Blockchain Papers

Sttphane Blemus

No abstract is available for this record.

David Fox

Abstract This chapter focuses on the characterisation and treatment of cryptocurrencies in the common law of property, using Bitcoin as the main example. It first examines how a crypto-coin might be viewed as an object of property, and more specifically whether it could make a suitable object for any regime of property rights at all, before discussing the fungibility, specificity, scarcity and exclusivity of cryptocurrencies in the context of property law. It then considers whether crypto-coins fall into either of the two conventionally recognised categories of personal property: choses in possession or choses in action. It also explores the applicability of rules of derivative transfer of title to crypto-coin transactions, and how the standard rules of following and tracing may be used for the identification and tracing of cryptocurrencies through mixtures. Finally, it looks at remedies available at common law and in equity for enforcing titles to cryptocurrencies.

Nnamdi Nwulu, Uyikumhe Damisa

This paper presents an introduction to the current state of art of the Blockchain and Smart Contract technologies. Blockchain is a fast-disruptive technology becoming a key instrument in share economy. The Blockchain-based Smart Contract aim to automatically and securely execute the needed responsibilities of a contract without the support of a centralized execution authority. The Smart Contract runs on top of the Blockchain to facilitate, execute and enforce an agreement between un-trusted parties without the interfere of third party to trust it as this Smart Contract is an executable code that runs with rules on the Blockchain. Smart Contracts have some features that serve the goals of social justice and fairness. The paper presents the basic important information about the structures of the Blockchain and Smart Contract technologies and conduct a comparison between the different methodologies used in the Smart Contracts. The issues faced within the Smart Contract technology are surveyed. The four key issues are identified as: codifying, security, privacy and performance issues. We survey case cases of usage of the Blockchain in various business sectors like real estate, voting system and supply chain. The paper aims to assist a developer to grasp the big picture of the Blockchain technology and to further assist in the decision process of suitability of the technology to a specific application area.

Karin Sein

JIPITEC 8 (2017) 2 - The European Commission’s approach in the “Proposal of Digital Content Directive” to regulate digital content contracts based on the object, rather than the type of contract, has led to a situation where a component of a product (the embedded digital content) can end up being subject to a contractual regime different from that applicable to the rest of the “smart” product. Different solutions have been proposed to solve this situation: firstly, one could apply goods rules to the whole product, including embedded digital content; alternatively, one could use split rules and subject the hardware of the product to goods rules and embedded digital content to digital content rules. One could even imagine subjecting the whole good to the digital content rules – an approach that would mean a major shift for the existing sales and leasing law. The article discusses the legal consequences of these different options, describes their advantages and disadvantages, and concludes that while there is no ideal solution to be found, the split-approach would be preferable.

Daniel Hellwig, Goran Karlic, Arnd Huchzermeier

This chapter looks beyond the novelty of self-executing ‘smart contracts’ in blockchain networks and explores developments against the background fact that commercial parties have, for centuries, used documentary credit to simulate autonomous performance. Blockchain-based smart contracts and documentary credit share three core functionalities which are essential to any effective autonomous performance, analogue or digital—they both (i) act through internalized media of exchange; (ii) operate as closed systems; and (iii) provide means of securing sufficient resources to guarantee contractual performance. Using these three functionalities as a framework, this chapter conducts a comparative analysis of mechanisms for effecting autonomous contractual performance in a commercial setting. From this comparison, a few hypotheses are drawn regarding the potential areas where smart contract technology is more likely to find fruitful application. In particular, the chapter considers potential limitations to applying smart contracts to scenarios beyond digital asset transfers, how dispute resolution mechanisms should be designed to complement (rather impair) the autonomous nature of contractual performance under smart contracts, and potential capital cost implications which might arise in some cases when parties seek to replace human intermediaries with smart contracts.

Thibaud Guillebon

International audience

Joël Emery

No abstract is available for this record.

Xun Yi, Xuechao Yang, Andrei Kelarev, Kwok‐Yan Lam · 5 authors

Kriptovalute su digitalni novac utemeljen na kriptografiji i decentraliziranom sustavu. Postoje samo u elektroničkom obliku kao jedinstveni digitalni novčići ("tokeni"). Iza njih ne stoji autoritet države niti ih je moguće svojevoljno proizvesti. Rad se fokusira na značajkama, postavkama, razvoju i svim međuodnosima važnih ekonomskih faktora koji utječu na kriptovalute. U prvom poglavlju navedena su obilježja kriptovaluta. Drugo poglavlje daje primjere i govori o primjeni kriptovaluta u svakodnevnom životu. U trećem poglavlju je raspravljano o trenutnim i budućim regulacijama najmoćnijih zemalja svijeta (G20) , kao i njihovoj zajedničkoj suradnji u želji za jedinstvenim i standardiziranim pravilima, a sve u svrhu što kvalitetnijeg nadzora nad kriptovalutama kako bi se spriječile malverzacije i zaštitili potrošači. Četvrto poglavlje govori o inicijalnoj ponudi kovanica, a peto poglavlje je namijenjeno sigurnosti kriptovaluta. Cilj istraživanja je utvrditi koliko je studentska populacija upoznata i usmjerena prema novim oblicima digitalnog novca, koje značajke kriptovaluta smatraju pozitivnima, a koje negativnima i u kojoj su mjeri investirali ili su spremni investirati dio svojih ulaganja u kriptovalute i sl. Metode istraživanja korištene u radu su kompilacija na temelju proučavanja postojeće literature o temi rada, prikupljanje i analiza podataka vezanih uz kriptovalute, ponajprije podataka vezanih uz cijene i tržišnu kapitalizaciju, anketiranje studenata Ekonomskog fakulteta u Rijeci i metoda dedukcije putem koje su pokazane sve važne karakteristike i obilježja kriptovaluta. Na temelju provedene ankete u kojoj je sudjelovalo 90 studenata Ekonomskog fakulteta u Rijeci zaključak toga dijela istraživanja je da je mlada populacija dobro upoznata s kriptovalutama i njenim glavnim značajkama, ali i određenim nedostatkom informiranosti o tehnologiji (trećina studenata nije čula za pojam "blockchain") i nedovoljnoj odlučnosti oko investiranja i trgovanja u kriptovalute. Povrh toga, dokazan je i negativan utjecaj hakerskih napada i određenih kriminalnih radnji, kao i nestabilnost tržišne cijene na povjerenje studenata, ali i ukupne populacije vezane uz globalni financijski sustav u kriptovalute. Ishod istraživanja omogućio je da zaključimo kako su kriptovalute trenutno u ranoj fazi razvoja i nisu se dovoljno implementirale za široku primjenu u trgovini roba i usluga ili općenito kao sredstvo razmjene. Faktor koji je uključen u istraživanje kako bi opisao veličinu, odnosno obujam neke kriptovalute je tržišna kapitalizacija u dolarima. Temeljna ideja ovog rada je informirati čitatelja o pozitivnim i negativnim značajkama koje se se vežu uz kriptovalute. Na taj način čitatelji će biti bolje informirani i educirani o potencijalnom riziku ulaganja u kriptovalute, kao i većoj razini zaštite prilikom posjedovanja neke digitalne valute.

