Notes: Chapter 5

1. See, e.g., Sharon E. Gillett et al., Do Appliances Threaten Internet Innovation?, IEEE Com- munications, Oct. 2001, at 46–51.

2. See, e.g., Nicholas Petreley, Security Report: Windows vs. Linux, The Register, Oct. 22, 2004,; Posting of Triple II to Mostly Linux, 10 Things a New Linux User Needs to Unlearn, (June 17, 2006) (“Reboots are not SOP (Standard Operating Procedure).”).

3. See Skype, Can I Call Emergency Numbers in the U.S. and Canada?, http://support knowledgebase&j; questiondetails&i; 1034 (last visited June 1, 2007) (“Skype is not a telephone replacement service and emergency numbers cannot be called from Skype.”).

4. Jim Davis, TiVo Launches “Smart TV” Trial, CNET, Dec. 22, 1998, http:/ / launches smart TV trial /2100-1040_3-219409 .html.

5. See Richard Shim, TiVo, Gemstar End Lawsuit, Team Up, CNET, June 9, 2003,; see also Jennifer 8. Lee, Sonic- Blue Sues TiVo, N.Y. Times, Dec. 13, 2001, at C3 (reporting patent lawsuits filed against TiVo by SonicBlue and Pause Technology).

6. See, e.g.,TrickPlay, U.S. Patent No. 6,327,418 (filed Apr. 3, 1998) (issued Dec. 4, 2001); Multimedia Time Warping System, U.S. Patent No. 6,233,389 (filed July 30, 1998) (issued May 15, 2001); see also Richard Shim, Industry Ponders Impact of TiVo Patent, CNET, May 25, 2001, ponders impact of TiVo patent/2100-1040_3-258345.html.

7. Complaint for Patent Infringement, TiVo Inc. v. EchoStar Commc’ns Corp., 446 F. Supp. 2d 664 (E.D. Tex. Aug. 17, 2006) (No. 2:04-CV-1-DF), 2004 WL 3357025.

8. TiVo Inc. v. EchoStar Commc’ns Corp., No. 2:04-CV-1-DF, 2006 U.S. Dist. LEXIS 64293, at *22 (E.D. Tex. Aug. 17, 2006).

9. As of September 30, 2006, EchoStar reported 12,755,000 total DISH Network subscribers. EchoStar Commc’ns Corp., Quarterly Report for the Quarterly Period Ended September 30, 2006 (Form 10-Q), at 28 (Nov. 7, 2006), available at http://www

10. Sharp-eyed readers of the TiVo injunction excerpt may have noticed something peculiar: the court’s order spares 192,708 EchoStar units. Why? EchoStar was ordered to pay damages to TiVo for lost sales of DVRs that TiVo would have sold if EchoStar had not been a competitor, and the court found that exactly 192,708 more TiVos would have been sold. See TiVo Inc. v EchoStar Commc’ns Corp., No. 2:04-CV-1-DF, 2006 U.S. Dist. LEXIS 64293, at *4. Since the $90 million in damages paid by EchoStar already reimbursed TiVo for those units, it would have been double-dipping to kill those units. So 192,708 lucky EchoStar subscribers will get to keep their DVRs even if the court’s order is implemented. How should EchoStar choose those subscribers? The order does not specify.

11. See 17 U.S.C. § 503 (2000). Cf. 35 U.S.C. § 283 (2000); 15 U.S.C. § 1116(a) (2000).

12. See, e.g., Ben Barnier, New York Ups Ante in Counterfeit Crackdown, ABC News, Feb. 2, 2006, 1562460; China Seizes 58 Million Illegal Publications in Three Months, People’s Daily Online, Nov. 27, 2006,

13. EchoStar’s customer service agreement has included what might be termed a “tethering rights clause”: “[EchoStar] reserves the rights to alter software, features and/or functionality in your DISH Network receivers, provide data and content to Personal Video Recorder/Digital Video Recorder (‘PVR/DVR’) products, store data and content on the hard drives of PVR/DVR products, and send electronic counter-measures to your DISH Network receivers, through periodic downloads. DISH Network will use commercially reasonable efforts to schedule these downloads to minimize interference with or interruption to your Services, but shall have no liability to you for any interruptions in Services arising out of or related to such downloads.” EchoStar Satellite L.L.C., Residential Customer Agreement, available at _us/residential_customer_agreement/index.shtml (last visited June 1, 2007). Such clauses are typical.

