The Laboratorium
December 2007

Hoisted from Brad DeLong’s Comments: Kate G. on Ron Paul


Politics is like a game of telephone combined with a nigerian internet scam, for some people. They are always willing to believe a half understood rumor of great riches (or a noble post political candidate) more than they are willing to do their own homework and study up on the candidates actual history and policy proposals.

the original, and Brad’s hoist

Yahoo! Patents Drag-and-Drop?


If they get their way, some variations of drag-and-drop, at least. The EFF’s Jason Schultz noticed that Yahoo has a pending patent application for “Smart drag-and-drop.” He picked it up on Peer-to-Patent site, which invites the public in to provide feedback and prior art on pending patent applications, with the hope of separating the worthwhile sheep from the unpatentable goats. Those of us concerned about goat patents hope that Peer-to-Patent, by adding the public’s knowledge to the Patent Office’s more limited resources, will help keep overly broad claims from getting through.

Yahoo!’s “Smart drag-and-drop” application has a page up at the Peer-to-Patent site, but so far it hasn’t gotten a lot of close attention. Perhaps I can help out a bit. Here’s a claim-by-claim breakdown of just what Yahoo! has “invented.” I’ll divide important groups of claims with horizontal lines like this one:


Claim 1

A computer-implemented method for manipulating objects in a user interface, comprising: providing the user interface including a first interface object operable to be selected and moved within the user interface; and in response to selection and movement of the first interface object in the user interface, presenting at least one additional interface object in the user interface in proximity of the first interface object, each additional interface object representing a drop target with which the first interface object may be associated.

The “computer-implemented method for manipulating objects in a user interface” is broad preamble. Ignore it. Similarly, ignore the “user interface” references in the body of the claim; that’s trivial, given everything else. With similar paring, I get the following structure:

  • providing … a first interface object [let’s call it the “payload”]
    • operable to be selected and moved …;
    • and in response to selection and movement of the [payload], presenting
  • at least one additional interface object [let’s call them “targets”]
    • in proximity of the [payload],
    • each [target] representing a drop target with which the [payload] may be associated

This isn’t quite just drag-and-drop. The first element here describes a draggable object, the payload; the second element describes drop targets you could “associate” the payload with. The targets are “presented” in response to dragging the payload, and “in proximity” of it. I think that association is a standard elements of most drag-and-drop schemes, and proximity is going to be satisfied by almost anything in a sensible place on the screen. “Presenting” is a more interesting term; the examples in the specification of the patent seem to suggest that it means something like showing—the target appears when you start dragging.

One other point. The application uses the phrase “drop target” to refer not to the actual interface items, but to underlying actions. Thus, the trash can icon is an “additional interface object,” whereas the actual code that deletes an item is the “drop target.”

The other 19 claims are inside the fold.

(Continued . . .)

Dysfunctional Fandom


Re: the idea that the web, email, blogs, myspace, and so forth will cause more and more music fans to have actual, meaningful interactions with the objects of their fandom, ala Jonathan Coulton:

People show a nearly limitless capacity to engage in dysfunctional relationships in their romantic lives. Why should we expect their relationships with musicians to be any different? Waiting forever for a band to take the stage has more than a little in common with being stood up for a date. For some people, being spat upon (literally or not) by their musical idols is part of the appeal.

The Beacon Problem, Put Another Way


An argument, in dialog form:


Ethan: I’d like to buy this copy of The Producers.
Blockbuster Clerk: Ah, the original. Good choice. That’ll be $14.99, and can I get your name for our records?
Ethan: John Doe.
Blockbuster Clerk: Thank you for your business, Mr. Doe.


Phone: Bbbbbring!
Ethan: Hello?
Joel: Ethan, you bastard! You told me you preferred the remake!
Ethan: I did, I mean, I do, I mean, wait, how did you find out?
Joel: It says you bought the original version on your Facebook page.
Ethan: What? How did Facebook find out?
Joel: I don’t know, loser. (Hangs up.)
Ethan: Philistine.


Ethan: Aha! What’s this in my Blockbuster bag?
Beacon: Hi! I’m a Facebook Beacon!
Ethan: A what?
Beacon: A Facebook Beacon! I communicate with Facebook headquarters so all you can keep all your friends up-to-date with your doings!
Ethan: I didn’t ask for a beacon, did I?
Beacon: No, that’s the great part. You don’t have to! Blockbuster put me in your bag with your movie.
Ethan: Why, those bastards!


