Scholars often focus on the substance of copyrights as opposed to the procedures used to enforce them.  Yet copyright enforcement procedures are at the root of significant overreach and deserve greater attention in academic literature.  This Article explores three types of private enforcement procedures: direct enforcement (cease-and-desist practice); indirect enforcement (DMCA takedowns); and automated enforcement (YouTube’s Content ID filtering program).  Such procedures can produce a “substance-procedure-substance” feedback loop that causes significant de facto overextensions of copyrights, particularly against those creating and sharing User-Generated Content (“UGC”).  To avoid this feedback, the Article proposes descriptive and normative frameworks aimed towards the creation of better procedures. Looking to the source of procedures, the relevant actors, and the functions of enforcement (the descriptive framework), the Article suggests principles of transparency, participation, and “balanced accuracy” (the normative framework) that might lead to private enforcement procedures that accommodate the reasonable cost and efficiency needs of copyright owners without trampling on UGC.

You can find the abstract and download the article here.

Today’s New York Times carries a really well-written editorial by former Bronco Nate Jackson. He says:

Before the 1950s, when they wore soft helmets without face masks, players didn’t lead with their heads. They dived at opponents’ legs and corralled them with their arms. Leading with the head meant facial disfigurement and lots of stitches. But once leather was replaced by hard plastic, enclosing the head in protective armor, all bets were off. Couple that with the size of today’s players and the speed of the modern game, and you have a recipe for cerebellum custard.

In reading it, I couldn’t help but think of Lessig. Jackson notes that part of the problem is that modern helmets make it easier to make aggressive, head-first hits. He also notes that a player’s “manhood” will be questioned if he shies away from helmet contact.  In Lessig’s terms, regulation is done by the combined interactions of laws, social norms, markets, and architecture (or “code” in the case of computers).

The helmet problem is a paradigmatic case of the difficulties of regulation. Even if NFL rules (“law“) prohibit certain kinds of contact, it still takes place. So the NFL is trying a band-aid solution through fines and possible suspension (“markets“).

But I doubt that the problem will be solved merely through the occasional penalty or fine. A major reason for the massive amount of head hits and injuries is because of social “norms,” namely, players and coaches who expect aggressive play. Jackson says “The N.F.L. could also try educating coaches, who now believe that a headless hit is an ineffectual one, about the perils of head-first tackling, in hopes that over time safer techniques would become the norm.” (Note the use of “norm” there?!) Maybe some education will help, but I suspect that “prisoner’s dilemma” thinking will prevent any coach or player from voluntarily abandoning techniques that might risk a won-loss record. That’s not a justification, it’s a fact. When a player’s manhood is defined by his aggressiveness and lack of fear, then fines, penalties, and best practices won’t cut it. When a coach’s success is defined by his won/loss record, he’ll put winning first. And when a league’s bottom-line stems largely from hard hits, it may apply band-aids as long as possible, blinding itself to the real source of the problem.

The source of the problem? Ultimately, it’s one of “architecture” – here, the physical architecture of the game. It’s what enabled more aggressive play, as well as the success that gave rise to the norms of let-slip-the-dogs-of-war head-butting Havoc. And that, in turn, brings us back to law. But here the law is one the NFL can’t fight. It’s physics: force = mass x acceleration. Combining helmeted heads with bigger, faster players, and you have a recipe for what Jackson aptly calls “cerebellum custard.”

What’s the solution? Jackson toys with the idea of doing away with helmets altogether and returning to the earlier “rag days” of “bloody noses.” Maybe. But in a day of 300-lb. linemen, that’s a recipe for instant death, not instant replay. My instinct is that the NFL’s desire to make money and its fear of losing its fan base will outweigh any meaningful efforts to reform the game. As Jackson says:

But stiffer on-field penalties, fines, suspensions, seminars, summit meetings, press releases — these are knee-jerk public-relations reactions that will do little. The only way to prevent head injuries in football is no more football. It is a violent game by design. The use of helmets plays a critical role in creating that violence. The players understand the risks, and the fans enjoy watching them take those risks. Changing the rules enough to truly safeguard against head injuries would change the game beyond recognition. It wouldn’t be football anymore.

Short of better helmets, smaller players, or meaningful changes to player/coach/league norms, I am not hopeful. But being a indirect part of the problem, at 1PM, I and millions of others will be watching the gladiators go at it on CBS.

Maybe we really are the Romans.

