The Laboratorium
November 2006

Short Ends


“The short end of the stick” makes no sense. A stick could be “long” or “short,” but how can the end of a stick be one or the other? And if an end did have a length, wouldn’t it be the length of the stick, making both ends the same length—so that you couldn’t tell them apart based on length?

More importantly, how did I go this long using the phrase without pausing to wonder at its incoherence?

Artistic Google Goof


The following is a public service announcement:

If your name is Ariel, then “Ariel Bold” would be a great name for a blog.

Why I No Longer Post to SSRN


For the past few years, I have been using the Social Science Research Network. It hosts scholarly papers and makes them available for free download. I’ve posted some of my papers there, and downloaded hundreds of others’ papers with pleasure. SSRN also runs an abstracting service, which sends out announcements of new papers posted to the site, typically long before they wind up published.

As a reader of scholarship, I find SSRN’s archiving highly useful. Most of what I read are law review articles, and obtaining PDFs from SSRN is generally much more convenient than most of the previous alternatives. Law reviews run on a delay between acceptance and final publication that can easily exceed a year. By the time the printed version arrives, it’s already been fishwrap for months. Even once an article has been published, it may not be readily accessible. Printed library copies are hardly suitable for my own easy marking up; comparatively few law reviews post their own articles online. The online services—Lexis, Westlaw, and Hein—require that you be at a subscribing institution, add their own lag time, and can impose their own formatting problems. SSRN, compared with these more traditional outlets, has been a good model of open access in legal scholarship

I find it harder, however, to be as positive about SSRN as an author of scholarship. Its not that I haven’t tried. I’ve uploaded drafts there and put my pieces into the pipeline to go out through the abstracting service. I’ve had readers find me that way. It’s been okay, as far as it goes. The problem, though, is that surprisingly often, SSRN hasn’t gone far enough. Despite being a system supposedly designed to encourage the spread of scholarship, it has made a striking series of decisions that cut against open access. Three incidents this fall have given me significant pause:

First, in September, SSRN started requiring that some users log in to download papers. I believe in Julie Cohen’s Right to Read Anonymously, so requiring identification to read scholarship is a step backwards. And for what lofty purpose did SSRN require logins? So that they could prevent ballot-box stuffing in counting downloads. If your download request came from an address with some undisclosed suspicious pattern of requests, they’d make you log in to download the paper.

(SSRN is strangely obsessed with counting downloads. I’d link to their updated-monthly download counts by authors and schools, but—guess what—those counts are behind the login wall! When the wind is southerly, I’ll admit that download counts might have some value beyond sheer amusement, but that value is not large. Certainly not large enough to override anonymous reading.)

Under pressure—including some from me—SSRN modified this system so that it now allows you to download without logging in. The page does threaten the would-be private reader, however, that her download will not be counted. Oh, what a horrible fate, not to be able to cast a vote in the sibling rivalry among authors. Whenever I see that page—which, let me repeat, treats my very interest in a paper as somehow suspicious—I click the “download anonymously” button with great pleasure. With this and the other hoops SSRN creates to measure an unimportant statistic with great precision, what should be an instantaneous one-click process becomes a genuine hassle.

Second, and more personally, I wasted several hours dealing with my institutional subscription. While in law school, I was covered by our institutional site license. Then I graduated and started clerking, and I wanted to keep my subscription going, so that I wouldn’t lose too much scholarly heat off my fastball while I worked on real law for a while. That was easy enough; I paid my reasonable dues for a one-year individual subscription. Then, when I came back to school on my fellowship this year, I got one heck of a runaround trying to figure out how to get myself back on the institutional subscription. It ought to have been a trivial switch to flick, but I had to deal with two librarians and two SSRN staffers—one of whom can only be reached by email and apparently never replies to email—over a course of several weeks.

And third, and this one pains me still, was the mandatory advertising. SSRN started slapping watermarks on every page of papers hosted there. Along the side of each page would appear a banner reading: “For an electronic copy of this paper, please visit: http://ssrn.com/abstract=1234568” for some appropriate value of 1234568. Now, I make my papers freely available under the least restrictive Creative Commons licenses my publishers will allow, and I try to do so in the cleanest fashion possible. I don’t particularly trust SSRN to be stable in the long run; I would rather not have my papers polluted with a “please download” banner that refers to a page not under my control and that isn’t the canonical download location I prefer.

There’s a common theme here. In every case, SSRN put its own institutional self-interest ahead of the cause of open access. If download counts are valuable information, then it makes institutional sense to value them ahead of actual downloads. If you’re going to charge readers for access, then it makes institutional sense to have a subscription process that favors being too restrictive over the risk of occasionally letting a non-subscriber slip through. And if you make your money by selling subscriptions, then it makes institutional sense to place your own advertising on the goods. Never mind what these decisions do to open access to scholarship. That’s no longer the point.

