The Laboratorium
September 2013

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Slippers and Smartphones

I have a guest post at the Washington Post’s Switch blog, If our top patent court screws up slipper patents, how can it rule sensibly on smartphones?, in which I rant about the ineptitude of a recent design patent opinion finding that this design for a fur-lined slipper was neither obvious nor functional:

The Federal Circuit is, in the words of my Post editor Tim Lee, a “rogue appeals court.” An excerpt from my post:

The trial court’s entirely sensible conclusion that the patent was invalid because the Snoozies’ fur lining was “functional” fared no better. According to the Federal Circuit, it was a mistake to ask whether the design’s “primary features” are functional; instead, the right question is whether the design is “primarily functional.” This distinction makes no sense in the context of the case: There is literally nothing to the Snoozies design other than fur and a slipper.

The Federal Circuit doesn’t generally see itself as a pro-patentee court. It thinks of itself as developing a rigorous and intellectually coherent body of law, which it applies even-handedly. But in the words of U.C. Irvine law professor Dan Burk, the result is a “clockwork lemon”: a “a wonderfully intricate and very precise axiomatic framework” that “bears no relationship to the actual needs” of the industries it affects. Like its utility patent doctrines, the Federal Circuit’s design patent doctrines systematically uphold patents that should never have been granted in the first place, giving trolls and titans the ability to extort settlements and muscle out the competition.

Hacker Legal Education

Cross-posted to the Concurring Opinions symposium on Gabriella Coleman’s Coding Freedom

In my Jotwell review of Coding Freedom, I commented that “Coleman’s portrait of how hackers become full-fledged members of Debian is eerily like legal education.”

[T]he hackers who are trained in it go through a prescribed course of study in legal texts, practice applying legal rules to new facts, learn about legal drafting, interpretation, and compliance, and cultivate an ethical and public-spirited professional identity. There is even a written examination at the end.

This is legal learning without law school. Coleman’s hackers are domain-specific experts in the body of law that bears on their work. It should be a warning sign that a group of smart and motivated lay professionals took a hard look at the law, realized that it mattered intensely to them, and responded not by consulting lawyers or going to law school but by building their own parallel legal education system. That choice is an indictment of the services lawyers provide and of the relevance of the learning law schools offer. A group of amateurs teaching each other did what we weren’t.

Their success is an opportunity as well as a challenge. The inner sanctums of the law, it turns out, are more accessible to the laity than sometimes assumed. One response to the legal services crisis would be to give more people the legal knowledge and tools to solve some of their own legal problems. The client who can’t afford a lawyer’s services can still usually afford her own. More legal training for non-lawyers might or might not make a dent in law schools’ budget gaps. But it is almost certainly the right thing to do, even if it reduces the demand for lawyers’ services among the public. There is no good reason why law schools can only impart legal knowledge to by way of lawyers and not directly.

Hacker education, however, also shows why lawyers and the traditional missions of law schools are not going away. Law is a blend of logic and argument, a baseball game that depends on persuading the umpire to change the rules mid-pitch. Hacker legal education, with its roots in programming, is strong on formal precision and textual exegesis. But it is notably light on legal realism: coping with the open texture of the law and sorting persuasive from ineffective arguments. The legal system is not a supercomputer that can be caught in a paradox. The professional formation of lawyers is absent in hacker education, because theirs is a different profession.

Legal academics also play a striking role in hacker legal education. Richard Stallman was of course the driving personality behind free software. But Columbia’s Eben Moglen had an absolutely crucial role in crafting the closest thing the free software movement has to a constitution: the GNU GPL. And Coleman documents the role that Larry Lessig’s consciousness-raising activism played in politicizing hackers about copyright policy. They, and other professors who have helped the free software community engage with the law, like Pamela Samuelson, in turn, drew heavily on the legal scholarly tradition even as they translated it into more practical terms. The freedom to focus on self-chosen projects of long-term importance to society is a right and responsibility of the legal academic. Even if not all of us have used it as effectively as these three, it remains our job to try.

