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…

The article in question is about the Evening Standard, which is in the process of switching from cover price to free distribution, reaching what is referred to as a short-term deal for the use of the ‘bins’ in London railway stations (mainline stations like Waterloo, Euston and Liverpool Street, not Tube). These familiar structures are used for the Metro newspaper in the mornings, and will now contain free Standards (instead of the much-missed London Paper) in the evening. They’re apparently owned by Network Rail (which operates these stations) and have been the subject of a tendering process in the past, according to this 2006 Guardian article (written in the olden times before the now-abandoned thelondonpaper hit the streets). As far as I know, the Evening Standard has an existing separate deal for paper-sellers setting up inside Network Rail-owned stations, but presumably the bins are important as as part of the new model, they can simply stack piles of papers there and allow them to be picked up by customers as they pass through the stations.

There’s a lot of law here, too; one of the most interesting ECJ decisions is about a newspaper distribution network (Bronner v Mediaprint, which I have cited on a number of occasions, though there’s a lot more work that could be done on that topic), and the London bins (which were first the subject of an exclusive agreement with Associated Newspapers, who ran and run the Metro paper in London) have been the subject of an OFT investigation between 2003 and 2006 (see here). Indeed, the resolution of the OFT involvement was to allow others to bid for the ‘afternoon’ slot. I’d rather see a range of newspapers available from the bins, especially as the bins are in many cases provided under the auspices of public bodies (Transport for London) or quasi-public bodies (Network Rail). I appreciate that the distribution deals are useful revenue-generators, but there are plenty of opportunities in railway stations to monetise the eyeballs (or insert your own favourite marketing prhase), and there may well be a way to raise useful revenue while also facilitating a range of newspapers. That is, if the free newspapers survive! The other dimension, of course, is that the Standard is no longer owned by the same company that owns the London version of Metro; if it was, we’d probably be back to square one. Associated Newspapers continue to publish London Lite (without access to the station facilities), so there are interesting times ahead.

Benkler – This is a “story” – if you wanted competition as you moved from incumbents – you needed to allow to share their facilities, unbundle, etc – but the big question was what to do with cable. Would you have the same ‘open access’ approach? It certainly seemed like this was going to happen. But in the early years of the century, indications of a shift by the FCC from requiring this sort of competition on each wire (i.e. within cable) to competition between wires/modes (i.e. a cable connection v DSL). There are many policies that have been passed since then that need to be revised.

Do we need to look at infrastructure that is public? (municipal etc) Should we be focusing on user-owned infrastructure? (wireless mess, ‘create your own local loop’)? So you’ll have multiple pipelines – competition between genuine physical facilities?

Wu said that there are four issues :

1. Can service providers demand payment for access? The current position is that the customer pays the ISP and eBay pays the service provider but once you’re on, you’re on. Can an ISP apply fast lane / ‘payola’ / etc? In a telephony context, this is an ‘access fee’, which is a regulated price (i.e. long distance). Many of the proposals have some form of ban on charging.

2. What is ‘reasonable network management’? When can the carrier delay/block/”mess with” the connection between two parties for the purposes of managing bandwidth. Reads the FCC hearing at Harvard where unilateral approaches are not accepted in this domain.

3. If there is some sort of net neutrality norm, what is the form of this? Is it an ad hoc system whereby the FCC does something about things it doesn’t like? We are laying the groundwork for that right now. It would remain a concept that you’re not supposed to transgress. Hearings and threat, not rules and processes. This can be debated from the point of view of good administrative governance.

4. “Hollywood”. What side are the content industries on? In some ways, the studio is like eBay, in that they want to reach the users without difficulty. They don’t want to get engaged with another set of powerful gatekeepers. On the other hand, the idea of paying more for advantage, that’s the traditional way of doing things anyway. This year, there will be a struggle in the policy community for gaining the allegiance of this crowd…

Fisher – is mostly a consumer of the neutrality issue rather than an author. There seem to be six types of NN:

a – Content Neutrality
b – Application Neutrality
c – Sender Neutrality
d – Toll Free
e – Sustain Separation of the Layers of the Internet
f – Truth in Advertising

The argument then is allow discrimination vs curbing discrimination.

He now has a matrix of such on the screen but it’s moving far too fast to take down.

Opening for discussion now; hitting publish and, again as this is a parallel session, liveblogging the rest.

***

Benkler is critical of the 700MHz auction – there was an opportunity for genuine open access and it was missed. What the system is trying to do is to ensure that there are not too many changes.

