Class 3.3 Notes

Our Class 3.3 in Cyberlaw and the Global Economy took on the issue of
alternative modes of protecting intellectual property (i.e., beyond
seeking enforcement of the copyright law against those who you think
infringed your copyright in a digital music file, for instance) and the
idea of alternative modes of producing intellectual assets.  We
made it a good distance on the first point, but not terribly far on the
second point.

* The basic structure of the discussion was to extend our Class 3.2
discussion of copyright and the digital music issue beyond the uses of
law and enforcement thereof by copyright holders.  Other
strategies that we discussed: 1) code (jumping off from the famous
Lessig proposition that “code is law”), through DRM, interdiction,
spoofing, slamming, freezing and the like; 2) using the law to
reinforce code, such as the DMCA’s provisions in Section 1201 against
circumvention of encryption technologies; 3) the export by US
intellectual property interests of US-style intellectual property laws
and code, through multilateral and, more recently, bilateral treaties,
such as Chile and Singapore; and 4) the struggle by some producers of
intellectual property against alternative modes of production, such as
the pending SCO v. IBM litigation.

* Much of the discussion, not surprisingly, focused on the DMCA and the
advisability of the anticircumvention provisions (rumor has it that
exceptions will be published tomorrow, October 28, 2003?).

* We considered the policy implications of harmonizing the scheme of US
or EU-style intellectual property law across as many nations of the
world as one could imagine.  Given that the class is about the law
and policy with respect to information and communications technologies
from the perspective of commercial interests, we considered whether
such a global regime is indeed desirable, or if there were reasons to
seek alternatives to this perfectly harmonized future.  While we
pointed to the obvious reasons why some intellectual property holders
might thrive under such a system, we also considered ways in which an
alternate future might be desirable a) for some less developed
countries and b) for other public policy reasons. 

* We did not get as far as I would have liked into the open source v.
proprietary software development issue and the MySQL v. NuSphere or IBM
v. SCO cases.  Perhaps for another day.  Or for a final paper
for someone?

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