Goose Eggs

The Golden Goose Awards recognize “scientists and engineers whose federally funded research has had significant human and economic benefits.” Recipients include the microbiologists whose study of bacteria of hot springs in Yellowstone National Park laid the groundwork for the DNA-copying polymerase chain reaction that is now ubiquitous in genetic testing and research.

The name is a play on the Golden Fleece Awards the late Senator Proxmire gave to projects he considered to be wasting federal funds. The point of the Golden Goose Awards is to celebrate federal support for basic research by emphasizing its long-term benefits.

I respect the reasoning behind the name; it’s a clever pun. But this invocation of the Goose That Laid the Golden Eggs (the goose itself is not actually golden and is not to be confused with the Golden Goose), like many other contemporary uses of the fable, obscures its moral. Here is the Project Gutenberg version:

A Man and his Wife had the good fortune to possess a Goose which laid a Golden Egg every day. Lucky though they were, they soon began to think they were not getting rich fast enough, and, imagining the bird must be made of gold inside, they decided to kill it in order to secure the whole store of precious metal at once. But when they cut it open they found it was just like any other goose. Thus, they neither got rich all at once, as they had hoped, nor enjoyed any longer the daily addition to their wealth.

Much wants more and loses all.

This is not primarily a story of short-sightedness; this is a story of greed. The farmer and his wife do not kill the goose to eat it, or neglect the goose, or sell it for a pile of beans. They kill the goose because they want more golden eggs, and they want them now.

This is what I think of whenever I read about a new round of venture capital funding. In today’s overheated technology “economy,” venture capitalists are itinerant axemen, always on the prowl for geese to chop open. That’s how they work. They find a product, a service, a community that has about it something magical, and they shove money down its throat. But because they expect to be repaid, either the goose accelerates its egg-laying exponentially or out comes the axe. The goose only rarely survives; the magic never does.

Keep this in mind when you hear of investments in anything with the prefix “community,” “social,” “sharing,” or “crowd”: the warmth of real human connection is hard to get right. Keep it in mind when you ponder the uneasy coexistence of Kickstarter’s haves and have-nots. And especially keep it in mind when you think about the massive influx of money into online education. What made the early MOOCs so thrilling was precisely the absence of all of the impediments to knowledge ordinarily imposed to keep the customers paying. Remember that the problem with music extends well beyond music. And if someone starts telling you about golden eggs, be sure to look for the goose.


Earlier today, a deranged hoodlum splashed acid in a tourist’s face. Then he fled and was seen entering the crowd at an outdoor concert. The police don’t have enough officers nearby to arrest him. But they have offered to fly a helicopter overhead and have it drop a hand grenade into the part of the crowd where he is believed to be.

If you support dropping the grenade, congratulations. You are qualified for a high-level policy-making position with the Obama administration. It too believes in futile action at all costs.

Such is the situation in Syria today. A hundred thousand deaths into Syria’s civil war, the apparent use of chemical weapons against a thousand more has stirred Obama to action. There are no good options. But there is one that is clearly worse, both ineffective and immoral, and it is the one he has chosen.

Obama proposes a deliberately vague series of military strikes. They are not designed to topple Assad or bring the commanders who ordered the use of nerve agents to justice. They are not calculated to protect civilians or bring the fighting to an end. Only two things seem clear. There will be no American “boots on the ground,” and Syrians will die.

This is not Kosovo, where the bombing campaign was designed bring a reluctant government to the negotiating table, and did. It is not Libya, where the bombing campaign was designed to bring down a criminal government. It is not even Iraq or Afghanistan, where there were at least plans for postwar peace, however ill-considered. There is no plan in Syria, not even a theory of what will happen the day after the bombing.

The Syrian civil war will continue as before, town by town and block by block. The only differences will be that the United States will be even more deeply implicated. It will be blamed for shooting, and for stopping. It will be blamed for the warheads that hit, and for the ones that miss. Whoever comes to power will not thank the United States; whoever is out of power will curse it. Even by the bleakly absurdist standards of warfare, this proposed offensive is pointless.

