Archive for the ‘Culture’ Category

The Memory Hole

posted by Derek Bambauer

On RocketLawyer’s Legally Easy podcast, I talk with Charley Moore and Eva Arevuo about the EU’s proposed “right to be forgotten” and privacy as censorship. I was inspired by Jeff Rosen and Jane Yakowitz‘s critiques of the approach, which actually appears to be a “right to lie effectively.” If you can disappear unflattering – and truthful – information, it lets you deceive others – in other words, you benefit and they are harmed. The EU’s approach is a blunderbuss where a scalpel is needed.

Cross-posted at Info/Law.

  February 17, 2012 at 12:01 pm   Posted in: Anonymity, Architecture, Civil Rights, Consumer Protection Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Google and Search Engines, Innovation, Media Law, Political Economy, Politics, Privacy, Technology, Web 2.0   Print This Post   No Comments

Cary Sherman and the Lost Generation

posted by Derek Bambauer

The RIAA’s Cary Sherman had a screed about the Stop Online Piracy and PROTECT IP Acts in the New York Times recently. Techdirt’s Mike Masnick brilliantly gutted it, and I’m not going to pile on – a tour de force requires no augmentation. What I want to suggest is that the recording industry – or, at least, its trade group – is dangerously out of touch.

Contrast this with at least part of the movie industry, as represented by Paramount Pictures. I received a letter from Al Perry, Paramount’s Vice President Worldwide Content Protection & Outreach. He proposed coming here to Brooklyn Law School to

exchange ideas about content theft, its challenges and possible ways to address it. We think about these issues on a daily basis. But, as these last few weeks [the SOPA and PROTECT IP debates] made painfully clear, we still have much to learn. We would love to come to campus and do exactly that.

Jason Mazzone, Jonathan Askin, and I are eagerly working to have Perry come to campus, both to present Paramount’s perspective and to discuss it with him. We’ll have input from students, faculty, and staff, and I expect there to be some pointed debate. We’re not naive – the goal here is to try to win support for Paramount’s position on dealing with IP infringement – but I’m impressed that Perry is willing to listen, and to enter the lion’s den (of a sort).

And that’s the key difference: Perry, and Paramount, recognize that Hollywood has lost a generation. For the last decade or so, students have grown up in a world where content is readily available via the Internet, through both licit and illicit means; where the content industries are the people who sue your friends and force you to watch anti-piracy warnings at the start of the movies you paid for; and where one aspires to be Larry Lessig, not Harvey Weinstein. Those of us who teach IP or Internet law have seen it up close. In another ten years, these young lawyers are going to be key Congressional staffers, think tank analysts, entrepreneurs, and law firm partners. And they think Hollywood is the enemy. I don’t share that view – I think the content industries are amoral profit maximizers, just like any other corporation – but I understand it.

And that’s where Sherman is wrong and Perry is right. The old moves no longer work. Buying Congresspeople to pass legislation drafted behind closed doors doesn’t really work (although maybe we’ll find out when we debate the Copyright Term Extension Act of 2018). Calling it “theft” when someone downloads a song they’d never otherwise pay for doesn’t work (even Perry is still on about this one).

One more thing about Sherman: his op-ed reminded me of Detective John Munch in Homicide, who breaks down and shouts at a suspect, “Don’t you ever lie to me like I’m Montel Williams. I am not Montel Williams.” Sherman lies to our faces and expects us not to notice. He writes, “the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents.” Yes, it was carefully devised – by content industries. SOPA was introduced at the end of October, and the single hearing that was held on it was stacked with proponents of the bill. “Carefully devised?” Key proponents didn’t even know how its DNS filtering provisions worked. He argues, “Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal?” Because censorship is when the government blocks you from accessing speech before a trial. “A thorough review of evidence” is a flat lie: SOPA enabled an injunction filtering a site based on an ex parte application by the government, in contravention of a hundred years of First Amendment precedent. And finally, he notes the massive opposition to SOPA and PROTECT IP, but then asks, “many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation?” This is a McCarthyite tactic: associating the remarkable democratic opposition to the bills – in stark contrast to the smoke-filled rooms in which Sherman worked to push this legislation – with Anonymous and other miscreants.

