The Laboratorium
September 2007

A Note for Attendees of TPRC


My apologies to any of you who were in the audience for my presentation this morning. It didn’t fairly reflect the paper, and I really am sorry about my incoherence. I’ll get more sleep and talk more slowly next time.

Bricked


Bricked” may be my new favorite word. As UrbanDictionary puts it, with characteristic verve:

To render your computer or other hardware useless, as useless as a brick. Or as a brick would be if you need a computer.

In part, it’s because the last few years have seen a veritable renaissance of bricked electronics, the WiiConnect Update of Doom, and now Apple’s Self-Spiting Revenge on iPhone unlocks.

In part, it’s because “bricked” carries echoes of “b0rked” an earlier and colorful term to much the same effect. But whereas “b0rked” brought to mind the failed Supreme Court nomination of Robert Bork, “bricked” gets a lot closer to the truth: you now own a very expensive brick.

But really, I love “bricked” because it’s a great example of verbing done right. “To brick” means “to turn into a brick”—the construction is both clearly right and also not a common pattern among nouns-turned-into-verbs. More often, “to X” means “to use an X”: direct, but also bland.

So here’s to “bricked,” and to all of my brothers and sisters who are suffering the agony of a bricked iPhone.

In the Waiting Line


Samuel Bowles, Microeconomics, page 348:

Or, to put it more graphically, one reason why Fords were better cars than their Cold war–era Russian equivalents is that in Russia customers waited in line to purchase Volgas while in the United States, Ford salesmen lined up to sell customers cars. Another reason is that in the United Stats workers waited in line to get jobs at Ford.

He almost nails the Russian Reversal, but not quite. Let’s help him along:

In America, you wait on line to buy car. In Russia, car waits on line to buy you!

No, that’s not quite right. Maybe there’s another way of putting it:

In America, you cross river with Ford. In Russia, you swim in Volga.

Hmm. One last try?

In America, you wait around to get job in factory. In Russia, job in factory is waiting around.

Umm, something like that.

Listen There for Hearsay Culture


Last week, I taped an interview with lawprof David Levine for his weekly radio show, Hearsay Culture. Dave’s a thoughtful interviewer, and we had a fun, wide-ranging conversation about some of my recent work. If you’re in the Stanford area, you can listen live from 5:00 to 6:00 PM on KZSU. If you’re not, there’s always their live Internet stream. And if you forget, it’ll show up as a podcast a few days later. I make no warranties or representations about the quality of my comments, and I’m not sure I remembered to speak slowly, but the questions were good.

Better Off Dead I give it 5 stars


This old John Cusack comedy is one of my absolute favorite movies. It’s nominally a teen movie about a guy who’s dumped by his girlfriend for a bullying ski champ and becomes suicidaly depressed. He tries to kill himself repeatedly and fails, only to fall for the French exchange student across the street, who inspires him to win a race against the ski champ.

I say “nominally” because Better Off Dead all but ignores this so-called plot for long stretches. Instead, the minor characters all but take over the movie: a pair of drag-racing brothers who talk like Howard Cosell, a paperboy scarily intent on collecting his two dollars, a top-hatted druggie sidekick, a mother whose food is so bad it walks off the plate, a claymation hamburger … the movie is a gigantic, shambling, glorious mess. The movie does manage to juggle more than the usual number of subplots, but only at the cost of leaving some of them offscreen for half an hour or more.

One interesting undercurrent is that the movie comes off as a vicious indictment of the emotional deadness of suburban life. If the only things that matter in life are hanging on to your girlfriend of six months and making the ski team, perhaps Cusack is better off killing himself. His father can’t speak his language, his little brother doesn’t speak at all. At the Pig Burger, employees wash their hands on their own time, and at the high school, the basketball team communicates only in grunts. At Christmas, everyone puts a TV showing the yule log channel in the fireplace, and wears aardvark-fur jackets (complete with snouted hood). And then the paperboy comes knocking, like the Angel of Death. Perhaps the writer/director, Savage Steve Holland was deliberately drawing on childhood miseries, or maybe this stuff just snuck through subconsciously, or maybe I’m reading too much into it. This is a movie whose villain is named “Roy Stalin,” after all, so the subtlety may be more imagined than real.

In any event, fellow fans should feel free to post your favorite quotes in the comments.

