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Predictive algorithms are increasingly being deployed in a variety of settings to determine legal status. Algorithmic predictions have been used to determine provision of health care and social services, to allocate state resources, and to anticipate criminal behavior or activity. Further applications have been proposed to determine civil and criminal liability or to "personalize"legal default rules. Deployment of such artificial intelligence (AI) systems has properly raised questions of algorithmic bias, fairness, transparency, and due process. But little attention has been paid to the known sociological costs of using predictive algorithms to determine legal status. A large and growing social science literature teaches the effects of "algorithmic living,"documenting how humans interact with machine generated assessments. Many of these interactions are socially detrimental, and such corrosive effects are greatly amplified by the increasing speed and ubiquity of digitally automated algorithmic systems. In this Article I link the sociological and legal analysis of AI, highlighting the reflexive social processes that are engaged by algorithmic metrics. This Article examines these overlooked social effects of predictive legal algorithms and contributes to the literature a vital fundamental but missing critique of such analytics. Specifically, this Article shows how the problematic social effects of algorithmic legal metrics extend far beyond the concerns about accuracy that have thus far dominated critiques of such metrics. Second, it demonstrates that corrective governance mechanisms such as enhanced due process or transparency will be inadequate to remedy such corrosive effects, and that some such remedies, such as transparency, may actually exacerbate the worst effects of algorithmic governmentality. Third, the Article shows that the application of algorithmic metrics to legal decisions aggravates the latent tensions between equity and autonomy in liberal institutions, undermining democratic values in a manner and on a scale not previously experienced by human societies. Illuminating these effects casts new light on the inherent social costs of AI metrics, particularly the perverse effects of deploying algorithms in legal systems.

A substantial body of scholarship has accumulated demonstrating that copyright’s current structure entails legacy assumptions regarding authorship and originality. It has become commonplace to acknowledge that copyright doctrine incorporates notions of a “romantic author” who produces original texts from the force of his or her own genius. Equally routine is the recognition that such constructs foster a poor fit with communication technologies that reveal the role of the reader in creating textual meaning. Copyright law has kept pace neither with the development of new media nor with our changed understanding of authorship. This article starts a new thread in this conversation, questioning whether copyright’s legacy assumptions also incorporate classical expectations regarding narrative. As new forms of expression have evolved, so have theories of narrative. Computer games and other interactive texts have generated new theories regarding the interaction between reader, content, and technical system. Using recent copyright decisions as a window into the underlying structure of the law, this article argues that copyright entails a view of narrative that has not kept pace with our understanding of the text. The gap between copyright’s embedded assumptions and narrative theory exposes both where copyright has been and where it should be going.

Legal governance and regulation are becoming increasingly reliant on data collection and algorithmic data processing. In the area of copyright, online protection of digitized works is frequently mediated by algorithmic enforcement systems intended to purge illicit content and limit the liability of YouTube, Facebook, and other content platforms. But unauthorized content is not necessarily illicit content. Many unauthorized digital postings may claim legitimacy under statutory exceptions like the legal balancing standard known as fair use. Such exceptions exist to ameliorate the negative effects of copyright on public discourse, personal enrichment, and artistic creativity. Consequently, it may seem desirable to incorporate fair use metrics into copyright policing algorithms, both to protect against automated overdeterrence and to inform users of their compliance with copyright law. In this Essay, I examine the prospects for algorithmic mediation of copyright exceptions, warning that the design values embedded in algorithms will inevitably become embedded in public behavior and consciousness. Thus, algorithmic fair use carries with it the very real possibility of habituating new media participants to its own biases and so progressively altering the fair use standard it attempts to embody.

A great deal has been said in recent years about patent disclosure. But to say that there is a disclosure function in the patent system implies that there is non-disclosure functioning in the patent system as well. For some information to be disclosed in a patent, other information must go undisclosed; for some things to be included, other things must be excluded. In this article I review the surprising number of doctrines that allow and encourage patent applicants to remain silent about aspects of their inventions. I find that some silences in patents are inadvertent, while some are deliberate; some are necessary, while some are strategic. I conclude that a combination of such explicit and tacit silences allows patents to function as boundary objects, that is, as artifacts that have sufficiently definite meaning to be useful in disparate social worlds, but which simultaneously are sufficiently ambiguous to become objects of collaboration between disparate social worlds. Because innovation is known to occur when localized knowledge is transferred across social boundaries, this function of the patent document is critical to its stated purpose, and occurs largely because of its open rhetorical spaces. Thus, rather than fixating on enhanced disclosure, I argue that much of the critical work of the patent system can and should occur in the open rhetorical spaces where patents are silent.

Patent law has long harbored the concept of “inventing around,” under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. Copyright is not based on written claims, but because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute, and judicial readings of the statute, create boundaries around which potential infringers may technologically navigate. For example, the Aereo case recently decided by the Supreme Court involves technology that was explicitly designed to conform to noninfringing definitions of private transmission found in previous court decisions. But in copyright, unlike patent, there has been little analysis of the tendency to foster alternative technological development. This Essay draws upon previous analyses of inventing around in patent law to assess the benefits and detriments of inventing around in copyright.

Copyright law is largely a response to new media: from the printing press through radio, photocopiers, and digital computers, changes in copyright reflect the increased public availability of information reproduction technologies. But while the exclusive rights conferred by copyright are shaped by the technologies they respond to, the opposite is also true: technology is shaped in response to the requirements of copyright, altering or innovating designs to either avoid or accommodate the demands of the law. Nowhere has this dynamic interaction been more apparent than in the 2001 copyright decision against Napster and in the succeeding impact of that case. The Napster case and its progeny reveal a pattern of creative "inventing around" previous definitions of formal copyright boundaries. Such interactive re-imagining of technical and legal standards continues in current legal controversies regarding digital delivery systems such as streaming media, digital lockers, and "cloud" services, extending the pattern present in Napster and its progeny into current copyright policy.