Nick Vogel

Bitcoin’s popularity increased as its value increased and people became excited about the prospect of a trustless, decentralized currency that could be used on the Internet. Within the last two years, however, people and organizations began exploiting the potential of the block chain that powers the bitcoin network. These people realized that the block chain—a transparent public ledger that cannot be altered—can be used for more than digital currency. One such organization calls itself Ethereum and its developers plan to use block chains to allow decentralized autonomous applications to operate free of government censorship or corruption. While such a network would have a profound effect on society—allowing trustless voting, uncensored social networking and the like—its impact on copyrights could be devastating. This paper argues that the emerging, decentralized Internet (also known as Web 3.0) will be the straw that breaks the copyright owner’s back. This paper argues that, with block chain technology and decentralized applications, those buying and selling unauthorized copies of copyrighted material cannot be subject to court injunctions; making enforcement of copyrights nearly impossible on a decentralized Internet. This paper then proposes that copyright holders get out in front of the problem by embracing a decentralized Internet. This can only be done by drastically reducing the price of copyright licenses. In other words, by offering cheap licenses at the dawn of Web 3.0, copyright holders can instill a sense that it’s better to be safe than sorry when it comes to the ongoing struggle between technology and copyrights.

Caroline Ayres Teichner

The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can be found in courts' historical treatment of the false-marking statute, the legislative history and policy rationales underlying § 292, and analogous legal contexts. More crucially, the Due Process Clause of the Fifth Amendment mandates a higher burden of proof to protect the important interests at stake for false-marking defendants.

Maciej Bernatt

The concept of procedural fairness plays an important role in the enforcement
\nof competition law, which must not only be effective but also fair. Thus, legal
\ninstitutions should guarantee a proper level of protection of the values of procedural
\nfairness. This paper is dedicated to the possible conflict between the guarantees
\nof procedural fairness that find their expression in the right to be heard and in the
\nprotection of confidential information.Both guarantees, the right to be heard on the one side, and the protection of
\nconfidential information on the other, should be properly balanced. Unlike EU law,
\nPolish legislation and jurisprudence proves to be inefficient in this respect. Article
\n69 of the Competition Act fails to show clearly what the limits of the protection
\nof confidential information are in situations when the right to be heard of other
\nparties of antitrust proceedings is at stake. Business secrets are predominantly
\nprotected over the right to be heard also in the jurisprudence of Polish courts.
\nBy contrast, the Competition Act does not seem to properly protect confidential
\ninformation other than business secrets. Such situation poses a risk for the adequate
\nlevel of protection of procedural fairness in Polish antitrust enforcement. Moreover,
\nneither Polish legislation nor jurisprudence explains to companies what shall prevail
\nin the case of a concrete conflict between the protection of business secrets and
\nthe right to be heard. An answer to this questions is needed seeing as proof of a
\ncompetition law infringement which should be accessible to the parties, can at the
\nsame time constitute a business secret.

Hannibal Travis

In an information society, wealth and power are increasingly linked to access to knowledge and control over telecommunications media. Struggles over access to digital media in particular are presenting uniquely contentious First Amendment problems. The creation of about 200 million blogs worldwide has triggered legal action and legislative reform aimed at alleged trademark infringement by bloggers and cybersquatters. Authors and publishers seek expanded rights to curtail unauthorized digital uses for which they are not being compensated, and have sued Google for digitizing and indexing tens of millions of the world's books and periodicals. Finally, Google, Yahoo!, Microsoft, and other Internet and e-commerce firms are trying to beat back plans by the nation's cable and telephone companies to finance upgrades to their networks by levying discriminatory fees on search engines, as well as on Internet content providers and aggregators. Internet users have often been on the losing side of these controversies, as the economic model increasingly adopted by the Supreme Court is that in order to reward corporations for collecting or disseminating information, its free flow in print and electronic form must often be impeded, and its cost to the user increased. This model threatens to empower broadband companies, copyright holders, and trademark owners to restrict the right of the public to utilize digital media for purposes of free speech. This Article argues that digital media such as the broadband Internet, the World Wide Web, and the blogosphere should be at least as free as the press was at the time that the First Amendment was ratified in 1791. In other words, bloggers could not be enjoined or fined for tarnishing the trademarks or goodwill of their employers or other corporations, for trademark law did not prohibit trademark dilution or other non-competitive uses in 1791. Similarly, Web sites and search engines such as Google could not be restrained from digitizing, indexing, andproviding short previews of books and periodicals, for copyright law in 1791 permitted abridgements, adaptations, reviews, and other value-added uses of copyrighted work. Finally, the cable and telephone companies would not be at liberty to levy discriminatory access fees upondigital media outlets, for their ability to monopolize local telecommunications networks is a legacy of anticompetitive state and federal exclusion of new entrants over the past century in violation of the First Amendment. The framers of the First Amendment would no more have countenanced an attempt by Congress and the federal courts to allow private entities enjoying the fruits of past official monopolies to restrain the freedom of speech over an essential facility such as the Internet than they would have endorsed the creation of a series of local book publishing or newspaper monopolies. The framers presumed that information would flow freely and cheaply to citizens and consumers, enabling them to ascertain their true interests without difficulty, and to make decisions accordingly. As Congress considered ratifying the FirstAmendment, Madison declared that by it the liberty of the press is expressly declared to be beyond the reach of this Government. The Supreme Court has construed most of the other amendments in the Bill of Rights to provide at least as much protection against infringement asexisted under the common law in 1791. Opponents of net neutrality requirements have opined that the First Amendment rights of corporate owners of telecommunications infrastructure should trump the First Amendment rights of individual speakers and users of telecommunications media. Under this view, the foremost free speech interests on the Internet are those of broadband infrastructure owners, rather than the senders and recipients of Internet speech such as Web content, blogs, eBooks, or online videos. This line of argument misconceives both the distinctive character of the Internet andthe purposes for which the First Amendment was enacted. The Internet and its principal applications such as the World Wide Web grew as rapidly as they did because they were designed to be open, flexible, and uninhibited by gatekeeper control. The high degree of concentration in the broadband market, the inability of many consumers to switch broadband carriers, and plans by broadband providers to discriminate among different sources of Internet content combine to threaten the Internet as an open, decentralized, low-cost communications platform. TheFirst Amendment is not offended by regulations designed to ensure that firms awarded local telecommunications monopolies by the government exercise their power to restrict mass communication in a manner consistent with the public interest. The overriding purpose of the FirstAmendment is to ensure that readers, listeners, and viewers of public debates obtain access to a wide variety of facts and opinions so as to be able to discern the truth as best they can. Even privileging the speaker's perspective, surely the First Amendment interests of the creators, editors, and aggregators of Web sites, blogs, and online videos - rather than the supposed speech interests of the owners of the wires along which content travels - should prevail in the event of a conflict.

