Looking Back

I can’t say that 2005 was the best year ever, but going back through the archives, at least I wrote a few marginally interesting weblog posts.
The big story for the first two-thirds of the year was undoubtedly Grokster:

Brand X, the other major internet-related case to reach the Supreme Court this year, received a decent amount of coverage here, too:

The big story of the last third of the year was the legality of the Google Book Search program. Aside from Grokster, this was the story that generated the most links to commentary:

One of the two subjects that I am hope to put more thought into over the next year is information literacy and finding ways to evaluate and manage the usefulness and trustworthiness of internet resources (both legal and non-legal):

The other subject that had some interesting posts this year and I’m sure I will think more about next year is the future of entertainment:

Indecency was another subject that was well-covered this year:

I am particularly pleased with some posts about copyright legislation, in particular:

The most detailed post I don’t remember writing was The broadest of the bands (Aug. 26).
Can a blogger avoid blogging about blogging and RSS? I think not:

Breaking out of the usual format, I tried a few different ways of posting. In November, I hosted Blawg Review #31. I liveblogged the Future of Music conference in September. experimented with podcasting and videoblogging:

Unfortunately, audio and video are more time-consuming to do well than text, but I hope to continue podcasting and videoblogging more frequently next year. I also hope to write less badly next year.
My favorite post titles for the year include:

Some other looks back on 2005 of interest:
Evan Brown, Internetcases.com: Ten intriguing Internet cases from 2005: “It’s not a compilation of cases that are necessarily important to the overall development of this area of law (for example MGM v. Grokster is not on the list), but is merely a list of cases that have either off-the-wall facts or surprising/provocative outcomes.”
David Pogue, The New York Times, 10 Greatest Gadget Ideas of the Year
JD Lasica, New Media Musings: Top 10 Tech Transformations of 2005: “1. The edges gain power. From the video and music worlds to politics and culture, power is increasingly flowing away from the media, from the political elites and from the corporate suits and into the hands of ordinary users who are collectively wielding more influence in all walks of life, mostly thanks to the Internet. The forces of freedom are steadily chipping away at the power of the forces of control. It’s pure beauty.”
And my favorite new blog of 2005? Undoubtedly Solove and company at Concurring Opinions.

Wikipedia and Authority

I initially posted this as a comment, following up to a comment by “Y456two” on Wikipedia Woes, but here it is as its own entry, because, well, it is rather long.

This portrays a fundamental misunderstanding of what Wikipedia is. Adding editors amounts to turning Wikipedia into the Encyclopedia Brittanica. Why would you want to do that? Don’t we already have an Encyclopedia Brittanica?

No– it represents the fundamental gap that separates what Wikipedia is from what it seeks to become. A user driven Wikipedia edited by panels of subject experts in various fields will be both more comprehensive AND more authoritative than a traditional encyclopedia.

If you believe that the masses are not smart enough to make their own judgements about the veracity of what they read, then, yes, absolutely, we should have a heavily regulated Internet, publishing industry, and media (sounds like China, don’t it?)

I do think that heavy internet users and information professionals over-estimate the information literacy of the average internet user, but private editorial control on a private web site is a long way from state regulation. Why do we trust articles in the NY Times more than the Washington Times or the West Podunk Pioneer Press? A reputation for accuracy and veracity. Why would one prefer to buy from a seller on eBay with a +300 feedback rating than one with no feedback rating? A reputation for being an honest dealer.
What do we know about the authors of a wikipedia entry? Why is it authoritative? We only know that wikipedia as a whole is generally accurate. But because each article is written by a different group of authors, researchers do not have an easy way of figuring out which articles are accurate and which contain blatant falsehoods or smaller inaccuracies.
Adding a series of editorial boards comprised of acknowledged experts in various fields to monitor wikipedia entries will go a long way towards increasing the accuracy and trustworthiness of wikipedia as a whole. And it is possible to do this without becoming a Britannica clone– in fact, doing so would take advantage of the same internet and collaborative technologies and processes that make wikipedia possible. It just happens to also acknowledge the fact (and, yes, it is a fact) that some people simply have more knowledge and experience in various subject matters than others. In the wikipedia model, these boards would not be simply appointed from the get-go, but could be composed of flexible memberships, with new members joining either by distinguished work in academia or business as well as by distinguished contributions to wikipedia itself.
At the very least, Wikipedia could post a list of the contributors who wrote or edited each article. This would make it possible for researchers to find out more about the authors of each individual article and make an educated decision whether to trust the accuracy of the wikipedia article.