During yesterday’s interview, the two performers (Phoenix now cleaned up) discussed the film. After pleasantries, Letterman shifted into the IP issues (about 2:45 in). According to Letterman, his lawyers said he could sue, but that Phoenix’ lawyers claimed the use was fair use because it was for a documentary. Of course, it turned out to be otherwise — in Dave’s words, “Guess what, it’s no documentary. It was a theatrical ruse.” Moreover, he said, “I’m in it . . . at a pivotal point in the film.”

And now the demand: “Now you owe me a million bucks.” Ultimately, Phoenix promised, “We’ll work it out,” asking “but, can we talk about it privately?”

Click here to view the embedded video.

I find it odd in these days of sophisticated transactional lawyering that — regardless of any possible fair use — a commercial use like this would not have been cleared, in writing, in advance. Indeed, considering the “pivotal” role that the 2009 Letterman show appearance played in the film, it would appear crucial to nail down permission for that piece of IP, fair use or not. This is a film, where real money is at stake and risk-taking is usually quite low.

So is the demand real? Who knows. But for what it’s worth, a Letterman writer earlier claimed that Dave knew that the earlier, original 2009 appearance was a hoax. So I don’t know, but I sure hope that Dave’s demand is a gag. Considering that the Affleck/Phoenix movie is intended to explore the relationship between media and celebrity, it would be fitting to add our society’s constant stream of IP demands to the mix.

But then again, sometimes a demand is just a demand.

But the video is now down, and I wonder why. It wasn’t taken down by a DMCA take-down sent to YouTube, because the video now says it was removed by the user. An article at Networkworld.com confirms that Newsday removed the video. A Newsday rep stated: “We have taken the commercial ‘Flypaper’ down and its short, glorious run appears to be over.”

But why? Was the notoriously thin-skinned Apple upset? If so, that’s idiotic. Is Apple worried that people will start assaulting insects with their technology? Remember, Apple: iPads don’t kill people, people kill people!

Bottom line: if Apple is putting pressure on Newsday, shame on Apple. If Newsday — a news organization — is caving to demands from Apple, then double-shame on Newsday.

But as pointed out by Networkworld.com, we don’t know (yet) what happened, and Newsday is being tight-lipped with the reasons.

Well, Apple? Newsday?

The 1955 article paints a rosy world, straight out of Pleasantville.  Witness the headline:

In a sense, it really was a different era. As the 1955 Life article claims, “Embroiled in no war, impeded by no major strikes, blessed by almost full employment, the U.S. was delighted with itself and almost nobody was mad with nobody.” But Greene notes the dark underbelly of the era: “Racial inequity was widespread, constrictive conformity was all around, intolerance of anything different was itself tolerated … your list could go on and on.”

More importantly, Greene compares the fantasies of yesteryear with the “anger” of today:

If monolithic national happiness was, in fact, being sold as a commodity back then, a case can also be made that the commodity being sold to us today is national animosity. Just about every day, we are told how furious we are at each other. If . . . Life magazine was endeavoring to promote the notion of consensus, what we are being relentlessly barraged with now is a message of anti-consensus. And that may be just as false an impression, in its own way, as the everyone’s-joyful pitch was in 1955.

Cass Sunstein makes a similar, important point, one that others have made, and one that bears emphasis.  In an age of information overload, people are drawn like bees to viewpoints that reinforce pre-existing social and political beliefs. I’ve written about the problems of information overload in the trademark context. Here, in the context of social tensions, the echo chamber is even more dangerous. It’s easy to read the Drudge Report or Huffington Post and pat yourself on the back — left shoulder or right, as the case may be — for being so clever as to believe things that other smart (or sometimes smart) people are saying. It’s quite another to force yourself to question your beliefs by reading things that challenge them. Moreover, the loss of shared communal experiences (something that Sunstein correctly bemoans) means that you’re losing out on beliefs and values that you may not even know about.

And now for something completely different….  Not only were the pundits of the 1950s wrong about themselves. They also got the future wrong. Witness this 1959 cover of Superman, where the Big Blue Boy Scout battles evil-doers from the year 2000, who use ray guns from flying cars.

Me, my 2001 Tiburon doesn’t fly, let alone possess a ray gun. But thank goodness it can get NPR on Satellite radio (as well as Fox and CNN).

Thinvisibility: n.

1. Being neither completely visible nor completely invisible.
2. Being a tiny, shiny needle in a haystack of information overload.
3. Being invisible to everyone except data aggregators and digital preservationists such as Google, the Wayback Machine, the NSA, and others.
4. Being invisible to employers, colleges, police, neighbors, friends, exes, stalkers, acquaintances, and others, who are not interested in you, until they are.
5. Being visible.

