, we explained that a “new work” might “merely ‘supersede[] the objects’ of the original creation”—meaning, that it does no more, and for no other end, than the first work had. Ibid. (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841)). But alternatively, the new work could “add[] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” 510 U. S., at 579. Forgive me, but given the majority’s stance (see, e.g., ante, at 33), that bears repeating: The critical factor 1 inquiry, we held, is whether a new work alters the first with “new expression, meaning, or message.” The more it does so, the more transformative the new work. And (here is the final takeaway) “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” 510 U. S., at 579. Under that approach, the Campbell Court held, the rap group 2 Live Crew’s “transformative” copying of Roy Orbison’s “Pretty Woman” counted in favor Cite as: 598 U. S. ____ (2023) 15 KAGAN, J., dissenting of fair use. Id., at 583. And that was so even though the rap song was, as everyone agreed, recorded and later sold for profit. See id., at 573. Just two Terms ago, in Google, we made all the same points. We quoted Campbell in explaining that the factor 1 inquiry is “whether the copier’s use ‘adds something new, with a further purpose or different character, altering’ the copyrighted work ‘with new expression, meaning, or message.’” 593 U. S., at ___ (slip op., at 24). We again described “a copying use that adds something new and important” as “transformative.” Ibid. We reiterated that protecting transformative uses “stimulate[s] creativity” and thus “fulfill[s] the objective of copyright law.” Ibid. (quoting Leval 1111). And then we gave an example. Yes, of course, we pointed to Andy Warhol. (The majority claims not to be embarrassed by this embarrassing fact because the specific reference was to his Soup Cans, rather than his celebrity images. But drawing a distinction between a “commentary on consumerism”—which is how the majority describes his soup canvases, ante, at 27—and a commentary on celebrity culture, i.e., the turning of people into consumption items, is slicing the baloney pretty thin.) Finally, the Court conducted the first-factor inquiry it had described. Google had replicated Sun Microsystems’ computer code as part of a “commercial endeavor,” done “for commercial profit.” 593 U. S., at ___ (slip op., at 27). No matter, said the Court. “[M]any common fair uses are indisputably commercial.” Ibid. What mattered instead was that Google had used Sun’s code to make “something new and important”: a “highly creative and innovative” software platform. Id., at ___–___ (slip op., at 24–25). The use of the code, the Court held, was therefore “transformative” and “point[ed] toward fair use.” Id., at ___, ___ (slip op., at 25, 28). Campbell and Google also illustrate the difference it can make in the world to protect transformative works through fair use. Easy enough to say (as the majority does, see ante,",1155
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),6,"Fair Use: Remix, Reimagine, Reuse",Class 8,"16 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting at 36) that a follow-on creator should just pay a licensing fee for its use of an original work. But sometimes copyright holders charge an out-of-range price for licenses. And other times they just say no. In Campbell, for example, Orbison’s successor-in-interest turned down 2 Live Crew’s request for a license, hoping to block the rap take-off of the original song. See 510 U. S., at 572–573. And in Google, the parties could not agree on licensing terms, as Sun insisted on conditions that Google thought would have subverted its business model. See 593 U. S., at ___ (slip op., at 3). So without fair use, 2 Live Crew’s and Google’s works—however new and important—might never have been made or, if made, never have reached the public. The prospect of that loss to “creative progress” is what lay behind the Court’s inquiry into transformativeness—into the expressive novelty of the follow-on work (regardless whether the original creator granted permission). Id., at ___ (slip op., at 25); see Campbell, 510 U. S., at 579. Now recall all the ways Warhol, in making a Prince portrait from the Goldsmith photo, “add[ed] something new, with a further purpose or different character”—all the ways he “alter[ed] the [original work’s] expression, meaning, [and] message.” Ibid. The differences in form and appearance, relating to “composition, presentation, color palette, and media.” 1 App. 227; see supra, at 7–10. The differences in meaning that arose from replacing a realistic—and indeed humanistic—depiction of the performer with an unnatural, disembodied, masklike one. See ibid. The conveyance of new messages about celebrity culture and its personal and societal impacts. See ibid. The presence of, in a word, “transformation”—the kind of creative building that copyright exists to encourage. Warhol’s use, to be sure, had a commercial aspect. Like most artists, Warhol did not want to hide his works in a garret; he wanted to sell them. But as Campbell and Google both demonstrate (and as fur- Cite as: 598 U. S. ____ (2023) 17 KAGAN, J., dissenting ther discussed below), that fact is nothing near the showstopper the majority claims. Remember, the more transformative the work, the less commercialism matters. See Campbell, 510 U. S., at 579; supra, at 14; ante, at 18 (acknowledging the point, even while refusing to give it any meaning). The dazzling creativity evident in the Prince portrait might not get Warhol all the way home in the fairuse inquiry; there remain other factors to be considered and possibly weighed against the first one. See supra, at 2, 10, 14. But the “purpose and character of [Warhol’s] use” of the copyrighted work—what he did to the Goldsmith photo, in service of what objects—counts powerfully in his favor. He started with an old photo, but he created a new new thing.6 II The majority does not see it. And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning. Whatever new expression Warhol added, the majority says, was not transformative. See ante, at 25. Apparently, Warhol made only “modest alterations.” Ante, at 33. Anyone, the majority suggests, could have “crop[ped], flatten[ed], trace[d], and color[ed] the photo” as Warhol did. Ante, at 8. True, Warhol portrayed Prince “somewhat differently.” Ante, at 33. But the “degree of difference” is too small: It consists merely in applying Warhol’s “characteristic style”—an aesthetic gloss, if you will—“to bring out a particular meaning” that was already “available in [Goldsmith’s] photograph.” Ibid. So too, Warhol’s commentary on celebrity culture matters not at all; the majority is not willing to concede that it even exists. See ante, at 34 (“even —————— 6 I have to admit, I stole that last phrase from Michael Lewis’s The New New Thing: A Silicon Valley Story (2014). I read the book some time ago, and the phrase stuck with me (as phrases often do). I wouldn’t have thought of it on my own. 18 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting if such commentary is perceptible”). And as for the District Court’s view that Warhol transformed Prince from a “vulnerable, uncomfortable person to an iconic, larger-than-life figure,” the majority is downright dismissive. Ante, at 32. Vulnerable, iconic—who cares? The silkscreen and the photo, the majority claims, still have the same “essential nature.” Ante, at 25, n. 14 (emphasis deleted). The description is disheartening. It’s as though Warhol is an Instagram filter, and a simple one at that (e.g., sepiatinting). “What is all the fuss about?,” the majority wants to know. Ignoring reams of expert evidence—explaining, as every art historian could explain, exactly what the fuss is about—the majority plants itself firmly in the “I could paint that” school of art criticism. No wonder the majority sees the two images as essentially fungible products in the magazine market—publish this one, publish that one, what does it matter? See ante, at 22–23; supra, at 10. The problem is that it does matter, for all the reasons given in the record and discussed above. See supra, at 9–10. Warhol based his silkscreen on a photo, but fundamentally changed its character and meaning. In belittling those creative contributions, the majority guarantees that it will reach the wrong result. Worse still, the majority maintains that those contributions, even if significant, just would not matter. All of Warhol’s artistry and social commentary is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion. Over and over, the majority incants that “[b]oth [works] are portraits of Prince used in magazines to illustrate stories about Prince”; they therefore both “share substantially the same purpose”—meaning, a commercial one. Ante, at 22– 23, 38; see ante, at 12–13, 27, n. 15, 33, 35. Or said otherwise, because Warhol entered into a licensing transaction with Condé Nast, he could not get any help from factor 1— ",1016
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),7,"Fair Use: Remix, Reimagine, Reuse",Class 8,"Cite as: 598 U. S. ____ (2023) 19 KAGAN, J., dissenting regardless how transformative his image was. See, e.g., ante, at 35 (Warhol’s licensing “outweigh[s]” any “new meaning or message” he could have offered). The majority’s commercialism-trumps-creativity analysis has only one way out. If Warhol had used Goldsmith’s photo to comment on or critique Goldsmith’s photo, he might have availed himself of that factor’s benefit (though why anyone would be interested in that work is mysterious). See ante, at 34. But because he instead commented on society—the dehumanizing culture of celebrity—he is (go figure) out of luck. From top-to-bottom, the analysis fails. It does not fit the copyright statute. It is not faithful to our precedent. And it does not serve the purpose both Congress and the Court have understood to lie at the core of fair use: “stimulat[ing] creativity,” by enabling artists and writers of every description to build on prior works. Google, 593 U. S., at ___ (slip op., at 24). That is how art, literature, and music happen; it is also how all forms of knowledge advance. Even as the majority misconstrues the law, it misunderstands—and threatens—the creative process. Start with what the statute tells us about whether the factor 1 inquiry should disregard Warhol’s creative contributions because he licensed his work. (Sneak preview: It shouldn’t.) The majority claims the text as its strong suit, viewing our precedents’ inquiry into new expression and meaning as a faulty “paraphrase” of the statutory language. Ante, at 28–30. But it is the majority, not Campbell and Google, that misreads §107(1). First, the key term “character” plays little role in the majority’s analysis. See ante, at 12–13, 22–23, and n. 11, 29 (statements of central test or holding referring only to “purpose”). And you can see why, given the counter-intuitive meaning the majority (every so often) provides. See ante, at 24–25, and n. 14. When referring to the “character” of what Warhol did, the majority says merely that he “licensed Orange Prince to Condé Nast for $10,000.” See ante, at 24. But that reductionist view 20 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting rids the term of most of its ordinary meaning. “Character” typically refers to a thing’s “main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish.” Webster’s Third 376; see supra, at 13. The essential and distinctive nature of an artist’s use of a work commonly involves artistry—as it did here. See also Campbell, 510 U. S., at 582, 588–589 (discussing the expressive “character” of 2 Live Crew’s rap). So the term “character” makes significant everything the record contains—and everything everyone (save the majority) knows—about the differences in expression and meaning between Goldsmith’s photo and Warhol’s silkscreen. Second, the majority significantly narrows §107(1)’s reference to “purpose” (thereby paralleling its constriction of “character”). It might be obvious to you that artists have artistic purposes. And surely it was obvious to the drafters of a law aiming to promote artistic (and other kinds of ) creativity. But not to the majority, which again cares only about Warhol’s decision to license his art. Warhol’s purpose, the majority says, was just to “depict Prince in [a] magazine stor[y] about Prince” in exchange for money. Ante, at 12–13. The majority spurns all that mattered to the artist—evident on the face of his work—about “expression, meaning, [and] message.” Campbell, 510 U. S., at 579; Google, 593 U. S., at ___ (slip op., at 24). That indifference to purposes beyond the commercial—for what an artist, most fundamentally, wants to communicate—finds no support in §107(1).7 —————— 7The majority seeks some statutory backing in what it describes as §107’s reference to the “specific ‘use’ ” of a work “alleged to be ‘an infringement.’ ” Ante, at 20; see also ante, at 2, 4 (GORSUCH, J., concurring). Because the challenged use here is a licensing (so says the majority), all that matters is that Goldsmith engaged in similar commercial transactions. But the majority is both rewriting and splicing the statute. The key part of the statute simply asks whether the “use made of a [copyrighted] work” is fair. (The term “alleged infringement,” which the majority banks on, nowhere exists in the text; indeed, all the statute says Cite as: 598 U. S. ____ (2023) 21 KAGAN, J., dissenting Still more, the majority’s commercialism-über-alles view of the factor 1 inquiry fits badly with two other parts of the fair-use provision. To begin, take the preamble, which gives examples of uses often thought fair: “criticism, comment, news reporting, teaching[,] . . . scholarship, or research.” §107. As we have explained, an emphasis on commercialism would “swallow” those uses—that is, would mostly deprive them of fair-use protection. Campbell, 510 U. S., at 584. For the listed “activities are generally conducted for profit in this country.” Ibid. (internal quotation marks omitted). “No man but a blockhead,” Samuel Johnson once noted, “ever wrote[] except for money.” 3 Boswell’s Life of Johnson 19 (G. Hill ed. 1934). And Congress of course knew that when it drafted the preamble. Next, skip to the last factor in the fair-use test: “the effect of the use upon the potential market for or value of the copyrighted work.” §107(4). You might think that when Congress lists two different factors for consideration, it is because the two factors are, well, different. But the majority transplants factor 4 into factor 1. Recall that the majority conducts a kind of market analysis: Warhol, the majority says, licensed his portrait of Prince to a magazine that Goldsmith could have licensed her photo to—and so may have caused her economic harm. See ante, at 22–23; see also ante, at 19 (focusing on whether a follow-on work is a market “substitute” for the original); ante, at 4 (GORSUCH, J., concurring) (describing the “salient point” as whether Warhol’s “use involved competition with Ms. Goldsmith’s —————— about infringement, and in a separate sentence, is that a fair use doesn’t count as one.) The statute—that is, the actual one—thus focuses attention on what the copier does with the underlying work. So when the statute more particularly asks (in factor 1) about the “purpose and character of the use”—meaning again, the “use made of [the copyrighted] work”—it is asking to what end, and with what result, the copier made use of the original. And that necessarily involves the issue of transformation—more specifically here, how Warhol’s silkscreen transformed Goldsmith’s photo. ",1067
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),8,"Fair Use: Remix, Reimagine, Reuse",Class 8,"22 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting image”). That issue is no doubt important in the fair-use inquiry. But it is the stuff of factor 4: how Warhol’s use affected the “value of ” or “market for” Goldsmith’s photo. Factor 1 focuses on the other side of the equation: the new expression, meaning, or message that may come from someone else using the original. Under the statute, courts are supposed to strike a balance between the two—and thus between rewarding original creators and enabling others to build on their works. That cannot happen when a court, à la the majority, double-counts the first goal and ignores the second. Is it possible I overstate the matter? I would like for that to be true. And a puzzling aspect of today’s opinion is that it occasionally acknowledges the balance that the fair-use provision contemplates. So, for example, the majority notes after reviewing the relevant text that “the central question [the first factor] asks” is whether the new work “adds something new” to the copyrighted one. Ante, at 15 (internal quotation marks omitted). Yes, exactly. And in other places, the majority suggests that a court should consider in the factor 1 analysis not merely the commercial context but also the copier’s addition of “new expression,” including new meaning or message. Ante, at 12; see ante, at 18, 24– 25, n. 13, 25, 32. In that way, the majority opinion differs from JUSTICE GORSUCH’s concurrence, which would exclude all inquiry into whether a follow-on work is transformative. See ante, at 2, 4. And it is possible lower courts will pick up on that difference, and ensure that the “newness” of a follow-on work will continue to play a significant role in the factor 1 analysis. If so, I’ll be happy to discover that my “claims [have] not age[d] well.” Ante, at 36. But that would require courts to do what the majority does not: make a serious inquiry into the follow-on artist’s creative contributions. The majority’s refusal to do so is what creates the oddity at the heart of today’s opinion. If “newness” matters (as the opinion sometimes says), then why does the majority Cite as: 598 U. S. ____ (2023) 23 KAGAN, J., dissenting dismiss all the newness Warhol added just because he licensed his portrait to Condé Nast? And why does the majority insist more generally that in a commercial context “convey[ing] a new meaning or message” is “not enough for the first factor to favor fair use”? Ante, at 35. Certainly not because of our precedent—which conflicts with nearly all the majority says. As explained earlier, this Court has decided two important cases about factor 1. See supra, at 14–16. In each, the copier had built on the original to make a product for sale—so the use was patently commercial. And in each, that fact made no difference, because the use was also transformative. The copier, we held, had made a significant creative contribution—had added real value. So in Campbell, we did not ask whether 2 Live Crew and Roy Orbison both meant to make money by “including a catchy song about women on a record album.” But cf. ante, at 12–13 (asking whether Warhol and Goldsmith both meant to charge for “depict[ing] Prince in magazine stories about Prince”). We instead asked whether 2 Live Crew had added significant “new expression, meaning, [and] message”; and because we answered yes, we held that the group’s rap song did not “merely supersede the objects of the original creation.” 510 U. S., at 579 (internal quotation marks and alteration omitted). Similarly, in Google, we took for granted that Google (the copier) and Sun (the original author) both meant to market software platforms facilitating the same tasks—just as (in the majority’s refrain) Warhol and Goldsmith both wanted to market images depicting the same subject. See 593 U. S., at ___, ___ (slip op., at 25, 27). “So what?” was our basic response. Google’s copying had enabled the company to make a “highly creative and innovative tool,” advancing “creative progress” and thus serving “the basic constitutional objective of copyright.” Id., at ___ (slip op., at 25) (internal quotation marks omitted). Search today’s opinion high and low, you will see 24 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting no such awareness of how copying can help produce valuable new works. Nor does our precedent support the majority’s strong distinction between follow-on works that “target” the original and those that do not. Ante, at 35. (Even the majority does not claim that anything in the text does so.) True enough that the rap song in Campbell fell into the former category: 2 Live Crew urged that its work was a parody of Orbison’s song. But even in discussing the value of parody, Campbell made clear the limits of targeting’s importance. The Court observed that as the “extent of transformation” increases, the relevance of targeting decreases. 510 U. S., at 581, n. 14. Google proves the point. The new work there did not parody, comment on, or otherwise direct itself to the old: The former just made use of the latter for its own devices. Yet that fact never made an appearance in the Court’s opinion; what mattered instead was the “highly creative” use Google had made of the copied code. That decision is on point here. Would Warhol’s work really have been more worthy of protection if it had (somehow) “she[d] light” on Goldsmith’s photograph, rather than on Prince, his celebrity status, and celebrity culture? Ante, at 27. Would that Goldsmith-focused work (whatever it might be) have more meaningfully advanced creative progress, which is copyright’s raison d’être, than the work he actually made? I can’t see how; more like the opposite. The majority’s preference for the directed work, apparently on grounds of necessity, see ante, at 27, 34–35, again reflects its undervaluing of transformative copying as a core part of artistry. And there’s the rub. (Yes, that’s mostly Shakespeare.) As Congress knew, and as this Court once saw, new creations come from building on—and, in the process, transforming— those coming before. Today’s decision stymies and suppresses that process, in art and every other kind of creative endeavor. The decision enhances a copyright holder’s power to inhibit artistic development, by enabling her to 
",1054
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),9,"Fair Use: Remix, Reimagine, Reuse",Class 8,"Cite as: 598 U. S. ____ (2023) 25 KAGAN, J., dissenting block even the use of a work to fashion something quite different. Or viewed the other way round, the decision impedes non-copyright holders’ artistic pursuits, by preventing them from making even the most novel uses of existing materials. On either account, the public loses: The decision operates to constrain creative expression.8 The effect, moreover, will be dramatic. Return again to Justice Story, see supra, at 11–12: “[I]n literature, in science and in art, there are, and can be, few, if any, things” that are “new and original throughout.” Campbell, 510 U. S., at 575 (quoting Emerson, 8 F. Cas., at 619). Every work “borrows, and must necessarily” do so. 510 U. S., at 575. Creators themselves know that fact deep in their bones. Here is Mark Twain on the subject: “The kern[e]l, the soul—let us go further and say the substance, the bulk, the actual and valuable material” of creative works—all are “consciously and unconsciously drawn from a million outside sources.” Letter from M. Twain to H. Keller, in 2 Mark Twain’s Letters 731 (1917); see also id., at 732 (quoting Oliver Wendell Holmes—no, not that one, his father the poet—as saying “I have never originated anything altogether myself, nor met anybody who had”). “[A]ppropriation, mimicry, quotation, allusion and sublimated collaboration,” novelist Jonathan Lethem has explained, are “a kind of sine qua non of the creative act, cutting across all forms and genres in the realm of cultural production.” The —————— 8No worries, the majority says: Today’s decision is only about the commercial licensing of artistic works, not about their “creation” or their other uses. See ante, at 21, and n. 10. So, for example, if Warhol had used his Prince silkscreen “for teaching purposes” or sought to “display [it] in a nonprofit museum,” the first factor could have gone the other way. Ante, at 21, n. 10; ante, at 6 (GORSUCH, J., concurring). But recall what Samuel Johnson said about “blockheads”: Unless an artist is one, he makes art for money. See supra, at 21. So when the majority denies follow-on artists the full reward of their creativity, it diminishes their incentive to create. And as should go without saying, works not created will not appear in classrooms and museums. 26 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting Ecstasy of Influence, in Harper’s Magazine 61 (Feb. 2007). Or as Mary Shelley once wrote, there is no such thing as “creating out of [a] void.” Frankenstein ix (1831).9 Consider, in light of those authorial references, how the majority’s factor 1 analysis might play out in literature. And why not start with the best? Shakespeare borrowed over and over and over. See, e.g., 8 Narrative and Dramatic Sources of Shakespeare 351–352 (G. Bullough ed. 1975) (“Shakespeare was an adapter of other men’s tales and plays; he liked to build a new construction on something given”). I could point to a whole slew of works, but let’s take Romeo and Juliet as an example. Shakespeare’s version copied most directly from Arthur Brooke’s The Tragical History of Romeus and Juliet, written a few decades earlier (though of course Brooke copied from someone, and that person copied from someone, and that person . . . going back at least to Ovid’s story about Pyramus and Thisbe). Shakespeare took plot, characters, themes, even passages: The friar’s line to Romeo, “Art thou a man? Thy form cries out thou art,” appeared in Brooke as “Art thou a man? The shape saith so thou art.” Bullough 387. (Shakespeare was, among other things, a good editor.) Of course Shakespeare also added loads of genius, and so made the borrowed stories “uniquely Shakespearian.” G. Williams, Shakespeare’s Basic Plot Situation, 2 Shakespeare Quarterly No. 4, p. 313 (Oct. 1951). But on the majority’s analysis? The two works—Shakespeare’s and Brooke’s—are just two stories of star-crossed lovers written for commercial gain. Shakespeare would not qualify for fair use; he would not even —————— 9OK, one last one: T. S. Eliot made the same point more, shall we say, poetically. We often harp, he wrote, on “the poet’s difference from his predecessors.” The Sacred Wood 43 (1921). “[But] we shall often find that not only the best, but the most individual parts of his work may be those in which the dead poets, his ancestors, assert their immortality most vigorously. . . . No poet, no artist of any art, has his complete meaning alone.” Id., at 43–44. Cite as: 598 U. S. ____ (2023) 27 KAGAN, J., dissenting come out ahead on factor 1. And if you think that’s just Shakespeare, here are a couple more. (Once you start looking, examples are everywhere.) Lolita, though hard to read today, is usually thought one of the greatest novels of the 20th century. But the plotline—an adult man takes a room as a lodger; embarks on an obsessive sexual relationship with the preteen daughter of the house; and eventually survives her death, remaining marked forever—appears in a story by Heinz von Lichberg written a few decades earlier. Oh, and the girl’s name is Lolita in both versions. See generally M. Maar, The Two Lolitas (2005). All that said, the two works have little in common artistically; nothing literary critics admire in the second Lolita is found in the first. But to the majority? Just two stories of revoltingly lecherous men, published for profit. So even factor 1 of the fair-use inquiry would not aid Nabokov. Or take one of the most famed adventure stories ever told. Here is the provenance of Treasure Island, as Robert Louis Stevenson himself described it: “No doubt the parrot once belonged to Robinson Crusoe. No doubt the skeleton is conveyed from [Edgar Allan] Poe. I think little of these, they are trifles and details; and no man can hope to have a monopoly of skeletons or make a corner in talking birds. . . . It is my debt to Washington Irving that exercises my conscience, and justly so, for I believe plagiarism was rarely carried farther. . . . Billy Bones, his chest, the company in the parlor, the whole inner spirit and a good deal of the material detail of my first chapters— all were there, all were the property of Washington Irving.” My First Book—Treasure Island, in 21 Syracuse University Library Associates Courier No. 2, p. 84 (1986). Odd that a book about pirates should have practiced piracy? Not really, because tons of books do—and not many in orde
",1088
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),10,"Fair Use: Remix, Reimagine, Reuse",Class 8,"ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting to “target” or otherwise comment on the originals. “Thomas Mann, himself a master of [the art,] called [it] ‘higher cribbing.’” Lethem 59. The point here is that most writers worth their salt steal other writers’ moves—and put them to other, often better uses. But the majority would say, again and yet again in the face of such transformative copying, “no factor 1 help and surely no fair use.” Or how about music? Positively rife with copying of all kinds. Suppose some early blues artist (W. C. Handy, perhaps?) had copyrighted the 12-bar, three-chord form—the essential foundation (much as Goldsmith’s photo is to Warhol’s silkscreen) of many blues songs. Under the majority’s view, Handy could then have controlled—meaning, curtailed—the development of the genre. And also of a fair bit of rock and roll. “Just another rendition of 12-bar blues for sale in record stores,” the majority would say to Chuck Berry (Johnny B. Goode), Bill Haley (Rock Around the Clock), Jimi Hendrix (Red House), or Eric Clapton (Crossroads). Or to switch genres, imagine a pioneering classical composer (Haydn?) had copyrighted the three-section sonata form. “One more piece built on the same old structure, for use in concert halls,” the majority might say to Mozart and Beethoven and countless others: “Sure, some new notes, but the backbone of your compositions is identical.” And then, there’s the appropriation of those notes, and accompanying words, for use in new and different ways. Stravinsky reportedly said that great composers do not imitate, but instead steal. See P. Yates, Twentieth Century Music 41 (1967). At any rate, he would have known. He took music from all over—from Russian folk melodies to Schoenberg—and made it inimitably his own. And then— as these things go—his music became a source for others. Charlie Parker turned The Rite of Spring into something of a jazz standard: You can still hear the Stravinsky lurking, but jazz musicians make the composition a thing of a different kind. And popular music? I won’t point fingers, but Cite as: 598 U. S. ____ (2023) 29 KAGAN, J., dissenting maybe rock’s only Nobel Laureate and greatest-ever lyricist is known for some appropriations? See M. Gilmore, The Rolling Stone Interview, Rolling Stone, Sept. 27, 2012, pp. 51, 81.10 He wouldn’t be alone. Here’s what songwriter Nick Cave (he of the Bad Seeds) once said about how music develops: “The great beauty of contemporary music, and what gives it its edge and vitality, is its devil-may-care attitude toward appropriation—everybody is grabbing stuff from everybody else, all the time. It’s a feeding frenzy of borrowed ideas that goes toward the advancement of rock music—the great artistic experiment of our era.” The Red Hand Files (Apr. 2020) (online source archived at https://www.supremecourt.gov). But not as the majority sees the matter. Are these guys making money? Are they appropriating for some different reason than to critique the thing being borrowed? Then they’re “shar[ing] the objectives” of the original work, and will get no benefit from factor 1, let alone protection from —————— 10He is, though, also one of modern music’s most bounteous sources. His work has been copied so often that Rolling Stone (whose name was partly inspired by—OK, you guessed it—Bob Dylan) recently published a list of the 80 greatest Dylan covers. See J. Wenner, A Letter from the Editor, Rolling Stone, Nov. 9, 1967, p. 2; J. Dolan et al., The 80 Greatest Dylan Covers of All Time, Rolling Stone, May 24, 2021 (online source archived at https://www.supremecourt.gov). (The list’s collators noted that Dylan so “loved the ide[a] of other people doing his songs” that they struggled to settle on 80. Ibid.) To see how important all that copying was, consider Mr. Tambourine Man. When the Byrds first heard Dylan’s demo of the song, they weren’t sure they could use it. (David Crosby thought it was way too long.) But Roger McGuinn decided he could “save” the tune. Ibid. Add a Bach-inspired guitar lick (truly, J. S. Bach) and a Beatles-inspired beat, and the “pound of Dylan’s acoustic guitars” was “transformed” into a “danceable” and “uplifting” megahit. R. Unterberger, Turn! Turn! Turn! 137 (2002). And that rendition (not Dylan’s own) launched a thousand ships. Among other things, it “spawned an entirely new style” of music—what soon came to be known as “folk-rock.” Id., at 108, 132–133. 30 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting the whole fair-use test. Ante, at 24. Finally, back to the visual arts, for while Warhol may have been the master appropriator within that field, he had plenty of company; indeed, he worked within an established tradition going back centuries (millennia?). The representatives of three giants of modern art (you may know one for his use of comics) describe the tradition as follows: “[T]he use and reuse of existing imagery” are “part of art’s lifeblood”—“not just in workaday practice or fledgling student efforts, but also in the revolutionary moments of art history.” Brief for Robert Rauschenberg, Roy Lichtenstein, and Joan Mitchell Foundations et al. as Amici Curiae 6. Consider as one example the reclining nude. Probably the first such figure in Renaissance art was Giorgione’s Sleeping Venus. (Note, though, in keeping with the “nothing comes from nothing” theme, that Giorgione apparently modeled his canvas on a woodcut illustration by Francesco Colonna.) Here is Giorgione’s painting: Giorgione, Sleeping Venus, c. 1510, oil on canvas 
",905
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),11,"Fair Use: Remix, Reimagine, Reuse",Class 8,"Cite as: 598 U. S. ____ (2023) 31 KAGAN, J., dissenting But things were destined not to end there. One of Giorgione’s pupils was Titian, and the former student undertook to riff on his master. The resulting Venus of Urbino is a prototypical example of Renaissance imitatio—the creation of an original work from an existing model. See id., at 8; 1 G. Vasari, Lives of the Artists 31, 444 (G. Bull transl. 1965). You can see the resemblance—but also the difference: Titian, Venus of Urbino, 1538, oil on canvas The majority would presumably describe these Renaissance canvases as just “two portraits of reclining nudes painted to sell to patrons.” Cf. ante, at 12–13, 22–23. But wouldn’t that miss something—indeed, everything—about how an artist engaged with a prior work to create new expression and add new value? And the reuse of past images was far from done. For here is Édouard Manet’s Olympia, now considered a foundational work of artistic modernism, but referring in obvious ways to Titian’s (and back a step, to Giorgione’s) Venus: 32 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting Manet, Olympia, 1863, oil on canvas Here again consider the account of the Rauschenberg, Lichtenstein, and Mitchell Foundations: “The revolutionary shock of the painting depends on how traditional imagery remains the painting’s recognizable foundation, even as that imagery is transformed and wrenched into the present.” Brief as Amici Curiae 9. It is an especially striking example of a recurrent phenomenon—of how the development of visual art works across time and place, constantly building on what came earlier. In fact, the Manet has itself spawned further transformative paintings, from Cézanne to a raft of contemporary artists across the globe. See id., at 10–11. But the majority, as to these matters, is uninterested and unconcerned. Take a look at one last example, from a modern master very different from Warhol, but availing himself of the same appropriative traditions. On the left (below) is Velázquez’s portrait of Pope Innocent X; on the right is Francis Bacon’s Study After Velázquez’s Portrait. Cite as: 598 U. S. ____ (2023) 33 KAGAN, J., dissenting Velázquez, Pope Innocent X, c. 1650, oil on canvas Francis Bacon, Study After Velázquez’s Portrait of Pope Innocent X, 1953, oil on canvas To begin with, note the word “after” in Bacon’s title. Copying is so deeply rooted in the visual arts that there is a naming convention for it, with “after” denoting that a painting is some kind of “imitation of a known work.” M. Clarke, The Concise Oxford Dictionary of Art Terms 5 (2d ed. 2010). Bacon made frequent use of that convention. He was especially taken by Velázquez’s portrait of Innocent X, referring to it in tens of paintings. In the one shown above, Bacon retained the subject, scale, and composition of the Velázquez original. Look at one, look at the other, and you know Bacon copied. But he also transformed. He invested his portrait with new “expression, meaning, [and] message,” converting Velázquez’s study of magisterial power into one of mortal dread. Campbell, 510 U. S., at 579. But the majority, from all it says, would find the change immaterial. Both paintings, after all, are “portraits of [Pope Innocent X] used to depict [Pope Innocent X]” for hanging in some interior space, ante, at 12–13; so on th


ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting majority’s reasoning, someone in the market for a papal portrait could use either one, see ante, at 22–23. Velázquez’s portrait, although Bacon’s model, is not “the object of [his] commentary.” Ante, at 27; see A. Zweite, Bacon’s Scream, in Francis Bacon: The Violence of the Real 71 (A. Zweite ed. 2006) (Bacon “was not seeking to expose Velázquez’s masterpiece,” but instead to “adapt it” and “give it a new meaning”). And absent that “target[ing],” the majority thinks the portraits’ distinct messages make no difference. Ante, at 27. Recall how the majority deems irrelevant the District Court’s view that the Goldsmith Prince is vulnerable, the Warhol Prince iconic. Too small a “degree of difference,” according to the majority. Ante, at 33–34; see supra, at 17. So too here, presumably: the stolid Pope, the disturbed Pope—it just doesn’t matter. But that once again misses what a copier accomplished: the making of a wholly new piece of art from an existing one. The majority thus treats creativity as a trifling part of the fair-use inquiry, in disregard of settled copyright principles and what they reflect about the artistic process. On the majority’s view, an artist had best not attempt to market even a transformative follow-on work—one that adds significant new expression, meaning, or message. That added value (unless it comes from critiquing the original) will no longer receive credit under factor 1. And so it can never hope to outweigh factor 4’s assessment of the copyright holder’s interests. The result will be what this Court has often warned against: suppression of “the very creativity which [copyright] law is designed to foster.” Stewart, 495 U. S., at 236; see supra, at 11–12. And not just on the margins. Creative progress unfolds through use and reuse, framing and reframing: One work builds on what has gone before; and later works build on that one; and so on through time. Congress grasped the idea when it directed courts to attend to the “purpose and character” of artistic borrow- Cite as: 598 U. S. ____ (2023) 35 
",906
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf,Warhol v. Goldsmith (Kagan's dissent),12,"Fair Use: Remix, Reimagine, Reuse",Class 8,"KAGAN, J., dissenting ing—to what the borrower has made out of existing materials. That inquiry recognizes the value in using existing materials to fashion something new. And so too, this Court— from Justice Story’s time to two Terms ago—has known that it is through such iterative processes that knowledge accumulates and art flourishes. But not anymore. The majority’s decision is no “continuation” of “existing copyright law.” Ante, at 37. In declining to acknowledge the importance of transformative copying, the Court today, and for the first time, turns its back on how creativity works. III And the workings of creativity bring us back to Andy Warhol. For Warhol, as this Court noted in Google, is the very embodiment of transformative copying. He is proof of concept—that an artist working from a model can create important new expression. Or said more strongly, that appropriations can help bring great art into being. Warhol is a towering figure in modern art not despite but because of his use of source materials. His work—whether Soup Cans and Brillo Boxes or Marilyn and Prince—turned something not his into something all his own. Except that it also became all of ours, because his work today occupies a significant place not only in our museums but in our wider artistic culture. And if the majority somehow cannot see it—well, that’s what evidentiary records are for. The one in this case contained undisputed testimony, and lots of it, that Warhol’s Prince series conveyed a fundamentally different idea, in a fundamentally different artistic style, than the photo he started from. That is not the end of the fair-use inquiry. The test, recall, has four parts, with one focusing squarely on Goldsmith’s interests. But factor 1 is supposed to measure what Warhol has done. Did his “new work” “add[] something new, with a further purpose or different character”? Campbell, 510 U. S., at 579. Did it “alter[] the first with new expression, meaning, or message”? Ibid. It did, 36 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH KAGAN, J., dissenting and it did. In failing to give Warhol credit for that transformation, the majority distorts ultimate resolution of the fair-use question. Still more troubling are the consequences of today’s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more. Goldsmith would probably have granted Warhol a license with few conditions, and for a price well within his budget. But as our precedents show, licensors sometimes place stringent limits on follow-on uses, especially to prevent kinds of expression they disapprove. And licensors may charge fees that prevent many or most artists from gaining access to original works. Of course, that is all well and good if an artist wants merely to copy the original and market it as his own. Preventing those uses—and thus incentivizing the creation of original works—is what copyrights are for. But when the artist wants to make a transformative use, a different issue is presented. By now, the reason why should be obvious. “Inhibit[ing] subsequent writers” and artists from “improv[ing] upon prior works”— as the majority does today—will “frustrate the very ends sought to be attained” by copyright law. Harper & Row, 471 U. S., at 549. It will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer. 

",586
https://yalelawtech.org/wp-content/uploads/2021/09/capitol-records-v.-redigi-accessible.pdf,Capitol Records v. ReDigi (2nd Cir 2018),1,Copyright and Disruptive Technology,Class 10,"Capitol Records, LLC et. al. v. ReDigi Inc., et. al.     	  
UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 
 
August Term, 2017 
 
	(Argued: August 22, 2017  	 	Decided: December 12, 2018) 
 
Docket No. 16‐2321 
_____________________________________ 
 
Capitol Records, LLC, Capitol Christian Music Group, Inc., Virgin Records IR Holdings, Inc., 
 
Plaintiffs‐Appellees, 
 
v. 
 
ReDigi Inc., John Ossenmacher, Larry Rudolph, AKA Lawrence S. Rogel, 
 
Defendants‐Appellants. 
_____________________________________ 
 
Before: 	 
 
 	JON O. NEWMAN, PIERRE N. LEVAL, and ROSEMARY S. POOLER, 
Circuit Judges. 
 
 	Defendants, ReDigi Inc. and related persons, appeal from the grant of partial summary judgment and stipulated final judgment by the United States District Court for the Southern District of New York (Richard J. Sullivan, J.) in favor of Plaintiffs, record companies whose copyrighted sound recordings were resold through the ReDigi platform.  The district court found copyright infringement. AFFIRMED.  
 	 	 	 	 	 	 
RICHARD S. MANDEL, New York, 
N.Y. (Jonathan Z. King, Cowan, 
Liebowitz & Latman, P.C., New York, 
N.Y., on the brief), for Plaintiffs‐Appellees.
 	 
ROBERT C. WELSH, New York, N.Y. 
(C. Dennis Loomis, Baker & Hostetler 
LLP, Los Angeles, CA, on the brief) for 
Defendant‐Appellants. 
 
LEVAL, Circuit Judge: 
Defendant ReDigi, Inc. and its founders, Defendants Larry Rudolph and John Ossenmacher,  appeal from the judgment of the United States District Court for the Southern District of New York (Richard J. Sullivan, J.) in favor of Plaintiffs, Capitol Records, LLC, Capitol Christian Music Group, Inc., and Virgin Records IR Holdings, Inc. (“Plaintiffs”), finding copyright infringement. Defendants had created an Internet platform designed to enable the lawful resale, under the first sale doctrine, of lawfully purchased digital music files, and had hosted resales of such files on the platform. The district court concluded that, notwithstanding the “first sale” doctrine, codified in the Copyright Act of 1976, 17 U.S.C. § 109(a), ReDigi’s Internet system version 1.0 infringed the Plaintiffs’ copyrights by enabling the resale of such digital files containing sound recordings of Plaintiffs’ copyrighted music. We agree with the district court that ReDigi infringed the Plaintiffs’ exclusive rights under 17 
U.S.C. § 106(1) to reproduce their copyrighted works. We make no decision whether ReDigi also infringed the Plaintiffs’ exclusive rights under 17 U.S.C. § 106(3) to distribute their works.          
BACKGROUND 
	I. 	Facts 
Plaintiffs are record companies, which own copyrights or licenses in sound recordings of musical performances. Plaintiffs distribute those sound recordings in numerous forms, of which the most familiar twenty years ago was the compact disc. Today, Plaintiffs also distribute their music in the form of digital files, which are sold to the public by authorized agent services, such as Apple iTunes, under license from Plaintiffs. Purchasers from the Apple iTunes online store download the files onto their personal computers or other devices.  
ReDigi was founded by Defendants Ossenmacher and Rudolph in 2009 with the goal of creating enabling technology and providing a marketplace for the lawful resale of lawfully purchased digital music files.  Ossenmacher served as ReDigi’s Chief Executive Officer and Rudolph, who spent twelve years as a Principal Research Scientist at the Massachusetts Institute of Technology, served as ReDigi’s Chief Technical Officer. During the period addressed by the operative complaint, ReDigi, through its system version 1.0, hosted resales of digital music files containing the Plaintiffs’ music by persons who had lawfully purchased the files from iTunes.  
Considering the evidence in the light most favorable to ReDigi, 
ReDigi’s system version 1.0 operates as follows.  
1.	Music Manager: A person who owns a digital music file lawfully purchased from iTunes and intends to employ ReDigi’s system to resell it (the “user”) must first download and install onto her computer ReDigi’s “Music Manager” software program (“Music Manager”). Once Music Manager has 
been installed, it analyzes the digital file intended for resale, verifies that the file was originally lawfully purchased from iTunes, and scans it for indications of tampering. If the file was lawfully purchased, Music Manager deems it an “Eligible File” that may be resold.   
2.	Data Migration:  The ReDigi user must then cause the file to be transferred to ReDigi’s remote server, known as the “Cloud Locker.” To effectuate this transfer, ReDigi developed a new method that functions differently from the conventional file transfer. The conventional process is to reproduce the digital file at the receiving destination so that, upon completion of the transfer, the file exists simultaneously on both the receiving device and on the device from which it was transferred. If connectivity is disrupted during such a standard transfer, the process can be repeated because the file remains intact on the sender’s device.  
Under ReDigi’s method—which it calls “data migration”—ReDigi’s software “begins by breaking the [digital] music file into small ‘blocks’ [of data] of roughly four thousand bytes in length.” Appellants Br. 24. Once the file has been broken into blocks of data (“packets”), ReDigi’s system creates a 
“transitory copy” of each packet in the initial purchaser’s computer buffer. Id. Upon copying (or “reading”) a packet into the initial purchaser’s computer buffer, ReDigi’s software sends a command to delete that packet of the digital file from permanent storage on the initial purchaser’s device. Rogel Decl. App’x 690‐91.  ReDigi’s software then sends the packet to the ReDigi software to be copied into the buffer and deleted from the user’s device. Rogel Decl. App’x 691. During the data migration process, the digital file cannot be accessed, played, or perceived. If connectivity is disrupted during the data migration process, the remnants of the digital file on the user’s device are unusable, and the transfer cannot be re‐initiated. In such circumstances, 
ReDigi (according to its brief) bears the cost of the user’s loss. Appellants Br. 25.   
Once all the packets of the source file have been transferred to ReDigi’s server, the Eligible File has been entirely removed from the user’s device. The packets are then re‐assembled into a complete, accessible, and playable file on 
ReDigi’s server.  
ReDigi describes its primary technological innovation using the metaphor of a train (the digital file) leaving from one station (the original purchaser’s device) and arriving at its destination (in the first instance, ",1016
https://yalelawtech.org/wp-content/uploads/2021/09/capitol-records-v.-redigi-accessible.pdf,Capitol Records v. ReDigi (2nd Cir 2018),2,Copyright and Disruptive Technology,Class 10,"ReDigi’s server). Under either the typical method or ReDigi’s method, packets are sent sequentially, such that, conceptually, “each packet is a car” moving from the source to the destination device. App’x 657. Once all the packets arrive at the destination device, they are reassembled into a usable file. Id. At that moment, in a typical transfer, the entire digital file in usable form exists on both devices. Id. ReDigi’s system differs in that it effectuates a deletion of each packet from the user’s device immediately after the “transitory copy” of that packet arrives in the computer’s buffer (before the packet is forwarded to ReDigi’s server). In other words, as each packet “leaves the station,” ReDigi deletes it from the original purchaser’s device such that it “no longer exists” on that device. Id. As a result, the entire file never exists in two places at once. 
Id.  
After the file has reached ReDigi’s server but before it has been resold, the user may continue to listen to it by streaming audio from the user’s Cloud Locker on ReDigi’s server. If the user later re‐downloads the file from her
Cloud Locker to her computer, ReDigi will delete the file from its own server.   
3.        Resale: Once an Eligible File has “migrated” to ReDigi’s server, it can be resold by the user utilizing ReDigi’s market function. If it is resold, ReDigi gives the new purchaser exclusive access to the file. ReDigi will (at the new purchaser’s option) either download the file to the new purchaser’s computer or other device (simultaneously deleting the file from its own server) or will retain the file in the new purchaser’s Cloud Locker on ReDigi’s server, from which the new purchaser can stream the music. ReDigi’s terms of service state that digital media purchases may be streamed or downloaded only for personal use.  
4.        Duplicates: ReDigi purports to guard against a user’s retention of duplicates of her digital music files after she sells the files through ReDigi. To that end, Music Manager continuously monitors the user’s computer hard drive and connected devices to detect duplicates. When a user attempts to upload an Eligible File to ReDigi’s server, ReDigi “prompt[s]” her to delete any pre‐existing duplicates that Music Manager has detected. If ReDigi detects that the user has not deleted the duplicates, ReDigi blocks the upload of the Eligible File. After an upload is complete, Music Manager continues to search the user’s connected devices for duplicates. If it detects a duplicate of a previously uploaded Eligible File, ReDigi will prompt the user to authorize ReDigi to delete that duplicate from her personal device and, if authorization is not granted, it will suspend her account.    
Plaintiffs point out, and ReDigi does not dispute, that these precautions do not prevent the retention of duplicates after resale through ReDigi. Suspension of the original purchaser’s ReDigi account does not negate the fact that the original purchaser has both sold and retained the digital music file after she sold it. So long as the user retains previously‐made duplicates on devices not linked to the computer that hosts Music Manager, Music Manager will not detect them. This means that a user could, prior to resale through ReDigi, store a duplicate on a compact disc, thumb drive, or third‐party cloud service unconnected to the computer that hosts Music Manager and access that duplicate post‐resale.  While ReDigi’s suspension of the original purchaser’s ReDigi account may be a disincentive to the retention of sold files, it does not prevent the user from retaining sold files.  
 
        II.         Proceedings Below 
On January 6, 2012, Plaintiffs brought this action, originally solely against ReDigi, Inc., alleging inter alia, that in the operation of ReDigi’s system version 1.0, it infringed Plaintiffs’ copyrights by unauthorized reproduction and distribution of Plaintiffs’ copyrighted works. The parties cross‐moved for summary judgment. On March 30, 2013, the district court granted partial summary judgment in Plaintiffs’ favor finding infringement. Plaintiffs subsequently filed a first amended complaint, adding Ossenmacher and Rudolph as individual defendants. On November 2, 2015, the parties proposed a joint stipulation in which Ossenmacher and Rudolph waived their right to contest liability independent of ReDigi, Inc. On June 6, 2016, the district court entered a stipulated final judgment awarding damages to Plaintiffs in the amount of three million five hundred thousand dollars 
($3,500,000) and permanently enjoining Defendants from operating the 
ReDigi system.  In the stipulation, Defendants reserved the right to appeal solely from the district court’s finding of liability for reproduction and distribution as set forth in the summary judgment order. Defendants timely filed notice of this appeal on July 1, 2016. On August 11, 2016, the appeal was stayed as a result of the Defendants’ bankruptcy proceedings in the United States Bankruptcy Court for the Southern District of Florida. The stay was lifted on December 12, 2016.  
 
DISCUSSION 
        I.         The First Sale Doctrine 
The primary issue on appeal is whether ReDigi’s system version 1.0 lawfully enables resales of its users’ digital files. Sections 106(1) and (3) of the 
Copyright Act respectively grant the owner of a copyright the exclusive right to control the reproduction and the distribution of the copyrighted work.  17 U.S.C. § 106(1) & (3). Under the first sale doctrine, codified in § 109(a), the rights holder’s control over the distribution of any particular copy or phonorecord that was lawfully made effectively terminates when that copy or phonorecord is distributed to its first recipient. Section 109(a) provides:  
“Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”  
 

",951
https://yalelawtech.org/wp-content/uploads/2021/09/capitol-records-v.-redigi-accessible.pdf,Capitol Records v. ReDigi (2nd Cir 2018),3,Copyright and Disruptive Technology,Class 10,"ReDigi argues on appeal that its system effectuates transfer of the particular digital file that the user lawfully purchased from iTunes, that it should not be deemed to have reproduced that file, and that it should therefore come within the protection of 17 U.S.C. § 109(a). ReDigi makes two primary contentions in support of these arguments.  
First, ReDigi asserts—as it must for its first sale argument to succeed— that the digital files should be considered “material objects” and therefore, under 17 U.S.C. § 101’s definition of “phonorecords” as “material objects,” should qualify as “phonorecords” eligible for the protection of § 109(a).  
Second, ReDigi argues that from a technical standpoint, its process should not be seen as making a reproduction. ReDigi emphasizes that its system simultaneously “causes [packets] to be removed from the . . . file remaining in the consumer’s computer” as those packets are copied into the computer buffer and then transferred to the ReDigi server, Appellants Br. 24, so that the complete file never exists in more than one place at the same time, and the “file on the user’s machine continually shrinks in size while the file on the server grows in size.” App’x 691.  ReDigi points out that the “sum of the size of the data” stored in the original purchaser’s computer and in ReDigi’s server never exceeds the “size of the original file,” which, according to ReDigi, “confirms that no reproductions are made during the transfer process.” Appellants Br. 25.  17 U.S.C. § 109(a).  
Under this provision, it is well established that the lawful purchaser of a copy of a book is free to resell, lend, give, or otherwise transfer that copy without violating the copyright holder’s exclusive right of distribution. The copy so resold or re‐transferred may be re‐transferred again and again without violating the exclusive distribution right. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 530 (2013); Quality King Distribs. v. L’Anza Research 
Int’l, Inc., 523 U.S. 135, 152 (1998); Bobbs‐Merrill Co. v. Straus, 210 U.S. 339, 351 (1908); see also 4 Patry on Copyright § 13:15 (“Placing a lawful copy of a work in commerce exhausts the distribution and display rights with respect to that particular copy . . . .”). It is undisputed that one who owns a digital file from iTunes of music that is fixed in a material object qualifies as “the owner of a particular . . . phonorecord lawfully made,” 17 U.S.C. § 109(a), and is thus entitled under § 109(a) “to sell or otherwise dispose of the possession of that . . . phonorecord,” id. (emphasis added), without violating § 106(3). On the other hand, § 109(a) says nothing about the rights holder’s control under § 
106(1) over reproduction of a copy or phonorecord.  
The district court found that resales through ReDigi were infringing for two reasons. The first reason was that, in the course of ReDigi’s transfer, the phonorecord has been reproduced in a manner that violates the Plaintiffs’ exclusive control of reproduction under § 106(1); the second was that the digital files sold through ReDigi, being unlawful reproductions, are not subject to the resale right established by § 109(a), which applies solely to a “particular . . . phonorecord . . . lawfully made.” 17 U.S.C. § 109(a). We agree with the first reason underlying the district court’s finding of infringement. As that is a sufficient reason for affirmance of the judgment, we make no ruling on the district court’s second reason.  As for ReDigi’s first argument, that the digital file it transfers is a phonorecord protected by § 109(a), we do not decide this issue because we find that ReDigi effectuates an unlawful reproduction even if the digital file itself qualifies as a phonorecord.  
As for ReDigi’s second argument, we reject it for the following reasons. 
The Copyright Act defines phonorecords as “material objects in which sounds . . . are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 101. Accordingly, when the purchaser of a digital music file from iTunes possesses that file, embodied “for a period of more than transitory duration” in a computer or other physical storage device, Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2d Cir. 2008) (quoting 17 U.S.C. § 101), that device—or at least the portion of it in which the digital music file is fixed (e.g., the location on the hard drive)—becomes a phonorecord. See London‐Sire Records, Inc. v. Doe, 542 F. Supp. 2d 153, 171 (D. Mass. 2008) (holding that the segment of a hard disc on which an electronic music file is encoded is a “phonorecord” under the Copyright Act). In the course of transferring a digital music file from an original purchaser’s computer, through ReDigi, to a new purchaser, the digital file is first received and stored on ReDigi’s server and then, at the new purchaser’s option, may also be subsequently received and stored on the new purchaser’s device.  At each of these steps, the digital file is fixed in a new material object “for a period of more than transitory duration.” Cartoon Network, 536 F.3d at 127. The fixing of the digital file in ReDigi’s server, as well as in the new purchaser’s device, creates a new phonorecord, which is a reproduction. ReDigi version 1.0’s process for enabling the resale of digital files thus inevitably involves the creation of new phonorecords by reproduction, even if the standalone digital file is deemed to be a phonorecord.  
",935
https://yalelawtech.org/wp-content/uploads/2021/09/capitol-records-v.-redigi-accessible.pdf,Capitol Records v. ReDigi (2nd Cir 2018),4,Copyright and Disruptive Technology,Class 10,"As for the argument that, as ReDigi copies a packet of data, it deletes the equivalent packet in the user’s device so that the amount of data extant in the transfer process remains constant, this does not rebut or nullify the fact that the eventual receipt and storage of that file in ReDigi’s server, as well as in the new purchaser’s device (at his option), does involve the making of new phonorecords. Unless the creation of those new phonorecords is justified by the doctrine of fair use, which we discuss and reject in a later portion of this opinion, the creation of such new phonorecords involves unauthorized reproduction, which is not protected, or even addressed, by § 109(a).  
ReDigi makes several additional arguments designed to characterize its process as involving the transfer of its users’ lawfully made phonorecords, rather than the creation of new phonorecords. None of these arguments negates the crucial fact that each transfer of a digital music file to ReDigi’s server and each new purchaser’s download of a digital music file to his device creates new phonorecords. ReDigi argues, for example, that during a transfer through ReDigi’s data migration technology, each packet of data from the original source file resides in a buffer “for less than a second” before being overwritten, Appellants Br. 27, and thus fails to satisfy the requirement that a sound recording must be embodied “for a period of more than transitory duration” to qualify as a phonorecord, 17 U.S.C. § 101; Cartoon Network, 536 F.3d at 127. Even if, during transfer, ReDigi’s system retains each digital file in a computer buffer for a period of no more than transitory duration, those files subsequently become embodied in ReDigi’s server and in the new purchaser’s device, where they remain for periods “of more than transitory duration.” Cartoon Network, 536 F.3d at 127. ReDigi’s server and the resale purchaser’s device on which the digital music files are fixed constitute or contain new phonorecords under the statute.  
ReDigi next argues that, in the course of transferring a user’s file to ReDigi’s own server, and to the resale purchaser’s device, ReDigi sees to it that all of the original purchaser’s preexisting duplicates are destroyed. As an initial matter, as noted above, ReDigi here overclaims. It does not ensure against retention of duplicate phonorecords created by the original owner.  ReDigi’s assertion that “there is never an instance when [an] Eligible File could exist in more than one place or be accessed by more than one user” is simply not supported by ReDigi’s own evidence. Def.  56.1 Statement, App’x 1490. In addition, even if ReDigi effectively compensated (by offsetting deletions) for the making of unauthorized reproductions in violation of the rights holder’s exclusive reproduction right under § 106(1), nonetheless ReDigi’s process itself involves the making of unauthorized reproductions that infringe the exclusive reproduction right unless justified under fair use.  We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.  
ReDigi further argues, citing ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60 (2d Cir. 1996), that the computer hard drive into which the original purchaser’s digital file is embedded cannot be her lawfully made phonorecord. A computer hard drive, ReDigi argues, cannot qualify as a phonorecord under § 101 because it contains more than a sound recording. This argument misinterprets ABKCO. We held in ABKCO that a license to publish a phonorecord did not authorize the publication of compact discs for use in karaoke that contained both sound recordings and visual depictions of song lyrics. 96 F.3d at 64. The ABKCO opinion undertook to construe the breadth of a compulsory license. The opinion does not support the conclusion that a compact disc that stores visual depictions of words as well as recorded music does not contain a phonorecord. To be sure, a license to distribute phonorecords of a particular song would not by its terms authorize the distribution of whatever other copyrighted content is contained in a computer hard drive that also contains the recording of the song. But it does not follow that a device or other “material object[] in which sounds . . . are fixed . . . and from which the sounds can be perceived, reproduced, or otherwise communicated,” 17 U.S.C. § 101, is not a phonorecord, merely because it contains other matter as well. We reject ReDigi’s argument.    
Finally, ReDigi argues that the district court’s conclusion makes no sense because it would “require a customer to sell her [valuable] computer in order to be able to sell a[n] . . . iTunes music file” that was lawfully purchased for under $1.00. Appellants Br. 28. Of course it would make no economic sense for a customer to sell her computer or even a $5.00 thumb drive in order to sell “a[n] . . . iTunes music file” purchased for $1.00.  But ReDigi far overstates its economic argument when it asserts that the “district court’s ruling . . . eliminat[es] any meaningful competition from resellers” as “no secondary market . . . can ever develop if consumers are required to give away their computer hard disks as part of any resale.” Appellants Br. 35. A secondary market can readily be imagined for first purchasers who costeffectively place 50 or 100 (or more) songs on an inexpensive device such as a thumb drive and sell it. See U.S. Copyright Office, Library of Cong., Digital Millennium Copyright Act § 104 Report 78 (2001) (“DMCA Report 2001”) (“Physical copies of works in a digital format, such as CDs or DVDs, are subject to section 109 in the same way as physical copies of works in analog 
",959
https://yalelawtech.org/wp-content/uploads/2021/09/capitol-records-v.-redigi-accessible.pdf,Capitol Records v. ReDigi (2nd Cir 2018),5,Copyright and Disruptive Technology,Class 10,"1076. Even if we were to accept the Ninth Circuit’s construction of the term “digital music recording” under the AHRA, that would not alter the meaning of the term “phonorecord” under § 101 of the Copyright Act. See id. at 1077 n.4.  
form.”); 4 Patry on Copyright § 13:23 (observing that § 109 permits the sale of an iPod that contains lawfully made digital music files). Furthermore, other technology may exist or be developed that could lawfully effectuate a digital 
first sale.  
We conclude that the operation of ReDigi version 1.0 in effectuating a resale results in the making of at least one unauthorized reproduction. Unauthorized reproduction is not protected by § 109(a). It violates the rights holder’s exclusive reproduction rights under § 106(1) unless excused as fair use. For reasons explained below, we conclude that the making of such reproductions is not a fair use.  
Our conclusion is supported by the fact that the Copyright Office also concluded that the resale of digital files is infringing. In 1998, Congress mandated that the Register of Copyrights evaluate “the relationship between existing and emergent technology and the operation of section[] 109 . . . .” 
Digital Millennium Copyright Act, Pub. L. No. 105‐304, 112 Stat. 2860, 2876 (1998). The Copyright Office conducted a multi‐year evaluation, including review of comments and testimony from the public, academia, libraries, copyright organizations and copyright owners. DMCA Report 2001 at vi. The Register concluded that § 109 does not apply to otherwise unauthorized digital transmissions of a copyrighted work, reasoning that such transmissions cause the recipient to obtain a new copy of the work. Id. at 7980. The Register reasoned that the creation of a new copy of the work would constitute an unauthorized reproduction falling outside the authorization of 
§ 109(a). Id.; see also 2 Nimmer on Copyright § 8.13[A] (describing the Register’s “recommend[ation] against amending the Copyright Act to 
facilitate a digital first sale”). 
ReDigi argues that the Register’s 2001 report is obsolete because it presumed that the only way to transfer digital files over the Internet was by the traditional “copy and delete” method, whereas new technologies either have been or might be developed that transfer digital files over the Internet using a non‐infringing method. Plaintiffs counter that, in 2016, the Register again asserted that “a digital file transfer creates a new copy or phonorecord on the transferee’s computer” and thus does not qualify for first sale protection. U.S. Copyright Office, Library of Cong., The Making Available Right in the United States 22, n.94 (2016) (quoting the district court’s decision in this action with approval). We need not pronounce upon the ongoing relevance of the Register’s 2001 report, or decide whether all digital file transmissions over the Internet make reproductions, to determine that 
ReDigi’s system version 1.0 does so.   
 
