I have posted a draft of a new article, An Economic Model of Intermediary Liability. It’s a collaboration with Pengfei Zhang, who I met when he was a graduate student in economics at Cornell, and is now a professor at UT Dallas. He was studying the economics of content takedowns, and participated in my content-moderation reading group. We fell to talking about how to model different intermediary liability regimes, and after a lot of whiteboard diagrams, this paper was the result. I presented it at the Berkeley Center for Law & Technology Digital Services Act Symposium, and the final version will be published in the Berkeley Technology Law Journal later this year.
Please write me a sonnet on the subject of the Forth Bridge.
The problem with the post-pandemic “back to the office” push is that companies now want three different things from white-collar office workers:
I am participating today in the Copyright Office’s NFT Roundtable. Here is the text of my (brief) opening remarks:
The Romans would laugh their tits off to look at American executions. The Romans had no such paradoxes, no confusion or anxiety over the right to life or privacy or dignity. Dignity was a privilege afforded to the very, very few. Life was something you earned, mostly by being rich, useful, and a citizen who followed the rules. Those who didn’t manage those things deserved everything they got. A Roman would ask what the point of the state murdering someone was if no one got to see it. …
There is, of course, a problem with this. For the Romans, that is. There are about eight million problems for us as modern Western readers with an ingrained sense of individual self and inalienable personal human rights. The problems for the Romans was simpler: once you’ve seen one guy get stabbed or hung or burnt or eaten by a leopard, you’ve basically seen them all. One stabbing is the same as the next. Burnings are barely distinguishable from one another. Animals are a bit unpredictable, but eventually they’re gonna eat the guy’s face and, you know, I already saw that on a mosaic the other day at my mate’s house. …
Roman sources only show public executions as being either very boring or very spectacular. They were either mundane, everyday crucifixions and behadings or wildly exhilarating theatrical displays praised for their stagecraft. What a modern reader never sees is any writer wrestling with the extraordinarily cavalier approach to human life.
On July 6, 1776, John Jay – future governor, ambassador, cabinet minister and chief justice – wrote a letter to his colleague Edward Rutledge. It began:
One of the things that sent me to law school was finding a used copy of Jesse Dukeminier and James Krier’s casebook Property in a Seattle bookstore. It convinced me – at the time a professional programmer – that the actual, doctrinal study of law might be intellectually rewarding. (I wonder how my life might have turned out if I had picked up a less entertaining casebook.)
Bo Burnham’s Inside reminds me of Helen DeWitt’s The Last Samurai and David Foster Wallace’s Oblivion: formally innovative, emotionally affecting, and obsessively inward-looking. While it is hard to tell where exactly the author stops and the character begins, they all could only have been created by someone struggling with profound depression.
Christina Mulligan and I have a new paper, Data Property. Here’s the abstract:
The phrase “I’m not going to link to it” has 385,000 results on Google. The idea is usually that the author wants to explain how someone is wrong on the Internet, but doesn’t want to reward that someone with pageviews, ad impressions, and other attention-based currencies. “Don’t feed the trolls,” goes the conventional wisdom, telling authors not to write about them. But in an age when silent analytics sentinels observe and report everything anyone does online, readers can feed the trolls without saying a word.
The blog has moved.
We had the telegraph and the Court decided that was commerce … then the telephone came and that’s been declared commerce …. now if I’m to write a decision on this thing called radio, I’m afraid I’ll have to get in touch with the occult.
Please write me a sonnet on the subject of the Forth Bridge.
This post was originally written as a review for The Journal of Things We Like Lots, but was not published there because reasons. I am posting it here to help an excellent work of scholarship receive the recognition and readership it deserves.
Wolf, wolf! he cried and we all came running because we are good villagers, but there was no wolf. We told him, why did you do that, everyone knows there are no wolves around here. He said, it was there I saw it, but he was lying.
I have a simple new model of how persuasion works. The more you hear a message, the more persuasive you find it. That’s it. That’s the model.
“How can it be permitted,” the pro-Jacobin Journal des Hommes libres has asked, that even though terror is the order of the day, “–… large amounts of false news circulate from the centre of Paris … and carry uncertainty into the minds of patriots and serenity into the souls of aristocrats?”
I recently tweeted that every sentence of this “explanation” of blockchain-based non-fungible tokens (NFTs) from the Harvard Business Review is false:
Applying these principles, the court [in Armstrong v. Eagle Rock Entm’t, Inc., 655 F. Supp. 2d 779, 786 (E.D. Mich. 2009)] found that Eagle Rock Entertainment’s decision to use Louis Armstrong’s picture on the cover liner of its DVD entitled, ‘Mahavishnu Orchestra, Live at Montreux, 1984, 1974,’ without consent was protected by the First Amendment. Rosa & Raymond Parks Inst. for Self Development v. Target Corp., 90 F. Supp. 3d 1256, 1264 (2015).
I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before.
