Author: Deven Desai


Sending Up the White Flag?: Music Labels Moving Away From DRM


Today, CNET reports that the music industry is backing off of DRM in part because download sales are not at the numbers it desired. In a previous post I highlighted what appears to be a misuse of the DMCA. In that post I offered that copyright might be seen as protecting a business model and what may be wrong when that is the case. What’s the connection? I think that if the CNET article is accurate and the music industry is moving away from DRM because of failed sales, that shift supports the idea that DRM is not about copyright but about protecting an unviable business model.

To elaborate, one might say that in general copyright protects an otherwise untenable position. That is, one argument holds that promoting the useful arts requires that the law provide protection for those who generate copyrightable or patentable subject matter. The nature of the thing created means that without intellectual property protection these items would arguably not be created, as once one invested in the creation others could copy easily.

I am suggesting that one could also say that the law is protecting a business model (in intellectual property) that otherwise would not survive. Yet, specifically in copyright that claim of necessity may not be as true as before because of the broad swath that copyright covers. Film and other capital intensive copyright industries may have an argument for copyright laws and strong protection. They may even have arguments that if we want to protect the incentives to produce these creations, we should offer remedies for those who work to get around copy protections (I am not saying these arguments are correct; I am simply saying there may be a logic to them). But in other less capital intensive copyright industries the premise for protection may not be present.

In addition, one could argue the DMCA was forced through Congress by the copyright industry. That may be. Regardless, the question is what does the DMCA or a specific copyright protection do? Does it foster or adhere to the incentive premise or not? And one should ask is the premise in play when we talk about using the DMCA to protect non-copyrightable areas such as a business model? Put differently is the law fostering creation and/or competition or merely being used to protect a market’s status quo?

The music industry offers an example of what asking whether the incentive theory is in play or not might reveal. In other words does music fit the premise regarding incentives to create? As the CNET article notes eMusic has “surpassed 100 million downloads; it’s the second-largest digital music retailer after iTunes, all sans DRM” which might indicate that the claims by the copyright industry for the need for extra protection are unfounded. Cory Doctorow offers that the advent of radio had a similar outcry as live performers gave way to recorded broadcasts:

Performers lobbied to have the Marconi radio banned, to send Marconi back to the drawing board, charged with inventing a radio they could charge admission to. “We’re charismatics, we do something as old and holy as the first story told before the first fire in the first cave. What right have you to insist that we should become mere clerks, working in an obscure back-room, leaving you to commune with our audiences on our behalf?”

Furthermore I suggest that similar to Doctorow’s position on the value of a creator being known and shared rather than locking up access to his works, the creator’s “biggest problem is obscurity, not piracy.”

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And So It Goes: Possible Reasons to Care About Saddam Hussein’s Execution

Dan’s post asks whether we should care. This morning I was reading arguments regarding whether the United States could or should hand Saddam Hussein over to the Iraqi government because of international law concerns. The New York Times reports that news agencies have been debating whether to show the event. Now CNN reports he is dead. As I watch CNN and write this brief post Anderson Cooper notes that the execution was videotaped and photographed and that CNN will review this media possibly to show it but with some warning regarding the contents before it runs the footage.

Perhaps the reason to care is precisely the sense that Dan offers: even when we might not care about the specific person and “the intentional killing of another human being [does] not generate deep discomfort” — maybe especially at that point — we should care and look to the questions of justice that we otherwise would consider. Isn’t this in part what Arendt is addressing in Eichmann in Jerusalem: The Banality of Evil?

In other words, maybe we should slow down and see how we treat even the most extreme criminals rather than rapidly move from debates about international law to whether we should show or not show the execution not to mention indulging in the voyeurisitc reports of each moment before, during, and after the execution.

Then again to borrow a phrase from Vonnegut, and so it goes.

PS For those wishing to read the 298 opinion it is available at the Case Western Law Web site.


Science vs. Free Will: Maybe Eating All That Holiday Food Wasn’t Your Choice


The Economist reports that some aspects of neuroscience indicate that certain notions of when we exercise free will may be on the ropes. The article notes the case of someone who was a pedophile only when a tumor was present. When the tumor was removed the behavior ceased, but when it grew again, the behavior returned. The article focuses on the idea that much of criminal law (“the criminal law—in the West, at least—is based on the idea that the criminal exercised a choice: no choice, no criminal.”) and theories of the market (“Markets also depend on the idea that personal choice is free choice.”) rest on the idea of free will. According to the article one implication of these discoveries is “The British government[’s move] to change the law in order to lock up people with personality disorders that are thought to make them likely to commit crimes, before any crime is committed.” And for the market notions about our choices regarding consuming “Fatty, sugary foods … addictive drugs such as nicotine, alcohol and cocaine [and] [p]ornography” may be suspect as well.

I think the article is correct when it offers

Science is not yet threatening free will’s existence: for the moment there seems little prospect of anybody being able to answer definitively the question of whether it really exists or not. But science will shrink the space in which free will can operate by slowly exposing the mechanism of decision making.

Nonetheless as science continues to chart better how we think and behave, the way the law addresses certain issues will necessarily be challenged. For example Rebecca Tushnet presented a paper examining decision-making and dilution doctrine at a recent works-in-progress conference. The paper raises some great points and questions about assumptions in the doctrine and what research supports or undercuts those views. (In deference to Rebecca I offer this quote from her regarding the paper “I’ll just ask that people recognize this as a draft, and if you want to cite or quote it, please just be willing to update the reference if and when it’s published.”)

I am sure others are pursuing analagous research so if readers have other examples of law and neuroscience, please share them. Then again if all of you simply want to kick back, relax, and run to left-over “Fatty, sugary foods,” I understand. You can’t help it. You have no choice. In fact I think I hear my something in my pantry calling and must go now.


Floyd Landis and A New Wrinkle on the Court of Public Opinion


Some of you may recall that Floyd Landis is fighting allegations by the U.S. Anti-Doping Agency and World Anti-Doping Agency that Landis used testosterone to win the Tour de France. Today’s L.A. Times has an article about the fight and of possible note to this readership the way in which Landis is challenging the process. Landis has posted 370 pages of documents including the lab reports related to the dispute. According the Times, “The result is a vigorous debate on Internet message forums and bulletin boards about the science underlying the charge and whether Landis … has been unjustly accused.” Even more interesting “Landis’ representatives say they have gleaned a wealth of clues about how to attack the evidence when the case goes before an arbitration panel.”

The approach is being called the wiki defense.

Landis’s move seems to accomplish at least two things: 1) He is forcing an otherwise closed process into the open and 2) He is tapping into a large pool of knowledge including experts in the field to challenge the claims.

If this approach works, perhaps the court of public opinion will enter a new phase where defendants use technology to reach a larger audience to plead their case (and I suppose possibly taint juror pools though this instance is an arbitration) and where perhaps better science and analysis will come to bear on cases. My guess is that those who see this as a total revolution in how cases will operate will overstate its impact. Nonetheless, I wonder what would have happened in the O.J. or Kobe cases if there were a wiki where evidence was available to the public. If the material online were already in the public record and then posted online, it may simply be a further aspect of television broadcasts of trials. Yet, if one were a poor defendant or under-resourced public defender and could use the Web to access scientific and/or legal defense knowledge similar to what O.J. or Kobe could afford that could be quite an interesting development for the defense bar.


Possible Empirical Support for Corporate Social Responsibility: What Would Uncle Milty Say?


Milton Friedman is famous (or infamous depending on to whom you talk) for many things including the position he takes in The Social Responsibility of Business is to Increase its Profits. In that article he asserts that corporate social responsibility is

a “fundamentally subversive doctrine” in a free society, and [] that in such a society, “there is one and only one social responsibility of business–to use it resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.”

Yet along comes McKinsey & Co., not exactly a bastion of socialism, and asserts “The case for incorporating an awareness of social and political trends into corporate strategy has become overwhelming.” (the full article is available only to subscribers, sorry). McKinsey conducted a survey that found “Eighty-four percent of the executives from around the world who participated in a McKinsey survey agreed that their companies should pursue not only shareholder value but also broader contributions to the public good.” Could it be that these executives wish to offer, in Friedman ’s words, “hypocritical window-dressing” because “our institutions, and the attitudes of the public make it in their self-interest to cloak their actions in this way”? Or are the executives simply acting in congruence with Freidman’s observation that that it may be in a corporation’s interest “to generate goodwill as a by-product of expenditures that are entirely justified in its own self-interest.”

