Recommended reading, 7-13 February 2013

News, blog posts, etc

European Commission, ‘EU Cybersecurity plan to protect open internet and online freedom and opportunity‘ (press release, 7 February 2013).  Marking the release of a new strategy and proposed Directive (download both of them here) on this topic.  The interesting bit about this is how it’s framed – legally speaking it’s an internal market measure (not crime!); strategically, it follows up on the many comments about ‘trust’ in the Digital Agenda documents of the last couple of years.  While most of the operative provisions of the Directive are about national authorities for infrastructure and cooperation between them, there is an interesting (proposed) obligation for member states to regulate ‘market operators’ in terms of security and also notification of breaches.  (Incidentally, is this category of ‘market operator’ a new one?  It has two sub-categories – information society services ‘which enable the provision of other’ ISSes (examples in an Annex are cloud computing platforms, app stores, search engines, social networks), and operators of certain types of critical infrastructure.  Art 14 doesn’t apply, in essence, to telephone/mobile/broadband providers, because the electronic communications directives already occupy the field.  (It also doesn’t apply to certain players in the much-maligned electronic signatures field – although I read that exclusion as being broader than those entities contemplated in the 1999 Directive).  (The ‘open internet’ etc language of the strategy and press release is slightly overstated, I think).

John Brodkin, ‘Wi-Fi “as free as air”—the totally false story that refuses to die‘ (Ars Technica 8 February 2013). This is most curious. The (interesting and potentially significant) work of the FCC on what to do with UHF ‘white spaces’ – spectrum formerly used or left as a buffer for TV broadcasting but becoming available for other uses – has been of interest in IT law for some years now.  Then seemingly from nowhere, a normal development in the regulatory process became the basis for an article about free wifi.  This is not to say that white spaces and Internet access are unconnected; clearly, it’s one of the reasons that people beyond spectrum gurus talk about it.  (I wrote about it in passing in this 2009 article, in section 5.5).  But the licensing process does not deliver a free service by any means (even if, as is being discussed, the regulatory model would not include a license fee for spectrum use).  Nor has anything particularly interesting happened in recent weeks – as Brodkin’s deconstruction points out, the interesting stuff either happened a few years ago (when the opening up started) or will happen in the future (if new services are launched).

Simon Fodden, ‘Edwin Mellen Press’s Curious Case‘ (Slaw 10 February 2013).  A comment, with plenty of links, on the developing (and worrying) story about the huge defamation claim (the applicant seeks the equivalent of over £2m!) against a librarian (who wrote some quite critical things about a publisher, informed by his knowledge of the field) and his university employer.  I would certainly not have anything to do with this publisher as a result of its actions in this case (whatever about the underlying allegations themselves!).

Alexander Hanff, ‘The murky world of privacy advocacy‘ (10 February 2013). A new blog and a rollicking start, with a detailed analysis of corporate funding for tech-related NGOs. It’s about time. Given the field I’m working in, I’ve seen quite a few of these organisations (and indeed, their close cousins, the consultant reinventing themselves as an NGO/think-tank with no membership, no membership and often nothing to add). I think the post by Hanff demonstrates a very honest attempt to understand the weaknesses of the lobbying system and reminds us all to think about the motives as well as the contents of interventions.

Virtual currency and virtual property revisited‘ (Technollama 11 February 2013). An overview of recent developments on virtual £££ and IP and other things, prompted by a piece in Forbes which mostly about virtual property). See also this nice PBS video on Bitcoin, etc.

Academic articles

Nina Mendelson, ‘Should Mass Comments Count?’ (2012) 2 Michigan Journal of Environmental & Administrative Law 173 (SSRN). This is a response to the author’s earlier work (and a debate about it), but reading the article covers much of what before quite neatly.  The issue is a controversial one – how, when public consultation happens, to deal with different forms of participation (particularly one-click or template methods).

Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34′ (2012) 12 Human Rights Law Review 627-654 (£, link).  The author of this article was the rapporteur work on this General Comment and discusses the comment as well as some of the cases and stories it relied upon.  Watch out for the interesting discussion of article 19 and emerging technology, too.

E Tarantino, ‘A simple model of vertical search engines foreclosure’ (2013) 37 Telecommunications Policy 1 (£, link).  The new volume of this journal (mix of law, business, economics, etc) starts off with one of the topics of the year, competition law and search engines.

