PrawfsBlawg

Missing in Action: Innovation

America used technological innovation to attain victory in World War II and the Cold War.  Why haven't we done the same with the wars in Iraq and Afghanistan?

Jet engines, nuclear weapons, satellites and stealth planes all were born of an innovative frenzy unleashed in our drive to beat the Axis and the Soviet Union. You might think a similar technological surge might have occurred following the attacks of September 11, 2001. 

It didn't happen.

Since 9/11, we have seen the debut of the iPod; we have sent unmanned rovers to explore Mars, and we have perfected vitamin-sized capsules with tiny cameras and lights that we can swallow to investigate our intestines. Toyota has even started selling cars that parallel park themselves. 

The SWORDS robot made by Foster-Miller for the U.S. Army.

Yet we have invented almost nothing to fight Islamist extremists. I find that utterly mystifying.

For the duration of the Iraq War, the U.S. Army has been tinkering with small robots capable of heading into combat with a machine gun or a sniper rifle while remotely operated from a mile away. That sounds like something that should be a game changer. But sadly, the only significant use of these machines has been for IED disposal. The combat-ready versions have languished in a seemingly endless process of evaluation. 

A deployment of three of the combat-ready SWORD robots in 2008 ended with the Army withdrawing funding. The contractor is now trying to win back the Army with an enhanced version that can carry more payload and can do double duty with a manipulator arm for bomb disposal.

By now, we should have been sending whole armies of remote-controlled machines into insurgent-filled neighborhoods. What's our excuse? It cannot be that the technology is not feasible. That is just question begging. In a country rife with genius and research money, why haven't we made it feasible?

The paltry wartime innovation that has actually occurred since 2001 speaks more to opportunities lost than accomplishments achieved.

For instance, the most prominent technological advance employed in the wars in Afghanistan and Iraq is, without a doubt, the Predator drone aircraft. Indeed, the Predator would be a laudable example of wartime cleverness but for one thing: It started flying in 1995. 

Can you imagine what we could have made by now if we had kicked it into high gear after 9/11?

Perhaps the best example of a real wartime innovation in recent years is the MRAP – the Mine Resistant Ambush Protected utility vehicle. But ultimately, the MRAP is better example of sloth than success. Built with a v-shaped hull to deflect the blast of buried explosives, the MRAP showed a clear capacity to save soldiers' lives. Yet after years of ignoring pleas from commanders in the field, the Pentagon only made large-scale manufacture of the MRAP a priority in 2007. In 2008, in part thanks to the MRAPs, casualties from roadside bombs have dropped 88 percent. 

During World War II, the U.S. rushed newly designed bombers into the sky and manufactured them at the rate of a squadron a day. If we had put forth even a fraction of that effort with projects like the MRAP, we could have saved hundreds if not thousands of lives in Iraq. What is more, the increased effectiveness of our troops over those years in Iraq would have meant greater security for Iraqi civilians and consequently far less bloodshed among noncombatant Iraqi citizens. 

Despite the opportunities lost, it is not too late for military innovation to win, end, and prevent wars in the Middle East. The war in Iraq, though it has receded from recent headlines, is far from over. The situation for NATO troops in Afghanistan is, of course, growing worse. And Mahmoud Ahmadinejad is pushing Iran to be able to threaten Israel and other countries with nuclear weapons. 

Whatever leadership failure or bureaucratic tangle is responsible for our current torpor, we should not tolerate it. To win wars and keep the peace, we must come back to doing what America has long done best: Invent. 

Apple News

    There’s been lots of Apple news over the past few days:  Steve Jobs [probably] had a liver transplant a few months ago, at least according to the Wall Street Journal.  Apple has sold more than a million of its newest Iphone within the first three days of making it available.  And Apple stock is selling in the middle of its 52-week range.
   Closer to home, I’m about to use my PC to click and order a MacBook.  Although the Mac v. PC topic has been explored before on Prawfsblawg, I want to return to The Laptop Dilemma (with apologies to Michael Pollan’s The Omnivore’s Dilemma).  I’m caught in the Mac v. PC wars   Perhaps I’ve been captured (I’m certainly enraptured) by almost all of the ads in the almost 8 minute youtube video:    Hello, I’m a Mac.  And I’m a PC.   I love the ones where the PC is sick, but the Mac remains healthy; where the PC  and Mac each talk about the cool things they can do (the PC has a calculator!); and where the two of them see a therapist to discuss their differences.  So I’m probably going to use my educators’ discount, get a free Ipod Touch (not an Itouch, the indignant Apple salesperson informed me), and join the MacWorld.  But I’ll get Microsoft’s Office installed on my new laptop.  That way, I can keep my fingers and keyboard in both worlds, and continue to interface with my work  environment, in which I still need to open WordPerfect documents (apparently, Apple’s Pages can’t open WordPerfect documents yet).  

    Please let me know what you think.  It’s not too late to stop me, or to encourage me to pass go! 

Self-Archive Your Scholarship

Scholarly articles should be freely available on the internet – downloadable, without charge, at a click. And legal scholars should see that this happens for their articles.

Let’s face it. As academics, we are in an enviable position. Others pay us to engage in scholarship – largely to write law-review articles. Our efforts are funded by tuition-paying students, alumni benefactors, and in many cases, the taxpaying public. It seems to me that the least we owe in return is making our scholarly articles available to everyone who wants to see them.

I would go so far as to say that I think there is something of an ethical obligation to do this.

Take you, for instance. You just finished the perfect law-review article:

The International Intersection of Intellectual Property and Constitutional Liberties in the Sports and Entertainment Industries: Implications for Race, Gender, the Environment, and Animal Rights

You’ve finally achieved your life-goal of being able to hit “select all” on the ExpressO article-submission service. Now, are you really going to keep your carefully crafted masterpiece from the 99% of humanity that doesn’t have Westlaw, Lexis/Nexis, or a subscription to the Transnational Journal of Winter Sports Law?

If there is some good to be served by law professors writing scholarly articles, then that good is furthered by posting articles publicly. And if, as some argue, law professors are only out to obfuscate, confuse, and annoy, then those goals are necessarily furthered by public posting as well.

It turns out that I am not the only person who feels that it is important to make the fruits of research accessible. There is something of a movement specifically along the lines of what I am talking about. It’s called self-archiving. Yet it appears to be far more popular in the sciences than in the legal academy. I hope that changes.

Now wait a minute, you say. There is a potential copyright issue here, right?

Yes, there might be, if you signed over the copyright or certain exclusive rights to your publisher. But many law reviews are now putting a self-archiving right in their standard author agreements. And my sense is that most of those who don’t are open to the idea if asked. So if you are in the midst of law-review submissions right now, I urge you to try to secure the right to self-archive your work. And for articles you have already published without retaining the right to self-archive, why not e-mail the law review and ask for permission now. The worst they can say is no. And they will probably say yes.

Then, put your articles up on your webpage where people can get at them.

Can Punitive Damages Law Inform the Copyright Infringement Litigation?

I'm just now getting a chance to listen to UCLA prawf Doug Lichtman's really cool podcast on the relationship between punitive damages law and the copyright infringement litigation. I haven't gotten to the point yet where my voice pops up, which is all for good since I often cringe at the playback of my recorded voice.  Here's the summary of the podcast, which is part of Doug's ongoing IP Colloquium series: 

Joel Tenenbaum looks a lot like every other defendant who has been accused by the music industry of illegally sharing copyrighted work online, but with one key difference: his defense attorney is Harvard Law School Professor Charlie Nesson, and Nesson is out to turn his case into a public referendum not only on the music industry's efforts to enforce copyright through these direct-infringer suits, but also on the copyright rules that make the industry litigation possible.
In this program, we engage Nesson's key arguments, focusing especially on Nesson's claim that copyright law's statutory damages regime runs afoul of constitutional protections against excessive and/or arbitrary civil damages awards.
Guests include Professor Nesson himself; Steven Marks, General Counsel for the Recording Industry Association of America; and three of the leading academic experts on punitive damages: New York University Professor Catherine Sharkey, Florida State Professor Dan Markel, and George Washington University Professor Thomas Colby. UCLA Law Professor Doug Lichtman moderates.

"Freedom of Memory Today"

Someday, we may be able to pharmaceutically dampen or erase traumatic memories from the recent past.  Such technologies raise many interesting legal and ethical questions.  On occasion, though, questions about memory erasure already arise.  In this four-page article in the journal Neuroethics, I discuss a real-life case of intentional memory erasure and some of the issues it raises.   The case reveals why the contours of our "freedom of memory"--our limited bundle of rights to control our own memories and be free of outside control--already warrant some attention.

"Yippee! You Can't See Me, But I Can You": Pink Floyd and Public Video Surveillance

I visited London for the first time in 2003 and like, any self-respecting Pink Floyd fan, immediately set out on a pilgrimage to the site of the long-vanished UFO Club, where the band first achieved cult status.  It was quite hard to find, in part, because unlike concert venues such as TT the Bear’s in Cambridge, The Metro in Chicago, or CBGB’s (may it rest in peace) in New York, the UFO Club was not a particular place but rather a periodic experience that took place every Friday night in what was, during the rest of the week, an Irish dancehall (kind of like a Jewish Reconstructionist congregation that borrows space in a Unitarian Church for services each Friday evening).  The Wikipedia article that identifies the UFO Club’s exact whereabouts was not yet posted, and the only site on the Web I could find that purported to give its specific address on Tottenham Court Road was filled with misspellings and suspicious factual claims.  But it was my only lead, so I followed it, and found myself on a quiet block with only a closed movie theater and a closed camera store, on which I wandered back and forth trying to establish the exact location on which Pink Floyd once played “Interstellar Overdrive” (in the video footage of the UFO Club performance that I’ve included above).

All of which brings me to public video surveillance: As I wandered back and forth examining the closed movie theater and the closed camera store, I noticed there was a video camera above the street that was moving back and forth with me, apparently observing my behavior which, to someone who was unaware of my loyalty to Pink Floyd or the poor-quality information in my head about the UFO Club’s former location, probably seemed crazy, or an attempt to case for the camera store or movie theater for a robbery.

London is covered with such video cameras – according to one estimate, at least 500,000 of them.  American cities, such as Washington, DC, Chicago, and New York, are installing similar video surveillance systems in their streets, parks and public transportation systems. One reason for this massive proliferation of cameras is the greater concern that people, and the law enforcement agencies charged with protecting them, feel about terrorism in the wake of the 9/11 attacks. Cities also want to use cameras to more effectively tackle crime, and to more closely monitor events where there is a need for crowd control.  So far, Congress and other legislative bodies have placed few hurdles in the way of such camera systems, and the General Accounting Office and others have decided that these systems likely raise no constitutional issues under the Fourth Amendment’s bar on unreasonable searches so long as the cameras only observe what happens in public space and do not capture video of the insides of homes, offices or other private spaces. Others argue that since the government would not have to get a warrant (or satisfy any other Fourth Amendment requirement) to put a police officer on every block, it shouldn’t be under any more constitutional restriction when it tries to cover much of the same ground with the more technologically-advanced method of installing cameras over each block.

But that argument misses something.  While installing camera systems is like putting a police officer on each block, it is also **unlike** doing so – in what may be constitutionally significant ways. Electronic eyes can capture much more detail than a person’s unaided observations – especially when they are equipped with powerful zoom capacities and can be connected to computers that can store and analyze massive amounts of information. The police officer on each block will not remember every face he or she sees.  He won’t be able to capture a record of every detail about our behavior for later analysis.  A powerful enough camera system might be able to do so.

Nor is it the case that what people do in the open is, by virtue of its happening in public space, automatically free of any “reasonable expectation of privacy.”  I can’t pretend that I felt my privacy was invaded when I was watched in London:  I didn’t reveal much about myself when I walked back and forth on that London block, and would not have worried much even if the camera operator had been able to infer something about my musical tastes.  But there are other times we can hardly avoid revealing hints about sensitive personal matters in public – when, for example, we enter a psychiatrist’s office or other medical facility from a public street, pause to write down the time and location of an Alcoholics Anonymous meeting announced on a kiosk, or go for job interviews in hopes of changing our career path (and under the assumption that are current employers aren’t at all likely to be nearby).  So it should not be shocking that, in a survey Christopher Slobogin reports on in explaining why public video surveillance should be a constitutional matter, the survey subjects judged CCTV surveillance to be quite intrusive – and more intrusive than some law enforcement techniques that the courts have classified as searches under the Fourth Amendment.  And as Daniel Solove has argued, the slogan the British government used to drum up support for England’s enormous video surveillance system – “You’ve Got Nothing to Fear if You’ve Got Nothing to Hide” – doesn’t really do justice to our considered judgments about privacy rights: “The key misunderstanding is that the nothing to hide argument views privacy in a particular way – as a form of secrecy, as the right to hide things. But there are many types of harm involved beyond exposing one’s secrets to government.” Even if the government is unlikely to care about our medical appointments or job interviews, life might be more a lot more uncomfortable, and a lot less free, for us if officials keep video records of such events – records that might one day be the target of FOIA requests by others, discovery requests in private litigation (as has happened to electronic highway records sought in divorce proceedings) or might be inadvertently placed on sites where interested people or businesses can find and search them.