	II. 	Fair Use 
ReDigi argues that, regardless of whether what it does is protected by § 109(a), its actions are protected under the doctrine of fair use. We evaluate 
ReDigi’s claim in accordance with the fair use statute. Section 107 of the 
Copyright Act provides:  
[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 
 
(1)	the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 
 
(2)	the nature of the copyrighted work; 
 
(3)	the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 
 
(4)	the effect of the use upon the potential market for or value of the copyrighted work.  
 
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.  
 
17 U.S.C. § 107.  
 
ReDigi’s argument for fair use in its opening brief did not address the statutory factors. Nonetheless, we consider each in turn.  
",691
https://yalelawtech.org/wp-content/uploads/2021/09/capitol-records-v.-redigi-accessible.pdf,Capitol Records v. ReDigi (2nd Cir 2018),6,Copyright and Disruptive Technology,Class 10,"A. 	Factor One  
Factor One considers “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1). The Supreme Court has observed that this factor favors secondary uses that are transformative, meaning that the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]” rather than merely superseding the original work. Campbell v. Acuff‐Rose Music, Inc., 510 U.S. 569, 579 (1994). Uses that criticize, comment on, provide information about, or provide new uses for the copyrighted work are those likely to be deemed transformative. See, e.g., Campbell, 510 U.S. at 580‐81 (“Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s . . . imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”) (internal citations and footnote omitted). Similarly, a secondary use may be transformative if it provides information about the original, “or expands its utility.” Authors Guild v. Google, Inc., 804 F.3d 202, 214 (2d Cir. 2015) (“Google Books”). Examples of such utility‐expanding transformative fair uses have included scanning books to create a full‐text searchable database and public search function (in a manner that did not allow users to read the texts), Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97‐98 (2d Cir. 2014); copying works into a database used to detect plagiarism, A.V. ex rel. Vanderhye v. iParadigms, 
LLC, 562 F.3d 630, 639 (4th Cir. 2009); displaying tiny, low‐resolution “thumbnail” reproductions of art works to provide links serving as Internet pathways to the appropriate websites containing the originals, Perfect 10, Inc. 
v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 818‐19 (9th Cir. 2003), and copying by one who has acquired the right to view the content of a telecast to enable a single, noncommercial home viewing at a more convenient time, Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 421, 448‐55 (1984). In Sony, the “apparent reasoning was that a secondary use may be a fair use if it utilizes technology to achieve the transformative purpose of improving the efficiency of delivering content without unreasonably encroaching on the commercial entitlements of the rights holder” because the improved delivery was to one entitled to receive the content. Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 
169, 177 (2d Cir. 2018).  
ReDigi makes no change in the copyrighted work. It provides neither criticism, commentary, nor information about it. Nor does it deliver the content in more convenient and usable form to one who has acquired an entitlement to receive the content. What ReDigi does is essentially to provide a market for the resale of digital music files, which resales compete with sales of the same recorded music by the rights holder. These characteristics of 
ReDigi’s use favor Plaintiffs under Factor One. 
In addition, while the mere fact of a commercial motivation rarely pushes the first factor determination against fair use (as so many of the canonical fair uses, such as book reviews; quotation of prominent figures in news reports, news commentary, and history books; the performance of parodic plays; and the sale of parodic books, are all commercial, see Google Books, 804 F.3d at 219), in some circumstances a commercial motive will weigh against a finding of fair use under Factor One. As noted in Campbell, the less a use provides transformative value, the more its commercialism will weigh against a finding of fair use. See 510 U.S. at 579. Here, ReDigi hosts a remunerative marketplace that enables resale by purchasers of digital music files, which is a commercial purpose. Especially in view of the total absence (or at least very low degree) of transformative purpose, the commercial motivation here argues against ReDigi with respect to Factor One.  
	B. 	Factor Two  
The second fair use factor concerns “the nature of the copyrighted work.” 17 U.S.C. § 107(2). Except to the extent that the nature of the copyrighted work is necessarily considered alongside the character and purpose of the secondary use in deciding whether the secondary use has a transformative purpose, it rarely, by itself, furnishes any substantial reasoning for favoring or disfavoring fair use. See Google Books, 804 F.3d at 220.  This case is no exception.  
 
	C. 	Factor Three  
The third factor considers “the amount and substantiality of the portion 
[of the original] used in relation to the copyrighted work as a whole.” 17 
U.S.C. § 107(3). ReDigi’s system makes identical copies of the whole of Plaintiffs’ copyrighted sound recordings. Although use of the entirety of a digital file is not necessarily inconsistent with a finding of fair use, see Google Books, 804 F.3d at 221‐22; HathiTrust, 755 F.3d at 98; iParadigms, 562 F.3d at 642; Perfect 10, 508 F.3d at 1165; Arriba Soft, 336 F.3d at 818‐19, it tends to disfavor a finding of fair use. 
	D. 	Factor Four  
The fourth statutory factor is “the effect of the [copying] use upon the potential market for or value of the copyrighted work.” § 107(4). When a secondary use competes in the rightsholder’s market as an effective substitute for the original, it impedes the purpose of copyright to incentivize new creative works by enabling their creators to profit from them. For this reason, the Supreme Court in Harper & Row Publishers, Inc. v. Nation Enterprises described the fourth factor as “undoubtedly the single most important element of fair use.” 471 U.S. 539, 566 (1985) (relying on the Nimmer treatise).  Factor Four “focuses on whether the copy brings to the marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the original.” TVEyes, 883 F.3d at 179 (quoting Google Books, 804 F.3d at 223). Factor Four is necessarily intertwined with Factor One; the more the objective of secondary use differs from that of the original, the less likely it will supplant the commercial market for the original. See Google Books, 804 F.3d at 
223.     
As Plaintiffs argue, ReDigi made reproductions of Plaintiffs’ works for the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.  ReDigi’s replicas were sold to the same consumers whose objective in purchasing was to acquire Plaintiffs’ music. It is also of possible relevance that there is a distinction between ReDigi’s resales and ",1099
https://yalelawtech.org/wp-content/uploads/2021/09/capitol-records-v.-redigi-accessible.pdf,Capitol Records v. ReDigi (2nd Cir 2018),7,Copyright and Disruptive Technology,Class 10,"resales of physical books and records. The digital files resold by ReDigi, although used, do not deteriorate the way printed books and physical records deteriorate. As the district court observed, the principal difference between the “product sold in ReDigi’s secondary market” and that sold by Plaintiffs or their licensees in the primary market was its lower price. Capitol Records, LLC 
v. ReDigi Inc., 934 F. Supp. 2d 640, 654 (S.D.N.Y. 2013).  
Factor Four weighs powerfully against fair use. 
	E. 	Factors Weighed Together Four  
The Supreme Court has instructed that, to ascertain whether there is fair use, all four of the statutory factors must be weighed together. Campbell, 510 U.S. at 577‐78. Our consideration is informed by our recent holding in TVEyes, 883 F.3d at 175. TVEyes copied all televised video programming throughout the nation, together with its accompanying closed‐captioned text, into a database. It offered a commercial subscription service through which business and professional clients could search the transcripts, receive a list of video segments that mentioned the searched terms, and then view up to ten minutes of each video segment. Id. Fox News Network, a producer of televised content, sued, claiming that TVEyes’s distribution of Fox’s programming to TVEyes’s subscribers infringed Fox’s copyright. Id. We found that TVEyes’s secondary use deployed modestly transformative technology (akin to the time shifting technology of Sony) in that “it enable[d] nearly instant access to a subset of material—and to information about the material—that would otherwise be irretrievable, or else retrievable only through prohibitively inconvenient or inefficient means.” Id. at 177. As in Sony, it enabled its customers to view “programming they want at a time and place that is convenient to them, rather than at the time and place of broadcast.” Id. at 177‐78. Nonetheless, we held that TVEyes’s use was not a fair use because it substantially competed with the rights holders’ legitimate market. Id. at 180. By providing Fox’s copyrighted programming to its clients “without payment to [the rights holder], TVEyes . . . usurped a market that properly belong[ed] to the copyright‐holder.” Id. (internal quotation marks and alteration omitted).  
TVEyes is a substantial precedent for our holding here. The transformative purpose and character of TVEyes’s use, while modest, was far more transformative than what ReDigi has shown here. TVEyes’s transformative uses were nonetheless easily outweighed by the harm to the rights holders’ market considered under Factor Four. Id. at 181. Even if ReDigi is credited with some faint showing of a transformative purpose, that purpose is overwhelmed by the substantial harm ReDigi inflicts on the value of Plaintiffs’ copyrights through its direct competition in the rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders. We find no fair use justification.  
	* 	* 	* 
We conclude by addressing policy‐based arguments raised by ReDigi and its amici. They contend that ReDigi’s version 1.0 ought to be validated as in compliance with § 109(a) because it allows for realization of an economically beneficial practice, originally authorized by the courts in the common law development of copyright, see Bobbs‐Merrill Co. v. Straus, 210 
U.S. 339 (1908), and later endorsed by Congress. They also contend that the Copyright Act must be read to vindicate purchasers’ ability to alienate digital copyrighted works under the first sale doctrine—emphasizing that § 109(a) is styled as an entitlement rather than a defense to infringement—without regard to technological medium. See Copyright Law Professors Br. 4, 12, 14; see also Appellants Br. 38‐41. On this score, they rely heavily on the breadth of the common law first sale doctrine, and on a purported imperative, described as the “principle of technological neutrality” by amici and the “equal treatment principle” by ReDigi, not to disadvantage purchasers of digital copyrighted works, as compared with purchasers of physical copyrighted works. See Copyright Law Professors Br. 14; Appellants Br. 36‐42. 
As for whether the economic consequences of ReDigi’s program are beneficial and further the objectives of copyright, we take no position. Courts are poorly equipped to assess the inevitably multifarious economic consequences that would result from such changes of law. So far as we can see, the establishment of ReDigi’s resale marketplace would benefit some, especially purchasers of digital music, at the expense of others, especially rightsholders, who, in the sale of their merchandise, would have to compete with resellers of the same merchandise in digital form, which, although second hand, would, unlike second hand books and records, be as good as new.  
",741
https://yalelawtech.org/wp-content/uploads/2021/09/capitol-records-v.-redigi-accessible.pdf,Capitol Records v. ReDigi (2nd Cir 2018),8,Copyright and Disruptive Technology,Class 10,"Furthermore, as to the argument that we should read § 109(a) to accommodate digital resales because the first sale doctrine protects a fundamental entitlement, without regard to the terms of § 109(a) (and incorporated definitions), we think such a ruling would exceed the proper exercise of the court’s authority. The copyright statute is a patchwork, sometimes varying from clause to clause, as between provisions for which Congress has taken control, dictating both policy and the details of its execution, and provisions in which Congress approximatively summarized common law developments, implicitly leaving further such development to the courts. The paradigm of the latter category is § 107 on fair use. See Campbell, 510 U.S. at 577 (“Congress meant § 107 ‘to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way’ and intended that courts continue the common‐law tradition of fair use adjudication.” (quoting H.R. Rep. No. 94–1476, 66 (1976)); see also Google Books, 804 F.3d at 213 (“[I]n passing the statute, Congress had no intention of normatively dictating fair use policy.”). In the provisions here relevant, Congress dictated the terms of the statutory entitlements. Notwithstanding the purported breadth of the first sale doctrine as originally articulated by the courts, see Bobbs‐Merrill Co., 210 U.S. at 350 (“[T]he copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose . . . a limitation at which the book shall be sold at retail by future purchasers . . . .”); Bureau of Nat’l Literature v. Sells, 211 F. 379, 381‐82 (W.D. Wash. 1914) (finding no infringement, in light of first sale doctrine, where reseller re‐bound used books and held them out as new books), Congress, in promulgating § 109(a), adopted a narrower conception, which negates a claim of unauthorized distribution in violation of the author’s exclusive right under §  106(3), but not a claim of unauthorized reproduction in violation of the exclusive right provided by § 106(1). If ReDigi and its champions have persuasive arguments in support of the change of law they advocate, it is Congress they should persuade. We reject the invitation to substitute our judgment for that of Congress.  
CONCLUSION 
 	We have considered ReDigi’s remaining arguments against the district court’s ruling and find them to be without merit. The judgment of the district court is AFFIRMED. 
",400
https://www.fastcompany.com/3015278/the-scarcest-resource-you-dont-even-know-youre-spending,The Scarcest Resource You Don’t Even Know You’re Spending,1,Attention Span Wars — You or a Goldfish? ,Class 1,"When we talk about investing, we’re usually discussing time, energy, or money. But there’s a resource scarcer than those–your attention.
Which we’re constantly spending, but not getting back.
Psychologists measure attention in bits, as scholar-blogger Sam Spurlin notes:
Studies have shown that you can attend to 5-7 bits of information “at a time.” A bit of information is any sensation, thought or other piece of information that enters your consciousness. “At a time” refers to about 1/15 of a second. With this information you can then extrapolate how many bits of information you can handle per minute, per hour, per day, and per year.

The total amount of bits you get in a lifetime? 150 billion.
That store is being spent regardless of what you’re doing, he says, whether it’s by watching TV, digging through your endless inbox, or having a meaningful conversation with someone you care about. Just like you only get so many jelly beans, you only get so many bits.

“Every emotion, thought, sensation, and conversation you’ll ever have is included in that number,” Spurlin writes of the 150 billion, “and the way you’ve allocated those 150 billion bits of attention over the course of your life will make up the entirety of who you were and what you accomplished.”

This existential insight refines our productivity obsessions. The real key to a productive working life, he notes, is not to shave seconds off our next task, but to understand the way that 200-bit task fits into the 150 billion bits that we get to spend while we’re around. As Getting Things Done founder David Allen would say, high-value productivity is high-context. Tasks blossom into projects, projects into goals.

Aligning the micro to the macro
When you realize that you’ve only got 150 billion bits to throw around, Spurlin says that productivity “becomes less about tips and tricks and more about making sure you’re allocating the most scarce resource in the universe, your attention, in ways that most closely align with who you are and what impact you want to have on the world.”

While finding this alignment is clearly outside the space of a blog post, we do have some leads.

At a micro level, we need to own our attention
To get the time to invest our attention productively, we need to make sure we’re creating the right situations to get the right work done.

As Warren Buffett, who has clearly mastered investing, will tell you, a lot of that means saying no to projects that distract from your goals. But an empty calendar will not protect us from distracting ourselves–that will take some mindfulness.

At a macro level, we need to own our goals
Thinking about the 150 billion bits we have to spend here on Earth, a tingle of urgency creeps up Fast Company‘s collective neck: maybe that’s why we’ve talked to people like Clay Christensen, who can help us find the careers we love. And as So Good They Can’t Ignore You author Cal Newport contends, we need to ensure that our career goals aren’t someone else’s.",499
https://markmanson.net/attention-economy,"In the Future, Our Attention Will Be Sold",1,Attention Span Wars — You or a Goldfish? ,Class 1,"Last week, I logged onto Facebook to see a story about a man who got drunk, cut off his friend’s penis, and then fed it to a dog. This was followed by a story of a 100-year-old woman who had never seen the ocean before. Then eight ways I can totally know I’m a 90’s kid. Then 11 steps to make me a “smarter Black Friday shopper,” an oxymoron if I ever saw one.This is life now: one constant, never-ending stream of non sequiturs and self-referential garbage that passes in through our eyes and out of our brains at the speed of a touchscreen. Last month, Kim Kardashian “broke the internet.” And by “broke the internet,” I mean she photoshopped a picture of her bare ass and put it on a magazine cover. But, of course, because it’s a naked ass, and because that ass happens to belong to Kim Kardashian, the photo was republished umpteen bazillion times, as adults rolled their eyes and guffawed at the insanity of it all, while the teenagers giggled and masturbated.1 The media brought out the obligatory screeds about how lewd or classless the pictures were. People then complained that the media gives this woman—a woman who has accomplished nothing in her life other than being born rich and fucking rappers—way too much airtime. Then people pointed out that criticizing the media for publicizing Kardashian ironically just gives Kardashian even more attention and cultural presence. Being the internet, these people were then berated for being neckbeard virgins and their mothers were threatened with sexual violence. The neckbeards then responded by creating ironic memes that involved Kardashian’s bare ass and an espresso machine. Everyone LOLZ’d and moved on with their lives. And this is why she’s still famous. In the Future, your attention will be sold Kardashian has come to represent pretty much everything we loathe about the social media age: bite-sized, meaningless content that you hate looking at, but for some reason can’t look away from. And because nobody has the self-control to look away, the bite-sized meaningless content spreads like wildfire, creating an online experience of a never-ending series of cultural car wrecks where we all gawk, rubberneck, discuss, and/or make fun of something for 12 minutes until distracted by the next oncoming collision. There are three common complaints against social media and the internet in general: 1) that it’s making us all narcissistic and shallow,2 2) that it’s crapping on our ability to maintain meaningful relationships and therefore making us lonelier,3 and 3) that it’s interfering with our ability to focus and get quote, unquote “more important shit” done in our lives.4 Interestingly, after quite a bit of research, it turns out that none of these claims are completely accurate. Social media doesn’t necessarily cause people to become more narcissistic, it just gives narcissistic people more opportunities to indulge their narcissism, and to a larger audience.5 It’s not interfering with either the closeness we feel to others or how many people we feel close to, it simply expands our network of casual acquaintances and the quantity of our casual social interactions.6 And while technology does present more opportunities for distraction (which we’ll get to), it also presents easier transmission of information, tools for collaboration, and opportunities for organization.7 What I’m saying is that the whole “the internet is ruining us” argument is a big whiff. It’s likely just the anxiety that’s always wrought by new technologies. When TV and radio were invented, people complained that everyone’s brain was going to go to mush. When the printing press was invented, people thought it was going to destroy our ability to speak eloquently. Complaints about the minds of children being ruined by technology are as old as technology itself.8 Modern technology isn’t changing us. It’s changing society. There’s a difference. One is how we are, and one is simply how we react every day to the world around us. The social media age is changing the basic economics of our day-to-day lives. It’s changing them in profound ways, ways that most of us likely don’t notice. And surprisingly, it’s people like Kim Kardashian who are taking advantage of it. Table of Content The Attention Economy. The Attention Economy and Extremism The Silent Benefits of the Attention Economy Taking Advantage of the Attention Economy 

",717
https://markmanson.net/attention-economy,"In the Future, Our Attention Will Be Sold",1,Attention Span Wars — You or a Goldfish? ,Class 1,"The Attention Economy
If you’ve ever spent time in a really poor country or with people who grew up in awful poverty, you’ll notice how much they talk about food—their favorite foods, what they’re going to eat this weekend, how they like this and don’t like that, and so on. Much of these people’s lives and conversations revolve around food for the simple reason that the scarcity of food makes it appear incredibly important. The fact you prefer strawberries to oranges matters a lot when you can rarely afford to have either. But in rich societies where food is never an issue, discussions of food among most people are superficial and usually over within a few seconds. For most of human history, the big economic scarcity in the world was land. There was a limited amount of productive land, therefore there was a limited amount of food. And because there was a limited amount of food, most day-to-day economic concerns and political squabbles involved land. Most people spent their lives contemplating what land they were going to work, what they were going to grow, what kind of harvest to expect, and so on. Food was always at the top of people’s mind.9 Eventually, when the industrial revolution hit, the primary scarcity was no longer land, as machines could now help cultivate more than enough food for everybody. Now the big scarcity was labor. You needed trained people to run all of these machines that did all of the cool new shit so you could make money and get rich. Thus, for a few hundred years, the organizing principle in society was based on labor—who you worked for, how much you made, and so on. Then, in the 20th century, there was more being produced than any one person would ever need or could ever purchase. The new scarcity in society was no longer labor or land, the scarcity was now knowledge. People had so many choices of what to purchase with their hard-earned money, but they didn’t know what to purchase. Thus, people spent most of their day-to-day existence trying to figure out what the best toothpaste was, what a toaster oven could do, how to spend their bonus money over the holidays and so on. The fields of advertising and marketing were invented and came to dominate society, as they were the means of disseminating the information people needed to allocate their resources appropriately. Still with me? Because this is where the internet and smartphones have fucked everything up—or, ahem, where they’ve “disrupted” everything. ",424
https://markmanson.net/attention-economy,"In the Future, Our Attention Will Be Sold",1,Attention Span Wars — You or a Goldfish? ,Class 1,"With the advent of the internet, the primary scarcity in society is no longer information. In fact, there is now more information than any of us could possibly know what to do with. If you want to know about a new product, you can have the Wikipedia article and 500 Amazon reviews up within 10 seconds. If you want a refresher on the process of photosynthesis, you can have it figured out within a few minutes. If you need to know every actor Kevin Spacey has ever worked with, you can figure it out in mere seconds. The scarcity in our world is no longer knowledge. There’s an abundance of knowledge, just as there’s an abundance of labor and an abundance of land. No, the new scarcity in the internet age is attention. Since there is a surplus of information, more information flowing through our society than any of us could ever hope to process or understand, the new bottleneck on our economy is attention. We now live in an attention-based economy.10 This is why today we are each bombarded with over 3,000 advertising messages per day. This is why these advertisements get zanier and more nonsensical—like the Geico gecko or the Old Spice guy—because the goal of advertisements is no longer information but simply attention. This is why social media is plastered with ridiculous article headlines such as, “I Thought I Was Going To Die, But Then You’ll Never Believe How This Polar Bear Saved My Life,” and when you click it, it takes you to a series of stupid animated GIFs or a YouTube video that has nothing to do with polar bears but is instead slathered in advertisements. This is why politics is becoming less about actual policies and more about dramatic actions designed to draw either positive or negative attention to various actors and political parties.11. This is why everything is becoming a version of softcore porn: music videos, commercials, movies, and reality TV shows. And when it’s not softcore porn, it’s some other kind of porn: food porn, murder porn, disaster porn, or actual, like real-life porn. Porn gets attention. And today, attention is what sells. This is why Kim Kardashian is famous and has continued to be famous for the better part of a decade for no other reason than—you guessed it—she’s already famous! This woman has contributed absolutely nothing to humanity. Yet in the age of attention, she is goddamned Master Yoda. She’s got it all figured out. Kim Kardashian is a genius. Not an Einstein-like genius. Not a “solves differential equations in her head but can’t tie her shoes” genius. But she’s a genius. A savant. She’s like the Rain Man of attention whoredom. The same way an autistic prodigy can count 2,318 toothpicks dumped on the floor just by looking at them, Kim Kardashian can command the attention of tens of millions of people with the crack of her ass. The quality of that attention doesn’t matter. What matters is the attention. That attention is an asset, the most valuable asset in the new economy. Millions of eyeballs follow her wherever she goes and she leverages the shit out of it. She earns millions off a crappy iPhone app that does nothing and a TV show that shows nothing. Just the fact she stands in a nightclub allows that club to charge $2,500 for entry. She gets paid more for public appearances than Nobel Prize winners. Forbes estimates her income last year at $28 million.",584
https://www.lawfaremedia.org/article/supreme-court-reins-cfaa-van-buren,The Supreme Court Reins In the CFAA in Van Buren,1,The Past and Future of Cyberspace,Class 3,"The Supreme Court handed down its first major decision construing the Computer Fraud and Abuse Act last week. The decision is a major victory for those of us who favor a narrow reading of the CFAA.  It doesn't answer everything. But it answers a lot. The Supreme Court handed down its first major decision construing the Computer Fraud and Abuse Act last week, Van Buren v. United States.  Van Buren is a major victory for those of us who favor a narrow reading of the CFAA.  It doesn't answer everything.  But it answers a lot.  And it frames the debate over how the CFAA applies going forward on what I think is ultimately the right question.

First, some context.  The CFAA criminalizes unauthorized access to a computer.  For years, the big question raised by the CFAA is what counts as an unauthorized access. The statute speaks of two ways of violating the statute -- ""access without authorization"" and ""exceed[ing] authorized access"" -- but the cases had not drawn sharp distinctions between them and the government's briefs often had just spoken of 'unauthorized access' as an undifferentiated whole.  And the basic concept of authorization was largely up for grabs.  What makes an access unauthorized?  Is that hacking in?  Is that violating terms of service? Or just visiting a computer in circumstances the computer owner wouldn't like?

Before Van Buren, we really didn't know.  The facts of Van Buren presented a perfect opportunity to shed light on that.  Nathan Van Buren used a government database for personal reasons after being told he could only use it for work reasons.  Was he engaging in authorized access (because he had access to the database), or was he engaging in unauthorized access (because he was violating the access policy)?

Van Buren goes a long way toward answering those questions.  In the Court's view, the CFAA is all about gates.  ""Access without authorization"" and ""exceed[ing] authorized access"" both call for the same basic test: A ""gates-up-or-down inquiry.""  To violate the CFAA, a person needs to bypass a gate that is down that the person isn't supposed to bypass. As the court puts it, a person needs to enter ""particular areas of the computer— such as files, folders, or databases—that are off limits to him.""

Under this view, the two ways of violating the statute work together. The prohibition on ""access without authorization"" bans entering a computer one is not authorized to access, ""targeting so-called outside hackers—those who access a computer without any permission at all.""  The prohibition on ""exceed[ing] authorized access bans ""entering a part of the system to which a computer user lacks access privileges."" That language ""target[s] so-called inside hackers—those who access a computer with permission, but then exceed the parameters of authorized access by entering an area of the computer to which that authorization does not extend.""

