The Laboratorium
September 2008

Good News?

John Palfrey & Urs Gasser, Born Digital: Understanding the First Generation of Digital Natives, p. 96:

The good news is that the more sophisticated the young person is about online life in general, the less likely he or she seems to be to trust other people online.

Gun Mute

A text adventure shoot-em-up. Really.

Freeways Without Futures

A top-ten list of useless brutalist highways, with suggestions for what to replace them with. I’ve had extensive personal (and painful) experiences with four of them.

Thomson Reuters: The Gang That Couldn’t Sue Straight

Thomson Reuters, makers of EndNote, don’t like the fact that Zotero is EndNote-compatible. Not only is going after such a useful, much-beloved tool a boneheaded P.R. move, the complaint also reveals what a thin legal case Thomson Reuters has. Some observations:

  • There’s a contractual claim for breach of the EndNote license agreement. But it’s an oddly attenuated argument. The theory is that GMU, where Zotero is developed, has an EndNote site license. Even if Thomson Reuters can make this argument stick, it does nothing to reach, oh, say, me, since I’m not an EndNote user and have agreed to nothing.
  • There are no copyright claims. Given that they filed in state court, it’s pretty clear they don’t intend to add any.
  • The obvious copyright argument wouldn’t fly, anyway. There’s nothing original about EndNote’s “proprietary” Output Styles, since they’re pretty much dictated by the style guides used by the individual publications.
  • $10,000,000 in annual damages? Ha! I’d love to know how they made up that number.
  • The complaint demands an injunction enjoining GMU from distributing Zotero and from “the willful and inappropriate use of Thomson’s registered trademark EndNote®.” This is where it finally hit me that this complaint was drafted by a duffer. To wit:
    • An injunction isn’t a contract remedy.
    • The complaint doesn’t include a trademark cause of action.
    • No documentation of the registration is attached to the complaint.
    • There’s not even an allegation in the complaint’s statement of facts that “EndNote” is actually registered with the USPTO. (It is; it’s No. 2,124,774.)
    • In any event, GMU’s use of “EndNote” is legal under trademark law as a nominative fair use, since it describes how Zotero is compatible with EndNote.

Bad move, Thomson Reuters. The only thing worse than being an overbearing bully is being a comically inept overbearing bully.

Update 2008-09-28: Michael Froomkin is on the case, pointing out the interesting issue of “the extent to which a contract by a firm with a (state) university can bind its professors.”

Can We Remix Remix?

I got my hands on an advance copy of Larry Lessig’s forthcoming book, Remix, today. I was a little surprised to read the following on its copyright page:

Copyright © Lawrence Lessig, 2008
All rights reserved

And then, a little further down:

Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, or otherwise) without the prior written permission of both the copyright owner and the above publisher of this book.

The scanning, uploading, and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage electronic piracy of copyrightable materials. Your support of the author’s rights is appreciated.

That seemed a little incongruous for a book on how not all copying is piracy, how important remixing is to our culture, and how “this war on our kids has got to stop.” It’s an odd bit of what Lessig would call “read-only” language to start a book that celebrates “read-write” culture. I was curious, so I flipped through the book’s front and back matter, and to my surprise, I couldn’t find any mention of a Creative Commons license. Again, odd for a man who sits on its board of directors and whose other four books are under CC licenses.

So, um, Larry, you’re going to put Remix online under a CC license, right? And the replacement of the CC license with a draconian copyright notice was a mistake, right? One that’ll be corrected in subsequent printings, right? Right?

UPDATE 2008-09-28: Larry himself (or an imitator who knows his email address) replies. Sounds like my worries were premature.

Proudhon Meets Bentham

“Property is simple theft; intellectual property is rhetorical theft—theft upon stilts.”

Some Fun with Likelihood of Confusion

First, a questionable business name:

Linen & Things 2

Next, what could be a classic/descriptive fair use seriously undermined by its trade dress:

The 300 Spartans


I saw this sign on Monday, right after the OneWebDay events:

Filming in Progress

Do you figure it’s enforceable? I doubt it.

John Le Carré, The Madness of Spies, The New Yorker, Sept. 29, 2008, at 32:

I carried my first 9-mm. automatic Browning when I was just twenty years old. I was a National Service second lieutenant in the Intelligence Corps in Austria. It was my first clandestine mission, and I was in heaven. The year, I think, was 1952, and I was stationed in Graz, the hub of the British Occupied Zone in the early cold war years. The gun was loaded. On the advice of the Air Intelligence Officer, or A.I.O., in charge of the operation, I wore it jammed into my waistband against my left hip with the butt foremost, allowing for an easy draw across the body. Over it, I wore a green loden coat, borrowed under a pretext from one of our Field Security drivers, and, for additional cover, a fetching green Tyrolean hat, bought at personal expense. Such was my disguise of choice for a top-secret night trip through sparsely populated countryside to Austria’s border with Communist Czechoslovakia.

