Archive for the ‘Google & Search Engines’ Category

“Kicking the Tires” is not “Looking Under the Hood”

posted by Frank Pasquale

Celebrated in the tech press only a week ago, the FTC inaction (and non-explanation of its inaction) with respect to search bias concerns is already starting to curdle. The FT ran a front page headline titled “Europe Takes Tough Stance on Google.” Another story included this striking comment from the EU’s competition chief:

Almunia insists that the Federal Trade Commission decision will be “neither an obstacle [for the European Commission] nor an advantage [for Google]. You can also think, well, this European authority, the commission, has received a gift from the American authorities, given that now every result they will get will be much better than the conclusions of the FTC,” he said with playful confidence. “Google people know very well that they need to provide results and real remedies, not arguments or comparisons with what happened on the other side [of the Atlantic].”

In response to allegations of search bias, Google has essentially said, “Trust us.” And at the end of its investigation into the potential bias, the FTC has essentially said the same. One public interest group has already put in a FOIA request for communications between Google and the FTC. Consumer Watchdog has requested a staff report that was reported to have recommended more robust action. Will Google, an advocate of openness in government and the internet generally, hold firm to its professed principles and commend those requests?
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  January 11, 2013 at 10:28 am   Posted in: Antitrust, Cyberlaw, Google & Search Engines, Government Secrecy, Political Economy, Privacy (Electronic Surveillance), Technology   Print This Post   2 Comments

Google Antitrust: the FTC Folds

posted by Frank Pasquale

Both Eric Goldman and James Grimmelmann have the details on the FTC’s rather extraordinary capitulation today. It is a big win for Google. Still, a few questions remain. I have the following:

1) Commissioner Rosch included this intriguing footnote in his concurrence/dissent:

I . . . have concerns that insofar as Google has monopoly or near-monopoly power in the search advertising market and this power is due in whole or in part to its power over searches generally, nothing in this “settlement” prevents Google from telling “half-truths”–for example, that its gathering of information about the characteristics of a consumer is done solely for the consumer’s benefit, instead of also to maintain a monopoly or near-monopoly position. . . .That is a genuine cause for “strong concern.”

Did Google ever say that it was gathering data purely for consumers’ benefit? That would seem to be an odd representation for a for-profit company to make.
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  January 3, 2013 at 9:51 pm   Posted in: Antitrust, Consumer Protection Law, Google & Search Engines, Technology   Print This Post   6 Comments

Stanford Law Review Online: Software Speech

posted by Stanford Law Review

The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:

When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.

He concludes:

By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.

Read the full article, Software Speech at the Stanford Law Review Online.

  November 15, 2012 at 10:18 am  Tags: Constitutional Law, Cyber Civil Rights, First Amendment, search engines, technology, videogames  Posted in: Constitutional Law, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Law Rev (Stanford), Supreme Court, Technology   Print This Post   3 Comments

Algo-Driven News with a Human Face

posted by Frank Pasquale

Chistopher Steiner’s new book on algorithms looks interesting. (One nugget: Many companies now use software to analyze the emotional tone of customers calling in for customer service help. Sound emotional, and you’ll get routed to the more empathic call center workers.) It’s part of a growing literature on algorithms both online and off. As we search for reliable information on algorithms, they in turn may well be driving even our awareness and discussion of them. It’s another way technology shapes values, rather than being influenced or constrained by them. Consider a recent feature on an increasingly algorithm driven news industry:

Google News-powered results, Google says, are viewed by about 1 billion unique users a week. . . . Which translates, for news outlets overall, to more than 4 billion clicks each month: 1 billion from Google News itself and an additional 3 billion from web search. . . .

Google News’s head of engineering[] summed up the challenge: “How do I take a story that has 20,000 articles, potentially, and showcase all of its variety and breadth to the user?” . . . . Google [is] symbolic of a broader transition: producers’ own grudging acceptance of a media environment in which they are no longer the primary distributors of their own work. [It] suggests an ecosystem that will find producers and amplifiers working collaboratively, rather than competitively. And working, intentionally or not, toward the earnest end that Schmidt expressed two years ago: “the survival of high-quality journalism.”

