Research

03 October 2006

Rethinking Accountability in Cyberspace: A New Perspective on ICANN by KEES DE VEY MESTDAGH and RUDOLF W. RIJGERSBERG (University of Groningen) Social Science Research Network

Abstract: One of the most persistent debates regarding Internet governance concerns ICANN's accountability deficit. This paper identifies the habitual application of a State frame of reference by which scholars and politicians address accountability issues regarding the domain name system as the source of this debate. Re-examination of the assumptions underlying two exemplary solutions, direct elections and intergovernmental supervision, shows that the State frame of reference informing this debate ultimately breaks down. The availability of alternative services renders the call for a State-based model by which to judge and design ICANN's accountability provisions superfluous. The latter part of the paper shows that a market model is more appropriate to assess ICANN's accountability mechanisms and its role amongst other domain name services providers. In addition, a market frame of reference enables us to understand ICANN's hybrid organisational structure better.

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08 May 2006

Property, Intellectual Property, and Free Riding by MARK A. LEMLEY (August 2004) Social Science Research Network

Abstract: Courts and scholars have increasingly assumed that intellectual property is a form of property, and have applied the economic insights of Harold Demsetz and other property theorists to condemn the use of intellectual property by others as "free riding." In this article, I argue that this represents a fundamental misapplication of the economic theory of property. The economics of property is concerned with internalizing negative externalities - harms that one person's use of land does to another's interest to it, as in the familiar tragedy of the commons. But the externalities in intellectual property are positive, not negative, and property theory offers little or no justification for internalizing positive externalities. Indeed, doing so is at odds with the logic and functioning of the market. From this core insight, I proceed to explain why free riding is desirable in intellectual property cases except in limited circumstances where curbing it is necessary to encourage creativity. I explain why economic theory demonstrates that too much protection is just as bad as not enough protection, and therefore why intellectual property law must search for balance, not free riders. Finally, I consider whether we would be better served by another metaphor than the misused notion of intellectual property as a form of tangible property.

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18 April 2006

Borrowing from our Common Law Cousins: American and British Influences on the Merger of Canadian Trademark and Internet Domain Name Laws by VINCENT-JOËL PROULX Social Science Electronic Publishing

Abstract: This article posits that Canadian trademark law is sufficiently circumscribed to regulate the realm of Internet domain names. The overarching purpose of its thesis aims to identify an inherent compatibility between Canadian trademark law and the Internet, while also clearly delineating the Canadian legal framework vis-a-vis domain names. In shedding light on this legal symbiosis, the article ventures upon a comparative study of Canadian, US, and UK jurisprudence, while also taking stock of certain arbitral structures such as ICANN, in order to highlight horizontal legal transplants that will have direct incidence on Canadian online business. Among the themes canvassed, particular emphasis is placed on the ever-increasing extraterritoriality of US law in this field, along with the acknowledgement that US judicial precedents wield considerable influence over Canadian intellectual property policy. As a corollary to this proposition, deference to transboundary domain name litigation and transnational law-derived considerations also pervade the discussion. The merging of Canadian trademark law and Internet domain name regulation is ultimately actuated through the extension of foundational trademark concepts, such as confusion and passing off, to the Internet, along with judicial pronouncements emanating from cognate common law jurisdictions, which are conflated into a single, overriding approach.

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Convergence? by Geoff Huston ISOC

If there is one word in the telecommunications that has suffered from over-abuse for many years now, its convergence. The term has been liberally applied to each successive generation of communications technology for their supposed ability to solve a myriad of service delivery problems within a single unifying converged carriage and service delivery solution. Unfortunately, the underlying reality has always been markedly different from these wondrous promises, and we continue to see an industry that deploys a plethora of service delivery platforms and an equally diverse collection of associated switching and service delivery technologies. One can't help but wonder at the collective gullibility of an industry that continues to herald the convergent attributes of each new generation of communications technology, while at the same time being forced to admit that previous convergent promises have never been realized.

