general internet research papers - 20 February

[David Goldstein <goldstein_david@yahoo.com.au>]

**********************************************************
Sponsored by the Singapore Internet Research Centre 
http://www.ntu.edu.sg/sci/sirc/
Internet in Asia blog:
http://internetinasia.typepad.com/

Sponsored by EuroDNS and AsiaDNS - for your domain
name registration
http://www.eurodns.com/?refid=57d25a87c8bffdc565a16a5bf01e8825
**********************************************************

***************
RESEARCH PAPERS
***************
Surfing for Fun (Pew Internet & American Life Project)
About 40 million Americans were browsing the web just
for fun or to pass the time on a typical day in
December 2005.

http://www.pewinternet.org/PPF/r/175/report_display.asp

In Re Charter Communications: The Newest Chapter in
P2P File Sharing by Michelle Park

http://www.bu.edu/law/scitech/volume11issue2/ParkUpdateWEB.pdf

"Robust Notice" and "Informed Consent:" The Keys to
Successful Spyware Legislation, by Jordan M. Blanke,
J.D.
Abstract: As spyware, adware, and other computer
programs that surreptitiously monitor user behavior
become more prevalent, the United States Congress and
a number of state governments have proposed
legislation to target this problem. This article
argues that any legislative solution must require
robust, meaningful notice to users about the
ramifications of the software they are installing, so
that users can give their informed consent to install
the software and accept its terms and conditions. The
article discusses the background of the technological
innovations that led to the present day computing
environment. It then explores some of the common
questions and answers that arise concerning spyware
and discusses the strengths and weakness of various
state and federal legislative approaches.
 http://stlr.org/html/volume7/blankeintro.html

Production, Preservation, and Disclosure of Metadata
by J. Brian Beckham
Abstract: As the use of information technology
increasingly pervades every facet of our personal and
professional life, legal practitioners are taking
increasing notice of the effect that metadata can have
on their practice. In particular, the prevalence of
metadata threatens to have a dramatic effect on
discovery issues, such as document retention and
production. This article endeavors to define and
discuss the concept of metadata, and then explore how
this new category of information will apply to
traditional notions of waiver and privilege. It will
then highlight several proposals for the
discoverability of metadata, and will conclude with a
discussion of the ethical implications for counsel in
dealing with electronically transmitted documents.
 http://www.stlr.org/html/volume7/beckhamintro.html

Fighting terrorism in an electronic age: does the
Patriot Act unduly compromise our civil liberties?
The USA PATRIOT Act is tremendously controversial,
both lauded by law enforcement and decried by civil
liberties groups. This iBrief considers two of the
Act's communications monitoring provisions, concluding
that each compromises civil liberties to a greater
degree than is necessary to combat terrorism.
Accordingly, Congress should revise the USA PATRIOT
Act, bringing it into line with the Constitution.

http://www.law.duke.edu/journals/dltr/articles/2006dltr0003.html

us: Communications policy for 2006 and beyond By Reed
E. Hundt and Gregory L. Rosston
In this Article, the Authors propose sweeping changes
to the current telecommunications regulatory regime.
With impending reform in telecommunications laws, the
Authors argue that an important first step is the
creation of a bipartisan, independent commission to
examine and recommend implementation of more
market-oriented communications policy. . Through
maximizing the operation of the markets, the authors
argue that communications policy will better serve its
goals of increasing business productivity and consumer
welfare through the better services and lower prices.
Important steps to achieve optimal market operation
include deregulating retail prices where multifirm
competition is available, minimizing the cost of
public property inputs, overhauling universal service,
assigning greater jurisdictional authority to federal
regulators, and significantly reorganizing the FCC.
The Authors argue that the timely implementation of
these policies is crucial for achieving United States
telecommunications policy goal.

http://www.law.indiana.edu/fclj/pubs/v58/no1/HundtPDF.pdf

us: Costs and consequences of federal
telecommunications regulations By Jerry Ellig
Federal regulation of telecommunication profoundly
affects United States consumers, determining what
services are priced above and below cost, what kinds
of technologies and services are offered and when, and
what firms are allowed to compete. In this Article,
the Author surveys the voluminous literature on the
economic costs and outcomes of these regulations,
focusing predominantly on the effects of regulation on
prices, quantity, quality of service, and overall
consumer and social welfare. The Author estimates
costs and assesses outcomes for ten types of federal
telecommunications regulated activity:
telecommunications regulatory spending, long-distance
access charges, universal service funding, local
number portability, enhanced 911, miscellaneous
wireless mandates, spectrum management, satellite
regulation, unbundled network elements, and resale of
the incumbent?s services. The Article highlights
particularly inefficient and costly regulations while
also drawing attention to regulations that have a
significant positive outcome for consumers. The Author
concludes with an overall estimate of the cost of
federal telecommunications regulation to United States
consumers.

