Friday, March 19, 2010
Proper analysis of the Google books settlement requires framing the issues correctly in two important respects. First, it requires understanding that sound antitrust analysis turns on likely effects on consumer welfare, not on debatable spins of arid formalisms. Second, it requires measuring those effects compared to the but-for baseline of what the world would look like but for the settlement.
Given the proper framing, the right question to ask is: Does settlement lower consumer welfare from what it would be without a settlement? It is not an antitrust violation to enter into an agreement that benefits consumer welfare on the theory that another agreement could have benefited consumer welfare even more. Otherwise every joint venture could be stricken on the grounds that it would benefit consumer welfare even more if the joint venture offered its product for free.
So the right question to ask about the Google books settlement is not whether one could imagine some alternative settlement that might benefit consumers and the public interest even more than the actual settlement. Rather, the right question is whether the settlement leaves consumers and the public interest worse off than they would be in the but-for world without the settlement, and there is simply no reason to think it does.
As digital image technology proliferates in camera phones, iPhones, and PDAs, almost any image we observe can be costlessly recorded, freely reproduced and instantly transmitted. We live, relate, work, and decide in an environment in which pervasive image capture from life is routine. During the last half decade, captured images have come to underpin crucial elements of ongoing private and public discourse; digital image capture has become a ubiquitous adjunct to memory and a pervasively accepted mode of connection and correspondence.
Digitally captured images precipitate conflicts between government authority and free expression. From efforts to suppress cell phone videos of official abuse or private malfeasance to prosecutions of “sexting,” the proliferation of digital image technology will require legal decision makers to come to grips with the First Amendment status of pervasive image capture. This Article commences the task.
I begin by parsing the technological trends that have set the stage for pervasive image capture as a social practice, and proceed to sketch the emerging ecology of visual memory and discourse. I then canvass legal developments that threaten to shadow the promise of the new medium, and their proper analysis under the First Amendment. I argue against the claims of earlier legal analysts that the process of recording images is unprotected action; in contemporary social practice, image capture is part of a protected medium of expression. I close with an initial account of the proper scope of First Amendment shelter for the promise of pervasive image capture.
Download the Article from SSRN at the link.
Thursday, March 18, 2010
Many have argued that thought should constitute per se unpatentable subject matter, and some have even suggested that any patent claim that includes a mental step should lie outside patentability. Many courts have long disagreed with such a draconian rule, and have instead upheld myriad patent claims that include mental steps. Recently there has been renewed interest in the venerable Mental Steps Doctrine, and in patents claiming thoughts or aspects of thoughts, by the courts, including, most notably, the Court of Appeals for the Federal Circuit and the United States Supreme Court. Insights from neurobiology about how to differentiate categories of thought can offer useful criteria for deciding between patentable and unpatentable mental steps, and for setting more coherent and defensible boundaries on the patenting of thought. In particular, this article argues that thoughts subject to "executive control" should be situated more towards the patentable end of the spectrum, whereas "default thoughts" should be situated closer to the unpatentable end of the spectrum. This schema represents somewhat of a departure from the traditional view that First Amendment interests should privilege sophisticated, expressive thought by protecting it from patentability. Nevertheless, it accords well with Thirteenth Amendment interests, privileging thoughts that cannot be avoided by protecting them from patentability, and thus preventing the iniquity of involuntary patent servitude.
Download the article from SSRN at the link.
Wednesday, March 17, 2010
A half century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby lay persons adopt heuristics and defer to expertise to limit their engagement with technology. Drawing from this psychological model, this Article then explores the unique role of formalism in patent doctrine. Advancing an information cost theory of Federal Circuit jurisprudence, this Article argues that formalistic patent doctrine mitigates the degree to which judges must engage technological subject matter. Formalism truncates difficult technical inquiries, thus helping to mediate the intersection of law and science.
The Article then identifies a countervailing trend in recent Supreme Court patent decisions. It is well-established that the Court has substantively narrowed patent rights. Less appreciated, however, is the Court’s systematic preference for contextually-sensitive, holistic standards over inquiry-truncating, formalistic rules. This so-called “holistic turn” promises to increase the degree to which lay judges must engage technologically complex subject matter. To address resulting cognitive burdens, this Article offers prescriptions for blending the economizing virtues of rules with the flexibility and contextual sensitivity of standards. It concludes by exploring the cultural differences of the Federal Circuit and the Supreme Court as well as their implications for patent doctrine.
