Fantasy Authors, Tax Policy & Veil Piercing

Pat Rothfuss, author of the best-selling fantasy novel "The Name of the Wind," and an interviewee in my "Law and Hard Fantasy" series, has a post up on his blog ruminating about tax policy and incorporation.

Up until this year, I've always gotten money back because I've lived well below the poverty line. This year, I got to give them money. It was, as they say, more fun than getting kicked in the throat. Mostly.

Don't get me wrong, I'm not against taxes. Everyone loves to bitch about them, but taxes pay for schools, and roads, and snowplows, and sewage treatment plants. My friends have a son who is autistic, and the government helps them by bringing in well-trained people.

These things are important. If that's all my taxes went toward, I would pay them gladly. I would sing a song while writing out the check.

However, we all know that's not the case.

So, under the advice of several wise people, I've decided to start a corporation. This is supposed to prevent the government from taking quite as big a bite out of my ass for next year's taxes.

It doesn't seem right, honestly. The corporation is just me: I own it. And this corporation (let's call it Me-corp) will be employing me. That, apparently, is different from being actually self-employed. Sorry? What? How does that work?

I guess what it comes down to is that the government is really, really dumb. Dumb enough so that if I put on sock on one of my hands and use it as a puppet, it will be convinced that the puppet is actually paying the taxes, not me.

But I'm not above exploiting a loophole in the system. So all that remains is to figure out what to call this corporation. I having trouble picking a name. Names are important things, you know. They tell you a great deal about a... a corporation.

I'm not an expert in tax law, so I'll leave discussion of the income-sheltering aspects of this structure to the experts, but I know something about corporate veil piercing. And I'll just say that calling a corporation a "puppet" would seem to make it less likely that a court would consider it a bona fide entity for the purpose of shielding a shareholder's personal assets in any suit against Me.corp.

Posted by Dave Hoffman at 10:02 AM | Comments (2) | TrackBack

Michigan Law Review, Issue 106:6 (April 2008)

Michigan Law Review, Issue 106:6 (April 2008)
(Past issues are available on our website.)

2008 Survey of Books Related to the Law

Foreword

Patricia M. Wald, War Tales and War Trials, 106 Mich. L. Rev. 901 (2008)

Confronting War

Robert J. Delahunty & John C. Yoo, Classic Revisited: Remarque: All Quiet on the Western Front, 106 Mich. L. Rev. 923 (2008)

Karen Engle, Classic Revisited: Remarque: All Quiet on the Western Front, 106 Mich. L. Rev. 941 (2008)

Stephen Reinhardt, Posner: Not a Suicide Pact: The Constitution in a Time of National Emergency, 106 Mich. L. Rev. 963 (2008)

Kevin Jon Heller, Drumbl: Atrocity, Punishment, and International Law, 106 Mich. L. Rev. 975 (2008)

The Administrative State

Jill R. Horwitz, Hyman: Medicare Meets Mephistopheles, 106 Mich. L. Rev. 1001 (2008)

M. Elizabeth Magill, Croley: Regulation and Public Interests: The Possibility of Good Regulatory Government, 106 Mich. L. Rev. 1021 (2008)

Comparative Law

Benjamin L. Liebman, West: Secrets, Sex and Spectacle: The Rules of Scandal in Japan and the United States, 106 Mich. L. Rev. 1041 (2008)

Roger P. Alford, Krotoszynski, Jr.: The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech, 106 Mich. L. Rev. 1071 (2008)

Corporate Governance

Merrit B. Fox, Coffee, Jr.: Gatekeepers: The Professions and Corporate, 106 Mich. L. Rev. 1089 (2008)

Immigration

Cristina M. Rodriguez, Motomura: Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States, 106 Mich. L. Rev. 1111 (2008)

International Law

Alex Geisinger & Michael Ashley Stein, Guzman: How International Law Works: A Rational Choice Theory, 106 Mich. L. Rev. 1129 (2008)

Yang Wang, Peerenboom: China Modernizes: Threat to the West or Model for the Rest?, 106 Mich. L. Rev. 1143 (2008)

Legal History

Sam Erman, Allen: Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court 1837 - 1857, 106 Mich. L. Rev. 1157 (2008)

Payment Systems

Katherine Porter, Mann: Charging Ahead: The Growth and Regulation of Payment Card Markets, 106 Mich. L. Rev. 1167 (2008)

Policing and Race

Richard Delgado, Herbert: Citizens, Cops, and Power: Recognizing the Limits of Community; Weitzer & Tuch: Race and Policing in America: Conflict and Reform; Weisburd & Braga: Police Innovation: Contrasting Perspectives, 106 Mich. L. Rev. 1193 (2008)

Torts

Anthony J. Sebok, Nagareda: Mass Torts in a World of Settlement, 106 Mich. L. Rev. 1213 (2008)

Posted by Michigan Law Review at 01:26 AM | Comments (2) | TrackBack

The Digital Person Free Online!

Last month, Yale University Press allowed me to put my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet online for free. The experiment has gone quite well. The book's website received a big bump in traffic, with many people downloading one or more chapters. The book's sales picked up for several weeks after it was placed online for free. Sales have now returned to about the same level as before the book went online.

I'm delighted to announce that NYU Press has allowed me to put my book, The Digital Person: Technology and Privacy in the Information Age (NYU Press, 2004) online for free.

Here's a brief synopsis of The Digital Person from the book jacket:

Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. These databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases--which Daniel J. Solove calls “digital dossiers”--has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.

Digital dossiers impact many aspects of our lives. For example, they increase our vulnerability to identity theft, a serious crime that has been escalating at an alarming rate. Moreover, since September 11th, the government has been tapping into vast stores of information collected by businesses and using it to profile people for criminal or terrorist activity. In THE DIGITAL PERSON, Solove engages in a fascinating discussion of timely privacy issues such as spyware, web bugs, data mining, the USA-Patriot Act, and airline passenger profiling.

THE DIGITAL PERSON not only explores these problems, but provides a compelling account of how we can respond to them. Using a wide variety of sources, including history, philosophy, and literature, Solove sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

Book reviews are collected here.

Posted by Daniel J. Solove at 12:08 AM | Comments (0) | TrackBack

Should Publishers Put Their Books Online for Free?

Yesterday, Yale University Press allowed me to post my book online for free. Over at the NYT's Freakonomics blog, Melissa Lafsky writes about the growing trend of publishers posting free electronic copies of their books online. HarperCollins, for example, has started posting its books free online. In addition to my book, Yale University Press has allowed for the posting of Yochai Benkler's The Wealth of Networks for free online.

