Recent ucla items

Copyright and 'Market Power' in the Marketplace of Ideas

Thu, 6 Aug 2026 00:00:00 +0000

Antitrust and intellectual property law increasing fall within the common rubric of innovation policy. Yet in fundamental respects, patent law fits more comfortably under that umbrella than copyright. A primary reason is that copyright does not merely spur innovation. It also regulates speech.

In building upon that observation, this Chapter addresses a number of points at the intersection of antitrust, media concentration, copyright, and free speech. First, it surveys the conflict between copyright and free speech, as recognized in both United States and European jurisprudence. Second, it focuses on media industry incumbents' repeated use of copyright to bar entry to new speakers and speech distributors, and the very limited efficacy of current U.S. antitrust doctrine in constraining that practice. Third, it considers a number of ways in which the marketplace of ideas differs from markets for goods and services, including (1) the contrast between expressive diversity...

Ethnic References in Branding and AI Content Moderation: From the Ajax 'Jews' to the Washington Redskins and Beyond

Thu, 6 Aug 2026 00:00:00 +0000

Sports teams sometimes adopt names — and fans sometimes adopt team nicknames — that might be viewed as derogatory epithets targeting a particular racial, ethnic, or religious group, but which serve as a badge of honor for team fans or even for members of the targeted group. How does and should trademark law address such uses, particular uses of derogatory epithets that are “reclaimed” as badges of honor by a minority group? How do AI content moderation tools account for social media user postings that feature hate speech or reclaimed epithets, whether as sport team names or otherwise? And, to put those questions into their broader framework: how is regulation, whether through formal law or AI, to account for semiotic fluidity, the variable meaning of words over different temporal, spatial, and social contexts?My essay is inspired by the Ajax “Jews”, a phenomenon I learned of when Bernt Hugenholtz told me about it some 25 years ago.

Copyright's Paradox

Thu, 6 Aug 2026 00:00:00 +0000

The United States Supreme Court famously labeled copyright the engine of free expression because it provides a vital economic incentive for much of the literature, commentary, music, art, and film that makes up our public discourse. Yet today's greatly expanded copyright law often does the opposite - it can be used to quash news reporting, political commentary, church dissent, historical scholarship, cultural critique, and artistic expression.

In Copyright's Paradox, Neil Weinstock Netanel explores the tensions between copyright law and free speech concerns, revealing how copyright law can impose unacceptable burdens on speech. Netanel provides concrete illustrations of how copyright often prevents speakers from effectively conveying their message, tracing this conflict across both traditional and digital media and considering current controversies such as the YouTube and MySpace copyright infringement cases, Hip-hop music and digital sampling, and the Google Book Search...

The development agenda: global intellectual property and developing countries

Thu, 6 Aug 2026 00:00:00 +0000

Do broad, universal intellectual property rights bring the benefits of innovation, creativity, technical know-how, and foreign investment to developing countries? Or do treaties that require developing countries to grant greater intellectual property protection actually stifle development and impede access to the knowledge and essential medicines that the world's poor so desperately need? The debate over such questions has raged for decades, among scholars and diplomats, lawmakers and policy makers, nongovernmental organizations and international agencies, IP industries and development policy analysts.

The Development Agenda is the fruition of developing countries' most recent campaign to ensure that the intellectual property treaty regime empowers developing countries to tailor their intellectual property laws as they deem necessary to promote development and serve the welfare of their citizens. The Agenda's adoption by the World Intellectual Property Organization (WIPO)...

Making Sense of Fair Use

Thu, 6 Aug 2026 00:00:00 +0000

Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine’s chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase...

Temptations of the Walled Garden: Digital Rights Management and Mobile Phone Carriers

Thu, 6 Aug 2026 00:00:00 +0000

Content industries have long heralded Digital Rights Management ("DRM"), the use of technological protection to control and meter access to digital content, as the key to securing copyrighted expression against massive digital piracy. Yet, ironically, DRM is widely used to lock-in consumers to ancillary products and services in ways that might hamper markets for distributing cultural expression. Apple's iTunes and iPhone are two widely publicized examples. With the iPhone, Apple and its mobile carrier partner, AT&T follow a decidedly walled garden approach. They employ a combination of DRM, proprietary format, and tying both media player and communications functionality to the AT&T network, to attract and then lock in consumers to the iPhone and AT&T subscription.

