Category: Innovation

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

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.

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Injecting Transactional Skills Into the First Year

American legal education is biased toward litigation. In response, and to give our students a taste of the kind of experiential education that Temple is known for, we launched a new first year course last fall: Introduction to Transactional Skills. Now that the dust as settled, and I’ve had a chance to push a few writing projects down the road, I thought I’d blog a bit about ITS, and our experience in bringing a skills course into the first semester of law school.

Some basics.  We launched ITS as an intensive, two-week, “mini-course” smack in the middle of the fall semester.  It was mandatory for all first-year students, and graded pass/fail (with students receiving transcript notations for extraordinary effort). ITS mixed lectures (delivered by course co-leader Ed Ellers), and simulations (largely designed by co-leader Eleanor Myers).  Each simulation was devoted to a skill – interviewing a client, negotiating an agreement, drafting a contract – and taught in a small group of around 20 students. (Faculty members volunteered to lead these small groups, without receiving teaching credit.  More evidence in support of this post.) We paired the students in each small section – they negotiated “against” another team of two from a different small section repeatedly during the simulation.

As the snapshot to the right illustrates, we used a custom-designed webpage to organize the course.  Students got their assigments online, read background materials, and submitted their contracts using web forms, making quick feedback (typically, 8 hours to turnaround) possible.

We framed ITS around the legal foundations of a small business: a restaurant.  Students represented either a chef or an entrepenuer.  After interviewing their client (played by an upper-year student) students negotiated and then drafted a term sheet for the partnership, and then an employment contract.  On the last day, lawyers from downtown Philadelphia judged the students in a surprise negotiation exercise.  The video below provides a snapshot of the experience.

Overall, the course worked well at accomplishing its main goal: exposing students to transactional lawyering.  It also (for many students) significantly increased their interest in taking additional transactional courses, built their confidence and skills, and gave them a concrete idea for professional development opportunities during their summers.  The best reviewed day – by far – was the final day’s negotiation in front of lawyers.  Given the added pressure of an outside presence, the students rose to the occasion and shined.  Outside evaluation also helped to combat the fatigue that students felt from the compressed environment, and the demotivating effects of the pass/fail system.

What didn’t work well? The timing. It came too late in the semester (because of the ABA’s re-education re-accreditation site team visit.) Second, we could have provided less time in lecture and more time in skills training (the ratio was about 30:70, but it could have been 20:80).  There were some hiccups with the submission system.  But the biggest problem from my perspective was scale. Because we decided to launch this for the entire first year class (220 day students, and we replicated the whole course this spring for our evening division), the project was unwieldy to organize, and it consumed a ton of time and law school resources. Scale also prevented us from  providing individualized written comments on every submitted contract. But such problems are to be expected if you want to teach to the whole schoolhouse.

Notably, the course would have been plainly impossible to put together on the fly if Temple didn’t already have a well-established second and third year program of transactional education — the Integrated Transactional Program.  ITP was a model for the skills exercises, provided us with the experience in drafting client scripts, and was our recruiting ground to land seasoned students to play the chefs and entrepreneurs.

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If God Had Wanted Man to Fly…Turns Out Someone Is Giving Us Wings

Calling China Mieville and Perdido Street Station fans. TechCrunch reports on Jarno Smeets, a man who wants to fly with wings, and he has done it! Apparently Wii and HTC devices are part of the invention. He had a test flight in January. And, as the video below shows, he flapped and took flight. I hope this is not a hoax (and even if it is I am rather happy right now and enjoy the idea of winged flight). As Tech Crunch invoked “Orville, Wilbur, and Leo Da Vinci,” I wonder whether we will see a rush of hobbyists improving on Smeets idea and winged flight clubs opening up. Given that I distrust biking to work because drivers and cyclists fail miserably in their respect for the laws and each other around where I live, I love the idea of flying to work without an engine. Probably far off as a dream (though I will bet that someone at Google will try soon). Anyway enjoy and remember you can fly perhaps now without pixie dust.

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Santorum: Please Don’t Google

If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)

This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.

Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!

Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!

Cross-posted at Info/Law.

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Ubiquitous Infringement

Lifehacker‘s Adam Dachis has a great article on how users can deal with a world in which they infringe copyright constantly, both deliberately and inadvertently. (Disclaimer alert: I talked with Adam about the piece.) It’s a practical guide to a strict liability regime – no intent / knowledge requirement for direct infringement – that operates not as a coherent body of law, but as a series of reified bargains among stakeholders. And props to Adam for the Downfall reference! I couldn’t get by without the mockery of the iPhone or SOPA that it makes possible…

Cross-posted to Info/Law.

