Course Outline

As of  February 23, 2015


                                                  Legal Constraints on (Digital) Creativity (Law 423C.002)                     

                                                 Allard School of Law @ University of British Columbia 

                                                  Spring 2015:  (Tuesdays, 9:30 a.m. to 12:30 p.m. Room 114)

                                                   Jon Festinger, Q.C.

                                                   Centre for Digital Media; Festinger Law & Strategy

                                                   Work: 604-568-9192

                                                   Cell: 604-837-6426 



                                                   Office Hours: By email appointment

                                                   Course Website:

(Thanks to UBC Centre for Teaching, Learning & Technology for design, implementation and continuing support)

Twitter: @jonfestinger; Add #ubclcc to tweets and re-tweets to post in Twitter widget at course website


A. Abstract:

This course examines the implications to the human creative process engendered by law and legalities.

The invention of digital worlds has resulted in changes and advancements that could scarcely be imagined, with much more still to come. As significant as was the coming of the Internet, the development of software languages, and the growth of social media, they are only part of the story. Among the most profound changes is a fundamental shift in our conception and understanding of what “creativity” means and how it manifests. With today’s tools it is clearer than ever that everyone is a content creator.

It is particularly in this light of the democratization of creativity that this course seeks to understand the content realms. Today many legal perspectives are rights based. Rather than another dialectic on rights, we will catalogue and debate the myriad ways creativity is in fact restrained, shaped, and altered even while “freedom of speech/expression” is acknowledged. Above all we will seek to specifically identify the roles of law & regulation in this process. In so doing we will deepen our understanding of censorship, its conventions and guises.

We will travel with the creator on the journey their content traverses. In particular we will focus on how intended and received meanings are altered as a consequence of the constraints we identify. We will in every class proceed from the inside out, from the creation of an idea through stages of gestation, fixation, distribution, communication, reception, comprehension, interpretation, and understanding.

Our classes will examine different levels of creative constraint, as well as cataloguing their consequences to creators, the creative process, and democracy itself. We will, employing various methods, survey the following layers of control, encompassing the purely private to the state sponsored:

1. Creative Models & Community Constraints (extra-legal)

2. Technological & Structural Constraints

3. Copyright, Remixing & Modding

4. Trademarks, Patents & the IP Business (including “IP trolling”)

5. Contractual Constraints (EULA’s, ToS’ and the “Post IP World”)

6. Privacy, Defamation, & Personality Rights 

7. Industry & Medium Regulation in a Digital Age (net neutrality, neg regulation & the future of “Broadcasting”)

8. Consumer Protection (“Big Data” as well as psychological manipulations or “brain-gaming”)

9. Criminal/Obscenity/Taxation/Currency/Gambling Law & Regulation

10. Internet Governance & Surveillance (and the meanings of “Hacking”)


B. Pedagogy:

The digital world is ensuring that the nature, meaning and application of “creativity” itself is changing and morphing every day. The scope of disruption appears to be massive and the legal questions being put into play never ending. Most important for our purposes is that the sheer amount of change coupled with it’s extraordinary pace allows us the possibility of using real world events as a living lab for emerging legal issues impacting creativity. As such the pedagogy of this course is facilitate engagement with real world issues, while identifying their legal background and antecedents.

The design of this course is predicated on the idea that what is being taught and the tools it is being taught with are in dialogue. In other words how a course is taught can be an example of what is being taught. Guided subject dialogues, the course website, student presentations, “news of the week”,  guest speakers and group exercises will all be used to promote engagement with the subject. The course is itself meant to be part of a creative dialectic.


C. Essential Steps To Promote Critical Thinking

 Cause genuine and relevant inquiry into the big ideas of the core content.

 Provoke deep thought, lively discussion, sustained inquiry, and new understanding as well as more questions.

 Require the consideration of alternatives, weighing of evidence; support ideas, and justify answers.

 Stimulate vital ongoing rethinking of big ideas, assumptions, and prior lessons.

 Spark meaningful connections with prior learning and personal experiences.

 Naturally recur, creating opportunities for transfer to other situations, refer to “core ideas and inquiries within a discipline” and help effective inquiry to make sense of important but complicated ideas and knowledge.

