Category: Cyberlaw


Not Everyone Wants to Play Google’s Library Game

oldbooks2.JPGIt seems like Google is unstoppable. Frank’s recent post about Google and his talk on the subject reminds that Google is everywhere. Dan’s new book is necessary in part because of Google and other search engines. Google has even popped up offline. Rumors of taking on phone technology abound. And as many know Google has set its sights on books too. As Frank noted Siva Vaidhyanathan among others has questioned Google’s control of information. Vaidhyanathan’s paper, The Googlization of Everything and. the Future of Copyright, which appeared in the U.C. Davis Law Review, offers that in the book realm Google’s actions may trigger a large step backwards because of the nature of fair use.

As Vaidhyanathan admits he only highlights the danger of one court or Congress listening to copyright corporations and restricting the potential of information sharing that the Internet and the book project offers. That alone merits consideration. I do think, however, the paper makes some overstatements about search issues and “stable texts like books.” He argues that Google’s search in books lacks neutrality, and its utility alone will not save it because:

It is hardly an effective or comprehensive research tool. It generates too many ridiculous results for simple searches. It cannot screen out bad results very well. And Google offers no simple information-seeking training to its customers. Searching the text of books is rarely a better way to search than searching among books. Books are discreet documents that operate with internal cohesion more than external linkages.

This idea seems to suggest that those who use Westlaw or Lexis cannot find material well. I think Google supports some level of Boolean searches and Google could easily add subject matter indices to mimic library catalogs. In short, focusing on small issues such as improving the utility of the search detracts from the bigger point. Google can fix or enhance the searches. The improvements will not necessarily stop one of the key points made in the paper. True believer arrogance in the face of laws that see the world in quite a different way can lead to bigger problems. Here Google’s contract which gives libraries an electronic copy in return for participation runs into copyright law for the law is not sure what to do with such copying other than say it is not allowed.

Thus even though some libraries reject Google’s onerous terms, Google’s acts may foment a poorly written ruling or law that hinders other movements which seek to extend access to knowledge. For those interested in one such movement check out the Open Content Alliance.

Cross-posted at Madisonian

Crossing Lines

In cyberlaw, we are repeatedly reassured by leading companies that certain suspect actions just won’t happen because they don’t make economic sense. For example, opponents of net non-discrimination principles say that carriers have an economic incentive to maximize the value of that network, so they won’t discriminate against particular applications within it. But this assumption is now being challenged. . . . and we are seeing cases where a carrier may not merely discriminate against certain applications, but also conceal the fact that it is doing so:

Comcast is pretending to be part of online conversations in order to frustrate users who want to use particular online applications. This happens all the time in the name of “traffic shaping” — it’s the kind of thing that China does to interfere with internet use. What’s different and important about today’s story is that people have carefully experimented. We can now understand exactly what Comcast is doing.

More after the jump . . .

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Can Antitrust Accommodate Privacy Concerns?

The proposed Google/DoubleClick merger has provoked a complaint from EPIC and concern from many privacy advocates. EPIC claims that Google’s standard M.O. amounts to a “deceptive trade practice:”

Upon arriving at the Google homepage, a Google user is not informed of Google’s data collection practices until he or she clicks through four links. Most users will not reach this page. . . . Google collects user search terms in connection with his or her IP address without adequate notice to the user. Therefore, Google’s representations concerning its data retention practices were, and are, deceptive practices.

One key question raised by the proposed merger is whether privacy concerns like these can be folded into traditional antitrust analysis. Peter Swire argues that they can; he believes that “privacy harms reduce consumer welfare [and] lead to a reduction in the quality of a good or service.” I am broadly sympathetic with Swire’s aims, but I worry that contemporary antitrust doctrine is too etiolated to encompass his concerns.

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Radiohead & the Point of Tipping

radiohead.jpgRadiohead has adopted a “public radio” funding model for its new album, allowing downloaders to “pay what they want” for it. A few notes on the way to an observation:

1) Not pure altruism: Tyler Cowen noted on a podcast that the band did demand a minimum transaction fee. Geoff Manne observes the data dividend:

Here’s what else they get: An excellent mailing and e-mail list. To buy (or receive gratis) the album from the website one must enter name, email (and no cheating, since download codes are sent via email), address, cell phone number. . . . Anyone see mass text messaging in Radiohead’s future?), etc. For Radiohead, this is a valuable list, I imagine. It may also be valuable to any number of direct marketers and online advertising companies.

Given that the band may have only made a couple bucks per CD under standard record industry contracts, it may have been sacrificing little with the new minimalist marketing schemes.

