Author Archive for deven-desai
Ozymandias Lessons for Copyright
posted by Deven Desai
Ann Bartow’s post about Paul Zukofsky, son of Louis and Celia Zukofsky, and his attempt to exert extreme control over his parents’ work reveals that heirs are problem for copyright. Mr. Zukofsky asserts some untenable points about his power over the material and the need for academics to seek his approval. The full letter is on his site. Here are some choice quotes:
Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of “fair use”. “Fair use” is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights. …
Next, other than for the following, I am not trying to censor you. I hardly give a damn what is said about my father (I am far more protective of my mother) as long as the name is spelled properly, and the fees are paid. My interest is almost purely economic. That being said, I do not approve of delving into the personal lives of my parents. If you wish to spend your time worrying if LZ did or did not shtupp alligators, that is your problem, but I will not approve quotation. That is not scholarship. That is gossip, and beneath contempt. …
Finally, when all else fails, and you remain hell-bent on quoting LZ, but you really, really REALLY do not want to deal with me, or you have been stupidly advised to try to circumvent me — remind yourself again and again, and yet once more, what Lyndon Baines Johnson’s said about J. Edgar Hoover i.e.: “I’d rather have him inside the tent pissing out, than outside pissing in”.
Although these statements may seem like ravings, Mr. Zukofsky is not alone in having these perspectives. As some know, the Joyce, T.S. Elliot, J.R.R. Tolkien, J.M. Barrie, Sylvia Plath, Samuel Beckett, and Bertolt Brecht estates have expressed similar views. What strikes me here is that although Louis and Celia Zukofsky are important figures in American poetry, I would bet that many are unaware of who they are. Their son’s perspective of wanting extreme control, little discussion, and rent extraction indicates his interest in, well, his interests. Those do not seem to include aiding people who wish to keep the artists in question alive as part of our culture. All of which makes me think Mr. Zukofsky might take a lesson from another poet, Percy Bysshe Shelley, for I think that not even the pedestal may remain for his parents if he maintains this posture.
OZYMANDIAS
I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them, on the sand,
Half sunk, a shatter’d visage lies, whose frown
And wrinkled lip, and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamp’d on these lifeless things,
The hand that mocked them and the heart that fed.
And on the pedestal these words appear:
“My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!”
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.
IMAGE: WikiCommons. Thought to have inspired the poem.
License: GNU Free Documentation License, Version 1.2 or any later version published by the Free Software Foundation
Description: The British Museum, Room 4 – Colossal bust of Ramesses II, the ‘Younger Memnon’ From the Ramesseum, Thebes, Egypt 19th Dynasty, about 1250 BC. One of the largest pieces of Egyptian sculpture in the British Museum. Weighing 7.25 tons, this fragment of his statue was cut from a single block of two-coloured granite. He is shown wearing the nemes head-dress surmounted by a cobra diadem.
Author: Mujtaba Chohan E-mail: m.chohan@gmail.com Source: British Museum Visit
November 18, 2009 at 2:18 pm
Tags: copyright, heirs, Ozymandis, Zukofsky
Posted in: Intellectual Property
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BRIGHT IDEAS: John Temple on The Last Lawyer
posted by Deven Desai
John Temple is Associate Dean of the P.I. Reed School of Journalism. His new book, The Last Lawyer, follows Ken Rose as he handles a post-conviction death penalty case. Whether one is for or against the death penalty, the book reveals how any system with capital punishment must face the problems of inadequate defense, mental retardation, mental illness, and sketchy witness testimony. John is not, however, a lawyer. His post today explains what drew him to this story and the difficult choices the story made him face as writer. For those interested in chronicling major social issues and for those who want to know the details of what it takes to do capital defense work, this book should be a great place to start.
THE LAST LAWYER
By John Temple, author of The Last Lawyer
Unlike many authors who set out to write about hot-button issues, I was not motivated by ideology, but rather by a journalistic impulse — what Tom Wolfe calls the desire to chronicle “the way we live now.”
About 10 years ago, I saw a news brief about a team of lawyers who were flying in to Texas to defend a man who faced a looming execution date. It had never occurred to me that there were lawyers who specialized in last-minute capital appeals. That was a book, I thought. It would have the scope, the ticking-clock narrative, the characters with goals.
In 2004, I began looking for the right setting. I settled on North Carolina. It had a large death row, an organization exclusively devoted to fighting death sentences (the Center for Death Penalty Litigation), and it was within driving distance of my home in West Virginia. I contacted Ken Rose, the executive director of the CDPL, and explained my plan. He helped me arrange a visit to Durham to meet some attorneys who might have a case I could follow. He was clear that he thought the attorney should be someone other than himself.