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  September 21, 2012 at 8:42 pm   Posted in: Cyberlaw, Google & Search Engines, Intellectual Property   Print This Post   2 Comments

SOPA, PIPA and some truth about activism

posted by Deven Desai

As folks start to claim they saved the Internet and rally for alleged ways to keep the Internet open for all, I want to call out something Rep. Issa said at Stanford in April. Step one, and to me the but-for moment, in stopping SOPA and PIPA was the security and CS community speaking (which was rare) about just how dangerous (“A potpourri of dumb things” – Issa at around 8:15) the bills were. Without that the activism probably could never have gotten in place. Furthermore, as I noted elsewhere, science can shift. Science is, by definition, amoral. If you build it, it will work. So expect the copyright industry to demand new things. Expect them to hire and fund studies about how to get what they want without going using “A potpourri of dumb things.” And note that Google’s recent shift in approach regarding links and alleged pirate sites shows that things change.

This is not an apolitical moment. It is deeply political, but pretends that it is not about a power shift. When Internet and tech companies swear they are there for you, be skeptical. In some senses they are. Many folks I know at Google really are interested in serving users. Many are also scientists who will pursue, as they should, the truth of what is possible. The current bus-stop tour by Reddit’s co-founder, Alexis Ohanian is political. Per the Washington Post, for him, “[T]he key issue is getting Internet openness on the minds and into the talking points of politicians in this election.”

What does openness mean? What are the politics of openness? Why do Facebook, Google, Reddit want openness? South by Southwest looks like it may have panel on disrupting DC. The description reads like an evangelic rally (a good tip that thought is replaced by faith). But to its big credit (except for saying the questions will be answered), the panel looks at some decent issues:

1. The Industrial Revolution brought about a political realignment that created the existing party system. Can the Internet do the same?
2. Beyond “openness,” what are the essential characteristics that define the Internet’s political identity? Market oriented or socially conscious? Libertarian or progressive? (Or all of the above?)
3. Politically, does the Internet most resemble an interest group (like big business or labor unions), a movement, or something we haven’t seen before?
4. Is Internet culture weakening partisanship — or making it worse?
5. Technology drives growth, but some say it also kills jobs. How do we make sure that the benefits of the Internet are widespread? Is there a consistent political viewpoint here among Internet activists, or does this break down along typical political lines?

I doubt one panel can tackle all these questions. Much will depend on the panelists and whether the panel is really open in that it has voices other than those who all agree. Nonetheless, one thing that is missing is a deeper look at the power structures and history that inform the issue. For example, the idea of realigning parties still relies on parties. And, there is an essentialism to Internet identity that is ironic at best and willfully blind and lacking irony at worst.

Have I abandoned my Google brothers and sisters? Oh perhaps, but I don’t think so. These questions were ones I raised while there. Some disliked them. Some took them seriously. The people I respected and loved the most pushed me to dig into these points. Like society, Google has many people with many views and agendas. That’s the point. With all companies and all people asserting truth, administer several grains of salt, reflect, (maybe add some lime and tequila first). For those wishing a good book on the problems with saying we know where we are going, check Professor Wendy Brown’s work, especially Politics Out of History.

  September 2, 2012 at 3:11 pm   Posted in: Cyberlaw, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Technology, Web 2.0   Print This Post   No Comments

Google Says “No, No” to Mr. or Ms. Pirate; What About Hate Speech?

posted by Deven Desai

Fred von Lohmann posted that Google has changed its algorithm. Now “it’ll start generally downranking sites that receive a high volume of copyright infringement notices from copyright holders.” The Verge reports that:

because its existing copyright infringement reporting system generates a massive amount of data about which sites are most frequently reported — the company received and processed over 4.3 million URL removal requests in the past 30 days alone, more than all of 2009 combined. Importantly, Google says the search tweaks will not remove sites from search results entirely, just rank them lower in listings. Removal of a listing will still require a formal request under the existing copyright infringement reporting system — and Google is quick to point out that those unfairly targeted can still file counter-notices to get their content reinstated into search listings.

