The University of Chicago Law School Faculty Blog

Chicago Lawyers’ Committee v Craigslist: Yet Another Reason Newspapers are Dying

Friday’s decision in the Craigslist case in the Seventh Circuit offers yet another reason why newspapers are losing ground—and quickly—to their online competitors: newspapers face tougher laws than the online firms. As (our) Judge Easterbrook’s opinion makes clear, publish a “No Minorities Welcome” ad in the Chicago Tribune and the Trib violates the Fair Housing Act. But put the same ad on Craigslist and, after Friday at least in the Seventh Circuit, Craigslist faces no liability under the FHA given the protection given to it under the Communications Decency Act of 1996. We often talk about media neutrality—the idea that a particular set of rules should apply independent of the medium via which the content is delivered. This is just the opposite—media bias—but not the usual version; this is bias against one medium—classified ads in newspapers—in favor of another—the Internet.

Is the Supreme Court Pro-Business?

[Slate has started a new law blog called Convictions. Part of my first post is reproduced below.]

Jeffrey Rosen argued that it is, in a Sunday NYT magazine article, but he supplies little evidence:

"Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting voices."

-- But how many of them were decided in favor of businesses?  Weirdly, we're not told.  What if businesses won only half the time?  Or less?  Even if businesses won more often than other parties, we wouldn't be able to establish bias without knowing whether their cases were strong or weak.

"Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years."

-- Another meaningless statistic.  Suppose that the additional cases involve disputes between businesses and workers and that the workers always win.  We can't tell whether bias exists unless we know whether the Court rules in favor or against those business interests.  (For one case where the employee wins, go here.)

Last Thought on Virtual Worlds (LIV Debate)

In his last post, Saul asks "Isn't there a case to be made for allowing virtual worlds to house such law-free transactions for willing players? Legal Entrepreneurs, or 'game administrators,' can offer alternative rules and even require that real bonds be posted and forefeited for violations."  Ifear I may disappoint him again by agreeing: Yes, people should be free to do this, and the law shouldn't get in the way.  But isn't this just a  traditional question of contract law?  In a sense, a contract is a virtual world; two people get together and agree on a set of relationships.  They each agree to play particular roles, particular characters (seller, buyer, etc.), subject to a set of penalties, or if they prefer, no set of penalties at all.  You can think of virtual worlds as form contracts, in which participants pick the contract by picking the virtual world.

From this perspective, whether we say that traditional law "regulates" virtual worlds or is a "law free zone" is really a question about how traditional questions of contract law or consent in criminal law apply in the specific case of virtual world computer programs.  I suspect the real issue there will be whether Terms of Use or social norms end up determining these sorts of defaults; I touch on this a bit in my paper but end up not reaching a real conclusion, in part because I think the jury is still out on how far the latter will evolve in a strong form as being separate from the former. 

Fair Use v. Fair Access

We are between quarters now, so the building is quiet (well, not actually, since the fountain replacement project is going full bore, but we are getting there). I am editing cases for my Spring Copyright class, but also just posted a new forthcoming copyright draft on SSRN. The paper is short and, I hope, readable. Comments welcome.

Fair Use v. Fair Access

Abstract

In this paper, I make four points.

1. The copyright act defines use rights, not access rights. That overstates slightly—especially with the Digital Millennium Copyright Act in the statute—but the core of copyright law addresses how works can be used assuming that legal access has been obtained. Other law addresses the circumstances under which works can be accessed.

2. Nothing in copyright itself suggests that use rights should trump access rights; indeed, our core access principles suggest just the opposite. We frequently speak of a fair use “right.” I am doubtful about that on its own terms but even if we find something there, a fair use right isn’t an access right. Fair use doesn’t equal fair access.

3. The scope of rights given to an initial author will effect the timing and scope of investment she will make in creating a work. For many works, those investments can be made in discrete lumps. As a society, we want investments to be made incrementally rather than as one large lump as doing so allows us to get feedback from the market on the value of a work. We don’t want to throw good money after bad, and if we learn that, say, the English version of a work is a failure, we don’t want to bother translating it into Mandarin. Plus we will delay the time that works reach the market if we create an incentive to do large, lumpy investments rather than a sequence of investments coupled with market feedback. Authors start with one monopoly: their unique access to the work that they have created. If we do not give authors control over these follow-on works, authors will overinvest upfront in the works, since that is the only way that the can gain a return on their initial monopoly over access to the work. In that situation, we are better off to hand the author a statutory monopoly over the follow-on work rather than see the author invest real resources in creating a property right over that work.

