Research

This thesis studies the design of member-maintained online communities, systems where many members help perform upkeep. A key design challenge is motivating members to contribute toward maintenance. Social science theories help to explain why people contribute to groups. We use these theories to design two general mechanisms for increasing people's motivation to contribute.

U.S. antitrust enforcers see little scope for antitrust policy to mitigate the consequences of imperfect IP policies. They are reluctant to intervene in what is perceived to be the sphere of IP policy and take the view that any competitive concerns are better remedied by changes in the IP policy. This trend corresponds with shielding antitrust policy away from fields occupied by other forms of regulation. Exactly the opposite tendencies are present in EU competition law. Both the European Commission and the ECJ seem to see a role for competition law to correct improvidently defined IPRs, even if it entails adjusting competition principles. It may seem reasonable, as unlike competition policy, most issues relating to IP policy within the European Union are still decided at the national level. Yet, there is an inherent danger in this approach. It may lead antitrust authorities to adopt analytically questionable approaches that undermine the coherence of antitrust law. Competition agencies must be particularly cautious in adopting the measures to curb IP laws, as they may discourage private R&D investment. The views of the Commission on application of Article 82 to interoperability information, as expressed in the Microsoft Decision and the Article 82 Paper, confirm that these reservations are valid.

Robert Kuttner learns that newspapers have a bright future as print-digital hybrids after all-- but they'd better hurry.

Using the language of mathematics, Professor Polk Wagner has recently argued that the impossibility of fully appropriating the value of information in a rightsholder leads to the surprising conclusion that expanding the degree of control of intellectual property rights will, in the long run, increase the sum total of information not subject to ownership claims and therefore available as part of the cultural and technological base on which new growth and development can occur. Indeed, he claims that open information will grow according to the formula for compound interest, where the interest rate is 100% plus or minus a factor z supposedly related to creation incentives. This article demonstrates that Professor Wagner's mathematical analysis is simply wrong and does not lead to any of the conclusions he reaches concerning the growth of open information. It also shows both the difficulties and the dangers of the lay use of the language of mathematics in resolving complex social problems even if one does the math correctly.

This paper examines the network neutrality debate with an eye toward refuting and dismissing the many false and misleading claims and concentrating on the real problems occasioned by the Internet's third evolution. The paper accepts as necessary and proper many types of price and quality of service discrimination. However the paper identifies other types of hidden and harmful discrimination. The paper concludes with an identification of best practices in "good" discrimination that should satisfy most network neutrality goals without creating disincentives that might dissuade ISPs from building the infrastructure needed for Internet 3.0 services.

Abstract: The internet offers the potential for economic growth stemming from online human communications, but recent industry and government actions have disfavored these possibilities by treating the internet like a content-delivery supply chain. I recommend that the internet be at the center of communications policy and that laws affecting internet access be evaluated in terms of whether they further U.S. economic growth by facilitating increased emergent online diversity. The article criticizes the nearly exclusive focus of communications policy on the private economic success of infrastructure and "application" providers, and suggests that communications policy be focused on facilitating communications themselves.

Abstract: This essay suggests that how "the internet" is understood has substantial legal, social, and cultural consequences. Beginning in the 1940s, Netheads adopted an understanding of man-computer symbiosis that continues to be attractive to internet futurists. Later on, in the 1970s, Engineers addressed the architectural needs of the future in a concrete way, seeking to interconnect diverse networks. In recent years, the Telcos have increasingly taken the position that "the Internet" is no more than the sum of their privately-owned pipes and wires. These three different approaches to "the Internet" are now informing a complex and important public policy debate about "network neutrality."

Abstract: Cyberspace provides an ideal legal environment for tortfeasors and online criminals because Internet Service Providers (ISPs) have no duty to mitigate harms caused by ongoing torts, crimes, and infringing acts. Courts have stretched Congress's express language in Section 230 of the Communications Decency Act from the narrow purpose of immunizing ISPs as publishers to the expanded purpose of shielding them from all tort liability. This Article proposes imposing a limited duty of crae on ISPs to remove or block ongoing tortious activities on their srvices when they have been given actual notice. This reform will harmonize American ISP liability law with the European union's Electronic Commerce Directive, which imposes an affirmative duty on ISPs to take down objectionable materials. It also will unify U.S. law by creating procedures consistent with the takedown policy mandated by the Digital Copyright Act.