SSRN is a for-profit corporation. It’s not yet (I think) a money-making corporation, but its goal is to make money for its owners. It has chosen to do so by providing useful open-access services to scholars, but when push comes to shove, the bottom line comes before the open access part. We don’t need to blame SSRN or find fault with it. It’s just doing what comes naturally—making the decision that it’s supplied sufficient open access to fit into a market niche and declaring that good enough.

This point, by the way, applies to the Law Professor Blogs network. Almost uniquely among legal blogs, they are run by a corporation. Also almost uniquely among legal blogs, they don’t provide full-text RSS feeds. This is not a coincidence. The choice of organizational form leads to an obsession with revenue (or, less charitably, vice-versa), which leads to an emphasis on advertising revenue through ads on the web pages, which leads to a fear that full-text feeds would substitute for the revenue-producing web pages, which leads to the deliberate crippling of the feeds. Thus are the traditions of free scholarly exchange betrayed for thirty pieces of silver per click-through.

As scholars of open access and commons production have noted, this is a more general point. The decision to use exclusion as a business model, or to use command-and-control mechanisms, or to fund oneself by selling things rather than giving them away—these decisions have consequences. They commit you to certain ways of dealing with the world, and to certain organizational structure. When you rely on exclusion, you need to police your fences. When you bring investors on board, you need to show them profits or they’ll pull the plug. When you have substantial numbers of paid developers, you need to have ship dates and rational planning. All of these activities are costly. And all of them can lead you to make decisions in the name of organizational necessity, rather than what would be for the best.

SSRN, I fear, is caught in this trap. I simply do not trust it to put the interests of scholarship ahead of its own. I don’t know what other ugly surprises are lurking ahead, but I’m not eager to find out the hard way. I don’t want my papers held hostage there, and I don’t want to make things any harder on my readers than absolutely necessary. I will not post any more papers to SSRN, and I will not direct readers to my past papers archived there.

Instead, I have created an archive for myself at the Berkeley Electronic Press, an institution that seems to be avoiding many of the traps into which SSRN has fallen. The BEPress is a non-profit. It is not funded by readers. It does not require logins. It does not watermark papers. And it has attractive web page designs. I do not trust it absolutely, but I trust it more than I trust SSRN. And, more importantly, steps like not watermarking papers mean that I do not need to trust it as much.

Good business—ethical businesses—do not try to lock their customers in. It is better to accept that if the customers are unhappy, they should be allowed to decamp. (After all, if the customers are unhappy, they will decamp, and they will be even angrier if the process was painful.) As a fair number of Web 2.0 businesses have recognized, it is better to keep your customers by keeping them happy.

Open access to scholarship is serious business, and it is something I am serious about. SSRN has been good for scholarship, and good for open access, and it may even be good business, but it is not serious about open access in the way that we desperately need our scholarly intermediaries to be.

And Why Not, May I Ask?


Peter Lattman, writing in the Wall Street Journal’s Law Blog (emphasis added):

The new rules will require litigants to produce relevant “electronically stored information.” … Alvin Lindsay, a partner with Hogan & Hartson, laid out for the WSJ the implications of the new rules. “Lawyers will now have to know about their clients’ computer architecture: How do they store their data? How do their computer systems operate? This is not something they teach in law school.”

And why not?

Wedding Playlists


In my continuing quest to clear away the enormous overhang of things to do, I have reached the item on my (computer) desktop (virtual) post-it note labelled “wedding playlists.” Here, then, are the songs we gave to the DJs to play at our wedding. I think I remember hearing most of them actually played, though I can’t be sure. The DJs were also very good at mixing in some of their own music that fit well with our own suggestions, so these lists are underinclusive as well as overinclusive.

If you’d like to know more about any of these pieces or you’re trying to reconstruct exactly what song that was that you really liked, please get in touch. I’m always happy to help friends track down music they like.

Drinking

  • When I’m Sixty-Four, The Beatles
  • There’s Too Much Love, Belle & Sebastian
  • You’re the One, Tracy Chapman
  • Tangled up in Blue, Bob Dylan
  • At Last, Etta James
  • Duke Of Earl, Last Forever
  • If There’s Such A Thing As Love, The Magnetic Fields
  • Jenny, The Mountain Goats
  • Going to Port Washington, The Mountain Goats
  • Wildflowers, Tom Petty
  • Wichita Lineman, R.E.M.
  • She’s An Angel, They Might Be Giants
  • Orange-Colored Sky, Richard Thompson

