Evan Brown has a good summary of last week's Doe v. MySpace decision, wherein a federal district court in Texas threw out claims against MySpace due to the protections provided by Section 230 of the Communications Decency Act.  As Evan describes:

Julie Doe, the anonymous minor plaintiff, lied about her age (saying she was 18 when in fact she was only 13) when she signed up for a MySpace account. Later she met a 19-year-old man on the site, and the two started talking by telephone. They met-up in person, and Doe was assaulted.

Julie and her mother sued MySpace, claiming that it failed to take adequate precautions to protect Julie from the attack. MySpace raised 47 U.S.C. §230 as a defense in its motion to dismiss. That section provides, in relevant part, that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

As so many courts have done before, the court in this case adopted the rationale of the watershed Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Zeran held that "[b]y its plain language, Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."

The court dismissed the case, finding MySpace immune under Section 230.  While decisions of trial courts (even federal ones), may not generally be all that earth-shattering, this one is important for several reasons.  First, it can only prove helpful (perhaps enormously so) to MySpace, which faces a slew of such claims.  Second, the court's application of Section 230 is novel, in that it concluded the statute immunizes a party against "real world physical injury relating to, but not directly resulting from, the publication of material on the Internet," as John Ottaviani puts it.  (Santa Clara law professor Eric Goldman is adding it to his Cyberspace Law syllabus for next year, and he won't be alone in giving the decision concerted scholarly attention.)  Third, the decision may prompt legislators seeking to calm the nerves of concerned parents to question the wisdom of leaving Section 230 in the hands of so-called activist judges; Richard Koman thinks the decision puts the continued viability of Section 230, without which many Web businesses would fold under the weight of their liability for third party acts, in real jeopardy. 

James Au blogs The Second Life of Judge Richard A. Posner, a transcript of last week's Creative Commons event, complete with lawyers-cum-furries.  Surreal.

The conversation ranged back and forth between topics as abstract as law in online worlds and mortally serious as law in the shadow of Al Qaeda– along with infrequent interruptions involving aforementioned raccoon and simulated terror attacks. . . .

Watch this space (a Technorati search for "Posner Second Life," which at the moment unfortunately is devoid of coverage of the actual event):  Judge Richard Posner of the Seventh Circuit Court of Appeals, held forth last night in Second Life, courtesy of Creative Commons.  If that doesn't turn your brain inside out, I'm not sure what will.  For more about the good Judge's work, Project Posner is a great starting point; it yields 60 results for copyright, for example.

Though my first life thus far has put Second Life right up there with India, Japan, South Korea, Nepal, and Thailand as far-off places I merely long to someday visit, I suspect I'm in the minority of legally minded online denizens.  Demand for event access was understandably "fervent," and a positively giddy Colette Vogele emailed as she was giving her new avatar a spin in order to participate.  (Hey, CIS has a whole new look; so does ZDNet, for that matter!)  Professor Patry has been gearing up for the proceedings as well, and I trust James Au (who conducted the interview in-world) will check in soon.  

Hurray to Creative Commons for continuing to exploit Second Life's mind-expanding potential.

Updated, December 9, 12:40 a.m.:  Amber has comments, pics and a transcript; and from James Au:

The conversation ranged from coercive interrogation of terror suspects to intellectual property in online worlds; the audience included several aliens, mutants, babes in 6 inch stilleto heels, and Judge Richard Posner's favorite audience member of all, a human-sized raccoon.  And despite a couple griefer attacks with fireballs and a giant flying block of wood, the Judge pressed on unfazed with agile wit, as if he always gave lectures in the metaverse.

Next Monday, I'll post the transcript of what must be Judge Posner's strangest public conversation on law in the 21st century. . . .

One of Professor Eugene Volokh's readers mined the publicly available patent applications and found this comedy nugget:

Check out claim 9 of this patent application:

9. The method of providing user interface displays in an image forming apparatus which is really a bogus claim included amongst real claims, and which should be removed before filing; wherein the claim is included to determine if the inventor actually read the claims and the inventor should instruct the attorneys to remove the claim.

(Via Slashdot Review.)   And the Edelman podcast I mentioned earlier highlights The Bad Pitch Blog, where clumsy PR is skewered for fun and perhaps profit.  (I have to remember to submit my recent email exchange with an account executive from a huge PR firm, who kindly but cluelessly decided I'd be a good candidate to attend a Samsonite product launch…)

Reuters held a Newsmaker Event in New York recently it would have been interesting to attend; but for it being on an inconvenient coast I gladly would have gone:

PUBLIC FIGURES, PRIVATE LIVES -

A panel of experts debate how far the media should delve into the private lives of public figures

*Do celebrities and politicians have a right to private lives?
*Where does the public interest argument stop?
*Are families fair game?
*Why are we fascinated by the famous?