http://www.law.indiana.edu/fclj/pubs/v58/no1/ElligPDF.pdf

The filtering matrix: Integrated mechanisms of
information control and the demarcation of borders in
cyberspace by Nart Villeneuve
Abstract: Increasingly, states are adopting practices
aimed at regulating and controlling the Internet as it
passes through their borders. Seeking to assert
information sovereignty over their cyber?territory,
governments are implementing Internet content
filtering technology at the national level. The
implementation of national filtering is most often
conducted in secrecy and lacks openness, transparency,
and accountability. Policy?makers are seemingly
unaware of significant unintended consequences, such
as the blocking of content that was never intended to
be blocked. Once a national filtering system is in
place, governments may be tempted to use it as a tool
of political censorship or as a technological ?quick
fix? to problems that stem from larger social and
political issues. As non?transparent filtering
practices meld into forms of censorship the effect on
democratic practices and the open character of the
Internet are discernible. States are increasingly
using Internet filtering to control the environment of
political speech in fundamental opposition to civil
liberties, freedom of speech, and free expression. The
consequences of political filtering directly impact
democratic practices and can be considered a violation
of human rights.

http://firstmonday.org/issues/issue11_1/villeneuve/index.html

Law And Borders--The Rise of Law in Cyberspace By
DAVID R. JOHNSON and DAVID POST (originally published
in May 1996)
Introduction: Global computer-based communications cut
across territorial borders, creating a new realm of
human activity and undermining the feasibility--and
legitimacy--of applying laws based on geographic
boundaries. While these electronic communications play
havoc with geographic boundaries, a new boundary, made
up of the screens and passwords that separate the
virtual world from the "real world" of atoms, emerges.
This new boundary defines a distinct Cyberspace that
needs and can create new law and legal institutions of
its own. Territorially-based law-making and
law-enforcing authorities find this new environment
deeply threatening. But established territorial
authorities may yet learn to defer to the
self-regulatory efforts of Cyberspace participants who
care most deeply about this new digital trade in
ideas, information, and services. Separated from
doctrine tied to territorial jurisdictions, new rules
will emerge, in a variety of online spaces, to govern
a wide range of new phenomena that have no clear
parallel in the nonvirtual world. These new rules will
play the role of law by defining legal personhood and
property, resolving disputes, and crystallizing a
collective conversation about core values.

http://www.firstmonday.org/issues/issue1/law/index.html

The Life of the Law Online by David R. Johnson
I would like to suggest that the law (a legal system,
generally, such as the U.S. legal system as we know
it) has a life of its own. The law is an organism
rather than a mechanism. It is alive. And I want to
explore the implications of this for the development
of law(s) to govern the global Internet.

http://firstmonday.org/issues/issue11_2/johnson/index.html

The Great Debate - Law in the Virtual World by David
G. Post and David R. Johnson
Should cyberspace (or subsets of cyberspace) be
treated as distinct ?places? for purposes of legal
analysis? Does thinking about cyberspace in that way
clarify or muddle legal doctrine and thinking about
legal problems?

http://firstmonday.org/issues/issue11_2/post/index.html

Dispute Resolution Without Borders: Some Implications
for the Emergence of Law in Cyberspace by Ethan Katsh
The upcoming tenth anniversary of David Johnson?s and
David Post?s seminal article, ?Law and Borders ? The
Rise of Law in Cyberspace? [2], coincides with the
tenth anniversary of another highly significant,
albeit less publicized, cyberlaw event. In May, 1996,
the same month that ?Law and Borders? appeared in the
Stanford Law Review and First Monday, Johnson was
hosting the first conference on online dispute
resolution (ODR), a meeting concerned not with making
rules for cyberspace but for building processes to
settle disputes occurring in cyberspace. The meeting
marked the beginning of the online dispute resolution
(ODR) movement, a movement that has grown from a
single dispute handled by an entity called the Virtual
Magistrate to several million disputes handled by
SquareTrade, an Internet start?up that has become the
largest dispute resolution provider in the world.