4. Fair use is a form of rights bundling. If we decide that, say, format-shifting is fair use or is otherwise a permitted use—you sell me a music CD and I have a use right to make a personal copy on a cassette or my iPod—we are making a decision about the rights that we are bundling together. The nature of bundles is that everyone gets stuck buying the same set of rights. These bundles can be inefficiently large. Consumers would often be better off if instead we allowed rights to be unbundled, so that consumers could buy just those rights that they wanted rather than being forced to take unwanted rights. Doing that requires a narrow conception of fair use.

Audio/Video: Epstein on Supreme Neglect

On March 6, Richard Epstein discussed his new book, Supreme Neglect: How to Revive Constitutional Protection for Private Property during an event at the Cato Institute in Washington, D.C. Cato has posted audio and video of his remarks on their website. Their description of the event is below.

Returning to the subject that first made him famous over two decades ago, Richard Epstein, the author of Takings, has a new book on property rights. In it, he takes readers from the strongly protective property rights advocated by the Constitution's Framers to the weak property rights supported by progressive and liberal politicians in the 20th century. Using both political theory and economic analysis, Epstein offers a compelling interpretation of the Fifth Amendment's Takings Clause to draw the connections between property rights, individual liberty, and social progress. And he looks also at the renewed appreciation of property rights that has arisen in the aftermath of the Supreme Court's infamous Kelo v. New London decision.

Update: You can also hear Prof. Epstein discussing Supreme Neglect on "The Insider Podcast," which "explores the mental health field  from the view point of both consumers and practitioners."

Martha Nussbaum:"Trading on America's Puritanical Streak"

[This post also appears in today's Atlanta Journal-Constitution and is posted here at the request of the author. Prof. Nussbaum's arguments about prostitution made here are developed at greater length in an article entitled "'Whether from Reason or Prejudice'": Taking Money for Bodily Services," 2 Journal of Legal Studies 27 (1998).]

Eliot Spitzer, one of the nation's most gifted and dedicated politicians, was hounded into resignation by a Puritanism and mean-spiritedness that are quintessentially American.   My European colleagues (I write from an academic conference in Belgium) have a hard time understanding what happened, but they know that it is one of those things that could only happen in America, where the topic of sex drives otherwise reasonable people insane.  In Germany and the Netherlands, prostitution is legal and regulated by public health authorities.  A man who did what Spitzer did would have a lot to discuss with his wife and family, but he would have broken no laws, and it would be laughable to accuse him of a betrayal of the public trust.  This is as it should be.  If Spitzer broke any laws, they were bad laws, laws that should never have existed. 

Audio/Video: Lee Fennell, "Slices and Lumps"

On February 19, Professor of Law Lee Fennell presented the 2008 Coase Lecture on Law and Economics. Problems involving the aggregation and division of entitlements, she noted, are ubiquitous in law and in everyday life. Fragments held by multiple parties—such as parcels of land, effort, or segments of a bridge—often must be assembled together to be worth much. Conversely, a presently unified entitlement may be more valuable if it can be split into separate pieces held by different parties. The lecture examined these "lumping" and "slicing" problems (which turn out to be two sides of the same coin), showed how they turn up in both interpersonal and intrapersonal contexts, and offered some tools for addressing them.

Video of the lecture is embedded below, or you may download the .mov file. Just want to listen? Then download the .mp3 file here.

UPDATE: Prof. Fennell's paper based on this talk is now available from SSRN.

Should Greenhouse Gas Permits Be Allocated On a Per Capita Basis?

 

Suppose that a climate treaty is negotiated and that (as is expected) the treaty provides for a cap-and-trade system: every state will be allocated permits that can be auctioned off or given to firms. Only firms that have permits may emit greenhouse gases. If the correct quantity of permits is created, then (in principle) the socially optimal level of greenhouse gas emissions can be ensured.

