The Volokh Conspiracy

For those of you who might be in and around Philadelphia this coming Tuesday (Jan. 31), I’ll be debating with Justin Hughes of Cardozo Law School at a Temple Law School Federalist Society event about the recently introduced (and even-more-recently withdrawn) copyright legislation (SOPA and PIPA). More details about the event can be found here and here. It should be an interesting event; Justin and I have very, very different views about these bills — he was a consultant, I believe, to the House Committee that drew them up, and I think they’re the Devil’s handiwork — and I think there will be both heat and light shed on the issues (both of which are required of a good debate). Plus, I think this is an issue that cuts through a very interesting line through what might roughly be called the political “right” — between the property rights conservatives and the free-speech libertarians — so there are interesting meta-issues on display. We’re expecting a good crowd — there’s nothing like a day-long Wikipedia blackout to get folks interested in online copyright matters — and it should be a lively affair.

Well, that was interesting!

Wednesday’s day of protest marks, I believe, a profoundly important turning-point in the history of the Net and of its place in human society. Several months ago, in one of my many periodic rants about the dreadful, unconstitutional, and repellant features of the intellectual property laws introduced into this session of Congress (SOPA and Protect-IP), I wrote:

The IP bills that Congress now has before it . . . are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.

I co-authored (with Mark Lemley and Dave Levine) a “Law Professors’ Letter of Opposition,” and I’ve blogged about it a number of times before (as have others), . But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, although I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you’ll agree with me.

What’s most gratifying about the events of the last couple of days — and I assume that you don’t need me to point you to the Wikipedia blackout, the Google petition, etc. etc., and the avalanche of media coverage this generated — is not just that these awful bills now stand a much, much lower chance of passage than they did a week ago (though that’s very gratifying). (Chris Dodd, head of the MPAA and one of the prime backers of the bills, is quoted in today’s NY Times as being ready to sit down with the tech companies and talk about the best ways to fight online piracy – a sure sign that the copyright maximalists have pretty much raised the white flag, at least temporarily, in this battle).

And it’s gratifying, too, on a personal level, to have participated, in even a small way, in bringing these events to pass. I do think that our Law Profs’ Letter, released early in the game, helped draw attention to the issues involved and to galvanize the opposition; there were 60,000 or so downloads from scribd.com, a good deal more than I’m accustomed to, and our op-Eds at the Stanford Law Review and Huffington Post got lots of play as well.

But that’s not the most gratifying thing about these events, either. The most gratifying thing, to me, is that we helped push the Net to an inflection point that is, in a way, its only hope of survival. The Internet is a much more fragile thing than most people believe it to be, and if it is to thrive it will need a kind of civic engagement that we haven’t had – until now. About a year and a half ago I gave a keynote talk at a conference at Michigan State on “The Challenge(s) of Cyberlaw,” and I said the following:

Let me start with an observation the great Lon Fuller made many years ago, an observation I like so much I’ve put it somewhere in probably half the things I’ve ever published. Fuller wrote, at the end of a discussion of the future of international law:

“[L]ike many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, . . . When this has occurred – or rather as this occurs – the law can act as a kind of midwife; or, to change the [metaphor], the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow, and to grow properly. Our task is to make them want this. . . .”

What did he mean? And what does it have to do with what we’re doing? The tree can “realize its own capacity for perfection,” but only when “all concerned genuinely want it to grow properly,” and our task is “to make them want this.” ???

What it means, to me, is this: Our task, as lawyers and law professors and “experts” on these difficult questions, is not really to solve the many problems bedeviling “Internet law.” Rather, our task is to help others to think about those problems, and to galvanize them into doing so, to make want the tree, as it were, to grow properly. If the Internet and its law – whatever that is, and whomever is responsible for making it in its many forms – is to evolve sensibly (whatever we may mean by that), everyone with a stake in it needs to care about it, and to attend to it – to give a damn, and to set the wheels in motion whereby sensible law might – might – get made.

That happens, I’d suggest, when people start to think of themselves as “citizens” of this new place, this “imagined community.” Because that is what citizens do: they care – they have standing to care, a kind of entitlement to care – about events, especially legally significant events, transpiring in faraway places, because those events affect them as citizens of a common place. People may, of course, care about other events affecting others, those with whom they do not share the bond of citizenship – about floods in Pakistan, and war in Darfur, and repression in Iran – but they care about those things in a different way, a non-participatory way.

And the other thing that citizens do is they defend their place when it is threatened or under attack.

I think, in short, that our task is to somehow help people to think of themselves as “Netizens.” There – I’ve said it.

Like a lot of good ideas (and, I suppose, a lot of bad ones, too), this one will prove easy to ridicule, especially in its more ridiculous formulations. But we should resist the temptation. Just to be clear, here’s what I don’t mean by it. I don’t mean that we will or should cast off the shackles of this earthly existence, renounce our citizenship in the dinosaur-like nation-states we have been bequeathed, and begin building the New Jerusalem online. And I don’t mean that we should consider ourselves citizens of the Net in lieu of, or in contrast to, or in conflict with, our status as citizens of the United States (or France, or Brazil, or wherever).

That’s not what being a Netizen means. What it does mean is that we are all now members of a global community with a very specific, very particular shared interest in the health and well-being of this network, and that we should begin thinking and acting as such; that we all have a stake, along with all the other members of that community, equally, in what happens on and to that network, and that we have a right, and possibly even a duty, to find ways to participate in shaping and governing it so that it remains as vibrant and open as we want it to be (whatever we collectively think that means).

It’s a terrible label — “netizen” — but an important concept. If people don’t really believe they have an interest in this thing that we have built, then it is doomed. The converse, alas, isn’t true — but people giving a damn about the health of the Internet is a necessary (though not sufficient) condition for it to be healthy, going forward. And that’s what the events of this past week were about. All of a sudden, millions of people (check out some of the astonishing numbers hereh) took the Net seriously as a place that needed defending, and millions more tried to figure out why those first millions were so upset and what they were upset about. It does not, by itself, solve any problems — we might still get some terrible law down the road, on this issue or any one of a number of others, that will strangle this medium. But it sets the foundation for processes that can solve those problems, and that is a very, very good thing.

From Tyler Cowen, via James Grimmelmann: Soren Riis has a really fascinating essay on the rather astonishing recent developments in the world of computer chess [Part 1, Part 2, and Part 3) focusing on the the lifetime ban, recently handed down by the organizers of the World Computer Chess Championships, issued against the author of “Rybka,” a highly successful computer chess program, on the grounds that it is using “plagiarized” code.
It’s a fascinating story in its own right, but particularly for what it says about innovation and information; here’s the key figure, showing the improvements in computer chess play in the last two decades:

What happened in the mid-2000s that led to the sudden improvement in both the overall quality of computer and the rate at which new programs became seriously competitive? Riis writes:

What happened? Starting with the release of the first open-source Fruit in mid-2004, and continuing with the release of subsequent versions of Fruit, open-source engine Stockfish, and especially the release of reverse-engineered Rybka derivatives, highly detailed recipes for building strong, modern chess engines have been in the public domain. Fledgling chess programmers as well as programming veterans have not failed to take notice and the state of the art has advanced rapidly. As a result of this spread of knowledge new programs receive a tremendous performance boost and become “fast climbers”.

There’s a great deal more in the original essay about the nature of proprietary rights and the norms and customs in this particular community – well worth reading.

