Here, you can browse and annotate the proposed settlement, section-by-section. … In addition, you can:

• Study our reading room of lawsuit documents
• Join the conversation in our forums
• Draft an amicus brief to the court on the wiki

This is a potentially exciting venture on two fronts. First, it may foster dialogue about the fiendishly complex settlement, which could have a huge impact on the shape of copyright law and the public domain for years to come. Because it is so complicated and doesn’t include much flash (and perhaps because so much attention is going to health care, climate change, Jon & Kate, and other pressing issues of the day), the settlement has not been as widely debated as it should be. Second, it will be another experiment in using the tools of the interactive internet to promote true civic engagement and debate.

But whether it will work depends in large part on whether people participate, so go check it out. The links posted on the site’s Introduction are a good place to start.

There are plenty of sites in the world that aim to serve as repositories for legal scholarship. Some of them are run by particular law schools and serve to advertise scholarship produced by that institution’s faculty. Others, like SSRN, aggregate scholarship from a variety of sources. Wikisource differs from all of them in that its mission is broader: Wikisource doesn’t want to be a scholarly archive, it wants to be a library. The very breadth and generality of that objective, however, gives Wikisource some advantages as an open-access repository that I don’t think have been adequately explored elsewhere.

To illustrate the point, I put my recent piece on the DMCA up on Wikisource.  Here it is: Fair Circumvention, 74 Brook. L. Rev. 1 (2008). The Wikisource version, I think, improves in a number of interesting ways over the PDF version available at SSRN.

• It includes the full text of the article, searchable, indexable, and cut-and-pasteable, on a single web page. All of which makes the article more useable and easier to find by people (including legal generalists, who might not be acquainted with SSRN) who are doing research in this area. The text is indexed by Google.
• Wikilinks to primary source materials make it easy to verify the research. If I have mischaracterized, say, the (in)famous Universal City Studios v. Reimerdes DeCSS case, you can find out easily, because Reimerdes is also on Wikisource, just a click away. Most of the statutes cited in the piece are available, too. As more primary source authorities are added to the site, the number of links from the article can also grow. Those primary source materials would be excluded from a site that aspired only to archive research; their easy accessibility on Wikisource, in contrast, makes the research better.
• Easy authentication and pinpoint citation because the original page scans from the published version are preserved alongside the the digitized text, just a click away using the page number links that appear in the left-hand margin of the site.   (The page numbers are anchors, too, making it easy to create external links that point directly to a particular page of the article—for example, here’s p. 5).

Doing it this way entails a little extra effort, although as I tried to illustrate during my CALI talk, a certain amount of that effort can be crowdsourced. There is also a legal issue involved in ensuring that the applicable license permits the work to be hosted on Wikisource. Still, as a proof of concept, I think using Wikisource as a legal scholarship repository holds some interesting possibilities. Would be happy to hear any feedback.

UPDATE: Peter Suber points out that some open-access journals in the field of medicine are already experimenting with offering wiki versions of their articles alongside the published PDFs. An idea whose time has come for legal scholarship as well? Perhaps one of the OALP journals should experiment with this.

UPDATE #2: Thanks for the shout-outs from All the Modern Things and Et Seq.

I made a few points that I’ll share here. First, I think that Internet filtering has had three epochs:

1. Filtering 1.0: filtering is technically impossible (Gilmore and the cyber-exceptionalists / cyber-libertarians)
2. Filtering 2.0: filtering is possible, but only done by bad actors / authoritarian states (China, Iran, Saudi Arabia, etc.)
3. Filtering 3.0: filtering becomes widespread, including in Western democracies, and we face hard questions about how to assess the practice’s legitimacy

Second, Australia is the beta for Filtering 3.0. The country is having useful, vehement disagreements over how filtering is implemented (what method is used? who pays? what trade-off in performance is acceptable?) and what gets blocked (who decides? why is certain content prohibited? how can one challenge censorship decisions?). The Rudd government, via Senator Conroy, seems to be backing down on two fronts – specifying that only Refused Classification (RC) material will be blocked in a mandatory fashion, and that a “voluntary” industry code to which all ISPs adhere could substitute for legislation – but a requirement to filter is still a government objective.

Finally, there’s a persistent myth that the U.S. is a filtering-free zone. I think this derives because what we block seems natural / inevitable / invisible. Google has to remove certain search results that link to infringing content to stay within the safe harbor of the Digital Millennium Copyright Act. This is like the dog that didn’t bark in Sherlock Holmes: how do you know what you’re missing? (To Google’s credit, the site includes notification that it has filtered results, and links to Chilling Effects so you can read the DMCA take-down notice.) Linking to a site that you know posts DeCSS is unlawful. Napster had to institute filtering to satisfy the district court in California (which it failed to do). Americans think that prohibiting copyright infringement just makes sense – but Saudi Arabia thinks this about porn, and France for hate speech, and Australia for euthanasia. We aren’t different, and that’s what makes Filtering 3.0 hard.

I’ve got an initial proposal for how to approach Filtering 3.0 (my paper Cybersieves, coming out this year in the Duke Law Journal) that looks at process rather than the content that’s banned. Filtering is coming: to Australia, to Germany, to Minnesota. Gilmore’s optimism no longer applies. We need to think about what comes next.

