Law and Information

Heavily influenced by the work of Jean Nicolas Druey and Herbert Burkert, among others, I’ve been working on information quality issues in various contexts for the past 8 years or so. Today, I have the pleasure to attend the Yale Information Society Project’s conference on Reputation Economies in Cyberspace and contribute to a panel on reputational quality and information quality. Essentially, I would like to share three observations that are based on previous research projects. The three points I will talk about later today are:

1. From both a theoretical and empirical viewpoint, information quality is a horse that is difficult to catch. As a complicating factor, information quality in the context of reputation systems is a meta-question, concerning the quality of statements about the qualities of a person, service, advice, or the like. As such, it is important to be specific about the particular aspect of the quality challenge that is up for discussion in a given quality discourse. A taxonomy of quality problems/issues in the context of online reputation might be a good first step. Such a taxonomy needs to conceptualize informational quality of reputation as a composite of syntactic (data), semantic (meaning), and pragmatic (effects) factors. [We will present an initial draft of such a taxonomy at the conference]
2. While addressing specific quality issues, it’s important to consider the full range of possible approaches (“tools”) that are available. The role of market-based approaches (“pricing”, “incentives”) has already been explored in detail in the context of reputation systems. We also have a growing understanding about the social norms at work (research on online identity). As far as technology (“platform design”) is concerned, insights from social signaling theory might be a source of inspiration (e.g. conditions to foster honest signaling). Largely unexplored, by contrast, is the substantive (e.g. privacy) or procedural (e.g. due process) role that law may play in the context of a blended approach.
3. Information quality conflicts can’t be avoided, only managed. Each “regulatory” approach mentioned before comes at costs and has inherent (factual and/or normative) limitations. A general limitation is the contextual and subjective nature of human information processing and decision-making processes (e.g. buying a digital camera) in which the quality of statements about quality (reputation) plays a role. The case of “teenagers” might be illustrative given our knowledge about the neurobiological state of development of brain areas (prefrontal cortex) involved in information selection, interpretation, and evaluation. But also cognitive biases of adults mark the limits on what can be achieved at the level of governance of reputation systems.

Comments, as always, welcome.

A few days ago, I returned from Cambridge, MA, where I had been spending two inspiring and inspired weeks. Here are only three of the many (professional) highlights:

I was very fortunate, once more, to be on the faculty of the OII summer doctoral program (SDP) that – for the first time – took place at Harvard Law School (and, no, there hasn’t been an attempt to bring it to St. Gallen, rumors to the contrary…). My friends at the Berkman Center did a fantastic job in pulling together a very interesting summer program with a terrific line-up of contributors. Most importantly, however, the Berkman team led by John Palfrey and Colin Maclay selected a fantastic group of 30 PhD students from various disciplines and from across the world. I have been attending all except one of the doctoral programs since 2003, but this group impressed me in particular. We had a series of excellent discussions on a number of fascinating topics, covering meta-, methodological, and substantive issues. Among my favorite debates were the discussions about ICT4D, digital natives, identity, privacy, and peer production, and I very much enjoyed JZ’s talk about academic charisma and communication. In addition, I had the pleasure to moderate four student sessions in which the PhD candidates presented their research, and was naturally especially fascinated by Joris van Hoboken’s dissertation on search engine regulation. He, among several others (check out the aggregator), provided also excellent blog coverage of the SDP 2007 (here, his final post).

A second highlight, doubtlessly, were great conversations about our ongoing digital natives project. I had several thought-provoking discussions with my colleague John Palfrey (whom I admire so much not only for being a gifted teacher, brilliant mind, and thoughtful leader, but equally for being a truly amazing collaborator and friend), about the scope of our early-stage research project, about methodologies, the goals of our project, and the message(s) we want to send in the book that we’re currently co-authoring. Also the various contacts with the members of our Berkman/St. Gallen digital native research team, including Erin Mishkin (team leader), Chen Fang, Nadine Blaettler (from our St. Gallen team, currently in Boston), Tony Pino, and Miriam Simun (who has spent the past few weeks here in St. Gallen), among others, made this trip a particularly exciting one. Similarly enjoyable were excellent interventions (including some push-back) from my colleagues Ethan Zuckerman and danah boyd.

Another interesting experience was a symposium hosted by the Harvard Business School on the Internet as a Public Good. A number of great scholars and activists were invited to think about the question as to what extent the Internet can be seen as a public good. I was invited to give a brief talk from the legal/policy perspective, but did unfortunately not a great job in framing the discussion – despite my well-known love for coherent frameworks. In any event, it was an intellectually challenging workshop that also made it clear how even the brightest people in one room may sometimes face difficulties to really enhance a discussion in a structured way. The co-organizers Colin Maclay, Karim Lakhani, David Weinberger, Amar Ashar, Frank Hecker and Zak Greant deserve a great thank you for running this experiment with an immensely complex and equally fascinating workshop topic.

In sum, a wonderful time in Cambridge and yet another illustration why I really do think that MA 02318 is the best place in the world. Thanks to Catherine Bracy, Seth Young, Amar Ashar, Becca Tabasky, and all other Berkman staff members who helped me planning this trip and took care of the logistics.

Now back in St. Gallen, I will spend most of August on the book I mentioned above, on a text with Prof. Herbert Burkert on the information law approach vs. the business law approach as applied to technological innovation, an article about Google, a book chapter on corporate social responsibility/sphere of influence, a piece on IPR and neuro-science, and – last but not least – an overdue commentary on the new Swiss GmbH-Law. Besides, I’m working on our upcoming study trip to Shanghai and try to adjust to the Chinese mentality: “panta rei”. So, please forgive me if I’m a slow responder (and blogger, for that matter) over the weeks to come.

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.

The EU commission recently released an impressive 280+ pp. study on the economic impact of open source software on innovation and the competitiveness of the ICT sector in the EU. The report analyzes, among other things, FLOSS’ market share, and its direct and indirect economic impacts on innovation and growth. It also discusses trends and scenarios and formulates policy recommendations. Some of the findings that I find particularly interesting:

• Almost two-thirds of FLOSS is written by individuals, while firms contribute about 15% and other institutions 20%. The existing base of FLOSS software represents about 131.000 real person-years of effort.
• Europe is the leading region as far as the number of globally collaborating FLOSS developers and global project leaders are concerned. Weighted by average income, India is the leading provider of FLOSS developers, followed by China.
• The existing base of quality FLOSS applications would cost firms almost 12 billion Euros to reproduce internally. The code base has been doubling every 12-24 month. FLOSS potentially saves the industry over 36% in software R&D investment.
• FLOSS is an important growth factor for the European economy. It encourages the creation of SMEs and jobs and is unlikely to cannibalize proprietary software jobs. The FLOSS-related share of the economic could reach 4% of the European GDP by 2010.
• Europe’s strength regarding FLOSS are its strong community of active developers, small firms, and secondary software industry. In contrast, a generally low level of ICT investment and a relatively low rate of FLOSS adaptation by large industry (if compared to U.S.) are among its weaknesses.

As to policy recommendations, the report suggests a focus on the correction of existing policies and practices that currently favor proprietary software. Among the recommendations: support FLOSS in pre-competitive research and standardization; encourage partnerships among large firms, SMEs and FLOSS communities; provide equitable tax treatment for FLOSS creators.

For the fifth time within two months I’m finding myself back in Cambridge, Mass. You can’t imagine how much I love this place. There are many reasons why I think Cambridge is among the most exciting and inspiring places to be. One reason, of course, are the many wonderful friends and colleagues that have been working and living here. Take as one prominent example my brilliant colleague Derek Slater, Fellow at the Berkman Cente and EFF affiliate with whom I had the pleasure to work on a couple of projects. He has just posted two interesting podcasts on his blog. In the first piece, Derek reports about the P2P litigation summit he participated in, arguing that we have to learn more about – and from! – the stories of the people that got sued by the recording industry. In the second podcast, Derek provides a big-picture analysis of possible (technological, business, and policy) approaches to the file-sharing problem. In essence, he makes a strong case why policy-makers should not take drastic measures (such as, e.g., compulsory licensing systems or, as the worst-case scenario, mandatory DRM schemes) to address the current digital media crises. Rather, policy-makers may be well advised to trust in the evolutionary power of market mechanisms on the one hand (emerging business models, in fact, might address the problem) and to focus on the reform of the DMCA and certain procedural protection measures on the other hand.

My colleague Andreas Neus at IBM has co-authored an interesting paper on OS collaboration. Here’s the abstract:

The Berkman Center for Internet & Society, the Journal of Law & Technology, and the Committee for Sports & Entertainment Law, all of Harvard Law School, are hosting Signal or Noise 2k5: Creative Revolution? on April 8, 2005, on the Harvard campus in Cambridge, Massachusetts.

The conference offers an exciting mix of performances, demonstrations and discussions examining how digital technologies are enabling new forms of creativity by a broader group of people. Cultural, business, legal and ethical implications of new genres and new forms of authorship will all be covered along with an artist’s interests and rights in downstream uses of original creations.

Scheduled conference participants include New York Times bestselling author Matthew Pearl, copyright scholar Terry Fisher, fanfic author Naomi Novik, David Dixon of Beatallica, innovative musician Dan the Automator, Paul Marino of machinima.org, and Wendy Seltzer of the Electronic Frontier Foundation.

Signal or Noise 2K5 is open to the public but pre-registration is needed. For more information
about the conference’s location, schedule and participants, click here.

On a personal note: Special thanks to Berkman Fellow Meg Smith for putting together such a terrific event!

Fascinating: Wiki company JotSpot announced that it is working together with Larry Lessig on a peer-produced update of his 99-classic Code and Other Laws of Cyberspace. The project overview reads as follows:

I’m co-teaching with John Palfrey a course at Harvard Extension School called Internet & Society: The Technologies and Politics of Control. Tonight, we will be discussing how digitization in tandem with the emergence of electronic communication networks such as the Internet have changed the ways in which we use media. More specifically, we will look at the shift from passive receivers of information to active users and creators. This class will be more of a conversation rather than a lecture.

As my students must have realized by now, I have a bias to think and — worse — talk in abstract concepts (call it the European blind-spot). Tonight, however, I won’t talk much about theoretical frameworks, promised. Rather, I would like to present a couple of examples illustrating the above-mentioned shift from passive receivers to active users and discuss them in an open format. While looking at the examples, please keep the following questions in mind:

1. What are the opportunities and challenges associated with the shift as illustrated by each example?
2. What are specific areas of concern or emerging legal/regulatory issues?
3. Do we need to address these concerns? If yes, what’s the appropriate regulatory approach (social norms, markets, law, technology)?
4. What are potential effects — also side-effects — of regulatory intervention?

Okay, that being said, here are the examples that we will use in class tonight. Please note that I provide positive examples, nice stories, but — of course — also at least problematic examples, some of which you might find disturbing. (Again, we’ll discuss these examples in class and provide enough context to make sense of these illustrations; however, I want to include the examples here so that our distance students can easily access them.)

(1) Research and Knowledge

• Wikipedia (1, 2, 3) [update: for a wonderful illustration how wikipedia works, click here. Via Luis Villa]
• Health information (1, 2)

(2) News Reporting & Journalism

• CBS saga
• “Every citizen is a reporter” (1, 2)
• North Korea zone
• Dean campaign and the Bloggers

(3) Entertainment

• Music & video clips [e.g. mash-ups] (1, 2, 3)
• Fan fiction (1, 2)
• Online Games (1)

(4) Social & Corporate Criticism

• Endless love
• State of the Union (1, 2)
• Media enterprises (1, 2)
• VictoriasSecret (1, 2)
• Other illustrations (1, 2)

(5) Commerce

• Online Reputation Systems (1, 2)
• Advertising (1, 2, 3, 4)

We’ll end the class with some big-picture-questions, including:

1. What are the normative dimensions and criteria to assess the shift from passive receivers to active users?
2. What are key areas of concern across the examples we’ve discussed?
3. Applying old laws or need for shift in the legal/regulatory paradigm?
4. Issues down the road?

The teaching team is looking forward to discussing these and other questions with you tonight.

Funny story: Schoolboy spots errors in Encyclopaedia Britannica. And now compare with Wikipedia: It got at least the “European bison” story right…