I could say that the ‘blogosphere’ needs editors. I could claim that the problem with blogs is that there isn’t some credentialed editor who controls what is posted.

Unlike Wikipedia, the “blogosphere” is not a single entity. Individual blogs have attributes that establish their reputation for accuracy and veracity. For example, you can read my biographical information and see that my posts carry less intellectual heft than those of Prof. Goldman, for example. Unlike the millions of individual blogs posted by named or pseudonymous authors, Wikipedia presents itself as a centralized authority and strips away many of the signs that make it possible for an individual researcher to decide whether a single article is reliable. We can’t look to the author’s biography. We can’t judge the publisher’s credibility, because this publisher will post anything. We can’t look at the professionalism of the page design. The Wikipedia brand takes credibility from articles that justifiably grant credibility and it also lends credibility to articles that are not worthy of it.
The problem with Wikipedia is that it lends its brand to anyone. In the trademark context, a trademark owner who nakedly licenses a mark to anyone without keeping track of the quality of goods sold under that mark may lose the right to defend the mark. Since a trademark is meant to protect consumers and indicate the source of a good or service, nakedly licensing the mark strips away value from the mark. By allowing anyone and everybody to edit entries on wikipedia, wikipedia may squander any credibility it has attained.

As for Eric Goldman, I suppose he would be surprised to know that Usenet continues to thrive and be useful to millions of users every day.

I would challenge the idea that Usenet continues to thrive. I have yet to even load a Usenet news reader on my Powerbook, which means that I haven’t delved into that thriving medium in at least nine months and haven’t missed it a bit. People may still use newsgroups, but they have long since ceased to be relevant. How many average internet users can recognize that “alt.nerd.obsessive” denotes a newsgroup?

Here is the heart of the issue: do we trust people?

We trust people to the extent that the people have as full information as possible to make decisions. As another analogy, this is the driving principle behind securities law– we have a policy bias towards requiring publicly traded corporations to disclose information– because this allows investors to make informed decisions. The more that identifying information is witheld, the less reason we have to trust

Exit, stage left and make room for the $1,000 drink

The NY Times reports on a study which finds that the creative sector is becoming less concentrated in NYC as artists are priced out: New York, Once a Lure, Is Slowly Losing the Creative Set.
The Center for an Urban Future report Creative New York illustrates how important the creative industries are to New York:

No other place in the U.S. even comes close to matching the city’s creative assets. In fact, 8.3 percent of all creative sector workers in the U.S. are based in New York. The city is home to over a third of all the country’s actors and roughly 27 percent of the nation’s fashion designers, 12 percent of film editors, 10 percent of set designers, 9 percent of graphic designers, 8 percent of architects and 7 percent of fine artists.

Among the challenges facing the creative communities, the report summarizes:

New York faces a number of significant challenges to its creative sector, including the high cost of appropriate work space; a general lack of business skills among individual creative entrepreneurs; pressures to conform to a traditional for-profit business model; creative workers’ widespread lack of benefits such as health insurance; barriers to reaching appropriate markets; and the impact of changing technology.

The cost of housing alone makes it difficult for artists to give up their day jobs. But in addition, the nature of housing makes it difficult for artists to work out of their homes and need to rent a separate studio space. Bands have the additional cost of figuring how to get all their equipment from a practice space (usually in Brooklyn or Queens) to a club (usually in Manhattan) when none of the musicians own a car.
Finally, the report outlines some proposals that the city could enact to provide more support to the creative communities the city:

  • Create a centralized coordinating body modeled after Creative London.
  • Establish an industry desk for creative industries at the NYC Economic Development Corporation.
  • Begin to address affordability issues facing individual artists and creative enterprises.
  • More flexible support from the philanthropic community.
  • Expand market access for locally-made creative products.
  • Help creative individuals and enterprises get access to business assistance services.
  • Improve access to health insurance and other work supports for creative workers and enterprises.
  • Begin to address the creative core’s workforce development needs.