Artificial intelligence, competition – Monday plugging

(1) Supported by CREATe, here’s a fascinating workshop on artificial intelligence and the law, organised by my Edinburgh colleague Prof. Burkhard Schafer:

Ever since Larry Lessig’s proposal to understand “Digital Rights Management” as a form of regulation through code, the field of copyright in the digital economy has opened up a new field of research questions for Artificial Intelligence and Law. How can we represent in more intelligent and semantically richer ways legal concepts that ensure that all, and only, lawful use can be made of digital objects such as film clips or music tunes? How can Information Retrieval support e-discovery in IP litigation? How can we support through technology creators and digital businesses to manage their IP rights, or to use third party material in a law-compliant way? These are just a few of the questions that offer new and exciting applications for artificial intelligence in a legal context.

The call for papers closes this week, so do get in touch; the workshop itself is in December.  All of the details are available here.

(2) My former colleagues at the ESRC Centre for Competition Policy have a good opportunity for someone about to complete a PhD or with one recently in the bag – a one-year postdoctoral fellowship at a leading interdisciplinary centre (law, economics, business, political science) for academic research on competition and regulation.  Even for someone who only scraped the surface of CCP issues during my time there, it was a very vibrant, provocative group to work with – and if your interests are within the Centre’s research programme, it would be a pretty great chance to immerse yourself in relevant academic activity:

The Centre is a focus of research into Competition and Regulation across a range of disciplines, and welcomes applications in the area of competition or regulation policy from candidates with a strong background in competition law, industrial economics, or Political Science related to competition policy or regulation. Post doctoral fellows are expected to contribute to the Centre’s research individually and to develop joint research with other Centre members.

 

Media pluralism – 23 May – London

My colleagues in the ESRC Centre for Competition Policy are all set for this week’s event on media plurality, taking place in Westminster Hall at 5pm on Wednesday 23rd May.  There are a very small number of places still available, so if you would like to attend, please contact Suzy Adcock and say that you saw this blog post.

The event is co-organised by the Commonwealth Broadcasting Association, and panel speakers include those from the print media (e.g. journalist and editor Peter Preston), from broadcasting (e.g. David Elstein), and from politics (e.g. Charles Clarke, former MP and Home Secretary).  It promises to be a very engaging and frank debate and I am looking forward to it.

TripAdvisor

I’ve written about this week’s two TripAdvisor stories (Conor Pope’s piece on an Irish hotel group in the Irish Times and the ASA’s ruling on TripAdvisor’s marketing claims) over on the blog of the Centre for Competition Policy. I talk about the legal status of reviews posted by businesses who claim to be consumers (which I wrote about on Lex Ferenda – was it really five years ago?), and the reason why the ASA found against TripAdvisor for what was a statement on its own website.

Read the full post here.

When We Talk About Gikii…

So.  As I said, I only managed to make it to the second day of the fifth edition of Gikii, but it was a very full day, and shows the strength of the concept (there is definitely an emerging Gikii aesthetic!) and the wide range of contributors.  I should say that my immediate impressions and various links are on my Twitter feed, and the tag gikii has lots of other views.  This post has some remarks on my own session, some shorter remarks on the session I chaired, and some even shorter remarks on the final session of the day.  Don’t forget that you can download most of the presentations from both days at this link.

Having arrived from Dublin the night before as part of a triangular journey (Stansted-Dublin, Dublin-Edinburgh, Edinburgh-Stansted), I was first up on Tuesday morning with my own presentation.  This time around, my topic was What We Talk About When We Talk About Google (or WWTAWWTAG as it is in my notes).  The idea for this presentation came from earlier (and as yet, incomplete) work on the Google Books case, and how it seemed to come at a time when Google’s treatment by politicians, NGOs and academics was in a state of flux.  Google is also involved in some of the most controversial media and technology policy issues on the table right now, everything from net neutrality to privacy.  So it seemed interesting to dig a little deeper. My presentation (which you can download here as PDF) was therefore an attempt to explore the question in the title in a number of different ways.  For example, I looked at the ways in which both courts and parliamentarians in the UK refer to Google – and compared that with a sample of news coverage, finding not just some differences (with the parliamentary discussion still focusing on Google as a general resource for search) but also some interesting internal differences within the media (in this sample, the Daily Mail / Mail on Sunday got very upset about Google Street View).  I also illustrated the different faces of Google through various parodies/cartoons produced by others, and talked about the various friends and allies that are found in Google’s public policy activities, and the result in the Viacom case.  I do hope to do some more detailed work on this, as it was more interesting (to me, at least) than I had thought.  Curiously, it also drew quite a lot of good laughs, with Ray Corrigan giving it a joint comedy award.  This is not my usual territory.  I don’t think my students would write ‘stand-up comedian’ on their feedback forms.

