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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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January 27, 2004

Balkin on Sunstein, Blogging and Democracy

Posted by Ernest Miller

Prof. Jack Balkin has made a couple of good posts about freedom of speech, democracy and blogging (What I learned about blogging in a year and Political Organization and Political Discussion on the Internet). The posts are mostly in response to Cass Sunstein's wildly overblown fears of internet-facilitated cultural isolation in and a recent article in the New York Times that has a similar thesis (Politics of the Web: Meet, Greet, Segregate, Meet Again).

Frankly, I've never really understood Sunstein's fears. It seems to me that we have far more to fear from the mass media, whether that mass media was the Catholic Church prior to the 95 Thesis or that mass media epitomized in The Triumph of the Will. I think the major conceptual problem with Sunstein's thesis is that he seems to assume that people are mostly passive consumers of information. This is one of the critical elements of the traditional mass media model. In the past, mass media has generally been dependent on top-down control of the means of production and distribution to fill the minds of passive consumers. Today's internet media doesn't eliminate the traditional model directly, but provides a competing means for bottom-up production and distribution that assumes active participation and production by people who aren't merely passive consumers.

In many ways, actually, the top-down and bottom-up means of production and distribution are complimentary, which is why Sunstein's calls for some sort of top-down control over the bottom-up internet strike me as so odd. Sunstein's thesis makes sense only to the extent that the public cannot be trusted (whether for social, technical, economic or legal reasons) to be both consumer and producer, recipient and distributer. If there are problems, the solution seems to be to give more capability to consumers to produce and distribute, rather than attempt to replicate mass media controls.

Comments (22) + TrackBacks (0) | Category: Blogging and Journalism | Culture | Freedom of Expression


1. MonsterBOY on October 25, 2003 03:50 PM writes...


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2. hideki yukawa on October 25, 2003 04:11 PM writes...

if the search feature were as comprehensive and functional as is claimed on amazon's website, then it might be possible to write some innovative scripts that stripped out page after page of books. and then, write another program to reconstruct the book based on stripped pages, some OCR required. in the end, some human might have to intervene to plug in missing holes. not unlike how the human genome was read.

that being said, amazon's new search product is amazing!

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3. precogpunk on October 25, 2003 04:36 PM writes...

I understand the concern if people start stealing the whole book but amazon can easily put more constraints on the search. One was would allow an IP address to only view 5 pages of any one book with a given 24 hour period. They already do all kinds of fancy personalization, this would not be hard for them. People copy sections of books all the time, I've paged through books at the bookstore and written down travel info and recipes before. This is nothing new. And ask yourself, do libraries hurt book sales? If you really like a book you'll buy it. Its easier then printing out your electronic copy (the binding and cover protect it) and you can take it more places then you e-version (on the bus, plane, train etc).

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4. Andy on October 25, 2003 04:41 PM writes...

Yeah - God forbid authors actually get more copies of their books sold from this feature. Erode sales? How about encourage them - I'm more likely to buy a book if I know it's got the info I'm looking for... sort of like if Borders didn't let you open a book at the store - just read reviews and look at the cover. Idiots. Straight on with the libraries comment - many people are always going to want to own a book to have in their hands and in their houses for easy no-wait reference. Again, old media standing in the way of the inevitable march towards anytime anywhere anyway you want information.

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5. Just Someone on October 25, 2003 04:52 PM writes...

Students have enough free time to obtain whole books this way? What students do these people know...? I'm working on my second degree, and nobody I know has or has ever had (while involved in studies) enough time for such things. In fact, all my career-driven acquaintances have significantly more free time than I do. </rant>

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6. astfgl on October 25, 2003 05:04 PM writes...

I'm a network/sysadmin, and I can safely say I could whip up a perl script to grab as many pages as possible from a title, and disconnect/reconnect my DSL pppoe session to get a new IP whenever necessary. Cookies, or any other tracking method, are no defence against this, except maybe denying clients from the whole netblock when a limit is reached.

BTW, this page is linked from Expect a spike!

