Aug 312008

In the wake of Hurricane Faye there was this post at the Volokh Conspiracy criticizing Florida’s anti-gouging law. With Gustav bearing down on our shores it may remain timely, particularly because it’s the underlying thesis I wish to take issue with.

In the post Ilya Somin praised the “wisdom” of Glen Whitman in writing that anti-price gouging law may have the opposite effect to that intended. But I find myself questioning their assumptions.

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 Posted by at 3:43 pm
Aug 312008

I have been a Yankee fan ever since I discovered baseball. Babe Ruth? Mickey Mantle? I wanted to root for THAT team. Even when I turned nine and realized they were no longer on the current roster, I stayed hooked. Despite the team’s persistent mediocrity during my 1980s childhood, I remained steadfast. Despite family apathy (e.g, “What do you want for your birthday?” “I wanna go to a Yankee game!” “What ELSE do you want for your birthday?”), despite spending so many years living in the American League West, despite the challenge of studying in Boston, where my Red Sox fan classmates routinely harassed me for my baseball affections, I’ve stayed true to my team.

And yet my loyalty has never been as undermined as it was this past June, when I made a pilgrimage to the venerable old Yankee Stadium to see my last game there — and was so disgusted by how the team treated its fans as to refuse to return to any Yankee Stadium unless and until things change.

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 Posted by at 2:25 pm
Aug 152008

Having a few days off I decided to make a 24-hour escape to the hills to enjoy Lake Tahoe. Everyone should see Lake Tahoe at least once in their lives, this mammoth sun-bathed lake rimmed by Sierra peaks. Fed by melted mountain snows, this reservoir in the crater of an ancient volcano is known for its particularly clear waters.

Such a gorgeous locale could hardly escape human notice, and patches of civilization line its shores. Of course, with civilization comes pollution, and Tahoe’s clear waters are in danger of losing their amazing clarity as a result of the nearby development. Consequently for a number of years there’s been a movement, as expressed by a lot of bumperstickers, to “Keep Tahoe Blue.”

Development-wise what’s done is done, however, and the human dimension of the Tahoe environment is interesting to see for its own sake, particularly in the area of South Lake Tahoe. It’s a unique place, with clusters of 1950s kitschy motels on the eastern edge of California’s lake shore and high-rise hotel casinos shooting up just on the Nevada side. Still, Stateline, Nevada, is hardly Vegas, or even Reno, and the surrounding mountains appropriately dwarf it all.

I had a nice day out, swimming in the lake during the afternoon and visiting the casinos in the evening. Being a Thursday, there was even a deal on a buffet, and I decided to treat myself to a meal that turned out to be both tasty and sickening, all at the same time. For this was a meal that turned out to be a crucible for so many things wrong about how America treats the environment.

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 Posted by at 11:47 pm
Aug 112008

Last Wednesday I attended “State of the Net West” at the High Tech Law Institute at Santa Clara University. I’m always running off to Internet law symposia and such whenever I can, but this one was different than others in that it included Congressional representatives. That kind of thing may be normal for DC-based events, but it’s a rare occurrence in places like the Bay Area. Most of the events I’ve gone to have various experts wringing their hands over law and policy, but here we had people who helped make it in the first place.

As is typical at these events there were panels on Internet copyright, but there was also another topic of growing popularity: Internet reputation. The confluence of social networking sites and search engines has increasingly resulted in instances of damaged personal reputations, sometimes through the imprudence of their own holders but often through defamatory conduct by others. All this raises the question of how the law bears on this problem, or how it should, as any efforts to clamp down on the collateral problems endemic to Internet communication such as these will also necessarily result in clamping down on the freedom to communicate entirely.

In fact that’s what all Internet law boils down to, the question of how to achieve regulation without strangulation, to minimize the problems without minimizing the potential.

It’s a tricky endeavor and one that regulators often get extremely wrong. Sometimes they get it wrong by tying the regulatory language too closely to whatever specific technology is state of the art at the time of the drafting. One example of such unfortunate drafting is the Electronic Communications Privacy Act, a 1986 update to the Wiretap Act that was supposed to expand the latter to apply to all the new-fangled electronic communication technologies emerging around that time, technologies hardly even imagined way back in 1968 when the original Wiretap Act was drafted. But while ECPA’s statutory language may have made perfect sense for mid-80s technology, it makes no sense when applied to the modern Internet, itself a technology hardly imagined twenty years ago.

But sometimes it’s just the very idea that regulation is required that causes the problems. When we look at some of the revolutionary Internet tools that didn’t exist even just a few years ago (e.g., search engines, YouTube, blogs) we need to recognize that the reason they are able to exist at all today is they were free to develop. So even if we were to temper any new regulation in such a way that these incumbent technologies could continue unfettered, by introducing regulation at all we might still inadvertently foreclose the next big idea. Just as the ones we have today were able to grow from a glimmer in an innovator’s eye to the world-changing tools we now know them to be, we must allow future ideas to be able to grow freely as well. Consequently, no matter how onerous the problem regulation is intended to solve, it needs to be recognized that imposing it may likely cause bigger ones.

 Posted by at 10:00 pm
Aug 102008

As a Huey Lewis and the News fan, I had to go see this movie, seeing how they were commissioned to write the theme song, their first released new song in the better part of a decade.

Meanwhile the IP lawyer in me finds the story of how they came to do it amusing: Apparently the movie’s producers saw a Ghostbusters van and got to thinking how nice it would be to have had a theme song like that movie had.

But then they remembered, “Wait, didn’t Huey Lewis sue over that song?”

Which naturally led into the next thought, “Why don’t we ask Huey Lewis to write us a theme song?” So they did, he agreed, and the rest is history.

Interestingly Huey Lewis and the News didn’t actually prevail in their copyright suit against Ray Parker Jr. for infringing on their “I Want a New Drug” song. Instead there was a confidential settlement. But there may be an important lesson here, that even if you don’t win your infringement lawsuit there may still be a payoff. Or at least an opportunity to write more songs about drugs…

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 Posted by at 10:16 pm