Ethan: Why did you stick this … this thing in my bag with my movie?
Blockbuster Clerk: It’s a value-added service we provide for all our customers now.
Ethan: I didn’t ask you to!
Blockbuster Clerk: And we’re genuinely sorry about that, Mr. Doe.
Ethan: What did you just call me?
Blockbuster Clerk: I called you “Mr. Doe,” Mr. Doe.
Ethan: Then how did your stupid beacon know my name?
Blockbuster Clerk: It doesn’t, Mr. Doe. We only program our beacons with the names of the movies we sell. We take your privacy very seriously.
Ethan: Obviously.


Ethan: Okay, beacon thingo, how did you know about my Facebook account?
Beacon: Why that was easy! I was in your house, so I just used your telephone to call up the Facebook headquarters and told them where I was, and they figured out the rest.
Ethan: You told them where I live????
Beacon: No, no, no, sir. They already knew where you live; I just told them I was there, and that I had a wonderful, funny movie with me!
Ethan: Did I tell you could use my phone?
Beacon: Well, sir, I asked you for permission.
Ethan: I don’t remember that.
Beacon: It was right when we got home, and you went outside to walk the dog, and I’m afraid I may have been a bit quiet. But you didn’t object, so I assumed it was okay.
Ethan: Well, it wasn’t. Don’t do it again.
Beacon: I won’t, I promise.
Ethan: I’m glad that’s settled. I’d better call Joel and patch things up.


Ethan: Joel? It’s me, Ethan. Look, about that movie …
Joel: I don’t want to hear it. You also told me you couldn’t come to dinner at the steakhouse because you were a vegetarian.
Ethan: But …
Joel: And now, what I do I see on your recipes? Beef stew! Bacon omelets! Roast quail! You hypocritical slimeball! (hangs up)
Ethan: But … how did he know?
Beacon: Hi! I’m the Facebook Beacon! I keep track of your recipes so your friends know what yummy things are cooking at your house!
Ethan: Yah! I thought I got rid of you.
Beacon: No, that was the Blockbuster Facebook Beacon. I’m the Epicurious Facebook Beacon! Totally different. Much much better. Yummier.
Ethan: Can I tell you to go away, too?
Beacon: Sure. But if you strike me down, dozens of others will take my place. Ethan: Is there no way to tell all of you beacons to go away?
Beacon: Of course there is! Just say “no” when we ask you to use your phone. We always ask!
Ethan: Fat lot of good that did.


Facebook has since cleaned up its act on this one, but its history of Not Getting It on privacy matters makes me fear that the next Beacon Horror is just waiting to pounce.

Facebook and the VPPA: Uh-Oh


The Facebook Beacon story has been igniting privacy debates for a while, and has caused the company some serious embarrassment. I think it could cause them much worse.

Another member of a professorial mailing list I’m on asked whether Facebook may have violated the Video Privacy Protection Act of 1988. Nicknamed the “Bork Bill” (a newspaper published his video rental records during his confirmation hearings), the VPPA protects your privacy in the videos you rent and buy. Well, guess what? One of Facebook’s Beacon partners was Blockbuster, so some of the items that wound up in people’s news feeds were the names of videos they’d bought. Oops.

I dug a bit into the legalities of the issue, and this is roughly what I came up with: Facebook and Blockbuster should hunker down and prepare for the lawsuits. Their recent move to allowing a global opt-out may cut them off from accruing further liability, but there’s probably an overhang of damages facing them from their past mistakes. I should note that this isn’t my usual area of law, so salt the analysis appropriately. Caselaw on the VPPA is thin, but there might be other rules of information privacy law out there that would significantly change the bottom line. That said, let us begin.

The VPPA states:

A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable… .

18 U.S.C. § 2710(b)(1). The important first question is who’s a “video tape service provider.” That’s defined in paragraph (a)(4):

[T]he term “video tape service provider” means any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials … .

Thus, it’s fairly clear that Blockbuster is a “video tape service provider” but Facebook and its users aren’t. There are also a pair of important legal principles that could make things much dicier for Blockbuster.

  • If the disclosures by Facebook or a user are involuntary, then torts law ordinarily puts the liability on whoever set the unfortunate process in train. It’s like persuading a six-year-old to commit fraud for you, or grabbing a pirate’s sword arm and forcing him to slice someone with his cutlass. As we’ll see, this could make Blockbuster liable for disclosures technically made by its customers.
  • If Facebook and Blockbuster agreed to act in concert to do something, then doctrines of principal-and-agent and joint enterprise often allow their actions and motives to be attributed to each other. That would let things done by Facebook be counted as having been done by Blockbuster, possibly making Blockbuster liable for disclosures technically made by Facebook.

