The Laboratorium
January 2011

GBS: Sun Rises in East, ASMP Filing Deadline Extended


To no one’s surprise, the parties in the photographers’ case have agreed to another extension of the response deadline. The new deadline is February 11. This is a shorter extension than some previous ones. That may be significant, or it may not. I have given up trying to discern meaning in the extensions: this one is the eighth.

GBS: Brevia


Peter Osnos, Why the Long Lost Google Book Pact Still Matters, The Atlantic (Jan. 25, 2011):

In certain respects, however, technology and commerce have overtaken the original dispute. Digitized books can be programmed so that they cannot be copied or printed more than once, which limits the notion of a free-for-all in which authors and publishers lose control of the material. Many books in the public domain (the vast majority of works that have been digitized) are increasingly available from a variety of sources, which reduces Google’s omnipotence. Given the extraordinary growth in the use of eBook reading devices (which were barely a factor when the lawsuits against Google were originally filed), the interests of authors and publishers have shifted to getting a fair share of revenues rather than the prospect of receiving no revenues at all.

Busca Inc., News and Views from ALA 2011 Midwinter, Busca Inc. Blog (Jan. 21, 2011):

The recent launch of Google ebooks has been deemed a flop. The 3 million titles are either in the public domain already or are older titles that have no demand. Sales are very low. I feel that this is a preview to problems that Google will have if they ever launch their larger Google Books Project. On top of these problems many prominent authors have withdrawn from the settlement. What remains unique in the database are orphan books which probably have little demand. Figures from the legal case have hinted at a $55,00.00 cost for initial hookup to the Google books database if it ever becomes available.

Andrew Albanese, At ALA Midwinter, Brewster Kahle, Librarians Ponder The E-book Future (Jan. 10, 2011:

It was Kahle’s concerns about the developing e-book market that seemed to resonate most with librarians. “The e-book thing isn’t happening,” Kahle, noted “it has happened.” Kahle, who founded the Open Content Alliance, and Open Library project, a digitization program, offered a strong message to librarians: don’t let a few powerful corporations take control of the digital future. He expressed his longstanding concern over Google’s efforts to scan collections “and sell it back to us,” and urged libraries not to give up their traditional roles. “What libraries do is buy stuff, and lend it out,” he said, suggesting that libraries “digitize what we have to, and buy what we can,” but not to let the promise of licensed access turn libraries into agents for a few major corporations. “We do so at our peril.” He also urged more dialogue with publishers and vendors about the future of digital content and the role of libraries—but he also urged bold action.

A Few Words on Amy Chua


Amy Chua’s Battle Hymn of the Tiger Mother, about deliberately being a “Chinese mother” to her two daughters, has been the subject of intense online controversy and debate, much of it fiercely negative. I don’t want to venture into the flamewars over the book or her parenting. I do, however, want to say a very few words about Amy Chua as a teacher and a person.

Chua was my Contracts professor in my first semester in law school. I later took International Business Transactions with her. She also supervised my first extended paper in law school, which, after many revisions, eventually became Virtual Worlds as Comparative Law.

She was, by a significant margin, the most Socratic professor I had in law school. She was also one of the best. Her Contracts class was fast-moving, thought-provoking, and entertaining. She had very high expectations for our class preparation and our engagement in class. But provided you did the reading and really thought about your answers when called on, she was on your side. I said some smart things in class, and some amazingly stupid ones; I felt comfortable trying, and I felt comfortable failing. It was a classroom where on-the-fly intellectual risk-taking was essential, but I knew at all times that there was a safety net below. At the end of every Socratic discussion, she would bring things to a close and carefully restate the law so that we knew what it was we needed to have extracted from the conversation. I’ve consciously modeled my own teaching, in large part, on hers.

Outside of class, I particularly remember two things. The first is that she invited us out, in groups of six, to have a drink with her and talk about law school. She was the most approachable professor I had in my first year of law school; she came out for a trivia contest between the two small groups that made up her Contracts class. I can’t imagine any of my other professors—as good as some of them were in their own ways—doing that. The second is that, for her IBT class, she assigned her book World on Fire. She regretted, however, the potential conflict of interest that her dual role as author and professor created. Thus, she asked us all to come, when were able, to her office, so that she could check our names off a list and give us each a refund for what we’d paid the bookstore. It was the only time, to my knowledge, that one of my professors paid for our coursebooks out of his or her own pocket.

GBS: A Pro Se Letter


A letter from Edward R. Clark showed up on the docket today. It reads:

Please advise if the Court has approved the settlement in the above case. Considering the Fairness Hearing was conducted nearly a year ago, I’m suspicious that the Settlement Administrator, Rust Consulting, Inc. of Minneapolis, MN is not being honest, claiming the Court has not approved the settlement.

I did a little quick research, and it appears that Clark is currently serving a life sentence for murder. He appears to be the author of Rush to Judgment: Anatomy of a Murder Case, which is available for preview on Google Books. Here’s the book description:

Rush to Judgement attests to the reality that the more serious the charge, the harder it is to prove innocence - even with strong evidence that the accused was nowhere near the scene of the crime when it occured.

Among other disservices, Edward Clark’s court-appointed attorney did not assist in the jury selection, leaving Clark to choose juror’s from a local population he knew nothing about. The prosecution introduced false testimony through investigators and witnesses claiming to be forensic experts and withheld evidence obtained through eavesdropping on attorny-client conversations that supported Clark’s defense. Altered court documents impeached the key defense witness. Ed Clark was convicted of two murders in 1974 and has been in prison since.

According to the National Institute of Justice, nearly 250,000 factually innocent Americans currently are behind bars. The reader’s lesson? There, but for the grace of God, go I.

Some Skepticism About Search Neutrality


I’m happy to announce that my latest piece, Some Skepticism About Search Neutrality, has just been published in The Next Digital Decade, a new volume of essays about Internet policy. As the title suggests, it’s a contribution to the discussion over “search neutrality,” the idea that search engines should be legally required to exercise some form of even-handed treatment of the websites they rank. It’s been a major topic in the news recently, particularly with the EU antitrust investigation. Websites like Foundem and SourceTool have been joined by independent critics like Consumer Watchdog and a growing number of academics. They share a sense that dominant search engines, especially Google, have too much power to be allowed to be anything but neutral.

Having now read and thought through the academic and popular arguments for search neutrality, I’m skeptical. The problem is that no one has offered a good definition of what it would mean for a search engine to be truly “neutral.” In working through the search neutrality literature, I came across eight different possible meanings. Not one of them works. Some, like equality, the idea that search engines shouldn’t differentiate between websites, are simply incoherent: people use search engines because they make useful distinctions between websites. Others, like relevance, the idea that search engines should try to maximize user satisfaction, are too vague to be meaningfully enforceable by regulators. Worst of all are the proposals, like objectivity, the idea that search engines should return only “good” search results, that would dictate what search users are and aren’t allowed to see, rather than letting them choose for themselves.

Search neutrality may have noble goals, but it could do a great deal of harm to the Internet. Spammers and black-hat search-engine-optimizers would love it if Google were required to use a uniform, fully transparent algorithm. Low-quality websites would love to cry “search neutrality” any time they lose in the rankings to better websites that users like more. In both cases, search engine users would be the real losers.

This isn’t an across-the-board defense of search engines. They raise other, legitimate issues: antitrust, copyright, and stealth marketing, to name just a few. But I’m unconvinced that search neutrality is one of them. It takes attention away from the real issues at stake; it substitutes unhelpful and confused tests for careful analysis under better-established bodies of law.

The book is available either as a free download or in hard copy. I’ve put my chapter online as a PDF with my usual Creative Commons license. I’ve also prepared an HTML version with a slightly updated bibliography. I hope you’ll read one of them and join the conversation. (At the very least, find out why I start by quoting Sergey Brin, Jonathan Edwards, and Voltaire.) As always, I value your thoughts and comments.

