The Spring 2006 issue of the Yale Journal of Law and Technology is online:

YJOLT: Yale Journal of Law & Technology

This semester we have published two full length articles and two short articles, which are extended versions of position papers originally submitted to the Fall 2005 Search Engine Symposium. This issue epitomizes the present and future of YJOLT - creative new scholarship on core technology law issues (Pasquale's piece analyzing copyright through the lens of environmental economics), international law and technology (Cockfield's piece on the OECD and e-commerce), and cutting edge law and technology scholarship, including alternative forms of scholarship beyond the traditional journal article (the Goldman and Gasser pieces). But don't take my word for it - read the articles for yourself!

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Jason Pielemeier reports (lightly edited):

So the chair proposed splitting the process onto two tracks. There will be an SCCR on traditional broadcasting* before the General Assembly in Sept and if the General Assembly then agrees to set up a Diplomatic Conference, it will address only these traditional areas. After the General Assembly (either Nov '06 or April 07) there will be a separate SCCR on webcasting.

* The big debate this afternoon was over what gets included in this basket [of traditional broadcasting]. The US swallowed a pill by allowing these two to be split, but made a special note that IF the General Assembly does not send traditional broadcasting to a Dip Con, THEN they want to be able to merge it with webcasting . . . . The EU then stated that they would accept the two tracks ONLY if simulcasting was considered part of traditional broadcasting, and then parroted the US on the "If no Dip Con, then recombine everything". The US responded after the chair attempted to finish the session and said that they were under the understanding that the traditional broadcasting WOULD NOT include simulcasting. It seems as if they are playing the "if we can't have our rights, you can't have yours" because otherwise the EU might be ok with letting webcasting waste away. Rather than clarify, the chair then closed the session so it is unclear exactly whether simulcasting is included with traditional broadcasting or not.

This means that there is real pressure (oddly enough) on those who are against webcasting to achieve consensus and push through a traditional broadcast treaty (that is as flexible on Technological Protection Measures and limitations and exceptions as possible) to a Diplomatic Conference. The EU will push simulcasting, the US (probably) will resist because that will make it all that much harder to move the webcasting provisions later and the rest of the world will fall somewhere in between.

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Jason Pielemeier reports (lightly edited):

So today the discussion focused on webcast. It was clear from yesterday that webcasting (as defined in the Appendix) would not get consensus, but the real issue today was on whether simulcasting (as implicated by Art. 6) would be allowed to go through. There were some interesting exchanges including a particularly good one between the EU and India on the difference between digital broadcast and digital content.

There was enough non-consensus on simulcasting that even the US had to agree with a proposal by India to schedule another SCCR (15), presumably before the Sept General Assembly meeting. However, while India's proposal was to separate webcasting and simulcasting completely and have the next SCCR focus on broadcasting, the US wants it to include both in any future discussions. Egypt then pointed this out and said there was much less likely that SCCR 15 could be successful in producing consensus on a draft text before the GA if webcasting were included. The chair then proposed that he will make a tentative conclusion on what should be discussed at 15 and that will be discussed after lunch.

I'm not sure what this means for timing except that it might delay the diplomatic conference . . . though there is no guarantee on that.

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Jason Pielemeier reports (lightly edited):

Marathon session today lasted until 10:30pm. Seemed like the chair was really pushing the issues. He sort of piled through limitations and exceptions and TPMs after lunch despite the fact there was very little consensus on any of this.

Webcasting, the 10,000 pound gorilla, is scheduled for first thing tomorrow . . . The chair already hinted that he will likely create two seperate draft treaties each with its own timetable - one on broadcast and the other on webcasting. . . . Brazil continues to be very tough. . . . Meanwhile australia and canada seemed to have cooled on several parts of the treaty (principally retransmission) and that's helping too. Finally, US Telecom Association came out with a fantastic statement-paper (since no NGOs have been able to talk yet), that I think is worth quoting from briefly:

"USTelecom believes... these concerns can be addressed by narrowing the scope of the Treaty to prohibit signal theft... the webcasting portion of the Treaty should be deleted... should be revised to permit transmissions of signals w/in the home... should ensure that intermediary carriers are not exposed to liability."

