Monday, April 30, 2007
Mark Lemley, Stanford Law School, has published "Rationalizing Internet Safe Harbors," as Stanford Public Law Working Paper 979836. Here is the abstract.
Internet intermediaries - service providers, Web hosting companies, Internet backbone providers, online marketplaces, and search engines - process hundreds of millions of data transfers every day, and host or link to literally tens of billions of items of third party content.
Some of this content is illegal. In the last 12 years, both Congress and the courts have concluded that Internet intermediaries should not be liable for a wide range of content posted or sent through their systems by another. The reasoning behind these immunities is impeccable: if Internet intermediaries were liable every time someone posted problematic content on the Internet, the resulting threat of liability and effort at rights clearance would debilitate the Internet.
While the logic of some sort of safe harbor for Internet intermediaries is clear, the actual content of those safe harbors is not. Rather, the safe harbors actually in place are a confusing and illogical patchwork. For some claims, the safe harbors are absolute. For others, they preclude damages liability but not injunctive relief. For still others they are dependent on the implementation of a “notice and takedown” system. And for at least a few types of claims, there is no safe harbor at all. This patchwork makes no sense. In this article, I suggest that it be replaced with a uniform safe harbor rule. A single, rationally designed safe harbor based on the trademark model would not only permit plaintiffs the relief they need while protecting Internet intermediaries from unreasonable liability, but would also serve as a much needed model for the rest of the world, which has yet to understand the importance of intermediaries to a vibrant Internet.
Download the entire paper from SSRN here.
Lydia Pallas Loren, Northwestern Law School of Lewis and Clark College, has published "Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright," at 14 George Mason Law Review 271 (2007). Here is the abstract.
The underlying purpose of the Copyright Act, as stated in the Constitution, is to promote the progress of knowledge and learning. Today, the complexities surrounding copyright law confront millions of users of creative works who find it difficult to determine whether a work is subject to copyright protection, difficult to understand what they can and cannot do with these works, and difficult to locate the copyright owner. These high transaction costs facing users create an impediment to the achievement of copyright's constitutional goal. The Creative Commons offers tools embraced by millions of copyright owners to provide clear public use rights broader than those provided by the Copyright Act. This article posits that by selecting to employ the Creative Commons tools, copyright owners are placing their works into a semicommons status. Property that has a semicommons status embodies both important private rights and important public rights that dynamically interact. Creative works with a semicommons status can facilitate the very progress that copyright law is designed to serve. Thus, this article argues that courts should facilitate the growth of this semicommons of creative works by enhancing the reliability of both the private rights that the copyright owners have retained in these works, as well as the reliability of the public rights that the copyright owners have signaled exist through the use of the Creative Commons tools.
Enforcing the private use rights requires appropriately recognizing both copyright infringement claims and breach of contract claims. Enhancing the reliability of the public use rights requires prohibiting a retraction of those rights by the copyright owner, including any attempt at terminating the grant pursuant to provisions contained in the Copyright Act. This article proposes that courts embrace a doctrine of limited abandonment of copyright to clarify the nature of the public rights in works released under Creative Commons licenses and to enhance the overall reliability, and hence value, of the semicommons of creative works.
Download the entire article from SSRN here.
Paul Ohm, University of Colorado Law School, has published "Do Blogs Influence SSRN Downloads? Empirically Testing the Volokh and Slashdot Effects". Here is the abstract.
SSRN's download statistics are criticized for being biased in favor of bloggers. Just how does the supposed bias work, and how strong is it?
This paper reports the results of a small empirical study undertaken in April, 2007. While guest-blogging at the Volokh Conspiracy, the author used a small computer program to collect SSRN Abstract View and Download statistics every fifteen minutes.
The study took on an unexpected dimension when links to some of the author's blog posts appeared in an article on the Slashdot website, one of the most widely-read technology websites. This allowed the author to compare the Volokh Effect with the better known and more often studied Slashdot Effect.
This is a quickly-compiled draft summarizing and analyzing the results.
The odds are very good that the author is collecting data about this abstract page, as well.
