The Laboratorium
April 2007

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Outcome Hazy

Philadelphia has shut down more than a dozen fortune-tellers. The relevant law appears to be 71 Pa. C.S. § 7104:

A person is guilty of a misdemeanor of the third degree if he pretends for gain or lucre, to tell fortunes or predict future events, by cards, tokens, the inspection of the head or hands of any person, or by the age of anyone, or by consulting the movements of the heavenly bodies, or in any other manner, or for gain or lucre, pretends to effect any purpose by spells, charms, necromancy, or incantation, or advises the taking or administering of what are commonly called love powders or potions, or prepares the same to be taken or administered, or publishes by card, circular, sign, newspaper or other means that he can predict future events, or for gain or lucre, pretends to enable anyone to get or to recover stolen property, or to tell where lost property is, or to stop bad luck, or to give good luck, or to put bad luck on a person or animal, or to stop or injure the business or health of a person or shorten his life, or to give success in business, enterprise, speculation, and games of chance, or to win the affection of a person, or to make one person marry another, or to induce a person to make or alter a will, or to tell where money or other property is hidden, or to tell where to dig for treasure, or to make a person to dispose of property in favor of another.

That’s kind of a dense bit of text, but I think the highlighted bit makes clear that it’s an unconstitutional restriction on free speech. As writen, the law prohibits me from writing a letter to the editor claiming that I can predict that the sun will come up tomorrow.

I Refute Refute Thus

When I was in the language-acquisition phase, I learned “refute” as meaning “disprove.” I know that the descriptivists have mostly given up on holding that line, but I haven’t. Disagreement is not refutation. Denial is not refutation. Even making a good, reasoned reply is not refutation. You can only “refute” if you win the argument. It’s disproof or nothing.

Ilium I give it 3 stars

More evidence that the optimal strategy for reading Dan Simmons is to stop after the first one. There are some shaky passages, but the wheels pretty much stay on the bus in Ilium.

Olympos I give it 2 stars

Gah. Reads like a game of Exquisite Corpse. And not in a good way.

Is The Google Exit Strategy Good for Innovation?

Dodgeball is a social text-message location service. Imagine that you show up at Paddy Mac’s Shamrock Station and the scene sucks because no one’s there. So you send a text-message to Dodgeball, and all your friends get text-messages telling them that Paddy Mac’s Shamrock Station is where the action’s at. The next thing you know, all your friends are there with you, and hey, it’s still a sucky fake Irish pub, but hey, at least, you’re not drinking alone like that bitter-looking guy over there tossing back double whiskies like there was a prize at the bottom of the bottle.

That’s pretty much what Dodgeball did in 2005 when Google bought them in 2005. It’s also pretty much what Dodgeball sill does. (Digression: I wrote “Dogeball” at first, which I suppose is the Venetian version. Your friend the Doge is at Piazza San Marco. Why not stop by and say hello? Everybody loves the Doge. He’s got that great hat. Maybe the goal of Dogeball is to be the first to knock it off his head.) Dodgeball’s founders got fed up with trying to get things done inside of Google, so they quit. They’ve both taken jobs at other mobile/social startups. If they’re right, Dodgeball today is far less exciting and valuable than it would have been had Google not bought it.

Thus: What is the net effect of the sell-to-Google exit strategy on innovation?

These are just preliminary thoughts, but here goes. Assume that the relevant market is overshadowed by a cash-rich but slow-moving diplodocus. Its gigantic bulk and tiny braincase make the diplodocus terrible at creating innovative products. Instead, its best strategy is to wait for someone else to create something clever and then buy out the results, probably by overpaying like a midwestern tourist in a bazaar. Once in-house, however, the product will stagnate. It will never get any better; it may well get slightly worse.

One effect is that the diplodocus is a startup-killer. The founders and VCs may make out handsomely, but innovation at the acquired firm is dead dead dead. Tall poppies are cut down in their prime. But wait, you say. Doesn’t the reward from getting bought out act as an incentive to invest in startups? The VCs will pocket some of their profits but then plow the rest back into new ventures, and just look at what happened to the Dodgeball guys—it didn’t take all that long for them to go back into the startup labor pool. So yes, we will see greater investment in startups.

That greater investment might or might not translate into greater innovation in the public’s hands. Here are two stories. On the first story, what matters is idea generation. Everyone in the world can see what Dodgeball was making, and the acquisition didn’t hurt. Dodgeball may be gone, but the basic idea is now in the public domain. Someone else will take up the ball and run for the actual touchdown.

