Archive for the ‘Technology’ Category

When Joining Forces Spells Trouble: Proposed Merger of E-Voting Companies

posted by Danielle Citron

Last month, Diebold announced that ES&S would purchase its e-voting business for $5 million plus some outstanding revenue.  Diebold’s shareholders no doubt rejoiced: while the company’s ATM machines have a strong reputation, its e-voting machines brought the company only grief.  Diebold even changed its e-voting unit’s name to Premier to protect the company’s otherwise strong brand name.

This merger, however, is bad news for voters.  It would entrust 3/4s of e-voting machines into the hands of a company whose machines rival Diebold’s for inaccuracy and insecurity.  Consider this recent example.  In 2008, ES&S machines allocated votes cast in one race to a different race that was not even on the ballot.  As a result, the wrong candidate won a state House nomination race.  Given the consolidation of the e-voting market, we can have little hope that future machines will be more secure.  Ed Felten explains that  “[t]he odds of one major e-voting company breaking from the pack and embracing up-to-date security engineering are now even slimmer than before.”  Because breaking into the e-voting business is expensive due to high accreditation costs, ES&S may face limp competition in bids for upcoming contracts.  Voting administrators thus may be unable to obtain important terms crucial to transparency and accountability, such as the placement of source code in escrow.

Although voters should lament this development, all isn’t lost.  As Joe Hall notes,  California Secretary of State Debra Bowen has provided wise advice to the Election Assistance Commission with regard to the integrity of e-voting systems.  Bowen urges that the EAC require greater disclosure of vulnerabilities, the adoption of procedures that jurisdictions can follow to collect and report data about incidents they experience with their voting systems, and the systematic collection of data from election officials about how voting systems perform during general elections.  This recalls the important work of Heather Gerken in her book The Democracy Index: Why Our Election System is Failing and How to Fix It.  The EAC would be wise to adopt these proposals, especially in light of the upcoming merger.

  October 24, 2009 at 2:17 pm   Posted in: Administrative Law, Architecture, Current Events, Technology, Uncategorized   Print This Post   One Comment

Another Way to Understand Twilight and Authors

posted by Deven Desai

Apparently Stephenie Meyer, the author of the Twilight series, started writing a version of the series from a different character’s (Edward’s) point of view and the early, incomplete draft was leaked onto the Internet. Jacqui Lipton’s post about Stephenie Meyer’s “reaction to the unauthorized release” of her partial draft reveals another way to think about what is going on here. I followed the link to Ms. Meyer’s post about the problem. I was quite surprised to see that Ms. Meyer has posted the draft on her web site while also expressing her view about reading the draft:

I’d rather my fans not read this version of Midnight Sun. It was only an incomplete draft; the writing is messy and flawed and full of mistakes. But how do I comment on this violation without driving more people to look for the illegal posting? It has taken me a while to decide how and if I could respond. But to end the confusion, I’ve decided to make the draft available here (at the end of this post). This way, my readers don’t have to feel they have to make a sacrifice to stay honest. I hope this fragment gives you further insight into Edward’s head and adds a new dimension to the Twilight story. That’s what inspired me to write it in the first place.

Why post the draft? One could simply ask readers not to read the draft floating around the Internet. Note that Ms. Meyer explicitly does not want to drive people to the unauthorized work. To me this move seems like a way to re-capture the attention that might have gone the sites with the download. In that sense, she may be using her reputation and attention power to undercut the benefits that may flow from unauthorized distribution. Of course there may be sales problems here as some may have been willing to pay even for the rough draft. But that idea probably does not cut off the usual claim that leaking will harm the final market. I would be surprised if those who read the early manuscript will not be more than happy to buy the final draft. In other words, the law often claims that the harm in such leaking or copying is that the unauthorized version is a substitute for the full work which I don’t think is the case.

To be clear, I think Ms. Meyer doesn’t want people to read the draft. But faced with the draft being out there, her response is simply a wise strategy. She tells her fans 1) Don’t read it 2) If you have to read it, read it from my site, 3) Reading from my site is a way to stay “honest” and not “sacrifice” (I am not sure what is being sacrificed but I think it is integrity or loyalty to the author) which means not fueling those who are taking value away from her.

There is an extra point here. When Ms. Meyer says she can’t continue with the book, she is giving honest information to her fans: certain acts (i.e., unauthorized copying and distribution of her work) upset her. In fact, they upset her enough that she will not finish the work in question. I don’t think this point is a threat. And, regardless of motivation, the move tells fans how she wants to interact with them. Insofar as there is relationship with her fans, Ms. Meyer has communicated what she expects. A Rebecca Tushnet pointed out in the comments to Jacqui’s post, there are already “over 100,000 Twilight stories–some of them from Edward’s perspective–available at fanfiction.net. How Ms. Meyer feels about those stories may differ from how she feels about her draft being distributed without permission. So as Jacqui points out this one is personal, but I think it may also be professionally wise.

