Acacia have agreed to take over Global Patent Holdings.
"On Thursday, the company agreed to buy Global Patent Holdings, an umbrella company whose various divisions, including TechSearch, have sued or struck patent licenses with Intel, Sony, Samsung and a myriad of smaller technology companies.
The deal would create a patent powerhouse which would own small pieces of dozens of different technologies, many of which are fundamental components of everyday Internet and personal technology businesses. The company said more acquisitions are likely."
These kinds of patent portfolio companies are going to have a major impact on the balance, such as it is, of the markets underpinned by intellectual property and I'm not sure it will be too positive.
Friday, December 17, 2004
Freedom and ID cards
If you value your freedom reject this sinister ID card says Henry Porter in the Guardian.
Google and the libraries
Scott Rosenberg at Salon has some interesting comments on Google's project to digitise the contents of 5 famous academic libraries.
"Since we are, after all, talking about digitizing the entire body of published human knowledge, I can't help thinking that a public-sector effort -- whether government-backed or non-profit or both -- is more likely to serve the long-term public good. I know that's an unfashionable position in this market-driven era. It's also an unrealistic one given the current U.S. government's priorities.
But public investment has a pretty enviable track record: Think of the public goods that Americans enjoy today because the government chose to seed them and insure their universality -- from the still-essential Social Security program to the interstate highway system to the Internet itself. In an ideal world, it seems to me, Google would be a technology contractor for an institution like the Library of Congress. I'd rather see the company that builds the tools of access to information be an enabler of universal access than a gatekeeper or toll-taker.
The public has a big interest in making sure that no one business has a chokehold on the flow of human knowledge."
I think he may be reading a little too much into the Google initiative, since it's really only a small first step but you don't see too many liberal US journalists advocating public investment in preference to letting the market take its course.
"Since we are, after all, talking about digitizing the entire body of published human knowledge, I can't help thinking that a public-sector effort -- whether government-backed or non-profit or both -- is more likely to serve the long-term public good. I know that's an unfashionable position in this market-driven era. It's also an unrealistic one given the current U.S. government's priorities.
But public investment has a pretty enviable track record: Think of the public goods that Americans enjoy today because the government chose to seed them and insure their universality -- from the still-essential Social Security program to the interstate highway system to the Internet itself. In an ideal world, it seems to me, Google would be a technology contractor for an institution like the Library of Congress. I'd rather see the company that builds the tools of access to information be an enabler of universal access than a gatekeeper or toll-taker.
The public has a big interest in making sure that no one business has a chokehold on the flow of human knowledge."
I think he may be reading a little too much into the Google initiative, since it's really only a small first step but you don't see too many liberal US journalists advocating public investment in preference to letting the market take its course.
Movie industry complaints v BitTorrent et al
Findlaw have copies of the movie industry complaints P2P lawsuits launched this week.
Thursday, December 16, 2004
Finalists -- Short Movie Competition
From James Boyle (William Neal Reynolds Professor of Law, Duke University Law School):
A documentarian trying to cover army recruiters in the North Carolina Piedmont...
A Polish animator's science fiction vision of music's apocalytic future...
A college student's efforts to make a Public Service Announcement about the Civil Rights movement..
A dissection of the law behind "Supersize Me"....
These and other finalists have been posted in the Short Video Contest sponsored by Duke's Center for the Study of the Public Domain. You can find (and vote for) the 8 films, all of which are under Creative Commons licenses, at
http://www.law.duke.edu/cspd/contest/finalists/
Please have a look and pass the word on to your friends.
The competition was an international one for the best 2 minute video or animation about the ways that intellectual property affects art -- specifically music or documentary film. The winners -- both Judges' Selections and "the People's Choice" -- will be announced on January 15th.
The Arts Project is supported by a generous grant from the Rockefeller Foundation.
(Apologies for any cross posting)
Center for the Study of the Public Domain
www.law.duke.edu/cspd
A documentarian trying to cover army recruiters in the North Carolina Piedmont...
A Polish animator's science fiction vision of music's apocalytic future...
A college student's efforts to make a Public Service Announcement about the Civil Rights movement..
