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John A. Rothchild

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Nancy S. Kim

Online contracts, such as website terms of use, are typically ignored by consumers yet courts and companies treat them as binding contracts. This chapter explores the origins of online contracts and the development of the law in this area. Companies have adopted novel contracting forms in response to business and marketplace needs and courts have adjusted contract law to accommodate them. The burdens of these new contracting forms, however, have been placed primarily upon consumers. This chapter suggests ways that contract law could further evolve to more evenly balance the burdens of online contracting.

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Stephen T. Middlebrook and Sarah Jane Hughes

This chapter describes the legal history of objects that have been used as substitutes for legal tender in the United States and discusses the implications of that jurisprudence for modern virtual currencies. Beginning with wampum, which had a recognized exchange value as early as 1631, the chapter examines Continental currency, fractional currency and shinplasters, Greenbacks and state bank notes, and even “trading stamps” offered by S & H and other firms. We document that as these substitutes came into the market place, governments tended to view them with suspicion and often commenced criminal prosecutions to halt their issuance and use. Over time, however, certain substitutes for legal tender have gained acceptance from legal authorities, and in some cases, have even been adopted as forms of legal tender themselves. With this historical framework in place, the chapter looks at the incipient regulation of virtual currencies in the United States, focusing on early digital currencies, e-gold and bitcoin. We note parallels between how substitutes for legal tender have been treated historically and how regulators and law enforcement have reacted to virtual currency products. In particular, we document the growing use of 18 U.S.C. § 1960 to criminally prosecute virtual currency participants for operating as unlicensed “money transmitters.”

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Jane K. Winn

Although financial inclusion is now recognized as an essential element of any economic development strategy that includes poverty reduction, a majority of the world’s poor remain excluded from formal financial services. Since 2007, the Kenyan mobile payment scheme M-Pesa has captured world attention as a financial inclusion success story, although no other countries have been able to reproduce that success. This chapter considers the impact of the regulatory environment on mobile payments as a channel for delivering inclusive financial services using Kenya, Brazil, and India as case studies. While Kenya succeeded in rapidly increasing financial inclusion, the Safaricom mobile network operator offering the M-Pesa service ended up controlling 99% of market for mobile payments, posing challenges for regulators and prospective competitors later trying to dislodge it from its dominant position. By contrast, Brazil made slow and steady progress toward achieving 99% financial inclusion among recipients of its Bolsa Familia social welfare program through incremental improvements in its legacy electronic payment systems and by creating a network of business correspondents for banks. Progress in India has been slower as a result of adopting a broad perspective on financial inclusion and pursuing multiple initiatives simultaneously, but inclusive financial services in India may finally be poised to take off. Early attempts to regulate mobile payments and business correspondents erected regulatory and technological barriers to their adoption, but the new “payment bank” regulatory framework may finally have removed those barriers for good. In partnership with the banking industry and to promote competition, India has created an open, public platform for the clearing and settlement of electronic payments, and has begun using the new RuPay card network together with the new Aadhaar national identity scheme to deliver direct benefit transfers to the poor.

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Suzanne Brown Walsh, Naomi Cahn and Christina L. Kunz

This chapter addresses the appropriate treatment of a person’s digital life when the account holder can no longer manage it. As the Internet becomes an increasingly important presence in our daily lives, the law has a significant role to play in determining the management of digital assets upon the account holder’s incapacity or death. In the past, people put hard copies of photos in albums, listened to record albums, and paid bills with a stamped envelope. Today, most people use the Internet to store photos, listen to music, and pay bills. Yet few people have considered how to dispose of their digital assets. This chapter explores the legal issues for trusts, estates, conservatorships, and powers of attorney. It addresses the importance of fiduciaries being able to manage an account holder’s digital assets, and the obstacles under federal and state law to a fiduciary assuming that role. Finally, it shows how the revised Uniform Fiduciary Access to Digital Assets Act provides a solution to ensure effectuation of the account holder’s intent

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Hannibal Travis

This chapter explores the potential benefits and costs of the involuntary mass digitization of millions of printed books contained in the libraries that join the Google Books project. The ability to search for and preview relevant passages in copyrighted books may expand the potential market for the books, which might otherwise be obscure.  Limited time, personnel, and shelf space mean that that many books will go unnoticed. Full-text search of digitized books may increase sales by exposing passages to more readers, courts have found, just as the dissemination of trailers, plot overviews, and frames from films and video games may increase the viewership and acquisition of them. On the other hand, authors and publishers are concerned that a Napster for books may result in the leakage of scans to the Internet, and the loss of an opportunity to license inclusion in digital libraries and derivative works.  The chapter therefore provides an overview of the economics of fair use and derivative works, as well as of sampling and widespread digital infringement, before analyzing the courts’ fair use findings as to Google Books and a related project, HathiTrust.

