Copyright’s Media Theory and the Internet
The Case of the Chilling Effects Doctrine
Despite copyright’s expansion into new online spheres and technological contexts, and the increasingly interdisciplinary nature of copyright scholarship, intellectual property scholars, particularly those interested in digital copyright, have offered little exploration of methodology and methodological issues, and scholarship offers even fewer methodological investigations and debates. This area of Internet-related legal research remains, like others, without established “texts, theories, and methodologies.” This chapter aims to help fill some of that void, by offering an exploration of the problems that can arise when applying certain legal doctrines to online contexts, through a case study of the “chilling effects doctrine” — a legal doctrine that holds that certain laws and regulatory schemes can “chill” or deter people from engaging in certain kinds of legal (and possibly desirable) activities — and its emergence or “transplantation” into debates about copyright enforcement online. The case study provides a helpful point of entry into a broader methodological discussion about applying legal norms to media. Specifically, the author draws on insights from other disciplines and research fields to unpack and scrutinize the chilling effects doctrine and it methodological, empirical, and normative assumptions.
Jonathon W Penney
Jonathon W Penney has taught at Dalhousie University’s Schulich School of Law since 2012. He is currently a Berkman Fellow at the Berkman Center for Internet & Society at Harvard University, a Research Fellow at the Citizen Lab, Munk School of Global Affairs, University of Toronto, and a doctoral candidate at the Oxford Internet Institute, University of Oxford.