Net Neutrality

Take a look at this article from the AP via Wired Mag.  Any strong opinions one way or another on the next step away from net neutrality?

As biotechs get rich off human tissue why don’t donors get a cut?

Here’s a business model for you: (1) you have a highly-technical specialty with very few competitors, and (2) better yet, federal law dictates that the materials you use will be provided to you at zero cost. That’s the business model that biotech firms such as LifeCell Corp. are using to make money hand over fist. (LifeCell brought in the tidy sum of $140.6 M last year.)

So how is it that these biotech firms are profiting from our bodies while we get no compensation? The answer is fairly simple. The National Organ Transplant Act (NOTA) of 1984 made it illegal for individuals to sell their body parts. This law might be comforting for ethical reasons. After all, we don’t like the idea of people hawking their organs like used cars. But, as with any law, we should be aware of its unintended consequences, one of which is the apparent windfall for ambitious biotech firms.

Those who support NOTA will argue two things. First, they’ll suggest that a donor-based system is the best way to meet the serious life and death health concerns of those who need organ transplants. This argument seems fairly naive when you look at the services these biotech companies, whose customers often rely on human tissue for ever-important procedures such as lip implants. The second tack NOTA proponents will take is the classic slippery-slope argument: creating a property right in one’s body parts will result in greed, exploitation, and unsafe practices. A look around the biotech field makes it pretty obvious that avarice is already afoot– it’s now just a question of who can share in the profits. And, as for the safety argument, we (and all those participating in overseas black markets) would all be a lot better off if we create an open, regulated market for human tissue.

Kerry Howley, writing for the LA Times puts it nicely:

“Saner rules would treat the human body as the increasingly valuable property it is, allowing potential donors to will the value of their bodies as they do the rest of their assets. At the very least, donors should know they’re giving to a system that will sell their parts, not a charity that funnels them to those in need.”

This misnomer– the idea that this is an area of charity, not of big business– is what keeps our system of mandatory donations alive. We think it crass to sell our body parts, especially to nonprofits who are trying to save lives. But when the veil is lifted, and we start to see the growing cadre of biotechs getting rich off our bodies, we shouldn’t hesitate to ask: where’s our cut?

I will admit that I’ve only skimmed the surface of this issue. I haven’t discussed the ethics, or for that matter the economics, of creating property rights in human tissue. Am I way off base in arguing what I’ve argued? Are there serious risks I’m overlooking?

—Daniel Corbett

The Pitchfork Effect

On this, my first day of law school, I’ve decided to spare all of you a law-related post. And since I went to undergrad at Ohio, a school with quite a large population of indie kids, I thought I’d write about Pitchfork instead. Wired has an interesting article this month about the “Pitchfork Effect,” a phenomenon by which relatively obscure (OK, so the more obscure the better…) bands become big overnight due to exposure in Pitchfork. In short, when it comes to indie rock, street cred is worth more than any advertising budget could buy.

You may remember last summer’s economic experiment by the name of Clap Your Hands Say Yeah!. The 5-piece band did not rely on advertisements or large scale distribution. Instead, they burned a few CD’s (which quickly spread across the globe), played a few shows, and sat back, waiting for the self-generating hype machine to do its work. And it did; the band became the summer’s biggest band in virtually no time. The same logic has worked for other independent successes like the Arcade Fire and TV on the Radio.

This phenomenon, part social networking, part bloodthirsty marketing has even caught the eye of Rupert Murdoch, who recently acquired the website MySpace.com for its revenue generating potential.

Where’s the line between solicited marketing and “real” word-of-mouth? Is there a line to begin with?

In one of my PR classes, my professor told us about cell phone companies who would pay “undercover” sales reps to stand at public gathering places and loudly sing their praises for the product. Ever since, I’ve been at least slightly more skeptical of the ringing endorsements I hear. But at the same time, I want to have a “filter” like Pitchfork Media because it helps me sort through the best and worst of an area in which I’m interested but not an expert.

—Daniel Corbett

Glass blower wields copyright law

      Copyright 101 question: Dan, an aging but venerable author asks Morgan, a fellow author to help him with a book. In a correspondence, Dan says to Morgan, “Here’s a little sketch but make whatever you want.” Dan turns around to sue Morgan for infringing– er– himself?

      Now take and apply it to an even more contentious arena for IP– the world of glass sculpture.

