Regulating Online Conduct (HLS Reading Group, Spring 2021)

  • Chris Bavitz (Harvard Law School)

In the course of a few short decades, the Internet has become integral to significant swaths of human experience. It has radically altered modes of interpersonal engagement, democratized access to tools of mass communication, and changed the role of gatekeepers that traditionally controlled access to music, video, and other media. Given the breadth of its impact, it is not surprising that the Internet has pushed the bounds of legal doctrines that govern speech, privacy, and the creation and exploitation of content. Mass-scale online distribution of copyrighted works tests the limits of legal doctrines developed in an era of physical copies. Age-old tensions between privacy and the right to free expression have been exacerbated in cases where one’s right to speak bumps up against the desire of another to keep information private. And, the ability to shar — and, thus, to consume — extraordinary amounts of personal data has impacted government (which collects and uses data for purposes of law enforcement) and private companies (which collect and use data for purposes of advertising and monetization). This reading group will provide a general overview of some of the legal doctrines that govern the online conduct of individuals and institutional actors. It will address the rights and responsibilities of the intermediaries that mediate many of our online activities, social networks, cloud-based storage services, email providers, and the like. Students will consider old and new legal frameworks and the ways in which the law informs strategic decisions for those that operate online. The reading group will address some of the most important and complex policy debates of our day, regarding the proper scope of intellectual property protection; the balance between a robust environment for online free expression and a desire to protect against harmful speech; and the ways in which the law addresses privacy vis-a-vis both government and private actors. Readings and in-class conversations will cover legal cases and case studies, offering students a high-level view of the technical, legal, and business landscape and allowing them to delve deeply into particularly difficult sets of problems concerning the regulation of online conduct.

2 Copyright: Basic Scope of Protection, Fair Use, Online Liability, and the DMCA Safe Harbor 2 Copyright: Basic Scope of Protection, Fair Use, Online Liability, and the DMCA Safe Harbor

2.1 Copyright Act: 17 U.S. Code § 102 - Subject matter of copyright: In general 2.1 Copyright Act: 17 U.S. Code § 102 - Subject matter of copyright: In general

(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.

2.2 Copyright Act: 17 U.S. Code § 106 - Exclusive rights in copyrighted works 2.2 Copyright Act: 17 U.S. Code § 106 - Exclusive rights in copyrighted works

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.

2.3 Copyright Act: 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use 2.3 Copyright Act: 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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.

2.4. Eriq Gardner, "Appeals Court Rejects Photographer's Claim That Sony TV Movie Stole Image," The Hollywood Reporter (January 8, 2013)

Eriq Gardner, "Appeals Court Rejects Photographer's Claim That Sony TV Movie Stole Image," The Hollywood Reporter (January 8, 2013)

2.5. Alexandra Alter, "Google's Digital Library Wins Court of Appeals Ruling," The New York Times (October 16, 2015)

Alexandra Alter, "Google's Digital Library Wins Court of Appeals Ruling," The New York Times (October 16, 2015)

2.6. Mike Masnick, "YouTube Wins Yet Another Complete Victory Over Viacom; Court Mocks Viacom's Ridiculous Legal Theories," Techdirt (April 18, 2013), read all (~2 pages)

Mike Masnick, "YouTube Wins Yet Another Complete Victory Over Viacom; Court Mocks Viacom's Ridiculous Legal Theories," Techdirt (April 18, 2013), read all (~2 pages)

2.7. In the Matter of: Section 512 Study: Notice and Request for Public Comment, Docket No. 2015-7, Before the U.S. Copyright Office, Library of Congress, Joint Comments of Recording Industry Association of America et al. (March 31, 2016), read Sections I, II, and III, pages 1 - 14 (~13 pages)

In the Matter of: Section 512 Study: Notice and Request for Public Comment, Docket No. 2015-7, Before the U.S. Copyright Office, Library of Congress, Joint Comments of Recording Industry Association of America et al. (March 31, 2016), read Sections I, II, and III, pages 1 - 14 (~13 pages)

2.8. Section 512 Study: Notice and Request for Public Comment, Docket No. 2015-7, Comment of Google, Inc. (April 1, 2016), read Responses to Questions 1, 2, and 7, pages 1 - 5 and page 8 (~6 pages)

Section 512 Study: Notice and Request for Public Comment, Docket No. 2015-7, Comment of Google, Inc. (April 1, 2016), read Responses to Questions 1, 2, and 7, pages 1 - 5 and page 8 (~6 pages)

2.9 Content Creators Coalition, "T Bone Burnett on the Broken DMCA Safe Harbors" (video) (4:54) 2.9 Content Creators Coalition, "T Bone Burnett on the Broken DMCA Safe Harbors" (video) (4:54)

T Bone Burnett on the Broken DMCA Safe Harbors from Content Creators Coalition on Vimeo.

2.10. James Vincent, "EU approves controversial Copyright Directive, including internet ‘link tax’ and ‘upload filter’," The Verge (September 12, 2018)

James Vincent, "EU approves controversial Copyright Directive, including internet ‘link tax’ and ‘upload filter’," The Verge (September 12, 2018)