In May of that year, I drove to Durham and spent the first couple of days interviewing CDPL attorneys, including Ken. None of the other lawyers were litigating cases that seemed quite right for my idea. Meanwhile, I was growing more interested in Ken, a self-effacing, driven man who’d been doing the work for more than a quarter-century. But Ken brushed aside my queries about his own cases.
At Ken’s request, I had carried along a manuscript of my then-unpublished first book, Deadhouse: Life in a Coroner’s Office. I was nervous to give it to him because it was a book about courts and homicide cases, Ken’s area of expertise. I worried he’d find something offensive – or worse, incorrect – and cut off my access.
But he read the manuscript in one night, and the next day, he gave it back to me without much comment. Whatever he’d thought, he had apparently come to a conclusion. He sat back on his couch and said the words I’d been hoping to hear: “You know, I have a case you might be interested in.”
“Tell me about it,” I said.
That was the beginning of my four-and-a-half year journey into the world of capital post-conviction law. But just because Ken was willing to share the story of one of his cases for me didn’t mean that I had gained full access to the case. For the next several months, Ken and his co-counsel and I negotiated an agreement that would give me the detail I needed to write a full and honest account of the case.
We eventually struck a deal. They agreed to give me full access to their case files and allow me to shadow them during strategy sessions and witness interviews.
In exchange, I made several concessions. I agreed not to publish the book until the case had reached some sort of conclusion, whether that meant a reduced sentence, exoneration, or execution. This was difficult because capital post-conviction cases can drag on for decades, and I had not yet earned tenure. It was a gamble, but one I was willing to take, because I simply didn’t want to write a book about an unfinished case.
I also agreed to let the CDPL lawyers read the book before I published it, though I would retain full editorial control. As a former newspaper reporter, I’d been trained to never allow sources to read your work before publication. However, I didn’t think the rationale behind this journalistic tradition applied to a book of this scope. Why not give sources the chance to correct factual errors, I thought, especially when I had retained editorial control on a story that was years in the making? It wasn’t a difficult concession.
After all the years of work, the book is now finished, and we all adhered to our agreement. When I sent Ken Rose the completed manuscript last year, I was very concerned about his reaction. Some parts of the book paint him in an unflattering light, and he’s not a guy who loves the limelight in the first place.
Though he was initially concerned about a few aspects, and clearly uncomfortable in the role of the book’s protagonist, Ken has handled the book’s publication in the most gracious manner. He recently participated in a panel discussion with me at West Virginia University, and has invited me to North Carolina to speak together.
It’s impossible to sum up what I learned over this five-year journey, but from a writer’s standpoint, I’ll offer what I deem to be the biggest lessons. First and above all else, choose a subject that fuels your passion, because when things break down or seem like they might not work out (as was the case for an almost 18-month span during my reporting), you’ll need that inner strength to continue. Second, don’t be afraid to jump outside of your comfort zone. It felt awkward and “unjournalistic” to allow the characters in my book to read the manuscript before publication, but the product was much more accurate as a result. Finally, a little luck can never hurt — and a happy ending is the icing on the cake.
November 16, 2009 at 2:04 pm
Tags: Capital Punishment, journalism, The Last Lawyer
Posted in: Bright Ideas
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Cultural Evolution?
posted by Deven Desai
You be the judge.
1976
Pastime Paradise – Stevie Wonder
1995
1996
By the way, I suggest that anyone wanting a great album acquire Stevie Wonder’s Songs in the Key of Life.
November 16, 2009 at 2:01 pm
Posted in: Intellectual Property, Just for Fun
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Is Anything Ever Out of Print? Or Google and The Monkey’s Paw
posted by Deven Desai
As the Google Book Deal approaches its next phase, I am wondering does anything ever go out of print? Pam Samuelson and others have noted the vague nature of the deal. I have poked at some drafting issues at the Public Index. The out of print problem seems like a key issue about why this deal should not proceed. (I am assuming that the out of print terms will not change much or at all). How books are treated from display to revenue is controlled heavily by the print status. Indeed, the deal is premised on the idea that so many out of print books will be available. Yet, if one reads this rather complicated entertainment industry-styled deal, one may find that out of print is a moving target. If I am correct, that is not a good thing.
Let’s look at the deal. Old Section 3.2 covers what display status is allowed for a book and requires a determination of whether a book is commercially available. Who determines that status? Google (3.2(d)(i)). Google will conduct:
an analysis of multiple third-party databases as well as an analysis of the Book’s retail availability based on information that is publicly available on the Internet. When analyzing the third-party databases, Google will use the publishing status, product availability and/or availability codes to determine whether or not the particular database being used considers that Book to be offered for sale new through one or more then-customary channels of trade in the United States
Of course as the market shifts and on-demand or digital publishing grows (and yes we ought to consider that those two models could easily be the norm for the near future) all books will be publicly available. If so, the determination seems to be useless. But, even a deferential reading that some books will be out of print has problems. Consider that the default is that if Google can’t find proper information as defined in the deal about a book (can anyone say orphan works analog with me?) the default is that the book is not commercially available. (“All Books for which Google does not have information from the sources identified above will be determined to be not Commercially Available.”)
