ISHTIP at Penn, part 6

Posted on July 23, 2015 by rtushnet
Session 4 | Traci Zimmerman (James Madison University),
Moderator
 
Confederate Copyright: The Role of Nationalism in Designing
a Copyright Regime
Shane Valenzi (Carmen D. Caruso Law Firm, Chicago)
Commentator | Shyam Balganesh (University of Pennsylvania)
 
In addition to examining the story of how the Confederates
made copyright law, draws normative lessons for law and policy. Using history
not just for its own sake. 
 
Rich paper (I very much agree), so broad summary only: 1790,
1831 federal copyright acts were fiercely protectionist, not extending protection
to foreign authors.  This was not
unnoticed—deeply contested, conscious choice, multiple failed reform efforts
over the years, esp. post-1830.  Senator
Henry Clay introduced multiple amendments in this area.  Tried to convince public that extension would
benefit US authors.  British
authors/supporters offered kitchen sink arguments: lack of protection allows
American booksellers to free ride on foreign authors’ efforts, an unjust
enrichment rationale; not protecting foreign authors results in mutilation and
alteration of works, a moral rights rationale; harm to US authors b/c
foreign-authored works were cheaper, an economic argument about indirect harm;
American public, not authors, was harmed b/c of the uncertainty of various
editions they received, a consumer protection argument (mirror image of moral
rights argument).  Doesn’t tell us what
they thought of purposes of copyright law; Britain didn’t have moral rights at
the time.
 
None of these arguments proved persuasive.  The only thing the Senate cared about was
protectionism/nationalism.  Primary
difference b/t US and Confederate copyright acts was extension of protection to
foreign authors—this was an issue of heightened salience at the time.
 
Civil War breaks out; 1861: enact an independent copyright
act as a piece of federal legislation. 
Why?  Driven almost entirely by
desire to make England an ally of the South. 
All the publishers the US sought to protect were located in the
North.  A few years later, extended the
Act retroactively to pre-1861 works.
 
Effect of Act was empirically minor: only 122 titles
registered in 4 years.  All,
intriguingly, focused on the preservation of Southern culture/distinctiveness
of Southern way of life.  Great Britain
never became an ally.
 
Qs: what other kinds of unified laws did the Confederacy pass?  How did they pick their subject areas? Why is
legislation useful as a signal? Are there additional sources sending a signal
of commitment to Britain?  If many laws
were signalling, that argument gets stronger. Also, why enactment instead of
enforcement as a credible signal?
 
Lessons: this part is provocative/controversial.  New intermediate variable: nationalism can be
a cloak for access, progress, and other rhetorical devices. Confederacy didn’t
seem interested in incentivizing access, furthering moral rights, spurring
creativity; moral rights rely on human rights framework—he says it’s hard to
reconcile w/slavery, but that’s not so much a problem b/c (a) slaveowners didn’t
care much about hypocrisy, and (b) moral rights are fundamentally based on
citizenship, so if you define that to exclude slaves you don’t have a problem.
 
Nationalist interests as step zero in the © debate: the
current state of IP output in the nation at issue, plus diplomatic interests.
Balganesh disagrees completely—collapses descriptive w/normative. This is
descriptively true: nationalism did the work of eliding the real balancing
exercise. But to claim that normatively as part of ideal structure is
unconvincing and problematic. What does national output mean? 
 
Internationally: US in mid-19th c,
w/underdeveloped authorship and sophisticated distribution systems, is not much
different than today’s BRICs, breeding ground for piracy. Lacked authorial
output to match capacity. Thinks that’s untrue. BRICs have significant amount
of authorial output; the question is what portion they seek to put in the
genuine/mainstream marketplace.  India
clearly has a lot of debate about optimal structure of IP policy. It’s not b/c
India is a pirate nation or a net importer. 
[And here an enormous bug distracted me, sorry.]
 
RT suggests possible further reading: Stephen M. Best, The
Fugitive’s Properties: Law and the Poetics of Possession (about copying and
race in the 19th century).
 
Valenzi: Haven’t convinced myself about the normative
conclusions.  When he discovered that
there was a Confederate Copyright
Act, his first question was why.  That has proven a difficult question to
answer, but good enough for law review if not history journal.  Legal scholarship often uses history
instrumentally.  No transcripts of floor
debates before legislation passed, requiring conjecture for rationale for most
Confederate legislation.
 
The legislature was quite active through the Confederacy—far
more than they probably wanted/intended to be. 
Not much passed in pursuit of creating int’l alliances, though.
President Davis was urged to pursue an alliance. King Cotton strategy failed,
as did their awful diplomats.
 
Research on patents was cursory so there may be more.  There were patents registered under the
Confederate © Act.  As far as
enforcement, there was almost none in district courts—only 1 case ever
litigated.  A book of military tactics
published in North, thus not eligible for protection in South, but Jefferson
Davis asked the author—a Southern supporter—to republish in South; protection
for earlier work was denied, and the result was amendment of law to make
retroactive and law protecting that specific book.
 
Kara Swanson: there is a patent story here too.  Publishers could publish newspapers,
pamphlets and books. Is this law designed to bring publishing to the
Confederacy/domestic purpose as well?
 
A: Haven’t looked at newspapers but this is a WIP.  There was some publishing industry, esp. in
Atlanta, and they did sometimes pay British publishers even before they were
required to do so. There was concern in the US that if © were granted to
British authors it would concentrate rights all in one NY publisher.
 
The first proposal for Confederate © Act was preceded by
resolution that the Confederate Congress needed to respond to Emancipation
Proclamation, and succeeded by compensation to a general whose horse died in
battle. That’s quite a range. 
 
Jaszi: think about this story as of competing nationalisms. 
Cultural and economic nationalisms are often in conflict. What do we
know about “piracy” in the South? To what extent were reproductions coming out
of Southern states, not just PA and NY? 
IP clause of the Confederate Constitution is identical to US
Constitution.  Southern diplomacy was not
quite as disastrous as you characterize it as being—high water mark in end of
1862 when Gladstone came out as a big fan and said they were bound to win the
war. 
 
RT: Descriptive, normative, pragmatic: third alternative
(what should we predict, what tools are likely to work and likely to fail to
lever changes).  Very clear that
international relations arguments are key components of IP policy right
now.  In fact arguably why they moved
into TPP and other trade agreements is that nationalist interests proved too
important to other nations; only when forced into some other deal would they
agree to serve US (or at least big corporate) interests in IP.  But it didn’t work to get British support for
the Confederates—analogies in 301 naughty lists; nothing China does is ever
enough—Peter Yu’s work?
 
Sharing in Spirit: Kopimism and the Digital Eucharist
Aram Sinnreich (American University)
Commentator | Kristofer Erickson (University of Glasgow)
 
Reminded him of the Hacker Ethic: Weber’s concept of
Protestant work ethic to try to understand hacker religiosity pervading the
business world.  This paper explores a
different religious group: Kopimists. 
Protagonists: Isak Gerson, founder. 
CTRL-C and CTRL-V are considered sacred symbols.  Kopimi symbol functions like a CC license.
Contrasts copyright regime w/today’s globalized digital culture; what does a
philosophy for/from the digital age tell us about the relation b/t philosophy
and material social conditions more generally?
 

Is it mere pranksterism, a piece of absurdist political
theater taken to its logical extremes? Originally a joke. Then someone got it
registered as an official religion. Is it a hoax or tactic to tweak media appetite
for spectacle or bypass © law?  And/or
can we understand it as an authentic belief system, w/ideological integrity and
consistency, ritualistic practices, and other hallmarks of religion?
 
Pranksterism: like/heir to Situationist detournement, which
already had some copyright-oppositional practices in it? Aims to expose © as
legally enforced ideological instrument by refuting it through a different
legally sanctioned ideology. Situationists also wanted to draw attn to presence
of ideology in the mass media image. 
Bricolage: already directly confronting © through cutting and
pasting. 

Why choose to perform an entire religion? 
Target is not absurdity of organized religion, but absurdity of ©, its
religious other.  Jedi-ism,
Pastafarianism: other invented religions—a suitable tactic to be adopted to
these aims?
 
Hoax: seeking legal protections to pirate w/impunity?  Again, Foucauldian tactic—maneuvering on a
network of relations of social power. 
Like medical marijuana advocacy in community of recreational users—by appropriating
rhetoric of science and economics, activists advocate for
decriminalization.  Normative political
claims about ©: to keep source code hidden is comparable to slavery; IP laws
are egregious violations of intellectual sovereignty and freedom.
 
Sacrament: Sacred valence of copying; similarity to monastic
Christian principles/devotional practices—sharing of private information is
detrimental, but sharing of public information is a sacrament. People decide
for themselves: distribution of responsibility, antireligious sentiment:
skepticism of moral authority is a core value. Suggests that monastic
Christianity, copyright, and Kopimism can all be understood as governing
information production during various periods related to technological
development and information scarcity. 
Monastic Christianity: sacred duty to spread the Word, which both
proselytizes and allows humans to act in God’s image by creating the world
through language.  Sharing the same bread
= all part of the same world/system—same with sharing information.
 
Conclusion: though Sweden is one of the most
agnostic/atheist nations in the world, Kopimism has attracted 1000s of active
members (also chapters in dozens of countries). Religious rituals provide a
benefit to people. Set of moral and ethical precepts and practices to navigage
complex questions of power and identity in postindustrial society.
 
Questions: practical/operational Qs—how much does Kopimi symbol
function as a license, like CC? How much is required for official recognition
as religion?  Adolescent fantasy of Liberland,
libertarian country at border of Croatia: declared itself a nation, but still
dependent on roads, electricity, internet from neighboring countries.  Can we draw links to other libertarian
politics, w/contradictory relationshps to state power/infrastructure?  Why chose religion rather than movement or
political party as self-description? What are the costs and benefits of
communicating politically in this way?
 
Sinnreich: relations to CC: not much.  CC is innovative, but this is not that.  Kopimism took advantage of new opening for
new religions—first three times they applied they were rejected. Needed to
demonstrate large base of members, religious texts, religious rituals: they
backfilled/there were no texts or rituals until the state asked. Which perhaps
supports the detournement/prank characterization. And maybe it did start that
way. They acknowledge the inherent absurdity, but indicated deepening moral
investment in belief system that seemed to surprise them more than anybody
else.
 
Relation to libertarian politics/state power and
infrastructure: great subject.  Unlike
Sealand or Liberland, it doesn’t require infrastructure from elsewhere. You
might say if Hollywood goes out of business they won’t have those films to
share, but there’s no inherent contradiction in desire to stake out
independence from copyright/postindustrial capitalism. The religion doesn’t
require the existence of those laws and economies to function. That’s why it’s
ultimately not a hoax or tactic.
 