As the Court puts it, ""liability under both clauses stems from a gates-up-or-down inquiry—one either can or cannot access a computer system, and one either can or cannot access certain areas within the system."" Van Buren didn't violate the statute because he was provided access to the database; the workplace rule wasn't a closed gate. (Some of the quoted language above is from the Court's description of the petitioner Van Buren's interpretation of the CFAA, rather than the Court's explicit statement of its view, but the Court then says it is persuaded by Van Buren's interpretation and that it is the best reading of the statute. I think means we can treat the Court's description of Van Buren's interpretation as its own.)

",589
https://www.lawfaremedia.org/article/supreme-court-reins-cfaa-van-buren,The Supreme Court Reins In the CFAA in Van Buren,2,The Past and Future of Cyberspace,Class 3,"The Court also suggests that the basic gates-up-or-down inquiry might rest on authentication, such as bypassing a password gate by giving the correct user credentials.  Here's the language, in Footnote 9, which it presents in the course of explaining why the Court is persuaded by Van Buren's gates-up-or-down interpretation:

Van Buren's gates-up-or-down reading also aligns with the CFAA's prohibition on password trafficking. See Tr. of Oral Arg. 33. Enacted alongside the ""exceeds authorized access"" definition in 1986, the password-trafficking provision bars the sale of ""any password or similar information through which a computer may be accessed without authorization."" §1030(a)(6). The provision thus contemplates a ""specific type of authorization—that is, authentication,"" which turns on whether a user's credentials allow him to proceed past a computer's access gate, rather than on other, scope-based restrictions. Bellia, A Code-Based Approach to Unauthorized Access Under the Computer Fraud and Abuse Act, 84 Geo. Wash. L. Rev. 1442, 1470 (2016); cf. A Dictionary of Computing, at 30 (defining ""authorization"" as a ""process by which users, having completed an . . . authentication stage, gain or are denied access to particular resources based on their entitlement"").

Let's pause and step back. What does it mean?

First and foremost, this is a major victory for those of us who favor a narrow reading of the CFAA.  It settles that the CFAA is fundamentally a trespass statute.  The basic wrong is bypassing a closed gate, going where you're not supposed to go.  The CFAA does not make it a crime to break a promise online.  It does not make it a crime to violate terms of service.  The statute is all about gates: When a gate is closed to a user, the user can't wrongfully bypass the gate.

But wait, you're wondering: What counts as a ""gate"" that is ""down""?  When I first read Van Buren, I was a bit bummed that it didn't answer that as clearly as I hoped.  On one hand, Footnote 9 seems to suggest that authentication might be key.  But on the other hand, Footnote 8 seemed to leave open what might count as a closed gate.  Here's Footnote 8:

For present purposes, we need not address whether this inquiry turns only on technological (or ""code-based"") limitations on access, or instead also looks to limits contained in contracts or policies. Cf. Brief for Orin Kerr as Amicus Curiae 7 (urging adoption of code-based approach).

My first reaction to this footnote was puzzlement. Isn't the basic issue in Van Buren whether a policy (here, not to use a work database for personal reasons) matters?  How can the Court reject the government's view that the policy controls and yet also leave open whether liability looks to policies? How do you reconcile Footnote 8 with the rest of the opinion, especially Footnote 9?

There are a few ways of reconciling Footnote 8 with the rest of the opinion.  My best sense at this point runs something like this: With Van Buren casting the CFAA a trespass statute that is all about gates, figuring out what counts as a closed gate on the Internet can be complicated. As I argued in my article Norms of Computer Trespass, once you see the CFAA as a trespass statute, ""the challenge for courts is to distinguish provider-imposed restrictions and limits that are at most speed bumps (that cannot trigger trespass liability) from the real barriers to access (that can).""  As Norms explains, the line between real barrier and mere speed bump can be subtle. It can rest on ""shared views about what invades another's private space and what doesn't.""  It's not just about technology, but also on social understandings of technology.

One way to read Van Buren -- not the only way, but the way that seems most plausible to me at this point -- is that it does the major conceptual work of reining in the CFAA by casting it properly as a trespass statute.  It now leaves to lower courts the largely interstitial work of figuring out the hard line-drawing of what exactly counts as enough of a closed gate to trigger liability.  The authentication test suggested in Footnote 9 is one way to do it.  And I personally tend to think it's the right way; for what it's worth, it's the test I argued for in Norms of Computer Trespass. But whatever the specific right answer is, the Court has now directed lower courts to the right question.

In the end, Van Buren doesn't answer everything.  But it answers a lot.  And I think it focuses the lower courts on the right set of questions going forward.",760
https://www.copyright.gov/1201/2024/,2024 Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works,1,DRM and Anti-circumvention,Class 12,"Ninth Triennial Section 1201 Proceeding, 2024
The Digital Millennium Copyright Act (DMCA), codified in part in Title 17, section 1201, of the United States Code, generally makes it unlawful to circumvent technological measures used to prevent unauthorized access to copyrighted works, including copyrighted books, movies, videos, video games, and computer software. Section 1201, however, also directs the Librarian of Congress, upon the recommendation of the Register of Copyrights following a rulemaking proceeding, to determine whether the prohibition on circumvention is having, or is likely to have, an adverse effect on users’ ability to make noninfringing uses of particular classes of copyrighted works. Upon such a determination, the Librarian may adopt limited temporary exemptions waiving the general prohibition against circumvention for such users for the ensuing three-year period.


The Copyright Office has concluded the ninth triennial rulemaking proceeding pursuant to Title 17, section 1201, of the United States Code. This page contains links to the Register’s Recommendation, the final rule announcing the exemptions, and the recommendation letter submitted by the National Telecommunications and Information Administration of the Department of Commerce. The right-hand side of this page also provides links to the record materials in this proceeding, including the petitions for exemptions, written public comments, transcripts and video recordings of the public hearings, and post-hearing materials.


Additional background information and resources regarding section 1201, including video tutorials, the Office’s recent policy study on section 1201, and links to prior rulemaking proceedings, are available here.
",238
https://www.eff.org/cases/2021-dmca-rulemaking,2021 DMCA Rulemaking,1,DRM and Anti-circumvention,Class 12,"The Digital Millennium Copyright Act (DMCA) limits the circumvention of software that’s designed to restrict access to copyrighted works. Unfortunately, such a blanket restriction can chill competition, free speech, and fair use. In an attempt to mitigate those harms, every three years the U.S. Copyright Office holds a rulemaking proceeding to consider exemptions to this rule. EFF has participated in this rulemaking procedure for many years, and has secured exemptions for device unlocking, jailbreaking, ripping videos for remix, and more.

In the 2021 proceeding, we’re requesting exemptions for repair, diagnosis, and modification of any software-enabled device, including everything from digital cameras and e-readers to automated litterboxes and robotic pets; and jailbreaking streaming video devices like the Roku, Apple TV, and Amazon Fire Stick (which we believe is already covered by the current exemption for jailbreaking smart TVs). We’re also requesting renewal of the existing exemptions for jailbreaking smartphones, tablets, and other all-purpose mobile computing devices, smart TVs, or voice assistant devices; and diagnosis or repair of smartphones, home appliances, or home systems.

Over the next few months, we’ll be presenting evidence to the Copyright Office to support these exemptions. Many other organizations have filed exemption requests as well. All of these exemption proposals can be viewed on the Copyright Office website.",209
https://www.nytimes.com/2023/05/18/us/politics/supreme-court-google-twitter-230.html,Supreme Court Won’t Hold Tech Companies Liable for User Posts,1,Free Speech,Class 13,"The Supreme Court handed twin victories to technology platforms on Thursday by declining in two cases to hold them liable for content posted by their users.

In a case involving Google, the court for now rejected efforts to limit the sweep of the law that frees the platforms from liability for user content, Section 230 of the Communications Decency Act.

In a separate case involving Twitter, the court ruled unanimously that another law allowing suits for aiding terrorism did not apply to the ordinary activities of social media companies.

The rulings did not definitively resolve the question of what responsibility platforms should have for the content posted on and recommended by their sites, an issue that has grown increasingly pressing as social media has become ubiquitous in modern life. But the decision by the court to pass for now on clarifying the breadth of Section 230, which dates to 1996, was cheered by the technology industry, which has long portrayed the law as integral to the development of the internet.

“Companies, scholars, content creators and civil society organizations who joined with us in this case will be reassured by this result,” Halimah DeLaine Prado, Google’s general counsel, said in a statement.

The Twitter case concerned Nawras Alassaf, who was killed in a terrorist attack at the Reina nightclub in Istanbul in 2017 for which the Islamic State claimed responsibility. His family sued Twitter, Google and Facebook, saying they had allowed ISIS to use their platforms to recruit and train terrorists.

Justice Clarence Thomas, writing for the court, said the “plaintiffs’ allegations are insufficient to establish that these defendants aided and abetted ISIS in carrying out the relevant attack.”

He wrote that the defendants transmitted staggering amounts of content. “It appears that for every minute of the day, approximately 500 hours of video are uploaded to YouTube, 510,000 comments are posted on Facebook, and 347,000 tweets are sent on Twitter,” Justice Thomas wrote.

And he acknowledged that the platforms use algorithms to steer users toward content that interests them.

Editors’ Picks

The Best Science Fiction and Fantasy of 2024

This Is the Secret to the Perfect Baked Potato

How to Get a Party Buzz Even When You’re Not Drinking
“So, for example,” Justice Thomas wrote, “a person who watches cooking shows on YouTube is more likely to see cooking-based videos and advertisements for cookbooks, whereas someone who likes to watch professorial lectures might see collegiate debates and advertisements for TED Talks.

“But,” he added, “not all of the content on defendants’ platforms is so benign.” In particular, “ISIS uploaded videos that fund-raised for weapons of terror and that showed brutal executions of soldiers and civilians alike.”

The platforms’ failure to remove such content, Justice Thomas wrote, was not enough to establish liability for aiding and abetting, which he said required plausible allegations that they “gave such knowing and substantial assistance to ISIS that they culpably participated in the Reina attack.”

The plaintiffs had not cleared that bar, Justice Thomas wrote. “Plaintiffs’ claims fall far short of plausibly alleging that defendants aided and abetted the Reina attack,” he wrote. The platforms’ algorithms did not change the analysis, he wrote.

“The algorithms appear agnostic as to the nature of the content, matching any content (including ISIS’ content) with any user who is more likely to view that content,” Justice Thomas wrote. “The fact that these algorithms matched some ISIS content with some users thus does not convert defendants’ passive assistance into active abetting.”

A contrary ruling, he added, would expose the platforms to potential liability for “each and every ISIS terrorist act committed anywhere in the world.”

The court’s decision in the case, Twitter v. Taamneh, No. 21-1496, allowed the justices to avoid ruling on the scope of Section 230, a law intended to nurture what was then a nascent creation called the internet.

Section 230 was a reaction to a decision holding an online message board liable for what a user had posted because the service had engaged in some content moderation. The provision said, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Section 230 helped enable the rise of huge social networks like Facebook and Twitter by ensuring that the sites did not assume legal liability with every new tweet, status update and comment. Limiting the sweep of the law could expose the platforms to lawsuits claiming they had steered people to posts and videos that promoted extremism, urged violence, harmed reputations and caused emotional distress.The case against Google was brought by the family of Nohemi Gonzalez, a 23-year-old college student who was killed in a restaurant in Paris during terrorist attacks there in November 2015, which also targeted the Bataclan concert hall. The family’s lawyers argued that YouTube, a subsidiary of Google, had used algorithms to push Islamic State videos to interested viewers.

In a brief, unsigned opinion in the case, Gonzalez v. Google, No. 21-1333, the court said it would not “address the application of Section 230 to a complaint that appears to state little, if any, plausible claim for relief.” The court instead returned the case to the appeals court “in light of our decision in Twitter.”

It is unclear what the ruling will mean for legislative efforts to eliminate or modify the legal shield.

A growing group of bipartisan lawmakers, academics and activists have grown skeptical of Section 230 and say that it has shielded giant tech companies from consequences for disinformation, discrimination and violent content across their platforms.

In recent years, they have advanced a new argument: that the platforms forfeit their protections when their algorithms recommend content, target ads or introduce new connections to their users. These recommendation engines are pervasive, powering features like YouTube’s autoplay function and Instagram’s suggestions of accounts to follow. Judges have mostly rejected this reasoning.

",956
https://www.nytimes.com/2023/05/18/us/politics/supreme-court-google-twitter-230.html,Supreme Court Won’t Hold Tech Companies Liable for User Posts,2,Free Speech,Class 13,"Members of Congress have also called for changes to the law. But political realities have largely stopped those proposals from gaining traction. Republicans, angered by tech companies that remove posts by conservative politicians and publishers, want the platforms to take down less content. Democrats want the platforms to remove more, like false information about Covid-19.

Critics of Section 230 had mixed responses to the court’s decision, or lack of one, in the Gonzalez case.

Senator Marsha Blackburn, a Tennessee Republican who has criticized major tech platforms, said on Twitter that Congress needed to step in to reform the law because the companies “turn a blind eye” to harmful activities online.

Hany Farid, a computer science professor at the University of California, Berkeley, who signed a brief supporting the Gonzalez family’s case, said that he was heartened that the court had not offered a full-throated defense of the Section 230 liability shield.

He added that he thought “the door is still open for a better case with better facts” to challenge the tech platforms’ immunity.

Tech companies and their allies have warned that any alterations to Section 230 would cause the online platforms to take down far more content to avoid any potential legal liability.

Jess Miers, legal advocacy counsel for Chamber of Progress, a lobbying group that represents tech firms including Google and Meta, the parent company of Facebook and Instagram, said in a statement that arguments in the case made clear that “changing Section 230’s interpretation would create more issues than it would solve.”
",248
https://www.schneier.com/essays/archives/2008/03/census_of_cyberspace.html,Census of Cyberspace Censoring,1,Censorship II & Great Walls,Class 16,"China restricts Internet access by keyword.

In 1993, Internet pioneer John Gilmore said “the net interprets censorship as damage and routes around it”, and we believed him. In 1996, cyberlibertarian John Perry Barlow issued his ‘Declaration of the Independence of Cyberspace’ at the World Economic Forum at Davos, Switzerland, and online. He told governments: “You have no moral right to rule us, nor do you possess any methods of enforcement that we have true reason to fear.”

At the time, many shared Barlow’s sentiments. The Internet empowered people. It gave them access to information and couldn’t be stopped, blocked or filtered. Give someone access to the Internet, and they have access to everything. Governments that relied on censorship to control their citizens were doomed.

Today, things are very different. Internet censorship is flourishing. Organizations selectively block employees’ access to the Internet. At least 26 countries—mainly in the Middle East, North Africa, Asia, the Pacific and the former Soviet Union—selectively block their citizens’ Internet access. Even more countries legislate to control what can and cannot be said, downloaded or linked to. “You have no sovereignty where we gather,” said Barlow. Oh yes we do, the governments of the world have replied.

Access Denied is a survey of the practice of Internet filtering, and a sourcebook of details about the countries that engage in the practice. It is written by researchers of the OpenNet Initiative (ONI; http://www.opennet.net), an organization that is dedicated to documenting global Internet filtering around the world.

The first half of the book comprises essays written by ONI researchers on the politics, practice, technology, legality and social effects of Internet filtering. There are three basic rationales for Internet censorship: politics and power; social norms, morals and religion; and security concerns.

Some countries, such as India, filter only a few sites; others, such as Iran, extensively filter the Internet. Saudi Arabia tries to block all pornography (social norms and morals). Syria blocks everything from the Israeli domain ‘.il’ (politics and power). Some countries filter only at certain times. During the 2006 elections in Belarus, for example, the website of the main opposition candidate disappeared from the Internet.

The effectiveness of Internet filtering is mixed; it depends on the tools used and the granularity of filtering. It is much easier to block particular URLs or entire domains than it is to block information on a particular topic. Some countries block specific sites or URLs based on some predefined list but new URLs with similar content appear all the time. Other countries—notably China—try to filter on the basis of keywords in the actual web pages. A halfway measure is to filter on the basis of URL keywords: names of dissidents or political parties, or sexual words.

Much of the technology has other applications. Software for filtering is a legitimate product category, purchased by schools to limit access by children to objectionable material and by corporations trying to prevent their employees from being distracted at work. One chapter discusses the ethical implications of companies selling products, services and technologies that enable Internet censorship.

Some censorship is legal, not technical. Countries have laws against publishing certain content, registration requirements that prevent anonymous Internet use, liability laws that force Internet service providers to filter themselves, or surveillance. Egypt does not engage in technical Internet filtering; instead, its laws discourage the publishing and reading of certain content—it has even jailed people for their online activities.

The second half of Access Denied consists of detailed descriptions of Internet use, regulations and censorship in eight regions of the world, and in each of 40 different countries. The ONI found evidence of censorship in 26 of those 40. For the other 14 countries, it summarizes the legal and regulatory framework surrounding Internet use, and tests the results that indicated no censorship. This leads to 200 pages of rather dry reading, but it is vitally important to have this information well-documented and easily accessible. The book’s data are from 2006, but the authors promise frequent updates on the ONI website.

No set of Internet censorship measures is perfect. It is often easy to find the same information on uncensored URLs, and relatively easy to get around the filtering mechanisms and to view prohibited web pages if you know what you’re doing. But most people don’t have the computer skills to bypass controls, and in a country where doing so is punishable by jail—or worse—few take the risk. So even porous and ineffective attempts at censorship can become very effective socially and politically.

In 1996, Barlow said: “You are trying to ward off the virus of liberty by erecting guard posts at the frontiers of cyberspace. These may keep out the contagion for some time, but they will not work in a world that will soon be blanketed in bit-bearing media.”

Brave words, but premature. Certainly, there is much more information available to many more people today than there was in 1996. But the Internet is made up of physical computers and connections that exist within national boundaries. Today’s Internet still has borders and, increasingly, countries want to control what passes through them. In documenting this control, the ONI has performed an invaluable service.",850
https://www.law.cornell.edu/supct/html/99-8508.ZO.html,"Kyllo v. United States, 533 U.S. 27 (2001)",1,Search & Seizure in the Digital Age ,Class 17,"Justice Scalia delivered the opinion of the Court.

This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search” within the meaning of the Fourth Amendment.

I

In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth–black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo’s home took only a few minutes and was performed from the passenger seat of Agent Elliott’s vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner’s home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner’s home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.

The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 “is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house”; it “did not show any people or activity within the walls of the structure”; “[t]he device used cannot penetrate walls or windows to reveal conversations or human activities”; and “[n]o intimate details of the home were observed.” Supp. App. to Pet. for Cert. 39—40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F.3d 1249 (1998), but that opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F.3d 1041 (1999), with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had, there was no objectively reasonable expectation of privacy because the imager “did not expose any intimate details of Kyllo’s life,” only “amorphous ‘hot spots’ on the roof and exterior wall,” id., at 1047. We granted certiorari. 530 U.S. 1305 (2000).

II

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” “At the very core” of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961). With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Payton v. New York, 445 U.S. 573, 586 (1980).

On the other hand, the antecedent question of whether or not a Fourth Amendment “search” has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e.g., Goldman v. United States, 316 U.S. 129, 134—136 (1942); Olmstead v. United States, 277 U.S. 438,
464—466 (1928). Cf. Silverman v. United States, supra, at 510—512 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is “actual intrusion into a constitutionally protected area”). Visual surveillance was unquestionably lawful because “ ‘the eye cannot by the laws of England be guilty of a trespass.’ ” Boyd v. United States, 116 U.S. 616, 628 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). We have since decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property, see Rakas v. Illinois, 439 U.S. 128, 143 (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo, 476 U.S. 207, 213 (1986), “[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.”",920
https://www.law.cornell.edu/supct/html/99-8508.ZO.html,"Kyllo v. United States, 533 U.S. 27 (2001)",2,Search & Seizure in the Digital Age ,Class 17,"One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search”1 despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment. See Minnesota v. Carter, 525 U.S. 83, 104 (1998) (Breyer, J., concurring in judgment). But in fact we have held that visual observation is no “search” at all–perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States, 476 U.S. 227, 234—235, 239 (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U.S. 347 (1967). Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth–a location not within the catalog (“persons, houses, papers, and effects”) that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he “justifiably relied” upon the privacy of the telephone booth. Id., at 353. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur–even when the explicitly protected location of a house is concerned–unless “the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.” Ciraolo, supra, at 211. We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland, 442 U.S. 735, 743—744 (1979), and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley, 488 U.S. 445 (1989).

The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found “it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened,” 476 U.S., at 237, n. 4 (emphasis in original).

III

It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

The Katz test–whether the individual has an expectation of privacy that society is prepared to recognize as reasonable–has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure §2.1(d), pp. 393—394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev. 173, 188; Carter, supra, at 97 (Scalia, J., concurring). But see Rakas, supra, at 143—144, n. 12. While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes–the prototypical and hence most commonly litigated area of protected privacy–there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, constitutes a search–at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.2",794
https://www.law.cornell.edu/supct/html/99-8508.ZO.html,"Kyllo v. United States, 533 U.S. 27 (2001)",3,Search & Seizure in the Digital Age ,Class 17,"The Government maintains, however, that the thermal imaging must be upheld because it detected “only heat radiating from the external surface of the house,” Brief for United States 26. The dissent makes this its leading point, see post, at 1, contending that there is a fundamental difference between what it calls “off-the-wall” observations and “through-the-wall surveillance.” But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house—and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology–including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.3 The dissent’s reliance on the distinction between “off-the-wall” and “through-the-wall” observation is entirely incompatible with the dissent’s belief, which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible. The most sophisticated thermal imaging devices continue to measure heat “off-the-wall” rather than “through-the-wall”; the dissent’s disapproval of those more sophisticated thermal-imaging devices, see post, at 10, is an acknowledgement that there is no substance to this distinction. As for the dissent’s extraordinary assertion that anything learned through “an inference” cannot be a search, see post, at 4—5, that would validate even the “through-the-wall” technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences). And, of course, the novel proposition that inference insulates a search is blatantly contrary to United States v. Karo, 468 U.S. 705 (1984), where the police “inferred” from the activation of a beeper that a certain can of ether was in the home. The police activity was held to be a search, and the search was held unlawful.4

The Government also contends that the thermal imaging was constitutional because it did not “detect private activities occurring in private areas,” Brief for United States 22. It points out that in Dow Chemical we observed that the enhanced aerial photography did not reveal any “intimate details.” 476 U.S., at 238. Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, “by even a fraction of an inch,” was too much, 365 U.S., at 512, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes. Thus, in Karo, supra, the only thing detected was a can of ether in the home; and in Arizona v. Hicks, 480 U.S. 321 (1987), the only thing detected by a physical search that went beyond what officers lawfully present could observe in “plain view” was the registration number of a phonograph turntable. These were intimate details because they were details of the home, just as was the detail of how warm–or even how relatively warm–Kyllo was heating his residence.5

Limiting the prohibition of thermal imaging to “intimate details” would not only be wrong in principle; it would be impractical in application, failing to provide “a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment,” Oliver v. United States, 466 U.S. 170, 181 (1984). To begin with, there is no necessary connection between the sophistication of the surveillance equipment and the “intimacy” of the details that it observes–which means that one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath–a detail that many would consider “intimate”; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which home activities are “intimate” and which are not. And even when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up “intimate” details–and thus would be unable to know in advance whether it is constitutional.",862
https://www.law.cornell.edu/supct/html/99-8508.ZO.html,"Kyllo v. United States, 533 U.S. 27 (2001)",4,Search & Seizure in the Digital Age ,Class 17,"The dissent’s proposed standard–whether the technology offers the “functional equivalent of actual presence in the area being searched,” post, at 7–would seem quite similar to our own at first blush. The dissent concludes that Katz was such a case, but then inexplicably asserts that if the same listening device only revealed the volume of the conversation, the surveillance would be permissible, post, at 10. Yet if, without technology, the police could not discern volume without being actually present in the phone booth, Justice Stevens should conclude a search has occurred. Cf. Karo, supra, at 735 (Stevens, J., concurring in part and dissenting in part) (“I find little comfort in the Court’s notion that no invasion of privacy occurs until a listener obtains some significant information by use of the device… . A bathtub is a less private area when the plumber is present even if his back is turned”). The same should hold for the interior heat of the home if only a person present in the home could discern the heat. Thus the driving force of the dissent, despite its recitation of the above standard, appears to be a distinction among different types of information–whether the “homeowner would even care if anybody noticed,” post, at 10. The dissent offers no practical guidance for the application of this standard, and for reasons already discussed, we believe there can be none. The people in their houses, as well as the police, deserve more precision.6

We have said that the Fourth Amendment draws “a firm line at the entrance to the house,” Payton, 445 U.S., at 590. That line, we think, must be not only firm but also bright–which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v. United States, 267 U.S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause–and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.

* * *

The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion.

It is so ordered.",507
https://www.theatlantic.com/technology/archive/2019/02/when-kids-realize-their-whole-life-already-online/582916/,When Kids Realize Their Whole Life Is Already Online,1,Privacy in the Web 2.0 World ,Class 18,"For several months, Cara has been working up the courage to approach her mom about what she saw on Instagram. Not long ago, the 11-year-old—who, like all the other kids in this story, is referred to by a pseudonym—discovered that her mom had been posting photos of her, without prior approval, for much of her life. “I’ve wanted to bring it up. It’s weird seeing myself up there, and sometimes there’s pics I don’t like of myself,” she said.

Like most other modern kids, Cara grew up immersed in social media. Facebook, Twitter, and YouTube were all founded before she was born; Instagram has been around since she was a toddler. While many kids may not yet have accounts themselves, their parents, schools, sports teams, and organizations have been curating an online presence for them since birth. The shock of realizing that details about your life—or, in some cases, an entire narrative of it—have been shared online without your consent or knowledge has become a pivotal experience in the lives of many young teens and tweens.

Recently a parenting blogger wrote in a Washington Post essay that despite her 14-year-old daughter’s horror at discovering that her mother had shared years of highly personal stories and information about her online, she simply could not stop posting on her blog and social media. The writer claimed that promising her daughter that she would stop posting about her publicly on the internet “would mean shutting down a vital part of myself, which isn’t necessarily good for me or her.”

But it’s not just overzealous mommy bloggers who construct a child’s online identity; plenty of average parents do the same. There’s even a portmanteau for it: sharenting. Almost a quarter of children begin their digital lives when parents upload their prenatal sonogram scans to the internet, according to a study conducted by the internet-security firm AVG. The study also found that 92 percent of toddlers under the age of 2 already have their own unique digital identity. “Parents now shape their children’s digital identity long before these young people open their first email. The disclosures parents make online are sure to follow their children into adulthood,” declares a report by the University of Florida Levin College of Law. “These parents act as both gatekeepers of their children’s personal information and as narrators of their children’s personal stories.”

Read: The perils of “sharenting”

Preschools and elementary schools often keep blogs or upload photos of kids to Instagram accounts and Facebook pages so that working parents can feel like a part of their kids’ day. Sports scores are recorded online, as are notable moments from after-school clubs.

When Ellen, an 11-year-old, finally decided to Google herself, she didn’t expect to find anything, because she doesn’t yet have her own social-media accounts. She was stunned when she found years of swim scores and sports statistics on the web. A personal story she wrote in third grade was also published on a class website with her name attached. “I didn’t think I would be out there like this on the internet,” she told me.

Ellen said that while she didn’t find anything too sensitive or personal, she was frustrated that all the information about herself had been posted seemingly without her consent.

Recommended Reading

Instamom
Bianca Bosker

Photos of teen social-media stars with their families, overlaid with a YouTube frame
Raising a Social-Media Star
Taylor Lorenz

An illustration of a mother connected to her phone and to her baby's face by string
The Dangers of Distracted Parenting
Erika Christakis

“No matter what you do, it’s out there for people to know,” she said. “Even if you’re just swimming—the rest of the world will know. My meet records are out there; now people know I’m a swimmer. [The internet] tells you where all the swim meets are, so that would probably tell my general location. It tells you my school. Parts of my story online were in Spanish. Now people know I speak Spanish.”

Allie was in fourth grade the first time she Googled herself. Like Ellen, she wasn’t expecting to find anything, since she doesn’t yet have her own social-media accounts. Google turned up just a few photos, but she was shocked that there was anything at all. She immediately became hyperaware of the image her mother was building for her on Instagram and Facebook. “My parents have always posted about me,” she said. “I was basically fine with it … then I realized I was making an impression and I was an actual person online too, through her page.”