Download the paper from SSRN here if you dare.
Friday, April 27, 2007
The trial over whether NBC Studios acted in bad faith over licensing arrangements concerning the hit show "Will & Grace" ended abruptly just before the jury verdict was to be read April 27th. Attorneys for the defense discovered that the jury foreperson maintains a website on which he posts (mostly political) commentary, but had at least one comment about media conglomerates, including GE & NBC, the parent companies of the studio involved in the case. The judge eventually dismissed the foreperson, replaced him with an alternate and asked the jurors to begin their deliberations anew. Read more here.
Jack Valenti, who was for a substantial part of its existence the colorful head of the Motion Picture Association of America, has died at 85 from the aftereffects of a stroke he suffered in March. Mr. Valenti put in place the Association's first ratings system in 1968 in order to address parental and legislative concerns over sex, violence and language. Read more here in a Hollywood Reporter story, here in a statement from MPAA head Dan Glickman, and here in an article by David Germain.
Wednesday, April 25, 2007
George S. Ford, Phoenix Center for Advanced Legal and Economic Public Policy Studies, has published a paper called "University of Florida Study Shows Only Winners From Network Neutrality Regulation To Be Content Providers, Consumers Lose." Here is the abstract.
This month, three professors at the University of Florida's Warrington College of Business Administration released a new paper on the effects of network neutrality regulation using a stylized game-theoretic model (the “Florida Study”). This analytical investigation of network neutrality is certainly a welcome addition to the debate, which has primarily been driven by emotion. But the conclusions of the Florida Study have been grossly misconstrued by network neutrality proponents, who have seized upon them in claiming that the study shows that the “Internet with Net Neutrality is unequivocally better for consumers.” Even a casual read of the Florida Study shows that those claims are entirely false. In fact, the Florida Study clearly shows that under no circumstances will consumer welfare be improved by network neutrality regulation. In fact, the Florida Study suggests that the only “winners” from network neutrality regulation will be the Internet content providers - with broadband service providers and consumers being worse off (or, in some cases, unaffected). Policymakers should therefore not be misled as to what the Florida Study actually says and should pay heed to the warnings that lie beneath the patina of overzealous advocacy.
Download the entire paper from SSRN here.
Edwin Baker, University of Pennsylvania Law School, is publishing "The Independent Significance of the Press Clause Under Existing Law," in a forthcoming issue of the Hofstra Law Review. Here is the abstract.
The paper argues that only the assumption that the Press Clause has a meaning independent of the Speech Clause could explain either different First Amendment treatment of individuals and the press or different First Amendment treatment of the press and other businesses. Suggesting an interpretation of the Press Clause as protecting the institutional integrity of the Fourth Estate, it then examines fifteen areas of law and finds that in each area the press receives different treatment - precisely the different treatment that the Fourth Estate theory predicts. Moreover, no area of law is found to be inconsistent with this independent meaning thesis. In the case of many of the differences observed, the holdings are part of constitutional law. In others, differences are statutorily based, but it is argued that in most of these a court would, if necessary, almost surely invoke the First Amendment to overturn any legislative attempt to treat the press the same as current law treats other businesses. Finally, the paper argues that the admitted controversial nature of defining the press for constitutional purposes (it is done routinely for legislative purposes) does not provide a good reason to avoid explicit recognition of the significance of the clause and that to do so provides important theoretical and practical benefits.
Download the entire article from SSRN here.
Tuesday, April 24, 2007
Charles B. Vincent, Widener University School of Law, has published "Bittorrent, Grokster, and Why Entertainment and Internet Lawyers Need to Prepare for the Fair Use Argument for Downloading Television Shows," in a forthcoming issue of the Journal of Internet Law. Here is the abstract.
