Apr 29, 2010 Paul Ohm
M. Ryan Calo,
People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship, 114
Penn. St. L. Rev. (forthcoming 2010), available at
SSRN.
To glimpse the future of information privacy law, you should look at the work coming out of two Stanford Law School centers, the Center for Internet and Society and the CodeX center. In the past few years, these centers have housed a steady stream of fellows and clinical professors who have written some of the most interesting, vibrant, and future-looking scholarship in this field. For example, Lauren Gelman’s article on “blurry-edged” boundaries—already lauded in these pages—is a significant contribution, one that has advanced our understanding of the complicated relationship between social networks and privacy. Another excellent example is Structural Rights in Privacy, written by Harry Surden—now my colleague at the University of Colorado—during his stint as a fellow at CodeX, about how technology sometimes protects privacy in ways we fail to appreciate until the technology changes. I write now to focus on another scholar in the Stanford centers, Ryan Calo, who has embarked on a fascinating project with an excellent article, People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship, forthcoming in the Penn State Law Review.
Calo focuses on “technologies designed to emulate people,” such as robots with expressive eyes or software assistants designed to look like people. We’ve come a long way since Microsoft’s Clippy the paperclip first annoyingly noticed that it looked like I was writing a letter. Computer scientists, roboticists, and companies have poured time and creative energy into designing interfaces and devices that look and act human, and they’ve made great strides in the process. To document these advances, Calo cites with care a rich, emerging, technical literature, importing dozens of studies and papers into law, saving the rest of us a lot of heavy research lifting.
Calo proves to be much more than merely an import-export specialist, however, because he skillfully examines what the rise of anthromorphic robots means for privacy. By building upon a second body of literature—studies from psychology and communications surveying how we behave when we feel as if we’re being watched by synthetic people—he sees both peril and promise in the rise of the robots and, interestingly, finds the source of both in the same psychological observation: we become inhibited in the presence of a human face, even one we know to be artificial. As we invite robots into our homes and program faces into our software, we should be mindful of this psychological response, because this kind of inhibition deprives us, as Calo cites, of Alan Westin’s “moments ‘off stage’,” leading us down the path to Ruth Gavison’s “terrible flatness” and Julie Cohen’s “bland and the mainstream.”
But Calo turns the lemons of inhibition into lemonade, by suggesting that we should sometimes intentionally trigger inhibition, for example when asking for consent to invade someone’s privacy. Perhaps rather than displaying only a traditional, text-laden privacy policy, Calo argues, websites should also include a picture of a pair of eyes above the text, or perhaps, I would add, lawmakers should force them to do so. This is a fresh spin on old, tired debates about notice and consent: tell me how you’re using my data, and I won’t read and I won’t care; put a human face on the page, and I’ll sense “a visceral reminder that the data being collected will be used and shared.”
This is rich, valuable scholarship, but what elevates his article even further is how Calo uses these observations about anthromorphic privacy triggers to critique the broader Information Privacy Law project. Calo argues, echoing Julie Cohen, Arthur Miller, and Dan Solove, that too many other privacy scholars focus only on data collection and use. He wants to broaden our viewscreen because sometimes our privacy can be invaded even when none of our data is released at all. Many of us have had this vague thought—in the practical trenches of public policy, privacy is almost always seen only through the lens of collection and use—but Calo replaces vagueness with substance, giving us a concrete factual context with which to play out the pros and cons.
This is an excellent article by an exciting junior scholar and, I gather, only the first in a planned series of articles. I eagerly await the next installment.
Mar 1, 2010 Herbert Burkert
“Since the beginning of time, for us humans, forgetting has been the norm and remembering the exception.” (2) Advances in information technology have been shifting this default, Viktor Mayer-Schönberger, an Associate Professor of Public Policy and Director of the Information and Innovation Policy Research Centre at the Lee Kuan Yew School of Public Policy, National University of Singapore, argues. This shift may have grave consequences. Therefore, the default needs to be reset. What these grave consequences are and how the reset can be managed are the core issues of his book.
