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The Internet Archive Protects Privacy for Libraries

May 8th, 2008 · Posted by Deven Desai · No Comments · Permalink
Categories: Law & Technology

Wired reports that the FBI subpoenaed the Internet Archive and demanded that Brewster Kahle (the Archive’s founder) provide records about one of the library’s registered users, asking for the user’s name, address and activity on the site. The FBI used a National Security Letter (example) to make the request. As Wired explains this type of letter does not require judge’s review before issuing it and often (almost always) has a gag order “forbidding the recipient from ever speaking of the subpoena, except to a lawyer.” The Archive, EFF, and the ACLU went to court and had the subpoena quashed.

As I argue in Property, Persona, and Preservation, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a related issue of once preserved what can be done with the information. Here, the Archive is preserving the information and then as a library allowing people to use that information. But because of the method of access, the FBI was able to ask for great detail about who looked at what information and when. Julie Cohen’s A Right to Read Anonymously: A Closer Look at “Copyright Management” In Cyberspace offers an explanation as to why the Archive’s win is so important. In short, reading anonymously involves identity of the reader and how we foster “freedom of thought and expression.”

In addition, the Wired article points out that despite the settlement the details of what was sought for example, the “kind of information the target was looking at or uploading — such as animal rights information or Muslim literature” were kept secret. There may be reason for such secrecy. Still, when Congressional audits show that “hundreds of thousands of NSLs” have been issued, the use has not been tracked, the FBI “can only estimate how many NSLs it has issued,” each time an NSL has been challenged, it has lost (only three times according to the article), but one needs the help of a major public interest law group to fight the subpoena, something is wrong.

[Read more →]

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Harvard, Fair Harvard

May 8th, 2008 · Posted by Mike Madison · 8 Comments · Permalink
Categories: Academia · Ideas · Law & Technology · Law School

Via Tim Armstrong at Info/Law, I learned today that the Harvard Law School faculty voted to create an online open access repository of their scholarship.

To me, the vastly more interesting and provocative part of Tim’s post is a news item that I missed 10 days ago:  Berkman Center Executive Director John Palfrey will become the new Director of the Harvard Law Library (the appointment is actually “Vice Dean of Library and Information Resources“).

Why interesting and provocative?  Not because John is a very smart and dynamic guy .  In fact, because John is a very smart and dynamic guy, the appointment seems almost expected and ordinary — and congrats to him and Harvard!

Instead, the appointment is Interesting and provocative because John lacks a graduate degree in librarianship, library science, or information science.  (His predecessor, the long-serving Harry Martin, received an MLS from — the University of Pittsburgh!)  He has an HLS JD and a Cambridge M.Phil; he’s a very well-trained lawyer and legal scholar who has been immersed in information policy for many years. 

Does this mean anything?  Michael Froomkin wrote recently about whether it takes an academic to lead a law school.  Answering Michael’s question: I think that it does, not because academics have some unique skill set, but because the lack of an academic pedigree means that winning acceptance inside the school and the university may be unusually complicated and time-consuming.  (Witness the drama unfolding in Morgantown.)  Does it take a librarian to lead a library? 

Harvard thinks not. I’m guessing that John Palfrey persuaded Elena Kagan, the HLS Dean, that the substantive and methodological challenges that librarians confront these days are not significantly different than the substantive and methodological challenges that any manager of a complex information environment confronts.  Not anyone can manage the Harvard Law Library, but there may no longer be anything distinctively “library-ish” about the position.

Is Harvard right?  And if it is, will other schools and universities agree?

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Don’t Even Think About It: Negative Ad Words and Trademark Injunctions

May 6th, 2008 · Posted by Deven Desai · No Comments · Permalink
Categories: Law & Technology

A U.S. District Judge has enjoined a defendant from using a term for its business. That is not an unusual result. The one part of the order that may be of note is that the defendant is not allowed to purchase ad words using the plaintiff’s mark and the defendant must use negative adwords as well on search engines. Here is the pertinent language:

[Defendant is enjoined and restrained] from purchasing or using any form of advertising including keywords or “adwords” in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term “ORION” as negative keywords or negative adwords in any internet advertising purchased or used.

