Friday, May 21, 2010
Thursday, May 20, 2010
Over the past two decades, the Internet has undergone an extensive re-ordering of its topology that has resulted in increased variation in the price and quality of its services. Innovations such as private peering, multihoming, secondary peering, server farms, and content delivery networks have caused the Internet’s traditionally hierarchical architecture to be replaced by one that is more heterogeneous. Relatedly, network providers have begun to employ an increasingly varied array of business arrangements and pricing. This variation has been interpreted by some as network providers attempting to promote their self interest at the expense of the public. In fact, these changes reflect network providers’ attempts to reduce cost, manage congestion, and maintain quality of service. Current policy proposals to constrain this variation risk harming these beneficial developments.
Download the Article from SSRN at the link.
We are at a crossroads with respect to the under-developed equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or - if judges accept the proposal of this Article – courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control other’s speech.
The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new works by preventing subsequent creators from using copyrighted work to make their own, new speech. Courts have long recognized this inherent tension, and have also recognized that the conflict should sometimes be decided in favor of allowing a subsequent speaker the right to make unauthorized use of others’ copyrighted works. Accordingly, courts created, and Congress codified, the fair use defense to copyright infringement, which allows unauthorized use of copyrighted works under certain circumstances that encourage speech and creation of transformative works. The problem with fair use, however, is that the informational uncertainties and transaction costs of litigating the defense make the fair use right unavailable to many as a practical matter. Subsequent creators are left open to intimidation by copyright holders threatening infringement suits. By decoupling the copyright misuse defense from its basis in antitrust principles and basing it in First Amendment speech principles, the legal protections for fair use shift from theoretical rights to practical rights for many. Copyright misuse has two deterrent features that will allow fair use as a practical right. First, a copyright holder’s misuse of its copyrights against anyone can be used to prove the defense of misuse. Second, once misuse is found, the copyright owner loses its ability to enforce its copyright against everyone, at least until the misuse is cured. Thus, by defining as copyright misuse the unjustified chilling of speech that some copyright holders perpetrate, the misuse defense will encourage important speech rights that are currently under-protected.
Download the article from SSRN at the link.
Wednesday, May 19, 2010
Because much of current legal scholarship uncritically accepts either popular, hacker-based notions of computer “attacks” or the definition of “computer network attack” used in United States military doctrine, a critical approach to what constitutes an "attack" under international humanitarian law is needed. First making the case that the definition of “attack” in Article 49 of Additional Protocol I is customary international law, the article examines a number of methodologies that can provide the appropriate determination that an “act of violence” involving computers, computer networks or information systems has occurred. Of the three methodologies examined, the consequence-based method is the most appropriate. This methodology is applied to two information-based capabilities, distributed denial-of-service (DDoS) actions and chip-level actions, to determine whether or not these types of actions are, in fact, “attacks” under IHL. The article concludes that DDoS actions-- despite widespread belief to the contrary-- do not rise to the level of an attack under IHL. Chip-level actions may constitute IHL attacks if the foreseeable consequences involve death, injury to personnel, or destruction of property, which is the case for some, but by no means all, chip-level (and malicious software) actions. In calling for a more rigorous adherence to well-defined legal standards and definitions in the area of information-based warfare, the article concludes with a call to revise the United States definition of “computer network attack” in order to more closely adhere to the definition of attack under IHL.
Download the article from SSRN at the link.
In the authors' shared opinion, the economic evidence does not support the regulations proposed in the Commission’s Notice of Proposed Rulemaking Regarding Preserving the Open Internet and Broadband Industry Practices (the “NPRM”). To the contrary, the economic evidence provides no support for the existence of market failure sufficient to warrant ex ante regulation of the type proposed by the Commission, and strongly suggests that the regulations, if adopted, would reduce consumer welfare in both the short and long run. To the extent the types of conduct addressed in the NPRM may, in isolated circumstances, have the potential to harm competition or consumers, the Commission and other regulatory bodies have the ability to deter or prohibit such conduct on a case-by-case basis, through the application of existing doctrines and procedures. Hence, the approach advocated in the NPRM is not necessary to achieve whatever economic benefits may be associated with prohibiting harmful discrimination on the Internet.
From the Corporation for Public Broadcasting:
The Corporation for Public Broadcasting (CPB) today announced a new grant to expand PBS’ award-winning investigative documentary series FRONTLINE to a year-round broadcast footprint. FRONTLINE will be celebrating its 29th season this fall on PBS.
