The Laboratorium
March 2009

Maurice Jarre, Was 84

Few cinematic experiences can top the overture to Lawrence of Arabia. The overture.

Speaking Up on Book Search

I’m sorry for the recent silence here, but I’ve been busy. We—by which I mean myself, the IILP, and our excellent lawyers—have asked the court hearing the Google Book Search case to let us file a brief amicus curiae. Our brief will explain to the court why the case is all about the orphans:

The proposed settlement will have a profound effect on orphan works because the proposed class includes the owners of millions of orphan works. By virtue of their status as orphan works owners — a well-recognized and significant subclass of book copyright owners — they are unlikely to appear before this Court to opt out of or object to the proposed settlement. Google will therefore be explicitly authorized to make these works available to the public in ways that would be flagrant copyright violations were it not for the proposed settlement. This authorization will serve the public interest in greater accessibility to orphan works.

The proposed settlement’s effective inclusion of millions of orphan works will also have effects that threaten the public interest. Because potential competitors will be unable to make use of orphan works, Google will enjoy exclusive access to a large portion of the market for electronic versions of books. This exclusivity would result in a concentration of market power, thereby facilitating actions that violate the federal antitrust laws. It would also enable Google to impose unfair and overreaching terms on libraries and readers, particularly in ways that would threaten the free speech interest in private reading.

Here’s a copy of the full letter. Watch this space for further news.

EPIC, Citing Privacy Concerns, Asks FTC to Enjoin Google from Offering Google Docs

The best way to protect consumers from a service that occasionally doesn’t work correctly is to have the government order it turned off completely? Cut it out, EPIC; you’re not doing the privacy cause any good. If I lose access to my Google Docs because of this letter, I’ll know who to blame—and it won’t be Google.

Set the Juries Free!

John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, Mar. 17, 2009, at A1:

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

And this is a bad thing? A juror who looks for other useful sources of information is taking her job seriously. She really is committed to ascertaining the truth of what happened. If lawyers and judges are getting in her way, then they’re the enemies of truth-seeking, not her.

Roll the clock back 800 years, and the jury was the group in the courtroom that knew the most about the case. They came, not to hear, but to speak. Take a case from Wiltshire in 1249. Ralph de Harpetr turns up dead in Haseleg Field. There suspicion that the Fugimar brothers, William and Nicholas, killed him. But the king’s judges have no idea whether William and Nicholas are the murders or not. So the judges summon a jury of twelve men from nearby Malmesbury, and the jury says, yes, we know all about it, they’re guilty. The whole point of a jury was that they were well-informed about the events.

Over the centuries since then, two things happened to make the legal system start treating jurors like mushrooms. First, the scope of social life outgrew the close social bonds of small rural villages in which everyone really did know everyone else’s business. Sometimes the jury would show up and they really wouldn’t the truth of the matter firsthand. That meant there had to be a procedure for telling them what happened. But once the legal system started taking on the role of informing the jury by presenting evidence, the second transformation happened: the lawyers took over.

Our modern rules of evidence, that whole “adversary system” thing—these are just inventions created by lawyers to make sure that they’re firmly in charge of the trial. Think about how much of the edifice of the modern trial is designed around ensuring that jurors remain ignoramuses: incomprehensible jury instructions, the objection system that shuts off relevant lines of questioning and tells juries to forget what they’ve just heard, criminal procedure rules that encourage defendants—the people in the courtroom with the best information about what actually happened—to stay silent, and, of course, jury sequestration. These aren’t glorious guarantees of individual rights; they’re procedural perversions that systematically hide useful evidence from the jury.

Once the trial was about lawyering rather than the truth, the jury was retheorized as an empty vessel, prized for its lack of knowledge. Any attempt at juror self-education threatens the lawyers, so of course they scream bloody murder when jurors actually care about getting it right. Ignorance is truth.

The iPhone juror isn’t—as They would have you believe—a grave threat to justice. She may threaten the usual ways of doing things in the legal system, but she’s advancing the cause of justice. The rise of Internet technology is making it much more possible for jurors to become well informed: about complex medical subjects (Wikipedia), about the bona fides of witnesses (Facebook), about the physical scene of the crime (Google Street View), and about so much else. We should celebrate this trend, which takes us back to the jury’s true roots, as the ultimate well-informed and participatory civic institution.

