The Volokh Conspiracy

David Bollier and John Clippinger have an extremely interesting short essay on “The Next Great Internet Disruption: Authority and Governance” that is well worth reading.  They start from Reed’s Law:

When we look back on the past twenty years of Internet history, we can more fully appreciate the prescience of David P. Reed’s seminal 1999 paper on “Group Forming Networks” (GFNs).  “Reed’s Law” posits that value in networks increases exponentially as interactions move from a broadcasting model that offers “best content” (in which value is described by n, the number of consumers) to a network of peer-to-peer transactions (where the network’s value is based on “most members” and mathematically described by n²).  But by far the most valuable networks are based on those that facilitate group affiliations, Reed concluded.  When users have tools for “free and responsible association for common purposes,” he found, the value of the network soars exponentially to 2ⁿ – a fantastically large number.   This is the Group Forming Network.  Reed predicted that “the dominant value in a typical network tends to shift from one category to another as the scale of the network increases.…”

It’s a little geeky, yes – [and, if you're interested, I've got a somewhat longer and, I think, reasonably intelligible discussion in chapter 3 of  my book, here] — but I’ve long thought and still believe that it embodies a principle of the highest significance in understanding what the Net is and what it might become.  As I’ve said ad nauseum over the years to anyone who will listen, the Internet is, in a most important sense, entirely a phenomenon of large scale;  it is different from the hundreds of thousands or millions of other networks and inter-networks and inter-inter-networks out there in the world solely because of its enormous size.  Size matters, because (Reed’s Law) value of a network enabling peer-to-peer connectivity scales exponentially with the number of members of the network — as it gets bigger, it gets (a lot) more better; as it gets better, more people want to join;more people want to join; as more people join, it gets bigger; . . . and so on.

The Internet mastered peer-to-peer communication pretty early on – with the development of the various email, instant messaging, and ultimately P2P file-sharing, protocols.  And it did, indeed, keep getting bigger and bigger, and more and more attractive to new entrants, . . .

But Reed’s Law shows that in GFNs – group-forming networks, networks that allow users to form groups of any size, from 2 to the number of machines on the network  – value scales much, much more rapidly as the network gets bigger; hyper-geometrically, the mathematicians call it.

[To give you an idea, here’s a little table showing the difference between something growing exponentially (fast) and something growing hyper-geometrically (really, really, fast).
N                exponential scaling (N²)       hyper-geomteric scaling (2^N)

1                       1                                                 2
10                    100                                            1024
50                   2,500                                        1,125,899,907,000,000
100                 10,000                                      126,765,600,000,000,000,000,000,000,000

You get the idea.
The Internet has only just begun — with the development of applications like Facebook, Twitter, and Wikipedia — to realize the power of GFNs, and the success of those platforms is due in significant measure to their ability to enable each user to form (and/or become part of) diverse groups of enormously varying sizes.  One thing I can promise you:  the group-forming capabilities of these applications will look hilariously primitive in 5 to 10 years.

What does this have to do with Internet governance? A great deal, and possibly everything.  Governance is nothing more (or less) than the processes through which groups articulate norms and rules that are binding on their members, and their policies and procedures for dealing with other groups.  With a more robust ecosystem of group-formation tools at our disposal, it is easier to imagine, in Bollier and Clippinger’s words, “the emergence of new sorts of effective, quasi-autonomous governance and self-provisioning” on the Net — that could achieve both greater legitimacy than territorially-based governance institutions (because they could be much more closely aligned with each individual’s voluntary consent to abide by the rules) and which could be more effective, in the a-territorial networked world, at dealing with harmful conduct that institutions whose powers are territorially defined.

And, as I’ve said many times before, imagining it is the first step towards its realization – necessary (though not sufficient).

Thanks for David Johnson for the pointer.

