The Laboratorium
December 2008

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The Oubliette

Suppose, for sake of argument, that the Bush administration were right, and the courts couldn’t order that Chinese Muslim Uighhur detainees be released. Wouldn’t justice then demand that they be given ongoing compensation for the ongoing deprivation of their liberty? And wouldn’t a massive upgrade in their living conditions be a good start? Would mansions suffice?

I wonder how quickly the administration’s positions would change if the choice were between releasing the Uighurs into the U.S. and housing them commensurately with the harm it’s doing them.

There’s no plausible argument that it would threaten national security to treat them well, not now. I suspect we’d quickly find out whether the administration is really concerned about the threat these men pose, or whether it simply wishes to forget about them.

Proust Was a Neuroscientist I give it 2 stars

No, not really, but Jonah Lehrer is a hack.

Video Games Live I give it 3 stars

The music was good, but sometimes it was hard to see the orchestra over Tommy Tallarico’s ego.

Am I the only person equally horrified that Blagojevich has vowed to make a Senate appointment and that Senate Democrats have vowed to violate the Constitution to stop him?

Tropic Thunder I give it 1 star

In an ideal universe, Tropic Thunder would have starred Steve Carell in the Ben Stiller role, Philip Seymour Hoffman in the Jack Black role, and Tracy Morgan in the Brandon T. Jackson role. Also, Tom Stoppard would have written the screenplay and someone else, anyone, would have directed.

In our universe, this movie sucks.

Files Are for Sharing

Here’s a discussion question prompted by the recent news that the RIAA is dropping its lawsuit strategy in favor of having ISPs shut off Internet service to file-sharers:

Suppose the RIAA mistakenly tells your ISP that you’ve been file-sharing. Suppose your ISP kicks you off as a result. Can you now sue the RIAA for defamation or for tortious interference with contract?

Paul Graham (B.A., Cornell; M.S and Ph.D. Harvard) believes that credentials don’t matter.

Quartet for the End of a Bad Time

John Williams, film composer extraordinaire, is writing a quartet for the inauguration, but the instrumentation is a little unusual:

Then the new work by Mr. Williams will be played by a classical devotee’s fantasy quartet: Mr. Perlman on violin, Mr. Ma on cello, Gabriela Montero on piano and Anthony McGill on clarinet.

Hmm. Violin, cello, piano, and clarinet. I wonder whether that’s been done before?

UPDATE 2008-12-18 8:52 PM: I see that Alex Ross beat me to the punch. Here’s Alex Ross on Messiaen. Here’s Alex Ross on John Williams. Here’s the other Alex Ross on Obama.

The Legal System Tries to Understand Comic Books

Most of the cartoons depict the antics of a limited number of characters which plaintiff has, over a period of time, created and developed, and most of them include dialogue contained in “balloons” over each of the character’s heads, with occasional explanatory material in the margin. The series of cartoons, each of which is known as a “panel”, are drawn and arranged to form a narrative.

… Interestingly, none of those characters is represented as a human being, but most are members of an animal, or, in two cases, insect, species endowed with what would be considered human qualities. By virtue of the artistry of plaintiff’s employees, as well as the conceptual framework of the various copyrighted works, the various drawings of each character have a consistency that gives each character a recognizable image quite apart from the setting of the particular panel.

Walt Disney Productions v. Air Pirates, 345 F. Supp. 108, 109 (N.D. Cal. 1972)

The Hajj and Eid el-Adha

Plenty of arresting images in today’s Big Picture. The scale of the Hajj is breathtaking.

Overheard: “Why don’t you go on the 48-hour Hollywood diet for, like, a day?”

And We Are Live at the New Republic

James Grimmelmann, Total Information Awareness, The New Republic (online ed.), Dec 10, 2008:

You don’t need to be paranoid to come up with privacy threats involving the profiles the Obama campaign has assembled on its supporters. What if they gave your call records to the NSA? There are marketers out there who’d pay good money to know that you’re a 38-year-old suburbanite who’s concerned about the environment. And if Bill Ayers was at one of those Obama house parties you went to, your own run for President in 2024 is so toast. All of which raises an important question: Just what can they do with all that information?

It turns out that the Obama campaign’s use of the data is almost completely unregulated. The U.S. has no comprehensive privacy law, meaning that once your name is in a database somewhere, there’s basically nothing you can do about it. Indeed, many of the special-purpose privacy laws we do have—e.g., the do-not-call list, the CAN-SPAM Act, and California’s Online Privacy Protection Act—only apply to businesses, not political groups. The Obama campaign can share the contents of its databases with the DNC, or with Wal-Mart, or Hugo Chavez: anyone it chooses. …

Given the anything-goes legal landscape, should we be afraid of the ObamaBase? Actually, no. The Obama campaign has the means and the opportunity to violate your privacy—but it doesn’t have much of a motive. From a partisan political perspective, most of the things the Obama campaign could do to its supporters would be unmitigated disasters for the Obama 2012 effort.