14.On October 3, 2006, the Federal Circuit granted an indefinite stay of the injunction pending the outcome of EchoStar’s appeal. TiVo Loses Ground on Appeals Court Ruling, BusinessWeek Online, Oct. 4, 2006, /oct2006/pi20061004_960230.htm.

15.No case has tested whether consumers would have a remedy against EchoStar for their dead DVRs. On one hand, it might breach a manufacturer’s warranty of fitness to produce a device that cannot lawfully be used for the purpose specified. On the other hand, “legal fitness” is distinct from functional fitness, and the consumer’s ignorance of a patent (or of patent law) is no defense against consumer infringement. It is not clear that the seller of an infringing product owes indemnity to the user of it.

16. See PlayMedia Sys., Inc. v. America Online, Inc., 171 F. Supp. 2d 1094 (C.D. Cal. 2001).

17. See Lawrence Lessig, The Limits in Open Code: Regulatory Standards and the Future of the Net, 14 BerkeleyTech. L.J. 759, 761–62 (1999) [hereinafter Limits in Open Code]; see generally Lawrence Lessig, Code: Version 2.0, at 5 (2006) and its first edition, Code and Other Laws of Cyberspace (1999). Lessig elaborated the idea that “code is law,” crediting Joel Reidenberg for the initial conception. See Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 Tex. L. Rev. 553 (1998).

18. “West coast code” refers to the code embedded in computer software and hardware, so dubbed because much of its development has occurred in West Coast locations such as Silicon Valley, California, and Redmond, Washington. This code has been contrasted with the more traditional regulatory “east coast code” that Congress enacts in Washington, D.C. See Lawrence Lessig, Code and Other Laws of Cyberspace 53 (1999).

19. Id. at 24–25 (describing the fallacy of “is-ism”).

20. See, e.g., Julie E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 Berkeley Tech. L.J. 161, 163 (1997) (noting the possible negative effects of broad protection for copyright management systems). Cf. Lawrence Lessig, Open Code and Open Societies: Values of Internet Governance, 74 Chi.-Kent L. Rev. 1405, 1408–13 (1999) (discussing how open source software and freedom of participation were instrumental to the growth of the Internet).

21. See generally Mark Stefik, The Internet Edge: Social, Technical, and Legal Challenges for a Networked World 55?78 (2000); Jonathan L. Zittrain, Technological Complements to Copyright (2005).

22. For a discussion of the terminology used to describe intellectual property rights, see Peter K. Yu, Intellectual Property and the Information Ecosystem, 2005 Mich. St. L. Rev. 1, 4–6 (2005) (considering possible terms such as Wendy Gordon’s GOLEM—“Government- Originated Legally Enforced Monopolies”—and IMP—“Imposed Monopoly Privileges”).

23. See Apple, Sync Both Ways, (last visited June 1, 2007).

24. See, e.g., OpenNet Initiative, Internet Filtering in China in 2004–2005 (2005),; see generally Jack Linchuan Qui, Virtual Censorship in China: Keeping the Gate Between the Cyberspaces, 4 Int’l. J. Comm. L. & Pol’y 1 (Winter 1999/2000), available at _webdoc_1_4_2000.pdf (discussing efforts by the Chinese government to adapt—and censor—evolving Internet technologies).

25. See Jack Goldsmith & Tim Wu, Who Controls the Internet?, 113, 120 (2006) (characterizing most attempts at “sidestepping copyright” as mere phases and noting Steve Jobs’s observation that users “would rather pay for music online than spend hours evading detection”).

26. See, e.g., Nart Villeneuve, Director, Citizen Lab at the Univ. of Toronto, Technical Ways to Get Around Censorship, 15013 (last visited June 1, 2007); Ethan Zuckerman, How to Blog Anonymously, http://www.rsf .org/article.php3?id_article 15012 (last visited June 1, 2007).

27. See BBC News, Country Profile: North Korea, Feb. 14, 2007, 2/hi/asia-pacific/country_profiles/1131421.stm; Cathy Hong, Puncturing a Regime with Balloons, The Village Voice, Aug. 13–19, 2003, available at http://www.village,hong,46013,1.html.

