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I’ve been reading Nicholas Negroponte’s Being Digital. I’ve been hearing so much about these “bit” things, with the “online” and the “digital” and the ga-hoy, that I thought I ought to check out what the fuss is all about. But seriously folks, it’s a sufficiently legendary book—if more for influence than for anything else—that I figured I ought to have a better sense of what’s actually in it.

The results were in many cases surprising. There are some right-on predictions, a total miss here and there, and an awful lot of, well, odd little passages. Here are my favorites, with commentary. (All page references are to the paperback edition.)

Page 13: In the case of textbooks, 45 percent of the cost is inventory, shipping, and returns. Worse, a book can go out of print. Digital books never go out of print. They are always there.

This was the point at which I sat up and opened my eyes. The “45 percent” fact, and I’ll assume its truth, is deeply misleading. Textbook publishing is dominated by shipping tons of books to students, then taking returns at the end of the class, and selling the books to the next crop of students. A 50% buyback (with a resale at 75%) is all but built into the price of many college textbooks. This statistic has little to do with shipping costs and a lot to do with the textbook market.

Page 13: The first entertainment atoms to be displaced and become bits will be those of videocasettes in the rental business …

Flat-out wrong. Music was first, thanks to MP3. Video is just getting there. (Even Netflix still mails bits around.) Given how many fewer bits it takes to encode reasonable audio than to encode reasonable video, I’m surprised by this one.

Page 58: I am convinced that by the year 2005, Americans will spend more hours on the Internet (or whatever it is called) than watching network television.

Dead-on. For 1995, that was a pretty good call.

Page 62: “The fact that, in one year, a then thirty-four-year-old former Michigan cheerleader generated sales in excess of $1.2 billion did not go unnoticed by Time Warner, which signed Madonna to a $60 million “multimedia” contract in 1992.

$1.2 billon in one year is utterly implausible. Madonna does have the record for the all-time top-grossing tour by a female artist: $195 million, but that was in 2006, in 2006 dollars, and in 2006 audience numbers. A League of Their Own took in $132 million, but that was worldwide. To make $1.2 billion at 1990s record prices, you’d need to move on the order of 100 million records. That’s quinquagenuple-platinum. Nuh-uh. Where on earth did he get that number?

Page 101: There may even be exotic channels of communications of which we may not even be aware today. (As somebody married to an identical twin and with identical twin younger brothers, I am fully prepared to believe from observation that extrasensory communication is not out of the question.)

Negroponte’s credulity might explain some of the Media Lab’s odder projects over the years.

Page 130: [M]any people (including me) don’t touch-type.
Page 194: When I fly from New York to Tokyo, roughly fourteen hours, I will type most of the trip and, among other things, compose forty to fifty e-mail messages.
Page 210: I carry more than ten pounds of batteries when travelling in order to feed my laptop on a long flight.

Think about these three facts together. Just think about them.

Page 153: What if a newspaper company were willing to put its entire staff at your beck and call for one edition? … In fact, under these conditions, you might be willing to pay the Boston Globe a lot more for ten pages than for a hundred ages, if you could be confident that it was delivering you the right subset of information. You would consume every bit (so to speak). Call it The Daily Me.

This is the famous “Daily Me” passage, the one that gave Cass Sunstein paroxysms of fear about information cocoons and people walling themselves off from contrary points of view. But notice what follows immediately after in Being Digital:

Page 154: On Sunday afternoon, however, we may wish to experience the news with much more serendipity, learing about things we never were interested in, being challenged by a crossword puzzle, having a good laugh with Art Buchwald, and finding bargains in the ads. This is The Daily Us… . We are not two distinct state of being, black and white. We tend to move between them, and, depending on time available, time of day, and our mood, we will want greater or lesser personalization.

This is exactly right. Personalization is part of our tastes, but so is serendipity. Sunstein’s view of information cocoons and information cascades is a dangerous over-generalization to all-the-time from phenomena that are true enough now-and-then. It’s a profoundly mistaken view of human nature. I’m glad to see the Negroponte doesn’t share it.

Page 173: With all due respect to Blockbuster and its new owner, Viacom, I think videocassette-rental stores will go out of business in less than ten years.

Not quite yet, but Blockbuster is on the ropes.

Page 182: In a very real sense, MUDs and MOOs are a “third” place, not home and not work. Some people today spend eight hours a day there.