A dissection of the law behind "Supersize Me"....
These and other finalists have been posted in the Short Video Contest sponsored by Duke's Center for the Study of the Public Domain. You can find (and vote for) the 8 films, all of which are under Creative Commons licenses, at
http://www.law.duke.edu/cspd/contest/finalists/
Please have a look and pass the word on to your friends.
The competition was an international one for the best 2 minute video or animation about the ways that intellectual property affects art -- specifically music or documentary film. The winners -- both Judges' Selections and "the People's Choice" -- will be announced on January 15th.
The Arts Project is supported by a generous grant from the Rockefeller Foundation.
(Apologies for any cross posting)
Center for the Study of the Public Domain
www.law.duke.edu/cspd
Ethics are the new craft
"Ethics are the new craft" by Cory Doctorow in the latest edition of SCRIPT-ed. He's in full flow:
"It's one thing to be a conservative company offering copy-restricted digital music players in a world of open MP3 players (you'd get clobbered)," [which is the point I was making about drm in the context of the Apple v Real spat yesterday] "but it's another entirely to inhabit a market where every firm is part of a gentlecompany's agreement not to roll out any really disruptive, novel, dangerous features.
Of course, there's another word for that kind of agreement: cartel. Or, possibly, conspiracy. Not an explicit back-room conspiracy (though the tech world has its share of those), but rather, an emergent conspiracy of risk-aversion and overstuffed comfort that has turned our once-heroic, envelope-pushing defenders into a race of cowardly, timid toymakers whose wares put-put along alongside of the roaring engines of progress in the world of general-purpose computers and networks...
Technology is commodity...
in the past, the thing that stood between a trade and commodification was *craftsmanship*. Bespoke suits, hand-made clocks with jeweled movements, hand-carved fripperies on a cuckoo clock.
But no one wants a bespoke USB thumb-drive (after all, you'll be throwing it out and replacing it with one twice as capacious and half as massy in a year)...
How do you differentiate yourself from your competitors, then?
By giving users the one thing you're better equipped to provide than they are: Freedom...
Once your customers get wind of the fact that all the features they've dreamt of are possible, cheap, and on offer in the high street, you'll find yourself in a category all your own."
And that's precisely the point. Locked down technology depends on too many people accepting that that is all that's possible and too many other people (within what Cory might consider the entertainment cartels) keeping the secret. It is impossible to lock down the knowledge that something can be done better or a piece of gadgetry can be improved.
That first mover in the generic digital music/video/entertainment player market will have an early advantage, as Cory suggests, but once the secret is out, expect the big players to follow rapidly. But don't bet on them downsizing their legal departments or scrapping drm any time soon - the lawyers, the lobbyists and the drm are currently doing an effective job of slowing down the pace of change.
There is a range of really interesting articles in this edition of SCRIPT-ed, probably the most important being the draft text of the lecture by South Africa's Supreme Court Judge Cameron held at the University of Edinburgh, Tuesday 19 October 2004. Highly recommended and lucidly indicative of the incredible importance in the modern world of the arcane, obscure, abstract subject with the eye-glazing label "intellectual property."
"Without patents or a comparable system of rewards and/or incentives, the drugs that can save six million lives in the developing world would probably not exist. Yet the system that made possible their creation helps ensure that the drugs remain inaccessible to those who need them most desperately.
The rights to exclusivity that lie at the heart of patent enforcement were developed in conditions of affluence that ill suit the conditions of most of the world’s people: in particular, those nations most severely affected by the world-wide AIDS pandemic. Yet despite significant progress in asserting the entitlement of poor nations to exploit knowledge productively to counter the ill effects of AIDS, those nations themselves have done relatively little to expand access.
Some, at least, of this inaction must be ascribed not to the formal constraints of international patent enforcement – for they after courageous activist interventions have been significantly relaxed – but to the constraining power of those with most to gain from continuingly rigid enforcement of that system.