Eating

  • Blackbird, The Beatles
  • Only A Northern Song, The Beatles
  • Dreaming My Dreams, The Cranberries
  • Fluorescent Lights, Carissa’s Wierd
  • Rene And Georgette Magritte With Their Dog After The War, Paul Simon
  • One Night Stand (Miss You), Carissa’s Wierd
  • Here, There And Everywhere, The Beatles
  • Look On Down From the Bridge, Mazzy Star
  • Kiss Me On The Moon, The Nields
  • My Own Kind Of Hat, Merle Haggard
  • Your Belgian Things, The Mountain Goats
  • Strange Angels, Laurie Anderson
  • Jerusalem, Dan Bern
  • Where Does The Time Go?, The Innocence Mission
  • Bedside Table, Bedhead
  • The Wind, Cat Stevens
  • Red Clay Halo, Gillian Welch
  • A Marriage Made In Heaven, Tindersticks
  • Suite: Judy Blue Eyes, Crosby, Stills, Nash & Young
  • One More Dollar, Gillian Welch
  • Shelter from the Storm, Dylan, Bob
  • Be My Toboggan, The Mammals
  • My Wandering Days Are Over, Belle & Sebastian
  • Pageant Square, The Kingsbury Manx
  • The Last Fare of The Day, Richard Shindell
  • Strange Currencies, R.E.M.
  • Wonder, Natalie Merchant
  • Lincoln Park Pirates, Steve Goodman
  • Our House, Crosby, Stills, Nash & Young

Dancing

  • Hey Bulldog, The Beatles
  • Bad Moon Rising, Creedence Clearwater Revival
  • Like a Rolling Stone, Bob Dylan
  • Bobby Don’t Stop, Steve Goodman
  • Kind of Love, Grey Eye Glances
  • Like A Prayer, Madonna
  • The Heimlich Maneuver, Mah-Jong
  • This Cavern Is Very Exciting, Mah-Jong
  • Queen of Quiet, Erin McKeown
  • La Petite Mort, Erin McKeown
  • Lumberjack Song, Monty Python
  • Bruces’ Philosophers Song, Monty Python
  • Southwood Plantation Road, The Mountain Goats
  • Jockey Full of Bourbon, Moxy Früvous
  • My Baby Loves a Bunch of Authors, Moxy Früvous
  • Jeremy Newborn Street, The Nields
  • Hey Ya!, OutKast
  • Stand, R.E.M.
  • New York City, They Might Be Giants
  • Meet James Ensor, They Might Be Giants
  • Ana Ng, They Might Be Giants
  • The Weight, Travis
  • Mysterious Ways, U2
  • One Way Love (Better Off Dead), E.G. Daily
  • music that tears itself apart, Jason Webley
  • What Do You Love More Than Love, Dar Williams

Parallel Distribution


As readers of this blog may be aware, I have been working on Creative Commons-related issues for some time. I interned at Creative Common during law school, I try whenever possible to release my writings under Creative Commons licenses, and I have thought a good deal about drafting issues in the Creative Commons licenses. I’d like to call your attention to a small but important issue of Creative Commons policy.

Right now, the Creative Commons licenses contain a clause designed to prevent CC-licensed works from being used with digital rights management (DRM) technologies. Most of the time, this is a sensible restriction. Seeing a CC license on a work should mean that it does not have to stop with you; you can copy it, redistribute it, use it however you wish for yourself, and make changes to it. DRM coud be used to inhibit these freedoms as a practical matter, so CC-licensed works should usually be kept DRM-free.

Usually. It is possible to distribute a CC-licensed work in such a way that any restrictions created by the DRM around it are irrelevant. The key is to distribute a second copy in parallel, without DRM. This “parallel distribution” means that anyone who wants or needs to use the work in the non-DRM format can do so. Carving out this exception from the anti-DRM policy allows CC-licensed works to be used on DRM-only formats (such as game consoles) when doing so does not actually inhibit individual freedom.

Creative Commons proposed such a “parallel distribution” clause in its planned revisions for version 3.0 of the licenses. I think such a clause makes eminent sense. Unfortunately, some vocal members of the Creative Commons community disagreed. To my surprise, Creative Commons dropped the language from the version 3.0 proposal. Benjamin Mako Hill and I decided to try and revive it, before the version 3.0 proposal became final.

Mako and I share a commitment to open access. The wide availability of useful information and the fruits of human creativity is essential to full human flourishing, and Creative Commons’s work in facilitating widespread information sharing is a great thing. Mako and I disagree on a number of more specific issues about best to encourage open access, but when it comes to parallel distribution, we are in complete agreement. Creative Commons will better serve its mission, its users, and the world in general if it adopts the proposed parallel distribution language.

We’ve written an open letter explaining why we favor the parallel distribution solution. Please have a read. If you feel moved to take a position on parallel distribution, please let Creative Commons and the Creative Commons community know your views. Even if the language doesn’t make it in to the version 3.0 licenses, further airing of the pros and cons of the language is important. This important issue has received too little discussion.

