Archive for October, 2004

This morning on MSNBC, two stories ran back to back. The first was about the FTC going after spyware.  The second was about Google's new beta product, Desktop Search.

Spyware, bad.  Desktop Search, good.  But what, really, is the difference?

Spyware, according to the FTC, “installs adware and other software programs that spy on consumers' Web surfing.”  Desktop Search “keeps a copy of every Web page you visit and lists those pages in search results with the date and time of your visit.”

A key difference is that you “consent” to the installation of Desktop Search, and you can un-install it easily. Spyware, by contrast, doesn't ask for permission.  But how informed is a consumer's “consent” to installation of Desktop Search?  Will people really understand that their instant message communications are being stored, that their “deleted” emails are actually retained for later searches, and that others using their PC will be able to access all of this information?

Over on Slashdot, people are excited (if a little contemptuous).  One comment:  “Software a son could love, but a mother could install.”  Someone did say that Google gets a lot out of this —

Unless you choose to opt out, either during installation or at any time after installation, non-personal information collected will be sent to Google.

But that doesn't seem to be bothering a lot of the commentators — Google says it's getting usage pattern data.  One Slashdot commentator did say:  “It's a lot less fun when your Google search finds your OWN porn.”

The discussion about privacy and spyware and electronic places is incremental.  Today is a good snapshot day:  when mass media reported sound bites about “spyware” and “desktop search” back to back and no one experienced cognitive dissonance. 

Here's why we have no problem with “desktop search”:  we aren't really worried about being watched.  We're really really worried about being in an abusive relationship with someone we don't even know. 

Yesterday, I received a letter from US News & World Report.  It said, “As part of its spring 2005 report on graduate and professional schools, U.S. News & World Report is conducting a survey to identify the law schools having the top programs in intellectual law.. .. This survey is being sent to a sample of law school faculty listed in the AALS Directory of Law Teachers 2003-2004 as currently teaching a course or seminar in intellectual law.  Your participation in this survey in greatly appreciated.“

For good or ill, the U.S. News rankings of law schools are looked at carefully.  So I knew instinctively that this was an important moment.

Who has the best program in intellectual law?

It's good to know that U.S. News cares about intellectual law.  Someone needs to.  I was relieved that Brian Leiter had visited Cardozo just the day before.  This signaled to me that clearly Cardozo had a strong intellectual law program.  So it was easy to vote for my own school.

And it wasn't hard to find a few other schools to vote for.  This profession is lousy with intellectual law specialists.  I sent back the survey in triumph.  I knew I'd contributed to the state of legal education in America.

I'm not troubled by having ranking systems out there, and perhaps we ought to embrace them even more emphatically than we do.  It's snarky to question U.S. News's proofreading.  But it did make the enterprise feel a little shallow. 

We're not really voting for a candidate.  We're voting for the team that candidate will bring to Washington.  Keep that in mind — despite all the attention being paid to Bush's background and Kerry's background, who they are as individuals is not the measure of what kind of government we'll have.  (I'm listening to the debate with half an ear as I post this — nothing new so far; all the same bland statements we've already heard — so maybe it's good news that we're not voting for either of these guys.) 

What should we look for in the team we vote into office?  We all know that complex systems do best when they're poised between rigidity and randomness — quivering, dynamic, right between too much order and too much chaos.  When systems are in this position, they grow and change with ease, without becoming either too stuck (and unable to take on new information that would help them adapt) or too wacky (drifting into disorder and unable to achieve any advances).

We're in a rigid state right now.  We're afraid.  We're full of concern about security and globalization and epidemics and who knows what.  We're clamping down.  We're closing our borders and our minds to outside information.  This may be heresy in these days of fear, but it's clear to me that we've gone too far in this direction.  Too much order is in our lives, and we have the illusion that we can control our destinies.  We have the arrogance to believe that we can be completely safe.