True appreciation of the value of the patent idea demands resistance to this trend. In some cases, this could entail the comprehensive adoption and active use of the public health safeguards identified at Doha. In others, it could entail a departure from certain forms of IP protection in respect of certain innovations, such as product patents for pharmaceuticals. But in many – if not most – developing country scenarios, this might require much more, quite possibly including the adoption of new methods to encourage innovation and commercialisation.
One possibility is to replace market exclusivity with a royalty-based system in which any company that produces safe and effective generic medicines can sell its product and pay a percentage of the sale price to the patent holder. What constitutes a reasonable royalty would have to be determined to ensure a careful balancing of incentives to innovate versus increasing access. This would mean particularly low – or no – royalties in respect of products produced for developing countries."
"It's one thing to be a conservative company offering copy-restricted digital music players in a world of open MP3 players (you'd get clobbered)," [which is the point I was making about drm in the context of the Apple v Real spat yesterday] "but it's another entirely to inhabit a market where every firm is part of a gentlecompany's agreement not to roll out any really disruptive, novel, dangerous features.
Of course, there's another word for that kind of agreement: cartel. Or, possibly, conspiracy. Not an explicit back-room conspiracy (though the tech world has its share of those), but rather, an emergent conspiracy of risk-aversion and overstuffed comfort that has turned our once-heroic, envelope-pushing defenders into a race of cowardly, timid toymakers whose wares put-put along alongside of the roaring engines of progress in the world of general-purpose computers and networks...
Technology is commodity...
in the past, the thing that stood between a trade and commodification was *craftsmanship*. Bespoke suits, hand-made clocks with jeweled movements, hand-carved fripperies on a cuckoo clock.
But no one wants a bespoke USB thumb-drive (after all, you'll be throwing it out and replacing it with one twice as capacious and half as massy in a year)...
How do you differentiate yourself from your competitors, then?
By giving users the one thing you're better equipped to provide than they are: Freedom...
Once your customers get wind of the fact that all the features they've dreamt of are possible, cheap, and on offer in the high street, you'll find yourself in a category all your own."
And that's precisely the point. Locked down technology depends on too many people accepting that that is all that's possible and too many other people (within what Cory might consider the entertainment cartels) keeping the secret. It is impossible to lock down the knowledge that something can be done better or a piece of gadgetry can be improved.
That first mover in the generic digital music/video/entertainment player market will have an early advantage, as Cory suggests, but once the secret is out, expect the big players to follow rapidly. But don't bet on them downsizing their legal departments or scrapping drm any time soon - the lawyers, the lobbyists and the drm are currently doing an effective job of slowing down the pace of change.
There is a range of really interesting articles in this edition of SCRIPT-ed, probably the most important being the draft text of the lecture by South Africa's Supreme Court Judge Cameron held at the University of Edinburgh, Tuesday 19 October 2004. Highly recommended and lucidly indicative of the incredible importance in the modern world of the arcane, obscure, abstract subject with the eye-glazing label "intellectual property."
"Without patents or a comparable system of rewards and/or incentives, the drugs that can save six million lives in the developing world would probably not exist. Yet the system that made possible their creation helps ensure that the drugs remain inaccessible to those who need them most desperately.
The rights to exclusivity that lie at the heart of patent enforcement were developed in conditions of affluence that ill suit the conditions of most of the world’s people: in particular, those nations most severely affected by the world-wide AIDS pandemic. Yet despite significant progress in asserting the entitlement of poor nations to exploit knowledge productively to counter the ill effects of AIDS, those nations themselves have done relatively little to expand access.
Some, at least, of this inaction must be ascribed not to the formal constraints of international patent enforcement – for they after courageous activist interventions have been significantly relaxed – but to the constraining power of those with most to gain from continuingly rigid enforcement of that system.
True appreciation of the value of the patent idea demands resistance to this trend. In some cases, this could entail the comprehensive adoption and active use of the public health safeguards identified at Doha. In others, it could entail a departure from certain forms of IP protection in respect of certain innovations, such as product patents for pharmaceuticals. But in many – if not most – developing country scenarios, this might require much more, quite possibly including the adoption of new methods to encourage innovation and commercialisation.
