Daly v. Palmer, decided in 1868, began as one zealous New York theater owner’s attempt to prevent his rivals from capitalizing on his greatest dramatic success—the famous “Railroad Scene,” in which a character is tied to railroad tracks by the villain and is rescued only seconds before an approaching train passes. But the decision, authored by future Supreme Court Justice Samuel Blatchford, proved to be a landmark in copyright law for almost seventy years. Daly was one of the first plaintiffs to claim infringement by nonverbatim copying from an artistic, not informational, work, and his case anticipated by several decades an explosion of such lawsuits at the turn of the century. As those difficult cases became legion, courts and treatise writers alike looked to Blatchford’s detailed analysis for guidance. Daly was innovative in two ways. Judge Blatchford extended copyright protection for plays beyond the printed text of the script, and held that the value of a work included the intangible impression made by the work on its audience when performed. Second, he measured infringement of such works by comparing the similarities in their sequence of events, even where no dialog was copied. Twentieth-century courts widely adopted Blatchford’s “sequence of events” test to determine if the narrative of one work infringed another. But eventually judges became dissatisfied with such piecemeal analysis, and, searching for an alternative, found Daly’s other holding: that the overall impression made upon the audience might matter. This article, part of the “Forgotten IP Cases” Symposium hosted by the Syracuse Law Review, traces the origins and subsequent career of what was for many decades one of the most widely cited infringement cases in copyright law. It explores why Daly was so influential, and how it was ultimately replaced by the Second Circuit’s decision in Arnstein v. Porter. The concluding section offers some thoughts on what causes a copyright opinion to gain or lose precedential value.

In the wake of the rise of social networking sites, courts and litigants are struggling to define the limits of civil discovery of such information. Some courts have applied the same rules to social networks that apply to all other documents: relevant materials responsive to a party’s requests must be produced. But a significant number of courts have created an entirely new procedure, applicable only to discovery of social networking materials, by ordering parties receiving such requests to not simply produce responsive documents, but to provide the opposing party with access to their entire account. Indeed, in several cases, courts have ordered the production of a party’s username and password, potentially compromising the security of other sites as well. These decisions are mistaken. Nothing in the applicable state or federal rules governing discovery requires or even permits a court to order a person to allow another party to obtain documentary evidence directly from the source. Instead, the rules require that person only to produce responsive materials within the scope of discovery. Although it has not often been recognized, this production procedure serves a privacy-protective function: nonresponsive, irrelevant, or otherwise objectionable documents are seen only by one’s own counsel until a court specifically orders them to be turned over. There is no demonstrated need for a different procedure for social networks. By ordering parties to provide opposing counsel with unfettered access to entire accounts, including nonresponsive or irrelevant posts, photographs, and comments, both from the user and from all of the user’s friends and family, courts are needlessly violating the privacy of individuals even more than discovery already requires. Although there are times when the novel technological situation posed by the Internet, and its concomitant social transformations, require reinterpretation of a longstanding rule, this is not one of those times.

In recent years it has become feasible for computers to rapidly scan the contents of large amounts of communications traffic to identify certain characteristics of those messages: that they are spam, contain malware, discuss various products or services, are written in a particular dialect, contain copyright-infringing files, or discuss symptoms of particular diseases. There is a wide variety of potential uses for this technology, such as research, filtering, or advertising. But the legal status of automated processing, if it is done without advance consent, is unclear. Where it results in the disclosure of the contents of a message to others, that clearly violates the federal law governing communications privacy, the Electronic Communications Privacy Act (ECPA). But what if no record of the contents of the communication is ever made? Does it violate communications privacy simply to have a computer scan emails?

Games are deceptively simple objects of human culture. They are familiar, commonplace, and often easy to learn: young children play them at an early age. For most people, games are a pastime, a form of recreation that involves relatively little preparation or time commitment. They are thus the very opposite of work, and hardly comparable to such serious pursuits as scholarship or art. For all their seeming ingenuousness, however, games are also deeply puzzling. Defining games is a notoriously difficult enterprise. Scholars from several different disciplines have struggled to determine what the nature, or essence, of games really is. And the elusiveness of games poses problems for intellectual property law as well. Games seem to straddle the boundaries between copyright and patent, between author, performer, and reader, and between protected and unprotected material. Games are an entertainment medium on par with such copyrightable material as music, films, or novels. But games are also comprised of rules and instructions, like uncopyrightable recipes and patentable procedures. Games convey an experience of play to users, just as music and drama convey an aesthetic or narrative experience to viewers and listeners. But the experience of game