Tomas A. Lipinski

As Jack Black's character in the recent movie School of Rock instills in his young charges, “[I]n this life you can't win… because the world is run by the man… there used to be a way to stick it to the man, it was called rock'n roll… but guess what, oh no the man ruined that too with a little thing called MTV.” View MTV as the epitome of everything that is wrong with the music industry and you pretty much have the essence of the philosophical-musical dichotomy between how the industry and consumers each perceive the state of music. Jack Black's character, who poses as a substitute teacher at an elite preparatory elementary school, further admonishes his students: “If you want to rock, you gotta break the rules, you gotta get mad at the man.” One battle in the war between the “downloaders” (consumers) and the industry (the “man”) came to a head in the long-awaited decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. The decision offers several important lessons for those with some stake or interest in the continued battle between copyright owners and copyright users - or abusers. This article, the first of two, discusses the background legal principles and surrounding case law involved in Grokster and proceeds to review the holding of the decision and the facts on which it was based. A later article will discuss a possible “safe harbor” for fair use and the potential impact of the ruling on future Internet technologies and on various stakeholders. Most readers are aware of the concept of copyright infringement. In recent years one could hardly escape discussion of it, especially in light of the publicity that lawsuits against individual file-sharers generated in the national media. Philosophers among us might think such strong-arm techniques against un-named defendants are unethical or at least that responsibility for wrongdoing ought to be shared with those who facilitate infringement and not the end-user alone. Likewise, economists among the Bulletin's readership might wonder if the transaction cost of pursuing remedy from some 12-year-old downloader or a college student struggling to make ends meet is further proof of the market failure inherent in the copyright law. Actually, the copyright law reflects these same sorts of quandaries. The concept of secondary liability, in particular contributory infringement, reflects the judicial recognition that at times a third party should share in the responsibility for another's primary or direct infringement and that pursuit of these actors is a fair and efficient form of risk-shifting within the law. While the concept is well developed in the lower courts, and one could argue that a version is codified in the Copyright Act as amended (17 U.S.C.§ 512) in 1998 by the Digital Millennium Copyright Act, the concept remains a product of the common law. In addition, the Supreme Court has had little occasion to address the matter of secondary liability. New technologies have twice presented opportunities for the Court to consider the matter - first in 1984 and some 20 years later this past spring (oral arguments were heard in March) and summer. In 1984 it was the videocassette recorder (in Sony Corp. of America, Inc. v. Universal City Studios), and in 2005 it was P2P or peer-to-peer file sharing systems in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. a degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission; the fact of an act's having been done knowingly, especially as a ground for civil damages or criminal punishment - p. 1373. As a result, a claim of contributory infringement contains an element of knowledge; that is, the contributing or contributory infringer must know or have reason to know that the infringing behavior of another will be the result of its conduct. This requirement ensures that accidental or ignorant conduct is not mistaken for bad intent. Second, a contributory infringer must engage in conduct that contributes to the direct infringement of another person in some substantive way, by doing something or in some circumstances by refusing to do something (for example, not intervening to prevent continuing infringement). As with vicarious liability (another species of secondary liability), if there is no direct infringement there can be no contributory liability. Under the Sony standard, adopted from the patent law's staple article-of-commerce doctrine, the Supreme Court in 1984 created a safe harbor for entrepreneurs: simply because a product could be put to infringing use, the conduct of producing and distributing the product (or refusing to cease such operations) did not trigger liability as long as the technology could be capable of substantial non-infringing use. Moreover in a somewhat clairvoyant and telling footnote the Sony dissent observed that “[t]his case involves only the home recording for home use of television programs broadcast free over the airwaves. No issue is raised concerning cable or pay television, or the sharing or trading of tapes” [Sony Corp. of America, Inc. v. Universal City Studios, 464 U.S. 417, 459, n.2 (1984) (J. Blackmun, dissenting) (emphasis added)]. Thus the fair use the Supreme Court bored out in 1984 for consumers came in the form of time-shifting, not in the guise of all consumer recording such as library-building, back-up copying or transferring formats from cassette to CD or from CD to MP3 - so-called space-shifting. In other words the protections of Sony's safe harbor for substantial non-infringing use do not apply in instances where the questionable activity involves the use (reproduction and distribution) of copyrighted content obtained from sources other than those offered for free through various mass media such as radio (but not feebased Internet services) or broadcast television (as opposed to cable or satellite). In other words it applies where the facts of Sony apply – to consumers using the recording technology to tape movies and other content that air on broadcast television networks such as NBC, CBS and PBS. Networks are not the source of most P2P content where much of the source content is recorded music (CD) or movies (VHS or DVD) first purchased by the consumer. Moreover, the copying done by the Sony consumer is one-to-one, not one-to-many. Most important, the use of the technology in Sony was limited to circumstances where consumers made a limited, time-shifted use of the copyrighted work, one of the most misunderstood aspects of the decision. Thus, obtaining CDs, VHS tapes or DVDs from your local public library - a free distribution authorized under section 109 of the copyright law - in order to build a library at home would not be within the Sony safe harbor, at least according to one appellate court (In Re Aimster Copyright Litigation, 334 F.3d 643, 647 (7th Cir. 2003)). The Sony Court discussed the nature of the alleged contributory technology: some uses to which the technology, the Beta machine, could be put were conceivably infringing, so-called “library building” for example, but others were fair, e.g., a consumer might buy or rent a video or watch a home movie of family outings. In other words, a substantial number of non-infringing uses were possible. Therefore the Beta machine, like the VHS recorder of today, is not a contributory technology (Sony Corp. of America, Inc. v. Universal City Studios, 464 U.S. 417, 442 (1984)). In 1984, the Court used this distinction to develop a test to help courts determine whether a certain technology contributes to the infringement of others to such an extent that its producers should be deemed to have engaged in contributory conduct and share in the legal responsibility for infringing uses others make of it, that is, be liable for contributory copyright infringement. The question for the Court in Grokster was whether P2P is such a technology as well. [e]ven when there are non-infringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the services must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses. - In Re Aimster Copyright Litigation, 334 F.3d 643, 653 (7th Cir. 2003) (all emphasis added). How this factor is to be applied is not further elucidated by the court, nor is the attractiveness of this standard to courts outside the Seventh Circuit determinable. However, Justice Ginsburg in her concurring opinion cited this cost-benefit concept in a favorable comparison to the decision in A&M Records, Inc. v. Napster, Inc., [Metro-Goldwyn-Mayer Studios Inc. v. Grokste, Ltd., __ U.S. __, 125 S.Ct. 2764, 2784, at n.1 (2005) (Ginsburg, J., concurring)] in which the Ninth Circuit offered an alternative articulation of the legal standard applicable in P2P litigation [A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)]. We are mindful that the Seventh Circuit has read Sony's substantial non-infringing use standard differently… However, Aimster is premised