The Laboratorium
April 2010

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GBS: Chin Is In

Denny Chin was unanimously confirmed by the Senate this morning for a seat on the United States Court of Appeals for the Second Circuit. Congratulations to Judge Chin.

I don’t know what this means for the Google Books case, and would rather just wait to see than speculate.

UPDATE: C.E. Petit thinks that Chin is likely to pass the case along to its third District Judge in two years.

GBS: Chin Confirmation Vote Thursday?

Senator Leahy issued a press release yesterday pledging action on the confirmations of various nominees. Of particular note:

Senate Republicans have objected to time agreements to debate and vote on pending noncontroversial nominations. Last week, Senate Majority Leader Harry Reid (D-Nev.) filed cloture, a procedural motion to bring to an end debate on a pending matter, on five nominations, including two judicial nominations and one nomination to fill a high-level vacancy at the Department of Justice. The Senate is expected to vote later this week on the nominations of Judge Thomas I. Vanaskie to fill a vacancy on the Third Circuit Court of Appeals and Judge Denny Chin to fill a vacancy on the Second Circuit Court of Appeals, as well as the nomination of Christopher Schroeder to be the Assistant Attorney General for the Office of Legal Policy.

I checked the Congressional Record. Reid filed the cloture motion on April 15, and the Senate started debate on the five nominations yesterday.

UPDATE: From the Wednesday, April 21 Senate Executive Calendar:

Ordered further, That following morning business on Thursday, April 22, 2010, the Senate proceed to executive session to consider the nomination of Denny Chin, of New York, to be United States Circuit Judge for the Second Circuit; that there be 60 minutes for debate with respect to the nomination, that upon the use or yielding back of time, the Senate proceed to vote on confirmation of the nomination; that upon confirmation, the motion to reconsider be considered made and laid upon the table; with the cloture motion withdrawn; and the President be immediately notified of the Senate’s action with respect to the above referenced nominations; with all time covered under this agreement equally divided and controlled between the Senator from Vermont (Mr. Leahy) and the Senator from Alabama (Mr. Sessions).

The Difference Between the Pager and the E-mail

Reading about the Supreme Court oral arguments in City of Ontario v. Quon makes me sad and angry in equal measure. Here are some of the questions the Justices asked about a case that involves the privacy of messages sent to an employer-provided pager:

CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between the pager and the e-mail?

CHIEF JUSTICE ROBERTS: What happens, just out of curiosity, if you’re — he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis? Does he — does the one kind of trump the other, or do they get a busy signal?

JUSTICE SCALIA: Can you print these things out? Could Quon print these — these spicy conversations out and circulate them among his buddies?

This is a case whose resolution depends critically on the details of the technology at issue. It’s clear that multiple Justices of the Supreme Court walked into oral argument deeply unclear on how a pager works. I don’t expect judges to be avid Twitter users with a Metafilter login and a tumblog, but this is a case in which their job requires that they learn enough about the technology to pass intelligently on it. Justices Roberts and Scalia failed to prepare adequately for the oral argument. Their law clerks failed to brief them sufficiently. And even a lawyer in the case couldn’t respond to a relevant question:

JUSTICE ALITO: Are you sure that — are you sure about your answer to the question of deletion? It’s not like deleting something from a computer which doesn’t really delete it from the computer?

MR. DAMMEIER: Honestly, I’m not — that’s not in the record, and the — how that pager works as far as deleting, I couldn’t be certain that it would be deleted forever.

I am not optimistic about the opinion in this case, whichever way the decision it comes out.

GBS: Petit’s Petition

Charles E. Petit, known to some readers of this blog from his own blog, Scrivener’s Error, has sent a letter to Judge Chin. He writes as an “involuntary, indirect member of the settlement class,” and raises two issues.

First, he attaches the Supreme Court’s recent Muchnick opinion, which he argues has “significant implications” for the settlement. In essence, post-Muchnick, the class of works that could be included in a settlement probably includes unregistered ones, which is broader than the settlement class. Petit thinks that this development calls into question the typicality of the representative plaintiffs and similar class-action procedural issues. I agree with Petit that Muchnick is an important new authority that the court should consider. But it doesn’t strike me as seriously likely to affect any of the major issues on the table.