IMHO, information overload is addictive, and it doesn’t necessarily lead to knowledge or wisdom. I don’t know about others, but the biggest thing that clears my mind is getting away from the computer, the Blackberry, and the television, and sitting quietly to read or think. As most people know, today that’s not always easy to do.

Too bad that some of the amateurs on the Web don’t have similar class.  Shortly after the bad call, somebody vandalized Joyce’s Wikipedia page to declare he was dead.  That’s just sick.  Yesterday, I saw that Joyce’s name was a trending Twitter topic, but the results were polluted with Twitter spam.

Such online foolishness illustrates what Andrew Keen derided as the “Cult of the Amateur” in his book by the same name.  Keen says:

We — those of us who want to know more about the world, those of us who are the consumers of mainstream culture — are being seduced by the empty promise of the “democratized” media.  For the real consequence of the Web 2.0 revolution is less culture, less reliable news, and a chaos of useless information.  One chilling reality in this brave new digital epoch is the blurring, obfuscation, and even disappearance of truth.

In some ways, the foolishness of Wiki vandals and Twitter spammers provides support for Keen’s observations.  But Keen’s critiques of amateurs are also somewhat overblown.  Keen’s preference for traditional “experts” over Web 2.0 “amateurs” ignores that the distinctions between the two are not always clear.  Indeed, in federal court, the qualification of a witness as an “expert” permitted to provide opinion testimony on “scientific, technical, or other specialized knowledge” is often sharply argued.  Plus, traditional experts are also subject to error, as amply illustrated by Joyce’s bad call.

But Joyce has class, something that doesn’t require, or always come with, expertise.  You either have it or you don’t.

Also, even without a perfect game, Galarraga’s game combined with Joyce’s bad call are the stuff of legend.  As Paul Clemens noted in the New York Times, the replays of the bad call may become “baseball’s Zapruder film.”  Such immediate-legend status is even better illustrated by this exchange between Kevin Costner (Roy) and Rene Russo (Molly) in the classic sports film Tin Cup.  Immediately prior, golfer Roy loses the U.S. Open by massively blowing par by stubbornly refusing to take a lay-up shot on the 18th hole for an easy win.  Instead, he tries (repeatedly) to hit the ball over a long water hazard.  Roy loses the tournament, but wins the hearts of the fans, and of Molly:

Molly: That was incredible! That was the shot of the tournament!

Roy: I just gave away the U.S. Open.

Molly: It doesn’t matter.

Roy: One time in my life I know the safe play to hit and I still…Shit, I still can’t make myself do it.

Molly: It doesn’t matter.

Roy: My whole career, my whole life on the line…I just made a 12 on the last hole of the Open!

Molly: You sure did. It was the greatest 12 of all time. No one’s going to remember the Open 10 years from now, who won…but they’ll remember your 12! My, God, Roy, it was…Well, it’s immortal! I am so proud of you!

Sometimes it’s the ones that get away that are the most memorable.

Until today.  Now Google permits users to select background images, either from an online database or their own computers.  Sure, other search providers have pretty backgrounds (Bing, anyone?)  Sure, it’s kind of pretty.  But after playing with backgrounds for a few minutes, I went back to the default white.

Why avoid backgrounds?  To reduce information overload and the attendant distractions.  Google is an essential tool, one that should foster focus rather than distraction.  The loading of the background and the perceived — even if not actual — delay, is another addition to a sea of distractions.  For better or for worse, I use Google numerous times a day.  In an era where focused attention is becoming increasingly difficult — see, e.g., Distracted: The Erosion of Attention and the Coming Dark Age by Maggie Jackson — the fewer distractions, the better.

Plus, Google is a hypocrite.  Contrasting Google’s new “backgrounds” feature with the company’s stance on privacy is extremely revealing.  A few years back, as noted here, Google adamantly refused to include a link to its privacy policy on its home page, allegedly because an additional link would distract from its “beautiful clean home page.”  Only after privacy advocates pushed did Google finally relent and add a privacy link to its homepage.  Even now, that link remains in the smallest typeface, possibly to avoid reminding people of how much information they sacrifice to Google daily.  Yet if Google truly cares so much for its minimalist aesthetic, why permit users to now clutter their homepages with pictures of kittehs?

So my response to Google: yuk.  For now, I’ll carry Google’s banner and stick to the minimum.  Enough distractions.