[Commons-Law] relay

Via: Pranesh Prakash

And more from Fred von Lohmann of the Electronic Frontier Foundation
(EFF), covering the same grounds more or less, but with a bit more
about the precedents in the excessive punitive damages vs. due process
bit::


The jury in the retrial of Ms. Jammie Thomas-Rasset deliberated only a
few hours today before concluding that she had [willfully infringed
the copyrights of 24 songs and awarding $1.92 million in statutory
damages][1] ($80,000 per recording) to the record label plaintiffs.
The verdict represents a huge increase over the $220,000 award in the
[original trial][2], which was overturned by the judge based on a
[faulty jury instruction][3] pushed by the record labels. Ms.
Thomas-Rasset has said she doesn't have the money to pay this award
(those wondering whether bankruptcy might protect her should consult
[EFF's 2007 memo][4] covering the intersection of copyright verdicts
and bankruptcy law, as well as [In re Barboza][5], 545 F.3d 702 (9th
Cir. 2008)).

[1]: http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-retrial-verdict.ars
[2]: http://www.eff.org/deeplinks/2007/10/riaa-convinces-jury-impose-fines-filesharing
[3]: http://www.eff.org/deeplinks/2008/09/capitol-v-thomas-judge-orders-new-trial-implores-c
[4]: http://w2.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf
[5]: http://www.ca9.uscourts.gov/datastore/opinions/2008/09/22/0656319.pdf

Given the size of the statutory damages award, Ms. Thomas-Rasset's
legal team will likely be seriously considering a constitutional
challenge to the verdict. A large and disproportionate damage award
like this raises at least two potential constitutional concerns.

First, the Supreme Court has made it clear that “grossly excessive”
punitive damage awards (e.g., [$2 million award against BMW for
selling a repainted BMW as "new"][6]) violate the Due Process clause
of the U.S. Constitution. In evaluating whether an award "grossly
excessive," courts evaluate three criteria: 1) the degree of
reprehensibility of the defendant’s actions, 2) the disparity between
the harm to the plaintiff and the punitive award, and 3) the
similarity or difference between the punitive award and civil
penalties authorized or imposed in comparable situations. Does a $1.92
million award for sharing 24 songs cross the line into "grossly
excessive"? And do these Due Process limitations [apply differently to
statutory damages than to punitive damages][7]? These are questions
that the court will have to decide if the issue is raised by Ms.
Thomas-Rasset's attorneys.

[6]: http://supreme.justia.com/us/517/559/case.html
[7]: http://www.ca6.uscourts.gov/opinions.pdf/07a0242p-06.pdf

Second, [recent Supreme Court rulings][8] suggest that a jury may not
award statutory damages for the express or implicit purpose of
deterring other infringers who are not parties in the case before the
court. In other words, the award should be aimed at deterring *this*
defendant, not giving the plaintiff a windfall in order to send a
message to others who might be tempted to infringe. It's hard to know
without having been in the courtroom, but if the record industry
lawyers urged the jury to "send a message" to the millions of other
American file-sharers out there, they may have crossed the
constitutional line.

[8]: http://www.supremecourtus.gov/opinions/06pdf/05-1256.pdf

For more on the details of these constitutional doctrines, I recommend
a recent article by Prof. Pamela Samuelson & Tara Wheatland,
[Statutory Damages in Copyright Law: A Remedy in Need of Reform][9]
(full disclosure: Prof. Samuelson is a member of EFF's board of
directors). For those who want a shorter summary of the debate in
podcast form, I recommend Prof. Douglas Lichtman's IP Colloquim
episode entitled [Statutory Damages and the Tenenbaum Litigation][10].
While I disagree with some of Prof. Lichtman's conclusions, his guests
do a wonderful job summarizing the relevant cases and concepts.

[9]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375604
[10]: http://www.ipcolloquium.com/Programs/5.html

I assume these arguments will first be submitted to the trial judge in
post-trial motions. After all, this judge has [already indicated][3]
that he found the previous $220,000 award to be "unprecedented and
oppressive."