With these rules in mind, let’s look at the facts to see if there were any relevant disclosures of personally identifiable information. The typical sequence of relevant information flows in the days before a global opt-out went something like this:

  1. Ethan visits Blockbuster and clicks to buy The Producers.
  2. Ethan’s click causes some functions (written by Facebook, sent to Ethan by Blockbuster) to execute in Ethan’s browser.
  3. Those functions create an “iframe” (a kind of sub-page) within the Blockbuster page on Ethan’s browser.
  4. The iframe communicates with Facebook, telling it that the currently-logged-in user (Ethan) has just bought The Producers.
  5. The iframe tosses a pop-up window; if Ethan clicks “no” in the pop-up, the dance stops here.
  6. Joel, who is on Ethan’s friends list, sees that Ethan bought The Producers.

There are two possible sources of VPPA trouble here . First, in step (4) when Facebook found out that Ethan had purchase The Producers, that might have been a disclosure either by Ethan or by Blockbuster. Second, in step (6) when Ethan’s friends found out that he’d bought it, that might have been a disclosure by Ethan or by Facebook.

Let’s start with the disclosure to Facebook (step (4)). Blockbuster looks like it has a strong argument here that Ethan was the discloser, not it. After all, it was Ethan’s browser that told Facebook what he’d rented, not Blockbuster’s web site. Since Ethan isn’t a video tape service provider, that’s the end of the story.

I don’t think that argument works, though, because Ethan’s disclosure to Facebook is pretty much a textbook example of an involuntary act. Yes, Ethan’s browser did the heavy lifting. But it did so because Blockbuster included some HTML on its page. Ethan didn’t parse the javascript and load the iframe himself, and if he was like me, he probably didn’t even realize that Blockbuster could get his browser to give Facebook that combination of information. (The trick works because the iframe both has some info that Blockbuster gave it and “belongs” to Facebook and can therefore access Ethan’s Facebook account. Awful clever, ain’t it?) Ethan’s browser was acting as Blockbuster’s agent, not Ethan’s.

Once we have that first disclosure, the disclosure by Facebook (step (6)) is easier. Facebook is acting in concert with Blockbuster, which is under a duty not to disclose. On principal-and-agent reasoning, Blockbuster effectively made those disclosures, and is therefore liable for them.

(I’m not sure you could get this result on your own if you looked just at step (6). The reasons are a bit subtle. Yes, it looks as though Blockbuster and Facebook are engaged in a scheme to reveal PII, but you need to be careful about the source of that PII. If Ethan had used the Movies app to tell Facebook voluntarily that he liked The Producers (which, purely incidentally, he bought online from Blockbuster), I don’t think Blockbuster has a duty to keep that fact from disclosure. A critical nexus has been sundered. That’s why we need to look at step (4)—to see whether it sunders the nexus between the purchase and information about that purchase. I think that the way Beacon operates means that the nexus is still intact; if you disagree with me about my characterization of step (4), you’ll think that Facebook takes the information free and clear, and owes no duty to anyone, even if Blockbuster is involved. There are some further legal complexities here that involve some very precise statutory reading, but I’ll omit them so as not to get into a digression from a digression.)

So that’s an affirmative case for some serious liability. Blockbuster could try to interpose a few defenses. I don’t think any of them work, but they’re worth discussing.

First, Beacon successfully identifies Ethan here even if he buys the movie from Blockbuster under a false name. The critical step is that the same person both buys the movie and is logged into Facebook. Thus, there will be some scenarios in which Blockbuster causes Ethan to be identified without itself having had any knowledge of his identity. In those cases, it seems hard to frame an argument that you can “disclose” something you never knew. Nonetheless, given the statutory definition of PII (“includes information which identifies a person as having requested or obtained specific video materials”), Blockbuster can “identif[y]” Ethan as having bought The Producers whether it knows who he is on Facebook or not. It provides to Facebook information sufficient to say that Mr. X bought a movie, and Facebook knows who Mr. X is.

Second, Blockbuster could argue that its step-(4) disclosure is “to the consumer” and thus allowed under subparagraph (b)(2)(A) of the VPPA. That works as to the information flows in steps (1) and (2), in which Blockbuster tells Ethan’s browser some things, but it doesn’t work as to the information flow in step (4). Facebook is not the “consumer” no matter how hard you stretch and strain. It also doesn’t work in step (6); if you think of the other users as the “consumer,” you’ve pretty much completely eviscerated the VPPA.