P.S. Those interested in more on how reputation and attention will be a key asset in an online world may want to read my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System.

  October 22, 2009 at 6:46 am  Tags: attention, copyright, reputation, trademark, Twilight  Posted in: Intellectual Property, Technology   Print This Post   No Comments

Government’s Data Glut

posted by Danielle Citron

Government is increasingly automating its services.  From Medicaid coverage to building permits, machines help determine individuals’ ability to take advantage of important governmental benefits and services.  Agencies collect huge amounts of data in the process.  Mayor Michael Bloomberg recently remarked that the real payoff of such automation is “actually us[ing] the data.”  With that mission in mind, agencies emphasize the importance of linking government databases to take full advantage of tools that mine data for insights.  In the effort to make its city “smarter,” Dubuque, Iowa is working on a project that will use sensors, software, and networked computing to give its government and individuals the digital tools to measure, monitor, and alter the way that they use water, electricity, and transportation.

To be sure, computer algorithms can analyze linked databases to identify fraud and waste, as well as simply help government make better decisions and policy.  But one hopes that government is not following the “adopt first-think later” model (as with e-voting machine purchases) when it comes to privacy, security, and auditability of these linked systems.  To what extent are vendors accounting for these concerns?  As my work on Technological Due Process and Open Code Governance explores, government’s automated systems overwhelmingly fail to incorporate audit trails that would reveal where information comes from and who has been using it.  We see this problem at the state level, where agencies often collect information free of intrusive regulation such as the Privacy Act of 1974 and perhaps even if they did would contend that the merging of data to allow intra-agency access would constitute a “routine use.”  No matter, managing this data glut in an accountable and privacy-protective manner is crucial as we move forward.

On a related note, Ken Bamberger’s Technologies of Compliance: Risk and Regulation in a Digital Age does a superb job exploring another side to the automated systems story.  His piece addresses firms’ automation of their compliance with laws mandating risk management.  Click here to read the abstract.  A must read.

  October 14, 2009 at 1:12 pm   Posted in: Administrative Law, Privacy, Technology, Uncategorized   Print This Post   No Comments

Academic Books, Non-Academic Books, BitTorrent, and Google’s Brand Power

posted by Deven Desai

D is for Digital is over now. I urge anyone interested in the Google Book Deal (aka the Google Book Search) to check out the schedule page and the webcast links (the stream links are at the top of the Friday and Saturday schedules respectively). James Grimmelmann put together a conference that aired out pro and con views rather well. In fact, I’d say although many were questioning the deal, I learned a good amount about the views of those in favor of the deal. I was not convinced that the deal is good and should go forward, but I appreciated hearing more about how the deal evolved and defenders’ views.

I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed up the group. Some really good questions about transparency of the process, responsibility, and more came up. Pam’s key point that if one builds a pubic good this big, public trust responsibilities go with it was dead on for me. I highly recommend watching the video for all that was said.

The next panel C is for Culture was excellent. James asked a question that has been on my mind and we had kicked around at WIP IP last week. Is Google Book Search irrelevant?

Here is why that is good question. First, the day so far emphasized that the majority of the books in question are academic books. As Pam explained and Paul Duguid echoed, if scholars’ books are at stake, scholars should be involved. Paul made clear that scholarly standards should guide the project.

Now, consider that many books are becoming available on BitTorrent. In addition, one panelist, Dan Reetz has a fascinating project. His DIYscanner project is a wild moment in grassroots digital activism. The story of how he chose to build his low-cost, open source DIY scanner (we’re talking maybe $300-$400 total) so that one could scan personal (and other books) at the rate of a few seconds per page and without destroying the book merits another post. (for now here is a link to the plans to build your own scanner) In addition, Reetz noted that majority of new books are leaked prepublication. As a general matter, a key claim is that users will pay for a book but copy the book so that they can search and take many books with them. The importance of these changes is that crowd-sourced and other approaches to digitizing text is on the move. One can see this shift as indicating market failure or that ereader functionality will be more and more the case.