In Sweden, at least – where, according to this article in PC Magazine, the government has just officially recognized the “Church of Kopimism,” whose central tenet is that “information is holy and copying is a sacrament,” and whose sacred symbols are CTRL-C and CTRL-V.

I haven’t the faintest idea, of course, what it means, in Sweden, to be officially recognized as a religion, and what consequences flow from the determination; we live in a country where, obviously, there is no government body charged with determining what is, or is not, a “religion” (though courts, equally obviously, must from time to time make such a determination when looking at Free Exercise challenges to government action, or at Religious Freedom Restoration Act claims). But I wonder how a defendant in a file-sharing copyright action might fare by raising a RFRA defense ?

And while we’re on the subject of religious nonsense, the same article informs us that “scientists in the U.K. have recently discovered that Apple technologies actually provide some people with a religious experience . . . [finding that] Apple products stimulate the same parts of the brain as religious imagery does in people of faith.”

[Thanks to V. Steinbok for the pointer]

So here’s the most interesting thing I’ve come across in 2012**. . . As anyone who reads what I write here or elsewhere knows, I am obsessed with trying to understand Internet scale. I am convinced — and it was Jefferson, interestingly enough, who convinced me — that it is simply impossible to understand any questions about Internet law and policy without considering the extraordinary and unprecedented magnitude of Internet activity. The TCP/IP network had to solve a number of very profound scaling problems before it could perform the tasks it now performs — 700,000 Google searches, 11 million IM conversations, 1 million Facebook status updates, etc. etc., every minute of every day, more content posted to YouTube every month (probably, by now, every 3 weeks or so) than the combined output of all US television networks since their inception in the 1940s, etc. — and the idea that our legal system, and the 19th and 20th century tools it contains, can somehow magically “scale up” to work well on the Net is, frankly, laughable — though I try to keep a straight face when respected colleagues and friends propound it.

It’s why the current brouhaha about the “Stop Online Piracy Act” (SOPA) (see my previous posts here and here) is so important. The regulators have started to understand scale, and the solutions they’ve come up with — law enforcement via the domain name system — is positively chilling. If that’s the best we can do, we’re in trouble.

** Actually, it’s not the most interesting thing I’ve come across in 2012; the most interesting thing I’ve come across in 2012 is here.

[and thanks to J. Lewis for the pointer]

Jefferson’s Moose, out in paperback at last! With a (pretty damned interesting) new preface by Larry Lessig. Just want Aunt Betty and Uncle Mack have been waiting for!

[Though Oxford U Press' crack marketing team has made sure that the paperback isn't available yet at Amazon -- which, in any event, is selling the hardback at a price significantly lower than the paperback edition . . . and with free shipping!]

In light of the recent controversy (to which I’ve added my voice, here on VC and elsewhere) about Congress’ flirtation, in the Stop Online Piracy Act (SOPA) and similar bills, with various Internet-killing schemes at the behest of the intellectual property lobby, here comes the development of a Firefox extension, DeSopa 1.1, designed expressly to assist users who want to access websites whose URLs have been “blacked out” by SOPA-authorized court orders:

This program is a proof of concept that SOPA will not help prevent piracy. The program, implemented as a Firefox extension, simply contacts offshore domain name resolution services to obtain the IP address for any desired website, and accesses those websites directly via IP. Similar offshore resolution services will eventually maintain their own cache of websites, without blacklisting, in order to meet the demand created by SOPA.

It’s certainly an interesting concept, and illustrates one (though only one) of the objections to SOPA’s DNS-based enforcement scheme, viz. that it will be relatively easy for anyone with even a bit of technical expertise to circumvent the SOPA orders.

While I applaud the efforts, the developer (Tamar Rizk) should be aware of one of the provisions of SOPA (available here – see p. 20 for the provision quoted below), which provides that:

To ensure compliance with orders issued under this section, the Attorney General may bring an action for injunctive relief—
. . . (ii) against any entity that knowingly and willfully provides or offers to provide a product or service designed or marketed by such entity or by another in concert with such entity for the circumvention or bypassing of measures described in paragraph (2) and taken in response to a court order issued under this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to provide such product or service.

I’m not sure that I understand what “knowingly and willfully” means in this context, but Mr. Rizk might want to be cognizant that he might be running afoul of this provision in providing this extension.

The Op-Ed that Mark Lemley, Dave Levine, and I wrote about the egregious intellectual property bills now pending before Congress (SOPA, Protect-IP, and their ilk) was published today in the Stanford Law Review Online, and is available here for those who are interested (i.e., anyone who cares about the future of communication on the Internet).

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing "indecency" on the Net -- good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at Scribd.com, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.

[And if you're not aware of how serious a threat these bills are to the Internet's technical, commercial, and economic infrastructure, consider this. Under SOPA, intellectual property rights holders can proceed vigilante-style against any allegedly infringing foreign websites, without the need for any court hearing or judicial intervention or oversight whatsoever. SOPA establishes a "notice and take-down" scheme under which an IP rights holder need only notify banks, credit card companies, Internet advertisers, and Internet search engine operators, in writing, that he/she has a “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of the notice will then have 5 days to cease doing any business whatsoever with the specified site, taking all “technically feasible” steps to prevent it “from completing payment transactions” with customers, from “making advertisements available” to the site, and from “being served as a direct hypertext link” from within any site under the recipient’s control. And all of this based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If that's "law," I'm the Pope. Imagine if we had that in the non-virtual world:

A guy walks into a bank. He hands the teller a note. Sweat begins beading on the teller's forehead, and he takes the note to the bank VP. The note reads: "Jack Johnson's been stealing my hogs. Freeze his bank account." And the bank has five days to comply!!

It's not law - it's a kind of thuggery, and it will make the Net a much, much less vibrant place (and a teeny bit safer for copyright holders - if that) if it is enacted.

UPDATE: Marty Schwimmer, an experienced copyright and trademark attorney, sent me the following revision to my "guy walks into a bank" description of SOPA, which, in the interest of airing other views, I present below. Obviously, we disagree - I still believe a law permitting private parties to create liability for other persons based on nothing more than their say so and a "notice" is a form of lawlessness and thuggery - but here's Schwimmer's take on it:

I think that your note to the bank scans better, but I think that my version is a more accurate reflection of the motives of the IP holder and the circumstances under which they would attempt to utilize notice-and-takedown.

Here’s an interesting development: the ReDigi Used Digital Music Store. Application of copyright law’s “first sale doctrine” — which allows you to re-sell or give away copies that you have purchased of books, records, or other copyrighted works without the copyright holder’s permission (the doctrine that allows, for instance, used book stores or video rental stores to operate without payment of any additional royalties to the copyright holders) — to digital works has always been something of a puzzle. On the one hand, there’s a strong argument that the Copyright Act treats copies of works embodied in digital files the same way it treats copies of works embodied in print or on canvas; on the other hand, the fact that digital files are so preposterously easy to copy means that it’s awfully easy to circumvent the law by “re-selling” a digital file you’ve purchased while still retaining a copy for yourself – which is not within the protection of the first sale doctrine.

So along comes ReDigi. Their claim is that they’ll let you re-sell all that crappy music you downloaded during a drunken spree the other night — if you install their application on your computer, which will do a scan and certify that you haven’t kept any copies of the file around. [See the story in the NY Times here] Clever!! If you really have disposed of your copy of the file in question, it’s hard to see how the copyright holders can complain (though complain they will — book publishers still hate the 2d-hand bookstores . . .).