Abstract: Archiving Internet content by storing old versions of Web pages is currently a growing trend because of the educational, cultural, and evidentiary value it provides. Google and the Internet Archive are two examples of Internet archives that provide this service. However, by storing old versions of Web pages without first obtaining the permission of authors, Internet archives infringe on the copyrights of authors. Under the fair use exception to copyright infringement, Internet archives may be legally authorized to archive old versions of Web pages without first obtaining the permission of authors in certain situations. However, this paper argues that, in all cases, the burden should be placed on authors to notify Internet archives that they wish for their Web pages to be excluded from the archive, rather than placing the burden on Internet archives to contact authors before they archive Web pages. By not overburdening Internet archives, the current opt-out policy is more advantageous than an opt-in policy because it allows Internet archives to continue to provide the benefits of archiving old Web pages to the public.

This paper critically evaluates the efficacy of two regulatory initiatives - the UN Global Compact and the US Global Online Freedom Act - in dealing with the specific challenges posed by doing business with or within China. In considering how much promise these two initiatives offer in ensuring that corporations take their human rights responsibilities seriously, two specific claims are advanced. First, that the Global Compact has failed not only in convincing US corporations to embrace, support and enact its ten principles, but also in ensuring that participant corporations seriously fulfill their undertaken commitments. Such a US-specific inquiry is especially relevant because many MNCs that have been sued for human rights abuses have a presence in the US. The second claim is that although home state extraterritorial regulation is a potential option to tame MNCs' abusive activities, it is unlikely that the Freedom Act, even if enacted, will achieve its goal of promoting Internet freedom globally by combating censorship by authoritarian foreign governments.

Abstract: This article will provide a road map to the legal issues posed by Internet search engines. It will indicate what questions we must consider when thinking about search engines, and it will detail the interconnections among those questions. It will not endorse any particular normative framework for search. Nor will it recommend who should regulate search. Instead, it will provide the necessary foundation for informed decision-making, by whatever regulator and whatever its normative approach. Part I will explain how modern search engines function and describe the business environment within which they operate. Part II, the heart of the article, will present a descriptive analysis of the legal struggles over search, showing how questions of search policy, many of which have long been latent in different fields of Internet law, are increasingly confronting lawyers, courts, and regulators. Part III will then show, with five examples, how taking a broad view of search yields otherwise unavailable insights into pressing controversies. This is not to say that the end result must be a body of search-specific law, only to note that failing to consider the larger forces at work in search is antithetical to sensible policy-making.

The difficult jurisdictional issues raised by the Internet have captured significant attention, prompting one federal judge to comment that, "[t]o paraphrase Gertrude Stein, as far as the Internet is concerned, not only is there perhaps 'no there there,' the 'there' is everywhere where there is Internet access." This lack of clear borders creates tension between different interests. The media desire certainty regarding when online content creates a basis for personal jurisdiction so that they can avoid defamation lawsuits in distant places. Sovereign nations want to ensure that the ubiquitous nature of the Internet does not undermine their ability to enforce substantive laws balancing speech and reputation rights. This Part's comparison of U.S. and Commonwealth cases reveals differing approaches to determining when to exercise jurisdiction over media defendants based on Internet content. U.S. courts have adopted a targeting test that requires purposefully directing activity at a forum as opposed to merely providing content accessible there. Courts in Commonwealth countries, including Australia, the United Kingdom, and Canada, have based jurisdiction on foreseeability, exercising jurisdiction over any online media content that could harm a plaintiff's reputation in the forum. Although these inconsistent jurisdictional tests are a matter of procedure, they stem from different substantive laws and from Commonwealth courts' underlying unfriendliness to U.S. free speech protections. Media defendants have argued for special jurisdictional rules applicable to the Internet alone; however, any such call for reform must recognize that the procedural divergence results from entrenched substantive differences. Thus, this Part argues that absent an international agreement harmonizing the jurisdictional analysis, courts are not likely to adopt special Internet rules, and media groups will instead be compelled to turn to technological solutions.

To build systems shielding users from fraudulent (or phishing) websites, designers need to know which attack strategies work and why. This paper provides the first empirical evidence about which malicious strategies are successful at deceiving general users. We first analyzed a large set of captured phishing attacks and developed a set of hypotheses about why these strategies might work. We then assessed these hypotheses with a usability study in which 22 participants were shown 20 web sites and asked to determine which ones were fraudulent. We found that 23% of the participants did not look at browser-based cues such as the address bar, status bar and the security indicators, leading to incorrect choices 40% of the time. We also found that some visual deception attacks can fool even the most sophisticated users. These results illustrate that standard security indicators are not effective for a substantial fraction of users, and suggest that alternative approaches are needed.

Abstract: Digital technology, and particularly the Internet, is reducing the cost of publishing works, but has also made the unauthorised copying and distributing of works virtually costless. Despite the level of harmonisation of copyright laws worldwide, achieved through the Berne Convention, the TRIPs Agreement and WIPO Copyright Treaty, such copyright infringements on the Internet still give rise to a number of relevant conflict of laws issues. This article focuses on the analysis of the applicable law rules provided under the Berne Convention in relation to economic and moral rights in the light of the various technical scenarios of copyright infringement in cyberspace. From this perspective, it also attempts to assess if and to what extent it is possible to attribute a new meaning to too often datable applicable law principles.

