The First OpenNet Initiative Conference: Registration Opens

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The OpenNet Initiative is holding its first-ever conference on May 18 in Oxford, England, at the Oxford Internet Institute. The conference is free and open to the public, but you must register and the event is capped at 100 participants. You can register on this wiki. We will be sharing the initial results of our first global survey of Internet filtering, which will later be published by MIT Press in a book, Access Denied: The Practice and Politics of Internet Filtering, later this year. We hope you’ll join us in Oxford later this Spring.

Wendy Seltzer Puts the NFL on Notice

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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.

Professor Mary Wong on Intellectual Property Rights and Rhetoric, with Nesson as Interlocutor

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Professor Mary Wong of Franklin Pierce Law Center is here today at the Berkman Center. Mary’s talk is a series of provocations about language. She’s taking on the trope of the individual author. She is of the “dualist school,” that there’s a minor, but existing solution to do more with natural rights-type reasoning than the United States utilitarian framework that undergirds our IPR system.

Professor Charles Nesson, the Berkman Center’s founder, who thinks a lot about the rhetorical frame, put it nicely: Mary honed in on both the stability and the fluidity of the rhetoric around intellectual property rights.

The single greatest problem in US law in this area, Charlie says, is that the burden of proof in fair use falls on the person re-using the work, not on the person asserts her or his underlying right.

What could we do, Charlie asks? We could think about universities as a client, and law reform as our tactic. What if we were to take up as a cause a shifting of the burden of proof in the fair use context.

Ethan Zuckerman pushed back on Mary’s suggestion that the Universal Declaration of Human Rights might be a good model in terms of language for reframing of the rhetoric around IPR. It’s a shaky foundation, EZ argues, kind of like trying to build community in Palestine. EZ says that Mary is spending her time in the aspirational zone, not in the real world. What is it that we actually do, EZ wants to know? In universities, we find texts we like and xerox them and give them to students, for instance (not at the Berkman Center, of course, but…). We should work from there and try to get to a legal regime that works, says EZ.

If you’ve missed her talk in real-time, please find it at MediaBerkman.

John Mayer of CALI at Berkman

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The executive director of The Center for Computer-Assisted Legal Instruction (CALI), John Mayer, is a totally wonderful guy. He’s funny and smart and cares about cool technologies and access to justice — all good things. That’s especially good news for us, since he’s giving the Berkman Center luncheon series talk today. If you’re familiar with CALI, you know what an amazing resource he and his colleagues have created for law students and those who teach them. If you’re not, it’s well worth a look.

In their own words: “CALI is a U.S. 501(c)(3) non-profit consortium of law schools that researches and develops computer-mediated legal instruction and supports institutions and individuals using technology and distance learning in legal education. CALI was incorporated in 1982 and welcomes membership from law schools, paralegal programs, law firms and individuals wishing to learn more about the law.”

One of the things they are up to is eLangdell. The idea is to make the legal casebook of the future. Rather than buying a $120 casebook that comes out every four years on Evidence, say, eLangdell will let all of us collect the cases that we teach in our respective courses and rip-mix-burn our syllabi and teaching materials. His vision: these casebooks could serve a law professor and her students at a fraction of the cost of traditional casebooks and fund ongoing development of the system and the course-materials. The parallels to H20 Playlists is obvious. (One thing I wonder: why hasn’t someone set up a wiki server that lets people create syllabi for courses we teach in every high school in America?)

Not everything they do at CALI is about legal education in the strict sense. One of the ideas that he’s talking about is legal aid case management systems, an important concept for the provision of legal services to the poor.

I think some of the most interesting things he’s talking about has to do with taxonomies. Fortunately, The Man on taxonomies, David Weinberger, is right here next to me, tap-tapping away on his little ThinkPad — hopefully, for the rest of us, he is blogging away. Look to him for insights on this score, as always.