But the risk for Sherman – and Paramount, and Sony, and other content industries – is not that we’ll be angry, or they’ll be opposed. It’s that they’ll be irrelevant. And if Hollywood takes the Sherman approach, rather than the Perry one, deservedly so.

Cross-posted at Info/Law.

  February 14, 2012 at 7:40 pm   Posted in: Architecture, Culture, Cyber Civil Rights, Cyberlaw, DRM, First Amendment, Google & Search Engines, Innovation, Intellectual Property, Media Law, Political Economy, Politics, Technology, Web 2.0   Print This Post   5 Comments

The Hardest Thing to Predict Is the Future

posted by Derek Bambauer

SOPA and PROTECT IP are dead… for now. (They’ll be back. COICA is like a wraith inhabiting PROTECT IP.) Until then, Michelle Schusterman has a terrific graphic about the movie industry’s predictions of doom with each new technological revolution. (Ditto the music industry: the player piano, radio, CDs, the MP3 player, etc., etc.) One reason for this is that it’s difficult to predict the effects of a new communications technology. People thought we’d use the telephone to listen to concerts from afar. But another reason is that content industries see advances not as an opportunity but as a threat – a threat that they deploy IP law to combat, or at least control. And in a policy space where lawmakers don’t demand actual data on threats before acting, trumped-up assertions of job loss and revenue loss can carry the day. This puts the lie to the theory that IP owners will move to exploit new communications media, if only they are protected against infringement. We didn’t get viable Internet-based music sales until iTunes in 2003, and Spotify is the first serious streaming app (the “celestial jukebox“). Think about prior efforts like Pressplay and MusicNow, and how terrible they were. Letting the content industry design delivery models is like letting Matt Millen draft your football team.

This is why piracy is a helpful pointer: it tells us what channels consumers want to use to access content. Sometimes this is just displacement of lawful consumption, as when college students with copious disposable income download songs via BitTorrent, but sometimes it indicates an unaddressed market niche (as with me and the baseball playoffs). To paraphrase Thomas Jefferson, I think a little bit of infringement now and again is a good thing. It is only when there is a viable threat in a new medium that existing players innovate – or cut deals with those who do. In that regard, even if SOPA and PROTECT IP are effective at reducing infringement, we might not want them.

Cross-posted at Info/Law.

  January 31, 2012 at 6:58 pm   Posted in: Architecture, Culture, Cyberlaw, DRM, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0   Print This Post   2 Comments

The Front Page, for Whom?

posted by Danielle Citron

Recently, Arianna Huffington, founder of the Huffington Post, announced the debut of its French version and new editor, Anne Sinclair, a journalist and former television anchor who many know as the wife of Dominique Strauss-Kahn.  In discussing her role at Le HuffPo, she explained that her husband’s legal troubles and political career would not pose a conflict of interest for her work and that “All important news will be treated normally, as it would be treated elsewhere.  Anything that should be on the front page will be on the front page.”   What caught my interest wasn’t her assurance about her professionalism.  Rather, it was her suggestion that a front page exists for online papers, at least one that is static.  In our era of personalization, news sites not only personalize the ads that we see but also news deemed of interest to us — and hence what site visitors see as they open new sites.  Lucky for us, guest blogger Joseph Turow can shed light on the varied implications of such personalization — on our culture, politics, privacy, and more.

  January 30, 2012 at 11:05 am   Posted in: Culture, Current Events, Technology   Print This Post   No Comments

Censorship on the March

posted by Derek Bambauer

Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.

Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.

Cross-posted at Info/Law.

  January 18, 2012 at 5:31 pm   Posted in: Advertising, Architecture, Civil Procedure, Constitutional Law, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0, Wiki   Print This Post   No Comments

The Fight For Internet Censorship

posted by Derek Bambauer

Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

  January 16, 2012 at 7:28 pm   Posted in: Architecture, Civil Procedure, Constitutional Law, Culture, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0   Print This Post   One Comment

Secure Identities on the Internet

posted by Frank Pasquale

Katharine Gelber offers a thoughtful review of The Offensive Internet in the Australian Review. (David Levine conducted an interview with the book’s editors, Martha Nussbaum and Saul Levmore, available here.) I contributed an essay to this volume, and I found both the other essays in it and the conference it was based on very illuminating. As Gelber notes,

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. . . .

