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Author: Salil Mehra

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Future of the Internet Symposium: Preserving Open Space for User Innovation

First off, thanks to Concurring Opinions and Danielle Citron for hosting this online symposium on Jonathan Zittrain’s The Future of the Internet – and How to Stop it.  Before I launch into my own thoughts, I want to add my own version of the praise that the book has already won.  It is an immensely readable work that succeeds in showing us where we’ve been, how we got to where we are, and the steps to take to avoid going where we’d rather not be.

I have three brief points, involving a comparison with Japan, some thoughts about competition, consumer protection and innovation, and finally, a somewhat different take on the lessons of Wikipedia.

This symposium is incredibly timely, particularly given the concern in recent weeks about the Google/Verizon agreement.  In TFOTI, Zittrain highlights the risks that threaten the Internet’s future, and explains how the net neutrality debate is in some ways a mismatch for those risks.  For example, he points out that the migration from the Internet to, in his words, tethered appliances like the iPhone and TiVo, ultimately provide an end-run around net neutrality on the Internet (pp. 177-185).  Accordingly, he argues that preserving generativity is a better-tailored principle.

The lead in The Economist this week also takes on the Google/Verizon agreement, and critiques net neutrality from a different angle calling America’s “vitriolic net-neutrality debate” “a reflection of the lack of competition in broadband access.”  If you’re reading this symposium, you probably already know, possibly because you read this, that in many other industrialized countries incumbent telcos were forced years ago – and not just in a superficial way – to open up wholesale broadband to competitors.

I’m in Tokyo this academic year thanks to Temple’s long reach across the globe and to my gracious hosts at Keio University Law School.  I’ve been travelling to Japan repeatedly since the late 1980s, and one of the changes I’ve been  struck by is how a country that in the 1990s was generally held to be well behind the U.S. in telecommunications now seems ahead in broadband and mobile Internet.  Read More

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The behavioralism of eating

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The New York Tmes reports on Prof. Brian Wansink, who directs Cornell’s Food and Brand Lab and who also has a new book out. The article describes a series of lab results that show that issues of framing and cognitive bias seem to influence people’s eating habits. For example, we eat more if the same food is put in larger containers, and we tend to underestimate our consumption.

While some might see such results as a call for a legislative response, the article describes a series of food-industy responses and personal strategies that can address these biases and possibly reduce obesity. Some of the responses, such as plating dinners in the kitchen, are interesting. First, in my experience, this is a practice that I’ve observed in many Japanese households, though I’m not sure its for dietetic reasons. Second, as a method of dealing with “two selves,” it is reminiscent of some of the writing of Nobel laureate Thomas Schelling, in which he suggests placing the alarm clock as far away from the bed as you can, or winning a game of automotive “chicken” by ripping the steering wheel off and throwing it out the window.

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Extraterritorial effects of non-enforcement of the antitrust laws

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The League Championship Series are starting, whether the Mets have any starting pitchers or not. But today’s baseball news concerned the importation of a quality starter from Japan, Daisuke Matsuzaka. Matsuzaka was the MVP of the inaugural World Baseball Classic this year, a kind of World Cup for baseball.

What does this have to do with law? Matsuzaka, unlike say, Hideki “Godzilla” Matsui, does not have 10 years in Japanese baseball, and so he is subject to an agreement between Japanese baseball and American Major League Baseball (MLB), in which MLB teams will submit silent bids for his services to MLB’s league office, and then the highest bidder will get exclusive rights to negotiation with Matsuzaka. The amount of the winning team’s bid will go to Matsuzaka’s former team (the Seibu Lions) as a transfer fee. And then, since he will be unable to take bids from any other team, Matsuzaka will probably take less from his new American employers than a free agent would.

It seems to me that Matsuzaka might well be better off if, free from this system, he could negotiate a higher salary as a free agent by receiving bids from several American teams, and then just buy himself out of his contract with Seibu — an efficient breach. Indeed, the fact that MLB and the Japanese leagues agreed on this system after the high-profile move of Hideo Nomo seems to imply that it takes $/¥ out of Matsuzaka’s pocket, and puts it in theirs. But this appears to be a case where baseball’s antitrust exemption in the U.S. has been extended outside our borders by contract with the Japanese leagues. While no one cries for baseball millionaires, it may be worth noting that while other countries sometimes take offense at U.S. antitrust law sprawling into their economies, tolerance of anticompetitive practices can also have extraterritorial effect.

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The postseason begins

After a wild final day, baseball’s postseason is set. Three of the eight spots go to the Yankees, Mets and Dodgers, big-market teams who seem to have plenty of fans who root against them rather than for them.

Baseball has talked a good game about competitive balance and keeping small-market teams viable as potential champions. And yes, the postseason also includes Minnesota, San Diego and Oakland, which baseball probably considers small.

Yet, I wonder whether, with 30 teams, baseball gets more interest in its postseason by encouraging hatred of the Yankees than support for one’s home team. After all, if you hate the Yankees enough to watch, you’re still watching. And in a 30-team league, the odds that your team will make the World Series are about 7% in a perfectly-balanced league. (Although it seems way less even in big-market Philadelphia.)

These musings are a setup for a rough segue to shameless self-promotion. In a forthcoming Berkeley Technology Law Journal article by Tim Zuercher and myself, we argue that, for this and other reasons, antitrust should reject its current consideration of competitive balance as a justification for anticompetitive behavior in sports leagues. We also argue that this reasoning has implications for dealing with intellectual property in professional sports.

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Generic Political Parties

The leaves are changing and it’s full-swing silly season, so my Delaware County, PA district’s Republican congressman has supporters with yard signs calling him “Independent for US” without mention of his actual party affiliation. Just a few miles to our southwest in Maryland, Michael Steele, the Republican candidate for the Senate has signs that say “Steele Democrat.” Of course, both could be exclused by recognizing that “trademark” terms like “independent” or “democract” have generic, descriptive meanings in addition to their ballot-related meaning. Steele’s folks also argue that “Democrat” is a noun identifying his supporters in the opposing party. Of course, in Republican-friendly districts, Democrats could probably call themselves “republican” to the extent that they oppose monarchical tendencies in our government. (Or they could educate a lot more folks about Plato, Madison and Sunstein.)

While legal enforcement is an option to deal with this confusion, I wonder if it would be better to simply encourage less-generic political party names? “Blue JFK”, “Red Reagan” or even Connecticut-for-Lieberman?

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Law school killed the video star?

Thanks to all at C.O. for hosting me. I’m getting a late start on my guest stint.

Thanks to differing school years, this summer I had the pleasure of visiting at Keio University School of Law, one of Japan’s new “American-style” post-graduate law schools. They had just graduated their first class; prior to 2004 formal study of law at universities in Japan was through undergraduate law faculties.

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As luck would have it, the #1 song on Japan’s version of the Billboard charts at that time was Daite Senorita (Hold Me Senorita) by Tomohisa Yamashita — one in a long line of manufactured J-Pop stars from Japan’s foremost hit factory, Johnny’s Entertainment.

I happened to see the video, and you can too, thanks to YouTube. It’s not all that entertaining, but during the last minute (hint: you don’ t have to watch the whole thing), he and his minions brawl with a similarly suit-clad opposing street gang. Then he goes back to his apartment and studies what appear to be law books. What appears to be the Compendium of Laws (Roppo zensho) by the legal publisher Yuhikaku appears in the foreground (lower right); another law book is in the lower left of the screen.

This raises two not-too-serious questions. First, what an illustration of the competition in Japan between private and legal ordering. (Apologies to West and Milhaupt, The Dark Side of Private Ordering, 67 U. Chi. L. Rev. 41 (2000))! Second, besides All the Kings Men or Krzysztof Kieślowski’s Red, I wonder how often law professors or law students appear in fictional works that are not actually about law school?