Archive for the ‘Media Law’ Category

Stanford Law Review Online: Privilege and the Belfast Project

posted by Stanford Law Review

The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:

In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.

He concludes:

Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.

Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.

  December 5, 2012 at 10:45 am  Tags: academic privilege, academy, Civil Rights, Constitutional Law, First Amendment, international law, privilege, treaties  Posted in: Anonymity, Civil Rights, Constitutional Law, Current Events, First Amendment, International & Comparative Law, Law Rev (Stanford), Media Law   Print This Post   15 Comments

Quote Approval

posted by Dave Hoffman

Our platonic media guardians worry about the increasingly common practice of giving sources “quote approval”.  At the NYT’s public editor explains,

“Some parts of the practice, I believe, do fall into a black-and-white realm. The idea that a reporter must send a written version of a quotation to a source or his press representation for approval or tweaking is the extreme version of the “quote approval” practice and it ought to be banned in a written rule.”

This is nonsense.  There’s a simple reason that most sources (including me) ask for quote approval: we don’t trust reporters to avoid making a hash out of our comments, pulling quotes selectively to fit a pre-existing narrative, and consequently turning the source into the reporter’s sock puppet.  It’s a no brainer that anyone who has to regularly deal with the press should try to get quote approval. You’ll succeed with some reporters – generally the better ones, in my experience. If you fail to get quote approval, you should remember to think three times before saying anything, including your name.

Why?  Well, most reporters who call me have a particular thing they’d like me to say.  Sometimes they’ve told me what that thing is: I can then proceed to either say it or not.  Other times they ask a ton of questions, but it’s quite obvious that it’s all just filler time until I can manage to produce the right words in response to the right stimuli. (Foolishly, when I began my career, I foolishly thought that these conversations were a preface to the real question that they were going to ask!)  Often reporters will pastiche quotes from different parts of the interview to create a comment which bears no relationship to what you think.  Basically: reporters aren’t writing the first draft of an objective narrative (“history”): they have already written that narrative, and your role is to be the footnotes locking it all down.  Don’t be a sucker.  Ensure that your name is attached to things you actually think.

  September 17, 2012 at 8:55 pm   Posted in: Law School, Media Law   Print This Post   19 Comments

Is IP for People or Corporations?

posted by Madhavi Sunder

Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.

Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).

Read the rest of this post »

  September 14, 2012 at 1:15 am   Posted in: Civil Rights, Constitutional Law, Culture, Cyber Civil Rights, Education, Feminism and Gender, First Amendment, Jurisprudence, Law and Humanities, Law and Inequality, Media Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0   Print This Post   One Comment

Indecency and the Supreme Court

posted by David Orentlicher

In FCC v. Fox, the Supreme Court once again took a pass on the first amendment questions raised by the regulation of indecent images or speech on broadcast television. It is a good thing that the justices want to take their time to get it right on the constitutional issues, but ten  years have passed since the case was first triggered by Cher’s use of the F-word at the Billboard Music Awards. And the Court’s decision today suggests it hopes the matter will just go away. As Justice Kennedy concluded for the majority, “this opinion leaves the [FCC] free to modify its current indecency policy.”

The Court’s discomfort with indecency is not surprising. The justices’ discomfort reflects that of much of society. Indeed, they could not bring themselves to actually say the F-word at oral argument.

But once again, it leaves us to wonder why our society seems to worry more about exposing children to even brief uses of profanity or depictions of nudity than it does about exposing kids to prolonged violence. The FCC does not restrict violence the way it does indecency on television, movie ratings are tougher on indecency than on violence, and the Court has a lower threshold for government regulation of violence than of indecency. Recall, for example, that last year, the Court invoked the first amendment to override California’s ban on the sale of violent video games to minors, and two years ago, the Court rejected on first amendment grounds a federal statute that outlawed “crush” videos depicting the torture and killing of animals.

It may be correct to be as careful as we are about the harms to children from the media’s use of nudity and vulgar language. But we also should take more seriously the harm from the media’s depictions of violence.

  June 21, 2012 at 12:10 pm   Posted in: Constitutional Law, First Amendment, Media Law, Movies & Television, Supreme Court   Print This Post   4 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

Santorum: Please Don’t Google

posted by Derek Bambauer

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.

  February 29, 2012 at 5:54 pm   Posted in: Advertising, Architecture, Bright Ideas, Culture, Current Events, Cyberlaw, Education, First Amendment, Google and Search Engines, Humor, Innovation, Just for Fun, Law Talk, Media Law, Politics, Psychology and Behavior, Technology, Web 2.0   Print This Post   7 Comments

Ubiquitous Infringement

posted by Derek Bambauer

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.

  February 27, 2012 at 2:14 pm   Posted in: Anonymity, Architecture, Culture, Current Events, Cyberlaw, DRM, Education, Google and Search Engines, Innovation, Intellectual Property, Interviews, Media Law, Movies & Television, Politics, Social Network Websites, Technology, Web 2.0   Print This Post   3 Comments

Stealing the Throne

posted by Derek Bambauer

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.

  February 22, 2012 at 12:21 pm   Posted in: Architecture, Culture, Current Events, Cyber Civil Rights, Cyberlaw, DRM, Innovation, Intellectual Property, Legal Ethics, Media Law, Movies & Television, Politics, Technology, Web 2.0   Print This Post   55 Comments

Cyberbullying and the Cheese-Eating Surrender Monkeys

posted by Derek Bambauer

(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)

Introduction

New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »

  February 21, 2012 at 10:20 pm   Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0   Print This Post   3 Comments

Ben Stein and the ABA’s Facepalm

posted by Derek Bambauer

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.