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Ariel Katz

Rumor has it that the first-sale doctrine is dying. Forged in the era of the physical copy, the rumor suggests that the doctrine will lose its prominence in the brave new world where works in digital formats are no longer distributed and enjoyed as particular identifiable objects but exist merely as data flows. Some (e.g., librarians, consumer advocates) mourn the loss of their beloved doctrine with trepidation, while others (e.g., publishers) rejoice at its anticipated demise. Both camps assume that the doctrine is confined to the transfer of tangible copies, and that it limits only copyright owners’ distribution right, not any other exclusive rights. The death prognosis further relies on the proliferation of contractual and licensing conditions that purport to prohibit one buyer from transferring what he or she purchased to another, even if the transfer was otherwise technically possible and legally permissible. This chapter argues that the rumor of the doctrine’s death is premature. The death prognosis regards the first-sale doctrine merely as a statutory exception, and one that limits only the copyright owner’s distribution right, but not other rights. The doctrine, thus, protects defendants who can show that their acts fall within the bounds of the statutory exception, but any mismatch would be fatal. The chapter offers a different understanding of the first-sale doctrine. As a “first sale” doctrine it may limit the distribution right, but its statutory presence merely affirms a broader principle of exhaustion—one of several principles in copyright law that limit the copyright owners’ powers, as well as a species of a broader genus of principles that limit the exercise of private power more generally. Since the doctrine isn’t a creature of statute, its codification does not limit courts in applying the broader principle of exhaustion that it reflects. The death prognosis rests on the first and narrow view, which also implies that only legislative reform can expand exhaustion beyond that limited statutory scope. Under the second view, however, the first-sale doctrine may not only be alive, but might well be kicking. The chapter shows that the second view is both plausible and sound.

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Michael W. Carroll

This chapter addresses the law that limits Internet service providers’ liability for copyright infringement arising from their own conduct and that of their users. Enacted as part of the Digital Millennium Copyright Act of 1998, this policy shields providers from monetary liability when they provide four types of service: (1) network transmission; (2) website caching; (3) storage of content at the direction of a user and (4) links to online locations at which infringing material can be found. Each of these safe harbors is subject to a set of conditions. After describing the policy and legal background concerning service provider liability and the enactment of the safe harbor provision, this chapter explains the statutory text and its reception in the courts. Finally, this chapter identifies issues that are particularly salient for providers and users of social media.

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Annemarie Bridy

In the years since passage of the Digital Millennium Copyright Act (“DMCA”), the copyright industries have demanded that online intermediaries — both those covered by the DMCA and those falling outside the statute’s ambit — do more than the law requires to protect intellectual property rights. In particular, copyright owners have sought new ways to reach and shutter “pirate sites” beyond the reach of United States law. Online intermediaries have answered their demands through an expanding regime of nominally voluntary “DMCA-plus” enforcement. This chapter surveys the current landscape of DMCA-plus enforcement by dividing such enforcement into two categories: Type 1 and Type 2. Type 1 DMCA-plus enforcement is cooperation by DMCA-covered intermediaries over and above what is required for safe harbor. Type 2 DMCA-plus enforcement is cooperation by intermediaries whose activities fall outside the scope of the DMCA’s safe harbors and who are not liable for their customers’ copyright infringements under secondary liability rules. As the gap widens between what the law requires and what intermediaries are agreeing to do on a voluntary basis, there is reason to be concerned about the expressive and due process rights of users and website operators, who have no seat at the table when intermediaries and copyright owners negotiate “best practices” for mitigating online infringement, including which sanctions to impose, which content to remove, and which websites to block without judicial intervention.

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Irene Calboli

This chapter address the issue of secondary liability in trademark law, specifically the ongoing uncertainty that still characterizes the application of the judicial doctrine of contributory trademark infringement. Scholars and courts in the United States have long discussed the standard to apply for finding contributory infringement. The debate intensified with the arrival of the Internet. In particular, several legal disputes claiming contributory trademark liability for intermediaries were filed in the years that followed the rise of the Internet. While this increase in disputes has led to a higher number of judicial decisions addressing contributory infringement, the precise boundaries for the application of the doctrine remain unclear. This chapter advocates for more clarity in this area. The chapter starts with a survey of the judicial development of the doctrine of contributory trademark infringement, first in the brick-and-mortar world and then as applied to the Internet. Based on this survey, the chapter notes that we still do not have clarity as to what represents sufficient “knowledge” and “control” to make an intermediary liable under the Inwood test, even though courts seem to have settled on a narrow interpretation of these concepts due to the concern that a broader interpretation would foreclose legitimate intermediaries’ activities. The chapter concludes that courts ultimately seem to follow a “we know it when we see it” approach in this area, based on an overall “benevolence standard” towards businesses that are primarily legitimate. Yet, this approach leaves too much uncertainty, and intermediaries and the service economy need clearer guidelines from the courts and, possibly, from the legislature.