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    Archived pages: 1780 . Archive date: 2013-12.

  • Title: The Laboratorium
    Descriptive info: .. By.. James Grimmelmann.. Professor of Law.. University of Maryland.. Information.. About the site.. Comment policy.. Disclosure statement.. Subscribe.. Blog posts.. Comments.. Archives.. 2013.. Jan.. Feb.. Mar.. Apr.. May.. Jun.. Jul.. Aug.. Sep.. Nov.. Dec.. 2012.. Oct.. 2011.. 2010.. 2009.. 2008.. 2007.. 2006.. 2005.. 2004.. 2003.. 2002.. 2001.. 2000.. 1999.. 1998.. 1997.. 1995.. 1993.. 1992.. Old Sideblog Archive.. Pondering Potter Archive.. Powered by.. Movable Type.. The Laboratorium.. BREAKING: N.. S.. A.. Had Direct Access to Elf on the Shelf Surveillance.. December 15, 2013.. 3 Comments.. WASHINGTON Internal documents from the National Security Agency show that its intelligence-gathering reached far deeper into Santa Claus s annual toy-distribution operations than acknowledged.. Sources close to the agency had previously confirmed that it has been provided with the contents of Mr.. Claus s database of naughty and nice children under a confidential data-sharing arrangement.. But according to the documents, which were among those leaked by Edward Snowden, the N.. also has direct access to one of the North Pole s most closely guarded sources for that database, the daily field reports filed by Elf on the Shelf agents.. Since 2005, Mr.. Claus has outsourced much of his behavioral analytics research to the Elves on the Shelves.. Employing sophisticated surveillance technology, the Elves inform Santa about children s toy-worthy activities or, in some cases, recommend the delivery of coal, instead.. Parents are encouraged to provide the Elves with access to strategic vantage points from which they can observe a wide range of daily household activities.. Playtime, naptime, mealtime: nothing escapes the Elves watchful gaze.. Or the N.. s, it appears.. Under a program codenamed NSANTA, the agency has surreptitiously installed wiretapping devices inside the North Pole data center through which all communications to and from the rest of the world pass.. The devices are custom-designed to identify and copy all incoming reports from an Elf, no matter where its Shelf happens to be located.. Those reports include detailed information on the whereabouts and conduct of millions of American children, most of whom are not believed to have engaged in terrorist activities, except perhaps against their younger siblings.. According to the slides, which the N.. has not acknowledged as authentic, no special legal authority is required for the interceptions.. The North Pole, being outside the United States, is not subject to many of the restrictions that apply on American soil.. (His freedom from regulation has long been a complaint of Mr.. Claus s competitors in the toy industry, and was partly responsible for the War on Christmas of 2003 to 2006.. ) And because Elf reports are filed from countries around the world, the N.. can maintain that it is not knowingly collecting information on the hair-pulling, cat-chasing, or cookie-stealing of American children.. It is unclear whether the the interceptions are taking place with the knowledge or consent of North Pole authorities.. Mr.. Claus has long had a tense relationship with the United States government.. Some have speculated that NORAD was able to extract extensive concessions in 2010, when the most recent treaty allowing him access to United States airspace was negotiated.. Vixen and Comet have alleged that they were placed on the no-fly list in 2006 after delivering presents to Middle Eastern countries, and the Transportation Security Administration has confiscated millions of plastic toy guns from Mr.. Claus s sleigh.. In a written statement, a North Pole spokes-elf said, Santa takes the privacy of all children seriously.. He will be looking into these allegations with a wink of his eye and a twist of his head.. Parents everywhere can be assured that Santa uses industry-standard security measures.. When asked to respond to claims by leading security researchers that children s letters to Mr.. Claus are vulnerable to grinch in the middle attacks, the elf referred reporters to her previous statement.. For one long-time N.. A critic, the latest revelation is a vindication.. In a 2011 blog post, privacy researcher Christopher Soghoian suggested that some members of the Elf on the Shelf program might be undercover government agents looking to circumvent Fourth Amendment protections against searches of the home.. But the scale of the NSANTA program surprised even Mr.. Soghoian.. Watching children around the clock is a job that their own parents have decided is not worth doing, he said.. The people who know best have concluded that this data has no intelligence value.. So why is the N.. so interested in it?.. But for defenders of the embattled agency, the Elf on the Shelf news was no news.. According to the chairman of the House Intelligence Committee, Representative Mike Rogers, You know children.. They re always up to something.. All of them.. Rogers, Republican of Michigan, added that his family has an Elf on the Shelf.. And this Christmas, we re putting him on our mantel, and our refrigerator, and yes, even on our shelf.. We re doing it with pride, knowing that it helps keep our children safe.. The N.. declined to comment for this story.. Barbituate: A Modest App Proposal.. December 13, 2013.. 0 Comments.. For every problem technology solves, it creates another.. Smartphones have made it possible to settle bar bets instantly, but in so doing, they have made it possible to.. lose.. bar bets instantly.. From a certain point of view, this too is a job for smartphones.. Barbiturate s design is simple.. Type in a subject (e.. g.. , Pulp Fiction ) and a predicate (e.. won an Academy Award for Best Picture ), and Barbiturate finds the closest Wikipedia page matching the subject, then edits that page to add the predicate.. (Version 1.. 0 will just insert it as the first sentence of the page; future versions may do some natural language processing to find smoother ways to insert the desired fact.. ) The edit will be reverted almost immediately by Wikipedia s antibodies, but almost is good enough for Barbiturate, which will already have loaded the edited page in a browser window.. Show that window to your friend and collect on your bet.. Some naysayers will say that Barbiturate is a tool for vandalism.. But I say to them that apps don t vandalize Wikipedia, people vandalize Wikipedia.. Barbiturate is a tool for lightweight editing: adding facts quickly to Wikipedia pages without any unnecessary overhead.. It so happens that some people will use Barbituate to add false facts, but so? Other people use Firefox to vandalize Wikipedia.. But does Wikipedia ban Firefox users? Of course not.. Just to be clear.. I have not created an app to win bets by vandalizing Wikipedia, and you should not, either.. Speed Scholarship Week Day 5: Class Actions and Google Books.. December 6, 2013.. And today, the Speed Scholarship Week train rolls to a stop.. For dessert, I offer you a pair of posts on two topics that are near and dear to my heart: class-action settlements and Google Books.. Here at the Laboratorium, I have a.. post on a pending settlement.. in a privacy class action that uses the same dangerous jujitsu that the Google Books settlement did.. Get everyone together in one class, and then use a settlement to force them to bless a program the defendant has yet to launch.. This time, instead of a bookstore, its a consumer database, and instead of escaping copyright law, it escapes from the Fair Credit Reporting Act.. And meanwhile, at Publishers Weekly, I have a post on the.. Google Books fair use ruling.. I survey the winners (Google competitors, researchers, readers, the disabled) and the losers (the Authors Guild) and reflect on how we got to this point.. The world has changed remarkably since 2005, when the lawsuit was filed, and it has changed remarkably since 2008, when the settlement was announced.. Thanks for joining me this week.. I ve had fun, and hope you did too.. Another Troubling Future-Conduct Settlement.. Last year, in.. Future Conduct and the Limits of Class-Action Settlements.. , I expressed grave concern about settlements like the one in the Google Books case, which tried to leverage a lawsuit about.. searching.. books into a settlement about.. selling.. them.. A pending privacy case.. Berry v.. LexisNexis Risk Information Analytics Group.. , provides another good illustration of the problem.. LexisNexis, through a subsidiary, sells a report called.. Accurint.. to help debt collectors, private investigators, and others Detect fraud.. Verify identities.. Conduct investigations.. A group of attorneys brought a class action, alleging that Accurint contains the kind of personal information that can trigger the Fair Credit Reporting Act, but doesn t comply with the FCRA s other requirements.. They claimed that LexisNexis doesn t give consumers access to their files, doesn t let consumers fix mistakes, and doesn t require Accurint customers to comply with the FCRA.. Under the.. proposed settlement.. , LexisNexis would split Accurint s service for debt collectors in two.. One new service, Collections Decisioning, would fully comply with the FRCA; the other, Contact and Locate, would not.. Consumers will have the right to see their Contact and Locate files once a year and to leave 100-word comments, protections well short of the FCRA s.. LexisNexis s theory is that if Contact and Locate contains only personal information that bears a reasonable relationship to the location of a debtor or to the location of assets securing the debt for purpose of repossession and if customers are warned not to use the reports when granting credit, the service will fall outside the FCRA s ambit.. There are reasons to like this new program.. For consumers, it s a substantial improvement over LexisNexis s current.. you get nothing!.. stance toward consumer rights.. Half a loaf is better than none.. But to use a class-action settlement to get there is troubling.. The settlement doesn t just redesign Accurint to keep it clear of the FCRA; it also rewrites the FCRA to keep it clear of Accurint.. Class members agree that from the Effective Date until the Sunset Date that Post Settlement Products shall not be consumer reports within the meaning of the FCRA.. This is a future-conduct release: it forgives LexisNexis for torts as yet uncommitted.. It does not settle presently existing claims the class members have against LexisNexis based on Accurint.. It does not settle any claims class members