      That's the story behind a recent copyright suit being brought forward by Seattle glass sculptor Dale Chihuly. Chihuly is suing a longtime collaborator for putting out glass sculptures that too closely resemble his postmodern, sea-inspired works.

      There are two key problems with this suit: 1.) the quotation from the hypothetical is an direct quotation from the plaintiff to the defendant in a correspondence between the two. Chihuly stopped blowing glass 27 years ago and has since relied on other artists to carry out– obviously with varying degrees of guidance– his visions (hat tip to Prof. Michael Madison). 2.) How easy is it to declare ownership over abstracted, nautical themed glass sculptures? There is a reason copyright has been slow to show itself in the art world. As the defense attorney in the case put it: "If the first guy who painted Madonna and Child had tried to copyright it," Mr. Wakefield said, "half of the Louvre would be empty."

—Daniel Corbett

The law of blogging

    The new X-Men? Disappointing? How can it be? In any case, I hope my answer is at least somewhat fulfilling. First, I have to echo my support for your unflinching stand on free speech in cyberspace. The Electronic Frontier Foundation out of San Francisco has been the vanguard of the "bloggers' rights" movement. Why should, within reason, companies rein in what their employees say and do in their private lives?

    But it's this "within reason" caveat– painful but necessary– that comes around to haunt our theoretical defense of Internet free speech. Nondisclosure agreements are the lifeblood of many companies, especially in an idea-based economy. But where do we draw the line? Is blogging publishing, per se? What, exactly, is a "trade secret?"

    These are thorny questions, to be sure. And I can't provide clear answers to them because so much (of life and of law) is contextual. In response to your idea that a Cleveland desk jockey has little in common with the radical, the cafe owner, and the stablehand– I agree partially. You're right that these disparate people have little in common; and even though they can connect via the Web, it doesn't mean they will. This view has dominated some arguments about whether blogging is "publishing" in a meaningful sense. Like many debates before it, however, technology has drastically changed the terms of the debate. Through aggregators and blog-specific search engines, more people are accessing more blogs than ever before. And they don't need to know where to look– just what they're looking for.

    There's a lot I can and will blog about in law school this fall. It's practically expected of me. But I would dare say there are some things about your job that you may not be allowed to share on this blog. Call it a cop-out, but I think the answer here is balance– a case-by-case approach that reconciles the privacy, property, and free speech rights of employer and employee.

—Daniel Corbett

Blogging on the job

      For some it's cause for alarm: the public tarnishment of a corporate image. But for some it's simply the digital water cooler: the free speech of employees in a connected world. Like it or not, workers everywhere are taking to the Web and taking their work experiences with them. From the New York Times:

"Most experienced employees know: Thou Shalt Not Blab About the Company's Internal Business. But the line between what is public and what is private is increasingly fuzzy for young people comfortable with broadcasting nearly every aspect of their lives on the Web, posting pictures of their grandmother at graduation next to one of them eating whipped cream off a woman's belly. For them, shifting from a like-minded audience of peers to an intergenerational, hierarchical workplace can be jarring." 

      This raises an interesting dilemma for as the Internet Generation descends on the working world. More and more, employees are getting the boot for blogging about their company's propietary information. It may be malicous. It may be cathartic. It may (at least to the bloggers and their readerships) be quite funny. But the fact remains, for better or worse, we are increasingly interconnected. And when a boss does a Google search for his or her company, and an employee diatribe comes up– it's not a pretty picture.

      Or is it?

      For many, getting fired for blogging is the best thing that could happen to them. For Kelly Kreth, a marketing director in New York, who lost her job for blogging about employees, she couldn't have made a better career move: "It led to me opening my own business and making triple what I was making before." A writer who was canned for writing about his job at Comedy Central is converting his experience into a book. And workplace tell-alls like "The Devil Wears Prada" and "The Nanny Diaries" are slated to hit the big screen this summer. It seems that behind this cloud, a market is emerging.

      But what will be the social effect of these events? Will companies, seeing green, find a way to make blogging work for them? (Remember Wal-Mart had a mini-scandal involving information it provided Wal-Mart-friendly bloggers.) One thing is for sure; however, companies are going to take notice of blogging. Right now, only 8 percent of HR executives in a survey said their companies had policies about blogging. Given the controversy it is generating, I think we're bound to see some fences put around the digital water cooler.

—Daniel Corbett