Off by a factor of three.

Page 186: The fax machine is a serious blemish on the information landscape, a step backward, whose ramifications will be felt for a long time.

Right on!

Pages 193—-94: There is a very good, now quite famous, cartoon of two dogs using the Internet. One dog types to the other: “On the Internet, nobody knows you’re a dog.”

The dog is talking to the other dog, not “typing.” Had he really seen the cartoon?

Page 202: Today kids are getting the opportunity to be street smart on the Internet, where children are heard and not seen. Ironically, reading and writing will benefit.

d00d! teh suck!

Page 204: Today a game like Tetris is fully understandable too quickly. All that changes is the speed. We are likely to see members of a Tetris generation who are much better at packing a station wagon, but not much more.

It is quite possible that I have played over a hundred hours of Tetris. I do not believe that I “fully understand[]” the game. I don’t know whether anyone does, except possibly this guy.

Page 207: At a yet higher level, we can think of protocol as meta-standards, or languages to be use to negotiate more detaiiled bit-swapping methods. … TVs and toasters will ask each other the same kind of questions as a precursor to doing business.

We are in great haste to construct a magnetic telegraph from the TV to the toaster, but the TV and the toaster, it may be, have nothing important to communicate.

Pages 210—-11: An excellent and newer candidate for power storage is your belt. Take it off and look at the enormous amount of area and volume it consumes. Imagine a faux cowhide belt with a buckle design that allows it to be plugged into the wall to recharge your cellular phone.

And imagine your belt overheating and bursting into chemical flames.

Page 237: Jake Baker had posted a fictitious essay on alt.sex.stories (a place I have never been am not sure how to get to).

The founder of the Media Lab and the first investor in Wired didn’t know how to use USENET in 1995.

Negroponte, by the way, has gone on chair One Laptop Per Child (see also), which is both a natural extension of his ideas in Being Digital also profoundly transcends it. I’m hoping he’s right there, and I’m cheered by the signs so far.

Tyler Cowen points to a Washington Post story about historical racing. It’s just like betting on a horse race, only the race has already happened.

Yes, you read that right. Critics of the proposal say that it really is a thinly-disguised (and have you noted that nothing is ever “thickly disguised”) form of slot machine. The key details:

In historical gambling, which is also called instant gaming, customers would put as little as a nickel and as much as $5 into a video terminal that resembles a slot machine. The terminal randomly selects a race from an archive of at least 10,000 previous horses races from tracks around the country. Customers review a graphic showing the odds and statistics for each horse before deciding which one to bet on.

The race appears on the monitor. If the chosen horse wins, the patron will receive a payout based on the odds, how much was bet and that day’s purse.

Actually, based on this description, there’s something much more wrong with historical racing. The obvious attack on any bet on anything that has already happened (instead of has yet to happen) is simply for a gambler to find out what the result was, said result now being a sure bet. This trick is the basis for a number of common cons; I arrange to get the results early or to delay your receipt of the results, and convince you to place a too-good-to-be-true bet in the interim.

Presumably, selecting from a large database of races and showing only horse odds and stats (rather than day-and-time and horse names) is to foil this form of attack. But that level of obfuscation, while it turns the game into a game of chance against the ignorant, doesn’t seem sufficient to foil the dedicated. I just need to compile a large database of odds, statistics, and results from historical races. Then, when the machine shows me the details of the randomly-chosen race, I punch enough of them into a handheld computing device with the database loaded on it. In a 10,000-race database, it should be pretty easy to zero in on the actual race. Armed with that information, I place a can’t-lose bet.

Since I don’t usually think of casinos, racetracks, and other professional gambling institutions as being that dumb, my assumption is that there’s some further angle. That angle, if it exists, is unlikely to increase the role of skill in the game. And if said angle doesn’t exist, I predict that historical racing will have a short and ignominious life.

I found a galleys copy of Avi Rubin’s Brave New Ballot at the Strand, in the “uncorrected proofs” section, where everything is $1.49. The pay at Random House must really suck, if editors there are selling their galleys for such chump change. Why do I assume this was an in-house copy? Because of the corrections! My copy has a number of hand-inked redactions, each apparently striking one of the more inflammatory passages. I haven’t confirmed the changes against the published version, so I don’t know whether our unknown editor’s suggestions were adopted. With that caveat, here are the stories of electronic voting research that were too scandalous to print! The deleted passages are in bold.