Teacher Trouble

Many of the examples in my Facebook article involve students who misunderstood the privacy implications of social networks. They put information about themselves on Facebook and are then startled when administrators and employers come across it. Two recent cases about high-school English teachers illustrate that teachers also make the same kind of mistakes.

In Snyder v. Millersville University, No. 07-1660 (E.D. Pa. Dec. 3, 2008), the plaintiff, Stacey Snyder, was a student and a teacher, or, more precisely, a student teacher. She attended Millersville University and had a teaching placement at Conestoga Valley High school. Her trouble began when one of her students recognized a friend from a photo on her MySpace page:

Plaintiff testified that she confronted the student, informing her that it was “unacceptable to talk to [her] teacher’s friends and relatives outside of school basis.” Plaintiff testified it was “inappropriate” for her student to look at a teacher’s MySpace account because “there’s a boundary line and there’s personal information on there that [the student] should know not to look at as a student.” Plaintiff explained that although the student could properly have looked at the webpage of a personal acquaintance, it was improper to look at Plaintiff’s webpage because Plaintiff was “a person of a higher standard.”

What a beautiful example of how people assume that privacy norms protect to their online conduct. Tilt your head a bit to one side and Snyder’s intervention might even seem like a reasonable attempt to educate the student about the value of privacy. Dan Solove would approve. But would he approve of what Snyder did next? She posted a note on her MySpace page, saying:

First, Bree said that one of my students was on here looking at my page, which is fine. I have nothing to hide. I am over 21, and I don’t say anything that will hurt me (in the long run). Plus, I don’t think that they would stoop that low as to mess with my future. So, bring on the love! I figure a couple of students will actually send me a message when I am no longer their official teacher. They keep asking me why I won’t apply there. Do you think it would hurt me to tell them the real reason (or who the problem was)?

There was also a photo of Snyder in a pirate hat—hence the Smoking Gun coverage of the “Drunken Pirate” case—but it was the “or who the problem was” line that cost her her placement. Other teachers reading the post had no trouble figuring out that Snyder was talking about Nicole Reinking, the teacher she was being supervised by. The school excluded Snyder, and as a direct consequence, she couldn’t complete her degree requirements. Instead of the B.S. in Education she’d been working towards, Millersville gave her a B.A. in English.

The case isn’t legally very interesting. Snyder’s problem was that she didn’t sue Conestoga Valley High School, and pretty much couldn’t. They removed her for speech on a matter of private concern that affected the school’s educational mission. End of story. Instead, she sued Millersville University, on the theory that she was a student, and students have a First Amendment right to criticize their teachers. The court both dismissed that theory—holding that she was essentially a public employee for purposes of the placement—and pointed out that even if she was right, Millersville had no authority under state law to award her a B.S. in Education unless she’d completed a student-teaching placement.

Meanwhile, in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. Sept. 16, 2008), Jeffrey Spanierman taught at Emmett O’Brien High School in Ansonia. He had multiple MySpace profiles, including one by the name of “Mr. Spiderman.” The school discovered the profile and warned him that it was inappropriately chummy with students. He took it down, recreated it under the name “Apollo68” and reposted essentially the same content. After students complained about it again to the school, the school put him on administrative leave and then refused to renew his contract.

The case reads like a standard walk through public-employment law: there are procedural and substantive due process, equal protection, and first amendment retaliation claims, all of which fail. Once again, the court finds that his speech was almost entirely on matters of private concern. Here’s an example:

Byczko [a student]: “yo, hows it going sir? i figured i would leave a comment because i’m bored :)”

the Plaintiff: “Things are going well for me. Sorry that you are bored. I’ll see you tomorrow. If you ever call me sir again, you will be serving a detention sooooo long that your great grandchildren will have to finish it out. LOL”

Byczko: “hey, i think thats a threat, u and me might have to fight!!! SIR!!! lol, see ya tomorrow!”

the Plaintiff: “I would never threaten you. It’s a straight out promise. I’ll give you a choice you can serve detention until you’ve copied every page of every book in my room or you can stay from tomorrow until 11-22-3088”

And here’s another:

the Plaintiff: “Repko and Ashley sittin in a tree. K I S S I N G. 1st comes love then comes marriage. HA HA HA HA HA HA HA!!!!!!!!!!!!!!!!!!!!!!!! LOL”

repko: “dont be jealous cuase you cant get any lol :)”

the Plaintiff: “What makes you think I want any? I’m not jealous. I just like to have fun and goof on you guys. If you don’t like it. Kiss my brass! LMAO”

The court has no trouble concluding that the school acted reasonably when it decided that Spanierman was being disruptive towards the school’s educational mission. I’m sometimes troubled by the discretion schools have in making these decisions, but not here. Spanierman was no John Keating.

