Hypothesis: the trademark and possibly copyright cases in each country will show a bias for the category where the most spending is. It may not appear until a certain threshold is crossed such as percent of overall discretionary spending or per capita spending. The idea is that when individuals are spending discretionary income in large enough amounts, the companies selling in those markets will use courts and the legislature to prop up their industry. In addition, courts and legislatures will be biased into thinking that X industry is important, valuable, deserves more protection, threatened by competitors (but let’s call them thieves), and so on.

No Tags

Pasta & Vinegar. Cognitive scientist Nicolas Nova’s research blog.  Very interesting stuff.

Google Blogoscoped. I try to keep up, given that Scott McCloud sometimes sends important comic strips there.  This is a must read for serious Google watchers.

Lines and Colors.  Daily dose of illustration.

Dark Roasted Blend. Daily dose of photography.  (This has replaced Boing Boing for me.)

Clive Thompson on tumblr. I actually liked his lapsed blog better, but his tumblr feed has its own appeal.  Update: So, one day after I mention the  6-month hiatus, Clive has his blog back up in business.  Thanks, Clive, I will never doubt again.

Generally, I tend to keep a relevant list of 20-30 legal and news-related RSS feeds on tap that are directly tied to whatever I’m researching (for the moment, that would trademark and virtual law).

But beyond that, I find I read blogs a lot less now than I used to read them a couple years ago.  It isn’t that there isn’t good stuff out there–the blogosphere is actually a lot more interesting today than it was a few years ago, I think.  It’s that reading books seems to offer better returns in the long run.

No Tags

Later argued?  Indeed: The Brewers took their case to Major League Baseball, whose Scoring Review Committee upheld the official scorer under the Official Rules of Major League Baseball, and Rule 10.01(a), to be precise:

The League President, after considering the evidence submitted and any other evidence he wishes to consider, may request that the official scorer change a judgment call or, if the League President concludes that the judgment of the official scorer had been clearly erroneous, may order a change in a judgment call.

Clearly erroneous?  That legal-sounding phrase got me thinking about standards of review and about the variety of standards that baseball has invested itself with when resolving disputes.  When does making the right call trump other interests in finality, and who should make those calls?

By long-standing tradition, a lot of on-field disputes are resolved by the players themselves.  Baseball is among the most norm-intensive sports in this respect.  Don’t show up the other team’s pitcher, lest you have a fastball aimed at (or near) your head; crowd the plate, get brushed back; etc.

The umpires, of course, are the arbiters of last resort when it comes to balls and strikes (in fact, arguing balls and strikes is often assumed to be the quickest way for a manager to get ejected), whether a batter or runner is out or safe, and whether a run was scored.  Unlike official scoring decisions, which are reviewable “judgment calls,” at least in theory these are unreviewable questions of right and wrong.

Juxtaposing those two standards exposes an obvious paradox.  Major League Baseball recently dipped its toes into territory already explored in greater depth by the National Football League, the National Hockey League, and professional tennis, among others.  Umpires’ judgment as to fair balls and foul balls, formerly part of the umpires’ exclusive domain, now fall into a different category.  Baseball now has a limited form of “instant” replay, video review of disputed plays, which is applicable only to disputed home run calls.  According to a Major League Baseball press release, the umpire crew chief (usually the senior member of the umpire crew at the game) will decide whether to review a tape of a questionable call, and the crew chief — not the umpire who made the call — will decide whether to reverse a decision. 

Here is the most interesting sentence from MLB’s release:

The decision to reverse a call will be at the sole discretion of the crew chief. The standard used by the crew chief when reviewing a play will be whether there is clear and convincing evidence that the umpire’s decision on the field was incorrect and should be reversed.

Once instant replay review is invoked, whether or not the call has been reversed, neither club will be permitted to further argue the decision. A player, manager or coach who continues to argue will be treated in the same manner as one who argues balls and strikes.

So, instant replay will support reversing a call if the video shows “clear and convincing evidence” of error.  Presumably, MLB is trying to avoid the quagmire created by the National Football League’s replay policy, which I believe currently requires “incontroverible visual evidence” of error. 

Set aside the semantic and epistemological questions implicit in both standards (but which are, I suspect, pretty interesting in themselves!), note that the umpire’s decision on review remains, itself, essentially unreviewable.  Arguing the call, in fact, is grounds for ejection!  That’s finality for you.

Technorati Tags: instant replay

Interesting Times, by George Packer. From Iraq to St. Paul, consistently insightful and provocative.