As scanners, ereaders, and companies like Stanza offer better ways to access, search, mark, and read, the walled or controlled version of the text experience that the Google Book Deal offers seems odd. I doubt, however, that it will be irrelevant. Google’s brand, the ease of searching (even with its errors so far), and the ability to trust Google over BitTorrent or other sources will likely make it relevant to many. Nonetheless, the growth in alternative sources would suggest that Google will need to choose between a web search that captures all useful book offerings or a Google Book Search that only gives Google Book results. As the last panel on antitrust explored, Google is already dominant in search. It arguably killed a little company called MapQuest. Once Google offered its maps and its maps became the default listing when one entered address information into the search, MapQuest was done. That seems awfully close to the MS bundling issues of the last decade. When it comes to books, Google’s lead and dominance will give it massive power and leverage over how we all access knowledge. Nonetheless, it may be that grassroots, crowd-sourced movements will permit an end around for the control the publishers want through this deal. To be clear an end-around is insufficient protection against the lock-in problems the Google Book Deal poses, but it may help push Google to reach a deal that is less run by publisher interests.

  October 12, 2009 at 7:40 am  Tags: Antitrust, DIY scanner, Goog, Google, Google Book Settlement  Posted in: Google & Search Engines, Intellectual Property, Technology, Web 2.0   Print This Post   One Comment

Danger Will Robinson: Google Book Deal Is at DEFCON 2

posted by Deven Desai

The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.

With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.

Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”

More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?

And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.

  October 8, 2009 at 2:59 pm  Tags: Google, Google Book Settlement, Registry  Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Media Law, Politics, Technology   Print This Post   No Comments

Making the Internet Safer, the NSA Way

posted by Danielle Citron

Securing our networked environment is both crucial and difficult.  Six months ago, President Obama declared his Administration’s commitment to protect cyberspace from sabotage of all stripes.  For the President, the rise of online theft, electronic espionage, and military-related cyber assaults necessitated the appointment of a cyber czar to protect our cyber “national assets.”  The President has tried to fill that spot: Shane Harris of National Journal explains that “more candidates had declined the job than were still in the running for it.”  And despite our failed efforts at CoOp to recruit Orin Kerr for the job, the cyber czar position remains empty.

This state of affairs may be due to the difficult nature of the task at hand.  Former NSA head General Michael Hayden recently said: “There is no regime for us to work within to respond to cyberattack.  We are in a place where technology has long outstripped policy–let alone law–in term of what’s available.  We are going to have to rely on heroism instead of a plan.”  If Hayden has it right, it is no wonder that no one wants the job.

Nonetheless, the Administration may have already charted its path, one that entrusts the National Security Agency with protecting cyberspace.  According to the National Journal, Lt. General Keith B. Alexander, the NSA’s director, has been “setting up the central nervous system in the government’s campaign to defend cyberspace.”  The NSA will now, unlike the past, help oversee the networks of civilian government and privately-owned, criticial infrastructure (dams, railroads, hospitals, banks, food industry, hotels, telecommunications, postal, shipping, retail, transportation, and well everything else).  This is true even though DHS is charged with defending civilian networks and coordinating private sector protection.  Homeland Security Security Secretary Janet Napolitano said that NSA will provide DHS “technical assistance” on this issue.  In short, DHS will rely on the NSA for the tools, expertise, and resources to protect cyberspace.

So the NSA apparently will be overseeing and securing private networks, the same NSA that engaged in wholesale warrantless surveillance of Americans after 9/11 (and the agency that monitored telegrams coming in and out of the United States to detect individuals with communist ties in the 1950s and 1960s)?  Congress has, of course, limited the NSA’s warrantless wiretapping and the President has promised us greater transparency in government decision-making.  Nonetheless, NSA’s oversight over privately-owned systems and wholesale access to their contents raises serious concerns.  And because the NSA will direct these efforts in the name of national security and intelligence, little transparency will be forthcoming.  On another note, the question remains whether it was agency turf-war antics that led to Melissa Hathaway’s decision to leave government–she was the DHS official and most senior cyber expert in the White House who had been a leading candidate for the cyber czar post.  At the time of her resignation, Hathaway told the Washington Post that she “wasn’t willing to continue to wait any longer,” and she wasn’t “empowered” to make any changes.

  October 6, 2009 at 9:12 am   Posted in: Architecture, Cyberlaw, Privacy, Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized   Print This Post   One Comment

Open Government Update: GPO and CITP’s FedThread Project

posted by Deven Desai

The Federal Register has moved to an XML format. That has allowed Princeton’s Center For Information Technology Policy to be on the move once more. The new project is called FedThread. As the site puts it now that the Federal Register is in XML, “citizens [can] create new services that in turn provide value back to government. Kudos to the Government Printing Office, National Archives and Records Administration, and Office of Science and Technology Policy for making this all possible.”

