Index

Abridgement 21, 27 Publishers) 16, 34, 45, 103, 109, Access protection, see Digital Millenium 111; see also BMI; licensing Copyright Act; digital rights organizations; SESAC management Association of American Universities 65 Adaptation 13, 22 Audible Magic 82 Advanced Audio Coding 71 Audio Home Recording Act 18, 85, 109; Advertising 60, 108, 124–6, 131, 155 see also levies Aftermarket 146 Audio recognition software 87; see also Africa, Matthew 40 digital fingerprint Aimster 79; see also file-sharing; Audiogalaxy 79, 88; see also file- Napster sharing; Napster Akerlof, George 9 Automated rights management 10, 15; Allen, Woody 125; see also publicity see also Digital Millenium rights Copyright Act; digital rights Allocative efficiency 106; see also management economic efficiency Altnet 90, 91; see also Sharman Bandwagon 173 Networks Barney 27 Amador, Charles 120; see also publicity Barriers to entry 145; see also antitrust rights Barzel, Yoram 159 Amazon.com 60 Beatlemania 121, 122 American Bar Association 130 Bell, Tom 9, 40 American Library Association 68 Benchmarks, see reasonable royalty Analog technology 6, 7 Benkler, Yochai 9, 45 Anti-circumvention 7; see also Besen, Stanley 42 automated rights management; Besser, Howard 9, 45 Digital Millenium Copyright Act; Betamax, see videocassette recorder digital rights management Bilateral deterrence 4, 11 Anti-commons 7, 8, 100–116, 129; see Bisceglia, Julia 43 also information commons Blanket license 16, 20, 41, 103, 104, 153 Anticybersquatting Consumer Protection Blastoise 90, 91 Act 124 BMG Entertainment 51 Anti-trafficking 66 Boogie Woogie Bugle Boy of Company Antitrust 8, 10, 19, 135, 141–9; see also C 27; see also parody; satire Clayton Act; Sherman Act Bork, Robert 9 Apache 169 Boucher, Rick 66; see also Digital Apple Corp., see Beatlemania Media Consumers’ Rights Act Apple Music Store 52, 53, 54, 71 Bots, see ‘spiders’ Arbitration 13, 34–6,41 Bowman, Ward 163 Areeda, Philip 161 Breach of contract 154 ASCAP (American Society of Bresler, Judith 26 Composers, Authors, and Breyer, Stephen 25, 43

201

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Broadcast Music Inc. (BMI) 45, 13, 109; Computer chips 136 see also ASCAP; licensing Communications Decency Act of 1997 organizations; SESAC 80 Brinkley, Christie 121; see also publicity Congestion 118, 119; see also rights externalities; third party effects Broadcaster 103, 108; see also webcaster Conjuring up 12, 30; see also parody; Brooks, Frederick 159, 177 satire Buffer copies 107; see also ephemeral Contractual tying 143, 144, 146, 147, reproduction; random access 156; see also antitrust; refusal to memory deal Business models 21, 135, 138, 146, 156 Contributory infringement 7, 79, 81–4; see also vicarious infringement Calabresi, Guido 9, 10, 94, 168 Coordination effects 2, 7, 27; see also Carson, Johnny 123; see also publicity transactions cost rights Copy control 77 Cat NOT in the Hat, The 27; see also Copyright Act of 1976 1, 14, 40, 56, 57, parody; satire 59, 104, 105, 107, 127, 150 Celebrity endorsement 8; see also Copyright Arbitration Royalty Panel 45, Lanham Act; publicity rights 102, 105 Chaplin, Charlie 120; see also publicity Copyright Clearance Center, see CCC rights Copyright collectives, see licensing Chat room 37–8 organizations Cheers 130 CCC (Copyright Clearance Center) 17, Chicago School 3; see also Coase; 20, 41, 58; see also ASCAP; BMI; Demsetz; Director; Grady; CCC; IFRRO; licensing Kozanski; Kitch; Landes; Levi; organizations; SESAC Posner Copyright Direct 57 Chisum, Donald 161 Copyright misuse 86–8, 135, 141–3, Cellar-Kefauver Amendment 10 156; see also antitrust Circumvention 47, 48, 49, 64, 66, 68; Course packs 41 see also anti-circumvention Court of First Instance 141, 148 Claritas 59; see also personalization Cranor, Lorrie 76 Classroom 68 Creative destruction 5 Clayton Act 10, 143; see also antitrust; Crews, Kenneth 17, 41 Sherman Act Criticism 33 Clear Channel 70 Cunnilingus Champion of Company C Coase, R.H. 3, 39, 80, 94, 118, 131, 136; 23; see also parody; satire see also Chicago School; Landes; Cyber-search 8, 152–6 Posner Cyber-space 9, 20, 149 Coase Theorem 3, 14, 80–81; see also transactions cost Damages 30–32, 34, 45, 131 Collage 46 Dasgupta, Partha 159 Collecting rights organizations, see Database 8, 57, 59, 72, 149–52; see also licensing organizations spinoff Commercial speech 126 Davis, Randall 159 Commercial use 14, 29 Deep linking 154–5; see also framing Compatibility 140; see also Defamation of character 124 interoperability; reverse engineering Demsetz, Harold 80, 94; see also Compilation 27, 34 Chicago School Complexity 5, 171 Derivative use 1, 7, 21, 22, 23, 25–7, 28,

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29, 31, 139; see also superseding 100–116; see also streaming use; transformative use DVD 65, 93 Dr Seuss 24, 27, 43; see also parody; satire Echo Networks 70; see also music Digital audio transmission 8, 105, 106; services see also digital phonorecord E-commerce 108, 155 delivery Economic efficiency 2, 3, 5, 7 Digital clones 118, 121, 125 Economic substitutes 145 Digital Dilemma, The: Intellectual Edge services network 90; see also Property in the Information Age 48; distributed computing see also digital rights management Electronic Privacy Information Center Digital fingerprint 87; see also audio (EPIC) 62, 63; see also privacy recognition software Ellickson, Robert 94 Digital journal 57 Reed Elsevier 56; see also Digital Media Consumers’ Rights Act LIBLICENSE; site license 66; see also Boucher EMI Recorded Music 51 Digital Millenium Copyright Act 7, 18, Emusic.com 52, 53, 70; see also music 47, 48, 49, 63–7, 68, 76, 104, 107 services Section 1201 exemption 77 Encryption 17, 47, 58, 69, 77; see also see also automated rights watermarking management; digital rights Ephemeral reproduction 105, 109; see management also buffer copies; random access Digital Performance Rights in Sound memory Recordings Act 104, 106 Essential facility 148, 149; see also Digital phonorecord delivery 106, 107; dominant position; platform see also digital audio transmission technology; refusal to deal Digital rights management 7, 47–78, 91, European Commission 141, 148 93; see also automated rights European Court of Justice 141, 148 management; Digital Millenium European Database Directive 151 Copyright Act European Parliament 151 Digital tape recorder 84 European Union 48 Digital technology 6, 9, 135 Experian 59; see also personalization Direct Media Licensing Services 60 Expropriation 8, 170, 172 Digital World Services 87 Externalities 14, 77, 80, 92, 137, 146, Director, Aaron 3; see also Chicago 173; see also congestion; third party School effects Disney 27, 30, 43, 83 Extrinsic considerations 23; see also Displacement 23, 107 intrinsic considerations Distance education 54, 72, 73, 110–11; see also Technology, Education and Fader, Peter 42 Copyright Harmonization Act Fair use 1, 6, 8, 10, 12–46, 48, 50, 51, Distributed computing 93; see also 56, 65, 66, 67, 69, 77, 78, 85, 107, Sharman Networks 127, 137, 139, 155, 156; see also Dominant position 143, 149, 151, 152; parody; satire see also antitrust; platform Fan fiction 37; see also fair use technology Fast Track 88–91; see also KaZaa; ‘Do-not-call’ list 75 Sharman Networks Double dipping 100; see also Federal Circuit 136 performance; reproduction Federal Trade Commission 62, 76 Download 52, 56, 69, 70, 71, 84, Felten, Edward 77