Update:  Reader Samuel East has set my terminology straight, for the record:

The insight is correct, but unfortunately the terminology isn’t: N^2 growth is polynomial (not exponential), and 2^N growth is exponential or geometric (same thing, but not “hyper-geometric” or “hyper-exponential”). Wikipedia’s page on Big O Notation has a useful chart (buried under a pageful of math-ese, naturally). Anyhow, group-forming behavior actually is factorial (one could accurately describe it as “hyper-geometric”). So for accuracy, 2^N is actually a bit small:

N    N^2     N! (factorial)
1    1       1
10   100     3,628,800
50   2,500   3.04*10^64
100  10,000  9.33*10^157

Ken at Popehat takes on the Supervisors of Vernon County, Wisconsin (and my bet’s on Ken).

The list was compiled by Clare Kaufman, for WorldwideLearn.com. She explains: “The following top law professors dominate the Twitter-verse, either through the wit, volume or audience. Criteria for selection for this list include the quality of the tweets, the number of followers and the most active users.” For whatever reason, I’m not on the list, although based on number of followers, I rank #40. Since SSRN downloads are already a very important item in law faculty rankings, perhaps the day will come when Twitter too will play a role in the ever-escalating status competition among law professors.

Regardless, the Top-50 list might a useful guide for folks who are looking for additional people to follow on Twitter. Not surprisingly, it is dominated by professors who specialize in technology issues. Impressively, Lawrence Lessig, @lessig, bestrides the law prof twitterverse like a colossus, with nearly 200,000 followers–which appears to be (I didn’t count) about as many as the other 49 combined.  @davekopel has only 0.7% as many followers.

Today’s NYT reports on the white paper Google commissioned from our host, Eugene (about which Eugene blogged here). I don’t know this area nearly as well as Eugene does, but I found this portion of the article particularly interesting:

there is a bit of a rub for Google, some scholars say. The kind of reasoning Mr. Volokh uses in his paper could come into conflict with one of Google’s policy priorities — the so-called net neutrality rules that call for everyone to get equal treatment on the Internet.

Since Google is not connecting users to the Internet, it is vital for its business that the companies that provide access to the Internet do not play favorites. Yet, if those providers could somehow qualify for First Amendment protection, then the government would have a harder time mandating “net neutrality.”

Mr. Volokh never mentions net neutrality in the paper, but a Duke law professor, Stuart M. Benjamin, who has written an academic paper casting doubt on First Amendment protection for mere transmitters of information like Internet service providers, said he saw a clear connection.

Mr. Benjamin said an Internet provider like Comcast, for example, could offer “a family friendly Web,” which would filter out content considered inappropriate for children; by doing so, “they have now gone to protected speech.”

But he also suggested there was a potential for Mr. Volokh’s reasoning to extend First Amendment protections to transmitters that do even less — for example, those that simply provide faster speeds to companies that pay more money. That is the kind of behavior net neutrality rules are meant to prevent.

The more the First Amendment is applied to how information is transmitted via the Internet, Mr. Benjamin said, the harder it is to regulate. “Whether that is a good or bad thing depends on your political perspective,” he said.

The Pew Internet and American Life Project has released a new report on social networking sites and politics.  Among its main findings are that most Americans use social networking sites but that liberals are more likely to use  such sites than are conservatives.  It also finds that many people are surprised by what they learn about the political views of their friends and acquaintances through such sites.  The report also includes some interesting findings on how people respond to encountering political views they do not like on such sites.

Politics can be a sensitive subject and a number of SNS users have decided to block, unfriend, or hide someone because of their politics or posting activities. In all, 18% of social networking site users have taken one of those steps by doing at least one of the following:

• 10% of SNS users have blocked, unfriended, or hidden someone on the site because that person posted too frequently about political subjects
• 9% of SNS users have blocked, unfriended, or hidden someone on the site because they posted something about politics or issues that they disagreed with or found offensive
• 8% of SNS users have blocked, unfriended, or hidden someone on the site because they argued about political issues on the site with the user or someone the user knows
• 5% of SNS users have blocked, unfriended, or hidden someone on the site because they posted something about politics that the user worried would offend other friends
• 4% of SNS users have blocked, unfriended, or hidden someone on the site because they disagreed with something the user posted about politics

Of course, that means that 82% of SNS users have not taken any steps to ignore or disconnect from someone whose views are different – or have not encountered any views that would prompt such a move.