28. For a review of the places where interventions can be made to affect user behavior in the context of intellectual property enforcement, including through modification to endpoint devices, see Julie Cohen, Pervasively Distributed Copyright Enforcement, 95 Geo. L.J. 1 (2006).

29.Matt Richtel, Apple Is Said to Be Entering E-Music Fray with Pay Service, N.Y. Times, Apr. 28, 2003, at C1, available at 9E0DEED7123DF93BA15757C0A9659C8B63; Peter Cohen, iTunes Music Store Launches with 200K Songs,MacWorld, Apr. 28, 2003, news/2003/04/28/musicstore/.

30. See, e.g., Press Release, TiVo, TiVo Delivers New Service Enhancements for Series2 Subscribers, Introduces New Pricing for Multiple TiVo Households ( June 9, 2004), available at 210.

31. French copyright law recognizes at least a nominal right of withdrawal (“droit de retrait”). See Jean-Luc Piotraut, An Authors’ Rights–Based Copyright Law: The Fairness and Morality of French and American Law Compared, 24 Cardozo Arts & Ent. L.J. 549, 608 (2006). Authors of software are not entitled to this right. Id.

32. See Lessig, Code: Version 2.0, supra note 17, at 128, 135.

33. Macrovision, Video Copy Protection FAQ, /PDF/acp_faq_videocopyprotection.pdf (last visited June 1, 2007); see also Macrovision, Secure DVD Content in Today’s Digital Home, pdfs/ACP_DVD_Bro_US.pdf (last visited June 1, 2007).

34., Beam Your Beats, .htm (last visited June 1, 2007).

35. See Assoc. Press, TiVo Fans Fear Start of Recording Restrictions,, Sept. 21, 2005,

36. See posting of Brian Ashcraft to Kotaku, China Rolls Out Anti-Addiction Software, addiction-software-251955 .php (Apr. 13, 2007).

37. TiVo Privacy Policy § 2.2 (May 2006), privacypolicy.html (“The collection of Personally Identifiable Viewing Information is necessary for the use of certain advanced TiVo features. . . . If you expressly choose to allow TiVo to collect your Personally Identifiable Viewing Information, TiVo may use this information to provide the requested services as well as for surveys, audience measurement, and other legitimate business purposes.”).

38. See Ben Charny, Jackson’s Super Bowl Flash Grabs TiVo Users, CNet, Feb. 2, 2004,

39. TiVo Privacy Policy, supra note 37, § 3.6 (noting that TiVo “may be legally obligated to disclose User Information to local, state or federal governmental agencies or Third Parties under certain circumstances (including in response to a subpoena)”). Other service providers, like antivirus software vendor Symantec, have been even less committal in their willingness to protect user privacy. They have stated that their products would not be updated to detect Magic Lantern, an FBI keystroke logging Trojan. See John Leyden, AV Vendors Split over FBI Trojan Snoops, The Register, Nov. 27, 2001, http://www

40. See 18 U.S.C. § 2518(4) (2000) (describing what orders authorizing or approving of the interception of wire, oral, or electronic communications must specify, and mentioning that the orders can be done ex parte). The carmaker complied under protest, and in 2004 a federal appellate court handed down an opinion titled Company v. United States (349 F.3d 1132 (9th Cir. 2003)), with the generic caption designed to prevent identification of the carmaker or the target of the investigation. The court found that the company could theoretically be ordered to perform the surveillance, but that, in this case, the FBI’s surveillance had interfered with the computer system’s normal use: a car with a secret open line to the FBI could not simultaneously connect to the automaker, and therefore if the occupants used the system to solicit emergency help, it would not function. Id. (Presumably, the FBI would not come to the rescue the way the automaker promised its customers who use the system.) The implication is that such secret surveillance would have been legally acceptable if the system were redesigned to simultaneously process emergency requests.

41. See Brian Wheeler, ‘This Goes No Further . . . ,’ BBC News, Mar. 2, 2004, http://; see also United States v. Tomero, 462 F. Supp. 2d 565, 569 (S.D.N.Y. 2006) (holding that continuous mobile phone monitoring fits within the “roving bug” statute). The Tomero opinion is ambiguous about whether the bug in question was physically attached to the phone or effected through a remote update.