(Wiggins and McTighe – 2011)


D. Course Materials:


Lessig, L. CODE 2.0. (Basic Books)


Grimmelmann, J. Internet Law: Cases and Problems 4.0 (Semaphore Press)

Lastowka, G. Virtual Justice (Yale University Press) 


E. Rules:

All students at the Allard School of Law are subject to the University’s rules on Academic Misconduct (, and are expected to act with academic integrity at all times. Students should be especially aware of the University’s rules in relation to plagiarism. Plagiarism includes: copying the work of another student; copying or paraphrasing from a textbook or reference book, journal article, case or electronic source without proper footnoting; copying your own work that has already been submitted for another course in this degree or another degree, passing off the ideas of another person as your own. If you plagiarize, you will be subject to penalties set out in the UBC calendar. (,54,111,959)

In this class: 1) everyone is allowed to feel they can learn in a safe and caring environment; 2) everyone learns about, understands, appreciates, and respects varied races, classes, genders, physical and mental abilities, and sexualities; 3) everyone matters; 4) all individuals are to be respected and treated with dignity and civility; and 5) everyone shares the responsibility for making the class, and the Academy, a positive and better place to live, work, and learn. (Source:

F.          Syllabus:

Introduction to the Course

Class 1: January 6, 2015 – Introductory Ramblings

  • Overview of 1st class
  • Objectives of the course
  • Pedagogy of the course
  • Student Bio’s, interests, biases & objectives
  • Website, Wiki’s & Media
  • Evaluation
  • Course themes
  • Course flow & topics
  • Discussion Hour structure
  • Website + “News of the Week” + “What is Your Take?”
  • Discussion Hour speakers + questions/conundrums
  • Open input/comments/reactions



Class 2: January 13, 2015 – Creative Models & Community Constraints (extra-legal)

Dialogue: “Brain Games , Understanding Interactivity & Freedom of Thought in a Post-Snowden World” 

Text: “Creating Around Creativity” – J.P. Fishman

Other Materials:

William Fisher, Copyright Spring 2013: Special Event 3, Extralegal Norms (HLS)


News of the Week Discussions – Charlie Hebdo

Collaborative Event: Designing a “Charter of Digital Rights” (a brainstorming session)


Class 3: January 20, 2015 – Technological Constraints:

News of the Week Discussions 

Dialogue: ” Relating Memes of Justice & Technology Part 1″

Text: “Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds” – J.M. Balkin

Other Materials: 

Johanna Blakely, Lessons from fashion’s free culture


Collaborative Event led by Ryan Vogt on “Open Source”


Class 4: January 27, 2015 – Copyright Law & Remixing: Constraints & Constructions

News of the Week Discussions 

Dialogue: ” Relating Memes of Justice & Technology Part 2″

Text: “Games and Other Uncopyrightable Systems” – B. Boyden

Other Materials: 

Everything is a Remix by Kirby Ferguson


Collaborative Event led by Aman Owars


Class 5: February 3, 2015: Trademark, Patent & other IP Constraints

News of the Week Discussions

Dialogue: “Contextualizing  (IP) Censorship: Considering Machinima/Remixing/FanFic Part 1”

Text: “The Economy of Ideas” – J.P. Barlow

Other Materials:

Steven Johnson: Where good ideas come from (TedTalks)


Collaborative Event led by Alex Buonassisi


Class 6: February 10, 2015 – Contractual Constraints

News of the Week Discussions

Dialogue:“Contextualizing  (IP) Censorship: Considering Machinima/Remixing/FanFic Part 2” 

Text: “The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property” – O. Lobel

Other Materials:

Jessica Silbey on The Eureka Myth: Creators, Innovators and Everyday Intellectual Property


Collaborative Event led by Michael Jud


Class 7: February 24, 2015 – The Post I.P. World

News of the Week Discussions


“Creators, Consumers, Users & Identities: Options, Models & Cross-Cultural Moralities”

Text: “Razing the virtual glass ceiling” – R.A. Ratan, V. Lehdonvirta, T.L.M. Kennedy & D. Williams

Other Materials:

Bruce Springsteen’s SXSW 2012 keynote 


Collaborative Event led by Amjad Khadhair


Class 8: March 3, 2015 – Privacy as Constraint

News of the Week Discussions

Dialogue: “Conflating Privacy & Commerce: Rights to be Known & Forgotten in Digital Realms”

