Free and open software and culture have been very good to me, and I’m glad that the Mary and Val (and hopefully soon a fleet of others) will be working to make it more accessible to women and girls. As big a force for change as this movement has been in the past two decades, things can only improve when we consciously work on being accessible to the 50% of the population that is currently all too often excluded.

picture: UC Berkeley Law School Quote, by ingridtaylar, used under CC-BY

The classes I used wikis for were different than Eric’s- he actually assigned students to create Wikipedia articles, whereas the four classes I ended up taking with wikis all used school-hosted wikis for a wide variety of purposes:

• Three designated note-takers taking notes into the wiki, allowing the banning of laptops for other students.
• Note-taking rotating among all students, with wiki gnoming being (if I recall correctly) an ill-defined grade component, but no non-note-taking articles assigned.
• Creation of articles in a class wiki being the primary grade for the class, and with some interaction with other student’s work expected, but with no significant intent that the articles written would become a permanent resource for the public. Essays were capped at 1,000 words- which drove many students nuts but led to some fine writing.
• Creation of articles in a class wiki being the primary grade, with the intent that the class website would build up over the course of repeated class offerings to become an authoritative web asset for the scholarly community working in that area.¹

(All of these classes except the last were in technology-related courses.)

Despite these widely different set of approaches, several pieces of Eric’s commentary rang very true for me.

First, basic wiki concepts were tough. Partially, this reflects poor technology- the average wiki is needlessly hard to use.² Eric saw this in his students (“it took students a substantial amount of time to format their entries into Wikipedia’s format”) and I think it was true in my classmates as well.

But it isn’t just about the technology. Eric says “[m]ost students did not intuitively understand how to approach writing an encyclopedic treatment of a topic.” That does not ring perfectly true for me- lots of my classmates read enough of wikipedia that the format was relatively familiar- but it isn’t insane, especially given the very wide variability in the treatment of legal topics in wikipedia. It would almost certainly help to provide a sort of ‘model’ article, much like the model memos used in writing classes. Since most of the cases will be about specific statutes or cases writing two model/template articles should suffice for many classes.

Other wiki concepts, like extensive linking, or publishing drafts to the world in wiki-style, were apparently even more strange to most of my classmates. None of the four class wikis were deeply interlinked or cross-referenced, outside of what was necessary to create a table of contents and occasional outlinks to wikipedia. Similarly, few students were willing to post works-in-progress to the wiki and refine them there- most students preferred to work privately and then put a final text into the wiki. I’m not sure that law school is the right place to teach wiki nature, and indeed Prof. Goldman seems nervous about publishing student work while it is still a work-in-progress³, but still- I was surprised so few of my classmates appeared to be into the wiki way of creating iteratively edited, interlinked content.⁴

Collaboration was another angle that was difficult. Prof. Goldman says “I gave students the option of working together on a topic, but none ended up pursuing that.” This is not surprising- law schools are essentially designed to teach anti-collaboration- but it is a shame, since collaboration is a (the?) crucial skill in legal practice. Some mandatory wiki collaboration (every student required to substantively edit and fact-check another student’s work, as well as their own writing?) might be a small step in the right direction- and might also help alleviate Eric’s concern about the amount of time he spent editing and fact-checking. As a bonus, the wiki nature of the project should make it easy to grade this student editing- the edits will all be right there⁵.

All these issues make it hard to write good informative wiki-articles in a class context, but surprisingly, they also made the class-notes-in-wiki strategy fall far short of its potential. I would have thought that the lower barrier to entry (no need for perfection) and the stronger incentive for students to delve into them (so that they’d be prepared for exams) would have encouraged these wikis to become ongoing demonstrations in improvement. But instead people just had other things to do, so they tended to languish, untended, until right before exams. I think some ‘live’ wiki technologies like Wave, Etherpad, etc., will help improve that in the future (by allowing more than one editor while the class is actually happening) but until them I’m afraid wiki class notes might not get very far.

In the one class I had that was truly article-oriented, the professor provided a set of suggested questions to research and address. Prof. Goldman seems to regret not doing this from the start, but unfortunately this seems like an inevitable requirement. At the time you want students to start researching and writing they just can’t know the subject area well enough to know what is ‘missing’ from the wiki, so you almost certainly have to provide pointers for all but the most driven students. Note here that this class was in a purely scholarly area (no one was going to treat our work on English property law of the 1300s as legal advice) so we did not have some of the constraints that he felt he had with regards to making sure it was right before it was published. It would be interesting to delve into this question more- given that articles do not identify their authors as lawyers, and given that people come to wikipedia with an expectation that it is imperfect, I wonder if students can be encouraged to publish more work in earlier forms than they might otherwise.