The data-driven basis makes sense to me. So what other areas could be monitored and adjusted? I disagree with the idea that search engines should take on policing roles for certain speech that Danielle Citron and others have urged. But this shift may open the door to more arguments for Google to be a gatekeeper and policer of content. Assuming enough data is available, Google or any data-driven service, could make decisions to include or exclude entries (or shift ranking). Those moves already happen. But the difficult question will now be why or why not act on some issues but not others. James Grimmelman has a work in progress on search and speech that gets into this question. I believe the algorithm issues still control. Nonetheless, by nodding to the copyright industry, Google may be opening the door to further calls to be the Internet’s gatekeeper. Of course, if it does that, others will attack Google for doing just that from competition and other angles.

  August 10, 2012 at 5:25 pm   Posted in: Cyberlaw, Google & Search Engines, Google and Search Engines, Intellectual Property, Technology   Print This Post   No Comments

Automated Arrangement of Information: Speech, Conduct, and Power

posted by Frank Pasquale

Tim Wu’s opinion piece on speech and computers has attracted a lot of attention. Wu’s position is a useful counterpoint to Eugene Volokh’s sweeping claims about 1st Amendment protection for automated arrangements of information. However, neither Wu nor Volokh can cut the Gordian knot of digital freedom of expression with maxims like “search is speech” or “computers can’t have free speech rights.” Any court that respects extant doctrine, and the normative complexity of the new speech environment, will need to take nuanced positions on a case-by-case basis.

Digital Opinions

Wu states that “The argument that machines speak was first made in the context of Internet search,” pointing to cases like Langdon v. Google, Kinderstart, and SearchKing. In each scenario, Google successfully argued to a federal district court that it could not be liable in tort for faulty or misleading results 1) because it “spoke” the offending arrangement of information and 2) the arrangement was Google’s “opinion,” and could not be proven factually wrong (a sine qua non for liability).
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  June 25, 2012 at 12:40 pm   Posted in: Antitrust, Constitutional Law, Consumer Protection Law, First Amendment, Google & Search Engines, Google and Search Engines, Privacy, Technology   Print This Post   4 Comments

Search as Speech: Two Scenarios

posted by Frank Pasquale

Several privacy and antitrust complaints are now menacing Google. After gamely parrying these challenges, the search giant has now wheeled out its nuclear option: a First Amendment argument against any regulation of what appears in unpaid (aka “organic”) search results. A recent Google white paper by Eugene Volokh and Donald Falk has buttressed Eric Goldman‘s and Christopher Yoo‘s rationales for unfettered discretion in the exercise of search engines’ editorial judgment.

Volokh/Falk is the latest in a long string of Google filings describing search results as speech. It’s significant well beyond the search engine industry. If Google succeeds here, just about any information age company will start to make its selection and coordination of offerings “searchy” and thus “speechy” enough to avoid regulation.

Leading articles on the proper limits of the First Amendment include Fred Schauer’s The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience and Robert Post’s Recuperating First Amendment Doctrine. In Federal Search Commission?, Oren Bracha and I applied their arguments (among others) in the new technological contexts created by search engines (pages 1188-1201). I have also examined expressive dimensions of search in other work, in 2006, 2007, and 2008.

