Archive for March, 2007

American Society of Int’l Law

Friday, March 30th, 2007

I moderated a panel at the American Society of Int’l Law yesterday, the key to which was no panel presentations allowed.  Just discussion and audience questions.

ASIL is a conference that tends to be about finding ways international law might be useful to the world.   Our panel — Esther Dyson, David Gross, and Michael Froomkin — seemed mainly to think that a relative lack of international regulation had been fine for internet development.  The interesting question is what happens next — my only guess so far has been a greater role for international trade.

But all this says something interesting.  If the Internet had been invented 50 years ago, there’d be an international agency tasked with its regulation or coordination, perhaps somewhat like ICAO.  That hasn’t happened (unless you count ICANN.)

Orchids

Monday, March 26th, 2007

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Cousin

Monday, March 26th, 2007

I have a russian cousin.

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Slate stories

Wednesday, March 21st, 2007

I am starting work on a new Slate series called “Lawbreaking in America,” with Dahlia Lithwick as editor.

Murakami, Ishiguro and their master

Tuesday, March 20th, 2007

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Two of my favorite living writers are Kazuo Ishiguro and Haruki Murakami. The similarities and differences of these writers, both Kakfa descendents, are a subject of endless fascination to me.

Ishiguro is clearly the better writer. His novels can sometimes be almost perfect — three of them: remains of the day, never let me go, and a pale view of hills, are, for what he sets out to do, about as close to perfection as I think a novel gets. By that I mean that not a word is out of place, characters are exactly who they need to be, and nothing happens without a reason. Ishiguro has a plan. He knows exactly what he wants to do, and he lets you have it in tiny doses. His writing is the opposite of chinese water torture.

By contrast Murakami is a complete mess. His books are powerful disappointments — in the sense of promising much more than they deliver. The trip is usually the same. Murakami is wildly creative and about half way through a Murakami book I am convinced of his genius. That’s until I realise he isn’t actually going to solve the problems he is laying out. He has no idea what he is doing or where he is going. And you can always pick up the strain as he tries to tie up as much as he can in the last few chapters.

But nonetheless I continue to read Murakami, irresistably, and love it. He’s like a method actor. The book, basically, is about him, and all he can write about is himself. I love watching his characters cook their food and play their music (two things they always do), because basically you’re just watching Murakami. The pleasure is the same you might have just watching Marlon Brando do anything in the Godfather. What attracts us to these kind of writers and actors I have no idea. But Murakami’s presence and power is enough to keep me through the book, even if by the end of it I want to throttle him for promising so much and failing to deliver. Or delivering is such a clumbsy way, Tom Wolfe-like, that sometimes you call it satire to be kind.

I suppose its the inevitable tradeoff for any creator: power against control. Ishiguro has perfection in every detail but less of that kind of power and passion that propells you through Murakami’s books. For example, I doubt Ishiguro could write a sex scene, or anything like the man-skinning scene in Murakami’s The Wind-Up Bird Chronicles.

The most interesting question, finally, is who is more evocative of their common master, Franz Kafka. Murakami has chaos, absurdity, and dreaminess in spades, and that wierd sexual energy of Kafka’s books. But what Murakami doesn’t get, and what Ishiguro does, is Kafka’s understanding of absurdity. In fact Ishiguro sometimes does better than Kafka in forcing his characters to react to completely absurd situations without relying on devices (like beetles) to bring out the absurdity. So on that score I’d hand the Kafka prize to Ishiguro.

Is Youtube really You?

Tuesday, March 20th, 2007

A more on the law, as opposed to strategy in the Viacom lawsuit.

Legally, the most interesting element is Viacom’s apparent argument is that YouTube isn’t even covered by s. 512 — because, in short, it isn’t really “you” enough.

Viacom seem to be preparing to argue that, since Youtube plays such a role in hosting the videos, and doing things like screening porn, the videos are not, in fact “user-directed content,” the hosting of which is protected by 17 U.S.C. 512(c).
The main challenge for that argument is the text of 512(c), which protects “user-directed content” or “the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”

That sounds like Youtube, since as the name suggests, Youtube stores content at the direction of a user. However, no one knows whether little steps, like making thumbnails, or screening sometimes and sometimes not, or offering search services, might take Youtube out of 512(c)’s protection.

The strongest argument that YouTube is not covered depends on the text.  The idea is that Youtube is going beyond “storage” of videos, and is in fact that active agent here, not the user.

That reading of 512(c) leaves most Web 2.0 sites with alot less coverage than they may have though they had — that is, all sites other than naked web hosting sites.  Facebook, Flickr, Myspace — all of these sites do more than just “store” information .  Are they covered by 512(c)?  Stay tuned.

Back

Tuesday, March 20th, 2007

Back from Thailand.   Less scuba and instead mostly rock climbing in Tonsai, near Krabi, which I recommend.

Came back to Viacom’s suit against Google is interesting.  One interesting thing is the risk to Viacom posed by its lawsuit.  Since Viacom’s competitors aren’t on board, the lawsuit poses risks.   Viacom’s properties probably couldn’t set up a competitive Youtube site to save their life — have you seen how bad comedy central’s video site is?   So one risk to Viacom is of Youtube actually beginning to screen all of their content, while leaving up its competitors who make deals.
For that reason I suspect like others that the point of the lawsuit is to negotiate a better share of advertising revenue than other companies are managing to get.   Unless Viacom really thinks it can compete with Youtube in the video space.  Companies sometimes become self-deluded like that, but I suspect Viacom knows better.  Alternatively Viacom may just want to keep its content only on medium it controls well, like TV, where at least you see the commercials flash by as you use Tivo, or perhaps cell phones.

To Thailand

Thursday, March 8th, 2007

Spring break means scuba time.

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Encouraging Scarcity or Abundance

Thursday, March 8th, 2007

Kennth Cheung at the University of Florida has released an interesting paper about whether carriers have an incentive to build more bandwidth in a non-net neutral situation.

His paper, which he sent me a few months ago, uses game theory to suggest that outcome. Unfortunately, Cheung has not done such a good job of making the paper available — I only heard it was released through the press release, and the SSRN link on the press release is dead. So Prof. Cheung, if you’re reading this, put the paper up somewhere.
In a different draft paper I’ve suggested another, fairly obvious possibility (my point is not original).

Consider this. If a network operator makes its income from its direct and immediate customer (Bill & Keep), it has an incentive to maximize bandwidth, so as to be able to charge more to that customer.

However, if an ISP earns money from charging termination fees to content providers (or, gatekeeper fees), its incentives become more complex. It may have an incentive to keep the gate relatively narrow — keep a control on the supply.

These are among the reasons that termination-fee based systems strike me as likely to lead in suspect directions