Marcelo Thompson

In “The Neutralization of Harmony: The Problem of Technological Neutrality, East and West” (forthcoming in the Boston University Journal of Science and Technology Law), I question the very idea of neutrality in technology law and politics.

The so-called principle of technological neutrality has been resorted to before the World Trade Organization by a number of Western countries, in particular the United States, as a means of preventing China from carrying out specific regulatory initiatives for its territorial Internet.

The paper, which you can download here, discusses such an attempt, in the light of a much wider normative inquiry.

It claims that technological neutrality is incompatible with the dominant politico-philosophical traditions of our time: the Liberal and the Confucian.

And it argues that the idea of neutrality ultimately undermines any attempts of reconciling both traditions.

Any comments, suggestions and criticisms are most welcome.

Update (11/2012): the piece is now published by the B.U. J. Sci. & Tech. L.

The book ‘Google and the Law’ (T.M.C. Asser Press) is out, bringing a chapter I had posted earlier to this Blog as a working paper.

The book as a whole is an extremely timely and comprehensive contribution and I look forward to reading the other chapters.

My colleague Frederik Borgesius’s (former Hong Kong University visitor) work on Google and data protection, which he wrote together with Bart van der Sloot, both IViR, looks particularly well timed — it’s the topic of the moment.

A description of the book and table of contents can be found below. Aurelio Lopez-Tarruella, the editor and co-author of the book, blogged about it in the Lvcentinvs blog earlier this week, as did Jeremy Philips in the IPKat and Danny Friedman in the IP Dragon (both co-authors).

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My own chapter, as noted by Aurelio Lopez-Tarruella in the introduction,

departs from Google’s position on the on-going Net Neutrality debate to evaluate what the very idea of neutrality means for the regulation of Google itself, and of ‘Search’ in a broader sense.

I hope it can also contribute to ongoing competition and more broadly political discussions surrounding the regulation of search — much beyond the original intention to write about “network neutrality”.

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From the Back Cover: “Google’s has proved to be one of the most successful business models in today’s knowledge economy. Its services and applications have become part of our day-to-day life. However, Google has repeatedly been accused of acting outside the law in the development of services such as Adwords, Googlebooks or YouTube. One of the main purposes of this book is to assess whether those accusations are well-founded. But more important than that, this book provides a deeper reflection: are current legal systems adapted to business models such as that of Google or are they conceived for an industrial economy? Do the various lawsuits involving Google show an evolution of the existing legal framework that might favour the flourishing of other knowledge-economy businesses? Or do they simply reflect that Google has gone too far? What lessons can other knowledge-based businesses learn from all the disputes in which Google has been or is involved?

This book is valuable reading for legal practitioners and academics in the field of information technologies and intellectual property law, economists interested in knowledge-economy business models and sociologists interested in internet and social networks”

Table of contents

1 Introduction: Google Pushing the Boundaries of Law . . . . . . . . . . 1
Aurelio Lopez-Tarruella
2 The Power of Google: First Mover Advantage or Abuse
of a Dominant Position? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sophie van Loon
3 Google AdWords: Trade Mark Law and Liability
of Internet Service Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Jeremy Phillips
4 Google and Personal Data Protection . . . . . . . . . . . . . . . . . . . . . . 75
Bart van der Sloot and Frederik Zuiderveen Borgesius
5 Google News and Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Raquel Xalabarder
6 Copyright Issues Regarding Google Images and Google Cache . . . 169
Miquel Peguera
7 The ‘‘Viacom v YouTube’’ Litigation and Section 512(c) DMCA:
When the Safe Harbour Becomes a Permanent Mooring . . . . . . . . 203
Annsley Merelle Ward
8 Looking Beyond the Google Books Settlement. . . . . . . . . . . . . . . . 239
Gary Rinkerman
9 Google Chrome and Android: Legal Aspects
of Open Source Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Malcolm Bain
10 Google, APIs and the Law. Use, Reuse and Lock-In . . . . . . . . . . 287
Andrew Katz
11 Paradoxes, Google and China: How Censorship can Harm
and Intellectual Property can Harness Innovation . . . . . . . . . . . . 303
Danny Friedmann
12 The International Dimension of Google Activities: Private
International Law and the Need of Legal Certainty. . . . . . . . . . . 329
Aurelio Lopez-Tarruella
13 In Search of Alterity: On Google, Neutrality and Otherness . . . . 355
Marcelo Thompson

I have just made available @SSRN two of my forthcoming papers.