But there’s one thing I’m not clear about. Suppose I purchase a song at iTunes, stick a copy on my hard drive and a duplicate in my “locker” on the Apple iCloud server. Then, I resell the file at ReDigi — and once I delete it from my hard drive, the ReDigi application will never know that I’ve put a copy in the cloud, right? And if that’s the case, it’s really not a first-sale-doctrine-applicable transaction at all …

After many years of thinking about the problem, I’ve finally tried to distill what I know about the kinds of mistakes law students are particularly prone to make here: Exam-Taking Mistakes. It’s a handout for my Intro to IP students this semester, and it might be a little IP-specific to be terribly useful to others in other subject areas, but I think it might be of some general interest and utility. Feel free to share and redistribute —

So in response to my call for action — OK, OK, it probably would’ve happened anyway … — a large coalition of free speech and civil groups (Electronic Frontier Foundation, the Center for Democracy and Technology, Public Knowledge, Creative Commons, and others) have declared today to be “American Censorship Day” to protest the spate of bills now pending in Congress that would, as I’ve described elsewhere, set a truly dangerous precedent for US policy towards the Internet. There’s been something resembling an explosion of opposition to these bills — the conservative American Center for Law and Justice, Educause, an adhoc group of educators, a veritable Who’s Who of tech giants, including some companies you might have heard of —AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo, Zynga, a group of over 100 law professors (of which I’m a part), a bipartisan group of ten Congressmen, including Republican Presidential candidate Rep. Ron Paul and Democrat Rep. Zoe Lofgren, a coalition of Research Libraries, and many, many others have taken up the call to oppose this bill. Hearings begin today, and one can only hope that all this activity on the opposition side has made Congress a little more leery than it otherwise might have been to these censorship efforts. More power to them; let’s hope we can stop this very misguided and dangerous attempt to bend the Internet — our Internet, thank you very much — to the wishes and needs of the small community of IP rights holders.

[You can sign a petition against these bills here]

[UPDATE: A coalition of over 80 international and human rights organizations has also joined the chorus against SOPA and its companion bills]

One of the obvious dangers of the Internet Age is that we’ll be so distracted by everything going on around us – lots of it interesting, complicated, and even important (not to mention all the stuff that’s idiotic and unimportant and fundamentally uninteresting) — that we will fail to recognize the truly important stuff when it comes along.

The IP bills that Congress now has before it — the Senate version of which is known as PROTECT-IP, the House version as SOPA (Stop Online Piracy Act), sometimes known as the “E-Parasite” bill — are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.

I helped draft a Law Profs Letter in Opposition, and I’ve blogged about it a number of times before, as have others — good places to start if you are unfamiliar with the issue are the EFF site, the CDT site, and Techdirt. But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, though I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you’ll agree with me.

Here’s the Internet we get after this becomes law. The prosecutor walks into a courtroom with evidence that a website — or, more likely, 1000 websites — are “dedicated to infringing activities.” If he/she can persuade the judge of that, those websites vanish from the Net (through a complex wave of judicially-mandated action that has to be obeyed by ISPs, domain name registrars, etc.). No need for messy “adversary proceedings,” “due process,” or similar niceties. No need to bother with details like “is there a defense to the charge?” No need even for the prosecutor, under the statutory terms, to prove what a copyright plaintiff would have to prove if this were an ordinary infringement suit: i.e., that the website operator in question had “actual knowledge of specific infringing files” on the site in question. None of that.

It’s nice of Congress, I suppose, to provide that a neutral judge has to have seen the evidence and issued an order before sites can be eliminated; I’m sure there are plenty of folks in Congress and the US Attorney’s Office who would like to eliminate that last bit of messiness and administrative inconvenience, too. But there’s a good reason why, except in truly extraordinary circumstances where public health and safety are imminently threatened, we don’t throw people in jail, or deprive people of their livelihoods, or divest them of their property, whenever a prosecutor and a judge agree that those are just punishments.

And it’s a lot worse than even that. Get this: The House version makes it unlawful (and subjects you to this elimination order) if you:

“tak[e] deliberate actions to avoid confirming a high probability of the use of the [website] to carry out acts that constitute a violation of [the copyright or trademark statutes].”

Take a careful look at what’s going on here. If the prosecutors have been snooping around on my website to find infringing material and I take “deliberate steps” that prevent them from “confirming” that I have such material on the site — perhaps I have this pet peeve about government agents crawling around what I might regard as private space and I have tried to keep them out — then I have violated the statute even if I don’t actually have infringing material on the site. That is, it’s an independent violation of law to keep the prosecutors from “confirming” that you’re violating the law — all the prosecutor has to show, to make you vanish from the Net, is that you’ve somehow tried to keep the prosecutor off of your website!

It violates principles I’m tempted to call sacred — and all for what?? To protect the rights of our intellectual property owners — to make the world safe for our record companies and movie studios and publishing houses. Even if it was going to work, if the price for protecting those rights is that we have to abandon due process, and the notion that there are 2 sides to every story, and the notion that government agents do not have an inalienable right to know everything that I am doing on the Internet or anywhere else, that price is way too high.

And of course it’s not going to work. I guarantee that. It’s too easy to circumvent — anyone who understands the technology will agree with that. Sure, it will ensnare many unlawful actors. But at Internet scale, ensnaring some of the bad guys does not and cannot appreciably affect the conduct in question. Think of it this way: If there are 10 bad guys out there, and you’ve got a way to catch, say, 5 of them, that’s usually a pretty good scheme. We’ll have 5 fewer bad guys, and who knows, maybe just by probabilistic chance you’ll catch all 10; after all, if you’re 50 percent likely on average to catch each bad guy, it’s unlikely but by no means impossible that you’ll get ‘em all.

But if there are 10 million bad guys and you get rid of half of them, there are still 5 million bad guys out there. And, with intellectual property, 5 million bad guys can do precisely as much “damage” to your intellectual property as 10 million. If “stamping out copyright infringement” looks like a nightmarish game of whack-a-mole that you can’t possibly win – well, I’m sorry about that, but that’s just the way the world is, so get over it. There’s more — much more — peer-to-peer file-sharing going on today than in the heyday of Napster and Grokster. Deal with it – not by killing my Internet, thank you very much.

UPDATE: Anthony Falzone over at the Stanford Center for Information and Society points out a couple of places where people can speak out about this — see his posting at here, the petition at whitehouse.gov, and the EFF’s “Write Your Congressperson” page

UPDATE 2: Thanks to Ryan Radia and others, who pointed out that this posting inadvertently conflates the two bills (SOPA and Protect IP) now floating around in the House and Senate, respectively, regarding the due process problems raised by the bills. SOPA has corrected some of Protect IP’s more egregious due process problems — eliminating the express invitation for court’s to issue orders based on ex parte hearings. So in a sense my post is focusing on the worst aspects of each bill — which is fair enough, I think, given that we could well end up with the worst aspects of each. I also happen to think that as a practical matter, the due process concerns are still alive in SOPA, which allows courts to enter “TROs, preliminary injunctions, and permanent injunctions in accordance with Rule 65 of the FRCP” against domain names after an in rem proceeding; given that the actual defendants are very likely to be overseas and not subject to in personam jurisdiction, this is likely to lead to a profusion of suits in which no true adversary proceeding is really possible as a practical matter.