Why are artists crowded out of the city? To make room for the clubs that can charge $950 for a drink and the patrons who are willing to pay $950 for a drink. Also in today’s Times: Hey, Bartender, Can You Break $1,000?: “Served in a traditional martini glass, the cocktail is made with super-premium Grey Goose L’Orange vodka, Hypnotiq liqueur, orange and pomegranate juices and topped off with Dom Pérignon. The coup de grâce: a one-carat ruby affixed to the stirrer. And the bar tab for a Ruby Red? An eye-popping $950.”
I guess it’s just a different form of the creative arts.

Wikipedia Woes

Wikipedia is one of the best sites on the internet– volunteers compile information about esoteric topics and the entire compilation is a giant guide to the universe. The beauty of the site is that the internet community has created a vast encyclopedia without a single editor.
Nature compared Wikipedia and Encyclopedia Britannica and found that the upstart contains only slightly fewer errors: Internet encyclopaedias go head to head: “The exercise revealed numerous errors in both encyclopaedias, but among 42 entries tested, the difference in accuracy was not particularly great: the average science entry in Wikipedia contained around four inaccuracies; Britannica, about three.”
Wikipedia is becoming more frequently cited as a trusted source, despite potential for inaccuracies and often amateur writing and organization (just like this blog!) Evan Brown reports at InternetCases.com: Wikipedia and the courts: “lthough not everyone is convinced that Wikipedia can be trusted to always tell the truth, it is interesting to note that in the past year or so several courts, including more than one federal circuit court, have cited to it to fill in background facts relevant to cases before them. ”
The problem with Wikipedia is that the internet community has created a vast encyclopedia without a single editor. Entries can contain factual inaccuracies or present topics in a skewed, biased manner. Wikipedia needs editors. Who chooses the experts for a particular field?
At the Volokh Conspiracy, Orin Kerr finds an interesting relationship between the level of general interest in a subject and the accuracy of that subject’s Wikipedia entry: Checking in on Wikipedia’s Patriot Act Entry:

I have found Wikipedia entries to be quite helpful when the topic is something esoteric. It seems that when fewer people care about a topic, the better the entry tends to be. When lots of people care about something, lots of people think they know something about it — or at least more people feel strongly enough that they want to get their 2 cents worth into the entry. When lots of people have strong opinions about a topic, even uninformed ones, the Wikipedia entry for that topic ends up being something like Tradesports betting odds on who Bush would pick to replace Justice O’Connor. It’s an echo chamber for the common wisdom of the subset of people who use the site more than anything else. And if the views in the echo chamber happen to be way off, then so is the entry.

This suggests that the common wisdom may be entirely backwards. Instead of greater interest leading to greater accuracy, the more people who have a strong interest in a topic, the more likely it is that discredited or inaccurate theories will find their way into that topic’s Wikipedia entry. Vocal critics of a widely accepted theory may be more likely than well-respected experts to spend time crafting the Wikipedia entry, so that the end result is that the Wikipedia entry is more likely to reflect the generally discredited minority view.
In an op-ed piece in USA Today, John Seigenthaler discussed A false Wikipedia ‘biography’: “I had heard for weeks from teachers, journalists and historians about “the wonderful world of Wikipedia,” where millions of people worldwide visit daily for quick reference “facts,” composed and posted by people with no special expertise or knowledge — and sometimes by people with malice.”
Mike Godwin thinks that this problem is not limited to Wikipedia, but is endemic of the Internet as a whole: Wikilibel: “To me, the notable thing about this incident is that it seems to have given John and others doubts about Wikipedia in particular, when in fact the problems he sees are endemic to the Web and the Internet at large.”
Unlike posting a random website on the internet at large containing the same defamatory text, posting the information at Wikipedia gives it credibility. The first place most internet users look to assess the credibility of a piece of information is the source. Because Wikipedia contains a growning number of thorough, accurate and well-written entries, Wikipedia as a whole is gaining a reputation as a trusted source for information. According to the Wikipedia entry about Wikipedia, “Articles in Wikipedia are regularly cited by both the mass media and academia, who generally praise it for its free distribution, editing, and diverse range of coverage.” An incomplete, incorrect or defamatory article posted to Wikipedia gains from the authority of the accurate entries.
Eric Goldman believes that Wikipedia Will Fail Within 5 Years: “Wikipedia inevitably will be overtaken by the gamers and the marketers to the point where it will lose all credibility. There are so many examples of community-driven communication tools that ultimately were taken over—-USENET and the Open Directory Project are two that come top-of mind.”
Unless Wikipedia starts to implement a strong editorial policy, the entire project will become suspect because of entries like the one about Siegenthaler. Wikipedia is at a critical point in that it has enough entries and reputation that by continuing to allow anyone to edit any entry may harm the future development of the project.
As with any controversial topic these days, some lawyers are already preparing a Wikipedia Class Action.