So here the mark is Orion. The defendant has been found to have infringed. The normal range of prohibited future activities is in place. But in addition, the defendant must take steps to prevent its appearance on a search engine results page when someone is looking for the plaintiff’s services. The court explains:

For purposes of this court order, a “negative keyword” or “negative adword” shall mean a
special kind of advertiser keyword matching option that allows an advertiser to prevent its advertisement from appearing when the specific terms are a part of a given user’s internet search or search string. It does not infer that the Defendant may use the specified negative keywords or adwords for any other purpose.

Now it seems the defendant was rather blatantly trying to use the plaintiff’s mark (counsel appeared but an answer was not filed). Yet, if the plaintiff’s mark and business match the litany of strength that the court offers (“ranked fourth in the nation among community bank holding companies and thrifts for outstanding performance,” “In June of 2006, Plaintiff was ranked as Florida’s Top Performing Community Bank for the second consecutive year, and was also ranked among the nation’s top performing bank holding companies,” “In June of this year, American Bankers Association’s (ABA) Banking Journal, ranked Orion Bancorp, Inc., fifth in the nation for outstanding financial performance”), wouldn’t a competitor want to be able to appear when someone searched for the premiere bank of the region? Shouldn’t that be allowed?

Given the facts of this case, the defendant may have behaved so badly that such an option is not merited. Still as a general matter, one might infringe but still be allowed to compete. Requiring active steps so that one’s business does not appear in a search result goes a bit far. In a world of virtual shopping, attention is a key lever in building business. Many of the facts of this case point to infringement. But the negative adword limitation essentially stops someone from competing online. The concern is that the smaller player will barely be able, if at all, to get in someone’s face and say yes the larger company exists but so do we.

As larger matter, the Dinwoodie/Janis Dogan/Lemley use debate may inform this issue. Still, if I remember correctly, Dinwoodie and Janis think comparative advertising is a good thing but that use is not the way to protect it. Rather they offer that better injunctions will address the contextual issues. Rebecca Tushnet’s Gone in 60 Milliseconds: Trademark Law and Cognitive Science also merits a read as it questions harms based on association which seems to be part of the negative adwords solution here.

cross-posted at Concurring Opinions

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Showdown at West Virginia University

May 6th, 2008 · Posted by Mike Madison · 1 Comment · Permalink
Categories: Law & Technology

When the national press focuses on academic questions at universities these days, the spotlight often shines on plagiarism.  But there is a genuine academic scandal brewing in Morgantown, at West Virginia University, and the national media has only barely noticed.  What’s worse, from what I can tell, outside of West Virginia itself the blogosphere has taken a pass.

But it shouldn’t.

Taking most recent matters first, the Faculty Senate at WVU voted overwhemingly yesterday to ask that the university’s Board ask President Mike Garrison to resign if he does not resign voluntarily.

Why?  President Garrison is being asked to take responsibility for the university’s awarding an MBA retrospectively to a politically-connected former student who apparently dropped out of the business school’s program a decade ago, after completing substantially less than all of the program.   

The President himself was appointed at least in part due to his political connections, and many in Morgantown apparently smell his complicity, if not his direct participation, in this subversion of the process by which degrees are awarded.  Before his appointment, President Garrison was a practicing lawyer in West Virginia.  (Garrison’s law degree and undergraduate degree were both earned at WVU.) 

The Pittsburgh Post-Gazette’s own Woodward and Bernstein, Patricia Sabatini and Len Boselovic, have been pursuing this story relentlessly since last Fall.  The former student was appointed to a high-level corporate position in the Pittsburgh suburbs.  A pro forma call to the university’s Registrar to confirm her academic records turned up some puzzling discrepancies. 

The paper’s initial account of the mystery was published in December 2007.  After denials and stonewalling by the university, an independent committee appointed by the Provost and the Faculty Senate issued a blistering report on the matter roughly two weeks ago.  The degree was rescinded, and both the Dean of the business school and the Provost of the University have resigned.  (My Pitt colleague John Burkoff was a member of the committee.)

