Past JLTP Abstracts - Volume 2005 Issue 2


Using Communication Theory to Understand Cyberlaw and Its Discontents

Dean Colby
Robert Trager


This Article analyzes arguments for and against a category of law specifically applicable to new media: Cyberlaw. The Article argues the various condemnations and defenses of Cyberlaw fall short in providing coherent justifications for why new media should or should not be regulated differently than old media. The Article proposes these arguments would be clarified if legal scholars and jurists considered, in a more systematic, communication-theoretic way, the value of dialogical and least-mediated communication. Such consideration would force Cyberlaw theorists to address why, in particular, any elite control of communication and information access via new media should or could ever be justified. This Article suggests that a more moral justification of new media usesóbased on the value of least-mediated communicationówill better justify any new media regulation, improving individual well-being and deliberative democracy while reducing elite control of new media generally.

An Economic Analysis of the Contractual Protection of Databases

Estelle Derclaye


This Article attempts to answer two questions in the E.U. context. First, can and should a database producer use contract to obtain additional protection for its database that is protected by the sui generis right? In other words, the question is whether a database producer can, and, if so, should be allowed to, override the limits of the sui generis right by contract. Second, this Article considers whether a database not protected by the sui generis rightóeither because it was protected but now has fallen into the public domain or because it does not meet the requirements for protection by the sui generis rightócan and, if so, should, be protected by contract. Similar questions arise in the United States. Although no specific intellectual property right protects databases in the United States, the economic rationale behind protecting databases contractually is the same.


Getting Real About Privacy: Eccentric Expectations in the Post-9/11 World

Jeff Breinholt


Since September 11, 2001, polemic arguments and academic studies have filled bookstores, offering prescriptions on how to assure the safety of Americans while maintaining our way of life. Many of these books argue that we are on the wrong path, destined to regret the hysterical reaction now on display towards Islamic fundamentalism. Such works seem to take on faith the notion that we are going too far in the application of technology to day-to-day police problems. Many such works buckle under the weight of their own arguments and do not adequately address the benefits of a legal regime motivated to reduce violent crime. This Essay critiques three prominent books dealing with this subject: Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (2004); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000); and David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003).


Moral Rights and Digital Art: Revitalizing the Visual Artistsí Rights Act?

Kristina Mucinskas


The DMCA Anti-Circumvention Provisions and the Region Coding System: Are Multi-zone DVD Players Illegal After Chamberlain and Lexmark?

Qixiang Sun