There’s also another reason that city wide video surveillance might raise constitutional concerns that don’t arise for old-fashioned police observation in public space:  Where a new surveillance technology erases long-standing practical constraints, the only way to keep government in check may be to substitute legal constraints.  Judges and lawyers have sometimes appeared to rely on similar logic about the interchangeability of practical and legal constraints when arguing that we **don’t need** the Constitution to protect us from ubiquitous use of police roadblocks or “dog sniff” vehicle checks, because practical constraints already provide assurance that police aren’t going to waste valuable resources manning unnecessary roadblocks or use drug-sniffing dogs on every driver.  In Illinois v. Lidster, Justice Breyer noted that permitting the checkpoint program in that case wouldn’t lead “unreasonable proliferation of police checkpoints” because “[p]ractical considerations--namely, limited police resources and community hostility to related traffic tie-ups--seem likely to inhibit any such proliferation.” (540 U.S. 519. 526 (2004)). The same point was made by an amicus brief in Illinois v. Caballes, which pointed out that practical limitations “prevent law enforcement from training enough qualified handlers and dogs to allow a substantial proliferation of the use of canines.”  (Brief of Amici Curiae The Illinois Association of Chiefs of Police and The Major Cities Chiefs Association in Support of Petitioner in Illinois v. Caballes, 543 U.S. 405 (2005)).  But, of course, these practical restraints disappear when officials obtain technology that allows them to conduct the same kind of surveillance at a much lower cost – for example, by using an electronic “dog on a chip” or wasps instead of trained dogs to investigate vehicles for drugs or other contraband.  High-tech video surveillance systems can overcome the practical limits on ubiquitous visual surveillance in much the same way.

So what’s to be done about this?  One proposal I think won’t work is to simply dismantle the camera systems – or adopt a rule that flatly prohibits their use (or comes close to doing so).   While today’s camera systems are still of limited use in battling crime and terrorism, it’s hard to think that this will remain the case as the technology improves.  Although the British government could not use London’s camera system to stop the subway terrorist attacks that occurred in 2005, for example, video footage was valuable in tracking down the suspects.  And being able to solve crimes of that sort helps prevent similar attacks in the future.  Rather than insist on preventing use or installation of such camera systems, those who wish to safeguard Fourth Amendment privacy protections (and other relevant constitutional provisions) do better to accept their existence, and then think about how the Constitution, or yet to be enacted statutes, should constrain the way they are used or designed.   Fortunately, while courts have not chimed in (and are unlikely to do so soon), legislators and agencies are already doing some thinking about this. The Department of Homeland Security’s Privacy Office, for example, recently held an illuminating workshop on video surveillance technology, its use by law enforcement, and the legal or administrative rules that should govern it. 

On a more general level, impressive technological changes like those accompanying the spread of city-wide camera systems underscore the need to periodically examine how to preserve familiar constitutional principles in new social and technological landscapes.  When government can, thanks to new camera technology, suddenly gather and compile extensive private information about us from our activities in public space, then the old rule of thumb – that surveillance of our public activities violates no “reasonable expectation of privacy” simply because those acts happen in the open, where anyone can observe them – no longer works to protect the underlying principles behind Fourth Amendment privacy protection.  Rather, we need to set aside that rule of thumb, go back to first principles, and then engage in something akin to the kind of “translation” of these principles that Lawrence Lessig has written about with respect to other constitutional questions.  It shouldn’t surprise us too much that we may need to revisit and rethink elements of the Supreme Court’s “reasonable expectation of privacy” test for what counts as a Fourth Amendment search.  A lot has happened in the 41 years since the Supreme Court issued the decision in United States v. Katz, where that test was first introduced back in 1967 – the same year, incidentally, that Pink Floyd released its first album, The Piper at the Gates of Dawn, and made a name for itself at the UFO Club.

P.S. In case you missed it, there was a post on Concurring Opinions honoring the memory of Pink Floyd keyboardist and founding member Richard Wright, who died earlier this week.

Mind Games and Privacy Risks

In case you missed it in the Neuroethics & Law blog earlier this year : A company called Emotiv is getting ready to roll out a video game that you control with your mind.   As a recent CNN article describes it:

“The Emotive EPOC headset – the first Brain Computer Interface (BCI) device for the gaming market . . . detects and processes real time brain activity patterns (small voltage changes in the brain caused by the firing of neurons) using a device that measures electrical activity in the brain.  In total, it picks up over 30 different expressions, emotions, or actions.”

Other companies offer (or intend to offer) similar technology: NeuroSky offers a series of devices that can convert states of attention, meditation, or other mental states associated with specific brainwave patterns into commands for computers, robots, appliances, or whatever the user wishes to control.  Other products of this kind include OCZ’s “neural impulse actuator” and Brain Actuated Technologies, Inc’s “cyberlink headband” and “brainfingers” technology (The YouTube video I’ve attempted to embed above provides a demonstration of the headband).

This is all really intriguing – and I can’t wait to see whether we use this technology to retool law school exams -- or perhaps even oral arguments in the Supreme Court – so that they take the form of video games, where you can zap monster-shaped questions and challenges to your client’s claims by conjuring up brilliant arguments inside your mind’s eye.

On a more serious note, though, I wonder whether this technology raises more serious privacy concerns than are raised by archived Google searches and recorded Web use.  That’s not to say every record we produce by mental effort must remain hidden from public view. When our minds directly generate only the same kind of conscious action that once required an intermediate muscle movement, a mind-controlled video game doesn’t seem to compromise privacy any more than the old-fashioned type of Web-based video game would (If it makes sense to call any such game “old fashioned.”).  We probably don’t reveal much more about ourselves when we fire a virtual laser gun with a brainwave pattern than we do when our mind directs our hand to press a button to zap a virtual gun.   But as the CNN article notes, the EPOC headset not only picks up brain activity associated with muscle movements, but also emotions – and perhaps emotional (or other mental) activity you’re not fully aware of as you experience it.  Put this dimension of video games’ future together with another trend – the increasing trend of gamers to seek entertainment in on-line interactive games generated by computer servers far beyond their homes – and you have a recipe for what could be a serious privacy problem: a world where every one who plays a Web-based video game, or issues mental commands in other Web-based activities, can do so only by sharing unconscious feelings or other states of mind with the outside world, and perhaps offer them for recording and archiving. 

To be sure, it would not be entirely unprecedented for us to find our privacy threatened by technology that recorded evidence of unconscious thoughts or feelings: Experts analyzing a surreptitiously recorded conversation might infer things about our emotional state from our tone of voice.  A public video camera on the street might capture facial expressions, patterns of movements, or other behaviors that betray feelings or mental states that we’re not even aware of. But I somehow find it more unnerving that technology is emerging that officials, businesses, or busy bodies might use (perhaps inaccurately or dishonestly) to read and record mental states even of those who stay stone-faced and silent.   

That doesn’t mean I think there’s anything inherently bad about this technology – or about its use on the Web or other electronic environments.  On the contrary, apart from providing us with new forms of entertainment, such technology can give some disabled individuals the power to control computers with mental signals that they can’t control with their hands.  It provides individuals with biofeedback devices they can use to improve concentration or control stress.  And it might also be a boon for those of us who are curious about what kind of electrical brain activity corresponds to specific experiences, thoughts, or feelings.  (It would be fascinating, for example, to see a record – even a relatively crude one – of what brain activity patterns were generated during an intense nightmare or other dream). 

What would be bad, however, is a world where – thanks to our near constant-connection to the Internet – we can only get the benefits of these new “neurotechnology killer apps” (as Adam Kolber has aptly described them) by sharing private feeling states with the rest of the world.  At a minimum, then, I think we should be thinking about how we can reap the benefits of these (and similar) technologies with minimal costs to privacy.  One excellent starting point for such thinking is Neil Richard’s forthcoming Texas Law Review article, Intellectual Privacy, which I had the pleasure of commenting on at a recent conference.  As the article notes, since “we have come to rely on computers and other electronic technologies to live our personal and professional lives . . . ”, we find ourselves generating “a record of our intellectual activities  -- a close proxy for our thoughts –- in unprecedented ways and to an unprecedented degree.”  This need to leave a trail of intellectual records behind makes us vulnerable not just to garden-variety intrusions into our privacy, but to intrusions into our First Amendment freedom of thought.  And while the article focuses on the threats of this sort that exist here and now – the record we leave when we enter Google search terms or link from Web site to Web site – our freedom of thought may be even more vulnerable in a world where we leave behind not only records of our intellectual choices, but snapshots of unfiltered emotional and other mental states.  Thus, I think Neil is right that we have to tackle (with more clarity and vigor than we have before) the challenge of building robust intellectual privacy protections into our legal regime and perhaps also into the design of new technologies.

Io v. Veoh: Harmful to YouTube?

Yesterday's decision in Io Group, Inc. v. Veoh Networks, Inc. is generally being hailed around the blogosphere as a win, or at least a bit of good news, for YouTube in its ongoing infringement fight against Viacom. See the L.A. Times, CNet, Wired, Silicon Alley Insider, Techdirt, TechCrunch. Certainly Google is trumpeting the case as a win.

The piece of the decision most commenters are focusing on is the holding that Veoh's automated reformatting of uploaded materials does not create copies for which Veoh is responsible. That's clearly a good precedent for ISPs that process uploaded content somehow (and follows on the heels of the Second Circuit's similar decision in the Cablevision case).

But there's a key component of the decision that is not at all helpful to YouTube.

The Io court specifically noted that Veoh was able to invoke the DMCA safe harbor, shielding it from liability, because "there is no indication that Veoh has failed to police its system to the fullest extent permitted by its architecture." (Slip op. at 29.) Among those policing efforts was Veoh's practice of using "digital fingerprint technology" to "prevent[ ] the some infringing content from ever being uploaded again." But as I've said before, I believe the real driver behind Viacom's suit to be its claim that YouTube has filtering technology that it refuses to use to police Viacom's content. From Paragraph 7 of the Viacom First Amended Complaint:

Moreover, YouTube has deliberately withheld the application of available copyright protection measures in order to coerce rights holders to grant it licenses on favorable terms. YouTube’s chief executive and cofounder Chad Hurley was quoted in the New York Times on February 3, 2007, as saying that YouTube has agreed to use filtering technology “to identify and possibly remove copyrighted material,” but only after YouTube obtains a license from the copyright owner.... Those who refuse to be coerced are subjected to continuing infringement.

So Viacom's claim is that YouTube is not policing its system to the fullest extent permitted by its architecture, and in fact is holding some tools back as a bargaining chip. To the extent Io and other decisions are holding that, to preserve its DMCA immunity, an ISP has to police its system to the best of its abilities, YouTube may be in trouble (assuming Viacom's facts are accurate).

It's important to note that in the Io decision, the implicit requirement to police the system comes up in the context of discussing vicarious liability, which is not immunized under the DMCA safe harbor. And vicarious liability has two prongs to it, (1) the "right and ability to supervise the infringing activity" and (2) a "direct financial interest" in those activities. The Io court's discussion of policing occurred in the context of addressing the first prong. The second prong would still need to be demonstrated, and that would likely require a showing that, e.g., YouTube's ability to sell ads was somehow enhanced by the infringing content. Maybe that would succeed, maybe it wouldn't.

But I think the same "duty to police" theory may apply under the core of the safe harbor itself, Section 512(c)(1)(A)(ii). Section 512(c)(1) was not at issue in Io because Io never actually even sent a takedown notice; after spotting infringing files on Veoh's site, it decided to proceed directly to an infringement complaint. (Is this another case of, perhaps, some pre-1998 law school grads being a menace?) Section 512(c)(1) says that, in order to keep its immunity, an ISP hosting infringing content must do a few things, one of which is "act[ ] expeditiously to remove, or disable access to, [infringing] material" if it becomes "aware of facts or circumstances from which infringing activity is apparent." Congress called this a "red flag" provision in the legislative history; an ISP cannot simply ignore red flags indicating infringement and wait for the takedown notices to flow in, if it wants to preserve its immunity.

Does choosing not to use a filter that would screen out additional copies of a work cited in a takedown notice constitute ignoring a red flag? Io suggests that the answer may be yes, and if so, YouTube may be in trouble.

The Nature of Authority

Don't cite Wikipedia, they said. Fair enough.

But today comes the news that John McCain may have plagiarized a speech about the crisis in Georgia from Wikipedia. If the political branches get their information from Wikipedia, does that mean that courts now need to consult Wikipedia as a means of reconstructing legislative history? Will Wikipedia become part of the original public meaning of future constitutional amendments?

Technology, porn and a quote for the ages (or should I say the aged)

The New York Times magazine today included this interesting little article about the relationship between technology and porn.  Though many parts of the piece could launch many high-brow conversations about technology and human interests, one particular quote reminded me of a not-too-distant past that perhaps only those of a particular generation can fully appreciate:

Not getting the chance to quite see porn is the story of anyone’s life who grew up when the adult channels were scrambled.   You learned to be turned on by partial views.

Konomark t-shirt giveaway!!

In what I believe to be another PrawfsBlawg first from yours truly, I am proud to announce a t-shirt giveaway!

I am sending a high-quality all-cotton t-shirt with the attractive konomark logo to the first 25 law professors who konomark any of their teaching materials or website content. (Rendering at left.) And yes, adjuncts are, of course, happily included.

The konomark symbol on your website, or on certain content within your website, invites visitors to ask you if they can use your copyrighted content without compensation. By konomarking PowerPoint presentations, mindmaps, handouts, or other materials, you’re saying, “Hey, I'm easygoing about sharing. So go ahead and ask me.”

Unlike Creative Commons licenses or the GNU Free Documentation License, konomark does not involve any surrender of intellectual-property rights. It’s just a way of signaling friendliness when it comes to your copyrighted stuff.

I announced the konomark project on PrawfsBlawg some weeks ago. You can read more about it on the project website.