On the second story, ideas are a dime a dozen, but it’s execution that counts. Dodgeball is a nice toy … for hipsters. Maybe if it’d been left alone, it would have turned into something actually useful. The presence of the diplodocus creates a perverse incentive to build a system with high buzz for a fast flip, rather than building a system that would make a difference to Joe Q. Public. (Second typo alert: I first wrote Joe Q. Pubic, which almost got through the spell-checker because that’s a word, too. Actually, maybe Joe Q. Pubic is right. It would explain a lot about American politics and culture. More sex! How else are we going to sell Social Security reform to Joe Q. Pubic? We need to convince him that our plan is the only way he’s still going to get laid when he’s 70. I’ve got it! We’ll explain that we’re raising the retirement age because American workers are “standing tall for longer and longer” at their jobs!)

I suspect that the first story is more accurate, if only because the diplodocuses of the Internet world pay orders of magnitude more for companies that have managed to scale up their userbase. Startups that can really execute on their ideas often do. That point raises the question of the timing of the big sell-out. If the goal is to extract the most money from the diplodocus, you’d try to sell when you were sitting on unfavorable private information. Nothing explicit, like you’re about to be sued; they’ll find that out during the negotiations. More like “We’re out of ideas,” or “This isn’t fun any more,” or “The hipsters have stopped talking about us in their hipster bars.” Something you know and the diplodocus is too out-of-it to figure out. If that’s the case, than many start-up sales will take place just after the period of greatest innovation, which would be exactly when the tall-poppy effect is least harmful.

In any event, between this news and Google’s recent announcement that it plans to buy DoubleClick (a terrible name for an online advertising company, let me note, since you single-click on web ads), I have this sinking feeling that Google has jumped the diplodocus.

A Theory of Jealousy

A friend of ours puts up with waaaay too much suspicion from her boyfriend. I’m not sure whether it’s a commentary on him or on us that he decided he had nothing to fear from her circle of friends once he’d met them. But he still doesn’t like the idea of her going to parties when he’s out of town, and demands to know such things as what she’ll be wearing, who she’s going with, and how much she plans on drinking. Seeing this led us to formulate a theory about jealousy within a relationship:

If you’re worried about and suspicious of your partner, it is always your fault. If your fears are baseless, then you’re bringing your own insecurity into the relationship and undermining the shared trust that it needs to flourish. If your fears fears are true, then why exactly are you seeing this person?

If The Internet Did Not Exist, We Would Have to Invent It

While I’m an advocate of reinventing the Internet the gist of the story is a failure to understand why the Internet has become what it is. It’s akin to the attempts to fix the US Constitution by getting rid of that First Amendment because we now know what speech is good and what is not.

Bob Frankston

Blue Bunny, I Hear You

And if I see you, it will not go well for you. The frightful keen of your jingle-jangle bingle-bongle Turkey in the Straw has the power to freeze a man’s soul, freeze it like the dread frozen treats in you truck.

I do hope that someday the Mister Softee and the Blue Bunny trucks will encounter each other. They must be mortal enemies, and the showdown ought to be quite a sight.

If I Had a Bazooka

I would do unspeakable things to the Mister Softee truck. I swear that that bastard just circles our block with his out-of-tune jingle machine set to “annoy.”

Masters of Doom I give it 4 stars

Solid journalism and a truly fine portrait of artistic collaboration, perhaps the best I have read. For better or for worse, the trilogy of Wolfenstein 3D, Doom, and Quake transformed computer gaming, and at the heart of it were two very different guys named John who hit one of those rare perfect grooves. Call them the Lennon and McCartney of gaming if you like; Carmack’s programming genius and Romero’s visceral sense of game design came together uncannily well, and part of the fun is reading how neither of the two could later replicate the experience alone.

Actual Text-Message Exchange

Unknown party: Tomorrow we still meeting @ AVI in the AM?
Me: No.
Unknown party: No what? We not picking up neon?
Me: Check your #.
Unknown party: What #?
Unknown party: I just checked no messages
Me: You texted a wrong number.
Unknown party: Oh sorry

Even at the ridiculous rate I pay for text messages, it was worth every penny.

Smooth Operators

In 1872, Karl Weierstrass described a way to combine sine waves to make a function that was always continuous but never differentiable. Today, his technique is primarily used in the production of smooth jazz.

