Archive for August, 2008

Nondiscrimination rules are on my mind right now, because I’m in the middle of a paper about the subversion of the communications law “constitution” over the last few years.  Through some regulatory gymnastics and helped by a credulous Supreme Court, we’re now in the strange position of having entirely private general-purpose communications networks that can treat communications like their own dinner parties.  That wasn’t the structure we set up as a country for the post, the telegraph, or the telephone.

Someone asked me tonight whether the ability to communicate should be re-framed as a right.  I’m wondering about that.  We often frame the right to clean water as a human right, and we are beginning to do the same thing with the right to communicate online.  (2003 article here has useful references.)  I know this has been an IGF subject.   It does seem that a clear nondiscrimination rule, structural separation of transport from content, and a commitment to government investment in universal access would do the trick and would have the added benefit of being clearer than a vague “right.”  Also – right against whom?  Right against the communication companies?  Interested in views and sources on this.

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Congratulations to Joi Ito, Larry Lessig, and everyone else at Creative Commons for the big win today – described here at the Lessig blog.

Last week’s announcement about the Stanford IP Litigation Clearinghouse really was exciting. A little more information about it:

The IPLC, which will open to the public this fall, is a comprehensive collection of information about IP cases. The patent module has over 23,000 cases filed in the U.S. district courts since 2000. We report a variety of information about each case, and give scholars access to the key documents in each case. We are also posting a variety of statistical data about these patent cases on an ongoing basis. Future modules will expand our coverage to include copyright, trademark, and ultimately trade secret cases.

I wonder how they did it. Each court makes docket sheets available (and documents) online, but the documents are expensive (if you’re getting a lot of them) and the interface is clumsy (the PACER service). PACER says:

Each court maintains its own databases with case information. Because PACER database systems are maintained within each court, each jurisdiction will have a different URL. Accessing and querying information from each service is comparable; however, the format and content of information provided may differ slightly.

Somehow those clever people at Stanford found a way to pull all of those different databases together.  That’s quite a development – a huge contribution.

Speaking of law online, here’s a link to the Independent Government Observers Task Force: IGOTF.  Also very interesting and exciting, also making public information more public.

And I can’t leave this post without a nod to the OpenCRS project – if only a full set of these documents was routinely made available to all of us online.

It’s coming – next week some time.

From a wire report:

Having watched the FCC for years from the viewpoint of the Senate Commerce Committee, McCain thinks the agency shouldn’t be drafting rules for new markets, [Douglas Holtz-Eakin, a senior domestic policy advisor for the McCain presidential campaign] said. Instead, McCain wants the FCC to function more like the Federal Trade Commission, which analyzes the impact of companies’ endeavors before it acts.

So as you enjoy your weekend, think for a moment about what an FCC without rulemaking authority would be able, or unable, to do.  Feel free to fulminate in the comments here – in either direction.

Don’t worry, I won’t blog all 99 talks. But this is the first plenary session so I thought I’d note what’s going on.

Chris Cotropia is up next, talking about the early filing doctrine in patent law. He’s saying that filing early amplifies the patent system’s problems. It creates more applications that are more underdeveloped (so hazy boundaries for patentability) and encourages “patent troll” activity – it may be more valuable to litigate than commercialize the right. So there should be a “reduction to practice” requirement. You’d have to have real implementation information in order to file. This would push the filing date later. It would be costly, true. Maybe we should also require more implementation information before renewal too.

Question: What about the value of ideas that never get commercialized? Do we benefit from being able to separate out invention (by tagging it with a patent) and buy it (even if not commercialized)? Good question!

Wendy Gordon is next. She’s working on gifts, and trying to organize the literature there. Thesis: for three kinds of intangible products, “gift” should be the the starting point for analysis. First, “high culture,” second, pure science, three, software programming. She’s including these (inexhaustible, imperfectly handled by markets) things because people inside these fields talk about gift relations all the time – desire to share, taking pleasure in the sharing of others. Second, these fields are areas where “doing the work” is the thing, not making money. Making a contribution by doing something wonderful. In these areas, direct payments can work harm for creativity. It can make a huge difference how rewards come in – if they come in in a way that feels like gift (non-tit-for-tat), artists have sense of community and a creative spark. Indeed, if things are commercially successful, the community may look down on it. The big problem with gift is reciprocity, the pressure to pay back. We need some of that (not to mention the wherewithal to eat). She’s interested in a model of soft reciprocity.

Jeanne Schroeder has written that gift is hierarchy/reciprocity and contract isn’t. But intangibles allow you to give and take simultaneously, because they’re inexhaustible. And through attribution and memory people will know about it. Should we eliminate patent and copyright and makes things compulsory gift? No, eliminating these things doesn’t fit the gift model. Whole point of the perfect gift is that it encourages soft reciprocity and voluntariness and longterm returns, and GPL has accomplished that. So she thinks a gift model is a useful place to start for these intangibles. A good place for a gift economy.

Question: what about the fact that gifts are usually personal? How does term “gift” work for commercial context? Answer: I’m just trying to create a context for creativity, and recognizing people as people; also trying to organize thinking and research agendas. Does this scale? Yes, just do it through recognition. If you’re in a truly commercial realm, then you’ll have gift failure. Question: what work does “gift” for you? What about community and sharing? Doesn’t “gift” assume that you have something in the first place?