Text: “The Two Western Cultures of Privacy: Dignity versus Liberty” – J.Q. Whitman

Other Materials:

Amanda Palmer, The Art of Asking


Collaborative Event led by Andrew Ming-Lum


Class 9: March 10, 2015 – Industry Self Regulatory Constraints

News of the Week Discussions

Dialogue: “Hot Coffee, Cold Receptions, Frozen Content &  the River Styx”

Text: “Censorship V3.1” – D.E. Bambauer

Other Materials: 

Jonathan Zittrain on Memes & Society


Collaborative Event led by Kyle Thompson


Class 10: March 17, 2015 – The Constraints of Medium Regulation

News of the Week Discussions

Dialogue: “Cultural Content Regulation, Net Neutrality, DRM, Corporate Hegemony & Regulatory Warzones: An Unholy Pentalogy?”

Text: “Areopagitica” – J. Milton

Other Materials:

Anil Dash, The Web We Lost


Collaborative Event led by Yue Fei; & 

Collaborative Event led by Levin Low


Class 11: March 24, 2015 – Consumer Law Constraints

News of the Week Discussions

Dialogue: “The Road to Hell is Paved With…Big Data, Virtual Economies & 3D Printed Brainiac Robots” 

Text: “Digital Market Manipulation” – R. Calo

Other Materials:

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927

Collaborative Event led by Laura Wilson


Class 12: March 31, 2015 – Surveillance, Spying & Criminal Law Constraints

News of the Week Discussions

Dialogue “Surveillance, the Skinner Box & the science of pacification”

Text: “The Right to Privacy” – S.D. Warren & L.D. Brandeis

Other Materials:

Who’s Watching Whom? Michael Geist Examines Internet Privacy & Surveillance


Collaborative Event led by Tiffany Budhyanto


Class 13: April 7, 2015- Digital Ethics & the Threat to Creativity 

News of the Week Discussions

Dialogue: “Aaron Swartz, The Lucifer Effect & the agonies of  creation”

Text: “Network Neutrality, Broadband Discrimination” – T. Wu

Other Materials:

“Aaron’s Laws – Law and Justice in a Digital Age” Lawrence Lessig


Collaborative Event led by Amanda Binnie




(1)  Term paper accounts for 60% of the final grade.

  1. A minimum 18- 20 page paper (5,000 words) or equivalent is expected.
  2. The paper is due on the last day of the exam period at 4:00 p.m.
  3. Papers must be handed in at the Reception Desk  in paper format, and e-mailed to the Instructor in Word or PDF format.


(2)  Class Participation accounts for 40% of the final grade 

(i)            25% of the mark will be based on group preparation of a Discussion Outline that must be created and handed out to the class—preferably by posting on the course website—at least a week before your particular discussion takes place and leading the discussion for that week.

(ii)          15% for student participation in the other course seminar discussions then their own (including contributions to etc.) 

Note with respect to class participation:  Factors taken into consideration are attendance, level of engagement in course related discussions & activities, evidence of preparation for class, contribution to disscussions, evidence of attention to the analysis of others and consideration of how such analysis might affect one’s own.

Note with respect to term paper/major project: Given the emergent nature of the subject matter, the opportunities for scholarship are vast.  Cases and previous legal academic contributions have almost exclusively been non-Canadian and have generally not focused on how court decision in other jurisdictions might be resolved under Canadian law.  That said you are not limited to such topics or perspectives.  As well, large territories of legal interest have simply gone unexplored and even undiscovered. Grading will reward thoughtfulness, incisiveness, originality and depth of research, potential for publication/public availability as well as rigorousness of analysis and clarity of presentation.  Term paper is due in hard copy form (with digital copy if convenient) by 4 P.M. on April 24, 2015.

All UBC law students are subject to the University’s rules on Academic Misconduct (, and are expected to act with academic integrity at all times. Students should be especially aware of the University’s rules in relation to plagiarism. Plagiarism includes: copying the work of another student; copying or paraphrasing from a textbook or reference book, journal article, case or electronic source without proper footnoting; copying your own work that has already been submitted for another course in this degree or another degree, passing off the ideas of another person as your own. If you plagiarize, you will be subject to penalties set out in the UBC calendar (,54,111,959)