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Abstract:
Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.

After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may constrain abusive companies to some extent, they have little chance of checking untoward behavior by the oligopolists who now dominate the search market. Against the trend of courts that would declare search results unregulable speech, this article makes a case for an ongoing conversation on search engine regulation.

Google, search engine, privacy, defamation, internet, public utility

Abstract:
Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, categorize, or review works by providing small samples of them. They are not free riding off the labor of copyright holders, but rather are creating the types of navigational tools and filters that help consumers make sense of the ocean of expression copyright holders have created.

By modeling information overload as an externality imposed by copyrighted works, this article attempts to provide a new economic justification for more favorable legal treatment of categorizers, indexers, and reviewers. Information overload is an unintended negative consequence of copyright law's success in incentivizing the production and distribution of expression. If courts grant content owners the right to veto categorizers' efforts to make sense of given fields of expression, they will only exacerbate the problem. Designed to promote the progress of the arts and sciences, copyright doctrine should privilege the efforts of those who make that progress accessible and understandable. Categorizers fill both those vital roles.

copyright, intellectual property, network effects, economics, environmental economics, cultural environmentalism, search engines, reviewers, categorizers, indexers, open access, free culture

Abstract:
The fair use defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential effect on the market for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the market for copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the intellectual commons' effect on the market for copyrighted works.

copyright, intellectual property, environmental, economics

Abstract:
After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on the objectionable result. In the latter case (deemed exclusion harm), complainants should have some right to a limited explanation of why they did not appear in highly ranked results. Both these rights are based on consumer protections guaranteed by the Fair Credit Reporting Act.

Given extraordinary advances in the annotation software of wiki's, these basic prerogatives ought to be relatively easy to implement for trademark holders and vanity searches (relating to an individual's name). But even if these particular proposals are deemed implausible, they do focus attention on matters of principle that will have increasing importance in coming years: the degree of copyrightability and First Amendment protection of search engine rankings and other machine speech resulting from computerized algorithms. Given the rapidly growing importance of rankers and other aggregators of information, law should not lightly permit machine expression to garner these protections. Rather, they are merited to the extent that rankers are responsible, reflecting actual human judgment and providing due process to those harmed by inclusion or exclusion in relevant results.

search engines, Fair Credit Reporting Act, due process, intellectual property, antitrust, First Amendment, expression, copyright, trade secret, Google, competition, network effects

Abstract:
Retainer care arrangements allow patients to pay a fee directly to a physician's office in order to obtain special access to care. Practices usually convert to retainer status by concentrating their attention on a small panel and dropping the majority of their patients. Proponents call retainer care a triumph of consumer-directed health care; opponents deride it as boutique medicine. Both sides are deploying a variety of legal tactics in order to attain their goals.

After surveying these conflicts, this article clarifies what is at stake by analyzing the three key features of retainer care: preventive care, queue-jumping, and amenity-bundling. Most commendably, retainer physicians are aggressively counseling their patients on how to avoid getting ill. More questionably, they are trading faster access to better health care for cash. Most troublingly, they are bundling medical care with unrelated amenity services.

Each of these faces of concierge care deserves a different legal response. This article develops a normative framework for tailored intervention. Regulators have taken some promising steps toward mitigating the worst aspects of retainer care conversions. However, taxation may be the only approach sufficiently targeted to reduce incentives for queue-jumping and amenity-bundling while promoting innovation in preventive care.

health, boutique medicine, concierge care, retainer care, Medicare, balance billing, insurance, regulation, taxation, tiering, inequality, consumer-directed health care

Abstract:
Development economists have long debated the proper targets for foreign aid contributions from wealthy countries. Philosophers like Peter Singer and Peter Unger now suggest that these countries' citizens have a parallel moral responsibility to tithe a portion of their income directly for the relief of the suffering of the poorest. These thinkers would prefer a systematic global redistribution of income - some public mechanism for accomplishing worldwide what the tax systems of egalitarian social democratic states accomplish. But they all realize that such global governance is unlikely to come about in any of our lifetimes. So they turn their attention to individuals, arguing that giving more to the poor is necessary and not simply supererogatory (i.e., something beyond duty that it would be especially admirable to do.).

Unfortunately, both Singer and Unger avoid many of the hardest questions their approaches suggest. Neither convincingly draws a line between necessity, convenience, and luxury - essential distinctions for those urging others to rethink their unnecessary consumption. By failing to concretize their ethical arguments, they leave themselves vulnerable to attacks by pragmatists who find their worldviews absurdly demanding.