I Don’t Even Know Where to Start

From Maldonado v. Municipality of Barceloneta, No. 2007cv01992 (JAG) (JA) (D.P.R. Mar. 11, 2009):

On January 30, 2009, Diaz sent a ‘Facebook message’ to Febus. …

There also appears to be confusion as to the classification of the message in question. Defendants incorrectly claim the message constitutes a “blog.” Plaintiffs incorrectly claim the message constitutes an e-mail. This type of communication, a message sent on Facebook, a “social networking website,” which has not been considered by this circuit or in any other circuit to the court’s knowledge, is likely a hybrid of the two. The message in question is clearly in the latter category: messages sent to a user’s Facebook inbox are not publicly viewable. Thus, they are not in the “public domain,” where First Amendment rights might attach.

Don’t Buy Holsters from the Palm Store

Aislinn has a Palm 680. She bought a Palm holster for it. The holster broke. When she called Palm, they said she didn’t buy it directly from them. She bought another one, directly from them. It broke too. When she called Palm, they said they couldn’t find her number in their files.

Palm: “We make junky accessories and we don’t take responsibility for it.”

Randy Picker’s Slides on the Google Book Search Settlement’s Antitrust Angle

Randy gave a great 20-minute talk on the antitrust implications of the Google Book Search settlement at the Columbia conference on Friday. His tripartite division of the issues into those involving files, licenses, and the Registry was analytically quite helpful, and I agreed with his conclusions. Inside baseball—and perhaps not fully useful until the video of the talk is also available—but essential reading for settlement-watchers.

Google and the Zombie Army of Orphans

Two weeks ago, I talked about the Google Book Search settlement at a symposium at Georgetown; yesterday, I talked about it at a conference at Columbia. I’ve taken my remarks from these events, cleaned them up for print, and edited them down into a short essay I’m calling “Google and the Zombie Army of Orphans.” (PDF, HTML). Here’s the key passage:

This class action, though, this one is special. It’s not just Google ponying up for past wrongs. Instead, this is a structural settlement; it reshapes the entire book industry by giving Google and Google alone access to this comprehensive out-of-print backlist. To make that happen, the settlement takes away the rights of people who aren’t before the court. Indeed, knowing what we do about the orphan works problem in copyright law, we know that these absent class members are highly unlikely to be able to do anything about this massive giveaway to Google taking place supposedly in their name.

It’s a version of Russell’s paradox, applied to class action litigation. There’s a class here that consists of all people who don’t realize they’re part of it. Under the guise of this class action, the named plaintiffs have been able to use the huge collection of orphan works copyrights as a bargaining chip. The named plaintiffs negotiated away everyone else’s rights, lining up all those millions of books for Google’s benefit. The orphans have become zombies, raised from the dead by the dark magic of a class action, turned into a shambling army under Google’s sole control.

This, I submit to you, is not the way things ought to be done a democracy. We have political processes for resolving major social issues. We have a Congress; it holds hearings and passes bills. We have administrative agencies that can take expert advice and make reasoned decisions. The courtroom isn’t supposed to be the place where we resolve huge issues that involve the carefully regulated copyrights of multi-million-member classes. Litigation is structured to sort out individual adversarial you-versus-me disputes. It’s a uniquely bad way to sort out complex, sweeping questions—such as how we get at all of our information and all of our books.

Perhaps She Meant “Dense?”

Lisa Miller, Cash in a Mattress?, Newsweek (Mar. 7, 2009):

A hundred-ounce gold bar, when you hold it in your hand, is surprisingly small and even more surprisingly heavy.

Ben Edelman Gets It Wrong on Utah H.B. 450

Eric Goldman has been blogging about Utah H.B. 450. The bill would prohibit companies from buying search engine ads triggered by their competitors’ trademarks. Thus: go to Google, type in “priceline,” and if you get back—as I do—ads for Travelocity and Expedia, those are potential violations. (There’s an additional “bad-faith attempt to profit” threshold, which depends on a seven-factor balancing test; while we might hope that courts will be careful about what ads are really placed in bad faith, we can’t count on anything when there’s a multifactor balancing test involved.)

