Yale Journal of Law & Technology
Volume 7, 2004-2005 Spring Issue
Player, Pirate, or Conducer? A Consideration of the Rights of Online Gamers
By Mia Garlick
Mia Garlick, Player, Pirate, or Conducer? A Consideration of the Rights of Online Gamers, 7 Yale Journal of Law & Technology 422 (2005).
This paper considers the issue of online gamer rights and how they are likely to be treated by the law primarily designed to encourage and protect creative expression - copyright law. Online gaming introduces a new genre of experience where consumers buy the entertainment to produce their own entertainment. This hybrid role of a consumer/ producer has been described as that of a 'conducer'. The conducer phenomenon is not just limited to online gaming but is reflective of the greater interactivity which digital technologies introduce for people, traditionally referred to as consumers, to experience information and entertainment. It is in online gaming, however, that this phenomenon is most apparent. Taking recent controversies in the online gaming world surrounding out of game auctions of in game items, the proliferation of 'cheats' and creative fan expression, this paper explores how the issue of gamer rights raises foundational questions such as what is authorship and who is entitled to claim rights and compensation as an author? It also discusses how online gamer rights challenge existing rights schemas and whether historically recognized rights are appropriate to be transported 'as is' to this new digital landscape. Ultimately, the paper concludes that these challenges expose the problematic ideal of the Romantic, original author and the derivative works paradox. The likely assertion of traditional concepts of original authorship in favor of online gaming companies, at the expense of gamers, in the possibility space created and explored by gamers or 'conducers' is problematic because it denies them the use of cultural signifiers to describe themselves and their experiences.
A Critique of the Digital Millennium Copyright Act's Exemption on Encryption Research: Is the Exemption Too Narrow?
By Vicky Ku
Vicky Ku, A Critique of the Digital Millennium Copyright Act's Exemption on Encryption Research: Is the Exemption Too Narrow?, 7 Yale Journal of Law & Technology 465 (2005).
Section 1201(g) of the Digital Millennium Copyright Act (DMCA) is offered as an exemption for encryption research. However, the drafting of the exemption contradicts the purpose of copyright legislation under the terms of the Constitution, which is based upon the idea that the welfare of the public will be served and "to promote the progress of science and useful arts…"
Balancing National Security And Open Science: A Proposal For Due Process Vetting
By Brian Gorman
Brian Gorman, Balancing National Security And Open Science: A Proposal For Due Process Vetting, 7 Yale Journal of Law & Technology 491 (2005).
Since 9/11 and the anthrax attacks of the same year, the national security and scientific communities have been grappling with a dilemma over the danger posed by the publication of "dual use" science that may advance basic science and aid bioterrorists at the same time. A spate of life science articles recognized as having the ability to aid bioterrorists or enemy combatants have been published amid much consternation. The national security community turned to experts in the life sciences to develop options to address this dilemma, but the scientific community has responded defiantly at times with surprising recommendations to expose and distribute sensitive articles even more widely despite the obvious risks to national security. After succumbing to pressure from the government, the scientific community ultimately adopted a censorship policy for sensitive research. Thus the censorship policy begs questions as to whether it is sincere and whether it will dissuade researchers from pursuing biodefense research. This paper attempts to move the debate away from emotions and politics to specific methodologies to address this dilemma. A Due Process Vetting System is presented along with a Risk Assessment Scale and a Least Restrictive Classification System for the communication, assessment and disposition of sensitive life science research in a manner consistent with national security interests.
Sui Generis Database Legislation: A Critical Analysis
By Samuel Trosow
Samuel Trosow, Sui Generis Database Legislation: A Critical Analysis, 7 Yale Journal of Law & Technology 534 (2005).
Over the last decade, one of the most contentious issues in intellectual property has been the question of statutory protection for databases and compilations. A number of factors had converged during the 1990's to place this issue on the policy agenda, including court decisions holding that the factual elements within collections of information are not necessarily covered by copyright laws, the adoption within the European Union of a Directive on the subject, and the continued advances in informational technologies that have made database collections increasingly vulnerable to misappropriation. The efforts of proponents of new, or sui generis database protections to enact new legislation in the United States had been unsuccessful in the 104th, 105th, 106th and 108th Congresses, and an effort to bring database protections within the ambit of the World Intellectual Property Organization's (WIPO) system of treaties failed to gain approval at its 1996 diplomatic conference. The continuing efforts of the European Union to place the issue of a new database treaty at the fore of the WIPO agenda through its Standing Committee on Copyright and Related Rights, has been unsuccessful in the face of growing resistance from developing countries. In the United States, various efforts to mediate the disparate position of the various stakeholders have been largely unsuccessful.
This paper presents the drive towards sui generis legislation for databases as a case study that exemplifies the expansionary nature of the contemporary intellectual property policy environment. Section I places the problem in context by discussing the strategic importance of databases for the contemporary research enterprise. Focusing on what databases are, how they are used by researchers, how they are becoming increasingly central to the process of scientific research, and how sui generis legislation would disrupt these processes helps frame the subsequent discussion of particular legislative proposals. Section II outlines and evaluates the three primary justifications advanced by proponents of sui generis database legislation; the need to fill in a perceived gap caused by lack of adequate protection under U.S. copyright law, the need to harmonize U.S. law with the European Union Database Directive, and the increased risks of misappropriation brought about by technological advances. Section III turns to the legislative response in the U.S., describing the database legislation that has been introduced in the 104th, 105th, 106th, and 108th Congresses, and setting forth the principle arguments raised by proponents and opponents of the measures. Section III also contains a discussion of the draft Database Treaty that had been considered by the World Intellectual Property Organization (WIPO) in 1996. Section IV provides an assessment of the validity of the claims of the proponents of database legislation by placing the database debate in a deeper political and economic context. The conclusion is reached that sui generis database legislation would hamper the goals of promoting scientific progress, and that such attempts should be rejected by policymakers.