This article examines the legal issues facing copyright holders of television shows whose product is available online through modern peer-to-peer networks such as BitTorrent. In a copyright infringement suit against these distributors or end users who download the files, the court will first have to determine whether liability based on the fair use doctrine applies, as explained by the Supreme Court's 2005 Grokster decision. Although the opinion provides guidance for litigants and courts in these particular infringement cases, many of the recent downloading programs have already taken a more proactive position to deter piracy. In these situations, these distributors may be absolved from Grokster-liability due to active monitoring and other affirmative steps. Regardless of how the court weighs this issue, however, it will have to address whether the fair use doctrine applies to television shows obtained through this technology. While fair use has generally been undisputed in music copyright litigation, this article suggests that the fair use analysis may produce different results depending on whether the end user downloads for a private viewing experience or whether the end user downloads and extends the use beyond mere private viewing. The latter download and distribution, particularly in the case of unlicensed commercial distributors makes any fair use argument more tenuous. This article concludes with presenting practical solutions to the television downloading problem.
Download the entire article from SSRN here.
H. Brian Holland, Barry University School of Law, has published "In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism," as a working paper. Here is the abstract.
In the ten years since its enactment, Section 230 of the Communications Decency Act of 1996 (CDA) has become perhaps the single most significant statute in the regulation of online content, and one of the most heavily criticized. Many early commentators criticized both Congress, for its apparent inability to craft the more limited statute it intended, and the courts, for interpreting the statute broadly and failing to limit its reach. Later commentators focus more clearly on policy concerns, contending that the failure to impose liability on intermediaries fails to effectuate principles of efficiency and cost avoidance.
This article takes the opposing view, in defense of broad Section 230 immunity. It argues that the immunity provisions of Section 230 play a significant role in broader questions of Internet governance. Specifically, Section 230 immunity provides a means of working within the sovereign legal system to effectuate many of the goals, ideals and realities of the Internet exceptionalism, cyberlibertarian movements. By mitigating the imposition of certain external legal norms in the online environment, Section 230 helps to create the initial condition necessary for the development of a modified form exceptionalism. With the impact of external norms diminished, Web 2.0 communities, such as wikis and social networks, have emerged to facilitate a limited market in norms and values, and to provide internal enforcement mechanisms that allow new communal norms to emerge. Section 230 plays a vital role in this process of building heterogeneous communities that encourage collaborative production and communication. Efforts to reform or restrict Section 230 immunity are therefore unnecessary.
Download the entire working paper here.
Brett M. Frischmann, Loyola University of Chicago Law School, has published "Cultural Environmentalism and the Wealth of Networks," in the 2007 volume of the University of Chicago Law Review. Here is the abstract.
In The Wealth of Networks: How Social Production Transforms Markets and Freedom, Professor Yochai Benkler provides a thorough and intellectually rich account of our modern information environment and its interrelationship with law, technology, and critically, networks. The book is remarkable in its breadth and depth.
Benkler's primary thesis in the book is that the wealth of networks lies in the potential for widespread participation in the making, sharing, and experiencing of the information environment. The emerging networked nature of the information economy unlocks human potential and enables participation in an unprecedented manner. To support his claim that such change is in fact underway, Benkler offers a rich descriptive account of the networked information environment. To support his normative claim that such change ought to be allowed if not encouraged, Benkler appeals to a range of liberal political theories. In the end, Benkler frames a battle over the institutional ecology of the information environment and explains how incumbents may resist change at various layers of the system.
To explore how Benkler accomplishes so much, this Review situates his book within cultural environmentalism, a complementary framework for integrating the seemingly disparate areas of policy brought together in The Wealth of Networks. Cultural environmentalism as a theory of information policy originated with Jamie Boyle's 1996 book, Shamans, Software, and Spleens, and his attendant scholarship. Boyle issued a call to arms to protect our cultural environment and used cultural environmentalism as a metaphor to spur the organization of a political, social, and intellectual movement.
Cultural environmentalism is potentially valuable as an analytical construct because it focuses attention on our relationships with complex systems that are significantly more nuanced and varied than suggested by more traditional theories of information policy derived from economics or romantic notions of authorship and inventorship. With respect to the natural environment, environmentalism led to a better understanding of natural resource systems and our relationship to those systems, and consequently to an understanding that regulation is needed to preserve and protect those systems for sustainable use. Cultural environmentalism has yet to generate similar understandings, both descriptively regarding the systems and our relationships to them, and normatively regarding the consequences of how we choose to regulate the information environment.