At this stage it is my time for full disclosure: The author of Delete has been a long time friend. He is Austrian and I am German. We befriended at a time when the people in the field of information and law were all on a first name basis, and their numbers such that you could easily remember them without any technical support. Both our nationalities point to national memories, which, although different, keep haunting us and our countries, and Mayer-Schönberger does not leave them unmentioned. And finally, at about the time the book came out, the city archive building of my hometown Cologne, containing the city’s 2000 years of memory, collapsed into the excavation site of a subway tunnel. All this did not make the reading of Delete the reading of just another treatise.
Although the book focuses on memory, it is in essence about what I believe to be the key issue of Cyberlaw: the discovery that technology forces silent assumptions of law to speak up. Laws (and so do customs) build on mostly tacit assumptions on what is physically, organizationally, economically and socially possible at a given time. These assumptions works as a silent restraint on what you may do to remain covered by the rules—this restraint being additionally safeguarded by some general principles like proportionality. Technological developments move the barriers of what has been assumed as being possible. And suddenly, we have to take a stand on these restraints: Did we accept them because we valued what they had protected, even if only silently, or by sheer ignorance of what the future might hold? Or did we accept them, more or less grudgingly, because we assumed that there was no way to ever overcome these restrictions? In the former case we have to look for solutions that help to restore at least the functions of these restraints. In the latter case, we have to adjust the rules to receive change. Which road to take makes up the arguments of Cyberlaw.
Delete argues for an equifunctional restoration of the “natural” processes of forgetting in the face of the technological possibilities of total recall: As the author points out in chapter 4, after some general introductions into the scope of individual, social and technical memory in chapters 2 and 3, technologically enhanced memory carries the risk of exacerbating imbalances of informational power, it does not ensure information quality, it stifles change, it negates time, it makes us vulnerable by limiting our capability to judge, it bars us from reconstructing the past, it limits contextual understanding; all this not only affecting individual self-understanding and interpersonal relations, but also our institutions of collective memory. This does not remain unnoticed; there are, Mayer-Schönberger concedes, compensations and remedies at work, and he goes through them in chapter 5. There are some who think we will adjust as we have always adjusted to technological change, some preach information abstinence, others favor an ecological understanding of the information environment where we handle information sparingly. There are regulatory structures, provided for example by privacy laws, which (also) address past information and its impact on the present and the future, or contractual constructs which would allow for negotiating about information. And there are technical solutions, some of them already tested in a digital rights context, which might be adopted. Even full contextualization and total transparency might be promising counter strategies. After analyzing all of them, the author concludes somewhat resignedly that ” … to combat the dangers posed by digital remembering, it may require us to give up on finding a perfect answer, and instead pragmatically aim for a solution mix …” (168) But he does not leave us with this, he wants to contribute with an own solution; not a comprehensive one, rather a contribution to that solution mix: and so in chapter 6, he suggests instituting expiration dates for information, by a combination of contractual exercise, technological design, and legal rules providing a suitable environment for such an installation. Expiration dates for information are not meant as a panacea, but as a way to help to reset at least the default from remembering to forgetting.