“No matter what you do, it’s out there for people to know,” she said. “Even if you’re just swimming—the rest of the world will know. My meet records are out there; now people know I’m a swimmer. [The internet] tells you where all the swim meets are, so that would probably tell my general location. It tells you my school. Parts of my story online were in Spanish. Now people know I speak Spanish.”",817
https://www.theatlantic.com/technology/archive/2019/02/when-kids-realize-their-whole-life-already-online/582916/,When Kids Realize Their Whole Life Is Already Online,2,Privacy in the Web 2.0 World ,Class 18,"Allie was in fourth grade the first time she Googled herself. Like Ellen, she wasn’t expecting to find anything, since she doesn’t yet have her own social-media accounts. Google turned up just a few photos, but she was shocked that there was anything at all. She immediately became hyperaware of the image her mother was building for her on Instagram and Facebook. “My parents have always posted about me,” she said. “I was basically fine with it … then I realized I was making an impression and I was an actual person online too, through her page.”

Not all kids react poorly to finding out they’ve been living an unwitting life online. Some are thrilled. In fourth grade, Nate searched his name and discovered that he was mentioned in a news article about his third-grade class making a giant burrito. “I didn’t know,” he said. “I was surprised, really surprised.” But he was pleased with his newfound clout. “It made me feel famous … I got to make new friends by saying, ‘Oh, I’m in a newspaper [online],’” he said. Ever since, he has Googled himself every few months, hoping to find things.

Natalie, now 13, said that in fifth grade she and her friends competed with one another over the amount of information about themselves on the internet. “We thought it was so cool that we had pics of ourselves online,” she said. “We would brag like, ‘I have this many pics of myself on the internet.’ You look yourself up, and it’s like, ‘Whoa, it’s you!’ We were all shocked when we realized we were out there. We were like, ‘Whoa, we’re real people.’”

Natalie’s parents are stringent about not posting photos of her to social media, so there are only a handful of photos of her out there, but she yearns for more. “I don’t want to live in a hole and only have two pics of me online. I want to be a person who is a person. I want people to know who I am,” she said.

Cara and other tweens say they hope to lay down ground rules for their parents. Cara wants her mom to tell her the next time she posts about her, and the 11-year-old would like veto power over any photo before it goes up. “My friends will always text or tell me, like, ‘OMG that pic your mom posted of you is so cute,’ and I’ll get really self-conscious,” she said. Hayden, a 10-year-old, said he realized several years ago that his parents used a dedicated hashtag including his name on photos of him. He now monitors the hashtag to make sure they don’t post anything embarrassing.

Once kids have that first moment of realization that their lives are public, there’s no going back. Several teens and tweens told me this was the impetus for wanting to get their own social-media profiles, in an effort to take control of their image. But plenty of other kids become overwhelmed and retreat. Ellen said that anytime someone has a phone out around her now, she’s nervous that her photo could be taken and posted somewhere. “Everyone’s always watching, and nothing is ever forgotten. It’s never gone,” she said.

In order to help kids navigate these waters, more elementary schools are rolling out digital-literacy programs. Jane, a 7-year-old, said she learned about her internet presence partly from her school in an online-safety presentation. Her father has also warned her about social media and lets her approve photos before they go up.

Read: How Millennial parents are reinventing the cherished family photo album

Still, Jane—who, like all the other kids in this story, spoke to me with her parents’ permission—worries. She’s too young to navigate the web on her own, but she feels that a lot of what’s out there on the internet about her is beyond her control. “I don’t really like how people know things about me, and I don’t even know them,” she said. “Thousands and millions of things are out there maybe.” Andy, also 7, is always on the lookout for people who might take unflattering photos of him. He once caught his mother taking a photo of him sleeping and, another time, doing a silly dance. He immediately told her not to post it on Facebook, and she obliged. He felt the photos were embarrassing.

Some legislatures are also getting involved. In 2014, Europe’s highest court ruled that internet providers must give users the “right to be forgotten.” Under the ruling, European citizens can petition to have past damaging information, including crimes committed as a minor, hidden from Google search results. And in France, strict privacy laws mean kids can sue their own parents for publishing intimate or private details of their lives without consent. In the United States, however, teens and tweens aren’t offered such protections, and many simply walk on eggshells. “You definitely just have to live cautiously,” Ellen said.

Jaime Putnam, a mom in Georgia, said she has started to be more mindful of the fact that many of her kids’ friends don’t yet know how much information about themselves is out there. Recently she saw on social media that one of her child’s friends got a puppy. She brought it up when she next saw him, and he looked at her, horrified. He had no idea how she had learned that seemingly private information. “It made me realize these kids don’t know what’s being posted all the time,” she said. Now she’s careful about what she reveals. “It kind of feels like you’re maybe crossing a line telling them everything you know about them.”",930
https://cdt.org/insights/the-d-c-circuits-opinion-in-mozilla-v-fcc-what-does-it-mean/,The D.C. Circuit’s opinion in Mozilla v. FCC: What does it mean?,1,Net Neutrality,Class 19,"The top line: No federal preemption, and FCC must reconsider the impacts of reclassification on public safety, lifeline.

Earlier this month, the D.C. Circuit published its opinion in Mozilla v. FCC. This was the case challenging the Commission’s reclassification of broadband internet access service (BIAS) from a “telecommunications service” to an “information service” and the accompanying repeal of the net neutrality protections the FCC put in place in 2015. CDT and others filed this lawsuit in 2018 because we believe the internet should remain as open (where your ability to access any and all lawful content is the same) and flat (with equally low barriers to entry for everyone) as possible. But preserving an open internet against an uncompetitive landscape in which a few major companies control access requires regulatory oversight. For this reason, we also challenged the FCC’s legal argument for the reclassification, which attempted to permanently abolish the FCC’s own ability to regulate internet access providers.

On reclassification, the court upheld the FCC’s decision, but directed the Commission to rethink the potential impacts its policy reversal might have on public safety, the Lifeline program, and providers’ access to utility poles. Although the Commission downplayed these issues, both in the rulemaking and in its reaction to the court’s opinion, they are substantial. Agencies must consider how their policy changes might impact public safety, and that consideration should amount to more than handwaving. The same goes for the Lifeline program, which helps ensure that not only the wealthy are able to use a phone and get online. Finally, the FCC’s rules that guarantee equal access to utility poles and pipes only apply to Title II services. This means that the major broadband providers (who also have Title II services like landline telephone) can still get access to shared infrastructure, but broadband-only competitors cannot, making it even more difficult to introduce real competition into the market.

The court’s remand means that the FCC must go back and formally re-think these issues. Time will tell how quickly the FCC is able to go back and do it’s homework, but this is not the only issue standing between this administration and total de-regulation. 

The FCC’s gambit to rid itself of authority to regulate backfired in a critical way: Because the FCC claimed it had no authority to regulate broadband, the court said that it also lacked the authority to prevent the states from enacting net neutrality laws. So while the Commission won a battle, it may now lose the war. The loss on the issue of state preemption is a major setback for ISPs who would prefer to remain unregulated. (The court did leave open the possibility that the FCC might be able to preempt states on a case-by-case basis, but it is unclear how this might play out.) 


The FCC ending federal net neutrality rules, before and after.

Bottom line: State actions will pressure ISPs and Congress toward federal legislation.

The court handed a big win to the 30+ states with net neutrality rules currently in place or in progress. The prospect of a looming patchwork of state regulation should be a strong incentive for ISPs to seek a federal legislative solution. Passing the Save the Internet Act, which has already passed the House (and the Senate in a previous congress) would be the quickest way to achieve this, effectively reinstating the 2015 Open Internet Rules. Other options will certainly take longer, even though the vast majority of Americans across the political spectrum support the 2015 rules. Regardless, while the litigation will continue, the policy focus likely will shift towards the legislative branch.

Between the lines: Court’s hands are tied by SCOTUS (and its own) precedent. It is time for SCOTUS and/or Congress to step in.
",617
https://cdt.org/insights/the-d-c-circuits-opinion-in-mozilla-v-fcc-what-does-it-mean/,The D.C. Circuit’s opinion in Mozilla v. FCC: What does it mean?,2,Net Neutrality,Class 19,"A few things stand out in this latest decision. First, the DC Circuit determined its hands were tied by the relevant Supreme Court precedent (NCTA v. Brand X) and by the statutory language of the Communications Act. Second, the court’s understanding of the technologies in question, although improved, still fails to account for the rapid technological advances that are imminent in the U.S. Finally, the fate of the regulatory approach for broadband seems to depend less on statutory interpretation than it does on a couple of relatively obscure technological features.

In both the unanimous opinion of the court and Judge Millett’s concurrence, the court found that it must defer to the agency’s judgments about how to map dense technological and policy considerations onto an equally complex set of statutory provisions. This is nothing new― the Chevron Doctrine has always been at the heart of the net neutrality litigation― but the court’s deference in this case stands out because of the court’s skepticism toward the agency’s reasoning. 

The unanimous opinion barely even acknowledges the FCC’s primary argument for reclassification: that because ISPs offer a pathway to the internet, they offer the capabilities of retrieving, storing, processing, etc information. Instead, it focuses on the Commission’s back-up argument: that because ISPs operate DNS resolvers and also cache data locally on their networks, their broadband “offering” is a mix of telecommunications services and information services, potentially subject to classification as either one. We will discuss these in more detail below, but of note here is that DNS and caching were the same “services” considered by the Supreme Court in the Brand X case. Judge Millett’s concurrence expresses frustration with the limiting effects of this precedent: 

“[Brand X] compels us to affirm as a reasonable option the agency’s reclassification of broadband as an information service based on its provision of Domain Name System (“DNS”) and caching. But I am deeply concerned that the result is unhinged from the realities of modern broadband service.” 

She continues,

“The Supreme Court, however, is not so constrained. It is freer than we are to conclude that the “factual particulars of how Internet technology works,” Brand X, 545 U.S. at 991, have changed so materially as to undermine the reasonableness of the agency’s judgments and in particular its “determinative” reliance on DNS and caching, 2018 Order ¶ 33 n.99. Or Congress could bring its own judgment to bear by updating the statute’s governance of telecommunications and information services to match the rapid and sweeping developments in those areas. Either intervention would avoid trapping Internet regulation in technological anachronism.” 

The per curiam opinion fails to reflect an understanding of the technological underpinnings of internet access. For example, when the court discusses the FCC’s determination that mobile broadband is not an “interconnected service,” it buys the argument “that—even though users need to acquire equipment and software separately for mobile voice—the function of interconnection is provided by the purchased mobile service itself.”  The court continues, “With VoIP, by contrast, the add-on application—and not the broadband service—supplies the interconnection functionality.” 

In addition to the double standard here (for carriers’ voice service, it isn’t about the software, but for non-carrier VoIP it is about the software?), the court overlooks the fact that mobile voice is VoIP (or the equivalent, VoLTE) and that both are a subset of the functions supported by a broadband connection. The only difference for consumers is that your carrier’s mobile voice application (the one with the phone icon) is pre-loaded on your device, while third-party VoIP applications may require you to download them first. 

The court then goes on to an even more flawed analysis: “The gap in Petitioners’ theory is shown most clearly in the obvious inability of a would-be caller from a NANP (North American Numbering Plan) number who seeks to reach a person with mobile broadband but no form of VoIP (or mobile voice service).” Sure, I cannot necessarily make a call from my landline phone to an (unknown?) person who managed to acquire a data-only mobile plan, but I also cannot call someone with a landline phone number who has not purchased and connected a physical telephone. Nor can I (as a person) communicate with a fax number. 

What the Commission and the court get wrong here is seeing mobile apps as fundamentally different than physical devices (or customer premises equipment- CPE) like landline telephones and fax machines that enable different services. While older networks require us to use specialized, single-purpose equipment to connect and communicate across networks, modern mobile networks allow us to use a variety of specialty apps on a single multi-purpose computing device. So the VoIP apps, whether pre-loaded or downloaded after a device purchase, are the equivalent of landline handsets—one only needs to “plug them in” to a broadband network. 

",793
https://cdt.org/insights/the-d-c-circuits-opinion-in-mozilla-v-fcc-what-does-it-mean/,The D.C. Circuit’s opinion in Mozilla v. FCC: What does it mean?,3,Net Neutrality,Class 19,"Despite disagreeing with the FCC’s interpretation (this time), CDT still believes that agencies need to be able to interpret statutory language, and that their expertise should get deference from courts. However, while the Chevron doctrine of deference (to an expert agency’s reasonable interpretations of ambiguous statutory language) is an important aspect of how our legislative, administrative, and judicial branches interact, it is also important to make policy based on an accurate understanding and characterization of the technology at issue. This system relies on expert agencies being expert, but when experts misrepresent a technology for regulatory or deregulatory purposes, they undermine the trust that deference is built on. Although it is perhaps unreasonable to expect judges to have sufficient expertise to question the validity of an agency’s technical analysis, their willingness and ability to do so seems critical to ensuring that deference is not abused. 

Which brings us to the two aspects of network operation on which the FCC and the Supreme Court have focused on in the classification of broadband: DNS and caching. In its secondary argument, the Commission portrayed these “services” as an inextricable part of the “offering” made by ISPs. This reasoning tracks the Supreme Court’s opinion in Brand X (decided in 2005, based on facts from 2002), which said that it was acceptable for the FCC to classify cable modem service (early broadband) as an information service because cable companies also performed DNS lookups and caching. And that the average consumer perceived DNS and caching as part of the “offering.”

The overwhelming majority of Americans, Democrats and Republicans alike, support the protections laid down in the 2015 Open Internet Order; let’s get it done!

This was a weak argument, even back in 2005. Now, in the words of Judge Millett, this argument “blinks reality” for at least two reasons. One is the rise in popularity of alternative DNS providers―DNS is no longer an invisible ingredient in the broadband offering but a separate service available from multiple providers with varying degrees of security and privacy. Yes, ISPs still operate their own DNS resolvers, but more and more people are turning elsewhere for this task. There are even encrypted DNS options being built into web browsers and turned into apps (to the dismay of ISPs). And because of encrypted web content, the caching argument has gotten weaker as well. Yes, ISPs still cache some content, locally, but their ability to do so has steadily declined as more and more of the web converts to HTTPS. So why did the court let the FCC get by with this weak, outdated reasoning? 

According to the D.C. Circuit, Brand X dictates that the FCC’s determination that DNS and caching turn broadband into an information service (even though this amounts to a tiny tail wagging a huge dog) is a reasonable one. The court goes on to point out that Brand X says nothing about the relative predominance of telecommunications or information services, so if ISPs interweave two golden threads into an ordinary sweater, it is still reasonable to call it a “golden garment.” It’s hard to say how far the court would let this go; could the FCC still call broadband an information service even if no one ever uses the ISP’s DNS? Is it enough to simply “offer” a service like caching that no one asks for or has the choice of using or not using? As long as Brand X is the controlling case, the answer may be yes. 