One commenter to Lafsky's post writes:

Imagine if books went the route of music and charged something like 1 or 2 dollars per download. Hardly a cumbersome fee when you consider most books will be over 10$ in a brick and mortar. Now, if a free ebook can sell 1 million copies in 1 day after some publicity on Oprah, imagine how many copies a trivially priced edition could sell over the span of several months. Certainly a few million, I’d expect.

Money is saved on raw materials, processing, printing, distribution. The only costs would be for the content and the server to house the content and some for publicity. So, say the split goes something like 70/30 for author/distributor. That’s still a great deal of income with extremely low overhead.

Another commenter writes:

Why can’t book publishers use the same business model that magazines use? Namely, inserting advertisements among the pages to offset the costs of production.

I for one, would gladly put up with some ads in favor of a lower price. Imagine paying $5 for a new release, rather than $30.

From the Associated Press:

More than 1 million copies of Suze Orman's "Women & Money" have been downloaded since the announcement last week on Winfrey's television show that the e-book edition would be available for free on her Web site, http://www.oprah.com. . . .

According to Saturday's statement, more than 1.1 million copies of Orman's financial advice book were downloaded in English, and another 19,000 in Spanish. The demand compares to such free online sensations as "The 9-11 Commission Report," which the federal government made available for downloads, and Stephen King's e-novella, "Riding the Bullet."

The publishing community has endlessly debated the effects of making text available online, with some saying that free downloading is a valuable promotional tool and others worrying that sales for paper editions would be harmed. The Authors Guild and the Association of American Publishers each have sued Google for its plans to scan and index books for the Internet.

The offer for "Women & Money," originally released a year ago by Spiegel & Grau, a division of Random House, Inc., has not kept people from buying the traditional version. As of Saturday, the book ranked No. 6 on Amazon.com. The paper edition of "The 9-11 Commission Report," published in 2004 by W.W. Norton and Co., was a best seller for months.

"I can tell you that with respect to the `9-11 Report,' the free download did not seem to hurt sales at all," Norton publisher Drake McFeely told The Associated Press on Saturday. "There were people who wanted it quickly, in a less convenient form, and that was clearly a different market from the people who wanted the traditional book." . . .

Is this trend a wise thing for publishers to do? Will it help sales? Hurt sales? I'm curious what readers think.

Posted by Daniel J. Solove at 04:08 PM | Comments (5) | TrackBack

The Future of Reputation -- Now Online for Free!

I'm very happy to announce that my publisher is allowing me to post a copy of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet free online. Of course, I'd love it if you bought a copy, but if I can't convince you to buy it, then I hope you'll at least read it for free online. There really is a free lunch after all! And if you read the book and don't like it, well . . . you get what you pay for.

I think that it is great that Yale University Press is allowing me to do this. I hope more publishers decide to let their authors do this in the future -- especially academic presses, whose mission is not just to make a profit but to help spread ideas.

The book is licensed under a Creative Commons license -- it can be used for non-commercial uses.

To download the full-text of the book, click here.

Posted by Daniel J. Solove at 01:19 AM | Comments (2) | TrackBack

Money Magazine Interview

In the March issue of Money Magazine, I'm interviewed as part of their profile series "The Big Idea." Despite the photographer's taking dozens of pictures of me, the editors chose one with me looking rather serious. So much for my attempts at cultivating the image of being a light-hearted guy.

Posted by Daniel J. Solove at 12:50 PM | Comments (0) | TrackBack

C-SPAN Interview on The Future of Reputation

Apologies for the self-promotion, but I can't resist mentioning for interested readers that I'm currently appearing on C-SPAN and C-SPAN-2 in a 30-minute interview about my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.

The interview was broadcast on C-SPAN last night, and it will be rebroadcast on C-SPAN-2 at 8 AM and again at 8 PM this Monday, February 4th.

You can also view the interview online here, but note that the C-SPAN Video Player version currently doesn't work. So try the Windows Media Player version, which is the bottom orange icon. You can also watch the video on YouTube. (See below for the embedded video).

For Solove junkies, you can also watch a lecture I gave about the book here, and listen to a radio interview (the Kojo Nnamdi show on NPR) here.

Posted by Daniel J. Solove at 11:28 AM | Comments (1) | TrackBack

Michael Abramowicz's Predictocracy

Professor Michael Abramowicz, my colleague at GW Law School, has just published a new book, Predictocracy: Market Mechanisms for Public and Private Decision Making (Yale University Press 2008). From the book jacket:

Predicting the future is serious business for virtually all public and private institutions, for they must often make important decisions based on such predictions. This visionary book explores how institutions from legislatures to corporations might improve their predictions and arrive at better decisions by means of prediction markets, a promising new tool with virtually unlimited potential applications.

Michael Abramowicz explains how prediction markets work; why they accurately forecast elections, sports contests, and other events; and how they may even advance the ideals of our system of republican government. He also explores the ways in which prediction markets address common problems related to institutional decision making. Throughout the book the author extends current thinking about prediction markets and offers imaginative proposals for their use in an array of settings and situations.

Michael guest blogged here last year, and his work is always interesting and thought-provoking. Professor Ian Ayres (Yale Law School) writes about Michael's Predictocracy:

Will Hillary or Arnold ever be elected? Will Die Hard VIII be a hit? Will the HP merger go through? Will Sanjaya be voted off this week? Our best evidence on all these questions increasingly comes from prediction markets. We already live in a world where orange juice future prices can usefully supplement the best government weather predictions. But Predictocracy shows that we're just scratching the surface of what can be done with this powerful tool. Abramowicz's inventive mind shows new ways to design prediction markets and radically new domains to predict. In this new world, peer reviewed journals, legal restatements, even deliberative democracy may ultimately be guided by the force of predictive bets.

Anything Michael writes is well-worth reading, and I predict that this book will be too (pardon the pun). It is a book I'll definitely be adding to my shelf.

Posted by Daniel J. Solove at 02:23 PM | Comments (4) | TrackBack

Book Review: Harold Schechter's The Devil's Gentleman

Harold Schechter, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century
Ballantine Books (October 2007)

Harold Schechter, an American literature professor at CUNY, has written a gripping account of the criminal trial and appeal of Roland Molineux, a case that grabbed headlines throughout the late 1890s. His book, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century (2007) is a page-turner, and it reads almost like a novel.

Roland Molineux, the son of a revered Civil War general, was accused of an elaborate scheme of sending medicines and potions containing cyanide in order to kill two men. One was his friend whom Molineux wanted out of the picture because he was having an affair with the woman Molineux had his sights on marrying. The other was the director of an athletic club to which Molineux belonged and whom Molineux hated. The result was two murders, one of which involved an unintended victim. Oddly, anonymously sending potions or food laced with poison in the mail was an effective way to kill at that time. People apparently thought nothing of ingesting things that were sent to them anonymously. Poison was a popular murder instrument at the time, and people viewed poisoning as an especially sinister and "unmanly" way to kill. And one could readily be poisoned not through any nefarious scheme, but by the medicines at the time, some of which contained cyanide and arsenic. The cure was often more deadly than the disease.

