The Laboratorium
June 2011

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First-Class Objects

A new essay of mine, First-Class Objects, has just been published in the Journal on Telecommunications and High Technology Law. It’s an extension of presentations I gave last fall at the Yale ISP Privacy and Innovation Symposium and the Colorado Silicon Flatirons Privacy and the Press conference. My core argument is that something significant changes for privacy purposes when computer systems become “about” people, and that this transition takes place when those systems represent people using unique identifiers. Starting with Twitter as an example, I explain the computer science between unique identifiers in databases, and then explain how using unique identifiers for people has technical, social, and humanistic consequences. I conclude with a brief musing on the relevance another suggestive phrase from computer science, “first-class object.”

In Praise of Not Asking

Tim Kreider, In Praise of Not Knowing, New York Times, June 19, 2011:

When I was 17, I took a record of John Cage’s piano pieces out of the library. The pieces were interesting, but what really arrested my attention was the B-side of the album — a work called “The Dreamer That Remains,” by a composer I’d never heard of named Harry Partch. This was music from another planet: unearthly yowling strings, metallic twangs, rippling liquid percussion. I couldn’t even identify the instruments.

I loaned the record to a friend of mine, the only other person in the world I then knew who liked classical music. The piece’s refrain, in which a chorus of corpses in a funeral home sing, “Let us loiter together/And know one another,” became a two-man in-joke between us. For years, as far as we could tell, we were the only people who knew about Harry Partch. He was, in a sense, ours.

This was in the ’80s, a time when there was simply no way of learning much more about Harry Partch, at least not that I knew of. If I were a 17-year-old discovering Harry Partch today, I could Google him, and I’d immediately find the Harry Partch Information Center and Corporeal Meadows, where I’d learn all about his system of intonation with a 43-note octave and his instruments made of bamboo, jet-engine nose cones, artillery-shell casings and whiskey bottles, with names like the Gourd Tree, Boo II, Zymo-Xyl and Marimba Eroica. …

I hope kids are still finding some way, despite Google and Wikipedia, of not knowing things. Learning how to transform mere ignorance into mystery, simple not knowing into wonder, is a useful skill.

Or he could have gone to his local librarian, who would probably have been able to point him at Partch’s 1949 book, Genesis of a Music, which explained his theories of intonation and temperament, with extended discussion of some of his major compositions. It was helpfully reissued in 1979, just in time for a young Tim Kreider, curious about Partch’s music, to find it. But no. He didn’t even look. It would appear that his editors at the Times didn’t bother using either the old tools or the new ones.

This is not an essay about how the Internet kills a sense of wonder. It is an essay about how the incurious can achieve a sense of wonder in any age. What Kreider is describing is not the numinous touch of the unrecoverable Lost Chord, but rather the tepid satisfaction of giving up too soon.

Worldwide Developer Copyright

There were a lot of new announcements in the Apple WWDC keynote. Some of them may have surprising legal implications. I’ve been tweeting about them today, and thought I’d pull together some of the issues for handy reference:

  • AirDrop will create fully encrypted local peer-to-peer networks over WiFi:

    Just click the AirDrop icon in the Finder sidebar, and your Mac automatically discovers other AirDrop users within about 30 feet of you. To share a file, simply drag it to someone’s name. Once accepted, the fully encrypted file transfers directly to that person’s Downloads folder.

    This is going to be yet another darknet vector. Imagine walking into a cafe, browsing someone else’s iTunes library, asking them for one of their albums, and getting it via AirDrop—all without knowing whose computer yours is interacting with. Sony’s rule on dual use technologies almost certainly absolves Apple of liability from any resulting infringement. Instead, this is yet another example of how technological changes are increasing the velocity with which media circulate, regardless of what copyright law may have to say about it.

  • Desktop Safari has had Reader for a while; now iOS Safari will get it too. Tap a button to remove ads and depaginates articles spread across multiple web pages. Given higher mobile latencies and small screens, this feature is going to get very heavy use. I predict that some ad-rich websites are going to be very annoyed as their pageviews drop. Will they argue that users are violating terms of service, and will any of them sue Apple for tortious interference with contract? Stay tuned …

  • iTunes Match is great, I’m really happy for you, Imma let you finish, but think for a moment about the privacy implications of asking Apple to scan your entire music library and report back on it to the Apple mothership. Right now, Genius scans your collection and reports back, but all that information is “stored anonymously.” Anonymity doesn’t work if the point is to push out actual music files to all of your devices. Similarly, this goes beyond other cloud services in that you’re not uploading specific chosen files; iTunes Match is designed to scan your entire music collection, no matter how gigantic.