In 2017, the Boy Scouts of America invited President Trump to address their Jamboree. It was early enough in his presidency that it was still possible to pretend that he might give a speech appropriate to the occasion. Of course, he did not. Instead, in the course of a typically partisan and petty performance, he got a crowd of tens of thousands of teenagers to boo a former President and a former Secretary of State.
For most of 2016, I lived in a state of growing dread. After the election, I alternated between numbness, depression, and the grim necessity of moving forward. But by now, mostly I am angry.
For obvious reasons, I have been following the news, and the news as refracted through social media, very closely since mid-spring. Unavoidably, this has meant that I have been subjected to a much higher than usual dose of Trump nonsense, and nonsense Trump takes. He says and does stupid and terrible things on a near-constant basis, which are then surrounded and amplified by a fog of overinterpretation. There is much less there there than meets the eye.
Tim Lee has a remarkable story at Ars Technica about a remarkable copyright case, McGucken v. Newsweek. Its headline, “Instagram just threw users of its embedding API under the bus,” is not an exaggeration. (Disclosure: I am quoted in the story, and I learned about the case from being interviewed for it.) The facts are simple:
I was inspired by a tweet by @nycsouthpaw to read Ian Kershaw’s well-known essay “Working Toward the Führer”: Reflections on the Nature of the Hitler Dictatorship. I was not disappointed; Kershaw gives a compelling analysis of the internal workings of a particular kind of authoritarian regime. In the interests of space, I will not quote the whole thing, so you will need to read the original for Kershaw’s observations on Stalin, Max Weber, succession planning, and other peripheral topics. But a number of passages about Hitler and how he ruled struck me as quite illuminating.
I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write.
This is what I have to do to read an article on SSRN from my iPad:
I’m happy to announce a little non-coronavirus news. I gave a lecture at Ohio State in the fall for the 15th anniversary of their newly renamed Ohio State Technology Law Journal. It was a great program: Mary Anne Franks gave the other lecture and there were some unexpected but fascinating connections between our talks. My remarks have been going through the editorial pipeline, and just today the student editors emailed me the final PDF of the essay. And so I give you Spyware vs. Spyware: Software Conflicts and User Autonomy.
“Hey, Doc,” said Yossarian. “I think I have coronavirus.”
Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. People who started late or hesitated for any reason had no chance at all. Action paid. Contemplation did not. The mere act of getting dressed was enough to condemn people to death, and although many of those who escaped to the water succumbed to the cold, most of the ultimate winners endured the ordeal completely naked or in their underwear. The survivors all seem to have grasped the nature of this race, the first stage of which involved getting outside to the Deck 7 promenade without delay.
–William Langeweische, A Sea Story, The Atlantic (May 2004)
Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to torture one of the terrorists responsible? It turned out that 24 was a poor guidebook for national security policy: the United States tortured prisoners on a vast scale, some of whom were completely innocent victims of mistaken identity, for negligible public benefit, and we are still dealing with the terrible consequences of that terrible decision.
For example, I think that references to patents, so ancient and pervasive in sales literature, are just such a move. It may be in part that the word “patent” is used to stand in for “clever” or “cunning,” and it certainly is true that “patented” is often central to that classic and powerful product-differentiation technique, “Kill-All’s Patented Rat Trap.” But it is also the case that having a patent means that one has a governmentally approved right coercively (through legal action) to exclude competitors from particular cost-cutting processes for a very long time (specifically seventeen years). The power of “our patented process” may inhere in this triple reference power, but the most important of the three may be to indicate this commercial rara avis, sole licit durability of a competitive advantage.
I go back to this tweet a lot:
Greg Lastowka, who taught law at Rutgers-Camden until his untimely death of cancer in 2015, was a thoughtful scholar of copyright and virtual worlds, a beloved teacher, and a profoundly decent human being. He was generous and welcoming to me as a law student whose interests paralleled his, and then a generous and welcoming colleague. He was always one of my favorite people to see at conferences, and his papers were like the man: intelligent, unpretentious, and empathetic, with a twinkle of poetry.
I set out to write a longer post, but there is really no need. The readout of President Trump’s July 25 telephone call with Ukranian President Volodymyr Zelenskyy shows him committing an obviously impeachable offense. The President of the United States personally asked a foreign nation to investigate a political rival, and he used nearly $400 million in American aid as a bargaining chip. This is corruption of the most basic sort: using his office to serve his personal interests. Nothing more need be said.
Rebecca Tushnet blogged a trainwreck of a copyright opinion in Cisco Systems, Inc. v. Beccela’s Etc. from the Northern District of California. The software-licensing caselaw was not good, but this is one of the most confused opinions I’ve seen.
One evening, about the time when bananas were first being imported in Britain, Lord Leconfield was dining in his stately home with a friend. His guest observed that nobody really knew how good a banana could be unless he had tasted one straight off the tree.
Lord Leconfield said nothing at the time, but next morning he sent for his head gardener. “Go,” he told him tersely, “to Kew. Find out how to grow a banana. Come back here and grow one.”
