info.law @ NYU

This Wednesday, November 1st, ILISA is hosting its very first panel discussion on Careers in Technology and the Law, in Vanderbilt 206 at 6PM. It promises to be an enlightening experience for all involved, and of course food will be provided, because we take care our own (and we’re not picky about who that covers). Our most excellent speakers will be:

Carole Aciman
Ms. Aciman is a transactional intellectual property partner in Greenberg Traurig’s Technology, Media and Telecommunications Department, and focuses her practice on media, technology, licensing, and outsourcing transactions. She also provides advice to businesses with global web activities on the US and international aspects of doing business online. Her media practice includes entertainment and media transactions for the television, motion picture and wireless industries, as well as transactions involving multimedia/convergence and other technologies. She is a frequent speaker, author and writer on a wide range of outsourcing, computer, electronic commerce and entertainment law topics and has taught E-Law as an Adjunct Assistant Professor at New York University’s School of Continuing and Professional Studies.

Ramsey Homsany
Mr. Homsany leads Google’s New York legal team, representing Google in intellectual property licensing and other commercial transactions, including negotiating new media agreements with global advertising agencies and Fortune 500 companies. He also advises Google on product development, technology strategy and emerging technology issues. He currently serves on several government and industry working groups in the areas of Internet policy and new media business issues and has lectured on technology transactions practice at national conferences and leading universities. Prior to joining Google, Mr. Homsany was an attorney in the Technology Transactions Group at Wilson Sonsini Goodrich & Rosati in Palo Alto, CA representing public and private companies.

Michael Mills
Mr. Mills, the Director of Professional Services & Systems for Davis Polk & Wardwell, has been called “the Bill Parcells of legal technology” and the “in-house equivalent of Vinton Cerf.” He is responsible for all of Davis Polk’s practice support technology, including knowledge management, practice management, client relationship management, intranet, extranet and internet services, and expert systems, as well as the firm’s libraries. While a partner at Mayer, Brown & Platt, he was founding chairman of that firm’s Technology Planning Committee and administrative partner for the New York office. He is a member of the Association for Computing Machinery, the American Association for Artificial Intelligence, the American Bar Association and the Association of the Bar of the City of New York. He is also vice-chairman of Pro Bono Net.

Gregory Pomerantz
Mr. Pomerantz is a 2002 graduate of the Law School, where he was a fellow of the Information Law Institute and studied the legal history of Unix operating systems. He is currently an associate at Cleary Gottlieb Steen & Hamilton, practicing in the area of private equity and IP transactions. He also serves as general counsel to Software in the Public Interest, a New York-based not-for-profit corporation which provides legal and administrative assistance to major free software projects including the Debian GNU/Linux distribution and PostgreSQL.

We hope you can join us for this great event, and if you have any questions about it, contact us at ilisa@ilistudents.org. See you there!

Debating Eldred v. Ashcroft and other terrible decisions

The next reading group will be Tuesday, October 24th, at 7:30pm in Furman 324. Will there be food? Yes! Will there be laughs? Yes! Will there be discussion of con law, info law, and the effect of those things on our shared culture? Yes!

Be there! Or be even squarer!

Readings are here: http://www.eldred.cc/eldredvashcroft.html

The main decision in the Eldred case, which is not that long, is the “required” reading. Check out the other things on that page if you’d like more, including a speech by Posner, an Objectivist account of copyright policy, etc.

Professor Volokh has publicized Lawtopic.com and asked people to blog about it and spread info around the law student community. It’s a pretty interesting idea. Professors and other legal scholars contribute ideas for legal essays that might be appropriate for students. In theory, people will post interesting and novel topics.

It’s a place I think I’ll be looking at more as I try to come up with a topic for the NYU Law A paper.

I ran across a rather strange ruling out of the United States Court of Appeals today. McCready v. eBay at first seems just kind of funny. An accused eBay crook, McCready, has filed multiple lawsuits against eBay and third parties in an apparent attempt to either win back his good name from slanderous feedbacks on eBay or further disgrace himself with frivolous, and potentially sanctionable, “abuse of process”.

The Court really lays onto Mr. McCready, and from what they describe, he might even have earned it. The court, however, treats McCready’s claims against eBay under the Fair Credit Reporting Act somewhat flippantly.

The FCRA protect consumers from agencies that “regularly engage[] in … the practice of assembling or evaluating consumer credit information or other information on consumers for the purposes of furnishing consumer reports to third parties” 15 U.S.C. 1681(a)(f). McCready claimed that the eBay Feedback Forum was a “consumer report” for the purposes of the act.