Goldman has been a consistent skeptic about Utah’s forays into legislation on keyword advertising. The state’s last two tries were unconstitutional in ways that should have been obvious to the drafters. The new version is narrower; Goldman still doesn’t like it.

Ben Edelman, though, has come out in favor of H.B. 450. His argument is based on consumer confusion:

Search for Hertz, and most of the links will indeed take you to Hertz or bona fide Hertz-related sites (like booking agents or consumer reviews). In this context, what is a user to think when a search engine serves up an ad for something altogether different from a user’s request? Because search engines are generally so good at providing just what users requested, there’s likely user confusion any time a search engine instead replies with links to competitors. After all, if a user asked for Hertz, it’s perfectly reasonable for the user to expect that resulting links will be responsive to the user’s request. …

Search engines also often claim users benefit from ads for competitors. I guess it’s possible that some users might search for Hertz, not knowing that Avis even exists. But how many users does this really describe? If a consumer actually wants offers from multiple providers, those are easy to get; just search for “car rental” or “rental car deals” to get plenty of choices. In contrast, as described above, when a user searches for a specific provider, competitors’ ads are more likely to be confusing, and less likely to be useful.

To the extent that consumer confusion about search advertising sponsorship is a real problem—and the jury is still out on that one, pending more and better empirical work—the legal system ought to attack it directly. Require better disclaimers and more prominent differentiation between paid and organic results on search engines. Be stricter about potentially confusing text in search ads. Disclose the advertiser’s name with the ad. Focus on actual point-of-sale confusion in trademark litigation (e.g., with a court-ordered survey of customers during the defendant’s checkout process).

But please don’t break my Internet just because you’re concerned about someone else’s hypothetical confusion. I know what I’m doing when I use a search engine, and I regularly search on trademarked terms precisely because I want to find out about competitors. Sometimes, it’s easier than thinking of the generic term, even though I don’t care what brand I end up with. That can happen when the market is segmented in ways that I as a consumer can’t easily understand; if I search on “chocolate,” I get ads for Godiva, i.e. chocolate fail. “gourmet chocolate” is closer, but still mixes responsive and nonresponsive ads. I’d rather just search on a trademark—“jacques torres,” say—and find out which other companies consider themselves suitable substitutes.

Similarly, sometimes the appropriate generic term has multiple meanings—it’s generic for the thing I’m looking for, but also for something else—so it’s hard to find an unambiguous search term. Sometimes, the so-called trademark itself is descriptive or generic and the law hasn’t caught up with usage. And sometimes I just can’t be bothered to think of the generic term—which is really the fault of the trademark owner, precisely because they chose a catchy trademark and then advertised so heavily it’s hard to think of anything else. In all of these cases, I as a user will have an easier, more successful search if we don’t foreclose the possibility of searching on a trademarked term and getting a competitor’s ads. Perhaps Utah S.B. 450 will allow that to continue. But I fear it won’t.

Googlius Caesar

Cassius: Why, man, he doth bestride the narrow world
Like a Colossus, and we petty men
Walk under his huge legs, and peep about
To find ourselves dishonourable graves.
Men at sometime were masters of their fates.
The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings.

—Julius Caesar I.2, 137–142

A lot of people, me included, like Google. Compared with other computer titans, and especially as compared with weary giants of flesh and steel, it’s a company that does very little wrong. It has outsize ambitions that shame the small-minded local optimizations other businesses take on. It has a long-view public-minded spirit of positive change sorely lacking in so many other quarters. It redefines the limits of the possible and the imaginable even as it takes on some of the hardest problems of our time. What’s not to like?

But consider the story of another conquering hero. The late Roman Republic was suffocating under its political system by the time Gaius Julius Caesar came on stage. Inequality was the order of the day, but the Senate had become all but incapable of taking seriously the structural problems the nation faced. Aristocrats contended with each other for power while the plebs slipped further into poverty.

