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Essays on Law and Technology.

Ard, BJ.

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Essays on Law and Technology.

紀錄類型:	書目-電子資源 : Monograph/item
正題名/作者:	Essays on Law and Technology./
作者:	Ard, BJ.
出版者:	Ann Arbor : ProQuest Dissertations & Theses, : 2017,
面頁冊數:	257 p.
附註:	Source: Dissertation Abstracts International, Volume: 78-11(E), Section: A.
Contained By:	Dissertation Abstracts International78-11A(E).
標題:	Law. -
電子資源:	http://pqdd.sinica.edu.tw/twdaoapp/servlet/advanced?query=10631547
ISBN:	9780355017427

Essays on Law and Technology.
Ard, BJ.

Essays on Law and Technology. - Ann Arbor : ProQuest Dissertations & Theses, 2017 - 257 p.

Source: Dissertation Abstracts International, Volume: 78-11(E), Section: A.

Thesis (Ph.D.)--Yale University, 2017.

This dissertation focuses on emerging challenges in intellectual property and Internet law to explore how the law ought to respond when new technologies upset the assumptions that underpin the existing legal regime. The three essays arc tied together by the question of when we ought to build on existing legal tools to address these challenges versus when we instead ought to seek new institutions and approaches. The first two essays rely on existing tools; they draw on private law theory in contract and property to deal with problems that copyright and patent law face in the digital economy, especially as intellectual property law expands to cover everyday consumer activities. The third essay explores a situation that calls for a new legal approach; after analyzing the challenges posed by the emergent telecommunications practice known as zero rating, the essay argues we should look to experimental modes of lawmaking to address the complexity and pace of change that characterize contemporary telecommunications practices.

ISBN: 9780355017427Subjects--Topical Terms:

600858
Law.

Essays on Law and Technology.
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520 $a This dissertation focuses on emerging challenges in intellectual property and Internet law to explore how the law ought to respond when new technologies upset the assumptions that underpin the existing legal regime. The three essays arc tied together by the question of when we ought to build on existing legal tools to address these challenges versus when we instead ought to seek new institutions and approaches. The first two essays rely on existing tools; they draw on private law theory in contract and property to deal with problems that copyright and patent law face in the digital economy, especially as intellectual property law expands to cover everyday consumer activities. The third essay explores a situation that calls for a new legal approach; after analyzing the challenges posed by the emergent telecommunications practice known as zero rating, the essay argues we should look to experimental modes of lawmaking to address the complexity and pace of change that characterize contemporary telecommunications practices.
520 $a The first essay, Notice and Remedies in Copyright Licensing, addresses copyright owners' attempts to redefine the scope of copyright protection via boilerplate in consumer licenses. Because consumer engagement with digital works creates "copies" that are potentially actionable under the Copyright Act, copyright owners can designate any license term as a "condition" and thereby limit the circumstances in which the consumer can lawfully use the work. Consumers who violate these conditions face not the compensatory damages normally associated with breach of contract, but the supracompensatoiy damages of copyright. Even though consumers might be unaware of the term or its consequences, copy right is blind to this notice failure. I argue the courts can nonetheless deal with the problem through contract law. Licenses are hybrid creations of copyright and contract, and contract law supplies normative and doctrinal tools through which courts can require heightened notice prior to awarding supracompensatory damages. This approach would police against notice failures while also allowing parties to pursue novel and potentially beneficial licensing arrangements, including both open source and proprietary software licenses. In requiring more effective notice, moreover, this approach creates opportunities for market and political actors to scrutinize the substantive terms of consumer licenses.
520 $a The second essay, More Property-Like than Property: The Prevalence of Property Rules in Intellectual Property, draws on property law theory to examine how we ought to structure IP remedies to best promote the goals of the information economy. In particular, I argue that both copyright and patent rely too heavily on property rule protection. The supracompensatory damages and injunctions that courts award for violation of IP's property rules impose barriers to innovation in light of the notice failures that arise from unclear boundaries in copyright and patent. Property rules likewise beget several hold-up problems that interfere with intellectual production. Tangible property law, by contrast, deploys liability rules to address unwitting trespass and to solve resource coordination problems that would have otherwise impaired the industrial economy. IP ought to follow tangible property's lead by strategically deploying liability rules to meet the new social and economic challenges posed by the information economy.
520 $a The final essay, Beyond Neutrality: How zero Rating Can (Sometimes) Advance User Choice, Innovation, and Democratic Participation, takes up the regulatory challenge of adapting to rapid changes in social and economic practices online. Net neutrality's non-discrimination principle generally prohibits internet carriers from applying different treatment to traffic from one website over another. But this principle---barely a decade old- now risks over-inclusion to the extent it prohibits the emerging internet service model known as "zero rating." Zero rating is the practice of providing free access to select websites, like Face-book or Wikipedia, without requiring users to pay for the data. The service model is particularly prominent in the developing world. While opponents condemn zero rating as a violation of net neutrality's non-discrimination principle, I argue the practice is defensible by net neutrality's own normative lights. Network neutrality is not about neutrality for its own sake, but about advancing consumer choice and welfare, innovation in the development of new services, and democratic participation. Analysis of zero rating should accordingly focus on how it impacts these goals, though these impacts are admittedly difficult to predict in the abstract. To grapple with the empirical complexity of the problem, 1 propose that regulators engage in experimental and experimentalist lawmaking to study the effects of zero rating and possible regulatory interventions.
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