Off went the head gardener. A special greenhouse was constructed. The banana tree was splendid. Lord Leconfield took a lively interest in in its progress until it fructified. “I will have the banana for dinner tonight,” he said as soon as the banana was ripe. And so he did – amid a deadly hush. The head gardener himself was there, concealed behind a screen.
The banana was brought in on a splendid dish. Lord Leconfield peeled it with a golden knife. He then cut a sliver off and, with a golden fork, put it in his mouth and carefully tasted it. Whereupon he flung dish, plate, knife, fork and banana on to the floor and shouted ‘Oh God, it tastes like any other damn banana!“ Banana tree and all were ordered to be destroyed.
The Ninth Edition of Internet Law: Cases and Problems is now available. It includes a new section on platforms as marketplaces, a half-dozen new cases, and updated notes, questions, and problems throughout. As always, the book can be downloaded directly from Semaphore Press as a pay-what-you-want DRM-free PDF. The suggested price to students remains $30. It’s also available as a print-on-demand paperback (this year’s cover color: purple) for $65.50.
The road to Zork began in late May of 1977, when Dave Lebling put together a very simple parser and game engine quite similar to Adventure’s, from which Marc Blank and Tim Anderson built their first four-room game as a sort of proof of concept. … The name itself was a nonsense word floating around MIT that one might use in place of something, shall we say, stronger in stressful situation: “Zork the bloody thing!” when a piece of code just wouldn’t work correctly, etc. The file holding the game-in-progress got named “Zork” as a sort of placeholder until someone came up with something better. In the case of Zork, though, a proper name was slow in coming. And so Zork the game remained for the first six months of its existence. …
At some point around the fall of 1977, the DMG hackers had decided that their creation really, really needed a “proper” name. Lebling suggested Dungeon, which excited no one (Lebling included), but no one could come up with anything better. And so Dungeon it was. … Shortly after that, MIT heard legal rumblings from, of all places, TSR, publishers of Dungeons and Dragons – and of a dungeon-crawling board game called simply Dungeon! TSR was always overzealous with lawsuits, and the consensus amongst the MIT lawyers that the DMG hackers consulted was that they didn’t have a legal leg to stand on. However, rather than get sucked into a lengthy squabble over a name none of them much liked in the first place, they decided to just revert to the much more memorable Zork. And so by the beginning of 1978 Dungeon became Zork once more, and retained that name forevermore.
It occurred to me today, while reading a story about a person targeted by anti-vaccination activists, that her ordeal was very much like that of the Sandy Hook parents targeted by InfoWars, which was very much like … you get the picture.
I am pleased to say that I have joined the editorial board of the Communications of the ACM, the monthly journal of the world’s leading computer-science professional society, the Association for Computing Machinery. I am responsible for editing a three-times-annual column, “Viewpoints: Law and Technology.” The column was created in its modern form by the estimable Stefan Bechtold, and he has done a great job getting a a group of very smart people to write very smart columns. (The estimable Pamela Samuelson single-handedly writes a regular column for CACM as well.) I have big shoes to fill.
I have a new essay, Renvoi and the Barber, in The Green Bag 2d,1. Here is the abstract:
In 1995 an engineer named William Dilworth, who had published a refutation of Cantor’s argument in the Transactions of the Wisconsin Academy of Sciences, Arts and Letters, sued for libel a mathematician named Underwood Dudley who had called him a crank. The case was dismissed. For myself I am more scared of the copyright law than the law of libel. After taking legal advice I decided not to quote any of the authors directly. The alternative was to write some letters saying in effect: ‘I’m sorry we couldn’t publish your paper as a contribution to logic. Can I please publish parts of it as examples of garbage?’
American democracy received a stay of execution on Tuesday. But it is still on death row.
The present author is by no means a philosopher. He has not understood the system, whether there is one, whether it is completed; it is enough for his weak head to ponder what a prodigious head everyone must have these days when everyone has such a prodigious idea. … He writes because to him it is a luxury that is all the more pleasant and apparent the fewer there are who buy and read what he writes. … I throw myself down in deepest submission before every systematic ransacker: “This is not the system; it has not the least thing to do with the system. I invoke everything good for the system and for the Danish shareholders in this omnibus, for it will hardly become a tower. I wish them all, each and every one, success and good fortune.”
Seventeen years ago, I had a uniquely, memorably bad customer service experience with Barnes & Noble. I received a gift card, purchased in a physical store, as a present, and I tried to use it at bn.com. This was impossible – I understand now because of how they had set up the website as a separate business unit – but no one I spoke to on the phone or in a store could understand why or what to do about it. At one point they suggested I postal-mail the gift card to their office in Secaucus, New Jersey, to the attention of “Lynn,” and their accounting department would find a way to reissue it properly. They couldn’t seem to understand why I was unsatisfied with this “solution” to their self-created problem.
I have released a new edition of my Internet law casebook. While I revise and update the book every summer, this is an unusually big revision. I had had the feeling that the subject was slipping through my fingers and maybe no longer made sense, so I did a lot of soul-searching in thinking about what the previous edition no longer got right. Many, many hours later, I think I’ve managed to climb back on the tiger.
One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair.
