Sunday, March 31, 2013

Gandhi's Copyright Pragmatism

Earlier today, Carl Malamud tweeted a link to a fascinating paper about the evolution and reasons for Gandhi's prescient views and use of copyright law during his life. The combination of historical narrative, interdisciplinary research and discussion, and copyright was enough to take over the start of my Sunday afternoon. Read the abstract and download the full paper by Professor Shyamkrishna Balganesh here.

The paper traces Gandhi's views during his most prolific writing periods, and anchors its analysis with examples showing three key phases: personal rejection [of copyright], reluctant engagement and strategic deployment. The first phase largely coincides with Gandhi's rejection of utilitarian philosophy primarily out of concern that minority voices would be drowned out or ignored, along with other reasons. The second is illustrated by the example of granting US and UK rights to a publisher for an autobiographical work, which Gandhi perceived as an appropriate compromise. The final phase foreshadowed the explicit disaggregation of the copyright bundle in mid-late 20th century statutes and licensing (including copyleft, Creative Commons) of the early 21st century. It uses the example of Gandhi exercising copyright in newspaper articles to preserve the right of first translation in light of translations that distorted the meaning, or were not as accurate as he would have liked. After translating himself, the works remained freely available.

Through the lens of copyright, the paper traces the various philosophical threads in Gandhi's approach to property, emphasis on the legal concept of trustees and trusteeship, and focus on duties instead of assuming rights. The paper begins by telling the story of how the Navjivan Trust, which held copyrights to his work after death, decided to dedicate them to the public domain in 2008 rather than lobby for extensions of copyright. (Gandhi died in 1948. Under the law in effect, a term of life plus sixty years applied.) It goes on to explore the points noted in the paragraph above, along with commercial and profit-oriented considerations and the little known (to me, at least) fact that Gandhi initially trained as a barrister (aka a lawyer focused on courtroom appearances and similar work) before turning toward activism. Other interesting sub-plots appear throughout, such as Gandhi's acceptance of the value of acknowledging any changes in opinions while pursuing one's conception of truth. The author quotes one of Gandhi's letters, in which he emphasizes that, "when anybody finds any inconsistency between any two writings of mine, if he has still faith in my sanity, he would do well to choose the later of the two on the same subject. "

In discussing the contemporaneous rise of legal pragmatism in the United States, the author also speculates as to the historical or other reasons for the dual discovery and adherence to similar ideals by Gandhi. I'd urge the curious reader to check out the full paper. This safe-for-non-lawyers piece reads more like a multi-part magazine article than law review entry and shines some interesting light on 20th century legal philosophy, Gandhi's life and a perspective on copyright law often lacking in the literature.

Tuesday, March 19, 2013

Here Come the New gTLDs

On March 13, the deadline for filing objections to applications in ICANN's initial rollout phase of new gTLD's passed. Currently, there are 22 generic top-level domains, such as .com or .net, and 280 ccTLD's, or country code top level-domain names like .uk, in the top-level namespace. Now any entity with the money and demonstrated technical expertise can apply for .anything-you-want. As of today, 1,410 new TLDs strings have been applied for by 1,930 applicants (data). Some have been withdrawn. They've come in for everything from .blog to .book, so get ready for url's like "". 

Since its announcement, the new gTLD program has raised speech-related concerns for governments, competition claims by book publishers and both phantom and real nightmares for trademark owners, among others. The objection and dispute resolution procedures for challenging the introduction of new gTLDs can be found here. ICANN "intends to publish a list of objections [to the initial applications] that require applicant responses in mid-April." More businesses and individuals are likely to be concerned with their trademark used as a second-level domain, i.e. the "google" in "". 

Beginning March 26, trademark owners will be able to register their marks with ICANN's Trademark Clearinghouse for notice and opportunity to secure one's trademarked term as a second-level domain under new gTLDs, though it will not prohibit registration by third parties subject to whatever UDRP-like agreement the new gTLD registry puts in place. (FAQSum) Still, not many situations call for the purchase of every TLD. A trademark owner doesn't need .com, .net, .biz, .info, .tv, .uk and friends, multiplied by common misspellings for each mark. Even putting aside instances of fair use or other legitimate users' rights (in another territory, for example), shouldn't an owner at least have a shot at securing a mark as a second-level domain under each new gTLD?

Another issue complicating the rollout is ICANN's desire to retain the unilateral ability to amend its registry agreements, which must be considered in light of ongoing consideration of whether new gTLD registry operators may operate in an "open" or "closed" manner. In other words, assuming Amazon is granted .book, must it allow competitors to register "" or can it keep it for itself? The pages of responses to ICANN's request for comment on the issue provide a glimpse at the inevitable collisions of the multistakeholder model as well as some legitimate-in-most-cases innovation and competition arguments for giving the applicant the choice and other creative lawyering.

For example, All State claims it will allow its independent contractor insurance agents, who sometimes sell competitors' products as well, to use the .autoinsurance and .carinsurance gTLDs. Ergo, they're not necessarily closed. And since the gTLD guidebook didn't prohibit closed domains, it thus contemplated and allowed them. On the other hand, The Authors Guild thinks allowing a company like Amazon to control .book, .author and .read would be "plainly anticompetitive." For non-trademarked terms, I think this issue is going to get a lot more attention. It certainly smells like something the FTC might consider. The agency came out swinging in late 2011 when the program was announced and has since chimed in as recently as January, raising important concerns about the potential for fraud and consumer confusion.

Google's response is worth reading if you pick just one. While it's clearly written in the company's best interests, it does a good job of highlighting a number of the key issues involved. It claims, "[N]ew forms of innovation and competition require that registry operators be allowed to experiment with a variety of business models, from the current pure open model to the single registrant "brand TLD", and everything between them." It goes on to forecast that, "If these TLDs are successful, it will not be due to the inherent value of a generic term, but rather because users are persuaded to make use of these domains." I agree with this in most cases, and they even raise the point of how different many uses are likely to be, such as restricting .esq only to lawyers compared one like .maps. In a concession to broader principles of not being evil online, Google then rightfully agrees to revise its applications for .app, .blog, .cloud and .search after concerns were raised by a handful of groups. More group and individual comments can be found here.

The Google response also answered an important question I hadn't realized is long-settled. .cat is already taken. Overall, the multiple layers of issues and even technical concerns in the new gTLD rollout process ensure we'll be hearing lots more in the next few months. Get your popcorn, internet law nerds.