This Blog Sits at the Intersection of Anthropology and Economics, by Grant McCracken. It’s all about making and managing meaning.

Dan Cohen’s Digital Humanities Blog. The title explains.

Null Space. All the data you can eat, so to speak, on Pittsburgh’s economic woes, from my Pitt colleague Chris Briem.

Blog-Lebo. A little unfair, this one is, because it’s mine. This is the oldest and by a wide margin most widely-read community blog in my town. Of all my blogging ventures, this one is by far the most interesting (in many different senses), and it probably has had the greatest impact on a community.

I’m supposed to tag five more legal bloggers. How about: Bill McGeveran, Lisa Fairfax, Jonathan Zittrain, Jeff Lipshaw, and Dennis Crouch.

No Tags

The Weed Ales website

An earlier Slashfood report of the same news

No Tags

Public transportation authorities were not amused.  Were riders opting out of their cars (reducing traffic congestion and pollution), or were they opting out of the bus and subway system (and reducing the system’s income)?

Whether in music or software or transportation, as Benkler notes, these issues just won’t go away.  Naturally, entrepreneurs have found ways to commodify and commercialize casual carpooling, and naturally, the established business model empire is striking back:

From The (Toronto, Ontario) Star:

A Canadian Internet company that co-ordinates car sharing around the world could soon be shut out of Ontario if one of the province’s largest chartered-bus companies gets its way.

PickupPal Online Inc. was launched less than eight months ago by two Ontario entrepreneurs who thought car sharing, if it could be made easier through the Web, was a noble way to reduce traffic congestion and air pollution.

The service is like an Internet dating service for drivers, matching up people who are going to the same place at the same time – anywhere from concerts to sporting events to corporate functions. Special mapping software helps them find the best route.

But Peterborough-based Trentway-Wagar Inc. says PickupPal is breaking the law because it helps drivers collect money by offering strangers a ride. The bus company even hired a private investigator to test out the service, posing as someone who needed a ride from Toronto to Montreal and negotiating a fee of $60 with a driver travelling from Simcoe, Ont.

One might get kind of silly with the open source/ proprietary code analogy here, or with the file sharing/authorized downloading analogy.  But the analogy is apt.  The hook for the claim here seems to be that money is changing hands, but the real harm to the incumbent — if there is a harm — isn’t that PickupPal and its customers have got money flowing into them or among them, but that the incumbents are losing out. 

There is the supplemental argument that casual carpoolers aren’t licensed by public authorities and aren’t vetted for compliance with safety and other public regulations.  Allegedly, there is a public danger here that differentiates the case from the music/software situations (well, music, anyway; one could make the case for the safety/security implications of large-scale software installations).  As a former Bay Area casual carpooler, the same concern was omnipresent:  Who is this guy, anyway (in my experience, drivers were almost always men)?  Social norms controlled a lot of this:  If you didn’t like the look of the car or didn’t like the look of the driver — or if you got a tip or a nudge from a fellow would-be rider — you didn’t get in.  In my experience, “the look of the driver” covered things like the cleanliness and professional appearance of the car and the person, but undoubtedly other riders used other proxies.  Many riders were occasional drivers, and vice versa.  (A quick aside:  Has anyone studied racial/gender/ethnic/class/other bias in distributed peer production systems?)  In the Canadian situation above, the opt-out solution means that I’m skeptical of giving too much weight to the public safety argument.  But I’d like to know more about the issue.

Meanwhile, spin out the implications on your own.  Here’s one immediate thought, prompted by observing the RIAA in action against file sharing:  Will driving a vehicle in Ontario that is carrying three or more passengers be alleged to be presumptive evidence of illegal carpooling, and law enforcement authorities charged with a corresponding mandate to pull over said vehicle and arrest the driver?

No Tags

What would it take to infringe Arnie’s rights here?  Suppose, in other words, another company comes along and markets a bottled or canned beverage that it identifies as equal parts lemonade and iced tea.  No photo of Arnie on the packaging, and no signature (those would both cause trademark and/or right of publicity-privacy problems), but in block letters the package says:  “Arnold Palmer.  Lemonade and iced tea,” and that’s what the package contains.