42. See Michael Adler, Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105 Yale L.J. 1093 (1996); see also Lawrence Lessig, Code: Version 2.0, at 20–23, 25–26; Lawrence Lessig, Constitution and Code, 27 Cumb. L. Rev. 1, 6–7 (1996–97).

43.Dan Burk and Tarleton Gillespie have offered an autonomy-based argument against the deployment of trusted systems. See Dan Burk & Tarleton Gillespie, Autonomy and Morality in DRM and Anti-Circumvention Law, 4 tripleC 239 (2006) (“State sponsorship of DRM in effect treats information users as moral incompetents, incapable of deciding the proper use of information products.”). While few other scholars have analyzed the downsides of perfect enforcement in the context of the Internet or elsewhere, some have warned against assuming that perfect enforcement is desirable. See, e.g., Cohen, supra note 28, at 43 (“The proper balance between enforcement and restraint is an age-old question in market-democratic societies, and solutions have always entailed compromise. It would be odd if the advent of digital networked technologies altered this dynamic so completely that middle-ground possibilities ceased to exist.”); Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stan. L. Rev. 1345, 1432–34 (2004); Alexandra Natapoff, Underenforcement, 75 Fordham L. Rev. 1715, 1741 (2006); Eyal Zamir, The Efficiency of Paternalism, 84 Va. L. Rev. 229, 280 (1998) (“[P]erfect enforcement is rarely the optimal level of enforcement.”).

44. See David R. Johnson & David G. Post, Law and Borders—The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367, 1367, 1383, 1387–88 (1996) (arguing that self-governance can and should be central to cyberspace regulation); John Perry Barlow, A Declaration of the Independence of Cyberspace (Feb. 8, 1996), ~barlow/Declaration-Final.html (“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”).

45. See Note, Exploitative Publishers, Untrustworthy Systems, and the Dream of a Digital Revolution for Artists, 114 Harv. L. Rev. 2438, 2455–56 (2001) (asserting that the No Electronic Theft (NET) Act’s self-help mechanisms are likely to be ineffective because copy protections are “routinely cracked”); Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 U. Or. L. Rev. 369 (2003) (discussing the history of the act and difficulties that have arisen when attempting to enforce it); Declan McCullagh, Perspective: The New Jailbird Jingle, CNET, Jan. 27, 2003, (chronicling the NET Act’s ineffectiveness).

46. For criticism of trusted system legislation, see Drew Clark, How Copyright Became Controversial, in Proc. 12th Ann. Conf. on Computers, Freedom & Privacy (2002), available at (criticizing the DMCA); Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of “Rights Management,” 97 Mich. L. Rev. 462, 494–95 (1998) (characterizing support for DMCA and other legislation enlarging intellectual property rights as “Lochner pure and simple”); Lisa J. Beyer Sims, Mutiny on the Net: Ridding P2P Pirates of Their Booty, 53 Emory L.J. 1887, 1907, 1937–39 (2003) (describing objections to SBDTPA and DMCA § 1201 on grounds of overbreadth and interference with the fair use doctrine); Declan McCullagh, New Copyright Bill Heading to DC, Wired, Sept. 7, 2001, http://,1283,46655,00.html (describing responses to the Security Systems Standards and Certification Act (SSSCA)); Letter from Shari Steele, Executive Dir., Elec. Freedom Found., to Senators Fritz Hollings and Ted Stevens (Nov. 5, 2001), available at .html (discussing the proposed SSSCA).

47. See Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999) (asserting that expansive intellectual property rights constrain the availability of information); Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 Law & Contemp. Probs. 173, 216–18 (2003) (criticizing the NET Act and DMCA for expanding copyright protection in such a way that will chill expression); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1 (2001) (arguing that the expansion of copyright law limits the incentivizing effect of the regime and burdens speech); Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised, 14 Berkeley Tech. L.J. 519 (1999) (criticizing the DMCA as overly broad and describing some problems with expansive copyright protections).