A Notoriously Tough Demo


Penny Arcade, on the Halo 3 marketing campaign, which I would add puts many actual military campaigns to shame:

It’s one slice (or, perhaps, sip) of a ten hojillion dollar marketing campaign designed to project one of gaming’s biggest brands to people who already know about it. There is no way to escape the Goddamn thing. Over ninety percent of the surveyed crustaceans were “aware of the launch” and held a “strong desire to purchase,” even though their massive claws and aquatic habitat make using the product impossible. Lemurs are less bullish, but then lemurs are a notoriously tough demo.

Cause for Optimism?


Kurt Vonnegut:

“You know what I say to people when I hear they’re writing anti-war books?”

“No. What do you say, Harrison Starr?”

“I say, ‘Why don’t you write an anti-glacier book instead?’”

What he meant, of course, was that there would always be wars, that they were as easy to stop as glaciers. I believe that, too.

We’re making substantial progress against the glaciers.

The Braindead Megaphone


George Saunders:

Imagine a party. The guests, from all walks of life, are not negligible. They’ve been around: they’ve lived, suffered, own businesses, have real areas of expertise. They’re talking about things that interest them, giving and taking subtle correction. Certain submerged concerns are coming to the surface and—surprise, pleasant surprise—being confirmed and seconded and assuaged by other people who’ve been feeling the same way.

Then a guy walks in with a megaphone. He’s not the smartest person at the party, or the most experienced, or the most articulate.

But he’s got that megaphone.

Say he starts talking about how much he loves early mornings in spring. What happens? Well, people turn to listen. It would be hard not to. It’s only polite. And soon, in their small groups, the guests may find themselves talking about early spring mornings. Or, more correctly, about the validity of Megaphone Guys ideas about early spring mornings. Some are agreeing with him, some disagreeing—but because he’s so loud, their conversations will begin to react to what he’s saying. As he changes topics, so do they. If he continually uses the phrase “at the end of the day,” they start using it too. If he weaves into his arguments the assumption that the west side of the room is preferable to the east, a slow westward drift will begin.

These responses are predicated not n his intelligence, his unique experiences of the world, his powers of contemplation, or his ability with language, but on the volume and omnipresence of his narrating voice.

His main characteristic is his dominance. He crowds the other voices out. His rhetoric becomes the central rhetoric because of its unavoidability.

In time, Megaphone Guy will ruin the party.

Or, in one especially inspired sentence:

[T]he nightly news may soon consist entirely of tirades by men so angry and inarticulate that all they do is sputter while punching themselves in the face, punctuated by videos of dogs blowing up after eating firecrackers, and dog-explosion experts rating the funninness of the videos … .

Some Thoughts on the Occasion of the Un-Hiring of Erwin Chemerinsky as Dean of the Forthcoming Donald Bren School of Law at UC Irvine


(For context, see here and here.)

How tactless.

How offensive to academic freedom.

If someone can nix the deal, consult them before you extend the offer.

Donald Bren can’t be happy with this publicity.

This can’t be good for hiring Chemerinsky’s replacement.

Or for hiring the faculty the school needs to attract.

It could doom the new Irvine law school.

It could cost Chancellor Drake his job.

It should.

IP Policy Is Tricky


Jacob Loshin, Secrets Revealed: How Magicians Protect Intellectual Property Without Law

Magicians can’t rely on the traditional IP regimes to keep competitors from copying their effects, or to keep nosy reporters from spilling their secrets. Trade secret doesn’t work when you do the trick publicly, in front of an audience of thousands. Copyright doesn’t protect the idea at the heart of the trick, only the patter surrounding it. And patent, with its annoying disclosure requirement, is a profound misift.

Nonetheless, Loshin argues, magicians have a set of trade norms that strongly discourage wholesale exposure and effectively prevent plagiarism. First, magicians distract the public from the good stuff with a lot of tawdry and not very profound “secrets”—the kind of gimmicks sold to the public in magic stores. Second, they enforce against each other a code of not telling the public how the trick is done. And third, they adhere to a set of attribution and use norms that give a trick’s originator credit and secure to him a moderate (but not complete) degree of exclusivity.

It’s a clever argument that cites the right sources. He’s explicitly following up on an invitation from Raustiala and Sprigman’s paper on the fashion industry, which also can’t rely on IP protection. They argued that it uses instead a strategy of induced obsolescence (a.k.a. faddishness). From there, they called for scholars to examine “negative” IP spaces—places where industries operate outside of IP protections. Loshin has done exactly that for the world of magic.

