The Laboratorium
June 2006

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More Important Things

When I next post to the Lab, it will be as a married man.

Until then, I’ll be offline.

Scholarship Survey:The Tuna Court

Eric Feldman recently posted to SSRN a draft of his article, The Tuna Court: Law and Norms in the World’s Premier Fish Market, 94 Cal. L. Rev. (Mar. 2006). He spent a month in Japan watching the daily workings of the Tsukiji tuna market and its specialized court (the Jiko Shori-jyō, literally “Accident Management Place”). The result is a great analysis of a legal institution doing the work that recent scholarship might lead one to expect would be done instead by informal norms.

Every morning at 5:30, five authorized sellers begin auctioing fish to about 350 authorized buyers, who have spent the previous hour or two inspecting the whole tuna. Prices range from $5 to $40 per kilogram; fish range from 50 to 250 kilograms. About 300 of the buyers are wholesalers with stalls in the marketetplace; they sell tuna mostly in smaller quantities to restaurants, fish markets, and other local retailers. The rest of the buyers include representatives of such entities as from supermarkets and sushi chains. The auctions are orderly and quick, lasting an hour or two; about 3000 fish change hands daily.

For four fifteen-minute shifts each morning—at 7:30, 8:15, 9:15, and 10:30—the Tuna Court convenes to hear disputes about the quality of the fish sold that morning in a setting whose description reminds me of the early days of the common-law English courts setting up shop in different corners of the same room:

Located on a barren rectangle of outdoor cement adjacent to the tuna auction house, the Court is clearly demarcated by a metal fence on two sides, a cinderblock wall on one, and three plastic cones linked by a yellow pole that serve as its entrance. On an A4-sized piece of paper taped to the wall is a sign posted by the Tokyo Metropolitan Government (TMG) that officially designates the area as the Jiko Kensa-sho, or Accident Inspection Place. A small cardboard box attached to one wall contains forms for judges to fill out when making their decisions, and in a corner is a pile of square pieces of plywood that the judges can place on top of an I-beam and use as their “bench” between cases.

Five judges—one auctioneer from each seller—inspect the fish brought back by dissatisfied buyers. They are looking either for defects that could not have been discovered by inspection of the whole, unsliced fish or for seller misrepresentations (e.g. that a 110-kilogram fish actually weighs 125 kilograms). Typical defects include parasites or spoilage not visible from outside. The court can offer a single remedy: a reduction in the selling price equal to half the value of the damage (subject to an 11% floor). (No refunds need be made because accounts will not yet have settled).

All in all, about 2% of fish are disputed. Over 95% of all claims brought to the court result in a reduction in price. About half of the time, the reduction consists of the minimum 11% reduction; another tenth of the time or so, the reduction is the maximum 50% possible. There is an “appeal” process available to buyers, which might better be described as a motion for rehearing on the basis of new evidence; the tuna is returned with further cuts to indicate additional defects. Only about 3% of cases are appealed after the initial award. There is, in theory, a further possible appeal, but in recorded memory, the few cases that have theatened such escalation have been resolved informally with the intervention of third parties from the tuna community.

Feldman raises some very interesting questions by looking at the court. In particular, he notes that the use of a legalized dispute-resolution system runs counter to, say, the normative primacy thesis one would associate with Ellickson’s Order Without Law. Feldman quite convincingly argues that the Tuna Court is consistent with Ellickson’s arguments because it is in many ways an “informal” system as compared with a true adversary lawsuit, and because it reinforces market norms rather than undercutting them. He also uses it as a quite convincing rebuttal of the argument that norms will always predominate in actual dispute resolution; when a legal system is close enough to the ground, it can formalize, at least partially, the everyday matter of handling small grievances.

At the same time, I think he makes matters more difficult for himself than he needs to. Some of his questions have very simple answers in the data he himself supplies. For example …

Why do buyers go to the Tuna Court rather than to informal prcesses of direct negotiation for refunds?

Possible unexamined answer: because those informal processes would be illegal. As he says, “According to the Central Wholesale Market Law, wholesalers cannot change the price of a good after a bid is accepted at auction, except in special circumstances. The Tuna Court operates as one of those special circumstances.” Of course, his question could be reformulated to ask why the buyers and sellers asked for state intervention to make the Tuna Court the exclusive means of offering such refuns. But that’s now a different question, one that can’t be answered convincingly without some significant attention to history and political economy. Feldman makes a good start, but there’s more work to be done here.

Why do other fish markets in the United States not use a similar system?

Buried in an extended discussion of cultural issues, the ownership of American fish markets, and market size, we learn that “in most cases [in the Honolulu tuna market] a whole tuna will be resold to and filleted by a downstream buyer, not the wholesale company that bought it at the auction.” That is, the Tsukiji wholesale whole-fish market is linked to a wholesale sliced fish market in the same space; at the Honolulu market, there are strong reasons (principally spoilage) not to cut the fish up until later on. I take this fact to be virtually determinative; at Tsukiji, close inspection of the merchandise shortly after the sale is economically feasible. That, in turn, allows for an adjustment process close in time and space to the auction. In the Honolulu market—and apparently in the other food auction markets in the United States he discusses—it would be substantially more cumbersome, even impossible, to bring the fish back to illustrate the defects.

This brings me to my not-enough-free-ice-cream complaint: I would have liked to see more discussion of the incentives that this arrangement creates for sellers and the suppliers on whose behalf they act. Feldman notes, intriguingly, that sellers will sometimes use their cameraphones to take pictures of damaged fish for immediate transmission to their suppliers. He also notes some agency issues; sellers have only comparatively small commissions at stake in repricings that may cost a supplier thousands of dollars. Finally, he points out that the auctions themselves prize speed over the highest possible selling price. It would have been interesting to see these strands linked up. I would think that having accurate feedback on disease and damage—in the form of reduced prices for tuna with defects—would encourage suppliers to be more discerning and more careful in their practices, to the general improvement of the quality of the tuna. I would then think that this improvement could itself be a significant contribution to the value of the Tsukiji market for all concerned. It might also be another way (in addition to several Feldman notes) that the market’s design builds a specialzed community of expertise that gives it a competitive advantage.

So yeah, neat paper.

Alan Symonds

Alan Symonds, the Technical Director for theater at Harvard College, passed away on Tuesday, June 20. He was born in 1946. He was working, outside of “business” hours, helping to load in a production in his beloved Agassiz Theater. He was a true Bostonian: educated and earthy, a master craftsman who drove a pickup and loved nothing better than a good story. He was the eye in the storm of Harvard theater: a calm and bemused presence, steady as a rock but capable of moving heaven and earth to make things go right.

I have little right to talk about him, comapred with some of the true theater junkies who lived and breathed backstage tech, who put on huge productions, and many of whom have gone on to do what Alan did, making a career out of doing the tech work they love. But Alan was there for everyone, from actors who may never remeber him to lighting designers who spent their four years and more hanging on his words and his advice. He made it happen; he taught us how to make it happen. He started the Freshman Arts Program; a weeklong extravaganza the week before classes, in which a squad of incoming students ran riot through a dozen art forms, creating fanstastic hybrids and lasting friendships. One of his favorite FAPs involved a pirate ship on wheels that rolled unannounced and unexplained through various orientation events, to the surprise and delight of surprised first-years and their parents.

Most commonly, if you met Alan, it was because you were somehow involved with a production enough to hear the fire speech. He must have given that speech a thousand times. At least. In case of fire, keep the audience calm. Defer to someone with authority and calm, typically the stage manager. Allow them to instruct the audience to calmly stand and proceed in and orderly fashion to the exits. You can position yourself by the stairs or other difficult points to help escort the audience out safely, calmly. Do you know the different kinds of fire extinguishers? No? Then don’t try to be a hero and use one. Leave the firefighting to the professionals. Your job is to get out safely and help everyone else to get out safely.

I think I heard him deliver the fire speech a dozen times. I can’t imagine Harvard theater without him giving it. (Yes, there were a couple of times I filled in on minor productions, senior year, but that was because I knew it well enough from hearing his delivery to give the essential blow-by-blow.) He wasn’t just Mr. Make-it-Happen; he was Mr. Safety. One of the last memories I have of him is from Arts First Weekend (the last weekend of the spring term of the Harvard year, immediately after classes have ended, a brief respite before reading period and finals, when the campus fills up with concerts, plays, exhibitions, screenings, and other arts of every shape and stripe). One of the exhbits was a set of sculptures, including a giant hamster wheel-like metal construction. Some young’uns, seeing what resembled a piece of playground equipment, were scrambling over it. Alan was looking on, with a skeptical expression. He was weighing the evident joy the kids were experiencng in playing with this odd and curious device against the risk that a join in the metal might give way or that little fingers could be trapped between two rods. Safety and playfulness, and how to have them both at once—that’s Alan for you.

Alan also taught me how to run a sound board and how to design lights. I had some of the best experiences of my college career sitting in a booth, watching a show for the tenth time while occasionally pushing a slider around. There’s a wonderful calm in it, a peaceful appreciation of seeing others do something well visibly—while you do your damndest to do something well invisibly. A perfectly timed crossfade; a light that picks up the color of the set and makes it glow; a musical interlude at the edge of perceptibility … the pleasures of working backstage are subtle but enduring. I still carry on the tradition, now and then. When everyone sounded muddy singing karaoke at a friend’s birthday party, I knew it was because they were twiddling the input levels instead of adjusting the master volume out. When Law Revue came calling, I knew how to milk a full range of effects from four pairs of lights and two spot. I’ll never be able to do such things again without hearing him explain how they work.

He gave his advice and stories so generously, I’m amazed. I was always a twerp, a duffer, a minor figure on the tech scene, filling in to help my friends on peripheral productions. But he was always willing to help when I came calling. When we did Chess in the Agassiz, it was a damn difficult sound job: how to project actors, an orchestra, an on-stage rock band, and prerecorded sound effects, all in a semicircular theater with many hard surfaces? (The semicircle means that the echoes center stage are severe, because the sound travelling outwards returns from all directions at the same time. Not enough amplification on the singers and they’ll be drowned out by the orchestra. Too much and you get nasty sudden-onset feedback.) He came up with a solution that involved five fixed microphones and another that would hide in various set pieces. Wiring everything was an engineering problem trickier than anything in my computer science courses; in the end, I used every channel on the sound board, with some outputs looping back around to become inputs to other channels. But we got out an audience mix, a monitor line for the band, and a cleaned-up mix for a recording of the show. I rode a close herd on that sound board, sweating and fretting and making tiny adjustments at the very edge of feedback safety. Alan didn’t say anything to me about the absolute quality of the sound. I know it was frequently dreadful; lots of lyrics were washed out. But he told me that I’d wrung just about everything from of the sound setup that could be wrung from it. I’ll treasure those words forever, because Alan knew his shit, and if Alan said I’d done all that could be done, then damn. It was worth blowing off my classes that week and trudging to the Agassiz through a snowstorm to hear that.

