April 19, 2014

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Opening Government: On the Limits of FOIA and the Metaphor of Transparency

At a recent symposium (“Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law”) sponsored by the Cardozo Arts and Entertainment Law Journal, I was invited to respond to an excellent paper by David Levine on secrecy, national security, and the denial of public access to documents from the Anti-Counterfeiting Trade Agreement (ACTA) negotiation process. Dave argues in his paper for an amendment to the federal Freedom of Information Act (FOIA) that would create a qualified public right to “foreign relations” national security information. Had such an amendment been in place at the time of the ACTA negotiations, the Office of the United States Trade Representative would not have been able to invoke FOIA’s national security exemption—a dubious invocation, at best—to deny public requests for documents that were made under FOIA by public interest groups like Public Knowledge.

Responding to Dave’s article got me thinking about the use of “transparency” as a metaphor for openness in government, the use of FOIA as a mechanism for ensuring such openness, and the ways in which proponents of greater public involvement in policy-making (among whom I count myself) may disserve the cause by focusing too single-mindedly on access to information and the right to know, both of which are operationalized through FOIA. In my response to Dave’s article, a relatively short piece that I’ve posted to SSRN, I try to articulate the limits of FOIA as a mechanism for open government:
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Broken Ballots

Broken Ballots book cover A important new book has just been published on the technology and policy of elections. Broken Ballots: Will Your Vote Count by Douglas W. Jones and Barbara Simons, covers voting systems from the 19th century to the present, with particular focus on the last two decades. The authors describe the strengths and weaknesses of the machinery itself–lever machines, optical-scan vote counters, touchscreen voting computers–with technical sophistication, yet in a way that will be accessible to a wide audience. Then they describe the strengths and weaknesses of the policy processes–at the level of election administration, congressional legislation, and Federal administrative-branch agencies–with particular emphasis on the last 10 years. The authors are experts in the field of voting technology and policy, and it shows. The book is well researched with extensive citations, but it’s also a good read (with photos and illustrations) that has an interesting story to tell.

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Contract hacking and community organizing

I discussed community discontent with copyright terms of some scholarly publishers, and I proposed an economic analysis. Now let’s consider two other approaches.

Contract hacking

I have published quite a few scholarly papers, and with each one I am invited to sign a copyright form. This is a contract between author and publisher, which which I hand over certain rights and the give me $0 (plus they publish my paper). These contracts (and my signature) is in dead-tree form, on real paper (though in recent years it follows the print/sign/fax or print/sign/scan/e-mail model).

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Modest Proposals for Academic Authors

In the scuffles over copyright policies on scholarly articles, what is the academic author to do? First, inform yourself. Find and read the copyright policy of the journals (or refereed conferences) to which you submit the articles describing research results. Find out the subscription price (dead-tree-edition or online) that the publisher charges individuals and institutions, and compare with the norms in your fields and others. Decide for yourself whether your publisher is unduly limiting the spread of ideas, or charging such prices that the effect is the same.

Remember what Thomas Jefferson wrote in 1813:

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

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Copyright in Scholarly Publishing, 2012 Edition

I’ve heard a lot recently about copyright policies of scholarly journals. Over 9000 researchers signed a pledge to boycott Elsevier, on three grounds: (1) high prices for journal subscriptions, (2) bundling practices for institutional subscriptions; (3) lobbying regarding SOPA, PIPA, and the Research Works Act.

Meanwhile, other organizations such as the ACM (scholarly/professional society for computer science and the computing industry) and IEEE (scholarly/professional society for electrical engineering and computing) once were leaders in open-access; they had relatively low journal prices and relatively liberal policies permitting authors to display preprints on the authors’ web pages. Now the ACM’s and IEEE’s policies have not changed, but they are no longer at the forefront: while ACM and IEEE require an assignment of copyright and leave the author with a few rights, organizations such as Usenix (another professional society in computing) take only a nonexclusive license to reprint a scholarly article.

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The Latest in Nationwide Internet User Identification – Part 2 (the All-New, So-Called Federal Co-Conspirator Theory)

Since Part 1 in this series a few months ago, Plaintiffs have continued to file “pure bill of discovery” suits in Florida state court. These proceedings typically involve “John Does” who are accused of copyright infringement via peer-to-peer networks. The Plaintiffs (copyright-holders or their delegates) have continued to name as defendants in those “pure discovery” proceedings not the entities from whom they seek discovery (i.e., the Internet service providers) but instead John Does, from whom no discovery is sought. After filing their suits, Plaintiffs promptly seek and obtain an ex parte order for expedited discovery of the John Does’ names from the ISPs, even though the ISPs are not then represented or present in the proceeding. Because the ISPs are not technically parties, the Plaintiffs can use these orders to issue subpoenas to ISPs from across the country regardless of whether the ISPs or their subscribers would be subject to the jurisdiction of a Florida state court.

The Plaintiffs’ lawyers certainly must know that this is not right. For one thing, they tend to withdraw their subpoenas whenever it appears a court is actually going to hear the reasons why their use of the proceeding is improper.

Recently, several ISPs stood firm and proceeded to a hearing on their motions for protective order in a couple of these proceedings. The Plaintiffs’ lawyers, in typical fashion, tried to withdraw their subpoenas and argued that the judges should not listen to the ISPs’ arguments. Not surprisingly, the Plaintiffs did not fare well in an adversarial proceeding.

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