48. See, e.g., Dean F. Andal, Read My E-Mail, No New Taxes!, Cal-Tax Dig., Apr. 1997, available at; see generally Charles E. McLure, Jr., Taxation of Electronic Commerce: Economic Objectives, Technological Constraints, and Tax Laws, 52 Tax L. Rev. 269 (1997); William V. Vetter, Preying on the Web: Tax Collection in the Virtual World, 28 Fla. St. U. L. Rev. 649 (2001) (focusing on constitutional and jurisdictional issues).

49. According to a 2005 Pew Internet & American Life Project study, 27 percent of adult Internet users reported engaging in file-sharing. Pew Internet & American Life Project, Internet Activities ( Jan. 11, 2007), _1.11.07.htm.

50. SeeWilliam J. Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 394–95 (1995). For a related discussion, which also draws on Stuntz, see Lessig, Code: Version 2.0, supra note 17, at 213.

51. Stuntz, supra note 50, at 395.

52. Cf. Lessig, Code: Version 2.0, supra note 17, at 309 (supporting exercise of free speech through democratic channels in societies observing the rule of law, rather than through “technological tricks”).

53. See Marguerite Reardon, Skype Bows to Chinese Censors, CNet, Apr. 20, 2006,

54. See Rebecca MacKinnon, China’s Internet: Let a Thousand Filters Bloom, YaleGlobal Online, June 28, 2005, 5928.

55. See Jonathan L. Zittrain & John G. Palfrey, Jr., Reluctant Gatekeepers: Corporate Ethics on a Filtered Internet, in AccessDenied: The Practice and Policy of Global Internet Filtering (Ronald J. Deibert et al. eds., 2008).

56. See James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. Cin. L. Rev. 177 (1997); see also Jonathan Zittrain, A History of Online Gatekeeping, 19 Harv. J.L. & Tech. 253, 295 (2006). Boyle believes the “Libertarian gotcha” to be contingent, not inherent. In other words, because code can be changed, it is possible to take a technology and then refashion it to make it easier to regulate.

57. Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad 81–85, 91–92, 156 (reprint ed. 2004).

58. Ingrid Marson, China: Local Software for Local People,CNet, Nov. 14, 2005, Local software for local people/2100-7344_3-


59. See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”); see also Lawrence Tribe, American Constitutional Law (1999).

60. See Lyombe Eko, New Medium, Old Free Speech Regimes: The Historical and Ideological Foundations of French & American Regulation of Bias-Motivated Speech and Symbolic Expression on the Internet, 28 Loy. L.A. Int’l & Comp. L. Rev. 69, 123–24 (2006) (noting a possible connection between U.S. prior restraint doctrine and the U.S. conception of the Internet as a “free marketplace of ideas”); John G. Palfrey, Jr. & Robert Rogoyski, The Move to the Middle: The Enduring Threat of “Harmful” Speech to the End-to-End Principle, 21 Wash. U. J.L. & Pol’y 31, 52 (2006) (discussing a Pennsylvania law requiring ISPs to deny access to Web sites containing child pornography and a court decision that declared the law unconstitutional, partly on prior restraint grounds) (citing Ctr. for Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004)); see also Zieper v. Metzinger, 392 F. Supp. 2d 516 (S.D.N.Y. 2005), aff’d, 474 F.3d 60 (2d Cir. 2007).

61. Exetel Hosting Support Facilities, Frequently Asked Questions, .au/a_support_hosting.php#webspace2 (last visited July 4, 2007).

62. See United States v. Am. Library Ass’n, 539 U.S. 194, 215–16 (Breyer, J., concurring) (2003) (arguing that the standard should have been heightened scrutiny for a law requiring libraries to use filtering systems in order to receive public funding and noting that “[t]he [filtering] technology, in its current form, does not function perfectly, for to some extent it also screens out constitutionally protected materials that fall outside the scope of the statute (i.e., ‘overblocks’) and fails to prevent access to some materials that the statute deems harmful (i.e., ‘underblocks’)”); ACLU v. Ashcroft, 322 F.3d 240, 266– 67 (3d Cir. 2003), aff’d and remanded by 542 U.S. 656 (2004) (“We conclude that [the Child Online Protection Act (COPA)] is substantially overbroad in that it places significant burdens on Web publishers’ communication of speech that is constitutionally protected as to adults and adults’ ability to access such speech. In so doing, COPA encroaches upon a significant amount of protected speech beyond that which the Government may target constitutionally in preventing children’s exposure to material that is obscene for minors.”); Katherine A. Miltner, Note, Discriminatory Filtering: CIPA’s Effect on Our Nation’s Youth and Why the Supreme Court Erred in Upholding the Constitutionality of the Children’s Internet Protection Act, 57 Fed. Comm. L.J. 555 (2005) (criticizing the Supreme Court’s American Library Association decision on constitutional grounds, including overbreadth).