What will happen in the wake of the Senate vote?  There is clearly more drama to come.  According to this morning’s Post-Gazette:

Law professor and faculty senate member Patrick McGinley said his colleagues at WVU’s law school expressed to him two “defining moments” that fed their determination to seek Mr. Garrison’s resignation.

The first was board chairman Steve Goodwin’s comments to the student newspaper Friday, which Mr. McGinley said displayed contempt for the faculty.

State law puts the board, not the faculty senate, in charge of the university, and “if they don’t like that, the only way to change that is to change the law,” the paper quoted Mr. Goodwin as saying.

The second was Mr. Garrison’s response to questions during a television interview over the weekend in which he appeared to reject the findings of the investigative panel.

Western Pennsylvanians like to hype the athletic rivalry between Pitt and WVU, and they often like to look down on West Virginians.  But there is no schadenfreude in Pittsburgh today.  Every Pittsburgher I’ve talked with about the episode is saddened by it.  These are dark and tragic days for a university that deserves much better.

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IP Without IP?

May 5th, 2008 · Posted by Mike Madison · 1 Comment · Permalink
Categories: Law & Technology

Rebecca Tushnet’s report on the recent IP Without IP Colloquium (Part I, Part II, Part III, and Part IV) is as interesting for its method as for its content. 

The Colloquium itself was a non-public affair at the Radcliff Institute for Advanced Study.  It was described at the Center’s site as follows:

IP without IP
Exploratory Seminar; Humanities, Social Sciences, and Science

Mario Biagioli (History of Science, Harvard University)
Rochelle Dreyfuss (Law, New York University School of Law)

In the last ten years or so, intellectual property has gone from being a little-known part of the law to becoming a household term. The ubiquity of intellectual property in popular discourse has led to an intriguing (if problematic) transformation of its cultural meaning. Intellectual property remains a technical (and expanding) branch of the law, but it has also become a cultural emblem—a catch-all category standing for an extraordinary range of practices within the new information society. The very concept of knowledge (including notions of traditional knowledge and cultural heritage) have been often recast into IP—a category that is often much more extensive than (and sometimes even incongruous with) the actual domain of intellectual property law.

Taking the cultural reification of the concept of intellectual property as its starting point, “IP without IP” brings together scholars from legal studies, anthropology, economics, history of science, literature, business, and science to analyze the many ways in which intellectual property concerns are in fact often managed not through the tools provided by intellectual property law, but through specific relations between people, professional customs, etc. Through a range of empirical case studies, we want to question the conceptualization of IP as a form of property applicable to (or projectable on) an ever-widening range of products and claims by showing how access to and protection of knowledge and cultural productions can be achieved (and has been achieved) without resorting to the law. We do not present these practices as opposed to legally codified IP, but as elements of a landscape of social practices that include IP law and from which it could draw to reinvent itself in the face of mounting and widespread criticism.

That sort of discussion sounds familiar

Rebecca’s report makes clear that the dialogue was fast-paced and sophisticated, and so much so that only snippets of themes really come through in her blogging.  Among them:  There is a lot of fascinating work being done in IP-related domains by anthropologists, sociologists, historians of science, and students of organizational behavior.  And Rebecca doesn’t list or identify the Colloquium participants, which creates a challenge if you don’t already know who is who and why certain points are being made.  Those with an inside-baseball view of these disciplines read and benefit from an uncommonly casual “so he/she was there too! and isn’t that neat” flavor to the account. 

Rebecca’s meta-example of IP [mostly] Without IP suggests some of the strengths of describing a creative environment without being tied to a formal model (in this case, presentation-followed-by-comments-and-Q&A), and some of the weaknesses of that approach.  “Thick” descriptions of this sort can be inaccessible to outsiders, and at times they leave even insiders wanting more structure.  Certainly, as most of the Colloquium conversation seems to agree, interdisciplinary case studies are the future of IP scholarship, but case studies of what, and to what end?

There is certainly more to come on this theme.  Stay tuned.