• Page 22: After our report was confirmed, Diebold claimed to have fixed this problem, but an independently commissioned study found that it had not. Later still, the company claimed to have really fixed it. Perhaps it did, but since it won’t let us or any other outsiders—including the government—examine its system again, we’ll never know.
• Page 58: [Brit Williams’s] lordly condescension annoyed me, as did his inexplicable bitterness, but I never shared some colleagues’ more sinister view of his intentions or his alleged connections with vendors.
• Page 65: The lawyers from both Hopkins and the EFF argued that Diebold was unlikely to sue me personally. If any legal action was taken, they felt, it would be against the university. The general counsel from Hopkins made an analogy with medical research: if a team of Hopkins doctors had performed an unfunded study that found that a medication caused serious health risks, the school would stand behind the researchers if the manufacturer threatened them. In that spirit, the university’s legal staff responded with a strongly worded letter, stating that we had done nothing wrong and that the university stood behind all its researchers and would continue to do so.

Smoking!

SteveB’s office is smaller than at least one of my offices from when I was at Microsoft. John Gruber makes the catch with a pithy line about the caption. There are lots of other great details in the photo if you look closely:

• Is that a bottle of wine on the low cabinet to the right of his desk?
• He’s got a corner office. For a while, I had one too. That was counterbalanced by the offices from which you couldn’t tell whether it was light or dark out.
• Is that a whiteboard or a corkboard on the wall? The tray at the bottom screams “whiteboard,” but he’s using it like a corkboard.
• The drawing at far right appears to be a crayon illustration of a blue dinosaur with four legs and an absurdly long neck.
• That monitor is sooo 2003. SteveB might be the only person at Microsoft with a monitor that small. No wonder he’s squinting at it.

It’s a commonplace among lawyers that when examining a witness, you should never ask a question if you don’t know what the answer will be. Apparently, there’s an analogous commonplace among doctors—that you should never order a test if you don’t know what you’d do with the results. Interestingly, these two maxims provide superficially contradictory advice: lawyers only ask questions whose answers they know, and doctors only ask questions whose answers they don’t know. But on a deeper level, they get at something similar: asking questions is a purposeful activity, and if you’re not thinking hard about the answers you might get, maybe you shouldn’t be asking the question in the first place.

For some time now, Microsoft has been reminding me of a beached whale, or perhaps a man so morbidly obese that he is barely even aware of the multiple spears stuck in his flesh, to say nothing of the basketball-sized tumors growing within him. I would say that the company is flailing wildly, but “flail” implies a certain un-Microsoft-ian vigor. I see now that some music companies decided that the Zune”s much maligned “three days, three plays” policy wasn’t quite stingy enough, and prohibit Zune-to-Zune sharing entirely for certain songs. Given that wireless Zune-to-Zune sharing was arguably the Zune’s only significant innovation or selling point, this revelation removes one of the few remaining differences between a Zune and a wood chip. Remind me why it was, again, that Microsoft bothered with the wireless at all? How many millions of dollars have they thrown away building in and then crippling the wireless features?

I was also struck that there is no mention at all of Zune-to-Zune sharing in the Zune terms of service. At least Microsoft wasn’t stupid enough to promise that sharing would work, but it strikes me as a bad idea not to have specifically disclaimed any promises about sharing functionality. Some of Microsoft’s web pages do indeed carry a disclaimer: “The Zune to Zune sharing feature may not be available for all audio files on your device … .” But other pages don’t, even though they say such things as, “Beam your beats with wireless Zune-to-Zune sharing.” The potential false-advertising liability—to say nothing of the potential terrible publicity just from having such lawsuits filed—is immense. There’s enough space here between statement and disclaimer that the revelation that Microsoft deliberately disables sharing for some files could be dangerous. Something not working because it failed is different from something not working because you broke it, ethically and sometimes also legally.

Some people are saying that the Apple iPhone will kill the Zune. I disagree; the cause of death will be suicide.

One of my law school classmates once said, in response to a program designed to make us all spend even more time together, “I hate forced community.”

I was put in mind of her words last weekend at Boston’s South Station. I had half an hour to kill until my train, so I tried to go online and do a little casual blog-reading. No dice. There was WiFi, all right, but it led only to a walled garden—a small portal site that led only to information about South Station itself. The site had also clearly been neglected; the so-called “community” forums were overrun with vandalism and with people complaining about the lack of wider-world Internet access.