The problem I have—and this is a qualification, not a complaint—is that his theory doesn’t quite deal with magicians like, say, Penn and Teller. I once saw them do the old cups and balls with glass cups. Have they broken rules (1), (2), and (3) of Loshin’s rules for dealing with the lay public: “Never expose a secret to a non-magician.”? Penn and Teller remain in good standing with other magicians, so it would appear not. Loshin might argue that what they have given away is tawdry “popular magic,” not the real, useful “common magic” or “proprietary magic.” But pushing that argument too hard starts to show the ambiguity of these categories; one suspects that any inconvenient facts can be explained away with the right recategorization.

The real issue here is that Loshin doesn’t ever quite engage with the truly fundamental question: What is the value of a magic trick? The public both wants to be fooled and wants to know how the trick is done. It’s fun to watch something utterly mysterious or something everyday but skillful, but the most enjoyable magical experiences are those that are just outside one’s comprehension. Loshin never really engages with this anitnomy, and the result is that the paper is oddly vague when it describes how magicians and audiences derive value from the tricks that he considers to be the trade’s principal form of unprotected IP. Without clarity on how the IP fits into the business model and the aesthetic model it’s hard to be certain that the trade norms theory really explains how the profession works, or is just another layer of publicity used by magicians to keep the public interested.

There’s a common theme here linking Loshin’s discussion of magic with Raustiala and Sprigman’s discussion of fashion. As I noted when discussing their paper, it’s not at all clear that the fashion industry’s rapid cycles of obsolescence are good for anyone besides the fashion industry. Fashion is a positional good, tied up with all kinds of complicated status games. That is to say, fashion’s value doesn’t derive solely from its utilitarian or aesthetic properties. Instead, a lot of its value consists in what economists would call a “signal”; it allows you to say that you’re one of the cool kids, or one of the riffraff, or someone who rejects that division entirely. The fashion industry, in short, simply doesn’t fit our archetypal abstract model of how an IP industry works, and it can’t, whether or not we apply legal IP protections to its products.

Magic is similar. Secrecy is a second-order virtue in a conventional IP industry; it’s something that enables you to exploit the information by selling it profitably or by withholding it from your competitors. The value itself derives from the information. But in the magical world, some of the value derives from the secrecy; people are more interested in seeing an effect worked if they don’t know how the magician manages to work it. Once again, the industry simply can’t be mapped onto the conventional model of an innovator who creates an information good and sells it. Whether or not magicians have de jure IP rights or de facto trade norms that resemble IP, the core of their industry cannot adhere to the standard model.

Fashion and magic are, in short, weird industries. There’s a lot of value in studying negative IP spaces. But one needs to be cautious in trying to generalize from them, because most of what one learns from studying examples such as these are fascinating specifics of the industries, not universal truths about IP.

Publication Junction


Two academic pieces of mine have just gone live on the interweb. Both are comparatively short and breezy, and I’m unusually happy with how they both turned out.

The first, “Information Policy for the Library of Babel” is a fantasia on Borges’s wonderful story about a library containing every possible book. People have recognized what a lovely metaphor it provides for the Internet, but what would happen if we took it seriously? In addition to telling us that censorship is usually futile and that authors matter less than we might think, it would direct our attention to the search tools that are utterly necessary if we’re to be able to find the informational needles we actually want in the library’s vast haystacks. Information policy is an age of informational abundance is search engine policy. I had a lot of fun putting the Borges text through a blender to remix it into an argument about the Internet. It’s available in PDF form at BePress and at SSRN and in HTML form from my own site.

The second, “Don’t Censor Search,” is a contribution to the Yale Law Journal’s online component, the Pocket Part. They’re running a symposium on online harassment, a particularly pressing issue for law schools and the legal profession in light of the Autoadmit controversy. I argue that whatever we think about the problem, pressuring search engines is the wrong answer. The Journal’s editors did a very nice job at putting the pieces in the symposium into a real conversation with each other. I’m personally quite happy with the number of ideas I managed to cram into in the mere 1,500 words I had to work with. (And to think think that back in high school a two-page paper seemed an onerously long assignment!) Get it online from the Journal’s site.