Abstract: This brief essay is a critique of Glenn Reynold's paper Libel in the Blogosphere: Some Preliminary Thoughts. I conclude that Reynolds's proposal to treat defamatory internet and blog speech as slander, while well-intentioned, would have a devastating impact on defamation victims' ability to recover due to the interplay between Reynold's proposal and Section 230 of the Communications Decency Act.

Abstract: This article focuses on choice of law in the context of Internet defamation with reference to a recent Australian High Court decision, Dow Jones v. Gutnick. The case raised a myriad of issues ranging from comparative defamation laws (and value systems) of the United States versus Australia, the meaning of "publication" and the need for Internet-specific legal reforms. These issues interact with and have an impact upon the choice of law problem. This article discusses the various alternatives for resolving the choice of law problem. It concludes by tentatively recommending some choice of law rules in the context of Internet defamation.

Abstract: This article aims to outline current responses to sexual grooming; specific attention will be given to new legislation introduced in England and Wales under the Sexual Offences Act 2003. Following an outline of this new legislation, consideration will be given to its effectiveness, including practical difficulties that are likely to restrict its scope. Issues to be discussed include: poor definition and understanding of sexual grooming, scope of legislation in relation to non-Internet grooming, difficulties in identifying sexual grooming, and a failure of the new legislation to be truly preventative. The article concludes by supporting Richard Laws's suggestion that the most effective prevention of child sexual abuse would result from adopting a public health approach.

Abstract: This article, the product of extensive interviews across China, asks the following question: What has China's internet revolution meant for its legal system? What does cheaper if not free speech mean for Chinese judges?

Abstract: Network neutrality has emerged as one of the highest profile issues in telecommunications and Internet policy last year. Not only did it play a pivotal role in both houses of Congress during debates over proposed communications reform legislation; it also emerged as a key consideration during the Federal Communications Commission consideration of the recent SBC-AT&T, Verizon-MCI, and AT&T-BellSouth mergers. In the following exchange, Professors Christopher Yoo and Tim Wu engage in a lively debate over the merits of network neutrality that reviews the leading arguments on both sides of the issue.

Abstract: This review of Jack Goldsmith and Tim Wu's Who Controls the Internet? Illusions of a Borderless World, notes that Goldsmith and Wu are correct in concluding that events in recent years undercut cyber-utopian theories of an Internet that is beyond the reach of national sovereignty. It argues, however, that the failure to achieve such goals does not mean that the Internet is unimportant as a source of expanded freedom and power on the part of ordinary people, and suggests that this trend of individual empowerment is likely to continue.

The principles behind the Fourth Amendment's Search and Seizure clause are found throughout Anglo-American jurisprudence. This body of law reflects a history of attempting to harmonize the seemingly conflicting governmental goals of communication privacy on the one hand, and protecting the public safety and national security on the other. Nations adopt surveillance doctrines, driven largely by the realities of the technology. As technologies change, assumptions behind doctrines can become outdated.

Abstract: This book chapter addresses various domain name issues and the interface between registration of domain names and trademark rights. It provides technical and historical background to domain names disputes and moves to focus on particular matters of interest such as regulation in the U.S. and via ICANN, conflict of laws, international aspects, potential abuse of regulatory mechanisms, litigation strategies and freedom of speech issues.

Abstract: A Distributed Denial of Service (DDoS) attack aims to deprive legitimate users of a resource or service provided by a system, by overloading the system with a flood of data packets, thus preventing it from processing legitimate requests. This article analyzes the doctrines governing the allocation of liability among key players in a DDoS attack. The doctrines are well established and based on common law tort principles and policy considerations. The main contribution of the article is the adaptation of these principles to the novel technological environment in which DDoS attacks occur. The analysis shows that detailed understanding of the technologies and analysis of their role in DDoS attacks are essential to effective judicial decisionmaking.

This paper outlines a framework for agenda setting that could help the Forum to ensure these processes identify and attend to the key substantive issues that merit discussion at the Forum. It is anchored on the view that most issues of Internet governance for development are being grappled with by many separate but interdependent actors and agencies at various levels. However, this creates a need to identify issues that are not 'owned', or not well understood, in order to facilitate the creation of bridges between actors and agencies trying to tackle the same or similar issues. It draws on various research initiatives at Oxford University's Oxford Internet Institute (OII), particularly an international forum on Internet governance and a series of seminars reflecting on civil society participation in the WSIS.

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors within the chain as proxy censors to control the flow of information.