specifically on a fundamental disagreement with Napster 1's reading of Sony-Betamax… Even if we were free to do so [entailing an overrule of Napster] we do not read Sony-Betamax's holding as narrowly as does the Seventh Circuit…Implicit in the Aimster analysis is that a finding of substantial non-infringing use, including potential use, would be fatal to a contributory infringement claim, regardless of the level of knowledge possessed by the defendant. - Metro-Goldwin Studios, Inc. v Grokster, Ltd., 380 F.3d 1154, 1162, at n. 9 (9th Cir. 2004), reversed and remanded, __ U.S. __, 125 S.Ct. 2764 (2005). In June of 2005, the U.S. Supreme Court in a unanimous decision authored by Justice Souter (with concurrences by Justices Ginsburg and Breyer) held “that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties” [Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., — U.S. —, 125 S.Ct. 2764, 2770 (2005)]. The question before the Court was “under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product.” While it might appear at first glance that the opinion represents a retrenchment from Sony, it is clear from Justice Souter's opinion that the rule and safe harbor of Sony remains the law of the land. However, the Court did identify an additional mode of behavior that can subject an entrepreneur to liability as a contributory infringer. This addition is significant and offers some indication of how the Court might respond when future issues arise. In an interpretation of nuance, the decision may also signal the proper judicial attitude toward Internet piracy today. Liability under our jurisprudence may be predicated on actively encouraging (or inducing) infringement through specific acts (as the Court's opinion develops) or on distributing a product distributees use to infringe copyrights, if the product is not capable of “substantial” or “commercially significant” non-infringing uses. - (Ginsburg, J., concurring) The intended impact will be to “deter them [entrepreneurs] from distributing products that have no other real function than - or that are specifically intended for - copyright infringement, deterrence that the Court's holding today reinforces (by adding a weapon to the copyright holder's legal arsenal).” (Breyer, J., concurring) This is the first point of significance in the opinion. The Court is more than willing to fashion a remedy if it believes a wrong must be righted. Moreover, the Court may look to other regimes within the intellectual property system, even if it means creating a new form of liability, such as borrowing again from the patent law. Not only can one induce infringement with respect to conduct in relation to a particular consumer (the previous articulation of contributory conduct developed in the lower courts) but the mere “distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe. In such a case, the culpable act is not merely the encouragement of infringement but also the distribution of the tool intended for infringing use.” While Sony involved distribution of a product to be sure, the additional element of inducement was absent. As a result of the Court's opinion, the Ninth Circuit decision in the Grokster case was vacated and remanded for further proceedings. The immediate significance is that Grokster and StreamCast (the two defendants in the case), as well as other similarly situated defendants, may be subject to secondary liability for copyright infringement if those defendants “distribute a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, [if supported by the evidence, the defendant] is liable for the resulting acts of infringement by third parties.” Figuring the impact of this ruling requires a closer look at the opinion, examining what the Court said as well as what the Court left unsaid! But MGM's evidence gives reason to think that the vast majority of users' downloads are acts of infringement, and because well over 100 million copies of the software in question are known to have been downloaded, and billions of files are shared across the Fast Track and Gnutella networks each month, the probable scope of copyright infringement is staggering. The evidence weighed heavily against the defendants and the infringing nature of most downloading and uploading. In fact Grokster and StreamCast conceded this point in their brief. Moreover, internal documentary evidence (there's always a memo) suggested that both Grokster and StreamCast desired to fill the empty shoes Napster left behind, exploiting the extant market for users desiring a vehicle to continue their infringing quests for copyrighted recordings and other material. Advertisements and other external communications reflected the outward expression of this internal desire. The Court appeared less concerned with the fact that some amount of non-infringing material appeared on Grokster and StreamCast systems (or P2P systems in general for that matter) or that this material is put to non-infringing uses. Of greater concern was the fact that this non-infringing material accounts for very little of the actual use made of the available material. The Court was not persuaded by arguments that Grokster, StreamCast and similar P2P systems are widely put to legitimate uses; indeed, the court recognized, as have lower courts, the sheer scale of piracy facilitated through digital and Internet technologies. Here, there has been no finding of any fair use and little beyond anecdotal evidence of non-infringing uses. In finding the Grokster and StreamCast software products capable of substantial non-infringing uses, the District Court and the Court of Appeals appear to have relied largely on declarations submitted by the defendants. These declarations include assertions (some of them hearsay) that a number of copyright owners authorize distribution of their works on the Internet and that some public domain material is available through peer-to-peer networks including those accessed through Grokster's and StreamCast's software. - (Ginsburg, J., concurring) Nor does the Patent Act's exemption from liability for those who distribute a staple article of commerce, extend to those who induce patent infringement, § 271(b). But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law… Thus, where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability. This finding is the second significant point that can be made. The Supreme Court appears unmoved by the mere possibility of non-infringing uses and more influenced by the improbability of such uses. It might be going too far to conclude that the Court is as disdainful of Internet piracy as some recent lower courts have been [In Re Aimster Copyright Litigation, 334 F.3d 643, 645 (7th Cir. 2003); United States v. Elcom Ltd., 203 F.Supp. 2d 1111, 1132 (N.D. Cal. 2002)], but the interjection of such sarcasm does suggest that claims of non-infringing uses from subsequent defendants will be suspect. Legitimate uses will need to be well documented. The Court, like others in positions of policy formation, such as Congress, appear to recognize all too well the scope of the problem in spite of perhaps grasping only the proverbial elephant's trunk. If some readers here are in doubt regarding the extent of piracy on the Internet, do the math as did the Court: “over 100 million copies of the software known to have been downloaded” times the “billions of files shared across the Fastrack and Gnutella networks each month” equals a figure reflecting that “the probable scope of copyright infringement is staggering.” Factor in the variety of other P2P systems capable of similar exchanges, such as intranets, and the amount of infringing traffic is more likely astronomical. Regardless of the actual numbers, the perception of members of the judiciary reflected in court opinion as well as expressed by members of Congress paints a view of decision-makers short on patience and long on punishment. For example, after holding hearings in 2003 on the P2P rampage and other copyright abuse among student Internet users [see <http://commdocs.house.gov/committees/judiciary/hju85286.000/hju85286_0.htm> and <http://hsgac.senate.gov/index.cfm?Fuseaction=Hearings.Detail&HearingID=120>], legislation was introduced that would offer plaintiffs the opportunity to sue those who aid or abet another's infringement [S. 2560, 108th Cong., 2nd Sess. (2004) (Inducing Infringement of Copyright Act of 2004)]. What do these attitudes and the new law spawned in Grokster represent for the future of innovation in Internet technologies? Perhaps we must wait to see how the lower courts interpret Grokster before the decision's full impact can be assessed, and, of course, Congress might decide to tinker again with the copyright law. Several additional comments from the decision, however, may point to the basis for such future articulation, and we will explore them in Part 2 of this article.