http://firstmonday.org/issues/issue11_2/katsh/index.html

Virtual Borders: The Interdependence of Real and
Virtual Worlds by James Grimmelmann
Abstract: The flourishing trade of virtual items for
real?life money suggests that virtual worlds will
sometimes welcome the intervention of real?life law.
At first glance, this possibility seems to undermine
the Law and Borders thesis that online spaces should
enjoy independence from real?life law. These ideas are
compatible, however, because they start from a common
premise: that these new communities are developing
their own distinctive values. The lesson of the
real?money trade is that preserving those values
requires recognizing the interdependence of virtual
worlds and the real world.

http://firstmonday.org/issues/issue11_2/grimmelmann/index.html

Challenges to Authority, Burden of Legitimisation: The
Printing Press and the Internet by Zack Kertcher &
Ainat N. Margalit
Abstract: The Internet is often regarded as a
challenge to the nation-state?s ability to regulate
flows of finance, information, and symbols. Rather
than examining whether it is possible to enforce
regulation on such a media, this paper addresses two
additional fundamental questions: (1) what do
regulatory discourses and attempts to regulate reveal
about the nation-state?s political authority under
globalisation, and (2) how does this authority vary
across social, political, and cultural contexts? In
order to address these challenging queries we follow a
unique path, both empirically and theoretically.
Theoretically, we argue that political authority is a
pivotal common denominator that undergirds diverse
understandings of globalisation. We then critically
examine different conceptions of political authority
and construct a typology that orients our study.
Empirically, we follow our typology by comparing two
historical phenomena: attempts by the Catholic Church
to regulate the printing press during the 15th and
16th centuries, and attempts by China, Malaysia and
the United States to regulate the Internet. Despite
certain important commonalities, we posit that each of
these cases illustrates a different model of the
legitimisation processes and transformations in
political authority that occur under globalisation.

http://www.ijclp.org/10_2005/ijclp_webdoc_03_10_2005.htm

Copyright vs. Free Expression: The Case of
Peer-to-Peer File-Sharing of Music in the United
Kingdom by Robert Danay
Abstract: This paper explores the extent to which the
peer-to-peer (p2p) file-sharing of music is a form of
communication protected from the restrictions of the
Copyright, Designs and Patents Act 1988 (U.K.) (CDPA)
by the guarantee of free expression enshrined in
Article 10 of the European Convention on Human Rights
(ECHR) and incorporated into domestic law through the
Human Rights Act 1998 (U.K.) (HRA). The paper first
examines the protection offered to freedom of
expression through the existing copyright scheme. It
is asserted that due to a lack of context-sensitivity,
mechanisms such as the idea-expression dichotomy must
not be relied upon to deny the existence of prima
facie breaches of Article 10(1) of the ECHR. Rather,
such breaches must be acknowledged and justified (if
possible) as being ?necessary in a democratic society?
under Article 10(2) of the ECHR. Next, the extent to
which p2p music file-sharing represents an
infringement under the terms of the CDPA (exclusive of
any effect of the ECHR) is examined. It is concluded
that such sharing does amount to an infringement under
the Act and is not subject to any of the enumerated
defences. The final part of the paper explores the
extent to which the statutory restriction on
file-sharing of music may be permitted under Article
10 of the ECHR. It is suggested that, for a number of
reasons, the CDPA?s restriction on free expression may
not be ?necessary in a democratic society? under
Article 10(2) of the ECHR. As a result, should this
statutory restriction be impugned in a U.K. courtroom
in the context of p2p music file-sharing, such a court
may be under an obligation to exculpate infringing
parties under the ?public interest? defence or to make
a declaration of incompatibility under the HRA.

http://www.ijclp.org/10_2005/ijclp_webdoc_02_10_2005.htm

Law as a Network Standard by Dan L. Burk
Abstract: The problem of global information flows via
computer networks can be conceived and understood as
raising issues of competition, interoperability, and
standard-setting parallel to those in analysis of
technical standards. Uniform standards, whether
technical or legal, give rise to a constellation of
positive and negative network effects. As a global
network based upon the ?end to end? principle of
interoperability, the Internet mediates between
different, otherwise incompatible computing platforms.
To the extent that law and technological ?code? may
act as substitutes in shaping human behavior, the
Internet similarly mediates between different,
otherwise incompatible legal platforms. Much of the
legal and social controversy surrounding the Internet
stems from the interconnection of such incompatible
legal systems. As with technical systems, problems of
incompatibility may be addressed by the adoption of
uniform legal standards. This, however, raises legal
standard-setting problems similar to those seen in
technical standard setting, where the standard may be
?tipped? in favor of dominant producers. In
particular, if law is considered a social product, the
benefits of interjurisdictional competition and
diversity may be lost as a single uniform legal
standard dominates the market for law.