Third, there’s the whole can of worms around the temporary pop-up that Facebook showed to let users opt-out of sharing details. Each site using Beacon used to show users a pop-up letting them avoid having the transaction listed. Subparagraph (b)(2)(B) allows disclosure with “the informed, written consent of the consumer given at the time the disclosure is sought.” Those pop-ups failed that test in multiple ways:

  • They vanished if the user did nothing for twenty seconds or so. You can pretty much guarantee that some users won’t see the pop-up at all. So much for “informed.”
  • It’s been revealed that if you’d ever clicked “remember me” on Facebook, it would remember you in spades. Even if you weren’t logged in, your Beacon transactions would still result in personally-identifying web requests hitting Facebook’s servers—regardless of any opt-out requests. So much for “consent.”
  • Regardless of what Facebook’s request for consent looked like, Blockbuster’s was pretty clearly defective—viz.: nonexistent. Indeed, by the time you see the pop-up, your browser has already sent the critical step-(4) request to Facebook. All that saying “no” does is to prevent step (6) from happening. Thus, on my reasoning above, the user can’t prevent the first and critical disclosure from happening. So much for “given at the time the disclosure is sought.”
  • Indeed, if my analysis of step (4) is correct, then Facebook’s current policy (failure to click on the pop-up constitutes refusal, not acceptance) is still defective. It’s too late at that point to keep Facebook from learning that you, yes you Ethan K—, bought The Producers. The violations might still be accumulating. Facebook’s only arguable out would be that the company’s servers aren’t a “person,” so there’s been no actionable disclosure. I need to think more on this angle, but I have my suspicions that it might be too slender a reed to support Facebook’s awesome weight.

So that’s Blockbuster. What about Facebook? There’s the joint enterprise theory; since Facebook and Blockbuster acted together, and Blockbuster is liable, so too is Facebook. There’s a split in the VPPA caselaw as to whether liability runs only against the video tape service provider, or can run also against the person who induced the disclosure. Those cases, though, typically involve police officers getting rental information without going through proper law enforcement channels (a search warrant, grand jury subpoena, or court order). I’m not sure quite how they’d apply here, where Facebook is more clearly acting in concert with Blockbuster to engage in further disclosures. My sense is that Facebook could win or could lose, depending on how the court chooses to interpret the VPPA. The risks are substantial.

Put this all together, and the legal situation looks a bit bleak for Facebook and Blockbuster. The VPPA provides damages of $2,500 per violation, plus punitive damages and attorneys’ fees. I have no idea how many movies wound up in people’s news feeds, but it doesn’t have to be too many for the total to hurt. Class action lawyers, start your engines.


Addendum 2007-12-11: There’s an interesting discussion over at Concurring Opinions of the “marketing exception” of subparagraph (b)(2)(D). That exception allows disclosures of the genres of movies you rent, if there’s a “clear and conspicuous” opt-out, and “for the exclusive use of marketing goods and services directly to the consumer.” The exception fails in at least three (!) ways:

  • “Clear and conspicuous” opt-out? I don’t think so, not if the opt-out pop-up disappears on you.
  • Beacon showed actual titles, not just genres.
  • Marketing to the consumer’s friends is different from marketing “to the consumer.”

Addendum 2007-12-11: heebner, in comments, raises the issue of whether Facebook is a “person.” It is. The definitions section (18 U.S.C. § 2711) for the chapter of the U.S. Code that includes the VPPA (18 U.S.C. ch. 121) includes a bunch of definitions from another definitions section (18 U.S.C. § 2510), including one that defines “person” as:

any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.

My apologies for previously making that issue seem harder than it is, and thanks to heebner and Mike Malone for bringing it up.

Young Frankenstein I give it 3 stars


Not, perhaps, memorable, but definitely much better than the reviews would have it. Most of the memorable jokes from the movie are there, along with some perfectly entertaining songs. Christopher Fitzgerald, channeling Marty Feldman, is a particularly good Igor.

The Hoax I give it 4 stars


I usually find Richard Gere smarmy, but I have to admit that when he’s on, he’s awfully good. In The Hoax, he’s on. Alfred Molina and Hope Davis also turn in great performances as believably flawed characters. The screenplay is sly, and the movie treats the audience as both intelligent and perceptive. The only thing that grated was the use of period footage and music, which was so obviously interspersed that it felt like clumsy scene-setting.

An Aside


Look, there’s an element of mockery in most internet memes. But Star Wars Kid and Numa Numa and Little Fatty are famous for the same reason that the Backstreet Boys cockatoo is: there’s a core of utterly unaffected joy to them. It’s infectious and people respond to it.

