Legal Theory Blog

New Papers on the Net
Here is today’s roundup:

Stefan Bechtold (University of Tuebingen Law School) posts Governance in Namespaces, forthcoming in the Loyola of Los Angeles Law Review. Here is the abstract:
Since the creation of the Internet Corporation for Assigned Names and Numbers (ICANN), the regulation of the Domain Name System (DNS) has become a central topic in Internet law and policy discussions. ICANN’s critics argue that ICANN uses its technical control over the DNS as undue leverage for policy and legal control over the DNS itself and over activities that depend on the DNS. Such problems are not unique to the DNS. Rather, the DNS discussions are an example of the more abstract governance problems that occur in a set of technologies known as “namespaces.”
A namespace is a collection of all names in a particular system. Namespaces are ubiquitous. They can be found both in real space and cyberspace. Namespaces analyzed in this Article include the DNS, IP addresses, ENUM, Microsoft Passport, peer-to-peer systems, TCP port numbers, public key infrastructures as well as digital rights management and instant messaging systems. This Article also shows that many of its findings can also be applied to namespaces outside of cyberspace – such as bibliographic classification schemes, P.O. boxes, Social Security numbers, as well as the names of DNA sequences, diseases, and chemical compounds. Namespaces are an overlooked facet of governance both in real space and cyberspace. This Article develops a general theory of the governance of namespaces. Designing namespaces and exercising control over them is not a mere technical matter. Rather, the technical control over a namespace creates levers for the intrusion of politics, policy, and regulation. In particular, the technical control may lead to speech, access, privacy, copyright, trademark, liability, conflict resolution, competition, innovation, and market structure regulation. The Article provides several dimensions along which namespaces can be analyzed. From a legal and policy perspective, it matters, for example, whether a namespace is centralized or decentralized, whether the namespace is controlled by a public or private entity, and the degree to which the internal structure is adaptive. These and other dimensions influence how namespaces protect social values and how they allocate knowledge, control, and responsibility. This Article will also demonstrate that the “end-to-end argument” was implemented on the Internet by a particular design of a specific namespace.

Stacey Dogan (Northeastern) posts An Exclusive Right to Evoke, forthcoming in the Boston College Law Review. Here is the abstract:

Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White’s publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons and avoid significantly chilling free expression, courts should at least cabin the right to evoke and ensure that, when utilized, it serves the law’s normative goals.

And here is an additonal paper of interest:

Jack Seward (Rosenfarb Winters, LLC, posts The Debtor’s Digital Autopsy Or Where’s the Money!.