The Laboratorium
November 2012

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New PW Column: Is There a Class in These Texts?

My latest column for Publishers Weekly — minus the Stanley Fish reference in my proposed title — is live at PWxyz. This one is about Google’s appeal of class certification in the Authors Guild’s lawsuit:

A third set of objections challenge the right of the three named author—plaintiffs—Betty Miles, Joseph Goulden, and Jim Bouton—to represent all authors. In theory, representativeness objections are fixable: just name a more diverse set of lead plaintiffs. But in practice, the Authors Guild has gone to war with the plaintiffs it had. It is not at this late date about to invite Pamela Samuelson to sit down and join the lets-all-sue-Google party. If the class action goes down because the lead plaintiffs aren’t adequate representatives, it’s unlikely to rise again.

Google’s version of this objection is to argue that many authors: it helps them with their research, and it helps them market their books. The academic authors’ version is even sharper: academics benefit from having their books widely findable and accessible, wholly independently of whether those books sell more copies. Google has a survey showing that 58% of authors approve of having their books in snippet view; the academics’ brief is signed by dozens and dozens of book authors who would prefer Google to win on the merits.

The question here is simple but profound: who speaks for authors? In one sense, the answer is easy: every author who speaks up speaks for herself. Tell Google to take your book out of Google Books and it will (or so it promises); tell Google to include your book and it will. Neither group needs the clanking machinery of a class action to make itself heard. It’s the great middle—those authors who have neither opted-in nor opted-out—for whom the class action really matters.

An Outtake

I’m working on a real piece. This didn’t fit:

The legal system is a bewildering and ponderous machine. It emits terrifying noises, burns money, and crushes good men in its gears. Its flywheels take forever to spin up; once set in motion, they have an inevitable, inexorable momentum. Judgment is slow in coming, but when it comes, it comes hard.

Advances in Book Scanning

Google engineer Dany Qumsiyeh has been using his 20% time to build a better mousetrap, where by “mousetrap” I mean book scanner. He’s focused on the problem of page-turning, which typically requires either a human to superintend the scanning process or expensive robotic technology. His innovation is to slide the book back and forth over a prism connected to an ordinary vacuum cleaner, gently sucking one page at a time from right to left. He describes the resulting scanner in a Google tech talk video. I wouldn’t put my money on this particular technology being one for the ages, but it’s another data point on the remarkable level of innovation being poured into making book scanning faster and cheaper.

My Point Exactly

In the course of making “The Case Against the Case Against Voting,” Tim Lee argues:

Of course it would be nice if there was a political system that magically removed certain issues from the realm of collective decision-making. But no such system exists, or is likely to ever exist. After thousands of years of political experimentation, it seems pretty clear that some institution is always going to have a monopoly of force, and some human being or group of human beings is going to have the ultimate authority over how that force is used. We have strong evidence that the best (or least-bad) option is to disperse that authority as widely as possible through an election open to the general public.

This is the Big Theme of most of my work on virtual worlds, Internet governance, and jurisdiction. Going online does not eliminate the possibilities for control; it merely rearranges them. My Sealand article is ultimately about the failure of democracy on Sealand; the recurring theme of my virtual worlds articles is that coercive technical power is an inherent feature of any online space. These systems can be more or less free, and more or less fair. But if they are, it’s because of human institutions and social norms—like the ones about voting.

Please vote today. And please vote thoughtfully, on every race and ballot proposition before you: national, state, and local. This is important.

Amazon, Destroyer of Worlds

Amazon, Destroyer of Worlds:

If Amazon does have an evil Part B to its plan where it uses its monopoly status to jack up profit margins, that at least gives competitors a fighting chance. The real risk is that “sell the devices at cost and make it up on ebooks but wait we don’t make profits on those either” is all there is to the plan, and Amazon’s investors have just unleashed a storm of locusts on the world that will ruin everyone else’s profits.

But for consumers it’s great. An Amazon Prime membership is the most outrageously good deal in commerce today. But competitors should be afraid. It’s an amazing deal and you can’t beat it precisely because Amazon can’t make it work either!

He had me at “storm of locusts.”

Status Update

Hurricane Sandy knocked two-thirds of my communications infrastructure offline. (I’m personally safe and sound, thanks for asking.) New York Law School has been closed since Monday. Its web server is back, but email is still not working regulatory. My personal website and email address were hosted at a datacenter in Brooklyn. I think they’re back now, but I thought that earlier in the week, too. If you need to reach me for the time being, please use my Maryland email address: jgrimmelmann at law dot umaryland dot edu.

The Law of Halloween

New Jersey Executive Order 105 (Oct. 31, 2012):

NOW, THEREFORE, I, CHRIS CHRISTIE, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

1. Celebrations of Halloween scheduled for October 31, 2012 in all parts of New Jersey shall be held on Monday, November 5, 2012.

Is this a law? I doubt the state police will arrest you for trick-or-treating on the wrong day. But I also suspect that trick-or-treating will go forward on the 5th. Score a point for the coordination function of law. But … if all that Chris Christie is doing is suggesting to the parents and children of New Jersey a common date for their costume- and candy-related decisions, why did he need to “ORDER and DIRECT” that Halloween be postponed? Perhaps this law’s effectiveness depends on its claim to be authoritative rather than the actual authority backing it up.

(Online?) Mob Justice

Teju Cole, ‘Perplexed … Perplexed’: On Mob Justice in Nigeria, The Atlantic (Oct. 2012):

Lynching is common in Nigeria. Extrajudicial killing is often the fate of those accused of kidnapping and armed robbery, but also of those suspected of minor crimes like pickpocketing. These incidents, if reported at all, get one or two paragraphs in the newspapers and are forgotten.

What many of these societies have in common is a crisis of modernity. People, finding themselves surrounded by newly complex circumstances, and finding themselves sharing space with neighbors whom they do not know and with whom they don’t necessarily share traditions, defend themselves in terrible new ways. The old customs have passed away, and the new, less reassuring, less traditional modes of life are struggling to be born. Mobs arise out of this crisis. They are a form of impatience.

Compare Tom Downey, China’s Cyberposse, The New York Times Magazine (Mar. 3, 2012):

Human-flesh search engines — renrou sousuo yinqing — have become a Chinese phenomenon: they are a form of online vigilante justice in which Internet users hunt down and punish people who have attracted their wrath. The goal is to get the targets of a search fired from their jobs, shamed in front of their neighbors, run out of town. It’s crowd-sourced detective work, pursued online — with offline results.

And see the long list of incidents described in the Wikipedia article on Internet vigilantism, and query whether they items differ significantly from the incidents of mob harassment detailed in Danielle Citron’s Cyber Civil Rights.