In retrospect, I’ll count it among my achievements here that I helped give critical mass to the new Wiki category of posts — and thanks to all the commenters here for [...]]]> Well, it looks like my guest slot time is now up. So I’d like to thank Dan Solove and the rest of the Concurring Opinions bloggers for inviting me to hang my hat here over the holidays. This has been a great introduction for me to the “blawgosphere,” and it has been fun taking part in the opinionated conversations. You might not know this, but Dan, in addition to being a prominent legal scholar and writer of consistently thoughtful posts on CO, is really a fantastic and well-organized host to guest bloggers.

In retrospect, I’ll count it among my achievements here that I helped give critical mass to the new Wiki category of posts — and thanks to all the commenters here for all your thoughts. Good luck to the Concurring Opinions collective in 2006 — may you continue to ascend the Technorati rankings!

I generally enjoyed reading this, and it’s way too easy to nitpick USA Today, but here are a few reactions:

1) It’s a pretty clear example of the cyborg trope isn’t it? Google isn’t billed as just a novel information source, like a television, it’s billed as a “brain” — a technological extension of human biology. [...]]]> USAToday.com is running a banner headline today for an article: “Google becoming an auxiliary brain.” Here’s the article, and here’s the thesis of the reporter, Elizabeth Weise:

If we are the sum total of our knowledge and experiences, then the Internet is a collection of other people’s knowledge and experiences. And Google — so ubiquitous that it has become its own verb — allows us to tap into that collection.

I generally enjoyed reading this, and it’s way too easy to nitpick USA Today, but here are a few reactions:

1) It’s a pretty clear example of the cyborg trope isn’t it? Google isn’t billed as just a novel information source, like a television, it’s billed as a “brain” — a technological extension of human biology. And like the brain of the Star Trek Borg, it is a collective mind we now share. This collective brain-sharing is billed not as scary, but nifty.

2) Despite the excerpt above, if you read this, Google appears to be getting a great deal of credit for the Web itself. Throughout, Weise’s language makes this an article about Google as information repository, not as search provider. To be clear: Larry, Serge, and company built a great search tool that helps you find information that other people put on the Web (and one that hands you an advertisement along the way).

3) In somewhat of a contradiction, it appears that people who provide information on the Web are not to be trusted. Weise quotes a research librarian from Georgia:

And even when malicious intent isn’t the problem, mastery of a subject can be, says Jacobson. “The opinions that get heard are from people who have a lot of time to create websites, not necessarily the people with the best information.”

Can’t trust those people who have time to create websites, can you? Oh wait — isn’t that the definition of my Googlebrain? What is curious is that the answer seems to be no, because this comment doesn’t follow the discussion of Google, but… Wikipedia. So Wikipedia is less trustworthy than the Web (aka “Google”)? Oh well.

Further reading: Danah Boyd on the Seigenthaler fuss.

I like Wikipedia. In fact, I like it a lot. In fact, I have gone so far as to do what Eugene Volokh warned against — I’ve actually cited to Wikipedia. In fact, I cited to Wikipedia six times in a recently published law review article. (I’m not alone in this by any means–”wikipedia” gets over 200 hits on a Lexis search of law review articles, almost all of which are cites to entries.) In my case, I cited Wikipedia as a starting point for investigating personalities, such as John Mellencamp, Tom Clancy, and Marni Nixon. I’m aware that some of [...]]]> In light of the recent discussions here of Wikipedia, I’d like to throw in my two cents on the subject.

I like Wikipedia. In fact, I like it a lot. In fact, I have gone so far as to do what Eugene Volokh warned against — I’ve actually cited to Wikipedia. In fact, I cited to Wikipedia six times in a recently published law review article. (I’m not alone in this by any means–”wikipedia” gets over 200 hits on a Lexis search of law review articles, almost all of which are cites to entries.) In my case, I cited Wikipedia as a starting point for investigating personalities, such as John Mellencamp, Tom Clancy, and Marni Nixon. I’m aware that some of these entries contain certain inaccuracies, but I feel comfortable citing to them for reasons I’ll explain below. In the alternative, I suppose I could have cited to nothing (not very helpful to the reader) or cited to books (realistically, though, how many people would follow up on those cites?). Also, I should admit that, in part, I cite to Wikipedia sometimes because I hope some readers might take a look at Wikipedia and appreciate it for what it is. However, I’m not trying to deceive people about what Wikipedia is–it is, more or less, the Web, repackaged and reformatted.

