ABA Blawg 100/Hall of Fame

I’ve made the ABA Blawg Hall of Fame, as well as the Blawg 100, which is very nice.  I believe it’s in part a reward for persistence, as I’ve been at this since 2003 (though I only got serious in 2005), making the blog older than my children.  A number of other interesting IP blogs made the list, including Hall-of-Famer Eric Goldman; check it out!

ABA Blawg 100

I'm happy to be there again, along with a number of other fantastic blogs still going strong (not to mention my favorite hall of famer).

IPSC, opening plenary

IPSC at DePaul

 

Opening Plenary Session

 

Tributes to Benjamin Liu & Greg Lastowka, much-missed colleagues who passed away in the last year.

 

Roberta Kwall, DePaul University College of Law

 

Changes in law school in last 15 years—rankings are more set.  Money is tight.  Teaching loads are increasing, not just numerically but in scope/areas other than IP.  Affects ability to do scholarship.  Schools may want us to work on the side: consistent w/ making our students practice ready.  How do we keep doing our scholarship?  Shari Motro, Scholarship Against Desire: authenticity in legal scholarship.  Not shooting from the hip, but doing the groundwork/getting an advanced degree if needed for the breadth of knowledge you want to have.  We won’t be judged in the future on the quantity of our work.  Need a safe, nurturing place to listen without planning a response; the wisdom of the group will go up.

The key to successful scholarship is the ability to reinvent oneself, like Madonna: true of scholarship venues as well as scholars.

 

Peter Yu, Texas A&M University School of Law

 

History: lots of schools were starting IP programs; one way to maintain leadership is to bring scholars together, and bring schools together as IPSC sponsors.  Importance of creating community despite costs.

 

Mark Lemley, Stanford Law School

 

Size of IP community has grown a lot. Dramatic expansion in subject matter from mostly ©—only 5 people have taught patent law longer than Mark L and Dan Burk.  Lateral expansion is good result: trade secret & design are newest additions.  Expansion in methodology, in particular empirical work. 

 

Not so good things: increasing divide into more polarized camps among scholars, not just practicing lawyers.  High protectionist group has their conferences and low protectionists have theirs; paying less attention to the other side, and that’s a worrisome thing.  Perhaps result of real world importance of what we do—people are looking for answers that support them and seek ideological scholarship.  But introduction of politics into IP scholarly community is worrying.  Also worrying: growing role of money. Resource constraints are important; but it’s also a function of the real world relevance/politics: some people would like to spend lots of money to get the answer they want.  That connection is becoming more clear.  You can have $ if you can demonstrate that patent holdup isn’t a problem in the telecom industry, or if you can show that intermediary liability is too great.  Politics + money isn’t good for society at large and it’s not good for the IP community.  Like the internet + anonymity: can really mess things up.

 

What is to be done?  IP community has long history of cohesiveness, talking to each other.  That makes us the envy of most other scholarly communities.  Robin Feldman & Lemley are working on a statement of principles for taking money for scholarship. 

 

Graeme Dinwoodie, University of Oxford Faculty of Law 

 

Mentoring of junior colleagues as an objective, pretty early on. Advancement of ideas/development of scholarly community.  Social interactions make inevitable professional disagreements an ordinary part of the interaction, rather than tense (cf. constitutional law) and encourages new members of the community to be willing to disagree.  New internationalism: international participants, access to international scholarship.  More scholarship is occurring pre-tenure, which is a good thing without a research-based doctoral agree. But many of the pretenure positions are short, and there’s tremendous pressure to present at IPSC as well as to produce law review articles.  Given vast amount of info, do you have to choose between reading, writing, and thinking?  Encourage younger colleagues to attend/participate w/out need to present and write; that may require deans to rethink allocation of travel funds.

 

Mike Madison: Publication styles tied to book chapters, journal articles, etc.  What’s changed?

 

Lemley: Definite move towards the blog post (heh), online/short/less footnoted article, which is in many respects a good thing; law reviews traditionally bloat from need to explain everything to second year law students. If you can assume a base of knowledge and get to the interesting point quickly, that’s great. But “don’t write long articles” is no better than “don’t write short” as a rule. New rule of no longer than 25,000 words privileges certain kinds of scholarship and not others.  How do we evaluate ideas in short/nontraditional forms?  Dennis Crouch has had big impact on patent scholarship, mostly by writing short summaries/items of interest to the academic world. Won’t today get hired at top school for that, which is a real issue.  It’s a move with substantial costs and substantial professional benefits.  We are breaking out of traditional molds in various respects—more peer reviewed journals; interdisciplinary publishing. But ways in which ideas are communicated through smaller quicker responses are not ways the legal academy is (yet) willing to recognize.

 

Kwall: Social media revolution has changed how we think and write in our daily lives.  But when you’re writing high impact scholarship, even if you’re going to be taking your article and spinning it to editorials [or amicus briefs!] those have to be based on the careful groundwork of your more thorough scholarship.  [For me, it goes both ways—having a series of blog posts on, say, Dastar, enables me to go back and identify trends/things that interest me theoretically.]  That can benefit your institution: being featured in media is in some ways better for reputational effect than just writing law review articles, but you can’t do media successfully without scholarship.

 

Dinwoodie: We’ve lost a little bit in having space to work through ideas; we need to be more pluralist about what’s good scholarship in methods, place of publication, etc. Should be less hesitation for young scholars to think about books than 15 years ago.  Online availability of chapters, at least, is making the ideas in a book capable of reaching more places than it was.

 

Yu: When he started, advice was to not write a book until you’ve been publishing for 10 years. The book he’d write now would be very different than the book he would have written starting out.  Think about what type of book you want to write—now he’s in a better position/more experienced.

 

Q about blogging: what’s the best way to avoid being taken over by trolls/have a productive conversation?  James Grimmelmann says blog in your own space.

 

Lemley: never read the comments.  Ironclad rule.  [Not so true of Livejournal, sigh.]  Discussion format has to be small group of repeat players whom you know.

Mapping the law prof twitterverse

Ryan Whalen maps the law prof Twitterverse.  My eccentricity turns out to be 4.0.  I’m not sure what that means, but based on the name, I probably would have guessed higher.

ABA Blawg 100: submitted for your consideration

I've already mentioned my pleasure to be on the nominated list along with my coauthor Eric Goldman's blog (under Tech for some reason).  Others well worth checking out in/around the advertising field include All About Advertising Law (Venable) and the FDA Law Blog (Hyman Phelps), both under Consumer Law.  Vote early and use your 13 votes wisely!

10-year blog anniversary

It's been 10 great years here at 43(b)log.  Thanks to everyone who reads!  Posting will be light this week because of obligations at school and home, but I will resume shortly.

ABA Journal Blawg 100

I’m on the ABA Journal’s Blawg 100, which is very nice.  Thanks to all you readers & correspondents!  Eric Goldman is, of course, returning to the list.

Why I now have a .ca domain name

Google just rolled this out: country-specific redirection for blogspot blogs like mine.  So tushnet.blogspot.ca gets you my blog, as does tushnet.blogspot.co.uk.  I found this out because the New Statesman picked up the Yahoo! "get the look" photo ad problem I shared, and apparently the source read the post in Canada.  This move allows Google to engage in country-specific compliance with non-US takedowns; we'll see how it goes.

Buffalo Panel #3/New Forms of Advertising Regulation

Laura Bradford, George Mason Law: Sponsorship Confusion

Consumers would prefer more transparent information about sponsorship, but the market is underproviding because of agency and other costs. It’s becoming more and more difficult to tell advertising from organic speech—viral YouTube videos and so on. Search engine results: why do results come up first? More of an issue before Google.

Historically, we have TM owners police deceptive uses of marks. They have more incentive to watch the marketplace carefully. But seller interests in sponsorship disclosure diverge from consumer interests—an agency cost, if we are concerned with consumer welfare. The linkage of a product with a well-known brand tells a consumer that someone with a lot to lose has control over the product: Apple’s reputation sells iPods; McDonald’s reputation sells burgers. But then there’s sponsorship—95% of new product introductions are brand extensions, and cobranding is also on the rise, allowing each brand access to the other’s customers. McDonald’s and Disney market Happy Meals that promote movies and food.

Some buyers punish brands for affiliation—Converse was an indie sneaker, until it was bought by Nike and some buyers abandoned it. Now the Black Spot sneaker, produced by a family business in Portugal, intended to show distance from artificial sameness of mass production, and (some) consumers want this.

Sponsorship and affiliation affects consumer preferences and gives them information about unobservable qualities. Consumers are also interested in learning about compatible products that may not be sold by the TM owner; may want to compare; but they do get useful information from sponsorship. (This doesn’t seem to go to sponsorship of communications v. sponsorship of products and services.)

Sellers: want to preserve the value and meaning of their own marks. Sellers are hurt by lack of common language for disclosing affiliation. They rely on logos/distinctive typefaces to indicate sponsorship, which means that TM owners are forced to police uses in unrelated markets. And she means forced; had to advise clients that they needed to send threat letters even in unrelated markets in order to preserve the right to go after real threats in the future. They have to object when anyone, anywhere accurately depicts the mark/logo. This is a coordination problem: TM owners can’t get together to provide a common language. There’s also an agency problem, because some benefit from uncertainty. There’s no penalty for obscuring sponsorship, as with product placement or guerrilla marketing. Consumers are getting more wary, but that just means that the real harm is the ability to have and trust organic speech.

Another harm: this gives TM owners broad power to pursue other goals. Consumer uncertainty = TM owners can safeguard preferred distribution channels by alleging affiliation confusion, shut down secondary markets in used goods, prevent competitors from using brand names in truthful ads for compatibility or comparability, police brand image by suppressing objectionable speech, etc. Advertisers don’t fully share the costs to consumers of uncertainty and get offsetting benefits.

Since TM law creates the problem by assigning enforcement of consumer interests to producers, TM law should deal with that problem by creating a new mark to realign incentives. The new (s) symbol would indicate a licensed use, and they’d be entitled to current levels of protection against sponsorship/endorsement confusion. Those who didn’t do so would need to provide clear and convincing evidence of confusion and materiality. Asks sellers to stand by their choices. If they want freedom to engage in ambiguous strategies, have to allow others to do so themselves. Shareholder derivative lawsuits: plaintiffs’ attorneys are incentivized to find potential harms, but because of the agency costs—risks of meritless lawsuits—we impose a heightened pleading standard.

Three possible outcomes, all an improvement: (1) everyone uses the (s) mark. Affiliation becomes much more transparent. Everyone learns to recognize it. (2) No one uses it; advertisers want to blur the lines. Heightened standard allows more freedom for organic users. Advertisers who don’t like it can use the (s). (3) Inconsistent use, most likely. Consumers remain uncertain. But the availability of the symbol may change courts’ approach—organic use would be given more breathing room. We’d also get more revealed preferences of sellers—when sponsorship information is seen as critical and when less important, for example by industry.

Katyal: Sees how it would work visually; how would it work orally/in movies?

A: In a lot of cases, you see the logo, so it wouldn’t be that hard to have a little (s) next to it, part of the way it’s depicted in the scene. Consumers would learn it has significance, in the same way that some brand names are blurred out and that practice teaches consumers about legal significance of appearance.

My Q: Seems to me that use and recognition might not covary as she says in (1), which would have consequences for the regime. And I’m not sure how you’d have the current standard and the availability of the (s)—sounds like she thinks the existence of the (s) would change the standard, and wouldn’t it do so even if the plaintiff did use the (s), because the plaintiff would be challenging a use without the (s) and thus have a decreased likelihood of confusion?

A: Yes, she assumes consumers will learn, and that’s key to the regime. And she agrees that it would be harder for everyone to win. Consumers can learn to see the absence of a symbol as an absence of sponsorship, and that would lower the likelihood of success for people who use the (s).

Ramsey: Oral use? Think about how it works with things like trade dress, etc.

A: Needs to be worked out. (Audio disclosure at beginning/end?) That’s advertiser’s job, if they want the protection.

Q: Why not mark when it’s not sponsored and disclaim?

A: That’s kind of the law now. The burden is on the user to show nonconfusion, and that’s hard in context. There’s no easy language to disclaim sponsorship either. Federal Expresso coffeeshop—not claiming affiliation. Because names are seen as indicators of sponsorship, no easy way to say “we’re not affiliated,” and disclosures/disclaimers often don’t work.

Q: Wouldn’t it be burdensome to have all the logos around sports arenas add an (s)?

A: Not a big one, and if they find it burdensome they don’t have to do so.

Stauffer: proposed EU directive: product placement would have to be generically disclosed with a black dot on the screen. Could have a tone for radio.

Why are you confident this won’t be coopted by the antibrands as well? The Yes Men will use the (s).

A: Then they’re likely to be confusing!

Errol Meidinger, University at Buffalo Law School, State University of New York: Branding Corporate Responsibility with Marks of Rectitude

Margaret Chon just published a piece on a similar topic; he’s been talking with her. Home Depot execs came to their building and found a giant banner: Stop selling old growth wood! Using their logo, too. Home Depot protesters brought inflatable chainsaw to the parking lot: thanks for helping Home Depot destroy the world’s old-growth forests! Homedepotsucks.com.

What should Home Depot do? Initially resisted getting certified, but ultimately adopted. Contestive branding: not just about the image, but the image is part of the regulatory regime being crafted.

Forest Stewardship Council: an example of corporate responsibility institutions. A set of institutions using activist targeting of corporate brands; standard setting institutions that accredit certifying organizations and attempt to balance North/South power. They certify products and communications. FSC is legislative: the certification requires meeting various criteria on biodiversity, monitoring, indigenous rights, and so on—looks like what a state would do except that no single state institution would be able to do it.

When Home Depot agreed, the Rainforest Action Network ran an ad in the NYT thanking them. Used the ad to attack other companies that weren’t yet on board.

Pour encourager les autres: After the Network turned its attention from Home Depot, it took only two phone calls to get Lowe’s to follow.

This triggers the growth of private competing certifiers—SFI, a US industry initiative for alternative “green” certification. Eventually, the industry coalitions turned into a worldwide certifier, PEFC. It’s a tournament of competing programs. He posits this has reshaped the forest policy arena, in which environmentalist- and industry-driven certifiers are setting global policies and NGOs and states are at the periphery.

Similar things have been happening in many other sectors: fisheries, organic, coffee, apparel, tourism, carbon footprints, energy efficiency, animal welfare, flowers, etc. He showed some beautifully designed logos, of which the Marine Stewardship Council was my favorite because of the checkmark integrated into the fish.

IP strategies: the Marine Stewardship Council tries to ensure the fish comes from a sustainably managed fishery. The policy is implemented through the logo, and shaped by the fact that it’s implemented through the logo. It’s registered as a mark in Australia, Canada, EU, Iceland, New Zealand, Sweden, Switzerland, and UK. Does license agreement with each user for a fee. On-product requirements: logo, plus statement about meeting MSC’s standards, plus chain of custody code number. MSC owns the mark but delegates the power to license it to MSC Int’l for IP purposes. Main concern is use by nonlicensed organizations. MSC denied its permission for use on a brochure attacking farm/acquaculture salmon—wants to give gold stars, not black marks. They are looking into a standard for aquaculture. They don’t allow any association with campaigns, and demand permission required for all uses.

He sees strategic concerns about future use of the mark ending up being a not insignificant inhibition on public speech.

Another element: certification wars: “Don’t Buy SFI: Certified Deception by the Same-old Forest Industry.” One entity filed a complaint with the FTC: there’s no chain of custody; it’s an industry organization; standards are deceptive because they’re not ecologically protective but littered with holes. (Reminds me of the “Animal Care Certified” case.) SFI filed a countercomplaint against the Forest Stewardship Council and the US Green Buildings Council arguing there’s too much variation in the standards—sometimes it can be certified if it’s grown in a lenient environment but not in another one; imperfect auditing/chain of custody. Also making antitrust allegations because the USGBC has accepted the FSC as the sole source for certification for LEED green building standards, with allegedly anticompetive effects. FSC also doesn’t admit prospective members who publicly criticize the FSC.

And then there’s the question of the WTO: the WTO gives presumptive validity to relevant international standards. One hope is that these standards will be absorbed into international law this way.

Competition for moral authority. NGO v. industry fight, NGO v. corporate. IKEA prides itself on buying FSC wood, but doesn’t display any FSC labels in its stores. Is that a problem, for IKEA to take green branding and put it into the IKEA label?

Ramsey: This is an area where nonprofits are offering up information—complicates the commercial speech account/claims that TM law should be limited to commercial speech. You mentioned prohibitions on use by campaigns: is that justified?

A: He doesn’t make a commercial/political distinction. Maybe it’s not so bad to disallow the use of the logo in political debate—you can talk about the Council.

Ramsey: but bloggers often like to have the logo there (heh).

A: If the point is to brand rectitude, to withhold the use of the logo is a little odd—making moral claims signified in a special way. (Well, just because they say that’s their rule, doesn’t mean it’s the rule by which bloggers must govern themselves, as I believe I am demonstrating—the moral claims are made by application to fish, not to blogs.)

Rebecca Tushnet, Georgetown Law: Ad Creep, Astroturf, and Other Challenges of the Attention Economy

I have a very rough draft in which I talk about my own crackpot theories of why ads are colonizing every aspect of existence. The bulk of the paper is given over to defending advertising law’s ability to follow ads where they go, even in the realm of user-generated content, subject not to First Amendment constraints but to §230. I argue that §230 does in fact prohibit liability for advertiser adoption of pure user-generated content, creating a possibility of regulatory arbitrage (since the user will be subject only to state-law defamation standards while the advertiser who “said” the same things would be subject to strict liability under the Lanham Act), and that we might want to think about revising §230 in this specific circumstance, though opening up §230 might be so risky that it’s not worth the cost. By contrast, I argue, contrary to Eric Goldman and in agreement with Paul Alan Levy, that the FTC’s new endorsement guidelines are fully compatible with §230, since they make the advertiser responsible for a blogger’s content based not on the provision of internet access (nor even associated payment/consideration for same) but on other agency principles.

Questions focused on what counts for the FTC’s purposes—not a free book, but a free Playstation—and aforesaid crackpot theories of how ads, like porn and protest, are in a dynamic of getting more and more extreme so as to overcome our exhaustion and ennui.

Where are all the men bloggers?

Sometimes, a little heavy-handed satire is just what you need. Warning: some commenters seriously attempt to fill out their sexist bingo cards on this one.

iPhone apps: cash cow or anticommons?

Apple exercises a lot of control over its App Store, raising various issues. But other people would like a piece of that pie (no pun intended) as well, including transit authorities. The latest story involves NY's MTA, which is in the process of negotiating a license with the developer of StationStops. To his credit, the developer insists that the license must be for extra benefits--easy, secure updating of the data--rather than access to the data themselves, since those are by nature public facts. He's blogging the entire thing, which the MTA would probably prefer he not do, but I like a lot.

The Future of Today’s Legal Scholarship, Part 3

Panel 2: Blogs and Reliability

Tom Goldstein, Akin Gump: Startup costs matter: you don’t need to find a publisher to get your words out. Incentive system: blogs are widely linked to and content behind walls is not, which means this form is here to stay for people concerned with distribution.

Goldstein is committed to blogging, and thinks you should regard them as utterly unreliable, and not a reasonable, permanent source for tracking information and materials. He spends $100,000 a year on SCOTUSblog, whose staff includes a 40-year veteran Supreme Court reporter. Our reputations and livelihood depend on the accuracy of the blog. Yet he has very little interest in determining the underlying accuracy of the facts in the documents he puts up, and it’s in the nature of blogging to write quickly.

Blogging is valuable. If you were to take away blogs associated with news organizations, like the blog of the Legal Times, there isn’t a better blog than ours journalistically—we have journalistic independence and other editorial measures. And yet if we don’t verify that a document really is “the opinion” in a case or “the record” in the case, that should strike fear in the heart of anyone concerned with long-term historical accuracy—he finds these on Google or Wikipedia. If he doesn’t verify the document, he promises you that no one else does either.

A blogger is not pursuing library goals. A blogger is pursuing the (utterly misguided) impression that other people care about what s/he has to say—that’s why s/he gets up and writes day after day. Many blogs are abandoned: people think they will have a lot to say but run out of energy. The mindset that gets past that is an egomaniacal belief that you have something to contribute, or the equally misguided view that there are positive business implications. (SCOTUSblog has brought in possibly 2 cases over 6 years.) The motivations behind blogging don’t generally correspond with the value set of having a permanent, accurate archive in which the accuracy of the underlying materials cited is also of concern. Whether or not that’s Barak Obama’s birth certificate is beside the point; some bloggers are convinced it isn’t.

Comment: Is this a library concern? It’s a scholarly concern, but how many librarians routinely investigate whether the books they buy verify the accuracy of the underlying materials? Well, we take scholarly publishers as filters for that sort of thing, though of course they aren’t because they don’t cite check the way law reviews do—rant about what law reviews think is cite checking excluded—and it’s fair to say that libraries treat books as independent objects without worrying too much about the sources unless a specific controversy develops. (And of course this is tied to linking culture: we wouldn’t expect a book on law to contain entire copies of the underlying legal cases the way we expect links to the full text of court decisions online.) On the other hand, there is something to be said for relying on publishers and academics to internalize their own norms of verifiability, so I agree that verifiability is implicit in book culture; Goldstein is pointing to something that may be a more salient concern now (though I’m not sure how often anybody fakes a district court opinion, or even fakes a document that appears on TMZ) given the collapse of gatekeeping.

SCOTUSWiki: unlike the blog, doesn’t expire in 12 hours—the mentality of a blog post is that in a week the post is less valuable even if it is about a case that won’t be argued until 6 months from now. A sense of permanent value comes from a law review, or possibly from a non-blog internet source. The scroll function denigrates the longterm value of a blog post.

“Permanent” in internet terms means “it will probably be there tomorrow.” He hosts the briefs and other documents in upcoming cases, but he has no idea where those bits really are or what would happen if the server crashed. Somebody representing themselves as being from the Library of Congress asked to save a copy of his site, so you can find the early days of SCOTUSblog at archive.org and the LoC. But he doesn’t know anything about archive.org; he cares about the blog and about accuracy, but he’s still pathologically clueless about preservation.

Toby McIntosh, Director of Editorial Quality Review, BNA

He’s a traditional media guy, used to responding to criticisms of traditional media. (Did you know there was a Furniture Law Blog?) Reliability of documents: most blogs don’t bother to link to documents at all. We almost never take documents from blogs, but do quote from blogs. Different courts correct opinions different ways, which means we have to verify links—don’t want to link to an opinion that was subsequently amended. We may have to write a new story about a new deadline for comments in an administrative proceeding: trying to be a publisher of record, doing stories on technical correction amendments to laws.

Draft bills: when they get draft bills, they have to make sure that the source is reliable and up-to-date.

Blogs don’t tend to have corrections policies. SCOTUSblog does; it’s a sign of integrity that you acknowledge mistakes.

Unlike blogs, we have a mission to be comprehensive. And neutral. We’re trying to get into the area of shorter-than-law-review articles. Have trouble dealing with things like anonymous commenters (among which he includes pseudonymous, which I would not—if someone consistently posts under a particular pseudonym, that person has an identity; could you pick me out of a lineup just because I post under a particular name).

The democratization of legal analysis: at what point do we say that a person’s viewpoint isn’t worth reporting because of lack of credibility/credentials? Editors troll for quotes, ideas and concepts, trying to find useful/relevant materials. University of Montana law students did hour-by-hour coverage of an important environmental case: no for-profit publisher could ever do that. We try to verify blog facts—many editors don’t want to quote blogs but want to call the blogger and talk. Some BNA publications are trying columns about what’s going on in the blogs, but that hasn’t been very successful yet (we read so you don’t have to model). We’re looking for experts, whether they’re blogging or not, and plenty of experts wouldn’t touch a blog.

Mike Wash, CIO, US GPO

The challenges of blogs have been present from the beginning of the internet. Authenticity (including proper versioning), permanency, public access and availability for printing/copying are key principles. The same principles can be applied to blogs, as well as audio and video.

FDsys: a content management system, controling digital content throughout its lifecycle. They do know where their bits are, unlike Goldstein. It’s a preservation repository, following archival standards—preserves signature blocks on legislation, creating a trail for each actual document. It’s also an advanced search engine using extensive metadata. Increased preservation and search capacity planned for the future.

Given the rate of change of tech, many concepts of preservation used for federal documents weren’t even being considered 15 years ago—blogs may be in that state today. Maybe there could be signatures that could travel with a blog post, providing a chain of custody.

Goldstein: Bloggers, as distinct from other publishers, have less time/willingness to invest time, less money/willingness to invest money, and are interested in boldface instead of subtle. Wash’s work is timeconsuming, expensive, and subtle. The importance of a permanent archive is transcendant for the nation as a whole, but not immediately apparent to the ordinary blogger. Sounds great to librarians, but not of much concern to average nonacademic bloggers.

McIntosh: Ordinary people won’t care until someone distorts a document to scam them.

Goldstein: Importance of reaching out to blogging culture and transmitting these values.

Q: are blogs considered federal documents that need permanence?

Wash: blogs are not government documents under our current rules.

Goldstein: A different reliability question: bloggers blog about things they’re interested in; we don’t tend to be comprehensive (though SCOTUSblog is now)—they might stop and take a break. Collectively the group is likely to be more comprehensive than more permanent journalistic institutions, but individually they are much less reliable. An accurate, well-vetted historical repository is a scary prospect, just because of the finances. Is not sure institutions that care about integrity are going to be able to survive (thinks law reviews are ultimately unsustainable).

Q: A CC license would help preservation.

Goldstein: He’s never asserted copyright over SCOTUSblog—the idea that someone feels a need to license it is one of those things he’s never thought about.

Q: As the person responsible for a preservation effort, being advised by Stanford lawyers she trusts, she doesn’t collect material for preservation without explicit permission, which is their interpretation of the DMCA. If you wanted to do something really simple to allow people who do care about preservation to do so, a CC license would be the thing. (This exchange reminds me of Niva Elkin-Koren’s criticisms of the CC license as feeding into a permission culture.)

Goldstein: His point in being hyperbolic about the unreliability of blogs is to emphasize that many bloggers don’t think about these things, even though SCOTUSblog values its reputation.

The Future of Today's Legal Scholarship part 2

Panel 1: The Future Research Value of Blogs

Chris Borgen, St. John’s University School of Law (Opinio Juris): he wasn’t thinking about creating an authoritative site. He was thinking: I’ve been working on this article for 5 months and if I have to read one more case on the subject I’m going to drill a hole in my skull, so I want to write about something else. A blog sounded like fun. “Let’s put on a show!” Now we have document retention issues, contracts with third parties, guest bloggers from the State Department, management issues (platform, reliability, etc.). Keep in mind: blogs have already evolved very quickly.

At the outset, blogs were basically journals, like Facebook now. Less-networked social networks. Some blogs are like newspapers, reporting on a particular area. Blogs can also be like law reviews, posting longer analysis, ideally somewhat neutral. This is an area of convergence with blogs & law reviews, like the Yale Pocket Part. Opinio Juris has agreements with Virginia and Yale international law journals—the blog does symposia on each issue of the journals as they come out. Blogs can also be bully pulpits. They can be like TV.

Blogs are good at news, and at issue-spotting: pointing out interesting stuff within a particular field. Also good at publicizing: Larry Solum does a great job of getting info out about articles of note on SSRN. And good at community-building, which is drastically different from law reviews—he knows his commenters quite well. Feedback and discussion.

Blogs are not so great at deep writing and deep reading—readers generally assume that they won’t be reading for a long time. The outside length: 7 paragraphs. (Whoops.) Average reader time on site for a post: 3 minutes. Larry Solum’s blog is an outlier.

Where blogs, including legal blogs, made a difference: Guantanamo, torture, Abu Ghraib, and related issues. Did a better job than mainstream media and law reviews because of blog-specific advantages: blogs were able to get to the issues very quickly; without editorial boards there was less need to worry about political contentiousness; these were legal academics with deep expertise—didn’t have to educate a reporter about what the Geneva Conventions were, so people could write quickly and with a great deal of precision; multiple bloggers and commenters allowed access to the wisdom of many minds.

Lee Peoples, Oklahoma City U. School of Law: Scholars may want to use blogs to influence courts: instead of writing a law review article that may take a while and may be missed by a court, you can wait for an issue to come along and then write about it at just the right time. We know that courts are reading and citing blogs. Attorneys blog about their cases: potential ethical issues.

Kennedy v. Louisiana: both majority and dissent said there was no federal death penalty for raping a child, but a blogger pointed out that there was a military law authorizing that penalty. Linda Greenhouse broke the story the next day in the NYT; the state petitioned for rehearing, and the Court ultimately amended the opinions.

July 2007-May 2009, 29 opinions cite blogs, mainly to support the court’s reasoning or analysis. 17: citing to support facts. Doug Berman’s Sentencing Law & Policy retains its predominance. Goal of citation: give the future researcher/lawyer/judge enough information to view the post as it was when the court looked at it. Bluebook rule has room for improvement; hangs its hat on date/time stamp. If everyone followed this, and assuming that the blog wasn’t changed or deleted, it could work, but courts aren’t following the Bluebook rule. Only 1 of 29 opinions followed the rule. 23 out of 29 included direct links—better approach than alternative generic link.

How do links get put into Lexis or Westlaw? Westlaw adds in spaces so the link doesn’t work. That’s a problem.

1 of 29 citations: blog deleted. Some bloggers change posts, not always signalled: 3 out of 29 had been changed in his survey. Best practice for courts (11 out of 29): include a direct quotation. That still leaves you looking for context/surrounding posts.

Need a federal/state rule about citation, not just Bluebook.

Unanswered legal questions: ethics, including ethics of blogging a pending case you’re involved in. What about judges using blogs as independent legal research? Not different from reading a law review article/treatise; if it’s by a true expert, it will have up-to-date information. But what about judges doing independent factual research? Citing blogs for facts seems to violate the prohibition on judges doing factual research on their own. Reversible error found in citing Wikipedia for facts.

What about judicial notice? No one’s asked a court to do this yet, though it’s come up with Wikipedia and courts are split. Also creates extra information for experts to look at: is it okay for experts to rely on blogs? Should courts look at experts’ blogs in evaluating what they say?

Margaret Schilt, Chicago Law: People don’t agree whether blogging is scholarship, teaching, or service, but it fits in there somewhere. Blogging is a medium; content determines whether it’s scholarship, and that’s judged by readers. If it meets normal standards for legal scholarship, then it is, and the question is whether it’s good or not. Howard Wasserman got tenure including his blog in his scholarship: as a complement and alternative to core legal scholarship.

Functions: testing ground for new ideas. Collaboration; commentary on recent events. Discussions that could have taken place in symposia or in letters columns. Related perhaps to the move towards the shorter form of legal scholarship—50 pages instead of 120. And law reviews have moved to occupy a niche between the law review and the blog: response pieces that are solicited/submitted, edited, and cited as part of the law review, but is more informal in tone. New collaboration of 7 journals, including Georgetown’s: “legal workshop” for a general audience that is screened and edited.

Cite checking is easier, because the blog is probably there shortly after the article is written. But what about 20 years later? Law reviews haven’t taken responsibility for archiving—“unpublished paper” is probably on file with the author, or thrown out because of lack of space. This may need to change.

Do libraries have an obligation to archive blogs? If they’re legal scholarship, and our mission is to archive legal scholarship, then syllogistically we do. But one could argue that what is scholarly about blogs eventually makes its way into published articles. Blogs test ideas/get feedback in the writing process. If that’s how blogs are being used, then what is good will end up in traditional scholarship and will be preserved. Is this good enough? There’s historical precedent: workshops and symposia were held for the same purpose.

Problems: sometimes the ideas never make it to publication, simply because of the pace of scholarly discussions. Also: variety of types of posting within blogs. Few blogs are 100% legal scholarship. Volokh Conspiracy/Balnkinization—do we want to put our resources into Ilya Somin’s Monday Sloth Bear blogging? Deleted blogs—the material won’t be available to other scholars if the writer decides to “stop clogging up the blogosphere.” How will the historians of the 2050s talk about public policy debates in the 2000s? We have newspaper records from 1900s; someone has to take charge of preservation issues.

Borgen: when he started, it was play; now there’s a big payoff if you do it right and a big risk if you do it wrong. His message: try out blogging in pretenure years, but don’t spend a lot of time on it. Doug Berman argued that pretenure profs should blog more, and a third person on a recent panel argued tht pretenure profs shouldn’t blog at all. Blogging is a medium, not one single thing. Many different styles. Blogs are like print media: there are journals, newsletters, etc.

Social networking will be a big change: Facebook has taken over what used to be part of the blogosphere. Twitter: Opinio Juris is talking about using Twitter. (Note: I automatically crosspost to Twitter, thence to Facebook.) People who approach blogs like law reviews tend to write bad blog posts. As we start to use new things like embedded video, we’ll have to learn new skills: being good on camera is completely different from writing a good essay.

Peoples: He is particularly concerned when courts cite blogs—the justification for preservation is much stronger.

Schilt: Blogs filled a niche that was previously unfilled: that demand is not going to go away, whatever the ultimate structure.

The Future of Today's Legal Scholarship

The Future of Today’s Legal Scholarship, a symposium at Georgetown Law in honor of Robert L. Oakley

Opening Remarks: Bob Berring, Berkeley Law

Students speak a different information language. They are no longer speaking the language of books, indexes, double lookups—an entire structure of authority/trust is no longer part of their world. They don’t look at authority in the same way—they use what is available to them. (As we did in the world of books and indexes.)

“I shepardized it” used to be a way to invoke authority and security: if you did that, you were secure, you’d done what you were supposed to do, even if you missed something. Certain periodicals represented intellectual power. Enormous thought given to library classification (the difference between Scientific American and Mad Magazine), to what books were in the reference room: what books were easiest to use. The most valuable books were there, but also tightly controlled so that they couldn’t be monopolized by particular users.

That authority system is gone. Encyclopedia Britannica doesn’t have the same power, much less success. Some of those sources are disappearing—no published catalogs of baseball statistics, for example. Instead, we get unfiltered information--Wikipedia isn’t completely unfiltered—banned Scientology edits on Scientology, for example—but it’s user-produced. Even if you take it with a grain of salt, it’s undeniable that Wikipedia is a great place to start.

Recommended: David Post’s In Search of Jefferson’s Moose: the most important question about an information source is not “is it accurate” but “does it work?” (Aside: Rachel Maines has the best anecdote ever about this question, highlighting an important truth about technology and culture that is actually relevant to Berring’s talk. See below.) Still, we haven’t replaced the old standards: the university press, peer review, the editorial process, names you can rely on without thinking—those names exist, but they aren’t settled. (Query: Did everybody rely on Walter Cronkite thirty years ago? Or did we actually consider the opinions of everybody, or only everybody who counted? I don’t have of an answer for that, but—and I don’t think Berring is doing this—I distrust invocations of an idealized information past of quality and trustworthiness. That’s also the past where James Tiptree was well advised to use a man’s name to publish, and so on.)

Treatise writers used to promise to read every case and condense them, holding it all in their own minds. This used to be possible, but is not any more—the end of the treatise tradition. But we still need someplace to go. The shift went to academic law reviews. (In IP, treatises are still pretty powerful. It’s at least possible for a small group of people or maybe even one person to monitor most of the decided cases, and decide whether or not to include them.)

So, when will someone get tenure for legal blogging? The top universities haven’t been able to look beyond academic law reviews. Yet judges aren’t reading law reviews; with Lexis and Westlaw you can tear articles apart looking for their footnotes, which is often what you’re more interested in anyway. What will replace it? Auxiliary blogs like the Yale Pocket Part? Institutional problem: law review staff turns over too fast.

Blogs form a new kind of discussion. Samuel Johnson published his own newspaper every couple of weeks, every word his own—I.F. Stone did the same thing. Information ripple effect: small number of readers, but the right readers, who pass it on if it’s of larger interest. This used to be true of a select number of authority sources, like The New England Journal of Medicine, which could filter into the NYT, which could filter into the TV news, which could become general knowledge. Now SCOTUSblog can do the same thing.

Blogs are good for hot documents, but will those documents remain available? Library orientation towards preservation creates a conflict: blogs have authority without the archival function (both physical and the cognitive effort of holding things together in the mind) that used to go along with authority when authority was collected in physical objects.

There are access issues in the new world as well. Oceans of information can be exclusionary: who can understand a thousand-page health care bill? Nobody reads the budget.

Libraries remain the place where information can be preserved. Blogs are immediate, replicating the feeling of being in a room with Samuel Johnson, talking to the most brilliant people. But blogs are going to be outrun in the end, too.

Here’s the Rachel Maines anecdote:

The curator and I were down in collection storage examining the vibrator collection …. The curator … was taking the opportunity … to expand and update the information on his catalog cards. Since I had museum training, I was permitted to write (in pencil, of course) on the cards the new information, such as weight, measurements, number of vibratodes (attachments), and so on. We came to … an early twentieth-century medical vibrator with a selection of about half a dozen vibratodes. I asked the curator if the device was still operational. Looking into the box, Al unerringly selected the most appropriate of the attachments, plugged the cord into a wall outlet, and flipped the switch. No response. Unplugging the device, he pulled a small screwdriver from his pocket, made several mysterious adjustments, and again plugged in the instrument, which then buzzed vigorously when turned on…. Thanking Al, who began putting away the artifact, I wrote “runs” in the “remarks” suggestion of the catalog card…. About half an hour later the museum’s director came down and asked how we were getting along. I told him we had just plugged in one of the vibrators and tried it out. “And did it work?” he asked. “We don’t know if it works,” Al replied solemnly. “We only know that it runs.”

(I highly recommend the book, The Technology of Orgasm—see Zach Schrag’s layperson’s reading list in American history, which points out that “Americans are people who believe that if something is worth doing, it’s worth doing with power tools.” Which also draws a connective line between Johnson’s newspaper and Tom Goldstein’s blog, now that I think about it.)

Public Citizen's guide for citizen-bloggers

Public Citizen explains the guide as follows:

This is a guide for bloggers and non-profit organizations about writing with libel considerations in mind. The guide discusses the elementary principles of libel law and explains how to prepare for and conduct a pre-publication libel review. It is particularly importance to have a third party, not otherwise involved in the preparation of a report or blog post that criticizes individuals or organizations, compare all possibly-defamatory statements with the sources for those statements.

It should prove very useful to citizen journalists.

Two posts

Side by side in my Google Reader:

C. Edwin Baker, The Future of News, Part One-- The Problem (Balkinization)

"We Ain't Seen Nothin' Yet": Jack Driscoll on Community Journalism (Part One) (Confessions of an Aca-Fan) (which starts with a discussion of the quote "now anyone with a computer is a newspaper")

Georgetown conference on blogging and legal scholarship

Last Thursday would have been Bob Oakley’s 63^rd birthday. Bob, the director of the law library at Georgetown, was a dynamic and scholarly leader who is much missed. Today, the Georgetown Law Library announced a symposium dedicated to his memory.

Immediately preceding the 2009 AALL Annual Meeting, on Saturday, July 25, the Georgetown Law Library will be holding The Future of Today’s Legal Scholarship (FTLS), a Symposium in Honor of Bob Oakley, which will build upon the fundamental assumption that blogs are an integral part of today’s legal scholarship.

This symposium will bring together academic bloggers, librarians, and experts in preservation to brainstorm and debate the great challenges presented for future researchers of materials currently populating the blogosphere. These challenges include unreliable materials, disappearing scholarship and documents, and the proliferation of online legal scholarship. Symposium participants will collectively develop innovative practices to ensure that valuable scholarship is not easily lost.

Join the conversation now by tagging items you think are relevant to this symposium with the del.icio.us tag FTLS2009.

Details about the symposium and a complete list of all FTLS2009 tagged items can be found at http://www.ll.georgetown.edu/ftls/.

Blogrolling

A marketing fellow at Frankfurt Kurnit Klein & Selz, a media and entertainment law firm, sent me a nice note about the firm’s new blog focusing on advertising to children—CARU, COPPA, lawsuits involving toymakers, cereal advertising restrictions in the UK, and so on, mostly pretty straight reporting. There are a few months’ worth of posts up now, so if it sounds plausible to any of my readers, they can check it out. My blogroll policy is not so much a policy as it is entirely undefined; once in a while I add or remove links of possible interest to my imagined audience. Anyone is welcome to nominate candidates, but I’ll probably be most receptive to advertising law-related sites, and secondarily trademark law-related sites, because of their relative rarity.

While I'm linking, though, I should really tout xkcd.com, accurately billed as "a webcomic of romance, sarcasm, math and language." Though "programming" should probably have been in there too. One of the folks in the registrar's office at Georgetown law has Exploits of a Mom up on the wall; even if you don't know what "drop table" does, I bet you can figure it out from context. My current favorite is Action Movies--side note, River Tam and I have the same initials! Sadly, I can't kill you with my brain. Anyway, if you check out xkcd, don't miss the little text boxes that pop up when you mouse over the images, either.

Michigan Telecom & Tech Law Review Blog

A new addition to the blogroll.

My blogging policy

As the IP Works in Progress conference approaches, I thought I should say something about my policy on blogging conferences. I treat conferences as open by default, and so I generally plan to share my notes on presentations. Especially when work is in early stages, though, some people are uncomfortable with this. So I won’t post notes if a presenter asks me – or asks everyone, via announcement or word to the organizers – not to do so. I will not publicize any such requests. If I make a mistake, I will edit or delete posts. Because I have a bad memory – which is part of why I take notes – I probably won’t remember that a person opted out by the time the next conference rolls around, so in general I will treat each conference separately.

Works in progress are just that, and should not be judged by the standards applied to finished work. (And people’s relationship to their finished work changes over time, too; there are some things in print I’d never write again.) But we share unfinished works because they’re useful to other people as well as because we can get good suggestions – it's not a one-way street. And if you’re going to the right conferences, a good number of the people whose opinions matter will be able to judge your presentation for themselves.

Regardless, I suspect legal academia is going to have to learn greater formal appreciation for beta versions – the rise of preprint sites like SSRN is a step in that direction. But I have no interest in defying presenters’ preferences.