Category: Technology

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Viacom sues YouTube

Just up on Yahoo!….Viacom sues YouTube for $1 billion.

I have not seen the complaint for the suit, so I don’t know whether the basis for the suit is contributory infringement, inducement, or some direct infringement theory. The most obvious cause of action would be contributory infringement, but it isn’t hard to find stories that YouTube follows DMCA notice and takedown provisions. This makes me think that YouTube is inside the DMCA safe harbor and unlikely to lose. But perhaps there’s something in the complaint that will make the suit stick.

In the meantime, I imagine that the suit is actually a way for Viacom to “scream and yell” at YouTube, letting them know they want some kind of licensing deal for their content. Any speculation (or informed insight) on what the eventual settlement will be?

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Microsoft, Google, and Copyright Scofflaws

I saw in Michael Geist’s BNA newsletter that Tom Rubin, Microsoft’s Associate General Counsel, will accuse Google of having a “cavalier” attitude towards copyright in a speech to the Association of American Publishers. FT.com has a preview of the speech, and WSJ online has the text available to subscribers. I’ve only the read the FT.com preview (I don’t subscribe to wsj.com), but I’m curious how far Mr. Rubin’s speech will go to address the problem of online piracy.

Rubin describes Google as a copyright scofflaw, saying ““companies that create no content of their own, and make money solely on the back of other people’s content, are raking in billions through advertising and initial public offerings”. Rubin will apparently try to distinguish Microsoft from Google by offering to cooperate with content producers to eliminate piracy.

I wonder how far Microsoft is prepared to go in eliminating piracy from the online sites like YouTube. I went to Microsoft’s YouTube competitor Soapbox, and put in searches for “Mariah Carey” and “Ice Age.” Both searches turned up what I presume content providers consider infringement. If Microsoft is offering to police its site for infringement (presumably the behavior most respectful of copyright), they’ve obviously done a poor job. If they’re not prepared to go that far, then they must think that there is some less aggressive behavior that is a reasonable, appropriate response to the problem of user piracy. I hope and would very much like to see what Mr. Rubin’s company thinks is the right thing for sites like Soapbox to do. If Microsoft is not prepared to do everything content creators demand, it has to articulate a theory of what their obligation is. Otherwise, it looks like Microsoft is simply criticizing its more commercially successful rival.

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Best and Worst Internet Laws

[Preface: I’ve already overstayed my guest visit, but before I go, I want to say thanks to the Concurring Opinions team for the opportunity to blog here, and thanks to all of you for the great comments and stimulating dialogue. A complete index of my guest blog posts. Meanwhile, I’ll keep blogging on technology and marketing law at my main blog and on all other topics at my personal blog. Hope to see you there!]

Over the past dozen years, the lure of regulating the Internet has proven irresistible to legislators. For example, in the 109th Congress, almost 1,100 introduced bills referenced the word “Internet.” This legislative activity doesn’t always come to fruition. Still, in total, hundreds of Internet laws have been passed by Congress and the states. This body of work is now large enough that we can identify some winners and losers. So in the spirit of good fun, I offer an opinionated list of my personal votes for the best and worst Internet statutes in the United States.

[Keep reading for the list]

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Pharmaceutical Law Symposium

I just wanted to invite readers in the greater NYC region to the Seton Hall Law Review’s symposium on pharmaceutical law tomorrow (Friday, Feb. 16). We’ve got some interesting panels lined up, and the general counsel of HHS (Daniel Meron) will be giving the keynote.

The Symposium will focus on how the FDA’s drug approval process affects public health, intellectual property protections, and the economy. Panels will explore the FDA’s role in determining whether a drug is safe and effective for its intended uses and how its approach addresses public health needs, affects research and development, and influences insurance coverage decisions.

We’ll also have a panel on global public health, including Terry Fisher, Shamnad Basheer, and me. My presentation, inspired in part by this Laurie Garrett article, will focus on the public health infrastructure necessary to assure the proper distribution of drugs in LDCs.

The Limits of Law & Econ in IP: The Case of Digital Music

Once again, the folks at Truth on the Market have celebrated the recording industry’s efforts to assure perfect control over copyrighted content via Digital Rights Management. Free marketeers like Tyler Cowen are beginning to question DRM as a tax on consumers, and even one of the big four record companies is considering abandoning it. Untroubled by such doubts, Josh Wright and Geoff Manne push for ever more latitude for the dominant platform (iTunes) and dominant content providers (the big four recording companies).