GBS: Sarnoff from Bertelsmann to KKR


Jeffrey Trachtenberg, Meet KKR’s Newest Hire: A Book Publishing Executive, WSJ Deal Journal, Jan. 11, 2011:

Richard Sarnoff, one of the key architects of the proposed Google books settlement, is leaving his posts as co-chairman of book publishing giant Bertelsmann Inc. and president of Bertelsmann Digital Media Investments to become a senior adviser at KKR.

Sarnoff joins Alex Macgillivray (Twitter) and Dan Clancy (YouTube) in the ranks of key settlement players who have moved on to other pastures.

GBS: Brevia


Steve Kolowich, For Love of Longform, Inside Higher Ed, Jan. 12, 2011:

Students might still prefer bound books to the e-alternative, but researchers have long since discovered the benefits of electronic versions of scholarly texts. Now JSTOR, which offers packages of digital journal content, is teaming up with several university presses to expand its catalog to include digital books, the organization announced on Tuesday.

JSTOR is not alone. Elsewhere, university presses and academic nonprofits are teaming up to make longform content available, at last, in the same searchable online databases that researchers for years have used to browse through archived journal articles. …

What to make of these simultaneous pushes? Joseph Esposito, an independent consultant who advises scholarly publishers, says they amount to an attempt by the academic groups to muster a challenge to Google — which, through its massive and somewhat controversial book-scanning project, has positioned itself as the market leader for digital longform texts among students and scholars doing research.

Ed Baig, At CES: Ion’s Book Saver personal scanner converts your books to digital, USAToday Technology Live, Jan. 8, 2011:

You’re intrigued by eBook readers like the Kindle or Nook but have already invested a lot through the years in good old fashioned print books. You’d love to be able to schlep those along digitally without breaking your back or having to repurchase every title. Ion’s would-be solution is its new $189 Book Saver Book Scanner, which lets you convert printed materials to digital PDF files that are compatible with popular electronic readers.

Barbara Casassus, Hachette Google agreement to last five years, The Bookseller, Jan. 5, 2011:

The final agreement for Google to scan out-of-print French language books for Hachette Livre, to be signed by mid-May, will be for a period of five years, the publishing group’s legal director Vianney de la Boulaye said.

GBS: News from the Digital Library Space


Natasha Singer, Playing Catch-Up in a Digital Library Race, New York Times, Jan. 8, 2011:

Lending libraries may have been the newfangled democratizing factor of their day. Centuries later, though, the United States finds itself trailing Europe and Japan in creating the modern equivalent: a national digital library that would serve as an electronic repository for the nation’s cultural heritage.

In other words, there’s a real digital library divide.

In contrast to the United States, the National Library of Norway has been a global early adopter. In 2005, it announced a goal of digitizing its entire collection; by now it has scanned some 170,000 books, 250,000 newspapers, 610,000 hours of radio broadcasts, 200,000 hours of TV and 500,000 photographs. And, last year, the National Library of the Netherlandssaid it planned to scan all Dutch books, newspapers and periodicals from 1470 onward.

James Kanter, Brussels Wants 7-Year Limit on Works Digitized by Google:

Companies like Google that digitize artworks and books from public bodies should allow other companies and institutions to commercialize those materials after seven years, three experts advising the European Commission said Monday.

The experts, including Maurice C. Lévy, the chairman and chief executive of Publicis, a communications and advertising company based in Paris, also encouraged the emergence of additional innovative companies besides Google to help digitize Europe’s cultural heritage.

Here is the report itself. I hope to have more to say after I read through it, but I have been busy with grading and preparing for the start of classes.

Warning: Beware of Spam Filter


I have recently rescued two comments from the spam filter. I’m sorry that it sometimes trips up and flags legitimate comments as spam. If you post a comment and don’t see it, please email me immediately. I’m happy to make up for Movable Type’s shortcomings and manually approve them. But the volume of spam-comment submissions is so high that I’m unlikely to notice your comment unless you contact me. So again, if you post and it doesn’t show up, let me know.