Liberals are the most likely to have taken each of these steps to block, unfriend, or hide. In all, 28% of liberals have blocked, unfriended, or hidden someone on SNS because of one of these reasons, compared with 16% of conservatives and 14% of moderates.

A description of the study’s methodology can be found here.

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.

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 ...

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.

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 . . .

After many, many years of debate and discussion, ICANN — the rather peculiar hybrid policy/technology private/public institution that manages the Internet’s naming system — has finally approved a process to open up the Internet’s list of “top-level domains” (TLDs) [Stories here and here and here give some of the details] ICANN will begin accepting applications from entities who want to operate their own TLDs — so we could well see an avalanche (.xxx, .highschoolreunions, .store, .hobbies, .dirtymovies, etc. etc. – not to mention the many hundreds of others that will now be permissible using other languages and other alphabets (Chinese, Russian, Greek, . . .) of new TLDs in the years to come.

[Note: For those of you unfamiliar with ICANN and its role in Domain Name System (DNS) management, I put together (rather well, if I do say so myself) the whole (rather astonishing) story as a chapter in my book; I've posted the chapter here, if you're interested]

I’ve been around the Internet long enough so that I’ve seen some things that were given the “Historically Important” or “Next Big Thing” label that petered out to nothing (and vice versa), but this is, I think, an important development in the history of the Net. A lot of people (myself included) have been urging this on ICANN since its inception back in the late 90s; there’s no technical impediment to the proliferation of new TLDs, and it always struck me (and others) that ICANN was merely maintaining artificial scarcity in sticking close to the original list of seven TLDs (the familiar .com, .org, .edu, etc.).

The implications of this for Net architecture and searching and linking and many other Net functions may be quite profound over time – the Net might look very different in 10 or 20 years as these TLDs proliferate. So it could be important, and worthy of note by the historians of the future, for that reason alone.

And it might also be important as signalling something of a shift in the relationship between governments and Net-based non-governmental institutions (like ICANN). Elliot Noss, owner and operator of the Canadian-based domain name registrar Tucows, has some interesting thoughts on this. For a number of reasons, many governments were opposed to this move — primarily in the EU, where there were concerns about the effect of opening up TLD-space on trademark owners, who will now have to police a much larger territory to find “cyber-squatters” who are using their trademarks in their domain names — and they voiced their concerns through the GAC, ICANN’s rather shadowy “Government Advisory Committee.” There was sufficient opposition so that if ICANN were a state-based institution — an organ of the U.N., say, like the International Telecommunications Union — this action would never have gone through. That ICANN has (finally) acted may signal a shift — and possibly an important one, as Noss suggests — in the ever-delicate relationship between the Internet and the world’s governments.

Fellow Blogger Orin Kerr, in several comments on my posting yesterday, has asked some questions deserving a response:

David,

If DHS is just making a request and has no legal authority to enforce its request, then of course Mozilla is free to ignore the request. At the same time, I wonder: If you were in charge of enforcing the criminal copyright laws, what would you do about the many sites that exist to facilitate copyright infringement? What steps do you think are fair and appropriate ones — if any?

A couple of thoughts about this. First, about being “free to ignore the request.” If, say, a representative of the Department of Health and Human Services wrote to the Dean of a Law School and said: “We hereby request that you not hire any African-Americans or Jews for your faculty — oh, and not to worry, you’re free to ignore our request,” we’d all be (appropriately) outraged. Heads would surely roll. A request from the government is not like a request from your neighbor or colleague; it carries additional weight. Especially, I think, when it comes from the Dep’t of Homeland Security. It should carry additional weight; as a citizen, I care a great deal about the security of my homeland, and if the government asks for my help in that task, I’m inclined to give it, or at least to consider it. I happen to regard that as a simple consequence of citizenship – not that I’ll do whatever the government asks me to do, but that I will consider it. The more frequently they ask for things they have no right to ask for, the less inclined I am to take their requests seriously.