On Wed, Jun 24, 2009 at 17:10, Pranesh Prakash wrote:
> Ars Technica gives a run-down of the six possible options facing
> Jamiie Thomas-Rasset:
>
>
> Now that Jammie Thomas-Rasset owed $1.92 million to the recording
> industry for sharing 24 songs on KaZaA back in 2005, the case might
> seem to be closed. In reality, though, Thomas-Rasset still has
> numerous options for dealing with the verdict. Let's run them down.
>
> ### Pay it
>
> According to Thomas-Rasset, paying the $1.92 million damage award is
> simply impossible. As a brownfield development coordinator for the
> Mille Lacs band of the Ojibwe, Thomas-Rasset doesn't bring the cash
> home in wheelbarrows. "Like squeezing blood from a turnip," is how she
> described any attempt to collect on the judgment.
>
> ### Settle
>
> According to Thomas-Rasset's testimony during the trial, she could
> have settled back in 2005 for $5,000. The RIAA says that the amount
> was somewhere between $3,000-5,000; more importantly, it remains
> willing to settle the case.
>
> Our understanding is that Thomas-Rasset has simply been unwilling to
> negotiate a settlement; she would rather pay nothing, continually
> claiming innocence. A judicially-ordered settlement conference before
> the trial produced nothing.
>
> Kiwi Camara, Thomas-Rasset's lawyer, said yesterday that she would
> examine a settlement offer, but he wouldn't commit to anthing.
> Certainly, when facing a $1.92 million award, $5,000 looks like a
> bargain—the amount wouldn't even cover the plane tickets for recording
> industry attorneys to attend the trial.
>
> But if you feel that the record industry is "extorting" you, this is
> no doubt an unappetizing plan.
>
> ### Bankruptcy
>
>> The sheer, outrageous size of the damage award in the case is already prompting calls to change the law.
> Bankruptcy is of course an option, but there are potential
> complications: not all debts can actually be discharged in bankruptcy
> court. Back in 2007, the EFF [prepared a brief report][1] on the
> issue, intended for lawyers who were arguing exactly these types of
> cases.
>
>  [1]: http://w2.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf
>
> The report pointed out that copyright infringement judgments can be
> discharged, unless the infringement was ruled to be a "willful and
> malicious injury." (Note that although Thomas-Rasset was found liable
> for "willful" copyright infringement, this is a separate standard that
> requires a separate judicial ruling on her state of mind.)
>
> The issue doesn't come up often with relation to copyright
> infringement judgments against individuals, of course, so it's not
> clear how this might unfold. The takeaway, though, is that clearing
> the debt in bankruptcy court is possible, but not guaranteed. Should
> Thomas-Rasset take this route and fail to have the debt discharged,
> settlement would suddenly look like a super-appealing alternative to
> having wages garnished for the rest of one's life.
>
> ### The constitutional challenge
>
> Though the case is "over," it's not actually over. The jury has made
> its ruling on the facts of the case, but Judge Michael Davis can still
> run on matters of law. One key matter, made even more relevant by the
> massive $80,000 per-song damage award, is the [constitutionality of
> such a damage award][2]. Is it an "excessive fine" under the Eighth
> Amendment?
>
>  [2]: http://www.eff.org/deeplinks/2009/06/record-labels-awarde
>
> That amendment says that "excessive bail shall not be required, nor
> excessive fines imposed, nor cruel and unusual punishments inflicted."
> Camara has already indicated that he plans to contest the award on
> these grounds unless Thomas-Rasset takes a settlement.
>
> Would it work? Recall that after the first trial, Judge Davis took his
> opportunity to assail that verdict with these words: "Thomas allegedly
> infringed on the copyrights of 24 songs—the equivalent of
> approximately three CDs, costing less than $54, and yet the total
> damages awarded is $222,000—more than five hundred times the cost of
> buying 24 separate CDs and more than four thousand times the cost of
> three CDs. While the Copyright Act was intended to permit statutory
> damages that are larger than the simple cost of the infringed works in
> order to make infringing a far less attractive alternative than
> legitimately purchasing the songs, surely damages that are more than
> one hundred times the cost of the works would serve as a sufficient
> deterrent."
>
> Given that that penalty is now eight times greater than it was in that
> case, we can certainly expect Judge Davis to give the issue a close
> look. Davis, the [first African-American judge][3] to head up the
> Minnesota US District Court, is no lightweight justice who was just
> fitted for his robe. He was appointed to a lifetime seat on the
> federal bench back in 1994 and has already served a term on the
> nation's Foreign Intelligence Surveillance Court—the most secret
> chamber in the country.
>
>  [3]: http://minnesota.publicradio.org/display/web/2008/06/26/new_chief/
>
> He showed no emotion at all during the verdict yesterday, of course,
> but based on his previous comments about this case, it's hard not
> imagine him holding out hope that a well-argued set of legal
> challenges comes his way and allows him at least some discretion in
> mitigating the award.
>
> ### Appeal
>
> Such motions would take place within the federal courts, but
> Thomas-Rasset could also appeal the entire case to the Eighth Circuit
> Court of Appeals, too. Federal appellate cases are generally
> high-profile, high-cost affairs, but the legal team of Camara and
> Sibley have indicated their continued willingness to represent
> Thomas-Rasset.
>
> ### Change the law
>
> The sheer, outrageous size of the damage award in the case is already
> prompting calls to change the law. Even among the Ars commentariat,
> plenty of readers believe that Thomas-Rasset did infringe the 24
> copyrights at issue, but there was near universal disdain for the jury
> and for the law that allowed such an award.
>
> But the outrage isn't confined to the blogosphere. The Washington
> lobby group CCIA, backed by AMD, Microsoft, Yahoo, Google, and others,
> calls the verdict "ridiculous."
>
> "Our copyright laws are overbroad, being misused and enforced with a
> zeal out of proportion to common sense," said CEO Ed Black. "When Sony
> BMG massively and illegally distributed music CDs containing spyware
> that compromised individual users' computer security and infected
> government and military networks worldwide, the FTC only ordered them
> in 2007 to reimburse end-users up to $150 for computer damages. Yet
> when Ms. Thomas shared 24 songs belonging to Sony BMG and other labels
> on the Internet, she was penalized $80,000 for each single track."
>
> He concluded, "Copyright law was created in a different era for
> different business models. It needs to be reformed."
>
> Judge Davis feels the same way and has already "implored" Congress to
> "amend the Copyright Act to address liability and damages in
> peer‐to-peer network cases such as the one currently before this
> Court."
>
> University of California law professor Pam Samuelson, an expert on
> statutory damages and copyright law, also [called for reform][4] in a
> [fascinating paper][5] released in April 2009.
>
>  [4]: http://arstechnica.com/tech-policy/news/2009/04/profs-protest-massive-p2p-damage-awards.ars
>  [5]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375604
>
> In reference to the first Thomas-Rasset judgment, Samuelson concluded,
> "Some jurors in the Thomas case wanted to award $750 per infringed
> song, while others argued for $150,000 per song; why they compromised
> on $9250 per song is a mystery. In today’s world where the average
> person in her day-to-day life interacts with many copyrighted works in
> a way that may implicate copyright law, the dangers posed by the lack
> of meaningful constraints on statutory damage awards are particularly
> acute."
>
> One key suggestion for reform: allowing judges to revise damage awards
> to below the current $750 minimum threshold in such cases.
>
> Had the amount been a "mere" $750 a song, for an $18,000 total fine,
> the Thomas-Rasset case would have offered little incentive to reform
> the law. But when the first of the RIAA's 30,000+ actions goes to
> trial and the plaintiffs emerge with a $1.92 million award...
> legislators may take notice.
>
> On Sun, Jun 21, 2009 at 17:24, Pranesh Prakash wrote:
>> Lawrence, just wanted to add a few points:
>> 1. There is excellent coverage of this case at Ars Technica
>> , whose reporter Nate Anderson was present during
>> the proceedings.
>> 2. According to most observers, the quantum of the damages will work
>> against the RIAA because they will lose a) credibility (USD 80,000 per
>> song???) resulting in a backlash of opinion; b) will increase the
>> strength of the unconstitutionality arguments being championed by
>> Prof. Charles Nesson (in the Joel Tenenbaum case) (U.S. law allows
>> claims from $750 all the way up to $150,000).
>> 3. There is a chance of this being settled by the RIAA and Thomas-Rasset
>> 4. The quantum of damages allows Thomas-Rasset to plead bankruptcy
>> under an interpretation by a court that 'wilful' under bankruptcy law
>> is not the same as 'wilful' in copyright law -- that in bankruptcy law
>> 'wilful and malicious' intent has to be shown, and that this would be
>> difficult to show (hence allowing her to declare bankruptcy).
>> 5. There a torrent with 24 "representative" songs that the RIAA took
>> to court available on The Pirate Bay.
>>
>> On Sat, Jun 20, 2009 at 09:56, Lawrence Liang wrote:
>>> US mum is guilty of file-sharing
>>> By Jonathan Blake
>>> Newsbeat US reporter
>>>
>>> A woman has been ordered to pay $1.9 million (£1.2m) in the only
>>> file-sharing case to go to trial in the US.
>>>
>>> A jury in Minnesota ruled Jammie Thomas-Rasset, 32, had violated music
>>> copyright and must pay damages to the record industry.
>>>
>>> The mother of four from Minnesota was accused of illegally sharing 24 songs
>>> from artists including Sheryl Crow and Green Day.
>>>
>>> Outside the courtroom Thomas-Rasset said the damages were "ridiculous".
>>>
>>> It was the second time record companies had taken Thomas-Rasset to court.
>>> The first trial ended without a verdict.
>>>
>>> A spokeswoman for the Recording Industry Association of America said the
>>> companies were willing to settle out of court for a much smaller amount.
>>>
>>> "Since day one we have been willing to settle this case and we remain
>>> willing to do so," said Cara Duckworth from the RIAA.
>>>
>>> Previous cases
>>>
>>> Most people targeted by the music industry had settled for around £1,500
>>> each.
>>>
>>> It is not clear if Thomas-Rasset plans to appeal against the decision.
>>>
>>>
>>> This case was the only one of more than 30,000 similar lawsuits to make it
>>> to trial.
>>>
>>> Record companies accused Thomas-Rasset of uploading 1,700 songs to the Kazaa
>>> file-sharing site before it became a legal service.
>>>
>>> In court she described herself as a "huge music fan".
>>>
>>> Defence lawyers argued companies could not prove that she was sharing the
>>> songs, suggesting her children or ex-husband may have done it.
>>>
>>> Companies including Sony, BMI, Universal and Warner Music say they are now
>>> concentrating on working with internet service providers to crack down on
>>> the worst offenders of file-sharing.
>>>
>>> Online piracy has been blamed for a decline in music sales in recent years.
>>>
>>> Thomas-Rasset said she has no means of paying the fine: "There's no way
>>> they're ever going to get that.
>>>
>>> "I'm a mom, limited means, so I'm not going to worry about it now."
>>> _______________________________________________
>>> commons-law mailing list
>>> commons-law@sarai.net
>>> https://mail.sarai.net/mailman/listinfo/commons-law
>>>
>>>
>>
>>
>>
>> --
>> Pranesh Prakash
>> Programme Manager
>> Centre for Internet and Society
>> W: http://cis-india.org | T: +91 80 40926283
>>
>
>
>
> --
> Pranesh Prakash
> Programme Manager
> Centre for Internet and Society
> W: http://cis-india.org | T: +91 80 40926283
>