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Computer History Museum and the Babbage Engine

May 5th, 2008 · Posted by Deven Desai · 1 Comment · Permalink
Categories: Just for Fun · Law & Technology

The Computer History Museum “is dedicated to the preservation and celebration of computing history.” A current exhibit is a working version of Charles Babbage’s difference engine which is seen as a 19th Century computer design that was never built for a host of reasons from personality to claims that it could not be built with the technology of the time. The man and his machine are described here. One man, Doron Swade, has not only chronicled Babbage’s life of invention, difficulty in working with other people, and on-going quest for a computing machine but built one of the computing machines using methods available in Babbage’s era.

The machine was built, and the story of Nathan Myhrvold’s desire to have one built for him and shipped to the United States is here. Luckily the machine is on display at the Computer History Museum until May, 2009. Here is a video about the machine and the exhibit.

cross-posted at Concurring Opinions

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JZ’s New Book on SSRN

May 1st, 2008 · Posted by Greg Lastowka · 5 Comments · Permalink
Categories: Academia · Events

Personally, I bought the hard copy (I like bound books more than stacks of copy paper), but kudos go out to Jon Zittrain for putting his brand new hot-off-the-press book on SSRN. I’ve made the point before that many authors like reaching the public as much as making money- and often these aren’t mutually exclusive propositions, but, to take Jon’s own idiosyncratic way of characterizing the information sharing trend, there is some kind of H.R. Pufnstuf vibe (again-that’s him, not me) about this trend toward book + free. In the future — scratch that — in the present, we’re able to build a pretty darn good library of books by just hitting the download button.

Maybe copyright law should adapt a bit?

Sigh.  As if.

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Technology Policy ‘08

April 30th, 2008 · Posted by Frank Pasquale · No Comments · Permalink
Categories: Law & Technology

I just wanted to announce that the preliminary program for the 2008 Computers, Freedom, and Privacy Conference (in New Haven, CT) has been announced. The theme this year is “Technology Policy ‘08,” and it includes several topical panels for the election year:

Presidential Technology Policy: Priorities for the Next Executive

States as Incubators of Change
Activism and Education Using Social Networks
Network Neutrality: Beyond the Slogans

Discounted early bird registration closes this Friday, but general registration is open until 5/23. The conference is also looking for bloggers!

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Noted Elsewhere

April 30th, 2008 · Posted by Mike Madison · No Comments · Permalink
Categories: Ideas

Posts by others that caught my eye recently:

Rebecca Tushnet summarizes a very interesting public discussion on Bridgeman v. Corel, the district court opinion by Judge Kaplan, now nine years old, that holds that copyright does not attach to especially good photographic reproductions of public domain works of fine art.

Siva Vaidhyanathan tackles the rhetorics of “open” in the context of the Google Library project. 

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Equitable Servitudes in Packaging

April 30th, 2008 · Posted by Mike Madison · 2 Comments · Permalink
Categories: Ideas · Just for Fun · Law & Technology

With so many interesting information law and policy topics floating around the blogosphere, you would think that something more, well, substantial, would catch my eye.  But instead I’ve been hooked by cardboard boxes.

Out of Denver yesterday came the news that a man was threatened with a violation of federal law for recycling U.S. Postal Service “Priority Mail” boxes. [Read more →]

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Science, Math, and the Essence of All Things

April 30th, 2008 · Posted by Deven Desai · No Comments · Permalink
Categories: Law & Technology

Last week Thomas Jefferson had Professor James Hackney of Northeastern University School of Law as our last speaker in our colloquium series. His talk focused on his book, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (featured at this past year’s AALS conference) and about his next steps on this topic. The book traces the way that science lurks behind the law and how law and economics has used the appearance of a scientific approach to justify its claims on jurisprudence. As the book’s site puts it “Hackney demonstrates how legal-economic thought has been affected by the prevailing philosophical ideas about objectivity, which have in turn evolved in response to groundbreaking scientific discoveries.” Now Science News reports that the June issue of the European Mathematical Society Newsletter has a debate over whether “new mathematical truths discovered or invented?” (annoyingly, the link to the Newsletter does not have the recent issue available as yet)