Reading is often also searching for something to take with you well beyond what the text you read is about. A message, perhaps, that unsettles you, or perhaps confirms an insight which you thought you would only be sharing with a very few. In German, we call this Lesefrüchte (fruits of reading). I found something like that where—in the context of remedies against digital remembering—Mayer-Schönberger discusses and basically discards current DRM systems as a feasible solution to control one’s own information. He believes that—as a basic prerequisite to make such a solution feasible at all—one would need “… to create usage languages that more adequately describe an individual’s choice of sharing her information for a specific purpose under certain conditions.” (151) This is the software designer speaking (part of the author’s activities are directed at designing software), and he rightly calls developing such a language a “tall order.” But this is – I believe – the task that is unavoidable to take on for the future of Cyberlaw: developing an adequate language to describe and prescribe information handling in our societies. If Cyberlaw as a discipline seeks to contribute something original to law in the Digital Society, it has to supplement its methodology. Just as Civil Law has incorporated economic insights of the 19th and 20th century into its methodology by developing the law and economics approach, Cyberlaw will have to supplement its tools with a law and information toolset to grasp the conceptual, technological and social changes introduced with digital technologies. Such a language would be an essential step. There are already examples of such attempts, compiled, for example, in a 2004 book edited by Urs Gasser, the Executive Director of the Harvard Berkman Center for Internet and Society: Information Quality Regulation: Foundations, Perspectives, and Applications (2004).
Reading is always engaging in a text, and “engaging” evokes the terminology of boxing. There are texts you feel you have to fight to win. There are texts like a friendly chat by the ringside, where you just can let go. There are texts that train you, you read and listen and learn, and there is little else you can do. And then there are the sparring sessions. You have to be on full alert, you have to give what you have, but there is an underlying understanding between you and the text that you do it for a common cause. This book, in its chapters 4 and 5 in particular, is laid out like an invitation to such a sparring session. There you find the detailed arguments, spread out one by one. Get ready to highlight where you agree, note contradictions and arguments not carried through to their consequential end, and make annotations where you feel a new punch. The session will be worth the effort.
Jan 28, 2010 Ann Bartow
In this article Lauren Gelman discusses the tensions between free speech and privacy concerns on what she calls social networks with “blurry edges,” where information primarily intended for an audience comprised of friends and family members is available for the whole world to access. While these networks facilitate online community building, she says, they also create “an illusion of privacy that the law fails to recognize.” People think they have privacy through obscurity online, so they do not make efforts to fence potential trespassers out of their e-spaces. And they want to be accessible to friendly visitors, so they forgo the virtual gates and vicious dogs.
Gelman illustrates the concept in meet space by analogizing to the white pages of a phone book. Though most people do not want to receive calls from strangers, they prefer to be listed because they want some people to be able to ascertain their phone numbers and call them, some of the time. Online, people post pictures and other information without password protecting it, perhaps believing that people who do not have a wholesome interest in the material will bypass or ignore it. This creates externalities: When the openly available content references or depicts other people, those referenced folks are subject to the same level of exposure, but without having any choice in the matter. The more personal the information posted is, the more vulnerable everyone involved becomes.
Gelman asserts that there are strong incentives for people to publish a lot of information about themselves and others in a publicly accessible way, because they want to participate robustly in online life. But they do so with a false illusion of privacy, not realizing that the legal regime currently in place provides few tools for restricting the flow of information in cyberspace. That the government may be willing to compromise free speech values for commercial reasons, such as the protection of copyrights, but generally not for privacy interests, is a bitter lesson many people learn too late. They expect that there are laws to protect them from being damaged by others online. But they are wrong.
Gelman explains the decreasing role of intermediaries in the distribution of information online, and how the lines between the public record, and information that was or should be kept private, have disappeared. Once something is published on the Internet, the information is presumptively public, regardless of the intent of the poster. This comes as a terrible surprise to people who treated blogs like diaries, and used them to record their deepest feelings and emotions about evens like childbirth, divorce, cancer treatments, or the sexual harassment they are encountering at work.
Gelman proposes implementing a tool with which people could tag their content with privacy preferences, following the approach Creative Commons uses with respect to authors’ copyright desires. She would deploy it in conjunction with social norms that respect expressed privacy preferences “until and unless they conflict with stronger interests or implicate free speech values.” If I read her correctly, she believes these norms are already mildly extant, they simply need to be cultivated. Bringing privacy norms into closer alignment with copyright norms is an interesting proposition, in part because I’ve seem this occur organically on blogs, when writers who feel their privacy has been invaded couch their complaints in the language of plagiarism and theft.