Weston and Tara, the light ops, seemed to be having such a good time at their station—and we spent so much time together that week—that Weston and I arranged to half-swap jobs the next time around. We were the light-and-sound team on a production in the Loeb Ex black box theater that fall; two very different one-acts. That meant it was back to Alan for me, this time to learn how to design lights. Alan loved all tech. He loved tossing lumber in the back of a truck; he loved firing up a table saw; he loved finding clever ways to run wires invisibly; he loved solving any sort of design problem; he loved actor-proofing your work. But more than anything else, he loved lighting. He was trained in a classic age, when the brilliant old union stagehands knew more than any young punk professionals. Alan followed them, listened to them, watched them, and learned to love the tempermental devices that recreated daily God’s first act.

When a fancy new thing called a “microprocessor” came along, he started playing around with it. It was the first one that Harvard had, actually; it came without too much in the way of software or documentation. This was the age when you rolled your own, so Alan did. That experience got him thinking about lighting. He came up with a way of using digital signals to control the brightness of a light, instead of just increasing or decreasing the amount of electricity passed through it. He got a patent on the technique, and then went on his way doing other things. Years later, a major theater supply company, trying to commercialize exciting new digital lighting control systems, discovered his patent. He and his coinventor were invited out to a meeting at the house of the laywer for the company, to discuss terms. They walked in, amazed at the opulence of the house, and realized that the undisclosed company interested in buying their patent had a lot of money to spend on affluent lawyers, and probably really wanted their patent. Alan’s coinventor, during the initial pleasantries, surreptitiously showed Alan three fingers. When the time came, Alan tripled the number they had been planning to quote as their asking price. The proceeds from paid for his pickup truck.

Alan, as I’ve said, taught me lighting design. His thoughtful explanations stand behind all of the moments from my brief lighting career that I treasure. We absolutely nailed the gel colors on that pair of one-acts; the set seemed to glowed in the dark. I used a harsh, ugly key-and-fill pair for David Henry Hwang’s Bondage; it was right because it was wrong, and Alan’s explanations of optics gave me the idea. I worked a dance production on sudden last-minute notice; Alan sent them my way because everyone else on campus was already booked and helped generate a primary-secondary color wheel design that could adapt to the dozens of different moods of the different pieces. That was followed by another dance production, one that needed a spotlight of a precise size—too bad we didn’t have a spotlight. Alan came to the rescue with a gobo made of aluminum foil—just a circle of the appropriate size, adjust as needed.

Alan, of course, taught me how to see and appreciate the work of others. I can’t go to a theater now without looking at the lights. Alan would step in himself to design the lights for the Gilbert and Sullivan show most semesters. I was always stunned at how few instruments there seemed to be, and yet the stage was bright and gleaming, and everything was perfect. He knew his craft; every light was doing exactly what it ought to, with no wasted effort. I admire the clarity of good Broadway designs; I wince when I see muddy and undifferentiated looks. And, more than once, my jaw has dropped at the brilliance of another designer’s solution to a problem. There was a dance production of Dark Side of the Moon my senior year. And even though I resented them for beating out our own production for a slot on the Loeb Mainstage (the biggest theater on campus, and the slickest), I couldn’t help admiring how perfectly it was produced, and how spectacular the lighting was. At the very end, the backdrop was filled with a yellow wash—everything under the sun is in tune—and at that instant I realized that the designers had used every color except yellow at some point previously in the show. Or how could I do justice to the production of City of Angels, also on the Mainstage? The lighting that flipped between vivid color and black-and-white? That was magical, and understanding how the trick is done only increases your admiration for the magician.

There are many times in theater craft when you cast your pearls before swine. The audience never remembers you; the actors sometimes forget to thank you. Alan wasn’t there to be noticed; he taught us not to strive to be noticed, either. Here’s how to load your lumber in without unnecessary fuss; here’s how long you should allow when placing a gel order; here’s the credit card to use; come buy some gaff tape from me. (Gaff tape is the stage crew cousin to duct tape—it’s just as useful in its way, but it doesn’t like to make as much a show of itself.) Get the job done, get it done well, have some fun, and don’t worry about being ignored by everyone down below.

Not that Alan was averse to a little swashbuckling. At the Rocky Mountain Jazz festival, he was up a lighting tower in the rain and only realized that he was the link from a live wire to ground (by way of the tower) when he could hear the current frequency in his voice. He’d be up one A-frame ladder in the Ag, with a student up another, and to save time, they’d just pass each other lights, one hand to another. (You need to have felt the heft of a typical six-by-nine to understand the fecklessness inherent in this maneuver.) At the festivals in the late sixties (he would have been at Woodstock, if he hadn’t been stranded at Randall’s Island loading out from the previous festival on the techie circuit), he and his fellows would run spotlights that ran on carbon arcs of insane brightness and extreme temperature. When the time for replacement approached (each was good only for an hour and a half or so, I believe), they’d take a spotlight offline, slam open the door to the lamp, pull free the filament with one asbestos-gloved hand, slap in a new filament with the other, slam the door shut, re-aim, and snap the light back on, all in ten seconds or so. In between sets, they’d aim the spots at local landmarks for fun—I believe that the Empire State Building was a particular favorite of Alan’s. They were cowboys: young, wild, brilliant, hip, and nerdy all at once.