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Jason Pielemeier reports from the trenches (lightly edited):

Lots of discussion on the substantive rights (Art's 6-10), very little consensus. US made an interesting proposal to make the treaty only require a 'right to prohibit' and clarified that this would be a non-transferable right that could not be licensed. Canada restated their position on rebroadcast. Brazil continues not to be satisfied w/ the current language.

Sounds like there are provisions made to do a night session tonight (not sure how typical this is) so as to make all possible put together something concrete to send to the dip conf. Not sure that even with a night session, this will be possible.

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Jason Pielemeier reports:

Chair says webcasting and broadcasting must be separated. Tomorrow we discuss substantive rights as they pertain ONLY to broadcasting and comcasting (oops, i mean cablecasting) and then we revisit webcasting at 5pm. . . . It's my opinion that the substantive rights discussion is going to be just as bad if not worse. till then, goodnight and good luck...

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Jason Pielemeier, a Yale Law School ISP Student Fellow is in Geneva this week for the WIPO negotiations on a Treaty for the Protection of Broadcasting Organizations. We covered earlier negotiations on this treaty here, and IP Watch and EFF have more coverage on this round here, here, and here.

Jasons reports:

Today the Chair redid the agenda and broke discussion down into 7 topical areas. The morning began with a discussion of Brazil (cultural diversity, general principles) and Chile (defense of competition) proposals. Quite a bit of discussion, finally ended up with a guarantee by the chair that the concerns would be incorporated one way or another (either in the preamble or in existing articles - 1 on relationship to other treaties; and 12 on limitations and exceptions) but not as free-standing articles (to Brazil's chagrin).

The discussion moved on to issue of term of protection (webcasting is bracketed until after lunch). The Chair sought to limit discussion by saying upfront that the two proposals (20 & 50 years) would both be sent to a diplomatic conf. Brazil intervened to seek clarification on when this term begins? Does it apply only to first broadcast? Chair clarified that as worded it applies to all broadcasts. On the term of protection issue, the chair later agreed to put the phrase "for the first one" (or something to that effect) in brackets at the end of the scope article to be sent to the diplomatic conf. Others intervene on what exactly the term of protection is referring to - signal or program/content? Philippines delegate, former chairman of Phil. Broadcasting Corp. made a beautiful intervention on the need to clarify between the two. Lengthy discussion ensued regarding "what are we protecting", despite chair's attempt to intervene and say that it shouldn't matter at this stage. All of a sudden it was lunch time.

Webcasting will be the first issue after lunch (upon insistence of India, Chile, Brazil that scope needs to be defined before substance). If (big if) that can be concluded, we move onto the substantive aspects of the treaty as well as who can be a member. My impression is that the stalling is tactical and that unless something happens soon (like the US gives up on webcasting), SCCR 14 will not conclude with a draft proposal for dip conf. Obviously I am not an expert in SCCR and there are 21/2 more days left, so this may be overly optimistic, but I'm going to throw it out there.

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Organizer: Shay David
Moderator: Karsten Gerloff
Panelists: Mark Cooper, Niva Elkin-Koren, Brian Fitzgerald, Rishab Ghosh, Nnenna Nwakanma

Panel description:

Cutting across the boundaries of fields as diverse as software, music, scholarly-publishing and agri-biotech, peer-based production sometimes replaces traditional production models of firms and markets across the economy. These new collaborative modes of production shift the constraints of innovation from access and control of capital to human creativity instead. To a large degree such innovation is dependant upon novel social arrangements that are, in turn, mediated and governed by licenses of various sorts. As we know, licensing is a common mechanism of defining, controlling and transferring ownership rights in tangible or non-tangible goods. Most licensing arrangements work under the premise that production, exchange and consumption are separate processes, however, as our society and economy depart from the Fordist-Taylorist assembly line models and espouse 'remix' as a predominant cultural mode, this very assumption is put into question. Licenses such as the GPL, and the Creative Commons, offer alternatives to "traditional" licenses, governing "traditional" production, and are playing a significant role in this shift. As peer based production matures, it becomes essential to investigate the role of licenses for this new collaborative world and their implications for innovation, business models, and societal effects.