This article was enthusiastically recommended to me by James Grimmelmann. I appreciated reading it because it lays online privacy issues out simply and clearly, with good illustrative examples. I do not share Gelman’s confidence that respectful social norms would expansively emerge once privacy preferences are made clear on a broad scale. I’m dubious that many privacy disputes arise from ignorance about a given poster’s privacy preferences. Often those can be ascertained by simply e-mailing or otherwise contacting the poster and asking. I fear that too many Internet users vigorously accord themselves potent free speech rights that trump privacy concerns, and that this is a norm more deeply instantiated within cyberspace than respecting privacy ever will be. And there is also a depressingly level of raging hypocrisy among people who believe they can say or do anything they want because their cause is just, including the extensive deployment of racism, sexism, and/or excessive generalized nastiness against anyone who expresses an “incorrect” political opinion.
People who are generally inclined to behave decently probably do not need reminders to do so. The people who need to be reminded to be decent may be resistant to new norms that cut against their previous antisocial inclinations. But I like the idea of the privacy tags anyway, because they could make visible the enormous demand for control over personal information that is currently unmet by either law or technology. And I’m open to the possibility that I am wrong, and that Gelman’s optimism about the potential for more civil online interactions is warranted. She wrote a fine article that would work very well in a Cyberspace Law classroom because of its clarity and fresh perspective.
Dec 21, 2009 Frank Pasquale
Anthony Varona,
Toward a Broadband Public Interest Standard, 61
Admin. L. Rev. 1 (2009), available at
SSRN.
I was recently reading Bob Garfield’s book The Chaos Scenario, which describes the accelerating deterioration of old business models for mainstream media. Garfield’s weekly podcast/radio show, On the Media, has meticulously documented the problems journalists, musicians, and news programs are encountering as content converges onto broadband-based intermediaries. In the face of all these dramatic changes, what are legal scholars adding to the debate?
In cyber- and media law scholarship, Anthony Varona deserves special notice for integrating the two fields in his recent article “Toward a Broadband Public Interest Standard.” Varona tries to revive an old and oft-neglected standard for broadcasting—the public interest—for the digital age. In areas where scholarship too often degenerates into arid formalism, libertarian rejectionism, and toothless jeremiads, Varona is a breath of fresh air. He has articulated both a comprehensive justification for better broadband regulation and a method of achieving it. The article is both a rigorous intervention into extant debates on network neutrality and importantly demonstrates (and helps remedy) the partiality and ideological character of many of those debates.
Varona’s work connects two lines of thought. First, he has authored an intervention in the network neutrality debate—a controversy over the degree to which carriers and internet service providers should be obliged to protect consumer interests and guarantee a level competitive playing field online. Second, Varona has evaluated strategies for expanding access to broadband internet. He has canvassed a wide variety of sources to convey an accurate (and alarming) picture of how many individuals in the US are shut out of access to broadband (a service so important that Finland recently declared a right to it). He identifies the cultural and political importance of broadband access, and the unacceptable inequalities that result when low and middle income people are cut out of this new virtual public sphere. He has crunched the numbers and identified just how little a subsidy is needed to get universal broadband. I find that kind of factually-intensive analysis particularly important, because while I’ve heard about the need for subsidies from many different activists, I have only encountered an exact price estimate in Varona’s work. That is a good step forward for the digital divide debate.
Varona’s intervention in the network neutrality debate here is very important. He recognizes that an “antitrust lens. . . does not encompass the totality of harm a non-neutral Internet would cause to diverse political expression, noncommercial content, and democratic engagement generally.” As the recent Candeub/Frischmann letter to the FCC reflects, an increasing number of scholars are recognizing the bias that a purely antitrust-based analysis of broadband can result in. Varona supplements this partial debate by developing an analysis that goes beyond economics and takes into account the cultural and political dangers of “economically efficient” vertical integration. After reading his work, readers can better critically interrogate the pervasive complacency about media concentration that has too often characterized FCC policymaking during the second Bush administration.