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7. x on October 25, 2003 05:18 PM writes...

"Students certainly have the time and most likely the inclination to do so"

Especially when the Campus Bookstore gouges students on textbooks.

Anyone with enough time could also photocopy a classmate's book a lot faster.

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8. Bryan Waterman on October 25, 2003 05:40 PM writes...

The sky is falling, the sky is falling! Lock up all the books and don't let Amazon sell any at all cause their new service lets people browse some pages (gee, just like standing in a book store and reading a few pages of a book.) It must obviously be illegal since the Author's Guild didn't get paid to let them do it. As far as the students go, what do you think is easier? Spending 10 minutes in front of a copier using a book from the library, or spending hours trying to fool Amazon into showing them a few pages?

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9. Michael Powe on October 25, 2003 06:26 PM writes...

obMomentofHumor: they copyrighted their letter. sheesh.

as the owner of some dozens of technical books that did not have the info i wanted or were so poorly written i could not get through them, i must say that i very seldom buy books sight unseen anymore. if they don't want me to look at their books, they can reasonably expect me to not buy them.

meantime, i use the o'reilly safari "bookshelf" and i highly recommend it. it's low cost and gives high value when you need information, not dead trees.

mp,owner/operator of over 2000 books and still adding on

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10. A college professor on October 25, 2003 06:45 PM writes...

I just love the part about college students
being able to print out "whole chapters for free". Anyone who attended or taught college courses knows just how textbook publishers make their captive market of students who are forced to buy the listed textbooks pay twice (or thrice) the price of similar books, and the dirty tricks they employ to destroy the used book market.

Furthermore, the absolute majority of textbooks sold thusly are garbage, useless as a reference, and consequently with zero sales outside of the college market, and the lifetime of only a couple of years.

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11. David Hartwell on October 25, 2003 06:48 PM writes...

I am an anthologist, and have an immediate problem. I have no difficulty with the Amazon concept, but the rights question is a real one. My publishers have posted entire anthologies at Amazon, and one can read and print entire stories, to which I did not buy rights for free individual electronic posting. My publisher assured me that this would not be possible at Amazon, but it is. Same problem exists potentially for any short fiction in books. It is a bad problem for authors of short fiction and anthologists. I am forced to take some action immediately, but am not sure what. I guess I start with publishing companies on Monday.

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12. Dave Rickey on October 25, 2003 07:37 PM writes...

I just ordered half a dozen books that I wouldn't have known I wanted to buy without the new search feature. That's half a dozen royalties your membership wouldn't have received, on books that almost certainly would never have shown up in my local bookstores (all on fairly obscure areas, not something that often turns up in Borders or B&N, never mind Waldenbooks).

So, ask yourselves, is this really a fight you want to win?


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13. terpia on October 25, 2003 07:49 PM writes...

Right. What a bunch of luddites. I also remember how the Google image search crushed the sales and livliehoods of photographers and other artists.

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14. Keli Hlodversson on October 25, 2003 08:26 PM writes...

This is just ridiculous. I'd think it would be much easier to walk down to the local library than whipping up a script to get a piecemeal version from Amazon...

But on the other hand I do realize that the paperwork must be in order... although I can't understand why anyone should refuse to grant their publishers this right.

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15. Brian on October 25, 2003 08:40 PM writes...

The guild just wants to protect the books that are crap. I've purchased a dozen or so technical books only to find they lack the exact info I need or poor editing of script source which leads to me debugging the "sample" code. Ditto on the college textbooks. The books are so overpriced and the only reason is because they have students locked in...
I think eventually this search feature will help to weed out the bad books.
btw. I hate amazon and their "we can sell everything" attitude. I use for technical books.

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16. Chris Lovell on October 25, 2003 10:47 PM writes...

Students will use this service to print out book chapters; anyone who doesn't think so doesn't realize how far students will go to save some money. I haven't used the search feature, but I have used things like JSTOR or full e-texts available through University libraries, and it saves both money and time. Photocopying is very expensive now (12-15 cents/page!) and if I can get the article, chapter, or book that I need online, that means I don't have to go to the library or track down a fellow student with the text.