According to ScienceNews, one of the participants, Rueben Hersh of the University of New Mexico, “rejects the Platonic view, arguing instead that mathematics is a product of human culture, not fundamentally different from other human creations like music or law or money.” So as Hackney’s work makes a case that law and economics is not as objective as it seems, this group of articles about math suggests that even the science (or here related math) that provides the cover Hackney describes, lacks the objectivity it claims. The recent work on governance by Robert Ahdieh, Orly Lobel, and Mike Madison among others may be a response to the idea that law is not so objective. Rather it may be that the law seeks objectivity but faces complex and less than ideal situations. Governance ideas may fill that gap. We shall see.

cross-posted at Concurring Opinions

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Thoughts on Scott Hemphill’s Network Neutrality paper

April 29th, 2008 · Posted by Brett Frischmann · No Comments · Permalink
Categories: Law & Technology

Scott Hemphill has posted an excellent, thoughtful paper on network neutrality. I’ll post the abstract along with a few comments on the paper below the fold: [Read more →]

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Remember Invisible Ink? How About Vanishing Ink?

April 29th, 2008 · Posted by Deven Desai · 1 Comment · Permalink
Categories: Law & Technology

CNET reports that PARC (formerly Xerox Parc) the folks who have had a large hand in “laser printing, distributed computing and Ethernet, the graphical user interface (GUI), object-oriented programming, and ubiquitous computing” have invented vanishing ink. For those interested in the environmental side of things, it seems that making ONE SHEET of paper requires “about 204,000 joules” or “about the same amount of power required to run a 60-watt light bulb for an hour.” Recycling the paper requires “about 114,000 joules.” Printing on either new or recycled paper takes about another 2,000 joules.

If PARC’s technology is successful, the ink fades out in 16 to 24 hours. One can then reuse the paper. If one wants to run the paper through the printer before the ink has vanished, the printer can erase it. Here’s the key: erasing and printing requires about 1,000 joules; so half the energy of printing in general. Using the vanishing ink to print on blank paper requires only 100 joules.

So think about the menus, memos, maps, etc. that we use and then discard or recycle depending on whether a recycle bin is available. Now the paper can be reused. The energy cost of using obtaining a usable, blank paper is incurred once. And if one waits to print, the energy cost is even less. There is, however, a possible catch here: “The paper and the printer will be a little bit more expensive than their conventional counterparts.” So what is a little bit? Who knows? Given how expensive printing is right now this whole thing could simply shift money from energy to toner.

Still there are some things about PARC’s development that make it interesting from a law and policy perspective as well. PARC’s success stories are famous in part because PARC was not so great at making money on them (that GUI you use is one of them). Still, Xerox’s committment to a think tank where people ponder the future and pursue basic science “to create ‘the architecture of information’” seems to have paid off. In its current incarnation (it is now a whooly owned subsidiary of Xerox), PARC seems to be a bit more focused on licensing and the like. Yet, it had tremendous success before that focus was in place. So are the incentives that are often offered to explain innovation really the full story? PARC’s history seems to be an example of a more realistic approach. The business managers at Xerox set up a place which fostered an increase in the number of possible innovations. In some cases, they capitalized on them and in some they did not.

Research purely directed at capitalizing on an invention is limited research. It can of course yield great returns. Still in the words of William Goldman, “Nobody knows anything.” He said that to explain the lie that movie executives know what will be hit. So too for truly ground breaking or “think outside the box” work. One might argue that the innovator who runs against the current cool way of thinking and doing will naturally be missed by the mainstream because the work is so new that many don’t see or understand the work for what it is. (I think Kuhn goes into this idea but someone correct me if I am wrong please). As Frischmann and Lemley have investigated in their piece Spillovers (Polk Wagner has looked at the idea as well and both draw on Kenneth Arrow’s work), we should think about creating environments that generate spillovers.

