Three Conversations on Intellectual Property: Fordham, University of St. Gallen, UOC (Catalunya)

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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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Fordham (1)

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.

* * *

Fordham (2)

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).

* * *

St. Gallen

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.

* * *

Barcelona

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.

ONI Tests in Nigeria Around Elections

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The OpenNet Initiative ran a series of tests related to Internet access during the recent elections in Nigeria.  Though the election was fraught with issues generally, and though certain web sites were inaccessible during key moments of the election period, we found no evidence of tampering with the Internet.  We’re in the process of refining our election monitoring capabilities, led by Rafal Rohozinski.  We’ve posted a slightly more in-depth statement on the ONI blog.

Key Themes of Internet, Law and Politics 2007

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In preparation for the final class of the semester in Internet, Law and Politics 2007 at Harvard Law School, I am posting a draft of the core themes of the course to the class wiki. Comments, as always, most welcome.

* * *

Internet Law and Politics, 2007: Themes of the Course

– The puzzle of this course is to figure out how information and communications technologies — including but not limited to Internet per se — are changing the way that democracies work, the way campaigns are run, and the manner in which citizens communicate with one another and interact with their states. What are the most important of the changes that the use of these technologies is bringing about? Do we consider these changes to be desirable or undesirable? If you accept the premise that the use of these technologies does matter in this context, what could be done to ensure that we maximize the desirable and mitigate the undesirable? Are the changes most fundamental from the viewpoint of participatory democracy; economic democracy; semiotic democracy; or some other viewpoint altogether?

– We should acknowledge at the outset that we’re inquiring into issues that are still playing themselves out; the terrain is unsettled. The scholarly field studying these topics is still emerging. Empirical evidence is awfully hard to come by. The fault lines in the relevant debates are becoming clear, but there’s no consensus as to likely outcome or impact. Our frame of reference should be skeptical, if hopeful.

– As with any neutral technology, Internet and other digital communications tools fundamentally can be used for good or for ill. It’s not about the technologies themselves; it’s about how people choose to use the technologies. A lot turns on who is making the decisions about how they can be used. Does the citizen decide, or does the state or the technology company or the market or her peers decide for her?

– As we study and participate in this breaking story, we need to keep asking: can people really use Internet in a way that affects democracies in a *meaningful* way, or is it just cool and edgy and marginal? We saw this debate in each segment of the course: in the participatory democracy context, if Howard Dean’s campaign is the paradigmatic “success” of online campaigning, but he didn’t make it past the first few primaries, how meaningful can it really be (isn’t it all about raising money, whether or not online, to run persuasive 30 second TV spots, really)? Does e-government really change anything, other than how efficiently you can get your driver’s license renewed? If every city provided lower-cost wifi, would we really be any better off in terms of civic engagement or bridging the digital divide or other social aims? Are enough people making mash-ups that it represents a shift in control over our cultures (and is it just elites in wealthy countries who have wifi and lovely Macs with too much time on their hands talking to one another)? Is von Hippel wrong that user-centric innovation is a big deal and here to stay, or does that only work when the example is kite-surfing or other fringe (also elite) activities?

– Sometimes the changes wrought by citizens’ use of these new technologies is troubling. For instance, Cass Sunstein’s Daily Me argument represents a worry worth monitoring. clay Shirky’s power law argument draws our attention to the extent to which we are recreating traditional power relationships from the offline world in the new ordering of the online world. Some scholars argue that this framing of the debate is totally missing the point (Dean, Lovink, Anderson, Rossiter, et al.).

– The fundamental, and most promising, change is about how people can use these tools to change the relationship between individuals and institutions.

– An individual can have more autonomy via Internet and related digital tools than ever before. This change has the power to change politics. It has already changed business in a democratizing fashion (see e.g., eBay; the open source movement; and perhaps more fundamentally, von Hippel & Benkler).

– Often the way this change is manifested is via quickly and easily formed groups. Lightweight collaboration is a critical part of what’s different here. We can become members of many different groups quickly and easily and can leverage our collective power more easily than before, with vastly lower transaction costs involved. (Facebook groups are a good example of this dynamic — almost instantly, groups can express and harness broad opinion; but shouldn’t we meanwhile worry about the “Herdict,” as Jonathan Zittrain does in his forthcoming book, “The Future of the Internet — and How to Stop It”? Are the crowds really so very wise? Can you get recourse if harmed by the crowd?)

