Julie E. Cohen

Georgetown University | GU · School of Law

The problem of theorizing privacy moves on two levels, the first consisting of an inadequate conceptual vocabulary and the second consisting of an inadequate institutional grammar. Privacy rights are supposed to protect individual subjects, and so conventional ways of understanding privacy are subject-centered, but subject-centered approaches to th...

Rethinking Society for the 21st Century - by International Panel on Social Progress (IPSP) July 2018

This article discusses the role of media and communications in contributing to social progress, as elaborated in a landmark international project – the International Panel on Social Progress. First, it analyses how media and digital platforms have contributed to global inequality by examining media access and infrastructure across world regions. Se...

Originally the “Media and Communication” chapter of the International Panel on Social Progress, published by Cambridge University Press, we hope this version as a CARGC Press book will expand the reach of the authors’ vision of communication for social progress.

Within the political economy of informational capitalism, commercial surveillance practices are tools for resource extraction. That process requires an enabling legal construct, which this essay identifies and explores. Contemporary practices of personal information processing constitute a new type of public domain—a repository of raw materials tha...

This Article examines the regulatory state through the lens of evolving political economy, arguing that a significant reconstruction is now underway. The ongoing shift from an industrial mode of development to an informational one has created existential challenges for regulatory models and constructs developed in the context of the industrial econ...

The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reason- able to expect them to differ in ways that...

The theme of the book — global community, global archipelago or a new civility? — echoes a question that has often been posed about transformative new technologies:1 Will such technologies connect us or divide us? Will networked information technologies produce a new global cosmopolitanism characterized by enlightened tolerance and mutual recogniti...

This essay argues that the assumption that “progress” is qualitatively independent of the underlying entitlement structure is wrong. In particular, I shall argue that a shift to a copyright rule structure based on highly granular, contractually enforced “price discrimination” would work a fundamental shift, as well, in the nature of the progress pr...

Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a...

This chapter considers two interrelated questions that flow from understanding sociotechnical change as (re)configuring networked subjects. First, it revisits the way that legal and policy debates locate networked information technologies with respect to the public/private divide. The design of networked information technologies and communications...

The legal and technical rules governing flows of information are out of balance, argues Julie E. Cohen in this original analysis of information law and policy. Flows of cultural and technical information are overly restricted, while flows of personal information often are not restricted at all. The author investigates the institutional forces shapi...

The ongoing debate among U.S. legal scholars and policy makers about the structure of the networked information society has two odd features. First, the emerging regime of information rights and privileges is publicly justified in terms of economic and political liberty, but as a practical matter, it allows individuals less and less control over in...

Everything we know about creativity suggests that copyright plays very little role in motivating creative work. In the contemporary information society, the purpose of copyright is to enable the provision of capital and organization so that creative work may be exploited. This reframing has four important consequences for debates about copyright la...

Portions of this essay are adapted from my forthcoming book, Configuring the Networked Self: Copyright, Surveillance, and the Production of Networked Space (Yale University Press, forthcoming).

This essay considers the relationship between privacy and visibility in the networked information age. Visibility is an important determinant of harm to privacy, but a persistent tendency to conceptualize privacy harms and expectations in terms of visibility has created two problems. First, focusing on visibility diminishes the salience and obscure...

Online copyright enforcement represents one of the greatest current threats to online privacy. For the most part, however, the privacy implications of digital rights management systems go unexamined in the mainstream legislative and policy debates about the proper scope of copyright owner's rights. Instead, courts and some commentators (and many in...

From p. 94-95: "In sum, generating a normative theory of the open network requires more than a theory of intellectual property or telecommunications, and 'doing the science' of cultural environmentalism requires more than appropriation of the environmental metaphor. Cultural environmentalism is like environmentalism, but it is also different. If it...

Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. When asked to discuss the source of their inspiration, individual artists describe a process that is intrinsically ineffable. Rights theoris...

The appropriate role of place- and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested. This essay seeks to provoke critical reflection on the implications of place- and space-based theories of cyberspace for the ongoing production of networked space more generally. It argues, first, that adherents of th...

In an effort to control flows of unauthorized information, the major copyright industries are pursuing a range of strategies designed to distribute copyright enforcement functions across a wide range of actors and to embed these functions within communications networks, protocols, and devices. Some of these strategies have received considerable aca...

The relationship between increased commodification and the public domain in copyright law is the subject of considerable controversy, both political and theoretical. The paper argues that beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a public domain is. When considered in broad...

Copyright doctrine . . . is characterized by the absence of the user. As copyright moves into the digital age, this absence has begun to matter profoundly. As I will show, the absence of the user has consequences that reach far beyond debates about the legality of private copying, or about the proper scope of user-oriented exemptions such as the fa...