That’s also why it’s a religion and not a political
movement. Born of moral impulse that exists in social theory and legal
argument: crossover w/Marxism, esp. libertarian Marxism: something inherently
rotten/dehumanizing in postindustrial capitalism.  Datalove: a fundamental concept for Kopimists—through
sharing information, you achieve empathy/Martin Buber-esque I-Thou relation
that has been severed through industrial models of dissemination/alienation.
Without living in a bunker, how do you reconnect w/other human beings when you’re
structurally excluded from knowing one another? Datalove through active
information sharing is an answer. Kopimism was an ethic before the religion
existed; Kopimism’s ethics will persist after the religion fades—search for
dignity in the networked society.
 
Q: what is the difference b/t ethical system and
religion?  Is calling it a religion just
another way to mediate culture through law? 
Just using law in a different way.
 
A: I’m not under the misapprehension that I’m qualified to
decide what counts as a religious order. 
I’ve done a lot of survey work internationally using qualitative
responses to examine ethical frameworks people employ to decide whether a reuse
of information is valid or not. We’ve identified 12 different ethical
frameworks: making money; homage or bastardization; etc.  By cross tabulating those frameworks w/more
empirical demographic information, we’ve discovered that nationality, race,
age, gender, income levels predict different ways of thinking, drawing on
predigital ethics imported into digital world. I think about very immediate
frameworks about judging permissible behavior. 
Those are the kinds of questions ethics are good at addressing. As I
understand it, what distinguishes a moral/religious system from an ethical one
is the broader framework that serves as a model for how the universe is
organized and what our place in it is and should be; ethics emerge from that
larger model. And I see that larger model in Kopimism.
 
The modern individual is a social conceit whose time has
basically expired. If all of our moral systems are rooted in the conception of the
modern individual, and our legal and economic systems are rooted in a
conception of a transactive relationship based on industrial capitalism, then
as those foundational precepts evaporate they have to be replaced by something
new. What is that? Kopimism is interesting b/c it’s not merely ethical but has
an integrated comprehensive view of the world that supersedes the centuries now
ending and offers opportunity to give us continuity w/human history even as we
let go of deeply held conceits underlying this era.
 
Q: are they seeking protection from the state apparatus?
 
A: no.  There is zero
chance anyone will get shielded from © through a religious exemption. This isn’t
Rastafarians asking to be able to smoke pot. 
More a statement of purpose. The act of registering Kopimism was more a
call to arms than tactical solution to a legal problem.
 
Q: Europe has tradition of state-funded religious
communities.  Creating a new one is kind
of a sport.  Check the relationship
between the state’s metaphysics and your own community.  Maybe they’ll get funding one day, or at least
infrastructure. 
 
A: Pastafarianism is done to make the point that religion is
bull, and the state has no business sanctioning religion as an institution or
religious exceptions as a category. I think that’s a great political exercise.
That’s not solely what Kopimism is. Kopimism could have done that much more
efficiently if that were its goal. Its moral resonances wouldn’t be the same—not
an integral quality from text to text. There is surely an intentional element
of situationism/critique of state’s role in Kopimism but it evolved into something
more than that, in part b/c of need to codify moral impulse of repulsion at
dehumanizing effects of postindustrial capitalism applied to information
exchange.  © maximalism’s approach to
communication and info sharing provokes a revulsion that finds a voice in
Kopimism that doesn’t appear in Jedi-ism or Pastafarianism.
 
One blogger on Patheos
blog had a very negative reaction to Kopism—consulted religious experts,
including a Patheos blogger/convert to Catholicism.  He felt very differently than the other
Patheos writer.  Was very interested in
resonance b/t logos theology and Kopimism. 
Diversity of viewpoint is justified. 
 
Madison: paper is framed as challenge to this set of
practices. IP law is default/norm and this is the exception in need of
exploration/explanation. You might reverse that set of questions: why isn’t
this the norm as an ethical system?  IP
as faith-based social practices—Mark Lemley’s
recent paper.
 
A: that is the Kopimist approach to ©. I didn’t frame the
article that way b/c of my audience, which will be of skeptics who at least
reflexively support ©. But that’s exactly the point they want to make.
 
The people I talked to who were ordinary adherents thought
about an ethics of sharing—revenge porn, nuclear launch codes—they weren’t
absolutists. Sharing was about the social effects of regimes of sharing.
Seeking equalization in power relations through disrupting traditional regimes
of information sharing. Wikileaks, Hollywood = good sharing through evening
power relations. Sharing nude photos would be bad sharing—takes more power away
from powerless.
 
Q: this paper could be a chapter in a theology of Kopimism/a
sacred text.  Kopimism’s founder said he
started it b/c he thought it would lead to some interesting conversations—a lot
of contingency in founding. A small and diverse group.  Premature to reify the phenomenon.  Ability to get attention through grand
gesture matters in © activism. 
 
A: By calling something a religion, you make it a big deal
and that might just mean a big deal for attracting attention. But I thought he
also considered it a big deal in terms of the human condition; restricting to
legal argument would be inappropriate to the gravity of the crisis.  But that’s my read of it. I wouldn’t use the
mantle of religion b/c I lack the faith required. But the philosophy resonates
w/me.

from Blogger http://ift.tt/1JBzwsi

Posted in Uncategorized | Tagged , , | Leave a comment

ISHTIP at Penn, part 6

Posted on July 23, 2015 by rtushnet
Session 4 | Traci Zimmerman (James Madison University), Moderator
 
Confederate Copyright: The Role of Nationalism in Designing a Copyright Regime
Shane Valenzi (Carmen D. Caruso Law Firm, Chicago)
Commentator | Shyam Balganesh (University of Pennsylvania)
 
In addition to examining the story of how the Confederates made copyright law, draws normative lessons for law and policy. Using history not just for its own sake. 
 
Rich paper (I very much agree), so broad summary only: 1790, 1831 federal copyright acts were fiercely protectionist, not extending protection to foreign authors.  This was not unnoticed—deeply contested, conscious choice, multiple failed reform efforts over the years, esp. post-1830.  Senator Henry Clay introduced multiple amendments in this area.  Tried to convince public that extension would benefit US authors.  British authors/supporters offered kitchen sink arguments: lack of protection allows American booksellers to free ride on foreign authors’ efforts, an unjust enrichment rationale; not protecting foreign authors results in mutilation and alteration of works, a moral rights rationale; harm to US authors b/c foreign-authored works were cheaper, an economic argument about indirect harm; American public, not authors, was harmed b/c of the uncertainty of various editions they received, a consumer protection argument (mirror image of moral rights argument).  Doesn’t tell us what they thought of purposes of copyright law; Britain didn’t have moral rights at the time.
 
None of these arguments proved persuasive.  The only thing the Senate cared about was protectionism/nationalism.  Primary difference b/t US and Confederate copyright acts was extension of protection to foreign authors—this was an issue of heightened salience at the time.
 
Civil War breaks out; 1861: enact an independent copyright act as a piece of federal legislation.  Why?  Driven almost entirely by desire to make England an ally of the South.  All the publishers the US sought to protect were located in the North.  A few years later, extended the Act retroactively to pre-1861 works.
 
Effect of Act was empirically minor: only 122 titles registered in 4 years.  All, intriguingly, focused on the preservation of Southern culture/distinctiveness of Southern way of life.  Great Britain never became an ally.
 
Qs: what other kinds of unified laws did the Confederacy pass?  How did they pick their subject areas? Why is legislation useful as a signal? Are there additional sources sending a signal of commitment to Britain?  If many laws were signalling, that argument gets stronger. Also, why enactment instead of enforcement as a credible signal?
 
Lessons: this part is provocative/controversial.  New intermediate variable: nationalism can be a cloak for access, progress, and other rhetorical devices. Confederacy didn’t seem interested in incentivizing access, furthering moral rights, spurring creativity; moral rights rely on human rights framework—he says it’s hard to reconcile w/slavery, but that’s not so much a problem b/c (a) slaveowners didn’t care much about hypocrisy, and (b) moral rights are fundamentally based on citizenship, so if you define that to exclude slaves you don’t have a problem.
 
Nationalist interests as step zero in the © debate: the current state of IP output in the nation at issue, plus diplomatic interests. Balganesh disagrees completely—collapses descriptive w/normative. This is descriptively true: nationalism did the work of eliding the real balancing exercise. But to claim that normatively as part of ideal structure is unconvincing and problematic. What does national output mean? 
 
Internationally: US in mid-19th c, w/underdeveloped authorship and sophisticated distribution systems, is not much different than today’s BRICs, breeding ground for piracy. Lacked authorial output to match capacity. Thinks that’s untrue. BRICs have significant amount of authorial output; the question is what portion they seek to put in the genuine/mainstream marketplace.  India clearly has a lot of debate about optimal structure of IP policy. It’s not b/c India is a pirate nation or a net importer.  [And here an enormous bug distracted me, sorry.]
 
RT suggests possible further reading: Stephen M. Best, The Fugitive’s Properties: Law and the Poetics of Possession (about copying and race in the 19th century).
 
Valenzi: Haven’t convinced myself about the normative conclusions.  When he discovered that there was a Confederate Copyright Act, his first question was why.  That has proven a difficult question to answer, but good enough for law review if not history journal.  Legal scholarship often uses history instrumentally.  No transcripts of floor debates before legislation passed, requiring conjecture for rationale for most Confederate legislation.
 
The legislature was quite active through the Confederacy—far more than they probably wanted/intended to be.  Not much passed in pursuit of creating int’l alliances, though. President Davis was urged to pursue an alliance. King Cotton strategy failed, as did their awful diplomats.
 
Research on patents was cursory so there may be more.  There were patents registered under the Confederate © Act.  As far as enforcement, there was almost none in district courts—only 1 case ever litigated.  A book of military tactics published in North, thus not eligible for protection in South, but Jefferson Davis asked the author—a Southern supporter—to republish in South; protection for earlier work was denied, and the result was amendment of law to make retroactive and law protecting that specific book.
 
Kara Swanson: there is a patent story here too.  Publishers could publish newspapers, pamphlets and books. Is this law designed to bring publishing to the Confederacy/domestic purpose as well?
 
A: Haven’t looked at newspapers but this is a WIP.  There was some publishing industry, esp. in Atlanta, and they did sometimes pay British publishers even before they were required to do so. There was concern in the US that if © were granted to British authors it would concentrate rights all in one NY publisher.
 
The first proposal for Confederate © Act was preceded by resolution that the Confederate Congress needed to respond to Emancipation Proclamation, and succeeded by compensation to a general whose horse died in battle. That’s quite a range. 
 