– The ability for individual citizens and activists to tell the narrative of political events directly — whether using blogs, wikis, or SMS text messages blasted to zillions of cell phones — is a big part of the change. Intermediaries, whether the state or big corporations, still have a role and can still dominate the discourse if they try hard enough, but individuals, and groups of individuals that form around ideas or campaigns, are fast gaining influence and power. This change might map to a new kind of “semiotic democracy,” or might be seen in more classic terms as part of the participatory democracy story.

– States that do not wish for the individual to have more autonomy, or more power relative to the institution of the state, have ways to push back. Censorship and surveillance, including using private intermediaries, are the surest signs of this push-back. (See the work of the ONI, RSF, HRW, and others for elaboration.) Often, the state needs to rely upon private parties to carry out this push-back. Those private parties might well be based in another part of the world, bringing up complicated questions of international law and politics.

– Private parties sometimes do not like these changes either. Intellectual property, defamation law, computer security provisions are invoked to protect the power of private institutions.

– It may not be the case that we want the power to shift wholly away from institutions to individuals. We may seek a balance between autonomy of the individual and the power of institutions. The state and private corporations, for instance, serve important functions in modern society. Most of us would not choose to bring them down. But in the shifting sands of power that are taking place on the Internet, we should be aware that our decisions involve resetting this power balance.

– How much difference can the law make in the outcome of this narrative? If you adopt Lessig’s view of what counts as “law,” the answer is quite a bit. If you limit the frame to “East Coast Code,” (i.e., what legislators pass or regulators enforce), the answer is sometimes a lot and sometimes not much. In certain contexts, the law doesn’t have all that much impact; in others, the law is quite important.

– How and when is this all going down? This story is playing out right now, all around us, on a global basis. There will be no single constitutional moment for cyberspace. These are decisions being made constantly, all the time, by very many actors — including each of us. In the readings by Goldsmith and Wu, as well as the final chapter of Benkler, these institutional battles are described differently, but with the same core premise: there’s a quiet battle going on right now, between institutional players as well as individuals, for who will control the Internet and how it is used now and in future.

– There are many ways to get it wrong: too much autonomy for too many individuals or loosely formed groups could result in tyranny of a majority or chaos; too much power retained in the hands of institutions could thwart the innovation and other positive changes afoot online. If we can figure out how to get it right, the net effect could be a very good thing for democracies.

– So, where do you come down? For me, in a grand sense, the potential benefits in terms of strengthening democracies outweigh the potential harms. The clearest example of this promise, to me, is Global Voices. People can use the Internet to empower themselves and others, and to empower loosely organized groups, to have greater voice — and, in turn, relative impact — in political and cultural contexts than ever before. In the cyberlaw literature, the arguments for why this matters are set out most explicitly in Benkler, Wealth of Networks; Lessig, Free Culture; and in the work of Jack Balkin and Terry Fisher (broadly, the literature of semiotic democracy and the Net).

Eric von Hippel in Internet, Law and Politics

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Prof. Eric von Hippel has written one of my favorite books: Democratizing Innovation. Prof. von Hippel teaches at MIT’s Sloan School of Management and runs the Innovation Lab there. Our class of Harvard Law School students focused on Internet, Law and Politics have created a wiki page of questions for Prof. von Hippel in advance of his visit here.

We at Harvard have amazing neighbors at MIT, with whom we do not do enough collaboratively. I’m hugely grateful to Prof. von Hippel for coming through the rain to guest-lecture at HLS and help bridge the unnatural gap between 02138 and 02139.

The challenge for this class today is to find the connect points between von Hippel’s findings from the business world and Benkler’s findings in The Wealth of Networks and to draw conclusions from this intersection about the core themes of our course.

Wendy Seltzer's NFL Experience: Just Half-Time, or Game Over?

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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.)