Notes on the panel after the jump.

See the conference wikipage for further discussion.

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DRM and Globalization Panel

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Participants: Pam Samuelson, Jamie Love, Rinalia Abdul Rahim, Ronaldo Lemos, Anriette Esterhuysen, William Drake

Moderator: Peter Yu

As the world economy increasingly centers on "memes, genes, and bits," new technologies permit new production models that threaten entrenched interests. As a consequence, we face a looming political battle that could reshape the information society. There are three main barriers to democratic participation in setting the rules of the information economy that bias the playing field in favor of entrenched interests and old models. The first is that the harms of bad A2K policy often take a long time to manifest themselves, making it difficult to instill a sense of urgency in the body politic and among policy elites. The current experience of "information overload" obscures increasing regulation of the use of knowledge. The second is that information policy issues tend to be highly technical and esoteric to the uninitiated, and difficult even for the initiated to analyze effectively. The third is that the promises of a world where knowledge is free as the air we breathe seems ephemeral in the face of the concrete harms claimed by those who would fence off the information commons. There are countervailing forces. The steady internationalization of lawmaking has presented new opportunities for actors all along the political spectrum. The increasing marketshare of technologies that rely on access to knowledge, and the existence proofs of commons based models of production are creating larger constituencies. Finally, the network itself is making it easier to share information about what works and to overcome collective action problems. What will be the role of NGOs, corporations, and governments in this political battle? How will North and South reconcile their differences and recognize their overlapping interests? Will there be an environmentalism of the knowledge economy?

See the A2K conference wikipage for notes from Jason Pielemeier, with the Powerpoint slides coming soon.

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Student Organizer: Michael Steffen
Moderator: Mike Godwin
Speakers: Susan Crawford, Caio Pereira, Sean O'Siochru, Michael Geist

Panel description:

At the frontiers where traditional telephony, broadcast video, journalism, and interactive web services blur exist many of the applications that promote human rights and human development by fostering access to knowledge: distance learning, telemedicine, web conferencing, video blogging, to name a few. But these applications depend on access at a lower level--access to the pipe. Telecommunications policy is arguably a white elephant in the access to knowledge room.

Detailed notes by Chris Riley after the jump.

Also see the conference wikipage for more notes.

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Speakers: Keith Maskus, Nagla Rizk, Suzanne Scotchmer, Eric von Hippel, Eli Noam

Moderator: Rishab Ghosh

What is the causal connection between access to knowledge (A2K) initiatives and economic growth/development? For decades now, the idea that stronger intellectual property protection is critical to economic development has been the driving motto of national and international law-makers. Recent studies have however begun to question the validity of this idea, given the absence of strong empirical validation. This session will question the assumptions operating behind this dominant hypothesis and simultaneously suggest alternative modeling -- that greater use and access may be more facilitative of economic development than mere exclusivity and proprietary control.

Detailed notes by Shaymkrishna Balganesh after the jump.

Also see the conference wikipage for more notes.

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Speakers: Doris Long, Manon Ress, Anupam Chander, Eric Kansa

Moderator: Susan Scafidi

Panel Description:

Despite the global reach of the information economy, the dominant intellectual property paradigm is heavily biased against indigenous people throughout the developing world. While Western intellectual property regimes offer strong protections for individual creators and inventors' "private knowledge," they offer no obvious ways to protect "indigenous knowledge"--the cultural expressions, traditional practices, and genetic resources that have been developed by indigenous communities through collective and incremental processes that span generations. Indigenous knowledge is therefore easily exploited by those who would use dominant legal paradigms to appropriate and copyright unprotected indigenous knowledge as their own creations.