“In Search of Alterity” inquires into that which has been the archetypal voice in network neutrality discourses: Google’s.

In doing so, the paper reveals as much about Google’s views on network neutrality as it does about the normative context and regulatory implications of Google’s own activities.

You can download it here.

The University of Ottawa Law and Technology Journal has published online my “Property Enforcement or Retrogressive Measure? Copyright Reform in Canada and the Human Right of Access to Knowledge”, which I wrote a number of years ago. You can access it here via SSRN.

The article is by now a bit dated on the part related to WIPO’s Development Agenda, but I still subscribe to all of its points. And though the article refers to an earlier process of copyright reform in Canada (that of Bill C-60), I believe its ideas may still be timely and useful in the context of the other, ongoing process — that of Bill C-32.

I have just published a piece (earlier draft on SSRN) with a critical analysis of the Federal Communications Commission’s proposed short cut (the so-called “Third Way”) to deal with the outcome of the Comcast case.

The article comes in the just released 1st volume of the Communications Law Review, a new Thomson, RT bilingual publication whose future volumes I would strongly encourage colleagues to send their contributions to.

Osgoode Hall Prof Pina D’Agostino has published a sensible column on Bill C-61 in the Toronto Star. Much unlike Bill C-61, her message was clear — we need to police our tone to offer a sober academic perspective on Canadian copyright reform — as she advocated legal intervention to balance the interests of users, owners, and the normally forgotten creators in Canadian copyright law.

But the most interesting part in D’Agostino’s article was the implied idea of another balance: the balance between objectivity and indeterminacy; between precision and vagueness, which is not only a problem of Canadian copyright law, but of contemporary laws and policies as a whole.

Continue reading ‘The Place of Neutrality in the Canadian Copyright Maze’

Revisiting Kathy Bowrey’s insightful Law & Internet Cultures I noticed that she opens the book with an intriguing remark about IETF RFCs. She notes that RFC 2026 prompts IETF technical standards to be “designed to help facilitate best practice in terms of [inter alia] fairness”. This is a powerful assertion. But is it right?

Continue reading ‘Fairness in the IETF, an on the Internet?’

Professor Michael Geist has just published his first impressions on what I hope does not become a Canadian version of the US Digital Millennium Copyright Act.

The Bill C-61 was tabled today by Industry Minister Jim Prentice and seems to have provisions much worse than those of its inpiring statute.

I am yet to read it, but you can blindly trust the source (of the post, not the Bill).

As Professor Geist notes, Bill C-61 goes much beyond what Canada would need to comply with the WIPO Internet Treaties.

My understanding on the matter is that this would violate a customary international human rights obligation to progressively realize the human right of access to knowledge.

As such, it would constitute a clear retrogressive measure with regard to such right and could face justiciability, if not yet before the Committee on Economic, Social and Cultural Rights, certainly before the Supreme Court of Canada.

Binnie J — our Hercules in Théberge — would be ready to smash it!

Did you know that Public Procurement corresponds to 16% of the European Union’s GDP?

Did you know that, much more than being distant bureaucratic rituals for purchasing goods and services, public procurement processes actually enable the achievement of several public policy goals within the internal market?

In spite of that, few are the intergovernmental initiatives that focus on the development of legal, organizational and technological frameworks to enable the establishment of efficient cross-border public procurement processes.

An article I wrote last year in the context of the Breaking Barriers to eGovernment Project has just been released in the Public Procurement Law Review (published by Sweet & Maxwell, and edited by Prof Sue Arrowsmith, from the University of Nottingham’s Public Procurement Research Group).

It analyses one of these very few initiatives — but nonetheless a promising one — on cross-border electronic procurement at the EU level: the Northern European Subset, an OASIS UBL-based framework for achieving technical interoperability in (now) pan-European electronic transactions.

The article does so from a multiplicity of perspectives — not only from an EU law and policy standpoint, but also considering different technical and organizational factors which were explored in the Breaking Barriers to eGovernment Project.

If you follow this blog, you must know this is certainly an unlikely area for me to focus on. But I must say it was at the same time challenging and gratifying to expand the breadth of my research to encompass a subject that does deserve to attract more eyeballs in Internet law and policy scholarship.

And, of course, it was an honour to be part of the Breaking Barriers team, competently led by Dr Rebecca Eynon.