Their posts provide classic examples of what Reza Dibadj has called the key shortcomings of conventional law & economics (L&E) reasoning. As Dibadj summarizes,

[T]hree of the most basic assumptions to the popular L&E enterprise–that people are rational, that ability to pay determines value, and that the common law is efficient–while couched in the metaphors of science, remain unsubstantiated.

Let’s take a look at how each of these assumptions drives the TOTM approach to digital music markets.

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Virtual Women

Yesterday, the Virtual Women conference was held at Thomas Jefferson School of Law. It was the seventh annual Women and the Law conference for TJSL, and it was a good one. The keynote speaker was Rochelle Dreyfuss (NYU); panelists included Ann Bartow (South Carolina), the proprieter of Feminist Law Profs blog, Boatema Boateng (U.C.S.D.), Dan Burk (Minnesota), Carys Craig (Osgoode Hall at York University, Toronto), former Co-Op guest Christine Haight Farley (American), Michele Goodwin (DePaul), K.J. Greene (Thomas Jefferson), Eileen Kane (Penn State), Mary LaFrance (UNLV), Doris Estelle Long (John Marshall), Malla Pollack (American Justice), Cheryl Preston (BYU), and Rebecca Tushnet (Georgetown), as well as a panel of practicing attorneys. Kudos to conference organizers Julie Cromer and Sandy Rierson for putting together a great group.

With that line-up, it’s no surprise that the conference is already being blogged. On her blog, Rebecca Tushnet has posted summaries and reactions for the first two panels. If you haven’t already done so, you should take a look at Rebecca’s posts on the conference: Panel 1, Panel 2 (part 1), Panel 2 (part 2), Panel 3, and the Keynote.

Competing Ourselves to Death

In the run up to the Superbowl, the NYT has a disturbing story on the fate of Ted Johnson of the New England Patriots. Johnson suffered several concussions while playing and now suspects that they have permanently diminished his mental capacity. Johnson’s case is not isolated, and is leading to worries about “the N.F.L.’s record of allowing half of players who sustain concussions to return to the same game.” What’s next, the return of the flying wedge?

From a brute lawyerly perspective, the controversy raises some interesting issues. Are coaches and trainers negligently encouraging the injured to play? Could the players sign away any right to sue their teams (or the league) in cases like these? Might some political pressure need to be brought to bear here, like that which finally got baseball to face up to its steroid mess?

From a broader social perspective, other concerns arise. I’m presenting tomorrow at the Int’l Association of Science and Technology Studies on biotechnological enhancement that raises cognate issues. I’ll address a potential inversion of the traditional relationship between technology and values. Usually we think of values as guideposts that allow us to judge the worth of certain technological advances. But what happens when technology itself alters our cognitive capacities? Can it undermine our values? Certain drugs, trainings, or even game strategies might blunt or otherwise obscure our understanding of the world and ourselves. If we share Martha Nussbaums’s account of emotions as judgments of value, might these so-called performance-enhancements diminish the possibility of our rightly discerning our ends?

Any sporting pursuit that requires its participants to systematically risk their health in competition is troubling. But concussions like Johnson’s are doubly so, since they appear not merely to diminish or distort cognition, but to compromise one’s ability to even recognize the diminution taking place. The difficult question for regulators of various performance-enhancing neuropharmacological interventions is whether they have the potential to blunt users’ perceptions of the deep changes they wreak in users themselves. Substance addiction has been modeled as a case of “increasing marginal utility,” where the more one uses, the more one wants. New neural performance enhancement addiction might work in a far subtler way–by blunting the appeal of alternate sources of value and satisfaction.

Tech Law Prof as Prognosticator

fortune teller.jpgMy appearance on David Levine’s Hearsay Culture show recently showed up on iTunes–somewhat ironically given my repeated criticisms of the great and terrible Jobs. As I listened to part of the show, I was struck by how much the legal analysis of search regulation was dependent on future business and technology developments. If Google’s dominance in the market continues to grow, then one range of regulatory regimes seems necessary. But if there are diverse successful search engines, a wholly different approach is plausible.

