Episode 90: We Are a Nation of Time-Shifters

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.