Second, Petit complains about the badly formatted list of opt-outs. It was filed as a scanned PDF, the names are split across two columns, and the alphabetization is unhelpful (e.g. “Vonda N. McIntyre” is listed under “V” rather than “M”). Moreover, when a successor organization held copyrights and opted out — e.g. Avicenna Development Corporation opted out on behalf of Peter S. Beagle — only the organization’s name appears in the list, not the author’s. All of which is true, and annoying, but I’m forced to ask, so what? Perhaps there will be follow-on filings or discussion that sharpen the point.

All criticism aside, this is well worth reading as an outstandingly formatted letter. Petit uses multiple typefaces, a footer, and understated letterhead, all to good effect.

Never Boring

As Kottke notes, Vanessa Grigoriadis’s New York profile of Lady Gaga is an embarrassment of quotable riches. I thought that this observation was particularly striking:

Gaga also throws in our face something we’ve known all along but numbly decided to ignore: American celebrities have become very, very boring. … One of her essential points is that celebrity should be the province of weirdos, like Grace Jones circa Jean-Paul Goude and her pet idol, eighties opera–meets–New Wave cult figure Klaus Nomi, who died of AIDS at 39.

I read this and immediately thought of US Magazine’s regular section, “Celebrities … They’re Just like Us,” which features photographs of stars taking their kids for walks and picking up groceries in sweatshirts. But, of course, these so-called “candid” shots are just as artificial as Lady Gaga’s lobster hat.

GBS: Public Index Problems

We’re having technical issues over at the Public Index. Please be patient as we try to get everything working correctly again.

The Shirky Principle

Institutions will try to preserve the problem to which they are the solution.

—Clay Shirky (via Kevin Kelly)

Surprisingly Freewheeling Conversation

The Mercatus Center at George Mason has a weekly podcast, Surprisingly Free, hosted by Jerry Brito. This week’s episode features me. Most of the conversation focuses on The Unmasking Option, but towards the end, we also get into Google Books issues.

You can listen online, download an MP3, or subscribe to the whole series in iTunes.

GBS: Photographers to Sue!

It appears that a coalition of photogaphers and illustrators led by the American Society of Media Photographers is about to file suit against Google for copyright infringement based on the Google Books project. You may remember the dispute a few months back about whether these groups would be allowed to intervene in the current lawsuit. They were upset at being excluded from the settlement, which currently applies only to textual materials. Given that the parties responded to this objection by saying that the visual artists wouldn’t be hurt by the settlement since they wouldn’t be bound by it, they were all but inviting the artists to file their own lawsuit. Looks like that bluff has been called.

The central fact distinguishing this lawsuit from the Authors Guild suit is likely to be the fact that Google isn’t indexing or displaying pictures. On the one hand, this is an argument in Google’s favor: it’s not doing anything that cuts into any kind of market for the images. This is true copying in the abstract. On the other hand, doesn’t that tend to undermine the fair use claim? Google can’t claim the benefit of a transformative purpose in the images, since it’s not offering a search service tied to them. On balance, I’d be inclined to call the digitization of the pictures a fair use, on the theory that it’s a necessary incident to the fair-use digitization of text for the transformative purpose of indexing. You can’t scan the text without also scanning the pictures. But that’s tentative and potentially contestable—and we’ll see, soon enough, what the visual artists are actually alleging.

A few paragraphs from the Financial Times story:

The American Society of Media Photographers and a number of related trade associations are expected to file the case against Google on Wednesday in the US District Court for the Southern District of New York.

The action is separate but similar to a class action that is the subject of a pending $125m settlement filed against Google by authors and publishers related to the Google Library Project, which aims to scan some 18m books on to an online database. Photographers and illustrators were not allowed to join the existing class action suit, and have opted to file their own case.

“Google is scanning in books and publications with visual images, which impedes the rights of the copyright holders of those images. We are seeking compensation for that,” said James McGuire, founding partner of law firm Mishcon de Reya, who is leading the case.

Hat tip: Resource Shelf

Why Quinn Norton Won’t Be Buying an iPad

There’s all sorts of interesting arguments about the inherent politics of the iPad out there, like Cory’s and Aaron’s, or maybe most interestingly, Dale’s. But none of that has to do with why I won’t be buying an iPad. I didn’t get as far as those thoughtful concerns. I simply don’t have the money. …

I live a really rich intellectual life and get to do lots of things most poor people don’t, and I appreciate that it’s because almost none of my social group are poor. But sometimes my social group kind of goes crazy and forgets that while they have a lot of power, my class is a whole lot bigger than theirs. And none of them will be buying iPads.