This giveaway expires in two months, when I will probably take any leftovers to iSummit in Sapporo. E-mail me at ejohnson@law.und.edu with questions or to claim your prize. Specify your desired size. Act early for the best selection. Allow several weeks for delivery. Void where prohibited.

Levitin's Law of USB Flash Drives

I’d like to propose a variation on Murphy’s Law for USB flash drives: a flash drive will always be inserted into a USB port upside down on the first attempt.

I follow scientific naming conventions for any new species I discover to a punctillio of an honor the most sensitive. No autoeponymy for me when a new beetle or squid crosses my path. But, to my knowledge there is no such modesty required for rules of life, so I am claiming this as Levitin's Law of USB Flash Drives, planting my flag on this (apparently) terra nova. Now when you insert a USB flash drive upside down, you can groan about Levitin's Law.

What does this possibly have to do with law teaching? Well, just try using a flash drive when making a presentation, and you'll see.

Really, I don’t know why USB ports are designed with a distinct top and bottom, but this strikes me as one of the great failures of modern technology.

Konomark - A New Way to Be Friendly with Your Intellectual Property

Would you be willing to share your PowerPoint presentations, class handouts, review problems, and other teaching materials with your fellow professors? Most of us probably would.

Yet, how comfortable would you be with e-mailing a colleague you’ve never met and asking if you could use some of their materials? Slightly uncomfortable? I’m guessing that many of us might ask more often if our fellow professors actually invited us to make the request.

What would be useful is some way of marking material we would generously share. Some signal – a word, a symbol – placed on our websites could serve as an invitation to colleagues and others to ask.

As an experiment, I’ve come up with a symbol, a name, and some guidelines for a system to encourage people to communicate their willingness to share copyrighted works. The symbol I’ve drawn is inset. I have no formal training in illustration, but my two-year-old, Joe, immediately recognized it as a pineapple. The pineapple has been a traditional symbol of hospitality. And the name I’ve come up with is “konomark.” The Hawaiian word “kono” means to invite, prompt, or ask in.

I’ve konomarked my website at eejlaw.com, by which I mean to signal to everyone my willingness to share my teaching materials, including mindmaps, slide shows, case abridgments, and old exams. Soon, I will be posting photos that illustrate legal concepts, which I also intend to share.

I invite you to consider doing konomarking your own teaching materials as well. Marking your website with the konomark will not have any legal effect. It does not surrender certain rights like a Creative Commons license does, for instance. The konomark is simply an invitation that says, “I’m generally willing to share my copyrighted material, often for free. So go ahead and ask.”

I’ve also posted a webpage, konomark.org, that explains the konomark experiment in greater detail. The material on the webpage is written, for now, as an FAQ for an audience of non-lawyers. At some point, I'd like to explain a little bit more of the theoretical and policy underpinnings to the idea. For now, I'll just say that I am a big fan of public sharing licenses – such as those from Creative Commons and the free-software movement – but they are not right for all circumstances. There is no doubt that, with regimes like Creative Commons, there is a great benefit gained in not needing to ask permission before you use something. But there may be a benefit, as well, to going through the process of asking permission, especially if a sign has been hung out on the porch, so to speak, that invites such requests. By having a two-party communication regarding permission, a connection is established. These connections may lead to friendships and feelings of community - the kinds of values that Richard Stallman, open-source-software pioneer, talked about when he wrote his manifesto.

And, at any rate, when it comes to law-school teaching materials, adoption of Creative Commons licenses by professors seems to be somewhat limited. So to encourage even more sharing, I think konomark might be a helpful idea.

There are some technological and operational subtleties I would like to work up at some point, but I think konomark.org is a good start. Please let me know what you think. I would be very grateful for your comments and suggestions.

Watching Your Every Move

I tend to lag behind technological advances.  This one, however, has me sputtering with incredulity.  We are all aware that our cell phones are miniature tracking devices.  But it had never occurred to me that people would pay for a service to use them as tracking devices – voluntarily.  This WSJ article is an eye-popper for me.  The article begins: 

Would you want other people to know, all day long, exactly where you are, right down to the street corner or restaurant?

Unsettling as that may sound to some, wireless carriers are betting that many of their customers do, and they’re rolling out services to make it possible. 

Sprint, Verizon, and others are signing up “hundreds of thousands of customers” who seem perfectly willing to allow others to track their location at any time.  This service is being driven by “a generation of young people who are comfortable sharing a great deal of personal information on social-networking Web sites and eager for still more ways to stay connected.”  The article does highlight some of the privacy concerns, particularly regarding “abuses” of the service that could occur through stalking, sexual predators, and criminal investigations (e.g., one service allows a user to send a false location as protection against stalkers). 

Perhaps I was too deeply impressed by a course in dystopian fiction as an undergraduate, but the possibility for governmental abuse seems substantial to me.  Even ignoring the strange problems of social control that exist when persons volunteer to participate in a system of social surveillance like this, as I understand current Fourth Amendment jurisprudence, what users voluntarily share with third parties, they also essentially make available to governmental officials (e.g., like the phone numbers one dials).  Add this to the Katz formula of social expectations, and it would seem the 18-24 year olds who like to watch each other’s every move are significantly altering social practice and therefore shifting all of our constitutional privacy protections.  I suppose one upshot is that parents will never have to ask “where were you all afternoon” anymore (but neither will the inquiring government official). 

The Sketchy Documentary Record

I've been reading up on the history of law reporting. Though I'm primarily interested in what we today owe to the future by way of a clear documentary record, it's also fascinating to see how profoundly our understanding of earlier ages of law is shaped by the fragmentary reporting of previous generations. Here's one particularly amusing passage, from James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1 (1986):

Most of those stenographers who recorded the state conventions are known to us: Benjamin Russell in Massachusetts, Enoch Perkins in Connecticut, Francis Childs in New York, Thomas Lloyd in Pennsylvania and Maryland, and David Robertson in Virginia and North Carolina. Lloyd's career is better documented than those of his colleagues. . . .

An ardent Federalist, Lloyd probably had no qualms about taking money from Pennsylvania Federalist leaders to delete all the Anti-Federalist speeches in the Convention, as he in fact did in his Debates of the Convention of the State of Pennsylvania . . . . In addition to suppressing the Anti-Federalists, Lloyd eliminated all Federalist speeches except those by Thomas McKean and James Wilson, the latter of which had obviously been corrected and "improved" after the Convention because they were printed with footnotes. The Anti-Federalists correctly charged that Lloyd's Debates had been "afterwards altered, dressed and undressed by, and at the pleasure of his benefactors," and were nothing more than Federalist campaign literature. . . .

The documentary record of debates on the Bill of Rights consists . . . of deliberations in the House of Representatives. These were published in 1834 [and are] known to and cited by scholars as Annals of Congress. For the first session of the First Congress, the period covering the gestation of the Bill of Rights, the Annals of Congress is a reprinting of a publication called the Congressional Register, prepared by none other than Thomas Lloyd . . . .

Far from improving by 1789, Lloyd's technical skills had become dulled by excessive drinking . . . . It was discovered that what Lloyd published "bears only slight resemblance to the literal transcript of his own notes. Sometimes a speech is printed for which no notes or only very brief notes exist; sometimes a long speech reported in the manuscript is printed very briefly or not at all." Another investigator has reported that Lloyd's reports were frequently "garbled" and that he neglected to report speeches whose texts are known to exist elsewhere. Lloyd's manuscript also demonstrates a wandering mind, for it is periodically interrupted by doodling, sketches of members, horses, and landscapes, and by poetry . . . .

Page 37 of Hutson's article reproduces a page from Lloyd's journal. The truly remarkable thing is that some of the sketches are upside down. And we complain about students who don't pay attention.

PatientsLikeMe: A Study in Online Community Issues

The latest New York Times Magazine has an interesting story on PatientsLikeMe, a startup that's bringing the Web 2.0 user-generated-content approach to building communities of patients who suffer from a common disease. They upload truckloads of data about their treatments and symptoms (which the site compiles into outstanding visualizations) and also join discussion boards tailored to their specific illness.

In one respect, the site is an outstanding example of how to design a modern web-based social networking site. Look, for example, at the combination of information displayed on a typical profile page, which mixes space for free-form personal expression with informative standardized graphics based on disease-specific fields. Both this patient's personal statement and his symptoms chart are immediately legible to fellow ALS sufferers. These become a backdrop for conversations on the site's forums (closed to non-members). As the story vividly explains, PatientsLikeMe has been quite successful forming vibrant communities.

The site also, however, raises a set of thorny issues that are by now standard fare for user-driven online communities. The Times story focuses on the potential displacement of expertise. In much the same way that, say, The Motley Fool threatens the privileged status of professional investment advisors, PatientsLikeMe poses a threat to the privilege status of doctors. Patients armed with data from patients like them can pressure their doctors to change their treatment. The article tells the story of one MS sufferer who learned that, "Contrary to what his neurologist told him years ago, 10 milligrams [of baclofen] wasn't the maximum does. It fact, it was at the low end of the scale." Now he's taking 40 milligrams a day. Enough incidents like this one and the phrase "doctor's orders" will come to sound strange indeed.

Of course, doctors have some good reasons to worry, beyond just status preservation. User communities are notorious not just for displaying the wisdom of crowds but also the ignorance of crowds. The article mentions a group of 34 ALS sufferers who "solicit[ed] lithium prescriptions from their doctors and coalesc[ed] into an ad-hoc clinical trial." N=34, with no blinding and no control group is not an ideal experimental setup. The information it produces may have some limited value, but will the community have the statistical and methodological chops to assess that value? As PatientsLikeMe scales up, its users will move from the relatively easy field of data sharing to more difficult problems of data interpretation.

Another classic problem that user-generated-content sites face have to do with the linked problems of data quality and privacy. If PatientsLikeMe becomes a big success, will unethical drug company reps create fake patient profiles to report that the pill of the month provides dramatic results? There are plenty of feedback mechanisms to deal with sock puppets and the overeager-but-misinformed, but their proper use and tuning is a difficult art.

There are also remarkable privacy issues. The article focuses on HIPAA, which PatientsLikeMe neatly circumvents by being a service that individuals choose to use, rather than a health-care provider. (Interestingly, one doctor actually says that physicians -- and thus, not patients -- should be the sole stewards of patient data, neatly illustrating why some people will be cheering loudly if PatientsLikeMe dethrones doctors.) But that circumvention comes at a price. Insurance companies, you can bet, will keep a close eye on the site, looking to learn details about current and potential customers. I predict outraged accusations of egregious privacy violations, similar to the ones hurled by college students infuriated that potential employers have looked at their keg-stand photos on Facebook.

PatientsLikeMe, like it or not, will have to mediate many of these conflicts. Its user agreement (which purports to ban harvesting data from the site, along with registration by true outsiders to its communities) and its business model (to sell data to pharmaceutical companies) give a clue as to its attitude: we own the data, and will control access to keep that data valuable. But that's yet another classic Web 2.0 problem: why is it the site, rather than the users (collectively or individually) that owns the information they provide? Indeed, to the extent that the data consists merely of facts about medical conditions, are there even any meaningful intellectual property rights in it that could be owned?

Interesting stuff.

For a Good Time Call 555-0123: Liability-Free Phone Numbers for the Entertainment Media

A legislative proposal: Congress should set aside, or direct telephone companies to set aside, certain phone numbers that can be used in films and on television without fear of liability.

As you have no doubt noticed, when a line of dialog includes a phone number, the character on screen, often with intense earnestness, spits out a phone number with a “555” prefix. For example:

“Damnit! Get President Palmer on the phone! His direct, private cell phone number is 202-555-4248!”

Fearful that if they use a real phone number they will get complaints or even lawsuits, studios have taken to using the 555 numbers because they are reserved by the phone companies and never assigned to customers.¹ Thus, they will not be unwittingly subjecting hapless folks to scores of midnight crank calls.

The problem? When you are engrossed in the make-believe world created by the film, hearing the fake “555” phone number brings you instantly back to reality – reminding you that you are watching an actor in a film, not, for instance, a heroic government agent trying to disarm a bomb. And if you are a lawyer, hearing the “555” phone number reminds you of the law, which means you are being reminded of your job while watching TV. It’s not good for anyone.

Therefore, I call on Congress, and, while I’m at it, the United Nations and the telecommunications companies of the world, to set aside a large enough slate of random-sounding numbers that movie-goers will not be subjected to instantly recognizable fakes.

The tough question that immediately confronts us: How do we get a slate of numbers that is safe for entertainment usage without screwing over the real customers currently using them. I have two proposals. The first is a bit silly, I admit.²

==More after the jump ...

My first plan would be to provide immunity for certain seven-digit phone numbers where an administrative rule-making body declares such phone numbers to have already been so tarnished through their use in media, that customers have little or no expectation of privacy with regard to them. The most obvious candidate? Why, of course: 867-5309. Those of you who remember the 80s (or have at least seen them on cable TV) will recall that that is Jenny’s number, from Tommy Tutone’s 1982 hit song, “867-5309/Jenny.”³

In fact, I’d say there is a good argument that any producer including 867-5309 in a movie or television show should be availed of an estoppel- or laches-type defense. And, for an analogy to property law, when new phone customers get 867-5309, it’s a lot like coming to the nuisance. Of course, the problem with clearing 867-5309 for producers is that the number is so engrained in pop-culture consciousness, using it in a movie is likely more jarring than using a 555 number.⁴

My second plan is a three-step approach: (1) Use computerized algorithms to comb seven-digit phone numbers to find those that are used by the fewest businesses and that are used in the fewest area codes. Put these phone numbers on a “Level I” list, then freeze the list, prohibiting phone companies from assigning these numbers to new customers. (2) Provide immunity for producers who use Level I phone numbers, so long as they use such numbers only in combination with an area code that does not correspond to a real telephone number. (3) Allow the Level I list to undergo attrition; that is, allow the seven-digit numbers to become progressively cleaner and cleaner as users in different area codes naturally give up those numbers as they move or otherwise discontinue phone service. When a seven-digit number is no longer used in any area code, or when it reaches a certain threshold of disuse, place that number on a “Level II” list. Provide immunity to producers who use seven-digit numbers, sans area code, on the Level II list.⁵

If you agree with my proposals, comment below. If you disagree, please call 867-5309.