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Suggestions Please: Gifts for Those Who Read (And Maybe Those Who Just Pretend)


A recent article from the Wall Street Journal Online details gifts for those seeking “High I.Q. Décor.” Apparently people buy skulls (for that Hamlet moment we all have sooner or later I guess) or books by the foot. Yes, you read that correctly: books by the foot a.k.a. “insta-libraries”:

sales of insta-libraries, including editions in French and German, are up 140% this year. “I’m not sure if those folks knew how to read those languages,” says Ms. Wyden [a specialist in books by the foot] of some recent customers. Prices range from contemporary fiction for $50 a foot to leather-bound classics for $400 a foot. … [One client] include[s] private-equity king (and board member of the New York Public Library) Stephen Schwarzman and his wife, Christine, who Ms. Wyden says spent $200,000 on books for their Park Avenue triplex, including pastel-colored books for a bedroom antechamber and movie-reference works and academic books for the family room. Through his spokesman, Mr. Schwarzman declined to comment.

The last part of the quote reminds me of scenes in Hannah and Her Sister’s and The Moderns where artist characters must face buyers interested in how much wall space will be covered by a canvas or whether the art matches blue walls. In a further moment of irony the article notes “Not everyone approves of decorating to look brainy. ‘Queer Eye’ interior designer Thom Filicia compares it to wearing eyeglasses without a prescription. ‘It’s creating a façade,’ he says.”

All of which leads to an offer and a request for help. As Christmas approaches and gifts are on the mind I offer a few possible books to buy for those who read or for your own pleasure with gift cards to come. In return I hope that the readership will share the names of books they recommend or books that have received acclaim but may not be so worthwhile.

To start things off I recommend my friend John Scalzi’s book Old Man’s War. It’s a science fiction novel, but I believe those who want to enjoy a good story filled with private military companies and more will like it. Don’t take just my word on this one: Instapundit liked it as did Eugene Volokh and Professor Bainbridge . Not to mention it was was nominated for a Hugo Award and won the Campbell Award for best new writer in science fiction. If you want a more recent book of John’s try The Android’s Dream.

For those interested in intellectual history John Gribbin’s In Search of Schrödinger’s Cat and Schrödinger’s Kittens and the Search for Reality are both great reads (although I should warn that quantum theory can be most unsettling to one’s view of reality). In addition, I have just started James Landale’s The Last Duel (in part because of confusion about a similar book Kaimi mentioned to me) and have enjoyed the interplay between the specific story of the duel in question and the history of dueling in general.

Last I suggest two all-time favorites: Haruki Murakami’s The Elephant Vanishes and Mark Helprin’s A Winter’s Tale . Both writers pay close attention to the use of language such that I believe anyone who enjoy’s excellent writing will enjoy them on that score alone. I can also say that each time I have given a copy of either book to someone they have enjoyed it, but Helprin’s work is a bit more accessible, and at least two friends have said they could not stop reading A Winter’s Tale once they began reading it.


Civil Procedure to the Rescue: Suing the Big Guys


The NY Times has a small entry about a frequent problem: lack of customer support for a computer (scroll down to “You Got Served” to read the entry). In this case, the customer apparently tried to use Dell Computer’s customer service resources for five months including 19 phone calls. When those attempts failed to result in a fixed or new computer, he sued Dell. The catch: he provided service of the lawsuit via a kiosk in a mall. Dell failed to appear, and the customer won a default judgment of $3,000.