We need to choose the team that will move the lever in the direction of openness and dynamism.  We need to choose the team that is willing to listen to the rest of the world — to take on information and energy from others.  Otherwise, we'll be cutting ourselves off from unknown and possibly better destinies.  Sure, we can't see exactly where we're going.  No one can.  But we can do our best to make sure that we remain the agile and gifted country that we have been in the past.

Based on what we know of the Bush team, that group isn't about to loosen up.  They'll be looking, instead, for more and more order.  More security.  More authentication.  More collection of information.  More structure.

We don't know much about the Kerry team, but Kerry himself says he wants to talk to other countries.  He's signaling openness.  He's a guy who likes to do investigations.  If his team includes some former Clintonites, we're likely to get quite a bit of energy and maybe some disorder along the way.  We'll learn new things, we'll engage with the rest of the world, and we'll stay on our toes.

Along this axis, this continuum between rigidity and randomness, we need to pull the knob that moves us more towards a dynamic future.  Take a good look at these two teams — not these two guys.  The risk of increased order is unacceptably great.

How should Yale Law School become a global law school? 

It seems to me that the goals should be to (1) create groups of people around the world that are not Yale graduates but understand the goals of a Yale law school education and feel affiliated to Yale — and add to the Yale experience in ways we can't predict, (2) make Yale graduates comfortable that they (a) know how to find something out about a foreign law system (even if they never practice there) and (b) understand the contingent and evolutionary nature of legal systems, and (3) form strong alliances with other institutions around the world, so that students and professors and programs can flow across the borders.  One law school, many doors.  To do this, you need money, open borders, and lots of feedback mechanisms.

Here's a ten point proposal:

1.  Use the alumni. Have them help the school find more connections outside the US. 

2.  Use those connections outside the US to funnel  substantial cohorts of foreign fellows to the school.  Rely on the recommendations of alumni and foreign institutions, coupled with essays by applicants, and try to devolve responsibility for the applicants (quality control, some financial assistance) to alumni associations around the world.

3.  Have each group of foreign fellows be in residence at the school for two weeks.  Have them form part of an existing first-year small group for one of those two weeks (going to all the first year classes).  Have them work with professors in seminar settings for the second week.  Have them bond and commit to working on public service projects (across geographic boundaries, together) over the ensuing three years.  

4.  Have each cohort return to the school for a refresher one-week meeting once each of the next two years.  Call them Koh Fellows.  Get the alumni to fund the Koh Fellow project.

5.  Don't have more than four cohorts come to the school each year — two initial meetings (one fall, one spring) of two cohorts, and two refresher meetings (one fall, one spring) of the existing cohorts.  Cohorts should be welcome additions to the law school community, not intrusions on the law school's small world.

6.  Have the Koh Fellows report on the progress of their projects to the world.  Online. 

7.  Inspire sister institutions to bring different groups of Koh Fellows together, in different places around the world.

8.  Use the other institutions at Yale.  Work with them on cross-disciplinary global projects.  Focus on one institution a year.  Set goals for the global projects that are objective.

9. Form alliances with other global law schools.  Work on curriculum reform with those other law schools.  Share faculty with those other schools.  Experiment with online course materials — and make them open to the world.

10.  Change the first-year curriculum to include a comparative law course of some kind.  Create global fellowships for existing students, offering to pay back their loans if they commit to working in international affairs/human rights for 10% of their career.  Have these students report back over the course of their careers about what they've done.   

Jack Balkin organized a panel at the Yale Law School reunion this weekend.  Reed Hundt, Jonathan Blake, Michael Levine and I were on the panel.  The title of the panel was 'Global Connections,' which I think signaled to each of us that we could talk about anything we wanted to.

I decided to talk about networks, music, and death.  Reed talked about the decline of law over the last three decades.  Jonathan talked about international law firm practice.  And Michael talked about aviation regulation.  Jack said nothing (but should have).  It was really more like a potluck than a panel.  We all had a fine time.

I had two messages, really, to put across.  And one plea. 