A clearer theory of the ethics of consumption may help save tithing ethics from pragmatist critiques. An ethic of consumption and charity - based on either religious or secular humanist traditions - would give their ideas real weight and force. There is some middle ground between the saintly rigor of a Mother Teresa and the unreflective materialism so common in developed countries. The financial health of NGO's, and the fate of poverty relief generally, depends on the ability of the well-off to adopt such an ethic.

charity, economics, health, development

Abstract:
Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose.

Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic management tactics, they should submit to regulation that bans stealth marketing and reliably verifies the absence of the practice. Finally, search engines' concern about the applications and content disadvantaged by carrier fast-tracking should lead them to provide annotation remedies to indexed sites whose marks have been unfairly occluded by the search process. Fair competition online demands common commercial ethics for both dominant search engines and dominant carriers.

search engine, google, telecommunications, common carrier, federal communications commission, law and economics, regulation

Abstract:
The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.

In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. Courts have been sharply divided on how to assess the effect of a contested use on the market for or value of the plaintiff's copyrighted work - a key factor in fair use analysis. The Sony majority broadly considered the effect of the contested use on the value of the copyrighted work overall, rather than narrowly considering its effect on the licensing market most directly affected by the contested use.

Unfortunately, many recent appellate decisions have cut this inquiry short by ignoring the majority's method and only evaluating the effect of the contested use on very narrow licensing markets. If the dissent were correct, this fair use factor would always militate against a fair use finding. Nevertheless, its narrow approach has informed effect on the market analysis in several leading fair uses cases, and proven decisive to their resolutions. The Sony majority has all too often been ignored by appellate courts reluctant to examine the full range of economic effects flowing from a given use.

After introducing the fair use doctrine generally in Part 2, this piece focuses on the debate between the dissent and the majority in Sony over the fourth fair use factor in Part 3. Part 4 sketches an economic rationale for the Sony majority's fourth factor analysis, focusing on network effects, externalities, and the impossibility of forcing compensation for all complementarity in a modern market economy.

Although Grokster may have muddied its authority on issues of secondary liability, Sony's lesson for analysis of the fourth fair use factor is clear. Assessing the effect of a new technology on the value of a copyrighted work always involves the evaluation of several markets for the work - some of which may only be possible due to the technology at issue, and all of which are bound to be affected in different ways and to a different extent if the use becomes widespread. Courts should not cut the analysis short by simply focusing on one negatively affected market.

copyright, fair use, economics, VCR, network effects, complementarity, indirect appropriability

Abstract:
What happens when high-ranking results about a certain searched term are harmful from either a societal perspective, or from the perspective of an entity with a stake in the search term? For example, if all the results about a (hypothetical) person named Xavier Hollidayly are negative opinions or mistaken accusations, should he get any chance to reply to them on the search page on which they appear - or at least to indicate with an asterisk a link that leads to a page that will do so? Or if the owner of the (again fictitious) trademark Flanakapan Popsicles finds that all the results in response to that term lead to competitors' websites, should she be able to indicate on that page that she owns the mark Flanakapan?

This essay proposes some solutions to these problems, and responds to critiques.

Google, search engines, cyberlaw, annotation, right of reply, Tornillo, Turner, search results as speech, First Amendment

Abstract:
Law can advance or retard the distributive effects of innovation and its diffusion in many ways. Certain technologies merit special monitoring because they promote the leveraging of economic advantage into social or cultural advantage without substantially increasing overall social welfare. Others threaten to undermine collective values and perceptions commonly used to evaluate technology. A final category threatens to do both, creating unfair or wasteful competition while blunting our capacity to recognize its morally dubious character.

As new sectors of life become more game-like and competitive, methods of leveling the playing field developed in sports and college admissions might become more broadly relevant. Inequality impact statements may be as important to our cultural environment as environmental impact statements are to the natural world. Finally, current laws regulating the use of controlled substances may need to be extended to precision chemical-based emotional enhancement, even if such pharmaceutical interventions are non-addictive. Technology should not be allowed to accelerate wasteful or unfair arms races or to undermine the very values we rely upon to evaluate it.

technology, health, safety, inequality, positional externalities

Abstract:
Regenerative medicine seeks not only to cure disease, but also to arrest the aging process itself. So far, public attention to the new health care has focused on two of its methods: embryonic stem-cell research and therapeutic cloning. Since both processes manipulate embryos, they alarm those who believe life begins at conception. Such religious objections have dominated headlines on the topic, and were central to President George W. Bush's decision to restrict stem-cell research.