NOTE: A later version of this paper is now available. Please see SSRN no. 892623. As a byproduct of the asserted imperative to control flows of unauthorized information, purveyors of intellectual goods are moving to build into delivery systems for digital information a range of capabilities that insert both surveillance and enforcement functions in...

The potential consequences of DRM for user privacy which warrant for greater attention from policymakers and systems designers, is discussed. The questions that law- and policymakers must confront are whether the privacy invasions caused by DRM restrictions should be legally cognizable and, if so, whether they may legitimately be imposed under cont...

Interrogating the relationship between copyright enforcement and privacy raises deeper questions about the nature of privacy and what counts, or ought to count, as privacy invasion in the age of networked digital technologies. This Article begins, in Part II, by identifying the privacy interests that individuals enjoy in their intellectual activiti...

This portrait of the emerging information economy as an interlocking system of information restrictions challenges the widely held perception that, at least as compared with offline activity, online commerce and communication will be relatively frictionless. To be sure, digital network technologies reduce some of the costs associated with offline t...

This essay reviews Jeffrey Rosen’s The Unwanted Gaze: The Destruction of Privacy in America (2000). Rosen offers a compelling (and often hair-raising) account of the pervasive dissolution of the boundary between public and private information. This dissolution is both legal and social; neither the law nor any other social institution seems to recog...

In this paper, we consider whether rights management systems can be supported by legal and institutional infrastructures that enable appropriate public access to the works secured by these technologies. We focus primarily on the design challenges posed by the fair use doctrine, which historically has played a central role in preserving such access....

"In this paper, we propose to address the displacement of a particular legal rule, the copyright fair use doctrine, by coded copyright management systems (CMS) rule sets. The fair use doctrine serves a variety of purposes in the current copyright system, including alleviating certain types of market failure, mediating between First Amendment princi...

In the United States, proposals for informational privacy have proved enormously controversial. On a political level, such proposals threaten powerful data processing interests. On a theoretical level, data processors and other data privacy opponents argue that imposing restrictions on the collection, use, and exchange of personal data would ignore...

Software patents have received a great deal of attention in the academic literature. Unfortunately, most of that attention has been devoted to the problem of whether software is or should be patentable subject matter. With roughly eighty thousand software patents already issued, and the Federal Circuit endorsing patentability without qualification,...

The economic vision embodied in Lochner v. New York is alive and well on the digital frontier. Its premises ? the sanctity of private property and freedom of contract, the sharply delimited role of public policy in shaping private transactions, and the illegitimacy of laws that have redistributive effects ? undergird a growing body of argument and...

The proposed draft of Article 2B grants broad rights to enforce elec-tronically contract provisions governing access to and use of digital works. Purveyors of digital works may engage in electronic self-help following breach of contract, and may also elect to foreclose unauthor-ized uses ex ante, via electronic "regulation of performance." This Art...

It has become commonplace to say that we have entered the age of information. The words conjure up images of a reader's paradise ~ an era of limitless access to information resources and unlimited interpersonal communication. In truth, however, the new information age is turning out to be as much an age of information about readers as an age of inf...

Over the past few years, there has been an abundance of scholarship dealing with the appropriate scope of copyright and patent protection for computer programs. This Article approaches those problems from a slightly different perspective, focusing on the discrete problem of lock-out programs. The choice of lock-out as a paradigm for exploring the i...

Copyright management systems (CMS)—technologies that enable copyright owners to regulate reliably and charge automatically for access to digital works—are the wave of the very near future. The advent of digital networks, which make copying and distribution of digital content quick, easy, and undetectable, has provided the impetus for CMS research a...

Abstract Intellectual freedom,requires a sufficient degree of autonomy,for individuals with respect to informationflows to, by, and about them. The absence of state censorship is a necessary but not sufficientcondition of intellectual freedom; private rights in information also may reduce informational autonomy,to an unacceptable degree. Currentleg...

The Internet continues to transform the information industries and challenge intellectual property law to develop a competition policy strategy to regulate networked products. In particular, inventors of "information plat-forms" that support the viewing of content—be they instant messaging sys-tems, media players, or Web browsers—face a muddled set...

Referring to the Digital Millenium Copyright Act and UCITA, the author writes: "The consequences for freedom of speech are disastrous. Copyright law has long acknowledged that restrictions on reuse of another's copyrighted expression are restrictions on speech. It has also acknowledged that some such restrictions frustrate rather than promote creat...

I would like to focus my remarks on the question of user privacy. In her fascinating paper for this Symposium, Professor Litman expresses a guarded optimism that in its forthcoming decision in MGM v. Grokster, I the Court will retain the staple article of commerce doctrine that it first articulated in Sony. She opines, however, that the user privac...

This essay does not attempt to specify the privacy rights that users might assert against the purveyors of DRM systems. Instead, it undertakes a very preliminary, incomplete exploration of several questions on the "property" side of this debate. What is the relationship between rights in copyrighted works and rights in things or collections of bits...