Notes prepared by Jesse Grittner, after the jump.

Update: See the wikipage for this panel.

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The peer production and education panel, organized by Anne Huang, is moderated by Andy Carvin and features Jennifer Corriero, Saskia Harmsen, Steve Midgley, and Jac Stienen. Liveblog, courtesy of Jason Pielemeier, after the jump.

Update: See the wikipage on this panel.

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The framing panel sets up the remainder of the conference by giving us the language to talk about what access to knowledge requires, and identify the core concerns of justice that drive this movement. Justice, human flourishing, economic development, and human rights were the main themes. Helen Nissenbaum moderated this panel, which included Jack Balkin, Sisule Musungu, Joel Mokyr, Davinia Ovett, John Howkins, and Yochai Benkler. Detailed notes after the jump.

Update: See the conference wikipage for this panel.

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This Friday-Sunday the Yale Law School ISP is bringing together an incredible group of academics, activists, policy wonks, industry leaders, and government officials to answer one of the most pressing questions of our age:

What will it take to promote access to knowledge for the sake of human flourishing?

This question is pushing the agenda in so many domains, including access to medicines, access to textbooks, telecom policy, library policy, broadcasting policy, traditional knowledge, open access journals and free software, to name a few.

In each of these areas we have many answers to the question of how to deploy knowledge for development, but we have a long research agenda ahead of us, and many answered questions are still searching for concrete policy solutions. This conference aims to move us forward on both fronts, and help build the strategic partnerships that will continue to propel the Access to Knowledge movement.

Check out the list of panels and speakers, and if you can make it to New Haven this Friday, Saturday or Sunday register for the conference. In any case, watch this space for regular updates.

UPDATE: Great notes on the conference panels are now on the Yale A2K wiki.

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Have you ever complained about "those idiots in Congress"? Think you could do better? What about Supreme Court justices? Ever want to re-write their opinions? Well, now's your chance to do that. Sort of.

A new wiki-site--Wikocracy-- allows you to edit the law. Of course, it allows every one to edit it as well. The result? Open source law.

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Film Professor Fights the DMCA

Film professor Peter Decherney at UPenn assembles a montage of clips of movies to use in his classroom. He extracts the clips from commercial DVDs, and thus must circumvent technological protection measures. His actions are almost certainly illegal according to the law as written. Section (a)(1)(A) prohibits his activities, and section (d)'s protection for nonprofit "good faith determination" of whether to acquire a work does not seem sufficiently broad to protect him. He is applying to protect this typical copyright fair use right, and he is looking for assistance.

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Last week the House Committee on International Relations held a hearing on the Internet and China. I watched much of it with a mixed reaction of loathing, cynicism and a small glimmer of hope. The hearing was called as part of an increasing level of media and governmental scrutiny directed at large tech companies doing business in repressive societies, and who have been complicit in identifying dissident bloggers, removing their postings, censoring web searches and controlling net access.

The testimony presented by the U.S. technology giants of Microsoft, Yahoo!, Google and Cisco was a lovely example of pleading in the alternative. Essentially: ‘We didn’t do anything wrong; and even if we did do something wrong, we didn’t have a choice; and even if we had a choice, we made the best choice; and even if it wasn’t the best choice, this will lead to better choices; and even if it doesn’t lead to better choices, it’s the government’s problem anyway.’

(Continued...)

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Though the night was not especially cold for December, this year’s unusually mild weather made the sudden onset of a New England winter seem far worse than that of years past. It was ten-thirty on a Saturday night. The pre-conference dinner at Zinc was winding down. Many of the next day’s presenters had already returned to their hotel, but a few of them remained embroiled in conversation and finishing their glasses of wine.

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