I have just posted Speech In, Speech Out, one of several scholarly responses included as part of Ronald K.L. Collins and David M. Skover’s new book, Robotica. The book is their take on how the First Amendment will adapt to an age of robots. To quote from the publisher’s description:
However, much of the effect of an impressive and expensive window is lost if it has to be inserted into a tunnel-like opening in a thick wall. Inevitably, attempts to provide bigger windows set in thinner walls ran into trouble with thrust lines. Norman architecture was basically Roman architecture and cannot be made to do this sort of thing, because it depends for its stability and safety on the use of thick walls. But this did not stop builders from trying, and it has been said of late Romanesque architecture that the question to ask of any particular building is ‘not whether, but when, the Great Tower fell’.
Have I mentioned that I expect death around every turn, that every blue sky has a safe sailing out of it, that every bus runs me over, that every low, mean syllable uttered in my direction seems to intimate the violence of murder, that every family seems like an opportunity for ruin and every marriage a ceremony into which calamity will fall and hearts will be broken and lives destroyed and people branded by the mortifications of love?
I’ve posted a new essay, The Platform is the Message, although “rant” might be a better term. At the very least, it fits into the less formal side of my academic writing, as seen in previous essays like Big Data’s Other Privacy Problem. I presented it at the Governance and Regulation of Internet Platforms conference at Georgetown on Friday, and the final version will appear in the Georgetown Law Technology Review as part of a symposium issue from the conference. I’ve been told that my slide deck, which starts with a Tide Pod and ends with the Hindenburg, is unusually dark, even for an event at which panelists were on the whole depressed about the state of the Internet today.
I’m taking part in a blog symposium at Just Security on the United States v. Microsoft case currently before the Supreme Court. My essay, thrillingly titled “The Parties in U.S. v. Microsoft Are Misinterpreting the Stored Communications Act’s Warrant Authority” makes two arguments. First, framing the case as a question of whether the SCA is “domestic” or “extraterritorial” is somewhere between misleading and just plain wrong. And second, the SCA should be interpreted as mildly extending the warrant authority in Federal Rule of Criminal Procedure 41 rather than creating a new warrant authority out of thin air. Both of these points are directed towards the same goal: returning the case to a narrow and tractable question of statutory interpretation rather than a high-stakes clash of grand theories. Here are a few excerpts:
Young people have curled around their economic situation “like vines on a trellis,” as [Malcolm] Harris puts it. And, when humans learn to think of themselves as assets competing in an unpredictable and punishing market, then millennials–in all their anxious, twitchy, phone-addicted glory–are exactly what you should expect. The disdain that so many people feel for Harris’s and my generation reflects an unease about the forces of deregulation, globalization, and technological acceleration that are transforming everyone’s lives. (It does not seem coincidental that young people would be criticized for being entitled at a time when people are being stripped of their entitlements.) Millennials, in other words, have adjusted too well to the world they grew up in; their perfect synchronization with economic and cultural disruption has been mistaken for the source of the disruption itself.
But hold up for a minute: Who is this “we” that’s always turning up in critical writing anyway? We is an escape hatch. We is cheap. We is a way of simultaneously sloughing off personal responsibility and taking on the mantle of easy authority. It’s the voice of the middle-brow male critic, the one who truly believes he knows how everyone else should think. We is corrupt. We is make-believe.
I’ve read a lot of confused takes trying trying to make sense of the Trump administration through a traditional left-right lens. I’m sure you have, too. They use words like “pivot” and “establishment” and they struggle to explain when and why Trump does things other Republicans complain about. I find this particular style of Kremlinology unhelpful. Whether “conservatives” or “moderates” are winning is less than half the story.
If President Trump tries to stop the Russia probe by firing Robert Muller or by issuing pardons, the House must impeach him and the Senate must remove him from office.
Rain type 17 was a dirty blatter battering against his windscreen so hard that it didn’t make much odds whether he had his wipers on or off.
He tested this theory by turning them off briefly, but as it turned out the visibility did get quite a lot worse. It just failed to get better again when he turned them back on.
Amazon recommends that customers who buy Zeynep Tufekci’s Twitter and Tear Gas: The Power and Fragility of Networked Protest also buy a two-factor authentication hardware security key. It’s a fitting connection: anyone serious about activist organizing in today’s pervasively networked world should probably have both. The security key is to keep the government from hacking your email and Face accounts; the book is to tell you how to use them effectively. Twitter and Tear Gas is an academic book, not an on-the-ground organizing guide like Indivisible. But it provides the best framework I’ve seen for thinking about how the Internet changes the dynamics of protest movements.
