Monthly Archives: October 2009
Oct 27, 2009 Michael Madison
Joshua Fairfield’s The God Paradox takes an unambiguous normative proposition—that operators of online networks should operate those networks in ways that mirror common carrier principles—and justifies that proposition in unmistakably pragmatic terms: Doing so may or may not make users of those networks better off, and may or may not make society better off. But it will clearly make the operators themselves better off, because reducing their control over user behavior is likely to reduce their risks of liability. That’s the “paradox.” Indirectly, that approach will benefit users and society.
The article situates its “less control means less risk of liability” argument in the context of multiplayer online videogames and other virtual worlds, which are operated by firms that refer to themselves, in context, as “game gods”: both formally and functionally, the operators claim the power to monitor and control all aspects of individual user or player experience, including both online behavior and communication with other users. In part “game gods” justify this power in terms of maintaining the artistic and competitive integrity of the game environments. That justification is not addressed in this article. In part the “gods” justify this power in terms of self-interest: Control reduces liability. Maintaining an acceptably low risk of liability is essential to maintaining the gods’ incentive to supply the game environments.
The “game gods” metaphor gives the article a compelling hook, but the author is wise to avoid a conceptual or theoretical exploration of the issues in terms of deities and theologies. His question is the more straightforward question that operators of virtual worlds and their lawyers would like to have answered: Is this latter justification accurate? The article walks through a series of possible legal claims that might be posed (and that have been posed) in virtual worlds contexts, against game gods, by virtue of one player’s conduct vis-a-vis another and/or vis-a-vis general public policy. There are discussions of claims based on intellectual property rights (both copyright and trademark), claims based on common law rights (property, tort, and contract), and public law claims, with consideration given to indirect liability theories and safe harbors with respect to both copyright (Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512 (2006)) and tort (Communications Decency Act (DCA), 47 U.S.C. § 230 (2000)).
Because the article does not indulge the conceptual side of these questions, it leaves a lot of potential questions unanswered. The “game gods” and their relationship to virtual world “inhabitants” evoke some of the fundamental questions of cyberlaw, particularly whether and how public policy should enable the potential of vast online networks, and whether and how public policy should treat online networks differently than they treat offline systems. Yochai Benkler’s The Wealth of Networks and David Post’s recent Jefferson’s Moose are obvious reference points for future development of the “game gods” argument. Does the “god paradox” argument “scale”; in other words, to what extent does apply to online networks beyond virtual worlds? The author’s recommendation that game gods should adopt a “common carriage” model of self-regulation invites discussing whether that model should be adopted via formal public policy (by extension of kind of “net neutrality,” for example); the author expresses disclaims taking a position on the net neutrality question, and is equivocal regarding the extent to which a different form of “common carriage” should be imposed on particular environments. What factors would inform adaptation of a common carriage model to a particular setting? Common carriage as a model for communications networks is a phenomenon with a rich history. To what extent does that history read on virtual worlds, and should it? Last on my list of salient questions to be explored further is the extent to which the thesis of the article depends on specific characteristics of the community of the governed. Delegating policing to game players can help absolve the game god of liability risk. Are there other attributes of the player population that need to exist to ensure that the game environment is not only acceptably risk-free, but also sustainable?
In the cyberlaw literature as a whole, these are lively topics; there are few if any commonly accepted answers. In the context of this article, I regard their existence as a virtue rather than a drawback. As much as I enjoy a great conceptual analysis, I also appreciate a straightforward and direct practical argument. The cyberlaw literature to date has, at times, indulged the former at the expense of the latter. As the culture and economy of virtual worlds get ever larger and more complex, lawyers need answers. This article offers some.
Oct 26, 2009 admin
Cyberlaw Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor James Grimmelmann
New York Law School
Professor A. Michael Froomkin
University of Miami School of Law
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Ann M. Bartow
University of South Carolina School of Law
Professor Herbert Burkert
President of the Research Center for Information Law
Universität St. Gallen
Professor Susan Crawford
Cardozo Law School
Professor Laura DeNardis
Executive Director of the Information Society Project
Yale Law School
Professor Niva Elkin-Koren
Dean, Haifa University Faculty of Law
Professor Michael Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Faculty of Law
Professor Ian Kerr
Canada Research Chair in Ethics, Law & Technology
University of Ottawa, Faculty of Law
Professor Michael J. Madison
Associate Dean for Research
University of Pittsburgh School of Law
Professor Paul Ohm
University of Colorado Law School
Professor Frank Pasquale
Schering-Plough Professor in Health Care Regulation & Enforcement
Seton Hall University Law School
Professor Jonathan Zittrain
Co-Director, Berkman Center for Internet & Society
Harvard Law School
Oct 25, 2009 admin
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve.
Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.
Ordinarily, a Jotwell contribution will
- be between 500-1000 words;
- focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
- begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.
Initially, Jotwell particularly seeks contributions relating to:
We intend to add more sections in the coming months.
References
Authors are responsible for the content and cite-checking of their own articles. Jotwell editors and staff may make editorial suggestions, and may alter the formatting to conform to the house style, but the author remains the final authority on content appearing under his or her name.
- Please keep citations to a minimum.
- Please include a hyperlink, if possible, to any works referenced.
- Textual citations are preferred. Endnotes, with hyperlinks, are allowed if your HTML skills extend that far.
- Authors are welcome to follow The Bluebook: A Uniform System of Citation (18th ed. 2005), or the The Redbook: A Manual on Legal Style (2d Ed.) or indeed to adopt any other citation form which makes it easy to find the work cited.
Technical
Jotwell publishes in HTML, which is a very simple text format and which does not lend itself to footnotes; textual citations are much preferred.
Contributors should email their article, in plain text, in HTML, or in a common wordprocessor format (Open Office, WordPerfect, or Word) to ed.jotwell@gmail.com and we will forward the article to the appropriate Section Editors. Or you may, if you prefer, contact the appropriate Section Editors directly.
Oct 19, 2009 admin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
Jotwell will help fill that gap. We will not be afraid to be laudatory, nor will we give points for scoring them. Rather, we will challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We will be positive without apology.
Tell us what we ought to read!
How It Works
Jotwell will be organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, will be managed by a pair of Section Editors who will have independent editorial control over that section. The Section Editors will also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors will commit to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section on a fixed day every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication. Our initial sections will cover administrative law, constitutional law, corporate law, criminal law, cyberlaw, intellectual property law, legal profession, and tax law — and we intend to add new sections when there is interest in doing so.
For the legal omnivore, the ‘front page’ at Jotwell.com will contain the first part of every essay appearing elsewhere on the site. Links will take you to the full version in the individual sections. There, articles will be open to comments from readers.
The Details
Learn more about Jotwell:
