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 [...]]]> 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. 

Indeed, this is more striking given that the Japan’s lagging telcos used to fit a pattern, still observable in Japan, in which non-tradeable domestic sectors generally seem relatively inefficient.  However, the Japanese government not only required NTT, the monopoly domestic telephone company, to sell wholesale broadband to ISPs, but also prevented NTT from competing with the ISPs by prohibiting NTT from bundling in services with broadband Internet and thus becoming both supplier and competitor.  The result was an explosion in activity by new entrants, with significant consumer benefit.  I’ve always wondered how this policy came about, and the best account I’ve found, suggesting that it was parts happy accident and parts good intention, is this one by Takanori Ida.  As Ida observes, network economics is not yet so well understood that you can accurately predict the result of policy, though you may be able to design a better policy if you assume you cannot predict the future (p.78).

This brings me to my second point, about competition policy and innovation.  If you’ve followed the Supreme Court’s antitrust opinions over the past decade, after Trinko and LinkLine, you would be forgiven for laughing at the idea that antitrust could have a role in opening up access to rivals to the incumbent telcos.  (Although you could read Trinko as suggesting that if you want an Aspen Highlands-like forced access for rivals to network incumbents, you should get it from the FCC, not the Sherman Act.)   Similar to Nicholas Nassim Taleb’s point about taking steps to benefit from unanticipated positive “black swan” events, Zittrain makes the point that generativity allows disruptive innovation to benefit us in ways we cannot anticipate.  As a result, policies oriented at the future of the Internet should focus on how to preserve our opportunity to benefit from, particularly, user-generated innovation.

One of Zittrain’s biggest fears is the ability of manufacturers of tethered devices or providers of “walled garden” services on the Internet to make their products less generative after the fact.  In short, instead of planned obsolescence, there is remote-controlled sterilization.  Consumer protection may have a role to play here, though it may not be a panacea.  Disclosure regimes, rules giving users the opportunity to opt out and “de-tether” at a future point in time, and rules requiring portability of user-generated content may provide comfort, albeit imperfect, to users.   Platform operators and users have come to see the value in generativity – witness how the “tethered appliance” iPhone now sells itself based on the compatible work of others in the App Store.  However, the potential for exploitation after the fact will continue to exist.  And opportunism and its potential can impose costs by deterring user generated innovation.  This is important, since if users become leery of participating on dominant platforms for fear of having the rug pulled out from them, they may participate less, or not at all, and we won’t know what we will have lost as a society in terms of innovation.

Finally, Zittrain points to Wikipedia and how it gets its users to work well together in generating content as a model for how to solve some of the Internet dilemma of security versus generativity..  My colleague David Hoffman and I did a study in which we looked at the decisions of Wikipedia’s arbitration committee.  We found that their dispute resolution system did not actually resolve disputes about “correct” content on Wikipedia.  Rather, the focus of their dispute resolution system was to create and highlight norms of behavior and good faith for the community to follow – and to ban those who could not or would not at least try to be part of the community.  As George Costanza would say, “you know, we’re living in a society.”  A Wikipedia-like solution for problems that Zittrain sees would have to involve greater mass recognition that there ought to be civic virtue and social responsibility on the Internet.  In addition to providing us with useful insights, The Future of the Internet exhorts us all to take a constructive role in maintaining our power to take a constructive role.

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 [...]]]>

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.

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 [...]]]>

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.

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 [...]]]> 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.

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.

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 [...]]]> 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.

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?