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Regulatory Comments Properly considered, there is no novel conflict between promoting the flow of information and protecting intellectual property rights online. While the specific mechanisms employed to mediate between these two principles may differ, the fundamental principles that determine the dividing line between “legal” and “illegal” content and its distribution offline can and should be respected online, as well.
We would like to thank you for the opportunity to comment on these important and timely issues. In the preamble to this Notice of Inquiry (“NOI”) the NTIA notes that is responsible for “protecting and promoting an open and interoperable internet, advocating for the free flow of information, and strengthening the global marketplace for American digital products and services.” We agree with the implicit assumption of this statement that it is possible to both promote an open Internet as well as protect the interests of American creators.
With this in mind, we would like to offer some comments on how best to assess the oft-asserted tension between policies that purport to maximize freedom online and those that seek to protect the interests of rightsholders.
It is undeniable that, in some cases, the unfettered flow of information can contribute to the infringement of the intellectual property rights of American citizens and companies, and that this is contrary to NTIA’s mission to promote the marketplace for American digital products and services. But it is also undeniable that the protection of intellectual property rights can promote both the creation of information and its dissemination. Our intellectual property laws reflect the congressional and judicial balancing of these dynamics: There is little reason to think that the legislative and legal principles that determine when content or its distribution is illegal offline apply any less when content is distributed online.
The flow of information is, in fact, never “unfettered.” When considering the free flow of information online, the goal should be the same as it is offline: to increase the flow of legitimate information and to decrease the flow of illegitimate information.
Properly considered, there is no novel conflict between promoting the flow of information and protecting intellectual property rights online. While the specific mechanisms employed to mediate between these two principles may differ — and, indeed, while technological change can alter the distribution of costs and benefits in ways that must be accounted for — the fundamental principles that determine the dividing line between “legal” and “illegal” content and its distribution offline can and should be respected online.
Click here to read the full article.
TOTM I recently published a piece in the Hill welcoming the Canadian Supreme Court’s decision in Google v. Equustek. In this post I expand (at length) . . .
I recently published a piece in the Hill welcoming the Canadian Supreme Court’s decision in Google v. Equustek. In this post I expand (at length) upon my assessment of the case.
In its decision, the Court upheld injunctive relief against Google, directing the company to avoid indexing websites offering the infringing goods in question, regardless of the location of the sites (and even though Google itself was not a party in the case nor in any way held liable for the infringement). As a result, the Court’s ruling would affect Google’s conduct outside of Canada as well as within it.
Read the full piece here.
TOTM In a recent article for the San Francisco Daily Journal I examine Google v. Equustek: a case currently before the Canadian Supreme Court involving the scope of . . .
In a recent article for the San Francisco Daily Journal I examine Google v. Equustek: a case currently before the Canadian Supreme Court involving the scope of jurisdiction of Canadian courts to enjoin conduct on the internet.
In the piece I argue that…
Regulatory Comments "The Telecom Regulatory Authority of India (“TRAI”)’s tradition of regulatory humility — the “forbearance and flexibility” that has characterized its approach to telecommunications services regulation — has enabled the explosive growth of internet usage throughout India..."
“The Telecom Regulatory Authority of India (“TRAI”)’s tradition of regulatory humility — the “forbearance and flexibility” that has characterized its approach to telecommunications services regulation — has enabled the explosive growth of internet usage throughout India, including an over 50% surge in the number of users of mobile internet in rural areas since 2001. But as the Authority considers regulations and rules to “ensure orderly growth… and protection of consumer interest,” it is important to keep in mind the fundamental lesson taught by decades of technology regulation throughout the world: where entrepreneurial companies are left relatively free to experiment with innovative new methods of developing and deploying technologies — particularly telecommunications technologies — consumers enjoy the largest increases in their standard of living.
The importance of humility in regulating highly innovative industries cannot be overstated. Even after decades of research, there is still much that economists cannot predict about the broad economic effects of technological innovation on economic growth and development. The unintended and unanticipated costs of preventing new methods of reaching underserved consumers can be substantial, and the consequences enormous to those in greatest need…”
“India is on the cusp of providing an economically and socially transformative service: near-ubiquitous, low-cost, high-value internet access that has the potential to create unprecedented opportunity and advantage for its citizens. The nation stands poised to increase the welfare of its poorest citizens with a rapidity seldom witnessed in human history. We strongly encourage TRAI to chart a wise course that allows for differentiated tariffs and the expanded internet access they can bring to India’s citizens.”