In response to questions, John says he’s very big on “legal literacy.” He points to a CALI service called Learn the Law that lets anyone get access to CALI lessons if they want to learn more on a given topic of law. He notes that in some areas, like intellectual property, we all need to know something about the law, whether we’re lawyers or not.

Ira Rubinstein on Microsoft’s Corporate Privacy Guidelines

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Ira Rubinstein

Ira Rubinstein is here with us at the Berkman Center today to talk about Microsoft’s corporate policies on privacy. Ira was joined yesterday here by Brad Smith, Microsoft’s General Counsel, who spoke last night on the topic of innovation, interoperability and IP, and Annmarie Levin, like Ira an Associate General Counsel and with whom we’ve been working on interop and innovation.

Ira’s lunch talk is on the company’s privacy guidelines, which have been posted online, in a 49-page document, since last October. Ira’s testimony to a US Senate committee on privacy in 2001 is also posted here.

As his slides and the policy document states, the core commitment is that “Microsoft customers will be empowered to control the collection, use, and distribution of their personal information.” This commitment drives through to a set of detailed definitions, and then to guidelines for privacy protections when developing software.

Microsoft has gone to a “layered” approach to privacy statements. There’s a basic document with a lot of links to privacy statements by type of application or topical area. One discussion topic: can a layered approach result in greater disclosure and clarity to users?

Microsoft has stated its support for comprehensive privacy legislation in the United States. My comment, not Ira’s: as an idea for comprehensive privacy legislation: what about a format regulation promulgated by the US FTC that ensures that consumers can know where to look for information about how personal information is handled?

The nature of what kind of personally identifiable information that the policies need to cover is changing as the company continues to grow and add business lines. Microsoft announced six months or so ago a new initiative into the health care domain, covering electronic medical records and so forth. All of a sudden, the type of information that Microsoft might collect about you has changed (expanded) radically.

Much of the conversation, prompted by JZ and Ben Adida, revolved around a lawyer’s problem: what happens after a subpoena arrives seeking personally identifiable information. Ira: “I agree that Data minimization is a desirable goal” from a privacy perspective. The hard question buried here is the role of technology intermediaries in retaining information that might help law enforcement v. protecting the privacy of customers.

Should Microsoft, and other companies wishing to be leaders in the security space, let people be idiots? With the “Stop Phishing Filter,” Microsoft gives you a series of choices: set the phishing filter to automatic, set it to manual, or ask me later — but not “no thanks” for this phishing filter. Is “no thanks” a choice they should offer, even if that’s a very poor choice for a user to make?

JZ is the semi-formal respondent: He keys in initially to the notion of making affirmative choices to design privacy protection into software. JZ wants an interface where a consumer could check in on the conversations going on in the background as clients connect back to servers. Or a periodic audit, where you’re prompted to go back in to check periodically on all the pinging that’s gone back and forth. He’s also keyed in on the possibilities for government surveillance in a world of software-as-service instead of products.

At The School at Columbia Today

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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!)

Launch of LegalForce, Creation of Markets for IP

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I got word today of the launch of a new service called LegalForce. They’re creating an online marketplace for patents. They’ve also got something of a community-building idea for stakeholders in the patenting system, it appears. It ‘s a seed-funded company out of Palo Alto. They welcome inquiries from academics who wish to do research on their data set. Jim Moore — who thinks and works extensively on issues related to patents, software, and innovation — is saying very positive things about LegalForce and what its launch means.

This model makes me think of the argument that Kenneth Cukier put forward in The Economist (reg. req’d.) about a year ago, when he described the development of a market in patent rights — in Mr. Cukier’s view, a positive thing, on balance.  A podcast/interview with Mr. Cukier on this argument is still up, and it seems even The Economist is willing to let you have these thoughts for “free.”

What does it mean?  Surely it’s another sign — not unlike the PatentBoard’s section in the Wall Street Journal every Tuesday — that intellectual property rights have become an asset class.