Valentina Jacometti, D.L.M.T. Dankers-Hagenaars

According to the facts proven, the claimant was in the supermarket ?Torre Lucas? in the city of Murcia on 28 August 1994. There he took a glass bottle containing white lemonade from one of the shelves in order to buy it, which exploded just as he was placing it in a shopping bag. The shards reached his face and caused, among others, injuries to the iris and cornea of the right eye as a result of which his eyesight was reduced. The bottle has been identified as belonging to the commercial brand ?La Casera?. It is a product which is produced by the defendant, while a different firm, ?Carbónica Murciana S.L.?, is in charge of bottling and commercial distribution. It has also been proven that the only cause of the injuries was the low quality of the product destined to be sold, since the bottle exploded because it was defective. The claimant claimed the amount of 36.520.000 pesetas from the three companies mentioned above. The Court of First Instance partially admitted this claim in a decision on 18 April 1996; the commercial firm ?La Casera S.A.? appealed against the aforementioned decision before the Appellate Court of Murcia. On 21 March 1997 this Court rejected the appeal. The defendant brought an appeal before the High Court, which was denied. In its ruling, the Court rejected the arguments brought by the defendant, amongst them the following assertion. The defendant alleged that the claimant had not proven that the product was defective, according to Article 5 of the Products Liability Act. The point is that the explosion took place without the product having being manipulated by the consumer in any way; this means that the explosion was caused by the product itself. According to Article 3 of the Act referred above, a product is defective when it does not meet the safety that a person could lawfully expect from it, taking all circumstances into account and, in particular, the presentation of the product, the reasonably foreseeable use and the time when it was put into circulation. At any rate, a product is defective when it does not meet the safety normally offered by all the other items of the same series. In the case at stake it has been sufficiently proven that the bottle which caused the injuries to the claimant markedly lacked the safety required. Therefore, since it is an unsafe product, it was obviously defective in itself as from the time when it was put into circulation. The concept of defect laid down by the Act, which follows the EU Directive 85/374 EEC, is a flexible and broad one. In addition, since there is no place for subjective elements, the safety has to be seen as a requirement of the product, because every consumer is entitled to be able to use the product without any risk for his or her physical or patrimonial integrity. The existence of the defect results from the concept established by the Act 22/1994 and has to be connected to safety that the product must offer. If this requirement is not met, the product has to be deemed defective, thereby reversing the burden of proof, since it is the manufacturer who has to bring evidence that the product is suitable or that there are other causes that could exonerate him or her from liability.