So PARC has recently focused on clean tech and energy. This move did not occur in a vaccuum. Society indicated an interest in energy and the environment. PARC has begun to think about the issue and will of course try to make some money from its work. Still, it may be that PARC will stay with its system of setting a general goal and seeing where the scientists go with it. If Xerox can make money in house it will. If Xerox is better off licensing the technology, it will do that. The question is what will happen if the technology has no clear, immediate purpose? Will it rot somewhere? Will PARC tag it with a patent and try and stop the next Apple from taking something that PARC and/or Xerox don’t know how to use? That move would be a way to address the problem of not seeing where the technology applies (remember nobody knows anything), but in a way that says its our ball and no gets to play. All of which brings me the question of time. Perhaps it is the best lever for intellectual property. By keeping the duration of an IP right short, one can at least ensure that works are available for others to play with. Let enough people tinker and something really great may come out like Wikipedia. Keep information locked down, and the innovative cycle is more likely to be stunted. Put differently, as the rest of the world enters the innovation game, maintaining a more nimble system that generates large amounts of creation may be just as, if not more, important than the intellectual property claims that will go with that creation.

Cross-posted at Concurring Opinions

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New Paper on Cultural Models

April 23rd, 2008 · Posted by Mike Madison · No Comments · Permalink
Categories: Ideas · Law & Technology

Shameless self-promotion alert:  I’ve just posted a short paper on SSRN, titled “Intellectual Property and Americana, or Why IP Gets the Blues.” (Download it here.) It’s just been published in a symposium issue of the Fordham Intellectual Property Media & Entertainment Law Journal, along with pieces by Mark Lemley, Dan Burk, Rob Frieden, and Tal Zarsky.

The abstract:

This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky Horror Picture Show; the town band of Chatham, Massachusetts; and the musical form known as the blues. It concludes that that the relationship between cultural persistence and law is more complex than is generally understood. The essay applies some of that more complex understanding to contemporary problems involving business models, notably the copyright dispute involving Google’s Book Search program.

The paper is part of a much larger project investigating the role of formal law in cultural patterns and institutions that generate and rely on information. I’m playing with various ways of looking through the wrong end of the telescope. Instead of taking a certain position in social context and asking questions about what form the law might take, I’m trying to assume a certain position in law and asking questions about what forms society and culture might take. (The two positions, of course, are not independent of one another.) Some of the project collects and relies on my earlier work on “things,” “places,” and “groups.”

I’m working at different levels simultaneously. This “Americana” paper is mostly anecdotal.  With Brett Frischmann and Kathy Strandburg, I am looking at analytic structures, constructing a mode of investigating cultural resource pools — or constructed “commons” — that borrows from existing methods of investigating natural resource pools. At the most theoretic level, over the last year I completed and workshopped a characteristically complex manuscript titled “Information Governance” (not on SSRN, yet) that takes a stab at excavating some of the conceptual foundations that are buried deeply beneath the “code” that is law, the “wealth” within networks, and cultural environmentalism after a decade.  Reactions are, of course, welcome.

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The Webbies are Coming: Vote Today

April 17th, 2008 · Posted by Mike Madison · 2 Comments · Permalink
Categories: Academia · Just for Fun

As many people know, there is an election brewing in Pennsylvania.  As fewer people know, that election involves the annual awards known as “The Webbies,” sometimes known — semi-seriously at least, and undoubtedly without the blessing of AMPAS — as the Oscars of the Internet.

My colleague Bernard Hibbitts is the Editor in Chief and publisher of JURIST, the world’s first, oldest, and still leading one-stop shop for legal news.  Again this year, JURIST has been nominated for a Webby Award as Best Law website for 2008, and that means that it is also eligible for a Webby People’s Voice Award, for which we all vote.  Every vote counts (I assume), so vote — here.   Please (click on the “Website” grouping, scroll down to “Society” and vote in the Law category).

Since I’ve written a bit about awards and prestige and their meaning in the legal academy, I have a pretty good idea of the stakes in this sort of thing.  No disrespect to the JURIST team, but we all know how much this matters, which is to say, not much.   Winning a Webby, just like winning a Pulitzer or a Nobel, or an Academy Award, is largely meaningless — the rules are unclear, voting procedures flawed.  The award might be largely symbolic, pointless, or betrayed by time or fashion.  “You Light Up My Life” once won a People’s Choice award for best new song.