Read the rest of this post »

  January 2, 2012 at 11:36 am   Posted in: Civil Rights, Culture, Current Events, Privacy, Technology   Print This Post   No Comments

Ira Glass v. Amanda Williams: Knockout Punch

posted by Sarah Waldeck

In the event you read this prior post and missed the coverage in the news today, Judge Amanda Williams has agreed to resign from the bench in January and has also promised not to seek another judgeship.  In exchange the Georgia Judicial Qualification Commission dropped the complaints of misconduct against the Judge, who presided over the state’s largest drug court.  On one level, this result is unsurprising because resignation is the usual result when complaints are brought by the Commission.  The resignation, however, is a dramatic fall from grace for a judge who recently won re-election to a sixth term.

 

  December 22, 2011 at 1:04 am   Posted in: Courts, Culture   Print This Post   No Comments

New Wave Publishing: Innovation, New Creativity, and Jobs on the Horizon?

posted by Deven Desai

A New Wave is happening in publishing. Now I hear New Wave and think of the British invasion of the 80s. Today the new wave is happening in publishing in the U.S. And it may be that creative folks will not need the central publishing industries to reach their audiences. For the dream of interactive publishing is real. In one case some professors are getting short, powerful ideas out fast and making some money too. In another, a creative technologists have started a company in Shreveport, Louisiana, hired 20 people, and are selling some of the hottest things for iPads. Like all creative acts, not everyone will succeed. But that is true in all business too. The difference is that the barriers and old ideas of what a marketplace can handle are dropping. And what’s really cool is that folks are playing with new ideas and models to create great art and ideas, share, and earn all at the same time. For me, both cases show that ideas about what is and is not a market and where the latest and best high art or creative project will come from often miss the point. Open up the system and watch how people will create in new ways and even make some money too. Trying to hold onto the past and decrying the death of high art etc. as some do, simply misses the array of possibilities that lie before us.

More specifically, these examples make me think that some rather cool new text and opportunities are headed our way. As Richard Lanham noted in the Electronic Word almost 20 years ago, the standard linear text may give way to new forms. Like illuminated manuscripts we are seeing a new way of communicating. Hyperlinked, and how about animated, and I’d say even holographic, interactive text is coming. (I am guessing this stuff is occurring elsewhere, but the stories I have seen are U.S. So as always share what I am missing politely please.)

First, in professorland, Erik Brynjolfsson and Andrew McAfee’s Race Against the Machine: How the Digital Revolution is Accelerating Innovation, Driving Productivity, and Irreversibly Transforming Employment and the Economy, follows Tyler Cowan’s work released as an ebook, but I think Race Against the Machine is only available as an e-book. Although the ideas in the book, or rather as Hal Varian reminded me, monograph may fit its length, are interesting, I was intrigued by the ebook model. At $3.99 and as an electronic publication, the tightly written piece can be written as intended without bloat to justify a larger spine (yes that matters for shelf-space marketing). And I think the press is run such that the authors will receive a fair amount of the proceeds. I found that the hyperlinked citations worked rather well. I jumped out and then back into the piece as supported assertions drew me away from the text, but I wanted to go back quickly when done. All that on an iPhone Kindle App.

Second, the Atlantic’s How to Build the Pixar of the iPad Age in Shreveport, Louisiana demonstrates the promises of technology that Race Against the Machine offers in some ways. The word, book, fails to capture this work. As the article describes:

Their first project, The Fantastic Flying Books of Mr. Morris Lessmore, was released for the iPad last May. It recounts the wondrous adventures of a book lover who dotingly cares for a living library before writing a book himself that tells of “his joys and sorrows, of all that he knew and everything that he hoped.” Gorgeously illustrated, Lessmore breaks new ground in the way that it incorporates interactivity. Each page has a wormhole of interaction. Read about a song and perhaps a keyboard will pop up and guide your fingers to plunk out “Pop Goes the Weasel.” When Morris Lessmore hand-feeds alphabet cereal to his books, the reader gets a bowl too, with letters that can be dragged along through the milk to spell out words. Each page holds its game like a secret and puzzling out what to do encourages the reader to look harder, knowing they’ll be rewarded. The games pull the reader deeper; the narrative pulls the reader farther. The tension between lingering and racing is potent.

It is technically an App! And it was the best-selling one for a bit too. That success has led the team to hire 20 people and become a small studio in this new medium.