What does this mean for the public? Through FedThread people can more easily track issues regarding “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents” as they are posted to the Federal Register website (weekdays except for government holidays). So today’s documents include material about the Delaware River Basin Commission, Department of Education, Federal Communication Commission, Department of Health and Human Services, and the National Science Foundation proceedings. Actions regarding postesecondary education, rulemaking at the FCC, and pandemic influenza vaccines are apparently on the table. Go to this link for today’s full list.

In other words, rejoice, wonk and non-wonk, for you may can now see what your government is doing. In fact FedThread offers some rather great features including:

* collaborative annotation: Attach a note to any paragraph of the Federal Register; start a conversation.
* advanced search: Search the Federal Register (back to 2000) on full text, by date, agency, and other fields.
* customized feeds: Turn any search into an RSS or email feed, which will send you any new items that match the search query.

As I understand it, one can set up a search and receive updates about the topic. Policy makers, academics, and engaged citizens should take advantage of these features. It should allow one to see how the law is evolving and take action much more quickly than before.

One point for those who may confuse making a note with a comment. FedThread is not affiliated with the U.S. government. Notes appear on the FedThread site but are not part of the Federal Register. Formal comments must follow the proper procedures related to commenting on whatever particular topic upon which one wishes to comment. In addition, the notes are just that, notes of those who wnat to share their views about a topic. It should open debate and discussion, but as with many areas of the Web, one will have to sort between useful and irrelevant notes.

I am sure I will learn more from my colleagues here at CITP as the project moves forward. For now, I hope people enjoy the offering.

For those interested in “some of the driving principles behind the project,” this paper Government Data and the Invisible Hand is a good place to start. Last, I want to call out the people involved in building this project. Joe Calandrino, Ari Feldman, Harlan Yu, and Bill Zeller developed it. Calvin Lee at Princeton’s Student Design Agency handled the graphic design. Prof. Ed Felten and Stephen Schultze led the project. You can contact FedThread at info@fedthread.org.

  October 5, 2009 at 7:44 am  Tags: Federal Register, FedThread, government 2.0, open government  Posted in: Government Secrecy, Technology, Web 2.0   Print This Post   No Comments

Tweeting for the Party

posted by Danielle Citron

During the 2008 election, Democrats effectively used Web 2.0 platforms to garner interest in the campaign and win supporters.  President Obama has been widely hailed as the first “Tech President,” and he seems to have trounced the Facebook landscape.  To date, President Barack Obama has over 6.6 million Facebook friends, while Sarah Palin only has 848, 614 Facebook pals and Mitt Romney has 70, 130.

Although the President has proven his mettle on Facebook and MySpace (where he has over 1.8 million friends), Republicans rule the day on the micro-blogging front.  The Congressional Research Service reports that congressional Republicans out-tweeted their Democratic counterparts during two one-week periods this summer.  Nancy Scola attributes Congressional Republicans’ Twitter dominance to their desire to regain the public’s attention and favor now that they are in the minority.  AMERICAblogs’ John Aravosis worries that Democrats have ceded their online advantage.

No matter the current political victor in this social media landscape, Government 2.0 is here to stay.  It surely has great potential to shine light on government policymaking and to marshal public participation, especially from people who otherwise wouldn’t bother getting involved with government policymaking.  Adding the President as a friend on MySpace and joining live chats may seem to be a relatively costless endeavor as compared to writing letters or commenting on agency rulemakings.  But Government 2.0 also poses privacy risks: social media sites not only give government access to people’s policy insights but also access to all of individuals’ social media data, such as their videos, photos, walls musings, “Top 25 things you don’t know about me” lists, and the like.  Soon, I will be posting on SSRN a draft of my essay “The One-Way Mirror: Enhancing Participation and Securing Privacy for Government 2.0″ (forthcoming George Washington Law Review) and hope to get your feedback.

  September 28, 2009 at 12:11 pm   Posted in: Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Social Network Websites, Technology, Uncategorized   Print This Post   No Comments

Burglars Like Facebook, Too

posted by Danielle Citron

Facebook offers much to law enforcement, perhaps more than many might think.  Last week, a Pennsylvania man was arraigned for felony burglary, having allegedly broken into a woman’s home and stolen jewelry.  The defendant seemingly played a big role in ensuring his capture: he checked his Facebook page during the burglary.  The victim noticed that the defendant’s Facebook account appeared on her computer after the burglary.  No joke.  This takes harming oneself through social networking to a new level.

  September 22, 2009 at 11:53 am   Posted in: Anonymity, Criminal Law, Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement), Technology, Uncategorized, Weird   Print This Post   No Comments

Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan

posted by Danielle Citron

Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.”  Why?  Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments.  The department suspects that some of the posters could be department employees.  Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.”  The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.

The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials.  Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods.  It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.”  Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors.  It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”

Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves.  We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job.  Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.”  Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece.  Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007.  I wonder what the Austin ACLU thinks now.

H/T Slashdot for the story

  September 21, 2009 at 9:46 am  Tags: free speech  Posted in: First Amendment, Google & Search Engines, Technology, Tort Law, Uncategorized   Print This Post   No Comments

The Smallest Change

posted by Jon Siegel

It’s the weekend, so we get to relax from more serious subjects.

When you use something every day — and when collectively we use it millions of times per day — you notice small changes.  So have people noticed that Google changed its fonts?  Type something into the search box.  The font is bigger.  I think it happened on Wednesday or Thursday of this week. 

Google’s webpage has remained remarkably similar over the years of its meteoric rise.  It turns its logo into a creative doodle on holidays and other special occasions, but basically the page still consists of a search box, two buttons, and a whole lot of white space.  New services appear discreetly in the upper left.  As other websites are constantly reinventing themselves with new looks, Google stays the same.  Even the original, cheeky “I’m feeling lucky” button, which one might have exepected to change or disappear as the site grew into a mature company, is still grinning at users every day.

That makes it all the more noticeable when the site does change.  A few months ago it started offering suggestions as you type in your search terms.  That was a little creepy at first, but I’ve gotten used to it, and it does actually save a few seconds sometimes.  (And I’m pleased to observe that if you type in “law prof ” (note the space at the end), then ”law prof on the loose” is the second suggestion.)

And now there’s a font change.  Everything is bigger and they may have dropped the serifs (although I can’t remember whether they had serifs before). 

Obviously it’s no big deal, but it’s like seeing an old friend with a  new hairstyle, or discovering that the city has cut down a tree in your favorite park.  It takes a little getting used to.  I’m reminded of August, 2007, when the New York Times got smaller.  It was still the Times, but it wasn’t quite what you expected.

Of course, now when I pick up the Times I can’t remember that it was ever bigger.  I’m sure I’ll feel the same way about Google’s font in a month or two.   But it is interesting to think that each tiny change will be seen by hundreds of millions, or perhaps billions, of users.

  September 13, 2009 at 3:53 pm   Posted in: Technology   Print This Post   4 Comments

Copyright Irony, Of Royalty Boards and Google Book Deals

posted by Deven Desai

Earlier this week Live365 filed a law suit arguing that the Copyright Royalty Board is unconstitutional. Today is the deadline for authors to opt-out of the class in the Google Book Settlement. The idea that this Settlement ought to approved is more than suspect. Others have noted the myriad issues the settlement raises. As Pam Samuelson has put it “Exploiting an opportunity made possible by lawsuits brought by a small number of plaintiffs on one narrow issue, Google has negotiated a settlement agreement designed to give it a compulsory license to all books in copyright throughout the world forever. This settlement will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books. How audacious is that?” The nature of the class, whether class action (which I usually see as better suited to resolving tort rather than property claims) is the correct approach, the way in which this class purports to operate, and the anti-trust issues alone should make it clear that this deal, although possibly offering benefits, should be slowed down and put under further scrutiny.

It is ironic that one one hand Live365 has been able to raise a Constitutional challenge to a copyright royalty issue, and on the other hand what is surely a turning point in copyright history and the question of how society governs access-to-knowledge is subject to a private deal between private parties who have little concern for society’s claim to access and use the works in question. To be clear, I am not arguing that it is improper to figure out a possible payment system. Samuelson’s work on mapping the public domain is clear about reasons we may need and want to have certain groups build, maintain, and charge money for information repositories. The questions that concern me are what will that system look like? Will it allow innovation and competition in the provision of the similar services or will it hinder such efforts? Is this service a natural monopoly? Will the incumbents after the deal is done be able to extract rent? What about the different uses that are conflated here (e.g., higher educational uses, research uses, social networking uses, and more)? What about the spillovers that could come from a more open system such as empirical research on the data in the works and computer science work on the way language operates?

I have begun a close read of the 140 page contract and its appendices. I urge all of you to take a look at the contract. It reminds a little too much of entertainment deals I have read in practice. Some clauses are opaque; some bizarre. All protect one party and ignore others. In a Hollywood or other publishing arena that may be O.K. When talking about the modern Library of Alexandria, it is not.

To whet your appetite about why one should not accept the deal at face value look at this statement of objectives:

The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.

My initial comments are at the Public Index in Section IV. But in brief, the assumption that the objective of market rates and the realization of broad public access are compatible is on the surface semi-plausible but facile. The following sub-clauses make it clear that broad public access is not the animating force on the deal. Intense control over access and the ability to price discriminate (including a ban on k-12 access unless the Registry (publishers) agree) are the goals. Again if others read the sections and can show where I err, I am all ears.