Jaszi: think about this story as of competing nationalisms.  Cultural and economic nationalisms are often in conflict. What do we know about “piracy” in the South? To what extent were reproductions coming out of Southern states, not just PA and NY?  IP clause of the Confederate Constitution is identical to US Constitution.  Southern diplomacy was not quite as disastrous as you characterize it as being—high water mark in end of 1862 when Gladstone came out as a big fan and said they were bound to win the war. 
 
RT: Descriptive, normative, pragmatic: third alternative (what should we predict, what tools are likely to work and likely to fail to lever changes).  Very clear that international relations arguments are key components of IP policy right now.  In fact arguably why they moved into TPP and other trade agreements is that nationalist interests proved too important to other nations; only when forced into some other deal would they agree to serve US (or at least big corporate) interests in IP.  But it didn’t work to get British support for the Confederates—analogies in 301 naughty lists; nothing China does is ever enough—Peter Yu’s work?
 
Sharing in Spirit: Kopimism and the Digital Eucharist
Aram Sinnreich (American University)
Commentator | Kristofer Erickson (University of Glasgow)
 
Reminded him of the Hacker Ethic: Weber’s concept of Protestant work ethic to try to understand hacker religiosity pervading the business world.  This paper explores a different religious group: Kopimists.  Protagonists: Isak Gerson, founder.  CTRL-C and CTRL-V are considered sacred symbols.  Kopimi symbol functions like a CC license. Contrasts copyright regime w/today’s globalized digital culture; what does a philosophy for/from the digital age tell us about the relation b/t philosophy and material social conditions more generally?
 

Is it mere pranksterism, a piece of absurdist political theater taken to its logical extremes? Originally a joke. Then someone got it registered as an official religion. Is it a hoax or tactic to tweak media appetite for spectacle or bypass © law?  And/or can we understand it as an authentic belief system, w/ideological integrity and consistency, ritualistic practices, and other hallmarks of religion?
 
Pranksterism: like/heir to Situationist detournement, which already had some copyright-oppositional practices in it? Aims to expose © as legally enforced ideological instrument by refuting it through a different legally sanctioned ideology. Situationists also wanted to draw attn to presence of ideology in the mass media image.  Bricolage: already directly confronting © through cutting and pasting. 
Why choose to perform an entire religion?  Target is not absurdity of organized religion, but absurdity of ©, its religious other.  Jedi-ism, Pastafarianism: other invented religions—a suitable tactic to be adopted to these aims?
 
Hoax: seeking legal protections to pirate w/impunity?  Again, Foucauldian tactic—maneuvering on a network of relations of social power.  Like medical marijuana advocacy in community of recreational users—by appropriating rhetoric of science and economics, activists advocate for decriminalization.  Normative political claims about ©: to keep source code hidden is comparable to slavery; IP laws are egregious violations of intellectual sovereignty and freedom.
 
Sacrament: Sacred valence of copying; similarity to monastic Christian principles/devotional practices—sharing of private information is detrimental, but sharing of public information is a sacrament. People decide for themselves: distribution of responsibility, antireligious sentiment: skepticism of moral authority is a core value. Suggests that monastic Christianity, copyright, and Kopimism can all be understood as governing information production during various periods related to technological development and information scarcity.  Monastic Christianity: sacred duty to spread the Word, which both proselytizes and allows humans to act in God’s image by creating the world through language.  Sharing the same bread = all part of the same world/system—same with sharing information.
 
Conclusion: though Sweden is one of the most agnostic/atheist nations in the world, Kopimism has attracted 1000s of active members (also chapters in dozens of countries). Religious rituals provide a benefit to people. Set of moral and ethical precepts and practices to navigage complex questions of power and identity in postindustrial society.
 
Questions: practical/operational Qs—how much does Kopimi symbol function as a license, like CC? How much is required for official recognition as religion?  Adolescent fantasy of Liberland, libertarian country at border of Croatia: declared itself a nation, but still dependent on roads, electricity, internet from neighboring countries.  Can we draw links to other libertarian politics, w/contradictory relationshps to state power/infrastructure?  Why chose religion rather than movement or political party as self-description? What are the costs and benefits of communicating politically in this way?
 
Sinnreich: relations to CC: not much.  CC is innovative, but this is not that.  Kopimism took advantage of new opening for new religions—first three times they applied they were rejected. Needed to demonstrate large base of members, religious texts, religious rituals: they backfilled/there were no texts or rituals until the state asked. Which perhaps supports the detournement/prank characterization. And maybe it did start that way. They acknowledge the inherent absurdity, but indicated deepening moral investment in belief system that seemed to surprise them more than anybody else.
 
Relation to libertarian politics/state power and infrastructure: great subject.  Unlike Sealand or Liberland, it doesn’t require infrastructure from elsewhere. You might say if Hollywood goes out of business they won’t have those films to share, but there’s no inherent contradiction in desire to stake out independence from copyright/postindustrial capitalism. The religion doesn’t require the existence of those laws and economies to function. That’s why it’s ultimately not a hoax or tactic.
 
That’s also why it’s a religion and not a political movement. Born of moral impulse that exists in social theory and legal argument: crossover w/Marxism, esp. libertarian Marxism: something inherently rotten/dehumanizing in postindustrial capitalism.  Datalove: a fundamental concept for Kopimists—through sharing information, you achieve empathy/Martin Buber-esque I-Thou relation that has been severed through industrial models of dissemination/alienation. Without living in a bunker, how do you reconnect w/other human beings when you’re structurally excluded from knowing one another? Datalove through active information sharing is an answer. Kopimism was an ethic before the religion existed; Kopimism’s ethics will persist after the religion fades—search for dignity in the networked society.
 
Q: what is the difference b/t ethical system and religion?  Is calling it a religion just another way to mediate culture through law?  Just using law in a different way.
 
A: I’m not under the misapprehension that I’m qualified to decide what counts as a religious order.  I’ve done a lot of survey work internationally using qualitative responses to examine ethical frameworks people employ to decide whether a reuse of information is valid or not. We’ve identified 12 different ethical frameworks: making money; homage or bastardization; etc.  By cross tabulating those frameworks w/more empirical demographic information, we’ve discovered that nationality, race, age, gender, income levels predict different ways of thinking, drawing on predigital ethics imported into digital world. I think about very immediate frameworks about judging permissible behavior.  Those are the kinds of questions ethics are good at addressing. As I understand it, what distinguishes a moral/religious system from an ethical one is the broader framework that serves as a model for how the universe is organized and what our place in it is and should be; ethics emerge from that larger model. And I see that larger model in Kopimism.
 
The modern individual is a social conceit whose time has basically expired. If all of our moral systems are rooted in the conception of the modern individual, and our legal and economic systems are rooted in a conception of a transactive relationship based on industrial capitalism, then as those foundational precepts evaporate they have to be replaced by something new. What is that? Kopimism is interesting b/c it’s not merely ethical but has an integrated comprehensive view of the world that supersedes the centuries now ending and offers opportunity to give us continuity w/human history even as we let go of deeply held conceits underlying this era.
 
Q: are they seeking protection from the state apparatus?
 
A: no.  There is zero chance anyone will get shielded from © through a religious exemption. This isn’t Rastafarians asking to be able to smoke pot.  More a statement of purpose. The act of registering Kopimism was more a call to arms than tactical solution to a legal problem.
 
Q: Europe has tradition of state-funded religious communities.  Creating a new one is kind of a sport.  Check the relationship between the state’s metaphysics and your own community.  Maybe they’ll get funding one day, or at least infrastructure. 
 
A: Pastafarianism is done to make the point that religion is bull, and the state has no business sanctioning religion as an institution or religious exceptions as a category. I think that’s a great political exercise. That’s not solely what Kopimism is. Kopimism could have done that much more efficiently if that were its goal. Its moral resonances wouldn’t be the same—not an integral quality from text to text. There is surely an intentional element of situationism/critique of state’s role in Kopimism but it evolved into something more than that, in part b/c of need to codify moral impulse of repulsion at dehumanizing effects of postindustrial capitalism applied to information exchange.  © maximalism’s approach to communication and info sharing provokes a revulsion that finds a voice in Kopimism that doesn’t appear in Jedi-ism or Pastafarianism.
 
One blogger on Patheosblog had a very negative reaction to Kopism—consulted religious experts, including a Patheos blogger/convert to Catholicism.  He felt very differently than the other Patheos writer.  Was very interested in resonance b/t logos theology and Kopimism.  Diversity of viewpoint is justified. 
 
Madison: paper is framed as challenge to this set of practices. IP law is default/norm and this is the exception in need of exploration/explanation. You might reverse that set of questions: why isn’t this the norm as an ethical system?  IP as faith-based social practices—Mark Lemley’s recent paper.
 
A: that is the Kopimist approach to ©. I didn’t frame the article that way b/c of my audience, which will be of skeptics who at least reflexively support ©. But that’s exactly the point they want to make.
 
The people I talked to who were ordinary adherents thought about an ethics of sharing—revenge porn, nuclear launch codes—they weren’t absolutists. Sharing was about the social effects of regimes of sharing. Seeking equalization in power relations through disrupting traditional regimes of information sharing. Wikileaks, Hollywood = good sharing through evening power relations. Sharing nude photos would be bad sharing—takes more power away from powerless.
 
Q: this paper could be a chapter in a theology of Kopimism/a sacred text.  Kopimism’s founder said he started it b/c he thought it would lead to some interesting conversations—a lot of contingency in founding. A small and diverse group.  Premature to reify the phenomenon.  Ability to get attention through grand gesture matters in © activism. 
 
A: By calling something a religion, you make it a big deal and that might just mean a big deal for attracting attention. But I thought he also considered it a big deal in terms of the human condition; restricting to legal argument would be inappropriate to the gravity of the crisis.  But that’s my read of it. I wouldn’t use the mantle of religion b/c I lack the faith required. But the philosophy resonates w/me.
http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in copyright, http://schemas.google.com/blogger/2008/kind#post | Leave a comment

Washington Post explains how the DMCA will kill your family

Posted on July 23, 2015 by rtushnet

Buries the lede a bit, but it gets there:

The industry says the law protects consumers by preventing cars from being hacked. But the main impact, say Rad and other security researchers, is to stem the tide of revelations embarrassing to carmakers — not to improve vehicle cybersecurity. “If the stuff is out there,” she said, “the bad guys already know about it.”

When you outlaw security research, only bad guys will do it.