NOTES:

FN1: I don’t know if customers with phone numbers featured in films have sued producers, much less been successful in a lawsuit. But it is clear that the fear of such lawsuits, or at least complaints and associated ill will, have held studio standards-and-practices folks to the practice of using the 555 numbers.

FN2: This whole post is a bit silly, since, as you may have noticed, it uses footnotes.

FN3: Snopes.com reviews the real-life ramifications of 867-5309 here.

FN4: But here’s an example of an intermediate case: 362-4350. That’s the number to call for the hit-woman personified by Joan Jett in her re-make of AC/DC’s “Dirty Deeds Done Dirt Cheap.” I’d have to say, though, I doubt 362-4350 has been exploited heavily enough for number holders to be fairly divested.

FN5: This proposal might fairly be called a “seven-point plan,” but I think that’s too many points. Better to keep it to three. Three-point plans are always better. And when you get down to three, for some reason I don’t entirely understand, it is plausible to call it a “three-step plan,” making it sound even easier. (I think part of the problem with saying “seven-step plan” is that if you have too many steps, then you are getting into the realm of dieting and addiction recovery, and that’s not where I’m going with this.)

Friends of the Internet Unite: Citizen Media Law Guide

This is pretty awesome. The Citizen Media Law Project has announced the launch of a new online guide for your average Joe to participate in "semiotic democracy."  Here's a link to the Florida guide. Here's some more info from the media release:

The Citizen Media Law Project (CMLP) launched the first sections of its Citizen Media Legal Guide (http://www.citmedialaw.org/legal-guide) last week.  The guide, intended for use by citizen media creators with or without formal legal training, addresses the legal issues that traditional and non-traditional journalists are likely to encounter as they gather information and publish their work online.

“There is a tremendous need for a comprehensive – yet approachable – guide to the legal issues faced by online publishers.  As more journalists, whether professional or non-professional, begin to practice their craft online we hope that they can turn to this guide to help them understand the legal environment they are operating in,” said David Ardia, director and co-founder of the CMLP, an initiative to provide practical knowledge and tools for citizen media and to study the impact of law on online journalism.

The sections of the legal guide released so far include “Forming a Business and Getting Online,” which covers forming a for-profit or nonprofit business entity, choosing an online platform, and dealing with critical legal issues relating to the mechanics of online publishing, and “Dealing with Online Legal Risks,” which covers the legal issues involved in operating a blog or website, finding insurance, finding legal help, and responding to the different kinds of legal threats publishers may face as a result of their online activities.

The legal guide is funded by the John S. and James L. Knight Foundation.  It will initially cover the 15 most populous U.S. states and the District of Columbia.  Once complete, it will focus on the wide range of legal issues online publishers face, including risks associated with publication, such as defamation and privacy law; newsgathering; access to government information; intellectual property; and corporate/nonprofit formation and governance.  The CMLP will continue to roll out new sections of the legal guide through the spring.

About the Citizen Media Law Project
The Citizen Media Law Project, which is jointly affiliated with the Berkman Center for Internet & Society at Harvard Law School and the Center for Citizen Media, has five primary objectives: legal education and training; collection and analysis of legal threats; litigation referral, consultation, and representation; community building; and advocacy on behalf of citizen media.  It was the recipient of a 2007 John S. and James L. Knight Foundation News Challenge grant.  For more information, visit http://www.citmedialaw.org.

Why T-Mobile sucks and why phone service should be liberated from handsets

Sometimes I feel uncomfortably like a character on Curb Your Enthusiasm. Here's one reason why. I'm hoping that by relating this experience, it will prove useful for those of you contemplating changing your wireless service. I've generally been a fan of T-Mobile's service in the past, which is why a bit more than a year ago, I decide to buy the Blackberry Pearl from one of their stores and enter into a service agreement with them. This past summer, however, while in Berlin for the LSA conference, my beloved Pearl just randomly deleted a month's worth of emails. I was, quite unsurprisingly, frustrated by the experience, since the emails included my travel itinerary, flights, hotels, etc., and I had to call abroad to get this info resent to me. When I came back to the US and told T-Mobile's customer service that this had happened, they obliged by apologizing and giving me 500 bonus minutes.

Six months later, the same thing happened, and I reported it to T-Mobile and they helped explain that this disappearing email problem probably occurs when the memory on the phone starts to fill up. Well, that's helpful to know, I said, I'll be sure to clear the cache on my internet browser more frequently in the future, but since no one ever said in advance that that this is a limitation on the phone, I'd still like to be comped another 500 minutes. The guy said sure, and I left to go teach my class. Unfortunately, as I just found out when I called to verify the existence of my bonus minutes, the guy I spoke with then didn't record that he agreed to comp me the 500 minutes.

So the supervisor I just spoke to this evening, definitely the rudest person I've talked with during my four years as a T-Mobile customer--a super snarky person named Theresa--said a) it's just a limitation of the phone and not T-Mobile's fault, b) there's no record of giving you bonus minutes, and c) we're not giving you any more bonus minutes because you've already been compensated by bonus minutes in the past for previous service problems you've had. Wow!

I explained that if it was not T-Mobile's responsibility, why did they accept responsibility beforehand, and that they are, to all public eyes, in a joint venture with RIM, which makes the Blackberry, and because T-Mobile handles the service calls, they're in the best position to report these software glitches to RIM and have them fixed. (Clue: all it takes is a notification to users that they should monitor their Pearl's memory if they want to retain their email.) She also made it seem as if I've already received too many bonus minutes in the four years I've had an account with them, even though it's been their discretion to allocate bonus minutes after service outages. It goes without saying that if there hadn't been service or software failures, there would have been no basis for compensating their customers with bonus minutes, which are likely to be marginally costless to them anyway.  Still, she gave me a big bowl of nothing, not even an apology, despite her line worker's professions of apologies and understanding for the inconvenience of it all.

All this is a way of saying a few things, two of which I hope find their way to T-Mobile's management: first of all, T-Mobile, you've got a good customer service record which is in real jeopardy when you employ mean and unprofessional service managers like Theresa in your ranks. Second, if Theresa was following a policy of capping the bonus minutes customers are entitled to because of service and software problems they've experienced, then you've got really screwy policies, since you should want to have customers report these problems rather than have them simply conclude the service/hardware one buys from T-Mobile is just crappy and worth leaving the moment a problem like this erupts. This is especially the case when the problem can be resolved relatively easily.

Last, if T-Mobile is going to blithely disclaim responsibility for the service it provides for the phones it sells and brands with its name, then that's a good reason, I think, for the government to require that providers let me use my current phone with multiple providers, rather than having to buy a new phone in a new service contract when I have a perfectly good one (with a software glitch I can plan around once I'm told about it). In other words, it seems pretty weird to force me to buy a new phone if I could just as easily take my working phone to a different wireless provider, where hopefully the Theresas of the world have been weeded out. Kevin Martin, this post is for you too.  (I should note: I'm not entirely sure what the rules are now, but the practices I'm familiar with definitely seem to discourage taking phones from one provider and using it with different providers.)

An Open-Source Approach to Casebooks

This month's Journal of Legal Education includes the final version of my article, "The Future of the Casebook: An Argument for an Open-Source Approach."  You can also find it here on SSRN, in case you missed the JLE issue with its new, possibly-a-collector's-edition color scheme.  The article provides a sense of the challenges and possibilities in creating an open-source casebook, drawing heavily on Yochai Benkler's work about commons-based peer production.  An open-source casebook is perhaps the quintessential example of a situation where commons-based peer production would be effective.

I'm quite certain that the law school casebook will soon cease to exist -- at least in its physical "book" form.  The most likely replacement would be putting current casebooks online, with greater or lesser degrees of accessibility and adaptability.  But there is a window now for an open-source approach.  There are moves afoot to put at least some class content online that would be usable and accessible by all.  I'm hopeful that these developments may blossom into sustainable, robust alternatives to the current system.

The Pages We Make

Let’s talk about typography. A typical law review page is a rectangle, let us say 6.75" wide and 10" tall. With reasonable margins and a 12-point font, that gives us a block of text containing about 65 to 75 characters per line and about 40 to 45 lines per page. Both values are highly readable. (The number of characters per line is the really important value; if it’s more than about 90, the eye tends to get confused as it leaps from the end of one line to the start of the next. As long as the text block is noticeably taller than it is wide, the exact number of lines is less important.) All in all, it’s a good format: readable and reasonably compact.

Unfortunately, printer paper doesn’t come in that size. If you want to print out the contents of a law review article on a standard printer with standard paper, you have four bad options:

• You could do what most law reviews do in their online PDFs and center that same text block in an 8.5" by 11" piece of paper. That adds another seven-eighths of an inch to each side and another half-inch to the top and bottom margins—so over a quarter of the area on each page is superfluous white space. (Then again, if you make a lot of marginal notes, it might not be wasted from your perspective.)
• You could blow up the page by a factor of 15-25% (depending on whether you’re willing to chop off some of the header). That gets rid of a lot of the whitespace and preserves the sensible proportions. But it also blows your font up to 14 or 15 points, which is large-print book territory, and much larger than you need for readability. In a sense, you’re being just as profligate with your paper as before, just in a different way.
• You could treat it like many people (myself included) treat SSRN/BEPress drafts and reformat the page to fit 8.5" by 11" conventions: the same-size font with 1" to 1.25" margins. This nets you about 25% more words on each page, which is a satisfying gain. Unfortunately, it messes up line lengths. You’re now looking at 90 to 100 characters per line, which is definitely longer than optimal and is getting up into the borderline unreadable range. That slows the reader down and makes for a less pleasant experience.
• You could do what a lot of hand-prepared coursepacks do: shrink the page, rotate it 90 degrees, and print a second page next to it on your (landscape mode) sheet of 8.5" by 11" paper. This can work, but you have to have fairly precise control over the printing process. In particular, if you try to do it automatically, your software is likely to insist on adding its own margins to the margins on the two virtual pages, which just kicks you back up to the wasted space problem.

The reality is that the 8.5" by 11" page is not a good shape for conveying a lot of words if you format it in the same basic way you’d format a law review page. So we shoudln’t. There are better ways to work with the massive canvas that is the letter-sized sheet. Have a look, for example, at the this template from the computer science professional society. It uses two columns. Two glorious columns. Along with a 9-point font, that gives a highly readable 60 characters or so per line. But wait, you may be saying, isn’t 9 points microscopic? As compared with 12-point text, yes. But in the context of a well-designed page, your eye doesn’t even register 9-point text as being “small.” I read a lot of ACM conference papers in my prior life, and never had the sense that there was eyestrain involved.

You may disagree with me about the details. My point is just that there are other solutions to the problem of laying out law review- style papers on an 8.5" by 11" page than the ones we commonly use, and that some of these other solutions have significant advantages over the old standbys. Going for two columns rather than one (either two tall and narrow ones in portrait mode, or two stouter ones in landscape mode) is a particularly promising move. I’d love to see more legal scholarship distributed electronically in formats that work a little better when—as almost inevitably seems to happen—they make their way back onto dead trees.

Jeez, that's a lot of letters to write . . .

Folks who are signed up as recommenders got a daunting email from OSCAR this past weekend.  OSCAR -- the Online System for Clerkship Application and Review -- is the electronic clearinghouse for those applying for clerkships with federal judges.  Applicants as well as recommenders submit their materials to OSCAR, which in turn distributes those materials to the judges.  The system brings order and efficiency to a chaotic process.

In an email entitled, "OSCAR: New Recommendations Requested," an electronically-generated email stated:

Sunday, July 08, 2007 Dear [Name]: The following applicants have requested new letters of recommendation: The email then listed roughly 200 names of clerkship applicants from around the country. Most recommenders, I imagine, quickly surmised that the email had been sent in error, and the next day the following email was sent: Please disregard the email you received this weekend with the following subject line "OSCAR: New Recommendations Requested".  It was sent inadvertently to recommenders listed in the Online System For Clerkship Application and Review (OSCAR) and should be ignored. We apologize for the inconvenience. Regards, Symplicity OSCAR Support Staff No big deal -- just another minor example of the fallability of electronic systems.   I wonder, though, if there is a privacy issue here.  The email listed over 200 names -- the names, I imagine, of people who are applying for clerkships.  Certainly, these applicants expected some level of disclosure.  And only names were listed -- not anything else.  But perhaps applicants would be surprised, even concerned, that their names were released to every OSCAR recommender out there. I wonder what privacy law profs think of this.  Is this a small snafu or an electronic privacy invasion?  My instinct would lean toward it being a minor issue, but I'm not one of the applicants.

Macs in Law School

When I stand at the front of a class, staring at a sea of laptop lids, I always note the couple of Macs in the room … well, sometimes it’s only one. Why I notice, I really don’t know — Although I prefer the Apple platform to Windows, I’m not one of these crazed Apple worshipers. It’s just a computer. Maybe I simply appreciate those students willing to battle SofTest each semester from a different platform. Or maybe I have a soft spot for spawn-of-Satan conspiracy theories.

