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Informed Trading And Cybersecurity Breaches, Joshua Mitts, Eric L. Talley Jan 2018

Informed Trading And Cybersecurity Breaches, Joshua Mitts, Eric L. Talley

Faculty Scholarship

Cybersecurity has become a significant concern in corporate and commercial settings, and for good reason: a threatened or realized cybersecurity breach can materially affect firm value for capital investors. This paper explores whether market arbitrageurs appear systematically to exploit advance knowledge of such vulnerabilities. We make use of a novel data set tracking cybersecurity breach announcements among public companies to study trading patterns in the derivatives market preceding the announcement of a breach. Using a matched sample of unaffected control firms, we find significant trading abnormalities for hacked targets, measured in terms of both open interest and volume. Our results ...


Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo Jan 2017

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to ...


Blind Spot: The Attention Economy And The Law, Tim Wu Jan 2017

Blind Spot: The Attention Economy And The Law, Tim Wu

Faculty Scholarship

Human attention is a resource. An increasingly large and important sector of the economy, including firms such as Google, Facebook, Snap, along with parts of the traditional media, currently depend on attentional markets for their revenue. Their business model, however, present a challenge for laws premised on the presumption of cash markets. This paper introduces a novel economic and legal analysis of attention markets centered on the “attention broker,” the firms that attract and resell attention to advertisers. The analysis has important payouts for two areas: antitrust analysis, and in particular the oversight of mergers in high technology markets, as ...


Blind Spot: The Attention Economy And The Law, Tim Wu Jan 2017

Blind Spot: The Attention Economy And The Law, Tim Wu

Faculty Scholarship

Human attention is a resource. An increasingly large and important sector of the economy, including firms such as Google, Facebook, Snap, along with parts of the traditional media, currently depend on attentional markets for their revenue. Their business model, however, present a challenge for laws premised on the presumption of cash markets. This paper introduces a novel economic and legal analysis of attention markets centered on the “attention broker,” the firms that attract and resell attention to advertisers.

The analysis has important payouts for two areas: antitrust analysis, and in particular the oversight of mergers in high technology markets, as ...


Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman Jan 2017

Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman

Faculty Scholarship

Important international law questions for formulating cyber strategy and policy include whether and when a cyber-attack amounts to an “act of war,” or, more precisely, an “armed attack” triggering a right of self-defense, and how the international legal principle of “sovereignty” could apply to cyber activities. International law in this area is not settled. There is, however, ample room within existing international law to support a strong cyber strategy, including a powerful deterrent. The answers to many international law questions discussed below depend on specific, case-by-case facts, and are likely to be highly contested for a long time to come ...


"Section 5 And 'Unfair Methods Of Competition': Protecting Competition Or Increasing Uncertainty?", Tim Wu Jan 2016

"Section 5 And 'Unfair Methods Of Competition': Protecting Competition Or Increasing Uncertainty?", Tim Wu

Faculty Scholarship

Since the late 1980s, Section 5 of the FTC Act has come to center on a certain kind of case, the so-called anticompetitive “scheme” featuring extraordinary and nefarious conduct – like gaming a standards process, rigging industry tests, that sort of thing. Deception, fraud, bad-faith and oppressive action are typical. This kind of self-restraint has, to its credit, yielded a focus on cases where the conduct is extraordinary, an anticompetitive intent is obvious and the harm is substantial. At this point, the self-imposed limits on Section 5 enforcement are extensive enough that a critic could fairly accuse the agency of under-enforcing ...


Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg Jan 2016

Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out ...


The Most Moral Of Rights: The Right To Be Recognized As The Author Of One's Work, Jane C. Ginsburg Jan 2016

The Most Moral Of Rights: The Right To Be Recognized As The Author Of One's Work, Jane C. Ginsburg

Faculty Scholarship

The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included a general right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever the conception of the philosophical or policy basis for copyright. The basic fairness of giving credit where it is due advances both the author-regarding and the public-regarding aspects of copyright.

Most national copyright laws guarantee the right of attribution (or "paternity"); the leading ...


Privacy-Privacy Tradeoffs, David Pozen Jan 2016

Privacy-Privacy Tradeoffs, David Pozen

Faculty Scholarship

Legal and policy debates about privacy revolve around conflicts between privacy and other goods. But privacy also conflicts with itself. Whenever securing privacy on one margin compromises privacy on another margin, a "privacy-privacy tradeoff" arises.

This Essay introduces the phenomenon of privacy-privacy tradeoffs, with particular attention to their role in National Security Agency (NSA) surveillance. After explaining why these tradeoffs are pervasive in modern society and developing a typology, the Essay shows that many of the arguments made by the NSA's defenders appeal not only to a national security need but also to a privacy-privacy tradeoff. An appreciation of ...