In fact, before I cited to Wikipedia, I cited, on rare occasions and for very similar reasons, to web searches on Google for a specific term. (Again, I’m not alone in this, though the numbers of people who did this were smaller.) As far as I’m concerned, citing to a Wikipedia entry for Marni Nixon and a Google search for Marni Nixon are very nearly the same thing. Both are invitations to the reader to enter what you might call a “muddy information portal,” a messy and organic field of data that the citing author does not control, but feels would be helpful to the reader as a starting point for further research. Citing to something like that might be unorthodox, yes, but I don’t think it is beyond the pale.

To my mind, the difference between citing Wikipedia and citing a Web search is just a matter of the target’s format. When we search the Web, Google creates our “entry” on the fly with algorithms that prioritize popular and relevant websites. With Wikipedia, we have the dynamic of Web search somewhat inverted — creators with data they consider relevant to specific terms offer up that data to Wikipedia under a shared hosting umbrella in a common format (and with a commitment to collaboration). Due to this, Wikipedia entries generally look nicer. But other than that, Wikipedia and the World Wide Web are very nearly the same thing. Wikipedia’s openess, to both creation and revision, doesn’t guarantee much accuracy.

Yet I personally find searching the Web’s messy data for specific terms, if not a good way to find authoritative information reliably, an extremely helpful step in my process of research. I would never cite to Wikipedia as an authority in my field. (E.g. for a definition of the Patriot Act.) But for certain purposes, e.g., providing a basic introduction to celebrities, I think it is okay.

I’m aware that many people think there is a serious problem with Wikipedia, but I think that problem is about misconceptions of Wikipedia and perceptions of others’ misconceptions. For instance, Professor Anita Ramasastry a few days ago suggested that Section 230 should be modified to remove Wikipedia, partially, from its scope. Her reasoning:

It presents itself as an online encyclopedia – which has the connotation of reliability (and, in the past, edited content). We’d be foolish not to take blog postings with a grain of salt – but what about an article that is characterized as an encyclopedia entry? Unsurprisingly, many people are relying on the content as if it were correct and using the site as a reference tool. College students often cite to Wikipedia in their research papers, for example. In addition, Wikipedia is very influential. It ranks very highly in the major search engines. This means that Wikipedia’s potential for inflicting damage is amplified by several orders of magnitude.

So Professor Ramasastry obviously knows what Wikipedia is — her concern is just that other people don’t. I suppose my question back is, whose problem should we make this “connotation of reliability”? If students believe everything in Wikipedia is true, can’t we just tell them it isn’t?

In a way, the current fuss over Wikipedia is very reminiscent of conversations I heard ten years ago about websites. It seemed many people were at pains to warn the public (and particularly “students”) that everything you saw on a website was not true. Clueless people were out there posting crazy things on websites, spewing misinformation. Now, it seems, we all have internalized that fact and moved on — such articles still pop up now and then, but not nearly as frequently. And–surprise!–it seems we’re all still using the Web and we all find it pretty useful–perhaps more useful now than ever, given the improvements in powers of search and the greater amounts of data we can sift through. Yet behavior that we now agree is foolish (e.g. not taking facts offered on a random website with a grain of salt) was once deemed a significant problem.

Perhaps we might be a little more confident? Just as we figured out what the Web is (and isn’t), I wonder if we will somehow manage to figure what Wikipedia is (and isn’t) — pretty much the same thing.

I mention this because exploring the legal issues raised by these environments has been a pet project of mine, and it has been interesting to see the popular media attention increasingly given to multi-player games as their demographics expand. In many ways, the predecessors of World of Warcraft were part of the impetus for the [...]]]> The New York Times carries a story today on gold farming activities in virtual worlds. “Gold farming” is the term used for acquiring virtual wealth within multi-player games like World of Warcraft and then selling it to other players for real cash. As the Times notes, it is a growing industry, despite the fact that the sales are usually in violation of the software contract of the games.

I mention this because exploring the legal issues raised by these environments has been a pet project of mine, and it has been interesting to see the popular media attention increasingly given to multi-player games as their demographics expand. In many ways, the predecessors of World of Warcraft were part of the impetus for the debates in the 1990′s over the growing importance of cyberlaw as a field for legal inquiry. For instance, William Mitchell’s City of Bits, about the construction of digital social spaces, is a book from 1994 that is well worth reading today.

If you want a crash course on the economics and society of virtual worlds, I’d recommend Virtual Worlds by Ted Castronova, Unreal Estate by Julian Dibbell, and this blog. For some thoughts on the legal dimensions, Dan Hunter and I have published two articles on point: The Laws of the Virtual Worlds and Virtual Crime. Among other writings on the topic are Virtual Property by Josh Fairfield and Virtual Liberty by Jack Balkin.

