The story struck a nerve, not only with the affected community, but with the [...]]]> Recently the New York Times carried a front page story about an eighth grade girl who foolishly took a nude picture of herself with her cell phone and sent it to a fickle boy – sexting. The couple broke up but her picture circulated among her schools mates with a text message “Ho Alert” added by a frenemy.  In less than 24 hours, “hundreds, possibly thousands, of students had received her photo and forwarded it. In short order, students would be handcuffed and humiliated, parents mortified and lessons learned at a harsh cost.”  The three students who set off the “viral outbreak” were charged with disseminating child pornography, a Class C felony.

The story struck a nerve, not only with the affected community, but with the Times’ readers as well.  Stories about the misuse and dangers of technology provide us with opportunities to educate our students, and us. In a Washington State sexting incident, for example, the teen charged had to prepared a public service statement warning other teens about sexting to avoid harsher criminal penalties.  But the teen’s nude photo is still floating around.  Information has permanence on the internet.

Few of us appreciate how readily obtainable our personal information is on the internet.  Just google your name and see what you learn about yourself.  One of my students did and found, along with the usual links to law school and other websites like Facebook, a statement he made while running for an office in the Christian Legal Society posted on a website unknown to him.  Without paying he found his name, home town and state, and a list of his immediate family members.  Googling his phone number the first link that popped up was a map that located where he lived.  The next link was to spokeo.com “a people search engine that organizes vast quantities of white-pages listings, social information, and other people-related data from a large variety of public sources.”  According to Spokeo, its “mission is to help people find and connect with others, more easily than ever.” This site provided, without charge, the initials of all his family members, his approximate age and that of his parents and sister.  It revealed the family’s home address, approximate home value and length of residence.  Then my student saw a Google picture of his house and himself walking to his car with his backpack, presumably leaving to go to school.  He was stunned.

Much of this information reaches the internet through social networking catching us, and our students, off guard.  Some of us have Facebook accounts and followers on twitter, while others, concerned about privacy, think we can avoid internet scrutiny altogether, but alas we cannot.  While Facebook is more of a “socializing” network, LinkedIn calls itself a “professional network” designed to promote professional contacts.  It too has a “friend” feature and I have received email requests from students and law faculty I vaguely know to join their LindedIn network.  I’ve declined. Just how “social” should we be in our professional capacity as law professors, students and lawyers?    This question plagues all of us in the legal arena, even judges.

In 2009 the Judicial Ethics Advisory Committee of the Florida Supreme Court, in addressing several issues about a judge’s use of a social networking site, wrote that these sites generally serve two purposes.  First and foremost they are places “to post pictures, comments, and other material that visitors to the site can view.”  But increasingly networking sites are places “to identify a member’s ‘friends’….[,] a person who requests to be identified as the member’s ‘friend’”. The Committee concluded that “a judge may [not] add lawyers who may appear before the judge as ‘friends’ on a social networking site, [or] permit such lawyers to add the judge as their ‘friend.’”

Should we develop similar networking standards for professors and their students?  I plan to explore this question in my torts class this fall.  So I am constructing a series of problems that involve social media to keep them engaged in thinking about tort law.  This also is an opportunity to get them thinking about how their use of social media may raise ethical and professional issues starting as early as law school.  Wish me luck.

It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:

A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.

Only recently, however, has it become possible to put this anecdotal consensus to empirical test.

In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over [...]]]> Are we in the Age of Intellectual Property?

It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:

A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.

Only recently, however, has it become possible to put this anecdotal consensus to empirical test.

In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over time. (It controls for the fact that there are many more books being published today.)

If you haven’t already played around with this tool to explore your own topics of interest, you should. While you’re at it, take a stab at explaining why writing on the Supreme Court rose steadily until approximately 1935 and has dropped just as steadily ever since!

Back to our topic, though. What does this data reveal about the prominence of intellectual property in published discourse?

I generated two graphs, both charting the terms “intellectual property,” “copyright,” “patent,” and “trademark.” First, the longview:

Relative frequency of IP terms in American English since 1800

Since 1800, patents have been a far more popular topic of conversation and study than trademark and copyright law. Perhaps not surprisingly, given the persistent popular interest in science and invention.

References to patents peaked quite dramatically in 1890. (The exact date can be pinpointed if you remove smoothing from the graph, visit here to manipulate it yourself.) This pique/peak of interest coincides with the founding of General Electric (based on Thomas Edison’s lightbulb patents), the passage of the Sherman Antitrust Act, and the 100th anniversary of the first US patent statute.

