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It would not be reasonable for service providers to be held culpable for every possible misuse of copyright material in the vast amount of user-generated content they carry. That would create massive risk of lawsuits, with ill effects for internet users and even for copyright holders who benefit from the legal distribution of their content.

But proper safe harbors should encourage online companies to help prevent copyright content from being improperly disseminated in the first place. For example, such rules could encourage online companies to license content upfront, which they can do more easily than copyright holders can with each of the service providers’ many users.

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It is my endeavor to scrutinize the questionable assessment articulated against default settings in the U.S. Justice Department’s lawsuit against Google. Default, I will argue, is no antitrust fault. Default in the Google case drastically differs from default referred to in the Microsoft case. In Part I, I argue the comparison is odious. Furthermore, in Part II, it will be argued that the implicit prohibition of default settings echoes, as per listings, the explicit prohibition of self-preferencing in search results. Both aspects – default’s implicit prohibition and self-preferencing’s explicit prohibition – are the two legs of a novel and integrated theory of sanctioning corporate favoritism. The coming to the fore of such theory goes against the very essence of the capitalist grain. In Part III, I note the attempt to instill some corporate selflessness is at odds with competition on the merits and the spirit of fundamental economic freedoms.

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As an academic working at the intersection of economics, law, and innovation, I was excited to see Nicolas Petit apply an interdisciplinary approach to investigate big tech in the digital economy. Working across law, business, and engineering has taught me the importance of bringing together different theoretical perspectives and mindsets to address complex issues. [RL1] Below is a short discussion of a few interdisciplinary areas where Petit helps us to bridge the theoretical gap so as to unveil the complexity and provide new insights for policymakers.

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President Donald Trump has repeatedly called for repeal of Section 230. But while Trump and fellow conservatives decry Big Tech companies for their alleged anti-conservative bias, including at yet more recent hearings, their issue is not actually with Section 230. It’s with the First Amendment.

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ICLE Executive Director Ian Adams took part in a panel discussion on the future of federal tech policy as part of the Lincoln Network’s Reboot 2020 conference. Watch video of the event below.

Nicolas Petit’s insightful and provocative book ends with a chapter on “Big Tech’s Novel Harms,” asking whether antitrust is the appropriate remedy for popular (and academic) concerns about privacy, fake news, and hate speech. In each case, he asks whether the alleged harms are caused by a lack of competition among platforms – which could support a case for breaking them up – or by the nature of the underlying technologies and business models. He concludes that these problems are not alleviated (and may even be exacerbated) by applying competition policy and suggests that regulation, not antitrust, is the more appropriate tool for protecting privacy and truth.

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Abstract

There is growing academic, regulatory, and legislative interest in “dark patterns” – digital design practices that influence user behavior in ways that may not align with users’ interests. For instance, websites may present information in ways that influence user decisions, or use design elements that make it easier for users to engage in one behavior (e.g., purchasing the items in a shopping cart) than another (e.g., reviewing the items in that shopping cart). The general thrust of this interest is that dark patterns are problematic and require regulatory or legislative action.

While acknowledging that many concerns about dark patterns are legitimate, this Article discusses the more nuanced reality about “patterns”: that design is, simply, hard. All design influences user behavior, sometimes in positive ways, sometimes in negative; sometimes deliberately, sometimes not. This Article argues for a more cautionary approach to addressing the concerns of dark patterns. The most problematic uses of dark patterns almost certainly run afoul of existing consumer protection law. That authority – not new, broader rules – should be our first recourse to addressing these concerns. Beyond that, this is an area where we should both allow the marketplace – including the design professionals working to improve User Interface and User Experience design practices – should be allowed to continue to develop, but with the understanding that Congress and regulators have a keen interest in ensuring that consumer interests are reflected in those practices.

Starting with the new antitrust investigation from state attorneys to kick off their discussion, Geoffrey Manne and Hal Singer take part in a conversation moderated by Adam Thierer about “Techlash”. This discussion is the second episode in the Federalist Society’s Tech Roundup podcast series. The full episode is embedded below

Aboy throws a brick through a bakeshop window. He flees and is never identified. The townspeople gather around the broken glass. “Well,” one of them says to the furious baker, “at least this will generate some business for the windowmaker!”

A reasonable statement? Not really. Although it is indeed a good day for the windowmaker, the money for the new window comes from the baker. Perhaps the baker was planning to use that money to buy a new suit. Now, instead of owning a window and a suit, he owns only a window. The windowmaker’s gain, meanwhile, is simply the tailor’s loss.

Read the full piece here.