It’s interesting that the complaints here came from other students. I see their concerns as being in the same family as the privacy issues I’m writing about in the article. There’s a sense in which Spanierman’s creepy cameraderie is the same kind of boundary-violation as unwanted surveillance. Even if some students liked having a teacher they could relate to digitally, it’s easy to see how others could be weirded out by having a teacher in Their Space on such terms.

Joris Asks Questions Without Easy Answers

When I saw Joris van Hoboken last week, he asked two sly questions abut the Google Book Search settlement.

First, what about the used books market? How many used book sellers will go under when the every-book-on-demand platform is up and running? Bringing a zero-marginal-cost competitor into the used books market is not going to be good for anyone with a substantial inventory of printed books. Predatory pricing, anyone?

Second, what about the international angle? I parroted my usual line: this is a U.S.-only settlement, which leaves other countries to their own devices. Not so, Joris explained. Thanks to the Berne Convention, which prohibits formalities as a condition of copyright, essentially every copyright owner outside the U.S. is a member of the plaintiff class. That’s a lot of copyright owners. What shockwaves around the world should we expect as this realization sinks in?

H.M., Was 82

What a fitting way to end the obituary:

Henry Gustav Molaison, born on Feb. 26, 1926, left no survivors. He left a legacy in science that cannot be erased.

I Didn’t Think It Was That Cramped

Andy Battaglia et al., The [Onion] A.V. Club’s Preposterously Specific New York Gift Ideas (Dec. 4, 2008):

If part of the season’s true meaning stems from gaining an appreciation for one’s own good fortune, than what better gift than a guided tour of the Lower East Side Tenement Museum, a building restored to the cramped mid-19th-century conditions that once played home to nearly 7,000 immigrant families.

Yegor Gaidar, The Soviet Collapse: Grain and Oil:

The shortest quotation about the intellectual capacity of the Soviet leadership came from the Politburo minutes: “Mr. Zasiadko has stopped binge drinking. Resolution: nominate Mr. Zasiadko as a minister to Ukraine.”

A Good Face for Radio and a Good Voice for Mime

I’m on this week’s episode of NPR’s On the Media. They’re running a segment on the verdict in the MySpace suicide trial, and I’m the talking disembodied voice on web site terms of service. I got to visit the WNYC studios to tape the interview yesterday, and no, the staff don’t walk around carrying mugs and tote bags all day. They were, however, very generous in editing out many of the bits where I said something inarticulate, confusing, or just plain wrong.

Were the Authors Also Sleep-Deprived?

A recent report, Resident Duty Hours: Enhancing Sleep, Supervision, and Safety, released yesterday by the Institute of Medicine of the National Academies, has been getting a lot of press for its call to reduce the hours that medical residents work. It’s a worthy cause: sleep-deprived residents make serious mistakes, and in many cases, the 30+ hour shifts they work are a result of tradition, cost-cutting, and inefficient use of doctors’ time, rather than actual delivery of quality care and good education. But the IOM report makes recommendations so off-the-wall they could actually make sleep-deprivation problems worse.

Take the proposed rule prohibiting residents from working more than four consecutive night shifts. That sounds superficially like a great idea; how would you like to work four night shifts in a row? The problem here is that putting a resident on a long string of night shifts is actually one of the most merciful ways to hand them out. The reason a night shift probably sounds awful to you is that you’re used to being up during the day. The reason night shifts are hard on residents is the disruption of toggling between diurnal and nocturnal schedules. The resident who pulls night float for two weeks or a month gets a chance to adjust; the other residents get consistent daytime shifts. Everyone is more alert.

Similarly, the report’s proposal for five-hour naps mid-shift is just batty. Note that the naps are required to be scheduled between 10 PM and 8 AM. Under the current on-call system, residents working overnight can take naps between calls but remain on-duty; under the proposed one, when you’re on your five-hour nap, you’re off-limits. Ooookay, then, so who takes care of the patients while the resident is off napping? And keep in mind that waking up the napper to ask questions about a patient is strictly verboten.

