Concurring Opinions » Deven Desai

Archiving Our Digital Heritage

Deven Desai — Wed, 17 Mar 2010 20:32:33 +0000

Archiving our digital heritage becomes more important each day. We all generate an incredible amount of cultural and social content. As I wrote in my article, Property, Persona, and Preservation, “Before one can access, one must preserve.” Thus, I am happy to see what appears to be an movement towards greater preservation of our digital culture. But, I am also wondering about the implications of these efforts for intellectual property.

First, there are some different preservation efforts to consider. The NY Times ran a piece about Emory University’s attempt to archive Salman Rushdie’s work from book material to letters to digital artifacts. In addition, Carl Malamud has found yet another way to help reserve our digital knowledge. His latest project, the International Amateur Scanning League, hopes to upload the National Archives’ collection of 3,000 DVDs to YouTube by rallying volunteers to crowd-source the immense project. The idea of increasing access to the National Archives seems brilliant. The Times notes that great information including “an address by John F. Kennedy; a silent film about the Communist ‘red scare’; a training video on farming; and a Disney film for World War II soldiers about how to avoid malaria, in Spanish” has been uploaded. Furthermore, C-SPAN is now putting up 23 years worth of its video history online for free at C-SpanVideo.org. Just how much droning one may want to watch is beyond me, but if the archive is searchable, the ability to dig up even more about any candidate will mean greater election madness, and I’d bet reduce any legislator’s chance of winning the White House even more than is already the case.

In general, these projects present some fascinating questions. As the Rushdie article notes, the technical questions about preserving the data so it does not decay and having systems that can even allow access to the material are complex:

Mr. Rushdie’s outdated computers presented archivists with a choice: simply save the contents of files or try to also salvage the look and organization of those early files. Because of Emory’s particular interest in the impact of technology on the creative process, Naomi Nelson, the university’s interim director of Manuscript, Archives, and Rare Book Library, said that the archivists decided to try to recreate Mr. Rushdie’s writing experience and the original computer environment.

The National Archives project will most likely run into a lawsuit for “Although the DVDs are all technically available to the public, they are hard to see unless a person visits the archive or pays for a copy via Amazon.com. With the scanning project, they are a few mouse clicks away.” That points says to me that there may be some money claims hiding in the background. In addition, some of the works in the Archives may be subject to estate license restrictions. I think the resistance will occur despite the government’s desire to expand access to government information repositories. Like the Google Book Project, I would expect publishers to rush in and cry foul. Authors may do so too. As shown by the Google deal and in publishing in general, the status of who holds the digital rights for older material is likely specific to each contract. The messy anti-commons problems await. Still, assuming the project is permitted, it is great to have the material more easily available.

As for C-Span, I look forward to seeing whether this amount of access improves debate or hinders it. One might be even more circumspect about how one argues in the empty chamber or one may grandstand even more in the hopes of catching attention.

For me, digital archives present an excellent way to press on what we want out of our intellectual property, education, and information policies. These archiving efforts show different slices of the opportunities and problems that we are quite fortunate to have.

What Do We Gain From Transparency? Or Metrics for Open Government

Deven Desai — Wed, 17 Mar 2010 20:31:30 +0000

The folks at CITP and many others are quite excited about open government. One specific project, RECAP, looks to open access to court cases. The briefs and opinions of federal courts would be available to the public. Although I tend to laud this effort, I have also started to press on exactly why such access is a good thing. The standard techno-libertarian more information is a good thing model is most unsatisfying and does not provide enough guidance for my taste. I tend to agree that increased access to knowledge can have beneficial effects and that openness is a solid guiding star in many areas of policy. Still, once one gets into a specific context, I fear that the general assertions fall short. The recent open government conference that CITP hosted at Princeton lead me to try and state why access to court documents is desired. Here are the three goals that I think capture the reasons to support the idea.

1. Insofar as ignorance of the law is no defense, one needs access to the the law as rules. Providing the public with free access to court documents, especially opinions, allows the public to have the potential to investigate, understand, use, and challenge the law as it may see fit.

2. Another area that I believe few, if any, have offered, is that in addition to knowing the law, one needs to know how to use it. In other words, one needs to know how the law works. As law students and young associates quickly discover, the format and style in which one presents a legal argument matters. Providing access to briefs fulfills an instructional role. Lawyers do not re-invent wheels. They borrow briefs and exemplars from colleagues and now can even get briefs for some cases off of Westlaw. As a general matter, improving writing entails reading good writing. In addition, pro se and really anyone appearing before a court, can benefit from seeing how others argued a point. In addition, details such as how to organize a brief, state jurisdiction, and matter. My guess is that the more a brief looks professional, the more credence it is given. Thus, a second reason to open access to court documents is to provide the public with the tools it needs understand how the courts work and to use the law.

3. Open access to court documents also permits the public to take on a watchdog function. When anyone uses the system, as they are allowed to do, to bring several suits (e.g., file sharing suits), or use the system to push around smaller competitors, or use the system to pester large corporations with frivolous or greenmail suits, or any other practice that may be suspect, open access to court documents would enable the public to police the system. More obviously, such access would reduce the potential for corruption in the courts as well.

There are, of course, potential downsides to opening access to court documents. Privacy problems loom large. The practical obscurity that perhaps balanced the watchdog aspect with privacy problems would diminish if not vanish. Thus, I offer the above metrics in part to argue that one might be able to achieve the goals without sacrificing privacy. In short, completely full access to court documents that starts to harm privacy does not seem necessary to achieve the goals set forth above. Yet, it seems that if we have a system that hampers the public’s ability to engage with the court system on these three levels, we seem to have an impoverished idea of what access to the court means and the power it could have.