Written Testimonies & Filings "The Digital Single Market Strategy (“DSMS”) initiative represents a unique opportunity to unify regulation across the EU’s member states around policies that promote transparency, stability, free trade, innovation and global economic growth..."
“The Digital Single Market Strategy (“DSMS”) initiative represents a unique opportunity to unify regulation across the EU’s member states around policies that promote transparency, stability, free trade, innovation and global economic growth. As the Commission undertakes to integrate the digital economy into the EU’s single market strategy, however, care should be taken to assure that the principles driving the explosive growth of the Internet are encouraged and not suppressed.
As companies contemplate new business models, new content distribution services, new uses for data and new opportunities for valuable data exchange, it is important that regulation not create a legal environment in which valuable products are inefficiently delayed, degraded or abandoned. Effective and efficient policies flow from basic, well-established economic and legal principles that maximize welfare by, among other things, minimizing error costs, promoting innovation, encouraging voluntary and self-help remedies, prioritizing self-regulation, minimizing institutional and bureaucratic costs, and capitalizing on the incentives and informational advantages of market participants…”
“Importantly, the decision with respect to a new regulatory regime for online platforms is not made in a vacuum; rather, it is a choice between existing rules and the proposed alternatives. Justifying new rules demands a comparison to existing rules, meaning rigorous evidence not only that there is a problem, but also that any problems will be better addressed by new rules than current rules. No regulatory regime is perfect. Even if there are some identifiable problems with the current rules, that alone does not mean that any particular proposed new rules are preferable. The Commission should carefully consider existing law (like competition and consumer protection laws at both the EU and member-state levels) and whether new rules will bring the overall regulatory scheme closer to the optimal level.”
TOTM The traditional narrative is that Asian jurisdictions have fewer lawyers than in the West because they are much less litigious societies; they don’t need lawyers! . . .
The traditional narrative is that Asian jurisdictions have fewer lawyers than in the West because they are much less litigious societies; they don’t need lawyers! Recent evidence has suggested the causation is probably reversed; there are not enough lawyers to provide services to all potential litigants.
Scholarship The article, written jointly by a law professor and political science professor, endeavors to explain why the United States is particularly resistant to various efforts at international harmonization of antitrust law.
Although many states have advocated for the internationalization of antitrust laws, the United States has resisted a multilateral solution. We place the conflict over antitrust laws within the larger framework of international relations and draw out some novel implications of the debate by connecting the harmonization of international economic laws with the promotion of international peace and security. The harmonization of global antitrust laws is imbued with a political dimension that confers political benefits on the United States.
By crafting institutions in which other parties must alter their domestic political structures, the United States receives a credible commitment from other states of their willingness to bear the domestic costs of adherence to the specific agreement under negotiation, helping the United States identify potential allies. Separating budding friends from probable foes is a critical task of international security, and the United States derives political benefits from international agreements in a way that transcends the substance of the agreements themselves.
Read the full paper here.
TOTM It should be no surprise that the inventor of the poison pill is pro-director, but Marty Lipton’s remarks at a June 25 conference at the . . .
It should be no surprise that the inventor of the poison pill is pro-director, but Marty Lipton’s remarks at a June 25 conference at the University of Minnesota Law School left no doubt that he truly believes in his heart of hearts that we’re better off with strong, unencumbered boards. According to the WSJ’s deals blog (quoted in today’s print edition), Lipton wondered aloud whether the move to shareholder-centric governance will “simply overwhelm American business corporations.”
TOTM To no one’s great surprise (other than that it took so long), the European Commission issued a Statement of Objections against Intel today. More information . . .
To no one’s great surprise (other than that it took so long), the European Commission issued a Statement of Objections against Intel today. More information as it becomes available.
For those looking for a little insight into the case, you might be interested in The FTC’s 1998 Complaint against Intel and the resulting Consent Decree (the entire case file is here).
