Prof. Sunshine Hillygus is presenting about her study of the persuadable voter here at SDP 2007. She has a book coming out with Princeton University Press shortly on her research. I asked her what the most surprising/biggest finding of her book is. She said that she is trying to get away from the question of “do campaigns matter?” to a more nuanced view of how the various actors (including voters and the candidates) are using new information in such a way that they change their minds, and one another’s minds, over the course of a campaign. She also alluded to the conclusion of the book, in which she is “sounding the alarm” about the hyper-targeting of voters based on the aggregation of new data elements and the used of these data to target individual voters in ways that raise privacy issues. I am eager to read the book!
In real life, Prof. Charles Nesson has been flat on his back the last few days, sadly just in time for the conference that he’s spent a year or more pulling together. It’s the 2007 Internet & Society conference, this time on the topic of University. His co-chair, Charles Ogletree, has done a masterful MC-ing job in Charlie’s (physical) absence. The virtual Charlie has been very much present, though: eon, and his Second Life avatar, have been in the ether throughout the event. And blogging it. Charlie, we miss you, eon, we’re thrilled you’re here in the room.
Three recent conversations I’ve been part of offered a contrast in styles and views on intellectual property rights across the Atlantic. First, the Fordham International IP conference, which Prof. Hugh Hanson puts on each year (in New York, NY, USA); the terrific classes in Law and Economics of Intellectual Property that Prof. Urs Gasser teaches at our partner institution, the University of St. Gallen (in St. Gallen, Switzerland); and finally, today, the Third Congress on Internet, Law & Politics held by the Open University of Catalonia (in Barcelona, Spain), hosted by Raquel Xalabarder and her colleagues.
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At Fordham, Jane Ginsburg of Columbia Law School moderated one of the panels. We were asked to talk about the future of copyright. One of the futures that she posited might come into being — and for which Fred von Lohmann and I were supposed to argue — was an increasingly consumer-oriented copyright regime, perhaps even one that is maximally consumer-focused.
– For starters, I am not sure that “consumer” maximalization is the way to think about it. The point is that it’s the group that used to be called the consumers who are now not just consumers but also creators. It’s the maximization of the rights of all creators, including re-creators, in addition to consumers (those who benefit, I suppose, from experiencing what is in the “public domain”). This case for a new, digitally-inspired balance has been made best by Prof. Lessig in Free Culture and by many others.
– What are the problems with what one might consider a maximalized consumer focus? The interesting and hardest part has to do with moral rights. Prof. Ginsburg is right: this is a very hard problem. I think that’s where the rub comes.
– The panel agreed on one thing: a fight over compulsory licensing is certainly coming. Most argued that the digital world, particularly a Web 2.0 digital world, will lead us toward some form of collective, non-exclusive licensing solution — if not a compulsory licensing scheme — will emerge over time.
– “Copyright will be a part of social policy. We will move away from seeing copyright as a form of property,” says Tilman Luder, head of copyright at the directorate general for internal markets at the competition division of the European Commission. At least, he says, that’s the trend in copyright policy in Europe.
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I was also on the panel entitled “Unauthorized Use of Works on the Web: What Can be Done? What Should be Done?”
– The first point is that “unauthorized use of works” doesn’t seem quite the relevant frame. There are lots of unauthorized uses of works on the web that are perfectly lawful and present no issue at all: use of works not subject to copyright, re-use where an exception applies (fair use, implied license, the TEACH Act, e.g.s), and so forth. These uses are relevant to the discussion still, though: these are the types of uses that are
– In the narrower frame of unauthorized uses, I think there are a lot of things that can be done.
– The first and most important is to work toward a more accountable Internet. People who today are violating copyright and undermining the ability of creators to make a living off of their creative works need to change. Some of this might well be done in schools, through copyright-related education. The idea should be to put young people in the position of being a creator, so they can see the tensions involved: being the re-user of some works of others, and being the creator of new works, which others may in turn use.
– A second thing is continued work on licensing schemes. Creative Commons is extraordinary. We should invest more in it, build extensions to it, and support those who are extending it on a global level (including in Catalunya!).
– A third thing, along the lines of what Pat Aufderheide and Peter Jaszi are doing with filmmakers, is to establish best practices for industries that rely on ideas like fair use.
– A fourth thing is to consider giving more definition to the unarticulated rights — not the exclusive rights of authors that we well understand, but the rights of those who would re-use them, to exceptions and limitations.
– A fifth area, and likely the discussion that will dominate this panel, is to consider the role of intermediaries. This is a big issue, if not the key issue, in most issues that crop up across the Internet. Joel Reidenberg of Fordham Law School has written a great deal on this cluster of issues of control and liability and responsibility. The CDA Section 230 in the defamation context raises this issue as well. The question of course arose in the Napster, Aimster, and Grokster contexts. Don Verrilli and Alex Macgillivray argued this topic in the YouTube/Viacom context — the topic on which sparks most dramatically flew. They fought over whether Google was offering the “claim your content” technology to all comers or just to those with whom Google has deals (Verilli argued the latter, Macgillivray the former) and whether an intermediary could really know, in many instances, whether a work is subject to copyright without being told by the creators (Verilli said that wasn’t the issue in this case, Macgillivray says it’s exactly the issue, and you can’t tell in so many cases that DMCA 512 compliance should be the end of the story).
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Across the Atlantic, Prof. Dr. Urs Gasser and his teaching and research teams at the University of St. Gallen are having a parallel conversation. Urs is teaching a course on the Law and Economics of Intellectual Property to graduate students in law at St. Gallen. He kindly invited me to come teach with him and his colleague Prof. Dr. Bead Schmid last week.
– The copyright discussion took up many of the same topics that the Fordham panelists and audience members were struggling with. The classroom in Switzerland seemed to split between those who took a straight market-based view of the topics generally and those who came at it from a free culture perspective.
– I took away from this all-day class a sense that there’s quite a different set of experiences among Swiss graduate students , as compared to US graduate students, related to user-generated content and the creation of digital identity. The examples I used in a presentation of what Digital Natives mean for copyright looking ahead — Facebook, MySpace, LiveJournal, Flickr, YouTube, and so forth — didn’t particularly resonate. I should have expected this outcome, given the fact that these are not just US-based services, but also in English.
– The conversation focused instead on how to address the problem of copyright on the Internet looking forward. The group had read Benkler, Posner and Shavell in addition to a group of European writers on digital law and culture. One hard problem buried in the conversation: how much help can the traditional Law and Economics approach help in analyzing what to do with respect to copyright from a policy perspective? Generally, the group seeemed to believe that Law and Economics could help a great deal, on some levels, though 1) the different drivers that are pushing Internet-based creativity — other than straight economic gains — and 2) the extent to which peer-production prompts benefits in terms of innovation make it tricky to put together an Excel spreadsheet to analyze costs and benefits of a given regulation. I left that room thinking that a Word document might be more likely to work, with inputs from the spreadsheet.
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The UOC is hosting its third Congres Internet i Politica: Noves Perspectives in Barcelona today. JZ is the keynoter, giving the latest version of The Future of the Internet — and How to Stop It. The speech just keeps getting better and better as the corresponding book nears publication. He’s worked in more from StopBadware and the OpenNet Initiative and a new slide on the pattern of Generativity near the end. If you haven’t heard the presentation in a while, you’ll be wowed anew when you do.
– Jordi Bosch, the Secretary-General of the Information Society of Catalonia, calls for respect for two systems: full copyright and open systems that build upon copyright.
– Prof. Lilian Edwards of the University of Southhampton spoke on the ISP liability panel, along with Raquel Xalabarder and Miquel Peguera. Prof. Edwards talked about an empirical research project on the formerly-called BT Cleanfeed project. BT implements the IWF’s list of sites to be blocked, in her words a blacklist without a set appeals process. According to Prof. Edwards’ slides, the UK government “have made it plain that if all UK ISPs do not adopt ‘Cleanfeed’ by end 2007 then legislation will mandate it.” (She cites to Hansard, June 2006 and Gower Report.) She points to the problem that there’s no debate about the widespread implementation of this blacklist and no particular accountability for what’s on this blacklist and how it is implemented.
– Prof. Edwards’ story has big implications for not just copyright, but also the StopBadware (regarding block lists and how to run a fair and transparent appeals process) and ONI (regarding Internet filtering and how it works) research projects we’re working on. Prof. Edwards’ conclusion, though, was upbeat: the ISPs she’s interviewed had a clear sense of corporate social responsibility, which might map to helping to keep the Internet broadly open.
For much better coverage than mine, including photographs, scoot over to ICTology.
Prof. Wendy Seltzer, one of the original Berkman team and still a fellow, is our honored guest at lunch today. She’s telling the story of her back-and-forth with the NFL over the 30-second clip she posted to YouTube, as chronicled in the Wall Street Journal’s law blog, her own blog, and elsewhere. Wendy’s claim is that the clip is fair use. She has a strong case on the four-factor test. She’s being asked here about whether the NFL is materially misrepresenting their position in this matter. Wendy points to the second take-down notice, at which point a human being had to have reviewed the clip. She notes also the Diebold case, in which the judge concluded that no reasonable copyright holder could have believed that fair use did not attach in that instance — and that this case certainly meets or comes very close to this standard. (The video of Wendy’s lunch talk will be posted on MediaBerkman if you missed it live or on the webcast.)
Berkman fellow (and Brooklyn law prof) Wendy Seltzer is challenging the NFL in an educational video she’s posted to YouTube. The NFL has now twice filed cease-and-desist letters to get the video taken down, and twice YouTube has complied. The content of the video makes the critical and educational nature of Wendy’s posting, plus her claim of fair use, to anyone who actually watches the video. Query as to whether the bots that generate C&Ds, or those who unleash them, actually watch the videos. Fair use should get a good hearing as a result of this exchange, whether through a DMCA 512(f) proceeding or otherwise. Wendy says her clip is “clear fair use,” but there’s no easy way for you to judge for yourself right now, since it’s taken down.
Tom Ashbrook of NPR/WBUR’s On Point took up the YouTube-Viacom dispute today. You can tune in from here. The group didn’t linger long on the legal issues involved, but covered a lot of ground related to cultural and business implications of the dispute.
I’m with a group of 20 wonderful educators talking about technology in the classroom at a NYSAIS workshop. It’s taking place at The School at Columbia University, a totally beautiful, wired school built three years ago. We’re looking now at the debates on a wiki format right now.
We’re talking also about what tags are. (David Weinberger has a book coming out in May, Everything is Miscellaneous, that will answer it for you!)
Welcome to a new aggregator, Planet02138, that Renat Lumpau has set up. The purpose is: “Planet 02138 is a collection of Harvard blogs. It is a sample of opinions and ramblings by Harvard students, faculty, and alumni.” Great idea.