One question that has received a great deal of attention is, if this system is put into place, how should permits be allocated? Under the Kyoto model (very roughly), countries that currently emit the most greenhouse gases would receive the most permits; in other words, current emissions are used as the baseline, and states are required to reduce their emissions by a constant amount or not increase them beyond a fixed year. For many people, especially those living in the developing world, this system seems unfair. Why should the richest countries receive the most permits? If poor countries like India receive a small number of permits, then they will have to pay a lot of money to receive permits necessary to develop to rich-country levels, while people in the rich countries do not.

The Case for the Virtual, Free of Law, World of the Playman Islands (Blog Debate: LIV)

I'm a bit disappointed in Orin's examples and responses, because I was hoping someone would argue that we ought to work hard to use the virtual world, which is to say carefully a demarcated part of the real world, as an experimental domain free, or almost free, of the law that permeates the rest of our worlds. I thought Orin was heading there with his provocative paper, though that one begins with a more modest claim about criminal law (not all law) and virtual harms (no leakage into the real world). My debate point was that  legal intervention is to be expected ("law goes where we go") and that it would be hard to argue that law must absolutely stay away from things virtual ("virtual wrongs can be real wrongs"). But now I see that Orin was not aiming to argue, or at least not broadly argue, against LIV (legal intervention in virtual worlds), but rather is holding out for the narrow point that if there are examples where the wrong suffered is a purely virtual wrong, then there should be no real remedy. In his world, virtual and real, if my game character cheats and kills yours, then your remedy is with the game administrator and, if you are in the right, your character might be returned to its pre-wrong state -- in a wonderful imitation of the remedial norm we aspire to in the real world. We are left to debate pre-judgment interest.

Real Legal Remedies for Virtual Harms? (Blog Debate: LIV)

In his post below, Saul asks: "If A deletes much of B's existence in the virtual world, or A manipulates B in that world to such a degree that B's real world health and safety are at issue, why should criminal law be thought out of bounds?"

My answer is that I don't think it should.   Most criminal laws are and should be technology-neutral.  What matters is the harm, not the specific way that the harm is caused.  For example, the crime of sending an interstate threat to harm a person (18 U.S.C. 875)  is the same crime regardless of whether the thread is by postal mail, a telephone call, an e-mail, or communications in a virtual word.  I think this is right: the means of committing the offense normally shouldn't matter.  The key point in my paper is that the "virtualness" of the harm shouldn't matter, either.   That is, we should stay focused on the impact of conduct in the real physical world, not in the virtual one.   So, for example, in the case of the crime of sending a threat to harm a person, the "person" still needs to be a real live physical person.   The concern motivating my paper is that we'll start to believe our virtual metaphors and equate virtual harms with real ones; I think this is a major mistake.

Maybe you're thinking, "Hey, what are the chances that we'll start taking virtual harms so seriously?"  The statute to watch is 18 U.S.C. 1030, the Computer Fraud and Abuse Act, a crime enacted in the 1980s to punish computer hacking. Congress opted to describe the prohibited act as "accessing" a computer "without authorization" or "exceeding authorized access," and more than 20 years later no one knows what these words actually mean.   Some of the interpretations out there are frighteningly broad.  For example,  there are lower-court precedents holding that violating Terms of Service make use of a computer "exceed authorized access."  The U of C's own Judge Richard Posner has written an opinion for the Seventh Circuit holding that an employee who uses a computer with the subjective intent of hurting his employer accesses his work computer "without authorization."  These sorts of precedents  have arisen in the civil context, but they apply equally in the criminal context.  And they'll give prosecutors some ready weapons to start charging virtual harms under existing federal laws if they so choose.

I've written an article arguing against these broad interpretations of Section 1030, and I've been happy to see its arguments gain some traction recently in a few district court opinions.  (Not cases involving virtual worlds -- just computer cases more broadly.)  I think the scope of Section 1030 will be the most important battleground  for the scope of criminal law in virtual worlds in the next few years.  Those who are worried about the evolution of criminal law in virtual worlds should watch these cases very closely.