Cary Sherman, Lewis Hyde in Chat about RIAA's AntiPiracy Campaign

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Cary Sherman, president of the Recording Industry Association of America, participated in a web chat about the RIAA’s new Anti-Piracy Campaign on US university campuses — sending pre-litigation notices to digital natives accused of illegal activity on peer-to-peer networks, which the universities are asked to pass along to the students.  The Berkman Center’s Lewis Hyde tossed in a question.  Here’s Lewis’s question:

“The recording industry regularly asks colleges to police their students in regard to infringement. Why is it the task of colleges to do this police work, rather than the police?

“Sharing files over the internet is not illegal per se; that depends on what’s in the file and on what it is being used for. An accusation of music piracy is not a proof of music piracy: questions of evidence, and of fair use, and of educational exceptions to infringement come into play.

“If colleges ‘pass along messages’ that direct students to ‘pay lump sums to record companies,’ colleges become an arm of the recording industry, bypassing their educational role (teaching about fair use, for example) and bypassing legal due process, if in fact there is a criminal charge to be made.

“For these reasons I believe that colleges should decline this RIAA request. How would Mr. Sherman respond to the background assumption here, that the industry, the colleges, and law enforcement are distinct institutions, and that there is good reason to keep their separate roles clear?”

Go here for Mr. Sherman’s response.

Apache, Sun Tangle over Licenses

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The Apache Foundation is accusing Sun of holding out on a license related to a Java test kit. In an open letter, Geir Magnusson Jr of the Apache Foundation says to Jonathan Schwartz, the Sun CEO:

“Since August 2006, the ASF has been attempting to secure an acceptable license from Sun for the test kit for Java SE.  This test kit, called the ‘Java Compatibility Kit’ or ‘JCK’, is needed by the Apache Harmony project to demonstrate its compatibility with the Java SE specification, as required by Sun’s specification license.  The JCK license Sun is offering imposes IP rights restrictions through limits on the ‘field of use’ available to users of our software.

“These restrictions are totally unacceptable to us.  As I explain below, these restrictions are contrary to the terms of the Java Specification Participation Agreement (JSPA) – the governing rules of the JCP – to which Sun is contractually bound to comply as a signatory.”

Interoperability in the software context — especially the free/libre/open source software context — so often turns on field of use and similar provisions in the relevant intellectual property licenses.  Sun has been a huge supporter of the open source movement in many ways, so Mr. Schwartz certainly knows this.  One wonders whether this decision, presuming Apache’s claims are true, to deny such a compatible license was a high-level policy decision or one that just hasn’t been run past the right person at Sun.  We’ll find out, I suppose.

Book Party for John Clippinger's A Crowd of One

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This year, the Berkman faculty and fellows will publish four books on topics related to our field. Join us for the celebration of the first of the four to come out, John Clippinger’s “A Crowd of One: The Future of Individual Identity,” published by PublicAffairs Books. The celebration will take place on Thursday, April 19, 2007,at 5:30 PM at Harvard Law School in Pound Hall 200 with John speaking about the book, and will continue with a cocktail reception at the Berkman Center at 6:30 PM, located at 23 Everett St., also located on the law school campus. Please send an e-mail to rsvp AT cyber.law.harvard.edu to let us know if you plan to attend.

Here’s the promo blurb: “John Clippinger, one of today’s preeminent experts on how technology influences business and society, offers a fresh and provocative perspective, grounded in everyday and historical examples, that presents a vision for a new scientific understanding of human nature and identity. In A CROWD OF ONE, Clippinger takes us through the historical origins of identity and the way it is influencing—and being influenced by—today’s world. He examines origin narratives from around the world and the religious underpinnings of many people’s identities, and explores the competing theories of human nature developed by Hobbes, Adam Smith, and some of the other leading philosophical minds throughout history. His conclusions will have profound implications for everything from social networking and virtual worlds, to leadership strategies in business and technology, to the structure of today’s military operations around the world.”

iTunes and EMI Breaking the DRM Barrier

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Good news from Steve Jobs, Eric Nicoli, and company: EMI’s music now to be available without Digital Rights Management. A great move for consumers, innovation, interoperability and, one hopes, creative re-use of digital works. (Cory Doctorow at Boing Boing has the definitive post and list of links. Cory suggests that we help out with a thank-you gift for Mr. Jobs.)