There’s a sense in which they’re true heroes for this reflexive media-saturated age, and their micro-cults of joy will endure long after the mean-spirited clips are forgotten. No matter how silly or snide the remix, Star Wars Kid’s unselfconsciousness gives him a real measure of dignity.

If at All Possible, Involve a Copyright


I’m at the Yale Reputation Economies conference, where Rebecca Tushnet just made a great point: that while both Star Wars Kid and the many people who made remixes of his video had reputational interests, the 600-pound reputational gorilla in the story is Lucasfilm, whose trademarks and copyrights are the “third term” in creator-site disputes. Far more than Star Wars Kid himself or his remixers, it’s Lucasfilm that gets to decide whether the videos are online or off. Thus far, it has forborne from doing anything.

This observation suggests a corollary:

If you’re going to do something potentially embarrassing, be sure to feature someone else’s IP prominently. That way, if things end badly—that is, on YouTube—there will at least be someone out there who might be able to get rid of the evidence.

This Post Is Not Not Safe For Work


Those crazy cats at Fark.com are trying to register the phrase “Not safe for work” as a trademark. The application claims they’ve been using the phrase since June 7, 2000, and they have a screenshot from later that summer to back it up. Back then, they’d add the phrase onto the end of their one-line posts:

An archive of nude images of women who have been on Star Trek. Not safe for work.

Not much has changed in the last seven years, except for the addition of some parentheses:

Hannah Montana has an older sister? (Not safe for work)

I’m awfully skeptical about this would-be registration. The most serious problem is that NOT SAFE FOR WORK is what trademark lawyers call “descriptive”—it tells you something about the goods or services it’s used on. That might seem at first glance like a good thing, but it isn’t. U.S. trademark law specific provides that descriptive trademarks aren’t registrable.

The underlying theory is that descriptive phrases are so useful to merchants—in truthfully telling the public about their goods—that no one person should be able to lock up the phrase with a trademark. If you use a made-up word as your trademark for vacuum cleaners (e.g. FLOOMACIOUS), then no one else loses the use of a helpful word, because no other vacuum cleaner maker had any legimate need to call their vacuums floom-anything. On the other hand, if you were allowed to register a common, descriptive word as a trademark for your vacuum cleaner (e.g. SUCTION), then all your competitors would have a hard time telling the public about their own vacuum cleaners. “It’s got powerful vacuum-ness.” doesn’t have the same ring.

The descriptiveness problem with NOT SAFE FOR WORK is glaring. People who click on links described as NOT SAFE FOR WORK do so because those links aren’t safe for work. That’s descriptiveness. Indeed, NOT SAFE FOR WORK is likely “generic” for adult-oriented materials; it’s a phrase that consumers (in this case of NSFW material) use to identify the entire class of goods involved. Don’t give me that SFW garbage; give me some NSFW XXX action! Generic marks are never registrable. Ever.

Let’s have a look at the “class of goods” from the trademark application:

Entertainment Services namely providing a website featuring photographic, audio, video and prose presentations featuring comedic captions regarding current events and online discussions and/or reviews of web materials of an adult nature; Entertainment services, namely, providing a web site featuring musical performances, musical videos, related film clips, photographs, and other multimedia materials; Entertainment services, namely, providing on-line reviews of photogrpahs and /or web postings of an adult nature.

A close read of these categories will show that the NOT SAFE FOR WORK mark is supposedly being used not just on “postings of an adult nature” but also merely on “multimedia materials” with no mention of adultitutde. As to these SFW services, NOT SAFE FOR WORK isn’t descriptive. They’re not not safe for work. Trademark law catches that case, though, by calling them “deceptively misdescriptive.” A trademark that would be descriptive if only it were true is called “misdescriptive;” if consumers would actually believe the claim, it’s “deceptively misdescriptive,” and not registrable.

There is a potential way out, called “secondary meaning.” It’s possible to take a descriptive or deceptively misdescriptive trademark and register it by showing that consumers don’t actually think of the descriptive meaning when they see it, but instead think of your specific goods or services. If it really could show that consumers exposed to NOT SAFE FOR WORK immediately thought, “Ah, Fark!” then the trademark would be registrable. But you know what? That’s going to be some difficult proof of secondary meaning to make out. Did you think of Fark when you saw the title of this post? I didn’t think so.