Does Google Content Degrade Google Search? Experimental Evidence, Michael Luca, Tim Wu, Sebastian Couvidat, Daniel Frank Jan 2015

Does Google Content Degrade Google Search? Experimental Evidence, Michael Luca, Tim Wu, Sebastian Couvidat, Daniel Frank

Faculty Scholarship

While Google is known primarily as a search engine, it has increasingly developed and promoted its own content as an alternative to results from other websites. By prominently displaying Google content in response to search queries, Google is able to use its dominance in search to gain customers for this content. This may reduce consumer welfare if the internal content is inferior to organic search results. In this paper, we provide a legal and empirical analysis of this practice in the domain of online reviews. We first identify the conditions under which universal search would be considered anticompetitive. We then ...


Sender Side Transmission Rules For The Internet, Tejas N. Narechania, Tim Wu Jan 2014

Sender Side Transmission Rules For The Internet, Tejas N. Narechania, Tim Wu

Faculty Scholarship

In January 2014, the U.S. Court of Appeals for the D.C. Circuit struck down the FCC's 2010 Open Internet Order, which contained the Commission's net neutrality rules. The Commission has since indicated that it will take up the D.C. Circuit's invitation to implement rules that, consistent with historic practice, meet the court’s test for preventing improper blocking and discrimination of Internet traffic. In this paper, we consider the Commission's options for a path forward under Title II of the Communications Act. We find that the FCC has at least two available paths ...


Governing, Exchanging, Securing: Big Data And The Production Of Digital Knowledge, Bernard E. Harcourt Jan 2014

Governing, Exchanging, Securing: Big Data And The Production Of Digital Knowledge, Bernard E. Harcourt

Faculty Scholarship

The emergence of Big Data challenges the conventional boundaries between governing, exchange, and security. It ambiguates the lines between commerce and surveillance, between governing and exchanging, between democracy and the police state. The new digital knowledge reproduces consuming subjects who wittingly or unwittingly allow themselves to be watched, tracked, linked and predicted in a blurred amalgam of commercial and governmental projects. Linking back and forth from consumer data to government information to social media, these new webs of information become available to anyone who can purchase the information. How is it that governmental, commercial and security interests have converged, coincided ...


In Defense Of The Panopticon, William H. Simon Jan 2014

In Defense Of The Panopticon, William H. Simon

Faculty Scholarship

Anxiety about surveillance and data mining has led many to embrace implausibly expansive and rigid conceptions of privacy. The premises of some current privacy arguments do not fit well with the broader political commitments of those who make them. In particular, liberals seem to have lost touch with the reservations about privacy expressed in the social criticism of some decades ago. They seem unable to imagine that preoccupation with privacy might amount to a “pursuit of loneliness” or how “eyes on the street” might have reassuring connotations. Without denying the importance of the effort to define and secure privacy values ...


Copyright 1992-2012: The Most Significant Development, Jane C. Ginsburg Jan 2013

Copyright 1992-2012: The Most Significant Development, Jane C. Ginsburg

Faculty Scholarship

On the occasion of the twentieth anniversary of the Fordham Intellectual Property Law & Policy Conference, its organizer, Professor Hugh Hansen, planned a session on “U.S. Copyright Law: Where Has It Been? Where Is It Going?” and asked me to look back over the twenty years since the conference’s inception in order to identify the most important development in copyright during that period. Of course, the obvious answer is “the Internet,” or “digital media,” whose effect on copyright law has been pervasive. I want to propose a less obvious response, but first acknowledge that digital media and communications have ...


The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David Pozen Jan 2013

The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David Pozen

Faculty Scholarship

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances ...


Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman Jan 2013

Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman

Faculty Scholarship

When does a cyber-attack (or threat of cyber-attack) give rise to a right of self-defense – including armed self-defense – and when should it? This essay examines these questions through three lenses: (1) a legal perspective, to examine the range of reasonable interpretations of self-defense rights as applied to cyber-attacks, and the relative merits of interpretations within that range; (2) a strategic perspective, to link a purported right of armed self-defense to long-term policy interests including security and stability; and (3) a political perspective, to consider the situational context in which government decision-makers will face these issues and predictive judgments about the ...


Speaking Of Moral Rights, A Conversation, Jane C. Ginsburg, Eva E. Subotnik Jan 2012

Speaking Of Moral Rights, A Conversation, Jane C. Ginsburg, Eva E. Subotnik

Faculty Scholarship

A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).


Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most, Tim Wu Jan 2012

Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most, Tim Wu

Faculty Scholarship

Now is a particularly important time to consider the relationship between antitrust and innovation. Both US and European antitrust enforcement authorities are taking a look at the state of competition on the Internet, an inquiry that puts into clear focus the need for antitrust to take seriously its relationship with innovation policy.

How would the enforcement of antitrust look if the promotion of innovation were its paramount concern? I present 3 suggestions: (1) law enforcement would be primarily concerned with the exclusion of competitors. (2) A competition law centered on promoting innovation would take very seriously its oversight of "innovation ...


Is Internet Exceptionalism Dead?, Tim Wu Jan 2011

Is Internet Exceptionalism Dead?, Tim Wu

Faculty Scholarship

Is there such a thing as Internet exceptionalism? If so, just what is the Internet an exception to? It may appear technical, but this is actually one of the big questions of our generation, for the Internet has shaped the United States and the world over the last twenty years in ways people still struggle to understand. The question is not merely academic. The greatest Internet firms can be succinctly defined as those that have best understood what makes the Internet different.


Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss Jan 2010

Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss

Faculty Scholarship

It is a quarter century since I began telling my Administrative Law students that they had better be watching the Internet and how agencies of interest to them were using it, as they entered an Information Age career. The changes since then have been remarkable. Rulemaking, where the pace has perhaps been slowest, is now accelerating into the Internet, driven by a President committed to openness and consultation. This paper seeks little more than to point the reader toward the places where she can find the changes and watch them for herself.


Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu Jan 2009

Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu

Faculty Scholarship

Today, through historical practice, there exists a de facto ban on termination fees – also referred to as a “zero-price” rule (Hemphill, 2008) – which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that the ...


Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg Jan 2008

Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg

Faculty Scholarship

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users ...


Homes With Tails: What If You Could Own Your Internet Connection?, Tim Wu, Derek Slater Jan 2008

Homes With Tails: What If You Could Own Your Internet Connection?, Tim Wu, Derek Slater

Faculty Scholarship

America's communications infrastructure is stuck at a copper wall. For the vast majority of homes, copper wires remain the principal means of getting broadband services. The deployment of fiber optic connections to the home would enable exponentially faster connections, and few dispute that upgrading to more robust infrastructure is essential to America's economic growth. However, the costs of such an upgrade are daunting for private sector firms and even for governments. These facts add up to a public policy challenge.

Our intuition is that an innovative model holds unrealized promise: household investments in fiber. Consumers may one day ...


A Tale Of Two Platforms, Tim Wu Jan 2007

A Tale Of Two Platforms, Tim Wu

Faculty Scholarship

This paper discusses future competitions between cellular and computer platforms, in the context of a discussion of Jonathan Zittrain, The Generative Internet, 119 Harv. L. Rev. 1974 (2006).


Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher Jan 2007

Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher

Faculty Scholarship

Scholars for decades have noted the possibility that standard-form contracts disadvantage consumers. For many years, that literature focused on the idea that sellers with market power draft contracts that are disadvantageous to consumers. Law and economics scholars, however, have been skeptical about that hypothesis, pointing out that a strategy of inefficient terms rarely would be the optimal technique for exploiting market power. In recent years, however, the debate has shifted as new product distribution channels have changed the technology of contracting. Now, even firms without market power can exploit the cognitive failures of their customers through "shrouding" of terms and ...


Keeping The Internet Neutral?: Tim Wu And Christopher Yoo Debate, Tim Wu, Christopher S. Yoo Jan 2007

Keeping The Internet Neutral?: Tim Wu And Christopher Yoo Debate, Tim Wu, Christopher S. Yoo

Faculty Scholarship

Network neutrality has emerged as one of the highest profile issues in telecommunications and Internet policy last year. Not only did it play a pivotal role in both houses of Congress during debates over proposed communications reform legislation; it also emerged as a key consideration during the Federal Communications Commission consideration of the recent SBC-AT&T, Verizon-MCI, and AT&T-BellSouth mergers. In the following exchange, Professors Tim Wu and Christopher Yoo engage in a lively debate over the merits of network neutrality that reviews the leading arguments on both sides of the issue.


China's Network Justice, Benjamin L. Liebman, Tim Wu Jan 2007

China's Network Justice, Benjamin L. Liebman, Tim Wu

Faculty Scholarship

This article, the product of extensive interviews across China, asks the following question: What has China's internet revolution meant for its legal system? What does cheaper if not free speech mean for Chinese judges?


The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg Jan 2007

The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

The recent announcement (in late November 2006) of the Copyright Office's triennial rulemaking to identify "classes of works" exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers ...


Wireless Carterfone, Tim Wu Jan 2007

Wireless Carterfone, Tim Wu

Faculty Scholarship

Over the next decade, regulators will spend increasing time on the conflicts between the private interests of the wireless industry and the public's interest in the best uses of its spectrum. This report examines the practices of the wireless industry with an eye toward understanding their influence on innovation and consumer welfare.

This report finds a mixed picture. The wireless industry, over the last decade, has succeeded in bringing wireless telephony at competitive prices to the American public. Yet at the same time we also find the wireless carriers aggressively controlling product design and innovation in the equipment and ...


The Disputed Quality Of Software Patents, John R. Allison, Ronald J. Mann Jan 2007

The Disputed Quality Of Software Patents, John R. Allison, Ronald J. Mann

Faculty Scholarship

We analyze the characteristics of the patents held by firms in the software industry. Unlike prior researchers, we rely on examination of the individual patents to determine which patents involve software inventions. This method of identifying the relevant patents is more laborious than the methods that previous scholars have used, but it produces a dataset from which we can learn more about the role of patents in the software industry. In general, we find that the patents computer technology firms obtain on software inventions have more prior art references, claims, and forward citations than the patents the same firms obtain ...