And like the professors, these creators are doing what they want their way and kicking open new markets to boot. “There isn’t a huge market for animated shorts, certainly not the multibillions that can be reaped from a wide-release. If they’d wanted a world-class studio, they might have been forced to supersize their operations.” Technology like the iPad in this case is opening the door for folks to create and sell on their terms. They can “stay smaller, retain more creative control, and tell stories in new ways. They have faith that stories are more fundamental than technology, but that technology will enable a storytelling renaissance.”

  November 29, 2011 at 7:39 pm   Posted in: Culture, Innovation, Intellectual Property, Technology   Print This Post   One Comment

Ira Glass v. Amanda Williams

posted by Sarah Waldeck

If you missed the story Very Tough Love when it aired last March on This American Life, it put a new spin on that old adage about local politics mattering most.  When you are a drug court defendant, the judicial philosophy and temperament of the judge who manages your case matters a lot, particularly since entering the drug court means waiving many procedural rights.  The story, which focused on a drug court judge who had recently won reelection to a sixth term, was remarkable for its laser focus on judicial discretion and how much can go awry when that discretion is abused.  It was also impossible to listen to the story without speculating about how furious the judge must have been when she heard it.

Furious enough, it turns out, to threaten to sue This American Life and reporter Ira Glass for libel.  She sent her letter,  Glass responded, and for a while all seemed to be quiet.

This past week, however, Georgia’s Judicial Qualifications Committee filed a formal complaint against the judge—Amanda Williams, who presides over the drug court in the Brunswick Judicial Circuit.   Among other allegations, the complaint states that Judge Williams jailed defendants indefinitely, ordered a suicidal defendant into solitary confinement for more than two months, and ordered a defendant jailed when he disputed the results of a drug test.

Judge Williams has the opportunity to respond to the charges in writing.  Unless she and the Committee settle (which usually results in a judge stepping aside), the Commiittee will hold a trial-like proceeding on the charges.

We’ll see what happens next.  But if you haven’t been following this, it’s worth clicking on the links to get up to speed.  Reality radio is way more interesting than reality television.

 

Photo Credit:  Krista Johansen

 

 

 

  November 13, 2011 at 1:06 am   Posted in: Courts, Culture   Print This Post   One Comment

Come With Me and Escape

posted by Deven Desai

“If you like Pina Coladas, and getting caught in the rain.
If you’re not into yoga, if you have half-a-brain.”

Bay Area radio struggles to have decent music. I tend to cycle through the few stations that may have something of interest. A recent addition to the dial focuses on 60s. 70s, and 80s. As a competitor points out, the new comer tends to repeat the same track several times a day. Recently the song Escape (The Pina Colada Song) has been playing quite a bit. The funny thing to me is that yoga and health food seem to have been dating and compatibility differentiators for more than 30 years. The style of the song and especially the attire, however, may not be as timeless; just reminders of the end of the seventies and the start of eighties (It was the last number 1 of the seventies and first of the eighties). Oddly that decade seems a bit more sane regarding taxes.

It took more than two years to produce that tax code overhaul. During that time, Reagan went on the road to plead his case for the plan. At a high school in Atlanta, Ga., in 1985, Reagan said they were going to “close the unproductive loopholes that allow some of the truly wealthy to avoid paying their fair share.”
Meanwhile in Congress, Democrats and Republicans worked together to merge competing proposals for tax reform. Still in office today, Democratic Sen. Patrick Leahy of Vermont was there during the passage of the bill. He says it was a different era.
“We had a lot of grownups in both parties, people who actually wanted the government to work,” Leahy says.

All of which makes me wish there was a world where I could write a personal ad seeking a new politician and find that the one who turned up was already in place. Now that is a fantasy.

Anyway, enjoy the song. Oh as moment of who knew: The song was released on September 21, 1979. The movie “10” which is a rather similar story and also a huge hit of the era was released October 5, 1979. As far I know they were not connected directly; yet they stuck together in my head because of the story lines.

  November 3, 2011 at 12:12 am   Posted in: Culture, Just for Fun, Tax   Print This Post   No Comments

Public Protest 1.0

posted by Timothy Zick

The “occupation” of wall street and other spaces across the country originated online, and the protesters have set up their own media camps to disseminate videos and other information to the public.  These are some of the unique features of contemporary protests.  But what has been striking so far is the extent to which these protesters have relied on older forms of contention and information dissemination. 