There are a few other issues kicking about, but I don’t think they’re as serious. There’s a ban on registering “immoral … or scandalous matter” as trademarks. While plenty of NSFW material is both, the phrase “Not safe for work” itself probably isn’t either. It’s, if anything, a gesture in the direction of people’s sensibilities, and the population is generally unperturbed by the phrase.

There’s also a delay question. Fark didn’t register the mark in 2000; it’s trying to register it now. That’s not an automatic bar, the way it would be in patent law. Nor do you need a registration before you can start suing, the way you would in copyright law. Trademark rights are locally enforceable under state law as soon as you start using the trademark on your goods. Fark could try to sue other NOT SAFE FOR WORK purveyors under state law even if this registration is rejected. That said, waiting seven years may have hurt Fark’s case in another way; other people using the magic phrase in the interim will have acquired their own rights to keep on using it. (Of course, that’s assuming that the registration goes through, and that Fark would have had any rights at all under state law, both of which I doubt.)

It’s like a trademark exam question, it really is.

Logos Separated at Birth?


Onion Logo

Rapleaf Logo

The type is different, but the onion and the leaf are spiritual twins.

Automated Content Access Progress


Francis Cave from the ACAP project has posted a great response to my earlier post expressing concerns. The high-order bit is that “1.0” is a misnomer; ACAP is a work in progress, and the ACAP team is committed to refining the proposal in light of suggestions and critiques from those interested in its success. That’s all for the best.

Some more specific issues that Cave brings up that I have something more to say on:

Participation

The list of participants in the ACAP project includes a lot more publishers than search engines. Thus, it’s titled towards trying to express those things publishers would like to express, but without a corresponding sensitivity to what’s feasible for a search engine to do. (See, for example, Andy Oram’s critique of ACAP’s technical demands.) His group would have liked more input from the search side; I see the kinds of critiques Andy and I and others are now offering as a slightly belated substitute for the input the search engines wouldn’t or couldn’t provide.

REP

The ACAP team didn’t originally plan to use the Robot Exclusion Protocol at all, but then chose to implement their proposals as REP extensions

based upon the blindingly obvious fact that REP is the established way for content owners to communicate routinely with crawler operators, and it will be far easier for crawler operators to implement extensions to what they are already able to interpret in REP than to propose an entirely new protocol.
That’s right, and while the decision creates transition issues of one sort (as I discussed in my first post), it does also add transitions issues of a different sort. I stand by my best-practice recommendation:
[A]nyone writing an ACAP file [should] use ACAP-permissions-reference in their robots.txt to send all crawlers that speak ACAP to an external file that consists of pure ACAP.

What’s In, What’s Out

I made fun of the number of admittedly not-ready-for-prime-time “features” in ACAP 1.0. Now that I know that 1.0 isn’t really 1.0, I’m much more tolerant of having those features “in.” They can be discussed; implementers can articulate which of them work and which of them don’t. The lack of polish doesn’t bother me. Cave and I are entirely on the same page at this level: let’s talk about which features work and fix or replace the ones that don’t.

Dates and Times

Cave says that “just adopting standard ISO formats for date-times isn’t a total solution.” I’m curious to know why. Wouldn’t content owners want that level of specificity? And wouldn’t search engines want standard formats with standard parsers?

Interpretations by Prior Arrangement

This is a tough issue. Cave:

There are several examples in our proposals of forms of expression that search engines, unless they make a special arrangement with the content owner, would be bound to treat as “cloaking”.

That’s a good point, and I hadn’t realized it. I’d like to know more; perhaps there’s a way that honest content providers could establish that what they’re doing isn’t cloaking as defined today.

Cave again:

Maybe implementors on the receiving side would like us to divide our proposals more clearly into a core set of features that don’t involve such issues and a supplementary set that might. From a publisher perspective a number of what you might see as “non-core” features are quite fundamental to what they need to be able to communicate, so at this stage I don’t think it would be helpful to create such a separation.

I think implementors need a clean separation between features they’re expected to implement, and ones they aren’t. Certainly, if there are going to be any legal dimensions to ACAP—a place that lots of content owners want to go—a cleanly defined boundary is utterly essential. If publishers see a feature as “fundamental,” then either ACAP needs to be iterated until it expresses them cleanly and a fully-specified syntax, or the publishers need to wake up and understand why their “needs” are inconsistent with technical reality. I suspect the grab bag that is ACAP 1.0 includes examples of both feasible and infeasible “fundamentals.”