    Of course, with good data collection practices and a good privacy policy, this isn’t too worrisome. But to put a point on why one might fret, imagine a copyright owner — a small music label, say — looking to engage in shotgun subpoena litigation. One source of file-shared music is the DRM-free downloads offered by Apple and Amazon. Some of those tracks, though, contain identifying watermarks. Apple could look for those watermarks, and alert the copyright owner whenever it found one that was obviously the result of file-sharing — for example, if more than ten different users had the same track with the same watermark.

    Would Apple do that? Probably not voluntarily. It would be disastrous for Apple’s image, and would probably kill iTunes Match in the marketplace. But I can imagine the lawsuit a copyright owner might put together to force Apple to rat out its users. Apple’s defense, presumably, would be that it is not itself liable as a copyright infringer, and that as the non-party target of a subpoena, requiring it to add a complicated and privacy-intrusive feature to iTunes Match would be the very definition of “unduly burdensome.” But still, the possibility of such a suit is not so obviously absurd that I am prepared to dismiss it out of hand. I’m going to be reading the iCloud privacy policy very closely.

So there you have it: a complete final exam for a digital copyright course. Thank you, Steve, for keeping my professional life interesting.

GBS at GW on June 15

GW Law is hosting a roundtable on June 15 to ask, “Can the Google Book Settlement Be Fixed?” The event is free, but registration is required. The participant list is out of this world:

  • Jonathan Band (Jonathan Band, PLLC)
  • William Cavanaugh (Patterson Belknap, formerly with the U.S. Department of Justice)
  • Michael Guzman (Kellogg, Huber)
  • Samuel Issacharoff (New York University Law School)
  • Hadrian Katz (Arnold & Porter)
  • Daphne Keller (Google)
  • Marybeth Peters (formerly Register of Copyrights)
  • Randal Picker (University of Chicago Law School)
  • Richard Pierce (The George Washington University Law School)
  • Jule Sigall (Microsoft)
  • Charles S. Sims (Proskauer)
  • Roger Trangsrud (The George Washington University Law School)
  • Brian Wolfman (Georgetown University Law Center)

I am profoundly bummed that I can’t make it, because this is clearly going to be the definitive Google Books event of the season.

Final Exam Fun

Every semester, I post my final exams once grading is done. They’re accessible from the individual course webpages, along with memos that discuss the issues raised in the exams and possible answers. I haven’t publicized this much in the past, but it occurred to me recently that some of you might find them interesting, or perhaps even entertaining.

This semester, my Property exam featured an Arrested Development theme, with a lot of shady real-estate deals and some catchphrase in-jokes. (As always, the theme is purely for flavor; knowledge of Arrested Development may make the problems more fun, but doesn’t help in answering them.) I experimented this year with more but shorter questions and stricter word limits, and I’m inclined to stick with it in the future. The focused questions did a better job of letting the first-year students focus on applying their legal knowledge without getting tripped up by a confusing mess of facts and parties in a time-limited exam.

My Internet Law exam was a take-home in an upper-level elective class, so it’s much, much harder. It’s always a challenge to come up with questions that mix and match the topics in new ways. On the one hand, I want to cover a wide enough range of issues; on the other, I want to retain a sense that the events described in a problem could actually happen. Fortunately, Internet law makes this relatively easy, because the same facts typically raise issues from all across the curriculum. This year, I had one question that uses anonymity as a window on police investigations, defamation, and copyright infringement; one that requires a deep dive on state power to prohibit obscene and indecent speech; and one that mashes open-source software and the DMCA’s anti-circumvention prohibitions together to see what results. The questions require some client counseling, too, and I was pleased with the creativity and thoughtfulness of the advice many of my students gave.

That said, Iif anyone has suggestions for how I can get across the message that the statutory text is more important than anything I say, I’m all ears …

Life Is Wasted on the Young


We finally spotted Woz and waved to get his attention. He came over to us, looking happy and excited.

