Notes from NYLS Amateur Hour

I’m spending today at a conference on user-generated content at New York Law School. Some notes from throughout the day. As usual, these come with the disclaimer that these are not direct quotes (unless I indicate them to be with quotes); as such you should not cite them as the words of the speaker, but rather as my paraphrase.

• You’d think with all the conference-hopping I do, I’d have been in the same room with Clay Shirky before now. But no.
• Surprising amount of Real Lawyers here, as well as what looks like about 1/2 of the NYLS student body. They make me feel slightly underdressed.
• The head of the UK’s IP office called yesterday to back out of his keynote; opening speaker points to this as evidence that this is a brutally live topic.

Rest will be below the fold.

Clay Shirky

• notes that the distinction between citizen and consumer tells you whether you’re talking in a political or an economic context.
• “we’re living through the largest increase in expressive capability in human history”; compare to movable type; telegraph/telephone; published media; broadcast; now internet. Notes that three of the last four (all except telegraph/telephone) have impacted only a small number of publishers- most people couldn’t address an audience. Now we can all address an audience. (notes that the ‘net can be either two-way or broadcast.)
• Q: “so what are we doing with all this expressive power?” A: lolcats. A: using google maps to try to topple governments. Same underlying technology/media; so we’ve decoupled form of expression from media, which (he seems to imply) was typically more strongly linked in the past.
• compares google maps of hotornot and the Tunisian Prison Map; notes that what each are doing is aggregation of small, tiny bits of information into larger, more valuable wholes; so not just increased ability to publish, but increased ability to aggregate.
• talks a bit about information cascades creating political action; most interesting example is talking about the fall of East Germany. Point is that now you can broadcast information and create these cascades more easily, and exploit the first generation to create a second generation more easily. Example is an ice cream flash mob in Belarus which attracted police attention.
• open question: ‘why bother?’ example of the question is twitter, which mostly seems superficial, but in some cases is being used by Egyptian political activists to coordinate.
• thinks we need to stop thinking about media as something different from the rest of life- edges between different media forms and life are blurred; private and public also mixed.
• question used to be ‘why publish things’; he says very soon (perhaps already) question will be ‘why not publish’. [I suppose this blog is proof of that; if I’m taking notes on the conference at all, I might as well publish them.]
• Q&A/response to Clay:
  • what about control? obviously you have clash with some content owners; may not exactly be inherent in UGC, but comes up very, very frequently. Example: machinima using the halo engine- what role does MS (the halo content owner) have here? Clay: big issue is how many of the economic/pragmatic inconveniences of the previous generation of media should be recreated in the legal/political system? e.g., it was hard to copy for pragmatic reasons, and so CD manufacturers were really useful people- they made people’s lives better by solving the very real problem of how to distribute music. But now redistributing music is easy. Should government/law recreate that difficulty of distribution? (of course, framing it in terms of the CD manufacturer makes the answer easy; when you add musicians to the equation, it gets more complicated. Clay distinguishes between the publishing/recording industry and the music industry- notes that RIAA is RIAA and not MIAA. Might want to look to BMI and ASCAP (implied: compulsory licensing) instead of looking to RIAA for leadership; so far have not done that.
  • moderator mentions Penny Arcade and notes their rejection from real publishers early on, and now their Empire. Notes that copyright didn’t play a critical role for them (at least early on), since they didn’t publish in a traditional way.
  • Clay notes that the amateur-professional distinction is vastly less useful now because there is a gradient in the available content, rather than a clear cutoff between those published and those not published.
  • Q: do we assume that there will always be centralization of government? As: we may see some small decentralizations, but not many yet, and may have structural issues about it. Will be interesting to see what happens when governments are challenged to defer to self-governing entities.
  • Q: help! finding things is hard! are reputational filters enough, particularly for news? A: Clay: we’re used to delegating this reputational filters to institutions; we’re still figuring out if we can transfer this to other mechanisms. Clay suggests that we’re going to have to get comfortable with the idea that we’ll transfer this role to informal/ad-hoc groups. Mentions Global Voices as one example of reputation-by-group, but with the implication that it isn’t very robust/mature yet.
  • Q: do you think this will spill over to the real world? A: Clay says he ties his students up in knots by asking if Jane Jacobs would approve of wifi in parks; notes that when you’re using wifi in a public park you’ve made them less public- you’re in your email bubble. Notes that the Times Square Business District will fight tooth and nail to continue to control their image/self as it starts to spill both ways.
  • Q: what about purely online activities? Do they actually exist/matter? A: well, moveon.org is the most ineffective action group of all time; they send lots of email but that is it. Used to be a rule of thumb on Capitol Hill that one letter meant 2,000 votes back in the district; new rule of thumb is that an email means zero. Must leave the world of the virtual protest in order to have an impact. Discusses the Jericho peanut thing as a good crossover- protest needs to be ‘high cost, hard to fake, hard to ignore’ in order to succeed. So he thinks you’ll get more of that.
  • notes that real revolutions go from point A to chaos rather than point A to point B. So we’re going to see a lot more chaos, particularly in filtering.

Panel on Legal and Business Risks to the Media from User-Generated Content

Panel was basically off the record, but some interesting, non-attributed comments:

• one lawyer calls the risk ‘user appropriated content’; says when it is actually user-generated it is fine. Notes also that there is a risk from corporate appropriation of UGC.
• thinks that judges will start restricting/limiting the CDA’s immunity for service/website providers, because the law’s provisions for harms recovery are too weak.
• one content provider says the biggest risk to him is the rising cost of marketing- more noise (he calls it ‘mediocrity’) to cut through to get their message out.
• one Very Large Content Provider says they see this as a real opportunity for users to find content, since it conditions people with the expectation that they will search for content, instead of schedule it as they have traditional. Calls it a ‘new user habit.’ Notes that many of the big fan sites now have relationships with the media companies, so if they share a minute of a TV show, instead of a full show, the TV media may see that as marketing rather than theft. ‘users are doing our work for us on the marketing side’. Would rather that the content creators be able to ‘claim’ the content whereever it is and monetize it instead of taking it down.  (Note that this speaker is not a lawyer; one of the lawyers on the panel says ‘I’m obligated to look at what can go wrong.’)
• someone says ‘there is an assumption that everything on the web is public domain’; that has the ring of truth. Same person says that they are surprised at how little litigation (specifically about defamation) that there is- seems that lot of things that people would get sued over in print media are tolerated on the web. Says lots of factors for this; jokingly says one of them is that your C&D letters get posted, which doesn’t happen in the print media. Also no deep pockets.
• noted that one problem is that UGC is borderless, whereas many traditional licenses are bordered, which makes the interface between them problematic- can’t promise to give rights they don’t have, even in the cases where the content owner-ish wants to.
• Very High Powered Lawyer admits that maybe it might be a good thing if people don’t understand the current IP rules; that maybe under new circumstances they deserve another look.
• note that there are issues well beyond IP- when everyone is a paparazzi with their cell phone, what happens with privacy for celebrities? What if you’re the owner of TMZ or perez hilton? Suggestion that there will be increasingly divergent defamation laws between the US and everywhere else, given our free speech tradition.
• lawyer points out that if you put a video on youtube you might get hired by HBO, but that there is no equivalent for lawyers- you can’t just blog, you have to go to law school. (Best laugh of the panel. ;)
• noted that what makes the world scary for artists (particularly writers) is that if they go on strike, maybe no one notices.
• some discussion about the crossover between ugc and reality TV- what kinds of releases are necessary?

More after lunch.