The DHS has no more legal authority to request that Mozilla disable MafiaaFire than does the DHHS to ask my Dean not to hire blacks or Jews. None.

If I were in charge of enforcing the criminal copyright laws, what would I do? I would not violate the due process rights of website operators by asserting a right to “seize” anyone’s domain name whenever some copyright holder persuaded a DHS functionary that the site was infringing copyright. I would design a process to actually “adjudicate” these claims — maybe not (almost definitely not) full-blown federal litigation, but a procedure whereby the purported infringer has an opportunity to be heard before a true neutral, and where little things like “burden of proof” and the like are respected. ICANN’s UDRP proceedings at least serve as some sort of model — by no means the right one for this task, but a starting point for discussion.

Finally, if I were in charge of enforcing criminal copyright law, I would recognize that enforcing copyright law, while important, is less important, as it were, than the Internet. If we’re going to have situations in which government agents are permitted to screw up the basic and fundamental principles of Internet addressing, they should be restricted to situations in which the stakes are really, really high. Enforcing the private rights of music and entertainment companies is not one of those situations.

The Dep’t of Homeland Security is indeed at it again. I’ve blogged about their campaign on behalf of US copyright holders to “seize” the domain names of websites (irrespective of the actual location of the site, provided that it is registered in one of the databases of a US domain name registrar or registry). It’s a really troubling new phenomenon — even putting aside how downright stupid, and outrageous, it is that DHS, which even in light of last week’s developments obviously has other important work that it should be attending to, is getting into the copyright-enforcement game.

But it appears to be getting worse. Now, they’re going after software providers. As reported by Nate Anderson at arstechnica, DHS recently approached the folks at Mozilla and “requested” that they remove/disable a popular Mozilla add-on, “MafiaaFire.” MafiaaFire is a (pretty simple) domain name redirector; if the website operating at wereallydon’tlikeIPlawyers.com moves to wewerejustkidding.org, a user with the MafiaaFire add-on who types “http://wereallydontlikeIPlawyers.com” into his/her browser window is automatically redirected to wewerejustkidding.org.

You can see what they’re unhappy about, I suppose; sites that have had their domain names “seized” have managed to get up and running in a matter of hours after the “seizure” by switching over to new domain names, and things like MafiaaFire make it easier for users to find the new site.

But screwdrivers, pencils, automobiles, bunsen burners, Frisbees, and many, many things are used by Bad Guys to do their Evil Deeds; that does not give the government the right to restrict the availability of those items (absent some specific statutory basis for doing so). It’s conventionally referred to as “the Rule of Law.” DHS has absolutely no legal authority (of which I aware, at any rate) to order Mozilla to take this action with respect to a lawfully-made and lawfully-distributed product that has, obviously, any number of perfectly legitimate uses, and their “request” is an outrageous end run around their legal authority. It pisses the hell out of me that they can get away with stuff like this (and that I’m paying them to do it, as a taxpayer).

Mozilla, thankfully, has not complied (this according to Harvey Anderson, a Mozilla lawyer); Mozilla sent DHS a set of pretty reasonable questions about what they were doing (to which DHS has not responded), viz.:

We’ll see if DHS responds. My bet is they won’t. They should really be ashamed of themselves.

[Thanks to Andrew Metcalf for the pointer]

As I’ve noted before on a number of occasions, a possible landmark copyright case is now before the 2d Circuit, Viacom et al. v. YouTube. On behalf of 44 co-signatory law professors, Annemarie Bridy and I wrote an amicus brief urging the court to affirm the lower court’s decision that YouTube is immune from copyright claims unless it has item-specific and location-specific information about infringing postings. The brief – which I think turned out quite well, and is, at the very least, a good example of decent legal prose — is available here. Briefs submitted by other amici (and there are lots of them) are available here.