None of those prior efforts satisfied me as definitive. I wanted to write on the topic for years, but I couldn’t formulate a more general theory of search as speech. I now recognize the reason for my writer’s block: I was trying to impose a “one-size-fits-all” approach on multifarious phenomena. As Michael Carroll has shown, there are “uniformity costs” whenever we try to force a vast, sprawling array of human activities into Procrustean legal boxes. Those costs would be very high if courts were to accept the Volokh/Falk approach with respect to all the varied interactions between searchers and search engines. With that in mind, here are a few scenarios (or “test suites,” as Volokh might put it) to test the Volokh/Falk submission.
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  May 29, 2012 at 9:53 am   Posted in: First Amendment, Google & Search Engines   Print This Post   2 Comments

Academic Biases (Regarding Google, and Beyond)

posted by Frank Pasquale

Yesterday a vice president of the European Commission announced preliminary conclusions regarding the EU’s antitrust investigation into Google. The EC has warned Google to “change or face fines,” as Alex Barker puts it, noting “possible antitrust problems in how Google favours its own products in search results.” I cannot predict exactly how far US cases will go, or if the EC’s efforts to guide the development of the search market will succeed. (I have offered some preliminary thoughts at Danny Sokol’s excellent symposium on Google at the Antitrust & Competition Law Blog.) However, I applaud the EC for its attention to the matter.

After attending the “Regulating Search” conference in 2005, I spent some of my early academic career trying to understand whether complaints about Google had merit. I was publishing on the matter in 2006, and have continued to do so. When I started writing about this topic, some established scholars mocked my interest in it. After I published Federal Search Commission? with a co-author, one IP professor loudly scoffed that “maybe we need a federal map commission” at a conference where the restaurant location was unclear. Establishment voices who have fought for net neutrality looked with disdain or bored incomprehension at someone who dared to question a Silicon Valley darling. One scholar even threw a draft of mine on the table at a faculty talk, loudly muttered “This is not scholarship!,” and boldly predicted that Google’s dominance of search couldn’t last for more than a few years. (That was in 2008.)

I don’t know whether the EU’s actions today will lead these skeptics to a different view of my work, or to condemnations of creeping socialism. But I do think the EU has now confirmed that it was appropriate for a legal scholar to raise the types of questions I have posed over the past six years. They deserved to be part of the agenda of internet law.

This is a somewhat roundabout (and hopefully not too self-pitying) response to Frank Bowman’s earlier post on the role of outside funding in academic research (and particularly Eugene Volokh’s intervention regarding First Amendment protection for search results). Like Bowman, I worry about the effect of outside money on research. However, I think it is often the academy’s own biases and presumptions that most threaten independent thought.
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  May 22, 2012 at 10:16 am   Posted in: Antitrust, Google & Search Engines, Law and Inequality   Print This Post   One Comment

Social Search; It’s Might Be Around for a Bit

posted by Deven Desai

Hey! Bing is innovating! It has added social to search based on its relationship with Facebook. Oh wait, Google did that with Google+. So is this innovation or keeping up with the Joneses, err Pages and Brins? I thought this move by MS would happen faster given that FB and MS have been in bed together for some time. So did Google innovate while Microsoft and Facebook imitated? Maybe. Google certainly plays catch-up too. The real questions may turn on who executes and/or can execute better. That seems to be part of the innovation game too.

Facebook is top dog in social; Google in search. The thing they both (with MS lurking in the wings to make a big comeback (an odd thing given how well MS does as it is)) are doing is to take recommendations to a new level (with ads thrown in of course). I have tried logged in search. I must say I was surprised. To be clear, I find there is mainly rot in social network data just as there is in search. Whether I would have used Google+ had I not been at Google is unclear. Probably not. But I did. Then I searched for some law review articles and some basic technology information. WOW. The personal results at the top had links to blog posts by people whom I followed on Google + AND THEY WERE…RELEVANT. Blew my mind. My search time went down and I found credible sources faster. Will that last? Who knows? Someone may find ways to game the system, but the small experiences make me hopeful. Now to Facebook and Bing.

If Google can do well with a much smaller set of users for Google +, Facebook and Bing might do really well. After all, Facebook has the social piece and MS has some search computer science types. Whoever wins here may offer the next thing in search. I like conducting logged out searches and logged in. When logged in, I like the potential for seeing things from friends and people I trust. For example, if I start to be interested in cameras and search gives me posts by friends I’d ask anyway, that is a pretty cool result. I can read the post and call the friend for deeper advice or just use what they posted.