Panel:

Floyd Abrams, noted First Amendment lawyer
Bonnie Fuller, Chief Editorial Director, American Media, Inc.
Hilary B. Rosen, CNBC/MSNBC, Media Industry Consultant
Gary Morgan, CEO, Splash News/Paparazzi
Jacob Weisberg, Editor-in-Chief, Slate.com

moderator: Paul Holmes, Reuters

Coverage from Reuters, Culture Kitchen, BC Beat, and Jossip indicates there was much discussion but little consensus concerning standards in the online and offline/old media and new media arenas, and "quite of bit of talk about First Amendment/copyright/privacy issues and how they apply to old and new media." 

Meanwhile, Jason Lee Miller discusses how courts have shown their willingness to apply defamation laws in all applicable contexts. 

And just last night in San Francisco, bloggers, podcasters, and journalists converged for a Social Media Club Roundtable "on what is the right thing to do to properly disclose interests and conflicts of interest."  Here's pre-event discussion from Chris Heuer and Mike Arrington, and Chris' post-event recap.

Continued coverage of the AttentionTrust luncheon follows:

Comments from Seth Goldstein:  Seth discusses attention attributes that have quantified value, email addresses, etc.  On the Internet, our gestures (what we do, what we don't do) form this mass of data.  And increasingly, that attention data comes to represent who you are, your identity.  Daphne, the Goddess of Integrity, was fleeing from Apollo, was telling the truth and was turned into a tree.  AttentionTrust is a high search result for 'attention' without practicing any form of SEO.   

In December '05, del.icio.us sold its users' tags to Yahoo!  PC Forum this year was themed 'Users in Control.'  Ray Ozzie has said of Windows Live, "the core is Optimization."  The presumption "We will monitor…" bothers Seth.  Defendant number one of AttentionGate:  AOL's Abdur Chowdhury.  The symptom of attention makes the front page of the New York Times.  "Those are my searches," said Thelma.  Seth thinks Abdur wanted to produce a new social attention algorithm (anonymity be darned) to distinguish himself from his fellow geeks.  This is totally Seth's interpretation, his read on this.  Something inspired the stupidity, this is Seth's theory as to what.  (Dave Sifry comments from the audience that this sort of speculation may reflect more negatively on Seth than on Abdur, and Seth takes the point.)

Future attention remains contingent.  Companies want to listen to users, and users want to be heard.  Google, MySpace, Facebook, etc. all assume people have free choice in what services they use.  The pages are being built dynamically on the fly, based on the explicit and implicit interests of the users.  The users' attention is leveraged to leverage the attention of other users.  In 2,000, Josh Harris practiced self-surveillance to an extreme:  turned a Web cam on himself, his girlfriend, their lives.  Strange things happen when physical gestures turn into electronic signals.  The broader you is missing from the transaction.  …  [Seth is reading from a post I will attempt to link to, rather than attempting to capture/paraphrase; I'm told it will be up in a couple of hours.  Update:  here it is.]  As of today, Seth has resigned his operating role at Root to focus entirely on putting users in control, will now drive a company called AttentionSoft.  The purpose is to address and answer the question, "Why would anyone want to expose their clickstream?"  Between having a recorder "on," and "off," is a whole ecosystem of what you're sharing, who with, what is prefiltered, what is postfiltered…

Comments from Steve Gillmor:  Steve asks Dave Sifry to join him, and Dave describes how, when they first met, Steve laid out an extremely passionate vision for capturing the data we create in the act of living.  (Note that Michael Goldhaber first began working on these ideas with Esther Dyson in 1992.)  Today, Steve is announcing GestureBank.  Robert Anderson and Steve have been working on this for about a year.  Steve describes how Dave Sifry gifted Attention.xml to the community.  Robert Anderson is the CTO of Digipede.  Steve is involved in a land grab on behalf of users, and this is why he's taking over AttentionTrust.  Vendors are our friends, not our enemies.  We're all mercenaries in this space, we're all out for our families and our friends.  What we need to do is develop mechanisms that preserve the users' autonomy, preserve the user being in charge.  GestureBank will become an integral part of the AttentionTrust to protect it from everyone, "including ourselves."

Principle one, RSS is dead.  The river of news is overflowing its banks; feedreaders are commoditized; TechMeme is the new Home page; links, page rank and search are gamed; Signal is Noise; Attention deficit is exploding. 