The Singaporean Style of Virtual World Governance


It’s appropriate that the most recent State of Play conference was held in Singapore, and not just because virtual worlds require a global conversation that includes the voices of the vibrant and trend-setting Asian gaming communities. Singapore is itself something of a virtual world. Physically, it’s a mixture of self-consciously exotic “nature” with the rational geometry of planned architecture. Politically, the setting perfectly embodied the quietly authoritarian technocratic model that currently dominates virtual world governance.

In most commercial virtual worlds, the designers govern with the attitude that they possess the expertise and professionalism to keep the world functioning smoothly and harmoniously. Players are granted latitude of action within embedded software limits, but possess any rights only at the sufferance of the designer. Players who accidentally transgress social norms will be given a warning and gently reminded to be more courteous in future. Players who deliberately flout rules or seriously call into question the designer’s control of the world will be harshly punished, often through banishment. This one-sided system is justified on a theory of technocracy; the designers best understand the problems of running the world, and players should defer to their expert judgment.

The result is an oddly bifurcated political arena; the public sphere of debate and discussion is largely disconnected from the actual locus of decision-making. The architecture is a succession of manicured theme parks and shopping malls. Players may participate in the construction and make particular spaces their own, but they can do little to inscribe themselves on the landscape in any enduring way. Graffiti is regulated out of existence; surveillance is omnipresent. The instruments of designer power are rarely visible, but they hardly need to be, since everyone knows they stand at the ready. Free speech is nominally present, but most really subversive discourse takes place externally, in out-of-world settings. Life can be quite good indeed, but there is about the place something unsettling, something alien, something missing.

This description may be a caricature of Singapore. But I don’t think it’s a caricature of virtual worlds.

Jack Goldsmith, Hero


A few years ago, someone asked me what I thought about a professor, newly arrived at Harvard Law School from service in the Department of Justice, some of whose colleagues were shunning him for what they assumed was his role in the Bush administration’s pro-torture and anti-civil-liberties policies. I replied that I suspected they were wrong about the facts. The professor in question had edited a thought-provoking casebook and written some notable, well-reasoned law review articles. It was possible that he’d gone along with the administration’s power-mad abuses, but he just seemed too intelligent and sensible to have been one of the bad guys.

The past few years have proven me right. A series of articles suggested that Jack Goldsmith, in his role as the head of the Office of Legal Counsel, had in fact pushed back vigorously against John Yoo’s “torture memos,” forcing the Department to repudiate them. He’d done so in the face of enormous pressure, insisting that the administration could not make its stand on opinions that were legally erroneous. Others were disturbed by the opinions; Goldsmith did something about them—and immediately left government service.

As his forthcoming book makes clear, Goldsmith was and remains a conservative Republican. He and I differ both on the proper extent of government power in responding to terrorism and on legal issues relating to that power. His respect for the legal constraints on executive authority is partly tactical. He thinks that overreaching legal claims ultimately trigger a backlash that gives the President less effective power than coalition-building and greater legal caution would have. But he looks far more favorably on that power than I do.

Here, I would say, is why. Goldsmith is an honorable man and committed to the rule of law. That commitment led him to insist that the Office of Legal Counsel not claim that the President’s “inherent authority” trumps all, no matter how expedient it would be. If the government were composed solely of Jack Goldsmiths, we wouldn’t have anywhere near so much to fear from it. But it is not, and particularly not in the Bush administration. It has been filled instead with people for whom adherence to the rule of law is not a principle commanding much weight. The same considerations that make it necessary to insist on the primacy of law in dealing with them also counsel against changing the law to give them free rein.

This point, and Goldsmith’s stand, bring to mind that famous exchange from A Man for All Seasons:

Roper: So, now you’d give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws, from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

When Will People Realize?


I’ve found that the phrase “When will people realize …” usually signals that the rhetorical question to follow is so unbearably arrogant that one should just stop reading immediately. In a mere four words the questioner suggests: 1. “Everyone else is an idiot.” 2. “I alone know the truth.” 3. “You’ll all see that I’m right.” 4. “The only question is when.”

When will people realize that they shouldn’t use this phrase?

Bandbox I give it 3 stars


In most historical novels, excessive attention to period details is an annoying form of name-dropping. In this comic novel about a fashionable magazine in the Roaring Twenties, the excessive attention to period detail is a necessary part of the effect. How else to capture the dizzying feeling of riding at the very crest of the onrushing wave of the latest and greatest? Entertaining but not at all compelling.