Harvey S. Perlman

Law and economics scholarship has contributed much to our understanding of both the nature of intellectual property rights generally and the features of individual intellectual property regimes. Indeed it is hard to imagine a field other than antitrust law that is so explicitly governed by economic thinking. In authorizing the copyright and patent systems, Article I, Section 8 of the United States Constitution expressly incorporates a social welfare imperative as the basis for its grant of power.1 Certainly economists and economically oriented legal academics have given the field the attention it is due. I am far from being a sophisticated economic thinker, although I admire those who are and the insights they have brought to my understanding of what is at stake in intellectual property. My comments are more practical in nature. They involve the tension that arises throughout the law of intellectual property and unfair competition between protection of intellectual achievement and public access to intellectual products. This tension is reflected in the central questions: When are intellectual property rights appropriate and what is their proper scope? Economics seems to provide an apt description but an inadequate basis for answering these questions. And there lies, in my view, one of the reasons for the trend throughout intellectual property to enlarge property rights at the expense of access. For those of us who deem this trend problematic, economic analysis seems increasingly unhelpful in formulating a response protective of the public domain. The tension between protection and access pervades intellectual property and unfair competition law. The casebook Ed Kitch and I coauthored uses it as one of the themes that tie the disparate chapters of the book together.2 Protection or access is at issue whether the case involves a local barber who wants an exclusive property interest in the barbering business of Howard Lake, Minnesota,3 or the promisee of a contract who claims to have a property interest in the future performance of the promissor,4 or the firm that claims a property interest in the firm's investment in the human capital of its workers,5 or the trademark owner who asserts a property right over portions of the English language,6 or the celebrity who seeks to capture gains from his or her celebrity status,7 or the more traditional cases involving constitutionally recognized authors and inventors. There should be little doubt that the trend throughout intellectual property and unfair competition is toward greater protection and diminished access.8 The Digital Millennium Copyright Act9 is a notorious example of a protectionist advance, as is the apparent willingness of the Patent and Trademark Office and the Federal Circuit to expand the realm of patent protection.10 But the trend is noticeable elsewhere as well. The adoption of the trademark dilution cause of action11 and the expanding protection against cybersquatters12 have refocused trademark law away from its traditional function of prevention of consumer confusion toward one that confers substantial property rights on trademark owners. 13 The protection of trade dress without proof of secondary meaning also favors property rights over rights of access.14 A similar rule applied to product designs and configurations would have created an even more damaging effect on competition, but the Supreme Court happily required proof of actual distinctiveness. 15 The classic misappropriation doctrine announced in International News Service v. Associated Press represents the power of the protectionist rhetoric over substance.16 The Restatement (Third) of Unfair Competition recognizes that the case offers little in terms of a coherent principle and has been of only marginal significance.17 Proponents of access may take heart from the doctrine's limited application, and yet it is currently asserted as an appropriate model in defense of data base protection18 and it continues to attract judicial adherents. …

