Discourse.net

A Tiny Publication

A long time ago — 18 months? — Professor Paul Caron organized a seminar at Harvard entitled Bloggership: How Blogs are Transforming Legal Scholarship. The papers from that event have finally reached dead trees via the Washington University Law Review.

The Taxprof Blog has a links to all the e-versions of the articles, including my own brief and somewhat skeptical contribution, The Plural of Anecdote Is “Blog”, 84 Wash. U. L. Rev. 1149 (2006).

What I've Been Doing Recently

Since classes ended, I’ve been writing like mad.

I did too much administration this year, and too little writing. It has been harder than I liked to get back into the swing of it, but now that it’s getting fun again I can’t understand how I let myself get sucked into doing anything else.

I’m going to have to see about that 139-word sentence. I hope it’s that big quote from the court, not something I did….

Grimmelmann on 'SSRN Considered Harmful'

If you are interested in academic legal scholarship, please reaed James Grimmelmann’s SSRN Considered Harmful.

You can get it from … SSRN … which is part of the point, as explained here.

Scholarly Agenda 2.0

I recently applied for something which required an up to 500-word statement summarizing past, present and future scholarship. The trouble is, I HATE writing self-assessments. I had to write one for my tenure file years ago and found it excruciating -- and it took me over a week. This time it was a little easier -- if only because I only had 24 hours to do it before the deadline.

Here's what I wrote. I think it's true, although there's a lot more I would have said if I'd had more words to play with:

I started teaching expecting to be a somewhat traditional scholar of US administrative law. Although I still teach the course with great pleasure, and occasionally write in the core of that subject, my interests soon grew to include the rapidly developing issues created by advances in computer technology and especially the Internet. Today, while still at heart a public lawyer, I find myself to be one with a particular interest in governance problems concerning information, and information systems. These complementary interests underlie the majority of my work to date, and are themes in my current and future projects.

Much of my recent work has concerned governance issues raised by information technology. This includes governance of the Internet by its users, self-governance by means of new technology, governance of online activities (including e-commerce) by the operation of private law, and especially regulatory initiatives by public bodies, both national and trans-national, that seek a role in either Internet regulation (e.g. the domain name system, which is the Internet's plumbing) or seek to regulate the things that people do online. My background in administrative law has proved surprisingly useful for this, as it gives one a grounding in standards of fairness and regularity against which to measure these new and ever-evolving regulatory processes. It has also made me conscious of the need for equivalent rules and norms (and avenues for individual redress) to constrain and govern new trans-national rulemaking processes, particularly those designed as public/private hybrids.

The regulation of information technology is perhaps just a special case of the regulation of information. I continue to write about privacy, particularly the ways in which new technologies may threaten or enhance both the individual's and the state's control of information. Thus, current projects include work on privacy in public places, and a forthcoming project in which I hope to set out an optimal set of rules for as privacy-friendly an ID card system as one could hope for in the United States. Ideally, the next stage in this project would be to broaden it to include a comparative dimension.

The ways in which we use information and information technologies also have implications for the smooth functioning, and perhaps even the nature, of self-government, both on the small-scale of affinity groups, clubs and on the larger scales of individual participation in national and even trans-national lawmaking. NGOs are using the Internet to organize their participation in matters ranging from UN sponsored conferences to trade negotiations. Localities are experimenting with a range of devices that allow citizens more direct participation in what were formerly bureaucratic and administrative decision-making. These are, potentially, tools for a new type of self-governance, and as they mature they may require not just amendments to our ideas of how administrative law works, but to more fundamental concepts about how we organize democracy. I intend to take part in those debates, both as a participant, and as a scholar.

The State of Play, Dead Tree Version

Just in time for the seminar I will be co-teaching next semester on the law of virtual worlds, NYU Press has published a great book on the subject called The State of Play, edited by Jack Balkin and Beth Noveck. I'm going to take the liberty to reprint Jack's description of it:

It features articles by some of the leading experts in the field, including, in addition to Beth and [Jack], Richard Bartle, Yochai Benkler, Caroline Bradley, Edward Castronova, Susan Crawford, Julian Dibbell, Michael Froomkin, James Grimmelmann, David Johnson, Dan Hunter, Raph Koster, Greg Lastowka, Cory Ondrejka, Tracy Spaight and Tal Zarsky.

Here's a short description of the book:

Millions of people around the world inhabit virtual words: multiplayer online games where characters live, love, buy, trade, cheat, steal, and have every possible kind of adventure. Far more complicated and sophisticated than early video games, people now spend countless hours in virtual universes like Second Life and Star Wars Galaxies not to shoot space invaders but to create new identities, fall in love, build cities, make rules, and break them.

As digital worlds become increasingly powerful and lifelike, people will employ them for countless real-world purposes, including commerce, education, medicine, law enforcement, and military training. Inevitably, real-world law will regulate them. But should virtual worlds be fully integrated into our real-world legal system or should they be treated as separate jurisdictions with their own forms of dispute resolution? What rules should govern virtual communities? Should the law step in to protect property rights when virtual items are destroyed or stolen?

These questions, and many more, are considered in The State of Play, where legal experts, game designers, and policymakers explore the boundaries of free speech, intellectual property, and creativity in virtual worlds. The essays explore both the emergence of law in multiplayer online games and how we can use virtual worlds to study real-world social interactions and test real-world laws.

Plumbing the Depths

This weekend I’m going to be attending the Yale Information Society Project’s conference on Information Flow. There’s a great line-up of speakers (although remarkably few women), and interesting papers.

Unusually, the topics were more or less assigned by the organizers. Between that, and the assignment to aim for 5-10 pages (much shorter than my usual academic effort), the writing seemed much more difficult than usual.

If you’d like to see how I did with my assignment to write about “Information as Governance,” have a look at the conference draft of Plumbing the Depths.

PS. As this is just an early draft, comments are especially welcome.

New Law & Tech Journal Announcement and Call For Papers

My friends Peter Shane and Peter Swire are launching an interesting new law & tech journal to be called I/S: A Journal of Law and Policy for the Information Society. I/S will be published in cooperation between by Ohio State’s Moritz’s Center for Law, Policy and Social Science and the Heinz School’s Institute for the Study of Information Technology and Society (InSITeS). (I’ve agreed to be on the editorial board, which means I’ll occasionally review submissions.)

I’ve attached the official announcement.

The Moritz College of Law at the Ohio State University and Carnegie Mellon University’s H.J. Heinz III School of Law and Public Policy are pleased to announce a forthcoming new journal, to be called I/S: A Journal of Law and Policy for the Information Society. To be published by Moritz’s Center for Law, Policy and Social Science and the Heinz School’s Institute for the Study of Information Technology and Society (InSITeS), I/S will serve as an interdisciplinary journal of research and commentary concentrating on the intersection of law, policy, and information technology. It represents a one-of-a-kind partnership between one of America’s leading law schools and the public policy school consistently ranked first in the field of information technology and public policy.

Each issue will include a themed research section, featuring articles specially commissioned for I/S. In addition, I/S will also publish commentaries, typically shorter and in a less formal style, addressing cutting-edge policy topics related to IT and society, as well as book-reviews and student research papers. Submissions in each of these latter categories should not exceed 5000 words. Authors interested in having their work considered for the debut issue of I/S should submit their manuscripts no later than August 15, 2004 to Sol Bermann, Senior Staff Editor, Moritz College of Law, 55 West 12th Street, Columbus, OH 43201. Inquiries concerning format, topic, or anything else may be directed to Mr. Bermann at bermann.1@osu.edu.

I/S envisions an eventual three-issue-per-year publishing cycle, including both hard-copy and subscription-based online versions. We are especially interested in papers addressing legal and policy aspects of e-government and electronic democracy, cybersecurity, online privacy and public information policy, e-commerce, information technology and economic development, and telecommunications regulation. The quality of I/S will be insured by its editorial team. The journal will be supervised by four faculty editors, Professors Peter Shane and Peter Swire at Ohio State University, and Professor Ashish Arora and Dr. Ron Gdovic at Carnegie Mellon. Working with them will be two senior staff editors, Sol Bermann and Vikram Mangulmurti, lawyers with extensive experience in privacy and cybersecurity. Ohio State law students will handle much of the detailed editorial work, as is customary among law reviews. But the journal will also have a distinguished editorial board, including key faculty members at the sponsoring institutions and prominent academics and practitioners from around the world, who will help in organizing and reviewing the contents of each issue. The membership of the current board appears below.

Carnegie Mellon Faculty

Alessandro Acquisti
Jamie Callan
Jonathan P. Caulkins
George T. Duncan
Dave Farber
Michael P. Johnson
Ramayya Krishnan
Peter Madsen
Benoit Morel
Lorrie Cranor
Jon Peha
Norman Sadeh
William Scherlis
Marvin Sirbu
Michael Smith
Latanya Sweeney
Rahul Telang

Ohio State Faculty

Stephen Acker
Jennifer Cowley
Matt Eastin
Sheldon Halpern
David Lee
Ed Lee
David Landsbergen
Ed Malecki
Rajiv Ramnath
Lewis Ulman

National Experts

Jonathan Band
Ken Bass
Julie Cohen
Susan Crawford
A. Michael Froomkin
Michael Geist
Robert Heverly
Reed Hundt
David Johnson
Ethan Katsh
Neal Katyal
Jessica Litman
April Major
Eben Moglen
Lisa Nelson
Beth Simone Noveck
Maureen O’Rourke
Elizabeth Parker
Joel Reidenberg
Jeffrey Ritter
Pamela Samuelson
Jon Weinberg
Phillip Weiser
Jane Winn
Alfred Yen
Jonathan Zittrain
Marc Zwillinger

Time to Hug a Bureaucrat

I have a small comment coming out in a symposium volume of the Loyola (Chicago) Law Journal in which I was the discussant on a panel about “Regulatory Aspects of Internet Governance.” In Time to Hug a Bureaucrat (.pdf) I summarize and at times critique interesting papers by Jim Speta, Phil Weiser, and Jay Kesan. The first two papers are about the proper scope of the FCC’s jurisdiction; I spend the bulk of my comment talking about Jay’s analysis of BBOnline and the UDRP. As we come at these issues from very different perspectives, and my paper is uncharacteristically short (sixteen pages and, well, a few footnotes here and there), it may be entertaining.

Virtual Worlds Talk Moves at Warp Speed

Lots happening on the Virtual Worlds front. Our paper on Virtutal Worlds, Real Rules has generated some interesting comments. Over at Crooked Timber, Henry Farrell suggests in More Broadswords, Less Crime? that the experiment we propose has already been run once, with an ugly result:

My tuppence worth: one theory has already been ‘tested’ in this way; the argument that easing restrictions on weapons and their use will lead to a drop in violent crime. If you grant the assumption that MMORPGs are analogous to everyday life (a whopping assumption to be granting, I’ll admit), then the evidence is unequivocal. A society where each can use weapons against each without restriction is likely to deteriorate into Hobbesian anarchy. People will positively beg for a Leviathan to come in and put an end to the Warre of All against All.

I think this is intuitively plausible (although very sensitive to the counter-argument that people choose to play violent games precisely to do things they would never do in real life—an argument of unreality that might not damn experiements based on more realistic representations of ordinary life), although I have to admit that a lot of work is done by the word “and” in the phrase “easing restrictions on weapons and their use”.

Over at Yale’s Law Meme James Grimmelmann offers a fascinating account of the popular tax revolt in the game Second Life . I was particularly intrigued by this story because some of the most thoughtful commentators on our Virtual Worlds paper have asked whether this online environment is one that could be used to empower participants instead of using them as glorified lab rats. Is there some way the participants could be empowered to self-organized, create new governance structures, meet to plan new modes of production, or collaborate in ways? These are all tantalizing thoughts, but my cautious reaction has been that that’s for version 2.0—we need to start with slightly less grand ambitions. Reading the Second Life saga makes me wonder whether I’m being too tame.

And, at TerraNova , Greg Lastowka suggests in The Author as Autarch that there is an even greater obstacle to using Virtual Worlds to experiment with Intellectual Property (IP) rules than the one we contemplated:

…a bigger problem with using virtual worlds as testbeds for experimental intellectual property rules is that virtual worlds are intellectual property. Putting aside trademarks, patents, and other relevant forms of intellectual property, software is protected by copyright. The copyright is not just limited to a game’s source code and object code, but also extends (to an unclear extent) to other salient aspects of the program.

Here, I think I disagree. While it’s certainly right that there are some IP obstacles to using existing games as research tools, if one is setting up a set of parallel games to serve as testbeds for legal rules then rather than be subject to IP constraints one is actually aided by them. Our suggestion is not that experimenters should colonize existing versions of Ultima Online or something and run trials on them. The idea is to purchase the rights to an existing game engine, customize it, and then run parallel versions of the game, or perhaps to license some shards/facets of a game and customize them. Any serious attempt to use Virtual Worlds to test legal rules will require careful design, and a control group. The IP issues will get sorted as part of the design process.

Meanwhile, New York Law School’s Institute for Information Law and Policy & Yale Law School’s Information Society Project are planning a conference on “The State of Play: Law, Games and Virtual Worlds” to be held in New York city, Nov. 13-15. They’ve now posted their tantalizing conference program .

Virtual Worlds, Real Rules

I am off to Washington, DC to attend the 31st Research Conference on Communication, Information and Internet Policy known to all as TPRC, for Telecommunications Policy Research Council. Here's the abstract of Virtual Worlds, Real Rules (.pdf), the paper I'll be co-presenting with Caroline Bradley -- who is more than just a co-author:

In Virtual Worlds such as Ultima Online and Everquest, the Internet may accidentally provide an environment that lends itself well to the testing of legal rules.

A growing literature suggests that there is a relationship between certain legal rules and economic well-being. Data about the economic consequences of rules would enormously enrich debates over economic regulation. Unfortunately, in the real world experimenting with legal rules can be costly and risky. Some scholars of comparative law attempt to draw lessons by comparing the diverse experiences of different countries, but these efforts too often fall prey to errors of cultural, not to mention legal, translation.

Virtual worlds could permit experiments without the real-world costs of bad rules or regulatory competition. Existing role playing games tend to include internal market regulations that resemble those seen in Western capitalist economies. These rules could be changed, or different versions of the game might use different variants. Online role playing games would provide better data than economic models because it should be possible to design the games to reduce the number of assumptions involved. Moreover, game participants are likely to care about outcomes more than participants in laboratory-based experiments, if only because resource constraints force these to be conducted for low stakes.

Despite the name, and the historic focus on straight telecoms, in the past four or five years TPRC emerged as the place to go for interesting work on Internet and e-commerce. Uniquely among the conferences I attend, the organizers were not only interdisciplinary, but managed a good mix of business school and law school types. Even more unusual was the positively military insistence that papers be in on time, well before the conference, or you lost your free admission. In my experience TPRC draws very good papers from very good people. In its former venue TPRC had great soft chairs in the common area, where you could sit for hours talking to colleagues while missing out on sitting on the hard chairs in the lecture rooms. TPRC lost a lot of its funding, and isn't providing subsidies for travel or hotels this year. It also has a new venue at the George Mason law school (this will be my first visit there). That resulted, I think, in a slightly less interesting set of papers than usual, at least outside the telecoms area, although there's still some good stuff. More worrying, however, is the impact of Hurricane Isabel. This year's conference is supposed to start today, and the web site says it's going ahead as scheduled, but I've heard from a number of friends that they aren't going, either because their flights were cancelled, or out of general caution. Indeed, DC airports are reported closed until noon today. As it happens, my flight isn't until this afternoon, and so far it's showing as on time, so I'm going, although it's unclear how much of an audience there will be -- and more importantly how much fun the hallways will be.

This paper is something special for me. It's my third collaborative paper, but the first time I've ever collaborated with my U.Miami colleague Caroline Bradley, who is also my wife. Working with her turned out to be surprisingly easy and pleasant -- we are used to one another and not only in the same time zone, but on the same home network. I think we've got a strong first draft of what will be a fun and interesting paper. The best part, though, is that Caroline did most of the thinking. We were driving south down Red Road one day, and I was describing what I'd learned about virtual worlds to Caroline. I was particularly struck by the way in which the mercantile rules adopted in some of the more popular games replicated or borrowed actual rules we use in real life.
"There's got to be a paper in there somewhere," I said.
"There is," Caroline replied, and sketched out the main ideas you'll find in our paper.

Virtual Worlds is a hot topic. There's going to be a conference in New York soon, and there's a neat new blog called Terra Nova devoted to discussing academic questions arising from MMORPGs generally (that's Massively Multiplayer Online Role-Playing Games, if you were wondering). They're pretty sharp: Dan Hunter, one of the bloggers, already has an item up noting our paper. Blogs move fast.