Against this backdrop, Caesar married personal ambition to public achievement. He offered the plebeians much-needed land reform; he offered Rome new lands and new riches. What did it matter if he secured his consulship through bribery and put his land bill through by having the crowd dump dung on his opponents and forcibly exclude them from the crucial vote? Who could object to a dictatorship for ten years or a dictatorship for life? He got results. Relentlessly practical Caesar fixed the calendar, reformed the welfare grain system, extended citizenship to Rome’s Italian neighbors, cleaned up the government and the civil service, and settled veterans back to civilian life. Caesar left Rome far better than he found it—the little matter of legitimate political processes aside.

We shouldn’t blame Caesar alone for the end of the Roman Republic. His enemies did more than he did to force an all-or-nothing struggle; his assassins opened the floodgates of a war that would end only when Augustus definitely took power as an unambiguous emperor. But still, the most proximate causes of the end of the Republic were Caesar’s ambition and the populace’s support of it. That’s what Caesarism is: supporting the strongman who can break through the political logjam and make the chariots—or the search queries—run on time.

That’s why I worry when people say we should set Google loose on all our problems. Some things ought to be our responsibility to fix, ourselves. That’s why I worry when people say we should all be more like Google. Jeff Jarvis asks, “What Would Google Do?” but Caesar was treated as divine in his lifetime, too. And that’s why I worry about my own enthusiasm for the way the Google Book Search settlement use a class-action end run to make copyright-orphaned books available. Our political processes have tried, and failed, to break that stalemate. They may be unreliable and corrupt, but they are our political processes, and we dare not give up on them. The fault, dear readers, is not in Google, but in ourselves, that we are underlings.

Wolfram|Alpha Is Coming

Stephen Wolfram, the guy behind Mathematica and A New Kind of Science, is working on a “new paradigm for using computers and the web.” If it’s anything like Mathematica, it could be a Google-killer. If it’s anything like A New Kind of Science, Google (and everyone else) has nothing to fear. We shall see.

Watchmen I give it 4 stars

Zack Snyder is a terrible director. I can’t imagine anyone else having done a better job adapting the graphic novel. Most of Snyder’s version is a slavish copy of the original; almost every shot is a direct imitation of the framing and angle of a comic panel, down to the angle at which Dr. Manhattan tilts his head. That’s fine; the original is great. Almost all of the changes are bad ideas; we’re lucky that there are so few of them.

A good director would have tried to put his or her own stamp on the movie, and probably failed miserably. (Exhibit A: the unused 1989 Sam Hamm screenplay). But Snyder happens to be an uninspired helmer of flashy but mindless violence coming off of an insanely successful bit of flashy but mindless violence. No one else would have been trusted this absolutely with the project; no one else would then have put so little a stamp on it. The unfilmable has been filmed, and while it’s not an enduring masterpiece, it’s much better than we could have hoped.

Why Did the Apple II Have Six Colors?

If you’re of the right age to remember classic Apple II games, you likely also remember that many of them had a six-color palette: white, black, orange, green, blue, and purple. Six is not a power of two, which immediately makes it a potentially suspect number when talking about computers. Four colors, eight colors, sixteen colors, 256 colors: these are numbers you might expect to see. But not six.

It turns out that the six-color palette is a consequence of the wonky way that the Apple II produced an NTSC signal. Instead of first encoding colors in terms of their red-green-blue components, the Apple II simply created a television video signal directly.

Simplifying greatly, imagine the color portion of a TV signal as a clock face, with orange at 12 o’clock and its opposite, blue, at 6 o’clock. That puts purple at 3 o’clock and green at 9 o’clock. The clock hand sweeps rapidly around the outside of the dial, and if you turn on the juice while the clock hand is pointing towards a given color, the whole face glows that color. Thus, if the power stays off the whole time, you have black; if the power is on the whole time, you have the average color: white. If you turn the power on only HALF the time, though, you get an average color that approximates one of the colors on the rim of the clock face. Power from 9 to 3 averages out to the color at 12, i.e. orange. Power from 3 to 9, on the other hand, averages out to the color at 6, i.e. blue.