63.OpenNet Initiative, Unintended Risks and Consequences of Circumvention Technologies (May 5, 2004),

64. Cf. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 197 (2004) (“[F]air use in America simply means the right to hire a lawyer.”).

65. SeeDan L. Burk & Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 Harv. J.L. & Tech. 41, 50–51 (2001) (discussing how technological controls interact with fair use principles); Mark Gimbel, Some Thoughts on Implications of Trusted Systems for Intellectual Property Law, 50 Stan. L. Rev. 1671 (1998); see also Digital Rights Management Conference, .html#bmcp (last visited June 1, 2007) (containing links to articles and news about DRM and fair use).

66. See Storage Tech. Corp. v. Custom Hardware Eng’g & Consulting, Inc., 421 F. 3d 1307, 1318–21 (Fed. Cir. 2005); Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001); 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal. 2004).

67. See Universal City Studies, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).

68. Cf.Negativland, Fair Use: The Story of the LetterUand the Numeral 2 (1995) (describing how copies of the band Negativland’s release U2 were impounded as part of a settlement agreement between the band and Island Records establishing that the releases were contraband).

69.Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

70. Id.

71. In 1979, the U.S. government blocked publication of Progressive article “The H-Bomb Secret: How We Got It, Why We’re Telling It,” which included information on how nuclear weapons functioned. The case was later dropped. See United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979); see also A. DeVolpi et al., Born Secret:The H-Bomb, the “Progressive” Case, and National Security (1981).

72. See John M. Ockerbloom, Books Banned Online, http://onlinebooks.library.upenn .edu/banned-books.html (last visited June 1, 2007).

73. Charles Memminger, Law Enforcement Inc. Is Next Big Private Industry,Honolulu Star- Bulletin, July 8, 2001, available at memminger.html (“[The use of traffic light cameras] feels icky, hints at technology run amok and provides us with a glance into the future where, smile, we’re constantly on some candid camera or another and privacy will be a concept as quaint as horse-drawn carriages and Nintendo 64.”).

74. See, e.g., Nicholas J. Garber et al., An Evaluation of Red Light Camera (Photo- Red) Enforcement Programs in Virginia 108–10 (Jan. 2005), available at www (discussing possible malfunctions of the cameras and possibility of false positives).

75. U.S. Const. amend. II.

76. See, e.g., Parker v. District of Columbia, 478 F.3d 370, 382–86 (D.C. Cir. 2007); Tony Mauro, Scholar’s Shift in Thinking Angers Liberals, USA Today, Aug. 27, 1999, available at

77. Parker, 478 F.3d at 383.

78. SeeWilliam J. Stuntz, Local Policing After the Terror, 111 Yale L.J. 2137, 2163, 2165– 66 (2002).

79. In re U.S. for an Order Authorizing the Roving Interception of Oral Communications, 349 F.3d 1132 (9th Cir. 2003). Similar instances of burdenless yet extensive search made possible by the digital space have continued to emerge. In one recent case, the FBI remotely installed spyware via e-mail for surveillance purposes. See Declan McCullagh, FBI Remotely Installs Spyware to Trace Bomb Threat, Cnet News, July 18, 2007, Recent proposals by German officials would broadly legalize similar methods for counterterrorism efforts. SeeMelissa Eddy, Germany Wants to Spy on Suspects via Web, Assoc. Press, Aug. 21, 2007, http: / / /dynamic/ stories/G/GERMANY_TROJAN_HORSES?SITE WDUN&SECTION; HOME&TEMPLATE; DEFAULT.

80. See Hepting v. AT&T; Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006) (denying summary judgment motion in a class-action lawsuit where plaintiffs alleged that the defendant telecommunication carrier was collaborating with the National Security Agency in a massive warrantless surveillance program).