Suppose that most people live in partisan informational bubbles. Without more, what can we say about effective political tactics? I can think of four types of things to do:
I’ve done a quick pass through Judge Gorsuch’s opinions in the fields I know something about (mainly IP and Internet law) and I’m impressed by what I’ve found. His writing style is designed to make his conclusions sound reasonable and sensible, and in these cases at least, they are. A few highlights:
There’s an interesting – and amusing – parallel between Donald Trump and Henry VIII. From @KngHenryVIII:
Third, we use the results of our new survey to estimate the share of Americans who saw and believed each of a set of 14 fake news headlines. … To address survey misreporting, we also include a set of placebo fake news headlines – untrue headlines that we invented and that never actually circulated. This approach mirrors the use of placebo drugs as controls in clinical trials. Consistent with a similar survey carried out the same week as ours (Silverman and Singer-Vine 2016), about 15 percent of U.S. adults report that they recall seeing the average fake news headline. About 8 percent report seeing and believing it. However, these numbers are statistically identical for our placebo headlines, suggesting that the raw responses could overstate true exposure by an order of magnitude.
Using the difference between actual and placebo stories as a measure of true recall, we estimate that 1.2 percent of people recall seeing the average story. Projecting these per-article exposure rates to the universe of fake news in our database under the assumption that exposure is proportional to Facebook shares, our point estimate suggests that the average voting-age American saw and re- membered about 0.92 pro-Trump fake stories and 0.23 pro-Clinton fake stories in the run-up to the election. Our confidence intervals rule out that the average voting-age American saw, remembered, and believed more than 0.71 pro-Trump fake stories and 0.18 pro-Clinton fake stories.
Comparing the magnitudes of the different coefficients in column 1 suggests that fake news exposure might be ideologically segregated: Republicans are more likely than independents, and independents in turn more likely than Democrats, to report seeing pro-Trump headlines, although for pro-Clinton headlines, the differences are less stark. In column 2, however, we see very similar results for Placebo headlines, and column 3 shows that five of the six coefficients do not differ for Fake relative to Placebo. In the context of our model, we interpret these results similarly to the results of table 4: differences across people in recalled exposure seem to be primarily driven by differences in perceived plausibility, and less by differences in true exposure. There may still be differences in true exposure, but this would need to be documented with web browsing data instead of our survey recall measures.
Are there indeed differences in believing rates that might generate these differences in false recall? Columns 4 and 5 indeed show dramatic differences: Republicans are four to eight times as likely as Democrats to report believing pro-Trump headlines, and Democrats are 50 to 100 percent more likely than Republicans to believe pro-Clinton headlines. Appendix table 1 repeats these regressions in the subsample of social media users with ideologically segregated networks. The relative ordering of coefficients is similar, but the magnitudes are considerably larger: social media users with segregated networks are, as we saw above, more likely to report seeing and believing fake news, and relatively more likely to report seeing and believing fake news that favors their candidates.
Donn Denman’s “Make a Mess, Clean it Up!” isn’t quite as good a story as I remembered. But it has stuck with me since I first encountered it in Folklore.org, Andy Hertzfeld’s oral history of the development of the original Macintosh. I have lightly edited it, in keeping with Folklore.org’s Creative Commons BY-NC license).
I have just posted a short essay, Scholars, Teachers, and Servants, which sets out my views on the essence of a professor’s job. The heart of an academic’s duty is research in the pursuit of truth; scholarship, teaching, and service are three different but mutually supporting uses of the fruits of research. I also say a bit about intellectual corruption, academic freedom, tenure, free speech, and some of the special characteristics of legal academia.
I’ve been posting a daily series of step for my Facebook friends to secure their digital lives before Trump takes office. The idea is that each step is specific, concrete, actionable, and small: something you really can do in a day. By the time Trump is sworn in, you’ll be reasonably secure against a lot of threats, public and private. I’ll update this post with links as I add new entries.
In my obituary for Sheri S. Tepper, I said that her novel Raising the Stones “contains the single best portrait of a utopia – feminist or otherwise – I have ever seen.” I’d like to say a bit more, and why that book has been a source of comfort and inspiration for me for years.
I know now why Donald Trump won the election: because Sheri S. Tepper was no longer alive to hold him at bay. Tepper’s novels are sometimes described as “ecofeminist sci-fi,” but that barely begins to describe the spirit that pulses and crackles in her work: as wide and nourishing as the sea, and as capable of drowning you in an instant. Donald J. Trump – a misogynistic con man with an impossibly large ego, a need for outside vengeance over every slight, and a sadistic brand of dominance politics – is a Tepper villain from her literary version of Central Casting, and if life were one of her novels, he would have been grabbed and strangled by a cyborg pussy willow or crushed to death when the earth itself shook Trump Tower to pieces.
I have been thinking about presidential elections and presidential succession, and about the adage that the United States has had the longest uninterrupted history of peaceful transitions of power in the world. What does it take to lay down a track record like that? A lot of choices by a lot of people.
My casebook says things like, “This case involves allegations of online harassment and threats of violence.“ This raises two questions. If a case needs a warning, why include it at all? And if a case is is worth including, why warn students about it? To some people, the first question is more troubling; to others, the second.
The Sixth (sixth! sixth!) Edition of my casebook Internet Law: Cases and Problems is now available. I apologize for the lateness of this update; it was a busy summer.