I’ve reprinted below some of my comments from earlier postings about the case. I could be falling prey to a common syndrome: when you work as an advocate for one side in a case for a while, you begin to believe that you have truth and justice firmly on your side, that the opposing position is outrageous and contrary to all common sense and moral principle . . . . But I really do think this one matters, for the future of the Net.

It was a bit more of an adventure submitting this brief than it should have been — the 2d Circuit does not treat its “amici” in a very friendly fashion. Not only must you be admitted to the 2d Circuit bar to submit an amicus brief — no temporary admissions pro haec vice are permitted — but you also have to be sure to be hooked up to the latest version of the court’s electronic filing system; not huge problem, i suppose if you’re a lawyer or law firm practicing frequently in front of the 2d Circuit, but not something that a law professor, even if admitted to the court’s bar, is likely to be current with. And even if the parties themselves require electronic filing, the court does not – so in addition to getting all the aforementioned ducks in a row, you have to comply with the court’s rather arcane printing rules and deliver 6 hard copies to them. Seems all a bit overly formalized, and a means to discourage, rather than encourage, participation — I mean, they don’t have to even read the briefs that are submitted, so why make it so hard for people to submit them?

And one little humorous side note. As noted here, YouTube has changed its “repeat infringer” policy. The Copyright Act requires, as a pre-condition to asserting the immunity from infringement claims provided in section 512, that a service provider

“has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and

YouTube has had such a policy for a while — more or less a “3 strikes and you’re out” kind of thing. [Indeed, one of the truly outrageous things I learned while working on this brief is that Viacom itself was actually thrown off of YouTube as a "repeat infringer" because its marketing department had posted thousands of files for promotional purposes, and its legal department issued hundreds of "takedown notices" with respect to many of them]. But now they’ll let you come back onto the system if you go to “copyright school” – watch a video and take a copyright exam [The video is pretty good -- good enough that I couldn't tell whether it was YouTube's copyright school or a parody of same . . .]

[thanks to Ben Mishkin and Steven Kim for pointers]
***********
from earlier postings

YouTube successfully defended itself against infringement claims brought by a host of content providers by asserting the “safe harbor” provisions of sec. 512(c) of the Copyright Act, and the case concerns the interpretation of that provision. The section 512 safe harbors have been of prodigious importance — by giving providers of online applications and services a defense to infringement claims arising out of their users’ activities (e.g., user postings of infringing files on YouTube), it has enabled the (astonishing) growth of “user-generated content” or “Web 2.0″ sites over the past decade — YouTube, Facebook, Craigslist, Tumblr, Twitter, Myspace, Blogger, and on and on and on. At the absurdly high volume at which these sites operate — 250,000 words a minute posted on Blogger, 40 hours of video a minute on YouTube, etc. — the liability risk without a safe harbor of some kind is truly astronomical, running into the billions of dollars a day. So you don’t get a YouTube, or a Facebook, or a Blogger, etc. without something like sec. 512; it’s no accident, as I’ve pointed out before, that all of the largest Web 2.0 sites on the global net are based here in the US. And, among other things, if you don’t have a YouTube, or a Facebook, or a Twitter, Hosni Mubarak is still the President of Egypt.

So there’s a lot at stake in how the 2d Circuit — widely regarded, along with the 9th Circuit, as the source of the most important copyright doctrine — interprets the statute. Precedent up to now (mostly in the 9th Circuit) has (correctly) given service providers very broad protection under the statutory immunity; to make a very long story short, the service providers (like YouTube) have no duty to find infringing material that may be present on their site, or to do anything about infringing material on their site, unless and until the existence of the infringement(s) is brought to their attention by the copyright holder. Once they receive such a notification from the copyright holder (through a detailed set of procedures laid out in the statute), they have to act — removing or disabling access to the offending material (and informing the user that they’ve done so). But without receiving the notice of infringement, they’re under no duty to act, and they’re within the safe harbor if the copyright holder subsequently asserts a claim against them.