As some of you may know, the 2d Circuit heard argument yesterday in the Viacom v. YouTube case, a very important copyright case about which I’ve blogged a number of times before (and in which I co-authored an amicus brief submitted on behalf of some 45 law professors). Last week, I circulated an Op-Ed I wrote about the case to a few of the “national” papers (NY Times and WSJ); I thought (and still think) I was making a point, and a connection, that others have not made in all of the debate surrounding Internet copyright issues (and which are difficult to make in the context of an amicus brief), and I genuinely hope that the judges will indeed stop and consider the deep implications their decision in this case will have for the Internet, and for robust speech on the Internet, for years to come. I was hoping to catch the eye of one of the 2d Circuit judges, perhaps as he/she was sitting on the train heading in to the office, and I figured that the Times or the Journal was a good place to do that. But alas, the editors had other ideas … So I’ve printed it below; maybe, if some of the 2d Circuit judges or clerks are VC readers, they’ll pass it along …
*****************************

COPYRIGHT LAW, THE ARAB SPRING, AND THE INTERNET
DAVID G. POST

On October 18th, at the federal courthouse in downtown Manhattan, the US Court of Appeals will hear arguments in Viacom et al. v. YouTube, a case raising important questions about the application of U.S. copyright law on the Internet. Through a fascinating set of links and connections, the citizens of Bahrain, and Burma, and Syria, and . . . all have a very large stake in the outcome.

The case involves interpretation of a provision in the Digital Millennium Copyright Act (DMCA), enacted by Congress in 1998 to update the Copyright Act for the Information Age. The DMCA gave “providers of online services” an immunity from copyright infringement claims arising out of the activities of their users and subscribers. Website operators, for instance, would not be liable for their users’ infringements unless they themselves had “actual knowledge” of the infringing activity, or were at least “aware of facts and circumstances from which infringing activity is apparent.” At the same time, the statute imposed a condition: A website operator that receives a “take-down notice” from a copyright holder, identifying specific infringing content available at the site, must “respond expeditiously to remove, or disable access to” the infringing material, or it forfeits the immunity and becomes exposed to liability for the underlying infringment(s).

The scheme has been a resounding – perhaps even an astonishing – success. The “notice-and-takedown” process has proved to be an efficient and effective remedy for copyright holders seeking to eliminate, or at least mitigate, the damage from infringing conduct on the massive scale made possible by Internet technologies; hundreds of thousands, or perhaps even millions, of infringing works have been removed from the Internet through the notice-and-takedown process, without the need for costly and time-consuming litigation. At the same time, website operators have a simple and straightforward means of avoiding exposure to potentially astronomical liability under the Copyright Act’s (rather generous) damage provisions (which permit recovery of up to $150,000 for each infringed work).

The result? Extraordinary and unprecedented growth over the past decade in innovative Internet services and applications based entirely on participatory user expression – “social media,” “user-generated content,” or “Web 2.0” services and applications. Thousands of Internet businesses, many of which are now household names around the globe – Facebook, Twitter, YouTube, Blogger, Craigslist, Myspace, Tumblr, Flickr, and many, many others – share one common characteristic: they provide virtually no “content” of their own (copyrightable or otherwise), but instead provide a platform for users to exchange content with one another. Internet users have responded in truly breathtaking numbers: to take one of many examples, YouTube users upload more than 40 hours of video every minute of every day, amounting to more video content each month than the combined output of all three major U.S. television networks for the past 60 years.

It is impossible to imagine this development in the absence of the DMCA immunity, just as it is no coincidence that all of the websites listed in the preceding paragraph are based in the United States, where the immunity has been most firmly embedded in the law. Without an immunity from infringement claims, permitting users to freely exchange content with one another at this scale would be financial suicide; the liability exposure would amount to hundreds of millions of dollars in copyright damages each and every day. No rational investor would provide financing for such an operation, no bank would lend it money, no employee would stake even a small part of his/her future on it, without the reassurance provided by the DMCA immunity.

In short, without the DMCA immunity there would be no Facebook, no YouTube, no Twitter. And without Facebook, and YouTube, and Twitter, Hosni Mubarak is quite probably still the President of Egypt. It’s hard to prove that, of course – but most observers agree that these “social media” sites were part of the indispensable infrastructure allowing demonstrators in the “Arab Spring” revolutions to communicate with one another and to organize against rulers who were very skilled in the suppression of dissent and the disruption of communication among their citizens.

That’s what’s at stake in that courtroom. The entertainment industry plaintiffs in the case challenge the lower court’s decision (allowing YouTube to assert the immunity against all of the plaintiff’s infringement claims), and seek a ruling that would shift some of the burden of identifying and locating infringing material onto the website operators’ shoulders. The legal arguments involved are complex, with much technical hair-splitting on both sides. Along with 45 colleagues from the legal academy, I submitted an amicus brief to the court on YouTube’s side, arguing that the language, structure, and purpose of this statutory provision places that burden squarely on the copyright holders through the notice-and-takedown process. But however the court ultimately rules, its decision will go a long way towards determining the kind of Internet we have going forward, and one hopes that the judges recognize that, and that they keep Tahrir Square in mind as they deliberate about the shape of US copyright law.

Terry Hart, over on Copyhype, asks (and tries to answer) the question. According to Hart, nobody should; referring to his famous 1813 letter to Isaac MacPherson – a letter I (and many others) have called a “foundational document” for US intellectual property law — Hart writes:

[Jefferson's] points have little relevance to copyright. . . .While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidedly weak. . . . Given Jefferson’s virtually nonexistent role in influencing early US copyright law, his views should be given similar influence today.

Perhaps more importantly, we should be sure we understand what exactly his views were. There is no evidence that Jefferson had any sort of idealized notion of copyright that is inconsistent with modern copyright law; according to Hughes, “if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, ‘nuanced’ or perhaps ‘fluid.’” In this regard, a letter written in 1813 about patents isn’t very helpful.

I’ve got a different — and much more straightforward — answer to that question. Why should we care what Jefferson thought about copyright?

1. Because he’s Jefferson. I don’t know about you, but I care about — as in, I’d like to know more about — Jefferson’s views on damn near everything. Jefferson had more interesting thoughts about a more diverse range of subjects than any other person in history – I don’t even think there’s any serious competition on that front. So if I were interested in metalworking, I’d be interested to know what Jefferson thought about metalworking. If I were interested in gardening, I’d be interested to know what Jefferson thought about gardening. If I were . . . you get the idea. I’m interested in copyright. QED.

Now, Jefferson also probably had more nutty and bizarre thoughts about a more diverse range of subjects than any person in history. He was no prophet, and he was hardly infallible. Part of the fun, with Jefferson, is weeding out the crazy (we need a new Constitution every 19 years; mammoths are not extinct, but are in fact still roaming the Ohio forests) from the brilliant (um, that’s a long list …read my book). There’s a good deal of both, in the land of Jeffersoniana. But I’m not going to dismiss his ideas on anything until I know what they were and turn them over in my mind a bit.