The Apple-AT&T walled garden approach to locking-in consumers might be attractive for other mobile carriers as well. Mobile communications carriers have used a variety of strategies to combat...

Mandating Digital Platform Support for Quality Journalism

Thu, 6 Aug 2026 00:00:00 +0000

Our democracy depends on a vibrant press, dedicated to informing the electorate and holding the powerful to account. Yet American newsrooms have suffered a debilitating economic decline in recent years, leaving more than half of U.S. counties without a daily newspaper and precipitating massive reductions in journalist employment. Digital platforms, primarily Google and Facebook, have been a primary cause of newsrooms’ decline. In asserting unparalleled dominance over the digital advertising market, they have siphoned off the advertising revenues that were the lifeblood of the commercial news media. And they have come to be news publishers’ primary gateway to potential readers, leaving newsrooms highly dependent on the platforms’ mercurial content selection and magnification algorithms. This Article thus proposes legislative initiatives to require digital platform support for quality journalism. Finding current antitrust enforcement initiatives and legislative proposals for news...

Cyberspace Self-Governance: A Skeptical View from Democratic Theory

Thu, 6 Aug 2026 00:00:00 +0000

The idea that cyberspace should be presumptively self-governing has resounded in thoughtful scholarship. It has also precipitated the recent, dramatic withdrawal of the United States government from significant portions of Internet administration and regulation. This Article critiques a central prong of the argument for cyberspace self-governance: the claim that a self-governing cyberspace would more fully realize liberal democratic ideals than does nation-state representative democracy. That "cyberian" claim, in turn, has two parallel components: first, that the Internet creates possibilities for "bottom-up private ordering" that are a superior form of liberal democracy, and second, that a truly liberal nation-state must grant considerable autonomy to cyberspace "communities." These claims of liberal perfectionism and community autonomy pose an intriguing challenge to traditional democratic theory. But I believe that they ultimately fail. I argue, indeed, that an untrammeled...

Market Hierarchy and Copyright in Our System of Free Expression

Thu, 6 Aug 2026 00:00:00 +0000

At the center of our understandings of political equality and democratic governance lies what might be termed the "Free Speech Principle," the idea that liberal democracy both depends upon and is largely manifested by "uninhibited, robust, and wide-open" debate from "diverse and antagonistic sources." But absent preventative regulation, market hierarchy ? the state of substantial inequality of wealth increasingly prevalent in Western democracies, particularly the U.S. ? translates inevitably into what I refer to as "speech hierarchy" ? the disproportionate power of wealthy speakers and audiences to determine the mix of speech that comprises our public discourse. By effectively silencing outlying minorities and the poor, speech hierarchy runs directly counter to the Free Speech Principle. Moreover, contrary to what some commentators claim, the Internet offers no panacea for the problem of speech hierarchy because, I predict, in significant ways the next-generation Internet will...

An Interest Group Response to The Legitimation of Shareholder Primacy

Thu, 6 Aug 2026 00:00:00 +0000

This is an invited response to Professor Ann Lipton’s (Colorado Law) article, The Legitimation of Shareholder Primacy, 51 J. Corp. L. 83 (2025).

Lipton’s foundational thesis is that the exercise of corporate power requires social legitimacy. Shareholder primacy purports to provide the requisite legitimacy by constraining that power in politically neutral ways. Formal governance procedures make that constraint visible, but those procedures do not always align with shareholder value because they also serve social and symbolic purposes. When shareholder welfare conflicts with public welfare, corporate law must choose between them. The present highly polarized political environment has generated a series of controversies over issues such as the use of environmental, social, and governance (ESG) metrics in both management and investing, diversity initiatives, climate risk, Elon Musk’s immense compensation package, and directors’ oversight duties that have...