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Stealing the Throne

Ever-brilliant Web comic The Oatmeal has a great piece about piracy and its alternatives. (The language at the end is a bit much, but it is the character’s evil Jiminy Cricket talking.) It mirrors my opinion about Major League Baseball’s unwillingness to offer any Internet access to the postseason, which is hard on those of us who don’t own TVs (or subscribe to cable). Even if you don’t agree with my moral claims, it’s obvious that as the price of lawful access diverges from the price of unlawful access (which is either zero, or the expected present value of a copyright suit, which is darn near zero), infringement goes up.

So, if you want to see Game of Thrones (and I do), your options are: subscribe to cable plus HBO, or pirate. I think the series rocks, but I’m not paying $100 a month for it. If HBO expects me to do so, it weakens their moral claim against piracy.

Unconvinced? Imagine instead that HBO offers to let you watch Game of Thrones for free – but the only place on Earth you can view the series is in the Kodak Theater in Hollywood. You’re located in rural Iowa? Well, you’ve no cause for complaint! Fly to LA! I suspect that translating costs into physical costs makes the argument clearer: HBO charges not only for the content, but bundles it with one particular delivery medium. If that medium is unavailable to you, or unaffordable, you’re out of luck.

Unless, of course, you have broadband, and can BitTorrent.

As a minimum, I plan not to support any SOPA-like legislation until the content industries begin to offer viable Internet-based delivery mechanisms that at least begin to compete with piracy…

Cross-posted at Info/Law.

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Ben Stein and the ABA’s Facepalm

The American Bar Association is kicking off its 2012 tech show with an address by… Ben Stein. Yes, who better to celebrate the march of technological progress and innovation than a leading defender of intelligent design? Who better to celebrate rigorous intellectual discourse than a man who misquotes Darwin and fakes speeches to college audiences?

This is a pretty embarrassing misstep. The ABA is irrelevant in the IP / tech world, and this facepalm is a nice microcosm of why. (Wait, what is the ABA relevant to? Now that’s a hard question.) We geeks don’t like it when you dis science. Thanks anyway, ABA – maybe you should stick to having your judicial recommendations ignored.

Hat tip: health law expert Margo Kaplan.

Update: I found the perfect keynote speaker for ABA’s 2013 TechShow: Marshall Hall!

Cross-posted at Info/Law.

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The Memory Hole

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.

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Cary Sherman and the Lost Generation

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.

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Did Rahm Learn Anything From Cass?

This week Governor Pat Quinn of Illinois signed legislation that will allow the City of Chicago to put speed cameras in the one-eighth mile buffer zones around schools and parks.   As the Chicago Tribune has reported, the City has more than 600 public schools and only slightly fewer parks, so this legislation gives Chicago the authority to cover roughly half of its territory with speed cameras.  The City says it will concentrate on the approximately 80 areas where the need for speed enforcement is particularly acute.

Although Quinn signed the legislation, the cameras are the handiwork of Mayor Rahm Emanuel.   The Mayor says he developed the plan after school officials and the police expressed concerns about public safety.  Emanuel’s critics—and he has a lot of them—paint the legislation as being more about revenue generation than public safety.   Drivers who go more than 5 miles over the speed limit will be fined $50 and drivers who go more than 11 miles over the limit will be fined $100.  The Mayor has said repeatedly that he doesn’t care if the cameras generate any revenue; the legislation is all about keeping kids safe.

Let’s take the Mayor at his word and assume that his only goal is to make Chicago safer.  What would traffic engineers and behavioral economists advise?  They would tell him to install dynamic speed displays, which announce the posted speed limit and display in large digital numbers the speed of each driver going past.   One of the first experiments with these displays took place in school zones in suburban Los Angeles in 2003.  Drivers slowed down by an average of 14 percent and in some zones the average speed dropped below the limit.   The use of dynamic speed displays has since become commonplace and research has consistently shown that they cause drivers to slow down by about 10 percent for several miles.

These displays upend the usual approach to traffic enforcement because there is no penalty for displaying a speed that is higher than the posted limit.   Instead, the display works by creating a feedback loop: (1) sensors instantly capture and relay information about the driver’s speed; (2) the large public display of numbers carries real punch because few people want to be perceived as reckless or careless; and (3) the driver has immediate opportunity to slow down by simply easing up on the gas.   This feedback loop is so effective that traffic safety experts have concluded it does a better job of changing driving habits than techniques that depend on police issuing tickets.  (You can read about dynamic speed displays and feedback loops more generally here.)

Chicago’s speed cameras will be accompanied by highly visible signage, so time will tell whether the combination of signage and speed cameras make drivers slow down in the short term and change their driving habits in the long term.   If I were advising a mayor whose priority was public safety, however, I’d recommend the use of dynamic speed displays that provide effective feedback to drivers in the moments before they enter a school zone, and not cameras whose feedback comes in the mail several days after the driver already has sped by a school.