HT and title Zach Schrag

from Blogger http://ift.tt/1fpJWTW

Posted in Uncategorized | Tagged , | Leave a comment

ISHTIP at Penn, Part 5

Posted on July 23, 2015 by rtushnet
Session 3 | Marianne Dahlén (Uppsala University,
Sweden), Moderator
 
Design and Copyright: An Open Question?
Stina Teilmann-Lock (University of Southern Denmark)
Commentator | Jessica Silbey (Northeastern University)
 
Openness in the law for fair followers?  Design in law in Denmark from 1908: fair
followers can copy, despite existence of copyright protection—a balance b/t
copying to develop and proliferate design and control/remuneration for designers.  Balance is very hard to achieve; pendulum
swings between 1908 and 1960 due to categorical shifts in legal reasoning.  Rely on foundational assumptions about art,
purposes of ©, and people © is supposed to benefit.
 
One approach: deny © to industrial design of any kind.  Platonic idea of art. Other trend is protect original
ornamentation wherever found, but make it thin/identical copying only. Similar
trend in US/Bleistein’s anti-discrimination principle.  Danish SCt, 1908, ruled that coffee pot was
uncopyrightable—it was meant to proliferate in the market despite its
decorations/artistic qualities.  It had a
prototype. 
 
Modernist art: fashion and painting, font and furniture, art
and politics were all linked. When Demnark amends copyright act in 1908 to
cover prototypes for industrial art and handicrafts, whether or not
reproduction takes place w/purely artistic purpose or industrial purpose/practical
use: a kind of leveling, bringing more artists under the copyright tent.
Similar to US: the copy is an individual reaction to something in nature;
virtually any personal reaction will be copyrightable. Also comports
w/political movements of modernism/industrial capitalism. 
 
Kantian influence over Danish © was strong and resisted this
impulse. Talent or genius, used to reinforce hierarchy of fine art.  Not clear whether paper celebrates this
exclusion, though calls it a chance for “openness.” Clearly based on an
elitism/certain objects are only marginally protected, while jewelry and other
ornamental features were protected.
 
Bauhaus chairs from 1930s: experts found them worthy of
protection, but Danish courts didn’t—unique features came from style/particular
materials and thus not artistic worthy of protection.  Functionalist furniture + rhetoric of
modernist movement made applied art even more problematic in © terms—the binary
of fine art/craft is based on this fiction of individuality/common practice
also being a binary.  Mythology of
originality/genius that denies/suppresses evolutionary practices while
simultaneously denying to everyday creators the benefit of legal protection.
 
So broadening the categories of protection to add applied
art in 1961 didn’t flatten the hierarchy. 
What does this mean for industrial designs?  Simple/common forms could be copyrighted when
they existed in harmonious unity, selected by the designer.  Where then is the openness? Disappearance of
shared community, mutual following. Savior of openness in Denmark isn’t an
antidote to romance of individuality, but rather a doctrine of thin
copyright.  Low originality requirement
must have as its concomitant a narrow scope of protection.  But then does that perpetuate hierarchy of
copyright genres?
 
Should always ask who benefits from regimes and where the
harm is.  Openness allowed: benefits of
IP equality/leveling down extend beyond traditional authorship to audiences and
fair followers.  Progress comes through
copying; fair followers need as much openness as possible.  Category of design generally is a problem
across IP disciplines.  Whether design is
protected in © is also imported into TM and patent. It is a special category in
almost every statutory IP regime and its specialness is confusing—a sui generis
category w/o justification where there is so much overlap.
 
Teilmann-Lock: Double status of design comes from its basis
in engineering as well. We mean different things when we say design—technical and
artistic. See it too in the Berne Convention, where it’s left to individual
nations to deal.  Conceptions of design
have been very different across time/place. 
Actors w/the most to say in defining design in Denmark have been
graduates of Academy of Fine Arts—furniture architects, a very loaded term in
Danish b/c its connotation is a particular generation of designers who made
Danish Modern design globally known.
 
Ornament is a naughty word in the design world, which is
trained that form follows function.  It
means bad taste. Illusion that object can be stripped down to its
function. 
 
Farley: in terms of history, Danish design’s heyday was post
WWII to late 1960s.  Change in law of
1961, if consequential, comes at an interesting time.  Is there a consequence for design?  Danish courts became good at seeing the art
in functional design; not all courts did. 
American/individualistic approach—we don’t ask, can I see art in that
chair? We say instead: what were the alternative designs? Were artistic choices
made?  Danish ideal: reduce to its essence;
that would take the US choice approach off the table.  Danish court says artistic design is “naturally”
motivated where US court would see that as a reason not to grant protection.
When the Q is alternatives, there are almost always alternatives; but if ct is
forced to assess art, it may deny protection from fear of having to make
artistic judgments.
 
A: Court-appointed experts play a role in the Danish
cases.  Experts had managed to persuade
courts of their understanding of aesthetics. 
Almost lecturing the courts for the first half of the century about
modernist aesthetics and finally courts took it in.  (Similar thing arguably w/appropriation art
and the last 50 years of fair use in the US courts.) 

Danish designers always have their names on products: a French press is called
a Bonum (sp?) because of the name of the designer.  A TM too, of course.
 
Challenging The Black Box: On the Accountability of
Algorithmic Law Enforcement
Maayan Perel and Niva Elkin-Koren (University of Haifa)
Commentator | Maria Lillà Montagnani (Bocconi University,
Italy)
 
Algorithmic © enforcement by online intermediaries. How/are
they held accountable for what they do? 
Framework against which we can judge them.  Tech has always assisted legal enforcement;
not aware of it most of the time. 
Speeding cameras.  In traditional
enforcement situations, decisionmakers make a decision and the tech just helps
implement it.  But online, private
entities translate the law itself into an algorithm.  Functions that were actually discrete are now
carried out by the same entity: law enforcement & adjudication.  And the algorithm is unknown, black box. We
can’t know if the law is actually being complied with, esp. in situations of
fair use. Dangerous effects on public sphere.
 
Proposal: public scrutiny, not judicial scrutiny.  (Could in the alternative have an ASCAP-style
antitrust control.)  How to distinguish
from content management decisions made by intermediaries as part of their
business operations?  Does the public
have a sufficient opportunity to challenge decisions? Can they correct
erroneous decisions? 
 
Proxies for this: public literacy through transparency.  Due process—ability to challenge decision/have
a voice.  Public oversight: ability to
contest removal/restore content.
 
Regulated algorithmic © enforcement, as distinguished from
unregulated.  The DMCA doesn’t achieve
these goals.  DMCA: uploader is not
informed when link is removed. 
Counternotice doesn’t preserve due process b/c the content is
immediately removed: an extrajudicial TRO based only on © owner’s allegations.
If this is true of statutory © enforcement, it’s much worse with completely
unregulated/private/voluntary regimes—e.g., filtering that prevents publication
in the first place—no transparency; no notice; no due process; no
counternotice.
 
Google: ex post and ex ante measures, filtering as a
business model. Enables © owners to monetize other parties’ uploading. But that
doesn’t meet the framework for judging accountability.
 
Barriers to oversight: Technical barriers linked to
nontransparent algorithmic mechanisms as such. 
Legal barriers: bars on reverse engineering, research: anticircumvention
laws; requirement that you aver ownership in good faith (so you can’t test the
operation of the system); user-generated barriers b/c users tend not to send
the counternotices b/c the wording of a notice is so scary.
 
We know that these systems don’t work from an accountability
perspective.  Public oversight would be
better than nothing, but why not change the approach: if © and tech don’t work
together, start from scratch, and think of something that works.  Doesn’t make sense to try to make the tech
fit ©; make © that fits tech, like privacy by design.  More collaborative approach b/t regulators
and intermediaries.
 
Elkin-Koren: purpose was to map issues surrounding
algorithmic enforcement, and offer theoretical framework for thinking about it.
Not necessarily providing ready-made solutions. Context of a larger effort on
algorithmic enforcement. We have data for 3 years about enforcement by
algorithm and enforcement in court—Israel is a small environment that allows a
population study.  Software for example
operates only by notice and takedown, not in court; other types of works are in
court and not by takedown.  Most
interesting finding: algorithmic enforcement is 7000-8000 notices compared to 100
lawsuits over the same 6 months. We are also looking at the notices.  50% of notices are actually related to the
right to be forgotten, though filed under DMCA. 
Google’s Transparency Report doesn’t give this info—requires a lot of
analysis.  History can help understand
where we are.
 
Perel: Empirical study that spurred this paper: we tried to
learn systematically about how online platforms in Israel enforce ©; whether
they verify rights claims; whether they correctly remove only infringing
content. Tried to upload different materials, some clearly noninfringing and
some clearly infringing (like an episode of House),
and some fair use (baby dancing in Lenz-style
video).  Recorded results of sending
takedown notice.  Algorithmic enforcement
is chaotic in Israel: most platforms did nothing to verify rights; some took
down noninfringing content and some didn’t take down infringing content. Couldn’t
do this experiment in the US b/c of the DMCA legal barriers (anticircumvention
and oath requirement in takedown; CFAA). But anecdotal evidence of same errors
in the US.
 
Elkin-Koren: skeptical both about privacy by design and © by
design: doesn’t help us avoid the challenge. Don’t give priority to people who
design the wires. The community should decide, using an appropriate
decisionmaking process. Legislators would have difficulty designing the system
too.  Challenge: how to design legal
interventions that would be more appropriate for this dynamic environment. We
could set standards, but those are problematic as well—can create
distortions.  We are dealing with
continuously changing tech.  Ongoing
legal intervention is therefore required. 
Platform behavior is constantly changing.  Some of our data we’ve shown to Google; they
had no clue.
 
RT: I’m going to do the lawyer thing and ask for specific solutions.  So frustrating; we’ve been saying these
systems don’t work for years and now, instead of any proposals for improvement,
from © owners we get the Frank Luntz-style phrase “notice and staydown” as their
new euphemism for filtering.  What if
anything is the most effective way of making these concerns persuasive to
non-IP scholars?  Multistakeholder in my
experience means: we are going to wear you down with procedure and time, b/c
you aren’t getting paid by the hour to represent the public interest.  Experience of recent
DMCA best practices statement “multistakeholder process” hosted by
PTO/NTIA: most anodyne results possible (only anodyne results were possible).  Multistakeholder process only works where
there is ground for compromise: what is that ground?
 
Elkin-Koren: Multistakeholder regimes are not what we’re
trying to advocate—there are indeed many problems.  © is just a test case for online
disputes/algorithms.  Maybe some
solutions can be achieved more broadly across regimes.
 
Q: FB algorithms that vote down stories that don’t help FB
financially—serve no purpose other than as a mask for unaccountable power/to
encourage brands to pay FB for access. 
Similar issues.
 
Q: YT’s US terms of use don’t cover reverse engineering of
takedown algorithm, but Israeli terms of use specifically say you agree not to
interfere w/© security or inspection mechanism. Another type of legal barrier.
Difference b/t jurisdictions is interesting. 
User-generated barriers: has been approached by musicians that received
takedowns after trying to monetize their channels.  They are very scared.  If you counternotify on grounds of fair use;
the algorithm shuts down; maybe that’s another way to challenge (this is not
universally true! I know people whose fair use counternotifications have simply
been ignored).
 