Locating Copyright within the First Amendment Skein

Thu, 6 Aug 2026 00:00:00 +0000

The possibility of imposing First Amendment limitations on copyright owner rights has arisen numerous times in U.S. case law, legislation, and commentary. Nevertheless, courts have almost never imposed First Amendment limitations on copyright, and most have summarily rejected copyright infringement free speech defenses. In taking this position, courts have regularly cited early commentators, who, after exploring possible areas of conflict between copyright and the First Amendment, concluded that the conflict is largely ameliorated by the fair use doctrine, copyright law's distinction between copyrightable expression and uncopyrightable fact and idea, and copyright's limited term.

I argue in this Article that the courts have consistently gotten it wrong. In steadfastly following early commentary, they have largely ignored subsequent developments in both copyright law and First Amendment doctrine. As copyright law has metamorphisized over recent decades, copyright owner...

Language Policy and Omlah Corruption in Colonial Central India

Thu, 6 Aug 2026 00:00:00 +0000

Language Policy and Omlah Corruption in Colonial Central India

Why Has Copyright Expanded? Analysis and Critique

Thu, 6 Aug 2026 00:00:00 +0000

Numerous commentators have decried the growth of copyright holder rights in recent decades. Copyright's expansion is widely said to be inimical to copyright's core goals and economic rational. If so, why has that expansion occurred? Without question, there are multiple causes. This essay surveys and critiques a number of them, beginning with the copyright industries' raw political muscle and moving to the rhetorical and theoretical frameworks for expansion.

Copyright and the First Amendment; What Eldred Misses - and Portends

Thu, 6 Aug 2026 00:00:00 +0000

This chapter, to be published as part of an anthology about copyright and free speech in the U.S., U.K. and Continental Europe, critically assesses the First Amendment portion of the U.S. Supreme Court's decision in Eldred v. Ashcroft. In rejecting Eldred's challenge to the Copyright Term Extension Act, the Court held that when "Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." In so holding, the Court put to rest the D.C. Circuit's sweeping suggestion that "copyrights are categorically immune from challenges under the First Amendment." But the Court largely (although not entirely) closed the door to First Amendment challenges to "traditional" copyright, thus perpetuating courts' persistent and anomalous refusal to apply to copyright the First Amendment scrutiny regularly applied to other speech burdening private rights. No less disappointing than the Court's holding is its reasoning. Eldred shows remarkably...

Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing

Thu, 6 Aug 2026 00:00:00 +0000

Noncommercial users of peer-to-peer systems, such as Kazaa and Gnutella, should be free to distribute and modify files as they wish. But providers of services and devices the value of which are substantially enhanced by such P2P file-swapping should be charged a statutory fee - what I term the Noncommercial Use Levy ("NUL") - set as a percentage of gross revenue. Likely candidates include Internet access, P2P software and services, computer hardware, consumer electronic devices (such as CD burners, MP3 players, and digital video recorders) used to copy, store, transmit, or perform downloaded files, and storage media (like blank CDs) used with those devices. Once collected, levy proceeds would be allocated among copyright holders in proportion to the popularity of their respective works and of user-modified version of their works, as measured by digital tracking and sampling technologies. I estimate that an average levy of some 4 percent of annual retail revenues of P2P-related...

Maharam of Padua v. Giustiniani: The Sixteenth-Century Origins of the Jewish Law of Copyright

Thu, 6 Aug 2026 00:00:00 +0000

Copyright scholars are almost universally unaware of Jewish copyright law, a rich body of copyright doctrine and jurisprudence that developed in parallel with Anglo-American and Continental European copyright laws and printers' privileges. Jewish copyright law traces its origins to a dispute adjudicated some 150 years before modern copyright law is typically said to have emerged with the Statute of Anne of 1709. This Article examines that dispute, the case of Maharam of Padua v. Giustiniani. Remarkably, the ruling in that dispute reaches some of the same fundamental issues that animate copyright jurisprudence today: Is copyright a property right or a limited regulatory prerogative? What is copyright's rationale? What is its scope? Which law should be applied to a copyright dispute in which the litigants reside under different legal regimes? How can copyright be enforced against an infringer who is beyond the applicable legal authority's reach?