Oh, and oh yes, way too much use of blackmail as a plot device.

The Burn


Ripped from today’s headlines comes the wildest trip of a mystery novel you’ll ever read.

The Burning Man Festival, held each summer on a remote salt flat in Nevada, brings together artists, radicals, technophiles, and madmen for a weeklong extravaganza of creative anarchy where half-ton robots rub elbows with wizards shooting firebolts. Each year, Burning Man ends with the ceremonial burning of The Man, a 40-foot-tall statue. Except this year. Someone torched The Man four days early.

For forensic software debugger Thom Takahashi, volunteering to help track down the arsonist was just part of Burning Man’s spirt of collaboration. Others were good at building things; they could remake The Man in time for the final night’s rituals. Thom was good at finding things, so why not pitch in? When a “conceptual artist” in red and black facepaint claiming to be the culprit turns herself in, Thom can’t shake the feeling that the clues point away from her, not towards her.

And then, when an affable roboticist is found hanging in his tent, an apparent suicide, Thom begins to realize he may be on the trail of something much bigger—and deadlier—than a mere arson. It could be mysterious government agents with a vendetta against Burning Man, or a group of medieval reenactors gone mad, or maybe hidden amongst the body modifications and costumes, there really are space aliens wandering around the playa.

Whoever’s behind it, Thom has only a few days to search the kinematic sculptures and homebrew robots to determine which of them is really an instrument of mass violence in disguise. As the desert sun beats down ferociously and a cocktail of unknown hallucinogens works its way through his system, he must race against time to distinguish reality from artifice and friend from freak. Because if he doesn’t, the next one to be burned might just be him.

Not available wherever books are sold.

Luciano Pavarotti, Was 71


Pavarotti, the most renowned opera singer of our day, is dead. Out of respect, I’m not going to tell the pizza joke. But, because I’m a horrible person, here are some Three Tenors puns:

If they hadn’t charged admission, they’d have been the Free Tenors.

If they’d been smaller, they’d have been the Wee Tenors.

If they’d sung on the slopes, they’d have been the Ski Tenors.

Soon I Will Be Invincible I give it 3 stars


Doctor Impossible is at it again; he’s broken out of prison and is trying to assemble yet another doomsday device. To make matters worse, CoreFire, that invincible do-gooder, is missing, and the other superheroes are starting to get nervous. Will the task of cracking the connection between these two events fall to Fatale, a cyborg of unknown black-ops origin and the newest member of the reformed Champions?

Austin Grossman’s Soon I Will Be Invincible both wants to be a genre novel and wants to be more than one. Any fool can tell a superhero story, I suppose (and many do), but Grossman is also trying to write a deconstruction of the superhero story, one that winks at the conventions and explores the emotional underpinnings of the archetypes. Watchmen nailed it; The Incredibles nailed it; Grossman almost nails it.

Doctor Impossible is just too appealing a character. The narration switches between him and Fatale in alternate chapters, and his are funnier and more effective. He has that supervillain arrogance, that supervillain wit, a history of hilariously over-the-top doomsday devices and assault blimps, and a backstory about being a picked-on, unpopular nerd. The trouble is that only towards the end does he feel at all like a villain. You root for him; you want his device to work, you want him to defeat the Champions, you want him to do everything up to but not including enslaving the world. When, in the big showdown, Grossman reasserts the narrative conventions of the genre to produce what ought to be a satisfying conclusion, it’s too late—the reader’s heart isn’t quite in the right place anymore.

I can see the reasoning behind every major decision that went into this novel. I can see why there’s a large and humorous pantheon of heroes and villains, all quite plausible: Psychic Prime, Kosmic Klaw, The Pharaoh, Damsel, Baron Ether. I can see why he turned the narration over to Doctor Impossible. I can see why he made this a novel about motivations: why do heroes and villains get up each day and battle each other? I can see why the novel has a recurring tone of wistful reflection on the classic exploits of yesteryear. And I can see why it ends with the twist it does. It’s just that when you put them all together, the result is a novel that’s neither quite a satisfying superhero story nor quite a satisfying satire of one.

Definitely worth reading if you appreciate the comic potential of regular digressions about the impracticality of proper sueprvillain attire, but not especially memorable.