All in this space will, of course, cope with privacy concerns etc. But I think that this new level of relevance has the chance to co-exist with those concerns and users may flock to one of these services to have results well-beyond the current ones in search without social. In other words, let the games continue.

  May 11, 2012 at 10:59 am   Posted in: Cyberlaw, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property   Print This Post   No Comments

Introduction: Symposium on Infrastructure: the Social Value of Shared Resources

posted by Brett Frischmann

I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts. 

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Abstract:

Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.

The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.

Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.

In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.

Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.

  April 24, 2012 at 3:05 pm   Posted in: Administrative Law, Antitrust, Bright Ideas, Cyberlaw, Economic Analysis of Law, First Amendment, Google & Search Engines, Infrastructure Symposium, Innovation, Intellectual Property, Legal Theory, Media Law, Property Law, Technology, Uncategorized   Print This Post   No Comments

Stanford Law Review Online: The Dead Past

posted by Stanford Law Review

The Stanford Law Review Online has just published Chief Judge Alex Kozinski’s Keynote from our 2012 Symposium, The Dead Past. Chief Judge Kozinski discusses the privacy implications of our increasingly digitized world and our role as a society in shaping the law:

I must start out with a confession: When it comes to technology, I’m what you might call a troglodyte. I don’t own a Kindle or an iPad or an iPhone or a Blackberry. I don’t have an avatar or even voicemail. I don’t text.

I don’t reject technology altogether: I do have a typewriter—an electric one, with a ball. But I do think that technology can be a dangerous thing because it changes the way we do things and the way we think about things; and sometimes it changes our own perception of who we are and what we’re about. And by the time we realize it, we find we’re living in a different world with different assumptions about such fundamental things as property and privacy and dignity. And by then, it’s too late to turn back the clock.

He concludes:

Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

Read the full article, The Dead Past by Alex Kozinski, at the Stanford Law Review Online.

  April 12, 2012 at 1:32 pm   Posted in: Anonymity, Blogging, Constitutional Law, Courts, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Law Rev (Stanford), Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Science Fiction, Supreme Court, Technology   Print This Post   4 Comments

The Material Foundations of Corporate Culture: Goldman’s Lessons for Silicon Valley

posted by Frank Pasquale

Two resignation letters rocked Wall Street and Silicon Valley this week. Greg Smith elegized a once-great Goldman Sachs, now reduced to “ripping eyeballs out” of clients. (The industry sure has changed since the 90s, when the goal was to rip off the whole face of the client. I guess Dodd-Frank is working.)

On the West Coast, James Whittaker explains “Why I Left Google.” His complaints are more measured than Smith’s: “The old Google made a fortune on ads because they had good content. It was like TV used to be: make the best show and you get the most ad revenue from commercials. The new Google seems more focused on the commercials themselves.” Whittaker laments that the company has become obsessed, Ahab-like, with the social web’s whale, Facebook.

On one level, it’s not fair to compare the companies: the engineers at Google have contributed far more to society than finance’s “money-massagers.” Goldman represents the terminal phase of a liquidationist capitalism unmoored from social value. But its culture did not rot overnight. Rather, legal and material factors accelerated decay. Silicon Valley’s managers and regulators should take notice: the same process could happen there.
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  March 15, 2012 at 6:18 pm   Posted in: Corporate Finance, Corporate Law, Financial Institutions, Google & Search Engines, Law and Inequality, Privacy   Print This Post   One Comment