The Syrian military committed a great evil when it launched nerve agents against civilians. But just because something is prohibited does not mean that responding—let alone responding with violence—is mandatory. No policeman is everywhere; no prosecutor charges everyone.

The moral question is simple and eternal. Will the proposed response do more good than harm? The unwillingness of Obama and his surrogates to answer the question as posed tells you everything you need to know about the answer. They offer instead a series of arguments about absolutes, arguments disgusting in their indifference to human consequences.

It is said that the victims of the nerve agents used are “real human beings.” So they are. And so are the people who will be killed if the United States bombs this war-torn country.

It is said that chemical weapons are illegal under international law. So they are. And so is the use of military force against a United Nations member state without the approval of the Security Council.

It is said that the use of chemical weapons raises an urgent responsibility to protect victims. So it does. But it is also said that the attacks now being urged will, at best, “degrade” Syria’s ability to use chemical weapons. And at worst, they will put Assad to the choice of using his chemical weapons or losing them.

It is said that using chemical weapons is a war crime. So it is. But there have been many war crimes in this civil war, and not all on the one side.

It is said that this is “our Munich moment.” It is not. The comparison cheapens the millions of deaths in the Holocaust, and it ignores the tens of millions of deaths in World War II. When every dictator is Hitler, no one is.

It is said that we cannot stand on the sidelines while a middle Eastern country descends into sectarian conflict. We can. We are doing just that in Egypt.

It is said that we have exhausted our other options. We have not. We could spend the many millions of dollars a Syria strike would cost on easing the suffering of the refugees from the civil war, or on the many other urgent humanitarian crises around the world.

It is said that the United States will lose credibility if it fails to strike now. Perhaps it will. It will certainly lose credibility, both political and moral, if it strikes with little effect and then walks away.

Every bad habit of the Obama administration is on display in this deplorable episode. Having chosen the most politically expedient course of action (in light of its delusional sense of politics), it now seeks to persuade the world that its choice is both most the likely to work and the most morally upstanding. It is neither, and brazen insistence to the contrary in the face of overwhelming evidence is shameful and sad.

I am a resident of the District of Columbia; I have no vote in Congress. But I ask you, my fellow Americans, please call your Senators and Representatives, and tell them urgently to vote against the use of military force in Syria. This is that rarest of political moments in America: a crucial vote on an issue of the utmost importance whose outcome hangs in the balance. Constituent calls and public debate have the power to change what happens this week. Please, please, please vote against this pointless war.

Tipping Point

The perpetual panics about tipping seem to me fundamentally misguided. Tipping partakes of the gift economy; gifts must announce themselves as freely given and incommensurable or they are not gifts. The underlying reciprocity must remain implicit, or the cultural meaning of the gift is lost. Judged, then, as market exchange designed to compensate severs and induce them to provide better service, the tip cannot help but be found wanting. It is not of that realm. The tip stands as a social practice of ritualized gratitude and respect. It does that job well enough, but so can other social practices, as long as the relationship is defined clearly enough that other signals of sufficient reciprocity can flow between the strangers who meet for a meal.

Eight Years Later, the Google Books Fight Lumbers On

My latest Publishers Weekly column, Eight Years Later, the Google Books Fight Lumbers On uses the occasion of the latest briefs in the Google Books lawsuit to reflect on why the case is still with us:

Like a pair of boxers staggering from their corners for the ninth round, Google and the Authors Guild traded another round of briefs last week in their long-running, slow-moving Google Books fight. There is very little left to be said at this point in the case, and they said it at great length. The question is, why are they still fighting? …

For the Authors Guild, going after Google is a matter of principle. The suit reflects a common sentiment among copyright owners: that Google is getting rich in a business that involves copyrighted content, so, therefore, a part of that profit is rightly theirs. But unlike in the now-settled publishers’ suit, the emphasis is on “rightly” rather than on”profit.” What the Authors Guild seeks is a judicial declaration of authorial power, an official statement from the courts recognizing the proper place of arts and letters in our national culture.