Like previous protests, this one has claimed public space in order to make a public statement — of discontent and dissatisfaction so far, and perhaps a more affirmative statement in the days to come.  (Interestingly, the most prominent space in lower Manhattan — Zucccotti Park — is privately owned, and thus not technically one of the quintessential public forums open for public assembly and debate.)  The occupation is  physical; like other demonstrations, a substantial part of its power derives from the visual solidarity of its participants and the disruption the occupation is creating (of course, these things may have downsides and costs in terms of the efficacy of protests).  The occupation is relying on traditional protest repertoires such as marches and sit-ins — indeed, the Wall Street occupation is in one sense an extended outdoor sit-in.  Many of the protesters, though tech-savvy, carry makeshift placards and signs.  Some dress in costumes.  Some sit in drum circles.  Some advocate anarchy.  They have trouble finding suitable bathrooms, and have clashed with merchants.  To this point, the protesters have sought to move by consensus — a method of organizing that has led to frustration in past movements.  They even have their own newspaper , which they circulate to passersby and others (who says the traditional press is dead?).  The press and police have dutifully played their roles too — the cops have used escalated force and the media have demonstrated conflict reporting biases. 

This reliance on traditional forms of public contention should not come as a complete suprise.  Technology is undeniably useful to protest movements.  It can facilitate organization and dissemination of information.  It can help protesters bypass media filters, at least to some extent.  It can even facilitate sousveillance, or surveillance from the bottom.  But as I argued in Speech Out of Doors, online protests simply do not have the same communicative impact as those that take place out of doors.  That impact derives from their physicality, their presence, their human dimension.  As one veteran journalist observed with respect to the fledgling newspaper:  “[N]ewspapers convey a sense of place, of actually being there, that digital media can’t. When is the last time somebody handed you a Web site?”  In a broad sense, that is what traditional protests provide — a sense of place.

  October 12, 2011 at 11:49 am   Posted in: Civil Rights, Culture, Current Events, First Amendment   Print This Post   2 Comments

Facebook, Bullet Not Dodged Yet (Part Deux)

posted by Danielle Citron

In June, I blogged about the dreaded question (for parents of teenagers): “Mom, can I have a Facebook profile?”  At the time, we talked about its benefits and drawbacks.  On the one hand, it’s a gateway to socializing that she had been missing given her late birthday.  Different sports leagues had Facebook groups, perhaps she needed to join, and other activities would as well.  On the other hand, her privacy and reputation could be jeopardized, by her own hand or her “friends.”  Facebook’s privacy settings are notoriously whimsical, and more importantly as Steve Bellovin’s work shows notoriously misunderstood–setting up an account was indeed a game of chance, or as Bob Keller notes, like giving your kid a pipe of crystal meth.  We gave our thirteen year old kid the choice and told her to talk to us when she was ready to get started.  The summer came and went and all was quiet.  So now, a good five months later and a good five months wiser, my kid has decided that she wants to think about getting a Facebook page again.  And the conversation went something like this (she did all of the talking):  So I’m feeling excited about this.  Facebook would let me stay in touch with my sleep-away camp friends who live all over the place and I could friend kids that I meet from other schools in the area, at games, mixers, etc.  And I am jazzed about this new close friends feature that everyone’s been talking about.  This way I can share photographs only with my five best pals and I don’t have to worry.  (Pause).  But, I really want to friend the kids from camp and want them to see what I am up to, so this close friends feature may not work.  And what if those camp friends have weird friends or end up being strange themselves.  I can’t de-friend them, can I and still pal around at camp?  And I don’t want other people making judgments about me based on what those not-so-close friends are up to?  Will colleges see what I am doing, when it comes time?  And what if someone goes on my close friend’s computer and copy and pastes my silly remarks and it goes viral, like the Friday girl who ended up getting death threats and harassed.  Can I put up my favorite artists?  I definitely can say I like the Beatles and Elton John, but can I say Kesha?  Will people think I am appropriate if I put Kesha down or Katy Perry?  Some of their songs are, err, a little inappropriate.