One possibility is to replace market exclusivity with a royalty-based system in which any company that produces safe and effective generic medicines can sell its product and pay a percentage of the sale price to the patent holder. What constitutes a reasonable royalty would have to be determined to ensure a careful balancing of incentives to innovate versus increasing access. This would mean particularly low – or no – royalties in respect of products produced for developing countries."
Wednesday, December 15, 2004
Apple shut Real out of the iPod
As predicted by James Boyle in August, following the ridiculous dispute between RealNetworks and Apple over Real selling songs for the iPod, Apple have updated the iPod's software. Songs purchased from Real's online retail store will apparently no longer play on the iPod. As James said,
"You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Palo Alto Zen-chic the company normally projects. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA [Digital Millennium Copyright Act] and other laws.” What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real’s Music Store and play them on their own iPods. That’s it...
Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, is figuring out how things work, in order to compete with the original manufacturers, breaking and entering? In the strange netherland between hardware and software, device and product, the answer is often a morally heartfelt “yes!” I would stress “morally heartfelt”. It is true manufacturers want to make lots of money, and would rather not have competitors...
n the material world, when a razor manufacturer claims that a generic razor blade maker is “stealing my customers” by making compatible blades, we simply laugh. The “hacking” there consists of looking at the razor and manufacturing a blade that will fit. But when information about compatibility is inscribed in binary code and silicon circuits, rather than the moulded plastic of a razor cartridge, our moral intuitions are a little less confident. And all kinds of bad policy can flourish in that area of moral uncertainty...
Though this is an entirely unnecessary, legally created mess there is one nicely ironic note. About 20 years ago, a stylish technology company with a clearly superior hardware and software system had to choose whether to make its hardware platform open, and sell more of its superior software, or whether to make it closed, and tie the two tightly together. It chose closed. Its name: Apple. Its market share, now? About 5 per cent. Of course, back then competition was legal. One wishes that the new generation of copyright laws made it clearer that it still is."
And this is why this kind of drm will ultimately fail.
You'd like an expensive digital music player, sir/madam? Well we have a nice range in stock. What's that? Will it play songs from all the music shops you frequent? Good heavens! What an idea! Of course not! But I can certainly sell you a full range of expensive music players that will probably play songs from an approved selection of the major retailers. Pardon? Oh, seems rather extravagant and nonsensical to need 7 different players, when one should do the job? Oh sir/madam, if I may be so bold, that's a somewhat outdated notion surely? Perhaps with mergers and consolidations we may be down to two or three formats in a few years but the technology does move so quickly you know...
"You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Palo Alto Zen-chic the company normally projects. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA [Digital Millennium Copyright Act] and other laws.” What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real’s Music Store and play them on their own iPods. That’s it...
Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, is figuring out how things work, in order to compete with the original manufacturers, breaking and entering? In the strange netherland between hardware and software, device and product, the answer is often a morally heartfelt “yes!” I would stress “morally heartfelt”. It is true manufacturers want to make lots of money, and would rather not have competitors...
n the material world, when a razor manufacturer claims that a generic razor blade maker is “stealing my customers” by making compatible blades, we simply laugh. The “hacking” there consists of looking at the razor and manufacturing a blade that will fit. But when information about compatibility is inscribed in binary code and silicon circuits, rather than the moulded plastic of a razor cartridge, our moral intuitions are a little less confident. And all kinds of bad policy can flourish in that area of moral uncertainty...
Though this is an entirely unnecessary, legally created mess there is one nicely ironic note. About 20 years ago, a stylish technology company with a clearly superior hardware and software system had to choose whether to make its hardware platform open, and sell more of its superior software, or whether to make it closed, and tie the two tightly together. It chose closed. Its name: Apple. Its market share, now? About 5 per cent. Of course, back then competition was legal. One wishes that the new generation of copyright laws made it clearer that it still is."
And this is why this kind of drm will ultimately fail.
You'd like an expensive digital music player, sir/madam? Well we have a nice range in stock. What's that? Will it play songs from all the music shops you frequent? Good heavens! What an idea! Of course not! But I can certainly sell you a full range of expensive music players that will probably play songs from an approved selection of the major retailers. Pardon? Oh, seems rather extravagant and nonsensical to need 7 different players, when one should do the job? Oh sir/madam, if I may be so bold, that's a somewhat outdated notion surely? Perhaps with mergers and consolidations we may be down to two or three formats in a few years but the technology does move so quickly you know...