Principle two, Attention is broken.  there's a lack of user control; it's built on inference; it's managed behind silo firewalls; there is silo balkanization; there are implicit privacy concerns; there is a commodity content incentive model [DMH note:  consistent with what Steve is ranting about here, I'm not putting a "more" link on this lengthy post; you get to decide whether this is important enough to read, and not generate clicks and/or view further ads].   

In the trenches with Steve.  We're back to manually searching our trusted sources for what's important [DMH note:  some of us have never adopted the feedreader option for precisely this reason].  You're left with triage, starting with your vanity feed.  "Woke up, fell out of bed…:"  Who is/isn't talking about you?  Who agrees with you?  Who doesn't?

Attention 2.0:

• Email/IM to alerts:  follows browse to feed notification transition; pushes collaborative communications to RSS; GChat blurs email and IM streams to indistinguishability; GReader blurs the river of news and RSS email models in just the same way.
• No linking -> Citation:  reduces wasted clicks; encourages meme (topics driven) and name searches; supports gesture dynamics (more on this in a moment); it defangs splogs and siloed attention streams; and, it promotes affiniity formation.
• Troll Isolation:  citation (in lieu of links) reduces troll reward (can even turn trolls into partners), and encourages context; deprecates comments and brand scraping; identifies low-value affinity groups, which can have enormous value by helping you identify things you will be interested in more than others, high value in terms of their filtering.
• Inference commoditization:  accelerates the move to efficiency; encourages standardization and spec normalization; helps identify silo signatures; surfaces black hole dynamics.  AttentionTrust has been approached by many competing attention related specifications for endorsements.  Specifications and standards should come from a market force driven consensus, the product of a triage or rollup of the entire ecosystem.  Smart/strong standards will out.  This transfers tremendous power to the users.  If you are trapped in "the MS Office hairball," you are forced into behavior patterns that slow you down and create the need to buy upgrades to improve the experience.  Black hole dynamics = if you're in a river of news, full text feed, you're reading the content inside whatever reader or experience you're using.  The implications of successful use of this type of technology are far different from the average browser or page view model.  There are high value customers you're missing if you're not penetrating the black hole.  [DMH aside:  Dave Sifry asked me if I understood what Steve meant by this.  I think I do.  I believe it means that a growing group of users is consuming information in media, like GMail and GReader, that render their behaviors invisible (a "black hole).  And the corollary is that these users, even if they may be a small percentage of the total universe of users, are highly influential and/or predictive of the behaviors of the balance.  GestureBank 2.0 will weight these kinds of behaviors commensurate with the value of what goes on in what would otherwise be the "black hole."  The black hole represents a higher value audience, that may warrant offering higher incentives to pierce the black hole.]
• Affinity (trust) harvesting:  If…you could prioritize by core affinity, prune duplicates, throw out low value crap, delegate editorial, harvest subscriber, and automate the midtail…you could have something called GestureBank.

GestureBank:   There are no privacy issues here.  There is opt-in, opt out in a pre- and post-filtered way.  The pool of data is open and anonymized.  Individual streams are owned and controlled by the user.  Period.  Affinity groups are owned and controlled by the members of the affinity groups.  Data access is only by a contribution key.  If you don't contribute, you don't have access.  On a stream by stream or affinity stream basis, you only see that under contract directly with the user.

GestureBank 2.0 embeds the open data pool in the (Attention) Trust for users.  It manages anonymous affinity group membership through an anonymous revocable key.  It enables affinity group-only content.  And it guarantees the independence and user control of the open Pool.

Timetable:  Steve has already returned as the President and board director for AttentionTrust.  Robert Anderson will continue as the GestureBank architect at AttentionTrust 2.0.  GestureBank will be integrated within two weeks.  The API will enter development beta the following week.  Affinity Services will launch by the end of October.

What we need is to get a good pay for a good day's work.  A good day's work in the attention economy which Michael Goldhaber began modelling for us is not just what we do, but what we don't do.  Not just what we say, but what we don't say.  This model will incent the creation of more of the kind of content that we're looking for.  It's not just about solving information triage issues under the current regime of incumbents.  It's about creating new incumbents.  There's a lot of economic power here that can be exploited.

I'm here at an AttentionTrust luncheon, featuring a talk by Michael Goldhaber and some AttentionTrust and GestureBank related announcements.  Dan Farber is here as well, so check his blog for related coverage (and his photos are included below).  I will attempt to paraphrase and summarize the remarks from the speakers here, and provide my own commentary thereto where indicated.  This post will cover Michael Goldhaber's portion of the talk, and the following one will cover related AttentionSoft and AttentionTrust announcements.

