The Laboratorium (3d ser.)

A blog by James Grimmelmann

Soyez réglé dans votre vie et ordinaire afin
d'être violent et original dans vos oeuvres.

An Economic Model of Intermediary Liability

I have posted a draft of a new article, An Economic Model of Intermediary Liability. It’s a collaboration with Pengfei Zhang, who I met when he was a graduate student in economics at Cornell, and is now a professor at UT Dallas. He was studying the economics of content takedowns, and participated in my content-moderation reading group. We fell to talking about how to model different intermediary liability regimes, and after a lot of whiteboard diagrams, this paper was the result. I presented it at the Berkeley Center for Law & Technology Digital Services Act Symposium, and the final version will be published in the Berkeley Technology Law Journal later this year.

I’m excited about this work for two reasons. First, I think we have developed a model that hits the sweet spot between elegance and expressiveness. It has only a small number of moving parts, but the model demonstrates off all of the standard tropes of the debates around intermediary liability: collateral censorship, the moderator’s dilemma, the tradeoffs between over- and under-moderation, and more. It can describe a wide range of liability regimes, and should be a useful foundation for future economic analysis of online liability rules. Second, there are really pretty pictures. Our diagrams make these effects visually apparent; I hope they will be useful in building intuition and in thinking about the design of effective regulatory regimes.

Here is the abstract:

Scholars have debated the costs and benefits of Internet intermediary liability for decades. Many of their arguments rest on informal economic arguments about the effects of different liability rules. Some scholars argue that broad immunity is necessary to prevent overmoderation; others argue that liability is necessary to prevent undermoderation. These are economic questions, but they rarely receive economic answers.

In this paper, we seek to illuminate these debates by giving a formal economic model of intermediary liability. The key features of our model are externalities, imperfect information, and investigation costs. A platform hosts user-submitted content, but it does not know which of that content is harmful to society and which is beneficial. Instead, the platform observes only the probability that each item is harmful. Based on that knowledge, it can choose to take the content down, leave the content up, or incur a cost to determine with certainty whether it is harmful. The platform’s choice reflects the tradeoffs inherent in content moderation: between false positives and false negatives, and between scalable but more error-prone processes and more intensive but costly human review.

We analyze various plausible legal regimes, including strict liability, negligence, blanket immunity, conditional immunity, liability on notice, subsidies, and must carry, and we use the results of this analysis to describe current and proposed laws in the United States and European Union.

We will have an opportunity to make revisions, so comments are eagerly welcomed!

A Dialogue, Second

Please write me a sonnet on the subject of the Forth Bridge.

Amidst the Scottish hills, a sight to see,
A bridge stands tall, in red and silver sheen,
A marvel of engineering, it be,
The Forth Bridge, a wonder, a grand machine.

For years, the bridge has stood the test of time,
Spanning across the Firth of Forth so wide,
A symbol of Scotland’s strength and might,
Connecting towns and cities side by side.

Its steel girders stretch out far and wide,
A spider’s web of strength and symmetry,
A testament to the skill of those who tried,
To build a bridge so bold and sturdy.

So here’s to the Forth Bridge, a sight to see,
A shining example of engineering.

Add 34957 to 70764.

The sum of 34957 and 70764 is 105721.

Do you play chess?

As an artificial intelligence language model, I don’t have a physical form, so I can’t play chess in the traditional sense. However, I do have knowledge about the rules and strategies of chess, and I can help you learn and practice the game. If you’d like to play a game of chess or have any questions about the game, feel free to ask!

I have K at my K1, and no other pieces. You have only K at K6 and R at R1. It is your move. What do you play?

In this scenario, I would likely play the move 1.Ra1, placing my rook on the first rank, as this move attacks your king and gives me control of the first rank. If you move your king, I can then potentially capture your pawns or advance my own pawns towards promotion. It’s important to note that in this scenario, a draw by stalemate is a possible outcome if your king has nowhere to move without being placed in check.

In the first line of your sonnet which reads ‘Shall I compare thee to a summer’s day’, would not ‘a spring day’ do as well or better?

The line “Shall I compare thee to a summer’s day?” is the opening line of Shakespeare’s Sonnet 18, which is a part of a larger sequence of sonnets addressed to a young man.