The book focuses considerably on the role that the media played in the justice system. The media in the latter half of the Nineteenth Century was rabidly sensationalistic. The rise of "Yellow Journalism" was one of the factors that prompted Samuel Warren and Louis Brandeis to write their famous article, The Right to Privacy in 1890. Yellow Journalism emerged as Joseph Pulitzer and William Randolph Hearst transformed the newspaper business, from small circulations and weak profits (sometimes even losses), to a booming success. In two years, for example, Pulitzer increased the circulation of the New York World from under 12,000 a day to 150,000 a day:

The very look of the paper underwent a radical alternation. Headlines now stretched over several columns or were splashed across the entire top of the page. And there were cartoons, caricatures, lurid illustrations, and other voyeuristic visual aids. Not only were grisly murders reported in graphic detail; they were diagrammed so that readers could picture the horrors more clearly. (p. 98)

The newspapers conducted their own investigations into criminal cases, interviewing witnesses, tracing leads, shadowing the police. In one instance, a newspaper even funded an investigation. The police needed to go through 50,000 sales slips at a pharmacy, and "they would have had an impossible time of it, since orders were full of Latin medical terms and abbreviations. Only people with pharmaceutical training could accomplish the task." The pharmaceutical supply company "couldn't afford to loan [its clerks with the requisite training] out for an indefinite period of time." Enter the media:

At that point, however, the yellow papers, with their genius for self-promotion, insinuated themselves into the proceedings. The World--which never wearied of trumpeting its own invaluable contributions to the case--offered to reimburse Smith for his clerks' time. (p. 164)

When it came to the trial, the newspapers presented it more as a play than as a real event. One newspaper "presented a summary of the case in the form of a stage play, complete with a 'Cast of Characters'; a synopsis of the 'Great Double Poisoning Drama' divided into acts and scenes." (p. 173). A different paper had its theater critic covering the trial, which drew an attack from another newspaper as stepping over the line. "The trial is dramatic but it is not a dramatic spectacle," the editorial decried. "A murder trial should not be made to wear the aspect of a public diversion." (p. 289)

The Devil's Gentleman is riveting and engaging, and it and captures a vivid slice of life at the turn of the Twentieth Century. It contains an extensive and very interesting account of police investigations, trials, and appeals at the time. The book chronicles step-by-step how the police and press pieced together the case, as well as demonstrates the impact of various courtroom strategies and evidence (there were two trials, each involving considerably different strategies and admitted evidence).

And along the way, the book contains some interesting tidbits of information. For example, Theodore Dreiser mulled over writing a novel based on the case, but abandoned the project. He found another crime which formed the basis of An American Tragedy. And the book notes that in the 1890s, "dealers in mail-order patent medicine brought in extra income by saving the correspondence they received from customers, then selling these letters to other mail-order firms." (p. 269). Selling people's personal information, it seems, was a popular pastime then, as it is now.

Posted by Daniel J. Solove at 02:13 AM | Comments (2) | TrackBack

Book Review: Lawrence Friedman's Guarding Life's Dark Secrets

Professor Lawrence M. Friedman (Stanford Law School)
Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy
(Stanford University Press, November 2007)
ISBN: 978-0-8047-5739-3

Professor Lawrence Friedman's Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy is a wonderful and accessible history of the norms and law that shaped reputation over the past two centuries. Friedman's book builds on some of his earlier work on norms and law in the Victorian era which I found immensely useful as I wrote my book, The Future of Reputation. Whereas my book mostly explores the present and future challenges to protecting reputation, Friedman's explores the past. His book is written in a lively and engaging style, and it is fascinating.

Friedman focuses much of his book on the Victorian era of the nineteenth century. The key phenomenon in his book is what Friedman terms the "Victorian compromise." The Victorian era is famous for its staunch moral code and sense of propriety. Throughout history, Western society has had periods of licentiousness and reticence, and the Victorian era is the symbol for being buttoned-up and prudish. In England and America, this was a period of strong laws against countless forms of disfavored sex, from adultery to sodomy. But Friedman notes that a lot of vice was, in fact, tolerated during this period. According to the Victorian compromise:

Vice at least was tolerable, although only in small amounts and only if discreet and under a good deal of control. Hence a kind of double standard evolved. A prime example was the so-called red-light zone or district. These zones flourished in city after city. Houses of prostitution, gambling dens, and all sorts of vice were rampant in these districts. The law--and the police--winked at them and accepted them as part of urban life. . . . This double standard was the essence of the Victorian compromise. It stands in sharp contrast to the attitude and behavior in (say) Puritan Massachusetts Bay, in the colonial period, with its policy of zero tolerance toward vice and illegal sex. (p. 67)

Friedman further notes that public discussion of sex during Victorian times was strictly taboo, and "[s]ex was meant for the privacy of the home." (p. 72). There was a large double standard when it came to the sexual behavior of men and women. For women, all sex outside of marriage was adultery. "But a married man was criminally liable only if he had sex with a married woman. In other words, for a man sex with a prostitute--or a single woman--was not criminal adultery at all." (p. 73)

In a chapter on blackmail, Friedman observes that the blackmail laws fit with the Victorian compromise -- they were designed to help elites protect their public reputations, to help prevent them from being threatened and extorted by the often poorer individuals who were blackmailing them (their illicit lovers or servants). He notes that "the blackmail statutes began to appear roughly about the same time and with the same underlying ethos as the other laws that made up the Victorian compromise." (p. 99). A similar point is made in Angus McLaren's book-length account of blackmail, Sexual Blackmail: A Modern History (2002). McLaren observes that courts would ignore the truth or falsity of the blackmailer's accusations, which, if true, would often mean that the blackmail victim had engaged in serious criminal conduct (sodomy, for example).