Comments from Michael Goldhaber:  For humans, the desire for attention is primal and biological.  As a human infant, if you don't get attention, you're dead.  It's hard-coded into our parent-child dynamic.  Context is also integral to attention.  You create a little model of the story or person to whom you're paying attention, and you align with them.  While you are so engaged, there is some sense in which you become them, but the way you do so depends on the context you have and bring to the relationship.  Humans are incredibly interactive, don't like being hermits.  There is a wonderful feeling that comes with alignment, and with having an audience of power.  With attention, there is no limit to the number of peoples' attention you can get, if they exist.  We all have at least potentially a love for attention that is unbounded in scope.  For most of human history, it has been impossible to gain the attention of more than say, your village.  Now, we have the potential of getting the alignment, which is to say the attention, of hundreds of millions of people.  For the most part though, due to the scarcity of attention, that potential is not realized.  When different, simultaneous actions are going on, you are not able to fully align with all those things at once.  It's impossible to fully align when multitasking, unless some of the tasks involved don't actually require your full engagement.  We want attention from people who are fully aligned with us.  Modern technologies have created the potentiality, but not the actuality, of maximizing the potential of attention.

The main thing one has to be good at when seeking attention is offering something Michael calls "illusory attention."   Illusory attention is what you do to somehow convince the viewer or listener that what you're up to is important.  To them.  It is the act of persuading people that you are paying enough attention to them that you're able to keep them fully engaged and aligned with what it is you're doing.  You're not really individually paying attention to each member of the audience, but you give enough of the impression of doing so that the audience remains engaged.  The other day, Michael's power went off.  He called PG&E, got their voice activated phone tree.  This is a very crude attempt at providing illusory attention.  Another level occurs when a real person comes on the line and essentially pretends to be very concerned about your problem, while actually reading from a script and not being very focused on you or your problem at all.  Web sites try to provide illusory attention by trying to provide the viewer or reader with some sense of control over the experience.  Some sites collect data, then use that data to pretend to the collectees that the Web site actuallty knows who they are.  If they can do this in a way that creates empathy, that creates a real feeling that you're getting attention, then it's effective.  We're all used to this from sites like Amazon.  This illusory attention strategy works right up to the point where the feedback you're receiving from your collected data is really stupid.  Going back to Michael's PG&E call, if the recording had said something like, "I'm so sorry you're sitting there in the dark," it would have been a different experience, and a more complex application of illusory attention.

The old economy sees attention as a way of getting people to buy; attempting to persuade buyers that their attention potential will be maximized by the purchase.  (Why you "need" the expensive watch, etc.)  There is a new economy developing around attention itself, rather than as attention as means to an end.  The question becomes:  what do we do about it?  In an attention economy, property is created, and can be reused.  Michael owns the attention of the people in this room during this talk, and will own it again when and to the extent we call it up after the fact.  [DMH:  He owns your attention too, as you read this post.]  This is all done without collecting any data about the audience.  From an attention economic point of view, it's possible to be benefitted by uses of your data of which you do not approve.  From this standpoint, there were involuntary positives for Paris Hilton when her infamous video was made public.

Questions and discussion prompted from the audience:  a different kind of alignment is aligning with a group ("people who viewed this also viewed that"), but the expectations in this case are much lower.  There may be no amount of group alignment with Britney Spears that could get you to click.

Is there less alignment when anonymity is part of the equation?  It depends what is anonymized.  Using the Britney Spears example, the individual identities of the members of the pool are irrelevant.  Identifiable peculiarities don't matter, if you're inclined to be interested in something that the anonymized members of the group are also interested in.

Christopher Carfi asks about trust, and also the idea of future attention, is an opt-in or subscription a promissory note for future attention?  Answering the last question first, if so it's a very weak one.  It's an attempt to deal with the vast universe of information available and single yourself out in some way.  Regarding the attention and trust connection, the more you pay attention to someone the more trust you are likely to have, but the reasons for trust must constantly be reiterated.  Once you lose trust, it's very hard to regain, but the impact of being constantly visible works to deflect that somewhat.

How do we tie these economic considerations in with your primal instinct to attain your survival and other critical goals?  Attention itself is something we all fundamentally need.  Moreover, when others are aligned with you, they are invested in wanting what you want.  So, to some degree, you get what you want by getting a sufficient amount of attention.  This relates to the current economy in the sea change we have seen in people's incomes.  People generate income from the people who pay them attention.  Those who earn less money do so in some sense because they garner less attention.  The potential of doing well without attention becomes harder and harder. 

