The Laboratorium
October 2008

Spot the Unsupported Generalizations


Older games, like Super Mario, punish improvisation: you live or die according to their algebra alone. … Most video-game worlds, however well conceived, are essenceless. … Video-game characters tend to be emptily iconic. … something that few video-game characters had yet managed to be: disappointedly adult. … twilight—a lighting condition prized by cinematographers but comparatively neglected in video games. … Until very recently, almost no literature was devoted to game design, and what there was tended to be quickly made obsolete by the speed of technological developments.

—Tom Bissell, The Grammar of Fun, The New Yorker, Nov. 3, 2008

I understand that this is supposed to be an article about what makes Gears of War interesting, but the way to do that is to talk about what makes it interesting, not to have it chainsaw-bayonet its way through a field of alien-shaped straw men. The history of the theory and practice of video-game design is much, much richer than the reader of this article would be led to believe. For shame, New Yorker, for shame.

Author’s Guild Settlement Insta-Blogging


Google and the copyright owners suing it over Google Book Search have announced a proposed settlement. If you own a copyright in a book, congratulations: you’re about to be part of a complicated royalty-collecting system. The settlement draft is 141 pages long (not counting attachments A through M), and I’m still working my way through it, but I wanted to get up one very important first reaction:

This is a Google-only deal.

The result of the settlement will be to give Google a license to keep on doing what it’s doing, while allowing the authors to use their now-sharpened knives to sue anyone else who tries to do the same. At that point, of course, Google would be delighted for the authors to succeed, since it keeps the competition at bay. The settlement may also be bad for other search engines in another respect: the authors will claim that it undermines any claim of fair use in indexing books and making them searchable. Look, they’ll say, Google struck a deal to pay for its uses. That proves there’s a functioning market for these rights, and you should have to pay up, too. I happen to disagree, and this brings me to my second reaction:

You can’t strike a deal like this without court approval.

That matters, because even if this settlement is approved, there is still no functioning “market” for these uses of copyrighted works. The issue is that this is a class-action settlement requiring judicial approval to bind all authors. It’s practically impossible for anyone else to take advantage of Google’s terms without filing suit to obtain a similar class-binding order. Individual license negotiation — the route that Google considered and rejected when it started the project — is utterly infeasible. Since voluntary negotiation can’t produce the result one needs to do comprehensive indexing, there’s still no market for it, and this settlement therefore shouldn’t prejudice future fair use claims by search engines.

In addition, there’s an antitrust issue with the proposed settlement. Via the mechanism of class certification, Google has now negotiated a collective license with all authors. This can be read as price-fixing among the authors (who’ve agreed on royalty rates to charge Google) or as the practical equivalent of an exclusive-supply arrangement used by Google to exclude competitors. Again, the court’s role in approving a settlement binding on all authors makes both of these concerns more worrying. We’re witnessing the creation of a new ASCAP — and there’s a reason that the original lives under an antitrust consent decree.

It’s urgent that these concerns be placed in front of the court. I would argue that a necessary first step would be modifying the proposed settlement to offer any search engine equal ability to participate on the same terms as Google, with no prejudice to their ability to negotiate better terms if they can. Other modifications to prevent adverse fair use and antitrust consequences may also be necessary.


If teaching is a sacred trust, then perhaps your students are the life tenants and your scholarship the remainderman.

Sitting for a Test Is Not the Same Thing as Passing It


I’ve already been tested. … Look, I’ve been tested. They know I’ve been tested. … I’ve been tested many times. … I’ve been tested, my friend.

John McCain

And this is the writing that was written, MENE, MENE, TEKEL, UPHARSIN.

This is the interpretation of the thing: MENE; God hath numbered thy kingdom, and finished it.

TEKEL; Thou art weighed in the balances, and art found wanting.

PERES; Thy kingdom is divided, and given to the Medes and Persians.

—Daniel 5:25–28 (KJV)

Tony Hillerman, Was 83


We used to say that taking a wrong turn onto certain deserted rural roads at night was “like driving into a Tony Hillerman novel.”

