Papers: Pennsylvania Porn & Digital Fair Use

Two papers via SSRN, one on the infamous Pennsylvania child porn act (case) in which, as the paper states, "the Pennsylvania legislature created a legal train wreck of epic proportions." The other on how technological developments have changed the impact of copyright on the the way people are able to express themselves. Here are the abstracts, and of the second paper also a recommendation.

1) Pennsylvania and Pornography by John B. Spence

Here's the abstract:

Pennsylvania recently attempted to hold ISPs criminally liable for their customer's ability to access child pornography. The Pennsylvania Attorney General's Office would create a list of websites that they believed to contain child pornography. They would then notify a handful of ISPs and demand that they block their users from being able to view the websites. If the ISPs failed to administer some form of block, they would be held liable under a criminal statute and subject to fines as well as jail time. The Pennsylvania statute suffers from a number of serious defects arising from technological limitations as well as Constitutional flaws. The District Court for the Eastern District of Pennsylvania struck the law down as being unconstitutional under a number of possible theories, including: an unlawful restraint of the First Amendment and a violation of Federal powers under the Dormant Commerce Clause.

2) Distributive Values in Copyright by Molly Shaffer Van Houweling

Here's the abstract:

In this paper I explore the way that technological developments have changed copyright's impact on the distribution of expressive opportunities. Traditionally, copyright has benefited even poorly-financed amateur speakers by creating a market mechanism by which their work can be financed; in this way copyright has been consistent with strands of First Amendment jurisprudence and communications policy that champion broad distribution of expressive opportunities. But when technology makes it possible for this class of speakers to communicate without copyright-driven financing, the burdens that copyright imposes on their creativity may outweigh the benefits. Unfortunately, while the distributive impacts of copyright are complicated by these technological changes, copyright law and scholarship have developed a focus on market failure that marginalizes distributive concerns. I propose, among other things, a modification of the fair use doctrine that I think will restore some of copyright's egalitarian cast.

And a recommendation:

The fair use doctrine should be adjusted to ensure that creators who are not subsidized by copyright are also not burdened—thus restoring copyright’s former distributive logic. Specifically, fair use analysis should consider whether a defendant who is creatively reusing a copyrighted work is exploiting the monetary benefits that copyright offers. Where she is not (because, for example, she allows anyone to copy her work for free) the burden that copyright would impose on her probably outweighs the benefit, thus endangering her ability to engage in interative creativity. Such a defendant should enjoy a presumption of fair use. This presumption would be stronger and broader than the fair use doctrine’s current preference for non-commercial uses.