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

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

Stanford Law Review Online: Don’t Break the Internet

posted by Stanford Law Review

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

  December 19, 2011 at 3:14 am  Tags: banks, credit card companies, DNS, DNS filtering, domain name seizures, domain name servers, domain names, financial institutions, Intellectual Property, Internet, internet security, internet stability, IP, IP addresses, IP rights, online advertisers, PROTECT IP Act, search engine censorship, search engines, SOPA, Stop Online Piracy Act, World Wide Web  Posted in: Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, International & Comparative Law, Law Rev (Stanford), Law School (Law Reviews), Movies & Television, Property Law, Social Network Websites   Print This Post   One Comment

The Pluses of Google+

posted by Ari Waldman

I love shiny new toys. Sometimes, its a crisp new book (Pauline Maier, for one… thanks Gerard!); other times, it’s something plush and adorable, like the yellow Angry Birds doll my 5-year-old nephew “bought” for me last month. Last week, it was Google+.

Google+ is social networking done the Google way. The soft launch is part of Google’s long-running master plan to enter the social networking market and try to do it better than the basically moribund MySpace and the supposedly plateauing Facebook. We are told that Google+’s chief asset is its ability to simulate real relationships, and our different interactions with different types of friends, on the Internet.

Google+ introduces us to circles, where you can take the 800 or so “friends” you would have on Facebook and break them down on your own terms. You have friends, acquaintances, co-workers, well-wishers, frenemies, those-guys-you-met-at-that-terrible-bar, whatever. And, you can use these classifications to tailor your interactions, thus avoiding the problem of your mother, sister or child accessing a picture meant for your pals.

There are also sparks, which are news and video aggregators. It is easy enough to tell a spark what you enjoy doing when you’re not working on important affairs of state, thus allowing you to spend “more time wasting time without wasting your time looking how to waste time.”

And, hangouts are Google+’s attempts to recreate chance encounters. I’m not sure these are completely functioning yet, though. Remember when you used to visit the mall or walked through the West Village and ran into someone you hadn’t seen in years? Hangouts attempt to turn an online social networking into a place where anything social can happen, only with Google+, you “bump” into someone through a video message.

Let’s assume for the moment that all this works as well as we hope and that Google+ allows us to recreate real life in the virtual realm. Facebook is not really trying to recreate real life and simulate precisely how we interact with one another in the physical world. It is trying to supplement it, foster new interactions in new ways. At times, we don’t like that. Facebook’s forced socialization and privacy issues give many social networkers pause. There are many other digital technologies that seek to supplement our physical social world. Grindr, a geolocating social networking service for gay men, is one such example. Grindr allows its members to be out and about, smartphone in hand and find other gay men in the vicinity. Its purpose is to eschew traditional social networking that keeps you saddled to your computer and to let you physically meet people you have something in common with who may be living across the street or down the block. It is interactive, mobile and a multi-purpose tool.

So, Google+ is trying to forge a different path, i.e., using the Internet as an extension of our physical social circles and to keep those circles the way they are now. Of course, that is not to say that Google+ will not bring us closer to new friends — we can still interact with friends of friends, let people we barely know into our network and share content with whomever we please. But, Google+’s chief draw appears to be its greater fidelity to real life. If that is true in the long run, as Google works out the kinks and listens to its users, is that what we want in our online social networks?

The benefits are clear — we can avoid the grandmother seeing you at the bar problem. But there are also disadvantages — we lose the liberating potential of reaching new people. What do you think?

  July 20, 2011 at 10:46 am   Posted in: Culture, Google & Search Engines, Google and Search Engines, Social Network Websites   Print This Post   One Comment

Beyond Innovation and Competition, Health IT Edition

posted by Frank Pasquale

Last year I published a piece called “Beyond Innovation and Competition,” questioning the dominance of those values. Economists celebrate innovation and competition as the main source of future growth. Innovation has become the central focus of Internet law and policy. While leading commentators sharply divide on the best way to promote innovation, they routinely elevate its importance. Business writers have celebrated search engines, social networks, and tech startups as model corporations, bringing creative destruction and “disruptive innovation” in their wake. Maximum innovation is the goal, and competition is billed as the best way of achieving it. Players in the vast and dynamic tech marketplace are supposed to constantly strive to innovate in order to attract consumers away from rivals.