Tuesday, March 16, 2010
A Louisiana trial judge has decided that that a website's story about a fictional giraffe attack at the Global Wildlife Center in Folsom, Louisiana, is satire and thus protected speech, even though a local wildlife park received phone calls from worried state residents thinking the ruminants might be devouring visitors. Judge Beth Wolfe lifted the TRO granted earlier this month against Nicholas Brilleaux's Hammond Action News site and ordered the Center to pay Mr. Brilleaux's attorney fees and court costs. It's unclear whether the Center will appeal. See an earlier post on the story here.
Hat tip to Ben Janke.
Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread concern about pornography while recognizing the limits of government regulation.
This article responds to the law’s failures by framing pornography as a pollution problem. It begins by explaining how pornography is like pollution, and how it is not. It then considers the obstacles to relying on regulation to combat pornography, and conversely, the difficulty with simply instructing internet users to tolerate pornography. The goal of the article is to show how viewing pornography as a problem of pollution may assist in devising new ways of responding to the widespread concerns about internet pornography. Generally, environmental law seeks to prevent some pollution from occurring at all, controls other pollution so that does not enter the environment, facilitates the separation of pollution that does reach the environment from those it could harm, and tolerates the presence of some pollution. The experience of environmental law suggests that the victims of pollution should not be burdened with avoiding it, and that filtering and zoning strategies can play in a role in helping people avoid exposure to the effects that pornography has on the internet environment.
Download the paper from SSRN at the link.
Monday, March 15, 2010
The Communications Commission of the Isle of Man has invited comments on three options for the future: the status quo, adoption of a European Union or a bespoke approach to regulation. The details provided are very limited, especially of the third option, with many issues omitted or glossed over. The EU approach would be likely to be regulatory overkill for a small island which, without justification, should never have been presented as a viable option. The bespoke option is insufficiently defined to make analysis possible.
The government should consider issuing a white paper setting out its economic and social objectives from the communications sector and directing the Communications Commission to ensure that they are delivered, with monitoring by Tynwald (e.g., consideration of an annual report from the Communications Commission). It should not move the existing statutory competition law powers from the Office of Fair Trading (OFT) as proposed, but instead create a memorandum of understanding between OFT and the Communications Commission on their use in telecommunications. It might also consider moving the Communications Commission powers into the OFT. The Communications Commission should create mechanisms to monitor markets, including the views of consumers and business users. The transparency of the Communications Commission should be greatly improved.
A key decision for government is whether it wants the regulator to be independent and if so, how it is to be funded. Provision would have to be made for appeals on the merits of decisions.
It is necessary to review the needs of financial sector for telecommunications services and to identify appropriate benchmarks for comparison with offshore financial centres in Europe and in the Caribbean.
Given the apparent threat of disputes between operators, a system of Alternative Dispute Resolution (ADR) seems to be necessary.
Much stress has been placed on the early launch of 3G and the failure to repeat this for 4G. An analysis of the benefits of 3G would make this more convincing.
It would be very beneficial to liaise with governments and regulatory authorities in the other Crown Dependencies, and in the overseas territories of Denmark, Netherlands, the UK and the USA, plus the French Départements d’outremer. There are many lessons to be shared on the regulation of communications in small markets.
No convincing case has been made for a new statute, though secondary legislation may be necessary, if the powers available to the OFT can be shown to be insufficient.
The nature of racist speech is changing as social mores on matters of race and multiculturalism evolve. However, the underlying intent of the disseminators of racist speech – to divide and subjugate – remains much the same. Part IIA of the Racial Discrimination Act appears to lack the capacity to deal with racist speech that is sophisticated and not profane. This presents a problem, particularly when a racist message can effectively be conveyed with subtlety and without crudity. The effect of this failure on the part of Australia’s racial vilification laws is to effectively privilege the speech of mainstream commentators. Part IIA of the RDA appears to have been drafted with a view to preventing the harms that arise from extreme racist speech and speech encouraging violence. But such speech is rare or is quarantined to the margin of Australian life. The type of racism that is problematic is that which is more insidious, sophisticated, yet visible and divisive and exclusionary in its operation. This is the type of speech that Part IIA needs to engage with if it is to have any meaning in broader Australian life. Further, it is possible for Part IIA to play a role in educating and challenging racist speech without undermining Australian democracy and the general freedom of speech.
Download the paper from SSRN at the link.