Question – is there a need for prioritisation (first responders, telemedicine, etc) – Wu agrees, but suggests that private networks designed for specific purposes is the solution. This is already present through VPNs, to some extent. “The public internet should be kept a public place, as free from discrimination as possible”….there is an important issue over things like 911 but “don’t contaminate the public Internet”.

From the floor, Chris Marsden says that much of the practice is very little to do with the standard practices of regulators, it’s to do with things like privacy, spam, homeland security etc, and there’s very little communication between that and the traditional regulatory world.

In response to another question, Benkler ruminates on the idea of whether “cable” is different to “the Internet”. In response, Wu is drawing crazy clouds and arrows on the board, which I hope he’ll explain in a moment.

Susie Lindsay (who now works for Bell Canada, a very interesting player in the NN debate in Canada) talks about “good discrimination” (traffic shaping, etc). I think she accepts/acknowledges what Bell is doing, which has be the most straightforward statement of a complex issue. Full marks to her for explaining honestly and briefly the dilemna that they and others find themselves in. More coverage of this particular issue at Michael Geist’s blog.

Very provocative statement by Wu – compare with employment law, having competition alone does not mean that you need to abandon non-discrimination law in employment. And now he’s going to have a little go at the Chicago School.

This was a very, very enjoyable session, although I found the focus on the FCC and US law a little frustrating at times, as the issues here benefit not just from looking at international law (actions in one state have an impact in another, the enterprises are organised multinationally, does trade law count, etc) but also at comparative law. The NN debate will benefit from both.

This presentation : It’s about convergence, it’s different in Europe, it’s “politics not economics” and it’s not going away.

Convergence – but this isn’t new, the arguments have been seen in the 1950s (spectrum use), 1970s/80s (cable), 1990s (satellite – in particular Sky and football), 2000s (mobile) – and now Internet.

In the US – monopoly power (see Madison River / Vonage case); it’s a result of the Telecoms Act 1996 and the Trinko and BrandX decisions (which means that all networks are, for FCC purposes, ‘information services’ and therefore not common carriers). Should ‘common carriage’ be reintroduced? He mentioned the papers by Lemley & Lessig, Tim Wu’s arguments, the opposition (from techies, economists and lawyers), and the fun times at the FCC hearing in Harvard this year.

Europe is different, though, because of local loop unbundling, control of significant market power, and there is in fact a trend towards *more* regulation (e.g. roaming, reforms to the electronic communications directives). Also, the ‘content’ is different (in the US, it’s often “a commercial dispute hidden as a freedom (or fr’dom) argument”), whereas Europe has EPG regulation, ‘must carry’, etc. We even have the BBC iPlayer – the ‘death star’ for ADSL networks. What if it’s not VOIP that’s being blocked, but Eastenders? UK consumers are paying for broadband, licence fee, Sky subscription…

Japan, now, is an interesting example – net neutrality is in place, and there’s a privileged role for consumer protection in the legal framework; there are incentives to roll out high-speed (e.g. incumbent NT&T can do so without regulation for a ‘holiday’ period).

The lobbies are the networks (trying to protect investment, not to mention the need to ensure quality of service) vs the content providers (who don’t want to be charged). But the networks *are* actually blocking things like BitTorrent (under the headings of traffic management, antivirus,etc) while advertising unlimited access. And the content providers (like the BBC telling users to lobby their ISPs to switch on simulcasting!) are having a free ride, especially for video and P2P.

Also, the interaction between filtering and net neutrality, which has lots of unforseen possible consequences. And there are issues with competition law, and what of BT which has a dominant position?

Chris also spoke about Phorm, a very interesting yet terrifying ‘adware’ system at the ISP level (“Google on steroids, or Big Brother incarnate”) (couple of links here) – is it even legal? He wondered, though, if Phorm is the response to net neutrality, i.e. if the telco can’t make money through NN, can they make it through something like Phorm?

We also heard a little about ‘end to end’ and other such pronouncements; how much innovation happens “at the edge” in reality? And a related question is on what basis filtering can actually be allowed…

The conclusion looked at DRM, privacy, blocking, hate speech and even the AVMS Directive. The legal provisions, aside from the directive, include the electronic communicaitons directive, the IS Security Framework Agreement, the E-Commerce Directive and more – which taken together mean greater intervention by ISPs in what goes through its network. The regulators are passing the buck – we are going in circles. “They’re all a bunch of tubes”.