Last Tuesday I attended an outstanding workshop on Virtual Worlds, which was organized by the Hans-Bredow-Institute for Media Research (where I am, as a Visiting Fellow, until the end of June) and the Friedrigh-Ebert-Stiftung. Fantastic names in the panels, insightful presentations, and much food for thought with regard to my own research topic.

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:: Natural Law, Virtual Worlds ::

The workshop left me thinking about if and how the very idea of natural law may be reflected in our perception of virtual worlds. Are there basic forms of good accessible by practical reason that may exist in all virtual worlds, no matter how much these worlds may vary?

:: Each Sword its World… ::

Richard Bartle gave me a short answer: no! — virtual worlds are just too different. The idea of transporting a sword from one virtual world to another makes as much sense as the idea of bringing the sword from the virtual to the actual world. In one world you may want to have property — and thus to protect property may make sense — but in other stealing may be the rule.

:: …or Transcendental Forms of Good? ::

True enough. But is it not also true that in both virtual and actual worlds, though people will have different ways of relating to each other with regard to things they have as the object of their social relations, though people may conceive of different ways of acquiring and transmiting their wealth, be it by invention, be it by what would otherwise constitute the tort of conversion, is it not true that in both worlds people may expect to be treated as persons — i.e. as subjects, and not as objects of rights?

Of course, stealing may be the rule in a virtual world, but even if this is so people may still want equal possibilities of stealing. Instead of investing time and emotional efforts in constructing objects, people will then play by the rules and invest time and emotional efforts in improving their thieving techniques. Even in Barbary there is still civilization. If only because we are still persons, and not things.

What is the point of playing a game in which your avatar and you are permanently enslaved, blindfold, audibly impaired, and have no number and diversity of choices available for authoring their lives? — the concept of authorship as autonomy, which is perhaps nowhere more vivid than in virtual worlds.

Also, people may want to know in advance what the rules that enable them to act lawfully in a virtual world are. Because people treasure their own ability to reason in practical terms, because people believe it is virtuous to reason as such, people will want the rule of law to be open, clear, coherent, prospective, and stable — these which Endicott points as the consensual requirements about the ideal of the rule of law. People may conceive of laws that are vague, but not so vague as not to be able to provide them with reasons for action.

Personhood, knowledge, and practical reason — which John Finnis, amongst others, identify as basic forms of good — are natural expectations that people hold as much with regard to virtual worlds as they do with regard to the actual one. The way personhood, knowledge, and practical reason will be fulfilled in virtual worlds will of course vary. But not our perception of their intrinsic value.

:: On Owning a Sword ::

The concept of property… perhaps. Joshua Fairfield raised some of the efficiency arguments he had raised before in his brilliant Virtual Property — which I read in 2005, during my year in Ottawa. It was nice to re-encouter his ideas. As he said in the workshop, however, virtual property is not a necessary concept to prevent abuses from the creators of virtual worlds — it is perhaps just a more efficient way to allocate resources than contract law is. [1]

Efficient or not, the idea of necessity is important indeed to be closely scrutinized. Not only the rules of these worlds may vary, but full-blooded exclusionary property institutions are perhaps not inherent to human nature. Rather, the limits of private property as a natural right, even if deeply controversial, do not certainly match the possibilities of wealth that efficiency-optimizing economic institutions conceive of.

As the American Declaration of the Rights and Duties of the Man proclaim: “[e]very person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home“. Our lack of agreement on whether property is a civil or social right left the right to property outside of both the ICCPR and the ICESCR. The Universal Declaration of Human Rights does recognize the right to own property alone as well as in association with others. But it does not trace the boundaries between both these dimensions.

In the end, whether these boundaries are to be traced within virtual worlds or to be abandoned altogether once we enter a space of unrivalrous coexistence will be exclusively up to our imagination to determine. But to no extent can one deny that virtual worlds offer us an unprecedented opportunity to revisit the very concept of community and to make better sense of the value of friendship — even friendship reflected in the most ludic forms of enmity.

:: The Extent of Fiction ::

But imagination was, of course, abundant in the event. Brian Camp spoke of virtual worlds as theater; Oliver Castendyk developed an interesting analysis of the concept of fiction. However, none of these metaphors fully grasps virtual worlds. And to this effect Bartle is right. It is utterly important to determine the way in which virtual worlds differ.