The surest way to fix this unfortunate loophole is by making new law. Whether through the Save the Internet Act or another legislative measure to cement strong net neutrality protections and preserve FCC authority, it is time for Congress to represent the will of the people in law. The overwhelming majority of Americans, Democrats and Republicans alike, support the protections laid down in the 2015 Open Internet Order; let’s get it done!",649
https://futureoftheinternet.org/wp-content/uploads/sites/12/2013/06/ZittrainTheFutureoftheInternet.pdf,"Jonathan Zittrain, The Future of the Internet and How to Stop It ",1,"Innovation, Appliancization, Education and Knowledge",Class 20,"As Part I of this book explained, the generative nature of the PC and
Internet—a certain incompleteness in design, and corresponding
openness to outside innovation—is both the cause of their success
and the instrument of their forthcoming failure.
The most likely reactions to PC and Internet failures brought on by
the proliferation of bad code, if they are not forestalled, will be at least
as unfortunate as the problems themselves. People now have the opportunity to respond to these problems by moving away from the PC
and toward more centrally controlled—“tethered”—information
appliances like mobile phones, video game consoles, TiVos, iPods,
iPhones, and BlackBerries. The ongoing communication between
this new generation of devices and their vendors assures users that
functionality and security improvements can be made as new problems are found. To further facilitate glitch-free operation, devices are
built to allow no one but the vendor to change them. Users are also
now able to ask for the appliancization of their own PCs, in the
process forfeiting the ability to easily install new code themselves. In a
development reminiscent of the old days of AOL and CompuServe, it
is increasingly possible to use a PC as a mere dumb terminal to access Web sites
with interactivity but with little room for tinkering. (“Web 2.0” is a new buzzword that celebrates this migration of applications traditionally found on the
PC onto the Internet. Confusingly, the term also refers to the separate phenomenon of increased user-generated content and indices on the Web—such as relying on user-provided tags to label photographs.) New information appliances
that are tethered to their makers, including PCs and Web sites refashioned in
this mold, are tempting solutions for frustrated consumers and businesses.
None of these solutions, standing alone, is bad, but the aggregate loss will be
enormous if their emergence represents a wholesale shift of our information
ecosystem away from generativity. Some are skeptical that a shift so large can
take place.1 But confidence in the generative Internet’s inertia is misplaced. It
discounts the power of fear should the existing system falter under the force of
particularly well-written malware. People might argue about the merits of one
platform compared to another (“Linux never needs to be rebooted”),2 but the
fact is that no operating system is perfect, and, more importantly, any PC open
to running third-party code at the user’s behest can fail when poor code is
adopted. The fundamental problem arises from too much functionality in the
hands of users who may not exercise it wisely: even the safest Volvo can be
driven into a wall.
People are frustrated by PC kinks and the erratic behavior they produce.
Such unexpected variations in performance have long been smoothed out in
refrigerators, televisions, mobile phones, and automobiles. As for PCs, telling
users that their own surfing or program installation choices are to blame understandably makes them no less frustrated, even if they realize that a more reliable system would inevitably be less functional—a trade-off seemingly not required by refrigerator improvements. Worse, the increasing reliance on the PC
and Internet that suggests momentum in their use means that more is at risk
when something goes wrong. Skype users who have abandoned their old-fashioned telephone lines may regret their decision if an emergency arises and they
need to dial an emergency number like 911, only to find that they cannot get
through, let alone be located automatically.3 When one’s finances, contacts,
and appointments are managed using a PC, it is no longer merely frustrating if
the computer comes down with a virus. It is enough to search for alternative architectures.
A shift to tethered appliances and locked-down PCs will have a ripple effect
on long-standing cyberlaw problems, many of which are tugs-of-war between
individuals with a real or perceived injury from online activity and those who
102 After the Stall
wish to operate as freely as possible in cyberspace. The capacity for the types of
disruptive innovation discussed in the previous chapter will not be the only casualty. A shift to tethered appliances also entails a sea change in the regulability
of the Internet. With tethered appliances, the dangers of excess come not from
rogue third-party code, but from the much more predictable interventions by
regulators into the devices themselves, and in turn into the ways that people
can use the appliances.
The most obvious evolution of the computer and network—toward tethered appliancization—is on balance a bad one. It invites regulatory intervention that disrupts a wise equilibrium that depends upon regulators acting with
a light touch, as they traditionally have done within liberal societies.
THE LONG ARM OF MARSHALL, TEXAS
TiVo introduced the first digital video recorder (DVR) in 1998.4 It allowed
consumers to record and time-shift TV shows. After withstanding several
claims that the TiVo DVR infringed other companies’ patents because it
offered its users on-screen programming guides,5 the hunted became the
hunter. In 2004, TiVo sued satellite TV distributor EchoStar for infringing
TiVo’s own patents6 by building DVR functionality into some of EchoStar’s
dish systems.7
A Texas jury found for TiVo. TiVo was awarded $90 million in damages and
interest. In briefs filed under seal, TiVo apparently asked for more. In August
2006, the court issued the following ruling:
Defendants are hereby . . .  to, within thirty (30) days of the issuance of
this order, disable the DVR functionality (i.e., disable all storage to and playback
from a hard disk drive of television data) in all but 192,708 units of the Infringing
Products that have been placed with an end user or subscriber.8
That is, the court ordered EchoStar to kill the DVR functionality in products
already owned by “end users”: millions of boxes which were already sitting in
living rooms around the world9 with owners who might be using them at that
very instant.10 Imagine sitting down to watch television on an EchoStar box,
and instead finding that all your recorded shows had been zapped, along with
the DVR functionality itself—killed by remote signal traceable to the stroke of
a judge’s quill in Marshall, Texas.",932
https://futureoftheinternet.org/wp-content/uploads/sites/12/2013/06/ZittrainTheFutureoftheInternet.pdf,"Jonathan Zittrain, The Future of the Internet and How to Stop It ",2,"Innovation, Appliancization, Education and Knowledge",Class 20,"The judicial logic for such an order is drawn from fundamental contraband
rules: under certain circumstances, if an article infringes on intellectual propPerfect Enforcement 103
erty rights, it can be impounded and destroyed.11 Impoundment remedies are
usually encountered only in the form of Prohibition-era-style raids on warehouses and distribution centers, which seize large amounts of contraband before it is sold to consumers.12 There are no house-to-house raids to, say, seize
bootleg concert recordings or reclaim knockoff Rolexes and Louis Vuitton
handbags from the people who purchased the goods.
TiVo saw a new opportunity in its patent case, recognizing that EchoStar’s
dish system is one of an increasing number of modern tethered appliances. The
system periodically phones home to EchoStar, asking for updated programming for its internal software.13 This tethered functionality also means EchoStar can remotely destroy the units. To do so requires EchoStar only to load its
central server with an update that kills EchoStar DVRs when they check in for
new features.
As of this writing, TiVo v. EchoStar is pending appeal on other grounds.14
The order has been stayed, and no DVRs have yet been remotely destroyed.15
But such remote remedies are not wholly unprecedented. In 2001, a U.S. federal court heard a claim from a company called PlayMedia that AOL had included PlayMedia’s AMP MP3 playback software in version 6.0 of AOL’s software in violation of a settlement agreement between PlayMedia and a company
that AOL had acquired. The court agreed with PlayMedia and ordered AOL to
prevent “any user of the AOL service from completing an online ‘session’ . . .
without AMP being removed from the user’s copy of AOL 6.0 by means of an
AOL online ‘live update.’”16
TiVo v. EchoStar and PlayMedia v. AOL broach the strange and troubling issues that arise from the curious technological hybrids that increasingly populate the digital world. These hybrids mate the simplicity and reliability of television-like appliances with the privileged power of the vendor to reprogram
those appliances over a network.
REGULABILITY AND THE TETHERED APPLIANCE
As legal systems experienced the first wave of suits arising from use of the Internet, scholars such as Lawrence Lessig and Joel Reidenberg emphasized that
code could be law.17 In this view, the software we use shapes and channels our
online behavior as surely as—or even more surely and subtly than—law itself.
Restrictions can be enforced by the way a piece of software operates. Our ways
of thinking about such “west coast code”18 are still maturing, and our instincts
104 After the Stall
for when we object to such code are not well formed. Just as technology’s functionality defines the universe in which people can operate, it also defines the
range of regulatory options reasonably available to a sovereign. A change in
technology can change the power dynamic between those who promulgate the
law and those who are subject to it.19
If regulators can induce certain alterations in the nature of Internet technologies that others could not undo or widely circumvent, then many of the
regulatory limitations occasioned by the Internet would evaporate. Lessig and
others have worried greatly about such potential changes, fearing that blunderbuss technology regulation by overeager regulators will intrude on the creative
freedom of technology makers and the civic freedoms of those who use the
technology.20
So far Lessig’s worries have not come to pass. A system’s level of generativity
can change the direction of the power flow between sovereign and subject in favor of the subject, and generative Internet technology has not been easy to alter.
There have been private attempts to use code to build so-called trusted systems,
software that outsiders can trust to limit users’ behavior—for example, by allowing a song to be played only three times before it “expires,” or by preventing
an e-book from being printed.21 (Code-based enforcement mechanisms are
also variously called digital rights management systems or technological protection measures.)22 Most trusted systems have failed, often because either
savvy users have cracked them early on or the market has simply rejected them.
The few that have achieved some measure of adoption—like Apple iTunes’s
FairPlay, which allows purchased songs to exist on only five registered devices at
once23—are either readily circumvented, or tailored so they do not prevent
most users’ desired behavior.
Even the governments most determined to regulate certain flows of information—such as China—have found it difficult to suppress the flow of data
on the Internet.24 To be sure, with enough effort, censorship can have some
effect, especially because most citizens prefer to slow down for speed bumps
rather than invent ways around them.25 When a Web site fails to load, for example, users generally visit a substitute site rather than wait. Taking advantage
of this reality, Chinese regulators have used their extensive control over ISPs’
routing of data packets to steer users away from undesirable Web sites by simply causing the Web pages to fail to load in the course of normal surfing.
But so long as the endpoints remain generative and any sort of basic Internet
access remains available, subversively minded techies can make applications
Perfect Enforcement 105
that offer a way around network blocks.26 Such applications can be distributed
through the network, and unsavvy users can then partake simply by doubleclicking on an icon. Comprehensive regulatory crackdowns require a non-generative endpoint or influence over the individual using it to ensure that the endpoint is not repurposed.",841
https://futureoftheinternet.org/wp-content/uploads/sites/12/2013/06/ZittrainTheFutureoftheInternet.pdf,"Jonathan Zittrain, The Future of the Internet and How to Stop It ",3,"Innovation, Appliancization, Education and Knowledge",Class 20,"For example, non-generative endpoints like radios and telephones can be
constrained by filtering the networks they use. Even if someone is unafraid to
turn a radio tuning knob or dial a telephone number to the outside world, radio broadcasts can be jammed, and phone connections can be disabled or monitored. Because radios and telephones are not generative, such jamming cannot
be circumvented. North Korea has gone even further with endpoint lockdown.
There, by law, the radios themselves are built so that they cannot be tuned to
frequencies other than those with official broadcasts.27
With generative devices like PCs, the regulator must settle for either much
leakier enforcement or much more resource-intensive measures that target the
individual—such as compelling citizens to perform their Internet surfing in
cyber cafés or public libraries, where they might limit their activities for fear
that others are watching.
The shift toward non-generative endpoint technology driven by consumer security worries of the sort described in this book changes the equation.28The traditional appliance, or nearly any object, for that matter, once placed with an individual, belongs to that person. Tethered appliances belong to a new class of
technology. They are appliances in that they are easy to use, while not easy to tinker with. They are tethered because it is easy for their vendors to change them
from afar, long after the devices have left warehouses and showrooms. Consider
how useful it was in 2003 that Apple could introduce the iTunes Store directly
into iTunes software found on PCs running Mac OS.29 Similarly, consumers can
turn on a TiVo—or EchoStar—box to find that, thanks to a remote update, it
can do new things, such as share programs with other televisions in the house.30
These tethered appliances receive remote updates from the manufacturer,
but they generally are not configured to allow anyone else to tinker with
them—to invent new features and distribute them to other owners who would
not know how to program the boxes themselves. Updates come from only one
source, with a model of product development limited to non-user innovation.
Indeed, recall that some recent devices, like the iPhone, are updated in ways
that actively seek out and erase any user modifications. These boxes thus resemble the early proprietary information services like CompuServe and AOL,
106 After the Stall
for which only the service providers could add new features. Any user inventiveness was cabined by delays in chartering and understanding consumer focus groups, the hassles of forging deals with partners to invent and implement
suggested features, and the burdens of performing technical R&D.
Yet tethered appliances are much more powerful than traditional appliances.
Under the old regime, a toaster, once purchased, remains a toaster. An upgraded model might offer a third slot, but no manufacturer’s representative visits consumers and retrofits old toasters. Buy a record and it can be played as
many times as the owner wants. If the original musician wishes to rerecord a
certain track, she will have to feature it in a successive release—the older work
has been released to the four winds and cannot be recalled.31 A shift to smarter
appliances, ones that can be updated by—and only by—their makers, is fundamentally changing the way in which we experience our technologies. Appliances become contingent: rented instead of owned, even if one pays up front for
them, since they are subject to instantaneous revision.
A continuing connection to a producer paves the way for easier postacquisition improvements: the modern equivalent of third slots for old toasters. That
sounds good: more features, instantly distributed. So what is the drawback?
Those who believe that markets reflect demand will rightly ask why a producer
would make post hoc changes to technology that customers may not want.
One answer is that they may be compelled to do so. Consider EchoStar’s losing verdict in Marshall, Texas. If producers can alter their products long after
the products have been bought and installed in homes and offices, it occasions
a sea change in the regulability of those products and their users. With products
tethered to the network, regulators—perhaps on their own initiative to advance broadly defined public policy, or perhaps acting on behalf of parties like
TiVo claiming private harms—finally have a toolkit for exercising meaningful
control over the famously anarchic Internet.
TYPES OF PERFECT ENFORCEMENT
The law as we have known it has had flexible borders. This flexibility derives
from prosecutorial and police discretion and from the artifice of the outlaw.
When code is law, however, execution is exquisite, and law can be self-enforcing. The flexibility recedes. Those who control the tethered appliance can control the behavior undertaken with the device in a number of ways: preemption,
specific injunction, and surveillance.",732
https://futureoftheinternet.org/wp-content/uploads/sites/12/2013/06/ZittrainTheFutureoftheInternet.pdf,"Jonathan Zittrain, The Future of the Internet and How to Stop It ",4,"Innovation, Appliancization, Education and Knowledge",Class 20,"Preemption
Preemption entails anticipating and designing against undesirable conduct
before it happens. Many of the examples of code as law (or, more generally, architecture as law) fit into this category. Lessig points out that speeding can be
regulated quite effectively through the previously mentioned use of speed
bumps.32 Put a speed bump in the road and people slow down rather than risk
damaging their cars. Likewise, most DVD players have Macrovision copy protection that causes a signal to be embedded in the playback of DVDs, stymieing most attempts to record DVDs onto a VCR.33 Owners of Microsoft’s
Zune music player can beam music to other Zune owners, but music so transferred can be played only three times or within three days of the transfer.34This
kind of limitation arguably preempts much of the damage that might otherwise be thought to arise if music subject to copyright could be shared freely.
With TiVo, a broadcaster can flag a program as “premium” and assign it an expiration date.35 A little red flag then appears next to it in the viewer’s list of
recorded programs, and the TiVo will refuse to play the program after its expiration date. The box’s makers (or regulators of the makers) could further decide
to automatically reprogram the TiVo to limit its fast-forwarding functionality
or to restrict its hours of operability. (In China, makers of multiplayer games
have been compelled to limit the number of hours a day that subscribers can
play in an effort to curb gaming addiction.)36 Preemption does not require
constant updates so long as the device cannot easily be modified once it is in the
user’s possession; the idea is to design the product with broadly defined limits
that do not require further intervention to serve the regulator’s or designer’s
purposes.
Specific Injunction
Specific injunction takes advantage of the communication that routinely occurs between a particular tethered appliance and its manufacturer, after it is in
consumer hands, to reflect changed circumstances. The TiVo v. EchoStar remedy belongs in this category, as it mandates modification of the EchoStar units
after they have already been designed and distributed. This remote remedy was
practicable because the tethering allowed the devices to be completely reprogrammed, even though the initial design of the EchoStar device had not anticipated a patent infringement judgment.
Specific injunction also allows for much more tailored remedies, like the
PlayMedia-specific court order discussed earlier. Such tailoring can be content108 After the Stall
specific, user-specific, or even time-specific. These remedies can apply to some
units and not others, allowing regulators to winnow out bad uses from good
ones on the basis of individual adjudication, rather than rely on the generalities
of ex ante legislative-style drafting. For example, suppose a particular television
broadcast were found to infringe a copyright or to damage someone’s reputation. In a world of old-fashioned televisions and VCRs, or PCs and peer-topeer networks, the broadcaster or creator could be sued, but anyone who
recorded the broadcast could, as a practical matter, retain a copy. Today, it is
possible to require DVR makers to delete the offending broadcast from any
DVRs that have recorded it or, perhaps acting with more precision, to retroactively edit out the slice of defamatory content from the recorded program. This
control extends beyond any particular content medium: as e-book devices become popular, the same excisions could be performed for print materials. Tailoring also could be user-specific, requiring, say, the prevention or elimination
of prurient material from the devices of registered sex offenders but not from
others’ devices.
Surveillance
Tethered appliances have the capacity to relay information about their uses
back to the manufacturer. We have become accustomed to the idea that Web
sites track our behavior when we access them—an online bookseller, for example, knows what books we have browsed and bought at its site. Tethered appliances take this knowledge a step further, recording what we do with the appliances even in transactions that have nothing to do with the vendor. A TiVo
knows whether its owner watches FOX News or PBS. It knows when someone
replays some scenes and skips others. This information is routinely sent to the
TiVo mothership;37 for example, in the case of Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show, TiVo was able to calculate that this moment was replayed three times more frequently than any other
during the broadcast.38
TiVo promises not to release such surveillance information in personally
identifiable form, but the company tempers the promise with an industry-standard exception for regulators who request it through legal process.39 Automakers General Motors and BMW offer similar privacy policies for the computer
systems, such as OnStar, built into their automobiles. OnStar’s uses range from
providing turn-by-turn driving directions with the aid of Global Positioning
System (GPS) satellites, to monitoring tire pressure, providing emergency assistance, and facilitating hands-free calling with embedded microphones and
Perfect Enforcement 109
speakers. The FBI realized that it could eavesdrop on conversations occurring
inside an OnStar-equipped vehicle by remotely reprogramming the system to
activate its microphones for use as a “roving bug,” and it has secretly ordered an
anonymous carmaker to do just that on at least one occasion.40",807
https://futureoftheinternet.org/wp-content/uploads/sites/12/2013/06/ZittrainTheFutureoftheInternet.pdf,"Jonathan Zittrain, The Future of the Internet and How to Stop It ",5,"Innovation, Appliancization, Education and Knowledge",Class 20,"A similar dynamic is possible with nearly all mobile phones. Mobile phones can be reprogrammed at a distance, allowing their microphones to be secretly turned on even when the phone is powered down. All ambient noise and conversation can then be continuously picked up and relayed back to law enforcement authorities, regardless of whether the phone is being used for a call.41 On modern PCs equipped with an automatic update feature, there is no technical barrier that prevents the implementation of any similar form of surveillance on the machine, whether it involves turning on the PC’s microphone and video camera, or searching and sharing any documents stored on the machine. Such surveillance could be introduced through a targeted update from the OS maker or from any other provider of software running on the machine. Surveillance need not be limited to targeted eavesdropping that is part of a criminal or civil investigation. It can also be effected more generally. In 1996, law student Michael Adler offered the hypothetical of an Internet-wide search for contraband.42 He pointed out that some digital items might be illegal to possess or be indicative of other illegal activity—for example, child pornography, leaked classified documents, or stores of material copied without permission of the copyright holder. A Net-wide search could be instigated that would inventory connected machines and report back when smoking guns were found. Tethering makes these approaches practicable and inexpensive for regulators. A government need only regulate certain critical private intermediaries— those who control the tethered appliances—to change the way individuals experience the world. When a doctrine’s scope has been limited by prudential enforcement costs, its reach can be increased as the costs diminish. EVALUATING PERFECT ENFORCEMENT The prospect of more thorough or “perfect” law enforcement may seem appealing. If one could wave a wand and make it impossible for people to kill each other, there might seem little reason to hesitate. Although the common law has only rarely sought to outright prohibit the continued distribution of defamatory materials by booksellers and newsstands, much less continued possession 110 After the Stall by purchasers, ease of enforcement through tethered appliances could make it so that all such material—wherever it might be found—could vanish into the memory hole. Even when it comes to waving the regulator’s wand for the purpose of eradicating online evils like harassment, invasion of privacy, and copyright infringement, there are important reasons to hesitate.43 Objections to the Underlying Substantive Law Some people are consistently diffident about the presence of law in the online space. Those with undiluted libertarian values might oppose easier enforcement of laws as a general matter, because they believe that self-defense is the best solution to harm by others, especially within a medium that carries bits, not bullets.44 By these lights, the most common online harms simply are not as harmful as those in the physical world, and therefore they call for lesser intrusions. For example, defamatory speech might be met not by a lawsuit for money damages or an injunction requiring deletion of the lies, but rather by more speech that corrects the record. A well-configured e-mail client can adequately block spam, making it unnecessary to resort to intervention by a public authority. Material harmful to minors can be defanged by using parental filters, or by providing better education to children about what to expect when they go online and how to deal with images of violence and hate. Such “just deal with it” arguments are deployed less often against the online circulation of images of child abuse. The creation and distribution of child pornography is nearly universally understood as a significant harm. In this context, those arguing in favor of an anarchic environment shift to claims that the activity is not very common or that existing tools and remedies are sufficiently effective—or they rely on some of the other objections described below. One can also argue against stronger enforcement regimes by objecting to the laws that will be enforced. For example, many of those who argue against increased copyright enforcement—undertaken through laws that broaden infringement penalties45 or through trusted systems that preempt infringement46—argue that copyright law itself is too expansive.47 For those who believe that intellectual property rights have gone too far, it is natural to argue against regimes that make such rights easier to enforce, independent of seeking to reform the copyright law itself. Similarly, those who believe in lower taxes might object to a plan that makes it easier for intermediaries to collect and remit use and sales taxes for online transactions.48 Likewise, the large contingent of people who routinely engage in illegal online file sharing may naturally disPerfect Enforcement 111 favor anything that interferes with these activities.49To be sure, some of those people may download even though they believe it to be wrong—in which case they might welcome a system that better prevents them from yielding to temptation.",813
https://futureoftheinternet.org/wp-content/uploads/sites/12/2013/06/ZittrainTheFutureoftheInternet.pdf,"Jonathan Zittrain, The Future of the Internet and How to Stop It ",6,"Innovation, Appliancization, Education and Knowledge",Class 20,"Law professor William Stuntz notes the use of legal procedure—evolving
doctrines of Fourth and Fifth Amendment protection—as a way of limiting
the substantive application of unpopular laws in eighteenth- and nineteenthcentury America such as those involving first heresy and sedition, and later railroad and antitrust regulation.50 In that context, he argues, judges interpreted
the Fourth and Fifth Amendments in ways designed to increase the costs to law
enforcement of collecting evidence from private parties. When the judiciary
began defining and enforcing a right to privacy that limited the sorts of searches
police could undertake, it became more difficult to successfully prosecute objectionable crimes like heresy, sedition, or trade offenses: “It is as if privacy protection were a proxy for something else, a tool with which courts or juries could
limit the government’s substantive power.”51 Challenging the rise of tethered
appliances helps maintain certain costs on the exercise of government power—
costs that reduce the enforcement of objectionable laws.
The drawback to arguing generally against perfect enforcement because one
objects to the laws likely to be enforced is that it preaches to the choir. Certainly, those who oppose copyright laws will also oppose changes to code that
facilitate the law’s online enforcement. To persuade those who are more favorably disposed to enforcement of substantive laws using tethered appliances, we
must look to other objections.
Portability and Enforceability Without the Rule of Law
While it might be understandable that those opposed to a substantive law
would also favor continued barriers to its enforcement, others might say that
the price of living under the rule of law is that law ought to be respected, even
if one disagrees with it. In this view, the way to protest an undesirable law is to
pursue its modification or repeal, rather than to celebrate the difficulty of its enforcement.52The rise of procedural privacy limits described by Stuntz was itself
an artifact of the law—the decisions of judges with license to interpret the
Constitution. This legally sanctioned mandate is distinct from one allowing individuals to flout the law when they feel like it, simply because they cannot be
easily prevented from engaging in the illicit act or caught.
But not every society operates according to a framework of laws that are
democratically promulgated and then enforced by an independent judiciary.
112 After the Stall
Governments like those of China or Saudi Arabia might particularly benefit
from technological configurations that allow for inexpensive surveillance or the
removal of material authored by political dissidents. In a world where tethered
appliances dominate, the cat-and-mouse game tilts toward the cat. Recall that
the FBI can secretly eavesdrop on any automobile with an OnStar navigation
system by obtaining a judge’s order and ensuring that the surveillance does not
otherwise disrupt the system’s functioning. In a place without the rule of law,
the prospect of cars rolling off the assembly line surveillance-ready is particularly unsettling. China’s government has already begun experimenting with
these sorts of approaches. For example, the PC telephone program Skype is not
amenable to third-party changes and is tethered to Skype for its updates.
Skype’s distribution partner in China has agreed to censor words like “Falun
Gong” and “Dalai Lama” in its text messaging for the Chinese version of the
program.53 Other services that are not generative at the technical layer have
been similarly modified: Google.cn is censored by Google at the behest of the
Chinese government, and Microsoft’s MSN Spaces Chinese blog service automatically filters out sensitive words from blog titles.54
There is an ongoing debate about the degree to which firms chartered in
freer societies should assist in censorship or surveillance taking place in less free
societies.55The argument considered here is one layer deeper than that debate:
if the information ecosystem at the cutting edge evolves into one that is not
generative at its core, then authoritarian governments will naturally inherit an
ability to enforce their wills more easily, without needing to change technologies and services or to curtail the breadth of their influence. Because it is often
less obvious to users and the wider world, the ability to enforce quietly using
qualities of the technology itself is worrisome. Technologies that lend themselves to an easy and tightly coupled expression of governmental power simply
will be portable from one society to the next. It will make irrelevant the question about how firms like Google and Skype should operate outside their home
countries.
This conclusion suggests that although some social gain may result from better enforcement of existing laws in free societies, the gain might be more than
offset by better enforcement in societies that are less free—under repressive
governments today, or anywhere in the future. If the gains and losses remain
coupled, it might make sense to favor retention of generative technologies to
put what law professor James Boyle has called the “Libertarian gotcha” to authoritarian regimes: if one wants technological progress and the associated ecoPerfect Enforcement 113
nomic benefits, one must be prepared to accept some measure of social liberalization made possible with that technology.56 Like many regimes that want to
harness the benefits of the market while forgoing political liberalization, China
is wrestling with this tension today.57 In an attempt to save money and establish independence from an overseas software vendor like Microsoft, China has
encouraged the adoption of GNU/Linux,58 an operating system least amenable in its current form to appliancization because anyone can modify it and
install it on a non-locked-down endpoint PC. China’s attempt, therefore, represents either a misunderstanding of the key role that endpoints can play in regulation or a calculated judgment that the benefits of international technological independence outweigh the costs of less regulability.
If one objects to censorship in societies that have not developed the rule of
law, one can support the maintenance of a generative core in information technology, minimizing the opportunities for some societies that wish to exploit the
information revolution to discover new tools for control.",925
https://www.newyorker.com/magazine/2010/10/04/small-change-malcolm-gladwell?%20%20currentPage=allhttp://www.newyorker.com/reporting/%20%202010/10/04/101004fa_fact_gladwell,"Richard Dawkins, The Selfish Gene (Chapter 11 – Memes: the new replicators)
",1,"Online Participation – Memes, Communities, and “Citizen Journalism”",Class 21,"So far, I have not talked much about man in particular, though I have not deliberately excluded him either. Part of the reason I have used the term 'survival machine' is that 'animal' would have left out plants and, in some people's minds, humans. The arguments I have put forward should, prima facie, apply to any evolved being. If a species is to be excepted, it must be for good particular reasons. Are there any good reasons for supposing our own species to be unique? I believe the answer is yes. Most of what is unusual about man can be summed up in one word: 'culture'. I use the word not in its snobbish sense, but as a scientist uses it. Cultural transmission is analogous to genetic transmission in that, although basically conservative, it can give rise to a form of evolution. Geoffrey Chaucer could not hold a conversation with a modern Englishman, even though they are linked to each other by an unbroken chain of some twenty generations of Englishmen, each of whom could speak to his immediate neighbours in the chain as a son speaks to his father. Language seems to 'evolve' by non-genetic means, and at a rate which is orders of magnitude faster than genetic evolution. Cultural transmission is not unique to man. The best non-human example that I know has recently been described by P. F. Jenkins in the song of a bird called the saddleback which lives on islands off New Zealand. On the island where he worked there was a total repertoire of about nine distinct songs. Any given male sang only one or a few of these songs. The males could be classified into dialect groups. For example, one group of eight males with neighbouring territories sang a particular song called the CC song. Other dialect groups sang different songs. Sometimes the members of a dialect group shared more than one distinct song. By comparing the songs of fathers and sons, Jenkins showed that song patterns were not inherited genetically. Each young male was likely to adopt songs 11 i go Memes: the new replicators from his territorial neighbours by imitation, in an analogous way to human language. During most of the time Jenkins was there, there was a fixed number of songs on the island, a kind of'song pool' from which each young male drew his own small repertoire. But occasionally Jenkins was privileged to witness the 'invention' of a new song, which occurred by a mistake in the imitation of an old one. He writes: 'New song forms have been shown to arise variously by change of pitch of a note, repetition of a note, the elision of notes and the combination of parts of other existing songs ... The appearance of the new form was an abrupt event and the product was quite stable over a period of years. Further, in a number of cases the variant was transmitted accurately in its new form to younger recruits so that a recognizably coherent group of like singers developed.' Jenkins refers to the origins of new songs as 'cultural mutations'. Song in the saddleback truly evolves by non-genetic means. There are other examples of cultural evolution in birds and monkeys, but these are just interesting oddities. It is our own species that really shows what cultural evolution can do. Language is only one example out of many. Fashions in dress and diet, ceremonies and customs, art and architecture, engineering and technology, all evolve in historical time in a way that looks like highly speeded up genetic evolution, but has really nothing to do with genetic evolution. As in genetic evolution though, the change may be progressive. There is a sense in which modern science is actually better than ancient science. Not only does our understanding of the universe change as the centuries go by: it improves. Admittedly the current burst of improvement dates back only to the Renaissance, which was preceded by a dismal period of stagnation, in which European scientific culture was frozen at the level achieved by the Greeks. But, as we saw in Chapter 5, genetic evolution too may proceed as a series of brief spurts between stable plateaux. The analogy between cultural and genetic evolution has frequently been pointed out, sometimes in the context of quite unnecessary mystical overtones. The analogy between scientific progress and genetic evolution by natural selection has been illuminated especially by Sir Karl Popper. I want to go even further into directions which are also being explored by, for example, the geneticist L. L. Cavalli-Sforza, the anthropologist F. T. Cloak, and the ethologist J. M. Cullen.",773
https://www.newyorker.com/magazine/2010/10/04/small-change-malcolm-gladwell?%20%20currentPage=allhttp://www.newyorker.com/reporting/%20%202010/10/04/101004fa_fact_gladwell,"Richard Dawkins, The Selfish Gene (Chapter 11 – Memes: the new replicators)
",2,"Online Participation – Memes, Communities, and “Citizen Journalism”",Class 21,"As an enthusiastic Darwinian, I have been dissatisfied with Memes: the new replicators 191 explanations that my fellow-enthusiasts have offered for human behaviour. They have tried to look for 'biological advantages' in various attributes of human civilization. For instance, tribal religion has been seen as a mechanism for solidifying group identity, valuable for a pack-hunting species whose individuals rely on cooperation to catch large and fast prey. Frequently the evolutionary preconception in terms of which such theories are framed is implicitly groupselectionist, but it is possible to rephrase the theories in terms of orthodox gene selection. Man may well have spent large portions of the last several million years living in small kin groups. Kin selection and selection in favour of reciprocal altruism may have acted on human genes to produce many of our basic psychological attributes and tendencies. These ideas are plausible as far as they go, but I find that they do not begin to square up to the formidable challenge of explaining culture, cultural evolution, and the immense differences between human cultures around the world, from the utter selfishness of the Ik of Uganda, as described by Colin Turnbull, to the gentle altruism of Margaret Mead's Arapesh. I think we have got to start again and go right back to first principles. The argument I shall advance, surprising as it may seem coming from the author of the earlier chapters, is that, for an understanding of the evolution of modern man, we must begin by throwing out the gene as the sole basis of our ideas on evolution. I am an enthusiastic Darwinian, but I think Darwinism is too big a theory to be confined to the narrow context of the gene. The gene will enter my thesis as an analogy, nothing more. What, after all, is so special about genes? The answer is that they are replicators. The laws of physics are supposed to be true all over the accessible universe. Are there any principles of biology that are likely to have similar universal validity? When astronauts voyage to distant planets and look for life, they can expect to find creatures too strange and unearthly for us to imagine. But is there anything that must be true of all life, wherever it is found, and whatever the basis of its chemistry? If forms of life exist whose chemistry is based on silicon rather than carbon, or ammonia rather than water, if creatures are discovered that boil to death at -IQO degrees centigrade, if a form of life is found that is not based on chemistry at all but on electronic reverberating circuits, will there still be any general principle that is true of all life? Obviously I do not know but, if I had to bet, I would put my money on one fundamental principle. This is 192 Memes: the new replicators the law that all life evolves by the differential survival of replicating entities.* The gene, the DNA molecule, happens to be the replicating entity that prevails on our own planet. There may be others. If there are, provided certain other conditions are met, they will almost inevitably tend to become the basis for an evolutionary process. But do we have to go to distant worlds to find other kinds of replicator and other, consequent, kinds of evolution? I think that a new kind of replicator has recently emerged on this very planet. It is staring us in the face. It is still in its infancy, still drifting clumsily about in its primeval soup, but already it is achieving evolutionary change at a rate that leaves the old gene panting far behind. The new soup is the soup of human culture. We need a name for the new replicator, a noun that conveys the idea of a unit of cultural transmission, or a unit of imitation. 'Mimeme' comes from a suitable Greek root, but I want a monosyllable that sounds a bit like 'gene'. I hope my classicist friends will forgive me if I abbreviate mimeme to meme* If it is any consolation, it could alternatively be thought of as being related to 'memory', or to the French word meme. It should be pronounced to rhyme with 'cream'. Examples of memes are tunes, ideas, catch-phrases, clothes fashions, ways of making pots or of building arches. Just as genes propagate themselves in the gene pool by leaping from body to body via sperms or eggs, so memes propagate themselves in the meme pool by leaping from brain to brain via a process which, in the broad sense, can be called imitation. If a scientist hears, or reads about, a good idea, he passes it on to his colleagues and students. He mentions it in his articles and his lectures. If the idea catchs on, it can be said to propagate itself, spreading from brain to brain. As my colleague N. K. Humphrey neatly summed up an earlier draft of this chapter:'... memes should be regarded as living structures, not just metaphorically but technically.* When you plant a fertile meme in my mind you literally parasitize my brain, turning it into a vehicle for the meme's propagation in just the way that a virus may parasitize the genetic mechanism of a host cell. And this isn't just a way of talking—the meme for, say, ""belief in life after death"" is actually realized physically, millions of times over, as a structure in the nervous systems of individual men the world over.'",913
https://www.newyorker.com/magazine/2010/10/04/small-change-malcolm-gladwell?%20%20currentPage=allhttp://www.newyorker.com/reporting/%20%202010/10/04/101004fa_fact_gladwell,"Richard Dawkins, The Selfish Gene (Chapter 11 – Memes: the new replicators)
",3,"Online Participation – Memes, Communities, and “Citizen Journalism”",Class 21,"Consider the idea of God. We do not know how it arose in the meme pool. Probably it originated many times by independent 'mutation'. In any case, it is very old indeed. How does it replicate Memes: the new replicators 193 itself? By the spoken and written word, aided by great music and great art. Why does it have such high survival value? Remember that 'survival value' here does not mean value for a gene in a gene pool, but value for a meme in a meme pool. The question really means: What is it about the idea of a god that gives it its stability and penetrance in the cultural environment? The survival value of the god meme in the meme pool results from its great psychological appeal. It provides a superficially plausible answer to deep and troubling questions about existence. It suggests that injustices in this world may be rectified in the next. The 'everlasting arms' hold out a cushion against our own inadequacies which, like a doctor's placebo, is none the less effective for being imaginary. These are some of the reasons why the idea of God is copied so readily by successive generations of individual brains. God exists, if only in die form of a meme with high survival value, or infective power, in the environment provided by human culture. Some of my colleagues have suggested to me that this account of the survival value of the god meme begs the question. In the last analysis they wish always to go back to 'biological advantage'. To them it is not good enough to say that the idea of a god has 'great psychological appeal'. They want to know why it has great psychological appeal. Psychological appeal means appeal to brains, and brains are shaped by natural selection of genes in gene-pools. They want to find some way in which having a brain like that improves gene survival. I have a lot of sympathy with this attitude, and I do not doubt that there are genetic advantages in our having brains of the kind that we have. But nevertheless I think that these colleagues, if they look carefully at the fundamentals of their own assumptions, will find that they are begging just as many questions as I am. Fundamentally, the reason why it is good policy for us to try to explain biological phenomena in terms of gene advantage is that genes are replicators. As soon as the primeval soup provided conditions in which molecules could make copies of themselves, the replicators themselves took over. For more than three thousand million years, DNA has been the only replicator worth talking about in the world. But it does not necessarily hold these monopoly rights for all time. Whenever conditions arise in which a new kind of replicator can make copies of itself, the new replicators mill lend to take over, and start a new kind of evolution of their own. Once this new evolution begins, it will in no 194 Memes: the new replicators necessary sense be subservient to the old. The old gene-selected evolution, by making brains, provided the soup' in which the first memes arose. Once self-copying memes had arisen, their own, much faster, kind of evolution took off. We biologists have assimilated the idea of genetic evolution so deeply that we tend to forget that it is only one of many possible kinds of evolution. Imitation, in the broad sense, is how memes can replicate. But just as not all genes that can replicate do so successfully, so some memes are more successful in the meme-pool than others. This is the analogue of natural selection. I have mentioned particular examples of qualities that make for high survival value among memes. But in general they must be the same as those discussed for the replicators of Chapter 2: longevity, fecundity, and copying-fidelity. The longevity of any one copy of a meme is probably relatively unimportant, as it is for any one copy of a gene. The copy of the tune 'Auld Lang Syne' that exists in my brain will last only for the rest of my life.* The copy of the same tune that is printed in my volume of The Scottish Student's Song Book is unlikely to last much longer. But I expect there will be copies of the same tune on paper and in peoples' brains for centuries to come. As in the case of genes, fecundity is much more important than longevity of particular copies. If the meme is a scientific idea, its spread will depend on how acceptable it is to the population of individual scientists; a rough measure of its survival value could be obtained by counting the number of times it is referred to in successive years in scientific journals.* If it is a popular tune, its spread through the meme pool may be gauged by the number of people heard whistling it in the streets. If it is a style of women's shoe, the population memeticist may use sales statistics from shoe shops. Some memes, like some genes, achieve brilliant short-term success in spreading rapidly, but do not last long in the meme pool. Popular songs and stiletto heels are examples. Others, such as the Jewish religious laws, may continue to propagate themselves for thousands of years, usually because of the great potential permanence of written records.",898
https://www.newyorker.com/magazine/2010/10/04/small-change-malcolm-gladwell?%20%20currentPage=allhttp://www.newyorker.com/reporting/%20%202010/10/04/101004fa_fact_gladwell,"Richard Dawkins, The Selfish Gene (Chapter 11 – Memes: the new replicators)
",4,"Online Participation – Memes, Communities, and “Citizen Journalism”",Class 21,"This brings me to the third general quality of successful replicators: copying-fidelity. Here I must admit that I am on shaky ground. At first sight it looks as if memes are not high-fidelity replicators at all. Every time a scientist hears an idea and passes it on to somebody else, he is likely to change it somewhat. I have made no secret of my debt in this book to the ideas of R. L. Trivers. Yet I have Memes: the new replicators 195 not repeated them in his own words. I have twisted them round for my own purposes, changing the emphasis, blending them with ideas of my own and of other people. The memes are being passed on to you in altered form. This looks quite unlike the paniculate, all-ornone quality of gene transmission. It looks as though meme transmission is subject to continuous mutation, and also to blending. It is possible that this appearance of non-particulateness is illusory, and that the analogy with genes does not break down. After all, if we look at the inheritance of many genetic characters such as human height or skin-colouring, it does not look like the work of indivisible and unblendable genes. If a black and a white person mate, their children do not come out either black or white: they are intermediate. This does not mean the genes concerned are not paniculate. It is just that there are so many of them concerned with skin colour, each one having such a small effect, that they seem to blend. So far I have talked of memes as though it was obvious what a single unit-meme consisted of. But of course it is far from obvious. I have said a tune is one meme, but what about a symphony: how many memes is that? Is each movement one meme, each recognizable phrase of melody, each bar, each chord, or what? I appeal to the same verbal trick as I used in Chapter 3. There I divided the 'gene complex' into large and small genetic units, and units within units. The 'gene' was defined, not in a rigid all-or-none way, but as a unit of convenience, a length of chromosome with just sufficient copying-fidelity to serve as a viable unit of natural selection. If a single phrase of Beethoven's ninth symphony is sufficiently distinctive and memorable to be abstracted from the context of the whole symphony, and used as the call-sign of a maddeningly intrusive European broadcasting station, then to that extent it deserves to be called one meme. It has, incidentally, materially diminished my capacity to enjoy the original symphony. Similarly, when we say that all biologists nowadays believe in Darwin's theory, we do not mean that every biologist has, graven in his brain, an identical copy of the exact words of Charles Darwin himself. Each individual has his own way of interpreting Darwin's ideas. He probably learned them not from Darwin's own writings, but from more recent authors. Much of what Darwin said is, in detail, wrong. Darwin if he read this book would scarcely recognize his own original theory in it, though I hope he would like the way I put it. Yet, in spite of all this, there is something, some essence of 196 Memes: the new replicators Darwinism, which is present in the head of every individual who understands the theory. If this were not so, then almost any statement about two people agreeing with each other would be meaningless. An 'idea-meme' might be defined as an entity that is capable of being transmitted from one brain to another. The meme of Darwin's theory is therefore that essential basis of the idea which is held in common by all brains that understand the theory. The differences in the ways that people represent the theory are then, by definition, not part of the meme. If Darwin's theory can be subdivided into components, such that some people believe component A but not component B, while others believe B but not A, then^i and B should be regarded as separate memes. If almost everybody who believes in A also believes in B—if the memes are closely 'linked' to use the genetic term—then it is convenient to lump them together as one meme. Let us pursue the analogy between memes and genes further. Throughout this book, I have emphasized that we must not think of genes as conscious, purposeful agents. Blind natural selection, however, makes them behave rather as if they were purposeful, and it has been convenient, as a shorthand, to refer to genes in the language of purpose. For example, when we say 'genes are trying to increase their numbers in future gene pools', what we really mean is 'those genes that behave in such a way as to increase their numbers in future gene pools tend to be the genes whose effects we see in the world'. Just as we have found it convenient to think of genes as active agents, working purposefully for their own survival, perhaps it might be convenient to think of memes in the same way. In neither case must we get mystical about it. In both cases the idea of purpose is only a metaphor, but we have already seen what a fruitful metaphor it is in the case of genes. We have even used words like 'selfish' and 'ruthless' of genes, knowing full well it is only a figure of speech. Can we, in exactly the same spirit, look for selfish or ruthless memes?",920
https://www.newyorker.com/magazine/2010/10/04/small-change-malcolm-gladwell?%20%20currentPage=allhttp://www.newyorker.com/reporting/%20%202010/10/04/101004fa_fact_gladwell,"Richard Dawkins, The Selfish Gene (Chapter 11 – Memes: the new replicators)
",5,"Online Participation – Memes, Communities, and “Citizen Journalism”",Class 21,"There is a problem here concerning the nature of competition. Where there is sexual reproduction, each gene is competing particularly with its own alleles—rivals for the same chromosomal slot. Memes seem to have nothing equivalent to chromosomes, and nothing equivalent to alleles. I suppose there is a trivial sense in which many ideas can be said to have 'opposites'. But in general memes resemble the early replicating molecules, floating chaotically free in the primeval soup, rather than modern genes in their neatly Memes: the new replicators 197 paired, chromosomal regiments. In what sense then are memes competing with each other? Should we expect them to be 'selfish' or 'ruthless', if they have no alleles? The answer is that we might, because there is a sense in which they must indulge in a kind of competition with each other. Any user of a digital computer knows how precious computer time and memory storage space are. At many large computer centres they are literally costed in money; or each user may be allotted a ration of time, measured in seconds, and a ration of space, measured in 'words'. The computers in which memes live are human brains.* Time is possibly a more important limiting factor than storage space, and it is the subject of heavy competition. The human brain, and the body that it controls, cannot do more than one or a few things at once. If a meme is to dominate the attention of a human brain, it must do so at the expense of 'rival' memes. Other commodities for which memes compete are radio and television time, billboard space, newspaper column-inches, and library shelf-space. In the case of genes, we saw in Chapter 3 that co-adapted gene complexes may arise in the gene pool. A large set of genes concerned with mimicry in butterflies became tightly linked together on the same chromosome, so tightly that they can be treated as one gene. In Chapter 5 we met the more sophisticated idea of the evolutionarily stable set of genes. Mutually suitable teeth, claws, guts, and sense organs evolved in carnivore gene pools, while a different stable set of characteristics emerged from herbivore gene pools. Does anything analogous occur in meme pools? Has the god meme, say, become associated with any other particular memes, and does this association assist the survival of each of the participating memes? Perhaps we could regard an organized church, with its architecture, rituals, laws, music, art, and written tradition, as a co-adapted stable set of mutually-assisting memes. To take a particular example, an aspect of doctrine that has been very effective in enforcing religious observance is the threat of hell fire. Many children and even some adults believe that they will suffer ghastly torments after death if they do not obey the priestly rules. This is a peculiarly nasty technique of persuasion, causing great psychological anguish throughout the middle ages and even today. But it is highly effective. It might almost have been planned deliberately by a machiavellian priesthood trained in deep psychological indoctrination techniques. However, I doubt if the priests 198 Memes: the new replicators were that clever. Much more probably, unconscious memes have ensured their own survival by virtue of those same qualities of pseudo-ruthlessness that successful genes display. The idea of hell fire is, quite simply, self perpetuating, because of its own deep psychological impact. It has become linked with the god meme because the two reinforce each other, and assist each other's survival in the meme pool. Another member of the religious meme complex is called faith. It means blind trust, in the absence of evidence, even in the teeth of evidence. The story of Doubting Thomas is told, not so that we shall admire Thomas, but so that we can admire the other apostles in comparison. Thomas demanded evidence. Nothing is more lethal for certain kinds of meme than a tendency to look for evidence. The other apostles, whose faith was so strong that they did not need evidence, are held up to us as worthy of imitation. The meme for blind faith secures its own perpetuation by the simple unconscious expedient of discouraging rational inquiry. Blind faith can justify anything.* If a man believes in a different
god, or even if he uses a different ritual for worshipping the same
god, blind faith can decree that he should die—on die cross, at the
stake, skewered on a Crusader's sword, shot in a Beirut street, or
blown up in a bar in Belfast. Memes for blind faith have their own
ruthless ways of propagating themselves. This is true of patriotic and
political as well as religious blind faith.",770
https://www.newyorker.com/magazine/2010/10/04/small-change-malcolm-gladwell?%20%20currentPage=allhttp://www.newyorker.com/reporting/%20%202010/10/04/101004fa_fact_gladwell,"Richard Dawkins, The Selfish Gene (Chapter 11 – Memes: the new replicators)
",6,"Online Participation – Memes, Communities, and “Citizen Journalism”",Class 21,"Memes and genes may often reinforce each other, but they sometimes come into opposition. For example, the habit of celibacy is presumably not inherited genetically. A gene for celibacy is doomed to failure in the gene pool, except under very special circumstances such as we find in the social insects. But still, a meme for celibacy can be successful in the meme pool. For example, suppose the success of a meme depends critically on how much time people spend in actively transmitting it to other people. Any time spent in doing other things than attempting to transmit the meme may be regarded as time wasted from the meme's point of view. The meme for celibacy is transmitted by priests to young boys who have not yet decided what they want to do with their lives. The medium of transmission is human influence of various kinds, the spoken and written word, personal example and so on. Suppose, for the sake of argument, it happened to be the case that marriage weakened the power of a priest to influence his flock, say because it occupied a Memes: the new replicators 199 large proportion of his time and attention. This has, indeed, been advanced as an official reason for the enforcement of celibacy among priests. If this were the case, it would follow that the meme for celibacy could have greater survival value than the meme for marriage. Of course, exactly the opposite would be true for zgene for celibacy. If a priest is a survival machine for memes, celibacy is a useful attribute to build into him. Celibacy is just a minor partner in a large complex of mutually-assisting religious memes. I conjecture that co-adapted meme-complexes evolve in the same kind of way as co-adapted gene-complexes. Selection favours memes that exploit their cultural environment to their own advantage. This cultural environment consists of other memes which are also being selected. The meme pool therefore comes to have the attributes of an evolutionarily stable set, which new memes find it hard to invade. I have been a bit negative about memes, but they have their cheerful side as well. When we die there are two things we can leave behind us: genes and memes. We were built as gene machines, created to pass on our genes. But that aspect of us will be forgotten in three generations. Your child, even your grandchild, may bear a resemblance to you, perhaps in facial features, in a talent foV music, in the colour of her hair. But as each generation passes, the contribution of your genes is halved. It does not take long to reach negligible proportions. Our genes may be immortal but the collection of genes that is any one of us is bound to crumble away. Elizabeth II is a direct descendant of William the Conqueror. Yet it is quite probable that she bears not a single one of the old king's genes. We should not seek immortality in reproduction. But if you contribute to the world's culture, if you have a good idea, compose a tune, invent a sparking plug, write a poem, it may live on, intact, long after your genes have dissolved in the common pool. Socrates may or may not have a gene or two alive in the world today, as G. C. Williams has remarked, but who cares? The memecomplexes of Socrates, Leonardo, Copernicus and Marconi are still going strong. However speculative my development of the theory of memes may be, there is one serious point which I would like to emphasize once again. This is that when we look at the evolution of cultural traits and at their survival value, we must be clear whose survival we are talking about. Biologists, as we have seen, are accustomed to looking for 2OO Memes: the new replicators advantages at the gene level (or the individual, the group, or the species level according to taste). What we have not previously considered is that a cultural trait may have evolved in the way that it has, simply because it is advantageous to itself. We do not have to look for conventional biological survival values of traits like religion, music, and ritual dancing, though these may also be present. Once the genes have provided their survival machines with brains that are capable of rapid imitation, the memes will automatically take over. We do not even have to posit a genetic advantage in imitation, though that would certainly help. All that is necessary is that the brain should be capable of imitation: memes will then evolve that exploit the capability to the full. I now close the topic of the new replicators, and end the chapter on a note of qualified hope. One unique feature of man, which may or may not have evolved memically, is his capacity for conscious foresight. Selfish genes (and, if you allow the speculation of this chapter, memes too) have no foresight. They are unconscious, blind, replicators. The fact that they replicate, together with certain further conditions means, willy nilly, that they will tend towards the evolution of qualities which, in the special sense of this book, can be called selfish. A simple replicator, whether gene or meme, cannot be expected to forgo short-term selfish advantage even if it would really pay it, in the long term, to do so. We saw this in the chapter on aggression. Even though a 'conspiracy of doves' would be better for every single individual than the evolutionarily stable strategy, natural selection is bound to favour the ESS",925
https://www.newyorker.com/magazine/2010/10/04/small-change-malcolm-gladwell?%20%20currentPage=allhttp://www.newyorker.com/reporting/%20%202010/10/04/101004fa_fact_gladwell,"Richard Dawkins, The Selfish Gene (Chapter 11 – Memes: the new replicators)
",7,"Online Participation – Memes, Communities, and “Citizen Journalism”",Class 21,"It is possible that yet another unique quality of man is a capacity for genuine, disinterested, true altruism. I hope so, but I am not going to argue the case one way or the other, nor to speculate over its possible memic evolution. The point I am making now is that, even if we look on the dark side and assume that individual man is fundamentally selfish, our conscious foresight—our capacity to simulate the future in imagination—could save us from the worst selfish excesses of the blind replicators. We have at least the mental equipment to foster our long-term selfish interests rather than merely our short-term selfish interests. We can see the long-term benefits of participating in a 'conspiracy of doves', and we can sit down together to discuss ways of making the conspiracy work. We have the power to defy the selfish genes of our birth and, if necessary, the selfish memes of our indoctrination. We can even discuss ways of Memes: the new replicators 201 deliberately cultivating and nurturing pure, disinterested altruism— something that has no place in nature, something that has never existed before in the whole history of the world. We are built as gene machines and cultured as meme machines, but we have the power to turn against our creators. We, alone on earth, can rebel against the tyranny of the selfish replicators.*",228
https://yalelawtech.org/syllabus/,"Law, Technology, and Culture Syllabus",1,Syllabus,Syllabus,"Law, Technology & Culture
CPSC 183: Law, Technology, & Culture
Brad Rosen (brad.rosen{at}yale.edu)
Fall 2023: M W, 4:00-5:15, LC 102
TAs: ryan.sandler, courtney.perales, chad.borgman, elliot.ping, bessie.bauman, [TBD]