Jaszi: at least two black boxes. One is the algorithm. Another
Q is why the counternotice provisions are so dramatically underutilized.  You categorize some possibilities in the paper:
fear, risk of exposure, simple lack of information, lack of solidarity (people
feel like exposed isolates rather than part of a group), indifference (it was
one of many videos; it’s already up on other platforms). There is a practical
point of intervention: we need information about why people don’t counternotify;
we have wonderful hypotheses but need real empirical work. If enough made use
of it would throw system into disarray.
 
Perel: it’s impossible to send 1 million counternotices a
day.
 
Jaszi: but why are we sure that resistance would require
numerical proportion?  1000 might be
enough.
 
Elkin-Koren: there is no one you can deal with if you have a
FB problem in Israel.
 
Q: responses to EU consultation on ©: a lot of responses
from intermediaries on increasing responsibility for blocking infringing
content. Adopted discourse of economic transaction costs—burdensome introduction
of new requirements.  Intermediaries are
reticent to handle interactions w/public. Why won’t intermediaries reject
transparency on grounds of transaction/operating costs?
 
Q: © as test case for other areas of law—surveillance machinery
is the same.
 
Elkin-Koren: transparency is insufficient; comes with costs.
I wouldn’t require more reports/more information: intermediaries should allow
their systems to be more transparent, open to inspection/monitoring by
outsiders as we are being monitored by them. Not necessarily the same type of
cost.  Maybe the reason © disputes turned
into political disputes is the fact that © enforcement infrastructure is the
infrastructure for other types of surveillance and control.  When you want to remove a documentary on rape
in India, you convince BBC to file a takedown. 
That was the only way to remove it. 
It’s not b/c © fits but b/c © is perceived as neutral.

from Blogger http://ift.tt/1JhJm6P

Posted in Uncategorized | Tagged , , , | Leave a comment

Washington Post explains how the DMCA will kill your family

Posted on July 23, 2015 by rtushnet

Buries the lede a bit, but it gets there:

The industry says the law protects consumers by preventing cars from being hacked. But the main impact, say Rad and other security researchers, is to stem the tide of revelations embarrassing to carmakers — not to improve vehicle cybersecurity. “If the stuff is out there,” she said, “the bad guys already know about it.”

When you outlaw security research, only bad guys will do it.

HT and title Zach Schrag

http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in dmca, drm | Leave a comment

ISHTIP at Penn, Part 5

Posted on July 23, 2015 by rtushnet
Session 3 | Marianne Dahlén (Uppsala University, Sweden), Moderator
 
Design and Copyright: An Open Question?
Stina Teilmann-Lock (University of Southern Denmark)
Commentator | Jessica Silbey (Northeastern University)
 
Openness in the law for fair followers?  Design in law in Denmark from 1908: fair followers can copy, despite existence of copyright protection—a balance b/t copying to develop and proliferate design and control/remuneration for designers.  Balance is very hard to achieve; pendulum swings between 1908 and 1960 due to categorical shifts in legal reasoning.  Rely on foundational assumptions about art, purposes of ©, and people © is supposed to benefit.
 
One approach: deny © to industrial design of any kind.  Platonic idea of art. Other trend is protect original ornamentation wherever found, but make it thin/identical copying only. Similar trend in US/Bleistein’s anti-discrimination principle.  Danish SCt, 1908, ruled that coffee pot was uncopyrightable—it was meant to proliferate in the market despite its decorations/artistic qualities.  It had a prototype. 
 
Modernist art: fashion and painting, font and furniture, art and politics were all linked. When Demnark amends copyright act in 1908 to cover prototypes for industrial art and handicrafts, whether or not reproduction takes place w/purely artistic purpose or industrial purpose/practical use: a kind of leveling, bringing more artists under the copyright tent. Similar to US: the copy is an individual reaction to something in nature; virtually any personal reaction will be copyrightable. Also comports w/political movements of modernism/industrial capitalism. 
 
Kantian influence over Danish © was strong and resisted this impulse. Talent or genius, used to reinforce hierarchy of fine art.  Not clear whether paper celebrates this exclusion, though calls it a chance for “openness.” Clearly based on an elitism/certain objects are only marginally protected, while jewelry and other ornamental features were protected.
 
Bauhaus chairs from 1930s: experts found them worthy of protection, but Danish courts didn’t—unique features came from style/particular materials and thus not artistic worthy of protection.  Functionalist furniture + rhetoric of modernist movement made applied art even more problematic in © terms—the binary of fine art/craft is based on this fiction of individuality/common practice also being a binary.  Mythology of originality/genius that denies/suppresses evolutionary practices while simultaneously denying to everyday creators the benefit of legal protection.
 
So broadening the categories of protection to add applied art in 1961 didn’t flatten the hierarchy.  What does this mean for industrial designs?  Simple/common forms could be copyrighted when they existed in harmonious unity, selected by the designer.  Where then is the openness? Disappearance of shared community, mutual following. Savior of openness in Denmark isn’t an antidote to romance of individuality, but rather a doctrine of thin copyright.  Low originality requirement must have as its concomitant a narrow scope of protection.  But then does that perpetuate hierarchy of copyright genres?
 
Should always ask who benefits from regimes and where the harm is.  Openness allowed: benefits of IP equality/leveling down extend beyond traditional authorship to audiences and fair followers.  Progress comes through copying; fair followers need as much openness as possible.  Category of design generally is a problem across IP disciplines.  Whether design is protected in © is also imported into TM and patent. It is a special category in almost every statutory IP regime and its specialness is confusing—a sui generis category w/o justification where there is so much overlap.
 
Teilmann-Lock: Double status of design comes from its basis in engineering as well. We mean different things when we say design—technical and artistic. See it too in the Berne Convention, where it’s left to individual nations to deal.  Conceptions of design have been very different across time/place.  Actors w/the most to say in defining design in Denmark have been graduates of Academy of Fine Arts—furniture architects, a very loaded term in Danish b/c its connotation is a particular generation of designers who made Danish Modern design globally known.
 
Ornament is a naughty word in the design world, which is trained that form follows function.  It means bad taste. Illusion that object can be stripped down to its function. 
 
Farley: in terms of history, Danish design’s heyday was post WWII to late 1960s.  Change in law of 1961, if consequential, comes at an interesting time.  Is there a consequence for design?  Danish courts became good at seeing the art in functional design; not all courts did.  American/individualistic approach—we don’t ask, can I see art in that chair? We say instead: what were the alternative designs? Were artistic choices made?  Danish ideal: reduce to its essence; that would take the US choice approach off the table.  Danish court says artistic design is “naturally” motivated where US court would see that as a reason not to grant protection. When the Q is alternatives, there are almost always alternatives; but if ct is forced to assess art, it may deny protection from fear of having to make artistic judgments.
 
A: Court-appointed experts play a role in the Danish cases.  Experts had managed to persuade courts of their understanding of aesthetics.  Almost lecturing the courts for the first half of the century about modernist aesthetics and finally courts took it in.  (Similar thing arguably w/appropriation art and the last 50 years of fair use in the US courts.) 
Danish designers always have their names on products: a French press is called a Bonum (sp?) because of the name of the designer.  A TM too, of course.
 
Challenging The Black Box: On the Accountability of Algorithmic Law Enforcement
Maayan Perel and Niva Elkin-Koren (University of Haifa)
Commentator | Maria Lillà Montagnani (Bocconi University, Italy)
 
Algorithmic © enforcement by online intermediaries. How/are they held accountable for what they do?  Framework against which we can judge them.  Tech has always assisted legal enforcement; not aware of it most of the time.  Speeding cameras.  In traditional enforcement situations, decisionmakers make a decision and the tech just helps implement it.  But online, private entities translate the law itself into an algorithm.  Functions that were actually discrete are now carried out by the same entity: law enforcement & adjudication.  And the algorithm is unknown, black box. We can’t know if the law is actually being complied with, esp. in situations of fair use. Dangerous effects on public sphere.
 
Proposal: public scrutiny, not judicial scrutiny.  (Could in the alternative have an ASCAP-style antitrust control.)  How to distinguish from content management decisions made by intermediaries as part of their business operations?  Does the public have a sufficient opportunity to challenge decisions? Can they correct erroneous decisions? 
 
Proxies for this: public literacy through transparency.  Due process—ability to challenge decision/have a voice.  Public oversight: ability to contest removal/restore content.
 
Regulated algorithmic © enforcement, as distinguished from unregulated.  The DMCA doesn’t achieve these goals.  DMCA: uploader is not informed when link is removed.  Counternotice doesn’t preserve due process b/c the content is immediately removed: an extrajudicial TRO based only on © owner’s allegations. If this is true of statutory © enforcement, it’s much worse with completely unregulated/private/voluntary regimes—e.g., filtering that prevents publication in the first place—no transparency; no notice; no due process; no counternotice.
 
Google: ex post and ex ante measures, filtering as a business model. Enables © owners to monetize other parties’ uploading. But that doesn’t meet the framework for judging accountability.
 
Barriers to oversight: Technical barriers linked to nontransparent algorithmic mechanisms as such.  Legal barriers: bars on reverse engineering, research: anticircumvention laws; requirement that you aver ownership in good faith (so you can’t test the operation of the system); user-generated barriers b/c users tend not to send the counternotices b/c the wording of a notice is so scary.
 
We know that these systems don’t work from an accountability perspective.  Public oversight would be better than nothing, but why not change the approach: if © and tech don’t work together, start from scratch, and think of something that works.  Doesn’t make sense to try to make the tech fit ©; make © that fits tech, like privacy by design.  More collaborative approach b/t regulators and intermediaries.
 
Elkin-Koren: purpose was to map issues surrounding algorithmic enforcement, and offer theoretical framework for thinking about it. Not necessarily providing ready-made solutions. Context of a larger effort on algorithmic enforcement. We have data for 3 years about enforcement by algorithm and enforcement in court—Israel is a small environment that allows a population study.  Software for example operates only by notice and takedown, not in court; other types of works are in court and not by takedown.  Most interesting finding: algorithmic enforcement is 7000-8000 notices compared to 100 lawsuits over the same 6 months. We are also looking at the notices.  50% of notices are actually related to the right to be forgotten, though filed under DMCA.  Google’s Transparency Report doesn’t give this info—requires a lot of analysis.  History can help understand where we are.
 