B. Balamurugan, T. Poongodi, M. R. Manu, S. Karthikeyan · 5 authors

The moving image archive of the US Agency for International Development (USAID) includes a copy of the film The Double Day (1975), cataloged in the series Moving Images Relating to International Development Programs and Activities, 1979–1991, a collection of more than eight hundred titles “created to provide information on assistance programs supported by the Agency for International Development (AID).”1 Yet, The Double Day does not, in fact, directly depict or engage with any specific development or aid initiative. Instead, the film—directed by US-based Brazilian filmmaker Helena Solberg as part of the International Women’s Film Project collective and described as “the first Latin American feminist documentary”—examines the gendered dynamics of paid and unpaid labor through the testimonies of women from Argentina, Bolivia, Venezuela, and Mexico.2 Its presence in the USAID archive is likely a consequence of its funding history, having received support from the Inter-American Foundation, a USAID-affiliated entity; the development agencies of Denmark, Norway, and Sweden; the United Nations Development Program; and US philanthropist Calvin Cafritz.3These transnational funding structures not only enabled the film’s production but also determined its archival destination, which renders legible its place within the history of international development.4 The Double Day’s institutional trajectory reflects the shifting configurations of aid, gender, and media during a historic moment when women were being repositioned at the center of what Arturo Escobar has described as development’s “regimes of visuality.”5 Especially relevant to The Double Day’s production and exhibition was the international institutional framework of Women in Development (WID). Emerging in the early 1970s and culminating in United Nations’ proclamation of 1975 as International Women’s Year, WID emphasized women’s participation in the global economy as both an index and mechanism of development. Indeed, The Double Day premiered at the World Conference of the International Women’s Year, held in Mexico City.6 Within this context, the film forms part of a broader trajectory of media use by international organizations that intensified during the 1970s—as best exemplified by Media Habitat, a collection of 236 documentary films commissioned by the United Nations to represent urban and rural development initiatives for the 1976 Habitat Conference on Human Settlements in Vancouver. As a policy-shaping initiative, Media Habitat primarily featured films from the Global South intended not only to illustrate but also to help codify standardized audiovisual markers of “underdevelopment” that determined access to the emerging global economic order and to international aid.7Framed in relation to these international institutions and their operations, The Double Day could similarly be considered “development media”—exemplifying the type of nonfiction media produced and distributed outside of the commercial film circuits whose aspects and subcategories have been variously described in scholarship as nontheatrical, useful, sponsored, institutional, industrial, educational, or nonprofessional/amateur.8 Scholars working in this area have emphasized the institutional contexts of such media’s production and exhibition infrastructures as shaping its instrumentalized effects. From a feminist perspective, such an approach is crucial to grappling with the broader question of how “gender impacts [these works’] shape, content, and trajectories.”9 Yet we also argue that, taken in isolation, the institutional and infrastructural contexts are insufficient to account for the complex relationship between media and development, potentially not only limiting our understanding of the reach and impact of development but also distorting our interpretive conclusions. For example, to categorize The Double Day as “development media” is to overlook the film’s place within Solberg’s directorial oeuvre, as well as within the histories of both transnational women’s filmmaking and radical Latin American documentary cinema to which it simultaneously belongs. Such exclusive framing is especially limiting given that women globally were disproportionately engaged in nonfiction production throughout the twentieth century—sometimes by political choice but more often due to structural exclusions from fiction filmmaking. Even in nonfiction historiography, however, institutional media has remained particularly marginal, reinforcing hierarchies that separate such works from the aesthetic and authorial frameworks through which film history has been constructed.10 This marginalization not only tends to erase women’s contributions but also presumes a “weak” or derivative authorship, rendering these films unworthy of the interpretive attention needed to apprehend their aesthetic and political complexity.11 The same dynamic is likely to structure assumptions about “development media” as well.Categorizing The Double Day exclusively within this category would further prompt us to assume top-down institutional analyses that have been characteristic of both institutional media methodologies and the scholarship on development at large. This, in turn, would risk obscuring this film’s radical Marxist approach to women’s labor as well as its concrete contribution to activism and its attendant grassroot structures. In Mexico City, The Double Day became a catalyst for feminist solidarity in practice when one of the film’s protagonists, Bolivian activist and trade unionist Domitila Barrios de Chungara, was invited to participate in the Tribune of Non-Governmental Organizations held alongside the official UN conference.12 There, Barrios de Chungara challenged Western feminist priorities by reframing the debate around labor, class, and imperialism, helping to articulate a shared Third World feminist agenda that significantly departed from the developmentalist vision of the United Nations and USAID.13 Seen through the lens of activist media, The Double Day helped forge transnational solidarity networks by enabling information exchange across the diverse voices that shaped its making—from the women featured in the film to the activists who circulated it—revealing a considerably more dynamic interplay between institutional and grassroots or contingent media practices.Moreover, the film’s Latin American context—reflected in Solberg’s formation in Brazil as the only woman in Cinema Novo, its focus on women from across the region, and its premiere and key reception in Mexico City—requires grappling with the regional specificities of the very notion of development in its multiple iterations.14 Far from being an epistemological and political framework imposed solely by the Global North, both the practices of development and the theoretical foundations of developmentalism (understood as a broad and polysemic set of discourses) were shaped through the active participation of Latin American economists.15 Within this iteration, underdevelopment, as a constitutive notion of developmentalism, became central to a distinctly critical strand, which by the late 1960s became known as the dependency theory.16 This same approach is reflected in some of the best-known Latin American radical film manifestos of the time, arising precisely from the same milieus to which Solberg belonged.17These various considerations of the film’s history illustrate the methodological challenges confronting feminist scholars seeking to assess the impact of development on media projects, theories, and practices. To disregard the developmentalist context of such works by emphasizing their political aesthetics and affects risks reproducing a romanticized narrative of heroic resistance (albeit from a feminist perspective). Yet to engage exclusively with their institutional and material infrastructures risks naturalizing developmentalism’s political and epistemological foundations at the expense of the goals and beliefs of the many women who participated in these projects. The contradictions and ambivalences that animate such histories call for feminist frameworks capable of holding both institutional complicity and radical possibility in view.This challenge resonates with ongoing debates about the politics of the archive and what Allyson Field has termed “the practice of informed speculation.”18 As she reminds us, feminist, queer, and decolonial methodologies have long taught us to “press at the limits” of the archive to “inoculate our scholarship against our evidence’s afflictions.”19 The concern that the evidence we draw on in our analysis reproduces the very structures and blind spots of the dominant ideology and therefore shapes and delimits our interpretation becomes particularly urgent when engaging the developmentalist media corpus. Informed speculation offers an alternative by inviting the experimental, creative, and speculative rewriting of history, mobilizing the archive “in a project that runs counter to the original purpose, or the imperative to preserve, or the conditions that led to erasure.”20 Yet, as Field cautions, such speculative gestures must remain grounded in a deep and “intimate familiarity with the archive” that we are working with and against. Building on this imperative, we suggest that the developmentalist archive, in particular, demands expansion and critical reconsideration in ways that unsettle the very disciplinary frameworks through which it has been studied as well as the larger institutional contexts for such knowledge production.Our focus on The Double Day in the opening of this introduction thus foregrounds the entanglements of institutional and grassroots forces, local and international contexts, structural and interpersonal relations, and creative and economic factors that have shaped not only this film but the broader ecosystem of development media projects—and their preservation—over time. Addressing such a constellation involves transgressing methodologically entrenched divisions between political economy and aesthetics, between material infrastructures and affective regimes; reckoning with divergent periodizations across film history and world economics; and situating these within the local specificities of women’s movements and international institutional programs. It also demands attentiveness to the coexistence of multiple, and sometimes competing, understandings of development—each historically, geographically, and ideologically situated.We imagine this special issue as an opening toward a critical dialogue, not only about how such an approach might be enacted in practice but also about the far-reaching ways development paradigms have shaped both our objects of study and the contours of the field itself. The decision to center institutionally sponsored films across all the essays in this issue is deliberate and enables us to highlight institutional critique as a vital methodological imperative within our analytical framework. Created within the frameworks of international organizations, state agencies, or NGOs, these films’ histories make legible the institutional logics that