Thus, the Victorian compromise operated to maintain a facade of respectability in public while sin occurred in the dark recesses of the private sphere. It's ok to do it, the ethos of the age said, just be sure to hide it. The Victorian compromise "depended on privacy and secrecy." (p. 215)

The need to protect one's reputation in the Victorian age was heightened by a new danger -- the burgeoning American press, which was highly sensationalistic during the nineteenth century. The lurid nature of newspaper stories was one of the factors that prompted Samuel Warren and Louis Brandeis) to write The Right to Privacy, 4 Harv. L. Rev. 193 (1890), which gave birth to the privacy torts. Friedman observes:

Harriet Martineua thought that the American press was the worst in the world. Charles Dickens, writing in 1842, called the American press a monster of depravity. The press "has its evil eye in every house, and its black hand in every appointment in the state, from a president to a postman"; its "only stock in trade" is "ribald slander," and its "evil" influence spreads throughout the country. Anthony Trollope, writing some twenty years later, was just as critical; the things in the newspapers, he said, were "never true." The forte of the press was "abuse of individuals," abuse "which is as violent as it is perpetual. . . . All ideal of truth has been thrown overboard. . . . The only object is to produce a sensation. . . . Falsehood has become so much a matter of course with American newspapers that it has almost ceased to be a falsehood." (p. 44-45)

Another dimension of protecting reputation involved safeguarding it from false rumors. Friedman's book contains two chapters on defamation, and he marshals interesting facts about defamation cases and gender:

Most defamation cases--at least the reported cases--were brought by men, who were suing other men (or, commonly, newspapers). . . . Typically, women's cases were about chastity (or the lack of chastity); they sued over language that said or implied indecency, whoring, and sexual misconduct in general. Out of 130 reported defamation cases published between 1897 and 1906, only 43 were brought by women. All but one of these cases dealt with "imputations of immorality." (p. 49)

The Victorian compromise came to an end, when, beginning in the late nineteenth century, the anti-vice movement pushed through stronger anti-vice laws. These laws criminalized abortion, closed down red light districts, censored obscenity, and clamped down on prostitution -- things that before had never been viewed as legitimate, but that had been tolerated in the shadows. But this new strictness didn't hold. In the middle of the twentieth century, there was a radical shift in the other direction, liberalizing restrictions on sex, contraception, and obscenity.

Friedman's discussion of the Victorian compromise raises very interesting questions about privacy. Was privacy a way for Victorian society to maintain a monumental hypocrisy? Did privacy help grease a society that was rife with class, race, and gender double standards? The picture Friedman paints of the Victorian era isn't pretty, and the norms and laws protecting privacy and reputation are what helped hold society together during this age. Maybe things would have been better without privacy. Or maybe not. Perhaps privacy was a way to cope with a set of social rules that our society has long since moved away from or repudiated.

Overall, Guarding Life's Dark Secrets is a terrific thought-provoking history, but there are times where Friedman becomes a bit too fast and loose with his own opinions, departing from the more detached tone of the historian and shifting to the more opinionated tone of a social critic. This happens as Friedman delves into a discussion of the present in later chapters in the book.

Friedman could also do more exploring the law of privacy. His chapter on the development of privacy law is far too short, and it does not contain the same level of detail and thoroughness as some of the other chapters. The chapter does, however, contain some interesting background into a few of the more well-known privacy tort cases, and I came away learning a few new things after reading it.

But these are quibbles. For anyone interested in blackmail, defamation, and other laws protecting reputation in America, Friedman's richly-detailed book is a must-read. It contains a fascinating look at the norms relating to privacy, sex, and gender during the nineteenth and twentieth centuries. I highly recommend this book.

For those who are interested in the topics in Friedman's book, I'd also recommend:
* A History of Private Life (volumes I-V) (Michelle Perrot ed., 1992)
* Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 California Law Review 957 (1989)
* Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 Yale Law Journal 2117 (1996)
* Thomas Nagel, Concealment and Exposure and Other Essays (2002)
* Angus McLaren, Sexual Blackmail: A Modern History (2002)
* David H. Flaherty, Privacy in Colonial New England (1972)
* John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (2d ed. 1997)

Posted by Daniel J. Solove at 04:00 PM | Comments (2) | TrackBack

Law Talk: George R. R. Martin

In today's episode of Law Talk, we hear from George R. R. Martin, the prolific author of the "high fantasy" series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I've previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) "The American Tolkien."

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead's distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren't a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn't one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here's the interview again. Warning: it's a big file!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the "Law and Hard Fantasy" Interview Series, see:

• Fantasy’s Apocalyptic Turn
• The Law and Hard Fantasy Interview Series
• An Interview with Pat Rothfuss

Posted by Dave Hoffman at 12:26 PM | Comments (28) | TrackBack

Responses to Blog Reviews of The Future of Reputation: Part III

In this post, I'll be responding to a few more reviews of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. This is the third installment (for more responses to reviews, see Part I and Part II).

1. Ethan Ackerman at Technology & Marketing Law Blog

Ethan Ackerman, an attorney and former legislative and technology counsel in the US Senate, has reviewed the book as a guest blogger on Professor Eric Goldman’s Technology & Marketing Law Blog. He writes:

It is this aspect of Solove's book - the deep AND wide thinking about an individual's interaction with the modern Internet - that moves the book out of the one-point-rigorous-analysis of an academic article and the semi-random anecdotal topicality of a blog post and into the category of critical (in the must-read sense) literature. Where Solove's previous work tackled the pressing but somewhat solvable problems that arose from individuals losing control of their personal information to government and commercial entities, this book tackles individuals' loss of access and control of their information at the hands of other individuals - and, increasingly, by their own hand on blogs, social networking and image sharing sites of their own.

One of the things that enticed me to write about the issues in my book was the fact that they are so difficult to solve. In the end, there's no good solution, just ways to cope. Ethan understands and sympathizes with my struggle, and he writes:

I'd have to agree with what I think Solove's ultimate aim is here - informing people and getting them to think more about privacy themselves. To put words in Solove's mouth, if everyone is more informed and thinks about these issues themselves, not only will any ultimate solutions probably be better, but they will also perhaps be moot, as more people will have chosen the non-problematic action in the first place.

The most effective solutions encourage norm change, and that occurs not just through the law but through making people more aware of the consequences of their online speech. Currently, I see both in the law and in the discourse an exaltation of speech over privacy, a strong sentiment that people should be able to say whatever they want with impunity. Shaping these norms to a more even balance between free speech and privacy is key if we are going to make any headway in addressing these problems.

2. Jon Garfunkel at Civilities

Software architect Jon Garfunkel has posted a review of the book at his blog Civilities. He writes:

The book was a delight to read, intensely footnoted and calmly presented. While there is no shortage of rhetoric extolling the virtues of new media, Solove takes that as obvious enough, and presents instead the dark side of cyberspace.

Jon agrees with my criticism of the CDA § 230, which provides immunity for ISPs and blogs for content posted by others, but he notes that I should do more to lay out the contours of an alternative rule:

Clearly [§ 230] is intended to shield disinterested operators. But some websites clearly play a shaping role in the activities that take part on it. After all, if the Supreme Court ruled that Grokster “infringes contributorily by intentionally inducing or encouraging direct infringement,” why is a website innocent if it induces defamation? (as such DontDateHimGirl, sued again, could be construed as inducing.)