2. Because he was smarter than you, or I, or anyone else currently commenting on intellectual property matters.

3. Because he was the first person in history to articulate, in one document (and a short one, at that) the foundational theory of intellectual property. Take that paragraph from the MacPherson letter that Hart quotes:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

Every intro text in IP law builds on this insight, though with different language. The objects of protection in IP law are (a) “non-exclusive” and (b) “non-rivalrous.” If anyone can point me to a better, more concise, or more insightful articulation of these central features the central dilemma of intellectual property, (or any articulation from a date earlier than 1813) I’d be really interested to see it.

4. Because if you understand the MacPherson letter — not “agree with it,” necessarily, but understand it — you will, perforce, understand a great deal about intellectual property law. [It ain't easy, by the way - it took me months, when I was writing my book, to actually figure out what the hell he was talking about; all that stuff about Oliver Evans' patent, and the construction of mills and "hopper boys," and the rest of it ... but they were months very well spent. I saved you the trouble of doing that, in the last chapter of my book - and these are the thanks I get!]

5. Because the MacPherson letter articulates — once again, astonishingly, (a) for the first time in history (as far as I can tell), and (b) better than anyone else has ever done subsequently — the notion that intellectual property law is “social law,” and not “natural law.” In my view, this is of the most profound importance. Here’s what I wrote in that speech that Hart refers to:

Protecting the freedom of expression was a task of the very highest order, in Jefferson’s view, because freedom of expression was a natural right, belonging to all. It is not given to us by law, nor is it derived from law. It is just in the “nature” of things, part of the way the world is constructed, derived not from the laws of Man but “the laws of Nature and of Nature’s God”: if you bring two human beings together, they will think, and they will attempt to communicate with one another about what they are thinking. They’ll do that without any law to help them. Humans communicate with one another not because the law enables them to do so; they communicate with one another because—well, because that’s the kind of beings we are, and that is what is in our nature. Law’s job is not to enable that communication, but to protect it when it does occur.

Copyright, though, is different. Copyright is what Jefferson called – and I believe he was the first person to point this out and make this distinction — “social law.” Copyright does not derive from the nature of things, from the way the world is, or is constructed, because it is in the nature of things that ideas move freely from one person to another. As he memorably put it in an 1813 letter that has become one of the foundational documents for intellectual property law in the US:
If nature has made any one thing less susceptible than all others of exclusive property, it is the “idea.” That ideas should freely spread from one to another over the globe seems to have been particularly and benevolently designed by nature. Ideas are like the air we breathe – incapable of confinement or of exclusive appropriation, and expansible over all space.

The only way to keep an idea to yourself is to . . . well, to keep it to yourself. The moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Once it gets loose, it is like the air we breathe, expansible over all space, incapable of confinement.

And, like fire, ideas don’t get “used up” as more people use them: The peculiar character of ideas is that no one possesses an idea the less because others possess more; he who receives an idea from me receives instruction himself without lessening mine, just as he who lights his candle at mine receives light without darkening me.

Copyright, in other words, doesn’t come from the laws of nature, it comes from the laws of man. It is not, like freedom of expression, antecedent to the law, but entirely dependent on it.

What difference does all this make? A great deal. It does not mean that we should get rid of copyright law –it’s not an anti-copyright (or pro-copyright) notion. But it does mean that copyright law should always serve free expression, and not vice versa. It means that when these two great forces come into conflict with one another – and as I said, they do with some frequency nowadays – we know where we stand. We have our thumb on the scales on the side of free speech; we need to be vigilant and alert to the circumstances where copyright law is not serving the cause of free expression, where it is interfering with our right to speak and communicate with one another, and we need to adjust it accordingly.

To put it bluntly: When we’re destroying books under the authority of copyright law, we not only need to be sure that they’re the right books; we need to be damned sure.

You may, or may not, agree with all that; many people don’t. But to care about intellectual property means at least to have a view on that, one way or the other — and confronting, and understanding, Jefferson’s views will help you do that.

That’s why we should care.

If any of you happen to find yourself in the neighborhood, I’m giving a talk this evening at The David Library of the American Revolution, in Washington Crossing, PA, entitled “The Continuing Saga of Thomas Jefferson and the Internet” – my favorite subject, as you know. It’s a little off-the-beaten-path, I realize, so here’s a text of the talk I’ll be delivering:

The Continuing Saga of Thomas Jefferson and the Internet
Talk Delivered at The David Library Lecture Series
on “The Unfinished Constitution” Washington Crossing PA

I want to cover a lot of ground tonight, and I want to make some connections that might be new to you. I want to focus on two parts of our Constitution, one familiar, one not-so-familiar. The familiar one is the provision prohibiting Congress from making any law “abridging the freedom of speech or of the press” – the First Amendment. The not-so-familiar one is the provision granting to Congress the power “to promote the Progress of Science” by “securing to Authors the exclusive Right to their Writings” – the so-called “Copyright Clause” of Article I Sec. 8.

The interplay between these two provisions – one a grant of power to the government, the other a prohibition on government’s use of power – is complicated, fascinating, and even profound.

To begin with, there is, and always must be, tension between them. It’s built in, as it were. Copyright law restricts free expression – indeed, that is the very point of copyright law. That’s its job. Copyright works by giving Authors certain exclusive rights – monopoly rights – to their expression, and it allows them to restrict the speech of others where that speech conflicts with those exclusive rights. I cannot reproduce today’s New York Times and distribute it to my friends or put it on my Facebook page – copyright restricts my freedom to speak. I cannot walk into a bar at Washington Crossing and sing my version of Bob Dylan’s Like a Rolling Stone (though I have a terrific cover version of the song . . .) – copyright restricts my freedom to speak. I cannot take the final scene from the Harry Potter motion picture and insert it into the video I’m making on the occasion of my parents’ 50th anniversary – copyright restricts my freedom to speak. I cannot translate Jonathan Franzen’s Freedom into Italian – copyright restricts my freedom to speak. If I do any of these things (without the permission of the copyright holder), I’m subject to legal sanction. That’s how copyright works – by restricting expression.

In fact, the Copyright Act specifically authorizes the seizure and destruction of books, DVDs, and the like – one of the very few places in our law that does so. US marshals can (and do) take books and throw them into the incinerator. Now, they only do so, mind you, on court order, after due process; I’m not suggesting that we live in some sort of barbaric, book-burning society. Not at all. But the fact remains that our copyright law permits the destruction, in certain circumstances, of books and newspapers and CDs and DVDs and . . . , and there is an obvious tension between such law and the freedom of speech protected by the 1st Amendment.

At the same time, of course, copyright law also encourages speech, and the production and dissemination of expressive communications – music and sculpture and news reporting and movies and all the rest. It is and was intended to be, as the Supreme Court put it recently, one of “the engines of free expression . . . by establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”

Like I said – it’s complicated.
Continue reading ‘Talk on Jefferson, Copyright Law, and the Net:’ »

I’ve blogged about this a couple of times before [here and here, for starters], but this is, alas, an issue that is not going away. The federal government appears to have decided that the best way to control unlawful conduct on the Net is to use the technique of “domain name seizure” – using some variant of the criminal forfeiture laws to proceed against alleged wrongdoers by persuading a court to “seize” their domain names — that is, to order their domain name registry or registrar to pull the name from the database so that, Internet-wide, a request for the website at that URL will come back empty.