Some people were theorizing that the restrictions were there so that we’d pay to get unrestricted access. I don’t believe that theory, because there wasn’t a functional WiFi access point where I could have paid for outside access if I’d wanted to. (Not that I’d have wanted to, at least at the prices such services usually charge.) No, my sense is that the folks at the Boston Globe, proud sponsors of this travesty, honestly thought they were doing something nice by creating a little local online community of travelers. The only community I could detect was one united in cursing the uselessness of this crippleware wireless and the foolishness of the dead-tree mindset at the Globe behind it.

This explains the apparent contradiction of crusading throughout the later middle ages; its ineffectiveness failed to destroy sustained communal commitment to the idea or understanding of its ideology and ideals. This was not caused by some sort of collective escapism or mental atrophy. Rather, the crusade mentality, transmitted through long habit, current liturgy and constant renewal in fresh appeals for alms, tax, purchase of indulgences and, occasionally, armed service, framed a way of regarding the world. This mentality, widely dispersed through society, allowed the expression of faith and identity through social rituals and religious institutions without the necessity of individual political or military action. The relative scarcity of crucesignati was masked by cultural ubiquity. Independent of fighting and wars, crusading evolved as a state of mind; a means of grace; a metaphor and mechanism for redemption; a test of human frailty, Divine Judgment and the corruption of society. Crusading became something to be believed in rather than something to do.

—Christopher Tyerman, God’s War: A New History of the Crusades, pp. 825—-26

More precisely, these campaigns offered adventurous nobles opportunities to show off. Glamorous in repute but difficult, dangerous and sordid in practice, the raids across the wildernesses that marked the Prussian/Livonian/Lithuanian border, were often run by the order [of Teutonic Knights] as chivalrous package tours, complete with special feasts, displays of heraldry, souvenirs, and even prizes. Perfected by Grand Master Winrich of Kniprode (1352—-82), these festivals of knighthood became almost de rigueur for the chivalric classes of western Europe, a rather different clientele to the more habitual Baltic crusaders from Germany and central Europe. The dozen prize winners who dined at the Table of Honour after the 1375 reisa [summer raid] each received a badge bearing the motto “Honour conquers all,” a far cry from the Jerusalem decree of Clermont (“Whoever for devotion alone, not for honour or money goes to Jerusalem . . .”).

—Christopher Tyerman, God’s War: A New History of the Crusades, p. 707

However, such a path was denied the hapless Raymond VI, one of the most excommunicated men of the middle ages. . . . The personal bitterness directed at Raymond is difficult to understand; his iconic significance less so. He was the epitome of the fautor, the heretic’s accomplice. As such, there appeared no forgiveness, even beyond the grave. In 1222, Raymond had died technically excommunicate, prevented by his final stroke from making oral confession to the abbot of St. Sernin. His body, covered in a pall provided by the Hospitallers, was refused burial. Despite repeated appeals by his son and numerous ecclesiastical inquiries, his coffin remained unburied in the precincts of the Hospitaller house in Toulouse, where it was still to be seen over a century later, the shrouded body half-eaten by rats. By 1515, the worm-ridden coffin had collapsed in pieces and the bones had gone, except for the skull. This was kept by the Hospitallers, who, as late as the 1690s, used to show it off to the morbid and the curious.

—Christopher Tyerman, God’s War: A New History of the Crusades, p. 605.

“5 times cheaper than pharmacy near your home”

What? Does this mean that if I get medicine through them, they pay me four times the nominal price of the drugs?

Although your film lab shares a name with this blog, your domain name is not laboratorium.net. Instead, your company appears to operating quite happily at lab.net.pl. Please do not use email addresses at laboratorium.net when you sign up for mailing lists and event notifications online. The email will not reach you. It will reach me, and I will promptly delete it.

Is spam fair use?

A Brief History of Spam

To see how this four-word question arises, it may help to review a little of the history of spam filtering. Here’s a (slightly ahistorical) sketch: The earliest spams—basically email versions of the Green Card Lottery—consisted of the exact same message, sent to thousands or millions of recipients. Users annoyed by these spams, and ISPs annoyed at having to deliver them, took to comparing messages, senders, and message headers. If an incoming message was identical to a previously-seen message known to be spam, it would be dropped in the ætherial electronic wastebasket.