Used Resource Types

“Present” is the output of one of those committee processes; part of the cost of doing technical work in a group. The typos I noticed in the list of resource types have been corrected. Dropping “extract” simplifies a bit, but I would still suggest factoring the list along three dimensions:

  • What information is involved? You could use a resource in toto, use an excerpt from it, use an abstracted/condensed summary of it, and so on.
  • Where the used version is not the original itself, who is responsible for generating the used version? The search engine or the publisher?
  • How old should the used” version be? For example, there’s the version originally indexed, and there’s the current version on the publisher’s server.

I may be simplifying away essential complexity here—correct me if I am—but this seems like a cleaner, easier-to-understand taxonomy of used versions than the list in the current ACAP draft. I wouldn’t try to intermingle these questions in the same attribute or verb.

(Side question: what are the semantics of a statement that it’s permitted to display a thumbnail of a music file?)

Max-length

I proposed generalizing the max-length attribute, and yes, it was already on their to-do list. Yay.

Captain DeMorgan’s Theorem


After enough shots, ∨s look like ∧s and vice-versa.

An Apology for Policy


We law professors love policy questions. For many of us, they’re why we’re law professors. We care deeply about what the law ought to say, not just what it does say.

It’s harder to justify why we teach policy. Most of our students will be practicing lawyers. Even those who go into government are unlikely to go near the topic any given professor teaches. I may draw my students out in a discussion of the finer points of patent reform, but the skeptical among them will still ask what good an understanding of patent policy does for a zoning commissioner, a union negotiator, or a securities regulator. There’s an argument that we ought to save the grounding in policy for the few lawyers who need to deal with such rarified matters professionally.

I’ve found, however, three reasons why I expose all my students to policy arguments:

  1. Policy discussions in class serve a forcing function. You can’t engage with the policy question unless you’ve worked through the purely “legal” matters on which it depends. “Extract the rule from this case,” is a flat question; “evaluate the rule in this case” is an engaging one—and yet they both require the same first step.
  2. Some basic lawyering skills are impossible to master without a grounding in policy. Yes, you can object to prejudicial evidence without ever having thought about why there’s a rule excluding it. But your objection won’t be very persuasive.
  3. Not everyone needs to have an informed opinion on email privacy, but someone at every cocktail party should. Lawyers as a class are a good group to store this knowledge on behalf of society, and it’s good for them professionally and socially to have it.

All three of these justifications require some care. Not all policy issues are useful; not all policy questions are useful, either. I know from experience that a poorly thought-through policy question is worse than a waste of class time, because it confuses. But the good ones—the ones that hit these justifications squarely—are among the most effective tools in my teaching kit. They help students become better thinkers, better lawyers, and better citizens.

Addendum: There are also some bad reasons to bring policy into the law classroom.

  • Policy is easier than law.
  • Policy is harder than law.
  • Policy is more important than law.
  • Policy is more fun than law.
  • All law is just policy.

Super Mario Galaxy I give it 4 stars


The safest general characterization of the modern console gaming tradition is that it consists of a series of footnotes to Super Mario Bros. Of the dozen or so games to invent radically new possibilities for game space, three have had the phrase "Super Mario" in their name. Super Mario Galaxy will be the fourth.

Tevis Thompson's "close playing" of the original Super Mario Bros., "But Our Princess Is in Another Castle," got it right: Mario games are about jumping. That's the essential fun of playing Mario; jumping into and onto things, and especially squashing them. The Mario series is essentially a sequence of brilliant re-imaginings of how to embed Mario's jump into a spatial arena:

  • The original Super Mario Bros. was a side-scrolling platform game, with warp pipes and destroyable bricks providing a nonlinear topography for exploration.

  • Super Mario Bros. 3 extended this platforming in a second dimension: vertically, I hadn't thought it technically possible until I saw it. Mario's jump was now the launching point for a soaring, swooping flight.

  • Super Mario 64 again did the impossible: created a three-dimensioal platformer. The camera controls, the level design, and the overlapping sets of quests would all become models for many other games.

Super Mario Galaxy does something not just seemingly impossible, but previously almost unimaginable: puts Mario in space. He jumps from one tiny planetoid to another, in many cases running all around them: even upside-down, his feet firmly pointed inwards. Jump high enough, and he falls into a different planet's gravity well, flipping the right way as he drops. It's exhilarating, and the initial disorientation wears off within a few minutes. After that, you're jumping, slinging, sailing, and shooting from star to star.

Everything else is what you'd expect from a modern Mario game. Mario has to collect a bunch of stars, defeat a bunch of mini-bosses (mainly by jumping at just the right place and time, of course), and rescue the princess. There are hidden levels, cute enemies, and a difficulty level that ramps up from mild through insane (for those diehards aiming for 100% completion).