After all of that, my kid said she needed to think about it, it all seemed so, well, complicated.  That seemed just the right word: complicated.  But the question seems even more tricky now than it did in June.  Who is she doing this for?  Taking cues from Erving Goffman, life is a performance.  Some of it is just for you–a way to develop oneself, experiment, play, and figure out who you are as much as who you are not.  Much of it is for others.  We perform different roles for the people in our lives: friends, parents, co-workers, coach, priest/imam/rabbi, acquaintances, and strangers.  Some performances are oppressive: we cover or pass as best we can in the face of stigma and prejudice.  And we perform at a time of extensive social and political surveillance.  We feel watched, and for good reason.  Companies give us social influence scores.  Employers, marketers, and businesses use those scores to benefit some, leaving others less favored and less fortunate.  Maybe we perform online for them?  Colleges look at social media profiles.  (danah boyd has a great piece about a question a college asked her about a student’s MySpace page, which seemingly contradicted his college essay.)  Do young people perform for them?  At the same time, government monitors our online presence, searching for threats to critical infrastructure and the like.  Government 2.0 social media sites may be keeping track of the stories we like, the friends we make, and pictures we post.  Who knows?  Agencies aren’t promising not to watch us, so maybe being careful is smart.  Are we performing for fusion centers and our government social media friends?  All of this watching brings to mind Julie Cohen’s book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press, forthcoming 2011, see her talk here)–more on that in early 2012 in our online symposium on the book.  Navigating those questions every time one posts on Facebook is bewildering, especially because we can’t really control what happens to the information posted there.  A commentator on my previous post basically said that I had better get a grip on reality, that nothing I did or said could influence what she did and she would hate me anyway.  I guess we just fundamentally disagree.  Parenting is a huge responsibility, and lots of what my kid is mulling comes from long, long conversations we have had about being a responsible and smart digital citizen.  I am looking forward to talking it through again, once she has a better idea of what she wants to do.

P.S. Sorry about the light blogging, working on my first book on cyber mobs and hate (forthcoming Harvard University Press).

H/T Susan McCarty (who helped me find the db piece) , JJC

  October 6, 2011 at 9:07 am   Posted in: Culture, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Social Network Websites, Technology, Web 2.0, Weird   Print This Post   5 Comments

Bernard Harcourt’s Realist Political Economy

posted by Frank Pasquale

It’s becoming clearer that classic Keynesian stimulus—ranging from Obama’s minimalist jobs program to the robust visions of a Krugman or Delong—won’t be enough to get us out of the Great Recession/Lesser Depression. The exhaustion of conventional macroeconomic thought (chronicled in outlets like the Real World Economics Review) has cleared some space for more imaginative thinkers. As John Kay observes:

Economics is not a technique in search of problems but a set of problems in need of solution. Such problems are varied and the solutions will inevitably be eclectic. Such pragmatic thinking requires not just deductive logic but an understanding of the processes of belief formation, of anthropology, psychology and organisational behaviour, and meticulous observation of what people, businesses and governments do.

In this post, I want to briefly highlight Bernard Harcourt’s work in crossing disciplinary boundaries to engage in the synthesis necessary to truly understand our plight.

Consider the following paradoxes or contradictions, which will also be highlighted at a conference that Harcourt is keynoting:
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  September 23, 2011 at 10:06 am   Posted in: Criminal Law, Culture, Economic Analysis of Law, Philosophy of Social Science, Uncategorized   Print This Post   3 Comments

Racial Profiling & Surveillance

posted by Frank Pasquale

You may have heard about “multiple passengers holed up in the bathroom” of a plane flying on Sunday, which “led to F-16s shadowing . . . it [as it] neared Detroit.” Turns out that the false alarm was sparked by a “half-Arab and half-Jewish” woman who sat between two South Asian passengers:

[O]n this flight she was sitting by chance in a row with two Indian-looking passengers, neither of whom knew the other or knew her. But collectively they aroused the suspicion of other passengers or crew, and when the plane landed, heavily armed troops stormed aboard, handcuffed the three of them, and took them off for extensive questioning. After which they were eventually released with “no charges filed.” Which is fair enough, considering that like everyone else on the plane they were simply trying to travel from Denver to Detroit and had done absolutely nothing wrong except to have “suspicious” looks.

