Category: Technology

The Right to Delete’s Infrastructure

clippy.jpgShould every keystroke you ever enter into your computer be preserved for inspection forever? Worry over that possibility has led to some very interesting scholarship, including Paul Ohm on the right to delete. Ohm has suggested that a right to delete is akin to the property right to destroy what one owns, for “when an owner loses control of a copy of her data, she loses the ability to dispose of or alter that data.” By contrast, Ohm notes Orin Kerr ‘s “worries that during the time after [data is captured] and before it is analyzed, the Fourth Amendment may not apply since the owner of the original drive has not been deprived of a possessory interest.”

I don’t know enough about the relevant Fourth Amendment law to comment on that dispute, but I do find Google’s recent commitment to deleting personally identifiable data from search history records (after about 2 years) to be an interesting development. Jack Balkin has noted various “infrastructural requirements” for the enjoyment of certain rights. He states:

[A]n infrastructure of free expression. . . . includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools.

The right to delete appears to require commitment by search engines and other massive databases to allow some “cataloguee” discretion over what to retain and what to delete from records. The big question is whether the market will ultimately reward or punish search engines that put that infrastructure in place. As Elizabeth van Couvering has noted, current trends do not bode well for the development of public-minded search engines:

Resources in search engine development are overwhelmingly allocated on the basis of market factors or scientific/technological concerns. Fairness and representativeness, core elements of the journalists’ definition of quality media content, are not key determiners of search engine quality in the minds of search engine producers.

As with digital music, we may need Europe to lead the way. But perhaps there is one powerful constituency fully behind the right to delete:

From 2001 to 2004, the RNC’s highly unusual “document retention” policy was to intentionally destroy all e-mails that were more than 30 days old. In the summer of 2004, due to “unspecified legal inquiries,” the RNC changed its policy by allowing — but not mandating — the indefinite retention of e-mails sent and received by White House staffers on their RNC accounts.

Perhaps eventually technology to preserve data will become more transparent.

Is MySpace Exploiting You?

MySpaceGreaseMonkey.jpgThe Web 2.0 backlash has begun. From the right, Andrew Keen voices a cultural conservatism uneasy with the new egalitarianism of networked media, claiming that the “media and culture industries’ [purpose] . . . is to discover, nurture, and reward elite talent.” He laments the “Napsterization” of old gatekeepers and their replacement by new context providers like FaceBook, MySpace, Google, and ochlocratic intermediaries. I see where he’s coming from, though I think Keen is way too quick to conflate media conglomerates and nonprofits as guarantors of quality.

On the left, Trebor Scholz worries that these new intermediaries recapitulate old patterns of exploitation. The labor of millions on their MySpace page results, most often, in nothing paid to them, and vast sums going to Rupert Murdoch. Scholz questions whether Web 2.0 really brings the decentralization its proponents hope for:

The most central sites of the World Wide Web create massive surplus value and small startups are frequently bought out by the Walmarts of the Internet (NewsCorp, Yahoo, Google) the very moment that they attract sufficient numbers of page views. People spend most time on the sites of these giants and not in the “mom and pop stores.” Almost 12 percent of all time spent by Americans online is spend on MySpace.

Scholz admits that “The picture of net publics being used is . . . complicated by the fact that participants undeniably get a lot out of their participation. There is the pleasure of creation and mere social enjoyment. . . . They share their life experiences and archive their memories. They are getting jobs, find dates and arguably contribute to the greater good.” Nevertheless, he’s raising some interesting questions about the very nature of labor and “just enrichment” in the digital age.

So are social media megasites exploitative?

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Student Legal Services at NC State and RIAA File-Swapping

According to an editorial at TechnicianOnline, the website for the NC State student paper, Student Legal Service at NC State is representing students in actions by the RIAA over file swapping. It is the first I’ve heard of a university providing free legal services to students against the recording industry in these suits, although I can’t claim to have followed these cases systematically. In the end, this representation will probably not change the outcome of these cases dramatically, but it may discourage plaintiffs from overreaching against legally unsophisticated defendants.