It is a nightmarish scenario (literally), and we should all be up in arms about it. I’ve never paid much attention, to be candid, to the law of criminal forfeiture – but I’m going to start now. If you want a sense of what “law” looks like in a regime like this – where prosecutors can waltz into a judge’s chambers without the inconvenience of having a lawyer on the other side, or even a defendant that has notice that there’s a proceeding against him/her, and walk out with an order that makes your website vanish from the Internet; a regime under which you can wake up one morning and find that you have been “disappeared” without anyone having even given you any advance notice that you were in trouble with the law — take a look at some of the documents filed in the case of the Rojadirect.com website. [The case, in the Southern District of NY, is captioned "Puerto 80 Projects v. US," -- the facts are nicely summarized in this brief, and a collection of related documents can be found here]. Prof. Mark Lemley is representing the owner of the seized domains, which is encouraging – Lemley’s an outstanding lawyer, and the court will hear good arguments why the seizure process is both outrageous and unconstitutional. Lemley and I (along with Dave Levine) co-authored a Law Professors’ Letter in opposition to Senator Leahy’s “Protect-IP Act”, which would authorize these seizures in cases where the feds have evidence that a site is “dedicated to [copyright or trademark] infringing conduct.” The Letter (on which we collected over 100 signatories) is posted here.

As it happens, I reread Kafka’s “The Trial” this summer, in a wonderful and highly recommended new translation by Breon Mitchell. It turns out that it’s actually quite hilarious – as in laugh-out-loud funny. I recall reading once that Kafka used to read his stuff out loud for friends and that they’d all end up laughing hysterically – same for Chekhov — but I never really understood how that could be true until I read this version.

But if we reserve the adjective “Kafkaesque” for the truly dark side of the developments he describes – that dreamlike terror that comes from having sinister forces in the State apparatus focused on your destruction and having no way to find out why, or what you can do about it — I think a world in which prosecutors are routinely proceeding in this way merits use of the term.

Just putting in a plug for an upcoming one-day conference here at Temple Law School on October 22, organized by my colleague Nancy Knauer, on “Aging in the US: The Next Civil Rights Movement?” The goal of the Symposium, in the words of its organizers, “is to move the national conversation surrounding aging beyond the traditional elder law topics of estate planning, benefit eligibility, and health care financing and ask whether elder rights should be the next civil rights movement.” There will be a host of speakers and presenters, including Nina Kohn from Syracuse Law School and M.T. Connolly of Lifelong Justice, and it should be an interesting day.

Information regarding the conference and registration is available at www.law.temple.edu/aging.

Over the summer, I wrote a piece about the Supreme Court’s decision in the “violent videogames” case (Brown vs Entertainment Merchants Assn) for the forthcoming Cato 2011 Supreme Court Review. The Center for Constitutional Studies at Cato is having a kickoff event for the publication this coming Thursday (starting at 1030 AM), and I’ll be speaking there on the first panel about the Court’s evolving First Amendment jurisprudence.

VC’ers might be particularly interested in (though doubtlessly some will be angered or annoyed by) what I had to say about Justice Thomas’ thoroughly remarkable — though not in a good way — dissenting opinion in the case, one that, in my opinion at least, exposes the underlying flaws of the strict “originalist” position in constitutional law better than any other text:

Justice Thomas’ dissenting opinion expresses the hard-headed and uncompromising originalism for which he is well known:

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (slip op., at 25) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, “its meaning does not alter.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). “That which it meant when adopted, it means now.” Ibid. (internal quotation marks omitted). . . .

As originally understood, the First Amendment’s protection against laws “abridging the freedom of speech” did not extend to all speech. . . . In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. . . . The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

In support of this latter proposition—which, more or less, ends the constitutional inquiry for Justice Thomas—he relies, inter alia, on Wadsworth’s “The Well-Ordered Family” of 1712, Cotton Mather’s “A Family Well-Ordered” (1699), “The History of Genesis” (1708), Locke’s “Some Thoughts Concerning Education” (1692), Burgh’s “Thoughts on Education” (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed “absolute authority” over their children, and that “total parental control over children’s lives” was the governing societal norm—what then? The question in this case is not “do parents have absolute authority over their children?” The question in the case is, rather, “how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for ‘the freedom of speech’?” That’s a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state’s power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? Nothing in Justice Thomas’s historical research tells me, or can possibly tell me, how people in the eighteenth century would have answered those questions. Let me put it this way: I know enough about discourse in the late eighteenth century to know that if you had walked into a bar in, say, Richmond, or Boston, or Philadelphia, in 1791 and made any of the following statements, you would have gotten a nice little argument going:

• “The government has just decreed that children can’t attend religious services. Can it do that?”
• “The government has just decreed that all schoolbooks must include endorsements of John Adams’s candidacy for the Presidency, and a defense of the Alien and Sedition Act. Can it do that?”
• “The government has just decreed that adults may not sing to children who are not their own. Can it do that?”

Justice Thomas believes that all of those questions can be answered in the affirmative—and,more importantly, that “eighteenth century society” would have answered all of those questions in the affirmative. (Indeed, he believes the former precisely because he believes the latter). His belief is misplaced, in my opinion. No amount of historical research can tell us what “the answer” to any of those questions would have been—in 1791, 1891, or 1991—because there is no “answer” that “society” can give to those questions. They’re contested and contestable propositions, depending on (among other things) how you characterize what the government was doing: helping parents or usurping their role, for example. . . .

In any event, if you feel like dropping in on the Cato event (perhaps to defend Thomas’ position!), you’re of course invited to do so.

[UPDATE: Chris Lund points out that Thomas' originalism is not always so crude as he expresses it here. In Citizens United, he joined Scalia's concurrence, which contained this paragraph:

A good deal more sensible than the position Thomas takes in Brown]

So here’s a steamy little trademark dispute: The Texas Dep’t of Transportation is suing Hachette Books to enjoin publication of Christie Craig’s “Don’t Mess with Texas,” on the ground that it dilutes TxDOT’s trademark. Though I confess that I probably wouldn’t be wasting my time or yours on this if the book didn’t contain phrases like “She glanced down at his sex, still standing completely erect,” and “Pleasure exploded inside her and her entire body shook with sweet spasms of release,” (and a host of similarly cringe-inducing prose, quoted in more detail in the article linked to above; I must say, if this is what passes for pornography these days, I’m in the wrong business), the case actually illustrates a couple of interesting things about trademark law.

To begin with, notice that the action is for “dilution” of the trademark, not “infringement.” TxDOT apparently has a trademark in this phrase by virtue of its use as part of TxDOT’s anti-littering campaign (Get it? Don’t Mess with Texas). Fair enough – but a trademark infringement action would require the DOT to show that consumers are confused about the source or goods or services as a consequence of the infringing use – that is, that consumers think that the book “Don’t Mess with Texas” is somehow connected to the DOT — a fairly preposterous claim (even in Texas).

Trademark dilution, though, is different – a trademark can be diluted even if consumers are not “confused” by the offending use, as long as the use causes the mark to become less distinctive. The example usually given is something like “Imagine that dozens of services or products (hair care, automotive supplies, legal services, dry cleaning services, electronic pagers, . . .) were all called “Nike,” or “Buick.” Consumers wouldn’t be confused into thinking the trademark owners had branched out into these unrelated businesses — but the value of the mark would decline over time, as its distinctiveness wore off as a result of such common usage. Dilution also lies where the mark has become “tarnished” — a mark associated with cleanliness and propriety and good behavior (like this one — anti-littering, remember?) which is now being associated with, in DOT’s words, “graphic references to sexual acts and states of sexual arousal.” [Start distributing, say, Mickey Mouse condoms, or Star Wars vaginal lubricants, and the cease-and-desist letter you'll get, probably the following day, from the trademark owners will tell you all you need to know about tarnishment . . .]

