Suppose you’re a state judge, like Conrad Rushing of the Santa Clara-based 6^th Appellate Court of California. Where do you go if you need to cleave the difference between words like “blog” and “webzine”? You could seek the opinions of any number of experts from law school-affiliated “Centers of Internet and Society” in Palo Alto or in Cambridge. Or you could have asked my opinion. But perhaps citing me directly would not have been very impressive in the footnotes. So instead, the Appellate Court cited Wikipedia, where my words were published, semi-anonymously. (Until now.)

There’s been talk again lately about Wikipedia, but most of it has been hypothesizing filler that brings nothing new to the debate. I thought I’d try to bring something new, in the form of observable facts.

Here’s the background to the case: Apple Computer, not to be confused with the Apple Corps of Beatles fame that keeps suing them to try and keep them out of the music business, is so popular these days they can’t stay out of the press or out of the courts. A couple of years back, independent web publications were able to coax company employees into leaking advance information. Apple was not pleased, to the point that they subpoenaed the publishers of those websites, in order to discover the employees whom they charged had revealed trade secrets.

This immediately became a cause celebre among bloggers and their legal aid at the Electronic Frontier Foundation, which saw the independent publishers as their own– bloggers. This didn’t fool Matt Deatherage, publisher of the MacJournals newsletter, who explained in January 2005 why such a term was mistaken. While Andy Orlowski of the Register remembered this point, outlets from Wired to BoingBoing to the Online Journalism Review all cheered the “victory for bloggers.”

Judge Rushing himself actually stuck by Deatherage’s logic, and never called the defendants “bloggers” in his ruling. Instead he used the term “publishers.” The terms blog or blogger only appeared in a footnote in order to explain whether the publishers could be considered periodical. Here’s that footnote, in its entirety:

Neither of the parties has directly addressed the question whether petitioners’ Web sites may properly be viewed as “periodical publications.” Amicus Bear Flag League, an association of “bloggers,” comes nearest to the point by citing judicial authority defining “periodical publication” to mean a publication appearing at regular intervals. (Houghton v. Payne (1904) 194 U.S. 88, 96-97 [holding literary series to constitute books and not periodical publications, for purposes of postal regulations, due to lack of “continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them”]; Fifeld v. American Auto. Ass’n (D.C. Mont. 1967) 262 F.Supp. 253, 257 [annual tour guide was “book,” not “periodical,” so as to require notice of claimed defamation to publisher under state law].)

Amicus Bear Flag League asserts that nothing in these definitions “exclude[s] Bloggers who publish (i.e. post) fairly regularly.” However, we have avoided the term “blog” here because of its rapidly evolving and currently amorphous meaning. It was apparently derived from “we blog,” a whimsical deconstruction of “weblog,” a compounding of “web log,” which originally described a kind of online public diary in which an early web user would provide links to, and commentary on, interesting Websites he or she had discovered. (See Wikipedia, The Free Encyclopedia <http://en.wikipedia.org/wiki/Blog> (as of May 23, 2006).) The term may now be applied to any Web site sharing some of the characteristics of these early journals. (See ibid.) It is at least arguable that PowerPage and Apple Insider, by virtue of their multiple staff members and other factors, are less properly considered blogs than they are “e-magazines,” “ezines,” or “webzines.” (See Wikipedia, The Free Encyclopedia <http://en.wikipedia.org/wiki/Webzine> (as of May 23, 2006) [“A distinguishing characteristic from blogs is that webzines bypass the strict adherence to the reverse-chronological format; the front page is mostly clickable headlines and is laid out either manually on a periodic basis, or automatically based on the story type.”].) However, the meanings ultimately to be given these neologisms, as well as their prospects for survival, remain unsettled.

In an earlier footnote, Judge Rushing defended his use of Wikipedia: “As with many of the concepts in this opinion, the most authoritative and current sources of information may themselves be found on the web.” Of course, “on the web” is as precise as saying “in printed materials.” The difference is that information in printed materials generally can be traced. With the web, it’s a bit trickier. One searches the Bear Flag League, and find out that they’re a group of conservative California bloggers, and then search more to find out that the founder was Justene Adamec. As for who came up with “we blog,” that is Peter Merholz, who explains such here. As for the quote in bold, it’s a meaty passage out of Wikipedia. In this case, it’s practically impossible to find out who had authored it, unless the author steps forward.

It was me. And I’m absolutely delighted.

Here’s the wikipedia record which shows when that text was entered, twelve months ago. There’s my old IP address, 66.92.69.109, before I moved. I also added a link to my article here on the webzine format. My motivations were simple. I’ve been writing ideas and definitions about how online media can be modeled and understand. I’d grovel to A-List bloggers to get the my ideas noticed, but to little avail. So I figured, why not edit the definition that people will see as authoritative? In theory, I should have had a second person review my work, but I figured I’d count on another Wikipedia user to do that. The text is still there; does that mean it’s approved?

(Curse my ethics, but in the year since I’ve edited it, more of the changes have involved adding and removing examples to the list of Webzines.)

It’s not something I made a habit of; the only subsequent time I troubled myself to edit a Wikipedia entry was to clean up the entry on LBJ. To put these in comparison, in the time that the entry on Webzine has had 52 edits in the last year, and LBJ has had 900 (and my summary of LBJ’s wartime service, reflecting Robert Caro’s scholarship, was adjusted to also accommodate Robert Dallek’s scholarship). Now LBJ’s legacy is still important today– the viability of a President from Texas waging a war with plummeting popularity– but, it’s also the case that the definition of an less commonly-used concept like webzine is fairly critical to the application of law.

This is the same pattern with the Delaware Cahill decision– another case which the EFF and bloggers celebrated, not seeing in the plain English of the ruling that blogs were lumped together chat rooms (“by their nature, they are not a source of facts or data upon which a reasonable person would rely” and analyzed here in Civilities). It appears that there’s still a paucity of authoritative sources of definitions in cyberlaw– and a lack of drive of some by some of its luminaries to change that.

The court could have chosen to defer to any of the giants of the field, in particular, the ones who set up the original Berkman Center for Internet Studies at Harvard– Larry Lessig (now at Stanford), Jonathan Zittrain (now at Oxford)– or any of their colleagues. But the cyberlaw folks have developed the predilection for the narrative, conversational style of blogging, rather than the normative, definitive style of wiki (here’s how I’ve defined the difference). I have yet reviewed the papers of the Berkman conference on “bloggership” last month, but judging by the titles, it doesn’t appear that this came up.

Suppose that the academic legal community came together and worked on a collaborative dictionary of legal definitions for emerging fields, such as cyberspace. They wouldn’t have much trouble finding volunteers. There only problem would be squaring it with the reigning wiki ideology that anybody can write and that certification is unnecessary.

As as uncertified person responsible for writing text which appeared in a court decision, I really wouldn’t mind.

People often ask me questions like why I don’t go to grad school or publish something in print. Really, what they’re asking is, why don’t you go through a formal certification process so we can understand how other people view you? That’s always a possibility, but it’s been my defining effort on Civilities to understand how certification can be attained outside of institutions. I didn’t expect to find that Wikipedia itself would itself be viewed as a certifying authority.

There are others. Search google for blogger “legal definition” brings up the Civilities article on the definitions of bloggers. Granted, the context is “Any one of these may be very useful if a legal definition of blogger were needed.” Well, in a world of self-nominated and algorithm-covered authority, that may just be good enough for legal precedent.