Prof. Goldman concludes that “[i]t is unrealistic to expect that most law students can produce useful entries without supervision.” I’m not sure I’d be so harsh; I think most of my classmates were capable of doing this if prodded to, and it seems like most of Eric’s were too (after more supervision than he expected, admittedly.) But if he is right, this is a pretty sad statement to make. We’re a profession which is necessarily grounded in our ability to communicate, and we should be a profession grounded in our ability to communicate clearly and concisely to a legally unsophisticated public- that is to say, to our clients. If our students can’t write a simple encyclopedia entry, we’re in trouble.

Despite this pessimism, I think the piece gets the most important part exactly right:

I think a wiki entry might be a useful alternative to the traditional seminar paper. I have never been a huge fan of requiring students to write law review-style seminar paper in a semester-long course. Ultimately I think it’s nearly impossible for a novice to come up with a good topic and write a coherent and well-researched paper in a 4 month semester from a cold start. (I expand on that point a little here). As a result, in practice, many student seminar papers devolve into quasi-encyclopedic treatments of a topic with a paragraph of student commentary tacked onto the end. Instead of going through that charade, the professor could channel the student’s research and writing effort into an expressly encyclopedic treatment. This would reduce the pressure students feel to come up with a novel topic, and it would allow the world at large to benefit from the student’s work rather than the effort going into a desk drawer (or worse, the circular file) at the semester’s end.

In my experience, wiki writing- whether the goal is inclusion in Wikipedia or not- really should be part of the law school curriculum. It is better than traditional papers for teaching basic research and scholarship, and if done well, can also teach collaboration, editing, and other writing skills. There is still a lot to learn about the ‘done well’ part, but I hope Prof. Goldman and others continue to experiment with it. They’re doing the right thing even if their students don’t realize it yet :)

1. This separate class wiki had a lot of benefits, most notably being that student articles are never targeted for deletion as irrelevant, but obviously the segregation from the main wiki community has drawbacks too. Maybe the equivalent of the class prize for best essay should be that the best article is ‘promoted’ to main wikipedia…
2. I think real-time wiki/wysiwyg tools like Wave and Etherpad will help fix this once they mature.
3. It might make sense to ‘incubate’ student posts in a separate wiki, so that their classmates can see and participate in each other’s work, before publishing it to Wikipedia.
4. Tangentially, focusing on linking may also provide the solution to Prof. Goldman’s problem that the school requires seminar papers to be 20 pages long- one article is unlikely to be of equivalent length, but an interlinked network of articles on related cases, statutes, and topics could easily grow to that size.
5. One could imagine giving 40% credit for the article and 10% credit for the quantity and quality of edits made to other students articles, if you had an incubator wiki

Key take-away: the campaign is trusting volunteers to take roles that would never have given to volunteers in the past, and using new communications technology (and training) to help coordinate them. Result: vastly increased reach and increased levels of participation and ownership. Parallels to self-organizing (potentially fragile?) open peer production communities will be self-evident to anyone who has participated in one of those. Money quote: “Movements aren’t built on individual people—they are built on relationships.”

• Computers, Privacy, and the Constitution
• Telecommunications

That would be two more than I’ve ever had before.

There are a few different spins you could put on this development. Along the student-faculty axis, it is putting more control in the hands of students. This is probably consistent with the institutional mission of actual student development, but we’ll see whether or not most students are actually willing to participate. (One of these professors will include wiki participation in the grade, the other has not indicate any such weighting.) In the institutional-’enterprise’ sense, it is taking some control out of the hands of university IT (who run our mostly competent but not exactly interactive current course website) and putting it in the hands of technically skilled professors (or at least those who have technically skilled support staff), which is consistent with larger trends in the software industry. And in the open source-proprietary sense, both of these are based on open source software, despite neither admin is exactly thrilled with the available options- contrast with the closed system used for the current course management tools elsewhere in the school.

Not completely a tangent: is there any good term for ‘a wiki user who is grumpy when other users don’t wikify things?’ Because I’m going to be that guy. :)

• 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.

(And you get to hear Lessig make fun of Zittrain (the panel moderator) for being about 12 years old. What could be more fun/inside baseball!)

(Last day of classes… “only” exams to go, and then a week in North Carolina relaxing before work starts.)

[Ed. later: for 'relaxing' in that previous sentence, read 'decompressing lest my brain explode.']