Although they are now politically potent, the present religious objections to regenerative medicine will soon become irrelevant. Scientists are fast developing new ways of culturing the biological materials now exclusively produced by embryos. Given their expressed commitment to the sanctity of life, religious leaders will soon find the tables turned: researchers will accuse them of causing death if they fail to support medicine that cures the sick without harming embryos.

Perhaps anticipating this development, those uneasy with regenerative medicine have tried to shift the debate to focus on its long-term effects. They believe that innovations that now look benign might lead to an era of untrammeled biotechnological manipulation of our lives. For example, the same technology used to eliminate disease-causing genes or to clone embryos may eventually be deployed to produce genetically engineered children. That could, in turn, entrench class differences, since only the wealthy could afford the most desirable genetic enhancements.

Such objections may be speculative. Nevertheless, they deserve more attention - not necessarily as predictions of the future, but as indictments of the present. We are all disturbed by hypothetical dystopias like Huxley's Brave New World. But their most important flaws - the inequality, degradation, and moral irresponsibility of their inhabitants - are already apparent in the distribution of regenerative therapies. The world's wealthiest nations spend hundreds of millions of dollars on elaborate technologies of life-extension, while contributing much less to efforts to assure basic medical care to the poorest. Public debate on regenerative medicine must acknowledge this inequality. Societies and individuals can invest in it in good conscience only if they are seriously committed to extending extant medicine to all.

stem cell, bioethics, health care, medicine, ethics, philosophy, jurisprudence

Abstract:
What should be the broad principles guiding the copyright and competition policy governing online music? In short, what are the key concerns or values that we want preserved in relation to the distribution of music online? We will outline the background to the present investigations and existing law in Part I and argue in Part II that these concerns can be encapsulated in two broad areas: (1) the preservation of some scope for private and personal use and (2) the encouragement and growth of a diverse sector for the distribution of copyrighted works online. We also argue that, at least at present, the proper balance has not been achieved in either area. The particular principles we identify as important for promoting competition in the music industry include maximizing (1) content availability, (2) distribution technology, (3) fair individual use of content, and (4) the welfare of all stakeholders, as well as minimizing technologies of control that invade users' privacy or unduly restrict use of content. Of course, regulators do not have free reign to pursue these principles. Current law and market structure constrain them. Our next question then moves from the realm of the ideal to the real: What should be the minimum terms of settlement? In Part III, we propose three key concessions from the recording industry, including the agreement 1) not to sue small and limited forms of digital music file sharing (known as virtual private networks), 2) to include consumer groups on industry standard-setting bodies, and 3) to disclose and limit digital rights management techniques.

Second, we ask: How can we evaluate the means possible to achieve these ends? We contend that proposed reforms should be evaluated along axes of plausibility and comprehensiveness. As we will argue, those proposals which are most comprehensive - that is, the proposals most likely to achieve our stated aims in full - are also least plausible in the current institutional and legal environment. This motivates us to look for more realistically achievable, albeit less comprehensive goals. In other words, we would like to explore not just principle, but also issues of what, pragmatically, can be done in light of existing institutions and path dependence as well as principle.

Third, we ask: What institutions are available that can plausibly promulgate and effectively apply regulations to achieve these ends? It is here in Part III that we turn to the antitrust authorities as potential promulgators of regulations embodying our preferred outcomes. We will argue that, in the context of these technological developments, in the area of copyright law, neither the legislature, nor the courts, are going to strike the right balance. We therefore look to regulatory agencies, and in particular, the antitrust agencies, which are less likely in this context to be subject to capture by copyright interests. In Part IV, we outline the relative competencies and liabilities of Congress, the courts, and a range of administrative agencies in applying such regulation. We conclude by endorsing an expanded role for administrative agencies and a more restricted one for the courts.

copyright, antitrust, intellectual property, music, copyleft

Abstract:
Recent advocacy for campaign finance reform has been based on an ideal of the democratic process which is unrealistic and unhelpful. Scholars should instead return to its egalitarian roots. This article examines how deliberative democratic theory became the main justification for campaign finance reform. It exposes the shortcomings of this deliberativist detour and instead models campaign spending as an effort to commodify issue-salience. Given this dominant function of money in politics, a more effective paradigm for reform is equalizing influence. Advocates of campaign regulation should return to the original principles of reformers; not an idealized vision of the democratic process, but pragmatic concerns about moneyed interests acquiring too much influence over the nation's politics.

campaign finance, egalitarianism, political theory, Rawls, deliberative democracy, politics