Furthermore, the rightsholders can assert that a book is commercially available and then Google must honor that claim unless it ; “reasonably believes that the information is inaccurate.” That standard is an invitation to either fight or fight only when the stakes are right. They won’t be right unless a huge number of claims are asserted and Google wants to pick up the problem of an aggressive publisher industry. Again with on-demand and digital publishing the publishers could in good faith claim that a book is commercially available.
Let’s go further into the process where we shall see that some rather odd ideas about reversion and out of print are in control and a possible, but not certain, safety valve about how the determinations are made. The deal states “Google’s initial determination of whether or not a Book is Commercially Available will be used to initially classify Books as “In-Print” or “Out-Of-Print,” as such classifications are defined in the Author-Publisher Procedures, and only for purposes of the Settlement.”
So Google makes the determination, but there are limits. In fact, if one goes to the Author-Publisher Procedures, one finds a command (“shall” indicates no discretion to me):
November 9, 2009 at 1:30 pm
Posted in: Google & Search Engines, Intellectual Property, Technology
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Introducing Guest Blogger Alex Kreit
posted by Deven Desai
I am excited to introduce my colleague, Alex Kreit, as a guest blogger with us this month. Alex is an assistant professor and director of the Center for Law and Social Justice at Thomas Jefferson School of Law where he teaches Criminal Law, Criminal Procedure and Property. This spring, he will be teaching a course on Controlled Substances law.
After graduating from the University of Pennsylvania Law School, Alex clerked for the Honorable M. Blane Michael on the U.S. Fourth Circuit Court of Appeals. He then worked as an associate at Morrison & Foerster in San Francisco where his practice focused on securities and appellate litigation. While at Morrison, he co-authored an amicus curiae brief for Students for Sensible Drug Policy in the U.S. Supreme Court case Morse v. Frederick (better known as the “Bong Hits 4 Jesus” student free speech case). Alex’s articles have appeared in the American University Law Review (Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton), the Harvard Journal of Law and Public Policy (Why Is Congress Still Regulating Noncommercial Activity?), the University of Chicago Legal Forum (forthcoming 2010), and the William & Mary Bill of Rights Journal (Making Sense of Facial and As-Applied Challenges) (forthcoming 2010). He is actively involved in the community and currently serves as Chair of the City of San Diego’s Medical Marijuana Task Force and as a member of the board of the San Diego Lawyer Chapter of the American Constitution Society.
November 2, 2009 at 8:19 am
Posted in: Uncategorized
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Introducing Guest Blogger Matthew Sag
posted by Deven Desai
I am delighted to introduce guest blogger Matthew Sag. Matthew is an Associate Professor at DePaul University College of Law in Chicago, Illinois. Matthew was born and educated in Australia and has practiced law on three continents. He began his legal career by clerking for one of Australia’s preeminent legal academics, Justice Paul Finn in the Federal Court of Australia. After that he practiced briefly in Australia and then in London with Arnold & Porter before joining Skadden Arps in Silicon Valley just in time for the dot-com meltdown. Matthew has been a permanent member of the DePaul Law faculty since 2006 and has visited at Northwestern Law and at the University of Virginia School of Law.
Matthew’s research focuses on economic and empirical analysis of intellectual property. Matthew has written influential work on the fair use doctrine in copyright law, patent reform, and the political economy of intellectual property. Matthew is an active participant on the ongoing debate about the Google Book project and his comments on the (now defunct) settlement agreement can be found on this series of YouTube videos and in his latest working paper, The Google Book Settlement and the Fair Use Counterfactual.
I have known Matthew for several years and find that I always learn something when we talk or I read his work. Here is list of some Matthew’s most recent articles:
Copyright and Copy-Reliant Technology 103 Northwestern University Law Review (forthcoming 2009)
Ideology and Exceptionalism in Intellectual Property – An Empirical Study, 97 California Law Review 801 (2009) (co-authored with Tonja Jacobi & Maxim Sytch)
Taking the Measure of Ideology: Empirically Measuring Supreme Court Cases, 98 The Georgetown Law Journal (forthcoming 2009) (co-authored with Tonja Jacobi)
You can obviously learn more about Matt and his work while he guest blogs with us this month. In addition, he has a personal Website, and of course you can track down his other works on his SSRN page.