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Kitch, Edmund 9, 15, 157; see also Pressplay Chicago School Loeb, Damian 43 Klemperer, Paul 159 Local area networking 108 Kobak, James 160 Logical interface 18, 19 Kontiki 90; see also distributed Loren, Lydia 39, 40; see also fair use computing Loudeye Technologies 87 Koons, Jeffrey 43 Lugosi, Bela 121; see also publicity Kozinski, Alex 9, 13, 25, 39; see also rights Chicago School Mackie-Mason, Jeffrey 55; see also Landes, William 10, 26, 40, 43, 118, libraries; LIBLICENSE 131, 168; see also Chicago School Madster 7, 79, 88; see also file-sharing Lange, David 9, 45 Madow, Michael 131 Lanham Act 124, 125 Magaziner, Ira 61–2, 75; see also Lasercomb America v. Job Reynolds 88 privacy rights Laurel and Hardy 121; see also publicity Making available right 100–116; see rights also performance; reproduction Law and economics 3–5 Marginal cost 2, 9, 22, 56 Learning by doing 5 Market definition 14, 19; see also Lemley, Mark 39, 160 antitrust Lessig, Lawrence 9, 41, 45 Market failure 15, 40, 138; see also Leval, Pierre 13, 33, 39, 42, 158 externality; third party effect Levi, Edward 3; see also Chicago Market harm 14, 19–21, 25, 29, 68, 154; School see also fair use Levy, copyright 4, 5, 18, 41, 109 Market power (or monopoly power) 4, 5, LEXIS NEXIS 56; see also Reed 80, 137, 143, 144, 146, 147, 156; Elsevier; site licenses see also antitrust; Clayton Act; Liability 4, 5, 11 Sherman Act Liability rules 7, 10, 25, 32–6, 80, 81, Market share 145; see also antitrust 153; see also property rules Market substitution 22 LIBLICENSE 58 Marx Brothers 121, 122; see also Libraries 1, 9, 55, 68; see also Gasaway; publicity rights Okerson ‘Mashups’ 37; see also fair use Licensing 2, 7, 8, 14, 20, 22, 25, 27, 28, Masters of Augusta, The 126; see also 32, 35, 47–78, 100, 118, 135, 137, publicity rights 146, 150, 156 MCA v. Wilson 23; see also parody; Licensing collectives, see licensing satire organizations McFarland, Spanky 123; see also Licensing Executives Society 35 publicity rights Licensing organizations 10, 16–17, 20, McGowan, David 10, 165 40, 57, 73, 57–8, 108 Mechanical, see reproduction Lieber, Jerry 84 Mechanical rights 102–3, 106; see also Liebowitz, Stanley 40 IFRRO Lindblom, Charles 41, 78, 94 Media Image Resource Alliance 58 Linux 170, 173; see also Microsoft; Melamed, Douglas 10, 94, 168 open source Merrill, Thomas 44, 94 Liquid Audio 52, 70; see also music Metacrawler 152 services; MusicNet; Pressplay Microeconomic 5 Listen.com 52, 53, 54, 69; see also Microsoft 52, 53, 76, 91, 170 171; see music services; MusicNet; also Linux; middleware

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Middleware 146; see also Microsoft Olsen, Mancur 9, 69 Midler, Bette 121; see also publicity Onassis, Jaqueline 125; see also rights publicity rights Misappropriation 142, 154 One-stops, see licensing organizations Motschenbacher, Lothar 125; see also Open source software 8, 37, 38, 169–77; publicity rights see also Apache; Linux; Red Hat Moral right 1, 9, 14, 27, 29, 31; see also Operating system 146 right of attribution; right of integrity Opt in 60, 62; see also privacy Moral hazard 81, 85 Orbison, Roy 28; see also parody Morphs 46 O’Rourke, Maureen 167 Morpheus 7, 79; see also Music City Owen, Bruce 69 MP3 69, 70, 84, 86 MP3.com 110 P3P 63; see also privacy Multimedia 37 Packeteer 82 Musical composition 84, 100, 101–4, Parks, Rosa 122; see also publicity 109; see also sound recording rights MusicMatch 52, 70; see also music Parody 7, 12, 13, 22, 27, 28, 29, 30, 33, services 34, 44, 55 MusicNet 51, 52, 69, 88, 91; see also Patel, Marilyn Hall 84, 87; see also file- music services sharing; Napster Music City 88–91; see also Gnutella; Patent 136, 138, 141, 147 peer-to-peer Patent misuse 143 Music Reports Inc. 110 Patent scope 9 Music services 51–4, 91–3, 100–116; see Patent system 10 also MusicNet; Pressplay Pay-per-use 48, 49, 52, 56, 57, 73 Muze 71 Peer-to-peer 71, 76, 79–99; see also file- sharing; KaZaa; Sharman Networks Napster 6, 11, 21, 52, 79, 84, 79–99; see Per se 144, 146; see also antitrust; rule also file-sharing; peer-to-peer of reason National Music Publishers Association Performance 1, 9, 16, 22, 34, 41, 68, 89; see also Harry Fox Agency; 103–4, 105–6, 111; see also reproduction reproduction Nelson, Richard 9, 157 Perlman, Victor 74 Netanel, Neil 43 Persistent Access Control 49, 73; see Netscape 146 also automated rights management; Network effects 49, 50, 92, 146; see also digital rights management; Jaszi externalities; third party effects; Personalization 49, 50, 51, 54, 59, 90; virtuous cycle see also privacy ‘Network tipping’ 92 Photocopying 6, 16, 17 Newcombe, Don 125; see also publicity Plant, Arnold 26 rights Platform technology 8, 138, 140, 148; Nimmer, Melville 44, 114, 119, 132 see also dominant position Non-attribution 131 Playlist 70 Nuisance 32, 45, 80; see also trespass Pop-up advertising 90; see also Gator Portability 52 Ochoa, Tyler 42 Posner, Richard 9, 10, 26, 28, 31, 40, 43, O’Connor, Sandra Day 149 44, 118, 119, 131, 141, 142, 164, OD2 52, 53, 71; see also music services 168; see also Chicago School; Odlyzko, Andrew 72 Coase; Landes Okerson, Ann 59, 74; see also libraries Posthumous rights 120, 121