Seth Goldstein asks whether Google has a balanced attention budget.  We all search using Google, so we're paying some attention.  What we're finding are things Google is putting in our way.  Michael says Google is giving you some illusory attention, which translates into their getting billions of dollars.  We believe they're giving us attention, and they have to maintain that illusion in a constant arms race with competitors.

Mary Hodder comments that it's not always a quest for attention.  Google gives you something other than attention in exchange for you giving them yours.  Michael says this is a question of definition; he's trying to define the whole world in terms of attention which admittedly may be an artificial way to do it.

The Los Angeles Times reports that serveral music industry organizations, including Warner Music Group and Atlantic Records, are being sued by a sixteen-year-old girl who responded to a MySpace ad touting the opportunity to appear as an extra in a Buckcherry video.  According to the plaintiff, she was not carded but was given alcohol before her ensuing Girls Gone Wild-esque behavior was captured for posterity.  According to the band, she had to have presented a fake i.d. and falsified a release in order to participate.  According to the Los Angeles Times, "The Buckcherry situation is just the latest incident demonstrating how the Internet is erasing lines that once separated the private and the public."

It’s interesting that the role of MySpace is being underscored here, in what would appear to be an effort to leverage the negative press and fear surrounding minors’ involvement with the site.  Presumably the same ad on the band’s Web site or in local print publications would have achieved similar results, if not perhaps reaching as broad an audience.

Meanwhile, the defendants’ lawyers must be busy channeling Roy Scheider’s Brody from Jaws:  You’re gonna need a much better bouncer.  

It’s somewhat old news that that Cory Doctorow was named the first holder of USC’s Canada-U.S. Fulbright Visiting Research Chair in Public Diplomacy, but this week it became official in a signing ceremony and talk, available as an MP3.  Cory is a creature of the Live Web, which both informs his fiction and helps chart his course (even if it does preclude him from coming up with a succinct description of his "profession").  In the wind up to Cory’s remarks, his colleagues point out that the United States Congress had to approve Cory’s involvement in the Fulbright program (I assume that’s true of all candidates, but not all candidates carry a metal card emblazoned with the Bill of Rights, "sure to spark conversation at the next security checkpoint!"), and that Cory had been in his new position for only a few days before taking his host university to task for its "bizarre, non-legal copyright policy."  I bring it up both to congratulate Cory and to recommend the talk, which provides good historical context for intellectual property disputes arising today, and touches on many issues critical to online activities:

This has become an issue in media studies, as scholars ask how it’s possible to create new media using new tools, when the copyright law reflects only the old media and the old tools.  It’s generally true that copyright protects an industry and not a culture, and an industry can be defined as what happens when art meets technology.  A non-industrial form of art can’t be an industry, almost by definition.  But the problem is that the people who have the industry today view what’s being done tomorrow as merely derivative.

(hint:  Cory’s the one whose neck can breathe.) 

Marc Canter, among other things founder of PeopleAggregator, is squinting at Facebook’s Developer Terms of Service trying to figure out: "can we display the list of friends one has in Facebook in PeopleAggregator?"

Clearly this is a bleeding edge issue.  No one has ever encountered this before, because there have never been open APIs into social networks.

Let me back up a moment and mention that PeopleAggregator, if you’re not familiar with it, builds on open APIs to create a uniquely user friendly and timesaving experience.  Just pay a visit to the login page for an example of what I mean.  Namely, you can use a flickr, livejournal, or sxore account to log in to PeopleAggregator.  No need to populate yet another online account with your data; instead, through the magic of open APIs PeopleAggregator will bring it in for you from one of these other, unaffiliated services.  I think I have that basically right anyway, please correct me if I don’t.  IANAP(rogrammer).

 And while I can’t say IANAL(awyer), before I turn to Marc’s question (it’s really two questions), I should emphasize to Marc (though he knows already), and anyone else who might be working with the Facebook API and/or looking at its Developer Terms:  IANY(OUR)L(awyer).  This is not legal advice.  In fact,

I try to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to from Lawgarithms. Legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, so nothing in Lawgarithms or any other weblog should be used as a substitute for the advice of competent counsel. 

Seriously.  Before you go putting your families’ and employees’ livelihoods on the line over issues like this, you must have the specific applicable questions answered by a qualified lawyer who actually represents you.  I insist.  ‘Kay, now that we’ve got that behind us.

If I understand Marc correctly he’s wondering first what the Developer Terms of Service say and/or mean, but also — regardless of those terms — wondering what kind of objections or complaints a developer might get from Facebook users who find their data on a non-Facebook site when they (the users) didn’t affirmatively put it there.

Short answer: Read the rest of this entry »