November 2, 2009 at 7:57 am
Posted in: Administrative Announcements
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Another Way to Understand Twilight and Authors
posted by Deven Desai
Apparently Stephenie Meyer, the author of the Twilight series, started writing a version of the series from a different character’s (Edward’s) point of view and the early, incomplete draft was leaked onto the Internet. Jacqui Lipton’s post about Stephenie Meyer’s “reaction to the unauthorized release” of her partial draft reveals another way to think about what is going on here. I followed the link to Ms. Meyer’s post about the problem. I was quite surprised to see that Ms. Meyer has posted the draft on her web site while also expressing her view about reading the draft:
I’d rather my fans not read this version of Midnight Sun. It was only an incomplete draft; the writing is messy and flawed and full of mistakes. But how do I comment on this violation without driving more people to look for the illegal posting? It has taken me a while to decide how and if I could respond. But to end the confusion, I’ve decided to make the draft available here (at the end of this post). This way, my readers don’t have to feel they have to make a sacrifice to stay honest. I hope this fragment gives you further insight into Edward’s head and adds a new dimension to the Twilight story. That’s what inspired me to write it in the first place.
Why post the draft? One could simply ask readers not to read the draft floating around the Internet. Note that Ms. Meyer explicitly does not want to drive people to the unauthorized work. To me this move seems like a way to re-capture the attention that might have gone the sites with the download. In that sense, she may be using her reputation and attention power to undercut the benefits that may flow from unauthorized distribution. Of course there may be sales problems here as some may have been willing to pay even for the rough draft. But that idea probably does not cut off the usual claim that leaking will harm the final market. I would be surprised if those who read the early manuscript will not be more than happy to buy the final draft. In other words, the law often claims that the harm in such leaking or copying is that the unauthorized version is a substitute for the full work which I don’t think is the case.
To be clear, I think Ms. Meyer doesn’t want people to read the draft. But faced with the draft being out there, her response is simply a wise strategy. She tells her fans 1) Don’t read it 2) If you have to read it, read it from my site, 3) Reading from my site is a way to stay “honest” and not “sacrifice” (I am not sure what is being sacrificed but I think it is integrity or loyalty to the author) which means not fueling those who are taking value away from her.
There is an extra point here. When Ms. Meyer says she can’t continue with the book, she is giving honest information to her fans: certain acts (i.e., unauthorized copying and distribution of her work) upset her. In fact, they upset her enough that she will not finish the work in question. I don’t think this point is a threat. And, regardless of motivation, the move tells fans how she wants to interact with them. Insofar as there is relationship with her fans, Ms. Meyer has communicated what she expects. A Rebecca Tushnet pointed out in the comments to Jacqui’s post, there are already “over 100,000 Twilight stories–some of them from Edward’s perspective–available at fanfiction.net. How Ms. Meyer feels about those stories may differ from how she feels about her draft being distributed without permission. So as Jacqui points out this one is personal, but I think it may also be professionally wise.
P.S. Those interested in more on how reputation and attention will be a key asset in an online world may want to read my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System.
October 22, 2009 at 6:46 am
Tags: attention, copyright, reputation, trademark, Twilight
Posted in: Intellectual Property, Technology
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Appearing for the Defendant, $186,416.00: Medical Marijuana, State Law, and the Fourth Amendment
posted by Deven Desai
The Ninth Circuit just issued an opinion about the interplay between state law enforcement, federal law enforcement, the Fourth Amendment, and state law.
The LAPD obtained a warrant to search a licensed medical marijuana facility. The LAPD did not, however, tell the judge that the place to be searched was licensed. The search proceeded. Around 209 pounds of marijuana, 21 pounds of hashish, and 12 pounds of marijuana oil were seized along with $186,416.00. The facility wanted the money back, but it had been turned over federal law enforcement and forfeiture proceedings were started. If forfeited, the city stood to gain about 80 percent of the money. The Ninth Circuit The Ninth Circuit’s ruling (pdf) has the full details. This passage seems to sum up the problem and the way in which the LAPD erred.
While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. Nothing in the documents prepared at the time the warrant was obtained from the state court or in the procedure followed to obtain that warrant supports the proposition that the LAPD thought it was pursuing a violation of federal law. Instead, it sought a warrant from a state court judge, though, as the District Court found, it lacked probable cause for a state law violation and failed to inform the state court judge of relevant facts that supported the conclusion that UMCC was not in violation of state law. The LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law.
I defer to Fourth Amendment scholars as to whether this ruling makes sense. Nonetheless, it seems that the federal government’s new policy might mean that state or local government that wants the federal government involved in going after medical marijuana facilities will have to persuade the federal government that a facility is not complying with state law. That requirement seems to match what the Ninth Circuit is saying state and local law enforcement groups should do with state judges in the first place.