Palmer’s company (which owns his rights) and licensees (which produce the AriZona Beverage version) sue the newcomer.  The accepted history of the drink known as an “Arnold Palmer” holds that Arnie himself came up with it, and is associated with it, but the drink itself is served in bars and restaurants across the country, and especially at golf and country clubs, and has been for years, without Palmer’s making much of a fuss.  I strongly suspect that lots of places even list the “Arnold Palmer” on their drink menus.  I was in a fish place in the Silicon Valley two weeks ago and someone in the group ordered an Arnold Palmer and got lemonade and iced tea — exactly as expected. 

Who wins?  Is “Arnold Palmer” generic for “lemonade and iced tea”?

Technorati Tags: arnold palmer

Bainbridge

Smith

In a nutshell, the point is captured here.  The Battle of Wits belongs on the screen, not in the classroom:

Vizzini:  Have you ever heard of Plato, Aristotle, Socrates?

Westley: Yes.

Vizzini: Morons.

Teach without using the Socratic Method?  Inconceivable!

Technorati Tags: socratic method, teaching, battle of wits

I think the FCC did an admirable job. This a very good first step. The FCC held that Comcast violated “federal Internet policy” embodied in various statutory provisions and perhaps best reflected in the FCC’s Policy Statement. In reaching this legal conclusion, which as noted below raises various jurisdictional questions, the FCC determined that Comcast’s selective/discriminatory interference with its customers use of peer-to-peer applications, like BitTorrent, was NOT reasonable network management and was NOT a reasonable means for managing congestion (for reasons that track the arguments Barbara van Schewick and I made in our article – application discrimination ends up being both overinclusive and underinclusive; there are nondiscriminatory means for managing congestion, etc.). In my opinion, these are important determinations that the FCC based on a strong record.

The FCC order defends the FCC’s assertion of jurisdiction, and this will certainly be the subject of an appeal. As I see it, the decision is important regardless of what happens in court: either it is upheld and serves as an important stepping stone, or it is struck down on jurisdictional grounds and serves as an important stepping stone for legislative action. For now, I’ll leave the jurisdictional issue aside and focus on three points that may be important.

First, the FCC expressly chose “to adjudicate disputes regarding federal Internet policy on a case-by-case basis” rather than rulemaking. In the order, the FCC offers three justifications for this approach: (1) the “Internet is a new medium, and traffic management questions like the one presented here are relatively novel.” (2) the Internet is “complex and variegated,” and as such, various providers use various management practices for various reasons; general rules might apply to all of these systems, the FCC acknowledges, but at this point and on this record, the FCC remains “uncertain that a one-size-fits-all approach is good policy” [though some widely adopted standards do apply across all of these systems, right?] (3) a case-by-case approach best “comports with congressional directives and Commission precedents.” I don’t follow the third argument exactly; the FCC brings out the mantra of a “vibrant and competitive free market” and a “minimal regulatory environment” as if those slogans point to case-by-case adjudication over rulemaking. I follow the rhetoric but not the logic.

I am glad the FCC took this step forward and adjudicated this case. But I have doubts about whether case-by-case adjudication will be enough to preserve an open, nondiscriminatory Internet infrastructure. I suspect that it will not be. The FCC found that discriminatory interference with a customer’s use of a p2p application for the alleged purpose of managing congestion is unreasonable, and this is an important determination. It could be read really broadly to suggest that discrimination based on the identity of a packet’s use (application) is unlawful; that is probably too much of a stretch; it could be read somewhat broadly to suggest that discrimination based on the identity of a packet’s use (application) for the purpose of congestion managment is unlawful (see above). Or it could be read narrowly, strictly limited to the facts of the Comcast dispute (i.e., to the use of reset packets to terminate p2p sessions for the purpose of congestion managment). Adopting a case-by-case adjudication approach tends to push toward the narrowest reading.

More broadly, “reasonable network management” still allows for considerable wiggle room and gaming. Reasonableness remains an elusive concept because it is not clear who (engineering community, law profs, industry professionals, FCC commissionsers, etc.) determines what is reasonable and according to what criteria (cost-benefit, technological community practices, other normative values? etc). In the order, the FCC relies heavily on experts in the field, which is certainly a good group to ask and rely on, but I suspect that experts will disagree about the reasonableness of many other practices, and, regardless, it is not clear to me that the technical experts are the appropriate community to decide what is a reasonable network management practice—a feasible practice, sure. A technically sound practice, sure. But it seems to me that reasonableness in this context must refer more broadly to the normative values at stake (and there are many) –anticompetitive blocking might be feasible, technically sound and commonly deployed, but nonetheless be unreasonable; same for censorship of unfriendly messages.