81. Richard Posner cites whistleblowers as the reason not to worry about routine automated government data mining of citizen communications. See Richard A. Posner, Editorial, Our Domestic Intelligence Crisis,Wash. Post, Dec. 21, 2005, at A31.

82. See Lior Jacob Strahilevitz, “How’s My Driving?” for Everyone (and Everything?), 81 N.Y.U. L. Rev. 1699 (2006).

83. For an elaboration of objections along these lines, including rights to engage in acts of conscience, see Burk & Gillespie, supra note 43.

84. See Tim Wu, Does YouTube Really Have Legal Problems?, Slate, Oct. 26, 2006,; see also Cohen, supra note 28 (“Pervasively distributed copyright enforcement portends fundamental change in these processes. The linked regimes of authorization and constraint will constrict the ‘breathing room’ that is a critical constituent of each of them.”); Tim Wu, Tolerated Use & the Return of Notice- Based Copyright (forthcoming) (on file with the author).

85. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 U.S.C.).

86. 17 U.S.C. § 512(a) (2000). This is true at least so long as the ISPs have a policy for “terminating repeat infringers,” which in practice has not affected the way they operate.

87. Copyright owners subsequently launched a comprehensive campaign to use the DMCA to take down content. See, e.g., Chilling Effects, Chilling Effects Clearinghouse, http:// (last visited June 1, 2007); Press Release, Recording Indus. Ass’n of Am., Worldwide Music Industry Coordinates Its Strategy Against Piracy (Oct. 28, 1999), available at (follow “1999” hyperlink; then follow “Next” hyperlink; then select press release).

88. See, e.g., Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 414–29 (1999); Lawrence Lessig, The Internet Under Siege, 127 Foreign Pol’y 56 (2001), available at www.lessig .org/content/columns/foreignpolicy1.pdf; Note, The Criminalization of Copyright Infringement in the Digital Era, 112 Harv. L. Rev. 1705 (1999).

89. The pages would then be available only when those PCs were turned on, and when not too many other people were viewing them. Further, it would be much more difficult to publish anonymously.

90.Of course, publishers still might like to be able to designate a particular clip as infringing and see all instances of it automatically removed. That is a narrower demand than wanting any infringing clip to be identified automatically in the first instance.

91. Gun control would appear to be a policy designed to preempt violent crimes, but I have promised not to enter that debate here.

92. See Jessica Litman, Digital Copyright (2001).

93. See Clayton Collins, Why Blockbuster Clings to Its DVDs and Rentals, Christian Sci. Monitor, Feb. 24, 2005, available at -stct.html (reporting that the U.S. video-rental business had $8.2 billion in rental revenue in 2003 and $14 billion in VHS and DVD sales). Jack Valenti, former head of the Motion Picture Association of America (MPAA), warned at a Congressional hearing that “the VCR is to the movie industry what the Boston Strangler was to a woman alone.” Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcomm. on Courts, Civil Liberties and the Admin. of Justice of the H. Comm. on the Judiciary, 97th Cong., 2d Sess. 65 (1982) (statement of Jack Valenti, President, Motion Picture Association of America). (He later said that the MPAA did not want to prevent the VCR’s deployment; it simply wanted to be able, through a favorable ruling, to withhold permission for sale of the technology until manufacturers agreed to a per-unit fee on VCRs and blank videocassettes that would be remitted to the publishers.)

94. BBC Moves to File-sharing Sites, BBC News, Dec. 20, 2006, hi/technology/6194929.stm.

95. Press Release, Apple, Apple Unveils Higher Quality DRM-Free Music on the iTunes Store (Apr. 2, 2007),

96. Cf. Specht v. Netscape Commc’ns Corp., 150 F. Supp. 2d 585, 594 (S.D.N.Y. 2001) (“The few courts that have had occasion to consider click-wrap contracts have held them to be valid and enforceable.”).

97. See 17 U.S.C. § 107 (2000).

98. SeeMeir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 626–30 (1984).

99. Consider, for example, the penalties for copyright infringement. Under the U.S. copyright statutory damages provision, 17 U.S.C. § 504(c), a copyright plaintiff may collect between $750 and $30,000 per work infringed by a “regular” infringer. Courts have wide discretion to choose a number within this range, and may consider factors such as deterrence, harm to the plaintiff’s reputation, and value of the work. Thus, if a peer-to- peer user shares one hundred works and a court chooses a mid-range figure like $10,000, a typical downloader could be held liable for $1,000,000. This may be an example of an acoustic separation opposite from Dan-Cohen’s model—penalties far harsher than what a citizen would anticipate.