October 21, 2009 at 7:25 am
Tags: Fourth Amendment, medical marijuana
Posted in: Criminal Law, Criminal Procedure, Health Law, Privacy (Law Enforcement)
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Medical Marijuana: A Wild Ride on Federal and State Law
posted by Deven Desai
The Justice Department has announced a policy memo about how it will handle medical marijuana. The full memo is on The Justice Blog and in pdf here. As AP summarizes the DOJ will go after medical marijuana operations that exceed state laws or are fronts for criminal acts. At the same time, the New York Times reports that Los Angeles is thinking of cracking down on its more than its estimated 800-1,000 (yes 800-1,000) dispensaries. It seems that many are not adhering to the law that allowed them to exist. For example, many are turning a profit which apparently is not allowed; they must be non-profit. One dispensary in Oakland that adheres to the law has revenues of around $20 million. As the Times reports in other states such as New Mexico, licensed sites still encounter vague and contradictory rules as couriers can be stopped by border patrol and the medical marijuana confiscated even though the delivery is authorized. My colleague Alex Kreit does some great work on drug policy and certainly knows more about it than I. Luckily he will be guest blogging here in the near future. For now I will point folks to his op-ed Yes: It’s Time To Rethink Marijuana Prohibition. It is a thoughtful approach to what to do about marijuana (and has some fascinating figures about how many Americans use marijuana). For me, the recent moves by the federal and state governments seem to indicate that some better system is required to allow the medical use of the drug. The inconsistent standards and enforcement within each state is not great. The more difficult question is how much will medical marijuana be seen as using the federal system to let states test public policy choices? If one adds in same-sex marriage to the question, it seems that federal and state laws are entering a new phase regarding how they interact. I say that because it seems to me that the open divergence between federal and state systems with the possibility that the federal government will ignore or defer to states on national issues is new. In other words, these two issues seem analogous to prohibition and civil rights; yet they are managed differently. I could easily be wrong on this idea. I welcome thoughts and leave sorting out the implications of this possible change to the constitutional law folks.
UPDATE: Lori Ringhand’s comment helped me refocus my thoughts. As she notes (and I was trying to capture but apparently did not), there are of course ebbs and flows in this dynamic. Maybe the better way to ask my question is whether we are seeing a shift towards more deference to states. Again it may not be possible to verify this notion. In addition, it may be that the large social issues are catching attention more than the day-to-day issues. If so, the question may be further refined as are large scale social issues being left to the states a little more than they were from around the 1930s to the 1970s?
Image WikiCommons, Public Domain
October 20, 2009 at 6:47 am
Tags: medical marijuana
Posted in: Constitutional Law, Health Law, Politics
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A Little Los Lobos and Early Halloween
posted by Deven Desai
One of my best friends gave me the album Kiko by Los Lobos as a college graduation gift. I love the album to this day. The title track, Kiko and the Lavender Moon, is great. It always reminds me of old spooky cartoons from the Bugs Bunny era with the sheet-like ghosts drifting, floating, bobbing down the hall and inexorably coming towards your room. Enjoy.
Kiko And The Lavender Moon – Los Lobos
As general matter, although I cannot say I know all Los Lobos’s work, I love almost everything I do know. If you like the film, Bull Durham, the song during the fabricated rain out is “I Got Loaded” performed by Los Lobos. You may also want to check out an odd and, to me, creepy Sesame Street version of the song, Elmo and the Lavender Moon.
October 18, 2009 at 11:00 am
Tags: Kiko, Los Lobos
Posted in: Just for Fun
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Smart or Not So Smart Money; The Limits on Derivatives and Regulating Them
posted by Deven Desai
The New York Times op-ed by Calvin Trillin, Wall Street Smarts, has a parable-like quality with the two characters meeting and exchanging wisdom. The lesson offered by the wiseman: “The financial system nearly collapsed,” he said, “because smart guys had started working on Wall Street.” The piece goes on to explain why that is a good explanation. It seems that the not-so-smart sat at the top of the heap and ran the companies: “Guys who didn’t have the foggiest notion of what a credit default swap was. All our guys knew was that they were getting disgustingly rich, and they had gotten to like that.” There is also an claim about what is enough and what is greed in this tale. I leave it to others to debate or verify these ideas (our own Mr. Cunningham has been a favorite for me on these issues). Now, a paper by some folks at Princeton may show that not even the smart guys knew what they were doing.
As Andrew Appel explores in his post Intractability of Financial Derivatives, the computer science world’s Intractability Theory may better explain the derivative world than other theories. (the theory is used for DRM, cryptography, and more). The paper is Computational Complexity and Information Asymmetry in Financial Products (pdf) by Sanjeev Arora, Boaz Barak, Markus Brunnermeier, and Rong Ge.