A-frames, that’s a tool I can never use without thinking of Alan. He was insistent that an unbraced A-frame ladder is a disaster waiting to happen. You build up a kind of cameraderie with your bracer; it’s a slow business, hanging lights, and they’ve really got little else to do besides entertain you and themselves. I’ve braced for some great master electricians, and felt flattered just to be there. The other tool that to me will always be an Alan tool is my adjustible crescent wrench. I keep one in my toolbox, permanently on a loop of cord. I can slip the loop through a belt loop and be ready to venture up a ladder, secure that the wrench won’t fall and that I can always pull on it to have it close at hand. You learn to feel with a wrench, to know how and how hard to twist. That’s Alan again; it’s all him.

Alan was doing theater all along, but he took some detours here and there between his initial abortive run at college and his long and happy tenure running the tech and the safety for Harvard theater. He worked at a fire safety lab. Those whose work involves preventing fires have a close knowledge of it and a healthy appreciation for it; in the best of them, that pyromania becomes a form of empathy. They know when something might burn and pose a danger. I saw others fail to understand what was and what was not a danger plenty of times in college. Two girls were lighting Channukah candles for the second night; needing a holder for the three candles, they used the holes in a three-hole punch, left the room, and set some papers on fire. (They banned the lighting of Channukah candles in dorm rooms after that.) A friend, after her chemistry final, celebrated by burning her flash cards in a small pile in the middle of the Yard, on a cold wintery day. She was disciplined for it, after being confronted by a proctor who didn’t understand the harmlessness of her fire.

Alan worked at a fire safety lab, and he loved good stories. One thing tested in the fire safety lab was smoke alarms. They had a room filled with them—lining all the walls—to see how quickly they would drain their batteries. When one went off, Alan would go in, note which one, and change the batteries. Then, wouldn’t you know it, one of them caught fire. It was Alan’s job to go in the room full of shrieking smoke alarms. remove the culprit, and disable the rest until the smoke could clear. He wore multiple layers of earplugs and earmuffs.

I worked on many productions, some big, some small. I’m proud, puffed-up vainglorious proud, of three. Alan was critical to all three. I’ve mentioned Chess. Senior fall, we did a multiple-actor version of Twilight: Los Angeles in the rectangle. (You know, like in the round, but with seating on four perpendicular sides.) I had twenty-four lights (minus one or two for defunct instruments and wonky optics) and twelve channels on the light board (minus one, sometimes, for wonky circuitry). We also had set pieces behind each audience section and actors standing in pretty much every part of the stage. Plus two dance interludes with the full cast.

The design idea—pairs of lights in quadrants with single lights aimed at the alleys in between—was straight from Alan, as was the set of gel combinations that would let the design turn warm or cool. I added an insane pair of mid-show repatches: During the middle of each of two monologues, I unplugged eight lights from the control box and replugged them in a different order. (This switched the controls from being quadrant-by-quadrant to controlling the warm and cool lights separately, or vice-versa.) I used eight twofers to do it. (A “twofer” is a cable that allows two lights to be connected to a single plug; you get two “fer” the price of one.) I actually gaff-taped the twofers together in the exact arrangement; at the right time, I unplugged eight plugs from one side of the two-by-eight array of plugs and transferred them to the other side. It was triply an Alan moment. The creativity involved, I like to think, was Alan Symonds can-do inspiration (the idea was loosely inspired by the group structure of the dihedral group, so that sort of mathy crossover was Alan-y.) The meticulous checking that the wattages and wires would work was Alan’s look-before-you-leap approach to construction. And the repurposing of a twofer was pure Alan; he never met a tool he couldn’t find a new use for.

We went back into the same space in the spring for a production of M. Butterfly that was the single best show I’ve ever worked on. This time, we had the audience along both sides of a central strip of a stage. A fireplace at one end was Gallimard’s cell; every other piece of set was to be carried on or off. Alan, I asked him, how would one light this kind of setup so that the actors will read clearly to audience members on both sides? He suggested a Y shape for lights—each acting area would be illuminated by one light facing directly “upstage” and two facing “downstage” at a 45-degree angle from opposite sides. True, things would look “off” if seen from directly upstage, because the two lights involved would be gelled the same color, but no one would be sitting directly upstage. It was, of course, brilliant. It did, of course, work.

I can’t really describe how beautifully everything worked out. Words will fail me, here. There aren’t even, to my knowledge, any photographs of the play in mid-performance. If there were, they wouldn’t capture the timing of the slow fades or sudden blackouts. You will have tro trust me a bit as I try to explain what it was like. The acting was superb. Our Gallimard had done some serious professional acting. Our Song, who got hair extensions for the role, just inhabited the part. They played off each other perfectly. And, more than any other time in my brief stagecraft career, everything fired on all cyilinders. A slatted gobo produced a jail cell in shadows. Blue and red fresnel washes gave the whole stage a nighttime or harsh revolutionary glow, respectively. Naturalistic lights on Song’s apartment supported quietly psychological scenes; sudden spotlights further along highlighted characters who emerged for brief scenes. Spaces materialized out of nowhere as the light shone on them, then dissipated with the fade-out. And the final spotlight, on Song smoking a cigarette, was perfect. The smoke curled upwards, in quiet and stillness, as the complete turning-of-tables the play had wrought came to a final rest. I held it just for a beat, and then took the stage to black. It was a magical moment, repeated each performance. It was a magical two weeks. It transported audiences; it transformed my life.