Virtual, the idea of being-there, does not oppose reality; it opposes actuality. The virtual is real through and through — both before and after it is actualized. Camp and Castendyk are right that the virtual can reflect forms of fiction, as much as our actual world can do. But in the virtual, as in the actual, fiction is a merely contingent instance of our social reality. Virtual worlds exist that are more fictitious, others that aim to reproduce more or less precisely what occurs in the actual world.

The extent of fiction is important to grasp. Virtual worlds may reflect the virtualization of actual social institutions, or they may be an extension of imaginated ones which are made actual in and through them. The extent of fiction will vary in the same proportion that the institutions of virtual worlds correspond to the social institutions of our actual world. And so will the legal arrangements they may bring about; the reasonable expectations of rights we may have “within” those worlds.

The shapes natural rights will assume then are as much dependent on the social arrangements of these worlds as human values are socially dependent concepts. But it is unequivocal that basic forms of value will exist in all of them. This does not depend on the extent of fiction. Different communities exist in the actual world. We may even perhaps claim that we do not have one actual world, but different formal or informal normative orders that exist in different places and in different times. We may very well live in deeply different worlds here in our actual space. Some normative expectations, however, remain the same in all of these worlds, no matter how much their shape may evolve in space and time; no matter how virtual or actual these worlds may be.

:: The Is, the Ought, and the Neutral ::

As acutely noted by Viktor Mayer-Schönberger at some point, a distinction permeated the debate as a whole: we were concerned with discussing law as it is, and not as it ought to be. Contract law, property law, different areas of regulation. A descriptive discussion, which we would do well in expanding towards more normative zones.

But the remark implied that there is a distinction between law as it is and as it ought to be. If such distinction holds, we may perhaps identify what the law is without resorting to moral evaluation. Natural law, however, presents an indisputable instance of convergence between what is and what ought to be – no matter how much legal positivists and intepretivists may diverge on the place of moral evaluation in legal theory.

In Bartle’s theory, however, there is neither is nor ought. Nothing remains but a Humeian perception of human nature. In deeply varying universes “['t]is not contrary to reason for me to prefer the destruction of the whole world to the scratching of my finger. ‘Tis not contrary to reason for me to choose my total ruin to prevent the least uneasiness of an Indian or person wholly unknown to me. ‘Tis as little contrary to reason to prefer even my own acknowledged lesser good to my greater, and have a more ardent affection for the former than the letter. A trivial good may, from certain circumstances, produce a desire superior to what arises from the greatest and most valuable enjoyment”.

That this may hold when fiction holds is sensible enough for me. But when real aspirations are at stake practical reason is called upon.

Bartle’s form of thinking reminds me of a principle which is often thought to be a learned one by the wisdom of the crowds: the end-to-end principle in Internet communication, which is the basis of what is currently understood as the principle of network neutrality. Here, as there, everything holds. Openness and freedom are unfettered ideals; innovation and participation are thought to be valuable in themselves — as if they would be always at service of persons, knowledge and practical reason.

More often than not, however, natural law points us to the limitations and possibilities of our aspirations to liberty. Neutrality does not enable us to author our lives; actually or virtually so.

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[1] I truly find Fairfield’s analysis brilliant, but I have always had my mixed feelings as to if and why we should really find either a tragedy of the commons or a tragedy of the anti-commons as a problem to be addressed in the Internet. As there is no scarcity and rivalrousness there is no overexploitation. And the problem of fragmentation only arises if we create it.

Contract law does not necessarily need to be fragmentary. Liberal networked models of contract such as the GPL and the Creative Commons Licenses do not prompt such kind of problem. They actually work as outstanding models of self-regulation, that the state can easily transform in a model of co-regulation instead of necessarily institutionalizing property systems. We do not need copyright to make copyleft work if the law embeds copyleft as a possibility in the institutional normative order, do we? And challenges of coordination that these kinds of licensing may create in a world of atoms may be easily circumvented in a world of bits — we can make social and legal relationships visible and enable (beneficiary) transactions as never before.

Perhaps cyberspace is a space for institutional imagination in this regard; rather than a place to import old institutions adding some twists to pretend them suitable for a new reality which is just overall different. As Ren Reynolds said, and well so, in the workshop, law is a semiotic concept; Neil McCormick puts, similarly, that law is an institutional normative order. In virtual worlds, it is even more so. Not even the underlying reality it tackles is a fixed concept; let alone our understanding of it. Virtual worlds, their norms and their law are something we can imagine through and through. The limits are merely those given by our deeply real human nature.