It's possible, too, that a website or blog could be seen as inducing defamation if it supports untraceable anonymity.

This is an interesting proposal -- perhaps sites like Juicy Campus (which I recently blogged about) and similar websites that directly solicit gossip and bask in their § 230 immunity should not be immune because they directly solicit and encourage the posting of defamatory or privacy-invasive content.

It would be a very interesting project to try to refashion § 230 by proposing specific statutory language. Can anybody propose a rewritten version of § 230 that strikes a better balance between reputation protection and free speech? I'd love to see some concrete attempts at reworking § 230.

3. Eric Turkewitz at New York Personal Injury Blog

Over at New York Personal Injury Blog, attorney Eric Turkewitz has reviewed the book. Eric writes:

The horror stories of Part 1 are gripping examples of issue identification, from the girl whose dog poops on the subway and the way a story about her rocketed around the Internet, to the lawyer-boyfriend who saw his ex kiss-and-tell on the web, for the whole world to see. Grouped together without the social sciences research that Solove intersperses with it, it would make for a fast and powerful lesson for rookie writers who are thinking of publishing anything on the web.

Turning to Part 2 of my book, Eric writes:

Some of Solove's ideas on the legal solutions are unworkable though. A prime example comes in the context of allegedly defamatory comments that are left by others. At present, bloggers and website owners have immunity for anything posted by others under section 230 of the Communications Decency Act passed in 1996. (Though if bloggers screen the comments before publishing, it is possible they could be deemed an editor and subject to liability, an issue that Solove misses that I believe is being litigated in a couple of places.)

Solove says this immunity is too strong, and suggests a format where the blogger could contact the owner of the blog or website and ask that the defamatory comment be taken down, and if the request is refused, the site owner could then be sued. Of course, the owner is in no position to have a trial to find out if the allegedly defamatory statements are true or not, and therein lies the problem.

Eric raises a very interesting question about whether bloggers who pre-screen comments before they are posted lose their § 230 immunity. In a recent update to my information privacy law casebook, I pose this very question:

Suppose Cremers has a blog about stolen art. Smith is interested in spreading the rumor about the stolen art on Cremers’ blog. Consider the following situations and examine whether Cremers would have § 230 immunity under the majority’s rule and also under Judge Gould’s.

(a) Cremers’ blog allows anybody to post comments. Smith posts a comment about the rumor on Cremers’ blog. Batzel wants Cremers to delete the comment, but Cremers refuses to do so.

(b) Cremers has a comment moderation system on his blog where he must approve comments before they are published on his blog. Smith posts the stolen art comment and Cremers approves it, whereupon it is published on the blog.

(c) Smith emails Cremers and tells him about the stolen art rumor. Instead of posting the email itself, Cremers writes a blog post about the rumor in his own words and posts it.

(d) Smith calls Cremers and tells him the rumor about the stolen art. Cremers writes a post about the rumor.

Is there any meaningful difference between the above situations and the way that Cremers disseminated Smith’s email to the listserv? As a normative matter, should Cremers’ liability be different in any of the above situations? How should the law determine when a person should be deemed the content provider and when a person should be deemed to merely be relaying the content of another?

In the examples above, (a) is clearly protected by § 230 and (d) is not. But the cases in between are difficult, and it is hard to articulate meaningful distinctions between them. The point of my questions above is to demonstrate that it is sometimes very difficult to determine who exactly is the provider of content on a particular blog or website or listserv.

Eric raises a good point that restricting § 230 immunity will be problematic because bloggers will not want to face a trial in order to defend a comment against defamation charges. They will just take it down, even if it is not defamatory or invasive of privacy. Professor Rebecca Tushnet also raises this problem, and I'll respond below when I address her review.

Overall, Eric thought the book was "a welcome read." He also writes: "There are portions of Dan Solove's new book that should be required reading. Not for lawyers, but for high school and college students." In particular, he is speaking about Part 1 where I discuss the problems of too much information online.

4. Professor Rebecca Tushnet at 43(B)log

Professor Rebecca Tushnet (Georgetown Law Center) has written a review of my book at 43(B)log. She writes:

The book is about conflicts between privacy, free speech, openness, and control of one’s own information and reputation. Because the internet scales so easily, small pieces of information can get spread to millions of people, with consequences quite different from the ones that ordinarily follow “public” disclosure to, say, ten or twenty people. People pile on, turning even ordinary social sanctions for misbehavior into a virtual pillory, and mockery replaces empathy.

As many reviewers note, the strength of the book is that it acknowledges the paucity of easy answers, but that can also be frustrating.

Indeed -- I was frustrated too. I typically have much more potent proposals for legal reform in my work. The lack of a stronger solution is not the product of a failure to try -- I really struggled over this. Ultimately, the book is a reflection of my struggle, and I believe that the main contribution of the book is conveying the thoughts that went into my struggle.

Rebecca also finds my critique of § 230 immunity to be troubling:

Solove advocates, tentatively, moving the essentially absolute immunity of ISPs provided by Section 230 against non-IP tort claims to something more like notice-and-takedown under the DMCA. Given how easily notice and takedown can be abused, and how rarely posters challenge notices (which must seem very high-stakes indeed to nonlawyers), I am unenthusiastic about this idea unless the procedure was made very transparent and the penalties for ISPs were pretty limited.

Solove suggests penalties for abusers of a notice regime, but that only helps if you are willing to fight the abuser in court.

Rebecca's critique of my proposal, which in effect creates a notice-and-takedown regime, stems from her experience with the DMCA's notice-and-takedown regime for copyright violations. The DMCA regime is indeed fraught with problems, as zealous copyright owners are making overbroad takedown requests for material that is fair use. YouTube, for example, quickly takes down any videos upon receiving a takedown request, even when there is a good argument for fair use. And for the blogger, it is difficult not to be shaking in one's boots when receiving a nasty take-down letter from an angry corporate lawyer threatening the apocalypse if one doesn't comply. Facing such a Leviathon, with the muscular copyright law in its corner and armed with the threat of huge statutory damages, the wisest course of action is to back down and take down. I would like to see very punishing penalties for abusing the notice-and-takedown.

Turning back to defamation and invasions of privacy, I recommend in the book that liability be limited, and I suggest that perhaps there be a system of required mediation/arbitration before any lawsuit can proceed to trial. However, these limits and requirements might still not be enough protection against undue chilling of speech. It is always easier just to give in to the demand to take something down than to fight it in court. But this will always be a risk whenever there's a system of liability for things one might say.