In response, the spammers realized they needed to start varying the content of their messages. The putative senders would be both forged and randomized; the subject line would be drawn from a large and combinatorial pool (e.g. “buy,” “purchase,” “obtain,” “acquire,” “get” and so on would be plugged into the verb slot, and a synonym for “cheap” into the adjective slot, and some drug name into the noun slot, leading to many many possible combinations); the message itself would be partly randomly generated. The filterers then dealt with this trick by using a group of techniques generally known as “Bayesian filtering,” some of which even are Bayesian filtering. The way these techniques work is that you scan a message assessing every word in it against a (specially-built) dictionary that tells you how much more likely seeing that word makes it that the underlying message is a spam. “Viagra” increases the spam score a bunch; “the” not so much. Note that this kind of filtering also helps with the original problem of deciding that the first message of a new type is actually spam (and +1 for you if you spotted that issue in the last paragraph).

The spam innovations that responded to statistical filtering were ugly, both figuratively and literally. Spammers started interpolating random text into their messages. At first, it was just a line of random gibberish pasted on to the end; then it was a line of random words here and there. This randomization both disrupted attempts to compare spam messages with each other for strict identity and also tried to trip up word-counting filters. The filters, however, proved reasonably good at recognizing that randomly-plucked dictionary words such as “xenograft” were astronomically unlikely to appear in legitimate messages and could therefore be all but ignored. Moreover, by expanding the filtering window to multiple words, the anti-spam tests could recognize that certain juxtapositions (e.g. “theogony xenograft”) simply did not appear in normal text.

Therefore, spammers took to plundering readily available texts not just for individual words but for entire lines and paragraphs of plausible verbiage. I first noted this phenomenon in 2003, when I got a spam whose text read:

that nothing can shake my confidence in you for a moment, Lordofthemuppets,
Our US Pharmacy is Open to You!
distrust of Owen; and to omit altogether a reference to the conduct which
We Now Have Xanax, Valium, Levitra, and Faster Acting Viagr@ SoftTabs
revived in a modified form. [30] The only warfare Sun Tzu knows
From US Pharmacies, not Mexico or Pakistan
thronged the amphitheatre, and watched exultingly while man slew
with more fitness than to him who had given me life?
Discreet and Fast Next-Day Shipments
physiologists. He made also a careful and fairly accurate study
Prescriptions written by US Doctors
The oars, the mast, and the sail are in the canoe. I have even succeeded
Browse our Selection
though distributed into distinct and mutually independent States,

All of the non-pharmaceutical text came from some corpus or other text readily available on the Web. Leaving aside the “Lordofthemuppets” (the dummy email account to which this message came), the first line was from Frankenstein. The other quotations came from the annotations to the letters of Charles Darwin;the Lionel Giles translation of Sun Tzu’s Art of War; Henry Smith Williams’s A History of Science; Frankenstein again; A History of Science again; Twenty Thousand Leagues Under the sea; and Orestes Brownson’s The American Republic. Most of the texts seem to have been taken from Project Gutenberg’s free public-domain e-books, right down to having the exact same line divisions.

From ripping off public-domain works, it was only a short step to ripping off works still in copyright. The technique of scraping the Web for content, in particular, proved attractive for the related spam practice of creating fake Web pages and fake blogs—as one might want to do if trying to trick search engines. Sometimes this content is arguably licensed, as in the case of the many, many Wikipedia clones floating around (new! improved! with added advertising!). Often it is not.

Is Spam Fair Use

To restate the original question in near-lawyerese, is it copyright infringement to use part or all of someone else’s copyrighted works in unsolicited bulk email for the purpose of confusing anti-spam filters into allowing the messages through? (If this were real lawyerese, I would probably have had to use longer synonyms for “email” and “anti-spam filters,” but my brain rebelled at the prospect.) It may be apparent that the same principles will apply, more or less, to spam blogs and other non-email forms of spam.

In U.S. copyright law, a finding of “fair use” is a defense to a claim of copyright infringement. In determining which uses count as fair, courts are instructed to take into account four factors: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. Applying these four factors to spam is instructive.

