August 16, 2018

A Response to Jerry: Craig Should Still Dismiss

[Cross-posted on my blog, Managing Miracles]

Jerry Brito, a sometimes contributor to this blog, has a new post on the Reason blog arguing that I and others have been too harsh on Craigslist for their recent lawsuit. As I wrote in my earlier post, Craigslist should give up the lawsuit not just because it’s unlikely to prevail, but also because it risks setting bad precedents and is downright distasteful. Jerry argues that what the startups that scrape Craigslist data are doing doesn’t “sit well,” and that there are a several reasons to temper criticism of Craigslist.

I remain unconvinced.

To begin with, the notion that something doesn’t “sit well” is not necessarily a good indicator that one can or should prevail in legal action. To be sure, tort law (and common law more generally) develops in part out of our collective notion of what does or doesn’t seem right. Jerry concedes that the copyright claims are bogus, and that the CFAA claims are ill-advised, so we’re left with doctrines like misappropriation and trespass to chattels. I’ll get to those in a moment.
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Copyrights, Fundamental Rights, and the Constitution

There was a lot to take issue with in Scott Turow’s recent op-ed in The New York Times. Turow, who is currently President of the Authors Guild, took to The Times to criticize the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, which brought physical books manufactured and sold abroad within the protective scope of copyright’s first sale doctrine. Turow cast the Court’s decision as another blow to authors’ rights, which, by his account, are being pitilessly washed away by the digital tides. He blames the usual suspects: e-books, Amazon.com, pirates, Google, and—this last one may surprise you—libraries. The coup de grace, he asserted, will be the extension of first sale rights to digital copies of books. (It may comfort him to know that the possibility of that happening is more remote following Redigi’s recent defeat in federal district court.)
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White House Statement on Cell Phone Unlocking: A First Step Toward DMCA Reform?

Yesterday, the White House officially responded to the online petition to “Make Unlocking Cell Phones Legal,” which garnered more than 100,000 signatures in under 30 days. The Administration’s headline was emphatic: “It’s Time to Legalize Cell Phone Unlocking.” The tech press heralded this significant but symbolic first step in addressing some of the most egregious shortcomings of the Digital Millennium Copyright Act (DMCA). I hope the White House’s response signals a new chapter in the struggle to regain the freedom to innovate, research, create, and tinker. Last week, I discussed the petition and its context with Derek Khanna, who has been a champion of the cause. You can watch the video here:

As Derek pointed out, this battle is connected to a much larger policy problem: the DMCA bans many practices that are good for society–and without clear counterbalancing benefits. Reading the White House statement, it is hard to tell whether the Administration appreciates this fact.
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