underwrite their production. Yet our critique does not stop at these specific entities. Rather, we argue for a broader interrogation of the political conditions and institutional infrastructures that shape media and knowledge production more generally. This includes contemporary corporations embedded in the digital platform economy, from streaming services to the rapid expansion of AI. Equally critical is a reflexive examination of academia itself, where departments of economics, political science, and centers for development have played a formative role in producing and legitimizing developmentalist theories and policy frameworks. While the humanities and arts have at times offered critical alternatives, they have also frequently mirrored and reinforced many of the same developmentalist assumptions. A feminist analysis of the nexus between development and media must therefore unsettle not only dominant archives but also the institutional and disciplinary foundations of our own scholarly practices.As scholars, we share the complex position of navigating the same tensions between institutional complicity and emancipatory aspiration as many of the media-makers whose work we study. Mirroring our subjects is also the transnational, collective mode of this special issue’s own production as it emerges from an ongoing informal working group we have sustained over several years. While relying on institutional and disciplinary affordances—such as university funding for conferences or access to academic publishing platforms—we have been working toward creating a community that exceeds, and often resists, the prevailing logics of our academic institutions. Our aim has been to create a space for shared inquiry and mutual support that pushes back against disciplinary siloing and technocratic neoliberal assessment modes of both labor and knowledge production—and this certainly extends to our experience collaborating with the journal editors throughout the publication process. Our goal has been to examine both the persistence and variability of developmentalism, understood as what Gustavo Esteva calls a “powerful but fragile semantic constellation,” as a conceptual formation that has historically inspired, legitimized, and mobilized media projects across Asia, Africa, and Latin America.21 And gendered biopolitics, from population control to gender mainstreaming, have remained integral to development policies and media practices, recurring across formats from institutional newsreels to film festivals.We share the conviction that, far beyond the history of nonfiction institutional media, development (as both a broad ideological project and a network of material and institutional practices) and developmentalism (as a set of discourses and theoretical models associated with development) have exerted a far-reaching influence on film and media cultures at large. As such, they must be treated as a major force in shaping global film and media systems and also the many ongoing assumptions behind their critical discourses. The discipline of communication studies was founded on modernization theory governed by Cold War goals of dissemination of Western liberal democracy around the world, while “an area studies framework allowed compartmentalizing Western and non-Western outcomes of technologies that were always claimed to be universal.”22 Despite critique from postcolonial and critical race studies, many of these frameworks have remained foundational for media theory.23 In historical scholarship, as we increasingly move beyond “modernity” as a dominant conceptual anchor, engaging with practices and discourses of development opens more precise analytical pathways. These film and media’s entanglements with the logics of and economic and the associated with as well as their conceptual underdevelopment, and impact in as diverse as and of media aesthetic and paradigms in film and film and funding are developmentalist assumptions to the they to underwrite the narrative and logics of and global media from the structure of the film to the cultures of argue that a examination of the historical entanglements between film and developmentalist aesthetics, modes of as well as infrastructures and critical the and that our contemporary media is a of the historical contours of development as a field of inquiry embedded within a of some of the methodologies by the featured in this special a of this complex history, to the larger at in media, development, and gender all its development a it as an of be with practices as divergent as and in In as we work on this the of the of the USAID the ideological that have the history of international the and of this on the global its a from development as a global practice and as an institutional and which over the has as a with its own media Yet or does not erase the historical impact of these the contradictions they have reflected and over the as the of development several crucial to the economic theories of development initiatives to and through the of the development an international policy framework at from the Global to the of the Global the by the political role of and the of the International the on was challenged by dependency theory and at development as global structural the neoliberal of the the Programs by the and World imposed and as conditions for and forms of assistance became known as the major markers for international development development has moving beyond economic to such as the Human Development and the Development and from international organizations such as the United Nations to a broader network of These frameworks increasingly of and liberal of and with what in many ways to various while the of the to development’s epistemological more scholarship has toward a of its and material the field has to a of and critical by and scholars, which development as a dynamic of conceptual and political to these the studies in this special issue call for sustained analysis in place of In we draw from a of and that in of of gender and to this special issue engage that and from Mexico to contemporary specific local historical of global distinctly feminist methodologies as well as attention to studies that this issue a in the global history of development on and documentary work in Mexico how early women infrastructures as of while US films an early of state and transnational on a outside the Global as the of developmentalist both the and markers of development media, its to the and Latin central grounded in archival also women’s in transnational and the methodological of archives on study of the series to a a digital media not by but by women not as but as subjects and within circuits of neoliberal and the aesthetics and of how development’s has models of to contemporary neoliberal paradigms of and analysis how digital and gender and practices, discourses on and their of these essays the of some of the historical of developmentalist as the question of the role of the state within such on a notion of economic as a and the dominant of development that the state as the for and through infrastructural projects. This understanding of development was shared across both of the as well as in the Third The United and the increasingly mobilized international in the of the modes of international at the postcolonial of policy and ideological These programs were at the expansion of their and of while with the and decolonial of The conceptual between modernization and development that the Cold in of and hierarchies of that long and As an of postcolonial their role as of international aid concern about the of Western development projects. In alternative across the Global South that to structural between and through policies of and In many they were further the global structures. In Latin for example, this approach was through organizations such as the United Nations for Latin and the both developmentalist projects and their have taken many forms historically, and they have and they have been to a of projects, and postcolonial and development has been and in ways and with frequently political While many of these alternative frameworks the embedded in dominant Western they often technocratic and assumptions. gender and gender as for the of to be shaped by This becomes particularly in the media that of development where women frequently a crucial associated with and women were as both the subjects and of their participation in the and labor often as the index of In this study of from the 1970s how women were as of this as these about women’s urban and recurring and of a within the own of and critique that official examination of archives and enables a feminist interrogation of their mobilizing a of the in the of contribution to this issue similarly the of a dynamic within as well as across ideological the of women’s and the media of the and as active in labor and as integral to the technocratic women became of as their labor remained a of and analysis and archival with attention to the specific of and It also transnational that as a and affective a nexus of and practices through which gender, media, and developmentalism one film not as a but as part of the of alongside and work a broader concern of this special media as a of developmentalist projects. The debates the World and which international such as the United Nations and a critical historical for such primarily by postcolonial and of the for the of media and communication infrastructures in as to counter Western The a between and economic how systems of media and reinforced global hierarchies of and in an agenda that supported and alternative media infrastructures across postcolonial contexts, the framework gender as an analytical This “gender in the 1970s by of the Women in Development in relation to The Double its political critique of with its broader to center women in development policy through and This was also in of media, which was shaped by its international reach and audiovisual production and and and Yet, as WID institutional it also to the and of the women’s development programs often by in These were by a of studies, and on and the to of women’s presence and through the of their economic and In this on the filmmaker this history directly by the and of for women by the WID framework during the with and agencies the of and against Women in at the of the neoliberal turn, when institutional media often the only to access and support to projects. The an by this dynamic as of the from the Global South are to engage with the developmentalist assumptions funding models that their similarly the as a in developmentalist media history by the of and centers on the Film a between of and the attention toward the and labor by and work was foundational the of and the of audiovisual aid, as both a of development projects and a critical for their the in this issue argue for a with media, gender, and developmentalism as an field of that is and shaped by feminist and methodologies and that challenge the entanglements between academic knowledge production and and technocratic development And while methodological these dynamics at the structural the of feminist in media and cinema by this the very a