The first factor tests, roughly, whether the allegedly-infringing use is a good thing or a bad thing. Nonprofit uses have an aura of blessedness about them, in the same way that nonprofit organizations get tax breaks. Commercial use isn’t necessarily bad; it just doesn’t activate the automatic sympathy that nonprofit use does. This factor is also used to favor parodies, education, and critical commentary, while disfavoring rote repetition.

I think it safe to say that most spam is (a) commercial and (b) bad. Spam is a social ill. We would almost all be better off if there was almost none of it. What is more, the use of copyrighted texts (without permission) in spam is doubly unpleasant, in that it doesn’t just promote spam; it promotes spam fraudulently. The purpose of quoting the copyrighted work is to deceive spam filters into thinking that the message is other than it is. Putting it all together, I would say that spam flunks the first factor about as badly as it is possible to flunk it.

The second factor asks about the “nature of the copyrighted work.” This one is a bit of an odd duck; courts differ in how they approach it. A lot of different questions have been crammed in here. Is the original artistic or commercial? Is the original clearly copyrightable, or is it so close to the border of unoriginality that it supports only a “thin” copyright? Is the original famous or obscure? How much effort and expense went into the original?

It’s hard to judge the question of spam’s fairness on this factor in the abstract. That’s because when we ask the question this way, the one thing we absolutely don’t have before us is the original. I’ve posed the question in a form that treats the original as a free variable; it could be anything. Given that, I’m prepared to assume that the spammer ripped off the wrong dude, and that the spam quotes from the most famous, most important, most original text in the Western world. After all, the first plaintiff to bring such a suit will probably be one with a pretty strong case on this factor, out of simple logic of self-selection. So give spam low marks on the second factor, as well.

The third factor asks how much of the copyrighted work is used in each allegedly-infringing copy. Quoting a paragraph in a review is more favored than quoting an entire book. It’s traditionally thought that uses of a few words will almost always be fair, since short phrases are very close to being uncopyrightable anyway.

Here, I think that any individual spam actually comes out pretty well. The spam I quoted above uses one line each from a few works, two lines tops. That is not much, particularly in the context of a huge multi-volume work. A spammer who quotes a few words here and a few words there hasn’t taken much from any individual author. Thing are a little different in the spam blog, where one may quote an entire post or an entire blog. But the blender-job that classic spammers perform looks superficially a lot like the collage/remix work that some copyright scholars claim we ought to be encouraging. Perhaps the great bulk of spam could cut against it here. The spammer above may well have quoted all of Frankenstein, one individual line at a time. Still, given that the spams were scattered to the four winds, I’m not sure that the spam really uses “more than necessary” in the way contemplated by this factor. You can’t easily reassemble the work from the many many spams.

The fourth factor, the effect on the market for the original, is where things get truly surprising. It makes economic sense that we should discourage uses that are likely to cut into the market for the original, since they will reduce the creator’s income and undermine some of the incentive to create in the first place. Similarly, new uses that don’t undermine any market the creator could have exploited don’t cause the creator monetary harm, and so one can ask why the creator should be allowed to object. Some scholars think that this factor is really the only factor; the others may provide guidance in assessing the effect, but at the end of the day, mere competitors lose while those who add something new win.

Spammers, however, aren’t even competitors. The dude who scrapes a few lines from a blog post of mine to use as filler in his spams isn’t stealing any readers from me. He’s also not exploiting a derivative market that I would have any interest in exploiting, or, indeed, could profitably exploit if I wanted to. (Even with perfect enforcement by objecting copyright holders, I don’t see how willing copyright holders could make one red cent out of licensing a corpus of spam texts.) It is true that the collective volume of spam may be harmful to me, in that it annoys me and makes me pay slightly more for useful Internet service, but that’s hardly copyright injury to me as an author—it doesn’t affect the market for my work.

Even if you think that the less useful Internet means I have a harder time marketing my work, that consequence is still an indirect harm of the sort that copyright scholars regularly proclaim shouldn’t count in the fair use inquiry. Thus, for example, it is frequently argued that a vicious parody may reduce demand for the original by making it an object of ridicule, but that reduced demand due to disrepute isn’t the right sort of harm. The parody doesn’t directly substitute for consumption of the original. Neither does spam. (The Wikipedia clones, which duplicate the whole encyclopedia and divert Google traffic from it, might be another case, but garden variety bricolage spam isn’t it.) Thus, mark the fourth factor a win for the spammer.