I begin with the factual...

Transplanting Fair Use across the Globe: A Case Study Testing the Credibility of U.S. Opposition

Thu, 6 Aug 2026 00:00:00 +0000

The fair use privilege of United States copyright law long stood virtually alone among national copyright laws in providing a flexible, open-ended copyright exception. Most countries’ copyright statutes set out a list of narrowly defined exceptions to copyright owners’ exclusive rights. By contract, U.S. fair use doctrine empowers courts to carve out an exception for an otherwise infringing use after weighing a set of equitable factors on a case-by-case basis. In the face of rapid technological change in cultural production and distribution, however, the last couple decades have witnessed widespread interest in adopting fair use in other countries. Thus far, the fair use model has been adopted in a dozen countries and considered by copyright law revision commissions in several others. Yet, ironically, U.S. copyright industries – motion picture studios, record labels, music publishers, and print publishers – and, in some instances, U.S. government representatives have steadfastly...

The Polluter-Pays Principle and its Enemies: Corporate Fraud, Weaponizing Preemption, and the Survival of Climate Accountability

Thu, 6 Aug 2026 00:00:00 +0000

State and local governments across the United States have filed suit in state courts against major fossil fuel companies, seeking compensation for climate-related damage to their infrastructure, public resources, and communities. These suits allege that the defendant companies knew for decades that their products were driving catastrophic climate change, concealed that knowledge, and ran sophisticated deception campaigns to protect their profits. The companies and their supporters contend that the Clean Air Act and the Constitution foreclose the claims. The Supreme Court's grant of certiorari in Suncor Energy, Inc. v. Board of County Commissioners of Boulder County will require the Court to decide whether these preemption arguments succeed.

This essay argues that they clearly do not. The Clean Air Act's savings clauses affirmatively preserve state remedies, and American Electric Power Co. v. Connecticut expressly left the state-law preemption question open; the presumption...

Applying Militant Democracy to Defend Against Social Media Harms

Thu, 6 Aug 2026 00:00:00 +0000

Social media inflict multiple harms on liberal democracy. Comprehensive meta-analyses of the scholarly literature conclude that social media are a significant factor in emergent authoritarian populism, dwindling political and social trust, growing polarization, and barriers to gaining political knowledge in established democracies. Social media also have corrosive effects on democratic institutions. They challenge all democratic political authority, fuel the disintegration of traditional and stable political parties, empower free agent politicians who are not beholden to party leadership, and render effective government based on compromise exceedingly difficult.The neoliberal techno-utopianism and First Amendment jurisprudence that dominate American law, policy, and political thought have presented nigh-insurmountable obstacles to legislative and regulatory proposals to combat social media’s threats to democracy in the United States. The political theory and practice of “militant...

Is Copyright Property? The Debate in Jewish Law

Thu, 6 Aug 2026 00:00:00 +0000

Is copyright a property right? That question raises a host of thorny theoretical issues regarding the foundational underpinnings of both copyright and property. The notion that if copyright is “property,” it will or should resemble a perpetual, absolute, pre-political property right, has repeatedly infused judicial proceedings, legislative enactments, and public debate in both common law and civil law countries as well.

Like their common law and civil law counterparts, Jewish law jurists have engaged in protracted debate about whether copyright is a property right. Recent decades have seen numerous rabbinic court decisions, responsa (rulings in disputes or advisory opinions coupled with a lengthy exegesis on Jewish law in answer to questions posed), scholarly articles, and blog entries on such issues as whether it is permissible, without license from the author or publisher, to republish a book after the rabbinic printing privilege has expired; to copy and distribute...

