Archive for the 'law' Category

Comcast cutting deal with BitTorrent


Comcast announced today that it will work with BitTorrent to treat the P2P traffic equally. (See here for the announcement)

However, though Comcast said it will no longer (by the end of the year) discriminate based on traffic using the BitTorrent protocol, it’s unclear what this means for other types of traffic.

P2P throttling now in Canada


Bell Canada admitted today that it started blocking P2P traffic during peak hours beginning on March 14. An article on this can be found here.

Michael Geist, Canada’s leading Internet law scholar, has posted on this new development on his blog. Bell Canada seems to claim that they are entitled to do this based on the usage contract. Already though, there are fears that this behavior is anti-competitive.

Looks like the Comcast battle will head north!

Class 13: Ownership and Knowledge (sorry for the oversimplification and longevity)


Can anyone “own” knowledge? Does the web make us think differently about the nature of ownership of information or expression?

Harvard’s Faculty of Arts and Sciences has passes a motion for Open Access to Scholarly Articles and Harvard Law School is considering a similar policy.

Junior faculty members consistently face the battle with tenure; the main requirement is to have an article published in a scholarly journal. Professors sometimes spend years waiting for an article to be published; one’s article must be accepted by a journal, peer reviewed and then published. Before being published an author must agree to a licensing agreement

Traditional Publishing Paradigm; author gives up copyright to journal

Stage 0: If the professor post working papers online. Most contracts restrict the author’s ability to direct students to working papers online. Well-accomplished journals will have contract that ensure that a previous work on the article cannot be made available author, but they are unable to control the SSRN.

Stage 1: Making of the License
Professor will give article along with rights to journal. In return author will receive intangible rewards including prestige and tenure.

Stage 2: Library buys article
Journal receives money from the library in return for a copy of the journal. Hardcopies are cheaper than online forms.

Stage 3: Professor 2 wants to use article for class
Journal receives money from the professor in return for allowing the professor to use it in his course pack.

Stage 4: Another author wants to put article in his book
Journal receives money from the author and the author is allowed to include the article in his or her book.

The traditional publishing paradigm benefits the journal much more than the professor. The market allows for the journals to conduct price discrimination. Journals are value added: they collect and present articles conveniently, have access to related work and know professor 2 in stage 3 for peer review. Faculty members have to pay for articles in stage 3 and are rarely allowed an allowance for their own article (Harvard Business School has recently allowed for authors to receive 100pdfs). While wealthy universities give allowances to their faculty for this purpose, sometimes students have to pay for the articles when buying for course packs. This is a case for journals ownership of knowledge.

University-Research relationship and Copyright law

Traditionally faculty is in work for hire contract. University split the money made off research, faculty remain happy and university will improve endowment and reputation. (Ex: Stanford benefiting from Google). As long as universities can assert rights from under copyright law, parties will usually bargain for a result that is beneficial for both parties. Although universities’ probably do not have rights to undergraduate work the line becomes fuzzy at the level of graduate work.

Open Access Grant Paradigm

Stage 1: License
Professor enters a contract with the university to grant licenses in return for the university giving the author access to the collection. University may make article open to the public. Old may still have control of the articles prior to Open access, but will not have exclusivity right to article not published under open access. All journals will have the same rights as before, but will reap less benefits then before

• Ex: FAS Open Access Agreement
o Nonexclusive (grant to as many people as the university wants and does not exclude journals)
o Worldwide
o Paid up (no additional consideration)
o Irrevocable (once the author contract with university: he or she may not take it back)
o Restriction on grant: right to distribute except for profit (exception under stage 3, where the professor uses an article in course pack)

Stage 2: Libraries
Libraries will continue to pay for journals, because they will be unable to receive the all the articles through open access. As open access grows, journals will receive less income from hard and soft copies.

Stage 3: Professor 2
Professor 2 will not longer be paying for open access articles in course packs

Scenario 1: Faulty may opt-out of Open Access under FAS and proposed HLS agreements

Some non-tenured professor may want to be published in elite distinguished articles and have the option to opt-out of open access. Deans want to keep their faculty happy and are glad to have there article published in elite journals A problem may arise if the dean does not want the article published in a particular journal. JP ask is this automatic waiver better and does this action violate the reasoning behind open access? Is the waiver better, because it saves on transaction cost? Is it easier for Harvard to take this stance because Harvard has prestige, that elite journals consider their value added.