I think that was what it was like for Alan every day of his too-short life. I will miss him, and so will many, many others.

(In the spring of 2002, I interviewed Alan as research for an article I was planning to write about him. One thing and another intervened, and the article remains uncommenced. The tapes I made of our interviews are still packed away somewhere; the recording speeds were off and both he and I sound like chipmunks. Many of the stories above are taken from those interviews. Others are part of Harvard theater folklore.)

Today’s Usage Gripe: Exponentially

When something grows exponentially, its value at each step is the same constant factor times its value at the previous step. 1, 2, 4, 8, 16 is an example in which the constant factor (the “power”) is 2. To say that a quantity “grows exponentially” is just to say that its growth over time has this particular quality: a constant ratio of change. Where the power involved is greater than 1, not only does the quantity itself grow without limit, the rate of growth grows without limit, as does the rate of growth of the rate of growth, and so on. If the power is significantly greater than 1, the quantity becomes enormous remarkably quickly.

This association of “exponential” with explosive growth leads people to say—incorrectly and annoyingly—that any sudden or dramatic growth is “exponential.” The usage is bothersome in multiple ways. First, not all exponential growth is rapid at first. Where the exponent is just barely greater than 1—let us say, for example, 1.0000001—the quantity involved will grow quite slowly for quite some time. Second, where you have only two data points (small before and large after), almost any function works just as well as an exponential function. You could call it “logarithmic growth” or “quadratic growth” or “sinusoidal growth” and be just as accurate. Calling it any of these names misses the point that you don’t have enough information to determine the mathematical quality of the growth.

If you have a series of values that are approximated by an exponential curve, then by all means, go ahead and refer to the “exponential growth.” (And if you have a curve that grows exponentially backwards in time, call it “exponential decay.”) But if all you have is a sharp increase, find a name for it that doesn’t already have a precise mathematical meaning. “Sudden and dramatic growth” is perfectly fine, as is referring to an “x percent increase” for some impressively large value of x But please do not perpetuate the bad habit of referring to every increase as “exponential.” Not all crunches are sickening; not all growth is exponential.

Dear Joel Landsman

Please call Lord and Taylor. They’ve been quite insistent about their desire to get in touch with you.

And oh—when you reach them, please tell them to stop calling me.

Rites of Passage Comma Minor

Running into your parents in a liquor store.

Spreadsheets Dot Google Dot Wow

My approval to try out the Google Spreadsheets beta came through just recently. I’m mightily impressed. Every time I tried to do something, it worked. Someone thought long and hard about what the smallest subset of spreadsheet functionality required to make a painlessly usable product would be, and then implemented just that subset. Granted, I’m not a demanding user, but still.

Gmail and Google Maps were revelations, not just because they were useful and usable, but also because they showed off some extremely clever Ajax design techniques. Just from a reverse-engineering perspective, they were substantial gifts to the world. Google Spreadhseets, I predict, will be the same.
It does several things in Ajax that I’ve never seen done before, and it does them well. Moreover, the import/export and sharing features strike me as heartening harbingers of a more interconvertible and accessible age to come. Whether or not Google Spreadsheets ever becomes a dominant or major product in its own right, it strikes me as a nice model of how to use technology well.

I may be late to the party in proclaiming this one, but Ajax is the real deal. The elements aren’t new, the combination isn’t even that new, nothing about it is new new new, but it is the right technology at the right time. Conditions are set for a paradigm shift. We are in the process of having our expectations upended by a set of overlapping technologies that are socially situated such that together they create conditions of extraordinary creativity. It’s happening on the back end with collaboration and sharing technologies, and it’s happening on the front end with interface technologies. I can see the frontiers of our collective interface imagination expanding; each new dingus and doodad (Flickr’s rotate-this-photo widget;’s suggested tags autocompletion highlighting) provides a new way to do things right.

It’s a great time to be alive and online.

Poptechlaw Report

Two months ago, I ordered a pile of books on tech law. They all fell into the category of “things I should really have read by now.” I don’t actually feel as though I’ve made any progress—new books landed on the list at least as quickly fast as I got through the old ones—but my bookshelf tells me that I’ve made it most of the way through that order. Here, then, are my thoughts, in size order.

Yes, size order: I didn’t see any more compelling reason to read one or another urgently, so I went through them roughly in the order they were on the shelf. And since size order is an attractive way of shelving books (by publisher and by color also work), there you go.

  • Tom Standage, The Victorian Internet: A bit lightweight but entertaining. For the minimal number of hours invested in it, it was well worth reading. I can’t really say that it justified the price, but hey, you could easily get through it in an afternoon at the library (or the bookstore) and still have time for high tea and a workout. Ignore the analysis, savor the anectotes, and walk away with a decent historical understanding of the rise and fall of the telegraph. Nerdly lawyer fun: he cites to a Supreme Court case on the liability of telegraph operators for mistakes in transcribing coded messages. This turns out to have been a major subject of litigation in the 19th century. Start with Primrose v. Western Union Tel. Co., 135 U.S. 1 (1894). (This is the sort of book that doesn’t provide citations of its own.)