One Step Forward, Two Steps Back?: Empirical Research Rising and Falling

no trespassing 2.JPG

Just as Crooked Timber has a post about a new book that examines the impact of social science research and how the survey culture has affected how Americans view themselves, the California Supreme Court has heard a case regarding the extent to which the subject of such research can oppose the use of her information. The case is Taus v. Loftus, S133805. It involves the tension between research that may require lying to achieve its goals and the subject’s privacy rights. The defendants, Elizabeth Loftus and Melvin Guyer, are psychologists challenging the theory of repressed memory. When they first encountered the plaintiff’s information, they did not know her name but did have a case file with her picture. The article indicates that the file was “widely distributed in psychiatric circles.” The defendants questioned the story about the plaintiff’s repressed memories and investigated. The researchers’ report did not name the plaintiff but according to the article did include statements from the step mother that the plaintiff “had been a troubled teenager who slept around and used drugs.”

Now here’s the part that may sound familiar to those who followed the HP spying case: the researchers apparently hired a private investigator to dig into the plaintiff’s past and allegedly one of the researchers posed as the supervisor of the plaintiff’s therapist, David Corwin, to obtain some of the information. From the appellate decision the researcher claimed “‘she was working with Dr. Corwin and was actually his supervisor in connection with his study of [Taus].’” And there folks is the intrusion claim before the California Supreme Court. It doesn’t help that the appellate court had evidence pointing to the gathering of information from sealed juvenile court records either: “In light of these circumstances, the unanswered questions as to whether the Solano County files were confidential and, if so, how they were accessed may have a significant impact on Taus’s intrusion claim.”

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Skinny Law: Fashion Industry May Regulate Weight of Models


In September, The Spanish Association of Fashion Designers moved to ban the use of models who had a Body Mass Index (BMI) of less than 18 (note that the UN apparently suggests a BMI of between 18.5 and 25). Brazil’s fashion industry recently required that models be at least 16 and in good health. The Brazilian move came in part as a response to the death of Ana Carolina Reston who was 21 when she died of anorexia. Italy’s fashion industry is now moving to impose similar regulations. The move comes after the Italian industry’s lobbyist met with the government’s Youth Minister. It is a voluntary regulation imposed by the industry on itself. An aide to the Youth Minister indicated she favored a ban based on low BMI and said “In the Third World, if someone has an index of less than 18.5, they send in humanitarian aide.” Does this mean that similar to boxing, models will try to make weight before they can be on a catwalk (though models would I suppose gain to make weight)?

The article also noted “There are calls for a return to the slim but more curvaceous models of the 1980s, like Cindy Crawford and Claudia Schiffer.” This sentence seems to lend itself to further issues regarding the fashion industry, health, and personal image. One can imagine unhealthy skinniness and cosmetically enhanced body parts to meet this new criteria. Still for an industry often touted as being shallow and as offering inane notions of beauty, the move to address a real problem is fascinating and may even lead to more changes. I am not going to hold my breath on that last part, but one can hope.


“We’re going to buy Manhattan back one hamburger at a time,” – Seminole Tribe of Florida To Buy Hard Rock



Just a quick note. The Seminole Tribe of Florida is in the process of buying a major piece of the Hard Rock empire for $965 million from Rank Group PLC. The quote in the headline for this post is from tribe Vice Chairman Max Osceola (note: The Seminole Tribe was not the tribe who sold the island). The purchase “includes 124 Hard Rock Cafes, four Hard Rock Hotels, two Hard Rock Casino Hotels, two Hard Rock Live! concert venues and stakes in three unbranded hotels.” Curiously although the Seminole Tribe was the first tribe in the U.S. to enter the gambling industry (it started a bingo hall in 1979) and operates two Hard Rock casinos in Florida, the deal does not include the Hard Rock casinos in London or Las Vegas as those were already sold to others prior to this deal. As someone who teaches trademark, this set of affairs promises to foster at least one or two good problems or essay questions for my next class.

Regarding Mr. Osceola’s remarks about buying back Manhattan and comparing the sale of Manhattan to the Dutch to the current deal, the article reports that the Seminole Tribe has 3,300 members who benefit from the Tribe’s gaming activities. My guess is they are doing rather well. In addition, the article states, “U.S. tribes now have more than $22 billion in annual revenues from gambling, according to government figures.” Given that the Stuyvesant Town and Peter Cooper Village in Manhattan, was sold for $5.4 billion recently the Seminole tribe has some progress to make before it could do the buyback but then again I wonder if anyone thought they’d be this close either.