Scenario 2: The effects of every faculty having open access

Will elite market-leading journals go out of business?

JP and class say no. Rather these journals will create a new business model. They may not be able to reap the benefits from owning the exclusive rights to articles, but they will still have exclusive rights to older articles. The Value Added that is intrinsic in journals remains: journals are a gateway and filter that separates the good from so-so articles through peer review. Elite journals may begin to compensate peer-reviewers, this may create overzealous reviewers and a push for more profitable work, but maintaining a good reputation of brand and of profession can combat these two pitfalls. A related example is CNN, Fox and MSNBC remaining in world full of bloggers. Although Carl Malamud is preparing a database the will put an end to companies profiting off of free government documents.…). Another alternative suggested is for elite journals to create scarcity as it relates to the relationship; professors may only peer review for certain journals. (For more understanding of compensation read Fischer Chapter 6 alternative compensation system).

Scholarly Societies

Forces Societies to focus on receiving income from conferences rather than journal.

Open Access Grant Paradigm for Harvard Law School

The difference between FAS and HLS is that law journals are mostly student run.

Stage 1: License
Law Journals receive several variations on the amount of rights they receive. Some journals may have exclusivity right for a year. While other produce a hard copy, sell a soft copy to an online index and put up a free copy on their website. In return professors receive subciters and prestige. In addition both side receive the features above in Stage 1 of Open Access Grant Paradigm.

Stage 2: Libraries
Law Journals receive money from the libraries when they buy hard copies or buy a access to an online index. In addition both side receive the features above in Stage 2 of Open Access Grant Paradigm.

Stage 3: Prof 2
If a professor is not a member of the open access community and the university has not opened the article to the public, the rate of the article is set by the law journal and determine by size and scope of distribution
How Does Open Access Affect Law Journals?

Considering the fact that most law journals immediately put up a free online version following release, the affect is small. Law Journals can still sell to indexes, because they make it easier for customers to access more articles through archiving and creating classifications. Law Journals have other sources of income. (Example: Harvard Law Review and the Bluebook and other journals have sponsors)

Arguments Against Open Access and Questions Remaining (by JP and the class)
• Could seriously damage student journals
o Smaller and newer journals who make money strictly off of book sales
• Law Reviews may require professors to submit waiver along with article, therefore they will not accept some articles
• Irrevocable
o What if some publisher wants to put an article into a book that he will sell for profit, but will not include article if he cannot reap the benefit
• Is there a problem with professors deciding to opt-out
o Will professors be judged on decision?
• Why do we need Open Access if most law journals already have online?
o Is there a values in saying that we want information to be free, to encourage other fields to do the same
• Want a deposit of knowledge

Further Reading
Jean-Nicolas Druey, “Information Cannot be Owned.” (an argument for free information)
Open Access for HLS…

Ciolli of Autoadmit sues Reputation Defenders, Lawyers, Law Students…


Since we talked about Reputation Defender a few weeks back I thought that this might be interesting to some people.

Anthony Ciolli (an officer of autoadmit but apparently not a moderator?) has counter-sued Reputation Defender and a bunch of others in state court in Pennsylvania. Complaint available here.

Analysis and more after the jump.

__(‘Read the rest of this entry »’)

Live Blog @ the FCC (Part 2)


4:39 – P. Clark: This isn’t a short term problem. The last mile to the home is always going to be expensive.

C. Adelstein: Where is the line between good and bad discrimination?

BT: I know it when I see it, and Comcast is bad.

P. Bennett: There wasn’t any data from Comcast. But, discrimination might be ok when the network is crowded, but it isn’t ok when it isn’t crowded.

P. Clark: If the network is spoofing packets that look they come from somewhere else that seems particularly troublesome.

Smyers: When there is industry consensus on a solution we don’t need to look any deeper. But when solutions don’t comply with industry standards then it needs a deeper look.

4:22 – C. Cobb: We don’t even have the questions, so how can we have the answers?

C. Martin: If we do not have enough information, should we not take any action? P. Clark: Some disclosure might be good and start a dialog with industry. We also do know enough about the current actions to decide if they violate the IPS or not.