Via: Pranesh Prakash

Ars Technica gives a run-down of the six possible options facing
Jamiie Thomas-Rasset:


Now that Jammie Thomas-Rasset owed $1.92 million to the recording
industry for sharing 24 songs on KaZaA back in 2005, the case might
seem to be closed. In reality, though, Thomas-Rasset still has
numerous options for dealing with the verdict. Let's run them down.


According to Thomas-Rasset, paying the $1.92 million damage award is
simply impossible. As a brownfield development coordinator for the
Mille Lacs band of the Ojibwe, Thomas-Rasset doesn't bring the cash
home in wheelbarrows. "Like squeezing blood from a turnip," is how she
described any attempt to collect on the judgment.


According to Thomas-Rasset's testimony during the trial, she could
have settled back in 2005 for $5,000. The RIAA says that the amount
was somewhere between $3,000-5,000; more importantly, it remains
willing to settle the case.

Our understanding is that Thomas-Rasset has simply been unwilling to
negotiate a settlement; she would rather pay nothing, continually
claiming innocence. A judicially-ordered settlement conference before
the trial produced nothing.

Kiwi Camara, Thomas-Rasset's lawyer, said yesterday that she would
examine a settlement offer, but he wouldn't commit to anthing.
Certainly, when facing a $1.92 million award, $5,000 looks like a
bargain—the amount wouldn't even cover the plane tickets for recording
industry attorneys to attend the trial.

But if you feel that the record industry is "extorting" you, this is
no doubt an unappetizing plan.


> The sheer, outrageous size of the damage award in the case is already prompting calls to change the law.
Bankruptcy is of course an option, but there are potential
complications: not all debts can actually be discharged in bankruptcy
court. Back in 2007, the EFF [prepared a brief report][1] on the
issue, intended for lawyers who were arguing exactly these types of
cases.

[1]: http://w2.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf

The report pointed out that copyright infringement judgments can be
discharged, unless the infringement was ruled to be a "willful and
malicious injury." (Note that although Thomas-Rasset was found liable
for "willful" copyright infringement, this is a separate standard that
requires a separate judicial ruling on her state of mind.)

The issue doesn't come up often with relation to copyright
infringement judgments against individuals, of course, so it's not
clear how this might unfold. The takeaway, though, is that clearing
the debt in bankruptcy court is possible, but not guaranteed. Should
Thomas-Rasset take this route and fail to have the debt discharged,
settlement would suddenly look like a super-appealing alternative to
having wages garnished for the rest of one's life.


Though the case is "over," it's not actually over. The jury has made
its ruling on the facts of the case, but Judge Michael Davis can still
run on matters of law. One key matter, made even more relevant by the
massive $80,000 per-song damage award, is the [constitutionality of
such a damage award][2]. Is it an "excessive fine" under the Eighth
Amendment?

[2]: http://www.eff.org/deeplinks/2009/06/record-labels-awarde

That amendment says that "excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted."
Camara has already indicated that he plans to contest the award on
these grounds unless Thomas-Rasset takes a settlement.

Would it work? Recall that after the first trial, Judge Davis took his
opportunity to assail that verdict with these words: "Thomas allegedly
infringed on the copyrights of 24 songs—the equivalent of
approximately three CDs, costing less than $54, and yet the total
damages awarded is $222,000—more than five hundred times the cost of
buying 24 separate CDs and more than four thousand times the cost of
three CDs. While the Copyright Act was intended to permit statutory
damages that are larger than the simple cost of the infringed works in
order to make infringing a far less attractive alternative than
legitimately purchasing the songs, surely damages that are more than
one hundred times the cost of the works would serve as a sufficient
deterrent."

Given that that penalty is now eight times greater than it was in that
case, we can certainly expect Judge Davis to give the issue a close
look. Davis, the [first African-American judge][3] to head up the
Minnesota US District Court, is no lightweight justice who was just
fitted for his robe. He was appointed to a lifetime seat on the
federal bench back in 1994 and has already served a term on the
nation's Foreign Intelligence Surveillance Court—the most secret
chamber in the country.

[3]: http://minnesota.publicradio.org/display/web/2008/06/26/new_chief/

He showed no emotion at all during the verdict yesterday, of course,
but based on his previous comments about this case, it's hard not
imagine him holding out hope that a well-argued set of legal
challenges comes his way and allows him at least some discretion in
mitigating the award.


Such motions would take place within the federal courts, but
Thomas-Rasset could also appeal the entire case to the Eighth Circuit
Court of Appeals, too. Federal appellate cases are generally
high-profile, high-cost affairs, but the legal team of Camara and
Sibley have indicated their continued willingness to represent
Thomas-Rasset.


The sheer, outrageous size of the damage award in the case is already
prompting calls to change the law. Even among the Ars commentariat,
plenty of readers believe that Thomas-Rasset did infringe the 24
copyrights at issue, but there was near universal disdain for the jury
and for the law that allowed such an award.

But the outrage isn't confined to the blogosphere. The Washington
lobby group CCIA, backed by AMD, Microsoft, Yahoo, Google, and others,
calls the verdict "ridiculous."