2) The Point of Tipping: Since the payment to Radiohead was voluntary, is it a tip? Eduardo Porter says yes:

[A]bout a third of the first million or so downloads paid nothing, according to a British survey. But many paid more than $20. The average price was about $8. That is, people paid for something they could get for free. This phenomenon is not new. It’s called tipping. We do it when we go to the restaurant or the barber, or when we ride in a taxi. Though one could argue there are real tangible reasons for this payment — like not losing an ear the next time we get a haircut — the practice of paying more money than we are legally bound to do is still mystifying in an economic sense. For instance, why tip a cabdriver you will probably never see again?

Confirming this point of view, Greg Mankiw says “we economists don’t understand tipping.” But economist Robert Frank offers a pretty compelling explanation in line with other Darwinian dimensions of his thought. Here’s an excerpt from a recent book of his that addresses the point of tipping:

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What’s Going on With the AutoAdmit Lawsuit?

book16a.jpgWhat the heck is going on in the Autoadmit lawsuit? Last week, Judge Christopher Droney granted plaintiffs’ third extension of time to serve their complaint, giving them an extra thirty days to effect service. He explained that the plaintiffs are investigating some “recently revealed” information concerning one of the parties. To date, none of the defendants has been served, and the defendants (including the headliner, Anthony Ciolli, Penn Law ’07) have of course not moved against the complaint. It’s been over four months since the case was filed, and the litigation is stuck at go.

I have contacted several sources to try to figure out what is going on. As best as I can ascertain, Mark Lemley and David Rosen have been negotiating with non-party Jarret Cohen over the summer, seeking a settlement that would:

  • delete past and prospective threads on Autoadmit about the plaintiffs;
  • de-index the plaintiffs from Google and other search engines;
  • require Autoadmit to log IP addresses;
  • require Autoadmit to create a term of service agreement and a complaint response system.

In return, plaintiffs would dismiss Ciolli, and (I take it) proceed against the pseudonymous defendants alone. But this settlement, which would seem to come close to giving plaintiffs all that they were seeking in the case apart from revealing the pseudonymous posters’ names, has stalled. Why?

Here are a few theories. First, perhaps Cohen (or his attorney) is concerned that if he agrees to these terms, it would create an avenue for a later claim for liability that Section 230 would otherwise have immunized, i.e., he will have created a monitoring and responsibility system where none previously existed. Second, plaintiffs’ leverage is insecure. I’ve heard rumors that plaintiffs have acknowledged that they originally named Ciolli on the mistaken belief that he had written some of the libelous posts. But if Ciolli didn’t write any of the unlawful posts, his liability is at best obscure. (Volokh agrees.) This puts plaintiffs in a bit of a bind. If they drop Ciolli now, they lose their best leverage against the board, and the opportunity to really change how it works and create a precedent for other like gossip sites. If they serve Ciolli, I think he’d have a strong motion to dismiss (accompanied by a nonfrivolous sanctions motion). All this would seem to reduce the incentive for Cohen to settle today. But the service clock is ticking – how many extensions of time will Judge Droney grant? (His chambers rules state that he’ll extend deadlines until the result materially affects his scheduling order.) Third, what about the pseudonymous defendants? Nothing I’ve heard makes exposing the defamatory posters – the most culpable wrongdoers – more likely. (Leiter’s hopes otherwise, but if XO didn’t track IP addresses before, I don’t know how likely it is that plaintiffs will be able to find them after the fact. It is small, and cold, comfort to think about such law students sweating it over the long summer if they ultimately will remain in the shadows.)

All of this suggests why lawsuits are such a bad fit for the reputational harms that sparked this mess. You can’t sue the “real” wrongdoer; the host is basically immunized; and defendants you can find are (at best) tangentially involved. This makes sense: people willing to put their names in public are likely to be more careful and less culpable. On the other hand, the lawsuit itself seems to have had significant chilling effects on the Autoadmit board, as several posters have “retired.” Whether this is a good thing or not probably depends on your perspective.

Solove, do you have a better way?

Politics and IP

This extraordinary press release from the minority on the House Energy and Commerce Committee uses images from The Simpsons. Fox may be able to deter these uses, but so far is not doing anything. However, forces have not been so lucky–Google has prevented them from using the name “MoveOn” in their ads, ostensibly because of a neutral trademark policy that permits a mark owner to apply to prevent the use of its marks in others’ ads:

Recently, representatives of Senator Susan Collins’ Senate re-election campaign tried to place an ad on Google that included a reference to, a political group. The text of this ad was rejected by our system because of our trademark policy, not because of its political content.

Under our trademark policy, a registered trademark owner may request that its mark not be used in the text of other parties’ ads. Some time ago, submitted a request to Google that its trademark not be used in any ads, and as a result our advertiser support team offered instructions on how Senator Collins’ campaign could edit and resubmit its ad.

Any company or organization — regardless of political affiliation — could do what MoveOn did and thereby prevent advertisers from running ads that include their trademarks in ad texts. . . . [I]f ads are running on Google that include trademark terms in their text, either the trademark owner has not submitted a complaint, or the advertiser has been authorized to use the trademark.