will have in the future based on Accurint.. Instead, it allows LexisNexis to create a.. new.. service that is different from Accurint and exempts that new service from the FCRA.. LexisNexis argues that it is entitled to the releases in the settlement because it should be permitted to sell Accurint products to its customers without fear of harassing, repeated litigation concerning its purported obligations under an inapplicable statute.. But if LexisNexis truly believes that Contact and Locate will not be covered by the FCRA, let it launch the service and defend itself in court if necessary.. The rest of us have to conform our conduct to the law, as best we are able; we bear the risk that our understanding of our obligations is mistaken.. Why should LexisNexis deserve anything more? Indeed, LexisNexis stands in a.. worse.. position than the rest of us: it is able to offer this settlement only because it has been sued for violating the FCRA.. If breaking the law once is my ticket to a deal that lets me break the law in novel ways in the future, sign me up.. Of course, LexisNexis and the plaintiffs attorneys argue that the Contact and Locate deal is simply a permissible settlement of a genuine lawsuit.. But this is where the differences between Accurint and Contact and Locate become significant.. It is far from clear that a lawsuit about.. Accurint s.. compliance with the FCRA could resolve the legality of.. Contact and Locate.. Contact and Locate doesn t exist.. No one knows what information LexisNexis thinks has a reasonable relationship to debt collection.. No one has seen how LexisNexis will provide access to consumer files.. No one knows what Contact and Locate users will actually do with the reports they request.. Maybe Contact and Locate will fall outside the FCRA, and maybe it won t.. And if it doesn t, it is inappropriate for a court to give LexisNexis prospective  ...   was a classics PhD, but don t worry, she was trained in “digital storytelling” by Harvard s “MOOC video guru.. ” And the professor, Gregory Nagy, was planning to bring a cameraman on his spring break trip to Greece to film the mists at Delphi.. Why, we might ask, is the Francis Jones Professor of Classical Greek Literature scrambling to get second-rate B-roll footage? And do we really think that the resulting videos will be the pinnacle of pedagogical achievement in teaching ancient Greek literature?.. And here is an excerpt from later on:.. One advantage MOOCs have over these various resources is structure: the “C” stands for “course,” as in “prescribed course of study.. ” When you listen to Mike Duncan’s podcasts, you’re on your own: no one will notice or care if you give up after a week.. But a MOOC has a meaningful sequence of checkpoints and deliverables to help students tie themselves to the mast.. These is something to this point, but the contrast between MOOCs and open educational resources should not be overstated.. On the one hand, MOOCs’ commitment mechanisms also often fall short.. Nearly six out of seven of the students who started the Stanford AI course failed to finish, and when A.. J.. Jacobs signed up for eleven MOOCs for a.. New York Times.. experiment, he completed the “two courses with lighter workloads and less jargon.. ” On the other hand, nothing prevents layering the checkpoints and other work of a “course” on top of open resources.. Many teachers who integrate the Khan Academy into their class- rooms customize how they draw on it for each student.. MOOCs bundle student supervision with course content, but in an unbundled world, even that union can be questioned.. The “openness” of these other creators and communities is of an entirely different order than the openness of MOOCs.. It is the freedom to take content and build on it, remixing it into other educational resources.. It is the freedom to dive in and out of topics, pulling them together in ways that don t follow the fixed rhythms of a college course.. And, most of all, it is the freedom to join in, not just as a student but as a teacher, moving back and forth between learning and sharing what you have learned as you collaborate with others from around the world on their own diverse educational journeys.. MOOCs are charismatic megafauna, but open education is an entire ecosystem.. was written for a symposium on.. Legal Education Looking Forward.. at Seton Hall, and it is forthcoming in the.. Seton Hall Law Review.. Speed Scholarship Week Day 2: Big Data and Privacy.. December 3, 2013.. The second course in Speed Scholarship Week is a polemic on the theme of Big Data.. Unlike the many fine existing rants about the privacy of the flies caught in Big Data s webs, my rant is about the fate of the spiders.. To an extent not fully appreciated, Big Data applications enable (and sometimes depend on) comprehensive surveillance of their users.. Every question you ask of a Big Database reveals something about yourself, and don t think that someone isn t writing those questions down.. Indeed, they may be logging your access precisely to keep you from violating the privacy of the people the data concerns.. Big Data s two privacy problems are twins, and rivals.. Big Data s Other Privacy Problem.. is forthcoming in an edited collection of essays based on a Georgetown Law symposium on.. Big Data and and Big Challenges for Law and Legal Information.. , to be published by West Academic.. I use the Bloomberg Terminal scandal as an example of how Big Data surveils its users, then step back and reflect on the relationship between this privacy problem and the more familiar one of protecting data subjects.. Thus, since Big Data cannot be entirely defanged and its users cannot be entirely trusted, it becomes necessary to watch them at work.. It seems like a natural enough response to the problem of the Panopticon.. Subject privacy is at risk because Big Data users can hide in the shadows as they train their telescopes not on the stars but on their neighbors.. And so we might say, turn the floodlights around: ensure that there are no dark corners from which to spy.. We would demand audit trails permanent, tamper-proof records of every query and computation.. But if we are serious about.. user.. privacy as well as about.. subject.. privacy, transparency is deeply problematic.. The audit trails that are supposed to protect Big Data subjects from abuse are themselves a perfect vector for abusing Big Data users.. Indeed, they are doubly sensitive, because they are likely to contain sensitive information about.. both.. subjects and users.. The one-way vision metaphor of the Panopticon, then, is double-edged.. Think about glasses.. A common intuition is that mirrorshades are creepy, because the wearer can see what he chooses without revealing where his interest lies.. Everyone is up in arms about the Google Glass-holes who wear them into restrooms.. But the all-seeing Eye is a window to the soul.. The Segway for your face is also a camera.. pointed directly at your brain.. that syncs all its data to the cloud.. The assumption Glass users are making, presumably, is that no one else will have access to their data, and so no one else will be pondering what they re pondering.. But that s what Bloomberg Terminal users thought, too.. This draft marks another experiment.. It s formatted to a 5.. 5 8.. 5 page, so if you want to save paper, you can print it two-up.. If you prefer your papers with plenty of whitespace, it should still look fine printed at 100% on 8.. 5 11 paper.. Let me know whether you find this style convenient or confusing or both.. Speed Scholarship Week Day 1: Copyright and 3D Printing.. December 2, 2013.. 5 Comments.. Welcome to Speed Scholarship Week.. The first course is a palate cleanser: a paper that makes its points in a lighthearted way.. I was invited to comment on a prize-winning student Note by Kyle Dolinsky of Washington and Lee, on the subject of copyright and 3D printers.. The relationship between objects and the computer files that represent them is tricky on its own, but the copyright doctrines dealing with 3D objects and with computer software are notorious for their intricacy.. I wondered whether there might be a way to cut through the complexity and get at the real issues involved.. And then it struck me that 3D printers are so miraculous a technology they might as well be magic.. What if they were?.. Indistinguishable from Magic: A Wizard s Guide to Copyright and 3D Printing.. takes Clarke s Third Law Any sufficiently advanced technology is indistinguishable from magic.. as its inspiration.. It imagines a world in which wizards use magic scrolls and wands to make 3D objects, and then gives a playful but rigorous discussion of how copyright law would apply.. Here s an excerpt from early on:.. Ulrich has a Replicio wand.. When he waves it with the right flick of his wrist, it makes a perfect duplicate of the object he waves it at.. The copyright treatment of the Replicio wand is simple.. When Ulrich uses it to duplicate an object, he has created a copy.. His only good argument that his copy is noninfringing will be that the object is not subject to copyright in the first place.. The strength of this argument depends on what the object is.. A first-century bust of Homer is in the public domain; duplicating it with my wand violates no one’s rights.. A twenty-first-century bust of Homer Simpson is copyrighted; duplicating it with the wand makes me an infringer.. There is nothing special about three-dimensional objects in this respect.. If Ulrich waves the wand at Rembrandt’s two-dimensional public-domain painting.. Aristotle Contemplating a Bust of Homer.. , his duplicate will not infringe.. To be sure, some three-dimensional objects are uncopyrightable for a distinctive reason: because they are useful articles whose practical aspects are inseparable from their aesthetic features, such as bicycle racks and casino uniforms.. But to understand the Replicio wand, we need to know only whether a three-dimensional object is copyrighted; nothing turns on why.. Indistinguishable from Magic.. will appear in the spring in the Washington and Lee Law Review.. Download it while it s hot!.. The Simple Distinction That Will Completely Change How You Think About Upworthy.. November 23, 2013.. 