"Our copyright laws are overbroad, being misused and enforced with a
zeal out of proportion to common sense," said CEO Ed Black. "When Sony
BMG massively and illegally distributed music CDs containing spyware
that compromised individual users' computer security and infected
government and military networks worldwide, the FTC only ordered them
in 2007 to reimburse end-users up to $150 for computer damages. Yet
when Ms. Thomas shared 24 songs belonging to Sony BMG and other labels
on the Internet, she was penalized $80,000 for each single track."

He concluded, "Copyright law was created in a different era for
different business models. It needs to be reformed."

Judge Davis feels the same way and has already "implored" Congress to
"amend the Copyright Act to address liability and damages in
peer‐to-peer network cases such as the one currently before this
Court."

University of California law professor Pam Samuelson, an expert on
statutory damages and copyright law, also [called for reform][4] in a
[fascinating paper][5] released in April 2009.

[4]: http://arstechnica.com/tech-policy/news/2009/04/profs-protest-massive-p2p-damage-awards.ars
[5]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375604

In reference to the first Thomas-Rasset judgment, Samuelson concluded,
"Some jurors in the Thomas case wanted to award $750 per infringed
song, while others argued for $150,000 per song; why they compromised
on $9250 per song is a mystery. In today’s world where the average
person in her day-to-day life interacts with many copyrighted works in
a way that may implicate copyright law, the dangers posed by the lack
of meaningful constraints on statutory damage awards are particularly
acute."

One key suggestion for reform: allowing judges to revise damage awards
to below the current $750 minimum threshold in such cases.

Had the amount been a "mere" $750 a song, for an $18,000 total fine,
the Thomas-Rasset case would have offered little incentive to reform
the law. But when the first of the RIAA's 30,000+ actions goes to
trial and the plaintiffs emerge with a $1.92 million award...
legislators may take notice.

On Sun, Jun 21, 2009 at 17:24, Pranesh Prakash wrote:
> Lawrence, just wanted to add a few points:
> 1. There is excellent coverage of this case at Ars Technica
> , whose reporter Nate Anderson was present during
> the proceedings.
> 2. According to most observers, the quantum of the damages will work
> against the RIAA because they will lose a) credibility (USD 80,000 per
> song???) resulting in a backlash of opinion; b) will increase the
> strength of the unconstitutionality arguments being championed by
> Prof. Charles Nesson (in the Joel Tenenbaum case) (U.S. law allows
> claims from $750 all the way up to $150,000).
> 3. There is a chance of this being settled by the RIAA and Thomas-Rasset
> 4. The quantum of damages allows Thomas-Rasset to plead bankruptcy
> under an interpretation by a court that 'wilful' under bankruptcy law
> is not the same as 'wilful' in copyright law -- that in bankruptcy law
> 'wilful and malicious' intent has to be shown, and that this would be
> difficult to show (hence allowing her to declare bankruptcy).
> 5. There a torrent with 24 "representative" songs that the RIAA took
> to court available on The Pirate Bay.
>
> On Sat, Jun 20, 2009 at 09:56, Lawrence Liang wrote:
>> US mum is guilty of file-sharing
>> By Jonathan Blake
>> Newsbeat US reporter
>>
>> A woman has been ordered to pay $1.9 million (£1.2m) in the only
>> file-sharing case to go to trial in the US.
>>
>> A jury in Minnesota ruled Jammie Thomas-Rasset, 32, had violated music
>> copyright and must pay damages to the record industry.
>>
>> The mother of four from Minnesota was accused of illegally sharing 24 songs
>> from artists including Sheryl Crow and Green Day.
>>
>> Outside the courtroom Thomas-Rasset said the damages were "ridiculous".
>>
>> It was the second time record companies had taken Thomas-Rasset to court.
>> The first trial ended without a verdict.
>>
>> A spokeswoman for the Recording Industry Association of America said the
>> companies were willing to settle out of court for a much smaller amount.
>>
>> "Since day one we have been willing to settle this case and we remain
>> willing to do so," said Cara Duckworth from the RIAA.
>>
>> Previous cases
>>
>> Most people targeted by the music industry had settled for around £1,500
>> each.
>>
>> It is not clear if Thomas-Rasset plans to appeal against the decision.
>>
>>
>> This case was the only one of more than 30,000 similar lawsuits to make it
>> to trial.
>>
>> Record companies accused Thomas-Rasset of uploading 1,700 songs to the Kazaa
>> file-sharing site before it became a legal service.
>>
>> In court she described herself as a "huge music fan".
>>
>> Defence lawyers argued companies could not prove that she was sharing the
>> songs, suggesting her children or ex-husband may have done it.
>>
>> Companies including Sony, BMI, Universal and Warner Music say they are now
>> concentrating on working with internet service providers to crack down on
>> the worst offenders of file-sharing.
>>
>> Online piracy has been blamed for a decline in music sales in recent years.
>>
>> Thomas-Rasset said she has no means of paying the fine: "There's no way
>> they're ever going to get that.
>>
>> "I'm a mom, limited means, so I'm not going to worry about it now."
>> _______________________________________________
>> commons-law mailing list
>> commons-law@sarai.net
>> https://mail.sarai.net/mailman/listinfo/commons-law
>>
>>
>
>
>
> --
> Pranesh Prakash
> Programme Manager
> Centre for Internet and Society
> W: http://cis-india.org | T: +91 80 40926283
>



--
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 40926283
_______________________________________________

Via: Pranesh Prakash

Lawrence, just wanted to add a few points:
1. There is excellent coverage of this case at Ars Technica
, whose reporter Nate Anderson was present during
the proceedings.
2. According to most observers, the quantum of the damages will work
against the RIAA because they will lose a) credibility (USD 80,000 per
song???) resulting in a backlash of opinion; b) will increase the
strength of the unconstitutionality arguments being championed by
Prof. Charles Nesson (in the Joel Tenenbaum case) (U.S. law allows
claims from $750 all the way up to $150,000).
3. There is a chance of this being settled by the RIAA and Thomas-Rasset
4. The quantum of damages allows Thomas-Rasset to plead bankruptcy
under an interpretation by a court that 'wilful' under bankruptcy law
is not the same as 'wilful' in copyright law -- that in bankruptcy law
'wilful and malicious' intent has to be shown, and that this would be
difficult to show (hence allowing her to declare bankruptcy).
5. There a torrent with 24 "representative" songs that the RIAA took
to court available on The Pirate Bay.