  • Michelle Slatalla and Joshua Quattner, Masters of Deception: The Gang that Ruled Cyberspace. Oh, for the days of yesteryear, when the hackers were just a bunch of teenagers and didn’t really cause that much trouble. This book reads fluidly (the authors are magazine journalists and it shows) and is psychologically vivid. Whether their portraits are true, I’m not qualified to say, but you definitely walk away with a real sense that you understand their misfit bunch of kids and their moth-to-flame attraction to fancy computer systems. The parts I know, they got right. You do not do not do not want to get caught in the crosshairs of the feds. To paraphrase Blade Runner, “Everybody pleads.” MoD has aged well.

  • Steven Levy, Crypto. Another book by a magazine journalist. This one was showered with enormous praise when it appeared, mostly earned. The book’s one significant downside is that it flirts with more detailed technical explanations and then backs away. I can understand that they might have frightened the reading public and that it’s better to make that sale than to get the details down. Still. As for the history, the business, and the politics, fine fine stuff. In particular, I have never seen a better telling of the Clipper Chip story. (Levy’s skill in explaining the exploit Matt Blaze found demonstrates why I wish he’d given other technical details further treatment.) Now I want to go off and read David Kahn’s The Codebreakers, which has inspired so many others.

  • David Brin, The Transparent Society. I already knew the thesis of this book going in. It’s better to watch the watchers than to blind everyone. I regularly have experiences in which a book at first bothers me and then swings me around to recognizing the stregnth of some of its ideas. (Fear and Trembling is one; The Lathe of Heaven another; Code a third.) This book is one of them—except that I had my conversion experience before actually reading it. I’m not sure how or when. But I did; though I don’t agree with many things in the book, the core idea is sound in many contexts. I therefore missed out on the dawning “aha” of deciding there was something there. WIthout it, the book felt long and repetitive, and irksome in the way that only nonfiction by science-fiction writers can be. Still, if the idea sounds odd or wrong to you, you probably would enjoy at least grappling with it. Finally, I’m still not sure how the copyright chapter fits in. I think about these things a lot, and the restrictions on copying involved in copyright are just a different animal than most of the privacy topics he discusses elsewhere.

  • John Seely Brown and Paul Duguid, The Social Life of Information. I’ve already said most of my piece on this one. I have memories of thinking that I disliked the book and its ideas when it came out. When I read it, though, most of the themes seemed like inoffensive triusms or observations that, while perhaps controversial, were clearly right. I suppose this is a testament to the strength of their arguments that the social contexts of technology dominate its purely technical features—they were right, and they were right earlier than I was. All the same, though, I’ve seen it done better elsewhere since then. This one was published by a business school press and I can see why; it’s a translation of real ideas into a form that businesspeople can digest.

  • Siva Vaidhyanathan, Copyrights and Copywrongs. I’m also—surprise, surprise—late to the party on this one. I’m already too steeped in copyright arguments for the thesis to be substantially new; I really should have read this back in 2001 when it came out, to get the full impact. The Mark Twain chapter was nice and involved some interesting readings of Twain’s correspondence and public positions. Most of the rest, though, was frustrating for me as a lawyer, probably because Siva isn’t a lawyer. He reads cases and arguments as literature, not unlike the source materials copyright regulates. Nothing wrong with that, except that it’s not how I put arguments together and, as I said above, I’m already clued into the kinds of readings (and indeed, to many of his particular readings).

  • Paul Goldstein, Copyright’s Highway. Law professors can be quite slippery. They’re extremely good at never quite letting you know what they think. Goldstein talks about copyright “optimists” and “pessimists” in what reads like an extremely evenhanded way. Like a good advocate, he loads his dice in extremely subtle ways. This is actually the second book of his that I’ve read; the other was his casebook on IP. Both are excellent reads, in large part because he has both a great ease with his writing and a real talent for selecting good examples. I can’t think of a better place to start if you want a gentle introduction to how copyright got to be the way it is today. Read it together with Siva’s book to start forming your own opinions about where copyright out to go.

  • Nick Montfort. Twisty Little Passages: An Approach to Interactive Fiction. An elegant monograph, what more monographs should be. A new generation of gamer academics is taking seriously the experiences of gaming. Montfort gets the subtleties and pleasures of text adventures in a deep way, and this book is a real contribution. (It takes a particualr talent to translate the interactive and temporally extended activities of gameplaying into a static text.) He hooks in to the emotionally rich experiences I had with many of these games in an analytically precise and useful way, which can’t have been as easy as he makes it look. The IF community also makes a nice test case for all sorts of questions and theories.

  • Katie Hafner and Matthew Lyon, Where Wizards Stay Up Late: The Origins of the Internet. I’ve already raved about this one. I learned a lot of reasonably specific information in a chronologically grounded way. I got a good sense of what the challenges and solutions were; and I got a much better sense of how the Internet got from point A to points B, C, and Q. Another book by journalists; it did its job right, in that it gave me a sense of the whole while also making me want to read more academic discussions of the same topics.

  • John Battelle, The Search. Now we enter the hardbacks. Battelle is an academico-journalist, with the virtues of both. I follow search fairly closely, so I knew a lot already. The parts I knew, he got right; the parts I didn’t, I was glad to learn. He’s particularly good in setting forth the timeline at an industry-wide level; search is more than just Google, even as Google casts the longest shadow, and he makes that dynamic vivid; his descriptions of vertical and local search, click fraud, and sponsorship bias, are each alone worth the price of admission.