CPSC 183 is a class that is open to non-majors.  You do not need a background in tech or computer science to enjoy the class.  The class offers some project options for CS majors as well.  

As a general rule, we will adapt the syllabus to take into account current events.  We may need to add supplemental readings if breaking news changes the topics being discussed. Feel free to review the syllabi from previous years, “like such as” this ridiculously exhaustive list of previous syllabi: 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, and 2023. These should give you a flavor of what the class will ultimately look like.

If you have questions during add/drop period, please email me directly.  (Strongly encouraged)

NOTE:  Attendance in this class is not optional; participation is synchronous.  This class is not a gut.  The reviews lie.  The cake is a lie.  There is no spoon.  Tceles B Hsup.  Do not taunt happy fun ball.  You have to burn the rope.  I made you look.

1) Attention Span Wars — You or a Goldfish?  8/28

You Now Have A Shorter Attention Span Than A Goldfish
OR DO YOU?
The scarcest resource you don’t even know you’re spending (read)
In the future, our attention will be sold. (read)
Lost In the Scroll
Forget the Click, Online Time May Be More Valuable (skim)
What you think you know about the web is wrong (read)
What Is Our Attention Really Worth?
Yes, the internet is destroying our collective attention span
How digital media turned us all into dopamine addicts
The Darkly Soothing Compulsion of Doomscrolling
(someone is trying to make Hopescrolling happen)
The Great Fracturing Of American Attention
Welcome to the Age of Foomscrolling
Notification Overload
Gen Z/Flip Phones (yup, 2024 trend still going)
2) The Past And the Future of Cyberlaw — 8/30

John Perry Barlow, A Declaration of the Independence of Cyberspace
Lawrence Lessig, Code 2.0 (Preface to the First Edition, Chapter 1, Chapter 2, Preface to the Second Edition – read preface to the second edition last – p. xii-23, ix-xi)
Frank Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207
Mike Madison, Is Cyberlaw Making Us Stupid? (also read the comments)
Jack Goldsmith and Tim Wu, Digital Borders, Legal Affairs, Jan/Feb 2006
David R. Johnson and David G. Post, Law and Borders–The Rise of Law in Cyberspace, 45 Stan. L. Rev. 1367 (1996) [excerpt]
Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501 (1999) [excerpt]
3) The Past and Future of Cyberspace – 9/4

Jonathan Zittrain, The Future of the Internet — and How to Stop It (Chapters 1, 2 – p. 11-35)
U.S. v. Morris (Concentrate mainly on the “Facts” section, don’t worry if you don’t understand some of the more complicated issues in the “Discussion” section)
U.S. v. Nosal  (2012 en banc)  (read Kozinski’s majority opinion, Skim dissent)
U.S. v. Nosal (2016 panel) (skim majority, read dissent)
EFF/ACLU Ask Ninth Circuit to Rehear CFAA cases
Optional:  9th Circuit denial of rehearing (Reinhardt’s dissent worth reading)
CFAA Circuit Split Writeup (skim)
Tennessee District Court Deepens The ‘Without Authorization’ Divide
Violating an Employer’s Computer Use Restriction Is Not a Federal Crime (skim)
Linkedin data-scraping case highlights calls for SCOTUS review of computer fraud law
EFF Asks Supreme Court To Review Dangerous Interpretation of Computer Crime Statute (read
NACDL – CFAA Primer (Note Criminal Sentence Lengths)
Van Buren vs. United States (2021) (skim)
Supreme Court Reins in the CFAA (READ – if all the CFAA stuff is confusing, READ THIS TWICE)
Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998) [excerpt]
4) What is law? (Dudley don’t hurt me…) – 9/9

Lon Fuller, The Case of The Speluncean Explorers
Regina v. Dudley and Stephens (Wikipedia)
Just For Fun
Cave In To Your Fear
Hello from the other side
 Speluncean Trailer
5) 15 Minutes of Fame … and exploitation thereof  – 9/16

More Like 15 Seconds of Nanofame
Jessica Slaughter
Why My Daughter Will Never Have a Webcam: The Jessi Slaughter Story [VIDEO] [the original has been removed and the link now points to the archive.org version]
Know Your Meme: About Jessica Slaughter [VIDEO]
Nick Noonan and Amy Heidemann
Look at Me Now [VIDEO]
The Hater’s Guide to Karmin
….assisted by Astrology
Ghyslain Raza
Star Wars Kid [VIDEO]
About Star Wars Kid
Story Continues (2022)
Antoine Dodson
Reaction to an attempted rape of a Huntsville, Alabama woman [VIDEO]
Bed Intruder Song [VIDEO]
About Antoine Dodson
Laina Morris
OAG describes what internet stardom is like
Know Your Meme: OAG
Original Video
Kelly Martin Broderick
My Picture Was Stolen and Turned Into a Fat Shaming Anti-Feminist Meme on Facebook [original gone; now links to archive.org]
Cosmo Article (read first post as well)
Matthew Cordle
I Killed A Man
What Happens When a Suicide Confession Goes Viral
Matt Cordle Sentenced
Julia Fierro
George Lindell
George Lindell Witnesses an Accident [VIDEO]
Reality Hits You Hard, Bro [VIDEO]
The Troubling Viral Trend of the “Hilarious” Black Neighbor
What We Can Learn From the Viral Spotlight on Charles Ramsay
The Creator’s of Kimmy Schmidt’s Theme On Sending Up The “Hilarious Black Neighbor” Meme
Viral Video News Memes Bring Fame — But Still Feel Almost Racist
The Moral Compass of Social Media Is Broken
The Dark Side of Going Viral
On Turning Racist White People Into Memes To Cope With Collective Trauma
How Far Can You Go To Resist Being the Subject of a Viral Video
It’s Corn
TikTok/Child Stars: One, Two
I want to be a child star
6) Introduction to Digital Copyright – 9/18

Constitution Art 1 Sec. 8 clause 8 (Only read the first part and the clause starting with “To promote the progress..”)
17 USC §102
17 USC §103
17 USC §105
17 USC §106
Feist v. Rural Telephone
Lawrence Lessig, Free Culture (Ch 6-7, 85-99)
Christina Mulligan, Copyright and Glee
Andrew Leonard, The Copyright Wars Come to”Glee”
Scales of Justice
Mechanical Licenses
The Weird Legal Reason Many of Your Favorite Shows Aren’t On DVD (….or streaming,)
Copyright and the Music Marketplace (skim 16-34 and 55-58; read as much as you’re interested in)
7) Fair Use and the DMCA – 9/23

17 USC §107
Pierre Leval, Toward a Fair Use Standard  [DO THIS READING TWICE.  IT IS VERY IMPORTANT.  IT NECESSITATES CAPS.  YES I AM YELLING.]
Swatch Group v. Bloomberg  (skip p9-11, 44-47)
Seltzer v. Green Day
Warner Bros. v. RDR Books (Skim “Conclusions of Law” and “I. Copyright Infringement,” but pay special attention to “II. Fair Use”)
DC Comics v. Towle (Holy Copyright, Batman!)
Lenz v. Universal (dct)
Lenz v. Universal (9th Cir 2015) (skim)
Eldred v. Ashcroft [SKIM: Ginsburg opinion; Breyer Dissent, Stevens dissent]
",1033
https://yalelawtech.org/syllabus/,"Law, Technology, and Culture Syllabus",1,Syllabus,Syllabus,"8) Fair Use: Remix, Reimagine, Reuse – 9/25

Campbell v. Acuff-Rose Music
Author’s Guild v. Google (skim portions that don’t deal directly with copyright)
Perfect 10, Inc. v. Amazon.com, Inc. [summary]
Cariou v. Prince One and Two
Schwartzwald v. Oath (S.D.N.Y. 9-10-2020) (Jon Hamm’s Privates)
Bridgeport v. Dimension Films (6th Cir 2005)
VMG Salsoul v. Ciccone, 824 F3d 871 (9th Cir 2016)
Dr. Seuss v. Comicmix (read 1-13, focus 11-13)
Hosseinzadeh v. Klein (skim; read if you are interested. Background here
Skim:  Brownmark Films LLC v. Comedy Partners (7th Cir)
Skim: Code of Best Practices in Fair Use for Online Video
Madonna ended up ‘begging’ ABBA to use a sample
CoPilot – Github’s automatic coding tool rests on untested legal ground
MAI vs. Peak (Warning to Comp Sci Majors: This is infuriatingly if you know how computers work)
Oracle v. Google (EFF Summary) — if you are interested, skim Decision
Warhol v Goldsmith (pay attention to citations to Leval, and read Kagan’s dissent)
Internet Archive Is Not Fair use (read article, skim decision– skip the parts about Sony and TvEyes and re-read them after we read those decisions in the future….)
9) Fair Use: Remix and Participatory Culture – 9/30

Francesca Coppa, A Fannish Taxonomy of Hotness
Francesca Coppa, Women, Star Trek, and the early development of fannish vidding
Mary Sue
Are Fanfiction and Fanart legal?
For Class: SS+S, P+P+Z
Lip Dub
A Feud In Wolf-Kink Erotica Raises a Deep Legal Question
Watch:  Fair Use & Remix Culture: Transforming Consumers into Makers of Culture
10) Copyright and Disruptive Technology – 10/2

Sony  v. Universal [Majority Opinion]
Rewinding to Betamax: The path to consumers’ “right to record”
American Broadcasting Companies, Inc. v. Aereo, Inc.  (skim majority opinion; read Scalia dissent)
Capitol Records v. ReDigi (2d Cir 2018) [R E A D ]
Federal Court Shuts Down Aereo’s Attempt At A Comeback (skim)
The latest in the broadcast TV/copyright kerfuffle (skim)
FilmOn – Read article and skim linked opinion
First Aereo, Now FilmOn: Another Fight for Innovation and Competition in TV Technology
Hope Fades as FilmOn Loses
TvEyes (skim up to pg 11, read the rest)
Second Circuit Gouges TVEyes (skim linked 2nd circuit opinion)
EFF on Locast (read) Decision (skim)
11) P2P Law and Piracy – 10/7

LaMacchia Loophole
Optional: United States v. LaMacchia
Why The Recording Industry Really Stopped Suing Its Customers
Arista v. Limewire (read II. and V.)
Porn Company Is Suing Hundreds of NJ Residents
FAQs for Subpoena Targets
Capitol v. Thomas
Sony v. Tenenbaum
Judge Rules BitTorrent Cases Must Be Tried Separately
Mother Jones:  Why it’s getting harder to sue illegal movie downloaders
PRENDA ROUNDUP (read wikipedia article; skim as many of the original sources at the bottom as you find interesting)
…ends with Prison for Founder
Court Blocks Speculative Invoicing
Record Labels Sue Verizon for Not Disconnecting Pirates
12)  DRM and Anti-circumvention  – 10/9

Gabriella Coleman, Legal Tinkering, Expertise, and Protest Among Free and Open Source Software Developers (p. 435-448)
Richard Stallman, The Right to Read
DMCA Rulemaking Primer
The Triennial Rulemaking Process
ArsTechnica, LOC asks how should we let you break DRM?
ArsTechnica, Why a Random Federal Agency Gets To Decide How We Break DRM
2024 Rulemaking (READ — Note the streamlined process, and then read the 2021 stuff)
2021 Rulemaking (EFF) (read)
Lexmark International, Inc. v. Static Control Components, Inc. (read section IV, skim concurrences)
Matthew Green v. DOJ, No. 23-5159 (D.C. Cir. 2024). (skim – but please read pages 35 and 36)
Who’s Driving This Thing – Anti DRM Victories and Milestones 2015
DMCA Exemptions (Historical – SKIM/Consult for Reference)
2018 Exemptions Don’t Go Far Enough
VW and the DMCA & “Let Owners Look Under the Hood“
Independent Game Developer Pranks Pirates With ‘Game Dev Tycoon’
Game Dev Trolls Pirates with Unbeatable Boss
‘Deus Ex: The Fall’ Prevents Players With Jailbroken iOS Devices From Firing Guns
It is time, yet again, to beg for the right to repair
Microsoft Has Committed to the Right to Repair
Apple’s U-Turn On The Right to Repair
(explore)  http://www.copyright.gov/1201/ and
(optional – just for fun or further reading) Randall Picker, Razor-and-Blade Myth(s)
13)  Intro to Free Speech – 10/14

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (read majority opinion)
…Still Good Law
Reno v. ACLU, 521 U.S. 844 (1997), (read majority opinion)
Ashcroft v. ACLU
Skim: Cohen v. California (read “Subsequent Jurisprudence”)
Jack M. Balkin, The Future of Free Expression in the Digital Age, 36 Pepp. L. Rev. 2008 (Read pp. 102-112)
Jack M. Balkin, Media Access: A Question of Design, 76 George Wash. L. Rev. 2008 (Read I,II,III, skim IV)
Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (Read majority opinion only, 8431-8460)
Supreme Court Sidesteps Ruling on 230 (so when you ask in class where the line is, I will go ¯\_(ツ)_/¯ and point you to this)
BUT: See Moody v. Netchoice ( read 1-8, skim otherwise), and Anderson v. Tiktok (read 3-10) [or honestly, if you’re not going to, at least read this news article)
FCC v Fox, 556 U.S. ___ (2009) (Read: Syllabus and the Concurring Opinion by Justice Thomas.  Skim the Majority Opinion Sections “Statutory and Regulatory Background” and “Governing Principles.”)
FCC v. Fox (Fox II)(2012), (Read: Syllabus, Skim: Part 2 and 3)
The Atlantic: Facebook Like Is Now Covered by First Amendment
Bland v. Roberts (read 36-48; skim background)
Packingham
Court: Bloggers have First Amendment protections
Jonathan Weinberg, Rating the Net [Excerpt] (OPTIONAL)
Rumsfeld v. Fair Oral Argument (This section is OPTIONAL….but highly recommended if you want to understand modern speech restrictions)
Transcript here (note Justice Breyer’s question on page 43)
Summary
14) Anonymity & Online Identity  – OCTOBER BREAK READING

The Reasons You Can’t be Anonymous Anymore
Jose Martinez, Broadway Star of ‘Xanadu’ and ‘Wicked’ Sues To Reveal Twitter Poster Behind STD Claim
Special Proceeding Order
Kashmir Hill, Civilizing the Internet, One Lawsuit at a Time
Kashmir Hill, Lessons Learned from Skanks in NYC
Chris Soghoian, Twitter’s Privacy Policy and the Wikileaks Case
Chris Soghoian, NYTimes, When Secrets Aren’t Safe With Journalists
Parmy Olson, Lawsuits against Web Trolls are on the rise
Daniel Solove, The Future of Reputation, Ch. 6 p. 136-150, Chapter 8: pp. 189-205 [Full Text]
Judge: Public Tweets Have No Reasonable Expectation of Privacy
People v. Harris
Leon v. Target (skim but READ pages 8-11)
Rosario v. Clark (skim)
“Actually Yes“
Ehling v. Monmouth (skim)",948
https://yalelawtech.org/syllabus/,"Law, Technology, and Culture Syllabus",1,Syllabus,Syllabus,"15) Defamation, Private Photos, and Hate Speech – 10/21

The Restatement (Second) of Torts, § 558 Elements of Defamation (only read § 558)
Communications Decency Act §230
Ron Wyden: I wrote Section 230
The Internet’s Most Important, and Misunderstood, Law
Section 230, An Overview — read pages 1-16. (skim as much as the rest as you find interesting. read pages 8-16 carefully if you still don’t understand pre-230 law and what happens without it)
Jonathan Zittrain, A History Of Online Gatekeeping, 19 Harv. J.L. & Tech. 253 (Spring 2006), (p. 257-263) (SKIM)
Barrett v. Rosenthal, 40 Cal.4th 33 (2006) (1-34)
Doe v. Ciolli (Order Denying Motion to Quash) (SKIM)
What it’s like to fight hate online
Matal v. Tam (read only Supreme Court section). Opinion (read pages 24-26)
You No Longer Need To Be Online To Be A Victim of Cuberbullying
D.C. v. R.R,  182 Cal App. 4th  (2d Dist 2010) (Read majority opinion; skim dissent for the posts made by commenters)
Kinney v. Barnes  (2014)
WaPo on Elonis (read article; skim linked opinion if so inclined)
Counterman (read) Opinion (skim as much as you want of Kagan’s majority opinion; READ BARRETT’S DISSENT IN FULL)
Facebook Posting That Someone Has Herpes Is Criminal Harassment
People v. Marquan
Ars Technica, FCC Asked to Monitor “Hate Speech, Misinformation Online”
Halle Berry Thanks Jennifer Garner, Adele & More Celeb Parents After Paparazzi-Deterrent Bill Passes
NY New Revenge Porn Bill
Palin v. NY Times (2d Cir. 2019)
McDougal v. Fox News (SDNY 2020)
15) Censorship I — Of Leaks and Creeps – 10/23