ABSTRACTThe success or failure of digital rights management is often taken in legal circles to be a technological question: has a particular scheme already been cracked? How broadly is protected content being redistributed? Can any scheme provide absolute security for content? By these measures, DRM, at least in its most visible applications, has been a failure, as has its legal bulwark, the Digital Millennium Copyright Act. Most widely available schemes are cracked within a few years of release. And due to the nature of the Internet, breaking a scheme once means it is broken everywhere. Under these conditions, absolute security is both required and impossible. This is the so-called "Darknet" hypothesis, first described at the ACM-DRM workshop nine years ago. But the success or failure of DRM and anticircumvention policy generally is also a legal question, or more properly, a question about how law and technology interact with society. Assessing DRM's success therefore requires first determining its place in a copyright landscape that is undergoing a fundamental transformation. That transformation can be described simply as a disappearance of gates. Copyright relies on a world that makes copying without permission costly and difficult. That is, it relies on natural choke points at which access to content can be traded for money. Those natural choke points, or "gates," are disappearing. DRM is an attempt to reestablish a sort of gate, and its success or failure in any given application depends on how well it mimics the real-world gates it is replacing. And that is primarily a social question, not a technological one. Furthermore, it indicates a different set of threats to DRM schemes, and to the policy embodied in the DMCA: to the extent such schemes visibly interfere with common uses, their viability as replacement gates is diminished. The gravest threat to DRM schemes may come not from a particular sophisticated attack, but rather from a dissipation of the illusion of naturalness.

This article solves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two other categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. Neither definition gives the term any meaningful content. Like solving a crossword puzzle, this Article uses each of these questions to shed light on the other. Games are uncopyrightable because they are systems. The case law that led to the adoption of Section 102(b) demonstrates that systems are schemes for transforming user inputs into a correlated set of outputs. Games do exactly that. A game is a scheme for transforming player activities into moves within the game. The reason why games and other systems are uncopyrightable then becomes clear: the purpose of a system is to serve as a forum for user activity; it is users, not authors, who provide the primary informational value to the outputs of a system. Games and other systems are excluded in order to fence in copyright protection before it reaches user creation.

The American Constitution was born flawed: it failed to provide a mechanism for resolving entrenched differences in the social status regimes between states. This Article argues that part of the purpose of the Privileges or Immunities Clause of the Fourteenth Amendment was to correct that flaw. The Privileges or Immunities Clause was the culmination of a long antebellum debate over whether southern states had to respect the rights of northern black citizens as they traveled. The Clause achieves this goal by requiring states in certain circumstances to respect the status determinations of other states when the citizens of those other states travel. Although this aspect of the Privileges or Immunities Clause has long been forgotten, it survived the Supreme Court’s decision in the Slaughter-House Cases. And there is a good chance it will soon be needed again. The United States is on the verge of an entrenched conflict between states concerning the recognition of the status of marriage for same-sex couples. Although multiple resolutions are possible, the forgotten component of the Privileges or Immunities Clause may provide a more stable and effective framework for determining when states must respect the status determinations of other states. As a structural remedy rather than one based solely on individual rights, the Clause’s protection for state status determinations is only triggered when a critical mass of states line up for or against recognizing the * Assistant Professor, Marquette University Law School. B.A., Arkansas; M.A., Northwestern; J.D. Yale. This Article spent an unusually long time in development, and thus I have accumulated more debts in writing it than I can possibly remember. As partial repayment, I wish to thank Prof. Reva Siegel and the participants in her Historical Perspectives on Women and the Law seminar in Spring 1997, where this project originated; Kenji Yoshino; Andrew Koppelman; Chuck Sims; Proskauer Rose LLP, which provided research support while I was employed there; Sharon McGowan and participants at the “Freedom to Marry: Consolidating Strategies, Planning Victories” conference at Harvard Law School, where an earlier version of this paper was presented; my Marquette colleagues Michael O’Hear, Chad Oldfather, Kali Murray, Nadelle Grossman, and Ed Fallone, who volunteered significant amounts of their time to read and critique drafts; Jeffrey Mies for his research assistance; and above all Amy Quester, for her unflagging encouragement and support. Sometimes it takes a village to write a law review article.