For much of these two centuries, reference to “intellectual property” – the conceptual grouping of patents, trademarks, and copyrights taken so much for granted today – was virtually nonexistent. That really changes only in the past few decades. Here’s the view since 1960:

Relative frequency of IP terms in American English since 1960

A few changes stand out over these five decades. Patents finally lose their position of prominence as the American public takes increasing interest in copyright. Not surprisingly, this coincides with the emergence of the Internet.

Ayn Rand

The more dramatic shift, however, is the change in fortunes of the term “intellectual property.” What we’re seeing here is the invention of a new concept. People had long written about patents, copyrights, and trademarks. But the idea of “intellectual property” was a new one.

One of its earliest appearances is a 1967 Ayn Rand piece (Alan Greenspan is listed as an editor). Rand sought to dispel the traditional conception of patents and copyrights as privileges granted by the government, positioning them instead as quintessential examples of property.

The remarkable success of this idea – in culture and in the law – is self-evident today.

Compared to the last 200 years, the last fifty reveal the dramatically increasing importance of copyright and trademark in public conversation. (If the public is perhaps less interested in patents today than a century ago, interest in securing them certainly continues to rise.)

Even more important than the rising importance of these individual legal terms, a new concept has emerged that underlies their moral justification, empirical study, and legal regulation. That change is what defines the Age of IP.

This idea not only opens the conversation in Kapczynski and Krikorian’s book, but underlies the very concept of the project, as underscored by the title.

The editors and contributors refuse the historically naive view that would take the concept of “intellectual property” as a given. Instead, the contributions situate IP historically, as a contested concept that various social movements seek to destabilize.

One last graph. This one uses the rising use of “intellectual property” since 1960 as a baseline to plot increasing interest in the terminology of the A2K movement: words like “public domain,” “open access,” “fair use,” and of course, “access to knowledge.”

Relative frequency of A2K terms since 1960

One way to interpret this graph is as suggesting that the term “access to knowledge” (the royal blue line) is today where the term “intellectual property” (the sky blue line) was in 1975.

Unfortunately, Google’s ngram only makes available data up to 2008. Kapczynski and Krikorian’s Access to Knowledge in the Age of Intellectual Property doesn’t yet show up on this chart. You can download the full text for free, however, from Zone Books and MIT Press.

(Also missing from the chart is Access to Knowledge in Egypt, published in 2010, thanks to Bloomsbury Academic and my incredible coeditor Nagla Rizk. “Mabrouk!” Nagla, on rejoining the Internet today. I’ll keep following your updates on the Egyptian revolution via Twitter.)

The initial draft of the agreement dates back to October 28, 2008, when Google announced that it had reached a settlement of the highly publicized class-action lawsuit brought by the Authors Guild and another equally important lawsuit brought by the American Association of Publishers.

Opposition from various quarters caused the parties to reconsider the details of the settlement and a new version is due on Monday November 9, 2009. In my recent article I compared the settlement to the [...]]]> The now defunct version of the Google Book Class Action Settlement is a complicated document consisting of 141 pages, 160 definitions, 17 separate articles and 116 separate clauses, not including the substantial provisions contained within the 15 attachments where several important features of the deal were buried.

The initial draft of the agreement dates back to October 28, 2008, when Google announced that it had reached a settlement of the highly publicized class-action lawsuit brought by the Authors Guild and another equally important lawsuit brought by the American Association of Publishers.

Opposition from various quarters caused the parties to reconsider the details of the settlement and a new version is due on Monday November 9, 2009. In my recent article I compared the settlement to the most likely outcome of the litigation the settlement resolves. In this post I speculate about the contents of the revised agreement.

The essential features of the old settlement agreement were:

• Money. Google made some pretty significant financial concessions, including one-time payments of over $100 million dollars and a revenue sharing agreement.

• Digitization, Indexing & Search. In return for these concessions Google received the right to continue to operate its book search engine, substantially in its current form which is arguably consistent with copyright law’s fair use doctrine.

• Commodification. The settlement also gave Google the ability to explore new revenue possibilities in cooperation with authors and publishers. The highlights consisted of extensive book previews, consumer e-book purchases, institutional subscriptions to the entire Google Book database and various other “New Revenue Opportunities”.