“Do you guys want to introduce a band? Which one? I’ve got it worked out with Bill Graham so my friends can introduce their favorite band if they want to. We still have plenty of slots left.”

I was intrigued, since one of my favorite groups, the Kinks, were scheduled for Saturday afternoon. But getting up on stage in front of hundreds of thousands of people sounded utterly terrifying to me. I declined, but then I noticed that Burrell [Smith]’s eyes had lit up and he was very excited.

“Santana? Can I introduce Santana? That would be so cool…” Carlos Santana was one of Burrell’s favorite guitarists.

Woz pulled a piece of paper from his pocket and checked it. “OK, Santana is still open,” he told Burrell. “I’ve got you down for introducing Santana. Meet me here backstage, after Eddie Money finishes tomorrow and I’ll show you what to do.” Santana was the third act scheduled for Saturday, after Dave Edmunds and Eddie Money.

That evening, when we got back to the camper, Burrell wrote a brilliant short, sweet and humorous introduction of Santana to use the next day, and started to memorize it by reading it aloud. It was all he could talk about until we made our way backstage early on Saturday morning. Burrell waited expectantly until Woz showed up. He read Woz his introduction, which Woz really liked.

Woz led Burrell up onto the stage, trying to find Bill Graham to introduce him to Burrell and tell him about the upcoming Santana intro. But lots of people wanted to talk with Woz, and he got distracted, leaving Burrell alone on stage for a few minutes, just as Bill Graham appeared, looking pissed off as usual.

Bill Graham took one look at Burrell and grimaced. “Who the #$*! are you? What are you doing on the goddamn stage?”

Burrell explained that he was a friend of Woz’s and was waiting onstage to introduce Santana. He pulled out his notes for the introduction from his pocket and waved them for Bill Graham to see.

“Sure you are,” Bill Graham responded sarcastically. ” I’m going to introduce Santana. And you’re gonna get the #%$*! off the stage right now, this instant!”

Burrell looked around for Woz but couldn’t spot him. He started to argue but stopped short when he saw how furious Bill Graham became.

Bill Graham motioned to one of his ubiquitous bodyguards, a huge guy with long hair and tatoos covering his forearms. “Please escort this gentleman from the premises”, he ordered peremptorily, “and don’t let him return!” The bodyguard literally picked Burrell up off the ground by the back of his shirt collar and carried him off the stage and then completely out of the backstage area.

That was the last we saw of Burrell for the next six hours and we wondered what had happened to him. Finally, he reappeared just before Tom Petty started the final set of the day. Bill Graham’s thug had dragged him outside the festival gates and confiscated his gold pass. Burrell didn’t know what to do, but eventually he obtained another gold pass by walking a few miles to the house that Woz had rented for the weekend. Woz was sorry about what had transpired and asked Burrell if he wanted to try again on Sunday to introduce another band, but this time Burrell was wary and quickly declined. In fact, he had had enough of the US Festival and persuaded Bill and me to drive back home early on Sunday morning without attending the last day of shows.


([Sergey] Brin’s lack of baseball knowledge was typical; his ignorance of popular culture was legendary. Once he asked a colleague if he had ever heard of a musician named Carlos San-tain-a; Brin had been asked to introduce him at a concert. “Sergey,” the Googler said, “everyone knows who Carlos Santana is.” “I’ll just say he needs no introduction,” said Brin.)

Status Conference Report: Nothing Happens

The conference began in Judge Chin’s courtroom at 4:05 PM, and it was over by 4:10. Speaking on behalf of the publishers, authors, and Google, Bruce Keller explained that the parties were still discussing their options. Everything was on the table, the issues were complex, and they wanted to respect Judge Chin’s opinion. Thus, he asked if the parties could return before Judge Chin in 60 days. The judge pulled out his calendar and offered 10:00 AM on Tuesday, July 19, which was fine by all concerned. That was that, court adjourned.

The most exciting part of today’s conference was actually what happened before it started. The previous case on the judge’s calendar was a sentencing. The defendant had helped supply the FARC with supplies and weapons, and pleaded guilty to supporting a terrorist organization. After considering the defendant’s argument that he had been compelled to assist the FARC by threats against his family, Judge Chin sentenced him to 10 years in prison. As a reminder of the other serious business that comes through the courts, it put what followed in perspective.