Frank Pasquale is now up to talk about reputation regulation – he wants to “think about intermediaries from a broader policy perspective.” He thinks social interests of users aren’t being addressed.  What if GoogleBooks starts charging?  or Google manually chages ratings, or eliminates sites from its index?  Should Google have to disclose what it’s up to? Should eBay be able to favor certain sellers legally?  Should Facebook be able to kick members off without due process? Should Google be required to make AdSense data portable? Right now, the debate is between free market abolutism on the one hand and expanding the common law on the other – terms of use, antitrust, business torts.  Maybe these things are natural monopolies!

These are very concentrated markets, Frank says.  Lots of barriers to entry have been erected.  It’s hard to compete.  Litigation won’t have a broad enough effect, and the courts are clueless.  Wants to apply stuff from the net neutrality movement to intermediaries.  Wants to regulate intermediaries to the extent competition is unlikely to develop, and particularly auction platforms and portability for social networks; these things are becoming carriers (as an analogy).  We’re all worried about NN, Frank says, because of worries about other layers.   He is analogizing all the NN arguments to the intermediary level.

Wants no tiering for GoogleBooSearch, transparency, and a level commercial playing field.  If we allow Google to get books together, they shouldn’t be allowed to make special deals.

Google, after all, Frank says, calls itself a neutral conduit.  So it should have the same responsibilities.  Points out that intermediaries don’t have absolute immunities.  He thinks they’ll ask for immunity from lawsuits just like the carriers did.

So – Google shouldn’t be allowed to do any stealth marketing or denying access to copyrighted works once they are indexed.  Google’s going to make the same arguments as the carriers are – we need to knock all those down, says Frank.  He really wants to treat intermediaries as carriers.

Ninety-nine papers, 150 attendees – information law scholarship is producing lots of numbers.  Each presenter has just 15 minutes.

Mark Lemley has announced an academic database of all IP cases – a huge and impressive undertaking: the Stanford Intellectual Property Litigation Database.  Enormous and enormously helpful.

Mark McKenna is up first, talking about justifications for trademark claims against non-competitors.  Two key ones are “market preemption” and “free riding.”  These are arguments that focus on producer interests, and are basically claims about dilution of the brand (impact on ability to operate in the future).  People have written about brand extensions and alliances, and there’s lots of empirical marketing work on “forward spillover effects” and “backward feedback effects.”  So this isn’t really about “sponsorship,” it’s about a kind of trademark derivative right.   So maybe trademark law is IP law after all.  Next questions should be about free-riding etc – are these appropriate claims?

Lemley: should law be a norm follower or a norm entrepreneur?  Answer:  I’m just looking at the empirical literature here.   Later:  I think we need to think about consumer and producer interests together for these noncompetitor claims.  Where producer interests are low, we’d have to show that there’s real consumer harm.  Question:  what about branding community?  how does that play in here?  McKenna:  I think those interests are real, and trademark law doesn’t deal with them very well.

I’m at this conference.  I’ll do some live-blogging today if it’s possible.

The Second Circuit has held that Cablevision’s remote DVR does not directly infringe studios’ and broadcasters’ exclusive rights to reproduce or publicly perform their movies and broadcasts.  (EFF reaction here.)

This is an important case.  Cablevision is authorized to deliver programming to its customers – indeed, Cablevision already paid the plaintiffs for that authorization.  But the studios and broadcasters wanted to be paid AGAIN when Cablevision customers chose to record programming to watch it later.

Right, you thought time-shifting was legal!  And in fact it is; it’s a fair use.  Lots of companies sell digital video recorders (DVRs) that enable you to do this, including TiVo, and it’s generally accepted that selling DVRs is perfectly legal.  Should the answer be any different if a cable company gives subscribers the ability to record programs to a remote server, rather than to a hard drive sitting in the DVR in their living room?

The Second Circuit said, resoundingly, “No.”

Cablevision wanted to allow their subscribers to record programs on *Cablevision’s* hard drives.  The subscriber was going to make the decisions about what to record and what to delete.  The plaintiffs argued that it was really Cablevision that was doing the copying, and so Sony (which is about secondary copyright liability) wouldn’t apply – and so Cablevision would be a direct infringer.

A win by the plaintiffs in this case would have been a bad development for a huge and growing sector:  networked computing.   As we’ve discussed in the past, we’re seeing a major paradigm shift to storing information and computing power in the “cloud” – networked computers owned by someone other than their users.  So more and more things are happening remotely.  If all of the suppliers and the operators of these remote devices were on the hook for direct copyright infringement because of what their subscribers were up to, they’d never go into the cloud business.

So the first thing today was:  Great decision by the Second Circuit, which decided that if anyone’s a direct infringer in this context it’s the user – the subscriber who decided to make the copy and pressed a button to make that happen.

The second thing today is nested in that first thing: even though, technically, Cablevision has stored a copy of the program in its transient buffer storage just in case the subscriber wants it, that doesn’t make Cablevision a direct infringer either.  As EFF says:

The court also reminded everyone that in order to be a “copy” for purposes of copyright law, a work must be “sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration” (here, the court concluded that data in temporary buffers in the Cablevision system that would be overwritten in, at the longest, 1.2 seconds were of transitory duration). In the digital age, where routers and caches often make fleeting copies of bytes in the ordinary course, this was welcome news.

So fleeting copies of bytes won’t trigger liability.

One hopes fleeting expletives won’t either.  (Filings from the networks in connection with the Supreme Court Fox v. FCC case are reported on here.)