A Little Literary Diversion

Deven Desai — Fri, 05 Mar 2010 21:18:30 +0000

Compare and contrast is the name of the game today.

Openings are vital to a novel and maybe any writing. I was reading an older text, and it reminded me of another beautiful opening from an even older work. I thought I’d share short portions above the fold, to whet your appetite. Larger excerpts are below the fold for those who wish to see the full passages and revel in the glory of great writing. (For fun, you might try and guess the sources).

1st passage:
All the world was before me and every day was a holiday, so it did not seem important to which one of the world’s wildernesses I first should wander.

2nd passage:
Some years ago – never mind how long precisely – having little or no money in my purse, and nothing particular to interest me on shore, I thought I would sail about a little and see the watery part of the world.

Here are the larger passages. The authors and titles are listed at the end.

1st passage: (1912)
When I set out on the long excursion that finally led to California I wandered afoot and alone, from Indiana to the Gulf of Mexico, with a plant-press on my back, holding a generally southward course, like the birds when they are going from summer to winter. From the west coast of Florida I crossed the gulf to Cuba, enjoyed the rich tropical flora there for a few months, intending to go thence to the north end of South America, make my way through the woods to the headwaters of the Amazon, and float down that grand river to the ocean. But I was unable to find a ship bound for South America–fortunately perhaps, for I had incredibly little money for so long a trip and had not yet fully recovered from a fever caught in the Florida swamps. Therefore I decided to visit California for a year or two to see its wonderful flora and the famous Yosemite Valley. All the world was before me and every day was a holiday, so it did not seem important to which one of the world’s wildernesses I first should wander.

Arriving by the Panama steamer, I stopped one day in San Francisco and then inquired for the nearest way out of town. “But where do you want to go?” asked the man to whom I had applied for this important information.

“To any place that is wild,” I said. This reply startled him. He seemed to fear I might be crazy and therefore the sooner I was out of town the better, so he directed me to the Oakland ferry.

Source here

2nd Passage (1851):
Call me Ishmael. Some years ago – never mind how long precisely – having little or no money in my purse, and nothing particular to interest me on shore, I thought I would sail about a little and see the watery part of the world. It is a way I have of driving off the spleen, and regulating the circulation. Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul; whenever I find myself involuntarily pausing before coffin warehouses, and bringing up the rear of every funeral I meet; and especially whenever my hypos get such an upper hand of me, that it requires a strong moral principle to prevent me from deliberately stepping into the street, and methodically knocking people’s hats off – then, I account it high time to get to sea as soon as I can. This is my substitute for pistol and ball. With a philosophical flourish Cato throws himself upon his sword; I quietly take to the ship. There is nothing surprising in this. If they but knew it, almost all men in their degree, some time or other, cherish very nearly the same feelings towards the ocean with me.

Source here

By now you probably know the second passage is from Moby Dick. The first passage is from John Muir’s The Yosemite.

The Secret Behind Amazon and Macmillan’s Fight: Google?

Deven Desai — Wed, 03 Feb 2010 23:17:28 +0000

Many may know about the fight between Amazon and Macmillan publishing. Yes it is about e-books and pricing, and the death of an industry, the death of print, and heck throw in Death in Venice if you like. But the real move may have been to highlight something else Amazon is quite worried about: Google and the Book Settlement.

Would Amazon really refuse to carry all books from one of the largest publishers in the Untied States? As my friend John Scalzi pointed out (He was one of the first to notice the move, because his publisher is part of Macmillan, and his fans asked him why his books were not available almost immediately after Amazon’s move.), Amazon waited until late Friday to remove the Macmillan books. John thought that the timing was probably designed to mitigate any negative responses that might go Amazon’s way. I think John was correct, but I think this statement reveals a perhaps bigger reason for the bluff:

“We have expressed our strong disagreement and the seriousness of our disagreement by temporarily ceasing the sale of all Macmillan titles,” Amazon said. “We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.”

Just to repeat it: “Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.” Where else does monopoly and books arise? Ah yes, when Amazon (and others) opposes the Google Book Settlement.

I think this move provides an interesting, concrete example that will be offered to argue that the GBS will provide Google with power equal to or greater than Macmillan’s. The question is, if it is a monopoly as Amazon claims, why aren’t folks attacking all major publishers? Amazon may argue that Google will have a unique position in the e-book market, but those claims require more details if one is to sort them properly.

An Overdue Thank You and a Resource for IP Folks

Deven Desai — Wed, 03 Feb 2010 22:49:53 +0000

Mike Madison is a great friend. Don’t take my word for it. Just take a look at one example of his generosity. Mike has always been a wonderful resource for anyone looking to improve their scholarship. I know I have benefited from his time and advice. We have talked a few times about a concern that Mike had raised: “younger IP scholars either have lost the knack of knowing something about the history of the discipline – or never acquired it in the first place.” A month ago Mike took action to help remedy the concern. I, for one, am most grateful to have the resource (and Mike might be happy that I contact him less often about such matters). I hope it helps anyone in the field. In addition, I hope others who perceive similar possible gaps in knowledge take the time to construct and share analogous lists in their fields. Until then, here are links to Mike’s gifts.

Lost Classics of Intellectual Property Law – Background and Introduction
Lost Classics of Intellectual Property Law – Copyright
Lost Classics of Intellectual Property Law – Trademark
Lost Classics of Intellectual Property Law – Patent

U.C. WAKE UP CALL: How Scale and Action Can Save the U.C. and Maybe the Rest of Higher Education in California

Deven Desai — Wed, 03 Feb 2010 22:34:49 +0000

I love California, and I love the University of California. I am saddened by the recent financial problems the state and the entire education system faces. But I am more upset by what seems to be a failure of the education system: people who think 60s style protests are useful and wise responses to problems they helped create.