The announcement was made at the annual PBS membership meeting in
, where CPB also presented FRONTLINE Executive Producer David Fanning with the Ralph Lowell Award for Outstanding Contribution to Public Television. The award is named after the late Austin, Texas philanthropist and founder of WGBH, where FRONTLINE is produced, and is among the highest recognitions in public media. Earlier recipients of the Lowell Award include Ken Burns, Julia Child, Henry Louis Gates, Jr., Alistair Cooke and Robert MacNeil and Jim Lehrer, among others. Boston
The $6 million two-year grant to expand FRONTLINE will allow the series to add new multi-story magazine-format programs to each season, providing FRONTLINE producers with greater capacity to provide in-depth coverage of domestic and international stories, as well as social and cultural issues. The expanded FRONTLINE schedule on PBS will also feature “fast turnaround” news reports and timely investigative stories.
The new expanded FRONTLINE will build on and increase its partnerships with journalism schools and public media institutions like the UC Berkeley Graduate School of Journalism, ProPublica, the Center for Investigative Reporting, and
’s Investigative Reporting Workshop, among others. These partnerships will enhance FRONTLINE’s investigative reporting resources and expand the series’ ability to develop a digital-age generation of younger and more diverse reporters, doing innovative work both online and for broadcast. American University
"Quality journalism has never been more important. This grant to FRONTLINE will advance an investigative news service that will work across multiple platforms to expand its reach and service to the American people," said Pat Harrison, the President and CEO of CPB. "FRONTLINE continues to be a resource for stations and for educators, providing information and a thorough reporting on a wide-range of topics."
“At a time when journalism is facing widespread cutbacks and reductions, when network news divisions are laying off hundreds of broadcast journalists and producers, when fewer significant news programs are being produced, we’re extremely grateful to CPB for its support of FRONTLINE’s expansion plans,” said David Fanning. “It’s a testament to the series, its long history, and its place in American journalism.”
“FRONTLINE is a paragon of American journalism and investigative reporting,” said PBS President and CEO Paula A. Kerger. “PBS and its member stations transport citizens to wherever news happens, whether it’s onto the battlefields of
or into the obscure corridors of power. We are deeply proud that PBS has been the home of FRONTLINE for 28 seasons. During that time, FRONTLINE has helped burnish public media’s reputation for independent, courageous journalism. We look forward to extending the series through the summer.” Iraq
Vivian Schiller, President and CEO of NPR, said, “FRONTLINE shines a light on some of the most complex and controversial issues of our times, and we at NPR are great admirers of their deep and incisive approach. FRONTLINE’s year around presence further reinforces public broadcasting as the most important provider of independent in-depth reporting on television, radio and online.”
This is the second major journalism grant announced by CPB this year. In March, Ms. Harrison announced a new Local Journalism Centers initiative to support in-depth reporting in markets across the country. The $10.5 million initiative will allow regional public radio and television stations to report on issues of critical importance in these regions and to share this content across a Public Media Platform for national and local broadcast and online.
Visit the Frontline website here.
“CPB is committed to independent, unbiased journalism and believes that public media can help fill a critical hole in the country at this time,” Ms. Harrison said. “We have an obligation to ensure that in-depth international, national and local journalism thrives in the
. It is critical to the health of our democracy.” United States
Tuesday, May 18, 2010
Jimmy Wales, founder of Wikipedia and its offshoots, including Wikimedia, has responded via general counsel Mike Godwin to charges that the company is in "chaos" after co-founder Larry Sanger alleged Wikimedia Commons makes some pornographic images available and requested an FBI investigation. See here in a story by Fox news. Mr. Godwin noted in an email that, "The Fox News campaign against Wikipedia has certainly led to some reactions, of course, but our Board and executive director remain in charge, and in fact we spent more time last week rolling out an interface redesign for Wikipedia than we did thinking about Fox News's attacks."
The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform and perform that work for a extended period of time. The First Amendment, on the other hand, proclaims that Congress “shall make no law ... abridging the freedom of speech or of the press,” thus at least nominally indicating that limitations on the reproduction and distribution of works – including the works of others – are forbidden.