  • William J. Mitchell, City of Bits. This is a book about how architecture is being and will be transformed by the Internet. What does it say about the Internet that I found the most interesting part of this book to be the architectural drawings of various famous buildings? What does it say about this book? Mitchell nails the “code is law” meme early (1995) and well, but much of the rest just sailed right by me. Eh. (To be fair, I was stuck in a room in which the TV was showing the Tony Danza show, which didn’t help my ability to think deep thoughts about the future of the physical and the virtual.)

  • Edward Castronova, Synthetic Worlds. This is the overview book on the subject for the time being. If you want to know about virtual worlds and you don’t know much, start here. Who plays in them? What are they like? How are they changing and interacting with the real world? Economics, sociology, law, politics, culture, terror: Castronova covers all the bases. This was 90% old material to me, but he was significantly better in going over familiar ground than some of the other authors I came across in this binge.

  • Bruce Sterling, The Hacker Crackdown: Law and Disorder on the Electronic Frontier. Another standout. This is the good kind of science-fiction author nonfiction. The force of his fiction-honed prose keeps the book hurtling along, the various metaphors that do the work of technical explanation are particularly well-chosen, the analysis is penetrating, and the narrative is compelling. This book all but begs to be read together with Masters of Destruction (they’re roughly contemporaneous, and some of the same figures appear in both). This is a great book, but it also made me appreciate that MoD was a good book.

  • Bruce Schneier, Beyond Fear: Thinking Sensibly About Security in an Uncertain World. I didn’t really need to read this. I know the Schneierian way of thinking, having read his previous Secrets and Lies (not to be confused with the movie of the same name) and having followed his online writings for some time. I just needed to snarf this one quickly so that I could know what was in it and where for footnoting purposes. Pretty much any time I have the occasion to write about security, something Schneier has said is likely to be on point, so I expect to be citing him with some regularity. I recommend Schneier highly, but you don’t really need to read both this one and Secrets and Lies. Computery types should read the latter; the general public this one. Also, if you get a chance to see him at a reading, you should go, because his signature is most interesting.

  • J.D. Lasica, Darknet: Hollywood’s War Against the Digital Generation. I have to like a book that cites me. Not necessarily the book I would pick to introduce people to the copyfight, but the reporting is excellent. I don’t know how he got his interview with the MPAA-backed pirate, but it’s a great set-piece. This fellow spends his days trawling the net pirating movies as a double agent for the MPAA—not so they can catch specific other pirates but so they can understand how the scene works. At the end of the chapter, Lasica asks the man’s daughter about piracy; she sees nothing wrong with filling her iPod with music from the file-sharing networks. It’s a great moment of landing the story. (I’m also curious how the pirate, whose online identity Lasica pseudonomizes, managed to stay hidden, given how many other details Lasica reveals.)

  • William W. “Terry” Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment. Maybe Fisher’s idea that file-sharing should be legal and creators compensated through a tax on bandwidith and storage media is brilliant. Maybe it’s crazy. (I’ve seen some extremely cogent analyses of the hackability and gameability of such an “alternative compensation system.”) In truth, the idea isn’t this book’s main contribution. Instead, Fisher explains the current system of audio and video licensing in a remarkably lucid fashion. He traces the money; he traces the flow of licenses; he puts everything out on the table clearly. I have on multiple occasions failed to explain compulsory licenses, the AHRA, the collection societies, and other features of our media copyright system to laypeople. Fisher does about as good a job of it as one could do.

  • T.L. Taylor, Play Between Wolrds: Exploring Online Game Culture. There are a fair number of good books in my pile; this is the only beautiful book. It’s good, too, indeed far more than good. Taylor goes inside the world of EverQuest and reports on the culture that its players are creating there. I have read so much tripe about cyberspaces, online communities, and virtual worlds, that it’s all the more refreshing to read a book that gets things profoundly, profundly right. Participants in these gamespaces build identities that mingle the “real” and the “virtual” freely. They create rich and subtle social cues of interaction; they fashiion identities and friendships that cannot be described either as here or there. She undermines at least a dozen claims that many people take for granted. I have never read anything better on how the “meaning” of a game is constituted by its players. Much in this book is applicable in other contexts; it is, as I have said in another context, what a monograph should be. If you read only one book on the strength of my recommendations here, make it this one. It’s grab-you-by-the-lapels-and-shake good.

  • Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World. Wu and Goldsmith are cyberspace anti-exceptionalists. They think that terrestrial governments both will and should regulate the Internet. They have a lot of evidence on their side. They make a fair case that every latest-and-greatest hope for exceptionalism has been subjected to national control, to some extent or another. I didn’t find much to disagree with. And yet, I felt that this book was too easy, that it involved a willingness to jump on easy arguments and an avoidance of more interesting possibilities. The authors acknowledge the importance of Code—but in a sense, almost everything they say is wrapped up in Lessig’s idea of “dual presence,” that when we go online we are both here and there at the same time. (This is, of course, a central theme of Taylor’s book, as well.) Given that observation, much of Who Controls the Internet? is just a matter of filling in the details. They also make things easier on themselves by choosing examples that link back to the real world. Of course, eBay’s dispute resolution systems will require real-world support; most of the things traded on eBay are physical items that exist in the real world. (Indded, eBay regularly takes down auctions for many suspect classes of purely virtual resources.) By so doing, they sidestep the cyberspace exceptionalist argument that life online can be fairer and better than life offline, that we will reshape the bonds of our affiliations to associate with online communities that transcend local boundaries, and that the locus of life itself will shift online. This argument’s truth is not inconsistent with the involvement of terrestrial governments in controlling the Internet (as I have argued elsewhere), but it requires other responses than the ones Goldsmith and Wu offer. An interesting book, but by no means the end of the matter.