http://www.ijclp.org/10_2005/ijclp_webdoc_01_10_2005.htm

Challenges to Authority, Burdens of Legitimization:
The Printing Press and the Internet By Zach Kertcher
and Ainat N. Margalit
The Internet is often regarded as a challenge to the
nation-state's ability to regulate flows of finance,
information, and symbols. Rather than examining
whether it is possible to enforce regulation on such a
media, this paper addresses two additional fundamental
questions: (1) what do regulatory discourses and
attempts to regulate reveal about the nation-state's
political authority under globalization, and (2) how
does this authority vary across social, political, and
cultural contexts? In order to address these
challenging queries we follow a unique path, both
empirically and theoretically. Theoretically, we argue
that political authority is a pivotal common
denominator that undergirds diverse understandings of
globalization. We then critically examine different
conceptions of political authority and construct a
typology that orients our study. Empirically, we
follow our typology by comparing two historical
phenomena: attempts by the Catholic Church to regulate
the printing press during the 15th and 16th centuries,
and attempts by China, Malaysia and the United States
to regulate the Internet. Despite certain important
commonalities, we posit that each of these cases
illustrates a different model of the legitimization
processes and transformations in political authority
that occur under globalization.

http://research.yale.edu/lawmeme/yjolt/files/20052006Issue/fall05-kertchermargalitformatted.doc

Copyright vs. Free Expression: The Case of
Peer-to-Peer File-Sharing of Music in the United
Kingdom By Robert Danay
This paper explores the extent to which the
peer-to-peer (p2p) file-sharing of music is a form of
communication protected from the restrictions of the
Copyright, Designs and Patents Act 1988 (U.K.) (CDPA)
by the guarantee of free expression enshrined in
Article 10 of the European Convention on Human Rights
(ECHR) and incorporated into domestic law through the
Human Rights Act 1998 (U.K.) (HRA). The paper first
examines the protection offered to freedom of
expression through the existing copyright scheme. It
is asserted that due to a lack of context-sensitivity,
mechanisms such as the idea-expression dichotomy must
not be relied upon to deny the existence of prima
facie breaches of Article 10(1) of the ECHR. Rather,
such breaches must be acknowledged and justified (if
possible) as being ?necessary in a democratic society?
under Article 10(2) of the ECHR. Next, the extent to
which p2p music file-sharing represents an
infringement under the terms of the CDPA (exclusive of
any effect of the ECHR) is examined. It is concluded
that such sharing does amount to an infringement under
the Act and is not subject to any of the enumerated
defences. The final part of the paper explores the
extent to which the statutory restriction on
file-sharing of music may be permitted under Article
10 of the ECHR. It is suggested that, for a number of
reasons, the CDPA?s restriction on free expression may
not be ?necessary in a democratic society? under
Article 10(2) of the ECHR. As a result, should this
statutory restriction be impugned in a U.K. courtroom
in the context of p2p music file-sharing, such a court
may be under an obligation to exculpate infringing
parties under the ?public interest? defence or to make
a declaration of incompatibility under the HRA.

http://research.yale.edu/lawmeme/yjolt/files/20052006Issue/fall05-danayformatted2.doc

OECD: Telecommunication regulatory institutional
structures and responsibilities  	
Over the last five years much has changed in the
context of telecommunication regulation. The
jurisdiction of regulators has changed in many
countries as responsibilities, formerly with
ministries, were transferred to regulators. In certain
cases significant functional changes in
responsibilities have also required name changes in
organisations to reflect these new responsibilities.
 http://www.oecd.org/dataoecd/56/11/35954786.pdf
		
OECD: VoIP: Developments in the market 	
The development of broadband Internet access, as well
as the usage of innovative technologies such as
advanced wireless systems, including third-generation
mobile (3G) and wireless LANs, have triggered a shift
in voice traffic from traditional public switched
telephone networks (PSTN) to alternative Internet
Protocol (IP) networks.
 http://www.oecd.org/dataoecd/56/24/35955832.pdf

Does the Internet Defy the Law of Gravity?
Abstract: We show that gravity holds in the case of
digital goods that are consumed over the Internet and
have no trading costs. Therefore, trade costs,
although possibly important, cannot account for the
effects of distance on trade. In particular, we show
that Americans are more likely to visit websites from
countries that are physically close than from
countries that are far, even after controlling for
country-level Internet expertise, language, income,
immigrant stock, and many other factors. Furthermore,
we show that this effect only holds for digital
products that depend on taste, such as music, games,
and pornography. For these, a 1% increase in physical
distance reduces the probability an American will
visit the website by 3.25%. For less taste-dependent
products, such as software, distance has no
statistical effect.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=876486

The Internet, Creativity and Copyright Incentives
Abstract: The copyright industries savour their role
as critical intermediaries in the copyright supply
chain. To this end they are continually seeking to
strengthen their legal entitlements by arguing that
stronger copyright incentives fuel future creative
action. But the reality of creativity is different
from the linear economic reward/action relationship
that these industries promote. This reality has been
brought into sharp focus by the seemingly limitless
creativity that the internet has unleashed. Much of
this creativity occurs without reference to the
incentive structure provided by copyright law and
demonstrates the potential redundancy of several
existing industry functions. The result has been a
seemingly intractable tension between established
industries and emergent modes of production and
dissemination. The clearest examples of this tension
are the current debates over the utility of
peer-to-peer technology and the competition between
proprietary and open source software development
models. This tension, and the realities of creativity
that underpin it, are the subject of this article. A
diverse range of creative experiments facilitated by
digital networked technology are considered and used
as a backdrop to a general discussion on some of the
areas where reforms to copyright's existing incentive
structure are most needed.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=876910

Intimidation and the Internet - the case of the
Nuremberg Files
Abstract: This article argues that while the Nuremberg
Files site was not protected by the First Amendment,
the reasons given by the judges in the majority on the
Ninth Circuit were not the correct reasons for that
conclusion. Rather, this article suggests that current
First Amendment doctrine does not directly address the
problem raised by the Nuremberg Files site: speech
that is neither a direct threat nor an incitement, but
nevertheless?because of its particular character,
including its publication on the Internet?is intended
to and does have the immediate effect of intimidating
persons from engaging in lawful, even constitutionally
protected, behavior. In reaching this conclusion, this
article will try to make three points. First, fear is
a social evil that the state may protect against, an
evil distinct from the actual danger of an event
occurring. Second, the Internet is special; it is not
"like" any other traditional media. Third, First
Amendment analysis should not be limited to
categorizing particular activities in certain
predetermined boxes, such as true threats, incitement,
defamation, fighting words, etc.; rather, it should be
governed more by principles that take account of the
balancing implicit in current First Amendment doctrine
and categories.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=881873

Do Home Computers Improve Educational Outcomes?
Evidence from Matched Current Population Surveys and
the National Longitudinal Survey of Youth 1997
Abstract: Nearly twenty million children in the United
States do not have computers in their homes. The role
of home computers in the educational process, however,
has drawn very little attention in the previous
literature. We use panel data from the two main U.S.
datasets that include recent information on computer
ownership among children - the 2000-2003 CPS Computer
and Internet Use Supplements (CIUS) matched to the CPS
Basic Monthly Files and the National Longitudinal
Survey of Youth 1997 - to explore the relationship
between computer ownership and high school graduation
and other educational outcomes. Teenagers who have
access to home computers are 6 to 8 percentage points
more likely to graduate from high school than
teenagers who do not have home computers after
controlling for individual, parental, and family
characteristics. We generally find evidence of
positive relationships between home computers and
educational outcomes using several estimation
strategies, including controlling for typically
unobservable home environment and extracurricular
activities in the NLSY97, fixed effects models,
instrumental variables, future computer ownership and
pencil tests. Some of these estimation techniques,
however, provide imprecise estimates. Home computers
may increase high school graduation by reducing
non-productive activities, such as truancy and crime,
among children in addition to making it easier to
complete school assignments.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=877891

+++++++++++++++++++++++++++++++

Check out http://auda.org.au/domain-news/dn-news for
the latest domain news. Within 24 hours of this news
being posted, a more recent edition of the news will
normally be posted to the auDA web site. The domain
name news is supported by auDA.

Also see
http://internews.tv/mailman/admin/internetnews_internews.tv
for an archive and to subscribe to the domain name or
general internet news.

Sources include Quicklinks <http://qlinks.net/> and
BNA Internet Law News <http://www.bna.com/ilaw/>.

+++++++++++++++++++++++++++++++

(c) David Goldstein 2006

David Goldstein
 address: 4/3 Abbott Street
             COOGEE NSW 2034
             AUSTRALIA
 email: Goldstein_David @yahoo.com.au
 phone: +61 418 228 605 - mobile; +61 2 9665 5773 - home


		
____________________________________________________ 
Do you Yahoo!? 
The New Yahoo! Movies: Check out the Latest Trailers, Premiere Photos and full Actor Database. 
http://au.movies.yahoo.com