Luckily, the following presenter, Trevor Callaghan, had genuine claim to the comedy tag, with a discussion of Google and social networking.  It was a really through and unquestionably unprintable exploration of the topic, made more lively by the use of Prezi and diversions into broader issues of data, identity and privacy.  It’s really interesting how he was able to get a sense of what Facebook’s business and cultural models are, and how they differ from other players often grouped alongside them.  The final presentation in that morning session was another Gikii serial offender, Andrea Matwyshyn.  Her presentation looked at issues of authorised access, with a particular focus on the US Computer Fraud and Abuse Act (CFAA) and similar legislation.  Her key arguments were the divisions between criminal and civil issues (in particular, the role of contracts and terms of service), and she mentioned a number of key US decisions (such as the Lori Drew case and Register.com v Verio) and the problems stemming from then, including a pretty obvious circuit split (e.g. the difference between IAC v Citrin and LVRC v Brekka).  She questioned the purpose of the CFAA and other legislation and whether it was meeting its aims.

The second session had yours truly in the chair, and it included a range of papers on the broad theme of intellectual property:

  • Steven Hetcher, “Conceptual Art, Found Art, Ephemeral Art, and Non-Art: Challenges to Copyright’s Relevance“.  Steven’s talk (from a US point of view) considered the ‘discrimination’ against forms of contemporary art that, being ‘unfixed’, are not within the common concept of copyright law as based on fixation.  In some cases, the work is the process, with no fixed object … although if unfixed art is to be protected, does this raise questions of artistic merit as an alternative mechanism for delimiting the reach of copyright?  With a wide range of slides (including a Damien Hirst shark sighting), there was also time to talk about Christopher Lowry’s work as discussed in Satava v Lowry, a 2003 case.
  • Gaia Bernstein, ”Disseminating Technologies“.  This paper was an attempt to go beyond the rhetoric of ‘IP wars’ and to discuss the acceptance and dissemination of new technologies.  It builds on the author’s recently-publisehd work on innovation (e.g. here).  She traced the differences between approaches to technology in the cases of copyright and patent, and the interaction of both with competition.  She put forward an argument that the user’s role was not given the treatment it deserves, and subsequently pointed to a number of situations of market failures where (due to network effects or the importance of time) specific intervention was necessary.  Really interesting stuff, and bonus points for talking about Minitel.
  • Christopher Lever, ”Netizen Kane: The Death of Journalism, Artificial Intelligence & Fair Use/Dealing“. The third paper used some very creative metaphors and images that were both botanical and big-screen (Citizen Kane), with an introductory discussion of the future of newspapers and journalism and the relevance of fair use and fair dealing giving way to a critique of the failings of DRM and a thorough analysis of the work of Ozlem Uzuner on digital fingerprinting and unique expression.
  • Chamu Kappuswamy, “Dancing on thin ice – Discussions on traditional cultural expression (TCE) at WIPO”.  The final presentation in a very busy session.  Her presentation provoked a lively online and offline discussion on what constitutes TCE in a British or Scottish context, but also offered some valuable points on differences (even where in apparent agreement) between the approaches of UNESCO and WIPO and between traditional knowledge (often patent-related) and cultural expression (often copyright-related), and the links between international legal efforts regarding TCE, folklore, and intangible heritage.

The afternoon session included an even wider range of presentations. Simon Bradshaw & Hugh Hancock talked about (and created live before our very eyes) the prospect of interesting legal issues pertaining to machinima, suggesting that the ease with which this type of audiovisual work can be created will continue to be a fertile one for legal action and academic analysis (not least the prospect of issues around new provisions in the Crime & Policing Act 2009).  Ren Reynolds (with Melissa de Zwart, who wasn’t able to join us in person) talked about online games, statutory regulation of such in Korea, analogies (and case law) from physical sports like rugby, and the relationship between the rules of the game and other laws and rules, and the contract/license distinction.  The last presentations zoomed out and looked at  developments across disciplines: Abbe Brown (presentation here) reviewed the various issues, forces and actors in Internet governance and international cooperation (highlighting different approaches and parallel debates), while Michael Dizon (presentation here) presented a post-Lessig/(Andrew)Murray analysis of ‘the network is the law’.

Also, we had cake.  And that’s it about Gikii for this year.  Don’t forget to download the presentations