What’s New with Wu

This is fun — off to Slate retreat for a few days!

I’m not a privacy scholar guru or anything, nor do I know much more about social networking sites than from monkeying around on my high school’s facebook network now and then. That’s stuff that only danah boyd understands.

But these parental comments, on a random forum, struck me as scary!

excerpt:

I do not believe teenagers “need” privacy-not when it comes to the internet.I track everything my kids do online. I search their bedrooms too. I’m the parent-I’m not their friend. I’d have a stern talking to him asap. I wouldn’t care if he got pissed-if he got mouthy about it, I’d pull his computer privileges and not let him go anywhere except to school and back.

He should consider that lucky…as a mother of a teenage daughter, if it were MY daughter who was his ex gf, he’d have more problems than losing internet rights & visiting his buddies. He’d be scared to leave your side.

Filed amicus with written with Henry Lanham on Friday in the case Twentieth Century Fox v. Cablevision.

You can download a PDF here; introduction is below.

AMICUS BRIEF OF PROFESSOR TIMOTHY WU & HENRY LANMAN

II. INTRODUCTION AND SUMMARY OF ARGUMENT

The decision below should be reversed for two reasons.

The principal problem with the lower court’s decision is that it creates an end-run around the Supreme Court’s secondary liability doctrines for copyright, as set forth in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), and MGM Studios, Inc., et al. v. Grokster, Ltd., et al., 545 U.S. 913 (2005). The Supreme Court’s secondary liability jurisprudence represents its best effort to balance content owners’ rights against the public’s interest in innovation. By creating a new form of direct liability, the district court’s holding would upend the Supreme Court’s careful work in this area and introduce new uncertainties for technological innovators.

Cablevision’s liability under Sony/Grokster, if any, is an open question. Were this dispute presented as a secondary liability problem, this Court would be forced to engage in a careful analysis of the social costs and benefits of the technology in question, weighed through the various safe harbors created by Sony and Grokster. Unfortunately, because of plaintiffs’ waiver of secondary liability claims, such matters are not before this Court, making this case a “bad vehicle” for the questions presented. The Court should not respond to this waiver, though, by creating a new form of direct liability that would side-step the Supreme Court’s rules in this area.

Second, and more broadly, the holding below creates a “regulatory asymmetry” – an unjustifiable difference in the legal status of competing solutions for providing DVR services. Copyright law unavoidably plays a major role in setting the conditions of competition in communications and technology markets. See Wu, Copyright’s Communications Policy, 103 Mich. L. Rev. 278. Given two competing and functionally similar means of communicating information, where one is held to infringe copyright and the other is not, the resulting regulatory asymmetry distorts competition. Here, the district court’s approach would create a major advantage for Device DVR technologies (or “STS-DVRs” in the district court’s terminology), by holding Network DVRs (or “RS-DVRs”) subject to a different and more stringent legal standard.

There is no reason that copyright law should chose a winner in the DVR market. Both Network and Device DVRs should be subject to the same standard – namely, the secondary liability standard set forth in Sony and Grokster.

For these reasons, amicus curiae Professor Wu respectfully suggeststhat this Court reverse the district court’s ruling that Cablevision’s proposed DVR program would directly violate the copyright laws, and suggests that liability, if any, lies under the secondary doctrines of Sony and Grokster.

Had coffee the other day with Wikitravel founder Evan Prodromou, in town for winning a Webby Award. Even though I’ve written a few unkind things about Wikitravel, we didn’t come to blows. Instead we chatted about Montreal, the Bay Area, whether Lonely Planet has gone downhill, things like that, great fun.
Wikitravel is trying to address some the (well-intentioned) criticism with Wikitravel Extra, which if you check it out is a way to add more user commentary on places.

The profile of Paul McCartney in last week’s New Yorker is a great read.

What I’m always most amazed about the Beatles is the way they worked. They just wrote songs like that, did a few albums a year, without fuss. Just kind of sat around, thought of a tune, and did it. Sometimes various versions, and just picked the best one.

That’s the way to create if you can do it. Kafka used to write whole stories in a single sitting. Richard Posner writes opinions in one sitting.

You just can’t be too fussy about the details or getting things perfect, as the Beatles, at least at first, weren’t.

Yochai Benkler, here pictured in Los Angeles, is moving to Harvard Law School. Yochai’s work on commons production mechanisms is it.

Great news for Harvard, of course — for years, despite the Berkman center, the school has had only a few high tech, telecom, or IP professors. Terry Fisher, and sometimes Jonathan Zittrain drops by from England.
Tough for Yale but they’ll get over it.

My real big question is whether Yochai’s going to keep that gorgeous apartment he has here in NYC

I’m moving and while I’ll probably buy, I went looking at rentals today.

Check this out. On Bleeker. An empty apartment, with a bad smell. Fourth floor walkup. Bad, fake plastic-wood floors. Collapsed bathroom ceiling. One bedroom.

Best of all, flies everywhere.

Asking Price: $5500 / month

I’m currently working on an amicus in the Cablevision Network DVR case, with the enormously talented Henry Lanman.

The argument is for reversal. And the brief says, roughly, that -

1. The district court’s decision creates an end-run around Sony & Grokster; and

2. It creates regulatory asymmetry, by picking a “winner” as between “Network-based” and “Device” DVR.

The waiver of secondary liability really throws a wrench into this case; my basic argument is that the second circuit should take that waiver seriously, instead of throwing elements of principal-agent analysis into direct liability.