Perel: Empirical study that spurred this paper: we tried to learn systematically about how online platforms in Israel enforce ©; whether they verify rights claims; whether they correctly remove only infringing content. Tried to upload different materials, some clearly noninfringing and some clearly infringing (like an episode of House), and some fair use (baby dancing in Lenz-style video).  Recorded results of sending takedown notice.  Algorithmic enforcement is chaotic in Israel: most platforms did nothing to verify rights; some took down noninfringing content and some didn’t take down infringing content. Couldn’t do this experiment in the US b/c of the DMCA legal barriers (anticircumvention and oath requirement in takedown; CFAA). But anecdotal evidence of same errors in the US.
 
Elkin-Koren: skeptical both about privacy by design and © by design: doesn’t help us avoid the challenge. Don’t give priority to people who design the wires. The community should decide, using an appropriate decisionmaking process. Legislators would have difficulty designing the system too.  Challenge: how to design legal interventions that would be more appropriate for this dynamic environment. We could set standards, but those are problematic as well—can create distortions.  We are dealing with continuously changing tech.  Ongoing legal intervention is therefore required.  Platform behavior is constantly changing.  Some of our data we’ve shown to Google; they had no clue.
 
RT: I’m going to do the lawyer thing and ask for specific solutions.  So frustrating; we’ve been saying these systems don’t work for years and now, instead of any proposals for improvement, from © owners we get the Frank Luntz-style phrase “notice and staydown” as their new euphemism for filtering.  What if anything is the most effective way of making these concerns persuasive to non-IP scholars?  Multistakeholder in my experience means: we are going to wear you down with procedure and time, b/c you aren’t getting paid by the hour to represent the public interest.  Experience of recentDMCA best practices statement “multistakeholder process” hosted by PTO/NTIA: most anodyne results possible (only anodyne results were possible).  Multistakeholder process only works where there is ground for compromise: what is that ground?
 
Elkin-Koren: Multistakeholder regimes are not what we’re trying to advocate—there are indeed many problems.  © is just a test case for online disputes/algorithms.  Maybe some solutions can be achieved more broadly across regimes.
 
Q: FB algorithms that vote down stories that don’t help FB financially—serve no purpose other than as a mask for unaccountable power/to encourage brands to pay FB for access.  Similar issues.
 
Q: YT’s US terms of use don’t cover reverse engineering of takedown algorithm, but Israeli terms of use specifically say you agree not to interfere w/© security or inspection mechanism. Another type of legal barrier. Difference b/t jurisdictions is interesting.  User-generated barriers: has been approached by musicians that received takedowns after trying to monetize their channels.  They are very scared.  If you counternotify on grounds of fair use; the algorithm shuts down; maybe that’s another way to challenge (this is not universally true! I know people whose fair use counternotifications have simply been ignored).
 
Jaszi: at least two black boxes. One is the algorithm. Another Q is why the counternotice provisions are so dramatically underutilized.  You categorize some possibilities in the paper: fear, risk of exposure, simple lack of information, lack of solidarity (people feel like exposed isolates rather than part of a group), indifference (it was one of many videos; it’s already up on other platforms). There is a practical point of intervention: we need information about why people don’t counternotify; we have wonderful hypotheses but need real empirical work. If enough made use of it would throw system into disarray.
 
Perel: it’s impossible to send 1 million counternotices a day.
 
Jaszi: but why are we sure that resistance would require numerical proportion?  1000 might be enough.
 
Elkin-Koren: there is no one you can deal with if you have a FB problem in Israel.
 
Q: responses to EU consultation on ©: a lot of responses from intermediaries on increasing responsibility for blocking infringing content. Adopted discourse of economic transaction costs—burdensome introduction of new requirements.  Intermediaries are reticent to handle interactions w/public. Why won’t intermediaries reject transparency on grounds of transaction/operating costs?
 
Q: © as test case for other areas of law—surveillance machinery is the same.
 
Elkin-Koren: transparency is insufficient; comes with costs. I wouldn’t require more reports/more information: intermediaries should allow their systems to be more transparent, open to inspection/monitoring by outsiders as we are being monitored by them. Not necessarily the same type of cost.  Maybe the reason © disputes turned into political disputes is the fact that © enforcement infrastructure is the infrastructure for other types of surveillance and control.  When you want to remove a documentary on rape in India, you convince BBC to file a takedown.  That was the only way to remove it.  It’s not b/c © fits but b/c © is perceived as neutral.
http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in copyright, http://schemas.google.com/blogger/2008/kind#post, secondary liability | Leave a comment

ISHTIP at Penn, part 4

Posted on July 23, 2015 by rtushnet
Session 2 | Dina Leytes (Griesing Law, LLC), Moderator
 
Lord Eldon, Lord Byron, and the Public Domain
Gary Dyer (Cleveland State University)
Commentator | Simon Stern (University of Toronto)
 
Byron’s strategies to deal with Eldon’s doctrine that
created a no man’s land b/t criminality and property if works were potentially
seditiously libellous or obscene; purported to find in an earlier decision a
doctrine that an author could have no remedy if the policy of the law
prohibited his work from being property. Injunctions should issue only when the
P could clearly establish a legal right. 
Eldon’s paradox: exacerbates the effect it’s created to prevent: (1) no
property in what’s injurious; (2) destroying ability to profit would discourage
authors from creating—but that encourages circulation. Precisely b/c applies to
ambiguous circumstances, a publication might not qualify for injunction while
simultaneously not being obscene or libellous. A legal ruling that a work was
not obscene or libellous should mean that a court of equity should grant a
remedy; a ruling that a work was
should also lead to proceedings against pirate editions. But most works weren’t
ever subject to a legal proceeding—simply existed under a shadow.  Pirate editions could persist on the ground
that it was too shady for protection but not shady enough to get the author
thrown in jail.
 
Byron adopted some self-censoring measures to enjoy this,
but not a lot; he wasn’t dissuaded from engaging in libertine speech, and as a
result his works circulated further than they otherwise would have. One
strategy: authorized cheaper editions that facilitated sales though didn’t
undermine pirates entirely.  Byron became
one of the first truly national authors to be widely read as soon as his works
were published.  Reduced Byron’s own
profits.  If Eldon’s doctrine reflects
rational choice theory about discouraging authors’ investment in smaller-profit
endeavors, then Eldon was wrong/would have done well to read Kahneman &
Tversky on bounded rationality or Silbey on actual motivations of authors.
 
One way to read the paper is as contribution to literature
on the logic of incentives. Instead of altering his text to receive protection,
Byron did other things and accepted lower profits. Also casts doubt on the
endowment effect here: once an author has made a certain amount from a work,
that could serve as anchor/benchmark; here Byron accepted less for nonpecuniary
goals. Value of first mover advantage: Byron profited as much as he did b/c
simply beating pirates into print was worth a significant amount for those
willing to sell low.  Compare Robert Spoo’s
discussion of courtesy of trade among 19th c. US publishers, who
also recognized value of first mover advantage in ability to achieve leading
position in selling a particular title.
 
Case that provided the motive for Eldon’s doctrine lacked
the precedential force Eldon wanted to give it, even if it hadn’t been dictum;
could Eldon have achieved the same result using the doctrine of unclean
hands?  At least more familiar/plausible
doctrinal ground. Resort instead to such an improbable precedent, interpreted
in capricious manner, might signal his disdain for the writings in
question.  Exercise of legal imagination
responding to the authors’ imagination. Contemporaries criticized the poor
logic; maybe the poor logic was part of its meaning—more about denying the
legitimacy of the author’s position. Maybe he didn’t anticipate the anomalous
status of not-property and not-illegal, but that results still makes sense
given the shaky foundation of the doctrine.
 
Paper also highlights the fuzzy contours of the public
domain which can be changed both by practice and legal doctrine.  Public domain was much broader than it is
today in a variety of ways (nonliteral copying); risk-averse conduct of
publishers who insist on permissions for what is fair use. Publishers can
shrink or expand the practical public domain. 
In Byron’s case, that happened as various actors responded—Byron removed
just enough criticism of the gov’t to make pirates unsure; pirates argued that
the work was corrupt but hoped that it wouldn’t actually be deemed illegal.  London booksellers likewise studiously avoided
common law courts that had the authority to determine that common-law copyright
was property forever; repeated the claim only in equity courts where chancellor
might be willing to indulge the premise and grant injunctions. Injunction is
probabalistic device reflecting chancellor’s assumptions about the law, not the
law.  Procedural device: a practice of
hypothesis and imagination—determined the regulation of these imaginative
works.
 
Dyer: Comparatively speaking, Byron didn’t modify his
writings much from these concerns or worries over being prosecuted.  About the same time this was going on, John
Hunt was indicted for publishing another work by Byron—possibility of third
libel conviction/going to jail.
 
Chancellor is using prediction of law and rules of equity—other
aspects of equity don’t come into play. 
Publisher/author needs expert opinions about how this will play
out.  Archives exist to study this:
prosecutions for criminal libel involve opinions of AG when manuscripts are
submitted to them for evaluation.  Often
the answer is “clearly in point of law this is criminal libel but not a fit
subject for prosecution.”  Resources;
difficult to convince jury to convict; would have to talk too much about the
Prince Regent’s personal life. The practicalities of suppressing speech!
 
Court of chancery wouldn’t enjoin a publication simply for
being libelous.  What if you’re the
author who owns the ©/the transferee—can you do that?  Eldon’s doctrine pulls the rug out from under
that tactic—which people trying to suppress libel they’d disavowed actually
did.  Byron tried the same thing with a
1809 defamatory poem where he later became friends with the target.
 
Christine Haight Farley: If you’re investigating policy
impact, Byron is an outlier b/c he is an incredibly successful author, which
means his strategies will be different. Different relation w/publisher;
different ability to seek counsel before publishing; different strategies on
reaching the market. What about the impact on the ordinary author?  Authors we’ve never heard of—what do their
letters w/ publishers say?  [what a great
question]
 
Q of doctrine is whether this text is a property or not, and
won’t be if immoral/injurious.  Language
of opinion is always about the intent of the author. Only barristers consulted
in advance seem to read the work as a whole and consider its overall message; they
look at meaning, but judge, prosecutor, and everyone else cited seem to be
talking about what the author intended, including Eldon.
 
A: the intent standard here seems to mean an implied author:
given what this text does, what would you understand the intent to be?  Ultimately he thinks it goes to the effects,
but he needs to look at this in more detail—tied up with the part v. whole
evaluation; Eldon is inconsistent on which you evaluate.
 
Unclean hands: usually A can’t get relief against B because
A was bad to B—but in these cases unclean hands means “being bad to the
public/public interest.”  Unclean hands
doctrine is not used in the latter way during the period he’s studying, and
first is used in this way in cases like this!
 