On Sat, Jun 20, 2009 at 09:56, Lawrence Liang wrote:
> US mum is guilty of file-sharing
> By Jonathan Blake
> Newsbeat US reporter
>
> A woman has been ordered to pay $1.9 million (£1.2m) in the only
> file-sharing case to go to trial in the US.
>
> A jury in Minnesota ruled Jammie Thomas-Rasset, 32, had violated music
> copyright and must pay damages to the record industry.
>
> The mother of four from Minnesota was accused of illegally sharing 24 songs
> from artists including Sheryl Crow and Green Day.
>
> Outside the courtroom Thomas-Rasset said the damages were "ridiculous".
>
> It was the second time record companies had taken Thomas-Rasset to court.
> The first trial ended without a verdict.
>
> A spokeswoman for the Recording Industry Association of America said the
> companies were willing to settle out of court for a much smaller amount.
>
> "Since day one we have been willing to settle this case and we remain
> willing to do so," said Cara Duckworth from the RIAA.
>
> Previous cases
>
> Most people targeted by the music industry had settled for around £1,500
> each.
>
> It is not clear if Thomas-Rasset plans to appeal against the decision.
>
>
> This case was the only one of more than 30,000 similar lawsuits to make it
> to trial.
>
> Record companies accused Thomas-Rasset of uploading 1,700 songs to the Kazaa
> file-sharing site before it became a legal service.
>
> In court she described herself as a "huge music fan".
>
> Defence lawyers argued companies could not prove that she was sharing the
> songs, suggesting her children or ex-husband may have done it.
>
> Companies including Sony, BMI, Universal and Warner Music say they are now
> concentrating on working with internet service providers to crack down on
> the worst offenders of file-sharing.
>
> Online piracy has been blamed for a decline in music sales in recent years.
>
> Thomas-Rasset said she has no means of paying the fine: "There's no way
> they're ever going to get that.
>
> "I'm a mom, limited means, so I'm not going to worry about it now."
> _______________________________________________
> commons-law mailing list
> commons-law@sarai.net
> https://mail.sarai.net/mailman/listinfo/commons-law
>
>

Via: "Patrice Riemens"

> US mum is guilty of file-sharing
> By Jonathan Blake
> Newsbeat US reporter
>
> A woman has been ordered to pay $1.9 million (£1.2m) in the only
> file-sharing case to go to trial in the US.
>
> A jury in Minnesota ruled Jammie Thomas-Rasset, 32, had violated music
> copyright and must pay damages to the record industry.
>

(...)

My friend Dave, usually quite clued in in that sort of issues, expressed
the following additional thoughts:

- Obviously RIAA wanted to make an exemplary case in order 'to get the
message across' - and this case was relatively straightforward and clear
cut as far as fact were concerned.

- She was allegedly represented by a lousy lawyer, a 25 years old, for
whom this was his first major case. So he failed to look at the (rather
large) body of previous arguments and cases in this type of suits. And did
he not call in adequate defense withnesses, like EFF types etc.

- The jury did not like her. Possibly because of her 'attitude'. And so it
was quite happy to go along with plaintiffs in 'making an example'.

- RIAA probably won't go after her to claim the financial damages even if
she doesn't relent, as they are quite satisfied with the spine-chilling
verdict itself, and do not want more adverse PR.

This does not distract from the fact that the whole case itself is
bananas, of course.

Via: Lawrence Liang

Via: Pranesh Prakash

Via: Pranesh Prakash

Via: siddharth narrain

Via: "Krushna Chandra Panigrahy"

Krushna Chandra Panigrahy belongs to Skoost and sent you a little gift.

Click below to collect your gift:
http://uk.skoost.com/fun?commons%2Dlaw%40sarai%2Enet/19146124/4

P.S. This is a safe and innocent gift that Krushna Chandra Panigrahy
sent from Skoost, the free goodies website.

This e-mail was sent to commons-law@sarai.net on 6/13/2009 2:15:51 PM
on behalf of Krushna Chandra Panigrahy (kcpanigrahy@gmail.com)

Via: =?UTF-8?B?TmlzaGFudCB8IOCkqOCkv+CktuCkvuCkgeCkpA==?=

Like Boiling a Frog
David Runciman

Review of 'The Wikipedia Revolution' by Andrew Lih

The best one-volume encyclopedia in the world used to be the Columbia
Encyclopedia, first published by Columbia University Press in 1935. In
our house we have the fifth edition, from 1993, and we still get it
out occasionally to look up kings and queens and old-fashioned stuff
like that. It’s a lovely book, fat but portable and full of nuggety
little entries on most things you can think of. It also has quite a
poignant preface, in which the editors talk about the difficulties of
updating an encyclopedia in such a fast-changing world: they note how
much history, politics, even geography they have had to revise since
the collapse of the Soviet Empire just a couple of years earlier. They
are clearly proud of their efforts to keep up to speed, but some
things inevitably slip through the net. There are for example no
entries for ‘email’, the ‘World Wide Web’ or the ‘internet’, all of
which were just beginning to attract attention in 1993. The editors
think the pace of change at the end of the 20th century means that
traditional works of reference are going to have a hard time keeping
up. Really they have no idea.

1993 wasn’t so long ago; Bill Clinton was president, a fact that the
Columbia editors boast about having been able to include at the last
moment (the last moment here meaning the weeks or months between the
book’s being set and its arriving in the shops or in the hands of
door-to-door salesmen). Yet in encyclopedia publishing, 1993 is now
prehistory. Even 2000, when a sixth – one has to presume final –
edition of the Columbia appeared, belongs to another age. Two years
later, a one-time market analyst called Jimmy Wales started up an
experimental online project called Wikipedia, which allowed volunteers
to create their own encyclopedia entries that could then be revised or
even entirely rewritten by anyone else who happened to be logged on.
Wales, like everyone else involved in the project, didn’t know if it
would work, but since the technology was available it seemed worth a
try. In its first year, Wikipedia generated 20,000 articles, and had
acquired 200 regular volunteers working to add more (this compares
with the 55,000 articles in the Columbia, all subject to rigorous
standards of editing and fact-checking, though this in itself was a
small-scale enterprise compared to the behemoths of the industry like
the Encyclopaedia Britannica, whose 1989 edition covered 400,000
different topics). By the end of 2002, the number of entries on
Wikipedia had more than doubled. But it was only in 2003, once it
became apparent that there was nothing to stop it continuing to double
in size (which is what it did), that Wikipedia started to attract
attention outside the small tech-community that had noticed its
launch. In early 2004, there were 188,000 articles; by 2006, 895,000.
In 2007 there were signs that the pace of growth might start to level
off, and only in 2008 did it begin to look like the numbers might be
stabilising. The English-language version of Wikipedia currently has
more than 2,870,000 entries, a number that has increased by 500,000
over the last 12 months. However, the English-language version is only
one of more than 250 different versions in other languages. German,
French, Italian, Polish, Dutch and Japanese Wikipedia all have more
than half a million entries each, with plenty of room to add. Xhosa
Wikipedia currently has 110. Meanwhile, theEncyclopaedia Britannica
had managed to increase the number of its entries from 400,000 in 1989
to 700,000 by 2007.

Part of the reason the astonishing growth of Wikipedia took even its
founders by surprise was that this wasn’t their first attempt to set
up an online encyclopedia. Wikipedia was an offshoot of something
called Nupedia, which Wales had established in 2000 with the aim of
using online volunteers to produce a new work of reference that would
be free to use. The mistake Wales and his Nupedia collaborators made
was to assume that any encyclopedia has to go through a formal editing
process if it’s going to be reliable. Editors were appointed whose job
was to decide on appropriate topics, open them up to online editing
and then approve final versions once an agreed standard had been met.
The editing process had seven stages from ‘assignment’ to ‘mark-up’,
and was a slow, frustrating and ultimately fruitless business. By the
end of the first year about two dozen articles had been completed,
while the drafts of a few hundred more were still being fretted over.
It looked like the vast additional resources and manpower that the
internet had made available for checking reference books was going to
overwhelm the capacities of anyone trying to process the information.

Hence the Wikipedia solution, stumbled on more by chance than by
design: don’t try to process the information. It is generally assumed
that what is distinctive about Wikipedia is that it is open to anyone
to contribute, but that was true of Nupedia too. Wikipedia is
different in that it doesn’t try to frame the creation of new entries
with commissioned beginnings and fixed endpoints. It is open to anyone
to initiate an entry on Wikipedia, and no entry is ever formally
closed, since it is also open to anyone to keep editing and altering
whatever is already there. Wikipedia still uses a large volunteer army
of editors and ‘janitors’ to oversee the whole process, looking out
for flagrant abuses and sounding the alarm when disputes get out of
hand. But it is not the job of any editor to decide what counts as an
entry. If there is any doubt about whether something is too trivial to
take up space even in so limitless a space as Wikipedia it is put to
the vote of others users (and any vote can always be overturned by
another vote further down the line); otherwise, if you don’t like an
entry it is up to you to change it. The editors are there to try to
ensure this is done in as non-abusive a way as possible. But it is not
up to anyone to call time on anything.

That’s how it works. The puzzle is why it works, given that this way
of compiling an encyclopedia seems to have a flaw so obvious it is
hardly worth stating: if no entry is ever nailed down, how do you know
when you are reading an entry that someone hasn’t just interfered with
it, making it thoroughly unreliable? The early years of Wikipedia were
dogged by this suspicion, and many people – including a lot of
schoolteachers and university lecturers who could remember the distant
days before 2002 when books were books and editors actually edited –
were openly derisive of a work of reference that appeared to make no
effort to discriminate between good information and bad. It is easy to
assume that some version of Gresham’s Law, which states that bad money
will always drive out good, must apply to the circulation of facts as
well. Why would anyone with good information want to put it in a place
where bad information could contaminate it at the touch of a button?
Wouldn’t they choose to keep it to themselves, or at the very least
give it to someone who could recognise its true value, leaving
open-access encyclopedias to the mercies of all the flakes and
grudge-bearers who want to use its veneer of objectivity to force
their craziness down other people’s throats? Well, the answer is
apparently not. One of the remarkable achievements of Wikipedia is to
show that on the internet Gresham’s Law can work in reverse: Wikipedia
has turned into a relatively reliable source of information on the
widest possible range of subjects because, on the whole, the good
drives out the bad. When someone sabotages or messes with an otherwise
sound entry, there are plenty of people out there who see it as their
job to undo the damage, often within seconds of its happening. It
turns out that the people who believe in truth and objectivity are at
least as numerous as all the crazies, pranksters and time-wasters, and
they are often considerably more tenacious, ruthless and monomaniacal.
On Wikipedia, it’s the good guys who will hunt you down.

Wales thinks this tells us something surprising and reassuring about
human nature. ‘Generally we find most people out there on the Internet
are good,’ he says. ‘It’s one of the wonderful humanitarian
discoveries in Wikipedia that most people only want to help us and
build this free, non-profit, charitable resource.’ But in truth it’s a
bit more complicated than that. Wikipedia works because it is highly
distinctive in the way it pulls knowledge together from many different
sources. Most Internet-based techniques for gathering information are
aggregative, in that they try to pool as much information as possible,
allowing all the prejudices and random bits of disinformation that
attach to individual opinions to cancel each other out. This is true
of the many different kinds of polling that take place on the
internet, which use the wisdom of crowds to produce answers far more
accurate than any individual can give. It’s also pretty much what
happens at Google, where everybody else’s searches are monitored to
help filter the information that you might find useful. Aggregative
methods minimise personal responsibility for what is produced and
place all the emphasis on collective outcomes – after all, who knows,
or cares, what their own Google searches are adding to the sum of
knowledge (or subtracting from it)? However, Wikipedia’s approach to
knowledge gathering is not aggregative but cumulative. It builds up
information bit by bit, edit by edit, and it never stops. It also
leaves a virtual paper trail for every entry, so that it is possible
to trace the various steps by which an article has reached its current
form.

When knowledge is generated by crowds, no single individual has much
personal responsibility for what is produced, but nor does any one
person have a realistic prospect of shaping the outcome. With
Wikipedia, the opposite is true. The fact that there is no final
version means that anyone can change anything, but it also means that
every given change can be attributed to a particular individual.
Though it is possible, and common, to make edits on Wikipedia
anonymously (by hiding behind a nickname), it is still true that
someone is always responsible for everything that happens, and that
someone always knows who they are. So the fact that there are no
authoritative versions on Wikipedia is what makes it possible to
generate a sense of personal accountability for particular entries,
since any entry at any given time is the responsibility of the last
person to edit it. This seems to be enough to make most people want to
get it right. But it also means that those who don’t want to get it
right can have their mistakes corrected. The secret to Wikipedia’s
success lies in the fact that personal responsibility for particular
mistakes can’t be erased, but the mistakes themselves can be.

Still, it takes a lot of policing. Wikipedia has a ‘Recent Changes
Patrol’ whose job is to surf the site picking up on all the endless
obscenities and absurdities that are inserted by people who can’t
believe a website would allow anyone to change any page on it (when
they discover that they can, but that changes quickly get corrected,
the fun wears off). More serious tinkering requires more concerted
oversight. From its outset Wikipedia has aimed to operate according to
a code of conduct (of which the centrepiece is the proposition that
‘Wikipedia has a neutral point of view’), but to dispense with firm
rules. However, in 2004, the three revert rule (‘3RR’) was introduced
in order to prevent tit-for-tat battles, whereby corrections are
corrected back to their original form (known as ‘reverts’), then
corrected back again, and so on, because two contributors cannot agree
on a single point of view. The classic case concerned the entry for
Gdansk. The name of the town was changed by a German contributor to
Danzig, then by a Polish contributor back to Gdansk, then back to
Danzig, with no sign of this stopping until the administrators
intervened. The 3RR states: ‘An editor must not perform more than
three reverts, in whole or in part, on a single page within a 24-hour
period.’ Just three changes per 24 hours in a work of reference might
seem absurdly fluid by traditional standards, but for Wikipedia this
was a draconian measure, adopted with deep reluctance by some. Even
so, the Gdansk/Danzig wars were only finally settled when the matter
was put to a vote of the wider Wikipedia community, and it was agreed
that the town could be referred to as Danzig in relation to the period
between 1308 and 1945, and in the biographies of ‘clearly German
persons’; otherwise it was to be Gdansk. It took two years of back and
forth to reach this point: a traditional encyclopedia editor could
have settled it in ten minutes. Nevertheless, the consensus position
on the name appears to have stuck, which given the history of
Gdansk/Danzig is no small achievement.