McCain Ad Uses Obama Graphic Design


This showed up briefly on FiveThirtyEight the other day:

McCain Ad with the Obama O

Not only is this bad advertising (all the McCain people are doing is reinforcing the Obama brand identity), it’s also a potential legal problem. If that “speak out” button goes to a donation link, then the McCain people are using the distinctive Obama logo and design commercially, as trademarks. Under the circumstances, it’s pretty easy to make out an argument that some people are likely to click on the link thinking that it’s an Obama ad, and we should all go support his campaign to make sure that this election does turn out the way the 2004 election did. That’s consumer confusion, and trademark law doesn’t like it one bit.

I can’t say more without seeing where that button actually took people. This may not have been about money at all, in which case the free-speech defenses are much stronger. Still, that this ad ran at all, however briefly, is yet another sign of how oddly amateurish the McCain campaign has become. It really is like they just don’t have enough competent people to pay attention to everything, with the result that a lot boneheaded stuff makes it out the door. Contrast this with, say, the Obama camp’s astonishing typographical consistency.

When HTML Mail Attacks


Yesterday, I received an email about upcoming workplace harassment and discrimination training. The message itself was only about 2K of text, but the HTML styling swelled it by a factor of ten. Towards the end, thanks to an inopportune linebreak, the following HTML snippet was rendered as visible text:

color=black face=Arial>

Yet another reason why plain-text email is more respectful of diversity than styled email is.

Too Many Words, My Dear Mozart


“Support anti-piracy,” said the DVD. Oppose pro-piracy! Don’t not support the opposition to anti-unpiracy!


No, I’m sorry, that would be even better as The way of the train is perilous.


The way of the train is dangerous.


That was the first time I’ve ever needed to go up on the opposite curb to get into a parking space.

The Stack Grows


That’s a net of three pushes in the last week, and there are at least four more on the way.


There’s a short interview with me up on Worldchanging. I talk about open access to legal materials, which fits right into the site’s attitude of pragmatic optimism.


Well, that’s a new one on me. I just saw a gentleman texting while standing at a urinal.

iBeer Sues iPint


Hottrix LLC v. Molson Coors Brewing Co., No. CV08-06695 (C.D. Cal. complaint filed Oct. 10, 2008)

Yes, it’s a legal battle between two programs that let you pretend to drink a beer from your iPhone. From the complaint, it appears to be an all-too-common story. The defendants (Molson Coors and its subsidiaries and agents) saw iBeer and realized that it was a clever application that would fit into a great marketing campaign and approached its designer, Steve Sheraton, for a license. The negotiations broke down, so Molson went ahead and created iPint without one. Sheraton (by way of Hottrix, his LLC) responded by suing.

The big harm, from Sheraton’s point of view, is that his $2.99 app is being undercut by a free-to-download advergame. Harm, though, doesn’t automatically equal a cognizable cause of action. After watching this video of the two, I’m skeptical of the copyright infringement claim. iPint certainly copies the functionality of iBeer, but that strikes me as uncopyrightable idea, not copyrightable expression. There are also unfair competition and trade dress claims, both based on design similarities between the two apps, but as far as I can tell, the design features are being used to identify only themselves.

Leaving the merits aside, it’s a shame the parties couldn’t work this one out. Even if Molson didn’t need a license at all (as I think it probably didn’t), Sheraton—the world’s leading expert on programming applications that let you pretend to drink stuff on your iPhone—would have been great at writing them a custom one. Almost every hour of programmer time someone put into iPint was waste from a social point of view; a license would have avoided the duplicated effort. The possibility of working out win-win deals like this is a reason that Molson’s failed licensing negotiations shouldn’t count against it, even if courts sometimes suggest that they should.

xkcd Understates the Case for Piracy


Garden-variety downloading opens you up to civil liability, but it doesn’t make you a criminal. You’re only a criminal if you (a) infringe for profit, (b) infringe more than $1,000 worth over a 6-month period, or (c) put a pre-release copy online.

UPDATE: To be fair to the DRM-crackers, I should note that the criminal penalties there also don’t apply unless the circumvention was for profit.


If Halo 3 is accurate, then in the future, military contractors will still make redundant weapon systems the military doesn’t really need.