I suppose, for the reasons laid out in detail in various articles, I am still in favor of a pretty strong nondiscrimination rule: no discrimination in the treatment of packets on the basis of the identity of the use (application or content) or user (sender or recipient). [Query: Suppose we emphasize treatment or transport of packets and leave aside service providers that aggregate packets into files, such as mail servers or content caching servers. Does that make the rule more palatable and preserve the basis end-to-end feature?] In any event, this is a complicated issue, worthy of more attention than a blog post; so I’ll move on.

Second, on the issue of multiple normative values being at stake, the FCC emphasized the idea that an open Internet is normatively attractive, and they noted economic growth, innovation, user participation/activities, speech and other values. In footnote 203, the FCC rejects Time Warner Cable’s First Amendment arguments and notes that the commissioners believe “our action today furthers First Amendment values.” I think this remains an area that needs more attention.

Third, in its order, the FCC establishes first that Comcast engaged in an unreasonable practice and second that Comcast has very poor disclosure policy with respect to consumers. I was very glad to see the FCC distinguish these points and not conflate the reasonableness of discriminatory practices and the reasonableness (or completeness or accuracy) of Comcast’s disclosure. In the network neutrality debate, these issues are joined and muddled, on the belief that disclosure will be sufficient to enable competitive forces (educated consumers coupled with alternative service providers) to discipline network providers that practice unreasonable discrimination. While disclosure is necessary in this context, it is (probably) not sufficient.

Alright, there is plenty more to talk about, but I should sign off. Again, I think the FCC did a decent job.

Random note: Did anyone notice that the FCC declined to use the phrase “network neutrality” other than in citations?

No Tags

Lenz alleges that Universal misrepresented that it possessed ”a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” which the complainant has to possess under Section 512 of the DMCA in order to justify a lawful takedown notice, because Universal allegedly acted on behalf of Prince, who has said publicly that he wants to control all  uses of his work online.  Lenz argued that the “good faith belief” standard requires that the complainant consider possible fair use of the copyrighted work (use which would be authorized by the law, under Section 512).  Universal argued that as a matter of law, Section 512 does not require that copyright owners consider fair use before sending takedown notices.

Judge Fogel disagreed: 

The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review. As the Ninth Circuit observed in

Rossi, a full investigation to verify the accuracy of a claim of infringement is not required. Rossi, 391 F.3d at 1003-04.

The purpose of Section 512(f) is to prevent the abuse of takedown notices. If copyright owners are immune from liability by virtue of ownership alone, then to a large extent Section 512(f) is superfluous. As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms. A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.” Sen. Rep. No. 105-190 at 2 (1998).

Not only do I think that this is the right result, but I was particularly struck by this passage from earlier in the Order:

Universal also points out that the question of whether a particular use of copyrighted material constitutes fair use is a fact-intensive inquiry, and that it is difficult for copyright owners to predict whether a court eventually may rule in their favor. However, while these concerns are understandable, their actual impact likely is overstated. Although there may be cases in which such considerations will arise, there are likely to be few in which a copyright owner’s determination that a particular use is not fair use will meet the requisite standard of subjective bad faith required to prevail in an action for misrepresentation under 17 U.S.C. § 512(f).

It’s been said many times that fair use is too nuanced to support users, consumers, critics, journalists, teachers, documentarians, and scholars in their efforts to exercise legitimate rights to re-use copyrighted material, because those folks often can’t afford the time or money associated with consulting copyright counsel.  This is one of the few times I’ve seen the argument that fair use is so complicated that even a copyright owner, with full access to high-priced and highly-skilled IP counsel, can’t figure it out.  I know that corporate copyright owners often don’t engage counsel in this process; in fact, the very point of the argument is that they don’t want to and shouldn’t have to. 

I’ve written here and there that the core of fair use isn’t as complex or unpredictable as its critics argue, and the “Best Practices in Fair Use” projects at AU’s Center for Social Media in part reflect that point of view.  Fair use can’t be perfectly systematized, but those projects show that a coherent view of fair use can be made accessible to non-lawyers, and that kind of coherent view is what Universal Music et al. can and should rely on in the Section 512 takedown context.  If Judge Fogel’s ruling is reviewed by the Ninth Circuit, and if it stands up, there might be a market for “Best Practices” papers for content owners, as well as for consumers, re-creators, and gatekeepers.  In my view, that would bring some public coherence to fair use on additional sides of the issue, and that would be a good thing.

Technorati Tags: fair use, lenz, universal, prince, notice-and-takedown, Section 512, DMCA, youtube