That Wikipedia represents a finely calibrated balance between licence
and surveillance, and between anonymity and responsibility, is
something often missed by those who want to translate its achievements
elsewhere. It is not an easy model to replicate. One notorious failure
came in 2005, when the editorial page of the Los Angeles Times decided
to experiment with a ‘wikitorial’, which would allow anyone to
contribute to the writing of an editorial column using the same
techniques as a Wikipedia entry. The aim was to let readers shape the
views expressed by the newspaper; the result was a complete mess, as
the entire process was hijacked by vandals determined either to skew
the political slant of the piece, or to overwhelm the Times editorial
page with the sort of shock images in which the internet abounds, and
the project was quickly abandoned. The newspaper had made two
mistakes. First, its editors seemed to imagine that a wikitorial would
edit itself, so they left it alone while they devoted themselves to
other things (like editing ‘real’ columns). But as Wikipedia shows,
freedom requires constant vigilance, and a column will write itself
only if someone is on hand to fight off all the people who will try to
wreck it. Second, a newspaper editorial is actually a much less
open-ended form of writing than an encyclopedia entry. Newspaper
writing has a shelf-life: it appears and is read at a particular time,
often on a particular day. As a result, contributors have an incentive
to try to skew the whole process at the moment of maximum impact. The
Wikipedia principle that all mistakes can be corrected (so that it is
hardly worth trying to introduce them) has much less force in the case
of newspapers, because by the time any corrections have been made most
readers will have moved on.

This is why encyclopedias have been made better by the advent of the
internet, but newspapers have been made worse: the cumulative impact
of the readers’ comments that can now be appended online to almost any
article tends to diminish most forms of human understanding. Bias is
not cancelled out on the readers’ pages of newspaper websites, as
might happen if opinion were being aggregated, but nor is it
eliminated over time, as in the case of Wikipedia. Instead, each
contribution just sits there, glowering back at you, demanding your
attention. I recently read through the hundreds of comments that
Guardian readers had attached to an article about Julie Myerson, the
novelist who wrote about her drug-addicted son and sparked a wave of
middle-class outrage and voyeuristic delight. What was striking was
not just the anger of all those who wanted to see the Myersons suffer
horribly for their crimes, but the equivalent anger of all those who
were disgusted by such vindictiveness, and the anger of the people who
were appalled by the prissiness of that response, and the anger of the
people who couldn’t believe anyone would waste their time caring about
this rubbish, and on, and on. Everyone was furious with everyone else,
and determined not to be shouted down. No one with a reasonable point
of view would bother wasting it on a site like this. When tempers are
frayed, and time horizons are short, the bad drives out the good.

One of the ironic consequences of the open-endedness of the Wikipedia
editorial process is that many of its articles are preoccupied with
the immediate past. The desire to update the facts about any given
subject often means that the facts that remain are the most up-to-date
ones. Biographical entries on living individuals tend to concentrate
on the most recent things they have done, particularly if these have
generated a lot of newsprint that can be used as source material. For
an encyclopedia, Wikipedia devotes far too much space to the latest
scandals and controversies, whose significance, if any, is impossible
to gauge. But this is not a reflection of some desire on the part of
the founders of Wikipedia to stir up interest by courting topicality
and trivia. Far from it: it reflects an almost touching reverence for
properly grounded evidence that underlies the entire Wikipedia
project. Although anyone can edit anything in Wikipedia, everything
that appears there is supposed to carry a reference to some published
source so that it can be checked by other readers. The Wikipedia
policy on this is as follows:

The threshold for inclusion in Wikipedia is verifiability, not truth –
that is, whether readers are able to check that material added to
Wikipedia has already been published by a reliable source, not whether
we think it is true. Editors should provide a reliable source for
quotations and for any material that is challenged or likely to be
challenged, or the material may be removed.

The proliferation of newspaper sources on the internet means that this
is often the best place to look for new, verifiable source material
(particularly if you are not too bothered about truth). Most of the
information out there is recent information, and so therefore is most
of what winds up on Wikipedia.

The insistence that everything in Wikipedia can be referred to
something outside itself stems from an anxiety that the encyclopedia
might otherwise become its own source material, and start to generate
free-floating facts out of nothing. One of the many fascinating
details to emerge from Andrew Lih’s The Wikipedia Revolution is that
both Jimmy Wales and one of his first collaborators, Larry Sanger, are
self-confessed and totally earnest ‘objectivists’, meaning followers
of the philosophy of Ayn Rand. Sanger wrote his doctoral thesis at
Ohio State University under the title ‘Epistemic Circularity: An Essay
on the Problem of Meta-Justification’. He and Wales first encountered
each other on an internet forum Wales had established in 1992, which
offered a ‘Moderated Discussion of Objectivist Philosophy’ and
described itself as ‘the most scholarly of all Objectivist discussions
available on the networks’. Other early contributors to Wikipedia
learned about its existence through the community of online
objectivists, and it was this bond as much as anything that drove the
project forward in its initial stages.

What is objectivism? Frankly, I have no idea. I have never read a word
by Ayn Rand, and though I know she is an object of veneration in some
surprising places (Alan Greenspan, for instance, is a fan), the little
bits I have picked up always sounded a bit bonkers to me.* So this
seemed a good test of Wikipedia’s much vaunted NPOV (neutral point of
view): I would look her up on Wales and Sanger’s encyclopedia to find
out what she’s all about. Well, it’s hard to express in mere words
just how dispiriting an experience it is trying to find out about
objectivism on Wikipedia. This isn’t because the entries seem biased
or uncritical. It is just that they are so introverted, boring and
just long. The entry on Ayn Rand herself is more than 8000 words long
and covers her views on everything from economics to homosexuality in
technical and mind-numbing detail. There are separate lengthy entries
on objectivist metaphysics, objectivist epistemology, objectivist
politics, objectivist ethics, plus entries on all Rand’s various
books, including the novels The Fountainhead and Atlas Shrugged, and
entries on all the characters in these novels, and entries that offer
plot summaries of these novels, and even entries on individual
chapters. All of it reads as though it has been worked over far too
much, and like any form of writing that is overcooked it alienates the
reader by appearing to be closed off in its own private world of
obsession and anxiety. Compare this with the entry on Rand in the 1993
Columbia Encyclopedia:

1905-82, American writer, b. St Petersburg, Russia. She came to the
United States in 1926 and worked for many years as a screenwriter. Her
novels are romantic and dramatic, and they espouse a philosophy of
rational self-interest that opposes the collective of the modern
welfare state. Her best-known novels include The Fountainhead (1943)
and Atlas Shrugged (1957). In The New Intellectual (1961) she
summarised her philosophy, which she called ‘objectivism’.