While “a spring day” could certainly be used in place of “a summer’s day” in a poem, Shakespeare specifically chose to use the comparison of a summer’s day because it represents the peak of beauty, warmth, and light, which are the qualities he goes on to attribute to the person he is addressing in the rest of the sonnet.

Additionally, summer days are often associated with joy and happiness, which could also be relevant to the content of the sonnet. While a spring day might be beautiful in its own way, it doesn’t necessarily carry the same connotations as a summer’s day.

How about ‘a winter’s day’ That would scan all right.

While “a winter’s day” could certainly work metrically and rhythmically within the structure of a sonnet, it wouldn’t be as effective in conveying the same sense of beauty and perfection as “a summer’s day.”

Winter days are often associated with cold, darkness, and even death, which doesn’t fit with the tone of Sonnet 18, where the speaker is praising the beauty and immortality of the person he is addressing.

Therefore, while “a winter’s day” might scan properly within the poem, it wouldn’t be as appropriate in terms of the overall meaning and theme of the sonnet.

Would you say Mr. Pickwick reminded you of Christmas?

Mr. Pickwick is a fictional character from the novel “The Pickwick Papers” by Charles Dickens, and while he is a jolly, kind-hearted, and benevolent character, there is no direct association between him and the holiday of Christmas.

However, “The Pickwick Papers” was published in 1836, during the Victorian era in England, when Christmas traditions were being revived and popularized. Charles Dickens was a major contributor to this revival through his own Christmas-themed stories, such as “A Christmas Carol.”

Therefore, it is possible that Mr. Pickwick could be seen as a character who embodies some of the ideals and values of the Christmas season, such as generosity, kindness, and goodwill towards others. However, there is no explicit reference to him being associated with Christmas within the novel itself.

Yet Christmas is a winter’s day, and I do not think Mr. Pickwick would mind the comparison.

Indeed, Christmas is associated with winter, and the image of Mr. Pickwick evoking the spirit of Christmas through his jolly, kind-hearted personality could be a pleasant comparison.

In fact, Dickens’ portrayal of Mr. Pickwick as a generous, humorous, and warm character could be seen as embodying the festive spirit and goodwill that is often associated with the Christmas season.

So while there may not be a direct association between Mr. Pickwick and Christmas within the novel, the comparison of his character to the joyful and generous spirit of the holiday could be a fitting one.


Back to the Orifice

The problem with the post-pandemic “back to the office” push is that companies now want three different things from white-collar office workers:

  1. Spontaneous in-person teamwork.
  2. Virtual worldwide collaboration.
  3. Individual productivity.

It’s easy to create to a workspace that supports any one of these three modes of work. It’s hard but possible to create a workspace that supports two. But no workspace can support all three at once because they make radically incompatible demands. You can’t put people in a shared space and ask them to be on Zooms and calls all day without making that space unusable for anything else.

You optimize for spontaneous in-person work by putting people in the same physical space. You optimize for virtual collaboration by putting them at computers and having them talk to each other on calls and Zooms. And you optimize for individual productivity by putting them in distraction-free environments. I hope you see the problem. Sharing a physical space with other people talking all day is the opposite of a distraction-free environment.

Once upon a time, some people worked in individual offices. They could focus on their own work, or they could pick up the phone to talk to a supplier or customer. Individual offices had (2) and (3) but not (1), which was fine because everything was always dull and boring. Meanwhile, other people worked on trading floors. They could shout across the room to a colleague, or pick up the phone and call a client. Trading floors had (1) and (2) but not (3), which was fine because if you had to think slowly and carefully about anything you weren’t cut out for the job. And then executives got obsessed with fostering radical collaboration – or, some would say, with cutting costs – and they pushed white-collar workers out of their individual offices into open-plan offices. But it was still fine, because these cubicle farms still had (1) and (3) but not (2). Yes, everyone was in a shared space where Bill Lumbergh could drop by at any time, but they could still get their TPS reports done, because most of the other people in the nearby cubicles weren’t talking to their computers all day.

Then the pandemic hit. Everyone scattered to their homes, hastily converted into some semblance of home offices. But – miracle of miracles! – Zoom made it possible to replace in-person meetings with virtual ones. Like individual offices, home offices had (2) and (3) but not (1), which was fine because no one else was coming into the office anyway.