• New institutional arrangements. Beyond the mechanics of the agreement itself, the key elements of the new Google Book universe were to be the “Book Rights Registry” and the “Author-Publisher Procedures”. Although the Registry received more attention from critics of the settlement, the Author-Publisher Procedures appeared to be the key vulnerability from a class-action fairness perspective. These procedures determine who controls the exploitation of a work within the Google Book universe and who benefits from that exploitation. In many cases the Author-Publisher Procedures act like a standard form publishing contract that supersedes deals negotiated before the importance of digital rights was widely realized.

• Orphan works exploitation. The treatment of orphan works pervades all aspects of the current Settlement agreement. The agreement increased public access to orphan works by presumptively including almost all works in most commercially significant uses. Orphan works could be digitized, indexed, made available for partial-previews, sold as consumer purchases and incorporated into institutional subscriptions. As well as benefiting Google, revenues attributable to these uses will flow in part to the Registry, and to registered authors and publishers.

• Orphan works monopoly. In its current form the Settlement only solves the orphan works problem for Google.

What should we expect on Monday?

The most desirable change from an antitrust perspective would be to allow Google’s competitors to exploit orphan works on the same terms as Google. The problem with this solution is that it further strains the boundaries of class action law and looks more and more like private legislation. This should not, in my view, be enough to derail the deal if the parties can show that all of the relevant sub-class interests were adequately represented.

The Author-Publisher Procedures enhance the coordinating function of the Settlement by streamlining the incorporation of existing author-publisher contractual terms into the framework of the Google Book universe. However, where an existing author-publisher contract gives both parties some control over electronic exploitation, or simply fails to make any provision for electronic rights, the Author-Publisher Procedures effectively overwrite those contracts. These new terms do not appear to systematically disadvantage either authors or publishers, but they strike me as a one size fits all solution that could be substantially improved upon.

Finally, I expect the revenue sharing aspects of the deal to become more complicated.

“Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of [...]]]> Should we fear Google? This question, unthinkable ten, maybe even five, years ago, seems to dominate internet policy discussion today. AT&T is afraid of Google Voice. Apple might be afraid of the Google Phone. Microsoft is afraid that Google Apps will make its Office suit redundant. These fears are justified, but they are also good. In most cases Googlephobia is a condition suffered by competitors. Google will probably kill off some competitors, but it will force many more to continue to innovate and provide better products to the consumer at lower prices. So, yes, some people should fear Google. But should we the public?

“Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of sight and hearing being instantly aroused. In both cases the eyes and mouth are widely opened, and the eyebrows raised.” Charles Darwin, The Expression of the Emotions in Man and Animals.

In its pre-settlement incarnation, the Google Book Search (GBS) project was merely an astonishing attempt to build a comprehensive search engine to allow full text searching inside millions of books. The GBS envisaged in the Settlement (before the DOJ sent the parties back to the drawing-board) was much more ambitious. Not satisfied with digitization, indexing and limited display of books consistent with copyright law’s fair use doctrine, Google, the Authors Guild and a handful of publishers struck a deal which allowed for the commoditization of digital books as direct substitutes for paper copies. Subject to an opt-out and a few other exclusions, the Settlement swept in almost all books subject to U.S. copyrights and established an entirely new institutional framework for clearing digital book rights.

My personal view is that justified astonishment at the GBS Settlement has, in too many cases, given way to unjustified fear. Google is still far from being the new Microsoft as the Department of Justice’s Christine Varney has asserted. It certainly does not act like it. Google’s track record of openness and innovation are heartening and there is very little evidence so far that they plan on abandoning their “don’t be evil” corporate culture.

Googlephobia appears to be the foundation of some pretty wild assertions in the context of the Google Book dispute in particular. Google conceives that it is set to liberate out-of-print books from their dusty dungeons on the relatively inaccessible shelves of the worlds great libraries. Critics of the deal (and the initial more modest GBS) see plans for monopolization of hitherto non-existent markets, the destruction of libraries, universities and even the book itself.

The Google Book Settlement was not perfect, but my own fear is that Googlephobia and the intervention of the Department of Justice have left us worse off than we would have otherwise been. The Google skeptics are right about a number of the Settlement’s shortcomings, but now that the parties renegotiating the deal we had all better hope that GBS version 3 is better, fairer, and more accessible — not just smaller and less ambitious.

It might be naive to simply trust in Google, but the fear Google now inspires seems equally misplaced.

I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed [...]]]> 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.

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 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.

Notice how the results indicate that there are “365 related articles”? Usually I click that and indeed see a rack of articles. Today, however, this is what happened when I clicked on the link promising a cornucopia of news stories:

Just one result! And it is only to AP page hosted by Google! (not sure whether Google is hosting all or [...]]]> So some of you may have heard that Glenn Beck has managed to upset advertisers by calling President Obama a racist. I don’t have much to say about Beck. I was more interested in the advertiser reaction. I saw the article on Yahoo! but wanted a more stable URL. So I copied the AP news story title and pasted into the Google. Here are the results.