Our Bankrupt(cy) System


I’m surprised that I haven’t seen much discussion of the way in which the financial crisis is also a problem of the bankruptcy system. Recall that Treasury let Lehman fail because it was assumed that bankruptcy would do a reasonable, not-too-painfuul job of sorting out the claims. Oops.

I see at least two problems with the bankruptcy system here. First, there’s an institutional competence problem. It seems as though Lehman’s trip into bankruptcy court managed to destroy a whole lot of value very quickly, in a way that keeping it a going concern even a few days longer might not have. Preserving value for creditors, ur doin it wrong.

Second, there’s a serious secured-lending fiasco here, one whose story I suspect is only starting to be told. When it looks like a bank is about to rupture, bankruptcy is supposed to assure creditors that each will take a roughly equal haircut. Lots of assets are marked down, but none are supposed to be obliterated. Secured lending was supposed to make these results even more predictable; loan against collateral and you can feel safer that your buck won’t be broken too badly.

It now seems that neither of these reassurances is turning out to be true. In recent months, when a financial institution starts bleeding in the water, everyone doing business with it almost immediately goes into panic mode. Especially for things like short-term commercial paper, which ought to have been reasonably insulated from fancier instruments and longer-term investments like the now-infamous CDOs, this wasn’t supposed to happen. We were supposed to have counterparty risk under control, and I thought our bankruptcy system was supposed to be a big part of tamping that risk down. As the Lehman blowup shows, apparently not.

Do keep in mind that I’ve never studied any bankruptcy law. I may have crucial legal and financial facts wrong. But I’m still surprised not to hear more discussion of the role of the bankruptcy laws in all of this.

The Shab-al-Hiri Roach


The role-playing game that dares to ask, “Are you willing to swallow a soul-eating telepathic insect bent on destroying human civilization? No? Even if it will get you tenure?”

Beauty Algorithm is a Bust


The Times has a slideshow of faces fed through a beautification algorithm. But beauty really is in the eye of the beholder; I preferred five of the eight “before” photos.


The people in front of us in line today couldn’t stop talking about their diets. It was like they’d broken up with food but were still jealously in love with it.


If Facebook would like an easy, uncontroversial privacy win, it should stop sending out status updates when someone exits a relationship. News Feed announcements when someone changes status to “in a relationship” are fine (although it would be nice to ask the user whether it’s a new relationship or one they’re just now telling Facebook about). But I think it’s a pretty safe default assumption that anyone changing status to “single” doesn’t want to blast the news to their complete list of contacts.

Bertrand’s Paradox


I’ve been reading up on antitrust, and just came across Bertrand’s Paradox: that a market with two firms selling identical products will be competitive. It’s the starting point for trying to give a theory of cartels; you have to explain why the cartel members don’t fall into the trap of undercutting each other until they reach the competitive price. But as soon as I saw the name, I thought, Bertrand’s Paradox, isn’t that the one about the cartel consisting of all firms that aren’t part of a cartel?

(Bonus: There are actually three Bertrand’s Paradoxes, all named after the same guy. Not one is actually a paradox.)


No book containing the sentence “Distributional effects and equity concerns were directed toward protecting consumers from a redistribution of wealth from consumers to monopolists, and toward protecting competitors from predatory practices,” should be allowed to have the word “Understanding” in its title.

3:10 to Yuma I give it 4 stars


Don’t let the title fail to fool you; this movie has Christian Bale and Russell Crowe in it, but it’s also about the railroad (in the same way that Waiting for Godot both is and isn’t about Godot). Ben Wade steals from the railroad; Dan Evans is in danger of losing his farmstead because of it, until a Southern Pacific representative offers Evans $200 to help put Wade on that eponymous train to prison. Along the way, they’ll meet (and sometimes exchange gunfire with) a whole cross-section of railroad employees, from Chinese laborers to a terrified station agent. The whole movie is a subtle meditation on what the coming of the railroad means for the West and how it reshapes people’s lives.

My favorite line of the movie comes right after Evans has volunteered for the escort job, claiming he was the best shot in his regiment. The railroad man asks whether he fought for the North or the South. The North, says Evans. The railroad man waits a beat, then nods. “We’re Southern in name, but Chicago owned.”