Crud Control


Well, the dentist was a little disconcerted that a bit of my tooth just up and left. I’d kind of figured that while it might be a mystery to me why I would suddenly be missing a chunk o’ tooth, at least a dental professional could draw upon his knowledge of the black magic and arcane lore of denticalry to explain what had happened. But no. So that’s a little worrisome.

But on the brighter side, he sealed up the hole with one of those crazy-bizzare sealants known only to the Hierophantic Order of Oral Thaumaturgy and all seems to be well. I was in and out of the office in 45 minutes, my wallet lighter by a surprisingly paltry number of quid. I’m still comically numb in my lower-right jaw quadrant (which will make my 10:00 presentataion rather interesting), but otherwise things are pretty much back to what passes for normal in my mouth.

And Another And Another


I have another book chapter out this month! Greg Boyd and Brian Green have put together a great book of essays, Business & Legal Primer for Game Development. I wrote Chapter 13, a fifty-page treatise on “Virtual World Law.” I’m very happy with how the chapter came out, and if you have any interest at all in the video games industry, the book is just jam-packed with good advice and informative matter.

Buy it, I say. And yes, my advice is unbiased by financial considerations; my sole compensation for the chapter was one complimentary copy of the book.

Oh, Crudtastic


I’ve been having the occasional stress nightmare about having my teeth fall out. Well, guess what?

No, not a tooth as such, but I’ve clearly lost part of one. My lower right first molar has a filling in it, and part of the tooth on the side of the filling is now gone. I thought there was something a little odd about the texture of the hummus wrap I had at lunch. Only a few minutes later did I think, hmm, that’s odd, something in my mouth feels oddly sharp.

I’ve scheduled another visit to the dentist, and everything seems stable for now. The filling looks pretty firmly attached, and there’s no pain involved. Still, it’s mighty disconcerting to have a sliver of tooth just up and vanish.

In and Out of Fashion


Thanks to a kind invitation from mob-blog-master Randy Picker, I’m participating this week in the University of Chicago faculty blog for a special event in which a group of us discuss Kal Raustiala and Chris Sprigman’s The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. The category archives for this group discussion are here.

General Confusion


The Surgeon General is actually an admiral.

(This detail and many other neat ones from Michael Herz’s article on whether the Attorney General is a general, via Orin Kerr.)

Plagiarism Test


The Flaming Lips’ “Fight Test” has what is easily the catchiest tune of any song on its album. It was therefore in one sense quite surprising and in another not surprising at all when I heard Cat Stevens’s “Father and Son” and realized that the melody was identical.

I’m not the only person to have noticed the similarity, though. Mr. Islam (né Stevens) apparently noticed, too. He and the Flaming Lips reached a settlement to split the royalties from “Fight Test.”

I Say Mendacity, You Say Mendicity


Mendacity—the condition of being untruthful—comes from the Latin adjective mendax, meaning “lying.”

Mendicity—the condition of being poor—comes from the Latin verb mendico, meaning “to beg.”

My first instinct, on hearing the two words, was to assume that they must have a common origin and have suffered from linguistic and semantic drift. But no! It’s the linguistic drift that’s brought them together.

What If More Things Came in FAQ Format?


Do I have to answer any questions?

No. You have the right to remain silent.

What happens if I do answer?

Then anything you say can and will be used against you in a court of law.

Can anyone give me advice?

Yes, you have the right to be represented by an attorney, and to have that attorney be present during questioning.

What if I can’t afford an attorney?

Then one will be provided for you at no cost.

Armadillos Against Lackluster Seneschalry


I’ve arrived in Washington for the AALS recruiting conference. To my great delight, my hotel, the Omni Shoreham offers free wireless. Even with it, though, don’t expect me to be reachable for the next few days.

The State of the State of Play


The State of the State of Play is strong. The book of that name has just been published, simultaneously in an absurdly expensive hardbound edition and a more reasonable paperback version. It’s a collection of essays from the first State of Play conference, and they’re very good indeed. Some of the material has been published elsewhere, but a lot of neat stuff in it is new—and the convenient all-in-one package can’t be beat. I wrote an entirely new essay for the volume, one that remains perhaps my favorite piece on virtual worlds.

The State of the State of Play is troubled. The conference of that name needs more sponsors. If you have some money to spend and would like to support a very worthwhile conference on virtual worlds, please sign up. The past States of Play have been amazing events that both advanced academic understandings of virtual worlds and brought together virtual world innovators for some highly fruitful exchanges. If your company cares about these matters and would like to build its reputation for engagement with the future of virtual worlds, stepping up to help put on the fourth State of Play is a great way to be part of the global vanguard.

Yet Again, People Are Crazy


Or, perhaps, aesthetic tastes are socially constructed:

Some early reviews have been scathing, and [Darren Aronofsky’s The Fountain’s] first press screening at the Venice Film Festival was greeted by a chorus of boos. The following night, though, festivalgoers gave the movie a 10-minute standing ovation.