In the piece, I explain how both competition and innovation can destroy value, and undermine values. There are many social values (including privacy, transparency, predictability, and stability), and companies can compete for profits in ways that erode those values. In an era of inequality and hall-of-mirrors stock market valuations, innovations of marginal or negative impact on society at large can be vastly overvalued by a stampede of fickle investors.

The shortcomings of the innovation and competition story also play out in health information technology. Stimulus legislation in 2009 provided many carrots and sticks for doctors to digitize their recordkeeping systems, ranging from bonuses now to reimbursement haircuts later this decade if they fail to implement the technology. Congress structured the incentives to encourage a competitive and innovative marketplace in health information technology. But many doctors are shying away from implementation, in part because they fear that the fast and loose ethics of the market can’t mesh with a medical culture of constant commitment to quality care.

Case Studies in Physician Caution

Susan Jaffe’s article for the Center for Public Integrity examines doctors’ fears about adopting any given software suite. According to Jaffe, “570 different electronic health systems certified by private organizations for non-hospital settings may be used to qualify for the” stimulus funds. The long-term consequences of the choice make the jam-shopping examples in Barry Schwartz’s book The Paradox of Choice seem quaint:
Read the rest of this post »

  July 7, 2011 at 2:16 pm   Posted in: Google & Search Engines, Health Law, Technology   Print This Post   2 Comments

Scoring Ourselves to Economic Death

posted by Danielle Citron

In The New York Times, Stephanie Rosenbloom asks readers to “imagine a world in which we are assigned a number that indicates how influential we are.”  That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store.  As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores.  Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving.  If if you recommend a salon to your social network friends and they follow suit, your good word has two functions.  You’re doing a good thing for your friends and the salon (let’s hope), and now you’re doing good for you.  Because you have inspired people to take action, your influence score may rise.  In the present, people with high scores get preferential treatment by retailers.  More than 2,500 marketers are now using Klout’s data.  Audi will begin offering Facebook users promotions based on their Klout score.  The Las Vegas Palms Hotel and Casino is using Klout data to give highly rated guests an upgrade or tickets to a show.  In the future, those scores could be used by prospective employers, friends, and dates.

On the one hand, this market trend has something important to commend — its visibility.  Consumers can find out their influence scores and work to raise them.  By contrast, the impact of behavioral advertising is often hidden.  We are tracked and scored in databases and have no idea how it shakes out.  Joe Turow’s excellent book Niche Envy explains that consumers know very little about how their data personalizes market transactions.  Some individuals may end up as haves and others as have-nots, but neither group knows the extent of it.  As Turow explains, “our simple corner store is turning into a Marrakech bazaar–except that the merchant has been analyzing our diaries while we negotiate blindfolded, behind a curtain, through a translator.”  On the other hand, the information isn’t perfect and the algorithms secret so people may waste time doing things that they believe will raise their scores but don’t.  But that isn’t really troubling, unless every job or blog post had the effect we hoped it might.  What’s troubling is the trend’s implications for society and culture.  It seems old school to say that people blog, make friends, and engage in online chats to play, experiment, and create culture.  Now, they may feel pressured to do all of these things as a matter of economic necessity.  We may forgo experimentation for product endorsements, and idle chatter for better job prospects.  This makes our children’s choice to engage with social media seem like less of choice than a carefully cultivated necessity.  It also spells far more trouble for people who are already victimized, those who cyber mobs target with lies, threats, technical attacks, and privacy invasions.  They go offline or write under pseudonyms to protect themselves.  We now know that those choices (if we can call it that) cost more economically than they already do aside from the many other costs that my work discusses.  I imagine there’s more to this influence score story but I thought I’d share my initial take.

  June 28, 2011 at 6:24 pm   Posted in: Advertising, Architecture, Culture, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Web 2.0   Print This Post   3 Comments

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