A few of them do have iPhones, because phones are one of those durable goods we need to survive and that’s most of their meager disposable income. A few probably have iPod touches that they got as gifts, hand-me-downs, or because that was their one nice thing they wanted. But the iPad does absolutely nothing vital, and nothing a cheaper piece of electronics doesn’t already do well enough to get by. I’m pretty sure Apple knows this, and couldn’t care less. Poor people do buy iPods, sometimes even new, but they’ve never bought anything else Apple has ever made. And that’s fine. I’ve never felt the urge to get me some Tiffany, and they’ve never felt the need to try to get my money. Similarly, Apple’s just not a brand very open to the poor. But why does this mean anything to the political arguments? Because other vendors out there do want to take our money. We don’t have much, but there’s a lot of us, and unlike the other classes, we’re getting a lot bigger.

The whole thing is well worth reading; almost every sentence contains an insight, sometimes more than one. I don’t agree with all of it, but this is the single best piece of writing on the iPhone and openness. I particularly enjoyed this footnote:

Also, the iPad seriously looks like thief bait. We’re not idiots, we know what our drunk uncles are going to do with it if we come home with one.

More Proof That Google Buzz Is Unusably Dangerous to Your Privacy

Andrew McLaughlin, the White House’s point man on Internet policy and a former Head of Global Public Policy for Google itself, had his list of contacts made public by Google Buzz. This is proving to be particularly embarrassing for McLaughlin, as the leak revealed, unsurprisingly, that he corresponds with many Google employees](). This has led to a FOIA request from Consumer Watchdog for McLaughlin’s emails to Google employees and questions about his independence from Google.

The open-government issues here are subtle. The public is entitled to government employees free of the taint of corruption and to policymaking free of backroom private influence. (This is not an endorsement of Consumer Watchdog’s overheated accusations, which are silly and harmful.) But government employees are also entitled to their own lives. I shudder to think that my every email might be open to inspection, or at the idea that I might need to sever all ties to anyone I’ve ever known.

What is not subtle here is the manifest unusability of Buzz’s initial privacy controls. As Big Government details, poor McLaughlin floundered as he tried to figure out how to use Buzz without making serious privacy mistakes. He’s a highly sophisticated Internet user with a Google-heavy network of contacts and his professional dignity at stake, and he still couldn’t get it right. What hope is there for the rest of us. This is defective product design and the law should start recognizing it as such.

GBS: 5 Ways The Google Book Settlement Will Change The Future of Reading

Annalee Newitz has a long and thoughtful post at i09 on the settlement’s implications for readers. She talked to smart people, did a lot of reading, and wrote up an overview of the settlement that does a really nice job setting out the big picture. This will be my new go-to piece for non-lawyers: if you don’t know much about the settlement and want to learn more, start here.

Best Sentence I Have Read Today

Attempts to understand uncertainty are mere illusions; there is only suffering.

That’s from Andew W. Lo and Mark T. Mueller, WARNING: Physics Envy May Be Hazardous To Your Wealth!.

GBS: Google Giving Grants to Study Digitized Book Corpus

Marc Parry, Google Starts Grant Program for Studies of Its Digitized Books, Chronicle of Higher Education (Mar. 31, 2010):

The company is creating a “collaborative research program to explore the digital humanities using the Google Books corpus,” according to a call for proposals obtained by The Chronicle. Some of Google’s academic partners say the grant program marks the company’s first formal foray into supporting humanities text-mining research.

The call went out to a select group of scholars, offering up to $50,000 for one year. Google says it may choose to renew the grants for a second year. It is not clear whether anybody can apply for the money, or just the group that got the solicitation. …

Literature is one of eight “disciplines of interest” that Google has identified for its program. The others are linguistics, history, classics, philosophy, sociology, archaeology, and anthropology.

The effort seems largely focused on building tools to comb and improve Google’s digital library, whose book-search metadata—dates and other search-assisting information—one academic researcher calls a “train wreck.” These are some of the sample projects that Google lists in its call for proposals:

  • Building software for tracking changes in language over time.
  • Creating utilities to discover books and passages f interest to a particular discipline.
  • Developing systems for crowd-sourced corrections to book data and metadata.
  • The testing of a literary or historical hypothesis through innovative analysis of a book.