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Postmodernism 28, 46, 118 100, 102, 107, 110; see also Predatory pricing 10; see also antitrust performance Prens, Bruce 169, 170, 175; see also Relatable 87 open source Research and development 136, 137 Presley, Elvis 122; see also publicity Retransmission 45 rights Reverse engineering 136–9, 156; see Pressplay 52, 69, 91; see also music also compatibility; interoperability services; MusicNet Rhapsody, see Listen.com Price discrimination 16, 55, 69, 72, 81, Right clearance organizations, see 144, 151, 155 licensing organizations Privacy 59–63, 131; see also Rightsline.com 58; see also licensing personalization organizations Profiling 74; see also privacy Right of attribution 27, 29; see also Program interfaces 139–41 moral right Promoplay 53 Right of integrity 27, 29; see also moral Property rights 3, 5, 7,10, 15, 16, 36, 54, right 80, 81, 119, 136; see also Coase Ringtones 71 Property rules 26, 32, 80, 172; see also Rioport 70; see also music services liability rules Rogers, Art 43 Prosser, William 119, 132; see also Rogers, Ginger 122; see also publicity publicity rights rights Public display 1, 9, 34, 68, 110 Roxio 52; see also Napster Public domain 9 Royalty Source Intellectual Property Public performance, see performance Database 35 Publicity rights 7, 36, 117–34 Rule of reason 143, 144, 146, 156; see PulseOne 52, 70 also antitrust; per se Rust, Rick 126; see also publicity rights Randall, Alice 28 Random access memory 102, 107, 154; Samuelson, Pamela 159 see also ephemeral reproduction Satellite 105 Rational comprehensive 4, 11, 18, 41; Satire 7, 12, 13, 22, 28, 29, 30, 33, 34, see also incrementalism 44; see also parody Ratzenberger, John 129; see also Scherer, Frederick 163 publicity rights Schmalensee, Richard 158 Raymond, Eric 169, 170, 176; see also Schumpeter, J. 5 open source ‘Science of the artificial’ 5 Real Networks 52; see also Listen.com Scour Exchange 71, 79, 91; see also file- Reasonable royalties 7, 13, 25, 32, 35, sharing 36, 45 Scotchmer, Suzanne 9, 72, 156 Reciprocal 57 Screenplays 27 Recording Industry Association of Search engine 153, 155 America 79, 84, 86, 87, 90 Second session 93; see also Microsoft Red Hat 170, 173; see also Linux Self-help 16–17, 18, 119, 136, 154, 155, Red Swoosh 90 156; see also digital rights Refusal to deal 135, 146–9; see also management antitrust; contractual tying; essential Sendmail 170; see also open source facilities Sequel 13, 22, 27, 34 Reichman, Jerry 156, 159 Serial Code Management System 18, 47 Reidenberg, Joel 74, 76 SESAC 103, 111; see also ASCAP; Reproduction 1, 9, 22, 27, 41, 45, 79, 85, BMI; licensing organizations