Nintendo's Yoshiaki Koizumi has discussed the development process for Super Mario Galaxy, and I'm not surprised that the hardest work involved thinking about how to make this new geometry work. They spent lots of time testing and refining the camera so it always shows a view that makes sense; they poured their hearts into crafting level segments that would take advantage of the news setting and the flexibility they had to create new gravities and shapes.

Some of my personal favorites:

  • Sections in which the direction of gravity regularly shifts by 90 or 180 degrees. Mario must make sure he's positioned near what's about to be a floor, even if it isn't one right now.

  • Spherical underwater levels, in which Mario must swim around inside a floating fishbowl.

  • Odd-shaped planetoids: toruses, corkscrews, conjoined cubes, and convex oddities. Every single one feels completely seamless.

  • Boss fights on spheres that involve projecting trajectories along great circles.

The game itself is good solid fun, but the vision behind it is inspiring.

Shaun of the Dead I give it 2 stars


No, Scott, we just didn’t enjoy it all that much. It starts slow; we came this close to fast-forwarding to the part with zombies. After that, we noticed the jokes more than we laughed at them.

Zombie Philosophy


We watched Shaun of the Dead last night. It wasn’t very good, but it raises some great philosophical issues. I’m not thinking about philosophical zombies; I’m thinking about the philosophy of zombies. What’s the difference?

The zombie argument is a standard, if rather strange, move in the philosophy of mind. A “zombie” (although shouldn’t the singular be “zomby?”) is physically identical to a human, and acts just like one, but has no conscious experience. This hypothetical is supposed to prove something about physicalism. (To me it’s just a bizarre way of pointing out that we don’t really understand the nature of subjective experience and never will.)

It should be clear that the zombies we see in movies (let’s call them “cinematic zombies”) are not philosophical zombies, since they’re quite clearly distinguishable from normal, non-undead humans by their shambling gait, hunger for brains, and moaning vocalizations, and variant neurology (which permits, for example, motor control of the legs even after the spinal column has been severed). It’s possible that some cinematic zombies are also philosophical zombies in the sense that they’re physically and behaviorally identical to normal cinematic zombies but lack whatever conscious experience cinematic zombies normally have. But there’s no more (or less) reason to think that J. Random Zombie is a philosophical zombie thank to think that J. Random Human is one.

Assuming, then, that cinematic zombies have conscious experiences (accordingly, I shall henceforth omit the adjective “cinematic”), the more interesting question is that of the subjective nature of zombiedom. What is it like to be a zombie? If we adopt the intentional stance, a zombie appears to have a desire to eat the brains of the living, the sensory ability to distinguish the living and the undead, and the motor control to shamble towards the living and surmount minor obstacles.

These characteristics are not trivial. We don’t have evidence for genuine use of language, for the use of tools, for rational or abstract thought, or for social organization, but we do have evidence for motivations and at least instincts. Emotions and subjective sensory experience are unknown. This puts zombies at a level with many animals, and leaves unresolved the resulting question of their moral status.

That’s unfortunate, because most zombie movies raise much deeper ethical problems than they realize. Most movies treat the killing of a zombie as justifiable self-defense, and under current law, it would appear to be. But is it really?

Consider: zombies come back from the dead. Yes, they come back as zombies, but don’t knock it unless you’re prepared to say that being a zombie is no better than being dead. (I think we don’t have the evidence to let us say that definitively.) And if being one of the undead approaches the experience of being one of the predead, we have some serious ethical headscratchers to deal with.

Zombies have a shot at practical immortality, until we annoying living humans (who don’t how great it is to be a zombie) come along and ruin it by chopping off their heads. If the zombie kills you, you get to live again as one of them. If you kill the zombie, it’s dead for good. If zombies have moral worth, then it’s not clear how that tradeoff ought to come out.

Perhaps the zombies are violating basic precepts of liberalism by trying to dictate how we should live, viz. as zombies. Thus, we’re entitled to defend our way of life by taking theirs. That argument may work, but it presupposes some deeper principles. Can zombies be said to have consented to a diverse human/zombie society? From behind the veil of ignorance, wouldn’t we chose to be zombies rather than to have the miserable experience of being humans desperately holed up until the zombies kill us all?

Let me close with an open-ended question. How would law be different if there were zombies? Some possibilities:

  • Having become a zombie in the interim is a defense to breach of contract.

  • Guillotine returns as preferred method for executions.

  • “Reasonable man” standard supplemented with “reasonable zombie” standard.

  • Zombies granted standing to contest their own wills.

Your ideas?