This doesn’t seem crazy to me. Mob judgemental behavior on the Internet is getting out of hand. Cellphone pictures of a subway pervert start off reasonably, hounding someone who stole your cellphone seems amusing, but flash mobs in China can attack and harass adultering men and women. As we start to place substantial value in peer generated social status quantified on the Internet, we’re going to need protections.
The court rejected Mr. McCready’s FCRA theory by ruling that the eBay feedback was not a “consumer report,” but their ruling has an odd twist. The court found that a consumer, under the FCRA “must, at minimum, be an identifiable person.” Since the eBay forum uses “users’ self-anointed ‘usernames’” the court found that the users were anonymous outside of eBay and thus not consumers under the Act.

This can’t make any sense. The identity that links a consumer report with a credit agency is an arbitrary set of strings, such as SSN and DOB. Granted, they’re globally identifying in a way that an eBay ID, in theory, is not. But simply because an identity is fractured into multiple spaces, each with a different recognition mechanism, shouldn’t imply that the same reputation values aren’t carried into each space.

Bad cases make bad law, they say. Hopefully courts will look into online rating systems somewhat more carefully when more legitimate claims arise.

Anyone seen any other cases like this?

Ed Felten has posted a really great technical overview on the Nuts and Bolts of Network Neutrality. The paper isn’t long, so hopefully lots of non-technical people will read it. The connection between technical router policy and larger network neutrality policy is very valuable.

I’m unclear on one point, though. Prof. Felten argues that the importance of quality of service guarantees, often a retort to proposals for network neutrality mandates, can be overemphasized. He suggests that QoS is inapplicable when the speed needed by the application is either greater than, or significantly less than, the speed of the network. Speed, in this context, seems to be both latency and bandwidth. Prof. Felten suggests that voice applications don’t really need QoS, because the speed of the network is great enough in comparison that the “valleys” of speed are never too severe.

The reality, though, is that we’ve never had an Internet with end-to-end QoS guarantees. While voice might not need QoS, other high-bandwidth interactive services might benefit highly from regularized speed. This kind intelligence just seems to make sense to further additional innovation.

Prof. Felten concludes that we need more time to determine what regulation would be appropriate. I think that’s right. The bills we’ve seen ignore the subtle technical points that he covers in today’s paper.

I see that Public Knowledge is blogging about moral rights and the CleanFlicks decision today.  Tim Schneider asked in a question to my first post on this whether stricter European copyright laws are justified out of moral rights. I’m not sure if that’s historically true, but a system that derives copyright from some moral or intrinsic right of the creator is bound to be far stricter than one that derives copyright as a type of monopoly subsidy in support of a social policy.

The language of copyright issues in the U.S. today sounds more like the a moral rights approach than the laws read. When politicians and content producers talk about Infringement as theft, they’ve transformed copyright infringement into a kind of malum in se, rather than a kind of malum prohibitum.

Thoughts?

Joe Grantz, on his blog (via Freedom to Tinker, has posted an interesting overview of the recent CleanFlicks decision. CleanFlicks, along with others, was producing less raunchy versions of popular movies that were then distributed on DVDs to home consumers. CleanFlicks purchased a legitimate DVD copy for every edited DVD they sent out in an effort to stay legit. Congress recently provided statutory protection to companies that manufactured machines that could do this just-in-time when provided with a skip list, but did not protect companies like CleanFlicks, something the court found significant. I thought the ruling was interesting, if only because it seems to represent the artist’s moral rights approach to copyright law, rather than the traditional U.S. utilitarian view. Moral rights, at least in civil law systems, can apparently a lot further than U.S. style copyright law. In this case, the similarity lies in an artist’s right to protect the integrity of his or her works. I’m not sure how the willingness of the directors to allow TV edits of their movies would impact this type of analysis, but that’s certainly an interesting question. The bigger issue may be in fair use analysis. Fair use makes sense, I think, when we think about socially valuable or important uses that copyright law would, hopefully unintentionally, suppress. I guess that could be considered a type of market failure correction in copyright law, when transaction costs or unreasonable actors need to be corrected. In the case of moral rights, however, the analysis is more rawly normative that socially utilitarian. If you truly believe that an artist has an inalienable moral right to preserve the integrity of his or her works, that may be very difficult to reconcile with socially valuable uses. Any thoughts on scholars who’ve looked into this subject?