But for the folks in law school environments using Macs, one of my Mac-using students called my attention to a blog run by a group of law students, “Mac Law Students.” It appears to offer some decent product reviews and advice on using Macs in law school, especially at exam time.

Do-It-Yourself Reverse Browsewrap

Inspired by Ian Ayres’s LiabiliT (back story here), I've added some text to my browser’s User-Agent string, so that every time I point my browser to a web site, my computer includes in its initial request this little statement:

By responding to this HTTP request, you accept legal responsibility for any resulting harm.

Like Ian with his T-shirt, I would be interested to hear what legal effect (if any) people think this statement has. Have I successfully bound the web site to a reverse-browsewrap contract?

Some theories of browsewrap would say that I have, which I take to mean that there is something deeply wrong with those theories. It is impossible for a web site operator to have its software parse and understand the natural-language meaning of arbitrary text sent to it by a browser. To say that the web site operator has “agreed” by sending a response would be like saying that I have “agreed” to a contract by nodding politely at someone talking to me in Esperanto. It’s simply not reasonable to infer an intent to accept from my—or the web site’s—actions.

Thoughts?

(Firefox users, if you’d like to do the same, point your browser to about:config, right-click, select New > String, enter “general.useragent.override” for the preference name, and type in your new text. Fuller explanation here. You can also install User Agent Switcher to automate the process, or RefControl if you’d rather override the referrer part of the HTTP request. Do note that messing about with the information your browser transmits has privacy implications.)

On Being Broken

Computers are broken. They have always been broken, and always will be. This may not be a bad thing.

Many great computer technologies never come close to their creators’ full vision. When Doug Engelbart gave his legendary 1968 demonstration of the first fully-worked-out mouse-driven computer interface, “dealing lightning with both hands,” he set forth a Platonic ideal of interactive computing to which the WIMP (Window, Icon, Pointer, Mouse) interfaces that dominate personal computing today are nothing but a series of footnotes. In many ways, they fall far short of his vision; for example, his team worked with many-buttoned mouses, so that entire operations like cut-and-paste could be accomplished without touching the keyboard. The comparatively inarticulate systems we use today have been called, not without justification, “point-and-grunt.”

Or consider two early visions of the Web. Ted Nelson saw the power of hypertext (indeed, he coined the term) incredibly early. He’s spend the last four decades trying to create interactive computer systems for linking information together. He considers the Web a flawed, painfully incomplete implementation of some of the ideas. And indeed, some of his criticisms of it ring pretty true. Pages disappear all the time; you can’t easily see what other pages discuss the page you’re looking at. And indeed, compared with Vannevar Bush’s memex, even today’s most sophisticated Web user with the most sophisticated search tools and the most advanced storage system, is still blundering almost in the dark. The visual, almost tangible, trails of information constructed by researchers that Bush envisioned remain largely out of reach.

It’s possible to see the systems we currently use as horrible corruptions of these ideals. Others (Apple, Microsoft, Tim Berners-Lee, etc.) saw just enough of the vision to rip it off badly. But it’s also possible to see the systems we currently use as being, well, pretty usable. New users of Engelbart’s mice needed weeks of training; by contast, pull-down and pop-up menus, if less elegant, are much easier to learn graudally through experimentation. Making two-way links work would require much tighter coordination between web sites, making it more difficult simply to throw new pages up onto the Web and creating new possibilities for spam and abuse. Compromising a bit on the vision thing can be precisely what makes a system possible in the first place.

And that’s not to say that once we’ve gotten up and running with a compromised, half-broken system, we’re stuck with all of its limitations forever. The Web today is significantly more robust and two-way than it was a decade ago, thanks to such technologies as link: searches, Trackback, and the Wayback Machine. Our pointer devices are getting cleverer, too: the mouse wheel is not to be laughed at and Apple’s move into multi-touch could bring Minority Report to the masses. In the words of Richard Gabriel’s classic essay Worse is Better : “Therefore, the worse-is-better software first will gain acceptance, second will condition its users to expect less, and third will be improved to a point that is almost the right thing.” That’s one view, at least.

Application of this claim to the design of legal systems is suggested as a topic for the comments section.

Incantations, Legal and Computational

On Monday, I blogged about the theory-practice tension in computer science and in law. Today, I'd like to talk about another link between the two fields: that both disciplines are attuned to the incantatory power of language. Programmers and lawyers work with systems in which speech acts play a central role.

Most of the work in programming consists in taking a vague idea of what you would like to have happen and expressing that idea in the tightly-constrained artificial grammar of a programming language. This process is a particularly rigorous form of translation that requires you to think through your idea in quite precise detail. As programming professor Donald Knuth says, "Science is what we understand well enough to explain to a computer. Art is everything else we do." But once you are done, the resulting program doesn't just express your intended meaning; it actually executes it. Every valid utterance in a programming language can be parsed into a specific sequence of instructions, which a computer can then carry out. You get a set of pretty pictures on the screen, or an electronic banking system, or an email program, or one of the other millions of things computers can do. The dword is made flesh.

Lawyers are also familiar with the power of words to shape the world.. The Constitution is somehow more binding than other scraps of paper with writing on them. A judge speaking from the bench makes things happen when she renders a judgement. Yes, we can analyze this power in Realist terms, identifying the human institutions and social expectations that carry out judgments, create respect for "the law," and ensure that a community treats these supposedly binding words as something more than flap-jawed jib-jab. But we could do the same for a computer program; without a computer and people willing to use that computer, it's just an abstract idea, a potentiality. The point of unity is that the right words, promulgated in the right way, make stuff happen. Lawyers attend to nuances and to precise expression because there are consequences for getting the details wrong. The wrong guy gets arrested; the cotton arrives on the wrong ship Peerless.

There are limits to the parallel, and one difference is particularly frustrating for techies encountering the law. They are used to a world in which the nuances of language may be complex and counterintuitive, but remain fundamentally predictable. "(+ 2 3)" in LISP always evaluates to 5. The kind of logic that works well for such environments can fail badly in a courtroom, where meanings are often negotiable and the most formally correct reasoning can be undone if the result would be unjust or inconsistent with a statutory scheme as a whole. It can drive a programmer absolutely batty to watch the actual legal system in action, with inconsistencies and ambiguities all over the place. It can be hard for them to recognize that these are features of the legal system, not bugs. The practice of computer programming would fall apart if you could always argue about what the result ought to be; the practice of law would fall apart if you couldn't.

Faint Praise for Jerry Falwell

Tony Mauro has mentioned the late Rev. Jerry Falwell's unintended contribution to free speech law with his unsuccessful lawsuit against Hustler Magazine. But the always-controversial Falwell also made some significant free speech law in another of his legal crusades against those who took his name in vain. In Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), the Fourth Circuit allowed a politically-motivated typosquatter to continue criticizing Falwell at fallwell.com (note ye well the spelling). The story is inside . . .

Christopher Lamparello registered the site in 1999 to criticize Falwell's views on homosexuality. After a few years of cease-and-desist throat-clearing, Falwell sued in 2003, claiming trademark infringement and cybersquatting. Fourth Circuit caselaw on cybersquatting in parody and criticism cases had been strongly pro-plaintiff since PETA v. Doughney, 263 F.3d 259 (4th Cir. 2001), in which the court denied a parody defense to a "People Eating Tasty Animals" site at peta.org. The PETA court reasoned:

The domain name peta.org simply copies PETA's Mark, conveying the message that it is related to PETA. The domain name does not convey the second, contradictory message needed to establish a parody -- a message that the domain name is not related to PETA, but that it is a parody of PETA.

This language set what appeared to be an impossibly high standard for any web site whose URL included a trademark. Under it, it doesn't matter what the site actually contains; whatever damage is caused by the "message" in the domain name would already have been done before the user even sees the site itself.

When Falwell tried to rely on PETA, however, Lamparello won by pleading a defense, not of parody, but of no likelihood of confusion. Quite reasonably, the court concluded, "No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions, and his interpretations of the Bible." The most interesting part of the opinion, for my money, is how the court deals with PETA, which ought to have been binding precedent. (Indeed, Judge Michael sat on both panels):

PETA simply outlines the parameters of the parody defense; it does not . . . otherwise diminish the necessity of examining context when determining whether a likelihood of confusion exists.

I've always found this distinction troubling. I don't like that so much turns on whether parody is pleaded as a defense in its own right or merely as a reason to think people wouldn't be confused. (Parody is hardly alone in this incoherence; other trademark defenses float in and out of the likelihood of confusion analysis, depending on the phase of the moon and the judge's middle initial.) In hindsight, the PETA court seems almost to be saying, Doughney would have won if only he'd dropped the parody argument from his appeal. There's also the difficulty that the two-step theory of parody from PETA is basically the "initial interest confusion" theory of trademark infringement, a theory emphatically rejected in Falwell.

My qualms about the case analysis aside, I'm glad that PETA has now been more or less confined to its own facts. It depended on a mechanical one-size-fits-all idea of how the Web works, cut sharply into free speech online, and posed a risk of distorting Internet law well beyond trademarks. Falwell is now the leading trademark parody/criticism case in the Fourth Circuit, and it gives would-be Voltaires plenty of leeway to mock on. For that, we have Jerry Falwell to thank.

Pragmatic Practice in Law and Programming

Thanks to the Prawfsblawg army of thousands for having me here.  I’ll try to keep this painless.  Between the job market (thankfully) behind me and the actual teaching ahead, I’ve been reflecting a lot on just what it is that we do and ought to do in the legal academy.  My particular angle (or perhaps gimmick) is that I come from the computer science homeworld, where things are sometimes a bit different than they are here on Space Station Law.  I feel more than a little like an immigrant, identifying with both cultures but on the margins of each.  One thing I’d like to talk about during my visit is how computer science looks from the legal perspective, and vice-versa.

Back in college, one of my friends characterized computer science as “ruthlessly pragmatic.”  We were taking a dreadful course on operating systems at the time, and the classroom part of the course was less a set of lectures than a series of worked examples.  This is how a clock-face scheduler works.  This is how a linker rewrites addresses.  This is the code for malloc; let’s walk through it line by line.  There was some theory, but nothing whose applicability wouldn’t be obvious by the end of a 50-minute hour.  The course was an extreme example, but he was on to something fairly general about the subject.  Computer science is a pragmatic discipline; the field is driven by the needs of programmers.  It has generated some of the most beautiful mathematical ideas ever invented, but almost all of them were devised to deal with pressing practical problems.  Most working programmers either disdain the theory entirely or take up only what they need to know to solve the programming puzzle in front of them.  Generations of computer science professors have struggled to move students from the first camp to the second.

So here, perhaps, is a way in which my two orbits are not so different.  Practicing lawyers, like practicing programmers, are professional pragmatists.  Both must make their cases (and case mods) out of the materials they have available; both starve or eat steak depending on whether their creations work.  The day-to-day practice of law is unlikely ever to require much high theory.  We can mourn that fact because it means that they look at us with suspicion, or celebrate it because it frees us to chase Truth and Beauty—and it will remain a fact either way. 

That said, I think I bring with me from my programming days something of a faith in the utility of theory.  I’m grateful to the professors who insisted that learning first-order logic and recurrence relations would make me a better programmer.  It did.  The mathematics became a grounding in careful modeling, a toolkit of ways to make sense of a challenge and look for a structured solution.  The very pragmatism of our theory became a kind of virtue; the more pieces of it you knew well, the more effectively you could generate creative solutions and be confident that they’d work.  (One of my proudest moments in the programming world involved using de Bruijn numbers to implement undo in our product.) 

So too, I hope, in law.  All of the talk of learning to “think like a lawyer,” all of our in-class excursions into policy arguments, all of the law-and-economics models, and all of the endless flood of new abstractions: the argument is that legal theory helps win cases and solve clients’ problems.  It opens students’ eyes to new levers they can pull, to structured ways of making sense of a mess of facts, to the aesthetic difference between a good argument and a bad one, and to the nuances of every word they use.  That’s not all we do, but in this complete breakfast of law teaching, it’s an important part.

Hey, My USB Drive Stopped Working!

This has nothing to do with law, but I bet others have run into the following issue, the solution to which I found to be pretty obscure.

I spent a couple of hours over the weekend diagnosing a puzzling problem with a pair of USB flash drives: I couldn't save or add new files to the drives, even though the drives were less than half full. Doing so would generate several different error messages, depending on the program, but all of which were a variation on the computer being unable to write the file to the drive. However, I could still edit and save EXISTING files on the drive, as long as I didn't give them a new name.

The solution? Move more files into folders, and keep them out of the "root" folder of the drive (i.e., not in any folder at all). It turns out that there's an upper limit on the number of files that can be stored in the root folder.

Details after the jump...

Most USB flash drives use the old File Allocation Table system for keeping track of what files are stored on the disk. The FAT is basically just the index of what's on the drive. FAT dates all the way back to DOS, when hard drives were pretty limited and "long file names" (i.e., longer than 8 characters) didn't exist. (Why is this being used on USB flash drives instead of NTFS, which is used in Windows XP, or even FAT32? I have no idea.) Windows 95 used FAT in order to remain backwards-compatible with DOS, but the result is that Windows 95 had to use a trick to store long file names, essentially giving such files two entries in the file allocation table. While the FAT system can index at most 512 files in the root folder, using long file names decreases the maximum number of index entries.

The result is that a drive acts as though it is full, when really it's just the main index that is full.