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Challenges to Authority, Burdens of Legitimization: The Printing Press and the Internet By Zach Kertcher and Ainat N. Margalit Yale Journal of Law & Technology

Abstract: The Internet is often regarded as a challenge to the nation-state's ability to regulate flows of finance, information, and symbols. Rather than examining whether it is possible to enforce regulation on such a media, this paper addresses two additional fundamental questions: (1) what do regulatory discourses and attempts to regulate reveal about the nation-state's political authority under globalization, and (2) how does this authority vary across social, political, and cultural contexts? In order to address these challenging queries we follow a unique path, both empirically and theoretically. Theoretically, we argue that political authority is a pivotal common denominator that undergirds diverse understandings of globalization. We then critically examine different conceptions of political authority and construct a typology that orients our study. Empirically, we follow our typology by comparing two historical phenomena: attempts by the Catholic Church to regulate the printing press during the 15th and 16th centuries, and attempts by China, Malaysia and the United States to regulate the Internet. Despite certain important commonalities, we posit that each of these cases illustrates a different model of the legitimization processes and transformations in political authority that occur under globalization.

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Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing of Music in the United Kingdom By Robert Danay Yale Journal of Law & Technology

Abstract: This paper explores the extent to which the peer-to-peer (p2p) file-sharing of music is a form of communication protected from the restrictions of the Copyright, Designs and Patents Act 1988 (U.K.) (CDPA) by the guarantee of free expression enshrined in Article 10 of the European Convention on Human Rights (ECHR) and incorporated into domestic law through the Human Rights Act 1998 (U.K.) (HRA). The paper first examines the protection offered to freedom of expression through the existing copyright scheme. It is asserted that due to a lack of context-sensitivity, mechanisms such as the idea-expression dichotomy must not be relied upon to deny the existence of prima facie breaches of Article 10(1) of the ECHR. Rather, such breaches must be acknowledged and justified (if possible) as being "necessary in a democratic society" under Article 10(2) of the ECHR. Next, the extent to which p2p music file-sharing represents an infringement under the terms of the CDPA (exclusive of any effect of the ECHR) is examined. It is concluded that such sharing does amount to an infringement under the Act and is not subject to any of the enumerated defences. The final part of the paper explores the extent to which the statutory restriction on file-sharing of music may be permitted under Article 10 of the ECHR. It is suggested that, for a number of reasons, the CDPA's restriction on free expression may not be "necessary in a democratic society" under Article 10(2) of the ECHR. As a result, should this statutory restriction be impugned in a U.K. courtroom in the context of p2p music file-sharing, such a court may be under an obligation to exculpate infringing parties under the "public interest" defence or to make a declaration of incompatibility under the HRA.

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Law as a Network Standard By Dan L. Burk Yale Journal of Law & Technology

Abstract: The problem of global information flows via computer networks raises issues of competition, interoperability, and standard-setting parallel to those in the analysis of technical standards. Uniform standards, whether technical or legal, give rise to a constellation of positive and negative network effects. As a global network based upon the "end to end" principle of interoperability, the Internet mediates between different, otherwise incompatible computing platforms. To the extent that law and technological "code" may act as substitutes in shaping human behavior, the Internet similarly mediates between different, otherwise incompatible legal platforms. Much of the legal and social controversy surrounding the Internet stems from the interconnection of such incompatible legal systems. As with technical systems, problems of incompatibility may be addressed by the adoption of uniform legal standards. This, however, raises legal standard-setting problems similar to those seen in technical standard setting, where the standard may be "tipped" in favor of dominant producers. In particular, if law is considered a social product, the benefits of interjurisdictional competition and diversity may be lost as a single uniform legal standard dominates the market for law.

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The World Trade Law of Internet Filtering by Tim Wu Social Science Electronic Publishing

Abstract: In its introduction to problems of trade in internet-based services, this paper focuses on two cases: one a country and one a product. The national study is of China, among the world's more comprehensive internet regulators. China makes for an interesting case because as a condition to accession to the WTO, it agreed to what has been called "radical" reform of its service practices. Yet at the same time China is among the world's more active filterers of internet services. As we shall see, these two positions are in tension, and while WTO law leaves much room for exceptions, some of China's restrictions may not be easily justifiable under the GATS. The second study is of the company Skype, a provider of voice over Internet services. Skype offers free voice telephone services to anyone with an internet connection. As a consequences, incumbent telephony carriers, often state-owned, have a strong competitive interest in preventing Skype from reaching their customers. The instances of Skype blocking in several countries raise interesting trade in services issues. This paper is meant for two audiences. For those within the world of trade law it clarifies how internet services have leapt beyond what was contemplated in GATS or subsequent telecommunications agreements. The universalization of a network that is a platform for any type of service requires new thinking about how barriers may come about, and how sectoral commitments are interpreted. For those within the world of telecommunications or internet law, this paper introduces the relevance of WTO law to national regulation of internet services. One of the most interesting consequences may be a tempering of what we might call the "Yahoo! Presumption"; that is, the presumption that the burden lies with internet companies to adapt to national legal systems. While still generally true, the tendency in WTO jurisprudence is to put the burden on national governments to justify internet blocking.