Where does this leave us? Spam loses resoundingly on the first factor (its own nature) and by default on the second (the nature of the original). It wins, at least in the core case, in the third factor (the amount copied), and wins decisively on the fourth (effect on the market for the original). So how do we aggregate these split findings into an overall decision?

I think the answer is easy: the spammer will lose under current doctrine, and moreover, the spammer should lose. The spammer is not using the work for anything socially worthwhile, nor is she using in her spams any of the creative attributes of the work itself. She’s an enormously unsympathetic defendant adding little to society, and the prima facie case of copyright infringement (the actual copying of the copyrighted text) is unarguable. Protecting deceitful spammers is not why we have a fair use defense.

A Few Observations

The above analysis has a few interesting consequences I would like to highlight. First, the Supreme Court has said that the fourth factor—the effect on the market—is the most significant. It is sometimes considered to be the only significant factor, either in that the others fade into irrelevance next to a strong finding of harm or no harm to the market, or that they simply help a court evaluate the effect on the market. But it cannot be the only factor. Spam provides a convincing counterexample, one showing that even a compelling showing of no harm on the market-effect factor cannot be determinative.

This observation has implications for economic analyses of copyright. Most notably, it indicates that a story of fair use simply in terms of authorial incentives must be wrong. There must be a term somewhere in the analysis that can take account of how wasteful spam is. Trying to identify that waste as a form of disincentive to potential authors requires doing violence to the facts. I may be ticked off that spammers are copying me, but it’s exceedingly unlikely to hurt my sales. If one is committed to an economic balancing, one can point to the overall social harm caused by spam, or the negative value of deceitful reuses, but these costs must enter the balancing process somewhere other than in the author’s market for her work.

Second, this analysis serves as a reminder of the oft-emphasized (and oft-forgotten) point that the four factors are only an aid to analysis, not a mechanical checklist. In the spam example, the effect on the market factor, while strongly favoring the spammer, is also beside the point. (The amount-copied factor, which favors the spammer more weakly, is actually more persuasive as an argument in her favor.) Here, it is the purpose and character of the use factor that really seems to capture what is the problem with spam copying. Not all of the relevant questions are captured in the four factors; nor are they all relevant in any given case. Pointing out that judges must also assess how salient the various factors are in a fair use case may do little to aid in the predictability of the fair use analysis. It gives them yet another route to do whatever they want in the case at bar, almost regardless of the four-factor analysis. But the alternative—ignoring the reality that some of the factors sometimes make little sense in context—seems worse.

And third, it seems worth noting that this case is almost trivially easy from a moral rights perspective. The spammer has stripped the original author’s name from the work—a violation of the right of attribution. She has also distorted the presentation of the work (by chopping it up and dropping it in the spam), and by using the work in this way, associated the author’s work with spam, a “derogatory action” that supplies the necessary “prejudic[e] to [her] honor or reputation” to complete a violation of the right to integrity. These two complaints, particularly the second, seem to get at the problem with spam copying quite directly. The work is being used for sleazy and harmful purposes, in a manner that mutilates the work, gives it unfair connotations, and enlists the author against her will in a dishonorable cause. Whether or not you think that moral rights make for good law, you have to admit that the moral rights approach gets at what’s wrong with spam filler from an author’s point of view.

In conclusion then, spam is not fair use. Also, spam is bad. The end.

More striking visual aids may have been employed, although testimony comes only from two Muslim observers. According to the well-informed Iraqi historian Ibn al-Athir (1160-1233), a picture was circulated in the west showing Christ being struck in the face by an Arab. Saladin’s friend and chief judge in his army, Baha’ al-Din Ibn Shaddad, recorded that Conrad of Montferrat, whose timely appearance had saved Tyre in 1187, commissioned a large painting of Jerusalem showing a Muslim cavalryman trampling over the Holy Sepulchre on which his horse was urinating.

• Christopher Tyerman, God’s War: A New History of the Crusades, p. 384

King Henry I explained to Pope Calixtus II in 1119 that he had afforded his captive brother Duke Robert of Normandy good treatment because of his crusader status: “I have not kept him in irons like a captured enemy but have lodged him as a noble pilgrim in a royal castle.” Whether the hero of Antioch and Jerusalem appreciated such fraternal generosity over the twenty-eight years spent in his brother’s prisons must be debatable.

—Christopher Tyerman, God’s War: A New History of the Crusades, p. 249