Sit-ins, threats, throwing food at Regents, and chants of the “What do we want? X! When do we want it? Now!” ilk remind me of a five year old throwing a tantrum; not intelligent people trying to change the system and take responsibility for their role in the problem. When I was at Berkeley, a professor noted that protesting the first Iraq war (especially in the Bay Area) was not as effective as the same thousands of people writing to Congress members and being clear where their donations and votes would go in the future. The same applies to the education funding problem.

Instead of putting all that great activist energy to campaigning for funding education, Californians have coasted on a system that cannot work without incredible growth. Californians cling to a broken property tax system, fail to push for better education funding, and back spending a billion dollars on prisons. Shame on us.

U.C. Berkeley’s alumni association sent me an email claiming close to 500,000 living alumni. That is but one campus in a system of 10 campuses. Now, add in the numbers of Californians who attend or graduated from the CalState and Community College system. Given the graduates, the current employees, and students at all the higher education campuses, there ought to be a focused, powerful political group that could move the state towards fixing its education funding problems. Rather than doing so, many of these folks waited until the state had no money and in a sense no choice about what to do to address the shortfall. The Regents and the students are finally joining together to voice their views in Sacramento. This type of action should have happened in the first place.

And, there is more to do. We need to start giving money to our respective campuses. I have more to say on this point. But in case you want to give now, here is the link to give to Cal. Here is a jump page with links to give to other U.C. campuses. Here is the link for giving to the CalState system. Here is the link to give to California’s Community College system.

When I was at Berkeley, California’s recession resulted in, I think, a 100% increase in fees over the four years. It was still a great deal. As I understand it, fees barely cover professors’ salaries at some of the campuses. Fundraising and endowment money is already part of the funding formula. But how are we doing as alumni?

Part of the problem is that there is not the culture of giving that the Ivies and other elite private schools foster. Yet, private schools cost quite a bit more, and their graduates still give huge amounts back to their schools. I must confess that until recently, I too, did not give at all. That was an error, and based, in part on the fact that giving was not part of the culture and that it had not occurred to me sooner. California education must start to foster that sense of community that generates a giving culture.

I did not and do not, however, subscribe to the idea that one should not give to a public institution. It is childish to claim that public schools do not deserve the same loyalty and support. I believe they deserve it more.

If you went to a U.C. (and really any part of the California higher education system) and have a job, I suggest that you should give at least $100 per year to your school. The education we received was highly subsidized. It’s time to let others have that same benefit.

Part of the glory and greatness of California flows from the education system. That stream of plenty is drying up because we have not funded it. If we want to continue to be a great state, positioned to compete in the information age, we must suck it up now and invest in this vital infrastructure. Or, from a purely self-interested view, giving to your campus will help maintain the value of your degree. And, yes, your degree has a value.

Here is the best part. Unlike the top private schools against which we compete, we have the numbers. Yes, it’s crowd sourcing power. 500,000 graduates at $100 per yer average would mean $50,000,000 per year to Berkeley. That money would help in huge ways. A percentage could go to stabilizing fee hikes, endowing chairs, or specific projects aimed at helping students (and as much as I love the Bears, no, sports funding is not the best way to address the current problems). If such giving occurred at all the campuses across California’s higher education system, the effect could be huge. In addition, the higher percentage of alumni who give, the easier it is for development offices to obtain large donations from big donors and foundations.

California, it is time to wake up. The future is still ours for the taking, but we must pay attention to the things that propelled us to greatness. Education is a huge part of that success. Let’s fund it for our continued success today and in the future.

A Great Horn Section and Some Wild Clothes to Brighten Your Day

Deven Desai — Mon, 25 Jan 2010 23:29:24 +0000

Most of the country is facing some rather grim weather. Classes have begun. Grades are in. The holidays are over. There is work to do. Many things may be getting you down. So I offer this tune as a small pick-me-up for those who may need it. If the music doesn’t work for you, perhaps the outfits and the early special effects will. Enjoy.

Education, Technology, and Empirical Data

Deven Desai — Fri, 15 Jan 2010 23:27:19 +0000

I just returned from the Institute for Advanced Study’s Symposium on Technology and Education. Anyone interested in how education operates should contact the folks in today’s symposium or in the year-long seminar The Dewey Seminar: Education, Schools and the State. It is a great group of people thinking about justice, finance, the structure of schools, education and labor matters, whether constitutions address education, and much more. Indeed, it struck me that many of the participants’ work could provide interesting opportunities for collaboration.

Today’s speakers offered some fantastic ideas about the way education works in K-12. One thing that occurred to me was how, in yet another field, data is increasingly important. In many areas, vast amounts of data are being used to understand how a student is performing or where a different type of learning style may be required or whether a teacher is effective, and so on. This point may be readily familiar to those interested in empirical legal studies. Yet, two key issues arise. How does one sort the data? And, how does one interpret the data.

The answer seems to lie in the ability to embrace the Google mindset. Take in data. Study it. Study it. Study it. And see where it takes you. As Hal Varian has described (pdf), “The real secret to Google’s success is that they are constantly experimenting with the algorithm, adjusting, tuning and tweaking virtually continuously.” He compares this approach to “the Japanese approach to quality control is kaizen which is commonly translated as ‘continuous improvement.’” As general matter Varian has offered:

During the 1960s and 70s the scientific study of financial markets flourished due to the availability of massive amounts of data and the application of quantitative methods. I think that marketing is at the same position finance was in the early 1960s. Large amounts of computer readable data on marketing performance are just now becoming available via search engines, supermarket scanners, and other sorts of information technology. Such data provides the raw material for scientific studies of consumer behavior and I expect that there will much progress in this area in the coming decade.