Hijacking RSS Feeds for Fun and Profit

Full-text RSS/Atom feeds are wonderful for information addicts. A newsreader brings new articles and posts in from around the web and makes it possible to skim through hundreds of sites very quickly. Well, the upper limit is probably around 200 where reading blogs is not one’s full-time vocation.
From a publisher’s perspective, full-text feeds cause problems. Such full-text feeds make it especially easy to enable copyright infringement.
Two of my favorite hockey blogs, Puck Update and James Mirtle, recently switched to publishing only abridged feeds after finding their posts providing the content for a third-party web site.
Merely publishing an RSS feed does not grant a license to republish the content on another site and republishing the full text of the content without permission is a prima facie example copyright infringement. But, what about when a service republishes the full text because a user subscribes to a full-text feed through a hosted service? What is the difference between a user-driven republication and one initiated by the republisher? Is it merely the commercial intentions of the republisher? Does it have to do with source identification and misattribution? The right of publicity?
Micro Persuasion’s Steve Rubel is also a victim of Blog Content Theft: “This problem is only going to grow over time. Perhaps some digital watermarking technology needs to come into play here. Or, once again, Google needs to step in and shut down all Adsense sites that are deliberately spamming the blogosphere and bloggers. Anyone have other ideas?”
Daniel Solove suggests one way to deal with Blog Post Piracy:

There is, of course, copyright law. The creative commons license for Rubel’s blog states that the work must be attributed to its author and it cannot be used for commercial purposes. The pirated post doesn’t contain his name on the post or the name of his blog, but it does at least have a link to the original post on Rubel’s blog. Is this sufficient enough attribution? As for commercial purposes, the blog copying Rubel’s posts is displaying Google Ads.

What about hosting an RSS feed that republishes the content of another RSS feed? What if that RSS feed consists of pointers to audio files hosted on the original publisher’s server? This is the situation with at least one podcast “service”– it is publishing its own RSS feeds that link to a podcaster’s audio. These feeds do not hold themselves out to be the publisher of the content, but by placing their feeds in podcast directories, these hijackers manage to control the connection between the podcaster and her subscribers. Colette Vogele discusses potential legal solutions: RSS Hijacking? A threat to podcast and blogging infrastructure?:

Since RSS and podcasting is new technology, there does not exist a handy “anti-RSS feed hijacking statute” out there on the books. There are, however, other possible claims that a lawyer can consider. For example, I’m brainstorming on a number of claims including unfair competition, trademark infringement/dilution, DMCA takedown options, computer fraud and abuse, tresspass, right of publicity, misappropriation, and the like.

Read the comments for additional technical methods of approaching this problem.
Cyberlaw Central’s Kevin Thompson discusses: RSS Hijacking: Is it Copyright Infringement? “Alleging copyright infringement should work, at least for purposes of a cease and desist letter.” Thompson goes on to note, “Interestingly, although the RSS feed itself could be copyrightable by itself if it contains sufficiently original material, this method of infringement doesn’t copy the RSS feed itself. The interloper’s site just links to the existing feed which remains intact at the podcaster’s site. The interloper just acts like any other subscriber to the feed, making it difficult to detect.
Finally, if you are going to repost content from my blog, all I ask is to properly attribute the author and to maintain the indications of quoted text– don’t make it appear that “Rafferty” wrote something that should be properly attributed to Easterbrook. Not that it should be too difficult for a careful reader to distinguish…
Previously: Syndication and Copyright: “What are the norms for using, repurposing and republishing syndicated feeds?”

