Episode 90: We Are a Nation of Time-Shifters

Oral Argument

Our main topic is fair use, the engine of so much cultural reuse and advancement. We’re joined by one of the doctrine’s most interesting scholars, Mike Madison. But the conversation spans: Joe’s telecomm cursing issues (0:00:36), FBiPhones and the Apple-FBI imbroglio (0:09:26), and fair use (0:28:27), including discussion of Mike’s Big Idea of social practices (0:53:03), reverse engineering, parody, video tapes, and much more.

This show’s links:

• Mike Madison’s website, writing, and blog
• FCC v. Pacifica Foundation
• FCC v. Fox (Fox II) (containing a link to Fox I)
• This American Life 267: Propriety (It’s all good, but the discussion of the legal issue in Fox is at about 19:15.)
• Amy Davidson, The Dangerous All Writs Act Precedent in the Apple Encryption Case
• John Gruber, The Next Step in iPhone Impregnability
• Oral Argument 80: We’ll Do It LIVE!
• Oral Argument 42: Shotgun Aphasia (guest Orin Kerr)
• Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment
• Apple’s motion to vacate the order to assist the FBI
• Riley v. California (and see Orin Kerr’s post about the case shortly after it was decided
• About Fair Use Week
• Ty v. Publications Int’l (Judge Posner, giving an explanation of market substitution and fair use); see also Richard Posner, When Is Parody Fair Use?
• Suntrust Bank v. Houghton Mifflin Co.
• Key, lower-court cases deciding whether university course packets qualify for fair use protection: Basic Books Inc. v. Kinko’s Graphics Corp., Princeton Univ. v. Michigan Document Services, and, most recently, Cambridge University Press v. Patton
• David Fagundes, Market Harm, Market Help, and Fair Use
• Kickstarter page for Star Trek: Axanar, an independent Star Trek film (includes the twenty-minute video Prelude to Axanar)
• Ryan Reed, Crowdfunded 'Star Trek' Movie Facing Copyright Infringement Lawsuit; Eriq Gardner, 'Star Trek' Fans Want Paramount, CBS to Do Better Job Explaining Franchise to Court
• See also the unrelated and rather amazing Star Trek New Voyages, a nonprofit web series; and Paul Post, A ‘Star Trek’ Dream, Spread From Upstate New York
• A googol
• Statement of the Librarian of Congress Relating to Section 1201 Rulemaking; about anti-circumvention exemptions
• Electronic Frontier Foundation, Victory for Users: Librarian of Congress Renews and Expands Protections for Fair Uses
• Michael Madison, A Pattern-Oriented Approach to Fair Use
• Sony Corp. v. Universal City Studios
• Joel Hruska, How Sony’s Betamax Made YouTube and Twitch Possible
• Sega v. Accolade
• Frank Pasquale, Toward an Ecology of Intellectual Property: Lessons from Environmental Ecology for Valuing Copyright’s Commons
• Randy Picker, Closing the Xbox
• Sony Computer Entertainment v. Connectix Corp.
• MGM v. Grokster
• Jonathan Zittrain, The Generative Internet
• Horace Dediu, Seeing What’s Next (featuring a wonderful graph showing the adoption rates of various technologies, including the VCR); see also Derek Thompson, The 100-Year March of Technology in One Graph
• Eduardo Peñalver and Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (see also this article-length treatment)
• Eben Moglen, Freeing the Mind: Free Software and the Death of Proprietary Culture (“It is wrong to ask, ‘What is the incentive for people to create?’ It's an emergent property of connected human minds that they do create.”)
• Jennifer Rothman, The Questionable Use of Custom in Intellectual Property
• Michael Madison, Madisonian Fair Use

Special Guest: Mike Madison.