The Coast of Utopia I give it 4 stars

Seeing them back-to-back was much like seeing the three Lord of the Rings movies back-to-back. The day flew by.

The Hacker Ethic I give it 3 stars

In this beautifully-written book, Himanen argues that a new “hacker ethic” of creativity is challenging Weber’s Protestant ethic of work. An enjoyable and thought-provoking work, provided one does not make the mistake of believing that it bears any relationship to reality.

A Clickwrap Sonata

The 1996 case of ProCD v. Zeidenberg is one of the canonical cases in Internet law. It’s the African Eve of shrinkwrap, browsewrap, and clickwrap contracts. I’ve taught it; I’ve debated it. And, until yesterday, I didn’t know the whole story.

The facts of the case, as law students encounter them, are relatively simple. ProCD, in the words of the court, “compiled information from more than 3,000 telephone directories into a computer database … [that] cost more than $10 million to compile and is expensive to keep current.” It then sold copies of the database on CD-ROM: $150 for a five-disc set for personal use only, or a whole lot more for a set that allowed commercial use. Suddenly, the complete phone directory for the entire United States took up less shelf space than a Beatles boxed set.

Matthew Zeidenberg bought a copy of the cheapo personal-use version and decided to go into business competing with ProCD. He copied all 95 million entries out of the database and set up a web site where visitors could look up names and numbers in it. “[I]ts price …needless to say, is less than ProCD charges its commercial customers.” ProCD, seriously unhappy about being undercut with its own data, sued.

Zeidenberg figured that he had a pretty good defense: telephone listings are facts, and you can’t copyright facts. But ProCD ultimately got him, not on a copyright claim, but for breach of contract. You see, when you fire up your copy of ProCD’s directory-on-CD, it pops up a window that you have to click through:

The listings contained within this product are subject to a License Agreement. Please refer to the Help menu or to the User Guide.

And if one did look at the user guide, one would find, among other terms:

You will not make the Software or the Listings in whole or in part available to any other user in any networked or time-shared environment, or transfer the Listings in whole or in part to any computer other than the computer used to access the Listings.

What Zeidenberg was doing was about as blatant a violation of this term as one could commit, so the question was whether it was binding on him in the first place. The appeals court, in a ruling that has attracted fierce debate ever since, held first that yes, shrinkwrap agreements of this sort can be binding, even if you don’t get a chance to review the terms until after you’ve paid your money. You’re not quite taking your chances, the court explained, because if you don’t like the terms when you see them, you can get a refund.

(Actually offering refunds to people who don’t like the terms was a real hassle. Remember Microsoft Refund Day? Software retailers, in particular, hated to give refunds on software whose shrinkwrap had been broken. The rise of the web has mooted much of the issue. With direct software downloads, you can “show” people the terms and conditions before the transaction completes. And even with in-store purchases, you can still put the license terms on your web site, so that they don’t need to open the box to find out the terms.)

The second prong of the holding was that the uncopyrightability of ProCD’s listings was simply irrelevant. The copyright policy that facts can’t be copyrighted didn’t “preempt” the contract between ProCD and Zeidenberg. People can sign away rights that copyright or other laws give them, and as far as the court here was concerned, Zeidenberg had done just that.

This is all well and good (or bad), but it leaves open one quite intriguing question: where did ProCD get the numbers in the first place? Well, in the words of Carl Shapiro and Hal Varian’s Information Rules, page 23:

The phone companies wouldn’t rent their computerized listings to the CD companies at a reasonable price, since they didn’t want to cannibalize their $10 billion Yellow Pages service. So Pro CD hired Chinese workers to do the transcriptions in a Beijing factory, at a cost per worker of $3.50 per day. These Chinese workers typed in all the listings in every phone book in the United States—in fact, they typed them in twice to check for errors!

A few study questions: * If ProCD can shrinkwrap-protect its CD-ROM directories, why can’t the phone companies do the same with their dead-tree directories? * Is there something screwy about a system that encourages ProCD to spend $10 million to redigitize information that already existed in digital form? * Given that ProCD won, why is it that you can look up telephone numbers online for free? (Hint: Did ProCD’s victory give it the ability to stop Zeidenberg from spending $10 million to open a Beijing transcription sweatshop?) * Suppose that Zeidenberg emailed you a complete copy of the data he extracted from the ProCD database. Under the court’s reasoning, you would not be bound by the clickwrap agreement. Is this an argument for or against the decision? For or against giving ProCD a copyright-like power to stop you and Zeidenberg, whether or not there was a clickwrap agreement? * The Google Book Search project also relies on extensive digitization of dead-tree-format information. Does Google strike you as being more like Zeidenberg, like ProCD, like the phone companies, or like the Chinese transcribers?

