nic.suzor.net

[ from the allocation-of-resources dept ]

You may have noticed I haven’t said much around here lately. I’ve been putting most of my energy into my academic writing – first my dissertation, and now a book and some articles. This leaves little time to blog.

Over the next few weeks, I’m going to transition this site to more of a personal homepage and less of a blog. I’ll still have the occasional writeup of particular issues or events I’m interested in, but the rest of the content will become more (explicitly) static and may include a greater mix of my other interests, like photography. Accordingly, if you don’t want to see pictures of kittens, you may want to unsubscribe from the feed.*

* I don’t actually expect to be posting many pictures of kittens. But you get the point – content is likely to be more personal and less academic from here on.

I’m in Edinburgh to present at DIS:E run by Ren Reynolds and Andrés Guadamuz.

My talk is on, predictably enough, the rule of law and legitimacy in virtual community governance. Particularly, I want to focus on two main ways that we can look at things differently: looking at the limits of contract rather than only the contractual terms themselves; and looking at procedural legitimacy rather than substantive rights. My slides are here in PDF.

I have arrived in Washington DC, where I’ll be a visiting researcher at Georgetown University Law Center for the 2010 / 11 academic year.

My main project over this time is to write my book on the governance of virtual communities. I’ll also be working on some new material on graduated response schemes in IP and also on open licensing.

If you’re in the area, or know of any great events I should get to, please let me know.

My PhD thesis is available here: Digital constitutionalism and the role of the rule of law in virtual communities.

Abstract:

This thesis considers one main question: how should we regulate the exercise of private governance power in virtual communities? This question centres on the legitimacy of governance in the way that community norms are created and enforced. This is the project of digital constitutionalism, which seeks to articulate a set of limits on private power that will best encourage innovation and autonomy and simultaneously protect the legitimate interests of participants in these increasingly important spaces. In answering this question, I provide a normative framework based upon the broad ideals of the rule of law through which to conceptualise the tensions about governance that arise in virtual communities.

Read more…

Over the last two days, I have been at the Copyright 2010 Conference hosted by the CIPL at ANU and organised by Dr Matthew Rimmer.

I presented two papers at this conference, one on moral rights and open licensing and another on graduated response schemes and the rule of law.

You can grab my slides for these here:

• Open licensing and moral rights (PDF)
• Graduated responses on the rule of law (PDF)

Abstracts below the fold:
Read more…

Last week I submitted my PhD thesis (‘Digital Constitutionalism and the role of the rule of law in the governance of virtual communities’) for examination. I hope to hear back in the next six weeks, in time for graduation in July.

I will be taking twelve months leave from my teaching at QUT to spend the 2010/11 academic year in the US. My partner, Kylie, has enrolled in an LLM program at Georgetown University, and I will work on some of my own research there.

This also means I am available for work in the US over the next year; if anyone has anything they would like to collaborate on, or knows of some interesting work I could do, please drop me a line (nic at suzor dot com).

Last month, I was interviewed by 4ZzZ’s Zed Games show on the introduction of an R18+ rating in Australia. The show also includes an interview with Gamers 4 Croydon. You can grab the mp3 here: 20100218-ZedGames-R18-EFA-G4C.

Thanks a lot to Ray and Chani for having me on the show. It’s great to see a gaming show on prime-time community radio, and I’m really excited to hear future episodes.

Kylie Pappalardo has an excellent case note on Telstra Corp Ltd v Phone Directories Pty Ltd [2010] FCA 44 (Full decision). This case continues the process that began when the High Court tightened the requirements of originality and authorship in IceTV, applying that logic to contain the previous FCAFC authority of Telstra v Desktop Marketing to its facts. The result is very interesting for Australian copyright law: there is no longer any certainty that telephone directories will be protected by copyright, bringing Australia more into line with international authority on this point.

[ reposted from EFA ]

Michael Geist is reporting that the text of the secret Anti-Counterfeiting Trade Agreement (ACTA) chapter on internet enforcement has been leaked. As suspected, the text is unlikely to require major changes to Australian law, but it does do two very concerning things:

• Increased pressure on intermediaries (ISPs) to monitor and police their networks: in the recent iiNet litigation, the Federal Court found that ISPs were under no obligation to terminate the accounts of subscribers that the film industry alleged (without proof) were infringing copyright. This is a contentious point, and we expect to see the copyright industry lobby for legislative change. The ACTA provides them with more ammunition to argue for a three-strikes policy, which is unfortunate.
• Increased entrenchment of the harshest level of copyright sanctions: my biggest concern with ACTA is what it means for the way that international copyright law is developed. Copyright is such an important part of the framework that governs the way that we interact online – it underpins nearly every aspect of modern communication. Because the balance between providing authors with an incentive to create and users with the ability to access is so critically important, the way in which copyright policy is made is also critically important for a society. The ACTA, a secret plurilateral agreement, ensures that the role of the public is minimised, allowing corporate rightsholders to set the agenda for copyright policy.

Read more…

This article comes from a core chapter of my PhD and will be published in the Berkeley Technology Law Journal. You can view the pre-print here: The Role of the Rule of Law in Virtual Communities (forthcoming BTLJ 2011) (PDF).

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values.

In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.