As a general matter, if anyone can share why class action was wise and/or a good fit here, please share your insights.

Last, I suggest that this deal is so important that Congress has to be involved. As private re-writing of the Copyright Act is not the correct way to proceed. It will likely take away the chance for copyright to roar into the twenty-first century with a winning solution for authors, publishers, and society at large and instead will repeat history with the system being captured and benefiting only a narrow class of stakeholders.

  September 4, 2009 at 11:33 am  Tags: class action, copyright, Google Book Settlement  Posted in: Constitutional Law, Google & Search Engines, Intellectual Property, Technology, Web 2.0   Print This Post   2 Comments

Tiny (Or Rather Shiny?) Bubbles: Apple Trademarks Dialogue Bubbles?

posted by Deven Desai

As Don Ho (and others) have sung:

Tiny bubbles
In the wine
Make me feel happy
Ah, they make me feel fine

Those tiny bubbles
Make me warm all over
With a feeling that I’m gonna
Love you till the end of time

The little charming talk bubbles all over the Internet communications have a similar warm effect. They remind me of comic strips and comic books and of adults droning “wa wawa waaa” in Peanuts cartoons on T.V. Ah no more. According to TechCrunch, when a developer wondered why his App had not been approved he was told “the bubbles in its chat rooms are too shiny, and Apple has trademarked that bubbly design.” Wow. Do comic strip and book folks know that Apple is that clever? The wondrous shiny dialogue bubble means Apple! Do the green bubbles qualify too? Yet again I am left wondering what’s a cubit and contemplating a drink with tiny, shiny bubbles.

So I leave you with Don Ho and Tiny Bubbles.

Tiny Bubbles – Don HO

  September 3, 2009 at 8:53 am  Tags: Apple, apps, Don Ho, Tiny Bubbles, trademark  Posted in: Intellectual Property, Technology, Web 2.0   Print This Post   No Comments

Reservoirs of Patient Data: Next Generation’s Privacy Problem

posted by Danielle Citron

Patients of rare diseases find that drug companies have little interest in devoting limited R&D budgets to diseases of small populations.  As a result, patients have begun to strike out on their own in the search of cures.  As The New York Times explains, patients increasingly share their medical information (including details about their everday experiences living with a disease) online in the hopes that other similarly-situated patients will do the same.  This would permit interested academic researchers to mine the data for observations about their diseases.  Patients see online communities as offering new ways to transform medical research–especially into rare diseases that elude the current model of large-scale studies of widespread conditions.

Some experts are skeptical, asking how these sites will guarantee patient privacy.  One imagines that these sites will respond to privacy concerns by employing anonymization practices.  For instance, sites might delete personal identifiers like names and social security numbers and remove other potential identifiers, such as names of next of kin or student ID numbers.  This ostensibly permits researchers to use the amassed data without concomitant privacy risks.  But, as Paul Ohm’s important and engrossing new paper Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization argues, technology renders this privacy-protection option obsolete.  Computing advances now permit clever adversaries to reidentify or deanonymize the people hidden in anonymized databases.  This means that datasets that were meant to be kept apart are easily rejoined, allowing sensitive secrets to be  revealed.

Patients may of course be willing to take that risk if their particpation in open-source research leads to cures of rare diseases.  Yet patients also jeopardize their offsprings’ privacy: if medical information can be reidentified with ease and linked with other datasets, a patient’s children may get caught up in that web of re-identification.  This may lead to genetic discrimination in the grown-up child’s life.  Grown-up children may be willing to bear that risk–it is, however, worth considering this possibility when assessing privacy concerns related to such open-source research efforts.

  September 1, 2009 at 4:05 pm   Posted in: Anonymity, Privacy, Privacy (Medical), Technology, Uncategorized   Print This Post   One Comment

Seeing With Your Tongue: No Really

posted by Deven Desai

Not much law here, yet. Researchers have taken theoretical work begun decades ago and developed a “brain port,” a device that uses technology to allow people to reorganize how they process sensory data. In the example below, blind people are able to see images. The device takes visual input, processes it, sends impulses to a pad that sits on someone’s tongue, and then the person is able to see some images. It takes quite a bit of training and in some cases folks have been able to use the device such that they actually re-train the brain and can reduce use of the device. Yes in a sense they have “rewired” their brain. This advance is just cool. The video also explains that the advances in this field trace to Professor Paul Bach-y-Rita who apparently had to overcome a fair amount of resistance in his fields of neurobiology and rehabilitation, because he was challenging many accepted beliefs regarding the way the brain works and more (all hail Kuhn). Will the law become involved in this area? It probably already is insofar as patents and copyright are being used to govern the technology. In addition, as I have noted before, the advances in embedded or sensory enhancing devices raise numerous questions regarding privacy, the ownership of data, bioethics, and research ethics. So welcome to the future and take a look at the video. It really is amazing and wonderful that scientists have made these breakthroughs. At the very least, anyone questioning how basic research can lead to unforeseen benefits should pause after seeing this work.

