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Berkman Buzz, week of October 13, 2006

A look at the past week's online Berkman conversations.  If you'd like to receive this by email, just sign up here.

What's going on... take your pick or browse below.

* John Palfrey debates Economist Stan Liebowitz over YouTube's legal vulnerabilities.
* John Palfrey reflects post-debate (see above) on digital copyright.
* Daniel Haeusermann argues that sites like YouTube could introduce automated licensing.
* Bill McGeveran highlights significance of trademark dilution law.
* Ethan Zuckerman ponders the social impact of citizen media.
* Derek Slater addresses online poker law's effects on ICSs.
* Dan Burk introduces some open source strategies for science.
* Dan Gillmor enters debate over PayPerPost.

The full Buzz.

"I disagree with Prof. Liebowitz. It may be right that YouTube/Google is more likely to be sued if they leave the policing to the copyright holders, but I do think it's sounder policy. I think that YouTube/Google's best approach long-term is in fact not to take an active role in determining what goes on the site. Instead, I think that they should be letting any user post any user-generated content, so long as the user agrees, through the site's terms of service, not to post anything that violates anyone else's copyright. Then, if YouTube/Google hears from anyone that their copyrighted works have been reproduced on the YouTube site, then YouTube/Google should make an assessment of whether or not to take down the allegedly copyrighted works -- and to ban access to the site for repeat offenders, pursuant to the requirements of the DMCA. If YouTube/Google is effective and vigilant at following through on this process, I think that they should be held harmless under the law for direct copyright liability (and, via other logic, harmless also for secondary liability, which is to say contributory and vicarious liability)..."
John Palfrey in the Wall Street Journal's Online Debate, "Does YouTube Make Google a Big Target for Copyright suits?"

"The issue that pops back out the other side of this flurry of interest in the broader question of the continued uncertainty with respect to digital copyright. Despite what I happen to consider a reasonably good case in Google’s favor on these particular facts (so far as I know them), there is an extraordinary amount of uncertainty as a general matter on digital copyright issues in general..."
John Palfrey, "Making a Market Emerge out of Digital Copyright Uncertainty"

"John concludes: 'This system would not have much bearing on the Google/YouTube situation, but it might serve a key role in the development of web 2.0, or of user-generated content in general, and to help avoid a copyright trainwreck.'  I think, the main strength of this approach is — besides transparency and legal certainty — its potential for automatization of licensing. “Traditional” rightsholders as well as potentially liable intermediaries might be well advised to foster creating this system, as they could benefit from it themselves..."
Daniel Haeusermann, "Why companies should support JP's plan against copyright uncertainty"

"The main effect of the new law is to overturn a 2003 Supreme Court decision involving a little store selling “adult novelties” in a Louisville, Kentucky strip mall called “Victor’s Little Secret.” A certain large national retailer that does not like to think of itself in such shabby terms sued for trademark dilution. The Court held that the plaintiff needed to prove, not merely likelihood of dilution, but actual dilution. This is so difficult to accomplish in practice that many considered the federal cause of action dead-- until now, that is. The new law revises the statute to make it clear that plaintiff need only show defendant’s mark is likely to cause dilution of plaintiff’s mark..."
William McGeveran, "Trademark Dilution Revision Act Becomes Law"

"What’s really exciting - to me, at least - about these tools is the size of the audience. Tools that connect a global population of geeks are cool - tools that connect a billion people worldwide, including up to 70% of all Americans, are potentially revolutionary. When news stories “broke” on the Internet in the 1980s and early 1990s, it was very unlikely that the story would jump from the small community following it on Usenet to mainstream media. In 2006, when the “Stop Sex Predators” blog posts Representative Foley’s suggestive emails, it’s possible that the majority of Americans could see those emails online… which helps force the hand of media organizations who’d had access to the story and hadn’t yet reported it. The possibility that the network can become a read/write mass medium helps empower people writing on it, even if they’re read only by a small audience. What’s most interesting to me is the fact that the billion internet users includes not just lots of Americans, Euros, Koreans and Japanese, but that it includes a small subset of (wired, comparatively wealthy and privleged) people in developing nations… who have just as much right and opportunity to address the other billion users as any user in the North..."
Ethan Zuckerman, "A Day/Night Doubleheader"

"Blocking unlawful gambling-related activities shouldn't mean censoring people who simply reference the existence of gambling sites. Linking, like publishing a phone number or street address, is a form of expression protected by the First Amendment, and this bill raises some subtle free speech concerns..."
Derek Slater, "Could Online Poker Law Raise the Stakes on Free Linking?"

"...[T]he culture and practice of scientific research community differs in significant ways from that of open source coding, posing new legal and cultural challenges to the adoption of open source strategies for science..."
MediaBerkman and Dan Burk, "Open Source Strategies for Science"

"Jason Calacanis has written a very tough piece about an operation called PayPerPost, a company that has gotten serious venture-capital backing for a “service” in which bloggers are paid to write about products — but are not required to disclose their financial interest. We should generally abhor this kind of marketing. It encourages us to think the worst, not the best, about bloggers. But is PayPerPost a cancer on the blogosphere, as Jason suggests? I’m less certain, largely because the company is doing in a public way what others are surely doing without bragging about it. If this outfit is cancer, it’s like a basal cell carcionoma, a less virulent form of skin cancer, easily handled and not normally dangerous; the really slippery operators are like colon cancer, which often has few symptoms until it’s too late. (We could take this metaphor further, but let’s not.)..."
Dan Gillmor, "PayPerPost: A Cancer on the Blogosphere, or Merely Semi-Sleazy?"