The genius of this passage is that there is no paragraph break before “The gun was loaded.”

Jersey City, 2:57 AM

Why is it legal to sell car alarms that sound for more than five minutes?

A Dozen Immortal Emperors Jostling for Position

Charles Mann, 1491, pp. 98-99:

Because the Inka [the Inkan emperor] was believed to be an immortal deity, his mummy was treated, logically enough, as if it were still living. Soon after arriving in Qosqo, Pizarro’s companion Miguel de Estete saw a parade of defunct emperors. They were brought out on litters, “seated on their thrones and surrounded by pages and women with flywhisks in their hands, who ministered to them with as much respect as if they had been alive.”

Because the royal mummies were not considered dead, their successors obviously could not inherit their wealth. Each Inka’s panaqa [court and its descendants] retained all of his possessions forever, including his palaces, residences, and shrines; all of his remaining clothes, eating utensils, fingernail parings, and hair clippings; and the tribute from the land he had conquered. In consequences, as Pedro Pizarro realized, “The greater part of the people, treasure, expenses, and vices [in Tawatinsuyu] were under the control of the dead.” The mummies spoke through female mediums who represented the panaqa’s surviving courtiers or their descendants. With almost a dozen immortal emperors jostling for position, high-level Inka society was characterized by ramose political intrigue of a scale that would have delighted the Medici. Emblematically, Wayna Qhapaq [the eleventh Inka] could not construct his own villa on Awkaypata—his undead ancestors had used up all the available space. Inka society had a serious mummy problem.

After smallpox wiped out much of the political elite, each panaqa tried to move into the vacuum, stoking the passions of the civil war. Different mummies at different times backed different claimants to the Inka throne. After Atawallpa’s victory, his panaqa took the mummy of Thupa Inka [the tenth Inka’s] from its palace and burned it outside Qosqo—burned it alive, so to speak. And later Atawallpa instructed his men to seize the gold for his ransom as much as possible from the possessions of another enemy panaqa, that of Pachacuti’s [the ninth Inka’s] mummy.

What makes this passage work so well is the literary device of treating the mummies as alive and meddling in Inkan politics. By taking Inka beliefs at face value, Mann is able to write a fairly direct account of the power struggles. Yes, it was “really” the Inka running each panaqa engaging in the politicking, and Mann says as much. Still, the institutional superstructure built up around the cultural practice of treating the mummies as alive made the panaqa politics often indistinguishable from the politics that would have obtained if there really were “a dozen immortal emperors jostling for position.” Taking that phrase literally would make for a great science fiction novel (and quite possibly has).

One way of looking at what’s going on on Wall Street is that it’s a hostage drama. The banks have bound themselves so firmly to the national economy that if they fall, we all do. Mixed in with all of the crocodile tears and the genuine pleas of desperation, there’s just a hint of smugness: That was a nice trick we pulled on you, wasn’t it?

Kieran Long, Venice architecture biennale is like nerds talking about sex:

When I see Patrik Schumacher (business partner and factotum of Zaha Hadid) speak about architecture, I get very sad for him. He looks like a member of Kraftwerk trapped in one of those kidnap videos released by organisations with names like Swords of the Righteousness Brigade. ‘Parametricism is the great new style after Modernism,’ he says in a talking head film in the main exhibition of this year’s Venice architecture biennale. He looks as though someone is pointing a Kalashnikov at his kneecap just out of shot.

(Via MeFi.)

Twinkie, Deconstructed I give it 3 stars

Entertainingly written, but after a while, the descriptions of the machines that process raw food ingredients all start to blend into each other. This could have been a much better book if it were just a little bit more rigorous about the chemistry.

Anathem I give it 4 stars

This is a big book, filled with extended philosophical dialogues that are essential to the adventure aspects of its plot, and there are a number of mysteries that give the whole thing its zing. If you know any more than that going in, you’ll miss out. Much of the fun is in not knowing where things are going, and immersing yourself in the habits of mind of the characters.

