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.

I’m currently on my way to far-away Olympic Valley, CA, where I have the great pleasure to attend the Gruter Institute for Law and Behavioral Research Conference on Law, Behavior, and the Brain. The conference, led by Monika Gruter Cheney, brings together a terrific interdisciplinary group of roughly 40 experts in areas such as evolutionary biology, neuroscience, behavioral economics, and – yes – also a number of legal scholars. During four days, we will be exploring topics such as “State of Play: Law, Behavioral Biology and Neuroscience,” “Rationality, Emotions and Moral Judgments in Humans and Other Species,” “Property and Economics,” and “Results in Neuroeconomics and Experimental Economics,” to list just a few sessions. I’m much looking forward to learning from all conference contributors, including Paul Zak, Carl Bergstrom, Kevin McCabe, John Clippinger, Bruce Hay, Oliver Goodenough, Susan Bandes, Larry Frolik, Sara Beale, Terry Maroney, among many others.

Here are the abstracts of my contributions to the conference:

1) Panel on Law & Emotions

A recent interdisciplinary conference in Switzerland was dedicated to law & emotion scholarship. In my brief presentation, I would like to answer the apparently trivial question asked by a conference participant: “Given the fact that it isn’t that much of a surprise that even judges, prosecutors, etc. have emotions, and that therefore emotions play a role in decision-making processes with legal relevance, what’s really the contribution of law & emotion research and scholarship? What’s new about it?”. I will try to answer this question in a systematic way, arguing that law & emotion research has (or might have) an impact on (at least) two levels, each consisting of two elements: the analytical level with the elements “phenomenon (stipulated facts)” and “legal actors”, and the design level with “norms applicable to the facts of the case” and “norms governing the production of law.” I will use a few stories – ranging from file-sharing to the U.S. Patriot Act – to illustrate these points.

2) Presentation on Digital Institutions / Social Signaling Theory

Social signals play an important role in defining social relations and structuring societies, both in the on- and offline world. In my presentation, I will focus on the role of social signaling in the digitally networked environment. More precisely, I will explore the promises and limitations of social signaling theory as applied to cyberspace, including digital institutions. In essence, I will address three questions: First, in what online contexts do we have an interest in signal reliability and honest signaling? Second, what are regulatory strategies and approaches (using Lessig’s framework of four modes of regulation) to increase the reliability of social signals? And third, who will make the decisions about the degrees of required signal reliability in cyberspace?

3) New Insights into Property Panel

My last year’s presentation focused on a new generation of neuro-science-informed arguments aimed at explaining large-scale file-sharing over P2P networks. This year, my contribution to the property panel will not focus on the explanation of a presumably illegal activity, but on a socially desirable one: In my talk entitled “Social economics of collaborative creativity”, I will provide a brief overview of the literature that seeks to explain why thousand of volunteers work together in lose-knit networks to peer-produce an online encyclopedia (Wikipedia), to come up with improved versions of an open-source web browser (e.g. Mozilla), or create shared open content platforms, to name just three examples. The presentation ends with the outline of a research agenda.

I had the great pleasure to lecture at the 2nd Colloquium on Law of the Schweizerische Studienstiftung (Swiss Study Foundation), a foundation aimed at creating an interdisciplinary network among young high-potentials in Switzerland. Daniel Haeusermann had been on the planning committee of yesterday’s event, and so it might be less of a surprise that the Colloquium’s topic was “Law and Emotion”.

It was a lot of fun to present some of my theses on this multi-faceted topic. First of all, the Colloquium’s participants were very well prepared and made the discussion really interesting. Second, my Univ. of St. Gallen colleague Prof. Thomas Geiser did a great job in moderating the long day (room with no windows, wonderful sunshine outside…). Third, the Foundation invited a wonderful group of speakers, including Prof. Sandoz and retired Swiss Supreme Court Judge Franz Nyffeler. Last, but not least, it was the first time that I had the opportunity to speak at the same conference as my dad, Dr. Peter Gasser. He gave us a wonderful overview of the current state of the art of psychological and neuro-research on emotions.

I started my presentation with the thesis all speakers seemed to agree upon: Research (as well as life experience) suggests that emotions are constitutive and important elements of almost any phenomena with legal relevance. The emotional component is not limited to facts of the case before the court, but also includes decision-making processes by prosecutors, judges, legislators, etc. In some instances, the legal system is conscious about the emotional element – and in some instances it even explicitly addresses emotional phenomena, both with regard to norms applicable to the facts of a case (take, e.g., mitigating circumstances in criminal law; emotional injury in torts law) and the norms aimed at governing the legal decision-making process (e.g. the duty to recuse oneself in procedure law). In most cases, however, the legal system and its lawyers ignore the role of emotions and/or pretends to be “rational” (this perception of law might be particularly widespread among continental European lawyers).

Against this backdrop, I’m arguing that emotions – and research on emotions – play an important role at two levels, each level consisting of two elements: the analytical level with the elements “phenomenon” (stipulated facts, Sachverhalt) and “legal actors” (judges, attorneys, juries, etc.), and the design level with the components “norms applicable to the facts of the case,” and “norms governing the production of law” (e.g. procedure law). Here’s a rough sketch of the proposed framework:

• Analytical level:
• Phenomenon: Using the example of P2P filesharing, I tried to illustrate how a better understanding of the role of emotions (and that means: acknowledging emotions in the first place), makes us better observers and may lead to a deeper understanding of phenomena with legal relevance.
• Legal actors: Inclusion of insights from research on emotions may make us better legal professionals and thus improve the legal system. I used research on prosecutors’ strong feelings of loyalty as an example.

• Design level:
• Norms applicable to facts: New findings about emotions might force us to re-consider existing distinctions and think about new ones. I used the example of adjudicative competence (Dusky standard) as an illustration of this point (see this paper).
• Norms governing the production of law: New insights might lead to new mechanisms and fora that enable the system‘s actors to express, display, channel, balance, … emotional and rational elements of reasoning in a structured and discursive way. Consider, for example, procedural „speed bumps“ that would slow down legislation that is driven by fear – using the rapidly-enacted Patriot Act as a case in point.

In sum, law and emotion research and scholarship has an important agenda-setting function. The trickiest question, in my view, is as to what extent we (as a society) want to include insights from the sciences of mind. The heated debate about the existence of a free will – triggered by new neuro-biological and neuro-psychological findings – nicely illustrates this normative challenge before us.

My personal view is that we should include as much insights from science as we can as far as the analytical level is concerned. In contrast, I would be much more careful about applying insights from emotion research at the level of norm design. Although it is important to gain a better understanding of emotions at the design level, we would probably be ill-advised to incorporate latest insights from research on emotions without thoroughly discussing the normative implications of it on a case-by-case basis.

My colleague and collaborator Daniel Markus Haeusermann has sketched the contours of what he calls a “tentative taxonomy of legal scholarship and virtual worlds” over at his Information Law Possum blog. He differentiates among four basic categories that might be subject of inquiry: Offline law as applied to legal issues of MMORPGs of our world; our law as applied to things that happen within virtual worlds; the law of virtual worlds; and the relation between the law of virtual worlds and our law. Read on here.

I should also mention that Daniel recently published a terrific law review article in the Aktuelle Juristische Praxis on the possibilities and limitations of a legal approach to the protection of emotions related to faith – using the example of legal disputes associated with the controversial Mohammed-cartoons. I hope Daniel will soon provide an English summary of the article (which can be understood as a contribution to law & emotion scholarship) on his weblog.  Update: The English summary is now available (thanks, Daniel.)

With usual delay I just read Paul Caron’s nice essay The Long Tail of Legal Scholarship that was recently posted on SSRN. Caron contrasts the findings of Tom Smith’s ongoing research project on citations of scholarly works in law review articles with his own analysis of SSRN downloads.

Smith’s citation analysis characterizes legal scholarship, in contrast to what long tail theory would suggest, as a hit-driven market (the top 0.5% of articles get 18% of all citations, the top 17% get 79% of all citations, and 40% of articles get never cited at all.)

Caron, in contrast, argues that the picture changes if one looks at consumption rather than the end use of legal scholarship. Using download counts from SSRN as an alternative measure, Caron demonstrates that the tail is getting much longer and is consistent with the long tail thesis: “… 97% of authors have had at least one download in the past year and 100% have had at least one download at some time.”

See also this post and chart.