In October, I participated in a delightful conference at Columbia’s Kernochan Center on “Copyright Outside the Box.” I was on a panel dedicated to computer-generated works, along with my friends Bruce Boyden and Annemarie Bridy. Our respective symposium essays have just been published in the Columbia Journal of Law and the Arts, along with a slew of other fun papers.
In my opinion, any teenager enthralled by computers, fascinated by the ins and outs of computer security, and attracted by the lure of specialized forms of knowledge and power, would do well to forget all about hacking and set his (or her) sights on becoming a fed. Feds can trump hackers at almost every single thing hackers do, including gathering intelligence, undercover disguise, trashing, phone-tapping, building dossiers, networking, and infiltrating computer systems–criminal computer systems. Secret Service agents know more about phreaking, coding, and carding than most phreaks can find out in years, and when it comes to viruses, break-ins, software bombs, and Trojan horses, feds have direct access to red-hot confidential information that is only vauge rumor in the underground.
Reposted without irony from Twitter, and lightly edited.
You would have to have been living under a rock with bad WiFi not to know about Hamilton by now. And if you know about Hamilton, you almost certainly also know about its casting: with only two exceptions, all the roles are played by people of color. This decision has been the subject of some controversy, but I think most of the discussion misses a central fact about the meaning of race in Hamilton’s casting: it has no single meaning. By my count, it does at least seven different kinds of work on stage and off.
The following is a very tentative analysis. If I have misread or misapplied the GPL, please let me know in the comments!
2016 has not been a good year for the obituary page. Already we have lost Umberto Eco, Elizabeth Eisenstein, and Bob Elliott, each of whose works I encountered at just the right time in my life. I hope to write about Eisenstein and Elliott in due course, but I would like to remember Eco with a quotation from the end of The Island of the Day Before:
I have posted a draft of my latest essay, Consenting to Computer Use. This is a “short” 8,000-word essay on how we should think about unauthorized access under the Computer Fraud and Abuse Act. This is a topic I’ve blogged a bit about, mostly to express how difficult some of the issues are. I was invited to be part of a symposium, “Hacking into the Computer Fraud and Abuse Act: The CFAA at 30,” hosted by the George Washington Law Review (where the final version of the essay will appear later this year).
Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.
I have a new essay draft: There’s No Such Thing as a Computer-Generated Work – And It’s a Good Thing, Too. I wrote it for the Columbia Kernochan Center’s fall symposium on Copyright Outside the Box: a day of conversations about various challenges to copyright’s ideas about authorship.
Two years ago, I posted about a troubling class-action settlement in Berry v. LexisNexis Risk & Information Analytics Group. The suit alleged that Lexis violated the Fair Credit Reporting Act with a product called Accurint; the settlement worried me because it gave Lexis prospective immunity from the FCRA for a new and different product called Contact and Locate. As I explained in Future Conduct and the Limits of Class-Action Settlements, such forward-looking future-conduct releases are dangerous six ways from Sunday. Just like in the (fortunately rejected) Google Books settlement, they give defendants official court approval to do things that can blatantly violate class members’ rights in new and unprecedented ways.
R. v. Hands,  16 Cox C.C. 188 (Crown Cas. Res.):
I have been thinking recently about Europe’s ongoing experiment so-called “Right to be Forgotten” (or, as Miquel Peguera calls it, the “Right to be Delisted”). Under the European Court of Justice’s opinion in the Google Spain case, search engines must remove links to information that is “inadequate, irrelevant, or no longer relevant” to a search for a person’s name. Reaction to the decision on this side of the Atlantic has generally not been kind. Here are three common types of arguments against it:
Robert Burt, emeritus professor of law at Yale Law School, died Tuesday at the age of 76. I took his Family Law course in the fall of 2003. He was a thoughtful and kind teacher, and his course expanded my sense of families and my sense of law. I vividly remember the day we discussed aging and family support for the elderly. He told us, with a bittersweet smile on his face, that life is a tragedy. It was a message whose full truth we come to only with time and its ravages; in delivering it, he reached across the years between us and for a moment held us close.
I’m happy to announce that the Fifth Edition of my casebook, Internet Law: Cases and Problems, is now available. This was a cleanup and consolidation year; the majority of the edits consisted of revising and tightening up sections that had become unwieldy with time. There are between thirteen and fifteen new cases, depending on how you count; at least nine older cases have left to make room. The second-most obvious changes are in the heavily rewritten sections on harmful speech and network neutrality, both of which seem to fall out of date every time I blink. There are new notes on spam, ICANN, the DMCA Section 1201 exemption process, and more. And as always, there are hundreds of smaller tweaks and refinements.
The Federal Trade Commission has sued and settled with Erik Chevalier over his failed Kickstarter project, The Doom That Came to Atlantic City. He raised $122,874 from 1,246 backers for this Cthulhu-themed board game, promising them rewards like copies of the game and pewter figurines. But, as detailed in the FTC’s complaint, he spent the money on his rent and buying licenses for a different gaming project. Chevalier agreed to a $111,793.71 judgment, which is suspended because he unsurprisingly doesn’t have the money to pay it.
