lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Is Texting Destroying the English Language? Did Telegraphing?

James Grimmelmann‘s excellent Laboratorium included the following text in the post Texting, Telegraph Style:

t scetus tdy dodd 5 pw f potus dz n xtd to t pips, ogt all pst cgsl xgn q sj is uxl.

Before cracking open your handy desk reference The Code: Basics for Texting and Instant Messaging (which a retired FBI agent calls “a valuable asset to families who are in the dark about what their children are involved with on the internet”), consider that this cryptic message was sent not in the 21st century but early in the 20th. It translates:

The Supreme Court of the United States today decided that the power of the President of the United States does not extend to the Philippines, on the ground that all past Congressional legislation on the subject is unconstitutional.

It’s cited in Douglas Baird‘s chapter in Intellectual Property Stories on International News Service v. Associated Press, 248 U.S. 215 (1918).

It should be available in response to all variants of questions like Will text messaging destroy the English language? and Is the use of “texting language” harming job prospects?

TED Talks: Jonathan Zittrain, The Web as random acts of kindness

The TED talks bio describes Jonathan Zittrain as a “social theorist”. Most of us know him better as a law professor and co-founder of Harvard’s Berkman Center for Internet and Society. Zittrain’s TED talk is more social theory than law but evokes some of Robert Ellickson’s ideas on law emerging from self-ordering arrangements in The Household. A fascinating talk. Read the rest of this entry »

David Post Presents Jefferson’s Moose

The Berkman Center at Harvard Law has graciously posted media from David Post’s recent presentation of some of the ideas from his book Jefferson’s Moose, in which he answers the age old question – What do Thomas Jefferson, a moose, and cyberspace have in common?.

David G. Post, Stern Professor of Law at the Beasley School of Law at Temple University, discusses questions raised by his recently-published book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Oxford), which re-creates Jefferson’s encyclopedia of the New World (”Notes on the State of Virginia,” 1786), but this time for cyberspace.

Audio of the Presentation

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Download MP3 Read the rest of this entry »

Speech, Privacy, and the Internet: The University and Beyond (University of Chicago)

Chicago Law has made media available from a conference organized by Martha Nussbaum and Cass Sunstein entitled “Speech, Privacy, and the Internet: The University and Beyond.” Video of Lawrence Lessig’s keynote speech appears below:

An aside: Whatever Lessig’s impact on our legal thinking, which is considerable – does he not also deserve a hallowed place in the pantheon of powerpoint presenting? This is another example of clear, lucid, thought-provoking communication equally dependent on the visual and audio elements. Simply powerful – but I digress.

A description of conference appears below:

The current rise in invasive personal gossip, much of it anonymous and much of it directed at students, often by other students, creates an atmosphere that threatens to disrupt the climate of instruction. On the other hand, restrictions on such internet sites raise delicate free speech issues. What challenges do these developments raise on campus, and what direction should universities take to meet these challenges?

Dangers and excesses of Cyber-Gossip

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Anonymity, Information

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Privacy, Gossip, Free Speech

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Gender and Cyber-Insults

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Reputation and Cyberspace

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Clicks or Credit? Determining Value in the Excerpt (while working in yet another fox-hunting analogy)

Writing in the New York Times this morning, Brian Stelter raises a long-running but increasingly contentious issue in the market for online content: Copyright Challenge for Sites That Excerpt.

Lest I court irony too brazenly by excerpting an article on the legal liabilities of excerpting, I’ll posit this post as a picture of a world without excerpting and leave it up to the reader to hunt down the quotes I might be referring to.

The crux of the complaint of those who have been ‘overly-excerpted’ is that they are thereby wrongfullly deprived of the traffic they would have otherwise received. Instead the excerpters capture that traffic for themselves, through their parasitic use of quotes, which no amount of attribution can fix.

So Who Owns the Fox (News Headline)?

fox

This is the classic question of Pierson v. Post. (I have previously dredged up this hoary spectre of 1L property in Who owns the (notes about the case about) the fox?) In Pierson, two sets of hunters “upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox.” The court found that mere hunting did not entitle one to an animal; one must “mortally wound, physically capture, or kill the animal in order to have his title in it vest.”

What is being hunted here? the elusive ‘click’ – the atom of attention upon which online media companies build advertising empires. Note the zero-sumness of the argument put forth by the excerpt-complainers. There is a fox (the click) and either you will have it or I will have it but we shall not both have it. It’s a narrow but not altogether unrealistic notion of what happens on the internet. If site A quotes site B and what I read seems so complete that I feel I have no need to go to site B, then I might indeed give site A the click I would have given site B. If the A quote is intriguing however, then I might click through to site B as well. The fact that I’m on site A is de facto proof that my relationship begins with them, so the obvious counterpoint is that but for the excerpt I might never find site B at all – no clicks for anyone in the no-excerpt world.

Setting aside existing copyright laws for the sake of a more freeform analysis, what rule for excerpting would make the most sense? In my example above, Site A to a certain extent, already has the fox since it attracted the initial click – the question is whether they should be able to reinforce their fox-gathering abilities with the fox-bait of others. Is being able to attract an audience a value added proposition in itself? sufficient to justify an exception to unauthorized copy-prohibition such as fair use? If it is, then we can stop there and impose a laissez-faire regime on copying publicly available web content. In this sense publicly available = public domain and we’ll let God (Google?) sort out the rest.

Another option might be to look at the quality of the excerpting. Any blogger would recognize the difference between automated and manual excerpting. Even though copying and pasting isn’t exactly a laborious process, it indicates a more focused attention than say, screen-scraping or syndicating an RSS feed. These activities (the first in particularly) more clearly violate the social norms an expectations of the content providers in ways that should perhaps be sanctionable. Similarly a complete copying, as if A effectively copied B’s entire site, not just a particular post it wanted to call attention to, seems a more egregious violation of social norms on the internet. Yet content syndication sites such as the ABA Blawg Directory and Justia do exactly that, but in ways that make some of us feel like it’s helpful rather than harmful.

All this is to say that the anti-excerpt crowd might be unwisely reactionary in seeking to deter all excerpting. To the extent they already have the fox (the clicks) it’s not clear they’re in any danger; to the extent the excerpters have the fox, it’s not clear forbidding excerpting will help either get the fox. More fundamentally, it’s not entirely clear why they might not have their fox and share it too.

But I’ve tortured this analogy long enough and as a catch-and-release fox hunter, I invite you to click over to the New York Times article Copyright Challenge for Sites That Excerpt, so that we might both have our foxes.

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