Hot Topics in Digital Tech (HLS 1L Reading Group, Fall 2023)

  • Chris Bavitz (Harvard Law School)

 

Hot Topics in Digital Tech: Law, Policy, and Governance (1L Reading Group)

The Internet has radically altered modes of interpersonal engagement, democratized access to tools of mass communication, and changed the role of gatekeepers that once controlled the creation and dissemination of content. Mass-availability of large datasets allows individuals and institutions to identify correlations among people and their behaviors at a scale never previously imagined, and artificial intelligence and related technologies help draw such correlations with high degrees of autonomy and low degrees of transparency. Platforms that enable workers to offer delivery, ridesharing, and other services have created the gig economy while upending an already fragile private employment ecosystem (tied closely, in the US, to the provision of health care and other aspects of a basic social safety net).  

Given the breadth of their impact, it is not surprising that these kinds of advancements in digital technology have pushed the bounds of the bodies of law that ostensibly act to constrain them. This includes laws that govern speech, privacy, discrimination, consumer protection, and the creation and exploitation of content.  

This 1L Reading Group will offer an overview of some of the most pressing issues at play in tech regulation today. During our four sessions, we will focus not just on substantive law but on process - looking at the who, the where, and the how of influencing tech developer and user conduct. Our in-class discussions will consider which actors are best positioned to influence those involved in the development and use of digital technologies, which nodes in the tech development and deployment architecture are most susceptible to influence, and what tools are at the disposal of those who wish to incentivize good conduct and disincentivize bad. We will approach these issues from a practical and strategic perspective, considering questions such as: 

  • What means do companies, non-governmental organizations, and the public at large have to influence policymakers? 
  • When is legislation most effective and appropriate, and what issues are best addressed through local vs. state vs. federal statutes? 
  • How do administrative agencies develop substantive expertise and ensure their regulatory activities are properly targeted and well-informed? 
  • What role does litigation play, and what levers exist to influence the development of precedent in a common law judicial system? 
  • Should private sector actors be encouraged to self-regulate, through multi-stakeholder initiatives or standard-setting processes? 
  • Is there a role for independent or semi-independent corporate oversight boards? 
  • How can tech users and tech company employees use their power in the consumer and labor markets to influence corporate 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 Content Creators Coalition, "T Bone Burnett on the Broken DMCA Safe Harbors" (video) (4:54) 2.7 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.