Courts, including the U.S. Supreme Court in Eldred v. Ashcroft, have stated that these two regimes can be reconciled in large part by some mechanisms internal to the copyright system, and in particular the fair use doctrine and the denial of copyright protection to facts and ideas. Yet, the rejection of these two defenses in a number of prominent copyright infringement actions, and the resulting unavailability of unconstrained access to important materials, illustrates that, on occasion, broader application of First Amendment protection is necessary.
This Essay first explores the history, goals and values of these two regimes. It concludes that not only has First Amendment protection been denied in important cases; this denial has likely had a chilling effect in many other instances, in which socially valuable uses of copyrighted materials have been voluntarily forsaken for fear of litigation. The Essay then offers a test for greater unconstrained access to otherwise protected works. First Amendment interests should prevail when there is a strong public interest in allowing the unauthorized use of protectable expression; when the speaker has a compelling need to use the expression itself, ie, when paraphrasing, describing or summarizing the work is inadequate to meet the speaker’s needs; and when there is no reasonable alternative available to obtain consent to that use.
Rob Frieden (Pennsylvania State University) has published a new book, Winning the Silicon Sweepstakes: Can the United States Compete in Global Telecommunications? with Yale University Press. Here's a description of the book.
In this timely book, Rob Frieden points out the myriad ways the United States has fallen behind other countries in telecommunications. Despite the appearance of robust competition and entrepreneurism in U.S. telecom markets, there is very little of either. Because of an inattentive Congress and a misguided FCC unwilling to confront real problems, industry incumbents have been able to earn healthy profits while keeping the United States in the backwaters of Internet-based information, communication, and entertainment markets. At every turn, regulators have tipped the scales in favor of large established companies, creating an environment that stifles innovation. As a consequence, Americans are stuck with relatively slow connectivity and with equipment that lacks features that have been staples in other countries for years. In telecommunications, the United States is a little like a third world country that is developing under crushing bureaucracies without recognizing that the rest of the world has passed it by.
Rob's blog is TeleFrieden.
Also of interest is his new article, Case Studies in Abandoned Empiricism and the Lack of Peer Review at the Federal Communications Commission, 8 Journal on Telecommunications and High Technology Law 277 (2010).
What you choose to read says a lot about who you are, what you value, and what you believe. That’s why you should be able to learn about anything from politics to health without worrying that someone is looking over your shoulder. However, as books move into digital form, new reader privacy issues are emerging. In stark contrast to libraries that retain as little information about readers as possible, digital book services are capturing detailed information about readers: who they are, what books they browse and read, and even how long a given page is viewed, and the notes written in the “margins.” Without strong privacy protections, all of this browsing and reading history can be collected, analyzed, and may end up in the hands of the government or third parties without a reader’s knowledge or consent.
Retaining and strengthening reader privacy in the digital age requires a thorough examination of the potential privacy and free speech implications of digital book services and of the laws and policies that are needed to properly protect readers. Part I of this article discusses the history of strong legal and policy protections for reader privacy. Part II discusses current developments in digital book services. Part III discusses emerging privacy and free speech issues related to digital book services. Part IV proposes some policy and legislative solutions.
Download the paper from SSRN at the link.
Monday, May 17, 2010
From the CNN Ticker: President Obama has signed the Daniel Pearl Freedom of the Press Act. The new statute, which requires the State Department to look into possible violations of press freedoms abroad as part of its Annual Country Reports series. The act is named for the late Daniel Pearl, a Wall Street Reporter, who was kidnapped and executed by Pakistani extremists in 2001. Although several bills on the issue were introduced, the bill that was finally enacted is H.R. 3714, introduced by Rep. Adam B. Schiff (CA). According to Phillip Gragg of the LSU Law Library, the Public Law number will be assigned within a day or two, and the official text will be available in a week or so.
Ryan T. Holte in “Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News Reporting” examines the present condition of the media and the economic and public policies behind protecting news. He further discusses current means of protecting information through copyright and misappropriation law, before proposing a change in the Copyright Act to better allow the news industry to reap profits from top-caliber news reporting.
This paper is an exploration of a new domain of Islamic law: internetfatwa sites, to which millions of Muslims now write seeking juridical opinionson all facets of their lives. Each site is hosted in one place but is capable ofbeing accessed by Muslims worldwide; each allows almost complete anonymity butoffers a large audience; each refers to geographically-bound schools of Islamiclaw but extends far beyond their reach. How is authority made, maintained andchallenged here? Do these sites represent a new space of law for Muslims? Whatare the local politics of these transglobal spaces?