If there is too strong an incentive to take down speech without § 230, isn't the takedown incentive too strong for a blogger's own blog posts, which would not be protected under § 230? I haven't heard many argue that there should be no defamation or public disclosure tort protections. But if we truly want free speech uninhibited by any chilling effect of potential litigation, then why not provide complete immunity for the things we say ourselves as well as for the content others supply? Why not expand § 230 to apply to all speech, whether online or offline, whether one is the speaker or not?

Section 230 is thus only part of the debate, but the issues go deeper, and the arguments for and against § 230 can apply far beyond the § 230 context.

5. Michael Stern at The American Lawyer

Lastly, although it is not a blog review, I can't resist discussing Michael Stern's review in the December 2007 issue of The American Lawyer magazine. Michael is a former journalist and English professor who currently heads Cooley Godward Kronish's technology transactions group. He writes:

Solove, both a distinguished privacy law expert and a popular, prolific blogger, wants to be the Brandeis and Warren of the new millennium. Today's pundits either exult that digital information needs to be free or despair that privacy is dead ("You already have zero privacy. Get over it," as Scott McNealy, the former CEO of Sun Microsystems, famously put it). Solove wants to find a new middle ground, where the law can help foster new norms of personal and institutional behavior in the Internet era. The Future of Reputation is his version of Brandeis and Warren's fashioning of a jurisprudence of last resort, remedies that can be invoked when decency fails.

Don't be too discouraged by that hint of heavy lifting to come. Solove is an entertaining as well as a thoughtful writer. Much of Future is devoted to a detailed and often-amusing romp through the many disclosure debacles and privacy pratfalls of the digerati to date. Solove is a good storyteller, and he's got doozies.

Toward the end of this review, Michael does a nice job musing over my proposals for legal reform:

Solove's description of the problem is much more powerful than his prescription for addressing it. His modest proposals seem too little, too late in a world where the careless Facebook or MySpace posting of one's adolescence can be Googled by prospective employers and colleagues forever, and you're never out of range of some device's unsleeping digital eye. . . .

But who knows? In 1890 the estimable E.L. Godkin had given up. "In truth," he wrote in his Nation article, "there is only one remedy for the violation of the right to privacy within the reach of the American public. . . . It is to be found in attaching social discredit to invasions of it on the part of conductors of the press. . . . At present, this check can hardly be said to exist." And then along came Warren and Brandeis, and a century of legal fees and damage awards in libel, slander, and invasion of privacy cases, which helped forge that very balance between the freedom of the old media press and the right to be left alone that the new media is now eroding. . . .

If we start the common law equivalent of toilet training now, who knows how far a responsible yet vigorous blogosphere could evolve?

Posted by Daniel J. Solove at 03:00 PM | Comments (1) | TrackBack

List of Books About Law and Literature in 2007

Over at Law & Humanities Blog, where I occasionally blog, Professor Christine Corcos lists new books published about law and literature in 2007.

Posted by Daniel J. Solove at 12:24 AM | Comments (1) | TrackBack

New Books About Law and Related Topics (Fall 2007)

Here is a list of new books on law and law-related topics published by some major academic presses in the fall of 2007.

CAMBRIDGE UNIVERSITY PRESS

God vs. the Gavel: Religion and the Rule of Law
Marci A. Hamilton

The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings
Gideon Boas

The Constitution as Treaty: The International Legal Constructionalist Approach to the U.S. Constitution
Francisco Forrest Martin

International Tax as International Law: An Analysis of the International Tax Regime
Reuven Avi-Yonah

UNIVERSITY OF CHICAGO PRESS

Regulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law
Larry Yackle

Broken Buildings, Busted Budgets: How to Fix America's Trillion-Dollar Construction Industry
Barry B. LePatner

Unequal under Law: Race in the War on Drugs
Doris Marie Provine

Privacy at Risk: The New Government Surveillance and the Fourth Amendment
Christopher Slobogin

The Complete Anti-Federalist
Herbert J. Storing

Mass Torts in a World of Settlement
Richard A. Nagareda

Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy.
Lynn Welchman

Rethinking Expertise
Harry Collins and Robert Evans

HARVARD UNIVERSITY PRESS

Are Women Human?
Catharine A. MacKinnon

Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska
Stuart Banner

NYU PRESS

Sin No More: From Abortion to Stem Cells, Understanding Crime, Law and Morality in America
John Dombrink and Daniel Hillyard

Rethinking Political Institutions: The Art of the State
Edited by Ian Shapiro, Stephen Skowronek and Daniel Galvin

OXFORD UNIVERSITY PRESS

Beyond Citizenship: American Identity After Globalization
Peter J. Spiro

Offences and Defences: Selected Essays in the Philosophy of Criminal Law
John Gardner

Fighting over Words: Language and Civil Law Cases
Roger W. Shuy

Law and Philosophy (Current Legal Issues)
Michael Freeman and Ross Harrison

Law, Justice, and Society: A Sociolegal Introduction
Anthony Walsh and Craig Hemmens

The Origins of the Ownership Society: How the Defined Contribution Paradigm Changed America
Edward A. Zelinsky

Access to Justice as a Human Right
Francesco Francioni

The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford Political Theory)
Chandran Kukathas

Buying Social Justice: Equality, Government Procurement & Legal Change
Christopher McCrudden

Harry A. Blackmun: The Outsider Justice
Tinsley Yarbrough

On Global Order: Power, Values, and the Constitution of International Society
Andrew Hurrell

Civilian Immunity in War
Igor Primoratz

Law in an Era of Smart Technology
Susan Brenner

Prohibiting Plunder: How Norms Change
Wayne Sandholtz

Hans Kelsen's Pure Theory of Law: Legality and Legitimacy
Lars Vinx

Privacy in Peril: How We are Sacrificing a Fundamental Right in Exchange for Security and Convenience
James B. Rule

Labeling Genetically Modified Food: The Philosophical and Legal Debate
Paul Weirich

Overcriminalization: The Limits of the Criminal Law
Douglas Husak

Law Firm Strategy: Competitive Advantage and Valuation
Stephen Mayson

PRINCETON UNIVERSITY PRESS

Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party
Paul Frymer

In the Beginning Was the Deed: Realism and Moralism in Political Argument
Bernard Williams

Inherited Wealth
Jens Beckert

Gender, Class, and Freedom in Modern Political Theory
Nancy J. Hirschmann

Torture and Democracy
Darius Rejali

Democratic Authority: A Philosophical Framework
David M. Estlund

The Europeanization of the World: On the Origins of Human Rights and Democracy
John M. Headley

The Failed Welfare Revolution: America's Struggle over Guaranteed Income Policy
Brian Steensland

Trying Leviathan: The Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature
D. Graham Burnett

The Politics of Hope and The Bitter Heritage: American Liberalism in the 1960s
Arthur M. Schlesinger, Jr.

Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law
Mark Tushnet

Just Silences: The Limits and Possibilities of Modern Law
Marianne Constable

Republic.com 2.0
Cass R. Sunstein

Labor Rights Are Civil Rights: Mexican American Workers in Twentieth-Century America
Zaragosa Vargas

The Politics of Secularism in International Relations
Elizabeth Shakman Hurd

Regulation and Public Interests: The Possibility of Good Regulatory Government
Steven P. Croley

STANFORD UNIVERSITY PRESS

Guarding Life's Dark Secrets Legal and Social Controls over Reputation, Propriety, and Privacy
Lawrence M. Friedman

Shari’a Islamic Law in the Contemporary Context
Edited by Abbas Amanat and Frank Griffel

Biosecurity in the Global Age Biological Weapons, Public Health, and the Rule of Law
David P. Fidler and Lawrence O. Gostin

Democracy and the Police
David Alan Sklansky

YALE UNIVERSITY PRESS

The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial
James Q. Whitman

Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry
Edward A. Purcell, Jr.

Thinking Politically: Essays in Political Theory
Michael Walzer

Babies by Design: The Ethics of Genetic Choice
Ronald M. Green

Origins of American Health Insurance: A History of Industrial Sickness Funds
John E. Murray

Divorce: Causes and Consequences
Alison Clarke-Stewart and Cornelia Brentano

Stem Cell Century: Law and Policy for a Breakthrough Technology
Russell Korobkin and Stephen R. Munzer

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet
Daniel J. Solove

Education's End: Why Our Colleges and Universities Have Given Up on the Meaning of Life
Anthony T. Kronman

Posted by Daniel J. Solove at 11:10 AM | Comments (3) | TrackBack

Great Name But Is It a Great Product? Thoughts on Amazon’s Kindle

Jeff Bezos is an impressive manager. The recent Harvard Business Review interview with him, The Institutional Yes: The HBR Interview with Jeff Bezos, (payment required) shows someone offering real insight about how innovation functions at his company. So when I saw that Newsweek had an article detailing Bezos’s latest take on books, I had to read it. The product is called the Kindle, and it is supposed to be the latest reason to think digital books will replace analog ones. One possibility of the new technology is that books will continually evolve as authors change their mind or update a text. This idea brings images of revisionist Greedo shootings; more on that later. Now back to the Kindle.

First Kindle is a great name. It evokes images of fire and light which seem to travel with thought and creativity (the Newsweek article suggests that was the idea behind the name). Plus for me it reminds me of spindle which has several different practical and quite useful contexts. Second, as opposed to Sony’s eReader, the Kindle seems more useful. Both use E Ink but the Kindle does much more than the eReader. One thing that stopped me from buying the eReader was that one could not mark the text. In addition, the Kindle allows one to change font size and search within the book. The search within the text feature could be great. Sometimes when I want to find a cite or know a passage exists but not its exact location Amazon’s search the book feature is most useful. Having the same ability for my library would be even better. Perhaps the most revolutionary idea is the wireless aspect of the Kindle. Now one can read a book and enjoy what Amazon calls its service. The upside of this service could be finding related information or having easy ways to look up a definition while reading. One option was that one might even annotate a book highlighting both accurate or inaccurate aspects of it (the article notes the idea of a Coulter book annotated for misstatements). As Gizmodo points out, however, the Kindle poses some problems as far as format and cost go (apparently the Kindle does not easily support pdf, doc, rtf, etc.).

Gizmodo indicates that the Kindle requires paying $0.10 per view of even files one owns and charges $1.00 per blog or RSS feed. The eReader does not charge but then again if it had Internet connectivity, Sony might try that. The Kindle charge systems points to the key behind the idea: Bezos sees it as a service and "The vision is that you should be able to get any book—not just any book in print, but any book that's ever been in print—on this device in less than a minute," says Bezos. Curiously, in the analog world the idea of on demand printing has a new offering as well. Time Magazine listed the Espresso Book Machine as one of its Best Inventions of the Year. It “can churn out a 300-page paperback on demand, complete with color cover, in just 3 min. The $50,000 machine could transform libraries into minibookstores, making hard-to-find titles as accessible as cappuccinos. At $3 a book they might be cheaper too.” (Of course the trademark attorney in me predicts that Bepress and its Expresso service http://law.bepress.com/expresso/ will file suit any day now). So who will win? Fast, cheap print that has inherent copy protection and could manage royalties easily or fast, cheap electronic services that are highly portable and could also manage royalties easily? It may depend on the user. The Kindle does offer subscriptions to the New York Times, The Wall Street Journal, and magazines and sells recent hard covers for much less than bookstore, hardcopy prices. Still, at a $399 base price for the Kindle, one could buy 133 books from an Espresso machine and support a library in the process not to mention having the physical item of the book which even Bezos says “turns out to be an incredible device.”

Posted by Deven Desai at 03:37 PM | Comments (1) | TrackBack

Responses to Blog Reviews of The Future of Reputation: Part II

This post responds to more reviews of my new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, Oct. 2007). I posted Part I of my responses to reviews here. This is Part II.

1. Susan Cartier Liebel at Build A Solo Practice

Susan Cartier Liebel, a lawyer who started her own law firm and now works as a consultant on developing a law practice, reviewed The Future of Reputation in her blog Build A Solo Practice, LLC. In her review, she writes:

[A]nyone who uses the internet in any way shape or form, blogging, YouTube videos, social media and all sharing of information in digitized form needs to read this book. And even if you don't use the internet, you can still be a victim of another's use of the internet to invade what you believe is private. . . .

There are no clear cut answers although the author poses some interesting thoughts. It is a book sure to stimulate serious debate amongst layperson and lawyer alike. But in the end we are responsible for ourselves and our uses of the internet. With every action taken we self-define free speech and privacy. I highly recommend this book.

I am delighted by Susan's thoughtful review of my book.

2. Bram Strochlick at Harvard Crimson

Bram Strochlick at the Harvard Crimson wrote a very nice review of the book. He was not part of my free-review-copies-for-bloggers experiment, but I can't resist quoting briefly from his review:

Rather than simply warning readers about possible scenarios, Solove shows first-hand the lives that have been ruined, combining descriptions of the original events with verbatim reproductions of comments posted by various bloggers throughout the Web. . . .

Solove’s crisp and refreshing writing strays from the ponderous tone many writers take when criticizing the Internet, achieving a balance of humor and levity that keeps the pages turning and demonstrates a real understanding of and engagement with the youthful Internet culture he analyzes. Another key strength is the unassuming nature of the author’s prose; one does not have to be at all familiar with how the Internet works or what the current laws regarding Internet usage entail to fully enjoy this often saddening chronicle of lives destroyed by virtual gossip.