Here is her first-hand account:

Someone shouted for us to place our hands on the seats in front of us, heads down. The cops ran down the aisle, stopped at my row and yelled at the three of us to get up. “Can I bring my phone?” I asked, of course. What a cliffhanger for my Twitter followers! No, one of the cops said, grabbing my arm a little harder than I would have liked. He slapped metal cuffs on my wrists and pushed me off the plane. The three of us, two Indian men living in the Detroit metro area, and me, a half-Arab, half-Jewish housewife living in suburban Ohio, were being detained.

The cops brought us to a parked squad car next to the plane, had us spread our legs and arms. Mine asked me if I was wearing any explosives. “No,” I said, holding my tongue to not let out a snarky response. I wasn’t sure what I could and could not say, and all that came out was “What’s going on?”. . . .

What is the likelihood that two Indian men who didn’t know each other and a dark-skinned woman of Arab/Jewish heritage would be on the same flight from Denver to Detroit? Was that suspicion enough? Even considering that we didn’t say a word to each other until it became clear there were cops following our plane? Perhaps it was two Indian man going to the bathroom in succession?

Combine this with Vance Gilbert’s “flying while black” story, and any number of others, and you do have to wonder about how easily the racialized paranoia of a few can be given the full backing of the government (if only for a few hours of fright for the victim while he or she is cleared). Having recently looked into some aspects of the surveillance state, I have to wonder: do these incidents generate secret “Suspcious Activity Reports” for the publicly vindicated victims? Are they a mark against them in some undisclosed TSA or fusion center databases? The FBI justified its Detroit action by stating “The public would rather us err on the side of caution than not.” Is there any way for targeted minorities to assure that the public’s irrational discrimination is not empowered and advanced by law enforcers who are willing to “see something” when anyone “says something?”

  September 13, 2011 at 10:41 pm   Posted in: Criminal Law, Criminal Procedure, Culture, Current Events, Privacy (Law Enforcement), Privacy (National Security)   Print This Post   10 Comments

Hot Summer Flashes, Black Urban Mobs

posted by Olivier Sylvain

  September 5, 2011 at 11:52 pm   Posted in: Constitutional Law, Culture, Current Events, First Amendment, Media Law, Philosophy of Social Science, Politics, Race, Social Network Websites, Sociology of Law, Technology, Web 2.0   Print This Post   8 Comments

Will in Insolvency

posted by Lawrence Cunningham

In this week’s New Yorker, Nick Paumgarten, in the Talk of the Town, kindly draws on my work  about the cultural contingency of financial reporting; he quotes me on the need to update the idea of insolvency.  Usually defined as the ability to pay debts as they come due, or assets exceeding liabilities, there has always been a strong objective thrust to the notion.  The emphasis is on measured financial activity reduced to a verifiable expression of ability. 

But as Nick notes, equally important is a debtor’s will to pay.  The differences appear in the contrast between the United States and Greece.When  Standard & Poor’s recently lowered its credit rating of the U.S. Treasury by one notch, it registered doubt not so much about the country’s ability to pay its debt, but the will of its incumbant political class to do so. In contrast, Greece’s political elite seem committed to finding ways to meet that country’s debts; alas, its resources compared to its obligations raise real doubt about their ability to do so. 

Another example of the difference between the ability and the will to pay debts arose in the September 2008 tussle over what to do about American International Group. It was then the world’s largest insurance company and shortly before the crisis  boasted a market capitalization of $180 billion. Much of its trillion-dollar balance sheet was securely housed in walled-off insurance subsidiaries.  Read the rest of this post »

  August 22, 2011 at 10:30 am   Posted in: Accounting, Bankruptcy, Culture, Current Events   Print This Post   7 Comments

From Safety Net to Dragnet

posted by Frank Pasquale

The fourth Class Crits conference will be held in DC in about a month. Titled “Criminalizing Economic Inequality,” it focuses on the US’s “increasing reliance on the criminal justice system to make and enforce economic policy.” A few recent items highlight the conference’s timeliness:

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming out of their own paychecks.”