C. Adelstein: Are our network management practices having an impact on innovation here? A: There is a lot going on in Asia now.

P. Clark: The networks today contain ways of regulating traffic. The Comcast response is a very nuanced response to traffic. The network today allows me to go really fast when nobody else is there (this is good), but then when lots of people are there I need to slow down. The question is thus how should we slow down when we have to b/c it isn’t feasible to build a network where we can all always go at full speed.

__(‘Read the rest of this entry »’)

Live Blogging the FCC Hearing


In case you came here from an outside link, I’ve continued after lunch in a second post.

2:18 – Really break for lunch.

2:13 – 15 minute break for lunch (which will make us only 15 mins behind schedule but also very hungy).

Oh wait, two more questions from C. Martin. Does the FCC have the authority to enforce network neutrality principles? Verizon: Yes, the FCC has asserted it. Comcast: IPS isn’t enforceable. FCC doesn’t have authority to impose a fine right now.

2:09 – Only network operator can provide VoIP in Korea for example. There are good stories and bad stories about Asia. P. Yoo: They do network management in Europe and Asia even though they have more bandwidth.

1:51 – Justice Scalia’s Pizza Delivery Model? Ok that sounds cool but what is it? Help please!

P. Wu: We can have non-discrimination system, it is just going to be expensive. Problem is that 500 people share a node that can’t handle 500 operating at max lawful speed. This becomes very expensive. Thus network management is a way to build out to rural areas more efficiently. The public safety solution at 700 MHz is similar.

P. Wu: There is some discrimination going on all the time. That is ok. But what is dangerous is having the carriers pick and choose certain applications. Anti-competitive discrimination is bad.

C. McDowell(aka the funny one apparently): Does the BT style of P2P cause customers to consume more bandwidth than they are paying for? Comcast: P2P during network congestion cause degradation that is a violation of our usage policy. We don’t sell a particular amount of bandwidth. We provide a service up to a certain amount subject to condition that customer doesn’t degrade other customers.

C. McDowell: If lots of people in my neighborhood want to use BT am I exceeding my limits? Comcast: You are exceeding what you contracted for.

C. McDowell: Discrimination is sometimes ok, but we need to be concerned about is anti-competitive discrimination. FP: This would be less of a concern if it wasn’t anti-competitive, but it would still have negative effects that are important.

C. Far SL: What would happen if you didn’t do what you do? Comcast: Everyone would feel a degradation in their service. BT users might not even see a difference b/c of the resulting congestion.

P. Benkler: Simple requirement of disclosure might not be enough…

__(‘Read the rest of this entry »’)

Wikileaks litigation


nbsp;, a site that allows whistleblowers to anonymously post confidential documents, has been taken offline by court order in California. The BBC article states that a case brought by Swiss bank Julius Baer resulted in the judgment along the following lines:

… the main site was taken offline after the court ordered that Dynadot, which controls the site’s domain name, should remove all traces of wikileaks from its servers.

The court also ordered that Dynadot should “prevent the domain name from resolving to the website or any other website or server other than a blank park page, until further order of this Court.”

Other orders included that the domain name be locked “to prevent transfer of the domain name to a different domain registrar” to prevent changes being made to the site.

The site is apparently still available in other countries such as Belgium and India, though I think these must be localised versions. The site claims they couldn’t defend themselves at the hearing because they were only given hours notice.

BBC news story

EDIT: See Kparker’s comment below explaining that the site has just been removed from the DNS so it is still available if you know the IP (it is hosted in Sweden).

Old habits die hard – Performing rights may be extended in Europe


It looks like the lobying in Europe to increase the term of protection for performing rights is starting to pay dividends:

The Commission wants to extend the copyright period for music performers from 50 years to 95 years.

British stars like Cliff Richard and Roger Daltrey have been pushing for such a move, but the UK government has resisted changing the rules.

The Commission says it will also benefit less well known musicians.