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Laptops in the Classroom

In a Washington Post column, Georgetown Law Professor David Cole writes about his decision to ban laptops from his classroom. Many of the arguments are familiar. Students take notes on laptops instead of engaging the class discussion. They surf the internet or message friends. They distract others from the class. Professor Cole also adds one new twist. He apparently surveyed his students, and they have come to like the laptop-free environment.

I have never favored banning laptops, even though I have colleagues who think we should remove the Internet (or at least have it turned off) inside classrooms. I prefer to let students make their own choices about how they learn best (one administrator has suggested to me that there are possible student accommodation issues for certain learning disabilities). If they want to tune out, it’s their prerogative, and I haven’t noticed class discussions being any different than they were pre-laptop. That having been said, Professor Cole’s evidence that his students like the laptop-free class is interesting and food for thought.

Multitasking as Microliberty

Is it possible to do many things well, at once? A lot depends on how you define simultaneity. “‘A core limitation [of the brain] is an inability to concentrate on two things at once,’ [according to] René Marois, a neuroscientist and director of the Human Information Processing Laboratory at Vanderbilt University” (quoted in an article critical of multitasking.) According to this piece, “Listening to soothing background music while studying may improve concentration. But other distractions — most songs with lyrics, instant messaging, television shows — hamper performance.”

I have to dissent here. I find that I need a well-near constant aural background to get much done during the day….and sadly, soothing music is often just not loud enough to drown out the random noise that constantly assaults one in urban areas. Perhaps this music-addiction is just idiosyncratic to me (and surgeons). But I think the anti-multitasking literature is insufficiently attentive to idiosyncrasy; to wit:

[R]esearchers reported . . . that they used magnetic resonance imaging to pinpoint the bottleneck in the brain and to measure how much efficiency is lost when trying to handle two tasks at once. Study participants were given two tasks and were asked to respond to sounds and images. The first was to press the correct key on a computer keyboard after hearing one of eight sounds. The other task was to speak the correct vowel after seeing one of eight images. The researchers said that they did not see a delay if the participants were given the tasks one at a time. But the researchers found that response to the second task was delayed by up to a second when the study participants were given the two tasks at about the same time.

I like the application of this idea to driving with a hands-free cell-phone–I’m constantly amazed by the risks people take while hurtling at 60MPH in a 4000 pound hunk of steel. But I fail to see the extrapolability of many of the other experiments mentioned in the article. Sure, computer code writers may be distracted by email….but perhaps the epistolary stimuli are keeping them going till they get to their more productive moments. Similarly, on any particular day, I may spend way too much time perusing politicaltheory.info or reviewing all the blog headlines in my RSS feed, but the types of serendipitous finds I make on those procrastinating peregrinations can cut a Gordian knot I’ve been wrestling with for hours.

Nevertheless, I have to admit that I would love to have the self-discipline to, say, totally block out email for a few hours each morning. But I am afraid that the new multitasking research is going to ultimately feed into employee monitoring/prodding programs oblivious to the capricious character of productivity in many information age workers. I guess my fears here are driven by a scene in Neal Stephenson’s Snow Crash, where a worker of the future is presented with a bureaucratic email and given the guideline “This email should take 8 minutes to review.” The worker calculates that perusing the turgid document for seven minutes may win her points for efficiency, but any less will lead to demerits for failing to read it carefully enough. Nine minutes could land her in a dread “Remedial Speed Reading” course!

Which leads to one last random reflection here….what do libertarians think of workplace surveillance like that? Is it part of the inviolable freedom of employers? Or is there some role for law to carve out, say, basic privacy rights for employees? I plan to review Russ Muirhead’s Just Work some time to look for ideas. For now, Brandeis’s old quote on vacations provides some food for thought: “I can do a year’s worth of work in 11 months, but not 12.”

Photo Credit: Flickr/Krossbow.

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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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