Nationally, according to Kaaryn Gustafson of the University of Connecticut Law School, “applying for welfare is a lot like being booked by the police.” There may be a mug shot, fingerprinting, and lengthy interrogations as to one’s children’s true paternity. The ostensible goal is to prevent welfare fraud, but the psychological impact is to turn poverty itself into a kind of crime. Read the rest of this post »

  August 19, 2011 at 10:17 pm   Posted in: Criminal Law, Culture, Current Events, Immigration, Law and Inequality, Privacy   Print This Post   One Comment

The Pink’s Paradox: excessively long food lines as overly strong signals of quality

posted by David Fagundes

There is a great hot dog joint here in Los Angeles called Pink’s Famous Hot Dogs.  I love their delicious chili dogs.  I am a huge fan of the location’s classic L.A. style (parts of the best film ever made were filmed on the site, and there’s a probably false rumor that Orson Welles got obese because he was addicted to Pink’s chili dogs).  They’re located a quick drive from where I work.  And I never, ever go there.

What explains this apparently counterintuitive result?  Why don’t I patronize this nearby beloved eatery more often, or at least some of the time?  My reason is simple:  The wait is way, way too long.  Pink’s doesn’t  just have a 15-20 minute wait at meal times like many local eateries. Rather, at almost any time of day, the line to get a Pink’s chili (or any other) dog snakes through a few switchbacks, up La Brea, and back into their parking lot, frequently lasting a good hour.  At peak times, the line has been said to approach 1.5 or two hours (and here, I’m going on word of mouth because, as you’ll gather from this post so far, I’m deterred by the long line and haven’t actually experienced it).

Classic L&E would suggest that this isn’t a paradox at all, and that the line merely reveals the unusually strong preferences of the public for Pink’s chili dogs, meaning that they really are worth the interminable wait.  And while this is an empirical question, and while tastes are subjective and highly variable, I can’t buy that account.  I can understand waiting in line for hours, say, to obtain critical medical services, or in a bread line in Soviet Russia where the only alternative is starving.  I can even imagine waiting in line for a couple hours to get tickets for a once-in-a-lifetime chance to see your favorite performer appear live.  But for chili dogs?  No way.  Something more than simple preference satisfaction has to be going on.

So what explains the Pink’s paradox?  Why is it that demand for these chili dogs continues to grow, even as the experience costs and actual costs associated with its food increase at an even greater rate (and appear to swamp the benefits of eating even the tastiest chili dog)?  And what does this tell us about the rationality (or irrationality) of line-waiting generally?  I discuss possible conjectures responding to each of these questions below the fold.

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  August 17, 2011 at 5:50 pm   Posted in: Culture, Food, Weird   Print This Post   35 Comments

South Park & a Necessity Theory of Fair Use’s Parody/Satire Distinction

posted by David Fagundes

As those of you who have seen my guest posts so far can likely surmise, I consider it particularly important to focus on crucially important social issues that affect all of us, deeply and profoundly.

And so you can imagine my delight when the perfect opportunity presented itself.  Just a couple weeks back, the U.S. District Court for the Western District of Wisconsin issued a decision in a copyright infringement matter pitting the creators of South Park against the owners of the copyright in the immortal viral video “What What (In the Butt)” (hereinafter, in the interest of both brevity and something like tact, “WWITB”).

The utter, fascinating bizarreness of WWITB itself strains my narrative capacities, so I’ll only suggest that you check out the three-minute video here, though probably not at work.  While this video was enjoying its fifteen seconds of internet fame in 2007-08, an episode of the TV show South Park featured a minute-long (and unauthorized) variation of WWITB in which the character Butters Scotch performed an animated simulacrum of the song and video.  The assignees of the rights in WWITB sued for infringement of their copyright in the work, and the district court granted the defendants’ motion to dismiss the complaint on the theory that their video was protected under the statutory affirmative fair use defense.

What makes Brownmark interesting is not that it was wrongly decided (quite the contrary–my sense is that it reached the right result).  Nor is the case interesting because it took an atypical approach to analyzing the fair use issue.  Rather, what’s interesting to me about Brownmark is that it’s very typical in its approach to fair use.  The district judge formally marched through all four statutory fair use factors (as section 107 requires), but the analysis was driven almost entirely by transformativeness (part of the first-factor analysis, which has become along with the fourth factor almost conclusive of fair use issues, as some really good recent empirical work has shown), and the analysis of transformativeness in turn was driven almost entirely by the judge’s conclusion that the South Park clip was a parody (rather than a satire) of WWITB.

I say more about why I think the approach to fair use epitomized by Brownmark is flawed, and suggest a different way to locate parody/satire within the fair use skein, below the fold.

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  August 2, 2011 at 11:08 am   Posted in: Culture, Intellectual Property   Print This Post   8 Comments

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