You can see where this is going. The hospital now needs to bring someone else on-shift, in the middle of the night. So they’re messing up an additional doctor’s sleep schedule—and that doctor is almost certainly going to be another resident. What’s more, when Dr. Sleepyhead goes off for a nap, her patients need to be handed off to Dr. Backup; when she returns five hours later, Dr. Backup will be handing them back. That’s two breaks in the continuity of care—and continuity of care was supposed to be the whole bugbear justifying the long shift in the first place.

We could have a serious conversation about the lengths of residents’ shifts. If we did, we might say that the 12-hour shifts currently worked by doctors in emergency rooms provide high-quality care by alert residents. We might say that 14-hour shifts, or 16-hour, or 18-hour ones provide acceptable tradeoffs between resident alertness and continuity of care. We might even candidly admit that longer shifts are a necessary evil justified by the severe budget pressures hospitals operate under. But one thing we would not do, if we were being serious, is to pretend that a 30-hour shift can be made to work by plugging a nap into the middle of it. That “compromise” truly is a Solomonic one.

And that is why this report is not serious—indeed, it is such an unserious report that it makes one question the seriousness of the medical professionals whose names it bears. The report clings to a set of proposals that could be boiled down to “People should sleep at night, dammit!” The result, unfortunately, is to discredit the agenda it was meant to advance. The authors have a lot of penance to do; I’d recommend a month of 80-hour weeks. Naps or no naps.

Funny, You Sound Just Like Barack Obama

The headline—GOP Congresswoman Hangs Up on Obama—Twice—is good, but the actual story is even better and weirder:

Florida Rep. Ileana Ros-Lehtinen was told by an aide that Obama wanted to speak with her. According to a statement released by her office, the Republican congresswoman cut off the caller, telling him she thought “this is a joke from one of the South Florida radio stations known for these pranks.” She then hung up.

Obama’s future White House chief of staff, Rahm Emmanuel—a fellow congressman—then called her to let her know she’d actually been speaking with the future commander-in-chief. Ros-Lehtinen, convinced the call was another hoax, hung up on him, too.

Finally, an aide told Ros-Lehtinen she had an urgent call from Chairman Howard Berman, chairman of the Foreign Affairs Committee. Still suspicious, Ros-Lehtinen urged the California Democrat to recount a story only both of them would know.

Berman passed the test—and told her she had, in fact, hung up on President-elect Obama.

Ros-Lehtinen is Michael Froomkin’s awful representative.

Credit and Credits

There’s a great story making the rounds right now about how a Creative Commons-licensed photo of a NASA building made its way into Iron Man. The movie studio found the photo on Flickr and reached out to the photographer. Once he said “yes,” they photoshopped Robert Downey and Jeff Bridges into the image and used it prominently in the movie.

There’s something curious about the story, though:

“Ah, right!”, I said. I then launched into my usual spiel about Creative Commons licencing. I explained that she was free to use my picture. All she had to do was include a credit somewhere in her little movie.

“Well”, she said, “the thing is, getting your name in the credits usually costs at least $1,500. That’s why we need you sign the license release form I sent.”

Main title credits are heavily regulated by union contract rules, but I was unaware that closing credits were this restricted. And why $1500? Is it a contractual issue? A technical one? This whole part of the story is baffling.

I didn’t have a good answer when Chase emailed me to ask about it. I asked around on the email list for intellectual property law professors, and none of them had a good answer, either. Does anyone out there in blogland have any idea what was going on?

UPDATE 2008-12-06:

A number of professors with connections to the movie industry have written into say that they’re unaware of any union rules that would call for $1500 payments or of any other specific line items related to credits of this sort.

One old Hollywood hand ran some back-of-the-envelope math to suggest that the physical cost of producing all of the necessary film prints might actually go up by $1000 or so if adding a credit added a second to the running time. (That would be a sloooow credits crawl, though.)

Another speculation was that the studio might have needed to re-edit the closing credits had the photographer insisted on a credit. That sounds plausible, except that presumably the cost of re-editing the movie had he refused to back down would have been even greater.

Yet another common theme was the idea that there may have been some policy to limit the number of credits—e.g. an agreement among the producers not to hand out too many courtesy credits each—and that this policy filters its way down the chain of command as a “$1500 per credit” rule of thumb. That sounds possible, if not terribly satisfying. I continue to investigate.

Search Engines Love Tom the Dancing Bug

Tom the Dancing Bug is the weekly comic strip by Ruben Bolling, appearing in fine newspapers and websites around the world. People love the strip because of its insightful and hilarious social and political satire. Search engines love the strip because this paragraph contains the words mp3, iphone, webkinz, videos, american idol, ashton kutcher, grand theft auto.

Tilt-shift + time-lapse + monster trucks = awesome