Benkler takes significant strides in remedying these deficiencies. Situating his book within the framework of cultural environmentalism reveals its contributions to our understanding of those systems that comprise the cultural environment, how we relate to those systems, and the normative consequences of different regulatory choices we might choose. This framing helps to make The Wealth of Networks more accessible, and at the same time, provides a useful lens for commenting on and extending Benkler's analysis.
Download the entire article from SSRN here.
David Halberstam, the Pulitzer Prize-winning journalist and New York Times reporter, died in a car accident yesterday while on his way to interview the football great Y. A. Tittle. The Times has a number of articles in today's issue devoted to Mr. Halberstam's life and career.
Monday, April 23, 2007
The Guardian's Alice Gould discusses the law of the blogosphere and issues some warnings about IP and the internet here. Read a view from across the Atlantic. Read a related piece by Patrick Barkham and Jeff Jarvis here on the use of social networking sites and blogger material by journalists after the Virginia Tech tragedy.
Friday, April 20, 2007
Britain's Channel 4 has made its case to regulator Ofcom in the "Celebrity Big Brother" incident, and is now awaiting a ruling. According to observers, the agency may very well come down on the side of critics who say that the show violated existing standards prohibiting racist and offensive language and behavior. However, Ofcom has yet to complete its independent investigation. Channel 4 is running its own investigation as well. Meanwhile, Bollywood actress Shilpa Shetty, who with dignity surmounted the slights inflicted by other participants on the show, was under fire for actions committed recently by a well-meaning Richard Gere. During an event to promote AIDS awareness, Mr. Gere gave Ms. Shetty an "enthusiastic" kiss, objected to by some in India who think public displays of affection should be off-limits.
Unlike the major networks in the US, the Canadian Broadcasting Corporation decided not to air the material that Virginia Tech shooter Cho Seung-Hui sent to NBC, and it has defended itself since. Read about its decision in a Toronto Globe and Mail story here. NBC continues to react to criticism of its decision, arguing the news value of the material; read a New York Times story here. Meanwhile, YouTube has become a center for information and reaction to the massacre. Read more, again from a Canadian perspective, here.
Thursday, April 19, 2007
Robin W. Wright, Andrew T. Kenyon, and Jason John Bosland, all of the University of Melbourne, have published "Broadcast and Beyond: An Industry Snapshot of Content Control Technologies and Digital Television in Australia" as University of Melbourne Legal Studies Research Paper No. 219. Here is the abstract.
Between March and September 2006, researchers at the Centre for Media and Communications Law (CMCL) interviewed 38 Australian television industry figures about their attitudes and experiences with regard to content control technologies for digital broadcasting. The interviews formed part of a three year research project into legal and technological mechanisms for controlling digital television content, which is funded by the Australian Research Council and encompasses questions in the fields of copyright law, media law and media policy.
The interviews explored issues such as content control for digital television broadcasts; viewer reuse of broadcast content; the interaction of technical and regulatory controls; and more general matters about the future of television in Australia. The aim was to gather a range of views from across the industry, including individuals employed within commercial, national, subscription and community broadcasting, external legal advisors, the production sector, industry organisations and regulators. Interviewees were asked for their individual, anonymous views and they appeared to provide frank responses. Interviewees certainly had a great deal of experience in the industry on which to draw: the median time they had spent working in the field was 15 years and the mean was more than 16 years.
This brief report outlines two related areas where information has been collected from the interviews: attitudes to content control technologies and viewer reuse of digital audiovisual content. Overall, the observations distilled here from industry professionals are largely consistent with points raised earlier in this project, such as the existence of varied industry attitudes to whether time-shifting for personal use should be allowed under Australian copyright law. But the snapshot from industry set out here will also provide a useful reference in more detailed future analysis of legal and policy issues concerned with digital television and content control in Australia.
Download the entire paper from SSRN here.