The book comes with a timeline at the start. Don’t read it. There’s a glossary at the end. Don’t refer to it. There are plenty of reviews online. Don’t read them. If you like Stephensonian fiction, buy it and try to puzzle things out along with the characters: by using your capacities for imagination and reason.

Attention, scholars. Even if all you care about is scholarship, you should still insist that your colleagues be good teachers. People who waste their students’ time in class will also waste your time at conferences.

Sigur Rós’s Audience at the United Palace I give it 2 stars

They couldn’t sing in tune, clap on time, or show proper respect for the opening act.

Sigur Rós at the United Palace I give it 4 stars

Their music comes from a fascinatingly alien aesthetic; it’s even stranger and more eerily beautiful live.

Maybe we should start referring to a “right” to national security. If we did, maybe it would be subject to the same balancing process that all our other rights seem to be when the concept is invoked. I had thought that that “rights” were the things that weren’t allowed to be balanced away into irrelevance, but apparently I had that backwards.

What’s Wrong with This Picture, Descriptiveness Edition

From Joe Sharkey Essay - Internet in the Sky - Surf but Don’t Make Phone Calls -

Amtrak trains have a designed Quiet Car — the rail service has registered the term as a service mark — in which cellphone use is banned, as is loud talking. Virginia Railway Express, a commuter line in the Washington area, also has well-marked quiet cars, with published rules on how to use them.

David Foster Wallace, Was 46. Apparently, that obsessive bleakness ran deeper than I realized.

In Blade Runner, why does Harrison Ford’s apartment have what appear to be West Reporter volumes in it?

And Awaaaay We Go

All set. We’re live with the new design.

The main feature of the design is that I’ve merged the sideblog into the main blog. The archives are still there, but from now on, I’ll be posting link-posts to the main column. I’ll also be posting short, Twitter-like title-less posts, some of which you’ve probably seen already. By popular demand, comments are open even on the short posts.

Along with the reformatting, there’s a visual refresh. In a first for the Lab, there’s now an image as part of the site design. (I’ve had occasional pictures in posts, and there was a brief phase when I had photos on the front page, but they were never integrated into the overall color scheme or other design.) That guy in the upper-left is a jellyfish; I took the photo at the Vancouver Aquarium.

The layout isn’t strictly a grid-based layout, but it does use some best-practices of CSS grid designs. You should find that the page scales up and down proportionally if you change font sizes. This is going to look better on Macs and in standards-compliant browsers, but it shouldn’t look awful in anything. Let me know if there are glitches or ugliness, and I’ll see what I can do about fixing it.

Brace Yourselves

I’m in the process of launching a redesign. Things are going to be unstable for a little bit … please bear with me.

I used to think that the mass protest over the privacy consequences of News Feed really meant something. The mass protest over the Facebook homepage redesign sure takes the wind out of those sails.

Is it just me, or was today’s Apple event the most underwhelming in years?

Henry Smith to Harvard

If this goes much further, Yale Law School degrees are going to need a federal bailout. The fundamentals are still good, but their speculation value is tanking.

Please also excuse this one.

They Only Need to Be Good on Average

I like to think that I have good statistical horse sense, but that’s no substitute for knowing the subject properly. I’m seeking suggestions on good statistics texts. Longtime readers know that I’m not afraid of math, but in this case, I’m not especially interested in reading proofs of the most general case or derivations of the closest bounds possible. Instead, I’d like to learn:

  • Essential theory and notation of random variables and distributions with a reasonable degree of rigor.
  • The most significant distributions in a statistician’s toolkit, with good coverage of their distinguishing properties.
  • A well-explained treatment of statistical inference that discusses choice among tests of significant and necessary assumptions.
  • Some queueing theory, with an emphasis on the decisions that inform one’s choice of model.
  • Across all of the above, a satisfyingly elegant treatment of the common mathematical techniques that statisticians use when trying to understand the world, predict outcomes, simplify messy calculations, and minimize error terms.

I could go to the library and start pulling, or go online and read lots of reviews, but I figure that the readership here may have some better suggestions of particularly nice books on these topics.

The Evidentiary Basis of Wikipedia

In a recent immigration case, the 8th Circuit criticized an immigration judge for relying on Wikipedia in making factual findings. This has spurred a flurry of wrongheaded posts on lawprof blogs, all falling into the trap of claiming that it’s always wrong to cite Wikipedia.

The first issue they miss is that there’s a world of difference between citing Wikipedia as an authority on a matter of law, versus citing it to establish a fact. For legal questions, Wikipedia currently is always wrong; legal authority comes from certain kinds of sources—principally statutes, regulations, and case precedents—and Wikipedia simply has not the authority. It might someday become a respectable secondary source the way that law review articles and treatises can be, but it won’t displace the primary sources themselves.