Miller v. California, 415 U.S. 15(1973) (read syllabus)
New York v. Ferber, 485 U.S. 747 (1982) (read syllabus)
United States v. Stevens
Snyder v. Phelps
United States v. Ortiz-Graulau, 526 F.3d 16 (2008) (read until the paragraph which begins with “The district court excluded the testimony…”)
Ashcroft v. Free Speech Coalition (read syllabus)
Pentagon Papers Case a.k.a. New York Times Co v. United States, 403 U.S. 713 (1971)  (read Per Curium Opinion and J. Brennan’s Concurrence)
WikiLeaks, journalism ethics and the digital age: what did we learn?
16)   Censorship II & Great Walls – 10/28

Google Transparency Report (skim)  (note historical changes)
Twitter X Transparency Report (skim)
Facebook Global Government Requests (skim)
Warrant Canary (wikipedia)
Reddit Deletes Warrant Canary
Jeffrey Rosen, Google’s Gatekeepers
Bruce Schneier, Review of Access Denied
David Drummond, A New Approach to China
WSJ: China Censors Your Internet  [PDF]
The Great Global Internet
When Do States Disconnect Their Digital Networks? (skim)
Miguel Helft & David Barboza, Google Shuts Down China Site in Dispute Over Censorship — Follow ups One, Two, Three
A Generation Grows Up In China
68 Things You Can’t Say On China’s Internet
Yahoo Pulls out of China
A Decade After the Arab Spring…
Twitter Will Stiffen Moderation Policies In Response to War in Ukraine
Meta Platforms Exempted Russian War Crimes…
See also….upcoming supreme court cases (Skim Murthy, pp 21-29, skim Moody v Netchoice pp 1-8, lightly skim rest (ignore standing discussions and focus on censorship/1st amendment discussion)
Struggle for Trust Online
KOSA
Browse http://www.herdict.org
17) Search & Seizure in the Digital Age – 10/30

Fourth Amendment
Katz v. United States, 389 U.S. 347 (1967)
Kyllo v. United States, 533 U.S. 27 (2001)
United States v. White, 401 U.S. 745 (1971) (read summary)
United States v. Place, 462 U.S. 696 (1983) (read summary)
California v. Ciraolo, 476 U.S. 207 (1986) (read summary)
Ogletree v. Cleveland State (skim)
EFF, Privacy: Searching and Seizing Computers (skim)
United States v. Raymonda (2d Cir. 2015) (skim opinion and concurrence)
Tennessee v. Garner, 471 U.S. 1 (1985) (read majority opinion)
Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010) (superseding opinion)
Scott v. Harris, 550 U.S. 372 (2007)  (read majority opinion by J. Scalia and J. Stevens’ Dissent)
OPTIONAL: Scott v. Harris Chase Video
18) Privacy in the Web 2.0 World – 11/4

United States v. Jones, 132 S.Ct. 945 (2012) (Read Majority Opinion & Sotomayor’s Concurrence)
Hoffa v. United States, 395 U.S. 293 (1966) (Read intro and section I, skim dissent of Warren, C. J.)
Los Angeles v. Patel, (2014) (Skim majority opinion; Read Scalia’s dissent)
Kashmir Hill, What Fordham Knows About Justice Scalia
Kashmir Hill, Justice Scalia Responds to Fordham Privacy Invasion!
Kashmir Hill, How a Company Takes Full Advantage of your Facebook Information
Jonathan Zittrain, The Future of the Internet — and How to Stop It (Chapter 9 – p. 200-221)
When Kids Realize Their Whole Life Is Already Online
If You’re Not Paying for It; You’re the Product
http://actualfacebookgraphsearches.tumblr.com/
XKCD: Latitude
Instagram, Facebook, and the perils of Sharenting
The Sharenting Reckoning Is Here (3 Sublinked Articles)
19)  Net Neutrality — 11/11

Mozilla v. FCC (Read II; skim anything else you find of interest)
What Does It mean?
Why the Fuck Would You Care About Net Neutrality
New Proposal Brings us a Step Closer
A Super-Simple Way to Understand the Net Neutrality Debate
The Court Allowed the FCC To Kill Net Neutrality Because (Washing Machines)
Court Upholds Network Neutrality Repeal
Biden’s Plan to make your internet cheaper and better is one step closer
Packet Switching and Circuit Switching [SKIM]  [This will be explained in class]
FCC Moves Towards Restoring Net Neutrality
FCC To Reintroduce Net Neutrality…
Brand X — 100% optional, but skim if you want to understand the whole “DNS-means-its-an-information service”
HOW WE GOT HERE —
What Is Title II?
FCC Sets New Net Neutrality Rules
Court Backs Treating Internet As Utility, Not Luxury  [Wapo Coverage here: “Plain English“]
Net Neutrality Is Suddenly On the Chopping Block
T-Mobile’s Unlimited Video Raises Net Neutrality Concerns
Comcast May Have Found A Major Net Neutrality Loophole
NYTimes, Net Neutrality and Economic Equality are Intertwined
NYTimes:  Net Neutrality Has Been Repealed
CNet:  Net Neutrality Fight Isn’t Over
FCC Plans Net Neutrality Repeal
FCC Leading Us Towards Catastrophe
How the FCC Can Save the Open Internet [PDF]
Tim Wu: Why The Courts Have to Save Net Neutrality
Comcast v. FCC Wikipedia summary (Optional but highly suggested: Appellate court ruling)",887
https://yalelawtech.org/syllabus/,"Law, Technology, and Culture Syllabus",1,Syllabus,Syllabus,"20) Innovation, Appliancization, Education and Knowledge – 11/13

Jonathan Zittrain, The Future of the Internet and How to Stop It (Intro, Ch. 5, pp. 1-5, 101-126)
Venturebeat, App Store Could Spread Like Wildfire (Note: this is from 2008)
So Why Isn’t There More App Store Competition? (skim)
Mac App Store – The Subtle Exodus (skim)
Please Don’t Make Me Download Another App
Isaac Asimov, Profession (read)
Wikipedia, Khan Academy (skim)
Wikipedia, Access to Knowledge Movement (skim)
TC, Why is the university still here?
TC, How Should We Learn?
NYT – Katie Hafner, An Open Mind
NYT – Jeff Selingo, Demystifying the MOOC
NYT – Farhad Manjoo, Udacity says…, 
NYT – Remember the MOOC?
ARS: Real Learning In A Virtual Classroom is Difficult
Jonathan Zittrain, Future of the Internet and How to Stop It, http://futureoftheinternet.org/static/ZittrainTheFutureoftheInternet.pdf (p. 235-45 — Conclusion)
Apple has to face Monopoly Lawsuit  (Apple v. Pepper / Illinois Brick) [Decision here if you wish to see it – majority is Kavanaugh/Ginsburg/Breyer/Kagan/Sotomayor]
(Skim Transcript of Oral Argument)
COVID Roundup: One, Two, Three
21)  Online Participation – Memes, Communities, and “Citizen Journalism” (11/18)

Richard Dawkins, The Selfish Gene (read Chapter 11 – Memes: the new replicators)
Rob Walker, When Funny Goes Viral
Instagram News Memes
Alex Leavitt, Memes as Mechanisms: How Digital Subculture Informs the Real World
A Meme About Blue Pens….
How memes became a major vehicle for misinformation
Malcolm Gladwell, Small Change: Why the Revolution Will Not Be Tweeted (read this carefully it rocks!)
XKCD, Map of Online Communities (and The Original)
Brad Rosen & Elizabeth Stark, Is Trolling a Valid Pedagogical Technique for Socratic Exploration of Course Material?
Hampster Dance
Sarah Palin Email Hack (skim for background on next reading)
Kernell Trial Testimony (read)
Know Your Meme:  Shitposting
50 Days of Mayhem: How LulzSec Changed Hacktivism Forever
LulzSec
Ed Pilkington, LulzSec Hacker “Sabu” released after “extraordinary” FBI cooperation.
Alexis Madrigal, The Anatomy of a Misinformation Disaster
EFF,  Legal Guide For Bloggers/Reporters’ Privilege
CS Monitor, When Tweets Repeat a Lie
Lies, Damn Lies, and Viral Content (yes it is long af.  read it anyway.  the pdf AVAILABLE HERE is easier to read)
Kash Hill,  Penn State Scandal Teaches Ashton Kutcher a “Google Before You Tweet” Lesson
The Meme Election
Truth is a Virus:  Meme Warfare and the Billionaires for Bush (or Gore)
Douglass Mackey Sentenced
Bonus: YouTube non-figuratively right now
22)  We Don’t Talk About Bruno Crypto (11/21)

Benefits of Blockchain (IBM)
What is Blockchain (IBM)
What is a blockchain oracle?
…and what’s the oracle problem?
Last Week Tonight – Crypto
Last Week Tonight — Crypto II
Nick Weaver on Crypto: https://www.youtube.com/watch?v=J9nv0Ol-R5Q
And More…
Future of Crypto (2022)
SNL – NFTs
Life and Death
Sold for 1m
NFTs Explained
The People Who Lost Serious Cash In NFTs
Rise and Fall of NFT’s
Once Upon a Time in Shaolin
The Decade in Blockchain
From Scam to Game to Priceless Work of Art (read transcript)
Web3IsGoingGreat
FIN) Where are we going?  (Are we in a hand basket??) (12/4+12/6)

The Law Can’t Keep Up With Technology (And that’s a good thing) {PDF}
How the Internet Has Changed Dating See ALSO: CHART
How Dating Apps Ruined Dating
Instant Gratification and the Pursuit of Perfection
Why Attention Seeking is the  Defining Need of our Times
8 Ways Tech Has Completely Rewired Our Brains
My Smartphone Gave Me A Painful Neurological Condition
People Are In Denial About Using Devices While Walking
The Key of Awesome #97:  Look At Your Phone
Key of Awesome #39: Put Down Your Phone  (notice dates)
Feds Pushing Blocks of Apps While Driving
Tinder and the Dawn of the Dating Apocalypse
Teens, Technology and Friends
TikTok Brain Explained
TikTok: Candy Store?
Antidote Just As Bad
Face Time vs. Screen Time
The Growing Culture of Impatience
Snapchat ends Speed Filter
How has the internet changed/us in 20 years (2020)
36 Ways The Web Has Changed Us (2014)
The Internet Transforms Modern Life (2005)
Technology Has Made Life Different; Not Necessarily More Stressful
Beware the Filter Bubble
Did Facebook’s Big New Study Kill My Filter Bubble Thesis (ed note: No)
Does Online Shaming Prevent Us From Being Able to Grow And Change
The Public Shaming Pandemic
The Price of Public Shaming In the Internet Age
Social Media Is Destroying Human Interaction
America Has A Loneliness Epidemic
Why Is The Loneliness Epidemic So Hard To Cure
Virtual living rooms, adult ‘after-school clubs’ and AI lovers
The Internet, Community, and Virtual Third Places (Pew 2001)
If You Want To Belong, Find A Third Place
Do Yourself a Favor And Go Find a Third Place",659
https://yalelawtech.org/syllabus/,Brad's Email 8-20,1,Email,Email,"CPSC 183 - Class Tomorrow
Hi - in anticipation of class tomorrow:

1) Please do (at least skim?) the readings (www.yalelawtech.org/syllabus). The first class has a lot of administrative housekeeping matters, but we will use these general topics as a jumpoff for class discussion.

2) Please try to talk to other students in your social network to see if anyone has taken a class with me. My teaching style is very polarizing -- it is ok if your friend likes me and you do not. I would encourage you to read the reviews of the class, although you can get the experience live tomorrow. If my style does not work for you, please do not worry that I will be offended. Your time at Yale is a precious resource. You'll have a few opportunities to bounce tomorrow during class. If you take my class, I am a steward of 1/36th (approximately) of your Yale experience. That is not something I take lightly.

3) I would very much appreciate if those among you that would be comfortable being called on in the first class could sit in the front two rows.

4) Please please please do not do the thing where you all sit in the back of the room. If you are with friends and can see seats in front of you (other than in the first two rows, unless #3 above applies) sufficient to seat your friend group, please move forward. If you are alone and see seats in front of you...please move forward and meet new friends (same caveat)!

5) Most of the rumors you've heard are true. (Except for the nice things. Those are all lies).

6) There will be vegan/gluten-free options. If you have other relevant dietary restrictions, you should feel free to let me know in a manner you are comfortable with. (This will make more sense tomorrow, in context - I'm giving the permission ahead of time). This doubly applies to those of you that will be seated in the first two rows.

LASTLY: I go by ""Brad"" rather than ""Professor Rosen.""

Looking forward to tomorrow,
-b",343
https://yalelawtech.org/syllabus/,Brad's Reading Response,1,Reading Response Email,Email,"CPSC 183 - Reading Response Administrivia


Hi Everybody!

Attached are several examples of reading responses that received a grade of 5 (that’s the highest and is ""knock it out of the park"" awesome) in CPSC 183 (or 185, which uses the same format) in the past. I hope that these serve as helpful guides of what we will be looking for in outstanding reading responses (i.e. you can still get an ""A"" in the class without 5s on reading responses;), and here are a few tips for how to write a great response. When in doubt -- ask.

Again, I do not intend to scare you off with these responses. These are not ""average"" or even ""good"" responses. These responses are incredible, and we don't expect to get a lot of them, but would be perfectly happy to be proven wrong.

Your reading responses will be graded on a scale of 1 (a sheet of paper with your name on it) to 5 (awesome). Please keep in mind, these are equivalent to a check-/check/check+/check++/check! system. I have offered a few times over the years to move to that expressly, but no one's ever really shown interest once it's been explained. (Y'all were given this option and the majority of you opted to keep the numbers. And remember....the TAs will inexplicably still give you a score of like a 3.7 or a 4.3, so please when you see those do not multiply by 20 and think of it out of 100 because that's not how this works).

If your reading response takes an “essay” form: Do not summarize the readings. The best written reading responses have a clear, creative thesis that is substantiated by examples from class readings, news or other sources. Although the response should clearly reflect the fact that you’ve done the reading and/or attended (previous) classes, the use of anecdotes, stories or pop culture references have often served as effective illustrations of students’ ideas. Do not summarize the readings. At the end of the day, what we care about is whether you have thought carefully about the topics addressed in previous classes and/or in the readings, and made a compelling argument to back up your own point of view. (The less-complicated form of this is: Using the readings at hand as a guide, apply what you've learned to life/the world in some way.) Average target length: 2 pages, single spaced. Do not summarize the readings. If it's longer, it better be good. (I'd say that more often than not, when students feel passionately and go over-length, it's fine. But if you're trying to make it longer so it sounds better, you/it won't.) DO. NOT. SUMMARIZE. THE. READINGS. [Did I mention that you should not summarize the readings?]


If your reading response takes an “unconventional” form: These reading responses often require a lot more time and thought than the conventional responses, because you have to find a creative way to address the topics and themes discussed in the readings and in class. If it’s obvious that you’ve put a lot of thought in to your response, either by sheer complexity or brilliance, and it addresses class topics in a unique interesting way, then you’ll get a great grade. If your response is so meta that it defies the limits of your TA’s imagination, then they will send it to me to grade. (This happens.) [If you can 'summarize' some of the readings by say, reducing them to a very clever tiktok, this is the only place where you can arguably get away with something akin to pseudo-summarizing some of the readings. But when in doubt, DON'T SUMMARIZE THE READINGS.]

Non-Frequently Asked Question: ""Should we summarize the readings?""
Obvious Answer: Absolutely not.",614
https://yalelawtech.org/syllabus/,Brad's Reading Response,2,Reading Response Email,Email,"--
When To Turn In Your Reading Response
--

Reading responses are due by 11PM the night before class, so if you wish to write a reading response for MONDAY's class, the reading response is due by SUNDAY night at 11PM.

Late penalties do not begin to accrue until the 11 AM on the day of class (i.e. 12 hours after the response is due).

Reading responses are turned in by emailing them to papers@yalelawtech.org

Reading responses should be named in the format NETID-RR-NUMBER.ext (.ext is optional on certain platforms. if you are turning in a written response, please send in word/pages/text/wpd/et seq, rather than PDF, for ease of returning comments).

Please do not include YOUR NAME in the BODY of the response (so if it's very good, I can use it as an example in the future without having to remember to remove your name from it).

""But Professor Rosen, if no late penalties accrue until 11AM the next day, doesn't that mean it's really due at 11AM the next day?""

1) We've already discussed the whole calling-me-professor-Rosen thing, and 2) no, it doesn't. It recognizes the reality that life happens, and that in the general case, I'm not going to care about a little bit of lateness. If everyone turns in their reading responses at 11AM the day of class, I won't be able to read them all before class, and everyone's educational experience will suffer. If you turn in your reading responses, in general, the night before, I'll come to class knowing some of what YOU already think about the material, and will be able to fine-tune things accordingly. Is my 11AM cutoff arbitrary and capricious? You bet. I could alternatively tell each student they have a total of X hours of lateness per semester, but the administrative burden of that is just too much for me. If you turn in one thing late all semester at 11:06AM, am I going to deduct points? Not in a material way. Please, don't abuse this (or I'll have to give you a rule that errs on the side of harsh instead of erring on the side of forgiving....and this is a good example of what I will discuss in class about focusing on if you're the kind of person that's more looking to avoid Type 1 vs Type 2 error).

--
How Many?
--

This was explained in class, but one more time with feeling --

You must do 5 reading responses. (The lowest grade is dropped). The only rule is that you may not do a reading response for both a Monday and a Wednesday in the same week. If you need a rule of thumb (we *can* say this one), if you didn't do a reading response the previous week of class, you should do one in the current week. (I offered to give you more inflexible rules and you declined.)

By this coming Sunday night at 11pm, you may turn in a reading response on any of the readings we have done this far for extra credit (NETID-RR-EC). (If you do the EC response, the TWO lowest grades are dropped, so it cannot hurt you).


--

If you have any other comments/qualms/concerns/questions in the interim, please let me know. Although I do not have office hours formally, I am generally in Claire's before class on Wednesday, available after class most days, and I usually am quick to respond on email. (I will be on campus Mondays before class, but no idea where yet as Claire's Monday closures are new).

If I don't respond quickly, it's because I missed your note or was reading it while doing something else and didn't have time to write the lengthy response it deserved (so do not be ashamed to bump/ping me again). That said, please be mindful of the opportunity to ask questions at the start and end of each class -- if you think it's worth asking, I would prefer if you ask it so that everyone gets the benefit of the response.


Lastly -- a note about the use of AI/ChatGPT/Claude/et seq. Knock yourself out if you think you can get a large language model to spit out a reading response that won't be an overwrought pile of garbage. Look at the writing style of this email. Do you think LLMs will produce writing in this style? Probably not. Do you think this writing style would do well in how these are graded? Yup. (Why? Because it's hard to elide over a lack of knowledge of content when you're writing something this bluntly.) For the amount of prompt engineering you'll need to do with an LLM to get it to produce something that won't get you smacked down for cheezy formulatic writing, you might as well just write something yourself. Sure, they'll do a great job summarizing the readings (and some of them have probably been trained on a data set that includes my course syllabi), but if at this point in the email you're thinking that's a good idea, I'm not sure how I can help. ¯\_(ツ)_/¯

see you next week!
-b


p.s. If you contact me, please send me an email directly. The canvas ""email"" feature is bad and doesn't send me proper notifications. I will miss it. Yes, I use canvas to send a blast email out. If getting a response from me is important to you, please send me a real email, not a reply in canvas. Thanks :)",893
https://yalelawtech.org/syllabus/,Brad's Midterm Email,1,Midterm Email,Email,"MIDTERM PEP TALK
If you are picking up your exam next week -- save reading this for after you've read it. If you read it now, it won't hit the same way.



Trust me.




If you dont already have the exam....don't keep scrolling.





Seriously.






Last chance.....





k.





Hey -
Some words of advice:

1) CHILL. THE. F. OUT.
You are overthinking how hard this is because you are not used to the format. You are attempting to ""do"" the whole exam at once in your head. That will N O T work. You need to tackle the exam one piece at a time. There is a reason this kind of exam is referred to as an ""issue spotter."" When you first got the exam, your reaction may have been ""oh crap oh crap oh crap"" -- THAT IS FINE. But now that you've had it for a bit, you should be a little less freaked out by the sheer size of the questions, and able to grapple with the substance there. There is nothing in there that wasn't discussed or alluded to in class or the readings (or outright watched in class). And the ""hardest"" core of the test involves stuff that was covered in multiple readings and multiple classes. Read the questions, then go back and read the prompt. In both steps, ask ""what in the class is this related to"" (see next question). Don't overstress the FORMAT or TECHNICALITIES of citations -- make it clear what you're citing to (e.g. the Leval Article, the Betamax Case, Aereo, Goldsmith, Campbell, Dimension Films, ComicMX, The What What In the Butt Case, etc)

2) IT IS ABOUT RECOGNITION, NOT RECALL
Like the bar exam example I gave (malpractice to do from memory in the 'real world' what you have to do from memory on the bar) this is not about your ability to recall, from memory, anything. Break it into pieces and ask 'where do I recognize something along these lines from' -- and if that's all you have, re-skim the readings from that class. You will quickly find you can zoom in on exactly what is on the exam.

3) DO NOT PRESUME YOU UNDERSTAND HOW THE EXAMS ARE GRADED (OR HOW GRADES TRANSLATE)
Do not use the same rubric you would use to assess reading responses. People that have gotten 1s and 2s on reading responses have gotten 47s on the midterm. Do not presume that 41/50 translates to 82/100 and therefore that translates to a B (or whatever you think 82/100 is). While the exam is a big part of your grade, so is the final project. And there are multiple opportunities to improve your final grade; I'm happy to discuss these after the exam. But you need to relax.

4) HAVE FUN
If you dont smirk, or smile, or chortle, or whatever, at least once in your own cleverness in responding, you're probably taking this too seriously. You should take it seriously -- it's a lot of work and it's a grade -- but it should give you SOME measure of self-satisfaction, if not joy, in writing out your answers. The videos are FUN. You will draw FUN connections, you may even want to share them with your friends. Some of the videos take stances on issues expressly or implicitly; and others have tension between the issues they call out and the way they do it creating a weird tension -- so you might say they are in fact problematic -- but no matter your stance, there should be something laugh-worthy in much of what you're doing. Remember, my whole shtick is to be ridiculous and trick you into learning. You actually absorbed more than you realize.

5) THE WORD COUNT REALLY IS A LIMIT.
You can get a B+ in less than 1800 words. Easily. YOU ARE VERY SMART AND MAKING THIS HARDER THAN IT NEEDS TO BE. Sometimes, it's easier to use a chart, because sometimes you will want to say ""For this grouping, here is my analysis"" because there is nothing particularly novel or interesting about them individually. Sometimes, in life, you just need to be able to assess when you don't need to say more, when there are 5 examples of essentially the same concept, or when there is nothing to add. If you try to address everything in every sub part, you're gonna have a bad time. You do not have to use ""everything everywhere"" -- sometimes you only need one or two examples, or a ""best case"" a ""worst case"" and a ""case in the middle"" to explain something. This is a BIG exam -- you can get stuff wrong and still do just fine (i.e. you can still get a good grade) because while you can only earn a maximum of 25 points per questions, you get many, many, MANY opportunities to rack those points up.


f) Never make lists with numbers.



Take a deep breath. If you're still freaking out, email me. You've got this, I promise.
-b",818
https://yalelawtech.org/syllabus/,Brad's No Class Email,1,Email,Email,"CPSC 183 -- No Class - Enjoy the Free Day
Because of the timing of the midterm and the october break readings, we have an extra day in the semester compared to the syllabus -- so you have a free class day today. Same readings for Wednesday -- meaning you still have plenty of time to do a reading response.

Please come VERY prepared for a class discussion on Wednesday on the readings from last week on Wednesday and on this week's readings. (meaning if you didn't do the search/seizure readings that carefully, please re-read them.......) You can also use the time to start contemplating a final project.

Or you can use the extra time to go home and take an afternoon nap to recover from this past weekend.

Now that everyone* (other than the extensions for sickness/etc) has turned in the midterm, I hope you all had fun with it.
talk soon
-b",148
https://yalelawtech.org/syllabus/,Brad's Projects and Grades Email,1,Grades Email,Email,"CPSC 183 - Ending-of-Term Administrivia (PROJECTS AND GRADE APPEAL OPTIONS)
Hi All-

Some ending-of-term notes:

Final Project -- If you haven't already, have one member of your group email me your final project proposal, CCing the rest of the group. In addition to the deliverable (whatever that is), your group must turn in a document that lays out the academic case for your project in light of the class topics. (Discussed in class as the ""Lewis Test"" memo). For groups > 2 (i.e. groups >= 3), each individual person must also send in a writeup of their contribution to the project. Final projects are emailed to me directly and are due on the last day of finals. Reminder: I grade all final projects, no TFs.


GRADES -- I distribute tentative grades prior to finalizing them and submitting to the registrar. I give you the chance to ""appeal"" and seek revision of your tentative grade.

You have two ways of ""appealing"" your grades in the course. They are not mutually exclusive and you can avail yourselves of both (or only one).

Option One: You can elect this option at any time. I conduct a full ""de novo"" review of all course work done by you. This means I will personally re-grade your midterm and your reading responses with no deference given to what grades you previously received. (That means your grade may go down). This is because it would be unfair for me to only review a single assignment -- it's just as likely that the grade assigned by a TA was too high as it was too low. While I do spot check the work of the TAs to ensure the grades all fall within reasonable ranges, on any given assignment I can't assure you that the grades are identical to ones I would assign. That said, I do not recommend this option. (Although in fairness it has been used successfully in the past, and has been used successfully more than unsuccessfully -- but it is not without risk).

Option Two: The ""no risk"" option. Availing yourself of Option Two means your grade cannot go down. Until December 30th*, you may submit a document to me (described below) explaining what grade you deserve in the course and why (the ""grade proposal""). A few days before grades are due*, you will receive a tentative grade, and you will have the ability to appeal that tentative grade to me -- but only if you have previously submitted a grade proposal. In your potential grade appeal, you may ONLY rely facts, arguments, or other points that you raise in your grade proposal. If you do not provide a grade proposal BEFORE tentative grades are emailed, you will not be able to dispute or challenge the grade. (This, in legal terms, is what we call a ""waiver"".)

Please note: Your ""Grade Proposal"" should be emailed directly to me (brad.rosen@yale.edu) as an ATTACHMENT (WORD, TEXT, RTF, OR PDF ONLY). I do not review these prior to assignment of tentative grades. I used to not review them at all absent a grade appeal, but I have learned that students often write little notes that they wish me to read and otherwise take the opportunity to provide useful feedback about the course. (In one case, a student later asked why I never responded to a very moving personal story, and I felt awful for not having read it). So, if you do a grade appeal, I will read it sometime in very late December or early January. If you don't do a grade appeal, I will likely read it sometime in January while prepping for the spring semester.

*I am not a stickler for deadlines here; but the grade appeal must be turned in to me prior to my distribution of tentative grades. Historically, I distribute tentative grades at some point after noon on the 31st. So the latest deadline I can give you that assures you won't lose your chance is ""the 30th.""

--
GRADE PROPOSAL QUESTIONS:
1) What grade do you deserve in this class, and why? Please take into account the following: quality of class participation in discussion/attendance [including what contributions, if any, did you make that enhanced the learning of others], attention to the reading materials, timeliness of reading responses, quality of reading responses, thought and effort put into final project.

2) What grade do you think you should get/should you get, and why? (N.B. this is not the same as q1)

3) What other considerations, not covered by #1 and #2 above, should be taken into account when determining your final grade. (e.g. ""I was in this class credit/d/fail -- it's not that I didn't care, it's that I didn't have to put in that much effort, so I wouldn't want you to think I hated the course material."" or ""The night before the midterm was distributed, my significant other cheated on me and sent me video of it, so I was pretty distraught, and perhaps reacted poorly to the midterm. As you know from the rest of my performance in reading responses and class, that grade represented an outlier and its impact should be diminished."" or ""I was abducted by aliens, and so the midterm was traumatic"" or ""I realized halfway through the semester that I really liked this stuff, so thats why my first two reading responses were bad."")

--

I'm looking forward to reviewing the projects!!
-b
(and yes, there will be one more email from me like this to the class once all the projects are in with true end-of-term administrivia)",915