Here’s a response from the president of the Media Bloggers Association:

There is no basis in trademark law to support MoveOn’s claim. Rather that blindly accept their claim why not ask them to explain the legal basis for their claim. Once you realize that MoveOn does not have a valid legal claim you can put Senator Collins’ ads back up.

Many questionable IP claims can gum up the works of free expression. I don’t understand why Google here would prevent what looks to be a classic case of nominative use. If the material appeared at the top of the unpaid results, I’d be in favor of giving some opportunity to respond. But the paid ads described here don’t tend to frustrate people’s efforts to learn more about

Of course, the Collins campaign can make its case elsewhere. But “Google’s share of Web searches in the United States was 67 percent” in September, and such a dominant company may well need to revisit its policies. They should avoid unnecessarily restricting access to what may be becoming an essential facility. . . . or at least lobby for some explicit safe harbor.

UPDATE: MoveOn has backed down and will not object to the ads:

“We don’t want to support a policy that denies people freedom of expression,” says Jennifer Lindenauer,’s communications director.

H/T: Eric Goldman.


Our Federalism Online

A strange story from California:

In what one California official characterized as a case of overkill, U.S. officials disrupted access to all state government Web sites this week after a county Web page was hacked.

The federal government stepped in after learning that a Marin County, California, Web page redirected users to a pornographic Web site . . . Federal authorities, who have ultimate authority over most local and state Web sites, attempted to block all domains ending in Tuesday, Hanacek said.

State agencies across California experienced rolling e-mail and Web site outages for about seven hours, and Internet users had trouble pulling up some state Web sites, he said.

The General Services Administration, which shut down the sites, apologized for the inconvenience . . . [but said]

“GSA is responsible for the integrity of all the .gov Web sites it manages,” the agency said in a statement. “The potential exposure of pornographic material to the citizens and tens of thousands of children in California was a primary motivator for GSA to request immediate corrective action.”

Put aside the overkill aspect of the story, if you can. (Let alone the potential for political mischief…) The truly surprising aspect of the story is that it highlights that the several States do not control their electronic destinies. They’ve traded convenience and harmonization for e-sovereignty!

For federalists, this would seem an unfortunate choice. Is the dream of laboratories of democracy a dead-tree idea?

(h/t: Drum.)

GAO on FCC: Trampling on Sunshine . . .

and it doesn’t feel good. A new GAO report has criticized the FCC for permitting certain favored groups to get an “inside line” on upcoming commission action. Here’s my take on it, and here’s Ed Markey:

“When the corporate insiders and the K Street crowd have the inside track on decisions critical to telecommunications, media, broadband or wireless policy, then the public and consumers are at an inherent disadvantage,” [Ed] Markey said. Markey, who chairs the Energy and Commerce Subcommittee on Telecommunications and the Internet, said such violations appear to be “a daily reality” at the FCC.

Interesting way of avoiding the Government in the Sunshine Act. Larry Lessig proposes an elegant solution:

[This] needs to become a bigger issue for the candidates in this election. Let’s hear a promise by the presidential candidates that they will only appoint FCC commissioners who promise not to work for those they have regulated for at least 5 years after their term is over. That would be real change.

The Lessig Wiki on corruption in general is a great resource. But one has to wonder, given the corporate campaign money at stake, can any candidate dare to push an idea like Lessig’s today?


The Right to Bear Ar–, Or Is It Access the Internet?

scissors2.JPG CNET reports that the government of Burma a.k.a. Myanmar has apparently cut-off Internet and cell phone access as a way to suppress information about the protests occurring there right now. The claim is that an undersea cable is damaged but given the convenience of such a coincidence that claim is being viewed with suspicion. As many know the information that has come through has been via cell phones, blogs, and text messages. Apparently some have even used FaceBook or e-cards to get messages out.

All of these events make we wonder whether the Bill of Rights would explicitly state that there is a right to free access and distribution of information over the Internet had the American Revolution occurred today. Now before everyone gets into a dither about the nature of the free press and what the First Amendment encompasses, I am suggesting that the situation described above shows the precarious nature of sharing information given the choke-points in place today. In other words, it seems that the benefits of technology also offer a much easier way to clamp down on society. Many have made this observation in the privacy context. Neil Richards’s post about the First Amendment gets to this point as well. We must consider what is at stake in today’s context. Put differently, could it be that the individual’s ability to access and use the Internet is now one of the key ways individuals serve to balance the power of the state?

Cross posted at Madisonian

Cell Phone Gag Rule

gag.jpgThere is big news on the net neutrality front today: Verizon Wireless has decided to block one group’s political speech from its text-message program:

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:

With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.

This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless’s new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.

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