Things are different on matters of fact. Here, Wikipedia is like any other source that makes claims about the world. It might be right, it might be wrong, and everything else is about assessing its reliability in context. There’s no point in having a categorical rule here; if Wikipedia really is the best source on a point, go ahead and cite to it. Sometimes (indeed often) it may not be the best source, but the reasons people use to argue that it isn’t are the wrong ones.

In evidence terms, for example, the problem can’t purely be one of reliability. As a practical matter, Wikipedia is often right, and seems to be becoming more so over time. It’s also often wrong, but so too are newspapers and other traditional sources. Ultimately this is an empirical question, and plenty of people who dismiss Wikipedia don’t back up their assertions of unreliability with actual evidence of it.

The problem also isn’t one of foundation. People like to point out that “anyone can edit” Wikipedia and that it comes with all sorts of grave disclaimers. They then smile confidently, as though this proved their case that Wikipedia can’t be trusted. But if we start to ask hard questions about the process by which a Wikipedia article is constructed, we should in fairness ask the same hard questions about newspaper articles, entries in other encyclopedias, legal treatises updated every year by students, government reports, and so on. Every document is open to epistemological and sociological inquiry; no document cited for the truth of the matters it asserts is free from all doubt. Wikipedia’s disclaimers simply show it being honest about some of the subjectivity and contingency that haunt all human knowledge-production.

No, the evidentiary reason not to cite Wikipedia is one that’s rarely mentioned: best evidence. There’s almost always a better source to cite. The “no original research” policy comes into play here; Wikipedia strives to present only information that can be found and confirmed elsewhere. Whatever that “elsewhere” is, one generally ought to find it and cite it. Wikipedia’s extensive citations and external references strive to make this process easier; Wikipedia is often the starting point of a good research session, but is rarely the end of one. A rule against citing Wikipedia typically forces writers into seeking out these better sources, and thus it serves the same function as the preference in evidence law for the original document over copies of it.

Of course, the true reason practitioners and students shouldn’t cite Wikipedia is much less noble. Older judges, professors, and lawyers who don’t understand Wikipedia, who subscribe to various fallacies about it, or who may not even have heard of it won’t look kindly on those who do cite it. When you’re at the bottom of the hierarchy, you play by the rules set by those above you, even if the reasoning behind them is shaky. Law is a conservative profession and part of our job as professors is to warn our students about this fact, and warn them well. So don’t cite Wikipedia, kids; you may be right, but they’ll still make fun of you.

Two Unconventional Thoughts on Copyright

These points are hardly original. But I don’t think they’re conventional, either.

First, I don’t feel any significant voids in my media universe, even in those media people like to make fun of as wastelands. There’s more good music available to me than I’m able to listen to, more good books than I can read, more good movies than I can see, more good games than I can play, and so on. Note that this is true also of TV, even though I don’t watch any. From my perspective as a consumer, the system is not broken.

Second, I’m engaging in pretty extensive speculative intertemporal speculation in my music consumption. Prices for music have been dropping so rapidly that extrapolation suggests that it will become free or almost free within a decade. Faced with that fact, why buy music now? (And note that illegal downloading counts as buying at a randomly-set price that may be zero or may be quite high, and thus has non-zero expectation.) I buy some, but nowhere near as much as I would have a decade ago if I’d had full-time income then. I suspect I’m not alone, and this can’t be helping music sales. As with banks, the expectation that a copyright-based industry is on the brink of failure may be self-fulfilling.

Seto on the Taxation of Virtual Worlds

Theodore P. Seto (Loyola Law School - Los Angeles) has posted When Is a Game Only a Game?: The Taxation of Virtual Worlds to SSRN.

This article proposes a bright-line test, at least with respect to the taxation of cash method taxpayers, for distinguishing between these two types of worlds. Transactions in worlds whose currencies are redeemable or convertible, it argues, should be subject to current taxation under standard cash method timing rules, applied in-world. Transactions in worlds whose currencies are neither redeemable nor convertible, by contrast, should not be currently taxable.

I’m not fully convinced by Seto’s reinterpretation of the realization requirement, but his functional analysis of virtual property and his distinction between cash-method and accrual-method taxpayers are sharp and well-argued. This is both one of the better virtual worlds papers and one of the better tax papers I have read recently. The whole thing sparkles with cleverness.