New Media in Old Bottles? Barron's Contextual First Amendment and Copyright in the Digital Age

Thu, 6 Aug 2026 00:00:00 +0000

In his seminal 1967 article, Access to the Press - A New First Amendment Right, Jerome Barron argued that speakers have a meaningful opportunity to convey their message only if given access to the mass media. Yet forty years later, the Internet features a bountiful, vibrant stew of individual expression, peer discussion, social networks, political organization, cultural commentary, and user-generated art. Given this emergence of Internet speech, Barron's call for a robust, egalitarian First Amendment may well be best met today not by a right of access to the mass media, but by meaningful opportunities to bypass the mass media. Our interest in rigorous debate among diverse and antagonistic voices might be best served not by requiring media giants to act as quasi-common carriers, but by insuring that peer communication, user-generated content, and new media will continue to level the playing field. The free speech concern is not so much that commercial mass media fail to air...

From the Dead Sea Scrolls to the Digital Millennium; Recent Developments in Copyright Law

Thu, 6 Aug 2026 00:00:00 +0000

This Article reviews and comments upon selected developments in copyright law during the period of September 1999 through August 2000. Copyright developments during this period trace the rapid digitization and globalization of copyright markets. They also reflect new legal regimes, including the Digital Millennium Copyright Act ("DMCA") and the Agreement on Trade-Related Aspects of Intellectual Property ("TRIPS"), designed to bolster copyright in the face of digitization and globalization. This Article briefly examines each reported case concerning the DMCA. It also reviews the World Trade Organization dispute settlement panel ruling that provisions of Section 115(1) of the United States Copyright Act violate TRIPS.

This past year has also seen numerous constitutional challenges to copyright law, including several First Amendment challenges. This Article chides courts for generally failing to apply the O?Brien test for content-neutral regulation to First Amendment challenges...

Israeli Fair Use from an American Perspective

Thu, 6 Aug 2026 00:00:00 +0000

This is a chapter (in Hebrew) in an anthology on Israel's recent comprehensive copyright statute revision, the Copyright Law-2007. The chapter focuses on Section 19 of the new law, which closely tracks Section 107, the fair use provision, of the U.S. Copyright Act. In codifying U.S. fair use doctrine, Israel's legislature has replaced the narrower "fair dealing" doctrine found in Israel's prior copyright statute, the Copyright Law-1911, making Israel only the second country, after the Philippines, to adopt U.S. fair use law in its copyright statute. Moreover, Israel's new copyright statute essentially completes the move from fair dealing to fair use that the Israeli Supreme Court had already initiated in 1993 in its ruling in Geva v. Walt Disney Co. Of great significance for how fair use will be applied in Israel, American case law and commentary features two distinct, mutually opposing understandings of the fair use doctrine. The "market approach" views fair use as a narrow,...

Cyberspace 2.0

Thu, 6 Aug 2026 00:00:00 +0000

This Essay reviews Lawrence Lessig, Code and Other Laws of Cyberspace, and Andrew Shapiro, The Control Revolution: How the Internet is Putting People in Charge and Changing the World We Know. Lessig and Shapiro each rebut the libertarian impulse of first generation cyberspace scholarship, but their books reveal some fundamental differences between them as well. After probing Lessig's and Shapiro's central themes, I examine three further issues that their analyses and the developing Internet raise: (1) digital technology's capacity to enable individuals to customize their information input, leading, some fear, to the Balkanization of public discourse; (2) the purported potential role of electronic "smart agents" in enhancing user power vis-a-vis sellers and commercial actors, and in thus recovering the libertarian vision of the Internet; and (3) the Internet's potential for building community and how that role might fit within a larger sphere of democratic politics and civil society.

Automated Vehicle Safety: Heavy Duty Safety Drivers and Remote Operators – Safety Metric Foundations

Thu, 6 Aug 2026 00:00:00 +0000

This research presents a risk-informed framework to derive metrics characterizing and tracking the safety performance of heavy-duty automated vehicles (HD-AVs) operations. A combination of traditional and novel hazard identification methods are leveraged to study potential human-system interactions in HD-AVs operations, ranging from safety drivers to remote operators.

Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere