Tag Archives: Uncategorized

Justice Scalia (indirectly) on Net Neutrality

November 12, 2014

Jenna Greene, in the National Law Journal, discusses Justice Scalia’s 2005 dissent in a case upholding the FCC’s classification of cable broadband providers — the same classification that the D.C. Circuit later found exempted them from regulation as common carriers. National Cable & Telecommunications Association v. Brand X Internet Services dealt with the classification of broadband cable Internet service and upheld the FCC’s 2002 classification of broadband as an “information service” rather than a “telecommunications service.” Scalia was joined by Justices Ginsburg and Souter in a dissent that would have found that such classification was not a reasonable interpretation of the 1996 Telecommunications Act.

(No pay wall to read up to 5 articles/month, but you do need to either go through their own free registration or connect with LinkedIn credentials.)

White House Endorses “Common Carrier” Net Neutrality Rule

November 10, 2014

In a press statement today, President Obama urged the Federal Communications Commission to endorse a relatively strict form of network neutrality regulation. His statement specifically endorsed classifying consumer broadband provders as telecommunications providers subject (under the 1996 Telecommunications Act, Pub. L. 104-104) to regulation as “common carriers” under Title II of the 1934 Communications Act.

The New York Times reports the story here. The Presidential statement is online here.

Paradigms upon paradigms

Libraries (or at least the law libraries I know best) have only slowly and gradually come to see ourselves as in the business of providing gateways to online resources as much as we are describers, catalogers, and archivers of printed resources. And, even once we saw ourselves in that role, actually putting the transition into work in our institutional operations has been very, very, slow. While online resources licensed and “subscribed” for remote access across our campuses (silently) account for the large bulk of our served communities’ use of our libraries, most libraries still devote most of their resources on the ground — budgets, staff time, space — on print. And I daresay many, if not most, law students and faculty still regard the library as “mostly” a provider of printed books and journals.

But we’re rapidly approaching another shift that effects the library’s very role as an aggregator of information consumption. While it has long seemed possible for vendors of online information to seek to reach directly to the end consumer, rather than to library intermediaries, there were obstacles.

Libraries have always existed to pool the resources of a community to better leverage the purchase of information access. The basic logic of our role has been that if each member of the community served by the library had to individually purchase, say, every book they were to read (including every book or journal volume necessary to complete a scholarly research project) not only would the costs be prohibitive but, since many of us would use the same materials as one or more of our peers, there would be a lot of waste and duplication. Meanwhile, publishers of conventional information containers have always lacked any reasonable way to “rent” access to what they publish.

Characteristics of the technology of printed books, including high reproduction costs, as well as cultural and legal traditions that include the “first sale” restriction on distribution rights, have always meant that a book sold once can and will be shared. Publishers have never particularly liked first-sale, and never particularly liked libraries, but (at least for the specialized press) never had many other options. This combination of consumer constraints and producer constraints has always meant that, absent combination on the consumption end through libraries, a wide range of books could not be sold. Libraries, in effect, have been the solution to a market failure.

So, there is a floor price below which books (by which I mean not specifically monographs, but printed containers for information) can’t be economically sold and a ceiling on the value to any individual scholar (or legal practitioner!) in having a copy of any individual book needed for consultation, reference, or citation. Books being costly to copy, that floor has always tended to (far) exceed that value-per-use ceiling and even to exceed the combined value of all of the anticipated uses of (most) individual users. The obvious solution is to pool users to share books — perhaps through some kind of pay-per-use mechanism. But the cost to copy books and their fixation in a specific location has meant that publishers couldn’t normally be the one to parcel our uses (as through some kind of rental model). So… so we have libraries.

But our naturally monopoly on content aggregation and point-of-need redistribution is coming to an end. What services do we provide to continue to add value?

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Is Starbucks a Library?

One of the challenges we in the library business face in serving our institutions is the new competition from other sectors that – often only incidentally – actually provide library-like services to much of the information-seeking public. Google is perhaps the obvious (and most self-conscious) example. As director John Palfrey noted to the Harvard Law Bulletin’s reporter, regarding the restructuring of Harvard’s law library, “outside” businesses have begun to take on library-like roles for for-profit, rather than scholarly, reasons. Often these library-like roles are mere spin-offs or support offerings for the other businesses. For instance, in the big picture, academic research is only a pretty small part of why most people use Google’s search engine, but when you are using a tool for all the other built-in, day-to-day, information seeking in your life you are going to be pretty likely to turn to it first for your more targeted academic research too.

But, on a (perhaps) lighter note there’s a brand new intruder into the library space. Starbucks has just made Internet access, via its in-store Wi-Fi, free. But there’s more. As a sweetener in the offering, some paid online content will be made available for free to Starbucks-connected Web users – most notably, this will include “pay wall” content from the Wall Street Journal. Hmmmm…. Isn’t collective pooling and mediation of the costs of acquiring and finding information a pretty fundamental definition of what libraries do? Granted, Starbucks will cover the costs in a very different way than any traditional library – either via advertising or through selling coffee and food to those drawn by the free online content. But much bigger intrusions into the traditional market space of libraries — e.g. novel delivery structures for ebooks — will also be funded in very different ways (and, the danger, accountable to very different masters).

(For what it is worth,the WSJ is obviously offering Starbucks something different than they offer us — paywall content on the WSJ web sites is presently only available through an individual subscription with login/password authentication. Proxied group access through, e.g., campus libraries has only been available through intermediaries that aggregate the Journal’s articles.)

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eBook sales from Google coming soon?

Google announced yesterday, at a Publisher’s Weekly forum on “The Book on Google: Is the Future of Publishing in the Cloud,” that it expects to launch its platform to sell books online in “June or July of this year.”

The product, Google Editions, has been much-discussed for some time, but I believe this is the first solid announcement of a time frame for launch. According to Jessica Vascellaro and Jeffrey Trachtenberg of the Wall Street Journal:

Google says users will be able to buy digital copies of books they discover through its book-search service. It will also allow book retailers—even independent shops—to sell Google Editions on their own sites, taking the bulk of the revenue. Google is still deciding whether it will follow the model where publishers set the retail price or where Google sets retail prices.

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Visualizing Consolidation in the Legal Information Marketplace

Prompted by Thomson Reuters’ closing of the remnants of the venerable Banks-Baldwin here in Cleveland, Sarah Glassmeyer has published an excellent visual representation of the ongoing consolidation of the legal information marketplace.

Greg Lambert at 3 Geeks and a Law Blog took the idea and ran with it — expanding Sarah’s chart to show how information products beyond traditional publishing have also been gobbled by the giants, and creating a Google Docs version for others to add information.
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Making law in a “webby” world — what’s in it for libraries?

Jason Wilson has an interesting new series of blog posts (1, 2) grappling at the idea of defining, or re-defining, the paradigms in which legal practice locates, defines, and uses authority. Ultimately, he argues that it is (past) time to abandon a tired “library” metaphor for a more modular, LEGO-like, approach to crafting responses to legal research needs.

It is an interesting, although incomplete, argument. I particularly find value in the first part, urging a reconsideration of both print and, more broadly, library metaphors for online, inter-linked, legal information. And I would agree that law libraries as institutions have often been too captive, if perhaps inevitably so, to incremental improvements in traditional services and resources, such that we are probably doomed to miss the really big disruptive, transformational, changes in the ways information (including legal information) is constructed and consumed.

While borrowing Jason’s disclaimer to state that I, also, am not a legal philosopher, it is by his analysis of law and legal change that I’m unconvinced. He seems to be writing off the construction of legal research tools around silos of authority (statutory codes, case repositories, etc.) as a rusty and outdated shackle that we’ve retained only from our habitual over-reliance on library metaphors. Instead, I see the tendency of online tools to erode the visibility of hierarchy and structure in the law as one of the greatest dangers of online legal research (to its practitioners) and, perhaps, even a danger to the broader nature and quality of legal work and discourse.

I should say the tendency and potential of online tools to erode the visibility of lines of authority and context — authority and context don’t disappear (replaced by some incompletely-defined LEGO-block of a legal meme) just like that – even if the collective cognitive structure of “law” is to break down over time it will be a slow process, leaving residues and traces, and the practitioner who understands those residual patterns is advantaged over the one who doesn’t. Actually, I’d say that so long as law is law our ability to make reference to these structures and contexts is essential. We’re all legal realists now, and we ‘play the game’ with self awareness, but nonetheless judging and other law-making activities are bounded and legitimized only by the necessity to make legal argument within the bounds of established hierarchies of authority and precedent, and with shared reference to external authority (both sovereign and cognitive) as defined and accepted within communities of practice. It is that “cognitive” part where I worry about researchers who’ve lost touch with context-giving research tools – it seems like there is value in crafting an argument, not just from a grab-bag of authorities, such as what court p has said about similar-scenario x, but also in knowing how legal issue y has traditionally been understood as a close cousin of legal issue z and how the law in a subject area y has tended to show more favor to analogy a than to analogy b because of a‘s relevance in the law of z.

The research component of this, and the law librarian’s stake, is that tools can either make those contexts and networks of authority transparent or not. I’d agree that we may reach a point where book-metaphor and library-metaphor representations aren’t the best way to clarify those connections — something “webbier” may be emergent. But context-providing research tools, from primary sources constructed as statutory codes to secondary sources like well-accepted narrative treatises that give voice to a practice community’s understanding of how its subject area is contextually organized, make it easier for practitioners to make good legal arguments and, presumably, for lawmakers to make good law. Tools that obscure context make it harder.

The existing generations of online research tools have obscured context — their focus (technically necessary at their inception) on literal, Boolean-based, textual retrieval targeted to an individual “document” removed all visible context. This is critically limiting as soon as search turns to something like a statutory code, that does have internal order, and accesses it using tools and paradigms (e.g. text-based query with each section defined as a ‘document’) that actively hide that internal order and context. For cases, bypassing a Digest does remove one external giver of order/context, but at least judicial opinions, in some sense, really do “float out there by themselves,” each an atomized document, just as they appeared in early Lexis or Westlaw, connected to one another primarily by way of citation and cross-reference (i.e. links). So a web of “links” — cross-referencing documents over time — isn’t actually a bad way to represent judicial law. New tools, like Westlaw Next, that (finally) replace both Boolean literalism and the crude relevance ranking of their old ‘Natural Language’ with the connection-seeking, link-parsing, logic of post-Google search engines are important, and will doubtless change the way we search, read, and write law. But I still have trouble seeing how such tools would replace some need to communicate structured context to the researcher. And so I remain skeptical of the logical next step, which would be a collapsing of any remnant of the “library metaphor” database directories into one big wide open Google-esque search box.

I have more to say about Jason’s second post, where he grapples toward a sort of object-oriented approach to legal argument (using a LEGO metaphor). So far as this seems to be a recognition of the inadequacy of some CALR equivalent of the basic Google search, while still looking for some alternative to the old database silos, I’m in sympathy. But that’s a whole other discussion…

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