After today’s seminar I am wondering whether “large amounts of computer readable data on marketing performance” could also be written “large amounts of computer readable data on education performance.” It seems like that day is coming, if not already here. We may be entering an era where education is heavily data driven and educators must be able to use new tools to understand and use the data. The challenges regarding privacy, notions of tracking, and fairness will be large. Then again the promise of improved educational outcomes and a system that can reach more students in ways far beyond training them to jump through test-taking hoops suggests that whatever the obstacles, it is worth pursuing the possibilities.

Timothy B. Lee’s “Google Attacks Highlight the Importance of Surveillance Transparency”

Deven Desai — Fri, 15 Jan 2010 21:05:30 +0000

The Google China news deserves some thought for a range of reasons. The questions about democracy, censorship, and more that swirled around Google and China’s relationship are important. One issue that is easily lost is the relationship between the claimed reasons for Google’s leaving China and policies about surveillance. My colleague at CITP, Timothy B. Lee, wrote an excellent piece at Freedom to Tinker about this issue. Ordinarily I would summarize and point folks to the post. It captured my attention so much, however, that I asked Tim whether I might repost it in full here. I am happy that he has agreed.

Google Attacks Highlight the Importance of Surveillance Transparency

by Timothy B. Lee

Ed posted yesterday about Google’s bombshell announcement that it is considering pulling out of China in the wake of a sophisticated attack on its infrastructure. People more knowledgeable than me about China have weighed in on the announcement’s implications for the future of US-Sino relations and the evolution of the Chinese Internet. Rebecca MacKinnon, a China expert who will be a CITP visiting scholar beginning next month, says that “Google has taken a bold step onto the right side of history.” She has a roundup of Chinese reactions here.

One aspect of Google’s post that hasn’t received a lot of attention is Google’s statement that “only two Gmail accounts appear to have been accessed, and that activity was limited to account information (such as the date the account was created) and subject line, rather than the content of emails themselves.” A plausible explanation for this is provided by this article (via James Grimmelmann) at PC World:

Drummond said that the hackers never got into Gmail accounts via the Google hack, but they did manage to get some “account information (such as the date the account was created) and subject line.”

That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.

Obviously, this report should be taken with a grain of salt since it’s based on a single anonymous source. But it fits a pattern identified by our own Jen Rexford and her co-authors in an excellent 2007 paper: when communications systems are changed to make it easier for US authorities to conduct surveillance, it necessarily increases the vulnerability of those systems to attacks by other parties, including foreign governments.

Rexford and her co-authors point to a 2006 incident in which unknown parties exploited vulnerabilities in Vodafone’s network to tap the phones of dozens of senior Greek government officials. According to news reports, these attacks were made possible because Greek telecommunications carriers had deployed equipment with built-in surveillance capabilities, but had not paid the equipment vendor, Ericsson, to activate this “feature.” This left the equipment in a vulnerable state. The attackers surreptitiously switched on the surveillance capabilities and used it to intercept the communications of senior government officials.

It shouldn’t surprise us that systems built to give law enforcement access to private communications could become vectors for malicious attacks. First, these interfaces are often backwaters in the system design. The success of any consumer product is going to depend on its popularity with customers. Therefore, a vendor or network provider is going to deploy its talented engineers to work on the public-facing parts of the product. It is likely to assign a smaller team of less-talented engineers to work on the law-enforcement interface, which is likely to be both less technically interesting and less crucial to the company’s bottom line.

Second, the security model of a law enforcement interface is likely to be more complex and less well-specified than the user-facing parts of the service. For the mainstream product, the security goal is simple: the customer should be able to access his or her own data and no one else’s. In contrast, determining which law enforcement officials are entitled to which information, and how those officials are to be authenticated, can become quite complex. Greater complexity means a higher likelihood of mistakes.

Finally, the public-facing portions of a consumer product benefit from free security audits from “white hat” security experts like our own Bill Zeller. If a publicly-facing website, cell phone network or other consumer product has a security vulnerability, the company is likely to hear about the problem first from a non-malicious source. This means that at least the most obvious security problems will be noticed and fixed quickly, before the bad guys have a chance to exploit them. In contrast, if an interface is shrouded in secrecy, and only accessible to law enforcement officials, then even obvious security vulnerabilities are likely to go unnoticed and unfixed. Such an interface will be a target-rich environment if a malicious hacker ever does get the opportunity to attack it.

This is an added reason to insist on rigorous public and judicial oversight of our domestic surveillance capabilities in the United States. There has been a recent trend, cemented by the 2008 FISA Amendments toward law enforcement and intelligence agencies conducting eavesdropping without meaningful judicial (to say nothing of public) scrutiny. Last month, Chris Soghoian uncovered new evidence suggesting that government agencies are collecting much more private information than has been publicly disclosed. Many people, myself included, oppose this expansion of domestic surveillance grounds on civil liberties grounds. But even if you’re unmoved by those arguments, you should still be concerned about these developments on national security grounds.

As long as these eavesdropping systems are shrouded in secrecy, there’s no way for “white hat” security experts to even begin evaluating them for potential security risks. And that, in turn, means that voters and policymakers will be operating in the dark. Programs that risk exposing our communications systems to the bad guys won’t be identified and shut down. Which means the culture of secrecy that increasingly surrounds our government’s domestic spying programs not only undermines the rule of law, it’s a danger to national security as well.

Update: Props to my colleague Julian Sanchez, who made the same observation 24 hours ahead of me.

