Begin forwarded message:
From: "David P. Reed" <dpreed@reed.com>
Date: July 18, 2009 9:29:04 PM EDT
To: dave@farber.net
Cc: ip <ip@v2.listbox.com>
Subject: Re: [IP] Update of Kindle book removal
The phrase "putatively governed by a license" used by Prof. Zittrain caught my eye.
Perhaps we should start educating our children starting around 8th grade in the matter of "licenses". I daresay that most humans do not think about licensing, terms, etc. in their daily lives. When I buy a pair of shoes or hire a plumber, I don't negotiate a license. Neither products nor services that are used by ordinary people are understood in terms of "Dick and Jane License a Right" as (is never) taught in every (any) school.
Consequently, everyday living is not a matter of license transactions, so companies that presume that their customers will understand the meaning of licensing are pretty much guilty of prima facie deception.
A customer who cannot understand the terms of a deal must be encouraged to consult a lawyer with appropriate expertise. Otherwise, the seller is a con-artist. One function of government is to make sure that all parties to a contract understand the contract.
On 07/18/2009 08:05 PM, David Farber wrote:
Perhaps we should start educating our children starting around 8th grade in the matter of "licenses". I daresay that most humans do not think about licensing, terms, etc. in their daily lives. When I buy a pair of shoes or hire a plumber, I don't negotiate a license. Neither products nor services that are used by ordinary people are understood in terms of "Dick and Jane License a Right" as (is never) taught in every (any) school.
Consequently, everyday living is not a matter of license transactions, so companies that presume that their customers will understand the meaning of licensing are pretty much guilty of prima facie deception.
A customer who cannot understand the terms of a deal must be encouraged to consult a lawyer with appropriate expertise. Otherwise, the seller is a con-artist. One function of government is to make sure that all parties to a contract understand the contract.
On 07/18/2009 08:05 PM, David Farber wrote:
one wonders whether or a libel suit successfully prosecuted in the United Kingdom will eventually cause companies to reach around the world to delete the offending statements. This is clearly unacceptable. The rewriting of history does remind one of 1984.
Dave
Begin forwarded message:
From: Jonathan Zittrain <zittrain@law.harvard.edu>
Date: July 18, 2009 12:12:55 PM EDT
To: dave@farber.net
Subject: Update of Kindle book removal
For IP, if you like --
I've blogged about the situation at <http://futureoftheinternet.org/orwellian-indeed>. I think we'll see lots more cases like this as our products are transformed into services -- the purchase of a book is no longer the transfer of an object but the beginning of a long-term relationship with a vendor, putatively governed by a license.
Not only will regulators be tempted to require retraction of contraband content -- acting directly, or through the mechanisms of a court order arising from a lawsuit -- but the content need not be an entire book, video, or song. An offending passage could be excised or altered if found to infringe copyright, defame someone, or otherwise be illegal. Libraries' copies would be similarly affected -- and this is actually a natural outgrowth of the idea that courts can issue injunctions, after a successful trial, against offending material.
The same is true of technologies. In the ongoing case of TiVo v. EchoStar, <http://yupnet.org/zittrain/archives/14#7>, EchoStar's DVRs were found to be infringing TiVo's patents. Not only did EchoStar owe tens of millions of dollars to TiVo, but TiVo persuaded the judge to order EchoStar to remotely kill its DVRs. (The order currently is the subject of a contempt proceeding.)
While this might seem a matter of course to the law, it's a sea change for us and for our technology. Going from product to service requires us to think through new protections against too-easy government enforcement and intrusion, and perhaps to build those protections into technology as well as law. I've got more thoughts at <http://yupnet.org/zittrain/archives/14#35>.
Best,
JZ
Jonathan Zittrain
Professor of Law
Harvard Law School | Harvard Kennedy School of Government
Co-Founder, Berkman Center for Internet & Society
<http://cyber.law.harvard.edu>
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