Law and Information

Today, I attended a small, but really interesting conference chaired by my colleagues Professor Werner Wunderlich und Prof. Beat Schmid from the Institute for Media and Communication Management, our sister institute here at the Univ. of St. Gallen. The conference was on “The Future of the Gutenberg Galaxy” and looked at trends and perspectives of the medium “book”. I’ve learned a big deal today about the current state of the book market and future scenarios from a terrific line-up of speakers. It was a particular pleasure, for instance, to meet Prof. Wulf D. von Lucus, who’s teaching at the Univ. of Hohenheim, but is also the Chairman of the Board of Carl Hanser Verlag, which will be publishing the German version of our forthcoming book Born Digital.

We covered a lot of terrain, ranging from definitional question (what is a book? Here is a legal definition under Swiss VAT law, for starters) to open access issues. The focus of the conversation, though, was on the question how digitization shapes the book market and, ultimately, whether the Internet will change the concept “book” as such. A broad consensus emerged among the participants (a) that digitization has a profound impact on the book industry, but that it’s still too early to tell what it means in detail, and (b) that the traditional book is very unlikely to be substituted by electronic formats (partly referring to the superiority-of-design-argument that Umberto Eco made some time ago).

I was the last speaker at the forum and faced the challenge to talk about the future of books from a legal perspective. Based on the insights we gained in the context of our Digital Media Project and the discussion at the forum, I came up with the following four observations and theses, respectively:

Technological innovations – digitization in tandem with network computing – have changed the information ecosystem. From what we’ve learned so far, it’s safe to say that at least some of the changes are tectonic in nature. These structural shifts in the way in which we create, disseminate, access, and (re-)use information, knowledge, and entertainment have both direct and indirect effects on the medium “book” and the corresponding subsystem.

Some examples and precursors in this context: collaborative and evolutionary production of books (see Lessig’s Code 2.0); e-Books and online book stores (see ciando or Amazon.com); online access to books (see, e.g., libreka, Google Book Search, digital libraries); creative re-uses such as fan fiction, podcasts, and the like (see, e.g., LibriVox, Project Gutenberg, www.harrypotterfanfiction.com).

Law is responding to the disruptive changes in the information environment. It not only reacts to innovations related to digitization and networks, but has also the power to actively shape the outcome of these transformative processes. However, law is not the only regulatory force, and to gain a deeper understanding of the interplay among these forces is crucial when considering the future of books.

While fleshing out this second thesis, I argued that the reactions to innovations in the book sector may follow the pattern of ICT innovation described by Debora Spar in her book Ruling the Waves (Innovation – Commercialization – Creative Anarchy – Rules and Regulations). I used the ongoing digitization of books and libraries by Google Book Search as a mini-case study to illustrate the phases. With regard to the different regulatory forces, I referred to Lessig’s framework and used book-relevant examples such as DRM-protected eBooks (“code”), the use of collaborative creativity (“norms”), and book-price fixing (“markets”) to illustrate it. I also tried to emphasis that the law has the power to shape each of the forces mentioned above in one way or another (I used examples such as anti-circumvention legislation, the legal ban on book-price fixing, and mandatory copyright provisions that preempt certain contractual provisions.)

The legal “hot-spots” when it comes to the future of the book in the digital age are the questions of distribution, access, and – potentially – creative re-use. The areas of law that are particularly relevant in this context are contracts, copyright/trademark law, and competition law.

Based on the discussion at the forum, I tried to map some of the past, current, and emerging conflicts among the different stakeholders of the ecosystem “book”. In the area of contract law, I focused on the relationship between authors and increasingly powerful book publishers that are tempted to use their unequal bargaining power to impose standard contracts on authors and transfer as many rights as possible (e.g. “buy out” contracts).

With regard to copyright law, I touched upon a small, but representative selection of conflicts, e.g. the relation between right holders and increasingly active users (referring to the recent hp-lexicon print-version controversy); the tensions between right holders and (new) Internet intermediaries (e.g. liability of platforms for infringements of their users in case of early leakage of bestsellers; e.g. interpretation of copyright limitations and exemptions in case of full-text book searches without permission of right holders); the tension between publishers and libraries (e.g. positive externalities of “remote access” to digital libraries vs. lack of exemptions in national and international copyright legislation – a topic my colleague Silke Ernst is working on); and the tension between right holders and educational institutions (with reference to this report).

As far as competition law is concerned, I sketched a scenario in which Google Book Search would reach a dominant market position with strong user lock-in due to network effects and would decline to digitize and index certain books or book programs, for instance due to operational reasons. Based on this scenario, I speculated about a possible response by competition law authorities (European authorities in mind) and raised the question whether Google Book Search could be regarded, at some point, as an essential facility. (In the subsequent panel discussion, Google’s Jens Redmer and I had a friendly back-and-forth on this issue.)

Not all of the recent legal conflicts involving the medium “book” are related to the transition from an analog/offline to a digital/online environment. Law continues to address book-relevant issues that are not new, but rather variations on traditional doctrinal themes.

I used the Michael Baigent et al. v. Random House Group decision by the London’s High Court of Justice as one example (has the author of Da Vinci Code infringed copyright by “borrowing” a theme from the earlier book Holy Blood, Holy Grail?), and the recent Esra-decision by the German BVerfG as a second one (author’s freedom of expression vs. privacy right of a person in a case where it was too obvious that the figure used in a novel was a real and identifiable person and where intimate details of the real person were disclosed in the book.)

Unfortunately, we didn’t have much time to discuss several interesting other issues and topics that were brought up and related to the generation born digital and its use of books – and the consequences of kids’ changed media usage in a changed media environment, e.g. with regard to information overload and the quality of information. Topics, to be sure, that John Palfrey and I are addressing in our forthcoming book.

In sum, an intense, but very inspiring conference day.

Update: Dr. David Weinberger, among the smartest people I’ve ever met, has just released a great article on ebooks and libraries.

The OECD has just released what – in my view – is the first thorough high-level policy report on user-created content. (Disclosure: I had the pleasure to comment on draft versions of the report.) From the introduction:

The concept of the ‘participative web’ is based on an Internet increasingly influenced by intelligent web services that empower the user to contribute to developing, rating, collaborating on and distributing Internet content and customising Internet applications. As the Internet is more embedded in people’s lives ‘users’ draw on new Internet applications to express themselves through ‘user-created content’ (UCC).

This study describes the rapid growth of UCC, its increasing role in worldwide communication and draws out implications for policy. Questions addressed include: What is user-created content? What are its key drivers, its scope and different forms? What are new value chains and business models? What are the extent and form of social, cultural and economic opportunities and impacts? What are associated challenges? Is there a government role and what form could it take?

No doubt, the latest OECD digital content report (see also earlier work in this context and my comments here) by Sacha Wunsch-Vincent and Graham Vickery of the OECD’s Directorate for Science, Technology and Industry is a must-read that provides plenty of “food for thought” – and probably for controversy as well, as one might assume.

IP & Behavioral Science: The P2P-Example

So far, I’ve had an interesting week. It started on Tuesday in Munich where I attended an interesting workshop on Intellectual Property Law and Behavioral Sciences, organized by the Gruter Institute and the Max-Planck-Institute for Intellectual Property. Scholars from both sides of the Atlantic discussed the promises of a behavioral science approach to IP Law. I was talking about neuroscience and copyright law in the digital age, asking as to what extent neuroscience might be helpful to gain a better understanding of some of the most interesting copyright-related phenomena we’ve observed in cyberspace. Building upon earlier research conducted at the Berkman Center, I was focusing on the p2p file-sharing phenomenon. In the presentation, I tried to provide and map possible explanations of the file-sharing puzzle (why does it happen, why is it large-scale, why is it persistent?), using an extended version of Lessig’s four-mode-of-regulation framework by replacing Lessig’s “Dot” (i.e. the individual that is exposed to the four constraints on behavior) by a brain. My basic argument is that easy-to-use technology, market conditions, perceived illegitimacy of copyright norms and enforcement problems, and social norms overwriting legal norms (among other factors) are necessary, but not sufficient conditions to explain the emergence, scale and persistence of the p2p file-sharing phenomenon. Other factors have to be taken into account too, including social signaling, trust, and reciprocity (see Ernst Fehr’s research) – elements that are implemented on the platform level through Charismatic Code. The resulting practices of sharing might be bolstered by and corresponding with emotionally preferable states of mind. Since negative emotions are associated with free riding (defection triggers anger in others; defectors expect others to be angry with them), they might provide incentive to share despite lack of direct punishment on P2P networks. Positive emotions, by contrast, might result from cooperation/sharing: fMRI scans show that mutual cooperation is associated with activation in brain areas that are linked with reward processing (cf. Rilling, Gutman et al.)
The p2p case, in my view, nicely illustrates the promise (as well as the problems!) of an interdisciplinary research approach to IP law and policy – beyond law and economics.

Records Management: Local Laws vs. Global Infrastructure and Policies

Yesterday, I went to New York City to attend a series of interesting meetings as part of a consulting job for a multinational Swiss company. Together with the Swiss project leader and U.S. colleagues, we continued a discussion on global records and information management strategies. Once again, I was particularly intrigued by the complexity and granularity of the interactions between legal and regulatory frameworks regarding information and records management on the one hand and IT infrastructure issues on the other hand – both with regard to the physical and logical layer. From an information law perspective, it’s particularly interesting to study how regulators and legislators have been influenced by particular cases (e.g. Enron) as well as technological developments (e.g. storage media and techniques). The legal and regulatory responses are far from coherent even within a jurisdiction (in the U.S., for instance, different approaches have been taken to paper records, electronic documents, and email retention) and vary (not surprisingly) significantly among jurisdictions. For a global company, this heterogeneity and, sometimes, inconsistency of rules and regulations presents a though challenge if the company seeks to develop a global information and records management system as well as globally applicable corporate policies (e.g. on email management and retention). The complexity of the task to design and implement such systems and policies further increases due to the fact that each approach has different ramifications in areas such as litigation (buzzword e-discovery) that have to be taken into account in an iterative decision making process.

Internet Governance: Mapping a Diverse Diversity Debate

Right now, I’m waiting in Zurich for a delayed flight to London, from where I will be traveling to Oxford in order to attend a workshop on Internet Governance hosted by the Oxford Internet Institute. The workshop seeks to clarify the issues that are addressed in the first Internet Governance Forum meeting that will take place in Athens later this year. I have drafted a position paper on the diversity issue. The paper maps the diverse diversity debate and summarizes some of the key challenges faced by the IGF. The conclusion of the short paper (I will post a full PDF version later on) reads as follows:

An initial analysis of the contributions to the first IGF meeting confirms the impression that the “diversity” debate includes a broad range of topics. This position paper has outlined the contours of a framework that might be helpful to map the various issues addressed in the respective contributions. The challenges faced by the IGF, however, go far beyond analysis and categorization. First, the many items on the diversity agenda have to be prioritized. Second, the IGF — like other policy-makers (or “-shapers”) in cyberspace — faces the challenge of synchronizing technological innovation and market development with regulatory evolution if it chooses to set diversity as an item on the regulators’ agenda. Third, the IGF needs to decide on the approaches, institutions, and structures that are apt to deal with the complex components (and the interactions among them) of a diverse information environment. In this context, the promise and limits of a laissez-faire approach to diversity need to be assessed as well. Fourth, the IGF faces the challenge of facilitating discourse among stakeholders from various cultural, societal, economic and legal backgrounds. A look at the history of (national) debates about diversity in electronic media in general and content diversity in particular suggests that these cultural differences will make any implementation efforts at the international level particularly tough.

Against this backdrop, the IGF would be well-advised to focus on specific and clearly defined issues (e.g., the IDN issue), while gaining a deeper understanding — and raising awareness — of the interplay among the many elements that are crucial for building and maintaining a diverse digitally networked information environment.

Tomorrow, finally, back to St. Gallen.

The Yale Journal of Law and Technology just published my article on search engine regulation. Here’s the extended abstract:

The use of search engines has become almost as important as e-mail as a primary online activity. Arguably, search engines are among the most important gatekeepers in today’s digitally networked environment. Thus, it does not come as a surprise that the evolution of search technology and the diffusion of search engines have been accompanied by a series of conflicts among stakeholders such as search operators, content creators, consumers/users, activists, and governments. This paper outlines the history of the technological evolution of search engines and explores the responses of the U.S. legal system to the search engine phenomenon in terms of both litigation and legislative action. The analysis reveals an emerging “law of search engines.” As the various conflicts over online search intensify, heterogeneous policy debates have arisen concerning what forms this emerging law should ultimately take. This paper offers a typology of the respective policy debates, sets out a number of challenges facing policy-makers in formulating search engine regulation, and concludes by offering a series of normative principles which should guide policy-makers in this endeavor.

As always, comments are welcome.

In the same volume, see also Eric Goldman‘s Search Engine Bias and the Demise of Search Engine Utopianism.

Professor Terry Fisher has the difficult job, as the Day 1 Rapporteur, to present in 10 minutes the OECD conference conclusions. Here are the main points he made a few minutes ago:

A. Points of agreement (or at least substantial consensus)

(a) Descriptive level:
o We’re entering a participatory culture, active users, explosion of blogs; differences in web usage.

(b) Predictive level:
o Consensus that we’ll see a variety of applications that will florish; the shift to biz models that incl internet distribution will have long tail effects, increase diversity

(c) Level of aspiration:
o We should aim for a harmonized, global Internet – single, harmonized global approach (vs. competing legal/regulatory frameworks)
o Governments should stay out, but broad consensus of 6 areas where governmental intervention is desirable: (1) Stimulating broadband; (2) fostering universal access (bridging dig.div.); (3) educating consumers; (4) engage in consumer protection against fraud, spam; (5) fostering competition; (6) promoting IP to achieve an optimal balance
o We should attempt to achieve “biz model neutrality” (TF’s personal comment: appealing idea, but infeasible, there’s no way to achieve it.)

B. Points of disagreement

(a) Descriptive level
o Whether IP currently does strike optimal balance (yes, middle ground, no – spectrum of positions)

(b) Predictive level
o Which biz strategy will prevail: pay-per-view; subscription; free-advertisement based model?

(c) Level of aspiration:
o Network neutrality: required or not as a matter of policy
o TPM: Majority: yes, smaller group: no; intermediate group: only under certain conditions.
o Should governments be in the biz of interoperability?
o Using government power to move towards open doc format?
o Government intervention to achieve an Internet that is open vs. variations of a walled-gardened net?

I had the pleasure to chair a panel on new user habits and social attitudes at the OECD’s Rome conference entitled “The Future Digital Economy: Digital Content Creation, Distribution and Access.” On the panel was a wonderful group of experts:

• Dr. David Day, Nielsen’s/Net Ratings’ Director for Europe, the Middle East and Africa was presenting data on Internet use and online behavior with focus on the EU;
• Dr. John Horrigan, Associate Director for Research at the Pew Internet & American Life Project presented recent surveys on broadband usage in the U.S.;
• David Sifry, Founder, President and CEO of Technorati was talking about the development and measurement of weblogs as well as the overall evolution of the blogosphere
• Frieda Brioschi, President Wikipedia and Wikimedia Italy, shared thoughts about current trends and developments in peer-production projects like Wikipedia; and
• Dr. Jens Uwe Intat used the case of games to show how emerging user habits and social attitudes are changing the ways we consume entertainment.

From David Day’s and John Horrigan’s presentations I caught the following data points:

• More than 150 million W Europeans with Internet access and still growing.
• 95% of established Internet users are using the Net at home, 49% at work, 23% at educational institutions, 18% in the Internet cafe, 14% in public libraries.
• The top-device to access the Internet is the Pc/Mac (91%), followed by laptop (33%), mobile phones (18%), digital TV (5%), PDAs (4%) and game consoles (4%).
• Typical online behavior in a month includes: search (94%), general interest/portals (86%), web services/internet tools (75%), mass merchandisers (73%), auctions (66%), email (54%), online banking (53%) and community sites (53%).
• 36% of adult Americans have high-speed connections at home.
• The following percentage of the age group 35 & under has ever been engaged in the following activities: 20% blog; 39% sharing creative work online; 35% sharing any online content.
• A December survey by Pew shows that having a broadband connection at home continues to have a transformative impact on users. The three areas of impact are: (i) increased reliance on the Internet for news and information; (ii) heavy use of the Internet for gaming and entertainment; (iii) use of the Net to satisfy creative needs (amateur content production).

Here are my personal take home points from the panel discussion:

Empirical as well as anecdotal evidence (case studies) suggest fundamental changes in the way we access, use, create, and distribute information, knowledge, and entertainment.

(1) Access:

• Broadband has arrived and is creating a critical mass.
• In large part due to broadband technology, the Internet is increasingly embedded in our daily lives.

(2) Use:

• Technology matters, too, not only specific user demographics.
• We heavily use services that require some sort of content intermediaries (search engines, news aggregators, games).

(3) Creation:

• Weblogs play a key role in bottom-up content creation, both in the EU and the US.
• Peer-produced projects such as Wikipedia are prime examples of new modes of content production

(4) Distribution:

• Large-scale P2P file-sharing, for legitimate and illegitimate purposes, is persistent.
• Increasingly important is sharing of self-created content.

In conclusion, it seems to me that we are at the beginning of a long, multi-layered discussion that is likely to be increasingly centered on access and creation rather than (P2P) distribution.

Here is my second position paper (find the first one here) in preparation of the upcoming Regulating Search? conference at ISP Yale. It provides a rough arc of a paper I will write together with my friend and colleague Ivan Reidel. The Yale conference on search has led to great discussions on this side of the Atlantic. Thanks to the FIR team, esp. Herbert Burkert and James Thurman, Mike McGuire, and to Sacha Wunsch-Vincent for continuing debate.

Regulating Search? Call for a Second Look

1. The use of search engines has become almost as important as email as a primary online activity on any given day, according to a recent PEW survey. According to an another survey, 87% of search engine users state that they have successful search experiences most of the time, while 68% of users say that search engines are a fair and unbiased source of information. This data combined with the fact that the Internet, among very experienced users, ranks even higher than TV, radio and newspapers as an important source of information, illustrates the enormous importance of search engines from a demand-side perspective, both in terms of actual information practices as well as with regard to users’ psychological acceptance.

2. The data also suggests that the transition from an analog/offline to a digital/online information environment has been accompanied by the emergence of new intermediaries. While traditional intermediaries between senders and receivers of information—most of them related to the production and dissemination of information (e.g. editorial boards, TV production centers, etc.)—have diminished, new ones such as search engines have entered the arena. Arguably, search engines have become the primary gatekeepers in the digitally networked environment. In fact, they can effectively control access to information by deciding about the listing of any given website in search results. But search engines not only shape the flow of digital information by controlling access; rather, search engines at least indirectly engage in the construction of the messages or meaning by shaping the categories and concepts users’ use to search the Internet. In other words, search engines have the power to influence agenda setting.

3. The power of search engines in the digitally networked environment with corresponding misuse scenarios is likely to increasingly attract policy- and lawmakers attention. However, it is important to note that search engines are not unregulated under the current regime. Markets for search engines regulate their behavior, although the regulatory effects of competition might be relatively weak because the search engine market is rather concentrated and centralized; a recent global user survey suggests that Google’s global usage share has reached 57.2%. In addition, not all search engines use their own technology. Instead, they rely on other search providers for listings. However, search engines are also regulated by existing law and regulations, including consumer protection laws, copyright law, unfair competition laws, and—at the intersection of market-based regulation and law-based regulation—antitrust law or (in the European terminology) competition law.

4. Against this backdrop, the initial question for policymakers then must concern the extent to which existing laws and regulations may feasibly address potential regulatory problems that emerge from search engines in the online environment. Only where existing legislation and regulation fails due to inadequacy, enforcement issues, or the like, the question of new, specific and narrowly tailored regulation should be considered. In order to analyze existing laws and regulation with regard to their ability to manage problems associated with search engines, one might be well-advised to take a case-by-case approach, looking at each concrete problem or emerging regulatory issue (“scenario”) on the one hand and discussion relevant to incumbent legal/regulatory mechanisms aimed at addressing conflicts of that sort on the other hand.

5. Antitrust law might serve as an illustration of such an approach. While the case law on unilateral refusals to deal is still one of the most problematic and contested areas in current antritrust analysis, the emergence of litigation applying this analytical framework to search engines seems very likely. Although most firms’ unilateral refusals to deal with other firms are generally regarded as legal, a firm’s refusal to deal with competitors can give rise to anti-trust liability if such firm possesses monopoly power and the refusal is part of a scheme designed to maintain or achieve further monopoly power. In the past, successful competitors like Aspen Skiing Co. and more recently Microsoft have been forced to collaborate with competitors and punished for actions that smaller companies could have probably gotten away with. In this sense, search engines might be the next arena where antitrust laws with regard to unilateral refusals to deal are tested. In addition to the scenario just described, the question arises as to whether search engines could be held liable for refusal to include particular businesses in their listings. Where a market giant such as Google has a “don’t be evil” policy and declines from featuring certain sites in its PageRank results because it deems these sites to be “evil,” there is an issue of whether Google is essentially shutting that site provider out of the online market through the exercise of its own position in the market for information. Likewise, the refusal to include certain books in the Google Print project would present troubling censorship-like issues. It is also important to note that Google’s editorial discretion with regard to its PageRank results was deemed to be protected by the First Amendment in the SearchKing case.

6. In conclusion, this paper suggests a cautious approach to rapid legislation and regulation of search engines. It is one of the lessons learned that one should not overestimate the need for new law to deal with apparently new phenomena emerging from new technologies. Rather, policy- and lawmakers would be well-advised to carefully evaluate the extent to which general and existing laws may address regulatory problems related to search and which issues exactly call for additional, specific legislation.

I have the pleasure to participate in a terrific conference on “Regulating Search?” organized and hosted by our friends at the Information Society Project at Yale Law School. Here is my first discussion paper. I will post a second one later on:

Regulating Search?
Sketching a Normative Framework for Assessing Regulatory Proposals

1. The question of this symposium – Regulating Search? – can be approached from various angles and at different levels. In any event, one might expect, inter alia, that several proposals of legal and/or regulatory actions aimed at regulating search engines, ranging from consumer protection laws, IP reform, etc., will be up for discussion. Presumably, the respective proposals will pursue different policy goals and use different regulatory techniques.

2. In a later phase, proposals like this are likely to enter into competition with one another. Lawmaking and regulation are costly processes, requiring that choices about goals and means be made. Against this backdrop, a systematic comparison and isolated evaluations of regulatory proposals become essential in order to make well-informed and sustainable decisions. A look back at the history of what has been termed “cyberlaw,” however, reveals a prevalent lack of thorough assessment of legislative and/or regulatory actions, in part because such an assessment requires an open discussion and shared understanding of what fundamental policy objectives should underlie today’s information society in the first place. This failure should not be repeated in the future and with regard to a potential regulation of “search.”

3. I would like to suggest three core values (or policy goals) of a democratic information ecosystem that may serve as the benchmarks for assessing proposals aimed at regulating search engines in particular and search more generally: Autonomy, diversity, and quality. Informational autonomy includes at least three elements. First, an individual must have the freedom to make choices among alternative sets of information, ideas, opinions, and the like. This includes the freedom to decide what information someone wants to receive and process. Second, informational autonomy as an aspect of individual liberty necessitates that everyone has the right to express her own beliefs and opinions. Third, autonomy in the digitally networked environment arguably requires that every user can participate in the creation of information, knowledge, and entertainment.

4. The development of an individual’s own personality and self-fulfillment intersects with a second core value of the digitally networked ecosystem: its diversity. Diversity in the sense of a wide distribution of information from a great variety of competing sources can either be seen as a valuable mechanism to attain truth, or as a crucial instrument for protecting democratic process and deliberation. In the digital environment, however, the diversity of information, knowledge, and entertainment is an important aspect of the broader concept of cultural diversity.

5. As individuals, groups, and societies, we heavily depend in our decision-making processes on information, which is increasingly acquired over the Internet. In order to make good decisions, we depend on quality information, i.e., information that meets the functional, cognitive, aesthetic, and ethical requirements of different stakeholders such as users, creators, experts, and administrators. Consequently, legal and regulatory regimes should contribute to the creation and further development of a high-quality information ecosystem.

6. Each proposal that seeks to regulate search in general and search engines in particular can be evaluated based on these normative criteria. Even with this normative framework in place, however, the assessment of alternative governance regimes gets complicated, since the three policy goals “autonomy,” “diversity,” and “quality” are not necessarily always aligned. Unleashed diversity in the digitally networked environment, for instance, might have negative feedback effects on user autonomy because it increases an individual’s risk to be exposed to undesired information. A regulatory approach aimed at ensuring high-quality information, by contrast, might be in tension with informational autonomy, because it may impose a quality requirement leading to a level of quality that does not meet an individual’s informational needs.

7. As a consequence, governance proposals for search engines and their environments face the challenge of achieving a balance among three policy goals that are not perfectly aligned. In the case of search engine regulation, this problem is accentuated by the fact that search engines simultaneously affect all three aspects. For example, since search engine users often do not know in advance what specific piece of information they are looking for, the quality of the information that users get depends to a great extent on search engines. Consequently, the quality of information is intertwined with the quality of the search engine that defines which information becomes available based on any given query. Similarly, search engines have effects on autonomy and diversity in the digitally networked environment. Against this backdrop, regulation of search (engines) is a particularly complex task because each regulatory intervention focusing on one issue almost certainly affects another element of the normative framework.

8. In conclusion, this discussion paper calls not only for a careful design of legal or regulatory actions aimed at governing “search,” but also for a thorough assessment of legislative and/or regulatory proposals and their potential effects against the backdrop of core values of a democratic digital environment (system of “moving elements”). In that sense, the paper also advocates for a systemic view of “search” regulation, where “search” is understood as one element that interacts with other elements of the digitally networked environment, including decentralized content production and peer-to-peer distribution of digital content.

Comments welcome.

Back in St. Gallen for two days, I found Christoph B. Graber’s et al. (eds.) book on Digital Rights Management: The End of Collecting Societies? on my desk. The impressive volume includes, inter alia, contributions by our own John Palfrey, Christoph Graber, Daniel Gervais, Adolf Dietz, Jacques de Werra, Dorothea Senn, and other IP experts. Together with Mike Girsberger, I contributed a short version of the Berkman EUCD paper to the discussion.
Thanks to the i-call team for their terrific work!

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

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

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

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

(1) Research and Knowledge

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

(2) News Reporting & Journalism

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

(3) Entertainment

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

(4) Social & Corporate Criticism

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

(5) Commerce

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

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

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

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