For those who are interested in the topic and/or understand the math and theory behind the risk shifting involved in this area, check out Andrew’s post. He does a great job explaining how the paper applies to a CDO (collateralized debt obligation). If you need a little more to understand why this paper and its ideas are important, consider Andrew’s take away
In principle, an alert buyer can detect tampering even if he doesn’t know which asset classes are the lemons: he simply examines all 1000 CDOs and looks for a suspicious overrepresentation of some of the asset classes in some of the CDOs. What Arora et al. show is that is an NP-complete problem (”densest subgraph”). This problem is believed to be computationally intractable; thus, even the most alert buyer can’t have enough computational power to do the analysis.
Arora et al. show it’s even worse than that: even after the buyer has lost a lot of money (because enough mortgages defaulted to devalue his “senior tranche”), he can’t prove that that tampering occurred: he can’t prove that the distribution of lemons wasn’t random. This makes it hard to get recourse in court; it also makes it hard to regulate CDOs.
UPDATE: It appears from the comments to Andrew’s post that CDO and derivatives are not precisely the same thing. In addition, the comments explore the limits of the study. It is a good discussion.
ALSO check out the FAQ for the paper. It addresses many issues that the initiated may want to probe.
October 18, 2009 at 9:17 am
Tags: computer science, derivatives, securities law
Posted in: Corporate Finance, Corporate Law, Securities, Securities Regulation
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Because Sometimes You Need a Little Mental Vacation
posted by Deven Desai
As a way to get ready for the Brazil Olympics and as a little throw back for hipsters and neo-hipsters, enjoy:
The Girl From Ipanema – Stan Getz
I urge folks to discover or re-discover, Jobim, Getz, and Gilberto. Great stuff to get into another world of jazz and far away lands while staying right where you are.
For those into pop culture history, the song has tended to be an elevator music favorite. That version loses the magic of the original. That being said, The Blues Brothers juxtaposed the elevator version, which played as the heroes went up to pay off the tax debt, with complete mayhem descending on Chicago city government in great way. Mr. and Mrs. Smith riffed on this scene as those heroes also heard the song in an elevator before a final standoff. That standoff is an ode of sorts to Butch Cassidy and the Sundance Kid right down to a small shack for cover against horrible odds. One was made recently; one in the 1970s. Guess which one has the more poignant ending?
October 13, 2009 at 6:53 am
Posted in: Just for Fun
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Academic Books, Non-Academic Books, BitTorrent, and Google’s Brand Power
posted by Deven Desai
D is for Digital is over now. I urge anyone interested in the Google Book Deal (aka the Google Book Search) to check out the schedule page and the webcast links (the stream links are at the top of the Friday and Saturday schedules respectively). James Grimmelmann put together a conference that aired out pro and con views rather well. In fact, I’d say although many were questioning the deal, I learned a good amount about the views of those in favor of the deal. I was not convinced that the deal is good and should go forward, but I appreciated hearing more about how the deal evolved and defenders’ views.
I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed up the group. Some really good questions about transparency of the process, responsibility, and more came up. Pam’s key point that if one builds a pubic good this big, public trust responsibilities go with it was dead on for me. I highly recommend watching the video for all that was said.
The next panel C is for Culture was excellent. James asked a question that has been on my mind and we had kicked around at WIP IP last week. Is Google Book Search irrelevant?
Here is why that is good question. First, the day so far emphasized that the majority of the books in question are academic books. As Pam explained and Paul Duguid echoed, if scholars’ books are at stake, scholars should be involved. Paul made clear that scholarly standards should guide the project.
Now, consider that many books are becoming available on BitTorrent. In addition, one panelist, Dan Reetz has a fascinating project. His DIYscanner project is a wild moment in grassroots digital activism. The story of how he chose to build his low-cost, open source DIY scanner (we’re talking maybe $300-$400 total) so that one could scan personal (and other books) at the rate of a few seconds per page and without destroying the book merits another post. (for now here is a link to the plans to build your own scanner) In addition, Reetz noted that majority of new books are leaked prepublication. As a general matter, a key claim is that users will pay for a book but copy the book so that they can search and take many books with them. The importance of these changes is that crowd-sourced and other approaches to digitizing text is on the move. One can see this shift as indicating market failure or that ereader functionality will be more and more the case.
As scanners, ereaders, and companies like Stanza offer better ways to access, search, mark, and read, the walled or controlled version of the text experience that the Google Book Deal offers seems odd. I doubt, however, that it will be irrelevant. Google’s brand, the ease of searching (even with its errors so far), and the ability to trust Google over BitTorrent or other sources will likely make it relevant to many. Nonetheless, the growth in alternative sources would suggest that Google will need to choose between a web search that captures all useful book offerings or a Google Book Search that only gives Google Book results. As the last panel on antitrust explored, Google is already dominant in search. It arguably killed a little company called MapQuest. Once Google offered its maps and its maps became the default listing when one entered address information into the search, MapQuest was done. That seems awfully close to the MS bundling issues of the last decade. When it comes to books, Google’s lead and dominance will give it massive power and leverage over how we all access knowledge. Nonetheless, it may be that grassroots, crowd-sourced movements will permit an end around for the control the publishers want through this deal. To be clear an end-around is insufficient protection against the lock-in problems the Google Book Deal poses, but it may help push Google to reach a deal that is less run by publisher interests.