Notice how the results indicate that there are “365 related articles”? Usually I click that and indeed see a rack of articles. Today, however, this is what happened when I clicked on the link promising a cornucopia of news stories:

Just one result! And it is only to AP page hosted by Google! (not sure whether Google is hosting all or most AP content, but it looks fishy). Maybe everyone was just running the AP story, but maybe those other outlets would have had more information of interest. Could it be that AP and Google are somehow in bed with each other on these results. (For all I know that is the case, and I missed that memo as I have been getting an article out the door and cleaning up a book chapter). Is this all part of AP’s claims regarding the ability to control its copy?

In short, watch the Google. It is creepy at times.

UPDATE: A quick commenter noted that the right side has a link that shows all the results “Sort by date with duplicates included.” THANKS!

I did not see that. Still I seem to recall that the related articles page used to have many of the redundant results. So the new approach could be helpful and efficient, but I wonder whether this new streamlined version of results applies to all news or just AP.

Furthermore, I throw open the idea that people may prefer the redundancies at the outset. That way they can go (as I did when I was on the web results page) to a source such as ABC or some other source one may trust or that one hoped would provide more than the AP coverage (be it vitriol over the boycott or praise for it).

1.  Where did Google’s “PageRank” algorithm get its name?

2. Where did Google get its name from?

3. Where did Yahoo get its name from?

[answers below the fold]

1. Although many assume that PageRank refers to the rank of web pages, it is actually named after Larry Page, its designer, according to Janet Lowe, the author of “Google Speaks”.

2.  The original name for Google was “googol” – the mathematical term for the number 1 followed by [...]]]> Again, I’m writing about trivia while there are important things going on in the world (eg Supreme Court nominations as Gerard previously noted).  However, while reading “Google Speaks“, I’ve picked up some search engine trivia that people might like to test their knowledge on.  How many of the following questions can you answer?

1.  Where did Google’s “PageRank” algorithm get its name?

2. Where did Google get its name from?

3. Where did Yahoo get its name from?

[answers below the fold]

1. Although many assume that PageRank refers to the rank of web pages, it is actually named after Larry Page, its designer, according to Janet Lowe, the author of “Google Speaks”.

2.  The original name for Google was “googol” – the mathematical term for the number 1 followed by one hundred zeroes.  Along the way, someone misspelled googol and it was replaced with the current “Google”.

3.  Yahoo is an acronym for “Yet Another Hierarchical Officious Oracle”.

A revolutionary new search engine that computes answers rather than pointing to websites will be launched officially today amid heated talk that it could challenge the might of Google.

Other news outlets, like the LA Times, were also gushing.

Does Wolfram Alpha live up to the hype?

Alas, not really.

For a limited number of things, it worked really well.  “New York City” brought up population, location, and weather.  “How many miles is 10 kilometers?” worked great.  (On the other hand, “how many miles is a 10-k?” didn’t work at all.)  Entering any company name brings up a relatively detailed stock chart.

On the other hand, “Barack Obama” brings up — [...]]]> News reports were tantalizing — the new search engine could be a Google killer. The Times read:

A revolutionary new search engine that computes answers rather than pointing to websites will be launched officially today amid heated talk that it could challenge the might of Google.

Other news outlets, like the LA Times, were also gushing.

Does Wolfram Alpha live up to the hype?

Alas, not really.

For a limited number of things, it worked really well.  “New York City” brought up population, location, and weather.  “How many miles is 10 kilometers?” worked great.  (On the other hand, “how many miles is a 10-k?” didn’t work at all.)  Entering any company name brings up a relatively detailed stock chart.

On the other hand, “Barack Obama” brings up — um, the President’s birth date.  And the fact that he’s President.  That’s all.  Kind of weak; one would expect perhaps inauguration date and political party. Okay, it’s a computing engine, how about a simple language computation?  “Green in Spanish” gives the answer, “No,” after deciding that I was asking whether the city of Green, Oregon is located in Spain.  (I’m not kidding.)

A whole array of other garden-variety inquiries brought up nothing at all, including “Daniel Solove,” “Alfred Brophy,” and “Tulsa Race Riot of 1921.”

Maybe in the far, far future, WA will catch up to or replace Google.  Right now, I don’t think that Google needs to worry much about the new Google killer.