MPAA sue BitTorrent
The MPAA launched lawsuits against BitTorrent and others yesterday in the US and the UK.
Micheal Geist's BNA highlights also points me at a story updating developments in the RIM Blackberry patent infringement case. Apparently an appeal court has ruled against RIM which means Blackberry sales and manufacture could be halted.
Micheal Geist's BNA highlights also points me at a story updating developments in the RIM Blackberry patent infringement case. Apparently an appeal court has ruled against RIM which means Blackberry sales and manufacture could be halted.
Vitual enclosures and neoliberalism
One of my students has pointed me at this paper by a James Lindenschmidt which uses Larry Lessig's and James Boyle's notions of a commons and a second enclosure movement to rail against capitalism and neoliberalism in general and also the war in Iraq. Nothing new here as he articulates the benefits of an information commons but interesting to see Lessig and Boyle layered with ideological political rhetoric.
Schneier on Kafka and the Digital Person
Bruce Schneier has a lovely essay on the collection of personal information in the latest version of his excellent Crypto-gram newsletter, Kafka and the Digital Person. A sample:
"In the United States, information about a
person is owned by the person collects it, not by the person it is
about. There are specific exceptions in the law, but they're few and
far between. There are no broad data protection laws...
As a result, enormous databases exist that are filled with personal
information. These databases are owned by marketing firms, credit
bureaus, and the government. Amazon knows what books we buy. Our
supermarket knows what foods we eat. Credit card companies know quite
a lot about our purchasing habits...
All of this data is being combined, indexed, and correlated. And it's
being used for all sorts of things. Targeted marketing campaigns are
just the tip of the iceberg. This information is used by potential
employers to judge our suitability as employees, by potential landlords
to determine our suitability as renters, and by the government to
determine our likelihood of being a terrorist...
And with alarming frequency, our data is being abused by identity
thieves. The businesses that gather our data don't care much about
keeping it secure. So identity theft is a problem where those that
suffer from it - the individuals - are not in a position to improve
security, and those who are in a position to improve security don't
suffer from the problem.
The issue here is not about secrecy, it's about control. The issue is
that both government and commercial organizations are building "digital
dossiers" about us, and that these dossiers are being used to judge and
categorize us through some secret process."
"In the United States, information about a
person is owned by the person collects it, not by the person it is
about. There are specific exceptions in the law, but they're few and
far between. There are no broad data protection laws...
As a result, enormous databases exist that are filled with personal
information. These databases are owned by marketing firms, credit
bureaus, and the government. Amazon knows what books we buy. Our
supermarket knows what foods we eat. Credit card companies know quite
a lot about our purchasing habits...
All of this data is being combined, indexed, and correlated. And it's
being used for all sorts of things. Targeted marketing campaigns are
just the tip of the iceberg. This information is used by potential
employers to judge our suitability as employees, by potential landlords
to determine our suitability as renters, and by the government to
determine our likelihood of being a terrorist...
And with alarming frequency, our data is being abused by identity
thieves. The businesses that gather our data don't care much about
keeping it secure. So identity theft is a problem where those that
suffer from it - the individuals - are not in a position to improve
security, and those who are in a position to improve security don't
suffer from the problem.
The issue here is not about secrecy, it's about control. The issue is
that both government and commercial organizations are building "digital
dossiers" about us, and that these dossiers are being used to judge and
categorize us through some secret process."
Tuesday, December 14, 2004
Supreme Court to Review MGM v Grokster
My students will be very pleased that the US Supreme Court have decided to review the MGM v Grokster case too late for them to have to take it into account in their final course papers, which they submitted on the same day.
Google Is Adding Major Libraries to Its Database
The NYT have picked up the story that Google are engaged in a venture with some of the major academic libraries in the world to digitise their holdings and make them freely searchable over the Web.