[Update 1:00PM: The panel is in room 310.]

As Wilt Chamberlain said, nobody roots for Goliath. What caught me, though, was how Porter frames the root problem:

Google is in the final analysis a parasite that creates nothing, merely offering little aggregation, lists and the ordering of information generated by people who have invested their capital, skill and time. On the back of the labour of others it makes vast advertising revenues…

Google’s stealing, then, deprives content creators of the sweat of their labors. They’re reaping where they have not sown. Intuitively, this appeals. What’s fun for me is that I think it’s ultimately a daft argument.This contention picks up labor-desert theory, most commonly associated with philosopher John Locke. For Locke, people possess only their body and their labor. Once we use our labor to create something new from the common store of ideas, concepts, and facts, we deserve a property right in that new thing; to do otherwise would be to harm us. Newspaper reporters create stories from the world’s facts and thus we might want to reward that labor. So far, so good.

But labor-desert theory raises a hard question: how much of the new thing really derives from your labor? Reporters depend on facts, quotes, standard journalistic constructs and techniques… their labor is a necessary component, but it’s not the sole reason for a story’s value. Put it this way: imagine I lease a Chevy Impala. I use it to start a thriving, highly profitable pet supply delivery business. Without the Chevy, I’d be taking the subway or biking – not good options when carrying kibble. But you wouldn’t see autoworkers or Hertz employees lined up outside my apartment asking for a cut of the profits. How is the Google situation different?

My sense is that what’s really at work is what Margaret Radin put forth as “personhood”: people feel less possessive about a car they’ve created than a story they’ve written. (Why is that? Building a car is much harder.) The story is mine; I have a right to determine how it’s used, and to receive benefits that flow from that use. Plus, creators focus on what lawyers call “but-for” causation: but for my labor, this story wouldn’t exist. Hence, my control over it deprives no one. But there are lots of reporters, and they often file very similar stories. There are even citizen journalists and bloggers who can do (some of) the same work. So, “but-for” doesn’t really work.

At base, I don’t think this is about copyright, or “hot news” misappropriation, or IP at all. It’s psychological. Content industries are in massive flux that’s painful for those who work in them. The old intermediaries (record labels, movie studios, the New York Times editorial staff) are in retreat, and new ones (Google, iTunes, Digg) are on the rise. The invective derives from dislocation, from uncertainty, and from resistance to change. But things will be OK. After all, the MPAA’s Jack Valenti once compared the VCR to the Boston Strangler, and the little boxes turned out to be a boon for the movies.

Steal away!

Slashdot features an item about a takedown notice from the IOC demanding that YouTube remove video of a Tibet-related protest at the Chinese Consulate in New York. (The video is still available on Vimeo.) The protesters projected images on the wall which apparently are the source of the IP claim. I can’t tell if the IOC’s claim is related to that video’s parodic “riffs on the Olympic logo of the five interlocking rings, turning them into handcuffs,” or on its use of footage from the opening ceremonies. Either way, the protesters (and whomever posted this video on YouTube) has a gold-plated fair use defense for any copyright (or trademark) claims.

Thanks to the notice-and-takedown regime under the Digital Millennium Copyright Act, however, YouTube does not have much choice in the matter. The now familiar and well-documented problem is that someone claiming IP rights can use that claim to effectively squelch criticism or dissent. I wish I were more surprised that the IOC uses the leverage of the DMCA for the purpose of silencing critical speech.

Yesterday, I posted a quick analysis of the new policy (using the methodology I propose in a new draft paper) undertaken by Sprint, Verizon, and Time Warner Cable at the behest of New York Attorney General Andrew Cuomo: they’ll voluntarily block child porn. As more details emerge, though, I’m more skeptical about the plan. First, I held off assessing how narrow this filtering system would be (does it successfully block child porn, and only child porn?), since technical details are sketchy. But if the latest reports are to be believed, I’m ready to make a call: completely overbroad. Time Warner is going to eliminate all newsgroups by the end of the month. So, to block child porn, we’ll wipe out TW subscribers’ ability to talk about SCUBA diving, radio astronomy in India, or support for people with bipolar disorder? I think this is a great candidate for addition to the paper as an approach to filtering that is not narrow. This is, in fact, complete overkill.

Will Verizon and Sprint follow suit? Blogger Lauren Weinstein and News.com reporter Declan McCullagh say Verizon will cut off some groups (VZ is being unspecific), and Sprint will kill off all alt.* groups (so much for the 61 Google lists as pet-related). Both moves look unnecessarily broad.

The strange part is that Weinstein and McCullagh suggest state the ISPs will scour their servers for sites hosting child porn, but won’t engage in any filtering. (This NetworkWorld article implies the same thing; McCullagh’s article confirms it for VZ and TWC.) This makes sense for one reason: cost. Filtering effectively is going to be expensive. Eliminating Usenet feeds, and looking through their files (doubtless using the hash database) for unlawful images is relatively cheap. So, there’s both more (overblocking) and less (actual Web filtering) here than it first appears. It sounds like the initial press releases were a bit overhyped, and that AG Cuomo got 1) $1M+ in funding, 2) elimination of a lot of Usenet, and 3) a search of their servers from the ISPs. That’ll help, but not much.