100. This process appears to be at work when professors deal out harsh midterm grades, but then temper those grades by adjusting the final exam.

101. Law professor Randal Picker argues in Rewinding Sony: The Evolving Product, Phoning Home and the Duty of Ongoing Design, 55 Case W. Res. L. Rev. 749, 766–68 (2005), that legal liability for PC software authors ought to be structured so that producers are encouraged to be able to update a product from afar if it turns out that the product enables infringing uses and an update would stop them. This is a strong but dangerous argument. Indeed, gatekeeping responsibilities might not stop at a software author’s own products. OS makers could be asked to become gatekeepers for applications running on their systems. Consider, for example, the technical ease with which an OS maker could disable functionality on a tethered PC of software such as DeCSS, which enables decryption of DVDs, and for which distributors of software have been successfully sued. Any vendor of tethered software could be pressured to take such action, possibly removing the capability of noninfringing uses at the same time. The core problem with Picker’s proposal, even for those software producers who resemble traditional gatekeepers, is that it fails to take into account the generative loss from compelling software originators to retain control.

102. See Steve Sechrist, Day of Reckoning for AACS Copyright Protection, Display Daily, Feb. 20, 2007,

103. David Post, Comment on the Generative Internet (on file with the author).

104. See, e.g.,Tim O’Reilly, What Is Web 2.0, O’Reilly, Sept. 30, 2005, http://www.oreilly

105. See Wikipedia, Web 2.0: Web-based Applications and Desktops, wiki/Web_2#Web-based_applications_and_desktops (as of June 1, 2007, 09:00 GMT).

106. See, e.g., Mapquest, Copyright Information, right.adp (last visited Dec. 1, 2007); Windows Live ID Microsoft Passport Network Terms of Use, (last visited June 1, 2007); Gmail Terms of Use, use.html (last visited June 1, 2007).

107. Google Maps API, (last visited Dec. 1, 2007).

108. See id.

109. Posting of Mike Pegg to Google Maps Mania, 25 Things to Do with Google, http:/ / html (Nov. 11, 2006, 09:38).

110. See Google Maps API Terms of Service, .html (last visited June 1, 2007).

111. Brad Stone, MySpace Restrictions Upset Some Users, N.Y. Times, Mar. 20, 2007, at C3, available at 1332043200&en; 8e52c7903cb71959&ei; 5088&partner; rssnyt&emc; rss.

112. See Michael Liedtke, Google to Stop Web Video Rentals, Sales, Yahoo! News, Aug. 10, 2007, (last visited Aug. 13, 2007); Posting of Cory Doctorow to BoingBoing, Google Video Robs Customers of the Videos They “Own,” google_ video_robs_cu.html (Aug. 10, 2007, 21:34).

113. One example of this would be BitTorrent, “a peer-assisted, digital content delivery platform” that distributes the cost of sharing files by breaking them down into smaller pieces that are each supplied by separate peers in the network. BitTorrent, Company Overview, (last visited Dec. 1, 2007).

114. A variety of programs already allow users to contribute idle CPU time to far-flung projects. See, e.g.,, (last visited June 1, 2007); Rosetta@home, What is Rosetta@home?, /rah_about.php (last visited June 1, 2007); SETI@home, The Science of SETI@home, (last visited June 1, 2007); World Community Grid, About Us, (last visited June 1, 2007).

115. Christopher Lawton, ‘Dumb Terminals’ Can Be a Smart Move, Wall St. J., Jan. 30, 2007, at B3, available at 1861-oJ6FWrnA8NMPfMXw3vBILth1EiE_20080129.html?mod blogs.

116. See generally Access Denied: The Practice and Policy of Global Internet Fil- tering (Ronald J. Deibert et al. eds., 2008).

117. Recursively generative applications are capable of producing not only new works, but also new generative applications that can then be used to create new works.

118. See Jonathan Zittrain, Normative Principles for Evaluating Free and Proprietary Software, 71 U. Chi. L. Rev. 265, 272–73 (2004) (describing an open development model for software).