The cause of action for dilution, though, is only available for “famous” marks. You can understand why it is restricted in this way; because it involves suppressing uses of trademarks even in situations where there’s no consumer confusion, dilution is potentially very troublesome from a free speech perspective, and widespread use of the dilution remedy would give all trademark owners potentially vast control over the use of the English language without providing any real benefit to the public.

This is where, in my opinion, TxDOT’s claim is going to founder. “Don’t Mess with Texas,” to be sure, is a very famous phrase — but it is not a famous trademark. I don’t know about you, but I never heard of the anti-littering campaign labelled with that mark, and I suspect most people haven’t heard of it either. This is just what dilution law is supposed to avoid: giving the first person who happens to use the phrase “Don’t Mess with Texas” in connection with some goods or services complete control over use of the phrase, even for entirely unrelated goods and services, forevermore. So for better or for worse, I think the book stays on the shelves.

[Thanks to Q. Boyer for the pointer]

As many of you know, I spend my summers (and as much time as possible in other seasons) up at our place in southern Vermont (Marlboro, to be precise). And as everyone knows by now, we got creamed by the storm on Sunday. It was an astonishing and awe-inspiring experience to go through — I’ve posted a video that I took during the height of the storm showing the condition of the (one) road that leads from our house, and one of the “little stream” that runs just behind our house, that will give you some idea of what it was like.

[ Update -- for some reason the video links above didn't work for everyone. Here are the YouTube links for the video of Butterfield Road, and the video of the stream out behind our house]

As a friend of mine put it, it makes you think a lot about physics. It’s just water, earth, and gravity … a combination of an astonishing amount of rain, steeply sloped hillsides, and ground that was more-or-less completely saturated even before the storm hit. To give you an idea of how much water we’re talking about, take another look at that video of the stream behind our house. This little brook – much too small to even have a name — would, ordinarily, in late August, have a trickle of water in it, at most. The watershed that feeds it covers an area of around 5 square miles — one of thousands of such little watersheds feeding into little streams in southern Vermont (all of which feed larger streams, which feed larger streams, etc.). Five square miles is about 22 billion square inches. Eight inches of rain (which is about what we got) falling on that one little watershed makes for around 175 billion cubic inches (around 100 million cubic feet) of water.

All of that water has to make its way behind our house. If the banks of our little stream are, say, 10 feet apart, and if all of the rain that fell on that watershed had to make it through that space at once – say, in a single column of water, 10 feet in diameter — the column would be around 60 miles high.

It didn’t have to make it through all at once, of course, so it wasn’t 60 miles high … but that gives you the idea. Watching it flow by, tearing up everything in its path, is a sight to see.

Here’s something from yesterday’s NY Times:

“Stocks Rise as Investors Await Signals”
By Julia Werdigier and Bettina Wassener

Stocks rose Tuesday, many for a second straight day, even after a report showed new-home sales in the United States fell in July more than expected. On Wall Street, the Standard & Poor’s 500-stock index gained 11.07 points, or 1 percent, to 1,134.89 points, and the Dow Jones industrial average added 105.81 points, or 1 percent, to 10,958.35. . . . Stock markets in Europe and the Asia-Pacific region also mainly rose as investors awaited the Federal Reserve’s annual symposium later this week in Jackson Hole, Wyo. . . .

The number of Americans who bought new homes fell for the fourth straight month in July, according to the Commerce Department report, putting sales on track to finish the year as one of the worst on record.
The price of oil rose 15 cents, to $84.57 a barrel, as some investors bet on a rebound in demand from consumers and that a recovery of output in war-torn Libya could take longer than expected as fighting in the capital continued. . . .

Nothing particularly unusual or noteworthy. Here’s the same story from the Washington Post

“U.S. Stocks Rise as ‘Problem’ Bank List Shrinks; Dollar Declines”
Stephen Kirkland and Rita Nazareth

U.S. stocks rallied, reversing earlier losses, as the government’s list of “problem” banks declined for the first time since 2006 and investors speculated the Federal Reserve will act to spur the economy. Treasuries and the dollar declined. . . .

Every day, in every newspaper in the country and on every financial blog, there’s a sentence or two like these. The market fell because “investors were jittery about the possibility of a Greek default,” or because of “poorer-than-expected numbers from the Labor Department,” or some such; or it rose because of “better-than-expected unemployment numbers,” or a “surge in housing starts,” etc.

It is complete and utter nonsense, without any shred of a relationship to reality. The market rises or falls as a consequence of millions of individual decisions; there were over 5 million trades, with over 1.5 billion shares changing hands, on the NY Stock Exchange alone on the day in question (Aug 22), as on all days. The notion that a couple of reporters could somehow have determined what motivated a significant fraction of those trades — significant enough to move the market — is hilarious, and preposterous. That they did so an hour or so after the market closed is even more hilarious and more preposterous. Investors “speculated that the Federal Reserve will act to spur the economy.” Really!!? And how in heaven’s name do you know that?! Investors think that “recovery of output in war-torn Libya could take longer than expected.” Is that so?! They think that, and they based their trading yesterday on that belief? You determined that how, exactly?

We all know, of course, basically how this works. The reporters call up a bunch of their contacts in the investment industry, and they ask something like: “So, what’s going on in the market today?” Or “Do you think the Fed’s meeting is on investors’ minds?” Or something like that. And they report on whatever they hear that sounds plausible.

But 10 times zero is zero. How do these contacts know what moved the market yesterday? And if they don’t (and can’t possibly) know, adding them all together just piles up the bullshit, it doesn’t turn it into usable compost. Repeating nonsense from others doesn’t make it less nonsensical.

It’s a classic example of post hoc ergo propter hoc reasoning — “after this, therefore because of this” — and we’ve known for only the last 2,500 years or so that it produces bullshit. Let’s see: the market went up yesterday (Fact). Find 2 or 3 things that happened yesterday that seem like they should be important. Make up a story connecting one or the other to the movement in the market. And report it as fact that investors cared enough about whatever you identified to move the market.

OK, OK – maybe you’re right, and it’s often nonsense, just a made-up story . . . but surely sometimes it’s just obvious, no? Like recently – I mean, the markets have tumbled because investors are concerned about the downgrade of US securities by S&P and the fears of instability in Europe, right?

Actually, not right. A plausible story, surely – but there’s a rather substantial ontological gap between plausible and correct. How do we all know that investors are concerned about the downgrade? Because lots of people say they are – it’s all over the news, after all. But see above – 10,000 times zero is also zero. It’s just not evidence relevant to the state of the underlying reality. I don’t know that investors are concerned about the downgrade – how would I know that? Because the market went down?!

I’m not even entirely sure that the information needed here (to determine what caused the market movement) is even knowable at all — complex systems (like markets) being notoriously subject to unpredictable movements caused by insignificant triggering events (the butterfly in Beijing that causes the thunderstorm in Brazil). But even leaving that nice little theoretical problem aside, this desperate need that we all seem to have to explain why things happen the way they do in the world around us is poignant, but should not excuse elementary errors in logic.