"It may be only a step on a long road toward the long-predicted global virtual library. But the collaboration of Google and research institutions that also include Harvard, the University of Michigan, Stanford and the New York Public Library is a major stride in an ambitious Internet effort by various parties. The goal is to expand the Web beyond its current valuable, if eclectic, body of material and create a digital card catalog and searchable library for the world's books, scholarly papers and special collections."
I should think Larry Lessig, James Boyle, Brewster Kahle, John Naughton and many like-minded contemporaries will be pleased. I think it is a great initiative but it's just a start.
"It may be only a step on a long road toward the long-predicted global virtual library. But the collaboration of Google and research institutions that also include Harvard, the University of Michigan, Stanford and the New York Public Library is a major stride in an ambitious Internet effort by various parties. The goal is to expand the Web beyond its current valuable, if eclectic, body of material and create a digital card catalog and searchable library for the world's books, scholarly papers and special collections."
I should think Larry Lessig, James Boyle, Brewster Kahle, John Naughton and many like-minded contemporaries will be pleased. I think it is a great initiative but it's just a start.
Google + Harvard = Great information resource
From boingboing:
"Battelle's scoop on Google's University library project
John Battelle has the scoop on Google's "Project Ocean." From an email he received:
"Harvard University is embarking on a collaboration with Google that could harness Google's search technology to provide to both the Harvard community and the larger public a revolutionary new information location tool to find materials available in libraries. In the coming months, Google will collaborate with Harvard's libraries on a pilot project to digitize a substantial number of the 15 million volumes held in the University's extensive library system. Google will provide online access to the full text of those works that are in the public domain. In related agreements, Google will launch similar projects with Oxford, Stanford, the University of Michigan, and the New York Public Library." "
And the MPAA are about to sue BitTorrent and eDonkey.
"Battelle's scoop on Google's University library project
John Battelle has the scoop on Google's "Project Ocean." From an email he received:
"Harvard University is embarking on a collaboration with Google that could harness Google's search technology to provide to both the Harvard community and the larger public a revolutionary new information location tool to find materials available in libraries. In the coming months, Google will collaborate with Harvard's libraries on a pilot project to digitize a substantial number of the 15 million volumes held in the University's extensive library system. Google will provide online access to the full text of those works that are in the public domain. In related agreements, Google will launch similar projects with Oxford, Stanford, the University of Michigan, and the New York Public Library." "
And the MPAA are about to sue BitTorrent and eDonkey.
Court decisions written in sand
I highly recommend, to those of a sufficiently legalese-robust disposition, a paper from the Texas Law Review of 1999, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 Texas Law Review 269 (1999), by Stuart M. Benjamin, now a professor of law at Duke (though at the time of publication of the paper he was an associate professor at San Diego). (Warning - it's a big pdf file, so probably not worth trying to pull down over a slow modem).
It covers the impact of rapidly changing technologies and consequently changing facts on the legal appeal decision making process. Cases going through a long appellate process are not necessarily limited, of course, to areas of rapidly changing technologies and the paper outlines a couple of examples of such cases, such as the Alcoa antitrust action. (By "long" in the above sentence, of course, I mean a sufficiently long period of time to involve substantially changing facts. The actual time period will be dependent on the context and in practice could be significantly shorter than the 20 years taken by the Alcoa case).
From Professor Benjamin's conclusions:
"Bruce Ackerman introduced a useful metaphor for judging: judges as passengers in the caboose of a train, looking backward at the view behind them. One can imagine policymakers, looking boldly ahead setting the train (the American Republic) on a particular path. But the role of judges is to try to make sense of the landscape that the policymakers have carved out and the path they have chosen.
This article highlights an elaboration of the metaphor: appelate judges are not in the caboose looking at the landscape (at least insofar as the landscape represents the development of facts, as opposed to law). Trial judges are in the back of the caboose absorbing the view and writing descriptions of it; appellate judges are somewhere inside, blinds closed, relying exclusively (in theory anyway) on the descriptions that the trial judges give them. The problem on which this article focuses is that sometimes the landscape changes between the time the descriptions are written and the appellate judges get to review them."