  August 28, 2009 at 6:01 am  Tags: Privacy, sensory substitution, singularity  Posted in: Health Law, Intellectual Property, Privacy, Privacy (Medical), Technology   Print This Post   No Comments

Opening Up the Law: Pacer, CITP, and the RECAP the Law Project

posted by Deven Desai

As some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”

In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.

CITP’s Harlan Yu explains:

RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.

In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.

There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.

  August 14, 2009 at 6:06 am  Tags: access to knowledge, access to law, open source, PACER, RECAP  Posted in: Civil Procedure, Constitutional Law, Cyberlaw, Intellectual Property, Sociology of Law, Technology, Web 2.0   Print This Post   7 Comments

Who Knew? Patents Don’t Really Promote the Useful Arts

posted by Deven Desai

Andrew Torrance and Bill Tomlinson have a paper out that challenges “assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems.” The paper, Patents and the Regress of Useful Arts, “employ[s] a multi-user interactive simulation of patent and non-patent (commons and open source) systems (”The Patent Game”), this study compares rates of innovation, productivity, and societal utility.” In other words, the two have taken the idea of a Sim and created PatentSim “to simulate the innovation process in one of three scenarios: a patent system, a “commons” system with no patents, or a system with both patents and open source protection.” In the words of Johnny Carson wild, weird stuff, and quite fascinating too. Under their model and testing system it appears “that there is no statistical difference in innovation, productivity, or societal utility between a pure patent system and a system combining patent and open source protection.”

This post at Against Monopoly has a nice summary of some of the major articles on the topic of patents and innovation. Which reminds me, folks interested in empirical research should take a read of the paper too as it is trying to fill a gap by testing the innovation assumption in patent theory.

Image: World’s first patent for a golf tee; British patent #12941 of 1889, by Bloxsom & Douglas
Source: WikiCommons
The image size is reduced for our site, but go to the original to see/read the patent.

  August 13, 2009 at 6:57 am  Tags: empirical studies, golf tee, innovation, patents, simulators  Posted in: Empirical Analysis of Law, Intellectual Property, Technology   Print This Post   One Comment

Could Yahoo! + Bing = Death to Google?

posted by Deven Desai

Yahoo! continues to be in the news as company that has lost its way. After failed merger problems, Yahoo has now sold its search business to the formerly evil and now oddly white knight(ish) Microsoft. It seems that Yahoo! and MS are now in a deal where MS’s Bing will power (and have some brand palcement) Yahoo!’s search. Others can go into the drop from about $46 billion to $4 or 5 billion sale price and other Yahoo! acts that make one wonder what the company is doing. For now, I want to remind folks about a little relationship called Yahoo! search powered by, wait for it, Google. Yes, Google. I wonder whether the G would be where it is today if Yahoo! had not given it that key placement. As one article pointed out

In a unique twist, Yahoo didn’t simply renew the deal for Google to be its “backup” partner, used only when Yahoo itself doesn’t have an answer. Instead, the company has embraced Google’s results even more tightly. Unveiled to the general public today is a new Yahoo search results page, where there is no longer a separation between Yahoo’s own human-powered listings and Google’s crawler-based results. Instead, the two are blended together.

Read the whole article for some fascinating perspectives on Yahoo! versus Google when Y was the big player. To be fair, Yahoo! appears to have had small chances to buy Google (but one might also say that after being apparently turned down for help by Yahoo!, the Google folks knew that they should not sell even at $3 billion). I for one don’t think I can say that Yahoo! should have known that Google was going to pop its IPO the way it did. For that matter had then CEO Terry Semmel bought Google, he would have had to take it public to show that it was worth the money. As Wired notes “Google’s revenue stood at a measly $240 million a year. Yahoo’s was about $837 million. And yet, with Yahoo’s stock price still hovering at a bubble-busted $7 a share, a $5 billion purchase price would essentially mean that Yahoo would have to spend its entire market value to swing the deal. It would be a merger of equals, not a purchase.”