  February 20, 2012 at 11:27 am   Posted in: Blogging, Bright Ideas, Conferences, Culture, Current Events, Cyberlaw, Education, Humor, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Science Fiction, Technology   Print This Post   8 Comments

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

Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

posted by Stanford Law Review

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

• A Reasonableness Approach to Searches After the Jones GPS Tracking Case by Peter Swire (64 Stan. L. Rev. Online 57);
• Privacy in the Age of Big Data by Omer Tene & Jules Polonetsky (64 Stan. L. Rev. Online 63);
• Yes We Can (Profile You): A Brief Primer on Campaigns and Political Data by Daniel Kreiss (64 Stan. L. Rev. Online 70);
• Paving the Regulatory Road to the “Learning Health Care System” by Deven McGraw (64 Stan. L. Rev. Online 75);
• Famous for Fifteen People: Celebrity, Newsworthiness, and Fraley v. Facebook by Simon J. Frankel, Laura Brookover & Stephen Satterfield (64 Stan. L. Rev. Online 82); and
• The Right to Be Forgotten by Jeffrey Rosen (64 Stan. L. Rev. Online 88).

The text of Chief Judge Alex Kozinski’s keynote is forthcoming.

  February 13, 2012 at 1:04 pm   Posted in: Law Rev (Stanford), Law Rev Contents, Law School, Law School (Scholarship), Media Law, Military Law, Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (Medical), Privacy (National Security), Social Network Websites, Supreme Court, Technology, Tort Law   Print This Post   No 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

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

Supporting the Stop Online Piracy Act Protest Day

posted by Danielle Citron

As my co-blogger Gerard notes, today is SOPA protest day.  Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live.  Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today.  There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates.  Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online.  In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said.  So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill.  “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so.  I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA.  I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill.  As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship.  Cybersecurity is at issue too, and we need to pay attention.  Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills.  But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.

  January 18, 2012 at 10:11 am   Posted in: Architecture, Civil Rights, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Law Talk, Media Law, Social Network Websites, Technology, Web 2.0   Print This Post   2 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

The New Spectrum Scarcity

posted by Olivier Sylvain

At first glance, President Obama’s proposed American Jobs Act was an unlikely place to find significant reforms to the laws governing the allocation of prized electromagnetic spectrum licenses. Since the 1990s, however, FCC-administered auctions have been a major source of revenue for the U.S. Treasury, generating billions of dollars for the exclusive license to commercialize coveted bands of the spectrum. Just a couple years ago, for example, the 700 MHz band once occupied by the major broadcasters generated a total of almost $20 billion in successful bids from the likes of AT&T and Verizon.

So, as the mood for fiscal austerity haunts the halls of Congress these days, it makes sense to expect spectrum auction policy to make an appearance in the Jobs Act.  As presented to Congress, Obama’s jobs law would commit a meaningful portion of an expected $28 billion or so of revenue from spectrum auctions to help pay down the U.S. deficit. The so-called “incentive auctions” would be for a band in the spectrum jealously controlled by major broadcasters today. The broadcasters would get a piece of the expected $28 billion for the trouble of participating. Another portion would be devoted to the development and operation of a national wireless public safety network. The remainder would go to reducing the debt or closing budget deficits. A relatively small contribution to the cause, but a contribution nevertheless.

The auctioning of rights to the spectrum, however, is not just meant to plug holes in the federal budget. The incentive auctions in the jobs bill are meant to partially redress one of the more pressing problems in telecommunications law and policy today: spectrum scarcity in the face of booming demand for high-bandwidth wireless services, smartphones, and tablets. For someone who spent years pondering the problem of scarcity in the first law to regulate the commercial use of the spectrum, these developments beg the question: How did scarcity resurface so seamlessly after about two decades of being poopoo’ed as the chief reason for spectrum regulation?

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  September 16, 2011 at 2:08 pm   Posted in: Current Events, Media Law, Technology   Print This Post   2 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

Behind the Filter Bubble: Hidden Maps of the Internet

posted by Frank Pasquale

A small corner of the world of search took another step toward personalization today, as Bing moved to give users the option to personalize their results by drawing on data from their Facebook friends:

Research tells us that 90% of people seek advice from family and friends as part of the decision making process. This “Friend Effect” is apparent in most of our decisions and often outweighs other facts because people feel more confident, smarter and safer with the wisdom of their trusted circle.

Today, Bing is bringing the collective IQ of the Web together with the opinions of the people you trust most, to bring the “Friend Effect” to search. Starting today, you can receive personalized search results based on the opinions of your friends by simply signing into Facebook. New features make it easier to see what your Facebook friends “like” across the Web, incorporate the collective know-how of the Web into your search results, and begin adding a more conversational aspect to your searches.

The announcement almost perfectly coincides with the release of Eli Pariser’s book The Filter Bubble, which argues that “as web companies strive to tailor their services (including news and search results) to our personal tastes, there’s a dangerous unintended consequence: We get trapped in a “filter bubble” and don’t get exposed to information that could challenge or broaden our worldview.” I have earlier worried about both excessive personalization and integration of layers of the web (such as social and search, or carrier and device). I think Microsoft may be reaching for one of very few strategies available to challenge Google’s dominance in search. But I also fear that this is one more example of the “filter bubble” Pariser worries about.
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  May 16, 2011 at 7:03 pm   Posted in: Anonymity, Google & Search Engines, Media Law, Privacy, Technology   Print This Post   No Comments

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