He goes on to say that the system assumes facts don't change, so that the appeal judges can justifiably focus purely on questions of law; and even if facts do change, it is assumed that this only happens once and will not happen again. His suggestion on how to deal with this is that the appeal judges should open the blinds on their metaphorical train and make an assessment of the prevailing factual landscape themselves, even though this will involve more work for appeal courts.
Professor Benjamin rounds off the article thus:
"The larger issue, though, is that neither the appellate process nor our vision of precedent is terribly well equipped for rapidly changing facts. These situations confound not only our understanding of the role of appellate courts but the seeming permanence of appellate decisions. This article argues that fact updating will often be the most attractive response to changed and changing facts. But even if the updating of facts is necessary to ensure that appellate courts issue opinions that pertain to the world when those rulings are handed down, it is of course not sufficient to insulate appellate opinions from future factual changes. Where such transformations occur, formerly "current" appellate rulings will be out of date. Ultimately, whether we like it or not, judicial opinions are written in sand.
The use of the train metaphor is quite enlightening, don't you think?
It covers the impact of rapidly changing technologies and consequently changing facts on the legal appeal decision making process. Cases going through a long appellate process are not necessarily limited, of course, to areas of rapidly changing technologies and the paper outlines a couple of examples of such cases, such as the Alcoa antitrust action. (By "long" in the above sentence, of course, I mean a sufficiently long period of time to involve substantially changing facts. The actual time period will be dependent on the context and in practice could be significantly shorter than the 20 years taken by the Alcoa case).
From Professor Benjamin's conclusions:
"Bruce Ackerman introduced a useful metaphor for judging: judges as passengers in the caboose of a train, looking backward at the view behind them. One can imagine policymakers, looking boldly ahead setting the train (the American Republic) on a particular path. But the role of judges is to try to make sense of the landscape that the policymakers have carved out and the path they have chosen.
This article highlights an elaboration of the metaphor: appelate judges are not in the caboose looking at the landscape (at least insofar as the landscape represents the development of facts, as opposed to law). Trial judges are in the back of the caboose absorbing the view and writing descriptions of it; appellate judges are somewhere inside, blinds closed, relying exclusively (in theory anyway) on the descriptions that the trial judges give them. The problem on which this article focuses is that sometimes the landscape changes between the time the descriptions are written and the appellate judges get to review them."
He goes on to say that the system assumes facts don't change, so that the appeal judges can justifiably focus purely on questions of law; and even if facts do change, it is assumed that this only happens once and will not happen again. His suggestion on how to deal with this is that the appeal judges should open the blinds on their metaphorical train and make an assessment of the prevailing factual landscape themselves, even though this will involve more work for appeal courts.
Professor Benjamin rounds off the article thus:
"The larger issue, though, is that neither the appellate process nor our vision of precedent is terribly well equipped for rapidly changing facts. These situations confound not only our understanding of the role of appellate courts but the seeming permanence of appellate decisions. This article argues that fact updating will often be the most attractive response to changed and changing facts. But even if the updating of facts is necessary to ensure that appellate courts issue opinions that pertain to the world when those rulings are handed down, it is of course not sufficient to insulate appellate opinions from future factual changes. Where such transformations occur, formerly "current" appellate rulings will be out of date. Ultimately, whether we like it or not, judicial opinions are written in sand.
The use of the train metaphor is quite enlightening, don't you think?
Monday, December 13, 2004
Google sued over use of "Scholar"
The American Chemical Society have decided to sue Google:
"The complaint contends that Google’s use of the trademark “Scholar” for its Google Scholar literature-search engine constitutes trademark infringement and unfair competition."
"The complaint contends that Google’s use of the trademark “Scholar” for its Google Scholar literature-search engine constitutes trademark infringement and unfair competition."
Lessig's BOB
"Piracy" = "stealing" or else you get an "F"
Donna is angry that a teenager has been given an "F" by his teacher for an essay (html version here transcribed at boingboing with errors and teacher's comments.)
I'm just about to start grading end of course papers for T182 myself now. Better get on with it...
I'm just about to start grading end of course papers for T182 myself now. Better get on with it...
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