Maybe It’s Not Broken: Law Schools, Critical Thinking, and Carnegie

Deven Desai — Thu, 14 Jan 2010 21:33:35 +0000

Law school doesn’t work. The model is broken. We need to train students to be ready to practice as full lawyers right out of law school. These are, of course, slightly hyperbolic reductions of some of the current claims and possible crises in legal education. Nonetheless, there has been discussion of whether the downturn means that law schools need to rethink what they are doing. I have written before that I think law school offers a special skill better than other schools: critical thinking. None of which to say that legal education could not improve. But insofar as that drive to improve is a claim for more practical training, there is another reason to pause. Business schools and at least one business leader seem to say that what they want is someone with, wait for it, great critical thinking skills. What? Yes. Excellent critical thinking skills are requested. And it gets better. Business schools are under criticism for, wait for it, being too practical. “Ever since 1959, when two influential studies by the Ford and Carnegie Foundations chastised business schools as being too vocational, most M.B.A. programs have taken anything but a broad approach to their subject matter.”

That’s correct. According to Carnegie, business schools were too practical. Law schools are too abstract. Which bed will Goldilocks pick? Is there a perfect blend? Perhaps, but one must wonder whether there is a pattern of over-reaction to whatever system is dominant in a given field. I like the idea of law professors using more real world examples in class and that law school should prepare students to write well. But I firmly believe that writing well is a function of reading and engaging with theory as well as other material. In other words, law schools must continue to develop and hone critical thinking skills.

Take a look at this quote from Nancy McKinstry, the C.E.O. and chairwoman of the executive board of Wolters Kluwer about qualities she looks for when hiring: “I look for people who are good problem solvers. Again, I think that’s from my own experience — if you know how to solve problems, you have a shot of performing at a higher level. You obviously need some subject-matter expertise, but I’d rather have someone who’s really strong on problem-solving, and maybe a little less on the subject-matter expertise, because we can teach them that.”

It sounds like something a law school might say. We’ll train you how to think. The details can be sorted as they arise.

If the New York Times is correct that “even before the financial upheaval last year, business executives operating in a fast-changing, global market were beginning to realize the value of managers who could think more nimbly across multiple frameworks, cultures and disciplines. The financial crisis underscored those concerns — at business schools and in the business world itself,” maybe law schools should remember that they are damn good at developing those skills.

In fact, as the Times noted, “while few [business schools] talk explicitly about taking a liberal arts approach to business, many of the changes are moving business schools into territory more traditionally associated with the liberal arts: multidisciplinary approaches, an understanding of global and historical context and perspectives, a greater focus on leadership and social responsibility and, yes, learning how to think critically.” Isn’t that what we do at law school?

Double Serendipity: Danielle Allen and the Institute for Advanced Study’s Sympoium on Technology and Education

Deven Desai — Thu, 14 Jan 2010 15:52:00 +0000

One thing that Dan Burk, Mike Madison, Dan Solove, and a few others told me as I started my academic career was that it was important to read, read, read; attend conferences; and engage with other professors about their work. With that base one slowly but surely develops better material and grows a network of colleagues who will be able to let you know where you work is strong and where it needs improvement. I took that idea to mean go ahead and contact folks when you have something to say.

Just before I heard that I was going to be at Princeton, I contacted an old friend, Danielle Allen because some of her work on democracy and rhetoric caught my attention. Danielle and I had attended K-8 grades together but lost touch after that. It turns out that she just had seen my name in the acknowledgment section of one of Dan Solove’s books and wondered whether that was the same person she knew. It was. Danielle is at the Institute for Advanced Studies here in Princeton. We caught up over lunch, had a great time, and I learned about her work at IAS. One of her projects is the The Dewey Seminar: Education, Schools and the State, which she co-organized with Rob Reich. Here is the scope of the project:

Every society and political regime develops educational institutions and practices that substantially shape its evolution, revolutions, and stabilization over time. The Dewey Seminar will explore the interrelationships among education, justice, schools, and the state. Because of the centrality of education to the continuity of sociopolitical orders, its analysis embraces virtually all the social sciences. A significant number of the School’s Members this year will pursue work related directly to this theme-from exploring how diverse educational practices are linked to specific political orders to studying contemporary pressures on education and its capacity to support democratic political systems.

In 1916 the philosopher John Dewey published Democracy and Education: an introduction to the philosophy of education. He sought an account of education that could enable human flourishing both individually and collectively for democratic citizens. Our seminar takes its inspiration from his aspirations.

Anyone interested in these topics should go to the Seminar’s home page and check the participant list.

The seminar has various components one of which is a symposium series with practitioners. At lunch, Danielle mentioned that the January symposium is on Technology and Education. The people involved and their projects to use technology to generate real change in education are ambitious and inspiring. I will be attending and thinking about how these ideas connect to IP as a barrier to innovation, the Google Book deal, and where a combination of law and technology might be able to break through current problems in technology and education. In short, I have caught up with an old friend, and I get to hear leaders in their fields talk about the promises and challenges of technology and education. It is a great start to the new year, and I am grateful to those who were part of my enjoying a little double serendipity.

Open Government Conference at Princeton

Deven Desai — Wed, 13 Jan 2010 22:44:09 +0000

As some of you know, I am at Princeton’s Center for Information Technology Policy for the year. It is great to be around the folks here for a host of reasons. A big one is the speakers and conferences the Center hosts. I wanted to let folks know that next week, the Center is running Open Government: Defining, Designing, and Sustaining Transparency. Joe Hall, Stephen Schultze, and Ed Felten organized this conference. CITP has already done some great work with RECAP and FedThread. This conference looks to continue that work:

Despite increasing interest in issues of open government and governmental transparency, the values of “openness” and “transparency” have been undertheorized. This workshop will bring together academics, government, advocates and tinkerers to examine a few critical issues in open and transparent government. How can we better conceptualize openness and transparency for government? Are there specific design and architectural needs and requirements placed upon systems by openness and transparency? How can openness and transparency best be sustained? How should we change the provision and access of primary legal materials? Finally, how do we best coordinate the supply of open government projects with the demand from tinkerers?