Varona also has a unique command of the multifarious literature on the market structure of current internet access providers and the politics of municipal provision that attempts to supplement or supplant them. Industrial structure here is important because of the “cable/DSL” duopoly—the vast majority of those seeking speedy access to the internet only have access to zero, one, or two providers. For some time the “deregulationist” school of the network neutrality debate has been predicting the entry of a plethora of new options, such as WIMAX, satellite, and cell-phone access to the internet. While some of these services are coming online, Varona reminds us of just how slow that access is developing, and how little targeted regulation threatens it.
Varona also focuses on the consumer-education tactics common in cutting edge work in behavioral economics, proposing a market-oriented approach to developing demand for broadband among those able to pay for it. Varona evinces a sophisticated understanding of the role of cross-subsidization in infrastructure—how payments by those well-able to afford a service can help contribute to a network that can be configured to help everyone. Given increasing inequality in the US, this is a shrewd approach to assuring universal access, sure to enrich (and be enriched by) extant scholarship on access to health care, energy, roads, and education.
Varona also manages to untangle the bramble of lawsuits now undermining municipal efforts to extend access to broadband. His analysis of the relevant federal and state statutes is perceptive. He convincingly and concisely marshals the best arguments against these lawsuits, seamlessly combining doctrinal and policy arguments. Varona painstakingly contextualizes the stakes of this policy space.
Varona is one of very few scholars to go beyond discussing the assurance of access to the internet to proposing a realistic plan for improving what users find online. Having studied other nations’ efforts to cultivate indigenous entertainment options and search engines, I find Varona’s ideas for promoting deliberative spaces online both consistent with past efforts to improve cultural infrastructure and importantly building on them. His proposals for public fora and public broadband content online are convincing and appear increasingly important given the dangers of corporate control over online spaces. His work nicely complements Dawn Nunziato’s and others working in the field of network neutrality—for if those advocating network neutrality don’t get their way, or are undercut by a Lochnerized first amendment absolutism, it will be crucial to create spaces online with publicly accountable standards for access and prioritization. My own work on search engines—whose methods of prioritizing content are tightly held trade secrets—convinces me that the research Varona has done here is crucial to the development of spaces on the internet that are transparent and contribute to democratic dialogue.
Though I have focused on the academic contributions of Varona’s article, its potential influence on practical efforts to improve the public sphere is very promising. James Fishkin, the premier scholar of practical instantiations of deliberative democracy in real space, would likely find in this work an exciting translation of such ideas into the networked public sphere. Varona has suggested very practical responses to Cass Sunstein’s worries about “narrowcasting” and the decline of common knowledge of news and civic life. Varona has managed the rigorous application of well-defined normative commitments to pressing social problems. He has addressed what is perhaps most important to the preservation of democracy—a way of assuring that our communications networks and fora actually focus public attention on the most important problems we face. Works ranging from Walter Lippmann’s The Phantom Public to Bryan Caplan’s recent The Myth of the Rational Voter have lamented an American populace too unengaged to make democracy work. While the task here is difficult, Varona shows how law can contribute to the communications infrastructure needed for a better public sphere.
Nov 9, 2009 James Grimmelmann
Michael Risch’s Virtual Third Parties, 25 Santa Clara Computer & High Tech. L.J. 416 (2009) tips the scales at a mere eleven pages—but it punches far above its weight class. He gives a clear and straightforward reading of third-party beneficiary doctrine in contract law to put a new spin on old problems of online power.
Risch’s subject is virtual worlds, where the immense technical power of the world’s provider is so well-recognized that it has its own shorthand name: the “God Problem.” If Blizzard wants to exile you from World of Warcraft, confiscate everything you own in-world, or stick your avatar in the stocks, their control over the servers lets them do it with a few keystrokes. Your avatar’s arms are never going to be long enough to box with a game god whose software controls arm length.