The Place of Artists' Endeavors in a University

One of the unexpected joys of service to the university is that I get to attend meetings of the "XYZ" committee, which addresses various issues of significance to quality and governance standards across the university. Recently, a particularly fascinating question arose, but I'll leave the names of the players out, since I'm more interested in thinking about this issue in the abstract and seeing where the different arguments go.

Here's the question: should graduate students in a research university get to sequester or limit access to their dissertations so they can privately reap the benefits of future publication with a for-profit publisher? Those of you enjoying the discussion Bruce led last week regarding SwapNotes might want to weigh in.

In the sciences context, my sense is that issues over patents are worked out ex ante through contract and universities are obligated to share the fruits of research especially when such research is funded with public money. Thus, graduate students working in university labs probably have to share patents' revenue with the university but practices may vary by agreement. In the social sciences and humanities, professors tend to enjoy the "teacher" exception to copyright's work for hire doctrine that Bruce and Michael Froomkin talk about in the comments to Bruce's post. My sense is that such an exception enjoys an uncertain status in law today, but that express contracts between faculty and universities would govern the issue, and that copyright for those works is not a property right invariably enjoyed by faculty, though in the absence of an asserted right by the university, it probably belongs to the professors. (I checked with Bruce and his sense was that as a matter of practice copyright tends to belong to the professors, but the law was a bit unclear. There may be an implied license for the university in the absence of a contractual provision to the contrary.)

So what's the deal with graduate (or less relevantly, undergraduate) students? The tough issue arises when universities say: we want a digital copy of that dissertation so the fruits of your state-subsidized research can be shared with the world. In that situation, the university might be impinging on the ability of graduate students to sign contracts with commercial publishers, who want exclusive distribution rights and would view the publication of a novel to be pretty worthless as an investment if it's substantially available online via google and a library's electronic database.

Thinking this through: Graduate students might not enjoy the "teacher exemption" to the work for hire doctrine if graduate students are paid employees of the university because they are not yet full-fledged "teachers." On the other hand, unlike professors, grad students are often paid principally to teach, not to research. This is pretty tricky, since it would suggest that grad students should then benefit from a "teacher" exception...

My sense is that in the absence of a contractual provision to the contrary, students will own the copyright in their works, even if they are also employed by the university or if they are producing such a work for credit.
In most cases graduate students have not signed away their copyright interests to the school, though I wouldn't be surprised if public universities (and for the purpose of this post I'm interested only in public universities) do give notice to graduate students that a dissertation must be archived at the university's library. If they do give such notice, that might create an implied license and the question is what is the scope of that license, and what ought it to be? Depending on the context, students might have already agreed to that in the particular context of university handbooks that tell students they must lodge copies of their work with the library for purpose of graduation.

The concern raised above about publishers seeking more rights is especially salient for students graduating with advanced degrees from creative arts programs, where their dissertation actually is the production of creative writing, music, or art. One major concern of imposing a library's right to reproduce the dissertation electronically is a collective action issue: if one school insists that the library of that school creates and makes available a digital file of poetry or a novel, then students will go to schools where that requirement doesn't exist. Unless all the creative arts programs abided by the same rule, students would be drawn to places where they can ply their craft in subsidized domains but then reap all the private benefits.

Why might universities seek such digital reproduction rights? Perhaps out of fidelity to the idea that if the state's taxpayers are subsidizing the research, they and the scholarly community should enjoy (free? easy? immediate?) access to that research when submitted as part of a PhD or Master's degree. Of course, in the case of students in the performing or creative arts, the dissertations are not exactly "research." Thus, to save the creative arts students from this otherwise plausibly reasonable practice of promulgating knowledge, one might try (however perilously and controversially) to distinguish between departments whose dissertations are "knowledge" and those whose departments are not in the business of producing conventional knowledge, but rather "arts." Thus, English PhD's about Shakespeare would be promulgated, but if Shakespeare himself is in your creative writing department, then he can sequester his dissertation until it's been published. The downside of such a rule is that it also hurts those budding Shakespeare scholars trying to get Norton or FSG (or HUP/CUP/OUP) to publish their books too. Is this distinction tenable? Desirable? If it is both tenable and desirable, does it say anything about what universities should be in the business of cultivating or producing?

Finally, here's a possible problem: if public universities don't assert any dissemination norms beyond lodging a paper copy of the dissertation with the university library, what rights or interests can/ought the taxpayers assert if Billy Shakespeare decides to burn his dissertation, after lodging his one paper copy in the archive of the library? Do the taxpayers have any legitimate interests then? Or is it too bad, so sad? Maybe Lior will weigh in...

Much of this back and forth can be resolved, I suspect, if there are clear expectations enunciated at the outset by the university. My own sense, probably, is that if the university didn't articulate its interests clearly, then at least in the interim silence, the students should be able to effectively sequester their works until publication (by allowing only a paper copy in the library). Going forward, I'd probably say that everyone must lodge digital reproductions, but the "arts" students can sequester public access for ten years upon graduation; but after that, the university can publish its digital files in its database for Google to pillage. For departments in the business of "knowledge" production in the form of articles, I'd say a policy of no sequestering is appropriate to allow for immediate dissemination. I'd prefer to have no sequestering as the rule in all non-arts disciplines to facilitate dissemination, but I'm aware that some university presses won't publish books that are drawn dominantly from sources already available. (Hence, the problem with the scholars who are expected to publish their dissertation in book form, rather than in articles.) What do you think should be done? Should public universities be able to assert any rights or interests in the works of their students?

All Quiet on the Internet Front

There's an unbelievable amount of Internet Law news hitting the wires today.

The litigation over the Child Online Protection Act has finally produced a judgement on the merits, after two Supreme Court decisions on the preliminary injunction and a big kerfuffle over broad third-party subpoenas issued to search engines by the government during discovery. The ACLU et al. won, unsurprisingly.

Viacom has been sued under 17 U.S.C. § 512(f) for sending a takedown notice to YouTube that demanded that a parody that contained clips of the Colbert show (a meta-parody, I guess) be removed.  I haven't read the complaint yet, but the plaintiffs will have to show that Viacom "knowingly materially misrepresent[ed] that [the] material or activity" at issue was infringing -- in other words, that Viacom knew (not just should have known) it was a parody protected by fair use. That seems pretty unlikely.

On a related note, Wall Street Journal columnist Walter Mossberg had a column this morning on the Viacom v. YouTube suit, on which I hope to post more thoughts soon.

NBC Universal and News Corp. (i.e., Fox) have agreed to enter a joint venture that will make video clips and entire television episodes and movies available online, some of it for free. There's very little detail at this point, but obvious questions are what quality the video will be, how easy the site will be to use, what sort of security the videos will have, and whether it draws enough of an audience. I watched my first episode of broadcast TV online recently, and while it was smaller than I prefer, it got the job done. Oddly, while the show itself was high quality, the commercials were pixelated and skippy. But that's better than the reverse I suppose.

And Justice Breyer recently got an earful about the high cost of e-discovery. From the article, it sounded pretty clear what litigation associates are going to be doing during all those extra hours they're going to be putting in this year.

It's days like this make teaching Internet law challenging. Just this morning I told my students that there wasn't much law yet on Section 512(f), but we may get a third (or fourth) important decision on it. And online video distribution seems to be mutating by the hour.

Podcasts from 2007 AALS Conference

. . . now available here. 

Sperm Sorting, Divergence, and Intimate Discrimination

I'll go back to talking about fellowships in my next post, but a recent New York Times article provides a good jumping off point to discuss something I have been thinking about recently (and maybe even writing about more formally).

The article discusses the development of sex selection technology in the U.S.  It reports that:

Another method, used before the eggs are fertilized, involves sorting sperm, because it is the sperm and not the egg that determines a baby's sex. Semen normally has equal numbers of male- and female-producing sperm cells, but a technology called MicroSort can shift the ratio to either 88 percent female or 73 percent male. The enriched specimen can then be used for insemination or in vitro fertilization. It can cost $4,000 to $6,000, not including in vitro fertilization.. . .  The technique has been used in more than 1,000 pregnancies, with more than 900 births so far, a spokesman for the clinic said. As of January 2006 (the most recent figures released), the success rate among parents who wanted girls was 91 percent, and for those who wanted boys, it was 76 percent.

I am particularly interested in the question of whether sex selection constitutes discrimination, but before I get to that let me briefly set out some of the other major arguments marshalled against sex selection, after the jump.

One major set of arguments focus on the method for selection used, prenatal testing plus abortion in the United States, infanticide in some other places.  While there is an obvious comprehensive moral disagreement in the United States as to when (if ever) abortion is justified, sperm sorting significantly dampens if not entirely eliminates these method concerns (perhaps there is some religious or moral tradition with weak prohibitions on sperm sorting).

A second set of reasons focuses on the consequentialist fear that the aggregation of individual choices as to sex selection will lead to a gender imbalance of new babies that will (a) imperil our reproductive future, and/or (b) have bad social consequences for the gender that ends up behind. 

This is an empirical question.  Some research shows that only a very small percentage of Americans (8% in one study ) would choose to use sex selection (although some earlier research suggested a higher percentage).  And while there is evidence of a strong bias towards boys in some countries (see this research on Pakistan, for example) , the work I've seen in the US is less clear on whether one sex is preferred in a significant way (although there appears to be good evidence of a stronger American preference for having the firstborn be a boy).   Moreover, even if there was a significant effect, individuals might adjust their preferences based on availability -- if people are favoring boys and there is an over-supply, you might favor a girl so she has more suitors to choose from or disfavor a boy for fear he will never marry.  For all these reasons, this argument has not become decisive for me yet, but if you feel differently consider a parallel case that does not have the same problem: sex selection among adoptive parents.

In both the adoption and prenatal sex selection case, a further claim that is sometimes marshalled is that sex selection is discriminatory and ought to be prohibited for that reason alone.  This is a very interesting claim, and one that forces us to confront a larger question of whether the term discrimination makes sense (as a moral judgment) in the context of intimate relationships. 

Consider a potentially parallel question that I have found to deeply divide my friends -- whether individuals who have racial preferences in dating are behaving immorally or whether it is instead an amoral matter, a preference that is not subject to moral praise or blame.  Those who believe in the practice's amorality usually suggest it is just about "attraction," but all forms of racial preference could potentially be reducible to similar "feelings," and yet we do not tolerate them on that basis.  A more reasoned defense might go as follows: discrimination involves making decisions based on morally irrelevant factors, such as race and sex.  But in the dating race and sex are not morally irrelevant,  they are instead highly relevant to attraction, which is a prerequisite to dating. (I'll note but not explore the further interesting issue of whether the connection between attraction and race (or even sex!) is "constructed", and whether the answer to that question makes a difference from the point of view of morality). 

But how defensible is this intuition and how wide is the space for "intimacy" where race and sex are relevant?  If "attraction" is the 800-pound gorilla (if only because it is difficult for many of us to imagine being attracted to both sexes), consider instead friendship.  Is a person's sex morally relevant to friendship?  If someone preferred having male friends to female, would they be a misogynist, or would that instead be an amoral choice?

To relate the question back to sex selection, is it possible that the decision to have a child of one sex rather than the other is likewise an amoral choice.  I may just "prefer" boys, or may just feel more competent at raising them, or something along those lines (a same-sex couple might very well have such gendered feelings about competency, whether they are legitimate or not.) Is childrearing, like dating, an intimate space where we think ordinary principles of discrimination do not apply?  We could make this space "bigger" to encompass hard moral (if not legal) cases in  hospital administration/employment, such as whether to respect a woman's racial or sex preferences as to which Ob-Gyn delivers her baby, or gender or race preferences as to the nanny one hires to care for one's kids.

One pushback I'd expect from someone like my old boss and mentor Michael Sandel, is that it is a corruption of the notion of parenthood to try and act on such preferences, or as he puts it in a piece on enhancements more generally: "The problem lies in the hubris of the designing parents, in their drive to master the mystery of birth. Even if this disposition does not make parents tyrants to their children, it disfigures the relation of parent and child, and deprives the parent of the humility and enlarged human sympathies that an 'openness to the unbidden' can cultivate."

But if that is true, should we also condemn the parent who chooses by sex in adoption?  If anything, the harm there seems more tangible, since it is harm to a child who already exists and will not get adopted, as opposed to the harm of not coming into existence (there are echoes of Derek Parfit's Non-Identity Problem here).  And what about the dating selection case?  Does it corrupt the practice of romantic love to think that things like race ought to be relevant?

Beyond all this we have the further question of whether we think the law ought to be involved in regulating any or all of these examples of discrimination.  Dating selection seems an area where it is pretty clear we don't want the law to intervene, perhaps because we think it powerless to do so.  But sex selection seems a harder case.  A law criminalizing sex-selection technology would be no harder to enforce than a number of other laws on the books.  Should the law and morality be symetrical here, or  this an area where "divergence" (to use Seanna Shiffrin's term ) between law and morality is justified?

Obviously this post asks more questions than it answers, and wades into some controversial territory (hopefully with sensitivity), but I have been thinking about this issue recently and look forward to getting some input from others.

Food Science and the Limits of Empiricism

The cover story in today's N.Y. Times Magazine is on food science and the "age of nutritionism."  Michael Pollan, a professor of journalism at Berkeley, argues that the last thirty years of food science, ostensibly aimed at making people healthier, have actually made matters worse.  He argues that the effort to reduce foods to their component parts -- namely, nutrients -- has left Americans focused on a never-ending rotation of different nutrients instead of on the importance of the foods themselves.  And I think his argument has something to say, as well, about the general methodology of scientific empiricism as applied in any discipline, including the law.

Pollan argues that foods are impossibly complex.  He argues that whole foods, such as whole grains, fruits, vegetables, and leafy greens, are the best foods for human consumption, based on a broad-based perspective of human history and environment.  But according to Pollan, food science has spent the last thirty years trying to isolate the exact nutrients in these foods that make us healthier.  This scientific effort has resulted in an ever-changing series of findings, as scientists proclaim the value of a particular nutrient only to find its effects much less dramatic than initial findings suggested.  Pollan argues that this is a result, in part, of an effort to isolate nutrients without the actual ability to do so; foods are so complex that it is impossible to reduce them to simply a list of nutrients.  But scientists continue to do so, with predictably incomplete and ultimately erroneous results.

Pollan's critique of food science has lessons for other forms of empiricism.  Here are a few:

Limits to Empirical Methods.  Pollan spends the bulk of the article explaining the flaws in various nutritional studies over the last thirty years.  He notes that for each time the benefits of a new "nutrient" are discovered, it is later revealed that the nutrient itself does not really create those benefits.  Instead, it is the nutrient working within its particular environment -- namely, within a certain type of food -- that may create the nutritional benefit.  Pollan goes through a series of nutritional fads -- low-fat foods, beta carotene, omega-3 oils, low-carb foods -- to show that each has a kernel of truth but is woefully incomplete on its own.  Pollan chalks these failures up to the effort to oversimplify something that cannot be simplified.

Quantitative empirical studies share these same limitations.  They depend on the researcher's ability to isolate a single variable and control all other "factors" that might influence the decision.  Certainly, all empiricists would recognize the inherent difficulty in doing this.  And better empiricism does a better job at actually controlling extraneous variables.  But as Pollan suggests, there is some degree of hubris in even attempting this.  From his perspective, we are nowhere near the day when scientists will actually be able to explain how foods actually work.  While he pays some respect to the continuing scientific effort, he conveys a skepticism that it will ever actually be able to tell us what we need to know.   

Overgeneralizing from the Results.  Pollan would not have a problem with food science were its findings not so dramatically announced by the media and so extensively coopted by the food industry.  For it is the conclusiveness of the studies and the real-world changes that such studies prompt that really cause the trouble.  For example, Pollan describes how the low-fat trend in the 1980s actually prompted folks to eat more carbohydrates than they had been before.  This made diets worse, not better.  Similarly, the recent study finding that low-fat diets did not reduce health risks was weak science, according to Pollan.  But the real problem is that the media's trumpeting of the study encouraged the average person to pick up a quarter pounder with cheese, despite the study's questionable and inconclusive results.

This, too, is a problem for all empiricists: how to acknowledge that their results are simply one small piece of data in a ongoing process of data collection and interpretation, while persuading their peers that their study represents a critical and important step forward for the discipline.  And with law in particular, there is the temptation to argue that a particular empirical result inexorably leads to a particular policy prescription.  After all, if law review articles with no empirical support can make such claims, why can't demonstrable scientific facts?

Ultimately, I think Pollan swings too far the other way.  Although food science has inherent limitations, that does not mean that its effort to isolate discrete nutrients is ultimately fruitless.  The fact that Vitamin C prevents scurvy is an important and useful bit of information, and eating oranges is not the only way to get the benefits.  Findings like this help prevent a wide array of diseases.  Ultimately, food science may lead us to understand a lot more about food, and that understanding will help us in our everyday diets and in times of food crisis.  But I agree with a more moderate version of Pollan's thesis: empiricism is important, but we cannot focus on short-term findings as the new answer to all our problems. Putting food science in its context, and using a broader, more comprehensive vision in coming up with our actual diets, is a wiser course. 

Out with the Old

Wired news reports that Western Union will discontinue its telegram service as of January 27, 2007.  Over 160 years ago, Samuel Morse sent the first telegram from Washington D.C. to my beloved city, Baltimore.  Although individuals had largely traded in the telegram for the telephone system by the 1950s, Western Union stood by its messaging service.  But the increasing use of VoIP telephony, cellular phones, and email no doubt finally convinced Western Union that it was time to lay the telegram to rest.  Morse's first message can perhaps be said about today's emerging information technologies that replace the telegram--"What God hath wrought?"    

Cellphone Spy

Cellphones provide more information about us than ever before.  Not only can the government track our whereabouts using GPS devices embedded in our cellphones, but the FBI now uses cellphones to eavesdrop even when our phones are turned off.  To activate these so-called "roving bugs," mobile providers remotely install software that turns on a cellphone's microphone and transmits audio detected by it to a FBI listening port.  Computer-surveillance expert James Atkinson explains that if  "a phone has in fact been modified to act as a bug, the only way to counteract that is to either have a bugsweeper follow you around 24-7, which is not practical, or to peel the battery off the phone."  Security-concious corporate executives reportedly remove the batteries from their cell phones to avoid unwelcome audiences.

In a recent opinion, federal district court Judge Lewis Kaplan (S.D.N.Y.) upheld the FBI's use of such a "roving bug" in a racketeering case.  Judge Kaplan concluded that federal wiretapping law sanctioned the use of a cellphone bug to capture hundreds of hours of a suspect's conversations because the FBI obtained a court order and because "alternative methods of investigation either had failed or were unlikely to produce results" given the subject's deliberate avoidance of government surveillance.  Serious discussion is warranted about the practical and constitutional significance of these cellphone spies.   

The Year of Computing Dangerously

According to the New York Times, 2006 ended with an infamous information security milestone.  Last month, computer hackers obtained the Social Security numbers and other sensitive personal information of 800,000 U.C.L.A. employees and students.  Aetna lost 130,000 employee computer records, and a thief stole a Boeing employee's laptop containing the SSNs of over 382,000 former and current employees.  One of the folks affected by those security breaches has the dubious distinction of standing as the 100 millionth person to lose their personal data in a security breach in the past 18 months.  Unfortunately, experts predict that the state of information security will further degenerate this year, exposing even greater numbers of individuals to the threat of identity fraud.

As has been widely reported, individuals with pressed financial resources have great difficulty repairing their credit history after being struck by identity theft.  The money lost and time spent trying to correct damaged credit histories ultimately could have a material adverse impact on the U.S. gross domestic product.  At a more granular level, data leaks, and the identity theft they risk, pose other less publicized problems that will affect the legal community.  State bars require law graduates to present their credit history as part of their character and fitness review.  Students whose credit has been decimated by an identity thief now face additional hurdles beyond passing the bar to practice law--proving that a thief's loans and unpaid mortgage bills are not their own.  It appears that the information security problem will make nabbing a license to practice law even harder in 2007.

Westlaw Blues

Many of us spend a lot of our time using online reseach services, yet I think the blawgosphere has been largely silent about how these services can be improved.  This is all the more surprising because Westlaw and Lexis charge many of their customers hundreds of dollars per hour, often just to access public documents!  Here are some preliminary suggestions for improvements to Westlaw, the service I principally use.  Feel free to chime in with your own suggestions, or to tell me that I've missed some features that Westlaw actually does offer:

(1) Place bluebook-formatted citations to all sources at the top of every document.  By cutting and pasting these uniform citations, Westlaw can save time for attorneys, law clerks, professors, students, and law review editors.  I realize that citation formats vary by jurisdiction but Westlaw could offer default preferences based on one's preferred jurisdiction or citation style.  In any event, right now, many documents offer no citation at all, and those that do hardly resemble any bluebook-style.  When I use Westlaw's "copy with reference" feature, the reference often puts the document title in ALL CAPS, a format that virtually no one uses.

(2) Allow me to create multiple projects in Westlaw.  I would like to drag-and-drop particular cases or other documents into a project folder (that may contain subfolders, as well).  I'd like it if I could highlight particular passages of a case or article on screen, add comments to the document, and have all this information stored in my project folder.  Documents and notes in these projects should be searchable.  We should be able to give access to a project to certain other Westlaw users, like those at the same school or law firm.

(3) Speed up the interface and search tools.  Westlaw's data set, large as it is, is just a fraction of the size of Google's.  Yet Google is much faster and is free! (I do think Westlaw has sped up noticeably, though, in recent years.)

(4) Now that most people have broadband connections to the Internet, Westlaw can stop dividing up large cases and law review articles into difficult-to-search pieces. 

(5) It's time for Westlaw to buy up the .pdf's for law reviews.  Westlaw's format is rather unwieldy.  Relatedly, it is sometimes confusing when cases offer page numbers in multiple formats, especially when the page numbers happen to be numerically close.  Put a check box at the top of each case that allows me to see only the page numbering styles that I want to see.

(6) If additional features complicate the service, allow us to pick whether we would like beginner, intermediate, or advanced services.   The amount of control that we're given over the search function (not enough now!) could also vary based on this selection.  My colleague, Tom Smith, has made progress in developing alternative search methods, which suggests that Westaw has yet to do all it can to make its key feature--searching large amounts of text--as helpful as possible.  Your turn. . .

Are you a Gamer?

I confess I've never played an electronic game since I used to play Colecovision back in the 1980's. But my cousin Uri has recently launched a very smart website called PlayOn Arcade that might appeal to you and the gamers you know. The offer includes 5 free hours of online gaming. (Note: gaming is not gambling, at least not always...)

The pitch is after the jump.

At PlayOn Arcade, "we are offering a new way to buy games on the web. Instead of having to pay for the game in advance (usually $20), and having the risk that you will get bored with the game, or not like it after a few days because it becomes hard or repetitive. Our system let's you buy the game as you play it. You pay 1 cent per minute, and all the credit goes towards the game purchase, so that once you hit $20, the game is your forever and you do not have to pay anymore.

This way, if you do not like the game after 3 hours, it only cost you $1.80, and if you really like it (enough to play more than 33 hours) you actually own the game at the same price you would have paid to buy it. So there is no way you can lose."

Simple, try it, play it and tell uria@doubletrump.com what you think. The more the merrier. Even if you don't like games, or not sure if they do, please tell your friends and family, as they might know someone who does. To make this even more fun, here's a special promo code that will give you 5 hours of free game play. Type the code FNF06UA when you register and you will get this credit.

Here's how to use it:
1. Go to http://www.PlayOnArcade.com
2. Browse our game collection and download games that you like (you can use your 5 hours on more than one game)
3. After installation, open the game and click "Pay as You Play with PlayOn"
4. Follow the process and enter the promo code FNF06UA when you get to the Create Account screen

That's all. Enjoy!
Happy Holidays,
from your friends at Prawfs and PlayOn Arcade.

The Precydent Search Engine and the Web of Law

My colleague at USD Tom Smith has a fascinating study on lately legal citation networks. In his paper The Web of Law he researches the structure of citation of nearly four million American legal precedents to shed light on how the legal system evolves, demonstrating that the American case law network has the overall structure that network theory predicts it would, with clusters, node and patterned aging.

Now Tom and his co-author Antonio Tomarchio, a mathematics graduate student at the Polytechnic of Milan and the Ecole Centrale Paris, have launched http://www.precydent.com. Tom desribes it as “a new kind of legal search engine…Unlike the search engines at Westlaw, Lexis and other legal research services, the Precydent search engine is based on the legal citation network and various Web 3.0 technologies.  Like Google's PageRank algorithm, Precydent's algorithm traces its intellectual ancestry to important discoveries about networks made by Cornell computer scientist Jon Kleinberg, who also generously assisted Antonio in his academic research on the legal citation network.  The algorithm and its many innovative features are the creations of the Precydent team. The search engine does use sophisticated techniques to analyze click streams in order to adapt to users' individual and collective preferences.  While I do not think this raises any privacy concerns, I should at least note this feature of the technology.  Analyzing user behavior is an important part of Web 3.0 technology.” When the founders compared the performance of the Precydent search engine to that of the natural language search engines of Westlaw and Lexis, they found that “Precydent does a much better job in returning relevant and authoritative US Supreme Court cases (as judged by human experts) than do the natural language engines of Westlaw and Lexis.”

Where Have You Gone, Tarlton Law Library? A Nation Turns its Lonely Eyes to You

For years, the Tarlton Law Library has quietly, thanklessly performed a valuable service: posting, each day, the table of contents of all its newly received law journals, domestic and foreign, in a fairly neat presentation.  The site is here.  Every now and then the site seems to go dark, and I begin to break into a cold sweat, wondering whether I'm about to lose a vital resource and valuable part of my procrastination scholarly routine.  And for the past couple of days, when I click on the links for the contents, I have gotten the ominous message, "The page you are looking for could not be found." 

I don't know whether we have any readers chez Tarlton, but if so, please tell me it's a momentary lapse!  Losing this service would be like losing a trusted friend.  I'm happy to post on SSRN and track new papers released there, and it's great to have access to legal scholarship without waiting out the long publication process, but Tarlton's law review contents page still performs a useful service.  Not every paper is released on SSRN, and some that are may go overlooked the first time around.  Also, it's useful to know when a journal has published a symposium, tribute, book review, or other special content that might not be revealed through SSRN.  Then, of course, it's useful to know what's being published in Canadian, English, and other foreign law journals, whose writers are less likely to post their work on SSRN.  And, even in an electronic world, it's just nice to know what the journals are actually publishing. 

Come back, little Tarlton!  If it's a question of money, just turn Joe Jamail upside down and shake him a few times; I'm sure a few more bucks can be dislodged.  