I have a short piece at Slate, Do You Consent?, on ethical oversight of Internet companies’ experiments on users. My focus is on the two-cultures problem: academics and technologists have very different values, and experiments like Facebook’s blend them in ways that can undercut academic ethics. Here’s an excerpt:
I’ve just posted my most recent essay draft, Copyright for Literate Robots. It started out as a talk on library copying, but as I dug into the research, it turned into something … else. I realized that a simple bright-line rule explains a lot of recent fair use caselaw: copying doesn’t count when it’s done by robots. Any uses that will never be seen by human eyes are categorically non-infringing. The cases don’t say this is the rule, but it is.
I have just received the final PDF version of my symposium essay in the pace Law Review on the impossibility of online anarchy, Anarchy, Status Updates, and Utopia. If you have already seen the version I posted in 2013’s Speed Scholarship Week, there is no need to read this one; the substance is mostly the same. But if the last time you saw this piece was at the 2011 Governance of Social Media Workshop at Georgetown, or at the 2007 TIP Group conference at the University of Toronto, please check out the new one. Four and eight years, respectively, have helped me really hone the argument. Here is the introduction:
I have a new Jotwell review, An Offer You Can’t Understand, discussing Lauren Willis’s illuminating new article, Performance-Based Consumer Law. My introduction:
I have a new paper out in the Colorado Technology Law Journal, The Law and Ethics of Experiments on Social Media Users. It’s the scholarly version of my work from last summer on the Facebook and OkCupid experiments. The basic argument should be familiar: running scientific experiments on users without their consent or institutional oversight raises serious ethical and legal concerns. But, thanks to the CTLJ and Paul Ohm’s December conference at the University of Colorado, When Companies Study Their Customers, I have taken the opportunity to revise and extend my remarks. It’s long for a symposium essay – 23,000 words – and I hope that it can also serve as a reference on last summer’s controversy.
A prudent creditor … cannot, and will not try to, protect himself against all the risks to which he subjected himself by making the loan; he accepts as invetable what may be called the business risks inherent in the situation – the risk that the barber shop will go broke as young men suddently decide to let their hair grow long, like their ancestors, or the risk that the bottom will fall out of the real estate market as people conclude that it is more pleasant to live in the sea, like their ancestors.
This weekend’s New York Times Magazine story about the failure of the ZPM espresso maker Kickstarter reminds me to say: Kickstarter is a tool for managing risk.
Steve Sachs has just uploaded a new paper, The Forum-Selection Defense, to SSRN. Others can weigh in on his argument that “forum selection is a type of waiver, and a defense.” (It strikes me as right, but I know that I’m out of my depth in this corner of civil procedure.) I’d like to talk instead about something else on display in Steve’s work: superlative typography. His draft is a visual guide to best practices in law-review-article design.
With the rise of professional police and the growing liaison between police and prosecution, prosecutions for official misconduct will undoubtedly continue to be rare. Nevertheless, it is well to remember that the law of homicide provides the only drastic sanction against policemen too quick on the trigger, and our police standards may well suffer from the reluctance. and ineffectiveness with which the sanction is invoked.
While teaching Law and Literature this year, I attached very gentle, low key “trigger warnings” to a number of items on the syllabus, namely those dealing with extreme violence, rape, and some other very unpleasant situations. I am glad I did this. I told students that if they preferred to do a substitute assignment, I could arrange that. Is that so unreasonable? There were no takers, but I don’t see it did anyone harm or limited free speech in the classroom (or outside of it) to make this offer. If anything, it may have eased speech a slight amount by noting it is OK to feel uncomfortable with some topics, or at least serving up that possibility into the realm of common knowledge. That struck me as better and wiser than simply pretending we were studying the successful operation of the Coase theorem the whole time.
Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legal academy. He frequently collaborates with colleagues, offers extensive comments at conferences, and works tirelessly to build the community. The rest of us aspire to do one fifth as much one fifth as generously.
I have an op-ed up today on Wired discussing the European Commission’s decision to move forward with antitrust action against Google: In Its Antitrust Debacle, Was Google’s Real Victim You?. My answer: maybe.
Law review publishing is weird. Any system that runs on massive simultaneous submission is bound to be. Everyone who’s published a law review article knows the wistful feeling that comes after you accept an offer of publication and now need to tell the other journals that your article is taken. There is always that sense of what might have been, the temptation to hold off sending the email just a few more minutes. Prestigious Law Journal never got back to me. What if?
I’m happy to announce that my new article on online community governance, The Virtues of Moderation, has been published in the Yale Journal of Law and Technology. The core of the paper is a new taxonomy of moderation techniques. Moderators can exclude unhelpful members from a community, price access, organize content, or influence community norms. Each of these different “verbs” of moderation can be implemented in different ways. For example, moderators could act ex ante to prevent bad behavior, or ex post to clean it up after the fact; moderation could be carried out manually by humans or automatically by computers; and so on. And characteristics of the community, such as its size and whether it has robust identities, influence the success or failure of the various techniques. I think (although I’m obviously biased here) that the taxonomy is detailed enough to provide useful insights while also being general enough to work in numerous settings.