The current list of panelists includes:

* Jerry Brito, senior research fellow and adjunct professor at the Mercatus Center at George Mason University, and director of its Technology Policy Program
* Tom Bruce, co-founder and director of the Legal Information Institute at the Cornell Law School, the first legal-information web site in the world
* Brian Carver, assitant professor at the University of California, Berkeley School of Information
* Anil Dash, director of Expert Labs, part of the American Association for the Advancement of Science
* Ed Felten, director of Princeton University’s Center for Information Technology Policy
* Joseph Lorenzo Hall, joint postdoctoral researcher at the University of California, Berkeley School of Information and the Princeton University’s Center for Information Technology Policy
* Ginny Hunt, product manager for Google Public Sector at Google
* John Joergensen, reference librarian at the Rutgers School of Law, Camden
* Clay Johnson, director of Sunlight Labs
* Eric Kansa, executive director of the Information and Service Design Program at the University of California, Berkeley School of Information
* Carl Malamud, the President and Founder of public.resource.org
* Patrice McDermott, director of OpenTheGovernment.org
* Helen Nissenbaum, Professor Media, Culture & Communication at NYU. Helen is also the co-creater of TrackMeNot which protects the privacy of your web searches.
* Roger Schonfeld, research manager of Ithaka S+R
* Stephen Schultze, associate director of Princeton University’s Center for Information Technology Policy
* Adam Sedgewick, Staffer of Homeland Security and Governmental Affairs Committee, with a focus on E-Government and Federal IT
* Lewis Shepherd, Chief Technology Officer, Microsoft’s Institute for Advanced Technology in Governments
* J.H. Snider, president of iSolon.org
* Josh Tauberer, creator of GovTrack.us and founder of Civic Impulse, LLC
* Mike Wash, Chief Information Officer of the Government Printing Office
* Jonathan Weinberg, professor at Wayne State University Law School
* John Wonderlich, policy director for the Sunlight Foundation

The full details including how register are here.

If you plan on attending, please RSVP in the next day or so, so that the Center can plan properly.

Cell Phones, Dogs, and Prisons: A Better Policy Is Needed

Deven Desai — Sun, 27 Dec 2009 15:55:41 +0000

I call friends and family during the holidays. For me, unlike email and social networking options, talking to someone is a more intimate and fun experience. Regardless of how one “reaches out and touches someone” as AT&T used to say, it is easy to take the ability to do so for granted. As I thought about how much I rely on being able to connect with those close to me, I remembered how to manage the way in which inmates can communicate with the outside world poses some challenges. There is evidence that crimes are planned when inmates have cell phones and other means of communication. Yet, there are benefits to letting inmates have better ability to communicate with family and counsel. Unfortunately, the press about the problem has been a bit inflammatory, and one of article buried the real solution: fix the market for communication by inmates. When land line calls from prison cost hundreds of dollars a month, it may not be surprising that a black market for cell phones arises and may cause more problems than the ban on cell phones prevents.

There is a plausible argument for the ban on cell phones in prison. According to an article about Florida’s acquisition of a second cell phone sniffing dog (yes, a dog that can smell whether one has a cell phone): “Inmates can use phones for a variety of purposes, none of them good, corrections officials say. Among the most worrisome: using cell phones secreted behind bars to contact former associates on the outside to keep criminal operations going – something that’s far more difficult to do on monitored land lines.” Even Wired seems to agree that cell phones in prison are a problem and recently ran an article entitled “Prisoners Run Gangs, Plan Escapes and Even Order Hits With Smuggled Cellphones.” Yet, these perspectives seem to miss some key points about why these problems occur.

Before law and order screeching begins, let me be clear. I do not think letting prisoners have easy means to perpetuate bad acts is a good thing. And I do not doubt that some prisoners, maybe even many, use phones for all sorts of nefarious deeds. Nonetheless, one may want to ask why the incredible demand for cell phones? For example, according to Wired, “One California officer told investigators he made more than $100,000 in a single year selling phones.” Now prisons are investing in special dogs and expensive cell signal detectors. Some want the Federal government to allow cell jamming.

As the Wired article finally admits, “While the squabbling continues, what might be the most effective way of cutting illicit phone use is largely ignored: making it easier for inmates to place calls legally.”

As the article explains:

[I]nvestigations have established that most calls placed on contraband mobiles are harmless—just saying hi to family and friends. Whatever their crimes, most convicts have parents, children, and others they’re desperate to stay in touch with. Letters are slow, and personal visits often involve expensive, time-sucking travel. Some prisons have public phones for making collect calls, but access is limited, conversations are often monitored, and phone companies often charge much higher rates than on the outside.

And there is the problem. As a friend of mine informed me, even calling one’s counsel is difficult and quite expensive. I am not sure who is at fault, but either the prisons or the phone companies have set up system that costs so much money, one cannot be surprised that smuggling cell phones makes sense. One person ended up spending $800 a month to make land line calls. In an era of flat rate bills that is ridiculous.

Furthermore, the Wired article notes that letting prisoners have better connections with their families helps society in general because:

[I]t could reduce crime and save the public a bundle by cutting recidivism. Most of the more than 2 million men and women behind bars in the US will eventually be released, and decades of research show that those who maintain family ties are much less likely to land back in jail. Every parolee who stays straight saves taxpayers an average of more than $22,000 a year.

Even tough-on-crime Texas has embraced that logic. The state has long refused to allow phones of any sort for inmates in its prisons, but this year officials are installing landlines. “Once they’re in place, we expect a decrease in the problem,” Moriarty says.

In short, fair land line rates would seem to be a good idea. Another more controversial idea would be to let more information flow but monitor it. Privacy concerns are obviously huge here. Still, off the top of my head, I wonder whether a system where prisoners can connect with family but may give up privacy to monitor text and other communication, just as apparently happens with land line calls, would be better than encouraging everyone to use a contraband phone.