One continent and an undisclosed distance

What does it say about this season of the Amazing Race that the best part of the entire season was the teaser for the next season? 5 continents, 60,000 miles, 11 teams of 2! Hot girls! Nerds! Red Rocks! Fighting elephants! Moscow! Brazil! Mt Fuji! Monkeys!
From what I understand, the idea for the Family Edition of the Race came from CBS, not from the producers of the show, World Race Productions. Maybe the reason that this season was such a weak version of the Race to make it suck, so that the producers could develop future versions with as little network interference as possible.
Considering the rest of the season, this episode actually wasn’t too bad. The tasks were all relatively interesting. Killer fatigue finally hit some teams. This was the second double leg in the race, instead of the usual two-leg final episode with a pit stop in the middle. The roadbock geography challenge was one of the best final tasks of recent seasons– much better than eating pizza or finding a cigar store. Plus, the final task led directly to a foot race to the finish line.
Apply for TAR 10. Or don’t, so that I have a slightly less unrealistic chance.
Previously: What happened to the “Amazing”?

Fun with maps

This Interactive NYC Transit Map Google map mashup is really neat. Perhaps in the next version, walking directions will accurately reflect ways people can walk, rather than simply going as the crow flies.
Here at the AndrewRaff.com research labs, we’re working on a potentially useful subway mapping project, to be announced early next year. Hopefully, early next month…

Law 2.0

The Wired GC wonders when the law will migrate to Web 2.0: Web 2.0, Heading West to Law 2.0: “What is needed to make Law 2.0 applicable to legal research is for standards to emerge: how courts and agencies will preserve their work (html or pdf?), how they will announce it (RSS?), how they will categorize it (tags?), and how we will search it (guess who?).”
Let’s take a look back, all the way to the year 2002 [music cue “In the year 2000 (and 2)”], where the geeky legal blogosphere was looking forward to courts publishing decisions in a standard, open XML format. This would allow greater public access to the law and make it possible for law firms and information specialists to create their own value-added databases: Free your data and the rest will follow. That post isn’t particularly well-written, but it does hit on the tip of the iceberg of the potential for using the RSS, XML and the web to distribute court decisions.
“Alice” (nka BK) noted some of the advantages to having a central authority for caselaw: More Geek: “I predict there won’t be any critical mass happening on that front in the courts anytime soon (and probably not within our lifetimes). People may have grown up using computers, but there are still many many people who don’t understand anything but basic application use (and can’t even take advantage of the advanced features of those applications). Computer knowledge needs to be driven to comparatively astronomically high levels before judges — even those that grew up on computers — will see the need for such a system, especially considering the time, expense, and potential problems with switching over, even if the implementation of the system is transparent.”
As lawyers and judges become more web-savvy and enjoy using Google, they may wonder why they can’t access caselaw using a search engine that is as fast and friendly.
Denise Howell looked at Trackback and imagined a scenario where “legal citators improve accuracy and stay in business because their editorial judgment continues to have value. Legal research nevertheless becomes more accessible and less costly. This probably won’t happen any time soon, but it’s not difficult to see how techniques being tested in the weblog arena now may shape the way research is done and laws are made down the road.” Back Linking, Forward Looking
Are courts any closer to publishing decisions in an open format and using RSS/Atom (or a similar technology) to make it possible for more aggregators to create value-added services? Probably not.
The good news is, at least, that Westlaw added RSS feeds to its Intraclip service, which allows subscribers to create search watchlists. LexisNexis only offers feeds for some press releases and legal news, but not caselaw.
A different type of Law 2.0 is WikiLaw, which aims to be an open-content resource. I’m not entirely sold on the concept– can such a resource every be considered an authority? Will it be gamed for litigation advantage by counsel?

Competitive Advantage?

Market researchers Ipsos-Reid found that Only 2% of Consumers Care About Legal Issues With Downloading Music: “Only 2% of people who paid a fee to download music from the Internet cited that the contentious legal issues surrounding online music distribution concerned them.”
In other words, most people use legitimate services because those services are more convenient, easier to use, or offer better quality and features than illegal P2P.

HarperCollins Plans to Scan

The Wall St. Journal reports that HarperCollins will scan its books and allow search services to index those scans while itself controlling the full-text in digital form: HarperCollins Plans to Control Its Digital Books

Instead of sending copies of its books to various Internet companies for digitizing, as it does now, HarperCollins will create a digital file of books in its own digital warehouse. Search companies such as Google will then be allowed to create an index of each book’s content so that when consumers do a search, they’ll be pointed to a page view. However, that view will be hosted by a server in the HarperCollins digital warehouse. “The difference is that the digital files will be on our servers,” said Brian Murray, group president of HarperCollins Publishers. “The search companies will be allowed to come, crawl our Web site, and create an index that they can take away, but not the image of the page.”