Other authors: May not be interested in strictly legal IP
rights, though do try unofficial enforcement. But should consider which writers
to look at—writers do have clear political agendas; needs to think more about
who to look at: not sure who’s willing to be somewhat marginalized & know
they’ll never have the reach of a Byron, but do want to have some IP rights.
 
Note that Byron does win here; it’s a story about the
failure of law to suppress speech. The dissemination of this speech then
changes the public.  Also difficulties in
coordinating law with equity.
 
Jurisdictional Boundaries of Prior Use within Britain: An
analysis of the House of Lords’ judgments in Roebuck v Stirling (1774) and
Brown v Annandale (1842)
Barbara Henry (University of Hertfordshire)
Commentator | Eva Hemmungs Wirtén (Linköping University,
Sweden)
 
Two cases, 60 years apart. Patents on improvements weren’t
available in Roebuck, but were in Brown. 
Received patent in Scotland (separate regime from England); litigated
against alleged infringers. Ds cited public use in England prior to the date of
the Scottish patent.  Patentee’s
argument: Couldn’t rely on prior use in England to invalidate Scottish patent—innovation
only had to be new in Scotland; court disagreed.  Concepts of center and periphery.
 
Paper concludes: these weren’t the clearest legal
principles, the decision to continue the Roebuck precedent was sensible—considering
improvements in transportation and communication made it harder to distinguish
England and Scotland.  Single British
patent was beginning to emerge; would be enshrined in law w/in 10 years of
judgment in Brown.  Continuing
significance of the cases?  Addressed key
issues concerning courts in 18th c.—patents for improvements, prior
use/novelty and jurisdictional boundaries; first inventor v. first importer;
impact of Statute of Monopolies on patent; possibly trade secrets and
industrial espionage.  Similar issues
arise w/ European patents.  Are there
materials that would tell the story differently than the court cases?
 
Henry: modern patent law isn’t her area of expertise, but
knowing the past can help explain present concerns.  For countries developing their own systems,
how existing systems developed can show some of the pitfalls.

Trade secrets: there’s discussion of “treacherous servants.” Not clear how big
a role trade secrets played in this case.

Q: that phrase “treacherous servants” is ubiquitous in 19th century
discourse on tech transfer. Any thoughts on that?
 
A: interestingly, the inventors here aren’t Scottish but
English inventors who moved to Scotland. Industries are closely related to Watt
and Bolton—probably not as bad as it might have been in © in terms of
discrimination against outsiders.

from Blogger http://ift.tt/1OowoUl

Posted in Uncategorized | Tagged , , , | Leave a comment

Claims about computer expertise aren’t puffery to ordinary consumers

Posted on July 23, 2015 by rtushnet
Burton v. iYogi, Inc., 2015 WL 4385665, No. 13–CV–6926
(S.D.N.Y. Mar. 16, 2015)
 
iYogi provides computer diagnostics and repair, general
troubleshooting, updates to computer drivers, security protection, and PC speed
and performance optimization. To market itself, iYogi offers “Free PC
Diagnostics,” involving a brief phone consultation between a “Technician” and
potential customer. Through remote diagnosis, a “Tech Expert” “[i]dentifies the
problem” and “[r]ecommends a solution.” Burton sought technical support for her
“poorly performing” HP computer because it was “running slowly, freezing and
locking-up.” She found an ad that said something like: “iYogi provides wide
scope HP support online for users to resolve all HP computer related issues
through the assistance of iYogi Certified Technicians,” and “[t]he experts can
help troubleshoot several HP errors like overheating issues, registry
conflicts, etc.”
 
When Burton called, the iYogi technician remotely accessed
Burton’s computer, browsed through various computer files, and stated that they
were contributing to the computer’s problems. The technician her Burton to
download iYogi’s “diagnostic software,” which displayed a “Dashboard”
indicating Burton’s computer “possessed a large amount of ‘junk files’ and
‘Registry errors,’” along with a warning in red typeface that her computer’s
“System State” was “Critical.” The technician informed Burton that her computer
was at serious risk, damaged, and would likely crash if she did not purchase
iYogi’s services to repair her computer.
 
Burton alleged that iYogi technicians operate using scripts intended
to trick customers with little technical expertise, like her, into believing
that iYogi technicians are performing assessments and identifying problems. In
fact, she alleged, no credible diagnostic testing of her, or any other
customer’s, computer was actually conducted. Virtually every potential customer
will receive a warning that “junk files” are harming their computers. The same “errors”
were allegedly found on a brand new computer.
 
But for these misrepresentations, Burton alleged, she wouldn’t
have bought a one-year “iYogi Gold Subscription” for $99.99. Even after
subscribing, her computer allegedly continued to malfunction as it had before
iYogi performed services. She sued for fraudulent inducement and unjust
enrichment.
 
The court refused to dismiss the complaint based on a claim
that the contract limited plaintiff’s time to sue to one year and precluded an
unjust enrichment claim, even though the court found it implausible that she
wasn’t required to accept terms of use before receiving iYogi’s services,
because “‘click-wrap” contracts are standard in Internet-based sales and
service provision.”
 
She also stated a claim for fraudulent inducement.  She adequately alleged false representations
by the technician: the software is allegedly not capable of accurately
diagnosing her or other customers’ computer problems, and iYogi services did
not in fact fix her computer, which continued to malfunction. She specifically
alleged that the “junk files” and “Registry errors” that the iYogi technician
and software identified are found on virtually every computer, including a new
computer, and are not necessarily harmful, and that no credible test was
performed to determine whether they were actually causing the problems on her
computer She further alleged that iYogi technicians follow a script that
“invariably report[s] that potential customers’ computers are in dire condition”
regardless of the actual condition of their computers. iYogi claimed that the
statements couldn’t be false because she made similar statements.  But she admitted that there was a problem
with her computer and alleged that iYogi misrepresented the source and severity
of the problems and iYogi’s ability to fix them to induce her into buying
iYogi’s services. “Just as a medical patient’s complaint of arm pain differs
from a doctor’s x-ray analysis of a fractured limb, so too does a customer’s
complaint of computer trouble differ from a technical ‘diagnosis’ of where and
how there is a malfunction.”
 
Nor were the statements puffery.  Although opinions are generally not
actionable, “[t]he expression of an opinion or prediction which the declarant
does not himself believe is a false statement of fact.” Moreover, “where one
party [has] superior knowledge, the expression of an opinion implies that the
declarant knows facts which support that opinion and that he knows nothing
which contradicts the statement.” Here, the court concluded, whether iYogi
provided the services it claimed to and whether those accurately identify and
fix customers’ problems could be proven true or false. Moreover, if the
allegations were true, then iYogi was presenting statements about customers’
computers as fact based on expert assessment.
 
iYogi argued that Burton failed to allege that the
technician didn’t actually believe the statements.  But she alleged that iYogi technicians are
trained to use scripted dialogue. “Even if an individual iYogi representative
believed the diagnostic testing was accurate, that would not absolve iYogi, the
Defendant, of liability for designing the misleading software and scripts and
training its employees to use them.”
 
Burton also alleged justifiable reliance by consumers of
average technical knowledge. And she sufficiently alleged scienter, which can
be done either “(a) by alleging facts to show defendants had both motive and
opportunity to commit fraud, or (b) by alleging facts that constitute strong
circumstantial evidence of conscious misbehavior or recklessness.” The
allegations that iYogi designed its “diagnostic software” and scripts knowing
and intending that virtually every customer, including Plaintiff, would believe
they had serious computer problems and be induced into buying iYogi services
constitued “sufficient circumstantial evidence to warrant a strong inference of
fraudulent intent.”
 
Burton also stated a claim for unjust enrichment, even
though iYogi argued that the claim was precluded because there was a valid and
enforceable contract covering the subject matter of the claim.  But there was a dispute of fact as to whether
there was a valid and enforceable contract here. And even if there were a
contract, parties may plead in the alternative.

from Blogger http://ift.tt/1IkM5vn

Posted in Uncategorized | Tagged , | Leave a comment

ISHTIP at Penn, part 4

Posted on July 23, 2015 by rtushnet
Session 2 | Dina Leytes (Griesing Law, LLC), Moderator
 
Lord Eldon, Lord Byron, and the Public Domain
Gary Dyer (Cleveland State University)
Commentator | Simon Stern (University of Toronto)
 
Byron’s strategies to deal with Eldon’s doctrine that created a no man’s land b/t criminality and property if works were potentially seditiously libellous or obscene; purported to find in an earlier decision a doctrine that an author could have no remedy if the policy of the law prohibited his work from being property. Injunctions should issue only when the P could clearly establish a legal right.  Eldon’s paradox: exacerbates the effect it’s created to prevent: (1) no property in what’s injurious; (2) destroying ability to profit would discourage authors from creating—but that encourages circulation. Precisely b/c applies to ambiguous circumstances, a publication might not qualify for injunction while simultaneously not being obscene or libellous. A legal ruling that a work was not obscene or libellous should mean that a court of equity should grant a remedy; a ruling that a work wasshould also lead to proceedings against pirate editions. But most works weren’t ever subject to a legal proceeding—simply existed under a shadow.  Pirate editions could persist on the ground that it was too shady for protection but not shady enough to get the author thrown in jail.
 
Byron adopted some self-censoring measures to enjoy this, but not a lot; he wasn’t dissuaded from engaging in libertine speech, and as a result his works circulated further than they otherwise would have. One strategy: authorized cheaper editions that facilitated sales though didn’t undermine pirates entirely.  Byron became one of the first truly national authors to be widely read as soon as his works were published.  Reduced Byron’s own profits.  If Eldon’s doctrine reflects rational choice theory about discouraging authors’ investment in smaller-profit endeavors, then Eldon was wrong/would have done well to read Kahneman & Tversky on bounded rationality or Silbey on actual motivations of authors.
 
One way to read the paper is as contribution to literature on the logic of incentives. Instead of altering his text to receive protection, Byron did other things and accepted lower profits. Also casts doubt on the endowment effect here: once an author has made a certain amount from a work, that could serve as anchor/benchmark; here Byron accepted less for nonpecuniary goals. Value of first mover advantage: Byron profited as much as he did b/c simply beating pirates into print was worth a significant amount for those willing to sell low.  Compare Robert Spoo’s discussion of courtesy of trade among 19th c. US publishers, who also recognized value of first mover advantage in ability to achieve leading position in selling a particular title.
 
Case that provided the motive for Eldon’s doctrine lacked the precedential force Eldon wanted to give it, even if it hadn’t been dictum; could Eldon have achieved the same result using the doctrine of unclean hands?  At least more familiar/plausible doctrinal ground. Resort instead to such an improbable precedent, interpreted in capricious manner, might signal his disdain for the writings in question.  Exercise of legal imagination responding to the authors’ imagination. Contemporaries criticized the poor logic; maybe the poor logic was part of its meaning—more about denying the legitimacy of the author’s position. Maybe he didn’t anticipate the anomalous status of not-property and not-illegal, but that results still makes sense given the shaky foundation of the doctrine.
 