Hmm, I see your point. But really, what’s the big deal? So there’s a little piece of nonsense, purporting to be fact, in the newspaper every day. So what? They publish Horoscopes, too, and nobody gets all worked up about that. Give it a rest – newspapers have enough problems these days.

Well, it is a big deal. It’s a big deal because markets (and many other things) are full of what I have called “Tinkerbells.” Tinkerbells are statements that become true solely as a consequence of peoples’ belief that they are true. “The bank is going to fail” is a classic Tinkerbell – if you think it’s true, you’ll take your money out. If everyone thinks it’s true, the bank will, in fact, fail. And even if you think it’s false, if you think that others believe it to be true, you’ll take your money out; and if everyone thinks that everyone else believes it to be true, again, the bank will in fact fail.

Tinkerbells are astonishing phenomena. They raise some pretty profound questions about the philosophy of mind – how can mere belief in the truth of something cause it to actually happen?? It sounds like magic, like a kind of “conjuring” – crossing the boundary between mind and matter, even. You can’t really bend a spoon by mental effort alone – can you? But how then can you “believe” a bank failure into existence?

The point here, though, is that this little piece of newspaper nonsense actually concerns something of real importance. What other investors believe about the market is of critical importance to every investor, because markets are Tinkerbells. If everyone believes that everyone else believes that the market is going to collapse because of Spain’s troubled economy, it will collapse.

So “what investors believe” is a really, really important datum – the last thing, you’d think, you’d want a newspaper to misrepresent and falsify.

So I call on them all to stop, effective immediately.

[UPDATE: Really interesting discussion down there in the Comments ... thanks to those who suggested readings about this, or similar, phenomena; some of them sound very interesting and very useful. One point I'd like to respond to: the relationship between what I call Tinkerbells and 'self-fulfilling prophecies.' There's clearly a close relationship, but I don't think they're identical phenomena. The former is a sub-category of the latter, distinguished from other 'self-fulfilling prophecies' by two things: the central role of 'belief' that makes Tinkerbells work, and the importance, for Tinkerbells, of group, aggregated, belief -- it's the belief about what others believe that makes tinkerbells (though not the ordinary SFP) work.
DavidP]

I know, I know, . . . I’m obsessing a bit – if you’ve had enough already about the Crusade to Keep the Initial Capital in “Internet,” read no further . . .

Referring to the global TCP/IP network as “the internet” is, I assert, a real barrier to intelligent discussion and analysis of phenomena about which we need to have intelligent discussion and analysis. Let’s talk for a moment about the growth of the global network, and you’ll see what I mean. Here’s an interesting question — to what extent did the US government help “build the internet”? Well, it’s certainly true that, for many years, the US government (though DARPA, the Defense Advanced Research Projects Agency] funded the development of an internet. But if you had asked people at the time, “So, what are you folks building over there?” they would not have said “We’re building the internet.” To say that would’ve been weird, because there were many projects underway, around the globe, to build internets — dozens of them, actually — and there was no internet that was particularly distinguished, enough to be called “the” internet. If you had walked into a networking conference in 1980 and said “So how’s that work on the internet going?” you couldn’t have gotten a straight answer, because nobody would have known which of the many internets you were talking about.

Now, of course, we all know that one of these internets — the DARPA-funded one — out-competed all those other internets; it grew and grew and grew, and it became . . . “the really big internet.” It would be good to have a label for that one, because we need to talk about it — not any of those other ones, because those other ones have no impact on our lives, and this one does. Calling it “the internet” implies that it is the only member of a category, when it isn’t; calling it “the internet” deflects attention from really important questions — about why this one is different from (or similar to) the others, about what gives this one its power, about why it grew and the others didn’t.

There are many canyons. Many of them are grand. So, there are many grand canyons. But there’s only one Grand Canyon. If we call it “the grand canyon,” what happened to all those other grand canyons?

I’m losing my battle to keep the initial capital “I” in “the Internet.” I’m starting see references to “the internet” everywhere; the latest to fall seems to be The Economist (see headline from July 30: “An internet with Chinese characteristics” – I’m quite certain that it was “the Internet” up until quite recently).

It actually matters. I had a footnote in the first chapter of my “Jefferson’s Moose” book about why I was keeping it as “the Internet,” and the more I think about it, the more I think it matters — for our understanding of the Internet and its role in the world, which is surely something we need to understand.

Suppose we live someplace that only has one bookstore. You write to me: “I’m going to the bookstore; let’s meet there.” I understand what you mean — after all, there’s only one bookstore.

Now, suppose we live in a place with lots of bookstores. Now if you write “I’m going to the bookstore; let’s meet there,” I have no idea what you mean.

Finally, suppose we live in a place with lots of bookstores, but — it being a college town — it has one that is often referred to as “the Bookstore.” You know, the Bookstore. If you write “I’m going to the Bookstore,” I know where to meet you — it’s a way of designating one bookstore out of many.

There are a hundred million internets — or 82 million, or 461 million, or who knows how many. Ranging from little teeny-tiny ones (like the one that connects my home network to my service provider’s network) to big ones (the LAN in my law school building to the University network), to one really, really gigantic one. It would be nice to have a proper noun for that one, because we need to talk about it separately from all the others; it has many, many characteristics that distinguish it from all the others. The Bookstore.

[Update: A bunch of commenters suggest that because the smaller networks (e.g. home network, Univ. network, etc.) are known as "intranets," the problem I'm describing goes away.

So I'll repeat what I said. We have hundreds of millions of internets. There's one that's of particular interest. What we call it is a proper noun, whether that's "the Internet" or "Ellen" or what have you.]

Or suppose, with all the millions and millions of trees in the world, there was one that was 411 miles tall. Wow! Referring to that one as “the tree” doesn’t work — it won’t help us talk about how the Tree got to be so damned tall, and why the Tree is different from the other trees, and whether some virus might be attacking the Tree, and whether one of the other trees might supplant the Tree in height, and . . .

I’m just finishing an extraordinary novel, “Independent People” by Halldor Laxness. Laxness (1902 – 1998), whom you’ve surely never heard of (I certainly hadn’t till I began this book), was Icelandic, and won the Nobel Prize in 1955. [That's not, mind you, why I picked the book up; a lot of second-rate and even third-rate authors have picked up the Nobel Prize (Sully Prudhomme, Pearl Buck, John Galsworthy, Dario Fo), and an equally astonishing number of the greatest writers of the 20th century somehow missed the prize (Vladimir Nabokov, Joyce, Kafka, Proust . . . ) that the designation doesn't mean a great deal. But I did notice, on the book jacket, that it had a long and laudatory blurb by Brad Leithauser, who's one of my personal favorites, so I thought I should give it a try]

The book is set in Iceland in the early part of the 20th century, and revolves around Bjartur Jonsson, owner of a small sheep farm out on the icelandic moors, and his family. Even if the characters were not drawn with astonishing vividness, the pictures he draws of what life was like in such a place — the stink and the smell of it — are quite unforgettable. And the characters and the relationships among them – Bjartur, his children and wives, the neighboring farmers, and especially his daughter, Asta Sollilja — are deeply profound and very, very moving. Highly recommended.

[and PS -- the wikipedia entry for this book gets it all wrong -- it reads a lot like a 12-grader's term paper -- so don't let that dissuade you]