Sherlock Holmes and The Sparks

Deven Desai — Thu, 24 Dec 2009 14:05:08 +0000

Here’s just a little free association for what I hope are ongoing happy holidays for everyone. Sherlock Holmes opens on Christmas Day and is a front runner for holiday films I want to see. I happen to think that Robert Downey Jr. is in a great groove. I loved his acting in Chaplin and am quite pleased to see that his career as bloomed. Whether Guy Ritchie can make this one good remains to be seen. My guess is that like Star Trek some annoying we-have-to-do-it allegedly new action sequences or martial arts inspired skills and fights will make their way into the series. As William Goldman noted, film is a business; idealized versions of a story don’t often work in that arena. So perhaps this potential nonsense is necessary.

As a fan of the original works, I am sure to be disappointed and think that House is a better modern version of Holmes than this film’s idea. But that is the fun of open culture. Folks get to play with types and see what works. Indeed, theorists can track the way in which Holmes is portrayed and examine how a given era sees the character (Check out the difference between Bogart’s 1941 Sam Spade and the earlier, 1931, version to get a sense of how much a character can morph; or think of the ever-changing, yet stable, James Bond. Les Liaisons Dangereuses provides another example. The Marquise de Merteuil is quite different in Dangerous Liaisons and Valmont).

Regardless of my concerns, there is a chance people will discover the original works and enjoy them as well (free at the link). Or maybe the film will introduce you to the Sparks, a band that I happen love for its lyrics which are rather good at poking at society by mixing cultural references into their music. For instance you might enjoy the song Mickey Mouse (I especially enjoy the introduction which discusses the mouse as a general matter but this version has better sound and some fun mashup). The song I Predict may seem too familiar to lawyers and law students with its refrain “Are My Sources Correct?”, but it also refers to transsexuals, Elvis, Lassie, Maxim’s, marketing, and the oddity of prediction in general. Cool Places seems to pick up on theme of society’s obsession with being, well, cool. And after the jump there, you can check out The Sparks and their comment on Sherlock Holmes. Believe it or not, the song is a love song of sorts (the ironic tone makes it hard to be a straight forward ballad). Here is a teaser

“Fog matters to you and me, but it can’t touch Sherlock Holmes
Dogs bark and he knows their breed
And knows where they went last night
Knows their masters too
Oh baby, hold me tight.

Just pretend I’m Sherlock Holmes.”

Who knows? Maybe The Sparks predicted what the film industry hopes happens with the film: millions will want to be (or be with) Sherlock Holmes (but as the song points out, they can’t be).

Open Information, Open Government, and Better Nutrition: A Possibility To Explore

Deven Desai — Wed, 23 Dec 2009 19:53:17 +0000

What if you could easily track and the nutrition information for the food you or your kids ate? As open government and open standards increase their success, I have begun to wonder about the nature of labels and commercial information. The recent shift in New York to requiring that food have calorie labels seemed like it should have helped people limit their impulse to buy empty calorie foods. I know of several iPhone apps and online services that offer ways to track calories and additional nutrition data. People who use those types of apps would want more and better information. One could track cholesterol, sugar, and other vital statistics that the New York labels do not seem to offer up front. All of which made me think that this could be a great moment for open government and information.

I am not sure what the rules regarding food labels are. But given that most foods now bear rather rich nutrition information, it seems that the FDA or some other part of government should have a depository for what companies claim their products contain. If so, the government should make that information available in an open format (a la Government Data and the Invisible Hand). After that app providers and websites could pull that data so one could more easily track what one ate to stay on a diet and/or provide doctors with a better sense of what might be causing cholesterol or diabetes issues. In addition, as the country faces obesity problems, a public interest group might be able to build tools for school foods. That tool could allow parents to see not just what the menu was, but the nutritional value of the food in a real way. Communities could better argue about the food quality and costs than they do now. I think that all of these benefits and more might be unleashed with open data and information tools. I am certain there are important questions about this idea that I may have missed. Please share constructive comments about the idea. The more people who tinker with the plan, the better it could be.

PS For those interested in some related reading, Margaret Chon’s article Marks of Rectitude is an excellent study of the intersection between trademarks, certification marks, and the desire to signal sustainability and/or social responsibility. It asks “Can marks of rectitude bear the weight of the various goals that have proliferated in the global regulatory marketplace?”

Marketing and Kids

Deven Desai — Wed, 23 Dec 2009 19:20:27 +0000

Although I tend to prefer less regulation in many cases, the pictures below seem to call for a little more discussion about how products are marketed to kids. Candy in that mimics many of the attributes of adult products such as cigarettes probably makes it easier for a kid to think they ought to try the real thing and maybe soon. As I have noted before, the warning labels on cigarettes in other countries are quite a bit more stark (some simply state in large font “Smoking kills”.

As a trademark point, one might wonder whether an infringement action or maybe a dilution one would work. One might think cigarette makers have entered the cigarette entry market (Anyone remember Joe Camel?). Dilution by blurring may apply too, but a tarnishment claim may be more difficult as I think candy (absent those pesky four out of five dentists) is still seen as a step up from tobacco. All kidding aside, even if one argues that adults can make informed decisions, it seems to me that packaging candy to look quite similar to major cigarette brand packaging is an error. You make the call about these images and what, if anything, should be done.

The ones with cellophane wrapping look even more like a training kit to me.

Why Do Competitors Set Up Shop Near Each Other?