The content providers don’t like it, needless to say. They’d like YouTube to, say, take down everything uploaded to the site that is labelled “The Daily Show,” for instance, or “Lionel Messi’s Fabulous Goal vs Arsenal,” on the grounds that they should know of the infringing nature of the postings, without having to be specifically informed of that by the copyright holder. If you want to know why that’s both wrong (as a matter of statutory construction) and absurd (as a matter of public policy), read the brief. [It’s pretty short — 18 pages or so of text — and the prose, of course, is crystalline).

If the 2d Circuit endorses the 9th Circuit position — and I fervently hope that it does — that battle, at least, is probably over; there’s not much copyright doctrine out there where the 2d and 9th Circuits are in agreement but some other circuit (or the Supreme Court, for that matter) takes an opposing view.

As you probably all know already, on Tuesday Judge Chin (SDNY) rejected the Google Books settlement agreement. [The order and opinion are here] To be honest, I’m not sure I know how I feel about this development. I’ve followed the wrangling over the settlement during the past couple of years, though only out of the corner of my eye, as it were; and I haven’t yet had the chance to study Judge Chin’s order in detail — and, as with many issues of this kind, the devil often is in the details.

But here’s how I think about the Google Books question. I start from the proposition that successful completion of the project would be an incomprehensibly valuable boon to all of humankind. To have (virtually) all the world’s writings, instantaneously accessible from anywhere across the global network . . . what’s not to like about that? The benefits we would all gain from that are unimaginable and incalculable.

Now, there are a set of arguments here — let’s call them the “forward-looking arguments” — that say: Hold on, not so fast on that. There are reasons to think that the project wouldn’t be such an unmitigated good. What happens when Google knows pretty much what everyone is reading? What about Google’s competitors – are they put at an unfair disadvantage if Google is allowed to proceed here?

Those are serious objections, and they do give me pause. To the extent that Judge Chin found these to be problematic in light of the current agreement, I want to read his analysis carefully to see if he persuades me.

There’s another set of arguments against the project — we can call these the “backward-looking arguments.” These go something like this: The settlement is unfair to those authors whose copyright-protected works will suddenly be winging their way around the globe without the copyright holder’s permission. One of the major stumbling blocks to this settlement (and one that a glance through Judge Chin’s opinion indicates had significant weight in his analysis) concerned the so-called “orphan works” — works still protected by copyright, but works whose copyright holders can’t be identified or found. [Copyright protection, of course, lasts so absurdly long under current law that many works authored in the 30s, 40s, or 50s are still protected, though long out-of-print, and identifying the current copyright ownership status for vast numbers of such works is almost impossible]. The settlement agreement would have allowed Google to make certain uses of these orphan works (subject to the copyright holders coming forward, ex post, to “opt out” of the agreement), and the court seems to be saying: We can’t approve that, because that would, in effect, amount to a partial revocation of these copyrights, and only Congress can do that.

To the extent these “backward-looking problems” are the ones that are derailing the project, I’m much less sympathetic, and much more unhappy. Copyright is supposed to “promote the progress of science and the useful arts” – to make us all better off by stimulating the creation and dissemination of valuable works of authorship. It’s not doing that job if, because of the vast uncertainties surrounding questions of copyright ownership (in works that have been around for a long, long time), it is now preventing us from realizing this dream of a truly comprehensive global library. Jefferson had a phrase for this: “the dead hand of the past.” It always tries to control the future, and it is our job not to let it do so unduly. Judge Chin may be right about the institutional competence point — perhaps this is a problem that shouldn’t be handled through private litigation but the legislative process. But if so, I’d like to think Congress would act (though I doubt, given copyright holder clout, they will) to make some provision allowing all parties who wish to bring these works back to the public (not just Google, but anyone who can do this) to do so.