October 12, 2009 at 7:40 am
Tags: Antitrust, DIY scanner, Goog, Google, Google Book Settlement
Posted in: Google & Search Engines, Intellectual Property, Technology, Web 2.0
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Google = ICANN?
posted by Deven Desai
One way to think about the Google Book Deal is that Google will end up as the super-gateway to books. It will in effect be the ICANN central authority of online books. So when Amazon and others have objected to Google’s claim that it will let everyone play in its sandbox, they are smart. No company should want to be a reseller (registrar in domain name terms). Insofar as one is competing with Google, who may also sell books, having to go through Google, the competitor, is undesirable to say the least. As the D is for Digital conference highlights, the way non-U.S. interests are not well-covered and represented is a problem. Insofar as the class action process is hijacking these international and domestic interests, the deal could be understood as an instance of arrogant law making with problems analogous to what one finds in Internet governance matters.
October 9, 2009 at 6:51 am
Tags: Google, Google Book Settlement, ICANN
Posted in: Google & Search Engines, Intellectual Property
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D is for Digital Commences
posted by Deven Desai
I am at New York Law School for D is for Digital. Apparently around 140 people are here to learn about the Google Book Deal from a host of perspectives. The program schedule is here and that page has a link to the webcast where you can watch the conference live.
As we begin, congratulations and thanks to New York Law School and James Grimmelmann for organizing this event.
October 9, 2009 at 6:23 am
Posted in: Uncategorized
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Danger Will Robinson: Google Book Deal Is at DEFCON 2
posted by Deven Desai
The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.
First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.
With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.
Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”
More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?
And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.
October 8, 2009 at 2:59 pm
Tags: Google, Google Book Settlement, Registry
Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Media Law, Politics, Technology
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BRIGHT IDEAS: Bonnie Honig on Emergency Politics: Paradox, Law, Democracy
posted by Deven Desai
Today’s Bright Idea comes from Professor Bonnie Honig. Professor Honig, also Senior Research Fellow at the American Bar Foundation and appointed (courtesy) at Northwestern Law School, is Sarah Rebecca Roland Professor of Political Science. Professor Honig’s work has appeared in the American Political Science Review, Political Theory, Strategies, Boston Review, Social Text, Social Research, and Triquarterly Review. She has written several books including, Political Theory and the Displacement of Politics (Cornell, 1993; awarded 1994 Foundations Best First Book Prize), Democracy and the Foreigner (Princeton, 2001), and Emergency Politics: Paradox, Law, Democracy (Princeton, 2009) which is the topic of today’s post. In short, Professor Honig challenges us to think about the interplay between democracy and emergency politics. Princeton has made the introduction available here as a pdf. In short, Professor’s investigation grew to encompass questions regarding “immigration politics, new rights claims, contemporary food politics and the infrastructure of consumption, and the limits of law during the Red Scare of the early twentieth century.” She drew on Moses Mendelssohn, Franz Rosenzweig, and other Jewish thinkers to provide a way for us to think about these problems. Here is Professor Honig sharing some of her ideas about emergency politics and how the book evolved.
BONNIE HONIG
on
Emergency Politics: Paradox, Law, Democracy
Emergencies isolate people and make them afraid. Democracy, more than law, postulates courage and collectivity. More to the point, it is not as if we can separate law and democracy, as critics of majoritarianism like to do. What is done in the name of law or its suspension also depends upon the (de)mobilization of democratic energies.
My aim in writing Emergency Politics was to give a more democratic rather than liberal perspective on emergency, to acknowledge the importance of law to the emergency situation (as a resource in combating political violence, as a protector of rights in times of political difficulty) but also to point out that the turn to law, while necessary, is not adequate to respond to the demands of emergency politics.
One of the framing ideas of the emergency politics literature comes from Carl Schmitt, the German legal theorist who became a Nazi jurist. Schmitt talked about emergency situations as a state of exception. This is not a lawless situation, he argued, but rather a paradoxical situation of lawful lawlessness, one in which ordinary law is lawfully suspended. Yet, as Clinton Rossiter points out in his book, Constitutional Dictatorship, most major democracies have such emergency provisions.
Emergencies are temporary by their nature, Schmitt argued, and the suspension of ordinary law will eventually end, also lawfully, and normal law restored. But the decisionistic structure of sovereignty is always there, in the shadows. One of the things centrally important to Schmitt is how in the extraordinary moment of emergency the real architecture of sovereignty becomes visible and the decision (sovereign discretion), always a factor in political life, is laid bare.