The whole exercise reminded me of Warren Wagar’s fascinating book, A Short History of the Future, which tries to envision the next 200 years of world history. Projecting tech trends that far out must in part be in an exercise in fantasy–but on the other hand, the very process of doing so is a humbling reminder of how much events depend on utterly contingent developments that came before.

For that reason, perhaps, the old “long-form” scholarship of the big law-review article may be becoming increasingly ill-suited for rapidly changing areas of technology. Perhaps that’s why the recent Wu-Yoo debate on net neutrality, or Wu’s even more recent take on the future of indie movie gatekeeping, is so refreshing. It makes little sense to develop a vast architectonic theory for a mandala of protean corporate players.

On the other hand, we can’t let the mere mutability of the tech landscape cow us into passivity. There is no neutral baseline in these fields–they are already so saturated with government intervention in the form of IP rights, regulation, etc., that it makes no sense to characterize any given “noninterventionist” move as promoting the unalloyed efflorescence of the market. Whoever wins any given battle among content providers, intermediaries (like search engines) and network operators (like phone and cable co’s), the result will be due to a lot of prior lobbying and shaping of the law–whatever stance legislators and regulators take heretofore.

Photo Credit: LongView/Flickr, “Pike’s Fortune Teller.”

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The Hottest Internet Startup of 1960

Some legal research the other day unearthed a hilarious-in-retrospect account of the first online legal research service — a (pre-)internet startup from almost 50 years ago whose success-and-seediness story is eerily similar to those of more recent tech startups:

Law Research Service is a child of the computer age. In 1960, Hoppenfeld, a lawyer with some background in computer technology, perceived that computers could greatly facilitate legal research. He concluded that a practical system could be developed in which thousands upon thousands of court opinions would be fed into a computer, so that when a legal problem was submitted to the machine it would then select and retrieve all the relevant precedents . … [L]awyers would … pay an annual subscription and a small fee per inquiry. … Similar ideas for marrying computers to the law have been put forth but it seems that LRS was the first such legal information retrieval system to be tried commercially.

Sanders suggested a public offering which would raise not only enough money to cover the LRS’s debt … but would permit LRS to expand its computer library to cover decisions of the federal courts as well as those of the New York courts then already on tape.

Globus v. Law Research Service, 418 F.2d 1276 (2d Cir. 1969) (emphases added to the phrases that made me smile). I just wanted to share this as a nifty piece of legal history trivia, not so much comment on it… but I do have two quick points to make in the “more things change, the more they stay the same” department:

(1) The reported case was a now-familiar type of securities fraud lawsuit: alleging shady practices to raise capital for a tech startup.

(2) Between the financing problems and the “small” fee per inquiry business model: Is there something in the genetics of tech startup visionaries that they assume they can provide huge quantities of information to the masses without much means of actually making money?

Searching for Search Law

I’ve been writing and speaking on search engines a bit this past week, first at Hofstra’s Reclaiming the First Amendment Conference and later on David Levine‘s Hearsay Culture radio show. If you want to hear that show, just hop on KZSU Live tonight at 8PM EST (5PM PST). Or you can wait till it shows up on iTunes…but due to copyright concerns, you’ll miss out on Dave’s superb selection of engine-related music that will accompany the live broadcast. (Nevertheless, any tech law fans will want to subscribe to Levine’s show–he has a knack for enlivening legal topics with all manner of social, political, and economic discussions.)

Whatever you think about government regulation here, search engines are one of the most important tech phenomena to be shaped by law in the 21st century. A few prophetic scholars (like Niva Elkin-Koren and Helen Nissenbaum) saw this about 5 years ago; I’m part of a group building on their work to theorize it now. Our guest blogger Eric Goldman just covered a search conference in Haifa (and a prior Yale confab); he’s also got some very interesting pieces promoting the wisdom of laissez-faire here. James Grimmelmann’s The Structure of Search Law does a nice job of simultaneously describing search law as it stands and proposing modest steps for its development.

As for my own views, I’m afraid I’ll have to refer you to my podcast (and a forthcoming paper I’m co-authoring with Oren Bracha). But if anyone wants to recommend other search law scholarship in the comments, please feel free. I hope to highlight some interesting European work on the topic in a future post.