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Internet Adoption and Usage Patterns are Different: Implications for the Digital Divide by AVI GOLDFARB and JEFFREY PRINCE Social Science Electronic Publishing

Abstract: We show that Internet adoption and usage patterns are different. Using a survey of 18,439 Americans we find that high income, educated people are more likely to have adopted the Internet by December 2001. However, of those who have adopted, low income, less educated people spend more time online, even controlling for leisure time and for selection with a Heckman correction. Furthermore, these current non-adopters will use the Internet for many of the activities explicitly stated as goals of policy initiatives: telemedicine, e-government, and online communications. This result has important implications for policies aimed at closing the Digital Divide.

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Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass by SHYAMKRISHNA BALGANESH SSRN Electronic Library

Abstract: The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to examine the implications of transposing property metaphors to the world of the Internet, characterized by the absence of resource rivalry and the reality of positive value enhancement through increased usage (i.e., a network effect, whereby participation in use by many is a condition for value in use by any). It is argued that the transposition of proprietary concepts to the Internet is done for purely instrumental reasons - reasons that derive neither from the nature of the resource nor its usage. The paper then evaluates whether such an instrumental use of proprietary concepts on the Internet has any effect on the meaning ordinarily attributed to the concept of property and the identification of property as an independent institution of moral significance. It concludes by showing that the relative neglect that doctrines such as cybertrespass have for identifying the boundaries of the res over which the property right is to operate, is capable of undermining the minimum core of any understanding of property as an independent institution.

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Illegal Online Filesharing, Information Producers' Strategies and Production by MICHAEL NWOGUGU Social Science Electronic Publishing

Abstract: In the US, Europe and Asia, illegal downloading of content and music has resulted in substantial losses in the entertainment and education industries. The issue involves various policy, technological and economics problems that have not yet been resolved even as internet use continues to grow substantially. The lack of an efficient method of controlling downloads of content is compounded by the fact that owners of content don't know how to price such content; and that inefficient downloads results in sub-optimal pricing of content. This paper discusses some of the main problems that introduces several methods/systems for efficiently controlling downloads content.

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Digital divide or digital development? The Internet in Mexico by James Curry and Martin Kenney First Monday

Abstract: This paper discusses the development of the Internet in Mexico within the context of the digital divide. There is skepticism about whether the digital divide is something driven primarily by technology rather than an epiphenomenon driven by socioeconomic factors. The barriers to access are not technological but rather economic and historical. Although Mexico shows wide disparities in Internet access, it also shows rapid development toward more access. The number of regular Internet users in Mexico is small (about 14 million) but has shown consistent growth. Business and non-governmental organization presence on the Web is increasing, and the Mexican government is innovatively using the Web to broaden contact with its citizens. In the Mexican case, there is certainly evidence of a digital divide. Nevertheless, there is also ample evidence of digital development.

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Exploring factors influencing Internet users' adoption of Internet television in Taiwan by Kenneth C.C. Yang and Yowei Kang First Monday

This study examined how demographics, Internet use motivation, and beliefs about Internet television influenced Internet users' intentions to adopt Internet television in Taiwan. The belief factors of users in programming quality, government regulation, and media impact contributed significantly to predicting an intention to adopt Internet television. Results from hierarchical regression also demonstrated that gender and Internet use motivations were predictive as well.

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20 February 2006

us: Measuring Broadband’s Economic Impact by William H. Lehr, Carlos A. Osorio, Sharon E. Gillett (Massachusetts Institute of Technology) MIT Communications Futures Program

Does broadband matter to the economy? Numerous studies have focused on whether there is a digital divide, on regulatory impacts and investment incentives, and on the factors influencing where broadband is available. However, given how recently broadband has been adopted, little empirical research has investigated its economic impact. This paper presents estimates of the effect of broadband on a number of indicators of economic activity, including employment, wages, and industry mix, using a cross-sectional panel data set of communities (by zip code) across the United States.

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29 January 2006

The Strength of Internet Ties (news release) pewinternet.org

The internet helps maintain people's social networks, and connects them to members of their social network when they need help. 60 million Americans have turned to the internet for help with major life decisions.

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