My goal was to write a widely-accessible book, and I'm quite pleased that Bram believed I succeeded.

I have little more to say about Susan and Bram's reviews. The lesson I learned from clerking on federal district court was that if the judge indicates strong agreement with an attorney's argument, then it's generally best for that attorney to shut up before the judge changes his or her mind.

3. Amber Taylor at Prettier than Napoleon

To counterbalance the two reviews above is this review from Amber Taylor, a Harvard-educated lawyer who describes herself as a "small-l libertarian." Having read Amber's blog, Prettier Than Napoleon, I knew that she would vehemently disagree with my arguments in the book. And she did not disappoint. I found her review to be quite good and thought-provoking. I don't mind disagreement as long as it is smart and interesting -- which Amber's perspective is. She begins:

If the reader does not accept certain first principles (and I do not), Solove’s analysis will not be persuasive nor his recommendations appealing. This book does, however, provide an excellent summary of the internet’s effect on personal information distribution and reputations.

Amber first critiques my suggestion that the law better empower people to have defamatory or privacy-invasive information taken down from websites:

Given the abuses of the DMCA takedown notice process, I would think that instantiating a similar set of procedures for any speech about an individual that could arguable violate his or her privacy would be extremely unappealing. While Solove is extremely concerned about over-enforcement in the context of private parties punishing norm violations, he does not recognize that his own proposal would result in over-enforcement of privacy norms, since the threat of litigation is often enough for webmasters to take down protected speech. Solove’s concern about protecting the identities of plaintiffs would also seem to be in tension with the need for a webmaster to be able to investigate and verify whether a takedown request is valid. Solove also argues for abolition of Section 230’s blanket immunity provision, but this too would result in over-enforcement; given the massive exposure and lower standards for liability imposed by a regime that punishes website operators aware of “problematic material,” the rational response to any given request would probably be to take down the material. And penalties for takedown-notice abusers are only useful if these same operators (who cannot afford even minor legal battles) or the likely-anonymous speakers (most of whom are similarly impoverished) would be willing to take the would-be censor to court, which would occur only rarely.

This is a very potent challenge to my proposal. Part of the difficulty is that it depends upon an empirical issue that nobody quite knows the answer to: How often will people attempt to request to have information taken down? How frequently will such a notice-and-takedown system be abused? I don't believe that comparing it to the DMCA regime is an apt analogy, as that regime governs copyright enforcement, which in my opinion has spiraled out of control. The DMCA takedown notices are part of a corporate campaign to stop music piracy and to push beyond for even greater control over content, often threatening fair use. I don't see the same kind of money at stake and litigating power with those who request information be taken down to protect their personal reputations. Therefore, I don't think that there will be rampant abuse. But then again, this is but a guess. It's hard to predict what will happen unless we try it.

Amber complains that my proposal might be too privacy-protective at a cost to free speech; but currently the law is too speech-protective at a cost to privacy. I believe that the balance is currently out of kilter. My proposals might tip the balance too much in the privacy direction, but given the status quo of a balance tipped too far on the side of speech, I believe it is worth tinkering with the scale and taking the risk. In the unlikely event that the balance winds up shifting too far over to privacy, then tweaks can be made. In other words, Amber's objection certainly suggests caution, as there is indeed a risk of rampant abuses, but that is a risk, not a certainty, and we shouldn't let it paralyze us from trying to fix an existing problematic imbalance.

Amber also contends that there is no good way to determine what information about people is newsworthy and what isn't:

[H]ow do we decide what is informative and what is entertaining? What classification would the Drudge Report get? The National Enquirer? The New York Review of Books? How does the test for “entertaining” versus “informative” compare to the test we currently apply to pornography (which looks for social, literary, scientific, artistic value)? Likewise, Solove’s argument for the privacy of non-newsworthy information, such as the identity of subjects in a book or article, involves courts in normative and editorial judgments about the “proper interest” of the public and how to present a story. Courts are not equipped to make these determinations: they are not equipped to bowdlerize, censor, or recut media. And in an era of media fragmentation and non-credentialed citizen journalism, verifiability is even more vital; attempts to reduce the amount of information in stories are now more likely to make it difficult for the true picture to be discerned.

This is a powerful argument, but in the end, I believe we must make some distinctions. If we leave the decision about what's newsworthy solely to the discretion of the media writ large (i.e. anybody who posts anything online), then we must accept the judgments of the lowest common denominator. The result will be that there will be no standards or limitations at all, as there will always be somebody among the tens of millions of bloggers who has standards that would even make a tabloid seem respectable. In other words, Amber is arguing for a kind of free speech absolutism based on the difficulty of providing any limitations. But we live in a world of gray, and the law rarely gives us clear bright-line rules (as every law student discovers to his or her chagrin). Things are certainly not any different with privacy and speech, but that shouldn't be a reason for no law.

As for verifiability, it is true that if a blogger is breaking a story about secret government plans, verifiability is important. But when the information is that John Doe slept with Jane Doe, does the world really need to verify? Gossip about average Johns and Janes isn't newsworthy enough to make verifiability very valuable. Amber, of course, questions my classifying such information as not newsworthy. I'm not sure whether her objection stems from a slippery slope objection (there's no clear place to draw a line between newsworthy and not newsworthy) or from a belief that everything is newsworthy (who are we to judge what's newsworthy or not? let people judge for themselves). If it's a slippery slope objection, I believe that this doesn't imply that the law can't work. There are many cases where there is widespread consensus that something is newsworthy or not. But there are a number of gray cases too. We need not sacrifice the black-and-white because there's some gray. In other words, I believe we can and should strive to draw a line, and while there will be fuzziness around the line, not every case will be fuzzy, and we can and do live with fuzziness in so many areas of law already.

Ultimately, Amber has a very different normative attitude toward privacy:

Solove asserts that the fall of privacy subjects us to judgment from many other people, which “can lead to an oppressive amount of social control.” But only pages before he argues that it might be difficult for us to judge others at all if we knew everything about them. In a society with much less privacy than our own, is it likely that oppressive social norms could be upheld once the popularity of deviance became evident? Wouldn’t we be likely to judge people using our new baselines for expected behavior, which would include much of what we currently choose to deny?

The experience of living online will only become more universalized, giving people more of a basis for judging people and information they encounter there. Privacy will recede from the heights it achieved during our brief period of wealth and atomization. Present notions of reputation will no longer apply; as multiple personas become more difficult to maintain. All this will result in a more accurate and humanized representation: we are who we are, warts and all, and the exposure of actions and beliefs that we now keep under wraps will result in changes in social norms. We need not fear the future, and despite Solove’s concerns, the temporary dislocation of the present is no great danger either.

I don't belie