The Singularity Is Near I give it 3 stars

I’ve started using “the nanobots” as an all-purpose shorthand for technological changes so enormous as to render our current debates about, say, digital copyright ludicrously irrelevant in hindsight. And Kurzweil is clearly right that such changes are coming. But when he discusses things that I know a good deal about, such as digital copyright, his arguments don’t particularly make sense. So while I do think he’s right on some of his large-scale speculations (such as that computers will eventually display human levels of intelligence), I just don’t follow him to the huge-scale ones.

Will the nanobots work without devouring the biosphere? Will intelligent computers be so much better than humans at designing computers that the rate of technological progress will approach infinity (whatever that means)? Will we be able to upload human consciousness into a computer without the experience seeming like death to the body and brain left behind? Neither Kurzweil (who would say “yes”) nor his critics (who would say “no”) have got me convinced on any of these questions. Nor has this whole futurist-slash-posthumanist speculative enterprise convinced me that these debates are generating any insights we couldn’t get from a bunch of philosophy majors and a whole lot of marijuana.

This book is sometimes tendentious, sometimes wrong on the details, and sometimes positively Marxist in its construction of a closed hermeneutic from within which any disagreement can be casually dismissed as the product of “linear thinking.” Still, the metaphorical nanobots are coming, and we ignore them at our peril.

Seamy Web

Lawyers (and especially law professors) like to say that “the law is a seamless web.” The phrase seems to come from the great English legal historian Frederick Maitland, who wrote in 1898:

Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web.

Others can argue about what it means as a metaphor, but I’ve never understood the metaphor itself. How could a web be “seamless?” A web, to me, indicates a network of line segments joined together at discrete points of intersection. Seamless suggests continuity, but a web is discontinuous to begin with; there are great honking patches of emptiness in between the individual threads in the web, and things are very different at the intersection points than along the threads. Sure, you can “tear” the threads apart and thereby split the web into pieces, but was the web ever seamless?

I’m not sure what a “seam” in a spider web or the World Wide Web would look like. I can envision a seam in a piece of cloth; that’s where two otherwise continuous pieces of cloth have been sewn together. But a seam in a web? Perhaps Maitland had in mind a web that was so dense with threads that, as in most pieces of fabric, you don’t see the individual threads, but only a flat, continuous whole. But then, is the “web” aspect really the right one to emphasize? It would seem more natural to talk about a seamless “cloth,” or just to dodge the question and say a seamless “whole.”

I’m with the Lawyers’ Committee for Metaphorical Integrity and Integrity in Metaphor, and I endorse this message.

Alternate Videogame History

The instructions for Pong famously read, in their entirety:


How different a game would it have been—and how different would the history of videogaming have been—had “MISSING” been a participle instead of a gerund? If there had been a period after HIGH? If FOR had had a U?

In Zen Pong, I suppose that the object is first to free yourself of your attachment to the ball, and then to free yourself of your attachment to the high score. Along the way, you free yourself of your attachment to your quarters.

The Russians Got Rooked

In 1988, West German hacker Markus Hess sold to the Soviet Union a copy of GNU Emacs for 2,000 marks. If that doesn’t sound remarkable, let me put it this way: An adherent to the belief that information ought to be free sold to a representative of a nation that did not recognize private property a piece of software freely available for redistribution by anyone.

The transaction really only makes ethical sense in one of these three systems, as much as they might seem to have in common. Not coincidentally, it’s also the system out of these three that has done the most to promote human freedom and the spread of information.

What on Earth Does This Mean?

As part of our routine security measures your account has been randomly deactivated in our system. Your account has already been verified, therefore your account will not be deactivated.

Active or inactive? Only her hairdresser knows for sure.


The inimitable Jason Webley writes to his East Coast fans:

Also, if you are coming to the Lilypad show in Boston and want to get on the guest list, I realize I have forgotten to organize … a sheet of 3/4 inch plywood and osme carpet. the owner of Lilypad is afraid I will stomp through the floor and wanted me to bring these if I want to stomp.

Next: The Future Just Happened I give it 2 stars

Some good reporting and a basically correct thesis, but a very sour tone. Also, the plural of “anecdote” is not “data.” Perhaps appropriately, it reads like a rush job.