The two messages were:  (1) the importance of networks that are permitted to evolve and create order (cf. hierarchies), and (2) a sense of optimism about the future. 

The plea was:  “Reunions are a time for reflection, and of course we all think about death — that guy looks like hell, we say to ourselves, but I'm doing all right.  We need to live with the constant awareness, as Bach did, that our existence is not only finite but always in danger of ending suddenly.  Hope resides in the worthwhileness of what our lives have been.  By joining and strengthening interesting global networks we cause order (and thus, evolution) to continue.  Even if it's out of our control. 

So: be the link to someone else.  Be the link that causes a phase change to occur and a miraculous, giant, useful cluster to emerge.”

I'm not sure what Dean Koh is getting at with his focus on globalization.  I'm of course supportive of maintaining the law school's strength.  But making a truly global law school would require reinventing the school from the ground up, and I don't think anyone's interested in doing that. 

The admissions office is good at finding top-flight people who are quite similar to the people who have been there in the past (but are much more talented than the older generations were).  The professors are good at writing down groundbreaking legal ideas.  Yale is the smallest law school in the country.  In order to become a key “global” law school, you'd have to admit different kinds of people, teach different kinds of things, hire different kinds of professors, and operate on a vast scale.  How do you get from here to there? 

If anyone can do it, Harold Koh can, and I'm behind him.  But I got the sense this weekend that not many people understand what he wants to change, and how.  In my next entry, I'll suggest some steps that the school could take to get from here to there.      

There's a long section in the Copyright Act (sec. 110) that basically says that “the following list of deals we've made aren't copyright infringement.”  For example, display of a movie in a classroom (unless it's an illegal copy), performance of a “nondramatic literary work” for free, and several other things.  Here's a link to the section.

Although you may find this incredible, the content community is proposing an addition [search for HR 4077] to this section that would make automatically skipping commercials an infringement. 

Every evening at dinner, my (otherwise silent) family watched Walter Cronkite.  When the commercials came, someone would always turn down the volume.  Then we'd sit in complete silence until the next bit of CBS news.  This was our hallowed tradition.  If there had been some kind of great device that let us skip the commercials completely, we would have embraced it.  (If it had cost nothing.  I'm from a thrifty and silent family.)

The proposed text, to be called the Family Movie Act (!) would say:  “It is not an infringement of copyright

`[for a member of a private household to make imperceptible] limited portions of audio or video content of a motion picture during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed for such use at the direction of a member of a private household, if-

`(A) no fixed copy of the altered version of the motion picture is created by such computer program or other technology; and
`(B) no changes, deletions or additions are made by such computer program or other technology to commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during or after the performance of the motion picture.';…

Translation:  you can turn the volume down or skip the commercials by hand, sure.  But you MAY NOT create a computer program that would automatically skip the commercials, or turn the volume of those commercials down for you.

So the commercials have become even more important than the content, is that it?  We MUST watch them?  We can't use technology to help us skip them?  We can't use our own devices to, like cars, drive us around neighborhoods we don't want to go to when we're on our way from point A to point B?  If we're going to skip those neighborhoods, we're going to have to walk.  Don't use that nasty technology.

And what's really important about this section is that it suggests that skipping commercials in a “transmission” is somehow an infringement of the distribution right.  This is crucial to understand: copyright law provides the owner of the distribution right with the exclusive right to “publish” tangible copies of the content to the public.  Publish means handing a copy of the thing over to someone else. 

Now the big push by the content community is to make online, electronic transmission of content part of the distribution right — even though the tangible object, the fixed version of the content, isn't created until it's reassembled by the recipient's browser or other client software.  There simply isn't a tangible object being handed from one person to another when you're dealing with online transmission.

This move is much more important than attacking the skipping of commercials.  It would potentially enable a copyright owner to control all transmissions of the bits of their content online as part of the “distribution” of that content.  All secondary transmissions would be violations of the “distribution” exclusive right.  All secondary markets would be controlled, notwithstanding the first sale doctrine's notion that you only get one chance to sell something. 