Is cultural criticism beside the point here?  A. Bartlett Giamatti, back when he was still a beloved scholar of Renaissance poetry and president of Yale, gave a speech that defended the sweetness of winning itself.  Speaking about the virtues of athletics as part of an educational program, Bart read the ancient Greeks for the proposition that competition in athletics was a form of knowledge; sport’s combination of community and liberation (play within rules) was distilled in the result: victory.  This was in the context of a speech circa 1980 defending intercollegiate athletic programs at Ivy League colleges; I can’t find a full citation or original text.  (Can you?)  As Jackie Gleason was fond of saying, “How sweet it is!”

Rah.

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Against Cyberproperty

April 15th, 2008 · Posted by Greg Lastowka · No Comments · Permalink
Categories: Law & Technology

This post is a plug for an article that I’ve recently completed with my colleague Michael Carrier at Rutgers-Camden. The article is here. It is very short (for a law review article — 36 pages) and is our best effort to decisively end to the doctrine of “cyberproperty,” a.k.a. “cybertrespass,” a.k.a. the Internet variant of trespass to chattel doctrine.

Trespass to chattel is a traditional property tort doctrine that protects personal (chattel) property from damages short of conversion. So, e.g., denting the fender of someone’s car might constitute a trespass to chattel. In America, the tort has always required proof of actual damage in order to state a claim. So you can sue someone for denting your car, but you can’t sue someone for touching it or shining a flashlight on it (at least not under a trespass to chattel theory).

However, in the past decade, state and federal courts have created a new “cyberproperty” doctrine of trespass to chattel that essentially waives the traditional damage requirement and enables courts to enjoin electronic contact over computer networks without any evidence of damage. If you think about it at all, modifying the law for networked contact this way is absolutely bizarre — networks, unlike traditional chattels, only function through contact with other machines. As Dan Burk once said in his early and influential attack on the doctrine, the modified TTC doctrine would seem to permit a person to sue a television broadcaster for sending unwelcome advertisements to a home tv set. Yet cyberproperty has had several vigorous advocates, including, perhaps most notably and vociferously, Richard Epstein.

I have some personal history with this rather strange doctrine. A few years ago, when I was a litigator, I had the opportunity (with Bill McSwain) to represent Ken Hamidi in his struggle to communicate with the employees at Intel. Intel sued Hamidi in California state court, claiming that it had a right to enjoin Ken from “trespass” on its mail server (a.k.a. sending email messages to its employees). Amazingly, the trial court granted the relief to Intel and, on appeal, the California Court of Appeal again sided with Intel, rejecting Hamidi’s First Amendment defense.

To make a long story short, when the California Supreme Court took up the case, Ken prevailed (over some spirited dissents). Today, in California, the Internet version of trespass to chattel is something close to the traditional version of trespass to chattel — proof of actual damage to the chattel (the computer) is required. Since state common law governs the tort doctrine, Hamidi essentially overrules the prior California state and federal court TTC decisions, most notably the decision in eBay v. Bidder’s Edge (insofar as it conflicts with Hamidi).

Yet even post-Hamidi, cybertrespass has survived. In addition to making occassional affirmative appearances in recorded opinions (e.g. Sotelo v. DirectRevenue & Sherwood 48 Assoc. v. Sony Corp., 76 Fed. Appx. 389 (2d Cir. 2003)), I’ve seen cybertrespass claims showing up quite frequently in pleadings. Just a couple weeks ago, the Legal Intelligencer even carried an article that suggested cyberproperty lawsuits would be the next big thing. I certainly hope not.

The goal of this article is to explain succinctly why cyberproperty doctrine makes no sense. In short, Mike and I think that it is a ridiculously unbalanced property right, that no existing property theories can justify it, and that the existing prohibitions against spam, electronic invasion, and copyright infringement are superior to an unchecked common law right that seriously threatens competition and free speech.

We’re hoping some judges and clerks adjudicating these claims might actually take a look at this before they decide their next cyberproperty case. Hence the brevity and hence this plug.

Here’s the link again.

p.s. Since Mike is the proprietor of this blog, let me also put in a plug for his excellent article on TTC and related issues — Rights of Access and the Shape of the Internet.