As I investigated Schmitt’s ideas, I noticed that Schmitt analogized his idea of the legal suspension of law to theology’s miracle. Miracle, he said, is the suspension of nature’s normal order by the god who created it. In miracle, god’s decisionistic power is revealed for all to see. Miracle interrupts the ordinary causal world but does not destroy it. The normal pattern of nature returns in miracle’s aftermath. While this is indeed a familiar view of miracle, it is not the only one. Other contending views of miracle have put pressure on this one. One contender comes from within the Judaic tradition. It was developed by Franz Rosenzweig, who, it turns out, was writing at the same time as Schmitt.
October 7, 2009 at 2:08 pm
Posted in: Bright Ideas
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FTC and Blogger Disclosure Rules
posted by Deven Desai
As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.
As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.
From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)
There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.
Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.
Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.
October 5, 2009 at 1:44 pm
Tags: Blogging, FTC, guides
Posted in: Blogging, Consumer Protection Law, Cyberlaw, First Amendment, Media Law, Web 2.0
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Open Government Update: GPO and CITP’s FedThread Project
posted by Deven Desai
The Federal Register has moved to an XML format. That has allowed Princeton’s Center For Information Technology Policy to be on the move once more. The new project is called FedThread. As the site puts it now that the Federal Register is in XML, “citizens [can] create new services that in turn provide value back to government. Kudos to the Government Printing Office, National Archives and Records Administration, and Office of Science and Technology Policy for making this all possible.”
What does this mean for the public? Through FedThread people can more easily track issues regarding “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents” as they are posted to the Federal Register website (weekdays except for government holidays). So today’s documents include material about the Delaware River Basin Commission, Department of Education, Federal Communication Commission, Department of Health and Human Services, and the National Science Foundation proceedings. Actions regarding postesecondary education, rulemaking at the FCC, and pandemic influenza vaccines are apparently on the table. Go to this link for today’s full list.
In other words, rejoice, wonk and non-wonk, for you may can now see what your government is doing. In fact FedThread offers some rather great features including:
* collaborative annotation: Attach a note to any paragraph of the Federal Register; start a conversation.
* advanced search: Search the Federal Register (back to 2000) on full text, by date, agency, and other fields.
* customized feeds: Turn any search into an RSS or email feed, which will send you any new items that match the search query.
As I understand it, one can set up a search and receive updates about the topic. Policy makers, academics, and engaged citizens should take advantage of these features. It should allow one to see how the law is evolving and take action much more quickly than before.
One point for those who may confuse making a note with a comment. FedThread is not affiliated with the U.S. government. Notes appear on the FedThread site but are not part of the Federal Register. Formal comments must follow the proper procedures related to commenting on whatever particular topic upon which one wishes to comment. In addition, the notes are just that, notes of those who wnat to share their views about a topic. It should open debate and discussion, but as with many areas of the Web, one will have to sort between useful and irrelevant notes.
I am sure I will learn more from my colleagues here at CITP as the project moves forward. For now, I hope people enjoy the offering.
For those interested in “some of the driving principles behind the project,” this paper Government Data and the Invisible Hand is a good place to start. Last, I want to call out the people involved in building this project. Joe Calandrino, Ari Feldman, Harlan Yu, and Bill Zeller developed it. Calvin Lee at Princeton’s Student Design Agency handled the graphic design. Prof. Ed Felten and Stephen Schultze led the project. You can contact FedThread at info@fedthread.org.
October 5, 2009 at 7:44 am
Tags: Federal Register, FedThread, government 2.0, open government
Posted in: Government Secrecy, Technology, Web 2.0
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So, Some Thoughts and a Rib
posted by Deven Desai
Legend: When someone informed Peter Gabriel that his fifth album was named “Peter Gabriel” as his previous four had been, Gabriel replied “So.”*
Although I tend to agree with Dave and Larry that we should strive for more precise use of language (despite my use of “so” to begin my last post), I think the word in the right place such as to start a story or anecdote gives the impression of being in the middle of a conversation and draws others into that flow of thought. To use the term too much as Larry described does not seem to be a problem of the word so as much as the bad habit of repeating a phrase as a crutch or space filler. I recall those who say “you know” or “know what I mean” or “right” or the ever popular and with us forever “like” having the same effect Larry describes. Nonetheless, like Larry, I admit that I try to eliminate poor usage and find that I slip. I hope to do better. Here, however, is another way to think about the problem.
*Security was supposedly a label choice, not Gabriel’s.
After the break is a little pop culture fun Amadeus (as in Rock Me) style.
September 10, 2009 at 10:55 am
Tags: Amadeus, Falco, grammar, too many notes
Posted in: Humor
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