So:  keep up the pressure on HR 4077. 

Following some extreme brinksmanship — will Sen. Hatch try to ram through some version of the Induce Act that we haven't even seen? — it looks as if Induce is dead for the moment.

But Barnabas Collins looked pretty dead from time to time too.  It's a useful bet that we'll see Induce-like legislation proposed again, and soon.  (Sen. Hatch is, of course, stepping down from the chairmanship, and that may change the landscape.) 

Wouldn't it be a better idea, she said plaintively, to compete by offering low-cost, whizbang-searchable sources of content online — rather than through legislation and litigation?  It's true that the RIAA has good reasons to want to reverse the effects of the 9th Circuit's Grokster decision.  But it's just too hard to define “bad” P2P systems without running the risk of chilling [pdf] the development of perfectly legitimate products and services.  In fact, it may not be possible.  P2P is an idea, like the internet.  

To all of the people who worked constructively with the RIAA to try to define “bad” P2P, bravo.  To all of the people who worked constructively with the RIAA to avoid constraining new legitimate technologies, bravo to you too.  And to all a good (and long) night.  

Led by Public Knowledge, a group of plaintiffs is challenging the FCC's jurisdiction to enter the flag rules.  (And only just in time — the rules will otherwise take effect in mid-2005.)  Read the brief [pdf], and see particularly fn.15:  The FCC arguably does not have legislative rulemaking authority at all under Title I of the Communications Act.

Translation:  when FCC is dealing with something or somebody who isn't a common carrier (Title II), a broadcaster (Title III), or a cable company (Title VI), it needs express statutory authority from Congress to make rules about that something or somebody.

This footnote has implications for the IP-enabled services rulemaking as well as the current broadcast flag case.  If an IP-enabled service doesn't use the traditional telephone numbering system, arguably the FCC doesn't have any say over it.  No social policies.  No pretending that the entire internet is an “information service” over which FCC has ancillary jurisdiction.

It's a fine brief, and we'll see what the FCC has to say in response — and we'll all be watching how the D.C. Circuit deals with these large jurisdictional problems.  Who's in charge of the internet?  We are — the end users.   

As the negotiations on the Induce Act continue, it's likely that there are people sitting in a room on Capitol Hill debating how to define “bad” P2P applications and products in legislative language.  The same exercise is certainly going forward with respect to spyware.  It may be that we're taking the wrong approach to these questions.

How do you describe code you don't like without sweeping in untold numbers of existing (and yet-to-be-created) innovations?  Answer:  You try really really hard and create tortured definitions, then hope for the best.  It's inevitable that some “good” P2P applications will provide the kinds of tools that KaZaa and Grokster did/do.  It's inevitable that some “good” spyware will have the potential to be used “badly.”  (Although we've gone pretty far with this question by calling an entire category of things “spyware” — like “broadcast flag,” which sounds so benign and positive, “spyware” sounds positively evil no matter what its uses.)

Maybe, instead of defining what code we don't like, we should define what relationships we don't approve of.  People that intend to rob me of my control over my attention, without my wanting them to (or without my getting some benefit that I want in exchange) are creating a relationship with me that I don't want.  Like a car alarm under my window (note: there are no car alarms under my window — I'm lucky), their work is keeping me from focusing.  That's wrong, and that's something we may want to condemn globally.  Similarly, someone who wants to make money from massive uploading of copyrighted works, but tries to avoid liability under standard copyright law, is creating a relationship with the marketplace that we may want to condemn.

Working on defining oppressive relationships — and getting at what really makes us mad, rather than trying to anticipate how technology will be used — has got to be a better approach than trying to define “bad” technology. 

From the Christian Science Monitor:  “New presidential election simulation game lets you create an aggressive ad strategy, debate opponents – even schedule a whistle-stop tour. Do you have what it takes to create a winning presidential campaign?” 

The game is free, and it's here.