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Trademark use, Pepsi, and new technology

April 15th, 2008 · Posted by Greg Lastowka · No Comments · Permalink
Categories: Law & Technology

In case anyone did not catch it, Rebecca Tushnet has a very nice recap of a recent conference in Iowa on the subject of trademark use. I’m very grateful to Rebecca for all the conference blogging she’s done over the past few years — it’s been wonderful to be a virtual attendee at so many events and I think having an archive of these is an incredible service to the IP community.

Also, Eric Goldman and James Grimmelmann are in disagreement about the “ask for Coke and get handed Pepsi” infringement example that has been a favorite of both courts and commentators on trademark law for some time. Eric, a proponent of use doctrine, thinks it is “distracting” and we should “retire” it, James disagrees. As a skeptic of the recent applications of trademark use doctrine (at least in the Internet context), I’m with James — preventing passing off is what trademark law has always been about, even when that passing off is done silently.

Also, I just wanted to agree with Eric (and with James agreeing with Eric) that some kind of legislative solution to the current “use” doctrine might be the best way out of this current case law confusion. It strikes me that, with very few exceptions, courts have found themselves grappling with trademark use primarily due to policy and equity concerns raised by new technologies, e.g., domain names, search engines, pop-ups, and even 1-800-trademarks. When trademark law collided with domain names, we saw a number of legislative responses, most importantly the amendment of the Lanham Act to include the ACPA. Given that trademark law is now in collision with search, I imagine there might be a legislative response to this as well.

And I hope if things go that way, we won’t see Congress giving a rubber stamp to INTA’s language, but rather see legislation that balances the interests of INTA, Google, and the public. Wishful thinking perhaps, but hope springs eternal.

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Alcott Update

April 15th, 2008 · Posted by Mike Madison · 2 Comments · Permalink
Categories: Law & Technology

A year and a half ago, I posted a brief note on a non-law, non-IP topic:  My friend John Matteson, a recovering lawyer now teaching English at John Jay College, had just published a well-received biography of Louisa May Alcott and her father, Bronson Alcott.  It’s called “Eden’s Outcasts”; buy the book here.

The Madisonian mobblog forced me to delay returning to the topic, but here I am at last.  Earlier this month, John and his book were awarded the 2008 Pulitzer Prize for biography or autobiography.  My earlier post alluded briefly to our long acquaintance–we met as seventh graders–and now friendship.  Two weeks ago, I shared a delightful dinner in New York with John and his family; two days later, the award was announced.  As John told Harvard Law School (his alma mater), “I’m beside myself with joy.”  As am I.  Congratulations!

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A Fair Use Lexicon

April 14th, 2008 · Posted by Mike Madison · 1 Comment · Permalink
Categories: Just for Fun · Law & Technology

Even the person who gets the news from CNN.com (which is today, much of American humanity) knows that the much-anticipated copyright trial of the young century started today in New York:  J.K. Rowling and all things Harry Potter vs. Steve Vander Ark, publisher of The Harry Potter Lexicon, online here and, the federal courts willing, coming to a bookstore eventually.  There are many things that could be said about this case; I’ll say only the one thing that I shared this morning with my Copyright Law students:

Over the last decade, copyright owners in many industries dreaded and resisted the prospect that the copying machine that we call “the Internet” might destroy their business models.  Rowling v. RDR Books (the formal title of the Harry Potter case) presents the relatively uncommon situation in which the Internet (i.e., “free”) version of the alleged infringement was unobjectionable; hackles were raised and claims were filed only when what was merely digital became (or threatened to become) analog.  When bits become books, one might say, the fur flew.

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a late post on legal education

April 14th, 2008 · Posted by Brett Frischmann · No Comments · Permalink
Categories: A Mobblog on Legal Education · Law & Technology

Last week, I was busy and so I tried to follow the discussion; in fact, I had a few discussions in “real space” with colleagues about some of the posts. But I did not post anything; so here goes, a little late.

It’s been a fantastic discussion on a wide array of issues. Deven noted in his concluding post that the idea was “many people with many views would mix it up and push the limits of what we know and think about legal education.” Well, I think that was what we got. And that idea itself seems to capture my basic thought on the future of legal education: diversity in approaches. [Read more →]

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