The hard question, as O’Reilly rightly notes, is whether these tools can work as well during times of governance as it does during the time of campaigns (or crises). To get it done, he says, we should build from a set of principles, which sound great to me:

1) We need to embrace open standards, because it leads to generative systems (with a very nice shout-out to JZ and his book, The Future of the Internet);

2) Build a simple system and then let it evolve. Twitter has 11,000 applications now build upon it — in no time (another nice shout-out to JZ here and his “hourglass architecture” slide is shown). One such simple intervention: by default, make government information open and accessible to the public.

3) Design systems for cooperation. Presume that people can work well together, even if they don’t know one another. Think of the difference between Linux development and traditional software development within a single firm. Think also of the DNS. O’Reilly also credits Cong. John Culberson, R-TX, as a leading user of social technologies in DC and someone who gets the need to set up systems that allow for cooperation (and who cites a Jefferson letter of the early 19th c. for inspiration). Make rules like: the only requirement for participation is that you participate.

4) Learn from your users, especially ones who do what you don’t expect. In the mash-ups world: 45% are built on Google Maps, with only 4% on Microsoft Virtual Earth, 3% from Yahoo! O’Reilly says the others were too slow to open up APIs; Google just went for it. One of the first hackers to do this was HousingMaps, which a hacker name Paul did using Maps (in a contravention of the Terms of Service, O’Reilly says). Did Google sue Paul? Nope. They hired him.

5) Lower barriers to experimentation. Failure has to be an option. He quotes Edison: “I didn’t fail ten thousand times. I successfully eliminated, ten thousand times, materials and combinations which wouldn’t work.” O’Reilly says that Amazon’s cloud services make this kind of rapid experimentation, iterative development, and parsing through huge data sets possible.

6) Build a culture of measurement. Systems should respond automatically to user stimuli. Real-time measurement is crucial. Throughout his talk, O’Reilly credited Vivek Kundra, the new federal CIO, as a wonderful leader in making a great deal happen already within the Obama government. As Google and Wal-mart do, the government needs to be close to a living organism, responding in real-time to extensive stimuli. We need to instrument our world to be able to respond to useful data.

7) Throw the door open to partners. Apple’s iPhone has given rise to more than 50,000 applications in less than a year. The App Store made a fine tool into a phenomenon. More than 1 billion applications have been downloaded as of April, 2009. Everyone else in the smartphone business is eating their dust, at least in the apps business. And yet, O’Reilly says, the government is still making no-bid contracts. Government has to get out of its own way. Throw it open, and let everyone compete. Apps for Democracy is much in the right direction. (He gets a big laugh when he cites a Congressman who asked: why do we need NOAA when we have Weather.com? Pretty impressive case of some people in Washington still not getting the point…)

Fundamentally, government is a vehicle for collective action. O’Reilly is right, here, too. That also happens to be what distributed digital networked technologies are good at doing — supporting collective action.

All these principles together can lead us to the Digital Commonwealth. (Hear, hear!)

Bottom line: I think O’Reilly nailed it. These are great principles and a fine time to be discussing them.  Turns out, Beth Simone Noveck, deputy CTO in the White House, and others in the Obama Administration are actually now DOING all this right now. My only amendment to the O’Reilly talk would have been a cite to Beth’s brand new book, Wiki Government (Brookings, 2009) which includes a terrific commentary on these and related themes.

Look to EthanZ’s blog for his better-live-blogging than mine here.

On the substance of the sessions, I was surprised by what amounts to another tidbit: this high-level crew of participants — including leaders from private sector, public sector, academia, and from around the world — seemed to think that greater alignment of privacy rules is desirable and possibly feasible. The consensus was not in favor of perfect “harmonization,” but rather forms of alignment that respect cultural differences, help consumers, and enable commerce to thrive. Easier said than done, to be sure, but I was surprised at the degree of consensus. The two keywords that seemed to resonate most: “alignment” and “interoperability.”

(There were specific caveats: 1) not enough public awareness and not enough pain by businesses to get this done; 2) need to scrap the bilateral approaches in a world of cloud computing; 3) enforcement challenges will abound.)

Meta tidbit: Going meta, briefly, on the emerging art of conference blogging. I’ve been wondering: What’s the optimal amount of blogging of a conference, in terms of frequency, length, and topic? JZ says the goal should not be coverage, but to exposure worthy tidbits. That’s to say, as many as a few posts a day if there are worthy things to say, or no posts if the conference totally stinks. (JZ is blogging a key aspect of Hal Abelson’s provocation so we can see what he means by a “tidbit” when that’s up.)

Process/experimentation tidbit: there are three breakout groups, each using MindManager in the breakout rooms. From a mission-control, a few of us have a view across the three MindMaps through a networking tool called MindJet. It works great for viewing all the conversations as they emerge in real-time. It also lets one intervene from the center — but that is not necessarily welcome, it seems, as the MindManager scribes have enough to do to keep track of the conversation, and chatting with the curators doesn’t seem to help their focus much. It’s cool to be able to intervene and to ask clarifying questions, but not necessarily productive to the whole, it seems. It’s great to be trying this out in real-time, though.

Substantive tidbit: from the first session, part of MIT prof Hal Abelson’s provocation. In the end, the way to go is to build accountable information systems, says Hal. He cited a letter he (and many of us) got from Bank of America which said that data about some customers had escaped from a third-party location and that B of A is tracking our accounts to see if anything is going wrong as a result. Hal says that this may be lawful, but it’s not accountable. He wants to know more: who had the data, why they had it, what it was, what happened in the breach, what risks he is running as a result, and so forth. He also says not to worry so much about the collection or mining of the data, but rather about decisions made about you based on these data. (I have a sense already that this is not a consensus view among other attendees — to be tested out!)

A final Bostonian’s tidbit, off to the side: In the command-central room for IAPP, there’s a side conversation about the MBTA’s Charlie Tickets v. Charlie Cards. These are the cards you buy to go on the Boston-area subway system. If you use an Charlie Ticket, rather than a Charlie Card, you pay more per ride, but there’s little chance your movements could be tracked, so one way to see it is that there’s a explicit premium per ride for your privacy. Richard Stallman has an alternate approach, apparently: swapping zero-value CharlieCards to frustrate any user tracking while not having to pay the privacy premium.

Privacy turned out to be a major part of our research into how young people use new technologies differently from their parents and grandparents. In our book, Born Digital (coming out in the next few weeks; and now the book’s website from the publisher is up), we started with a single chapter on Privacy and ended up with three: Identity, Dossiers, and Privacy. (Berkman summer intern Kanu Tewari made a video rendition of our Dossiers chapter; and the project’s wiki has a section on Privacy.) I look forward to testing those ideas with a bunch of privacy pros who will no doubt help to refine them.

As a special bonus: They’ve partnered with the MindJet people — makers of MindManager, which I love — to document the event and to extract key themes in an organized digital format. I’m looking forward to learning some MindManager tricks.

Before I picked up “The Future of Reputation,” Solove had already played an important part in my own thinking about online privacy. The term that he coined in a previous book, “digital dossiers,” is a key building-block for the chapter of the same topic in Born Digital, which Urs Gasser and I have just finished (coming out in August). Solove advanced the ball in a helpful way, building on and refining previous scholarship of his own and that of Jonathan Zittrain, Paul Schwartz, Simson Garfinkel and others.

This book has the great virtue of being accessible to a reader who is not a privacy expert as well as being informative to those who know a good bit about it to begin with. Solove repeats a lot of lines that one has heard many times before (for instance, at the outset of Chapter 5, Scott McNealy’s line: “You already have zero privacy. Get over it.”), but also introduces some new ideas to the mix. It’s good on the theory, but it also offers practical policy guidance. He also poses good questions that could help anyone who wants to think more seriously about how to manage their reputation in a digital age.

One other thing I appreciated in particular: Solove is clearly a voracious reader and does an excellent job of situating his own thoughts in within the works and thought of others (variously Henry James and Beecher; Burr and Hamilton; Warren and Brandeis; Brin, Johnson & Post, and Gates) and in historical context, which I much enjoyed.

As for the Kindle itself: it’s fine. I don’t love it, but I also have found myself bringing it on planes with me lately, loaded up with a bunch of books that I’ve been meaning to read. So far, the battery life has been poor (might be my poor re-charging practices), so that the technology of the Kindle is sometimes less good than the technology of the classic book (which cannot run out of batteries in the middle of a long-haul flight, as my Kindle always seems to). The eInk is soft on the eyes; no problem there. The next and previous page functionality is fine, and the bookmark works pretty well. And FWIW, I’ve now got Mark Bauerlein’s “The Dumbest Generation: How the Digital Age Stupefies Young Americans and Jeopardizes Our Future (Or, Don’t Trust Anyone Under 30)” on there, which is up next for a review — as its premise cuts against the grain of Born Digital.  One advantage of the Kindle is cost, once you have device: the Solove and Bauerlein books cost a mere $9.99 each.

I’m most interested in hearing what Open Library thinks it needs in the way of help. They have a cool demo here. It seems to me that one way to succeed in this project is to combine what start-ups call “business development” with what scholars do for a living with what non-profits think of as crowd-sourcing or encouraging user generated content or whatever. There’s a lot that could be done if the publishers and libraries contributed the core data (should be in everyone’s interest, long-term anyway); scholars need to opt in an do their part in an open way; Open Library needs to get the data structured and rendered right (curious as to whether OPML or other syndicated data structures are in play, or could be in play, here); and human beings need to contribute, contribute, contribute as they have to Wikipedia and other web 2.0 megasites.

A note from a participant: “libraries resist user-generated cataloguing.” This seems to me a cultural issue that is worth exploring. We do need to balance the authority of librarians in with what the crowds have to offer. But I’m pretty sure it’s not an either-or choice, as David Weinberger makes clear through his work.

One thing that makes a lot of sense is their plan for supporting the site over time. The combination of philanthropy (at least as start-up funds, if not for special projects over time) plus revenue generated through affiliate links over time makes a lot of sense as a sustainable business plan.

One could also see linkages between Open Library and 1) our H2O Playlists initiative (hat-tip to JZ) to allow people to share their reading lists as well as 2) what Gene Koo and John Mayer at CALI are doing with the eLangdell project.

It’s not a surprise that the truly wonderful David Weinberger — I can see him blogging this in front of me — brought Aaron here today to talk about this.

Where I’m left, at the end of lunch, is with a sense of wonder about what we (broadly, collectively) can accomplish with these technologies, a bit of leadership, a bit of capital, good communications strategies, and some good luck in the public interest over time. It’s awe-inspiring.

* * *

Fordham (1)

At Fordham, Jane Ginsburg of Columbia Law School moderated one of the panels. We were asked to talk about the future of copyright. One of the futures that she posited might come into being — and for which Fred von Lohmann and I were supposed to argue — was an increasingly consumer-oriented copyright regime, perhaps even one that is maximally consumer-focused.

- For starters, I am not sure that “consumer” maximalization is the way to think about it. The point is that it’s the group that used to be called the consumers who are now not just consumers but also creators. It’s the maximization of the rights of all creators, including re-creators, in addition to consumers (those who benefit, I suppose, from experiencing what is in the “public domain”). This case for a new, digitally-inspired balance has been made best by Prof. Lessig in Free Culture and by many others.

- What are the problems with what one might consider a maximalized consumer focus? The interesting and hardest part has to do with moral rights. Prof. Ginsburg is right: this is a very hard problem. I think that’s where the rub comes.

- The panel agreed on one thing: a fight over compulsory licensing is certainly coming. Most argued that the digital world, particularly a Web 2.0 digital world, will lead us toward some form of collective, non-exclusive licensing solution — if not a compulsory licensing scheme — will emerge over time.

- “Copyright will be a part of social policy. We will move away from seeing copyright as a form of property,” says Tilman Luder, head of copyright at the directorate general for internal markets at the competition division of the European Commission. At least, he says, that’s the trend in copyright policy in Europe.

* * *

Fordham (2)

I was also on the panel entitled “Unauthorized Use of Works on the Web: What Can be Done? What Should be Done?”

- The first point is that “unauthorized use of works” doesn’t seem quite the relevant frame. There are lots of unauthorized uses of works on the web that are perfectly lawful and present no issue at all: use of works not subject to copyright, re-use where an exception applies (fair use, implied license, the TEACH Act, e.g.s), and so forth. These uses are relevant to the discussion still, though: these are the types of uses that are

- In the narrower frame of unauthorized uses, I think there are a lot of things that can be done.

- The first and most important is to work toward a more accountable Internet. People who today are violating copyright and undermining the ability of creators to make a living off of their creative works need to change. Some of this might well be done in schools, through copyright-related education. The idea should be to put young people in the position of being a creator, so they can see the tensions involved: being the re-user of some works of others, and being the creator of new works, which others may in turn use.

- A second thing is continued work on licensing schemes. Creative Commons is extraordinary. We should invest more in it, build extensions to it, and support those who are extending it on a global level (including in Catalunya!).

- A third thing, along the lines of what Pat Aufderheide and Peter Jaszi are doing with filmmakers, is to establish best practices for industries that rely on ideas like fair use.

- A fourth thing is to consider giving more definition to the unarticulated rights — not the exclusive rights of authors that we well understand, but the rights of those who would re-use them, to exceptions and limitations.

- A fifth area, and likely the discussion that will dominate this panel, is to consider the role of intermediaries. This is a big issue, if not the key issue, in most issues that crop up across the Internet. Joel Reidenberg of Fordham Law School has written a great deal on this cluster of issues of control and liability and responsibility. The CDA Section 230 in the defamation context raises this issue as well. The question of course arose in the Napster, Aimster, and Grokster contexts. Don Verrilli and Alex Macgillivray argued this topic in the YouTube/Viacom context — the topic on which sparks most dramatically flew. They fought over whether Google was offering the “claim your content” technology to all comers or just to those with whom Google has deals (Verilli argued the latter, Macgillivray the former) and whether an intermediary could really know, in many instances, whether a work is subject to copyright without being told by the creators (Verilli said that wasn’t the issue in this case, Macgillivray says it’s exactly the issue, and you can’t tell in so many cases that DMCA 512 compliance should be the end of the story).

* * *

St. Gallen

Across the Atlantic, Prof. Dr. Urs Gasser and his teaching and research teams at the University of St. Gallen are having a parallel conversation. Urs is teaching a course on the Law and Economics of Intellectual Property to graduate students in law at St. Gallen. He kindly invited me to come teach with him and his colleague Prof. Dr. Bead Schmid last week.

- The copyright discussion took up many of the same topics that the Fordham panelists and audience members were struggling with. The classroom in Switzerland seemed to split between those who took a straight market-based view of the topics generally and those who came at it from a free culture perspective.

- I took away from this all-day class a sense that there’s quite a different set of experiences among Swiss graduate students , as compared to US graduate students, related to user-generated content and the creation of digital identity. The examples I used in a presentation of what Digital Natives mean for copyright looking ahead — Facebook, MySpace, LiveJournal, Flickr, YouTube, and so forth — didn’t particularly resonate. I should have expected this outcome, given the fact that these are not just US-based services, but also in English.

- The conversation focused instead on how to address the problem of copyright on the Internet looking forward. The group had read Benkler, Posner and Shavell in addition to a group of European writers on digital law and culture. One hard problem buried in the conversation: how much help can the traditional Law and Economics approach help in analyzing what to do with respect to copyright from a policy perspective? Generally, the group seeemed to believe that Law and Economics could help a great deal, on some levels, though 1) the different drivers that are pushing Internet-based creativity — other than straight economic gains — and 2) the extent to which peer-production prompts benefits in terms of innovation make it tricky to put together an Excel spreadsheet to analyze costs and benefits of a given regulation. I left that room thinking that a Word document might be more likely to work, with inputs from the spreadsheet.

* * *

Barcelona

The UOC is hosting its third Congres Internet i Politica: Noves Perspectives in Barcelona today. JZ is the keynoter, giving the latest version of The Future of the Internet — and How to Stop It. The speech just keeps getting better and better as the corresponding book nears publication. He’s worked in more from StopBadware and the OpenNet Initiative and a new slide on the pattern of Generativity near the end. If you haven’t heard the presentation in a while, you’ll be wowed anew when you do.

- Jordi Bosch, the Secretary-General of the Information Society of Catalonia, calls for respect for two systems: full copyright and open systems that build upon copyright.

- Prof. Lilian Edwards of the University of Southhampton spoke on the ISP liability panel, along with Raquel Xalabarder and Miquel Peguera. Prof. Edwards talked about an empirical research project on the formerly-called BT Cleanfeed project. BT implements the IWF’s list of sites to be blocked, in her words a blacklist without a set appeals process. According to Prof. Edwards’ slides, the UK government “have made it plain that if all UK ISPs do not adopt ‘Cleanfeed’ by end 2007 then legislation will mandate it.” (She cites to Hansard, June 2006 and Gower Report.) She points to the problem that there’s no debate about the widespread implementation of this blacklist and no particular accountability for what’s on this blacklist and how it is implemented.

- Prof. Edwards’ story has big implications for not just copyright, but also the StopBadware (regarding block lists and how to run a fair and transparent appeals process) and ONI (regarding Internet filtering and how it works) research projects we’re working on. Prof. Edwards’ conclusion, though, was upbeat: the ISPs she’s interviewed had a clear sense of corporate social responsibility, which might map to helping to keep the Internet broadly open.

For much better coverage than mine, including photographs, scoot over to ICTology.

So, starting immediately, we’re accepting applications for graduate students to participate in SDP 2007. As you can see from the site, “Thirty places are available, open to students from any discipline who are currently undertaking doctoral research on social, political, legal and economic issues relating to the Internet. Preference will be given to students at an advanced stage of their doctorate, who have embarked on writing their thesis, and who are working in a research area that corresponds to one of the OII’s research priorities or the Berkman’s research priorities.” Don’t be scared off if you are a lawyer or in another professional-type degree program; some of the best students in the past have been lawyers, for instance.

Applications are due by February 12, 2007. The application form is here.