Even Judge Posner thinks this stuff is cool.

George Bush on “terror” versus “taxes”

Bush on “evil” versus “freedom”

Washington, Lincoln, Reagan, and Clinton on “nation” v “state”

Perhaps readers can pull out some more interesting/humorous comparisons. Credit due to my RSS feed from the excellent information aesthetics blog.

p.s. Dan would probably be [...]]]> As a temporary diversion from discussions of state searches, you might want to search the state a bit — the State of the Union that is. Jonathan Corum has put together this pretty tool (explanation here) that allows you to pull up George Bush’s state of the union addresses and compare the number of instances where particular words are used. If you check a box, you can see the sentences in which the words appear. Here are some for starters:

George Bush on “terror” versus “taxes”

Bush on “evil” versus “freedom”

Washington, Lincoln, Reagan, and Clinton on “nation” v “state”

Perhaps readers can pull out some more interesting/humorous comparisons. Credit due to my RSS feed from the excellent information aesthetics blog.

p.s. Dan would probably be interested in this one from IA — a online GPS diary tracking the artist’s movements on various days.

What becomes quickly apparent from a skim of the literature, though, is that the policy questions entertained by lawyers in relation to file-sharing aren’t as interesting as they might be. Copyright is a doctrinally complex regime of statutes and caselaw. However, at its core, it presents a fairly simple policy story, one of [...]]]> In the intellectual property / cyberlaw niche of the legal academy, I think it is fair to say that the litigation over Napster and Grokster has resulted in so much spilled ink that it is hard to keep up with the commentary. Indeed, while these are cases in my bailiwick, I never finished reading through the panoply of Grokster amicus briefs, much less all the law review articles on file-sharing.

What becomes quickly apparent from a skim of the literature, though, is that the policy questions entertained by lawyers in relation to file-sharing aren’t as interesting as they might be. Copyright is a doctrinally complex regime of statutes and caselaw. However, at its core, it presents a fairly simple policy story, one of economic incentives for greater production and distribution. In other words, through our legal policy lens, the song becomes a widget and the accepted policy goal becomes the production and distribution of more and more widgets. Thus, to the extent a complex legal doctrine permits it to come to the surface, the relevant policy question for file-sharing is whether it will provide the public with more or fewer song-widgets. It’s a bit disheartening that our intellectual property policy equates songs like American Pie, Hey Ya, and Toxic with three fungible barrels of crude oil–but perhaps judges, as Justice Holmes once opined, shouldn’t really be in the business of making artistic policy judgments.

As a result, though, what often gets left out of the myriad legal ponderings on file-sharing is the social dimension of the activity. This isn’t true across the board by any means — Rosemary Coombe, Mike Madison, and recent guest-blogger Joe Liu, for example, have written law review articles with a clear interest in how popular content “consumption” is actually something much more interesting than the term suggests. But because the legal doctrine of copyright rests on that reductive incentives story (with a constitutional basis), it likely seems to many legal scholars that there is little reason to pay attention to the cultural dimensions of intellectual property law.

That’s all by way of background to why I found this paper, presented at the CHI conference in April of this year, so interesting.

Released by researchers from the Georgia Institute of Technology and PARC, it is a small scale study of social file-sharing practices with regard to iTunes. The researchers note that they’re breaking from the pack a bit by examing digital file-sharing as a community, not a legally charged, activity:

[P]olitical, legal, and ethical considerations — digital rights management laws, in particular — have catalyzed much of the recent changes in music sharing technologies and have led to an almost exclusive research focus on those issues. There is, however, a gap in the research that is available to inform current music sharing technologies – a lack of understanding about users’ actual practices surrounding music sharing…

The report contains plenty of interesting anecdotes about the social nature of file-sharing in one office. For instance: Is it a good thing to share music if you have the technical ability to do so? Might your shared collection tell your co-workers, or your supervisors, something about you that you don’t want them to know? Can you use your file-sharing as an educational opportunity? Do you have any ethical obligations to an anonymous co-worker who is listening to your collection?

What becomes quickly apparent from reading the paper is that a collection of shared music (in this particular social setting) is not just a stack of raw material, but a form of dynamic social capital as well — perhaps even a form of social liability and an impetus for ethical obligations. In short, it’s a fascinating read about exactly what digital file-sharing looks like in one case… even if it ultimately won’t give you much help in understanding the law of the Grokster decision.

