I’m in Boston right now, and bummed that I can’t attend Start-up City: An Entrepreneurial Economy for Middle Class New York, which is happening today at New York Law School today.

I learned about it via Dana Spiegel of NYC Wireless, who will be on a panel titled “Breakout Session III: Infrastructure for the 21st Century—How Fast, Reliable Internet Access Can Boost Business Throughout the Five Boroughs.” In an email Dana wrote, The question for the panel participants is how fast, reliable internet access can boost business throughout NYC.” The mail was to a list. I responded, and since then I’ve been asked if that response might be shared outside the list as well. So I decided to blog it. Here goes:

Fast and reliable infrastructure of any kind is good for business. That it’s debatable for the Internet shows we still don’t understand what the Internet is — or how, compared to what it costs to build and maintain other forms of infrastructure, it’s damned cheap, with economic and social leverage in the extreme.

Here’s a thought exercise for the audience: Imagine no Internet: no data on phones, no ethernet or wi-fi connections at home — or anywhere. No email, no Google, no Facebook, no Skype.

That’s what we would have if designing the Internet had been left up to phone and cable companies, and not to geeks whose names most people don’t know, and who made something no business or government would ever contemplate: a thing nobody owns, everybody can use and anybody can improve — and for all three reasons supports positive economic externalities beyond calculation.

The only reason we have the carriers in the Net’s picture is that we needed their wires. They got into the Internet service business only because demand for Internet access was huge, and they couldn’t avoid it.

Yet, because we still rely on their wires, and we get billed for their services every month, we think and talk inside their conceptual boxes.

Try this: cities are networks, and networks are cities. Every business, every person, every government agency and employee, every institution, is a node in a network whose value increases as a high multiple of all the opportunities there are for nodes to  connect — and to do anything. This is why the city should care about pure connectivity, and not just about “service” as a grace of phone and cable companies.

Building a network infrastructure as neutral to purpose as water, electricity, roads and sewage treatment should be a top priority for the city. It can’t do that if it’s wearing blinders supplied by Verizon, Time Warner and AT&T.

Re-base the questions on the founding protocols of the Net itself, and its city-like possibilities. Not on what we think the carriers can do for us, or what we can do that’s carrier-like.

I came to the realization that networks are cities, and vice versa, via Geoffrey West — first in Jonah Lehrer’s “A Physicist Solves The City,” in the New York Times, and then in West’s TED talk, “The Surprising Math of Cities and Corporations.” West is the physicist in Lehrer’s piece. Both are highly recommended.

Bonus link.

I was talking with @ErikCecil yesterday about the sea change we both detect in people’s tolerance for unwanted tracking. They’re getting tired of it. So are lawmakers and regulators. (No, not everybody. But not a small percentage. And it’s growing.) See here, here,  here, here, here, here, here, here and here.

Somewhere in the midst of our chat, Erik summarized the situation with a metaphor that rang so true that I have to share it. Here’s roughly what he said: “The backwash that’s coming is a tsunami that hasn’t hit yet. Right now it’s a wide swell over deep water. But you can tell it’s coming because the tide is suspiciously far out. So we have all these Big Data marketing types, out there on the muddy flats, raking up treasures of exposed personal data. They don’t see that this is not the natural way of things, or that it’s temporary. But the tidal wave is coming. And when it finally hits, watch out.”

Aaron Swartz died yesterday, a suicide at 26. I always felt a kinship with Aaron, in part because we were living demographic bookends. At many of the events we both attended, at least early on, he was the youngest person there, and I was the oldest. When I first met him, he was fourteen years old, and already a figure in the industry, in spite of his youth and diminutive stature at the time. Here he is with Dave Winer, I believe at an O’Reilly conference in San Jose:

It’s dated May 2002, when Aaron was fifteen. That was the same year I booked him for a panel at Comdex in Las Vegas. His mom dropped him off, and his computer was an old Mac laptop with a broken screen that was so dim that I couldn’t read it, but he could. He rationalized it as a security precaution. Here’s a photo, courtesy of Mary Wehmeier. Here’s another I love, from the same Berkman Center set that also contains the one above:

All those are permissively licensed for re-use via Creative Commons, which Aaron helped create before he could shave.

Aaron’s many other passions and accomplishments are well-described elsewhere, but the role he chose to play might be best described by Cory Doctorow in BoingBoing: “a full-time, uncompromising, reckless and delightful shit-disturber.” Cory also writes, “Aaron had an unbeatable combination of political insight, technical skill, and intelligence about people and issues. I think he could have revolutionized American (and worldwide) politics. His legacy may still yet do so.”

I hope that’s true. But it would have had a much better chance if he were still here doing what he did best. We haven’t just lost a good man, but the better world he was helping to make.

[Later...] Larry Lessig makes the case that Aaron was driven to end his life by the prospect of an expensive trial, due to start soon, and the prospect of prison and worse if he lost the case and its appeals. Writes Larry ,

[Aaron] is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge.  And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.

One word, and endless tears.

[Later again, 13 January, Sunday morning...] Official Statement from the family and partner of Aaron Swartz is up at http://RememberAaronSw.tumblr.com. Here it is, entire:

Our beloved brother, son, friend, and partner Aaron Swartz hanged himself on Friday in his Brooklyn apartment. We are in shock, and have not yet come to terms with his passing.

Aaron’s insatiable curiosity, creativity, and brilliance; his reflexive empathy and capacity for selfless, boundless love; his refusal to accept injustice as inevitable—these gifts made the world, and our lives, far brighter. We’re grateful for our time with him, to those who loved him and stood with him, and to all of those who continue his work for a better world.

Aaron’s commitment to social justice was profound, and defined his life. He was instrumental to the defeat of an Internet censorship bill; he fought for a more democratic, open, and accountable political system; and he helped to create, build, and preserve a dizzying range of scholarly projects that extended the scope and accessibility of human knowledge. He used his prodigious skills as a programmer and technologist not to enrich himself but to make the Internet and the world a fairer, better place. His deeply humane writing touched minds and hearts across generations and continents. He earned the friendship of thousands and the respect and support of millions more.

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

Today, we grieve for the extraordinary and irreplaceable man that we have lost.

Funeral and other details follow at the bottom of that post, which concludes, Remembrances of Aaron, as well as donations in his memory, can be submitted at http://rememberaaronsw.com.

Also, via @JPBarlow: “Academics, please put your PDFs online in tribute to @aaronsw. Use #pdftribute.” Here’s the backstory.

A memorial tweet from Tim Berners Lee (@TimBerners_Lee): Aaron dead. World wanderers, we have lost a wise elder. Hackers for right, we are one down. Parents all, we have lost a child. Let us weep.

Some links, which I’ll keep adding as I can:

• Remember Aaron (by the family, a place to post remembrances)
• Aaron Swartz was not a hacker. He was a builder. (David Weinberger)
• At a young age, Aaron Swartz did a lifetime of work (NPR)
• Freedom to Connect: Aaron Swartz (1986-2013) on Victory to Save Open Internet, Fight Online Censors (Freedom to Connect talk, 2012)
• How the legal system failed Aaron Swartz—and us (Tim Wu in The New Yorker)
• Aaron Swartz: An open letter to his prosecutor (Jesse Kornbluth in The Head Butler)
• On humanity, a big failure in the Aaron Swartz case (Kevin Cullen in the Boston Globe)
• My Aaron Swartz, whom I loved (by Quinn Norton… heart-wrenching, and required reading … she also posts this)
• At MIT, soul-searching follows in Swartz case (Matthew Lynley in The Wall Street Journal)
• The web responds to the death of hacker-activist Aaron Swartz (excellent compilation of tributes by Matthew Ingram in Gigaom)
• “If someone is in need of knowledge and you can provide it, but you don’t, you are guilty of a crime against the human spirit…” (Jay Rosen in Quote & Comment)
• Plea bargaining and torture in light of the Aaron Swartz case (Phillip Greenspun)
• Remembering Aaron Swartz (John Schwartz in the New York Times)
• Goodbye, Aaron (Ethan Zuckerman)
• Processing the loss of Aaron Swartz (danah boyd)
• Online Grieving (Dave Winer) I have a comment that follows.
• The Inspiring Heroism of Aaron Swartz (Glenn Greenwald in The Guardian)
• Aaron Swartz (1986-2013), Web Technologist & Internet Activist (Scott Beale, with many good links missed below)
• Aaron Swartz was ‘killed by the government’ father tells mourners (LA Times)
• Aaron Swartz funeral: Internet prodigy mourned in Highland Park (Chicago Tribune)
• Free culture advocate may pay high price (Noam Cohen in the NYTimes)
• Suicide reporting on the Internet (Tupperwolf)
• A Tribute to Aaron Swartz (Tangerine Bolen in Common Dreams)
• The democratic promise of Aaron Swartz (Micah Sifry)
• The Truth about Aaron Swartz’s “Crime” (Alex Stamos)
• Remember Aaron Swartz by working for open society and against government abuses (Dan Gillmor)
• I Have Something to Say about Aaron Swartz’s Suicide and the Special Way the US Justice Dept Hounds People to Death (Susie Bright)
• Was Aaron Swartz stealing? (Maria Bustillos in The Awl)
• Aaron Swartz’s Politics (Matt Stoller in Naked Capitalism)
• Internet Activist Aaron Swartz Commits Suicide  mashable.com)
• Farewell to Aaron Swartz, an extraordinary hacker and activist (Peter Eckersly at EFF)
• Aaron Swartz (Patrick Nielsen-Hayden in Making Light)
• Remember Aaron Swartz (new Tumblr page)
• Remembering Aaron Swartz (Rick Perlstein in The Nation)
• Hacker and Reddit co-founder Aaron Swartz dies  theverge.com)
• Aaron Swartz, rest in peace  kottke.org)
• Aaron Swartz Commits Suicide  news.slashdot.org)
• Why we should remember Aaron Swartz (BusinessWeek)
• RIP Aaron Swartz – a sad news  semanticreatures.com)
• Former Reddit Co-Owner and Internet Activist Aaron Swartz Commits Suicide  gizmodo.com)
• 26-Year-Old Reddit Co-Founder Aaron Swartz Has Died  businessinsider.com)
• Legal Case Strained Troubled Web Activist (Wall Street Journal — details Aaron’s failed efforts to reach a deal with prosecutors)
• Hacktivist’s suicide intensifies criticism of U.S. attorney, MIT (Matt Pearce in the LA Times)
• From the archives: Highland Park teen is finalist in web competition (A June 23, 2000 piece in the Chicago Tribune, re-run today. Aaron was thirteen when it ran.)
• Aaron Swartz’s Death Is A Tragedy — And There Are Some Questions That Need To Be Answered (Henry Blodget in Business Insider)
• Will Aaron Swartz’s Suicide Make the Open-Access Movement Mainstream? (Andrea Peterson in Slate)
• Reddit Cofounder, Digital Activist Aaron Swartz Dead from Suicide at 26  gawker.com)
• Friends, Colleagues Mourn Web Pioneer Aaron Swartz, Key Architect of Creative Commons  commondreams.org)
• A Data Crusader, a Defendant and Now, a Cause (Noam Cohen in the NYTimes)
• The feds who wouldn’t budge (Daily Beast)
• The death of Aaron Swartz (Clive Crook in the Atlantic)
• Berners-Lee calls Aaron Swartz’ prosecution a “travesty of justice” (Bloomberg)
• RIP Aaron Swartz  ergodicity.net)
• The Archives (Aaron’s blog)

For as long as we’ve had economies, demand and supply have been attracted to each other like a pair of magnets. Ideally, they should match up evenly and produce good outcomes. But sometimes one side comes to dominate the other, with bad effects along with good ones.

Such has been the case on the Web ever since it went commercial with the invention of the cookie in 1995, resulting in a calf-cow model in which the demand side — that’s you and me — plays the submissive role of mere “users,” who pretty much have to put up with whatever rules websites set on the supply side.

Consistent with Lord Acton’s axiom (“Power corrupts; absolute power corrupts absolutely”) the near absolute power of website cows over user calves has resulted in near-absolute corruption of website ethics in respect to personal privacy.

This has been a subject of productive obsession by Julia Angwin and her team of reporters at The Wall Street Journal, which have been producing the What They Know series (shortcut: http://wsj.com/wtk) since July 30, 2010, when Julia by-lined The Web’s New Gold Mine: Your Secrets. The next day I called that piece a turning point. And I still believe that.

Today came another one, again in the Journal, in Julia’s latest, titled Web Firms to Adopt ‘No Track’ Button. She begins,

A coalition of Internet giants including Google Inc. has agreed to support a do-not-track button to be embedded in most Web browsers—a move that the industry had been resisting for more than a year.

The reversal is being announced as part of the White House’s call for Congress to pass a “privacy bill of rights,” that will give people greater control over the personal data collected about them.

The long White House press release headline reads,

We Can’t Wait: Obama Administration Unveils Blueprint for a “Privacy Bill of Rights” to Protect Consumers Online

Internet Advertising Networks Announces Commitment to “Do-Not-Track” Technology to Allow Consumers to Control Online Tracking

Obviously, government and industry have been working together on this one. Which is good, as far as it goes. Toward that point, Julia adds,

The new do-not-track button isn’t going to stop all Web tracking. The companies have agreed to stop using the data about people’s Web browsing habits to customize ads, and have agreed not to use the data for employment, credit, health-care or insurance purposes. But the data can still be used for some purposes such as “market research” and “product development” and can still be obtained by law enforcement officers.

The do-not-track button also wouldn’t block companies such as Facebook Inc. from tracking their members through “Like” buttons and other functions.

“It’s a good start,” said Christopher Calabrese, legislative counsel at the American Civil Liberties Union. “But we want you to be able to not be tracked at all if you so choose.”

In the New York Times’ White House, Consumers in Mind, Offers Online Privacy Guidelines Edward Wyatt writes,

The framework for a new privacy code moves electronic commerce closer to a one-click, one-touch process by which users can tell Internet companies whether they want their online activity tracked.

Much remains to be done before consumers can click on a button in their Web browser to set their privacy standards. Congress will probably have to write legislation governing the collection and use of personal data, officials said, something that is unlikely to occur this year. And the companies that make browsers — Google, Microsoft, Apple and others — will have to agree to the new standards.

No they won’t. Buttons can be plug-ins to existing browsers. And work has already been done. VRM developers are on the case, and their ranks are growing. We have dozens of developers (at that last link) working on equipping both the demand and the supply side with tools for engaging as independent and respectful parties. In fact we already have a button that can say “Don’t track me,” plus much more — for both sides. Its calle the R-button, and it looks like this: ⊂ ⊃. (And yes, those symbols are real characters. Took a long time to find them, but they do exist.)

Yours — the user’s — is on the left. The website’s is on the right. On a browser it might look like this:

Underneath both those buttons can go many things, including preferences, policies, terms, offers, or anything else — on both sides. One of those terms can be “do not track me.” It might point to a fourth party (see explanations here and here) which, on behalf of the user or customer, maintains settings that control sharing of personal data, including the conditions that must be met. A number of development projects and companies are already on this case. Some have personal data stores (PDSes), also called “lockers” or “vaults.” These include:

• Azigo
• Ctrl-SHIFT
• Locker Project /Singly
• MyDex
• Personal.com
• Privowny
• Project Danube
• The Customers’s Voice
• TrustFabric

Three of those are in the U.S., one in Austria, one in France, one in South Africa, and three in the U.K. (All helping drive the Midata project by the U.K. government, by the way.) And those are just companies with PDSes. There are many others working on allied technologies, standards, protocols and much more. They’re all just flying below media radar because media like to look at what big suppliers and governments are doing. Speaking of which…

Here’s Julia again:

Google is expected to enable do-not-track in its Chrome Web browser by the end of this year.

Susan Wojcicki, senior vice president of advertising at Google, said the company is pleased to join “a broad industry agreement to respect the ‘Do Not Track’ header in a consistent and meaningful way that offers users choice and clearly explained browser controls.”

White House Deputy Chief Technology Officer Daniel Weitzner said the do-not-track option should clear up confusion among consumers who “think they are expressing a preference and it ends up, for a set of technical reasons, that they are not.”

Some critics said the industry’s move could throw a wrench in a separate year-long effort by the World Wide Web consortium to set an international standard for do-not-track. But Mr. Ingis said he hopes the consortium could “build off of” the industry’s approach.

So here’s an invitation to the White House, Google, the 3wC, interested BigCos (including CRM companies), developers of all sizes and journalists who are interested in building out genuine and cooperative relationships between demand and supply::::

Join us at IIW — the Internet Identity Workshop — in Mountain View, May 1-3. This is the unconference where developers and other helpful parties gather to talk things over and move development forward. No speakers, no panels, no BS. Just good conversation and productive work. It’s our fourteenth one, and they’ve all been highly productive.

As for the r-button, take it and run with it. It’s there for the development. It’s meaningful. We’re past square one. We’d love to have all the participation we can get, from the big guys as well as the little ones listed above and here.

To help get your thinking started, visit this presentation of one r-button scenario, by Adam Marcus of MIT. Here’s another view of the same work, which came of of a Google Summer of Code project through ProjectVRM and the Berkman Center:

(Props to Oshani Seneviratne and David Karger, also both of MIT, and Ahmad Bakhiet, of Kings College London, for work on that project.)

If we leave fixing the calf-cow problem entirely up to the BigCos and BigGov, it won’t get fixed. We have to work from the demand side as well. In economies, customers are the 100%.

Here are some other stories, mostly gathered by Zemanta:

• White House offers online privacy guidelines for consumers  mercurynews.com)
• A Sense of Bewronging  doc.searls.com)
• You: White House Outlines Online Privacy Guidelines  nytimes.com)
• Web privacy standards: easy to break, hard to enforce  arstechnica.com)
• White House Pushes for New Privacy Codes of Conduct – PCWorld  pcworld.com)
• Google’s Safari Tracking: Here Come the Lawsuits  mashable.com)
• White House announces new privacy “Bill of Rights,” Do Not Track agreement  arstechnica.com)
• Use Anti-Tracking Tools To Boost Your Browser Security And To Ward Off Google’s Spying  googleexposed.wordpress.com)
• White House pushes for online privacy rights  usatoday.com)
• Regulators and Business to Work on Privacy Bill of Rights  adweek.com)

All look at the symptoms, and supply-side cures. Time for the demand side to demand answers from itself. Fortunately, we’ve been listening, and the answers are coming.

I made my case in If you hate big government, fight SOPA. A vigorous dialog followed in the comments under that. Here’s the opening paragraph:

Nobody who opposes Big Government and favors degregulation should favor the Stop Online Piracy Act, better known as SOPA, or H.R. 3261. It’s a big new can of worms that will cripple use of the Net, slow innovation on it, clog the courts with lawsuits, employ litigators in perpetuity and deliver copyright maximalists in the “content” business a hollow victory for the ages.

I also said this:

SOPA is a test for principle for members of Congress. If you wish to save the Internet, vote against it. If you wish to fight Big Government, vote against it. If you wish to protect friends in the “content” production and distribution business at extreme cost to every other business in the world, vote for it. If you care more about a few businesses you can name and nothing about all the rest of them — which will be whiplashed by the unintended consequences of a bill that limits what can be done on the Internet while not comprehending the Internet at all — vote for it.

This is the pro-business case. There are other cases, but I don’t see many people making the pure business one, so that’s why I took the business angle.

The best summary case I’ve read since then is this one from the EFF.

The best detailed legal case (for and against) is A close look at the Stop Online Piracy Act bill, by Jonathan @Zittrain. The original, from early December, is here.

Not finally, here are a pile of links from Zemanta:

• SOPA and PIPA: learn more  wikipedia.org)
• ‘Retreats’ Delay SOPA Hearings To February [Blip]  kotaku.com)
• Microsoft says it opposes SOPA ‘as currently drafted’, no other action planned  thenextweb.com)
• Tech Gopher Supports STOP SOPA – Going Black on Wednesday  techgopher.wordpress.com)
• On the Street: Do You Understand SOPA? [VIDEO]  mashable.com)
• Big Media Caught In Blackout On S.O.P.A.  thenewworldreporter.com)
• STOP SOPA! Keep Uncle Sam’s Hands Off Our Internet  joetech.com)
• MAKE Goes Dark in Protest to SOPA/PIPA  makezine.com)
• SOPA vs. PIPA: Anti-piracy bills, uproar explained  digitaltrends.com)
• WebHostingBuzz to Blackout on January 18th in Protest of SOPA and PIPA  prweb.com)
• SOPA Opera: White House Shuts Down Proposed Online Anti-Piracy Bill  scientificamerican.com)
• Could Facebook Shut Down? Understanding SOPA and PIPA  blogworld.com)
• Google SOPA Protest of the Day (geeks.thedailywh.at)
• With SOPA In The News: Marketers Are Going Back To School On Fair Use  prweb.com)
• Rhizome Joins Jan 18 Internet Blackout to Raise Awareness of PIPA/SOPA  rhizome.org)
• EFF: How PIPA/SOPA Fail the Administration’s Test  ammori.org)
• What Is SOPA? Startup Offers One-on-One Tutorials  mashable.com)
• SOPA: The Internet Blacklist Bill [Infographic] – [Video]  techfleece.com)
• Organize to resist SOPA in DC  xaprb.com)
• SOPA, PIPA and bills like them want to kill this blog. And yours.  thebrandbuilder.wordpress.com)
• SOPA Resistance Day begins at Ars  arstechnica.com)
• Google SOPA protest  venturebeat.com)
• reblog: If you hate Big Government, fight SOPA. (bostjan.konstrukt.it)
• Don’t censor the web  googleblog.blogspot.com)
• Major Media Blackout to Protest the Stop Online Piracy Act (SOPA)  alternet.org)
• Web Hosting Firm, GreenHostIt.com Denounces SOPA  prweb.com)
• SOPA Blackout Day  snarkinthenfl.blogspot.com)
• SOPA, PIPA and bills like them want to kill this blog. And yours.  thebrandbuilder.wordpress.com)
• SOPA Resistance Day begins at Ars  arstechnica.com)
• Google SOPA protest  venturebeat.com)
• reblog: If you hate Big Government, fight SOPA. (bostjan.konstrukt.it)
• Don’t censor the web  googleblog.blogspot.com)
• Major Media Blackout to Protest the Stop Online Piracy Act (SOPA)  alternet.org)
• Web Hosting Firm, GreenHostIt.com Denounces SOPA  prweb.com)
• SOPA Blackout Day  snarkinthenfl.blogspot.com)
• The Berkman Community Responds to SOPA/PIPA  cyber.law.harvard.edu)
• Why SOPA and PIPA Matter More Today Than They Did Yesterday  blogworld.com)
• Proof we do not need SOPA. – Tea Party Nation  gds44.wordpress.com)
• If you hate Big Government, fight SOPA.  blogs.law.harvard.edu)
• Stop Sopa (downtownlocal.me)
• Want to STOP SOPA / STOP PIPA? Use these tools and be involved.  momfy.wordpress.com)
• SOPA and PIPA from the Eastern world  russianreport.wordpress.com)
• Why SOPA and PIPA Matter More Today Than They Did Yesterday  blogworld.com)
• Proof we do not need SOPA. – Tea Party Nation  gds44.wordpress.com)
• If you hate Big Government, fight SOPA.  blogs.law.harvard.edu)
• Stop Sopa (downtownlocal.me)
• Want to STOP SOPA / STOP PIPA? Use these tools and be involved.  momfy.wordpress.com)
• SOPA and PIPA from the Eastern world  russianreport.wordpress.com)

Oh, and the U.S. Supreme Court just make it cool for any former copyright holder to pull their free’d works out of the public domain. The vote was 6-2, with Kagan recused and Breyer and Alito dissenting. Lyle Denniston in the SCOTUS blog:

In a historic ruling on Congress’s power to give authors and composers monopoly power over their creations, the Supreme Court on Tuesday broadly upheld the national legislature’s authority to withdraw works from the public domain and put them back under a copyright shield.   While the ruling at several points stressed that it was a narrow embrace of Congress’s authority simply to harmonize U.S. law with the practice of other nations, the decision’s treatment of works that had entered the public domain in the U.S. was a far more sweeping outcome.

No one, the Court said flatly, obtains any personal right under the Constitution to copy or perform a work just because it has come out from under earlier copyright protection, so no one can object if copyright is later restored.  Any legal rights that exist belong only to the author or composer, the ruling said.  If anyone wants to resume the use or performance of a work after it regains copyright, they must pay for the privilege, the decision made clear.

IMHO, the U.S. has become devoutly propertarian, even at the expense of opportunity to create fresh property from borrowed and remixed works in the public domain. One more way the public domain, and its friendliness to markets, is widely misunderstood.

A few years back, a former government official confidentially issued a warning to a small group I was part of, which favored some kind of lawmaking around technology. While this isn’t a verbatim quote, it’s pretty close, because it has been burned in my mind ever since: “In the course of my work I have met with nearly every member of Congress. And I can tell you that, with only a handful of exceptions, there are two things none of them understand. One is economics and the other is technology. Now proceed.”

Know-nothing lawmakers are doing exactly that with SOPA. As Joshua Kopstein says, Dear Congress, It’s No Longer OK To Not Know How The Internet Works.

SOPA is a test for principle for members of Congress. If you wish to save the Internet, vote against it. If you wish to fight Big Government, vote against it. If you wish to protect friends in the “content” production and distribution business at extreme cost to every other business in the world, vote for it. If you care more about a few businesses you can name and nothing about all the rest of them — which will be whiplashed by the unintended consequences of a bill that limits what can be done on the Internet while not comprehending the Internet at all, vote for it.

Rivers of ink and oceans of pixels have been spilled by others on this subject, so I’ll confine my case to a single section of the bill:

SEC. 103. MARKET-BASED SYSTEM TO PROTECT U.S. CUS- TOMERS AND PREVENT U.S. FUNDING OF SITES DEDICATED TO THEFT OF U.S. PROPERTY.

(I tried copying and pasting the whole section here, but it’s a @#$%^& .pdf, a proprietary format that has been Web-hostile from the start, but beloved of the “content” folks, as well as Congress and lawyers in general. If somebody can find us a .html or a .txt version, please let me know.)

There is nothing “market-based” about this section of the bill. “Market-based” is a paint job on more regulation, more restriction, more bureaucracy, more federal meddling, more litigation. Weighing in at nearly 17,000 words, is not only clueless about the nature of the Net and the Web, mischaracterizing both from front to back, but features the word “plaintiff” 100 or more times (I lost count). Oh, and lots of new work for this bureaucrat:

INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR.—The term ‘‘Intellectual Property Enforcement Coordinator’’ means the Intellectual Property Enforcement Coordinator appointed under section 301 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (154 U.S.C. 8111)

Yes, it exists.

We don’t need SOPA. What we do need is for Congress — along with lawmakers and regulators everywhere, right down to public utilities commissions and town councils — to at least begin to understand what the Internet is, and what it does for everybody, before it starts making laws protecting one business at the expense of all the rest.

If you want to see who is behind SOPA, just follow the money.

A couple days ago, David Weinberger told me Jimmy Wales was mulling the wisdom of shutting off Wikipedia for a day.  David blogged about it. So did Cory Doctorow. Later Torrent Freak spilled the beans as well. For some perspective on this, consider these two facts: 1) Jimbo is an economic Libertarian—about as pro-business and pro-”market-based” as you can get; and 2) Wikipedia remains the only search result for anything that consistently rises above the tide of gimmickry that has corrupted the commercial Web and buried more and more “organic” (non-commercial) results under an avalanche of promotional jive.

Julian Sanchez of the Cato Institute presents a solid Libertarian case against SOPA on YouTube. If it passes, he says, “the only difference between the U.S. and China is what’s on the blacklist.”

Sure, “piracy” is a problem. So are a zillion other afflictions you can name. New laws — especially ones that are written by regulatory captives and feared by real businesses in the marketplace — are not a solution. They compound the problem they purport to solve and cause untold new problems as unintended but certain consequences. Any conservative worthy of the label should be dead-set against SOPA.

Futhter reading, compiled mostly by Zemanta:

• The Stop Online Piracy Act (SOPA) Stalls In Congress  searchengineland.com)
• SOPA: The End of the Internet as we Know It  BostInno.com)
• Can the Stop Online Piracy Act be Stopped?  musicians4freedom.com)
• Dear Congress, It’s No Longer OK To Not Know How The Internet Works | Motherboard  mbcalyn.com)
• Halt The Stop Online Piracy Act  lizbethsgarden.wordpress.com)
• Tech moguls to Congress: Please don’t break the Internet  tech.fortune.cnn.com)
• How SOPA will hurt the free web and Wikipedia  wikimedia.org)
• Save the Internet: Take Action Against SOPA  forbes.com)
• Anti-SOPA Movement Picks Up Steam, With Assist from Laurence Tribe  news.firedoglake.com)
• The Internet Braces for the Horrors of the Possible Passing of the SOPA Bill  dreadcentral.com)
• Can OPEN help Congress make peace with the Internet?  gigaom.com)
• Taking The Shrill Out Of The SOPA Piracy Debate  paidcontent.org)
• Tomorrow’s SOPA hearing has been cancelled  thenextweb.com)
• SOPA vote delayed in House  csmonitor.com)
• Anti-SOPA Plug-ins Let You Prepare for the Worst  uberreview.com)
• reblog: If you hate Big Government, fight SOPA. (bostjan.konstrukt.it)
• Anti-SOPA Movement Picks Up Steam, With Assist from Laurence Tribe  news.firedoglake.com)
• Tomorrow’s SOPA hearing has been cancelled  thenextweb.com)
• If you hate Big Government, fight SOPA.  blogs.law.harvard.edu)
• reblog: If you hate Big Government, fight SOPA. (bostjan.konstrukt.it)
• SOPA is the end of us, say bloggers  politico.com)
• Go Daddy’s SOPA Entanglement  zdnet.com)
• How SOPA Would Kill Art & Creativity Online  readwriteweb.com)
• Here’s Why GoDaddy Backed Down on SOPA  news.dice.com)
• With Everyone Busy Opposing SOPA, Sister Bill “PROTECT IP” Might Enjoy a Free Pass  techie-buzz.com)
• Why Rackspace Opposes the “Stop Online Piracy Act”  rackspace.com)
• Namecheap to Donate $1 to EFF for Every Domain Transfer on December 29th  namecheap.com)
• Mashable Staff Debate Head-to-Head on SOPA  mashable.com)
• Opposing SOPA, Still Leaving GoDaddy  howardgreenstein.com)
• Go Daddy’s SOPA Entanglement  zdnet.com)
• How SOPA Would Kill Art & Creativity Online  readwriteweb.com)
• Here’s Why GoDaddy Backed Down on SOPA  news.dice.com)
• With Everyone Busy Opposing SOPA, Sister Bill “PROTECT IP” Might Enjoy a Free Pass  techie-buzz.com)
• Why Rackspace Opposes the “Stop Online Piracy Act”  rackspace.com)
• Namecheap to Donate $1 to EFF for Every Domain Transfer on December 29th  namecheap.com)
• Mashable Staff Debate Head-to-Head on SOPA  mashable.com)
• Opposing SOPA, Still Leaving GoDaddy  howardgreenstein.com)
• The #1 Connectivity Topic for 2012 is NOT digital rights! (Benoît Felten at fiberevolution.com)

This issue isn’t just close to home for me. I lived in North Carolina for nearly two decades, and I have more blood relatives there than in any other state. (Not to mention countless friends.) Not one of them tells me how great their broadband is. More than a few complain about it. And I can guarantee that the complaints won’t stop once the Governor signs the misleadingly-named ”Level Playing Field/Local Gov’t Competition act” (H129), which the cable industry has already been lobbied through the assembly.

The “free market” the phone and cable companies claim to operate in, and which they mostly occupy as a duopoly, is in fact a regulatory zoo where the biggest animals run the place. Neither half of the phone/cable duopoly has ever experienced anything close to a truly free market; but they sure know how to thrive in the highly regulated one they have — at the federal, state and local levels. Here’s Ars on the matter:

Let’s be even clearer about what is at stake in this fight. Muni networks are providing locally based broadband infrastructures that leave cable and telco ISPs in the dust. Nearby Chattanooga, Tennessee’scity owned EPB Fiber Optics service now advertises 1,000Mbps. Wilson, North Carolina is home to the Greenlight Community Network, which offers pay TV, phone service, and as much as 100Mbps Internet to subscribers (the more typical package goes at 20Mbps). Several other North Carolina cities have followed suit, launching their own networks. In comparison, Time Warner’s Road Runner plan advertises “blazing speeds” of 15Mbps max to Wilson area consumers. When asked why the cable company didn’t offer more competitive throughput rates, its spokesperson told a technology newsletter back in 2009 that TWC didn’t think anyone around there wanted faster service. When it comes to price per megabyte, GigaOm recently crunched some numbers and found out that North Carolina cities hold an amazing 7 of 10 spots on the “most expensive broadband in the US” list.

And here’s what Wally Bowen and Tim Karr say in the News & Observer:

We don’t need more laws restricting anything around Internet infrastructure build-outs in the U.S. That’s the simple argument here.

We need the phone and cable companies to improve what they can, and we need to encourage and thank them for their good work. (As I sometimes do with Verizon FiOS, over which I am connected here in Massachusetts.)

We also need to recognize that the Internet is a utility and not just the third act (after phone and TV) in the “triple play” that phone and cable companies sell. The Net is more like roads, water, electricity and gas than like TV or telephony (both of which it subsumes). It’s not just about “content” delivered from Hollywood to “consumers,” or about a better way to do metered calls on the old Ma Bell model. It’s about everything you can possibly do with a connection to the rest of the world. The fatter that connection, the more you can do, and the more business can do.

Cities and regions blessed with fat pipes to the Internet are ports on the ocean of bits that now comprise the networked world. If citizens can’t get phone and cable companies to build out those ports, it’s perfectly legitimate for those citizens to do it themselves. That’s what municipal broadband build out is about, pure and simple. Would it be better to privatize those utilities eventually? Maybe. But in the meantime let’s not hamstring the only outlet for enterprise these citizens have found.

Here’s a simple fact for Governor Perdue to ponder: In the U.S. today, the leading innovators in Internet build-out are cities, not phone and cable companies. Look at Chatanooga and Lafayette — two red state cities that are doing an outstanding job of building infrastructure that attracts and supports new businesses of all kinds. Both are doing what no phone or cable companies seems able or willing to do. And both are succeeding in spite of massive opposition by those same incumbent duopolists.

The Internet is a rising tide that lifts all economic boats. At this stage in U.S. history, this fact seems to be fully motivating to enterprises mostly at the local level, and mostly in small cities. (Hi, Brett.) Their customers here are citizens who have direct and personal relationships with their cities and with actual or potential providers there, including the cities themselves. They want and need a level of Internet capacity that phone and cable companies (for whatever reason) are not yet giving them. These small cities provide good examples of The Market at work.

It isn’t government that’s competing with cable and phone companies here. Its people. Citizens.

No, these new build-outs are not perfect. None are, or can be. Often they’re messy. But nothing about them requires intervention by the state. Especially so early in whatever game this will end up being.

I urge friends, relatives and readers in North Carolina to Call Governor Perdue at (800) 662-7952, and to send her emails at  governor.office at nc.gov. Tell her to veto this bill, and to keep North Carolina from turning pink or red on the map above. Tell her to keep the market for broadband as free as it’s been from the beginning.

Bonus link.

[Later, as the last hour approaches...]

Larry Lesig has published an open letter to Governor Perdue, Here is most of it:

Dear Governor Perdue:

On your desk is a bill passed by the overwhelmingly Republican North Carolina legislature to ban local communities from building or supporting community broadband networks. (H.129). By midnight tonight, you must decide whether to veto that bill, and force the legislature to take a second look.

North Carolina is an overwhelmingly rural state. Relative to the communities it competes with around the globe, it has among the slowest and most expensive Internet service. No economy will thrive in the 21st century without fast, cheap broadband, linking citizens, and enabling businesses to compete. And thus many communities throughout your state have contracted with private businesses to build their own community broadband networks.

These networks have been extraordinarily effective. The prices they offer North Carolinians is a fraction of the comparable cost of commercial network providers. The speed they offer is also much much faster.

This single picture, prepared by the Institute for Local Self Reliance, says it all: The yellow and green dots represent the download (x-axis) and upload (y-axis) speeds provided by two community networks in North Carolina. Their size represents their price. As you can see, community networks provide faster, cheaper service than their commercial competitors. And they provide much faster service overall.

 

Local competition in broadband service benefits the citizens who have demanded it. For that reason, community after community in North Carolina have passed resolutions asking you to give them the chance to provide the Internet service that the national quasi-monopolies have not. It is why businesses from across the nation have opposed the bill, and business leaders from your state, including Red Hat VP Michael Tiemann, have called upon you to veto the bill.

Commercial broadband providers are not happy with this new competition, however. After spending millions in lobbying and campaign contributions in North Carolina, they convinced your legislature to override the will of local North Carolina communities, and ban these faster, cheaper broadband networks. Rather than compete with better service, and better prices, they secured a government-granted protection against competition. And now, unless you veto H. 129, that protection against competition will become law.

Opponents of community broadband argue that it is “unfair” for broadband companies to have to compete against community-supported networks. But the same might be said of companies that would like to provide private roads. Or private fire protection. Or private police protection. Or private street lights. These companies too would face real competition from communities that choose to provide these services themselves. But no one would say that we should close down public fire departments just to be “fair” to potential private first-responders.

The reason is obvious to economists and scholars of telecommunications policy. As, for example, Professor Brett Frischmann argues, the Internet is essential infrastructure for the 21st century. And communities that rely solely upon private companies to provide public infrastructure will always have second-rate, or inferior, service.

In other nations around the world, strong rules forcing networks to compete guarantee faster, cheaper Internet than the private market alone would. Yet our FCC has abdicated its responsibility to create the conditions under which true private broadband competition might flourish in the United States. Instead, the United States has become a broadband backwater, out-competed not only by nations such as Japan and Korea, but also Britain, Germany and even France. According to a study by the Harvard Berkman Center completed last year, we rank 19th among OECD countries in combined prices for next generation Internet, and 19th for average advertised speeds. Overall, we rank below every major democratic competitor — including Spain — and just above Italy.

In a world in which FCC commissioners retire from the commission and take jobs with the companies they regulate (as Commissioner Baker has announced that she will do, by joining Comcast as a lobbyist, and as former FCC Chairman Powell has done, becoming a cable industry lobbyist), it is perhaps not surprising that these networks are protected from real competition.

But whether surprising or not, the real heroes in this story are the local communities that have chosen not to wait for federal regulators to wake up, and who have decided to create competition of their own. No community bans private networks. No community is unfairly subsidizing public service. Instead, local North Carolina communities are simply contracting to build 21st-century technology, so that citizens throughout the state can have 21st-century broadband at a price they can afford.

As an academic who has studied this question for more than a decade, I join many in believing that H.129 is terrible public policy…

Be a different kind of Democrat, Governor Perdue. I know you’ve received thousands of comments from citizens of North Carolina asking you to veto H.129. I know that given the size of the Republican majority in the legislature, it would be hard for your veto to be sustained.

But if you took this position of principle, regardless of whether or not you will ultimately prevail, you would inspire hundreds of thousands to join with you in a fight that is critical to the economic future of not just North Carolina, but the nation. And you would have shown Republicans and Democrats alike that it is possible for a leader to stand up against endless corporate campaign cash.

There is no defeat in standing for what you believe in. So stand with the majority of North Carolina’s citizens, and affirm the right of communities to provide not just the infrastructure of yesterday — schools, roads, public lighting, public police forces, and fire departments — but also the infrastructure of tomorrow — by driving competition to provide the 21st century’s information superhighway.

With respect,

Lawrence Lessig

To contact the governor, you can email her. If you’re from North Carolina, this link will take you to a tool to call the governor’s office. You can follow this fight on Twitter at @communitynets
You can follow similar fights on Twitter by searching #rootstrikers.

Well put, as usual. Hope it works.

Here’s a chance to check in on development work on a huge new disruptive market play: empowering customers as independent players in the marketplace, and building new businesses that serve liberated customers who want choices other than those between silos and walled gardens.

We’re talking here about equipping demand to drive supply, rather than just the reverse. (Which is fine and necessary, but it’s been done. A lot.)

We’re talking about creating tools and services proving at last that free customers are more valuable than captive ones.

We’re talking about how much more can happen in a marketplace where customers collect, control and selectively share their own data, for their own purposes — which nobody on the vendor side needs to guess about, because the customer knows, has the intent, and has the money.

We’ve been working on these tools for awhile now. My own work, both through IIW (which I help organize) and ProjectVRM at Harvard’s Berkman Center, has been to encourage development of tools that liberate and empower customers in the marketplace. Thanks also to the good work of allied efforts, many of these tools now exist, and more are coming along.

These tools fall into many categories. Some are open source efforts that equip developers with essential building material. Some are commercial efforts at the angel or pre-angel stages. Some are already funded. Some are existing businesses looking for partners. Whatever breed they are, all should be interesting to investors looking to place bets on customers, and on companies that align with customer interests and intentions in the marketplace.

IIW — which stands for Internet Identity Workshop — has always been about development. Since 2005 we’ve been getting together twice a year to share ideas and move work forward. As a workshop, it’s organized as an unconference. No speakers, no panels. Participants suggest topics and everybody breaks out to rooms and tables where those topics get discussed, whiteboards get marked up, and in many cases code gets shown and improved.

On Tuesday and Wednesday, May 3 and 4, the workshop will follow the usual routine. But on Thursday, May 5, we’ll visit a new topic which we’re calling “Yukon”: a one-word play on the line, “You control your own data.” As it says here,

Something New: IIW + Yukon: One of the longtime themes of IIW is how identity and personal data intersect. Many important discussions about Vendor Relationship Management (VRM) have also taken place at IIW. In recognition of how personal data and identity are intertwined, the third day of the IIW, May 5, will be designated “IIW + Yukon” and will stress the emerging personal data economy. The primary theme will be personal data control and leverage, where the individual controls and drives the use of their own data, and data about them held by other parties.

This isn’t social. It’s personal. This day you can expext open-space style discussions of personal data stores (PDS), PDS ecosystems, and VRM. One purpose of Yukon is to start to focus on business models and value propositions, so we will specifically be reaching out to angels and VC’s who are intersted in personal data economy plays and inviting them to attend.

Whether or not you’re an investor, or just friends with some (as pretty much all of us are these days), you’re invited. Looking forward to seeing you there.

By now I have close to a million miles with United, which is now the largest airline in the world, thanks to its merger with Continental. As it happens I’m sitting in a Continental lounge right now, though I’ll be flying in a couple hours to Salt Lake City on Delta. My original flights with United (from Boston through Chicago) were delayed by snow (yes, it’s snowing here, on the first day of Spring). The Continental club lounge is available so here I sit. For what it’s worth, the Continental lounge is nicer than United’s. In fact, pretty much everything about Continental is nicer, by a small margin. That’s a pat on Continental’s back, rather than a knock on United, which I’ve come to regard with some affection over many years of flying with them. One reason for all that flying is that they made lifetime membership in their club lounge available for a good price two decades ago, and that’s been a tie-breaker for us — in United’s favor — ever since. (Sadly, the offer was discontinued.)

The merger is moving slowly. Most of both airlines’ planes now say United on the side and keep the Continental globe symbol on the tail. (Minimal paint jobs for both, basically.) But the operations are still separate, which in some ways they have to be, since in many locations they occupy separate airport terminals. Their computer systems are also surely different and hard to merge. But, while there is some time left before the merger completes, I thought I’d put out a few public suggestions for both airlines as they gradually become one. Here goes:

1. Keep Channel 9. That’s the United audio channel that carries cockpit air traffic audio. Like a lot of frequent fliers, aviation is a passion of mine, and listening in on that chatter is a familiar, comforting and engaging experience. Sharing it with passengers is up to the pilots, and I always go out of my way to thank the pilots who choose to share the channel with passengers. I’ve met many other passengers over the years who also love the service. In many cases these passengers are either current or former pilots themselves. Of course it’s not necessary to keep it on that same audio channel; but at least make it available.
2. Make seat choices easier online. Say what kind of airplane the flight takes, and whether or not there are actually windows by the window seat (on some planes there are some window seats with blank walls). Consider providing links to SeatExpert or SeatGuru.
3. Allow more conditional choices for upgrades. I like window seats on the shaded side of the plane, and usually choose those seats with great care. So, for example on a United 777, where all the premium coach seating with extra legroom is in seats over the wing. I’m willing to sit in the back with less legroom, just to have an unobstructed view out the window. But often I’ll get an automatic upgrade (as a frequent flyer) to a business class seat that is either an aisle seat or a window seat on the sunny side of the plane, where the view is never as good. In those cases I’ll usually prefer to stay in coach.
4. Provide Internet connectivity by wi-fi. Put it on all but the small short-haul planes.
5. Power outlets are nice too. Some airlines have them for all seats. United should be one of them.
6. The DirectTV system on some Continental planes is nice. So is the completely different system on some other Continental planes (one I flew from Houston to Frankfurt had a zillion movies, but no easy way to navigate all the choices). Whatever you standardize on, make it relatively open to future improvements. And make the headset plugs standard 1/8″ ones, so passengers can use their own headsets.
7. Get apps going on Android, iPhone and other handheld devices. Continental has some now. United doesn’t yet, though it does now have the paperless boarding pass.
8. Get Jeff Smisek to cut a new merger progress announcement to run for passengers. The old one has been talking about “changes in the coming months” for about a year now.
9. In the lounges, upgrade the food, or provide better food you charge for (like you do for drinks at the bar). Right now in the Continental President’s club, there are apples, three kinds of chips in bags, bottom-quality shrink-wrapped cheeses and tiny plastic-wrapped sesame crackers. The United clubs will have the same apples, plus maybe the same crackers and chips, and some nut/candy mixes in dispensers. This Continental club doesn’t have an espresso/cappuccino machine, while United club at the same airport does. (And it’s a much better model than the awful one they had for a decade or more.) Meanwhile at Star Alliance lounges, and in lounges of international airlines such as Scandinavian, there will be a spread of sandwich makings, pastries, fresh baked breads and other good stuff. United and Continental charge a lot for the lounges, yet don’t allow food to be brought in. So at least offer something more than the minimal, food-wise. Free wi-fi in the lounges is also cool. Both United and Continental offer it, but Continental makes it simple: it’s just there, a free open access point. United’s is a complicated sign-on to T-Mobile.
10. Go back to Continental’s simple and straightforward rules for device use on planes. United’s old rules were ambiguous, all-text and hard to read. Continental had little grapics that showed the allowed devices. That’s what persists in the current (March) Hemispheres magazine is the United text. You almost need to be a lawyer to make sense of this line here: “Any voice, audio, video or other photography (motion or still), recording while on any United Airlines aircraft is strictly prohibited, except to the extent specifically permitted by United Airlines.” Only twice in my many flights on United have I been told not to shoot pictures out the window from altitude, and in the second case the head flight attendant apologized later and offered me a bottle of wine for my trouble. From what I understand, photography is specifically permitted, provided it is not of other people or equipment inside the plane. I’ve also been told “It’s at the pilot’s discretion.” Whatever the rules are, the old Continental ones were much better, and unambiguous.
11. Email receipts for onboard charges. This especially goes for ones where promos are involved and one can’t tell otherwise if the promo discount went through. For example, Chase bank customers were supposed to get $2 off on the $6 charge for using a Chase bank card to pay for watching DirectTV on the flight I took two Thursdays ago from Boston to Houston. Did I get the discount? I still don’t know.
12. On the personal video screens, provide flight maps with travel data such as time to destination and altitude. Love those, especially when they aren’t interrupted with duty-free promos on international flights.
13. Avoid lock-ins with proprietary partners. Example: Zune on United: http://www.zune.net/united. Right now over half of the devices being used in this lounge are non-PCs (iPads, Androids, Macs, etc.). Why leave those people out? And, of course, Zune is a dead platform walking.

Anyway, that’s a quick brain dump in the midst of other stuff, encouraged by conversation with other passengers here. I’m looking forward to seeing how things go.


John is arguing for a new clearly connected system for sharing legal information. Presenting data in open, distributable and interoperable way.

One reason for doing this is cost. HLS spends $4 million on legal materials. HLS stives to have the world’s greatest collection of these at any given time. In theory at least, HLS bought everything in the law. There was no policy other than to buy it all. For a long time. Oliver Wendell Holmes surrounded himself in this. (His round desk is in the back of the room, and from it drinks will be served later.) Thomson Eest, Reed Elsevier (Lexis-Nexis), Wolters Kluwer, et.al. are the big sources.

Props to Henry N. Ess III, namesake of John’s new chair, and collector of many books that surround us now.

John reviews nine hundred years of history, from roots in manuscripts behind English common law, works by Littleton and Coke in the mid-teen centuries, then Blackstone in the eighteenth century, then Langdell and West in the nineteenth.

Now we are in the 21st century, and it’s digital. This is our new era, and we are just getting started.

Thanks to Google Books, more is available in digital form, but there are “scary bits” in it. Having this amazing digial library of Alexandria managed by a private entity without public interest at its core is troubling.

An intent: When we have committed for a journal article, we will have it in the public domain. This is a way of systematizing the ideal here.

The notion of putting all the legal information in the world in cyberspace is wacky yet not enough. We need to design it and do it deliberately in a way that is useful and makes sense.

Our students now are born digital. Teachers need to recognize this change.

We now presume that media will be in a digital format. iTunes is the top seller of music. YouTube is the top source of video.

But there is one anomaly in this story. Notice that students in the library outside this room use both laptops and paper casebooks — because the latter work with the three Bs: bed, bath and beach. So paper is still with us. But the presumption remains digital.

Changes in the computing system. One is cloud computing. Computing power and storage has moved to a large degree to places other than our own devices.

There are also changes in publishing. Books may will go toward digital. Sales of Kindle books at Amazon now exceed sales of print books.

We can now print books when we want them. We can now write, publish in print and online in close to real time.

The Digital Lab Team (featured at the Berkman Lunch today) is on screen now. And now we see many resources that are available through Google’s scholar portal. But one bad story that might happen here is that libraries turn into warehouses for print books. Students here today start with Google Scholar, then go to HOLLIS (the Harvard online library resource), and then to the physical library itself — or elsewhere.

So the effort perhaps should go not to completing collections, but to the interface to scholarship in general.

The current slide is a Stack View of books. “We can’t re-create the must” (in stacks). (I love the smell of library stacks. One of my favorite smells in the world.)

The problem is, there isn’t a stack. Most books go to the depository. But we can create a digital stack. And we can create a new way of looking for books and other sources that uses our familiar interface (the stack shelf), and also the serendipitous other advantages of digital connections and presentations.

Next slide, CALI.org and eLangdell.

There are tradtions other than our Anglo-American own. (A Chinese liberary slide is up now.)

Demerit of the system proposed: money. The courts don’t like these ideas. We don’t give enough money to our courts, and thus it is hard to make this possible. But if we gave a bit more, we would be able to overcome the klugey process we have today. We can drive costs out of the system.

Another: privacy. The redaction problem. By putting info in a single system, we might create combinations that are unhappy. Divorces and children combined with criminal law. Depositions and so on. So we need to be careful what we expose and what we don’t. Maybe depositions don’t go there. This is a possible enduring cost.

Another: authentication. Some librarians don’t like these ideas because printed-out stuff seems more reliable. We can do a better job digitally, but this will have a cost — a near-term one.

It is entirely possible that one might get information without context. There will be challenges to teaching in this way. But teachers are seeing this right now already.

Now for the merits.

First, putting things in XML format and making them downloadable (already started) can be enormously powerful

Next, scale. Much more is now being published. It takes less time to produce more, and we need to produce more, faster.

Next, we can create new code. think of the great search engines, and familiar leading code projects (yahoo, google, facebook, et. al.)… Many of these were created by students. Think about how tech can make hard-to-read stuff accessible.

Next, new connections. Visualizaitons, for example. (Points to Jeffrey Schnapp, with Visualization of Republic of Letters on the screen.) This kind of visualization will create needed curricular reforms.

Implictions: perception, practice, scholarship…

Perception: This might undercut what we see as the magesty of the law.

Practice: For judges, this could make them uneasy. Much as Charlie Nesson’s efforts to webcast court proceedings made them unconfortable. There might be a chilling in the way we practice the law. A possible side-effect might be a little of the medicine that judges’ kids are getting now around privacy. There is an extent to which it is possible that people who have lived in a protected environment might not see how digital natives live in an exposed environment. To see the world in a different way than their kids may have a distoring aeffect.

Scholarship. The slide: “For the rational study of law the black-letter man may be the man of the present, but thee man of the future is the man of statistics and the master of economics.” — Oliver Wendell Holmes, Jr.

We may see the rise and fall of the tradition and writing of treatises. Having individuals, without teachers in some cases, DIY-ing it…

Richard Suskind‘s The End of Lawyers? is on screen (is that Suskind is in the front row?). Everything Richard writes about will be amplified by the trends we’re talking about.

Is this the end of law libraries?, the slide asks.

On the way in we passed the stature of Joseph Story, who saved HLS, which was down to one student when he did. Here on the top floor you pass lots of students, more than ever before, studying in this space, where contemplation is possible. There is something about the physical space. (Thanks the dean for not taking away space.) Next, the portrait of Justice Taney, who wrote the Dred Scott decision. You can see the unhappiness on his face. Isaac Royall is on the wall here. Made money in the slave trade in Antiqua. Libraries help us learn from these people, these decisions, this history.

In the future no law library will do it all. We have a lot of law schools around here.

Not every regime in the world is stable. Here, more than most. For example, the pre-Soviet materials here make available what isn’t easy to find in Russia. People come here for materials not available in Turkey. We have legal information from around the world, saved for the ages.

The community of people here who provide access to knowledge is extraordinary. We have this notion that you can make a call and get what you want. The HLS team, on whom the many assets and benefits of this place rests, make it alive and accessible at key moments.

The game plan. The designers of this place — Langdell Hall — good as it is, needs to grow digitally. We have not put together information architects as good as the ones who designed the physical space. We need a design charette to make this right. We need to do right by the jailhouse lawyer, the prosaic litigant… It will be better though uncomfortable at first for the teachers and learners that we make these changes, providing access to justice through information.

Qustion from Jonathan Zittrain… We have SSRN having to implement anti gaming measures… Choice of what to think about, and what modality to think about… Is this an article, a blog?… What are your instincts about the future of legal scholarship? What are the right mix of advances that will excite the rest of the world?

JP: I want to defend the long-form argument, but first an aside: The greatest friend of this library is Charlie Donohue… What this will do is create pressure and opportunity for what will count as legal scholarship. We are looking at extension of text analysis, of (missed it)… We need these new modalities. We will see the gradual (shrinking of black letter law as a percentage of the whole).

Q: What are the implications for The Law? Is this the end of The Law? How much depends on what Holmes and others saw as a closed system, with a set of materials that constituted what The Law was and meant? In this new environment do we still have that? As more information becomes accessible for people to make arguments from, does this set new boundaries for what The Law is? What should now be in a law library rather than in a cloud? (Each question so far is a series of questions.)

JP: A great question, and not a new one. Back when printing was new, one of the debates was about this same thing. Is scholarly work in fact the law? So we already have this weird conflation. What we have now is the same problem. What is interdisciplinary work? A thoroughly connected system allows many answers to come. But we still have this problem that law itself is unfinished. If law itself is information, then what is information about the law? That’s where we get hung up. (Hope I got that right.)

Q: Access, and how is it paid for. Who controls what is available? How is it kept reliable? What is the future of what closed systems did so well?

JP: Students want more floors open more hours. In a serious way, what should be open is the platform that involves the primary and secondary law in a virtual sense. That’s the bedrock. There will be a much greater diversity than what we now get with Westlaw. Many more people looking at the same core of information through different lenses. We will still have open and closed spaces, but the former will be the larger context.

[Later...] John speaks slowly and carefully enough to follow with an outliner, which is what I did here. Go here for his original abstract (which is comprehensive). And watch MediaBerkman for the audio and video.