May 31, 2005  ·  Lessig

I am home after just about a month on the road, and about to leave to pick my family up at the airport. Realizing last month that this would be a time when I would spend little time here, I asked two friends who are publishing a new book to guest blog for the first week of June. Starting tomorrow, Ian Ayres and Jennifer Brown will be discussing their book, Straightforward : How to Mobilize Heterosexual Support for Gay Rights. I’ve not read the book, but I’ve been talking to both of them about these issues since I was a visiting professor at Yale. These are two extraordinary authors, and the debate is certain to be more interesting than the usual stuff on this blog. (Yet another opportunity to see a surprisingly refreshing facet of the three blind mice).

So excuse my absence. I’ll be back on the 8th.

May 31, 2005  ·  Lessig

Ever since I interviewed Dave about blogs for my book, Free Culture, I’ve been thinking a lot about his idea of “amateur journalists.” It is a powerful concept, which rewards careful thought. To see its value, we must remember the original meaning of “amateur,” meaning one who does something for the love of it alone. And when we think of journalism that is regulated by those ideals, it is easy to see why such journalism nicely complements commerical journalism. As he said to me,

“An amateur journalist simply doesn’t have a conflict of interest, or the conflict of interest is so easily disclosed that you know you can sort of get it out of the way.”

It is because I found Dave’s view so compelling that I’ve been worried for sometime about the emergence of advertising in blog space. I’m not against it. I just worry about how it might put pressure on the “doesn’t have a conflict of interest” norm. If the virtue of the amateur is to seek the truth, that virtue could be in tension with the desire to earn more ad revenue. The simplest way to get linkbacks is to say the most absurd things imaginable.

But the more I’ve talked about this with observers and friends, the more I think the real fear is not bloggers tempted by ad revenues. It is instead the emergence of the equivalent of tabloids in blog-space: commercial entities whose sole purpose is to generate ad revenue, who do that by being as ridiculous and extreme as possible.

The danger here is that the conflict has returned. Just as the British tabloids care little about the truth in their path to selling papers, commercial blog-loids care little about the truth in trying to attract eyeballs. And it is here that the cycle turn vicious: for the amateur space feeds the professional troll by careful and repeated efforts to show that claims made are false or outrageous. If you’re paid by the click, who cares why people click.

This creates a dilemma for open and honest disagreement about the facts. For here there is a conflict in interest: the interest of the amateur journalist is not the interest of the professional troll. Yet the only way the amateur can do his job — by quoting and criticizing — is to feed the troll.

We either need a way to cite that doesn’t reward bad behavior. (Copyright law restricts that (Google, for example, would be really angry if you started linking to caches rather than original locations).) Or we need a way to know when to ignore.

In either case, imho, it would be useful to think more about this conflict in interest, if the nature of the amateur space is not to be displaced by something different.

May 28, 2005  ·  Lessig

The comments to Living With Ghosts have done more for me than anything could. “Thank you” is too weak, but thank you.

Many have written asking, “What can I do?” Here’s a map for anyone interested.

As the story recounts, we’re waiting for a decision from the New Jersey Supreme Court about whether New Jersey’s law, which immunizes charities from “negligence,” is subject, as the trial court said, to a “judicial gloss,” making the statute “absolute,” and therefore excusing the organization:

“from liability for any degree of tortuous conduct, no matter how flagrant that conduct may be. Accordingly, plaintiffs’ contentions that employees and agents of the American Boychoir School acted willfully, wantonly, recklessly, indifferently – even criminally – do not eviscerate the School’s legal protections.”

There is — and there should be — nothing that can be done about that case while the Court is considering it.

But New Jersey has a legislature as well as a Supreme Court. And the real hero in this case — John Hardwicke, who has given everything he has not just to his case, but to changing the law in New Jersey — has, with others, started a movement to get New Jersey to FixTheLaw in a part that is unrelated to the case before the Supreme Court.

Even if we win our case, the law in New Jersey would still immunize a charitable institution from “negligence” in the hiring of a teacher. That means if a school hires a teacher without taking any steps to verify the teacher’s past — for example, asking why the teacher was fired from his last job — the school is immune from liability.

Assemblymen Cohen, Chiappone, and Bateman have introduced a bill to remove that immunity, so that a school would have the same duty that all of us have — to take reasonable steps to avoid foreseeable harm, at least if that harm is sex abuse. Yet this bill has been stalled by the very powerful lobbying of some — actually, primarily, one:

Leaders from the Catholic Church have opposed the change. Some of the same leaders, representing the “Catholic Conference of Bishops,” also filed a brief in our case asking the Court to affirm the “absolute” immunity — even for intentional acts — that the trial court had found.

It is completely beyond me why the Church spends its resources to make children less safe. No doubt, the Church has its own issues about liability. But is money really a church‘s only concern? Do its values really say that it is more important to avoid its own liability than to protect children in the future? Or more accurately — that it is right to protect its assets by making children in the future less safe?

In any case, there are more voices in New Jersey than this one. I’ve hesitated before about the appropriateness of noncitizens addressing New Jersey’s issues, but that may just be prudishness. And anyway, I assume the “Catholic Conference of Bishops” is not located in Trenton.

So: Hardwicke has a comprehensive site with links to contact legislators, and to contribute. If you are looking for something to do, I’d be grateful if you followed those leads. Or if you would lead others to them. Or, if you’re a Catholic, I’d be grateful if you would follow your own leads to the conscience of your church.

May 27, 2005  ·  Lessig

One of the most interesting presentations at this fantastic conference was given by Eve Gray, of Eve Gray & Associates. Gray was asked to study the publishing strategy of the Human Sciences Research Council (HSRC) in South Africa. This research institution had a traditional strategy of publishing lots of research books, and selling them. Gray convinced them to change their strategy — to give away all their research books for free online, and offer a high quality print-on-demand service for anyone who wants the paper version. The result: “the sales turnover of the publishing department has risen by 300%.” As she concluded her presentation, “giving away books and lead to an increase in our book sales.” There’s much much more in her interesting analysis. She has generously offered it for downloading. Here’s the press release.

May 27, 2005  ·  Lessig

Hyperion Records is one of the very best independent classical labels. According to its news page which is now up, it’s lost an appeal which will now jeapordize its existence. Hyperion was sued by Dr. Lionel Sawkins, who had created a performance edition of four works by Lalande. The British court has now concluded that a performance edition, even one that does not claim to be an “arrangement,” is copyrighted. Apparently, the “sweat of the brow” in producing the performance edition was enough to create an “original” work.

The British system shifts costs to the loser. That means the exposure could be “hundreds of thousands of pounds if not a million.” Most charitably, this is a close question. If you believe that this label should not go bankrupt just because they tried to defend the side they defended, you may think about offering some support.

May 27, 2005  ·  Lessig

It’s just been announced that the South African Constitutional Court has decided in favor of Laugh It Off. Laugh It Off had produced a series of t-shirts which used trademarks to make critical points about the trademark owner. The most famous of these shirts was one that used a famous beer label “Black Label” and remixed it to a “Black Label, White Guilt” logo. The producers of the t-shirt were sued, and lost in three courts. The Constitutional Court has now apparently reversed the judgment. I’ve not seen the opinion yet, and will update when it is posted. Here’s an article with some background.

Update: Here’s the decision.

May 27, 2005  ·  Lessig

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So day two of a fantastic conference at Wits, in South Africa. Sponsored by the LINK Centre, the conference celebrates the launch of Creative Commons South Africa. The conference is being covered by 15 students and a couple staff members from the New Media Lab at the Rhodes University School of Journalism and Media Studies. The site has moblog, video links, blog, pictures and audio — basically one of the best examples of real time conference coverage that I’ve seen. What they’ve done would be amazing enough in the core of Silicon Valley. But in this network-thin space, it is really extraordinary.