This power imbalance has generated a rich scholarly literature concerned with the rights of virtual world users, from Jack Balkin’s work on protecting free speech interests to Joshua Fairfield’s work on protecting property interests. Legally, though, users are faced with an uphill struggle; standing between them and the game gods are the user agreements they clicked through when signing up. These agreements are infamously one-sided; the world provider typically reserves vast freedom of action for itself while binding users to a whole panoply of terms restricting their conduct.
Scholars concerned with user rights, then, have typically had to make one of two moves. Some reach into the thousands of law review pages on the contractual bona fides of clickthrough mass-market contracts, looking for a doctrine that would void or modify them. First-year staples—consideration, mutual assent, offer and acceptance, and unconscionability—make regular appearances. Other scholars reject the contractual frame altogether. Fairfield has powerfully argued that bilateral contracts are simply inadequate for the complex governance problems of virtual worlds, and that other bodies of law will necessarily have to pick up the slack.
Risch doesn’t so much advance these debates as cleverly sidestep them. His point of departure is a familiar but underappreciated truth about virtual worlds (and online services in general). A provider can also harm its users by doing nothing. Virtual worlds are filled with griefers, gold farmers, and spawn campters. It only takes a few immature jerks to ruin a wiki or a discussion board. A provider that sets rules of conduct and then does nothing to enforce them leaves users at the mercy of the worst of their fellows. The average World of Warcraft user probably wants Blizzard to ban more accounts, not fewer.
Thus, Risch asks not whether users should be able to escape from user agreements, but whether they should be able to enforce user agreements against each other. This is an almost deceptively simple question, and section 302 of the Restatement (Second) of Contracts is directly on point. Users are third parties to each others’ user agremeents, and according to the Restatement, a contract is enforceable by a third-party beneficiary if the “circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.”
For examples, Risch looks to common user-versus-user disputes in virtual worlds, such as virtual property transactions gone bad, griefing, and impersonation. These are all situations in which the misbehaving user is actually in breach of the user agreement; they’re also all commonly underenforced by the world provider. He asks whether the circumstances suggest an intent to let other users enforce the terms of the agreement. The answer turns, in his view, on how targeted the contractual provision is towards protecting other users. Thus, for example, anti-griefing clauses are drafted specifically to protect players from being harassed and annoyed, and are thus good candidates for user-to-user enforcement. Generic clauses requiring users to provide accurate identifying information when they sign up, on the other hand, don’t work to the benefit of any particular other user, and thus shouldn’t create enforceable rights in those other users.
Risch may or may not be right that users are often intended third-party beneficiaries. I suspect that the moment courts start to recognize users’ rights to enforce user agreements against each other, companies will immediately rewrite their terms of service to expressly disclaim any possible third-party benefits. Virtual world providers tend to want the freest possible hand; their instinctive reaction to players suing each other is likely to be panic at the possibility that real-life courts will usurp their control over the world. Uneasy lies the head that wears a crown.
The real accomplishment of Risch’s piece, then, is not so much the doctrinal analysis itself as the serious, rigorous way he uses the doctrine to set up a new perspective on a central question in virtual world studies: what would would real self-governance by a player community look like? (Replace “virtual world” by “Internet” and “player” by “user” to see the wider significance of that question.) Julian Dibbell gave us the provocative metaphor of a user agreement as a social contract; Risch gives us a clever, slyly subversive take on the idea that puts the “contract” front and center. The one-sided user agreement is more of a Möbius strip; travel far enough along it and everything turns inside-out.
Cite as: James Grimmelmann,
Third Parties to the Rescue, JOTWELL
(November 9, 2009) (reviewing Michael Risch,
Virtual Third Parties, 25
Santa Clara Computer & High Tech. L.J. 416 (2009)),
https://cyber.jotwell.com/17/.
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.
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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:
