Copyright Compromises: Creators’ Rights, ISP Efficiency & Consumer Welfare

A Mini-Conference of the Information Economy Project
Wednesday, October 12, 2011 - 3301 Fairfax Drive, Arlington, Virginia

In July, copyright holders and Internet service providers produced a "six strikes" agreement brokered by the White House. The deal protects intellectual property rights in cyberspace, with the help of ISPs. Is this an efficiency-enhancing compromise - or an abomination? ISPs create value in managing networks, mitigating spam and malware. Are the ISP responsibilities in IP enforcement an extension of these functions, or a new strain that will prove counter-productive?

Conference Agenda:

8:15 a.m. - 9:00 a.m. - Continental Breakfast

9:00 a.m. - Welcoming Remarks
Daniel Polsby, Dean, George Mason University School of Law
Sarah Oh, Information Economy Project (organizer)

9:10 a.m. - Legal Issues in the Copyright Settlement
Christopher Newman, Professor of Law, George Mason University (moderator)
Steve Marks, General Counsel, RIAA
Keith Epstein, General Attorney and Associate General Counsel, AT&T

10:10 a.m. - How the ISPs Work, Before and After the Copyright Enforcement Deal
Christopher Newman, Professor of Law, George Mason University (moderator)
Daniel Castro, Information Technology and Innovation Foundation
Ben Depoorter, Professor of Law, UC Hastings Law School
Sherwin Siy, Deputy Legal Director, Public Knowledge
Nick Feamster, Associate Professor of Computer Science, Georgia Tech

12:00 PM - Adjourn

Additional Resources:

• Audio available here: http://youtu.be/5mftvuw-Z-s
• Christopher Newman presentation slides
• Nick Feamster presentation slides

Speaker Biographies

Daniel Castro, Information Technology and Innovation Foundation
Daniel Castro is a Senior Analyst with ITIF specializing in information technology (IT) policy. His research interests include health IT, data privacy, e-commerce, e-government, electronic voting, information security and accessibility. He has experience in the private, non-profit and government sectors. Before joining ITIF, Mr. Castro worked as an IT analyst at the Government Accountability Office (GAO) where he audited IT security and management controls at various government agencies. He contributed to GAO reports on the state of information security at a variety of federal agencies, including the Securities and Exchange Commission (SEC) and the Federal Deposit Insurance Corporation (FDIC). In addition, Mr. Castro was a Visiting Scientist at the Software Engineering Institute (SEI) in Pittsburgh, Pennsylvania where he developed virtual training simulations to provide clients with hands-on training of the latest information security tools. He has a B.S. in Foreign Service from Georgetown University and an M.S. in Information Security Technology and Management from Carnegie Mellon University.

Ben Depoorter, Professor of Law, UC Hastings Law School
Ben Depoorter is a graduate of Yale Law School. He also holds a JD (1999) and Ph.D. (2003) from Ghent University and a Master's degree from the University of Hamburg (2001). He completed his studies at Yale Law School (2003) on a full scholarship from the Belgian American Educational Foundation (BAEF). As an Oscar Cox Fellow at Yale, Depoorter served as an editor of the Yale Journal of Regulation and conducted research as a John M. Olin Fellow in Law, Economics, and Public Policy. He was a Santander Research Fellow at U.C. Berkeley and a recipient of a Fulbright scholarship. His recent and forthcoming articles include "Fair Trespass," 111 Columbia Law Review, (forthcoming 2011); "Copyright Backlash," 84 University of Southern California Law Review (forthcoming, 2011); "Law in the Shadow Bargaining: The Feedback Effect of Civil Settlements," 95 Cornell Law Review 957 (2010); "Technology & Uncertainty: The Shaping Effect on Copyright Law," 157 the University of Pennsylvania Law Review 1830 (2010), and "Horizontal Political Externalities: the Supply and Demand of Disaster Management," 56 Duke Law Journal 101 (2006). His interdisciplinary work on anticommons property theory is widely cited in American law reviews and international peer-reviewed journals and was featured in 2010 in the New Yorker magazine. These writings include "Fragmentation in Property: Towards a General Model" (with F. Parisi and N. Schulz).

Keith J. Epstein, General Attorney and Associate General Counsel, AT&T
Mr. Epstein joined Pacific Bell in 1983, and has served in various Legal, Regulatory and Marketing positions for SBC and AT&T, including having responsibility for Internet Services, Information Access and Broadband Services, Network Integration, Data Local Exchange Carrier (DLEC), Competitive Local Exchange Carrier (CLEC), Long Distance, Voice over IP, IP-TV, and Carrier Access Management. Mr. Epstein is currently AT&T's chief public policy and corporate compliance counsel, where his duties include development and implementation of legal, regulatory and public policy strategies pertaining to wireline and wireless telecommunications and broadband networks. Mr. Epstein received his B.A. from the University of California at Davis in 1980, and his J.D. from the University of Santa Clara in 1983. Mr. Epstein is admitted to practice law in California and Texas.

Nick Feamster, Associate Professor of Computer Science, Georgia Tech
Nick Feamster is an associate professor in the College of Computing at Georgia Tech. He received his Ph.D. in Computer science from MIT in 2005, and his S.B. and M.Eng. degrees in Electrical Engineering and Computer Science from MIT in 2000 and 2001, respectively. His research focuses on many aspects of computer networking and networked systems, including the design, measurement, and analysis of network routing protocols, network operations and security, and anonymous communication systems. In December 2008, he received the Presidential Early Career Award for Scientists and Engineers (PECASE) for his contributions to cybersecurity, notably spam filtering. His honors include the Technology Review 35 "Top Young Innovators Under 35" award, a Sloan Research Fellowship, the NSF CAREER award, the IBM Faculty Fellowship, and award papers at SIGCOMM 2006 (network-level behavior of spammers), the NSDI 2005 conference (fault detection in router configuration), Usenix Security 2002 (circumventing web censorship using Infranet), and Usenix Security 2001 (web cookie analysis).

Steven Marks, General Counsel, RIAA
As General Counsel for the Recording Industry Association of America, Steven oversees the RIAA's litigation, licensing, and technology initiatives. He is also involved in legislative initiatives, having led negotiations on behalf of the industry that resulted in comprehensive revisions to the Copyright Act. Marks joined the RIAA from the Washington, D.C., law firm of Arnold & Porter, where he assisted with mechanical royalty negotiations and litigated the inaugural statutory performance right royalty rate for digital audio services. More generally, Marks has represented clients on intellectual property, First Amendment and general litigation matters. Marks is a 1988 graduate of Duke University and a 1992 graduate of Duke Law School, where he was Articles Editor of the Duke Law Journal. Upon graduation, Marks served as a law clerk to the Honorable Mary M. Schroeder of the U.S. Court of Appeals for the Ninth Circuit.

Christopher Newman, Professor of Law, George Mason University
Assistant Professor Christopher M. Newman graduated magna cum laude from the University of Michigan Law School in 1999 and holds a BA in classical liberal arts awarded by St. John's College in Annapolis, Maryland. Following law school, Professor Newman was a clerk for the Honorable Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, with whom he co-published What's So Fair About Fair Use?, 46 J. Copyright Soc'y 513 (1999). From 2000-2007, he was a litigation associate with Irell & Manella LLP in Los Angeles, where he represented clients in disputes involving contracts, business torts, intellectual property, corporate and securities litigation, and appellate matters, as well as pro bono family and criminal law matters. Professor Newman left practice at the beginning of 2007 to serve an Olin/Searle Fellowship in Law at the UCLA School of Law, where he focused on his research and writing in the areas of property theory and intellectual property, and from January 2008 until his arrival at Mason Law served as a research fellow of UCLA's Intellectual Property Project.

Sarah Oh, Information Economy Project
Sarah Oh is operations and research director of the Information Economy Project at George Mason University School of Law, a research center that applies law and economics to telecommunications policy in Arlington, Virginia. She has a Ph.D. (2017) and J.D. (2009) from George Mason University School of Law and a B.S. from Stanford University (2004) in Management Science and Engineering. Her industry experience includes search engine marketing keyword campaign management for a shopping-comparison website in San Mateo, California. Her legal experience includes internships with regulators of technology, namely the Department of Commerce (NTIA), Federal Communications Commission, and Federal Trade Commission. Her research topics for 2011-2012 include radio spectrum rights, digital media regulation, and vertical integration in online media distribution platforms. She recently presented an article, "Exclusion Principles and Receiver Boundaries on Spectrum Resources" at the 39th TPRC Conference (2011), and co-authored an article "The Overly Active Corpse of Red Lion" in the Northwestern Journal of Technology and Intellectual Property (2010).

Daniel Polsby, Dean and Professor, George Mason University School of Law
Dean and Professor of Law Daniel D. Polsby joined the faculty of the law school in 1999 after serving 23 years on the Northwestern University law faculty, most recently (since 1990) as the Kirkland & Ellis Professor of Law. He has held visiting appointments in the law schools of the University of Southern California, the University of Michigan, and Cornell University. He was appointed acting dean of the George Mason School of Law in 2004 and was named dean in 2005. Dean Polsby has published dozens of articles on such diverse subjects as voting rights, family law, employment rights, and spectrum utilization. He is the author of the award-winning article, "The False Promise of Gun Control," the cover essay of the March 1994 Atlantic Monthly. The article is one of the most widely anthologized essays of recent years. Dean Polsby received his B.A. from Oakland University (1964) and earned his J.D. magna cum laude from the University of Minnesota (1971). He teaches Criminal Law, Family Law, Constitutional Law, and other subjects.

Sherwin Siy, Deputy Legal Director, Public Knowledge
Sherwin Siy is Deputy Legal Director and Kahle/Austin Promise Fellow at Public Knowledge where he focuses on emerging copyright issues and international effects on IP and technology policy. Before joining PK, he served as Staff Counsel at the Electronic Privacy Information Center, working on consumer and communications issues. Sherwin received his JD with a Certificate in Law and Technology from UC Berkeley's Boalt Hall School of Law. While in law school, he also worked on a variety of IP issues through the Samuelson Law, Technology, and Public Policy Clinic, including library copying rights and the legitimate uses of P2P file sharing.