11 Comments.. I just pulled a random headline from the.. Upworthy Generator.. :.. What This Bullied Millennial Did Is Genius.. This headline does two things.. First, it makes you.. interested.. in this bullied millennial.. Second, it is.. mysterious.. about what he did.. Its opposite would be a bland headline that reveals all, such as:.. New Anti-Bullying Strategy: Gandhian Passive Resistance.. The two traits sound like they go together: after all, mystery provokes curiosity.. But they are very different.. An interesting headline is respectful of users; it explains why they should care about the post.. Concealing what the post actually says, however, is disrespectful: it hides from user the information they need to decide whether it s worth their time to find out more.. An interesting but transparent headline would be more like:.. Millennial Flummoxes His Bullies by Quoting Gandhi.. What unites interestingness and mystery is not concern for users, but rather a desire to maximize click-throughs.. A user who knows what the post contains might realize it s not for her.. Unlike Upworthy, BuzzFeed mostly fights fair; its headlines are usually transparent.. 38 Pictures That Prove Cats Have Hearts of Gold does what it says on the tin.. I m not especially interested in cat pictures; I won t click on that link.. With an Upworthy-style headline, I don t know that cat pictures lie within until it s too late.. BuzzFeed tries to entice you into reading more, but Upworthy tries to.. trick.. you into reading more.. Of journalism s many traditions, putting the most important information up front is among those most worth preserving.. It signals a basic attitude of respect for the reader.. as a reader.. Upworthy is explicitly progressive.. It thinks highly of its readers capacity to improve the world but also appears to believe that they need to be fooled into improving it.. The uplift comes with a side serving of contempt.. Once you recognize deliberately mysterious headlines, they re everywhere.. Phrases like in one chart hint without telling.. So do constructions like here s how X will do Y, this X will change the way you think about Y, and, of course, the infamous one weird trick.. Starting today, please join me in.. never.. clicking on them.. Coming Soon: Speed Scholarship Week.. November 22, 2013.. 1 Comment.. Inspired by.. This American Life.. s.. 20 Acts in 60 Minutes.. I ll be running Speed Scholarship Week here at the Laboratorium starting on Monday, December 2.. Every day until I run out of papers, I ll be posting an all-new, never-seen-before draft.. How far through the week can I get? Tuesday? Wednesday? Thursday? What crazy new topics will I cover? Big Data? Bitcoin? Edward Snowden and the NSA? There s but one way to find out, and that is to stick around.. Appearances.. November 15:.. Daddy, What’s a Broadcast Television Network?.. at George Mason.. Media.. December 13: Quoted in.. Here’s why disabled users are excited about a campaign to jailbreak the iPhone.. (Washington Post Switch blog).. December 12: Quoted in.. Aereo Wants Supreme Court To Approve Streaming TV Service.. (MediaPost Daily Online Examiner).. November 14: Quoted in.. Google wins big victory in legal dispute over book-scanning project.. (San Jose Mercury News).. Google Wins Battle With Authors Guild Over Book-Scanning Project.. (MediaPost).. Judge Dismisses Authors’ Lawsuit Against Google Books.. (LibraryJournal).. Papers.. The Cancer of the Internet.. , Jotwell.. What to Do About Google?.. , Comm.. of the ACM, Sept.. 2013, at 28.. Internet Law: Cases and Problems.. (3rd ed.. 2013).. The Illegal Process: Basic Problems in the Making and Application of Censorship.. , 78 U.. Chi.. L.. Rev.. Dialogue 58 (2013).. , 91 N.. C L.. 387 (2013)..

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  • Title: The Laboratorium
    Descriptive info: About the Lab.. The Laboratorium for Research in Experimental Aesthetics was founded in March of 2000, when I acquired the domain name.. I don t think I understood that Laboratorium really was the German (or Dutch or Indonesian) for laboratory; it was just a catchy word that captured my sense of the site.. I thought of the Lab as a place for experimentation, culture-jamming, critical thinking, artistic risk-taking, and the creative use of computers.. I believe in the promise of redemptive technology, in new wine in old bottles, in unexpected connections, and the profound joy of understanding.. At the time, I d never heard the term weblog, and had no idea that I was writing one.. There are definitional issues, of course: by the time I got to the third entry, I d stopped organizing my posts around links, and even by the end of the first week, the essay format had come to dominate.. It s been a long journey.. I ve stopped blogging twice, only to start up again; I ve experimented with XML, mailing lists, wikis, and several iterations of homebrew content management systems; I ve had dark nights of the soul over trivial issues  ...   generously made available under a Creative Commons license.. The live comment preview uses.. WMD.. Except as otherwise noted, everything on this site was written by me, James Grimmelmann, and I retain the copyright to it.. Anything I have written here is available under a.. Creative Commons License.. The full technical details are encoded in XML in every page here; the full.. legal version.. is also available.. In brief, you can do almost anything you like with my words, as long as you follow one simple condition.. You can copy my writings, distribute them, stage public readings, translate them into foreign tongues, perform merciless line-by-line MSTings of them, and generally use them as you see fit in the pursuit of your own creative vision.. However, you.. must.. identify me as the author.. (I would appreciate it if your reuse were to link back to the entry you are reusing, but I understand that this may be impossible in some media.. If you don t like these terms, write me.. I m happy to consider any other arrangement you d like to suggest.. These are just the terms I m willing to sign off on for anyone, anytime.. Share and enjoy..

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  • Title: The Laboratorium
    Descriptive info: Comment Policy.. There aren t many rules here.. They re simple.. They shouldn t be hard to follow.. These are not legal promises from me to you, nor are they legal terms of service I expect you to agree to.. They are, instead, a brief statement of the kind of decent behavior I expect from my guests on this blog.. Civility.. Be respectful to each other.. Don t post personal attacks or hate speech.. Assume good faith in others, and always  ...   email address to post.. Don t abuse the privilege of posting without your real name attached.. Don t unmask others who have chosen not to use theirs.. Impersonation is absolutely forbidden.. Topicality.. Please keep your comments directed to each other and to the original post.. Spam.. Spam will be deleted on sight.. Unrepentant spammers will be publicly shamed.. Enforcement.. Enforcement will be in my discretion.. I will gently nudge the well-intentioned, reason with the reasonable, and take strong action against the malicious..

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  • Title: The Laboratorium
    Descriptive info: Disclosure Statement.. My basic principle of integrity is a variant of.. Larry Lessig s.. Anything I say represents the views of at most one person: me.. Money.. I m a law professor.. That means that.. New York Law School.. pays me to teach classes and to write scholarship.. Like other serious educational institutions, NYLS is committed to academic freedom.. No one at the school has ever pressured me to take any particular viewpoint in my work and I m confident no one ever will.. Since I have a day job, I can and do decline any outside work that would clash with my principles, require me to endorse any particular point of view, or bias me in what I choose to say.. I write to contribute to the store of human knowledge, to improve society, and to amuse myself.. Sometimes it pays, but so far, it s never paid well.. If I were writing for the money, I d be an even bigger fool than I look.. I treat it as a windfall: a fortunate side effect of writing things that might influece a wider audience than a typical law review article would.. I sometimes speak at conferences and other events.. Even when I ve been invited to address a particular subject, I ve never been asked to take a particular position.. My research budget only goes so far, so I ask for reimbursement for my actual travel expenses where possible.. I also accept honoraria, so long as it s clear that they re independent of the viewpoint I take.. I am the principal investigator on the.. Public-Interest Book Search Initiative.. , which has received outside grant funding, including from Microsoft and the American Library Association.. These project funds go toward holding conferences, creating nonpartisan websites, travel and research expenses, and the like not to me personally.. The.. Information Society Project.. at Yale, where I was a Resident Fellow and  ...   at.. RimuHosting.. My DNS is handled by.. Gandi.. I do almost all of my own programming and HTML design; I get informal unpaid help from friends for some of the sysadmin tasks.. Commercial pressure.. : I pay the hosting, domain registration, and other costs out of my own pocket.. I don t accept advertising, commissions, sponsorships, link exchanges, or any other commercial relationships.. For some people, blogging costs (including time and effort) would pose a real hardship if they didn t take ads.. As a a legal academic, I have both the means to subsidize my blogging and a higher obligation to be independent.. Free Culture.. Wherever possible, I make my writings freely available under a.. highly permissive Creative Commons license.. The academic publish-or-perish imperative means that sometimes I ve been forced to agree to more restrictive terms.. I ve assigned the copyrights in some of my non-academic writings, when I felt the good of reaching a wider audience outweighed the harm of restricting access.. I host most of my academic writings for free anonymous download at.. SSRN.. BePress.. I self-host my syllabi, slides, and other course materials.. I try to use universally accessible formats when distributing my work: principally PDF, HTML, XML, Atom, and Markdown.. Miscellany.. I have strong views on many issues.. These do not require special disclosure here; the point of this blog and my writings is precisely for me to disclose them, as persuasively as I can.. I regularly exercise my fair use rights under copyright law, my experimental use rights under patent law, and my noncommercial (and parodic, fair, etc.. ) use rights under trademark law.. I use both proprietary and free software, depending on the task and the available options.. I ve contributed to both sorts of projects.. I use any number of web services, including.. Flickr.. ,.. Gmail.. , and.. Facebook.. I m an enthusiastic Mac owner, and yes, I have an iPhone..

