Law and Information

The OECD has just released what - in my view - is the first thorough high-level policy report on user-created content. (Disclosure: I had the pleasure to comment on draft versions of the report.) From the introduction:

The concept of the ‘participative web’ is based on an Internet increasingly influenced by intelligent web services that empower the user to contribute to developing, rating, collaborating on and distributing Internet content and customising Internet applications. As the Internet is more embedded in people’s lives ‘users’ draw on new Internet applications to express themselves through ‘user-created content’ (UCC).

This study describes the rapid growth of UCC, its increasing role in worldwide communication and draws out implications for policy. Questions addressed include: What is user-created content? What are its key drivers, its scope and different forms? What are new value chains and business models? What are the extent and form of social, cultural and economic opportunities and impacts? What are associated challenges? Is there a government role and what form could it take?

No doubt, the latest OECD digital content report (see also earlier work in this context and my comments here) by Sacha Wunsch-Vincent and Graham Vickery of the OECD’s Directorate for Science, Technology and Industry is a must-read that provides plenty of “food for thought” - and probably for controversy as well, as one might assume.

John Palfrey runs a session today at the Oxford Internet Institute’s Summer Doctoral Program on Internet Generativity, presenting and discussing Jonathan Zittrain’s paper on Internet Generativity (a.k.a. Z-Theory). John starts mapping the evolution of cyberlaw and policy discourses, leading up to the Z-theory.

• ’82 e-2-e arguments in system Design (Saltzer, Reed, Clark paper) – technical argument
• Fast forward to ’96: Internet no longer a medium of academics, geeks, etc.
• 1996 two strong political arguments emerged. 1) John P. Barlow at WEF, Davos: Declaration of Independence of Cyberspace: Governments have no place in cyberspace; out of reach 2) David Johnson/David Post: Law & Borders: similar argument, framed differently – libertarian view of government; claim more descriptive than Barlow’s. (Internet is different)
• Lessig’s “Code”: Johnson & Post are wrong, Barlow too. Internet is not unregulable. It’s regulated all the time. Four means of regulation, incl. law (“east coast code”), code (“west coast code”), social norms, and markets. (originally three, added markets.) Interplay among the forces (indirect regulation). Framework of four modes of regulation a.k.a. New Chicago School.
• 2002/03: Rise of the wisdom of the crowd. Yochai Benkler. 1) “Hourglass architecture” arguments: different layers of the Internet. It’s not only about the regulation of dots (cf. Lessig’s illustration of the four modes of regulation), it’s also about the question how it is regulated at the different layer (physical, logical, content) = refining Lessig & e-2-e principle; 2) Coase’s Penguin. Nature of firm has changed (OSS); emergence of third mode of production (commons-based peer production); non-compensated works.
• Emergence of these forms of interaction is a reason not to regulate.
• Means of regulation: the crowd itself could become a regulatory force, beyond the individual/social norms mode.
• Here, Zittrain comes into play. Z-theory: Four key claims. 2 descriptive, 2 normative arguments:
• Extraordinary security threats exist (so far, focus of regulators has been on different things, e.g. porn): threat of a “digital 9/11”; e-2-e network design is one that leaves network open and makes it vulnerable. Viruses (worms, etc.) could wipe up everything.
• Response to that real security threat: “code” in form of lock down of the PC.
• TiVo-izatin of PC/Internet (other example: mobile phones, come out of the box, are not programmable)
• What to do about it? So far: leave the net alone (e-2-e argument). However, we need a better argument for what the response should be. Argument of generativity. What we care about is not the e-2-e principle, but about systems that are generative (e.g. MS operating system, on which you can run a .exe file). Positive principle: if it’s generative, it’s good.
• Way to get there: Think of new solutions that build upon Benkler’s second argument: wisdom of the crowd (”5th mode of regulation”). Peer production of governance.
• E.g. stopbadware.org
• Challenges (e.g.): what does it mean for institutional design and institution building? Implications of the approach: privacy concerns (see JZ’s paper)

Now discussion. Job well done, JP, as always.

The Yale Journal of Law and Technology just published my article on search engine regulation. Here’s the extended abstract:

The use of search engines has become almost as important as e-mail as a primary online activity. Arguably, search engines are among the most important gatekeepers in today’s digitally networked environment. Thus, it does not come as a surprise that the evolution of search technology and the diffusion of search engines have been accompanied by a series of conflicts among stakeholders such as search operators, content creators, consumers/users, activists, and governments. This paper outlines the history of the technological evolution of search engines and explores the responses of the U.S. legal system to the search engine phenomenon in terms of both litigation and legislative action. The analysis reveals an emerging “law of search engines.” As the various conflicts over online search intensify, heterogeneous policy debates have arisen concerning what forms this emerging law should ultimately take. This paper offers a typology of the respective policy debates, sets out a number of challenges facing policy-makers in formulating search engine regulation, and concludes by offering a series of normative principles which should guide policy-makers in this endeavor.

As always, comments are welcome.

In the same volume, see also Eric Goldman’s Search Engine Bias and the Demise of Search Engine Utopianism.

For those of you who haven’t got the chance to read Jonathan Zittrain’s groundbreaking paper “The Generative Internet” - it’s now posted on SSRN.