Also, when the Author's Guild talks about students printing out chapters of books assigned for secondary reading, I don't think they're referring to the overpriced glossy textbooks ("Beginning Chemistry, 126th ed.," and so on) that students are gouged for; they're talking about real books.

A lot of classes give assignments from classic works in their field, or recent books that are relevant. If you're taking an anthro class, for instance, you might be assigned a chapter or two from works by Marx, Weber, Levi-Strauss, and Bourdieu. Some of these books are from the 19th century, some are from the 1980s. I can picture a history or political science course that would assign books by Ann Coulter, Al Franken, or Michael Moore, but usually we're talking about books that are written for an academic audience.

Usually the student would have to buy a coursepack that has copies of the relevant chapters or they'd have to buy the individual books, and this can get quite expensive (imagine a reading list with 10 trade paperbacks on it--easily possible).

I can picture a budget-conscious student (especially a graduate student) trying to avoid shelling out $25 for a copy of, say, Sahlin's Islands of History, especially if the reading were only 20 pages. For some of these books, the main audience is students--who else will buy academic monographs on gift-exchange, or analyses of rhetoric in Homer? (This doesn't mean the books are bad--they're usually pretty decent--just that their audience is pretty specialized.)

I think it's the authors of these books, who are lucky to get 25,000 in sales, that the Author's Guild is worried about, not the committee that vomited forth "Principles of Analytic Geometry, 225th ed."

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17. riffraff on October 25, 2003 11:08 PM writes...

Once again, we have to drag the luddites, kicking and screaming, to the money tree. Audio cassette recorders were going to destroy the music industry. VCR's were going to end theater-going as we know it. CD-R's were going to destroy software companies. Napster was going to destroy CD sales (as an aside to counter current mythology, CD sales were UP during Napster's heyday).

Audio cassettes spawned into an industry that exceeded LP's. VCR's fostered a megabillion dollar sales model for pre-recorded movies. CD-R's didn't harm software sales and surpassed floppy disks as THE portable media for computers. CD sales have dropped since Napster's demise, but sales of individual songs (ala iTunes) is beyond anyone's projections.

Dead-tree authors need to change their business models to reflect the times and current technology, or they'll be left behind, just like the entertainment industry.

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18. riffraff on October 25, 2003 11:12 PM writes...

Maybe Amazon will publish a list of authors whose work is too precious to be we'll know whose books to avoid purchasing.

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19. Sean on October 26, 2003 06:57 AM writes...

When pen-sized OCR scanners hit the market I used to see guys and girls sitting on the floor in college bookstores scanning page after page of books. Hrm. Looks like we better start shrink wrapping books to make sure none of those pesky words escape!

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20. Swami Prem on October 26, 2003 10:27 AM writes...

I've worked in a Borders Bookstore before, for almost two years and I would constantly see people skimming, thumbing through and reading books.

The benefit of going to the bookstore and being able to crack it open and read it is what often times help sell me on the public.

I will usually only purchase a book based on two things: (1) someone's recommendation and (2) looking through the book.

Who does the Authors Guild think they are?

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21. Adam Rice on October 27, 2003 10:15 AM writes...

I can imagine that the search results could be manipulated in ways that harmed some writers--shoot, Amazon already presents search results sorted by "featured items" as the default, which is never what I want to see.

More importantly, if A) the writers decide to assert this as a prerogative, and B) are successful in doing so, then some writers will clearly opt to give Amazon search-inside rights and some won't. The ones who don't will lose out, and they'll probably realize that, so the existence of the feature will create pressure to go along with it.

I think it's a great idea, and don't mind seeing writers essentially strongarmed into going along with it.

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22. Adam on October 27, 2003 11:39 AM writes...

If the aforementioned perl script was written/used, would it be a circumvention of protections (i.e. the 2+/- page limitations and ip address tracking) and thus afowl of DMCA?

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