Like other forms of intellectual property, patents have increasingly been the subject of controversy regarding their successes and failures in promoting and channeling innovation. But unlike other forms of intellectual property, patents are constituted and defined in terms of officially sanctioned texts. As a consequence, patents are deeply embedded in communities of composition, interpretation, and practice. This paper outlines how genre analysis can be applied to interrogate the "typified rhetorical action" of the patent system and its constituent communities. It argues and demonstrates that understanding the rhetorical work of patents is key to addressing current criticisms of the patent system.

Often what is not said is as significant as what is said. In its recent Myriad Genetics decision, the United States Supreme Court is curiously silent about the relationship between its holding in that case and the holding in its immediately previous patent subject matter case, Mayo v. Prometheus. This reticence is all the more puzzling given that the Court initially remanded Myriad to the lower courts for reconsideration in light of the Mayo holding. The Court's silence regarding Mayo leaves uncertain the relationship between the "products of nature" doctrine that serves as the basis for the Myriad decision, and the "laws of nature" doctrine that has been the basis of nearly all of its other subject matter cases. In this Article I assemble the clues in the laws of nature cases to suggest what the Court might have said or might still say regarding products of nature.

At common law, contributory infringement for copyright infringement requires "knowledge" of the infringing activity by a direct infringer before secondary liability can attach. In the USA, the "safe harbor" provisions of the Digital Millennium Copyright Act, that shield Internet Service Providers (ISPs) from secondary copyright liability, are concomitantly available only to ISPs that lack the common law knowledge prerequisites for such liability. But this leads to the question of when a juridical corporate entity can be said to have "knowledge" under the statute. Legal institutions have well-established processes for inferring the knowledge state of natural persons, but corporations are complex sociotechnical networks of human and non-human elements whose information state does not map well onto such inferential methods. This question is of course not unique to copyright liability; corporate entities may be responsible for "knowing" actions under a variety of applicable legal provisions, and the question of corporate knowledge is generally under theorized. But consideration of ISP "knowledge" in this context points the way to consideration of corporate epistemology that must be foundational to determining corporate responsibility in copyright protection. © The Author(s) 2011.

The theories of information ethics articulated by Luciano Floridi and his collaborators have clear implications for law. Information law, including the law of privacy and of intellectual property, is especially likely to benefit from a coherent and comprehensive theory of information ethics. This article illustrates how information ethics might apply to legal doctrine, by examining legal questions related to the ownership and control of the personal data representations, including photographs, game avatars, and consumer profiles, that have become ubiquitous with the proliferation of information and communication technologies. Recent controversy over the control of player performance statistics in "fantasy" sports leagues provides a limiting case for the analysis. Such data representations will in many instances constitute the kind of personal data that information ethics asserts constitutes an information entity. Legal doctrine in some instances proves sympathetic to such an assertion, but remains largely inchoate as to which data might constitute a given information entity in a given instance. Neither is information ethics, in its current state of development, entirely helpful in answering this critical question. While information ethics holds some promise to bring coherence to this area of the law, further work articulating a richer theory of information ethics will be necessary before it can do so. © Springer Science+Business Media B.V. 2008.

Recent scholarship has begun to assess the role of intellectual property rights in the theory of the Coasean firm. Some of this scholarship has looked at the effects of intellectual property on decisions to "make or buy" inputs to production. Other scholarship has looked at the effects of intellectual property on allocation of resources between employees and the firm. In this article, we integrate these two lines of scholarship, positing a "Goldilocks hypothesis" for the proper disposition of intellectual property rights. We argue that to properly allocate resources within the firm, property rights must be calibrated so as to avoid on the one hand misappropriation of firm resources when rights are inadequate, and on the other hand dissipation of employee incentives when rights are excessive. Similarly, we argue that to properly manage transaction costs at the edge of firms, property rights must be calibrated so as to avoid on the one hand inefficient integration into the firm of specialized functions when property rights are inadequate, and on the other hand a fragmented anticommons of specialty firms when property rights are excessive. Thus, we conclude that in order to contribute to the efficient structure of firms, intellectual property rights can be neither too weak nor too strong, but must be constituted "just right.".

The anticircumvention provisions of the Digital Millennium Copyright Act penalize both the circumvention of technical protection measures, and supplying the means for such circumvention. These prohibitions are entirely separate from the exclusive rights under copyright, causing some commentators to dub the anticircumvention right as "paracopyright." Such paracopyright effectively grants copyright holders sweeping new ability to impose terms of access on content users: Consumers who access content without accepting the content owner's terms would violate the owner's paracopyright even if the material accessed is not itself copyrighted or copyrightable. Additionally, where a particular use would be permissible under copyright law, content owners may be able to exclude the use as a condition of access. For example, the content owner might require that users contractually agree not to engage in reverse engineering or fair uses as a condition for access to the material. Content owners may use "paracopyright" to require purchase or use of related products; for example, DVD access controls require that the disc be played on approved hardware, effectively dictating the consumer's purchase of playback equipment. At some point, such leveraging of access control seems certain to overstep the bounds militated by sound policy or intended by Congress. In the past, abuse of intellectual property rights has been curtailed under the doctrine of misuse. This Article argues that because DMCA "paracopyright" is ripe for abuse, limits on overreaching may be imposed by applying the misuse doctrine in this new area. Just as improper leveraging of patent and copyright may be curtailed by application of the misuse doctrine, so improper leveraging of paracopyright should be curtailed by application of misuse. This new application of misuse doctrine may be guided by the standards established in previous applications to patent and copyright law, and may serve a similar function in regulating the excesses invited by the anticircumvention right.