September 29, 2022

Archives for June 2013

Regulating Bitcoin

On Tuesday the State of California sent a letter to the Bitcoin Foundation, saying that the Foundation might be in violation of California’s law against running an unregistered money transmission business. The letter isn’t important in the grand scheme of things—it’s clear that the Bitcoin Foundation isn’t transmitting money—but it does raise the obvious question of how governments will try to regulate the use of Bitcoin.
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Open-source Governance in Bitcoin

Josh Kroll, Ian Davey, and I have a new paper, The Economics of Bitcoin Mining, or Bitcoin in the Presence of Adversaries, from the Workshop on Economics of Information Security. Our paper looks at the dynamics of Bitcoin, how resilient it would be in the face of attacks, and how Bitcoin is governed. Today I want to talk about governance in Bitcoin.
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I Join the EFF and Others in Calling for Craigslist to Drop CFAA Claims

[Cross-posted on my blog, Managing Miracles]

Craigslist is suing several companies that scrape data from Craigslist advertisements. These companies, like Padmapper and 3taps, repurpose the data in order to provide more useful ways of searching through the ads. I have written about this in earlier posts, “Dear Craig: Voluntarily Dismiss with Prejudice,” and “A Response to Jerry: Craig Should Still Dismiss.” Fundamentally, I think that the company’s tactic of litigating against perceived competitors is bad for Craigslist (because it limits the reach of its users’ ads and thus the success of Craigslist), it is bad for the law and policy of the web (because scraping of public web sites has historically been a well-established and permissible practice that beneficially spreads public information), and is in bad taste (given Craiglist’s ethos of doing well by doing good).

One of the most problematic aspects of the lawsuit is the set of claims under the Computer Fraud and Abuse Act (CFAA) and its California state-law counterpart. The CFAA, passed in 1986, introduces criminal and civil penalties for “unauthorized access” to “protected computers.” The CFAA was largely a reaction to generalized fear of “computer hacking,” and it did not envision the public internet as we know it today. Nevertheless, some have tried to apply the CFAA to public web sites. This approach has been widely frowned upon by both the tech community and the courts. For instance, the Center for Democracy and Technology (CDT) and the Electronic Frontier Foundation (EFF) are actively pushing to reform the CFAA because it has been subject to prosecutorial abuse. Craigslist has nevertheless alleged violations of the CFAA based on access to their public web site.

Today I signed on to an an amicus brief written by the EFF–which was also co-signed by other scholars in the field–that urges the court to dismiss these ill-advised CFAA claims. The brief reads, in part:
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The low-transaction-fee argument for Bitcoin is silly

A common argument advanced by Bitcoin proponents is that unlike banks and credit cards, Bitcoin has low (or even zero) transaction fees. The claim is a complete red herring, and in this post I’ll explain why.

Let’s assume for the purposes of argument that Bitcoin transaction fees are, in fact, zero. There are small mining-related transaction fees, but it seems plausible that these fees will always be far smaller than those associated with traditional banking.

Why do banks and credit cards charge those annoying fees? A major reason is fraud. Banks eat the cost of fraudulent transactions, but pass on the cost to the customer by taking a cut of each legitimate transaction. Fraud is not an artifact of a particular system that we can design away — it is inherent to every form of money handled by humans. To compare Bitcoin meaningfully with traditional banking, then, we must ask how big fraud-related losses are for Bitcoin users.

Framed this way, the comparison is not a happy one for Bitcoin. From thefts of wallets to hacks of Bitcoin exchanges, fraud in the Bitcoin ecosystem is rampant. It only gets worse when we add sources of risk other than fraud. A recent study found that 45% of Bitcoin exchanges shut down. Several of the rest have suffered attacks and losses.
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On the Legal Importance of Viewing Genes as Code

The Supreme Court yesterday issued its opinion in the much–awaited Myriad case, which challenged the validity of patents on isolated human genes. The Court held that the isolated genetic sequences claimed in Myriad’s patents did not satisfy the inventive threshold for patentability, although the complementary DNA (cDNA) claimed in the patents did. One of the more interesting elements of the case for me is the extent to which the outcome turned on a single conceptual choice: When assessing patentability, should the legal analysis focus on the isolated DNA’s chemical structure or its information-coding function? The Court decided that the information-coding function was the proper focus. That choice led the justices to the inevitable conclusion that the isolated sequences were not patentable. The Court of Appeals for the Federal Circuit, by contrast, had focused on the sequences’ chemical structure and had reached the opposite conclusion.

Why did this conceptual choice turn out to be so consequential? To be patentable, an invention must be the product of human ingenuity. Products of nature and natural phenomena are excluded from the scope of patent protection. The leading case in the domain of patents on living organisms is Diamond v. Chakrabarty, in which the Court said that patent protection could extend to “anything under the sun that is made by man.” The scope is very broad (i.e., “anything under the sun), but it isn’t unlimited (i.e., it has to be “made by man”).  The question courts must ask to separate products of nature from products of human ingenuity is whether the claimed invention is “markedly different” from something that is found in nature.
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