That’s it (with a couple of references appended), and seems admirably
clear in 70 words. Also, by allocating her 70 words, the Columbia
editors give some indication of what they think she’s worth: on the
same page she gets more space than the French architect Joseph Jacques
Ramée (1764-1842) and the Swiss novelist Charles Ferdinand Ramuz
(1878-1947), but fewer words than the French historian and politician
Alfred Nicolas Rambaud (1842-1905), the Spanish histologist Santiago
Ramón y Cajal (1852-1934) and the Scottish chemist Sir William Ramsay
(1852-1916). That also seems pretty clear.

Wikipedia still has its advantages, however. Despairing of discovering
anything about Rand that I could make sense of, I looked up the
article on Jimmy Wales, to see if that shed any light on his personal
philosophy. This article is also long, but more reasonably so, given
that Wales is responsible for one of the most significant inventions
of the 21st century. It is also admirably even-handed, managing to
convey that Wales is both something of a visionary and also something
of a creep. The section on his personal life includes this detail,
which neither he nor anyone else has seen fit to edit: ‘His first
wife, Pam, was quoted in a September 2008 W magazine article as saying
that Wales, because he believed altruism was evil, discouraged her
from pursuing a nursing degree when they were married.’ The entry also
details the break-up of Wales’s second marriage and the claims of a
subsequent girlfriend, the Canadian conservative columnist Rachel
Marsden, that she only discovered he was ending his relationship with
her by reading about it on Wikipedia. I guess that’s ‘objectivism’ for
you.

Perhaps unsurprisingly, Wales has long since fallen out with Sanger,
re-editing his Wikipedia entry to remove any reference to him as a
co-founder of the project, even though both men were there from the
beginning. But it may be Sanger’s PhD title that gives the clearest
indication of some of the difficulties that lie ahead. ‘Epistemic
circularity’ is a fancy way of saying that Wikipedia could prove too
successful for its own good. This is not because entries on the site
are likely to start cannibalising each other and end up reducing the
whole thing to a relativistic soup: Wikipedia is still very good at
distinguishing cross-references within the site from source material
outside it. Instead, the problem may come as the source material
itself starts to ape the wiki-model. Already, academic publishers are
grappling with the problem of open access, which makes increasing
numbers of academic articles freely available on the web (‘free’ here
meaning not only free to use but also free to dice, slice and
reproduce in another format). Some of the pressure for this move is
coming from the people who fund academic research and who want to see
it disseminated as widely as possible. But a number of funding bodies
(particularly in the sciences) are also questioning whether it makes
sense to wait until research is ‘completed’ before publishing it. Why
not put earlier draft versions out there, or even just the initial raw
data, and let others see what they can make of it? This opens up the
possibility of collaborative editing online: authors might ‘publish’
draft versions of their books and readers could tinker with them to
produce something they are happy with. Of course, the idea of the
permanently updatable book raises the prospect of nightmarish
copyright issues (or more likely the end of copyright altogether), and
it is hardly attractive for academic publishers, since it cuts off
their most obvious revenue stream, which has always been to charge for
the finished product, properly edited in-house. It also raises
difficulties for the idea of verifiability. Wikipedia needs its source
material to be relatively stable, so that its entries can have fixed
reference points. But if the reference points are themselves subject
to endless change, then it becomes much harder to know what counts as
verification.

Meanwhile, as conventional publishing starts to open up to the
Wikipedia way of doing things, the encyclopedia is toying with a
revert back to more conventional methods. German Wikipedia has started
experimenting with ‘flagged’ articles, which means articles that have
been certified as reliable and free from vandalism, to meet a demand
for certainty from German users. (Incidentally, this is not the only
international variation in Wikipedia practice that seems to conform to
national stereotypes: on Japanese Wikipedia, editors are much more
reluctant than their Western counterparts to alter existing pages and
prefer to conduct their exchanges on adjoining discussion sites rather
than blithely interfering with what someone else has written.) The
German experiment has now led to a demand for approved articles to be
published separately on a static website protected from editing, in
order to give readers the option of something that has been
pre-verified.

The question of ‘flagging’ is one of the issues discussed in the
afterword of Lih’s book, which addresses the most pressing challenges
Wikipedia is likely to face in the future. Other concerns include the
creation of a fully-paid executive staff, something that may cause
serious divisions in an organisation that relies so heavily on
voluntary labour; the risk of a major lawsuit by someone who has been
libelled in a Wikipedia entry (the fact that anyone can remove the
offending information doesn’t prevent them from trying to sue, though
it isn’t clear who would be liable – the person who introduced the
libel or the last person to edit the page on which it appears?); and
the increasing complexity of the editing software, which is putting
off many new contributors. More interesting than any of this, though,
is the fact that the afterword was written as a wiki: that is, as a
collaborative exercise using software similar to that of the
encyclopedia itself, and made available to be freely copied and
distributed. It is good of Lih to include it, since it is somewhat
better written than the rest of the book, having a tighter style and a
sharper focus. The single-authored chapters are full of interest but
rather indulgent, containing too much incidental detail about people
Lih wants to please. The afterword has none of that – it just gets to
the point, and doesn’t worry about offending anybody. It helps that
this is a book, so space is limited, and this particular wiki can’t
indulge in the commonest vice of entries on Wikipedia, which is not
knowing when to stop.

Yet even a piece of writing that has been edited by so many people
can’t resist the occasional cliché. The multiple authors of the
afterword write: ‘The Wikipedia community might be like the frog
slowly boiling to death – unaware of the building crisis, because it
is not aware how much its environment has slowly changed.’ When I read
this, I thought: is it really true that frogs can be slowly boiled to
death without realising what’s happening to them? So I looked it up on
Wikipedia, confident that there would be an entry. There is: type in
‘boiling frog’ and you go straight to a page that tells you everything
you need to know. It gives you examples of the use of the term, its
history and a discussion of the veracity of the central idea,
including a description of the late 19th-century experiment in which
it was first demonstrated and the more recent experiments that have
cast doubt on it. Links at the bottom of the page take you to accounts
of these later experiments in scientific journals, which suggest that
the whole thing is a myth. So there it is: you won’t find any of this
in the Columbia, or Encyclopaedia Britannica, or anywhere else for
that matter. There is no other way I could have found out about
boiling frogs – truly, for all its flaws, Wikipedia is a wonderful
thing.

[David Runciman teaches politics at Cambridge. He is the author of
Pluralism and the Personality of the State, The Politics of Good
Intentions and Political Hypocrisy.]

http://www.lrb.co.uk/v31/n10/runc01_.html