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Set-top boxes 70 Sun Microsystems 146 Shapiro, Carl 40, 50, 165, 176 Sunk costs 22, 23, 51 Sharman Networks 88–93; see also SunnComm 53 KaZaa; peer-to-peer ‘Sweat of the brow’ 135, 149; see also Shavell, Steven 94 database Shelanski, Howard 159 Superdistribution 48, 56, 73; see also Sherman Act 143, 146; see also pay-per-use antitrust; Clayton Act Synchronization right 111; see also Shrinkwrap 136, 150 performance; reproduction Sidak, Gregory 159 Significant noninfringing use 49, 83 Taylor, Elizabeth 122; see also publicity Silver Platter 57; see also LEXIS NEXIS rights Site license 56; see also LEXIS NEXIS Technology, Education and Copyright Simon, Herbert 11 Harmonization Act 110, 111; see Social welfare 5 also distance education Software 8, 16, 47, 135–68 Teece, David 42, 163 Songspy.com 71; see also music services Telemarketing 76 Sony Music Entertainment 52 Term duration 1, 2, 8, 68 Sound Exchange 110 Third party effects 4, 80, 137; see also Sound recording 50, 84, 100, 101, externalities; network effects 104–6, 109; see also musical Three Stooges 127; see also publicity composition rights Souter, David 28 Time Warner 52, 91 Space shifts 27, 85 Torts 4, 11, 32 Spam 76 Trade secrets 136, 142 Specific deterrence 80, 81, 86–8 Trademarks 117, 124 Spence, A. Michael 69 Transactions cost 2, 3, 7–9, 13–15, 16, ‘Spiders’ 152 28, 29, 32, 37, 41, 56, 60, 75, 77, Spinoffs 7, 8, 118, 124, 128, 149, 80, 101, 110, 124, 130, 138, 139, 151,156; see also database 150, 170, 172, 174, 175 Spreadsheet 139, 140 Transactions license 41 Sound recording 1, 8, 21; see also Transformative use 7, 13, 14, 21, 22, 25, musical composition 27–30, 31, 32, 33, 42, 155; see also Stallman, Richard 169, 170; see also derivative use; superseding use open source Translations 27 Staple article of commerce 83, 85 Trespass 32, 44, 80 State misappropriation 143 Trespass to chattels 152–4 Statutory licensing 102, 108 Trusted systems 93; see also digital Sterk, Stewart 26 rights management Stevens, John H. 83 Stiglitz, Joseph 159 U2 27; see also collages Stoller, Mike 84 US Congress 47, 49, 64, 67, 105 Streamcast 88–91 US Constitution 9, 150 Streaming 34, 52, 69, 70, 71, 100–116; US Copyright Office 41, 49, 63–7, 76, see also downloading 101, 107–8, 109, 110 Streamwaves 71 US Department of Justice 34, 93, 103, Substitution 23, 22–7 104, 145, 147 Superseding use 7, 21, 22–5, 42; see US Supreme Court 9, 10, 12, 25, 28, 29, also derivative use; transformative 31, 46, 80, 83, 84, 104, 119, 120, use 126, 129, 130, 145, 148, 149, 150

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Valenti, Jack 95 ‘Wheel of Fortune’, see Vanna White Varian, Hal 40, 50, 176 White, Michelle 10, 94 Vaughan, John 77 White, Vanna 118, 125; see also Versioning 50–51 publicity rights Vicarious infringement 7, 79, 81–4; see Wildman, Steven 69 also contributory infringement Williamson, Oliver 9, 39, 45, 161, 176 Video Cassette Recorder (VCR) 6, 83–4, Wind Done Gone, The 12, 35; see also 85 parody; satire Videogame 93 Windows XP 91 Virtuous cycle 92, 173; see also network Winslow, Annastasia 40; see also fair effects use Vitaminic 52, 71; see also music Winter, Edgar 127; see also publicity services rights Volokh, Eugene 134 Winter, Johnny 127; see also publicity Unfair competition 142, 143; see also rights antitrust Wippit 52; see also music services Universal Music Group 51, 52 Woods, Tiger 126; see also publicity Versioning 55 rights Voice recognition 55 World Intellectual Property Organization 47–8, 101 Waits, Tom 118, 121; see also publicity Copyright Treaty 47, 101 rights Performances and Phonograms Treaty Warhol, Andy 126, 127; see also 48, 101 publicity rights Warner Music Group 51 Yahoo 52, 153 Watermarking 47; see also encryption Yankee Rights Management 57 Webcaster 103, 105, 108, 109 Webnoize 88 Zacchini, Hugo 120, 130; see also ‘White Paper’ 47 publicity rights Weinrib, Lloyd 33, 40; see also fair use Zimmerman, Diane 45, 134 Wendt v. Host 129; see also publicity Zomba Music 52 rights

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