The whole thing is built around the relative phase of the signal; the display of orange and blue are exactly the same, only offset by 180 degrees from each other. That was how the original graphics hardware worked. Purple and green became possible when Apple added an additional way to delay the phase by a quarter cycle: 90 degrees. This is why old TV sets had a “hue” knob that would make the colors all crazy; when you turned it, you were adjusting the relative phase of the color signal, making the colors on the screen follow their cycle from orange to purple to blue to green and back to orange.

Sometimes, I think that computers have gotten just too logical these days. We lost something when hardware became less idiosyncratic. Maybe not something useful or profound, but definitely something quirky and soulful.

Public Access to Podcasts on Public Access

I’m on this week’s Technology Liberation Front podcast, hosted by Berin Szoka, talking about public access to court records. That’s a topic near and dear to my heart, and it was a lot of fun to rap about the issues with Tim Lee and Steve Schultze. The podcast may be a little boring in that we all pretty much completely agree on the bottom line: the courts are capable of doing much better when it comes to making legal filings and court opinions available to the general public, not just to lawyers and data brokers who can pay 8 cents a page for access. There are no fireworks or fistfights, just a bunch of law-tech geeks making the case for making the public record, well, public.

Huffington Post: Why I Sued Google (and Won)

AdSense site owner Aaron Greenspan (perhaps familiar to long-time Laboratorium readers from an earlier venture) has his account suspended, sues Google for the $721 balance, and wins. No one emerges from the story looking good.

One the one hand, Google (probably) suspended the account because Greenspan was placing ads on a parked domain—a feature that Google opened up to the public two days later. Of course, he can’t find anyone at Google who’ll answer his messages about what happened, and the legal department won’t even talk to him. And when he sues in small-claims court, they send a paralegal unfamiliar with the facts of the case who relies primarily on the famous “any reason or no reason” defense. It’s almost like they’re trying to put an exclamation point on Frank’s arguments about transparency and accountability.

On the other, Greenspan really was putting ads on a parked domain; the fact that Google is now in that business doesn’t make it right. Indeed, many advertisers don’t want their ads showing up on parked domains, and Google now offers them an opt-out. He wins his small-claims case because the judge decides to distinguish “any” reason from “no” reason. That’s a questionable result; the judge is able to get there only because the paralegal can’t argue the terms of the contract effectively or relate them to the specific decision in Greenspan’s case.

For me, the case isn’t a template for a wave of lawsuits forcing Google to open up. Greenspan won because Google didn’t take him seriously. But that’s precisely the problem Google has now: not a legal one, but a customer- and public-relations one. Even where it has potentially legitimate reasons for its actions, the institutional culture of arrogance and automation prevents it from communicating those reasons. As the discretionary decisions multiply, people are disinclined to trust Google’s “trust us” attitude when its responses in particular cases are so obviously uncaring and ham-fisted.

Dear Google,

I believe in your power to change the world for the better. I believe that you mean well. And I believe that most of your decision are for the best. But please, please, please: make your processes more transparent, articulate your policies more clearly, and provide more credible appeals. You are the prince of the Internet, and it’s better to be loved than feared.

Your Loyal Opposition

Meaningless Jargon Watch: Biological Passport

Juliet Macur, Cycling to Use Blood Profiles in Doping Case, New York Times, Feb. 27, 2009, at A1:

He said it would be the first case born purely from evidence that an athlete’s blood profile, called a biological passport, had changed in comparison with a baseline drawn from earlier tests.

My medically-trained wife:

A biological what? That makes no sense.

Does this mean your blood contains stamps from everywhere you’ve been? That it identifies your citizenship? I’m as against blood doping in sports as the next guy, but “biological passport” sure sounds like an attempt to doublespeak past the issue of forensic reliability. Sadly, this kind of rhetorical credulity is all too common when sports reporters do science writing.

Best. Comment. Ever.


I served these at my health club’s solstice gathering and everyone found them quite delicious. I omitted cilantro, however, because it’s arbitrary aura makes the herb quite unstable and thus unsuitable to combine with any food.