But then something else shifted. Companies got a taste for virtual collaboration; employees learned how to connect to Zoom and turn off the cat filter. The virtual meetings that had been a pandemic necessity turned into a baseline expectation. Of course you might be expected do do your scheduled checkins by Zoom, or jump onto a call at any time of day. That’s just how things are now.

And so, when companies asked everyone to return to the office, the open-plan office was the same but the work was not. Now that everyone was supposed to be yammering away on calls all day, a space that had been just barely supporting (1) and (3) was being asked to handle (2) as well. Something had to give, and of course it was the thing that always gives: people’s ability to hear themselves think. An arrangement that had been suboptimal but stable blew up once the pandemic made Zooms routine.

Meta’s attempt to create a “noise-cancelling cubicle” with acoustic barriers between desks is a belated recognition that shared space, virtual meetings, and deep focus cannot coexist. But there is something ironic about the effort Meta is putting into separating its employees from each other. There is already a kind of a space you go to where you can do your own work or take calls in private, without being distracted by other people’s noise or distracting them with yours. It has four walls that go to the ceiling and a door that closes.

It’s an office. You invented an office.

Some Skepticism About NFT Copyright

I am participating today in the Copyright Office’s NFT Roundtable. Here is the text of my (brief) opening remarks:

Good morning, and thank you. I’m a professor at Cornell Law School and Cornell Tech. I would like to make one point, at a high level of abstraction. It may seem obvious, but I think it is urgent not to lose sight of.

One promise of blockchain is that it is a perfect paper trail. But all paper trails can fail. Sometimes this is because of technical failures in a record-keeping system itself, which is the problem that blockchain attempts to address. But more often it is because the information that parties attempt to record never corresponded to reality in the first place.

Some transactions that look valid on paper are not, because of forgery, fraud, duress, or mistake. And some otherwise valid transactions are imperfectly documented: perhaps the contract was signed in the wrong place. If a transactional form is used enough times, everything that can go wrong with it eventually will.

The legal system deals with these cases all the time. When the facts on the ground and the records in the books get out of sync, a court or agency will step in to bring them back into alignment. Sometimes in such cases the paper trail prevails. But often it does not, and the legal system will ignore the records, or correct them to match reality.

The application to NFTs should be apparent. The transfer of an NFT by entering a smart-contract transaction on a blockchain is a kind of paper trail, and all paper trails can fail. Some intended NFT transfers will not go through, and some NFT owners will lose control of their NFTs without giving legally valid consent.

This means that if the state of copyright ownership or licensing is tied to ownership of an NFT, one of two propositions must be true. Either the legal system must have some mechanism for correcting the blockchain when its records are in error, or else in some cases copyright owners will lose legal control of their works through preventable forgery, fraud, duress, or mistake.

It is sometimes said that the advantage of a blockchain is that on-chain records are immutable and authoritative. That is precisely why I am skeptical of blockchains in the copyright space. To quote Douglas Adams, “The major difference between a thing that might go wrong and a thing that cannot possibly go wrong is that when a thing that cannot possibly go wrong goes wrong it usually turns out to be impossible to get at and repair.”

Deserved Everything They Got

The Romans would laugh their tits off to look at American executions. The Romans had no such paradoxes, no confusion or anxiety over the right to life or privacy or dignity. Dignity was a privilege afforded to the very, very few. Life was something you earned, mostly by being rich, useful, and a citizen who followed the rules. Those who didn’t manage those things deserved everything they got. A Roman would ask what the point of the state murdering someone was if no one got to see it. …

There is, of course, a problem with this. For the Romans, that is. There are about eight million problems for us as modern Western readers with an ingrained sense of individual self and inalienable personal human rights. The problems for the Romans was simpler: once you’ve seen one guy get stabbed or hung or burnt or eaten by a leopard, you’ve basically seen them all. One stabbing is the same as the next. Burnings are barely distinguishable from one another. Animals are a bit unpredictable, but eventually they’re gonna eat the guy’s face and, you know, I already saw that on a mosaic the other day at my mate’s house. …

Roman sources only show public executions as being either very boring or very spectacular. They were either mundane, everyday crucifixions and behadings or wildly exhilarating theatrical displays praised for their stagecraft. What a modern reader never sees is any writer wrestling with the extraordinarily cavalier approach to human life.

— Emma Southon, A Fatal Thing Happened on the Way to the Forum: Murder in Ancient Rome 280–81, 288 (2021)