Interesting New Google Service for Authors

Another addition to “Planet Google,” this time directed at authors: “Docs & Spreadsheets.” The service permits subscribers to upload, organize and edit text documents and spreadsheets in html format, and to create them online. The service will convert uploaded documents from just about any format, and will covert them back into most formats too, including PDF. It thus permits mobile authors to maintain a central database of their work without having to carry their works in progress with them or remember to email work to themselves in advance. But perhaps even more interesting is the “collaborators” function, which allows authors and editors to work together online. Co-authors, for example, would not need to keep up with who has done what on the primary document, or spend time integrating two or more authors’ work into a central document – it all can be done within one document available online, which records when a registered collaborator has worked on the document. Journals and authors also can work much more directly with each other during the editing process.

A Gmail account provides full access, although sadly for Apple users the Safari browser currently is not supported. Firefox or Camino will have to do for now.

Bizarre Ad Postings on SSRN

So I’ve noticed that lately, when I go to view articles on SSRN, I have been getting a little pane coming up on the right hand side of the screen that gives me advertising links.  These advertising links are ostensibly based on the content of the abstract/article that I’m looking at, to try to match my interests with companies that want to sell me something. 

Now, my gmail account does this, too, and I’ve found it a bit disturbing.  (Recently, I came across a student note discussing the privacy implications of this; interesting, although it seems to focus pretty heavily on the law firm context.  See Jason Miller, “Don’t Be Evil”: G-Mail’s Relevant Text Advertisements Violate Google’s Own Motto and Your E-mail Privacy Rights,” 33 Hofstra L. Rev. 1607 (2005)).

In any event, this SSRN advertising raised a couple questions:

First, while I don’t like it, I guess I understand why Google does this.  Money, profit.  After all, they need to finance that acquisition of YouTube somehow.  On the other hand, I thought SSRN was a non-profit.  Maybe I’m wrong on that.  (Correction: I am wrong on that.  'Tis a for-profit.  What that means is that I should be getting paid for every time I've mentioned them :).  Of course, regardless of its organization, SSRN may need ad revenue to cover expenses.  I certainy don’t begrudge anyone, but I guess I’m just asking.

Second, the technology is not quite where you would hope it would be.  It doesn’t match you up seamlessly with advertisers, at all.  Because I’m egotistical (Er, I guess I am an academic? And we’re never egotistical… ) I took a look at my own abstracts (shameless link) to see what was being flogged there.

No surprise, the abstract for the article dealing with the fortieth anniversary of Title VII had links to employment lawyers.  The abstract to my contracts-dinosaur piece featured a link to a game, “dinosaur,” which actually made me want to check it out.  Where it started getting weird were my two pieces on information markets, which featured ads dealing with Pilates.  Ooookay.  And then strangest of all was the satire about law review publishing, an amusing piece of fluff I wrote with my colleague Brannon Denning. Everything from psychiatrists to days spas.  I tell you.  Maybe we're beyond help...

Copyright misuse and Grokster's progeny

In a very technical sense, the proprietors of peer-to-peer applications didn’t lose when the Supreme Court decided MGM v. Grokster last year. Rather, the Court merely announced legal theories on which the P2P companies were very likely to lose, and then remanded the copyright infringement suit to the district court for proceedings consistent with its holding. Grokster itself simply settled after the opinion came down, but StreamCast, another defendant in the matter and the company that marketed the P2P app Morpheus, contested the content industries’ motion for summary judgment. Yesterday, the Central District of California issued a thorough but largely unsurprising denouement to Grokster, entering summary judgment against StreamCast on the copyright inducement theory that the Court outlined a year earlier.

Among the various procedural means StreamCast deployed to fight the result was asking for additional discovery regarding, among other things, its copyright misuse claim. The district court dismissed this argument on a laches theory, but in so doing they discussed the substance of the issue and thus made their opinion a bit more interesting. Copyright misuse is a recently revived doctrine that flows from the equitable principle that prevents property owners from prevailing in cases where they’ve abused their ownership rights; it’s an intellectual property variant of the unclean hands doctrine. The effect isn’t to invalidate the copyright, but rather to preclude its enforcement so long as the misuse is ongoing.

Yesterday’s Grokster decision reviews the handful of federal cases to have addressed this issue and concludes that “the misuse defense applies when a copyright holder leverages its copyright to restrain creative activity.” The district court’s terse formulation of the defense raises a lot of interesting questions about its substantive contours and its functional underpinnings.

First, the district court rightly rejected StreamCast’s overly broad conception of the misuse defense as arising in the presence of “any use of copyright in violation of public policy.” If a defendant in an infringement suit could escape liability merely by invoking some open-ended notion of public policy, the exclusive rights afforded copyright owners in Title 17 would just about cease to exist. The district court’s alternative formulation is that it’s not enough to allege just any public policy violation, but that “the misuse defense applies only if a copyright is leveraged to undermine the Constitution’s goal of promoting invention and creative expression.”

From a conceptualist standpoint, there’s appeal in the position that the rights afforded copyright owners can sweep no more broadly than the Constitution authorizes. The intellectual property clause constrains Congress’s ability to create exclusive rights in intangible goods, so it’s hard to imagine how there could be judicial authority to enforce statutory ownership rights that Congress couldn’t have created in the first place.

Whether the district court’s approach imposes a meaningful practical limit though is another question. The effect of an owner’s use of a copyrighted work on the “progress of science” always remains up in the air. The brief but eventful life of widespread, free music swapping via P2P applications certainly cut into record companies’ profits, but I’m not sure if there was a concomitant decline in the number or quality of artists seeking to make popular music. More importantly, the notion that copyright misuse defenses should be evaluated primarily for consistency with the intellectual property clause’s purposive language doesn’t seem much of a practical improvement over the standard proposed by StreamCast.

The district court’s opinion itself suggests one alternative. In reviewing the handful of copyright misuse cases, the court identifies a common concern: that owners will leverage their exclusive rights over a work to extract value from the ideas that the work embodies. This might recommend a definition of copyright misuse that looks to a statutory, rather than a constitutional, standard. The familiar notion that copyright owners own only the expression of ideas present in a fixed work (and not the ideas themselves) finds its expression not in the intellectual property clause of the Constitution but in section 102(b) of the Copyright Act. Courts might more easily be able to determine whether an exercise of an owner’s exclusive rights violates an explicitly defined statutory limit than the “progress of science.”

Another question raised by the district court’s decision is whether a conceptualist approach makes sense at all. Consider the instrumentalist alternative: just let owners craft their own licensing terms, and then let the free market work its magic. An idealized account along these lines would expect users to reject overly restrictive licenses, or at least to demand that they be priced so cheaply that owners would be required to proffer less restrictive terms (at higher cost) in order to turn a profit.

Pushing back against this expectation, though, is the exclusive nature of intellectual property rights. If there were an unlimited suite of alternatives to copyrighted work for users, then it might make sense to apply the efficient-markets assumption. But the copyright “monopoly” prevents anyone but content owners from trading in a protected work, and invests those owners with disproportionate economic leverage—hence the heavy influence of antitrust principles on intellectual property misuse doctrine.

The confluence of these fields may also explain why StreamCast tried to confuse the issue by cobbling together a copyright misuse defense by gesturing generally at the content industries’ market power. The district court rightly saw through this attempt to broadly equate misuse with any antitrust violation, and made the sensible move of demanding that there be a close nexus between the plaintiff’s copyright use and their anticompetitive behavior. How to define this nexus, though, remains a tricky issue.

Music to Write By

This summer I had occasion to talk with Dan Markel about how much I love my iPod.  So, I’m wondering what you listen to while you are writing a paper.  I like some of the new-age mellow stuff, because that way it is just some nice background, but on the other hand, too much George Winston or Enya will put you to sleep.  Dance and techno music both puts me in a good mood and encourages me to type quickly.  The product, may, however, be rather disjointed.  Your favorites?

The Politics of Digital Indexing

I've been at the Computers, Freedom, and Privacy Conference the past couple days.  The panels I've attended have been uniformly informative, combining some very knowledgeable practitioners and academics.

Presently the indefatigable Fred von Lohmann is introducing a panel on the Google Print project.  Representatives from the Internet Archive, the Smithsonian, Google, and the Yale ISP are discussing "Copyright and the Future of Indexing."  As von Lohmann notes, it is astonishing that there is so little clear law that protects the act of copying for archiving and indexing.  The big conflict in the 9th Circuit is between Kelly v. Arriba Soft, which found such activities legal under copyright's fair use doctrine, and Perfect 10 v. Google, which put Google on the hook for infringement (largely because it was alleged that Google's image search drained revenue from Perfect 10's market for cell-phone-sized erotic images!).

The panel today focuses on how digital indexing works.  There has been a lot of discussion in the blawgosphere on the economics of Google's (and other) digital indices--focusing on whether these services ultimately help or hurt the underlying content producers monetarily.  I know that discourse is relevant to the fourth fair use factor, which requires courts to look at a new use's "effect on the market" for a copyrighted work. 

But sometimes the econo-talk seems to be missing the forest for the trees.  The real issue is whether we as a society are going to commit ourselves to organizing and making accessible the information we have, or are going to let a fragmented anticommons of rights-holders perpetually delay the project (in some vague hope that giving copyrightholders the right to get license fees for indices of their works will create more incentives for creation in the future).  This is more a political than an economic question.  I look forward to seeing how the panelists address it.

Fun fact--One panelist is discussing the "Vanderbilt Doctrine" of copyright law--an alleged "safe harbor" for archives of television news, such as that funded by a conservative businessman at Vanderbilt (because he wanted to prove a liberal bias of TV news).  Three cheers for that philanthropist, and the Freepers, for fighting for the right to archive!  As they show, it's an issue that confounds the traditional left-right ideological spectrum.

The Role of a General Theory of Law and Technology

Law professors writing in the area of law and technology tend to focus on specific technologies. In particular, there appears to be a divide between those writing on communication technologies, such as the Internet and those writing on medical technologies, such as genetics and reproductive technologies. I think this division is not just a matter of specialization but reflects a deeper conviction that each technology is unique and should be studied on its own.                                                                                                                                                                                                         

During the 1970s, for a brief time, different winds were blowing. Laurence Tribe  in a book entitled “Channeling Technology Through Law” (and a series of articles) developed an approach called “Technological Assessment.” This approach undertook a broader look at assessing and regulating new technologies. Yet, in subsequent decades the study of new technologies has not followed this lead, instead it became more technology-specific.

                                                                     

Can we learn from our successes and mistakes in the regulation of one technology to improve our efforts in regulating or perhaps refraining from regulating other new technologies that share similar characteristics? Looking at technologies that are usually not studied together, but are currently in the midst of their diffusion process, namely genetic testing and the Internet, I have taken a broader look at the regulation of new technologies (see here and here). I believe that the role of a general theory of law and technology is an issue that warrants further discussion. In this year’s Annual Law and Society Conference, in a panel entitled  “Toward a General Theory of Technology Law and Society,” Lyria Bennett-Moses, Arthur Cockfield, Frank Pasquale and I will debate the role and potential formulations of such a theory. Any thoughts on the issue would be much appreciated and of course if you are there do come and join us.

The Genetic Discrimination Paradox

Debates about genetic discrimination generally assume that genetic discrimination is a prevalent phenomenon. (See here and here). I was recently collecting empirical studies for a case study on genetic discrimination and was extremely surprised at what the data revealed: Despite the growth in the number of available genetic tests, genetic discrimination remains rare (The case study is part of a larger paper available here).

It appears that the source of widespread public concerns about genetic discrimination was a series of first generation studies that were based on isolated case studies instead of survey methodology. Second generation studies remedied the methodological problems that inflicted the earlier studies. The overall picture derived from these newer studies reveals that genetic discrimination by insurers and employers is not only rare but also on the decline.

So why should we still be concerned? Although genetic discrimination is rare, individuals paradoxically are reluctant to submit to genetic testing. Individuals cite fear of genetic discrimination as a primary reason for not testing. Consequently, it appears that concerns about genetic discrimination are inhibiting the diffusion of genetic testing technology.

I believe these findings suggest a need to refocus our concerns regarding genetic discrimination. Calls have been sounded for years to supplement the existing patchwork of federal and state laws with a comprehensive federal law against genetic discrimination. These findings underscore the need for such a law, not primarily to deter genetic discrimination but to prevent the under-utilization of an important new technology by alleviating the public fears surrounding it.

New Guest Blogger: Gaia Bernstein

I am very happy to be here and would like to thank Dan for giving me this opportunity to convert from a devoted blog reader to an active participator on the blogsphere. As a researcher of the culture of technology I am excited for the opportunity to experience blogging first-hand.

A bit about myself. I am just finishing my second year as a professor at Seton Hall Law School, where I teach Law and Genetics, Information Privacy and Property. My teaching and research interests span both communication and medical technologies. As a result, at Seton Hall I wear two hats, being part of both the Intellectual Property Program and the Health Law Pogram.

My work looks at the interactions between technology, law and society, focusing on diffusion -the stage that follows the innovation of a new technology. Diffusion issues arise after intellectual property debates end. Diffusion is about the socio-legal acceptance process of a technology – what happens to a technology once it enters society and individuals start using it. For example, how does the use of genetic testing and the Internet affect our identities? I hope during my time here to highlight some of the ways in which the study of the diffusion process can enrich the technology policy debate, blog a bit about genetics technology and also join the conversation about blogging as a cultural phenomenon.

The price of anonymity

In today’s NYT tech section, Randall Stross's Anonymous Source Is Not the Same as Open Source has some interesting observations on the quality/quantity tradeoffs of open source production. Comparing the flaws of Wikipedia with the reliability of such projects like Linux, he remains a skeptic of de-centered, anonymous lay production. Citing an open-source guru, he suggest that in every quality open-source project, there is “'a benevolent dictator' who ultimately takes responsibility, even though the code is contributed by many. Good stuff results only if "someone puts their name on it."”