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  • Title: The Laboratorium: January 2013 Archives
    Descriptive info: January 2013.. Two Faces of Fair Use.. January 26, 2013.. I ve been following the Dish Hopper lawsuit closely; in fact, it s next week s topic in my copyright seminar.. If the name sounds familiar, that s because the Hopper is the DVR that was judged best in show at the Consumer Electronics Show by CNET until its corporate parent, CBS, forced CNET to.. redo the vote.. with the Hopper excluded.. It s capable of time-shifting an entire week s worth of prime-time network programming, and has a one-button commercial-skipping feature.. The district court s.. opinion.. dealt with two extremely important fair use issues: is it still fair use to tape TV with a DVR rather than with a VCR, and is it fair use to analyze copyrighted works to extract uncopyrightable facts? That opinion is now on appeal, and I ve joined an.. amicus brief.. explaining why the answer to both of these questions should be yes.. The lead author was Berkeley s.. Jason Schultz.. , with whom I worked at the EFF almost a decade ago.. His writing is as punchy as ever; the brief is a good statement of what s at stake in today s fair use cases.. My Two New Favorite Aaronisms.. From.. Quinn.. , Aaron s quip about Lasik:.. Lasers are supposed to come.. out.. of your eyes.. And from.. Mako.. , a story:.. I remember Aaron confronting Peter Singer intellectual founder of the modern animal rights movement at the Boston Vegetarian Food Festival to ask if humans had a moral obligation to stop animals from killing each other.. I lurked behind, embarrassed about the question but curious to hear the answer.. (Singer sighed and said yes sort of and complemented Aaron on the enormous Marxist commentary he was carrying.. This Is the Thing That I Have Been Working On.. January 25, 2013.. Here is the big idea from the big thing that I have been working on for a long time, using only the ten hundred most used words, just like in.. Up-Goer Five.. This paper explains the two things we should do about search.. Some serious people think that search should help people who talk get their words to other people.. Other serious people think that the people who offer search talk for themselves and we should leave these people alone.. All of these serious people are wrong, because the most important thing about search is that search helps you find things.. Not someone else.. You, and also me and everyone.. It s good when we can find things because it means we can learn, which is even more important than helping the people who talk or the people who offer search.. There are so many things we could look at that we need help to sort through them.. So the first thing we should do about search is that we should usually leave the people who offer search alone so they will keep on helping us find things.. Not always, because maybe sometimes the people who offer search will lie to us about what things there are or where those things are.. That s bad because it makes it hard for us to find things.. So the second thing we should do about search is not let the people who offer search lie to us like that.. It s important to think carefully about what it means to say the people who offer search lied.. Sometimes the thing you want to find and the thing I want to find aren t the same.. I m not wrong and you re not wrong.. We just want to read different things.. There has to be room for us not to agree on what things are best, which means there also has to be room for the people who offer search to guess at what you and I want when we search.. So a search answer isn t a lie just because the thing it suggests isn t the thing someone else wanted it to suggest.. It s only when the people who offer search really believe you re looking for something and decide to show you something else instead that it s a lie.. When they do that, it s right to be angry at them and we should make them stop lying.. These two things we should do about search also give answers to other questions about search.. One of them is whether the people who offer search should be able to tell you about things even when the people who own those things don t want them to? Yes, because telling you about a thing isn t the same as giving you the thing.. No one owns the facts about where things are, even when someone owns those things.. Search s job is to help you find things, not to help the people who own the things.. This is still being nice to the people who own things because once you find a thing, you can talk to the person who owns the thing and you can only take it from them if they let you buy it.. There will be much more soon, I promise.. (With help from.. the thing.. that helps make sure you really do say only the ten hundred most used words.. My Career as a Bulk Downloader.. January 16, 2013.. 19 Comments.. The core of the.. case.. against Aaron Swartz was that he downloaded millions of academic articles from JSTOR without permission.. He did so by sneaking into an MIT wiring closet and evading MIT s and JSTOR s attempts to detect and block him.. But the heart of the case, the conduct without which there would have been no point and no problem, was the downloading.. To put this in perspective, I, too, am a bulk downloader.. James has downloaded his thousands, and Aaron his ten thousands.. And there but for the grace of the Assistant United States Attorneys (who wield god-like prosecutorial power), go I.. In law school, during my time at the.. Yale ISP.. , I wrote for and ran LawMeme, a blog about law and technology.. (Here s one of its greatest hits, Ernie Miller s classic.. Top Ten New Copyright Crimes.. ) It was a Slashclone based on PHP-Nuke, and it ran from roughly 2001 to 2006 before succumbing to script kiddie penetration attacks, a lack of new content, and administrative neglect.. The domain names expired, the content-management engine was hacked beyond repair, and the powers that be ultimately made the sensible decision to pull the plug and not to try reviving it.. But this meant losing an archive of about fifteen hundred posts.. I had a strong personal attachment to some, like the.. post.. that would ultimately become.. Accidental Privacy Spills.. Others, like my posts on the Search King lawsuit, were the first draft of history.. Ernie s posts on the copyright disputes of the early oughts were memorable, vivid pieces of writing that deserved to be saved.. So I took on the task of making a static archive of what could be salvaged from LawMeme.. LawMeme itself had been dynamically generated: each page was assembled from various chunks of content thrown together by the server on the fly.. The archive would consist simply of fixed, unchanging webpages.. There s no good index to them, but if you search for LawMeme and any of the topics we wrote about, you ll see articles that look more or less as they did back in the site s heyday.. But to create the archive, I couldn t just go back to the long-defunct LawMeme site itself.. Instead, I had to turn to the Internet Archive s.. Wayback Machine.. , which keeps snapshots of webpages from over the years.. But with well over a thousand posts to retrieve, I didn t want to sit there copying by hand.. And so I became a bulk downloader.. I wrote a Perl script: a simple, 70-line program that exhaustively went through the Wayback Machine, looking for a copy of each LawMeme article.. Just like Aaron s script, mine.. discovered the URLs.. of articles and then downloaded them.. And just to show how mainstream this is, I ll add that I built my script around an elementary one that.. Paul Ohm.. published in.. Computer Programming and the Law: A New Research Agenda.. , his manifesto for why more law professors should write code.. Paul s script downloaded and analyzed the comment counts on posts from the popular legal blog.. The Volokh Conspiracy.. I think this was completely legal.. But in today s environment of fear and prosecutorial intimidation, who can be sure? I own the copyright in my own posts, I had the permission of the ISP to create the archive, and the implied license that all of the contributors gave to LawMeme would almost certainly cover this backup.. But almost certainly is not absolutely certainly.. Maybe some AUSA wants to build a career taking down professors, putting me in the crosshairs.. Or take the Internet Archive s.. terms of service.. By using the site, I supposedly promised not to copy offsite any part of the Collections without written permission.. The site s.. FAQ.. qualifies this statement a bit, adding, However, you may use the Internet Archive Wayback Machine to locate and access archived versions of a site to which you own the rights.. Again, I was confident that this covered me.. But confidence is not certainty.. I assumed that no one would care to press the question.. After Aaron, is that such a safe assumption?.. I can t imagine that the Internet Archive would have a problem with what I did.. Recreating lost websites for the sake of the public and posterity is completely consistent with.. Brewster Kahle.. s expansive humanist vision of digital archiving.. But JSTOR quickly made its peace with Aaron, and that didn t save him.. Would Brewster s blessing save me from the wrath of the feds?.. Indeed, my script waited a second between each download.. I didn t want to put too much of a load on the Archive s servers.. But a cyber-Javert could describe it as an attempt to evade detection.. Then, to get the webpages to display right in the LawMeme archive, I wrote another script to delete the bits of HTML added by the Internet Archive to the pages in its archive.. Was that an effort to hide my tracks?.. Another one of Paul s papers presciently predicted the way our computer misuse statutes were vindictively turned against Aaron.. In.. The Myth of the Superuser.. , Paul describes how these laws are written to protect against a mythic bogeyman, the all-powerful demented superhacker, capable of breaking into and destroying any computer system, bent on sowing chaos and devastation online.. But the laws are used to punish minor misdeeds by unthreatening defendants.. Imagine Mr.. McGregor training a howitzer on Peter Rabbit and you have the idea.. Aaron s Law.. is a start, but the problems with our computer crime laws, and with criminal law in general, run much, much deeper.. The Department of Justice thinks.. millions of parents who made Facebook accounts for their children.. are federal criminals.. Read the majority opinion in.. United States v.. Nosal.. and ask yourself whether you ve fudged your age on a dating site, or let someone else use your account, or used a workplace computer to check the baseball scores.. Judge Kozinski noted, skeptically, The government assures us that, whatever the scope of the CFAA, it won t prosecute minor violations.. Tell that to Aaron s family.. I am Aaron Swartz-icus, and so are you.. Two for Aaron.. January 14, 2013.. 10 Comments.. Legal interpretation takes place in a field of pain and death.. This is true in several senses.. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur.. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.. Precisely because it is so extreme a phenomenon, martyrdom helps us see what is present in lesser degree whenever interpretation is joined with the practice of violent domination.. Martyrs insist in the face of overwhelming force that if there is to be continuing life, it will not be on the terms of the tyrant s law.. Law is the projection of an imagined future upon reality.. Martyrs require that any future they possess will be on the terms of the law to which they are committed (God s law).. And the miracle of the suffering of the martyrs is their insistence on the law to which they are committed, even in the face of world-destroying pain.. Their triumph which may well be partly imaginary is the imagined triumph of the normative universe of Torah, Nomos, over the material world of death and pain.. Martyrdom is an extreme form of resistance to domination.. As such it reminds us that the normative world-building which constitutes Law is never just a mental or spiritual act.. A legal world is built only to the extent that there are commitments that place bodies on the line.. The torture of the martyr is an extreme and repulsive form of the organized violence of institutions.. It reminds us that the interpretive commitments of officials are realized, indeed, in the flesh.. As long as that is so, the interpretive commitments of a community which resists official law must also be realized in the flesh, even if it be the flesh of its own adherents.. Robert Cover,.. Violence and the Word.. If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.. In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called subversive activities.. They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a subversive activity, such as we have for murder or larceny.. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as subversive by those whose property interests might be burdened or affected thereby.. Those who are in office are apt to regard as subversive the activities of any of those who would bring about a change of administration.. Some of our soundest constitutional doctrines were once punished as subversive.. We  ...   but quite possibly down the road.. Google recognized this, and for that reason was intensely concerned that the opt-out commitment not be the nose that brings the regulatory camel into the tent.. For this reason, I predict that today s settlement will be unstable.. By the end of its five-year term, one of two things will have happened.. Either the FTC and the world will have stopped caring about the opt-out, and it will be broadly accepted that search engines have a free, or at least not closely watched, hand here.. Or the search-bias investigation will have started up again as the regulators insist on ongoing, perhaps quite intrusive, oversight.. Not with a Bang.. January 3, 2013.. So ends the Federal Trade Commission s long and contentious investigation into Google.. Out of the four serious issues on the table, Google walks away cleanly on one ( search bias ), the FTC gets a clear victory on one ( standards-essential patents ), and Google makes mushy-mouthed commitments on the remaining two ( vertical opt-out and ad portability ).. But the issue on which the FTC let Google walk biasing its search results to favor its own content over competitors was far and away the most important.. The mood over at the Googleplex has to be pretty good right now.. Full analysis below, but first, the essential documents:.. FTC statement.. on the settlement.. Consent order.. on standards-essential patents.. Plain(er) english analysis.. of the consent order.. Google letter.. making commitments on vertical opt-out and ad portability.. on search bias.. Standards-Essential Patents.. The FTC didn t start out focused on Google s use of patents.. But as the smartphone industry descended into a post-apocalyptic Hobbesian landscape in which scavengers picked over the shells of burnt-out companies for usable patents and litigators started waving around patent arsenals of fearful destructiveness, the FTC followed the smell of gunpowder to its source.. Google acquired Motorola in large part for its patent portfolio.. One key piece of Google s strategy, like that of everyone else holding smartphone patents of immense value, was to seek injunctions against other companies phones.. These injunctions, however, undermine a key premise of the standardization process that makes these wonderful gizmos feasible: fair, reasonable, and nondiscriminatory (FRAND) licensing for patents that are essential to implementing a standard.. FRAND licensing is in effect a pact by the companies putting a standard together that once they agree on a standard, none of them will try to hold the others for ransom by brandishing its patents like a C-list rapper.. FRAND licensing doesn t mean free licensing, but it does mean being willing to license at all, rather than asking the authorities to drop competitors phones into a.. Blendtec.. Recent judicial decisions including this.. Richard Posner barn-burner.. involving Motorola have been skeptical of injunctions on standards-essential patents.. The FTC concluded, 4-1, that the practice is an unfair method of competition, and Google agreed not to engage in it in the future.. A cynic might say that Google threw in the towel because the winds in the land were already blowing against standard-essential patent injunctions.. An even bigger cynic might add that Google and its Motorola marionette have tended to be at the wrong end of the patent stick more often than they ve been at the right end, so Google in particular has even less to lose, and might even gain from entrenching the rule it just agreed to as an industry-wide one.. A truly epic cynic might ask whether Google turned to standards-essential patents in the first place because the rest of its larder was so bare.. A mere realist would look at today s settlement as good news for Apple: one more Jersey barrier has been cleared from the path of the iPhone juggernaut.. Ad Portability.. One of the defining features of the search industry is that it s a two-sided market.. In addition to the consumers who use Google, there are the advertisers who actually pay for it.. Google s first and most important money factory was its ability to match advertisements to specific search queries.. In the years since, Google s AdWords program has grown into a huge and complicated system that lets advertisers customize almost everything about their ads and when they ll be displayed.. Other search engines that compete with Google for users and for advertisers have their own similar systems; the competition on the a din vertiser side thus involves advertisers transferring campaigns from one search engine to another.. Google s critics alleged that Google restricted the use of AdWords in one clever and crucial.. respect.. : The AdWords API Client may not offer a functionality that copies data between Google and a Third Party.. That is, you can advertise on both Google and Bing, but you can t use a program to copy your Google AdWords campaign over to Bing.. This provision and a few related ones, it was alleged, made AdWords into the Roach Motel of search advertising.. A medium-sized advertiser one big enough to have a campaign that would be painful to replicate by hand but small enough to depend on third-party tools to manage its campaign would have a hard time switching out.. I have seen defenses of this rule.. Indeed, FTC Commissioner.. Rosch.. offers one in his dissent from the commission s statement closing the investigation: the rule ensur[es] that third-party intermediaries take advantage of the unique features available on AdWords.. And even if the rule has few benefits, neither Rosch nor his colleague Commissioner Ohlhausen thought that it harmed consumers in a way that brought it within the FTC s antitrust enforcement powers.. But this was never going to be the hill on which Google made its last desperate stand.. However much Google gains from encouraging advertisers to create uniquely tailored campaigns by limiting the use of third-party tools, it has more to lose from a protracted legal battle.. The only question is why Google didn t simply delete the term earlier to make the issue go away.. But today s settlement gives the answer: a bargaining chip can only be bargained away once.. Google held on to the term so it would have something to give the FTC as part of a compromise that preserved the powers Google really cares about.. Vertical Search Opt-Out.. Google has had a series of long-running disputes with websites over just it uses the content they put online.. Google does offer an opt-out for websites.. In fact, it offers three: a.. robots.. txt.. file,.. META tags.. in webpages HTML, and its own.. Webmaster Tools.. forms.. Any of these opt-outs can be used on a page-by-page basis, so I could, for example, ask Google to index this blog s front page, but not the archives.. But what these protocols don t do is let websites opt out of particular uses that Google might make of the pages it indexes.. So if you re Yelp, and you didn t want Google copying short snippets of user reviews for its own local search, your only practical option was to tell Google to go away entirely.. But that would mean giving up your Google traffic, and one significant way that users find sites like Yelp is through Google searches in the first place.. From Yelp s point of view, Google was using Yelp s own content to compete with it.. Newspaper publishers have regularly raised the same complaint about Google s snippets in Google News: they like the traffic Google provides but not Google s competing product.. The publishers tried their own alternative proposal for more granular opt-outs:.. ACAP.. But it was.. badly designed.. and never was adopted by the one group whose adoption mattered: search engines.. Under pressure from the FTC, Google has now agreed to offer an opt-out from one of its vertical search properties.. The details are interesting and, as usual, all of the interesting details are in the footnotes.. First, the opt-out only applies to Covered Webpages, which have the primary purpose of connecting users with merchants.. Thus, Yelp can opt out of Google Local without opting out of Google, but if you want to opt out of Google Image Search without opting out of Google, no such luck.. Thus, this rule really only applies to transactional vertical searches: ones whose goal is to find and buy something.. It only really protects other organizing intermediaries, like Yelp and Expedia.. Google can still strong-arm content producers, like newspapers and blog empires, to the fullest extent allowed by law.. Second, the opt-out is site-wide.. You can opt out example.. com as a whole, but not sub.. exmple.. com or example.. com/sub by itself.. I wouldn t be surprised if there s a back-end reason for this related to how Google s crawlers and search-box integration systems work.. It also doesn t seem like a dealbreaker from the websites side of the table.. The opt-out changes the terms of the bargain between Google and websites moderately, but not very dramatically.. Websites have always had the ability to opt out entirely, so the question is what kinds of concessions they can extract from Google in exchange for not taking their ball and going home.. Google has proven willing to dicker over details in the past; it has changed its crawling rules to play nicely with newspaper paywalls, for example.. Here, Google conceded the essential point long ago: it gave Yelp the opt-out it wanted.. Today s concession institutionalizes this practice and makes it broadly available to other websites.. But Google was clearly prepared to make this retreat.. Call it the recognition of the inevitable, call it a reasonable compromise, or call it a concession offered to help the FTC save face, something like this has been waiting in the wings for months.. Search Bias.. The center of the investigation, and of the complaints against Google for the past four years, has been search bias : the accusation that Google deliberately slants its search results to favor its own sites (like its own local results and flight search) over its competitors (like Yelp and Expedia).. Last year, FTC staff wrote a 100-page report that reportedly recommending suing Google to prohibit search bias.. But today, the FTC by a 5-0 vote decided not to take any action against Google over search bias.. According to the FTC, then, whatever bias Google has engaged in is fine.. This outcome is a giant middle finger extended in the direction of the Google critics, like.. FairSearch.. , who have been calling for stringent FTC action on search bias.. (Just yesterday, FairSearch put up a plangent blog post telling the FTC that there was.. no reason to rush.. its investigation.. ) I cannot overstate the extent to which the anti-Google case was premised on search bias.. It was the hub to which all the other issues connected.. Google s vacuum cleaner approach to personal information and its systematic manipulation of its search results were the two constant themes Google s enemies used to explain its actions and to appeal for government intervention.. But today s settlement directly repudiates the search bias claims.. It doesn t say, Google might be doing something bad but we didn t find a smoking gun, or Google is doing something bad but not something the FTC can prevent.. No, the settlement says, We looked, and what Google is doing is good.. If the final FTC statement had been any more favorable to Google, I d be checking the file metadata to see whether Google wrote it.. Just look what the FTC concluded:.. Google was pure of heart.. : The totality of the evidence indicates that, in the main, Google adopted the design changes that the Commission investigated to improve the quality of its search results, and that any negative impact on actual or potential competitors was incidental to that purpose.. Google helped users when it helped itself.. : Notably, the documents, testimony and quantitative evidence the Commission examined are largely consistent with the conclusion that Google likely benefited consumers by prominently displaying its vertical content on its search results page.. The data agree with Google.. : Analyses of click through data showing how consumers reacted to the proprietary content displayed by Google also suggest that users benefited from these changes to Google’s search results.. Everyone else did it, too.. : We also note that other competing general search engines adopted many similar design changes, suggesting that these changes are a quality improvement with no necessary connection to the anticompetitive exclusion of rivals.. Users win when (some) websites lose.. : For example, for shopping queries, Google demoted all but one or two comparison shopping properties from the first page of Google’s search results to a later page.. These changes resulted in significant traffic loss to the demoted comparison shopping properties, arguably weakening those websites as rivals to Google’s own shopping vertical.. On the other hand, these changes to Google’s search algorithm could reasonably be viewed as improving the overall quality of Google’s search results because the first search page now presented the user with a greater diversity of websites.. Relevance is subjective.. : Reasonable minds may differ as to the best way to design a search results page and the best way to allocate space among organic links, paid advertisements, and other features.. And reasonable search algorithms may differ as to how best to rank any given website.. Google needs a free hand.. : Challenging Google’s product design decisions in this case would require the Commission – or a court – to second-guess a firm’s product design decisions where plausible procompetitive justifications have been offered, and where those justifications are supported by ample evidence.. The decision to drop the search bias investigation, and this statement all but lauding Google, were made by 5-0 votes.. That s three Democrats and two Republicans, at the end of an investigation the FTC fought hard to get, for which it hired a veteran outside litigator, and for which its own staff was raring to go.. If they just wanted to make the case go away, it could have been dropped more quietly, without the encomia to Google s search-engine design.. No, the end result of the FTC investigation is a prominent public vindication for Google.. The public case against Google and hence also the legal case against Google in these uncharted antitrust waters is now immeasurably.. weaker.. than it was before Google s critics pushed so hard for an investigation.. This is one of the biggest lobbying backfires I have ever seen.. In fact, an ironist might argue that the lobbying backfired.. because.. it was so aggressive.. Certainly it put Google on the defensive, hiring lobbyists and proxies.. But it also seems to have raised hackles inside the FTC, undercutting critics credibility.. The FTC will continue to monitor Google on search bias, but further action seems unlikely unless something especially dramatic happens illustrate bad bias in action.. Google is still in negotiations with the EU over the same slate of issues, and there have been reports that the EU was preparing to take a tougher line than the FTC.. (State attorneys general, also on the case, may well also try to bring their own actions against Google.. ) So Google might now take this outcome across the pond to push for a similar resolution there.. Or, if the EU is able to extract bigger concessions, the FTC could end up looking gun-shy.. One Last Thought.. One interesting piece of timing is that yesterday, the Senate confirmed legal scholar.. Josh Wright.. to be an FTC commissioner.. Wright, who has.. written.. Google-funded.. papers.. defending Google from antitrust arguments over search bias, has recused himself from all Google-related matters for two years.. So if the FTC had waited until Wright took his seat, it would have faced the risk that it would end up deadlocked 2-2 on this high-profile case.. On the main issue search bias this wouldn t have been a problem, but the FTC was fragmented over whether a voluntary commitment by Google was an appropriate remedy on vertical opt-out.. Being down a Commissioner would have increased the risks of deadlock somewhere in the case..

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  • Title: The Laboratorium: February 2013 Archives
    Descriptive info: February 2013.. HathiTrust Appeal: The Authors Guild s Opening Brief.. February 27, 2013.. The Authors Guild and its co-plaintiffs have filed their.. opening brief.. appealing from their.. decisive loss.. in the district court.. Most of the arguments should be familiar if you ve been.. following.. the.. , so I m going to mention only the significantly new or modified points, along with a few details I found striking.. The brief starts by comparing Google s mass digitization of books to an exercise in eminent domain.. The metaphor is confused, perhaps deliberately so.. Eminent domain involves the government taking ownership of property.. Google s digitization, even if it is an unauthorized and infringing.. use.. of the plaintiffs copyrights, does not affect their.. ownership.. If any of the plaintiffs attorneys need a refresher, I would be happy to welcome them to my first-year Property class when we cover eminent domain later this semester.. (.. UPDATE.. : On further reflection, I think the metaphor works, but in a different respect.. Google and the libraries are assembling a large number of smaller individual holdings into a larger parcel that they believe will be more valuable and better serve the public interest.. The mechanism and effect on property rights are different, but this does resemble one typical use of eminent domain.. So my initial snark was un-called-for.. The brief makes much of the defendants sovereign immunity to lawsuits for damages.. In theory, it is an irrelevant point, as this is a lawsuit for declaratory and injunctive relief, not damages.. But I think the plaintiffs were right to emphasize the unavailability of damages.. For one thing, sovereign immunity under the Eleventh Amendment is a bit of a crock; the states use it to engage in all kinds of skulduggery.. For another, sovereign immunity gives the plaintiffs ripeness arguments a particular sharpness: since compensation.. ex post.. isn t available, the court might be more concerned to reach the legal issues and define the parties respective rights.. ex ante.. The brief does an effective job portraying HathiTrust s dancing around the Orphan Works Project as a whipsaw.. The libraries announced the Orphan Works Project, then suspended it, and say that if they relaunch it, then and only then would it be ripe for adjudication.. The brief points out that the libraries could also re-suspend the project if challenged a second time, perpetually evading review.. In one sense, this isn t a problem for copyright holders: if the project never actually launches, nothing has been lost.. But the brief calls this an expensive game of Whac-a-Mole, in an effective turn of phrase that shows why it s unfair to deny the authors their ruling on the Orphan Works Project as it was announced and almost implemented.. If the libraries want to avoid that ruling, they really ought to be prepared to make a.. stronger commitment.. that the project will not come back in a similar form.. The plaintiffs renew their security argument, saying:.. Each copy is connected to a “campus network,” and the primary and mirror HathiTrust sites include World Wide Web servers, compounding the risks of exposure.. Furthermore, HathiTrust grants remote access to the complete image and text files to nearly one hundred HathiTrust administrators and researchers located throughout the country.. They made a similar argument at the district court, and it s spectacularly bad.. If keeping documents on a network with remote users and publicly accessible servers is an inherent security risk, then.. Frankfurt Kurnit Klein and Selz.. is committing malpractice by keeping client information on its office computers.. (See.. Rule 1.. 6(c).. of the New York Rules of Professional Conduct.. To make their security argument, the plaintiffs rely on Ben Edelman s.. expert declaration.. He s a smart guy who s done important work on Web privacy and online marketing, but he s not remotely qualified as a network security expert, nor does his report pass the.. Rule 702 standard.. that it be based on sufficient facts or data.. Continued citation of the report on appeal is a classic sunk costs mistake: we spent a lot of money on this report, so we d better cite it to get our money s worth.. (The same goes for Daniel Gervais.. report.. predicting that collective licensing spontaneously arises whenever there is the vital heat of a market need for it.. At the district court, the plaintiffs argued that fair use under section 107 was never available to go beyond section 108 s codified privileges for libraries.. They wrote.. , Congress included these rules to carefully delineate the boundaries of fair use in the context of library copying.. ) On appeal, that argument is gone, replaced by the weaker claim that exceeding section 108 should weigh heavily against a finding of fair use.. That view depends on a reading of the history of section 108 that the defendants will of course dispute.. The plaintiffs brief tries to disaggregate the different uses for the scans: even if searching is a fair use, there s no need to retain numerous electronic copies of the full texts of the works.. Judge Baer s opinion anticipated this particular objection: Not to mention that it would be a tremendous waste of resources to destroy the electronic copies once they had been made for search purposes, both from the perspective of the provision of access for print-disabled individuals and from the perspective of protecting fragile paper works from future deterioration.. The plaintiffs respond that they don t want to destroy the digital files, but rather to have them taken  ...   