Bridolatry, n: Excessive veneration of a bride, as though she were an object of worship. Bridolatry is principally promoted by the wedding-industrial complex.

Duck Season, Rabbit Season, Comment Season

Comments are now active.

For now, the filtering, authentication, and moderation are lenient. If comment spam becomes a problem, I may need to tighten matters up a bit. With luck, that won’t happen; I’m using Akismet’s industrial-strength anti-spam technology.

On the back end, you can use either rudimentary HTML or John Gruber’s Markdown syntax to format your comments. Everything involved is fairly intuitive—if you surround a _word_ with underscores, it will automatically be italicized and so on. See the cheat sheet for more. As an added bonus, SmartyPants will automagically educate your quotation marks into typographical correctness.

I’m looking forward to a richer, more, ahem, interactive blogging experience.


HP has cut back on telecommuting in its IT department. From the Mercury News article:

But one of HP’s former IT managers, who left the company in October, said a few employees abused the flexible work arrangements and could be heard washing dishes or admitted to driving a tractor during conference calls about project updates.

Emphasis added.

Preview v. Post

Am I the only one who thinks that comment form buttons ought to say “Pierson” and “Post?”

O Templates! O Mores!

Upgrading to Movable Type 3.2 … cooking up a surpise or 3.2.

Expect instability for a bit.

Off the Reservation

Does anyone know—or know how to find out—the etymology of the phrase “off the reservation?” I’ve seen the phrase used here and there in legal writing, and I’m curious about its origins. I have heard two plausible stories:

  • In the time when members of Native American tribes were confined to reservations, to “wander off the reservation” was to be in a place where you should not be.

  • In more recent times, tribal institutions have authority over matters only on the reservation. When tribal agents go “off the reservation,” they have left their geographic jurisdiction and act without even the color of authority.

The first comparison is offensive; the second less so. I’d be interested to know in which sense the phrase was used back when its reference was less ambiguous.

The Social Life of Footnotes

I’ve been reading John Seely Brown and Paul Duguid’s The Social Life of Information. Ironically enough, for a book that extols sensitivity to the way people actually encounter and use information, it’s not especially good at providing information in a fashion I can use.

First, the book is vague about its terms and about its arguments. The chapter on bots, after making several quite good (and by no means obvious as of 2000) points about the limitations of software agents, moves to a discussion of cryptography. Some people claim that better crypto will solve the problems caused by rogue bots. Oh, really? And who, exactly, says that? Even for 2000, that’s an odd claim. Seely and Duguid do a reasonable job explaining why crypto is not a panacea, but it seems like a non sequitur to move from the one to the other. Crypto and bots are different problem domains.

The critical transition sentence is “Faced with the rebellion of these fallen agents, people often suggest that another cycle of Moore’s Law will produce suitably powerful encryption to resist them.” There’s a footnote call at the end of the sentence, but the footnote turns out to read, in its entirety, “See Chapter 1 for our discussion of Moore’s Law solutions.” That’s not a citation. That’s not evidence. It’s not even an excuse for the transition. The book is chock-full of odd shifts from one argument to another like this, and the footnotes do little to make sense of them.

Remarkably enough, they also fail to footnote some matters that ought to have easy and obvious citations. They cite the “famous case against American Airlines’ SAABRE system” as an example of bot bias. Now, that case is famous enough that I’d heard of it (although I thought it was spelled SABRE and most authorities seem to agree with me). But I doubt that most circa 2000 readers of this book had heard of a mid-1980s computer mini-scandal. Me, I wouldn’t have minded a pointer to some more useful source. Do they footnote it? No. Many such anecdotes go unsourced.

Finally, there’s a more fundamental social problem with their footnotes. Or rather, I should say, with their endnotes. When you flip to the notes section of the book, you find a bunch of calls of the form “Smith, 1992” and “Jones, 1997.” Which Smith? What piece by Jones? To find out, you need to flip a second time, to the bibliography section. The result of this citation “system” is that I’m reading the book with three bookmarks: one in the text, one in the notes, and one to the start of the bibliography.

Every major citation system I know does one of two things. Sometimes, the main text contains references directly into a (usually alphabetical) list of works cited. This approach has the virtue of pulling all the works cited into one easily skimmed list. Sometimes, the main text contains references to notes (foot- or end-) that contain the bibliographic information. This approach has the virtue of making it comparatively easy to work backwards from a note to the accompanying text. Both approaches get by with only one set of non-textual material. Using either, you can go from a passage to the bibliographic information of the source that supports it in one step.

By comparison, under the Seely-Duguid “system,” it takes two steps: one hop to the notes and then another to the bibliography. When I read nonfiction, I like to be able to set one work in the context of others, to be able to chase tangents and lines of argument out through the universe of recorded human knowledge. This two-step shuffle inhibits the movement; it partially seals The Social Life of Information off from other books.

Ironic, no?