Readers unfamiliar with blogs are sometimes puzzled by the concept, thinking that they are mere online “diaries,” where egoists and sentimentalists record their thoughts and feelings. But the phenomenon of blogging is much more than that; it’s the modern equivalent of the Gutenberg revolution, a way of putting not just published material in the hands of the public—but publishing itself.

Sounds wonderful, but I’m going to agree and disagree with them a [...]]]> Dan’s critique of some of the interesting mistakes made by Pajamas Media is dead on, in my opinion. His post also calls attention to the fact that blogs and blogging have qualities that are not always grasped easily — even by businesses heralding the medium. For instance, here’s what PM says about blogs:

Readers unfamiliar with blogs are sometimes puzzled by the concept, thinking that they are mere online “diaries,” where egoists and sentimentalists record their thoughts and feelings. But the phenomenon of blogging is much more than that; it’s the modern equivalent of the Gutenberg revolution, a way of putting not just published material in the hands of the public—but publishing itself.

Sounds wonderful, but I’m going to agree and disagree with them a bit.

I think most of us would agree that the confusion of investors over blogging is in part due to the novelty of blogs. We’re still probably only 5-10 years into blogging (depending on how you define it) and there still isn’t a popular (truly popular) sense of what blogging is all about. Admittedly, the blogosphere is already vast according to Pew surveys (Dan’s census shows how it has permeated the legal academy). However, it’s easy to lose sight of how many people aren’t reading blogs. Many of my friends (who are generally over 30, I should add) don’t read blogs much, and when they do, they don’t see much cause for caring about them. Among those who don’t read blogs, some seem slightly bothered that many people are paying attention to them. Writ large, I suppose that might explain the anti-blogging backlash (evidenced by slams and warnings such as the well-known Doonesbury strip or the Slate post on career-killing blogs).

The curious thing about all of this, I think, is how or why blogging is different in this respect from past Net-based communication technologies. Did those who were early users of email, listservs, USENET, and web pages face a similar backlash? Perhaps, but not to the same degree, I think. There seems to be an interesting anxiety that we have about blogging, and my impression is that it is related to the perception that blogging is less of a functional tool and more of a substantive and productive practice.

For instance, consider that email and the webpage are both novel, Net-based technologies that allow for new forms of social communication. They certainly have transformed social and commercial practices in significant ways. But widespread adoption of these technologies didn’t form the basis for derivative words such as “emailer” and “webpager,” nor was there much of a public backlash (in my opinion) against early adopters of email and web publishing. Perhaps this is because using email or creating a web page can be seen as a one-off activity, whereas being a blogger requires something more — a regular dedication to the use of a communicative technology within a particular social sphere?

But that’s generally true of listserv and USENET participation as well, isn’t it? So why didn’t these forms not create the same buzz/backlash as blogging? I think the answer isn’t only about sheer numbers. I think the explanation is that blogging has now been popularly associated with the authorial creation of a particular form of written product rather than what was seen, in other cases, as “mere” online conversation.

I’ve got two theories about why this is so. The first is about the technical form. The Web-based technology of blog posts occupies the same space — the Web browser frame — as the published web page, where we can find the traditional media dot-coms now residing. Hence, the perception (perhaps untrue) that blogs compete with the media in ways that listservs and USENET do not. The theory here is that because listservs and USENET are based on dissimilar technologies, they should be treated as dissimilar from Web-based media. Second, the expressly authorial nature of most blogs (increasingly a collaborative authorial space, but still an authorial space) differentiates them from the more interpersonal and conversational form of the listserv or USENET, where ownership and control of the information space doesn’t usually correspond with being the dominant voice in that space.

Hence, for technological and formal reasons, blog posting feels closer to publishing than speaking, and the blogger looks more like an author engaged in publishing than a person engaged in online conversation. Congruently with the formal shape, blog posts are generally understood (by both author and reader) as at least a quasi-polished product (intended for a broad audience) more than online conversation — like posts to listservs.

But this can clearly be taken too far, because part of the value that blogs provide (which Dan mentioned) is a certain form of casualness, carelessness (in both good and bad ways), and spontaneity not seen in traditional publishing. Reader participation is also more vital to the enterprise. Both these factors push the ontology of blogs toward conversational speech rather than text as product. Hence, perhaps, the need for bloggers (like Dan did previously) to emphasize to those who would conflate blogs with books that what we’re really exploring is community and conversation (in a way that also seems like publishing).

At its core, though, I think we should realize that we’re creating this ontology of blogs on the fly. The blog is, like email or listservs, a new technology around which new social practices and customs are forming. The most interesting thing about blogging at this moment (for me) is watching this messy evolution being worked out.