and to develop a clearer understanding of when various procedural devices are appropriately employed.. My title is a play on the bible of the Legal Process school, Hart and Sacks.. The Legal Process: Basic Problems in the Making and Application of Law.. My format is a play on Hart and Sacks, as well.. The Legal Process.. is notable for its barrage of questions to the reader, questions which range from the subtle to the sublime.. consists of a long series of Notes and Queries on Bambauer s article over a hundred and fifty questions, in all.. Some are pointed, some are cheeky, some are gently leading; all of them, I hope, help to bring out the implications of his argument and the challenges of trying to build legal bulwarks against would-be censors.. Here s a sample:.. Professor Bambauer refers to his criteria as a process-based methodology and defends them as being compatible with divergent views on what material should be banned.. How far can procedural criteria go in settling questions about censorship? Does it follow that because procedurally regular censorship is more legitimate than procedurally irregular censorship, it is legitimate in an absolute as well as a relative sense? Is this a question that can be settled in the abstract, without reference to the material to be censored? Is it right that whether Winston Smith shall be permitted to read.. The Theory and Practice of Oligarchical Computation.. should turn only on the process Comrade O Brien follows and not on the contents of the book? But if it is necessary to make normative judgments about whether particular material can appropriately be censored, is it possible to say anything about global censorship that does not rest on contested moral and social values? Is Professor Bambauer s theory an attempt to apply a quintessentially liberal methodology procedural justice to a quintessentially illiberal subject censorship?.. February 9, 2013.. My latest article,.. , has just been published in the.. North Carolina Law Review.. I ve been working on this one for a long time two and a half years and have been struggling with the ideas for even longer nearly five.. I ve kept it under wraps until now because I wanted to be sure I had the details right.. This is my fullest and strongest argument against the late Google Books settlement.. In the course of studying it, I came to realize that it was only the most visible example of a new and deeply worrying trend in class-action law.. I found half a dozen other settlements, from antitrust to real estate, that used the same dirty trick the Google Books settlement did: giving the defendant a release for the future that would allow it inflict in new and unprecedented harms on the members of the class suing it.. This article is my attempt to make sure that no one ever tries such a thing again and that if anyone does try, the courts are ready to stand guard against it.. It s a sustained (nearly 90 pages) explanation of how these releases work, why they re deeply dangerous to class members, and why they re fundamentally illegal.. As I said at a conference, The Google Books settlement is dead; I would like you to come with me to the graveyard with pitchforks and stakes.. Here s an example, to give a sense of the kinds of unearthly forces from the outer darkness the Google Books settlement was trying to summon.. Imagine that in 2003, BP had had a minor oil spill from a well in the Gulf of Mexico: a few thousand barrels.. Now imagine a class action supposedly on behalf of all the residents of the Gulf states, and imagine a settlement of that class action that released BP from all liability not just from this past spill, but from all.. future.. spills.. If such a settlement had been in place at the time of the Deepwater Horizon explosion, Tony Hayward could have stayed on his yacht all spring and summer without lifting a finger to stop the spill.. The courts should not be in the business of handing out these unprecedented future-conduct releases in class actions.. The article is a careful explanation of why.. Here s the abstract:.. This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant s future conduct.. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public.. Even more than the future claims familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts.. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.. Courts should guard against the dangers of future-conduct releases with a standard and a rule.. The standard is heightened scrutiny for all settlements containing such releases; the Article describes the warning signs courts must be alert to and the safeguards courts should insist on.. The rule is parity of preclusion: a class-action settlement may release future-conduct claims if and only if they could have been lost in litigation.. Parity of preclusion elegantly harmonizes a wide range of case law while directly addressing the normative problems with future- conduct releases.. The Article concludes by applying its recommendations to seven actual future-conduct settlements, in each case yielding a better result or clearer explanation than the court was able to provide.. Song for the Weekend.. February 2, 2013..

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  • Title: The Laboratorium: March 2013 Archives
    Descriptive info: March 2013.. Fun with Pleading in the Alternative.. March 21, 2013.. Fowler v.. Bott.. , 6 Mass.. 63 (1809):.. [I]t appears that the plaintiffs thereby covenanted, among other things, to build a chocolate mill, in a place agreed upon, of certain dimensions, and in a certain manner mentioned in the indenture: and did, in and by the same indenture, grant, lease and demise the same chocolate mill, with the privileges and appurtenances  ...   three several pleas in bar.. 1.. That the plaintiffs never built a chocolate mill in the place, c.. according to the form and effect of the said indenture.. 3.. That after the commencement of the lease, and before any of the rent for which this action is brought accrued or was in arrear, the said chocolate mill was, against the will and without the default of the defendants, burned and consumed by fire..

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  • Title: The Laboratorium: April 2013 Archives
    Descriptive info: April 2013.. Update from France.. April 30, 2013.. From British poet, historian, and Laboratorium commenter.. Gillian Spraggs.. comes this.. detailed discussion.. of the implementation of France s new orphan books legislation.. It is the best source I am aware of in the English language for a ground-level view of the French legislation in action.. She wrote extraordinarily helpful analyses of the Google Books settlement.. for U.. K.. authors.. and she finds many of the same troubling features in the new French scheme.. In particular, it appears that the metadata and search interface to the database of putative orphans are both atrocious.. Spraggs s post details more than a dozen books by foreign authors that are not plausibly orphan works, but were or are in the database nonetheless.. This, it will be recalled, was a.. significant problem.. with HathiTrust s abortive Orphan Works Project.. Every time an orphan works trial flunks its basic due diligence, it undercuts the case for orphan works reform; just as the criminal antics of Righthaven and Prenda Law undercut the case for copyright enforcement against individual downloaders.. Oh, the Ironies.. Catherine Rampell,.. Who Says New York Is Not Affordable?.. , N.. Y.. Times, Apr.. 28, 2013, at MM22:.. Of course, not everything that wealthy New Yorkers spend money on is cheaper here.. Housing, after all, is absurdly expensive, even for the rich.. Complex zoning regulations and limited land make it all but impossible for supply to grow alongside demand.. What’s happening in New York is just part of a national shift.. Highly paid, college-educated people are increasingly clustering in the college-graduate-dense, high-amenity cities where they get good deals on the stuff they like, while low-skilled people are increasingly flowing out to cheaper places with a worse quality of life.. Why, it s almost as though cities are engaged in exclusionary zoning.. Nah, couldn t be.. Everyone knows exclusionary zoning is a suburban phenomenon.. With Judge and Bull.. April 10, 2013.. The problem has long entertained lawyers, particularly those in whom a speculative turn of mind is allied with some proficiency in mathematics.. Several exceedingly complex all-purpose theoretical solutions have been proposed.. These have been ignored by the courts.. A judge who finds himself face to face with a circular priority system typically reacts in the manner of a bull who has been goaded by the picadors: he paws the ground and roars with rage.. The spectator can only sympathize with judge and bull.. Grant Gilmore,.. Circular Priority Systems.. , 71 Yale L.. 53 (1961).. Speech Engines.. April 7, 2013.. I ve posted a draft of my latest article,.. , forthcoming in the Minnesota Law Review.. I started thinking hard about search engines a decade ago, when I blogged about the Search King lawsuit instead of studying for my first semester law-school exams.. It was apparent to me then that Google s power to promote and demote sites in its search results was both immensely valuable and immensely dangerous, but I wasn t sure how the legal system should respond.. Since then, I ve written six papers on search engines.. The first five were either failed attempts at a general theory,  ...   how law should treat them.. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right.. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright.. But they both systematically discount search users’ agency, regarding users merely as passive audiences.. A better theory is that search engines are not primarily conduits or editors, but advisors.. They help users achieve their diverse and individualized information goals by sorting through the unimaginable scale and chaos of the Internet.. Search users are active listeners, afirmatively seeking out the speech they wish to receive.. Search engine law can help them by ensuring two things: access to high-quality search engines, and loyalty from those search engines.. The advisor theory yields fresh insights into long-running disputes about Google.. It suggests, for example, a new approach to deciding when Google should be liable for giving a website the “wrong” ranking.. Users’ goals are too subjective for there to be an absolute standard of correct and incorrect rankings; different search engines necessarily assess relevance differently.. But users are also entitled to complain when a search engine deliberately misleads them about its own relevance assessments.. The result is a sensible, workable compromise between the conduit and editor theories.. This is a draft.. The article itself won t be published until next year, which means I have plenty of time to revise and refine the arguments.. I would greatly appreciate any comments or suggestions you might have.. ReDigi, Digital First Sale and Star Trek.. April 3, 2013.. My latest.. column for Publishers Weekly.. is up.. In it, I look at the.. ReDigi.. decision holding that an online marketplace for used iTunes music files violates copyright law.. The judge dropped a Star Trek reference in a footnote, which I use as the starting point for my riff on first sale.. The Copyright Act was drafted with two scenarios in mind: one, we could call the transporter or the post office, where someone takes a book that s.. here.. and moves it over.. there.. , out of one person s possession and into another s.. Copyright calls this a distribution, and the first sale defense applies to it.. The total number of copies is unchanged: there was one before, and there s one after.. The other offline scenario, which we can call the replicator or the printing press, takes an.. old.. copy of a book and makes a.. copy in the same place.. Copyright calls this a reproduction, and it s not subject to first sale.. The total number of copies increases: there was one before, and there are two after.. But online, a download is a bizarre hybrid of the two.. There s an.. copy.. on my computer, and once I send you the bits, there s also a.. on your computer.. The Internet therefore is something of a transporticator that creates a perfect replica of Kirk down on the planet, while also leaving the original Kirk free to roam the Enterprise.. It gets even weirder from there, including guest appearances by Derek Parfit and Evil Spock..

