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Saturday, November 23, 2002

Gate C-17

O'Hare is a far sunnier place today than it was Thursday afternoon, thus making my connection much less a roll of the dice. Since I have a few minutes, I wanted to take a moment to thank and congratulate the LawMeme and ISP folks for bringing together such a fine group for yesterday's conference, and confirm the rumor that Yale's Prof. Jack Balkin does, indeed, have the funk (the guy's so gracious, you can hardly tell where my foot was lodged so recently yet so firmly in my mouth in his presence...d'oh!). Safe travel to all the folks who came a long way to contribute their wit and wisdom. (So, I suppose it's old news that Daypop is back?)

Friday, November 22, 2002

Revenge Of The Blog: Blogs And Journalism

The folks here blogging the conference (aside from the LawMemers, who are posting on their main page) have posted links to their sites here. [The Digital ID World gang really needs to get its super conference blog aggregator out there.] After blogging-speaking-blogging, I'm tapped out for now. Here's an observation about the beginning of the final panel; please see the other bloggers for more. John Hiler made excellent points about the addictive nature of blogs both to those who read and write them, and the fact that in order for businesses to blog effectively, they need to recognize and participate in these more organic and personal aspects of the medium. [Aside: Glenn Reynolds made a great related point as a follow up to my panel comments: that blogs, done right, provide the reader with a unique opportunity to get to *know* the writer, without and/or before ever meeting him or her. You establish a familiarity and relationship. From a legal marketing standpoint, someone who follows your blogged writing knows a lot about who you are -- and whether they think they'd have a good working relationship with you -- before they ever pick up the phone.]

Revenge Of The Blog: Featured Speaker Mickey Kaus

Highlights from Mickey Kaus' talk: The question "Is that enough to go with?" is not an issue for the blogger. Half-finished ideas are sort of the point. Put the idea out there, let people tell you if it's good or not. The shift away from more traditional, print technology press practices: Mickey probably couldn't write a "lead" or "billboard" paragraph anymore if you asked him to. There was a very bad editor at the L.A. times who said: "Do it once, do it right, and do it long." This is a really dumb philosophy for a newspaper, and this is why the L.A. Times failed to break any scandals while this guy was editor. In blogging, you don't do it once, you do it repeatedly. You don't do it right, but through feedback you eventually get it right. You don't do it long. Six questions: Will blogs displace conventional media? No. Next question. (Audience laughs.) Follow-up discussion regarding access point Henry Copeland made earlier. Will blogging make money? No. "This RSS stuff, I assume this will kill us completely." But it doesn't really matter if blogging makes money; not really why it's done. Why are [political] blogs so right-wing? Theory that the right wing is just more pissed off than most will be tested, because the left is now getting more and more pissed off. Mickey favors the media bias theory. The New York times is still very important, and as long as it's there, there'll be a reaction on the Web. Will blogs change black letter first amendment law for everyone? There are a bunch of hidden assumptions under first amendment law, e.g., once something's printed, it's hard to correct. Many factors militate toward changing the libel law, making it harder to sue, easier to speak: (1) Changing definition of what is the "press." Traditional corporate view was wrong before the advent of blogging, but now it's wrong and untenable. Journalists have a harder time claiming they have "special" first amendment rights, when more nonprofessionals are doing similar things. Things we talk about in our daily lives could never survive if the libel law were strictly applied to "over the back fence" conversations taking place on the Web. (2) The technology of correction is much better than it used to be. Should change the underlying balance of how grievous it is to say something inaccurate about someone on the Web. (3) There is a different ecology emerging of how the truth comes out. It's becoming more of a dialogue; the truth comes back via return email. Mickey feels comfortable engaging in rampant speculation, knowing that he will be corrected very quickly and that he has the ability to flip completely if appropriate. If we think this is a good way to find out the truth, our notions of what is negligent shift. Mickey doesn't call everyone for a reaction the way he did when he wrote for the conventional media. Almost always it's a useful call, but you tend not to make it in blogging, knowing you'll get a corrective email if it's in order. Relaxation of the front-end standards, but the end result is just as efficient at getting to the truth. (4) Speed. Mickey, when operating as an unpaid blogger, was quoted $20k for libel insurance (Glenn Reynolds pays much less under a rider on his homeowner's policy). Under the Microsoft umbrella with Slate, this is no longer such a concern. Concerning Mickey's situation with Microsoft, and whether corporations can do blogging: ABC's The Note is a good example that technically it can be done. But corporate liability considerations may keep corporations from being as "fast" as this medium demands. Will blogging lead to more tribal cocooning, only reinforcing a reader's preexisting world view, hermetically sealed spheres of thought? No. Mickey agrees with Glenn Reynolds. Blogs are the antidote to living within one's own secluded world. Cocooning is a danger in our society, and the Web and talk radio can exacerbate the tendency. A couple of things about blogs, they are wormholes to disparate viewpoints, and they force you to actually grapple with an opposing argument and not dismiss it with a cliche epithet. There are Darwinian forces in play that motivate civil dialogue between parties in disagreement. Remember Mel Brooks' routine about the liquid Prell commercial? Shampoo falls on the shower floor, daughter says "you broke it," mother says, "it's unbreakable." 2000 year old man identifies liquid Prell as most important innovation to mankind, because mom and daughter "are talking again!" It's hard to tear down people you have a relationship with, even if you are diametrically opposed to their beliefs. Is blogging a good thing? Mentions the Lagniappe blog, maintained by Derek Lowe, immediately to my right. A blog by a medicinal chemist with an unnamed phara firm about issues pertinent to his industry. You can envision Detroit equivalents for the automotive industry, etc. Good ideas come from bad ideas...the Blogosphere is a world of bad ideas! Web ---> complexity, interdependence, freedom. Blogging helps that process get here faster than it otherwise would. [Aside: James Grimmelmann and I earlier were discussing the uptake of blogging in various industries, wondering about medicine and pharmaceuticals in particular. Derek's blog, and links from there, start to answer our questions.] Questions: Concerning drawing first amendment distinctions between professional journalists and others writing on the Web: The Blogosphere, as a whole, corrects inaccuracies quickly. Two possibilities: one assumes a reader is getting information from just one (inaccurate) source, or a reader (as blog readers do) grazes, and have the harm corrected from other sources. No easy answers, but these factors need to factor into the liability analysis. Glenn Reynolds mentions Google. The availability and access of all this information matters to how we evaluate things like libel and disclosure. Example: when writing about music issues for Fox, Glenn tried unsuccessfully to include in his tagline his involvement in technomusic, etc. Someone emailed, "you should have mentioned that." His response: "Yes, I tried. But it really doesn't matter, someone sufficiently interested could Google me." Concerning private self-sensorship out of concern for one's reputation or the Darwinian forces mentioned previously: Not too troubling to Mickey, better than it was before. Before there were hundreds of people Mickey worried about offending; now there's only one (Drudge). There's always some conflict of interest, it's a mistake to assume traditional journalists are any more immune.

Revenge Of The Blog: Keynote Address By Glenn Reynolds

Preliminaries: opening remarks by Rob Heverly and Ernie Miller. "LawMeme motto: Human laws are born, live and die." Highlights from Glenn Reynolds' Keynote address: Glenn discussed some interesting evolutions, both at Yale law school and in the thinking about law and technology. (Once upon a time: What sort of legal issues could possibly pertain to technology?) "The Internet is a big playground for guys like me...I've sold not one, but two cds to guys in Iraq!" The fun of the Internet is probably its most important component, and one that doesn't get nearly enough attention. Shift from traditional notions of claiming discussion space exclusively for oneself, and linking both to those you agree with, and even more prolifically to those you do not agree with. "A newspaper is a lecture; the Web is a conversation." (James Lileks) Old media on the Web tend not to link away; weblogs don't tend to worry about that, and consequently seem to generate traffic pretty well. Some of the blogging culture is beginning to penetrate big media sites; it'll be interesting to see how this develops. Glenn frequently gets asked: how sustainable is this? It's a good question. There's a good deal of turnover in the Blogosphere at the moment. Others are still very much around. The upside is this: blogs are cheap. Nick Denton calls them "thin media." [Later: Henry Copeland clarifies: "Thin media was in fact a term I coined after Nick launched Gizmodo and called it 'lean media.'"] Glenn's site is like a small newspaper (minus the revenue). His costs (or lack thereof) are what is notable. Unlimited bandwidth for $36/month. It's certainly possible to spend a lot of money on the Web (accrue $75 million in debt, for example, if you're Salon). Good example of a low cost, highly popular and growing site is Gizmodo; lots of opportunities for things like that. Glenn frequently gets asked: why aren't you trying to make a lot of money out of this? (He thinks this is not an entirely disinterested inquiry.) The fact that blogging is cheap means you don't have to make money to do it, and he thinks there's a place for this, the writings and opinions of amateurs. Thinks we'll see the growth of many "thin media" approaches, that will be partially competitive and partially symbiotic with big media. Killer app for big media is hard news, straight reporting. Opinion and analysis are cheap; weblogs can deliver them as well as big media, but are not likely to be as good as big media at hard news. (Glenn can envision a distributed system for delivering hard news via weblogs, with a Slashdot-like rating system for posters, etc. Encourages the technology-oriented folks to think about this, but doesn't see it being a threat to big media's corner on delivering hard news any time soon.) The political consequences of weblogs are easy to exaggerate. The computer-related phenomenon Glenn thinks is likely to have the biggest long-term effect on society is gaming. Civilization, for example. The assumptions built into the game propel you in a particular direction over time; appeasement doesn't work, the appearance of weakness draws hostile attacks, etc. All kinds of subliminal political ideas built into the AI of the game. There's subtle and interesting stuff there. But journalists don't game. They do read weblogs. Weblogs affect journalistic thinking. They get ideas past the gatekeepers in a variety of ways. Faster, looser organizations that can take advantage of this phenomenon have an edge. Transparency within organizations also is amplified, when there's a blogger discussing how things work. As time passes, the Blogosphere will not be as new and exciting, and may morph into other things. Audio and/or visual blogging? Adam Curry and Dave Winer supposedly are working on software apps to make audio blogging easier. Personal observations: Glenn just sort of started his blog, emailed some friends. Thought it would be fun. This is the first time he's tried to run something that was meant to be read regularly. Hoped to get a couple of hundred quality readers; wound up getting a lot more. It helps him teach, relate to students. Increases the knowledge he can pass along as an instructor. Discussion re importance of referrer id's in the weblog world; how you learn new things from people you've never heard of when they link to you and you go visit their site. Has emphasized for Glenn the real value of free speach. When you get a lot of traffic and a lot of email from people, you cannot help but be stunned by how smart people are, and the academic world on the whole does not have sufficient appreciation of this. The openness is impressive. Examples: The Homeless Guy's blog, in Nashville. This fellow blogs from the public library. He's very smart, whatever other problems he may have. Someone you might not talk to on the street who has many bright things to say. The Baghdad blog. Apparently, this is legit. Blogs by Iranian women. Longterm ramifications of these things may well be profound. The Napster principle is very much alive. It's entirely possible with the advent of things like nanotech that people in the future will have even more free time, and the number of people playing in this playground only will increase. Questions: Pushback on whether big media can really compete on the hard news front. Uses the extensive reporting on this conference as an example: Glenn: "Well, this conference is likely to be overreported. I've been listening to the clattering of keys." Good laugh. Getting the attention of people like politicians is easier the moment you mention you have a Web site and plan to post the outcome or nonoutcome of an inquiry. But blogging does tend to be superficial. There will always be a group of people who are trusted because of their track record -- some of whom will be big media, some of whom won't. Another audience member observes that serious, in-depth reporting requires a time investment most amateurs do not have the luxury of making. Glenn: a distributed network of bloggers is something that in toto may have more expertise than any big media organization. Tying them together is the tough part. He can imagine an enterprise that puts this to work, but nothing like this exists yet. Audience member: blogs don't make money, and actually newspapers don't make money on the Web either. Bloggers may have an edge. Jeff Jarvis chimes in: "Old media bought this suit; and it's a nice one." Bloggers may have an edge on localized issues. Glenn: "'The Blogger Next Door. Title for your next book." If you want to compete with newspapers, the time curve is really a hindrance. Audience member: What do you think about the high uptake of blogs in some fields (politics; law), and not others (literature; poetry). Glenn: also questions whether "Cat Blogs" actually are a myth. The volume of material now and to come is vast; starting to become impossible to get a handle on what is being written about, categorically speaking, in blogs. There are a lot of gay blogs, something Glenn became aware of by perusing his referral logs. Glenn has libel insurance. Not because he thinks he'd be liable (he doesn't think he'd commit libel; he's a law professor, he knows how not to), but because someone might sue who just wants to make him spend money in legal fees. But this may be overkill for most bloggers. Many bloggers are basically judgment-proof. "Try to sue the Homeless Guy!" John Hiler on the libel issue: he has written about Scientology, and now whenever he mentions it he gets deluged by emails from Scientologists. If you put yourself out there at all, it does get a bit scary. Question about under-representation of left-leaning political interests in the Blogosphere. The Internet is fairly libertarian and rationalistic; this probably contributes. Blogs and big media in a negative feedback loop; many people blog because they're tired of shouting at the TV or writing letters to the editor which may or may not be printed weeks later. If there's a liberal media bias, and Glenn thinks there is, this may help explain the landscape.


Hylton will be here too. P.S. Right up Gary Turner's alley: who wants to to blog the bloggers blogging the bloggers talking about blogging...?

Strictly Blogroom

More Revenge of the Blog coverage promised from Henry Copeland. [via Hylton Jolliffe] (Note: Bag and Baggage is on GMT-8, Pacific Time. It's not actually 3-something a.m. here. Notwithstanding that it feels like it.)

Thursday, November 21, 2002

Eleven Hours, 50%

What a difference a day makes: left Orange County this morning: 90 degrees. Arrived New Haven tonight: 45 degrees. So this is why they call November "winter!" I get it. Got to meet and hang a bit with James Grimmelmann and Glenn Reynolds. James -- whose experience of law is synaesthetic; that ought to keep things interesting! -- also plans on blogging the conference, and says they've got the room WiFi'd. He wrote those great LawMeme pieces deconstructing the Eldred brief ("Law School In A Nutshell," Parts I, II and III), and is a prolific contributor there. (I also just noticed "God" is part of the illustrious LawMeme staff, but thus far (s)he seems to be holding out for just the right topic.) Glenn kicks off the show at 12:30 EST, so be sure to tune in. I can't promise any balconette bras or wings, but am betting this will beat TV anyway. (Glenn and James both have more on this allusion.)

Sweet Revenge

Travel day today, headed to New Haven and Yale for Revenge of the Blog. I heard last night from Lily Malcolm of The Kitchen Cabinet, a blog maintained by Yale law students (mostly). They'll be blogging the proceedings, as will I when I'm not yacking, all connectivity considered.

Wednesday, November 20, 2002

"Bummer of a birthmark, Hal.", home of digital image editing contests, includes this page of Gary Larson's The Far Side cartoons brought to life (also includes several inspired Far Side "inspired" submissions).

More Re DMCA Comment Period

(Because at some point, when enough hours have gone by, I suppose one must stop appending "later" inserts to posts...) Declan McCullagh has a c | net News article today with more background on the DMCA comment period that has just opened.

Tuesday, November 19, 2002

Putting The "High" In "Higher Courts"

"A visit to Howard's site is like hanging out with the world's most compulsive law librarian and Jay Leno at the same time," says online journalist Dahlia Lithwick, the Supreme Court correspondent for Slate and a Bashman fan. "It goes a long way toward proving that law might actually be interesting and important to people outside the profession."
More well-deserved recognition for Howard Bashman, and also for the SCOTUSblog, is here, from Tony Mauro, who also (only incidentally, of course) does some crystal ball-gazing concerning Justice Antonin Scalia (scroll on past to "Court Blogs").

DMCA Comment

The U.S. Copyright Office wants to know: "whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by [the DMCA's] prohibition on the circumvention of measures that control access to copyrighted works." [Via ILN] Comments may be submitted at this site through December 18.
[T]he initial comment period in this rulemaking specifically seeks the identification of this information [i.e., evidence supporting an exemption for a particular class of works] from proponents of exemptions. First, the commenter should identify the particular class of works that is being proposed as an exemption, followed by a summary of the argument for the exemption. The commenter should then specify the facts and evidence providing a basis for this exemption and any legal arguments in support of the exemption. Finally, the commenter may include in the comment any additional information or documentation which supports the commenter's position.
More here. But, you know, if you can't think of anything... [Later] MetaFilter thread, with extremely well advised comments about the need for informed, well thought-out submissions, and not "behaving like a pack of howler monkeys." [Later] More good thoughts and clarifications from Alex MacGillvary, an IP and Internet practitioner at Wilson Sonsini, a GrepLaw editor and a blogger at bricoleur. Via Donna Wentworth (who's now the second to my knowledge, after Gary Turner, to suggest I might be "the Doc Searls of blawgs" -- albeit with a less pronounced moustache. Higher praise there just ain't!). Also, apropos of Cluetrain co-authors and "les bricoleurs:"
In essence, bricolage is what tinkers do -- collecting odd bits of stuff they think may be potentially useful, then using whatever bits seem to work in the context of some later repair job. Simple. And yet profound. Because the bits the bricoleur ends up using were not designed for the use they end up being put to. Figuring out which bits to collect and how to apply them to some task at hand requires a completely different kind of thinking than the procedural algorithmic thought processes business has become so dependent upon. While the Internet may have convinced some businesses to think "out of the box," most are still not even sure what box they’re in, much less which way to turn for emergency egress. If some unprincipled individual were to yell "fire!" right about now, the entire edifice of global commerce might suddenly collapse. [Introduction to Gonzo Marketing, by Christopher Locke]

One Step Closer To A Uniform Federal Rule On Citation Of Unpublished Opinions

The Judicial Conference's Advisory Committee on Appellate Rules met in San Francisco yesterday to consider an amendment to the Federal Rules of Appellate Procedure initially proposed by the Department of Justice. The amendment is intended to provide a uniform rule governing citation of unpublished opinions, and was discussed in this U.S. Courts press release, and described to Congress by Committee Chair Judge Samuel A. Alito, Jr., last June. As mentioned previously here and on Howard Bashman's blog, there is a good deal of debate about whether, when and how parties and courts may refer to and consider unpublished judicial decisions in the process of deciding subsequent cases. (See my entries here and here, and Howard's here.) Concerning yesterday's proceedings, San Francisco legal newspaper The Recorder reports that while the wording is not final and the amendment still is some two years away from implementation, the Committee has approved the proposed amendment in principle. According to the Recorder, the sole dissenting vote was Sandy Svetcov of Milberg Weiss; Reed Smith's Tom McGough also serves on the Committee. (The full committee roster commences at page 4 of this PDF.)

Monday, November 18, 2002


U.S. Firm Healthwatch

The National Law Journal has a series of sobering articles today about slow growth in the legal field and merger strife, in connection with release of the NLJ 250.

Thank You, DuPont!

For slingbacks, that is. At least according to the Department of Podiatry at the Curtin University of Technology, which credits "seamless stockings without heel reinforcement" for bringing the slingback into vogue. (See also's History Of Stockings, on the role nylon played in this turning point.)

Serenity, Now

Cathy Guisewite, on the high irony of yoga fashion. Proof she's right: Gaiam; Athleta; Nuala (Christy Turlington's line for PUMA); Vickerey. (My personal pick is somewhat gentler on the pocketbook: the Mossimo line at Target.)

Sunday, November 17, 2002

Rooting Around

Have you visited Ellis Island On-Line? Very cool interactive resource which helps locate individuals who came through Ellis Island. The records then can be augmented with the stories of the immigrants' lives in the U.S., by adding text, photos, documents, etc. The online database covers 1892-1924, which turns out to be too late to capture my great-grandparents' journeys, but it's wild to see the steady trickle of people with the same names from the same towns who followed suit. Registration is required for some parts of the site. Picked this up from Big Thinkers, featuring Ed Schlossberg. Schlossberg has wide-ranging insights about the Web, language, knowledge and learning; this is well worth watching. Among other things, he mentions an interesting bit of trivia concerning the Ellis Island site he helped develop. Sigmund Freud's record is in the database. When you view the full manifest for the George Washington, arriving Ellis Island August 29, 1909 from Bremen, Germany, Freud is passenger 27. Carl Jung is passenger 26. [Happy birthday to my grandfather Johnny Urzi, who would have been 96 today.]

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