Switching away from Times New Roman is like showering, shaving, and putting on a clean shirt. You instantly look better, and you feel better too. With fonts as with shirts, picking a look that works for you can be an intimidating choice, but it’s worth the effort. Here are a few of my thoughts on finding a good one. I’m going to focus on serif typefaces suitable for extended legal academic writing, since that’s the main design problem I’ve thought about, although that won’t stop me from mentioning a few other typefaces I’ve found useful. I’ll proceed in rough order of difficulty: from fonts you already have, to fonts you can easily get, to fonts you need to research before buying.
I left the software industry more than a decade ago. At the time, I would have said I left because I was doing inconsequential work on inconsequential projects, because I wanted to write more sentences and fewer lines of code, and because I could better contribute to technology policy from outside the industry than from within. But in hindsight I’ve realized there was something else. Recent stories about how the industry is an unwelcoming place for women have resonated with me, because they pinpoint things I also found unsatisfying about it.
SODOR – Confusion and delay reigned on the North Western Railway today after its Controller, Sir Bertram Topham Hatt, was crushed beneath a tank engine while reviewing switchyard operations late on Saturday. Authorities were not immediately able to determine whether Sir Hatt’s death was simply the latest misfortune for this notoriously accident-prone railway system or should be classed as a suicide. The Railway has been in dire financial straits following a series of serious accidents over the last few years, including numerous collisions, fires, derailments, and, in one spectacularly unfortunate incident, the destruction of a chocolate factory by a runaway train. Family friend Alicia Botti said that Sir Hatt had been despondent since the Railway’s insurers cancelled its property and liability coverage in October, and that he despaired of ever being really useful to society again.
Huxley, the eminent Victorian biologist, delighted in saying that whatever merits his English prose style might have were due in large part to the fact that he had escaped the training in Latin and Greek which at that time formed the chief basis of English education. It may well be that whatever merits the contents of the present work may have are due largely to the fact that when the author went to law school, courses in the Conflict of Laws were, if offered, usually not taken by most law students. It thus came about that when he was asked (in 1919) to teach the subject to law students, he had not been educated in the dogma then current, based, as it was, largely on the theories of Story and Dicey. He thus approached the subject with a more open mind than might otherwise have been the case. In addition, what little he had learned of the subject led him to refrain from reading the treatises until he had studied the cases in Beale’s Cases on the Conflict of Laws, and had formed tentative conclusions of his own as to what the problems were and how they might be solved. When, after this, he consulted the treatises and law review articles, he found that he was obviously a heretic: it seemed to him that nearly all writers were obsessed with indefensible theories which neither accounted for what the courts were doing nor led to useful decisions if logically applied.
I have criticized law reviews for their poor typefaces and for their poor small caps. But all is not wrong in law review-ville, because law reviews as a rule get something else right: page dimensions. 8.5″ × 11″ is a difficult size for a typeset single-column printed page, and law reviews mostly avoid its traps. The problem arises from the interaction of three constraints:
I’m working on an article about the Facebook and OkCupid experiments. This is an outtake: some thoughts, which don’t quite fit in the article itself, about why the stories went viral.
The second-most grievous sin of modern law-review typography is its casual disdain for proper small caps. Real small caps are created by a font designer to blend harmoniously with the rest of the letters. This is what they look like:1
My essay on higher education and online learning, The Merchants of MOOCs, has just been published in the Seton Hall Law Review’s symposium issue from the Legal Education Looking Forward conference in October 2013. I wrote it at the peak of MOOC hype, as an antidote to that hype. Even just a year later, it’s remarkable how much the bloom is off the MOOC rose. This isn’t to say that online learning isn’t important or potentially transformative, just that the form of the Destructor isn’t likely to be the MOOC. Here’s the abstract:
Until recently, many critiques of social media have come from the perspective of written culture, but the better framework is oral culture.
— an xiao mina (@anxiaostudio) January 3, 2015
The typical law-review article of 2015 looks a lot like the typical law-review article of 1965 or 1915: same arrangement of text and footnotes on the same size page, same general citation style, same this-that-and-the-other. But If there are differences, the article from fifty or a hundred years ago almost certainly looks better. It might feel a little musty, but it also feels inviting. You can imagine turning the pages with interest as you sit by the fireplace in a comfortable chair with a warm beverage. Its modern counterpart is bland and boring, dead on the page. Older law reviews were distinctive, too: you could tell Minnesota from Michigan from Marquette at a glance. Modern law reviews almost all look alike.
Memory runs in reverse on the Internet: it improves over time. Fragments of ideas that once were irretrievably shattered jump up back on the shelf and reassemble themselves, intact and entire. What has gone, instead, is the numinous sentiment of forgetting, the possibility of a chord that is more beautiful because it is Lost.
2014 was a long year. If you are the sort of person who reads this blog, I doubt I need to say why. Instead, allow me to offer a brief personal take on the year everything went wrong and everyone was mad all the time.