BBC News Story

Three strikes and you’re out for illegal downloading in the UK


I have to confess, I’m not a fan of baseball, nor laws based upon its principles. A green paper in the UK (released by the government showing policy direction) has suggested that ISPs are going to be required to cancel connections of persistent copyright infringers. Your first offence gets you an email, your second a suspension and the third gets you kicked off your ISP. The details are as yet unclear, such as how disputes are to be settled and whether ISPs will share information about infringers, but it sounds to me like one of the most extensive and intrusive government efforts to regulate online behaviour I’ve come across. Lots of questions remain unanswered, such as the length of suspensions and the outright bans. One thought that occurs to me is that if this applies to University ISPs the effect could be huge, with no alternative provider in the University accommodation I stayed in for 4 years it really would have been 3 strikes and you’re out. The problems of erroneous reporting and detection would also be huge, if not insurmountable. All in all, its just not cricket.

Times Online article

Class 1


[NOTE: This is live blogging. It is therefore full of errors, omissions, bad paraphrases, and general misreporting.] After introductions — the course is over-subscribed, and there are about 35 people in the room — JP leads a half hour discussion of the “autoadmit” matter. As one of the students explains, AutoAdmit is an anonymous forum for people to compare law schools. The target audience is people trying to decide between law schools. One of the owners is a UPenn law student, and there may be a second, unknown owner. A while ago, people started posting some awful stuff: threats, name-calling, etc. E.g., one of the postings claimed that a particular student killed himself, although that was false. And there were allegations of sexual acts by that student. What was different about the fact these acts occurred at an online message board, JP asks.
A: The anonymity of the people posting. [Sorry, I don’t know student names at this point.]
A: Harder to figure out the responsibility of the host of the Web site. A newspaper might find it easier to track down who sent in an anonymous letter. So: 1. Should the host be liable? 2. If so, what is the duty of the host to find the name of the msg sender?

A: Many other users can reproduce the info and link to it.
JP: And the legal question is whether you can make someone liable for pointing to these nasty comments?
A: The repercussions are much broader because the site is public.
A: And it never goes away.
A: And that applies not only to the subjects of the defamation but to anyone who is involved in any way, including the host.
JP: It’s the difference between a river and a pool. If you overhear me say something, it’s gone in the river. If it’s online and you can search for it, it’s in the pool.
JP: ReputationDefender works in this space. These facts have given rise to a new industry.

A: One thing can be in multiple locations, raising jurisdictional questions.

A: Because there’s so much out there, defamatory postings may actually have less effect.

A: The transaction costs of spreading info are much lower.
JP: The cost of speech is almost zero. For whom else are the transaction costs lower?
A: The readers. The host.
JP: Maybe there’s a value to having slightly high transaction costs because it acts as a gate?
A: The lower costs means you can participate. You can be part of the story.
JP: Yes. Message diffusion takes on a different nature. And sometimes those messages get wrapped up in you. Maybe identity takes on a role here.
A: The person can respond exactly on the same page, not like if it were a printed pamphlet.
JP: Awesome. This is a read-write medium.
A: I’m interested in blogs where flame wars occur. E.g., a Yankees-RedSox site. In political flame wars, it can be who yells the loudest. People will keep repeating wrong info.
JP: What’s different about the Web?
A: The volume and the persistence.

A: It’s a question of authority. Anyone can say anything.
JP: This is a question about intermediaries: Who’s allowed to speak for whom? Dan Rather spoke for CBS.
A: The Internet makes it easier to know what’s been said about you, so you can respond faster.

JP: LT, what is the state of the law? Who do we hold liable?
LT: Generally the speakers. Not the intermediaries. Section 230 gives immunity to intermediaries.
JP: If it were a newspaper?
LT: They’d be liable.
JP: CraigsList has been found not liable for discriminatory ads that a newspaper would have been held liable for.

Then I lead the class in a discussion about whether friendship online is the same as offline. Is it possible? Is it the same? Most in the class think it’s possible. Some think the differences are negligible. Others think the differences are real. Conclusions (from my pov): 1. It can be difficult to identify differences and even harder to evaluate their significance; 2. Differences, possibly even small ones, can require us to think carefully about policy and software design decisions. [The discussion was more interesting than this preemptory summary. But I can’t live-blog and lead a discussion simultaneously.]
Corinna di Gennaro, of the Berkman Center, who has been sitting in, says that research shows that friendships do occur. Her research shows bloggers are less likely to make online friends and meet friends offline compared to email lists and social networking sites. [Interesting!] [Tags: webdiff autoadmit friendship john_palfrey ]