Paper also highlights the fuzzy contours of the public domain which can be changed both by practice and legal doctrine.  Public domain was much broader than it is today in a variety of ways (nonliteral copying); risk-averse conduct of publishers who insist on permissions for what is fair use. Publishers can shrink or expand the practical public domain.  In Byron’s case, that happened as various actors responded—Byron removed just enough criticism of the gov’t to make pirates unsure; pirates argued that the work was corrupt but hoped that it wouldn’t actually be deemed illegal.  London booksellers likewise studiously avoided common law courts that had the authority to determine that common-law copyright was property forever; repeated the claim only in equity courts where chancellor might be willing to indulge the premise and grant injunctions. Injunction is probabalistic device reflecting chancellor’s assumptions about the law, not the law.  Procedural device: a practice of hypothesis and imagination—determined the regulation of these imaginative works.
 
Dyer: Comparatively speaking, Byron didn’t modify his writings much from these concerns or worries over being prosecuted.  About the same time this was going on, John Hunt was indicted for publishing another work by Byron—possibility of third libel conviction/going to jail.
 
Chancellor is using prediction of law and rules of equity—other aspects of equity don’t come into play.  Publisher/author needs expert opinions about how this will play out.  Archives exist to study this: prosecutions for criminal libel involve opinions of AG when manuscripts are submitted to them for evaluation.  Often the answer is “clearly in point of law this is criminal libel but not a fit subject for prosecution.”  Resources; difficult to convince jury to convict; would have to talk too much about the Prince Regent’s personal life. The practicalities of suppressing speech!
 
Court of chancery wouldn’t enjoin a publication simply for being libelous.  What if you’re the author who owns the ©/the transferee—can you do that?  Eldon’s doctrine pulls the rug out from under that tactic—which people trying to suppress libel they’d disavowed actually did.  Byron tried the same thing with a 1809 defamatory poem where he later became friends with the target.
 
Christine Haight Farley: If you’re investigating policy impact, Byron is an outlier b/c he is an incredibly successful author, which means his strategies will be different. Different relation w/publisher; different ability to seek counsel before publishing; different strategies on reaching the market. What about the impact on the ordinary author?  Authors we’ve never heard of—what do their letters w/ publishers say?  [what a great question]
 
Q of doctrine is whether this text is a property or not, and won’t be if immoral/injurious.  Language of opinion is always about the intent of the author. Only barristers consulted in advance seem to read the work as a whole and consider its overall message; they look at meaning, but judge, prosecutor, and everyone else cited seem to be talking about what the author intended, including Eldon.
 
A: the intent standard here seems to mean an implied author: given what this text does, what would you understand the intent to be?  Ultimately he thinks it goes to the effects, but he needs to look at this in more detail—tied up with the part v. whole evaluation; Eldon is inconsistent on which you evaluate.
 
Unclean hands: usually A can’t get relief against B because A was bad to B—but in these cases unclean hands means “being bad to the public/public interest.”  Unclean hands doctrine is not used in the latter way during the period he’s studying, and first is used in this way in cases like this!
 
Other authors: May not be interested in strictly legal IP rights, though do try unofficial enforcement. But should consider which writers to look at—writers do have clear political agendas; needs to think more about who to look at: not sure who’s willing to be somewhat marginalized & know they’ll never have the reach of a Byron, but do want to have some IP rights.
 
Note that Byron does win here; it’s a story about the failure of law to suppress speech. The dissemination of this speech then changes the public.  Also difficulties in coordinating law with equity.
 
Jurisdictional Boundaries of Prior Use within Britain: An analysis of the House of Lords’ judgments in Roebuck v Stirling (1774) and Brown v Annandale (1842)
Barbara Henry (University of Hertfordshire)
Commentator | Eva Hemmungs Wirtén (Linköping University, Sweden)
 
Two cases, 60 years apart. Patents on improvements weren’t available in Roebuck, but were in Brown.  Received patent in Scotland (separate regime from England); litigated against alleged infringers. Ds cited public use in England prior to the date of the Scottish patent.  Patentee’s argument: Couldn’t rely on prior use in England to invalidate Scottish patent—innovation only had to be new in Scotland; court disagreed.  Concepts of center and periphery.
 
Paper concludes: these weren’t the clearest legal principles, the decision to continue the Roebuck precedent was sensible—considering improvements in transportation and communication made it harder to distinguish England and Scotland.  Single British patent was beginning to emerge; would be enshrined in law w/in 10 years of judgment in Brown.  Continuing significance of the cases?  Addressed key issues concerning courts in 18th c.—patents for improvements, prior use/novelty and jurisdictional boundaries; first inventor v. first importer; impact of Statute of Monopolies on patent; possibly trade secrets and industrial espionage.  Similar issues arise w/ European patents.  Are there materials that would tell the story differently than the court cases?
 
Henry: modern patent law isn’t her area of expertise, but knowing the past can help explain present concerns.  For countries developing their own systems, how existing systems developed can show some of the pitfalls.
Trade secrets: there’s discussion of “treacherous servants.” Not clear how big a role trade secrets played in this case.
Q: that phrase “treacherous servants” is ubiquitous in 19th century discourse on tech transfer. Any thoughts on that?
 
A: interestingly, the inventors here aren’t Scottish but English inventors who moved to Scotland. Industries are closely related to Watt and Bolton—probably not as bad as it might have been in © in terms of discrimination against outsiders.
http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in copyright, http://schemas.google.com/blogger/2008/kind#post, patent | Leave a comment

Claims about computer expertise aren’t puffery to ordinary consumers

Posted on July 23, 2015 by rtushnet
Burton v. iYogi, Inc., 2015 WL 4385665, No. 13–CV–6926 (S.D.N.Y. Mar. 16, 2015)
 
iYogi provides computer diagnostics and repair, general troubleshooting, updates to computer drivers, security protection, and PC speed and performance optimization. To market itself, iYogi offers “Free PC Diagnostics,” involving a brief phone consultation between a “Technician” and potential customer. Through remote diagnosis, a “Tech Expert” “[i]dentifies the problem” and “[r]ecommends a solution.” Burton sought technical support for her “poorly performing” HP computer because it was “running slowly, freezing and locking-up.” She found an ad that said something like: “iYogi provides wide scope HP support online for users to resolve all HP computer related issues through the assistance of iYogi Certified Technicians,” and “[t]he experts can help troubleshoot several HP errors like overheating issues, registry conflicts, etc.”
 
When Burton called, the iYogi technician remotely accessed Burton’s computer, browsed through various computer files, and stated that they were contributing to the computer’s problems. The technician her Burton to download iYogi’s “diagnostic software,” which displayed a “Dashboard” indicating Burton’s computer “possessed a large amount of ‘junk files’ and ‘Registry errors,’” along with a warning in red typeface that her computer’s “System State” was “Critical.” The technician informed Burton that her computer was at serious risk, damaged, and would likely crash if she did not purchase iYogi’s services to repair her computer.
 
Burton alleged that iYogi technicians operate using scripts intended to trick customers with little technical expertise, like her, into believing that iYogi technicians are performing assessments and identifying problems. In fact, she alleged, no credible diagnostic testing of her, or any other customer’s, computer was actually conducted. Virtually every potential customer will receive a warning that “junk files” are harming their computers. The same “errors” were allegedly found on a brand new computer.
 
But for these misrepresentations, Burton alleged, she wouldn’t have bought a one-year “iYogi Gold Subscription” for $99.99. Even after subscribing, her computer allegedly continued to malfunction as it had before iYogi performed services. She sued for fraudulent inducement and unjust enrichment.
 
The court refused to dismiss the complaint based on a claim that the contract limited plaintiff’s time to sue to one year and precluded an unjust enrichment claim, even though the court found it implausible that she wasn’t required to accept terms of use before receiving iYogi’s services, because “‘click-wrap” contracts are standard in Internet-based sales and service provision.”
 
She also stated a claim for fraudulent inducement.  She adequately alleged false representations by the technician: the software is allegedly not capable of accurately diagnosing her or other customers’ computer problems, and iYogi services did not in fact fix her computer, which continued to malfunction. She specifically alleged that the “junk files” and “Registry errors” that the iYogi technician and software identified are found on virtually every computer, including a new computer, and are not necessarily harmful, and that no credible test was performed to determine whether they were actually causing the problems on her computer She further alleged that iYogi technicians follow a script that “invariably report[s] that potential customers’ computers are in dire condition” regardless of the actual condition of their computers. iYogi claimed that the statements couldn’t be false because she made similar statements.  But she admitted that there was a problem with her computer and alleged that iYogi misrepresented the source and severity of the problems and iYogi’s ability to fix them to induce her into buying iYogi’s services. “Just as a medical patient’s complaint of arm pain differs from a doctor’s x-ray analysis of a fractured limb, so too does a customer’s complaint of computer trouble differ from a technical ‘diagnosis’ of where and how there is a malfunction.”
 
Nor were the statements puffery.  Although opinions are generally not actionable, “[t]he expression of an opinion or prediction which the declarant does not himself believe is a false statement of fact.” Moreover, “where one party [has] superior knowledge, the expression of an opinion implies that the declarant knows facts which support that opinion and that he knows nothing which contradicts the statement.” Here, the court concluded, whether iYogi provided the services it claimed to and whether those accurately identify and fix customers’ problems could be proven true or false. Moreover, if the allegations were true, then iYogi was presenting statements about customers’ computers as fact based on expert assessment.
 
iYogi argued that Burton failed to allege that the technician didn’t actually believe the statements.  But she alleged that iYogi technicians are trained to use scripted dialogue. “Even if an individual iYogi representative believed the diagnostic testing was accurate, that would not absolve iYogi, the Defendant, of liability for designing the misleading software and scripts and training its employees to use them.”
 
Burton also alleged justifiable reliance by consumers of average technical knowledge. And she sufficiently alleged scienter, which can be done either “(a) by alleging facts to show defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” The allegations that iYogi designed its “diagnostic software” and scripts knowing and intending that virtually every customer, including Plaintiff, would believe they had serious computer problems and be induced into buying iYogi services constitued “sufficient circumstantial evidence to warrant a strong inference of fraudulent intent.”
 
Burton also stated a claim for unjust enrichment, even though iYogi argued that the claim was precluded because there was a valid and enforceable contract covering the subject matter of the claim.  But there was a dispute of fact as to whether there was a valid and enforceable contract here. And even if there were a contract, parties may plead in the alternative.
http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Posted in consumer protection, http://schemas.google.com/blogger/2008/kind#post | Leave a comment