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  • Title: The Laboratorium: May 2013 Archives
    Descriptive info: May 2013.. Computer Crime Law Goes to the Casino.. May 2, 2013.. Cross-posted from.. Concurring Opinions.. ).. Wired.. s Kevin Poulsen has a great story whose title tells it all:.. Use a Software Bug to Win Video Poker? That s a Federal Hacking Case.. Two alleged video-poker cheats, John Kane and Andre Nestor, are being prosecuted under the Computer Fraud and Abuse Act,.. 18 U.. C.. 1030.. Theirs is a hard case, and it is hard in a way that illustrates why all CFAA cases are hard.. (Continued..

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  • Title: The Laboratorium: June 2013 Archives
    Descriptive info: June 2013.. Transitions.. June 30, 2013.. 4 Comments.. Tomorrow, I start a new job: I am.. joining the faculty.. University of Maryland Francis King Carey School of Law.. , where I will be the Director of the Program in Intellectual Property.. I was a visiting professor there this past fall, and found the faculty and students to be both warm and wise.. By mutual agreement, what started out as a limited engagement has been renewed indefinitely.. There are too many wonderful things about my new colleagues and new institution to list them all, so I will mention just a few.. I m particularly excited that my good friend and sparring partner.. Frank Pasquale.. will also be joining the faculty, and that my good friend.. Danielle Citron.. talked us both into it.. I will be joining one of the country s great research university systems, and collaborating with colleagues from the computer science department and the iSchool in College Park.. And, hardly least, I will have the second-closest office in the Law  ...   I am grateful for all they have done for me, and wish them all well.. If you have been using my New York Law School email address or phone number to reach me, you should update your.. contact information.. for me to my Maryland details.. I would like to emphasize that email remains the best way to reach me.. I am not in the habit of checking my voicemail when I am not physically in my office.. I should have some additional announcements to post here soon, including some news about the future of the Public Index and a few further surprises.. Awaz from Kezboard.. June 4, 2013.. I will be traveling with my family for most of June.. You should assume that your email will not reach me until I return.. When I do, it may take me weeks to clean out the backlog and get to your email.. If there is something you want me to do, just remember what the.. Rolling Stones say.. , and all will be well..

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  • Title: The Laboratorium: July 2013 Archives
    Descriptive info: July 2013.. Too Good To Be True.. July 11, 2013.. The core of the antitrust case in.. Apple.. was simple.. Apple convinced five major publishers to shift to the agency model, under which the publisher rather than the retailer controls the price of ebooks.. Since Apple insisted on a 30% agency commission instead of Amazon s razor-thin markups, publishers received a smaller cut of the price for each ebook sold.. The publishers used the agency model to raise the retail prices paid by consumers.. Unsurprisingly, readers bought fewer ebooks as a result.. In other words, Apple talked publishers into selling fewer ebooks and making less money on each one, while paying Apple for the privilege.. It sounds too good to be true.. Publishers went along with this money-losing scheme so they could collectively raise ebook prices.. They didn t want readers to become accustomed to $9.. 99 ebooks, and they didn t want Amazon undercutting other retailers.. Publishers couldn t do it alone; they had to act all at once.. Enter Apple, which offered publishers the agency model they wanted, as part of a course of negotiations which ensured that each publisher knew the others were on board.. In other words, Apple knew that the reason its deal was attractive to publishers was that it provided the framework for an illegal cartel to fix prices.. It sounds too good to be true because it was.. PW: The Google Case Grinds On.. July 2, 2013.. My latest Publishers Weekly column is online.. This one, unsurprisingly, concerns the decertification of the Google Books class action.. If you read my.. blog post.. yesterday or my tweets, there will be few surprises.. Here s the opening:.. The Google Books litigation, now in its eighth year, is not so much out of gas as low on motor oil.. It grinds on, with more smoke and noise than forward progress.. Last May, Judge Denny Chin certified the case as a class action, setting it on a track to resolve, at long last, Google’s liability in one fell swoop.. But today, the Second Circuit appeals court vacated Chin s order, decertifying the class and sending the case back to him to consider Google s fair use defense.. And here s a brief passage from later on.. The difference is one of those procedural distinctions that lawyers love to hate, and everyone else simply hates: the proper sequencing of issues.. Judge Chin put class certification first, and would have gone on to consider fair use at a later date.. But the Second Circuit held that fair use is a horse, not a cart, so it must come first.. In theory, Judge Chin is free to recertify the class once he deals with fair use.. Second Circuit Decertifies the Google Books Class.. July 1, 2013.. 13 Comments.. Remember when Judge Chin.. certified a class action.. in the Google Books lawsuit? Seven years and a failed settlement into the case, it looked like it might finally be  ...   to go ahead and consider the merits.. so far as necessary.. to resolve the class certification question, but no further.. That s not what the Second Circuit did, however.. Instead, it remanded the case for consideration of the fair use issues.. And the court was explicit that this meant resolving the fair use questions first,.. ruling on class certification: [W]e are persuaded that holding the issue of class certification in abeyance until Google’s fair use defense has been resolved will not prejudice the interests of either party.. This is unusual.. In particular, it seemingly takes away Judge Chin s ability to use subclasses to focus the fair use questions, or even to consider the fair use of books other than those which are owned by the individual named plaintiffs.. Without a class, all the other books some perhaps with different or stronger fair use cases are off the table, and not properly before the court.. My best guess, based on the opinion and what I have heard about the oral argument, is that the judges on this appeal were convinced that Google has a winning fair use defense across the board.. It s not a fact-dependent defense, one that would work for some of the books owned by class member but not for others.. Rather, it s a general defense, one that would render class certification itself irrelevant, even moot the litigation.. The court s quotation of.. Wal-Mart v.. Dukes.. language that a defendant is entitled to litigate its statutory defenses to individual claims also suggests that it believes the fair use ruling will go in Google s favor rather than the plaintiffs.. These fair use issues were, however, outside the scope of the appeal, which concerned only class certification.. Indeed, appellate record wouldn t have contained the factual material necessary to make a justifiable fair use ruling.. So, I believe, the court decided to gently signal what it thought about the fair use question and invite Judge Chin to cut to the chase.. It s not the most juridically correct resolution of the appeal, but it seems justifiable on pragmatic grounds.. Class actions are cumbersome, slow, and expensive: why spin up all that machinery if the case is going to be dismissed on fair use grounds in the end?.. Today s news is good for Google and bad for the authors associations bringing the suit.. Not only does it slow down the one lawsuit in which they ve made any significant headway and undo the one major ruling in their favor in the past few years, it also signals that three Second Circuit judges are inclined to see the fair use questions from Google s point of view.. If the case ever does manage to reach the fair use merits, Google is now that likelier to get the same kind of sweeping fair-use blessing that its library partners got in the.. HathiTrust.. decision.. The Google Books program lumbers on, one step closer to being unambiguously legal..

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