As for the French: the government and ISPs have agreed to block access to child porn, terrorism, and racial hatred sites. (Good luck on #2: defining terrorism is exceptionally difficult. It’s hard even to arrive at a theoretical definition, let alone to decide between guerrilla movements, violent religious fundamentalist groups, and state-sponsored insurgents.) I suggested that this public-private partnership model is common for Western democracies, with a new “iron triangle” of ISPs, NGO watchdogs, and state regulators quietly agreeing on filtering via private or informal agreements. (The AP cites Britain, Sweden, Denmark, Norway, New Zealand, and Canada as employing similar structures.) The French system follows this model. According to a speech by Interior Minister Michele Alliot-Marie, French users will be able to flag certain sites as falling into one of these categories, and they’ll be compiled into a block list supplied to French ISPs. (This is a very interesting idea, used by open source projects such as the Open Directory Project and OpenDNS, in categorizing sites via volunteers who rate them. It reduces the workload for the government and ISPs, and can theoretically empower users to participate in decisionmaking.)

Interesting times for Internet filtering.

Three quick observations: first, and most troubling, is that the collaborative effort (led by the Center for Democracy & Technology) to develop a code of conduct for tech companies operating in repressive countries has so far produced… a press release. And the tensions are showing: Human Rights Watch, a participant in the effort, criticized its pace (as did Durbin), noting that there’s significant opposition to independent monitoring for compliance with the code. Second, the Cisco slide looks bad, but it really just confirms what we already know – China uses the company’s tech for filtering, and Cisco’s employees are trying to drum up additional business based on that. (I used to work for a tech company, and if you know the client has certain key “business objectives,” you put those in your presentation – especially if it’s an internal one that tells you how to pitch the client.) Third, the business objective angle highlights a tough problem: what limits should tech companies observe in places like China, Burma, or Vietnam? (The companies themselves are a bit hypocritical: they want to pass the buck to the government to regulate their operations abroad – in theory – so they can avoid hard policy choices, but don’t really want any constraints in practice.) I’m slowly writing on exactly this topic…

First, Roommates.com gets in trouble because it asks users to classify themselves via drop-down boxes: you’re forced to describe yourself by gender, sexual orientation, and whether you have children. Moreover, users offering housing space must disclose who else is living there by gender and orientation, and users seeking housing must disclose who they’re willing to live with on those criteria. As a former Web developer, I’m quite fond of drop-down boxes; they limit users’ choices so you can more readily perform sorting and classification on the back end. (It takes extra code to distinguish “Detroit” from “detroit”, and don’t get me started on spelling mistakes.) The Ninth Circuit says – correctly, in my view – that Roommates falls outside the CDA 230 safe harbor by forcing users to select among a series of choices that arguably violate the Fair Housing Act.

My only worry here is that the import of this finding may be tempered: more efficient coders than I could easily create a housing-match site that works around this. (Consider “checkboxes”: you let users pick from a set of non-mandatory, non-mutually-exclusive choices that you supply. Then, you allow other users to search on those choices. Thus, instead of forcing you to pick from the options “Gay,” “Lesbian,” “Straight,” or “Bisexual,” I give you the opportunity to select one or more of those to identify yourself. My site displays that choice(s) on your profile page. It’s a bit less efficient in coding, but it does sidestep the 9th Circuit’s objection (at least, I think it does). It’s fun to see legal code shape computer code, but the latter is far more malleable and responsive – it can adapt to work around legal restrictions in many cases. If one thinks that how Roommates.com matches applicants with housing is problematic, then the availability of an easy technical workaround seems to be worrisome.

Second, there’s a neat fight over statutory interpretation – specifically, the word “develop” in 230(f)(3). (In short, you’re an “information content provider” if you are entirely or partly responsible for the “creation or development” of information on a site; providers of an “interactive computer service” can’t be treated as the publishers or speakers of information provided by a different ICP.) The majority defines “development,” which would cause Roommates or other search providers to fall out of the safe harbor, as “materially contributing to [the content's] alleged unlawfulness.” (at 3462) The dissent, advancing an alternative definition, looks to the dictionary, and finds the meaning as “gradual advance or growth through progressive changes.” (at 3491)

Not so, says the majority! (see FN22) Indeed, the same dictionary gives another, alternative definition: “making usable or available.” (at 3463) The effect of this fencing – dueling dictionaries – is to define the scope not only of a word, but of the Section 230 immunity from liability. Non-lawyers may think it’s a bit ridiculous to figure out how much Congress wanted to change the scope of, say, defamation law on-line (see dissent at 3477) by referring to a standard dictionary, but it’s totally standard practice for lawyers. The degree to which this invites strategic behavior by a reviewing court is manifest in this particular scuffle.

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.” (Source)

I’m not troubled by the decision at all on initial read – it seems to narrow CDA 230 a bit, towards passive sites – but I want to think a little about how it’ll affect sites that try to shape or tailor user content, or to provide metadata. More soon.