So now we have the Yahoo! MS deal. It could be that Yahoo! is again running up the white flag about its ability to be a real technology/engineering company (”But now we have empirical evidence: At Yahoo, the marketers rule, and at Google the engineers rule. And for that, Yahoo is finally paying the price.”). But it may also be a way that MS will be able to grab Yahoo!’s customers, compete on search, and show that it still has the chops to beat back Google’s relentless drive to be all things to everyone. If so, maybe the two companies will balance each other out for a bit. Either way, it seems that as the NY Times pointed out, Yahoo! has exited the search game because as its CEO admits it cannot play in it at the level that MS and Google can (billions of dollars). Whether Yahoo! can find a new way to be relevant is another issue. The Times article describes Yahoo!’s severe dysfunction and what to me reads like classic Internet company arrogance. That being said, maybe Yahoo! is picking its best fight and with a little MS mixed in, Google will have to stay honest too. Or maybe this move is Yahoo!’s way of taking on Google while Yahoo! heads out of our world.

  August 10, 2009 at 3:31 pm  Tags: Google, Microsoft, search engines, yahoo  Posted in: Google & Search Engines, Intellectual Property, Social Network Websites, Technology   Print This Post   6 Comments

The Convergence of the Public and Private in Online Spaces

posted by Danielle Citron

Last month, Government Technology had an article entitled “Blurring the Line,” which discussed the increasingly public nature of online social networking sites.  Employers now “friend” employees, leaving the employed likely to accept those friendships out of fear for losing their jobs.  The article discusses the problems attendant to the convergence of of our work, social, and family worlds and asks whether this phenomenon will alter the nature of those spaces from a sharing free-for-all to a more buttoned-down, “not afraid for the boss to see” experience.

In reading the article, I wondered if the story will play out in a different way, one that will meet employers’ desire to harness the connectivity of social networking sites without compromising its current incarnation.  As we have seen in the government sector with internal wikis like Intellipedia, we may see employers increasingly adopt in-house social networking sites, say a [Name] Company Connect.org, just as we have seen employers wade into the Twitter space.  We may already be doing this (and it would be really interesting to learn about it), but perhaps such sites would nip in the bud employers/managers/supervisors’ desire to friend their underlings.  This may detract from the goal of monitoring employees, but we surely have enough of that in the workplace already (as well as the ability to view employees’ profiles for the very many people who fail to set rigorous privacy settings, as ACM studies show).  And it may save employers from having looked at employees’ damning wall musings and pictures and figuring out just what to do about it.

  August 5, 2009 at 7:02 am   Posted in: Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Technology, Uncategorized   Print This Post   2 Comments

Where Is Deven?

posted by Deven Desai

I know I have not posted in a little bit. Some explanation is in order. As previous posts noted, through the good graces of Peter Yu, the University of Hong Kong, and the South China University of Technology, Intellectual Property School & Law School, Guangzhou, I was in Hong Kong and China until mid-June. But what about the interim? I was packing. Packing? Yes, packing. I have been fortunate to be awarded a Visiting Fellow position for this year at Princeton University’s Center for Information Technology Policy.

I am honored to join James Katz, Chair of the Department of Communication, and Director of the Center for Mobile Communication Studies at Rutgers; Rebecca MacKinnon, Assistant Professor at the University of Hong Kong’s Journalism and Media Studies Centre; Jens Grossklags, Postdoctoral Research Associate who just obtained his PhD from the UC Berkeley School of Information; and Joseph Lorenzo Hall, Visiting Postdoctoral Research Associate whose work is supported by the NSF ACCURATE Center and also earned his PhD from the UC Berkeley School of Information as CITP’s visitors. Now for a little about CITP.

Ed Felten directs CITP. In addition, some tremendous people work with CITP. There are too many to list and give proper due in this post but check out the page to see the range of folks. (One extra note, the Associate Director, David Robinson is a great guy and headed to Yale Law this fall. Look for him to write and offer some good insights about law, technology, and policy).

Put differently, let me say in just one week, I love CITP. Although it is summer, and, as with many academic institutions, things are more at the read and write pace, the people here are great. Being able to interact with people who have a deep understanding of technology and who want to look at the related policy matters from a range of perspectives (Princeton’s Computer Science, Economics, Electrical Engineering, Operations Research and Financial Engineering, and Sociology, and the University’s Woodrow Wilson School of Public and International Affairs departments are represented at CITP) is energizing and tremendous fun.

Last and most importantly, allow me to say thank you to my home institution, the Thomas Jefferson School of Law, and CITP for giving me the opportunity to be here.

  August 3, 2009 at 11:04 am  Tags: CITP, Princeton  Posted in: Intellectual Property, Technology   Print This Post   No Comments

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