Deven Desai — Mon, 21 Dec 2009 16:34:35 +0000

I am a big fan of the Planet Money series on NPR. Any student struggling with the economic aspects of business associations can use Planet Money and NPR’s other financial series, Marketplace, to get grasp of what is going on. Marketplace tends to focus on the day’s events. PM takes a little time and explores topics. One that I just listened to was called Your Friend or Foe? As the show puts it “Planet Money examines an age-old but confusing question: why do businesses selling the same thing crowd around each other rather than stake out a bit of space on their own?” The piece reminds me of some of Frischmann and Lemley’s Spillover’s article, although I am not sure the idea of competing right next to each other maps to the article’s main ideas about innovation. Instead the story may fit better with ideas about healthy marketplaces and competition. Some of the arguments for setting up shop near competitors smack of free-riding. Yet, listen to the show. The shopkeepers are all engaged in the behavior, know it, and use it to their mutual advantage while still driving prices down. Some the reasons for these decisions may have more to do with search costs. Other issues seem to show that pure internalization of externalities is not always the choice. I’m not sure that this situation is a commons approach as Frischmann, Madison, and Strandburg describe it, but it seems to run parallel to the way I think the Netflix Prize operated (a mix of private incentives and common benefits interacting so that otherwise hard to explain behavior makes sense). In short, I found the podcast thought provoking and worth the listen.

You can listen to the podcast here.

As a side note, I have no idea why NPR does not allow an embedded stream feature a la YouTube or Imeem. If there is a way to do that, can someone please let me know? There are a few more podcasts I plan on highlighting, and I’d like to make it as easy as possible for folks to obtain the content.

Are T.V. Programs Killer Apps?

Deven Desai — Mon, 07 Dec 2009 21:36:46 +0000

Networks. In my youth, the term was most familiar to me as the word for large, national television stations. NBC was at the bottom of a small heap in the late 1970s. If I recall correctly, Johnny Carson and the Tonight Show supported most of the network in general. Now remember, there were only three networks and some local stations, yet NBC was unable to do well. Then NBC tried a show that I believe many thought would not work or have little success, The Cosby Show. Who knew? That show took off and NBC parlayed The Cosby Show into 20 years of dominance. Family Ties was OK but nothing brilliant. Nonetheless, with Cosby as the anchor, NBC tested and launched series such as Cheers, Friends, and ER with Wings and other decent fillers in between. In a sense NBC seemed to have cross-subsidized its programming on Thursday and even other nights (by launching and then moving series). In addition, that lead allowed NBC to promote all its other programming. Then came CBS which was in the doldrums and it tried a little thing called Survivor. Boom! CBS took off. Many OK, and some not so good shows have done well on CBS. FOX arguably uses American Idol to achieve similar results. NBC struggles so much that some rather good shows are lost and like the proverbial tree they fall but no one hears them.

The analogy is far from perfect (for one I am not certain that T.V. shows require large numbers to be useful then again they seem to do well in part because one likes to be able to talk about shows around the so-called water cooler), but I wonder if Yahoo!, AOL, Google, MSN, Facebook, and Twitter are in some ways similar to the T.V. networks. One killer app and the site grabs a ton of people who stick and may use other products from the network. Users can click away and can use the services in a simultaneous way in that one can work with one service at time or have multiple services running but not miss programming as was the case before the VCR. There are many open questions in this arena. For one, how easily can one switch from one service to another? In addition, are there similar problems regarding limited access (i.e., T.V. and cable can carry only so many channels but the Internet has greater capacity (though depending on the status of the network not as unlimited as some might argue)? A key issue in my mind is the problem of knowing that a good service or program exists. The Internet appears better than T.V. at letting users quickly decide what they like, and the information seems to spread rather well. Still, I am sure there are great services that I am missing (a recent one that someone mentioned to me was Dropbox). One often doesn’t know what is good until those pesky advertisers and marketers push information. My recent research has been looking into the way trademarks as brands have functioned on several levels, but one thing that jumps out is that brands are two-way information devices. Advertising is a major piece of that puzzle in one direction; the Internet and commentary is a major piece of the puzzle in the other direction (trademark law handles this idea poorly). Ironically, just as T.V. and print cry out because ads are being skipped, the Internet steps in and seems to deliver better returns on ads. The new difference is that in some cases those who pay for and create the content that was subsidized by ads are not seeing that money. In other words, as Paul Duguid has shown in his work and I have found in my research, early brands can be understood as having a big role in supply chains; we may need to think of modern networks in much the same way. There are many details and differences to address in the Internet arena, but I think these ideas will be part of how we sort out some of the online competition issues in play today.

Alien Languages and Christmas Gifts

Deven Desai — Mon, 07 Dec 2009 15:52:36 +0000

I spent Thanksgiving with my friend John Scalzi. His wife and he bought me a rather nice bottle of Scotch which may have influenced me when I read an advance of his latest novella, The God Engines. (In case you were wondering, the gifts were not consumed at the same time). I am a fan of John’s writing and easily recommend his Old Man’s War series. This most recent effort, however, is quite different, and in my opinion, his best work to date. It is dark, the world is well-developed, and the ideas touch on areas one may prefer to leave alone.

The book also has characters with the apparently requisite extra consonants so that one knows the world is different than ours. I teased and joked with John about this point. In books, the extra letters drive me nuts, because I have no idea how to pronounce the names in my head. Yet alien languages and names seem to be essential to science fiction. Dune, Star Wars, Star Trek, Land of the Lost (the T.V. series), and more strive to insert this type of detail. This weekend the New York Times ran an article about this behavior, and its occurrence in the new Avatar film (which by the way has some striking resemblances to Old Man’s War as far as military science fiction and blue-green creatures go). The article is a fun exploration of how fiction has drawn on linguists to create alien tongues. I am not sure, but I think that at one point there were more people who tried to speak Klingon than there were Esperanto speakers. Fandom may indeed rule culture in the end.

In any event, if you want to get a short but damn fine read for someone or yourself, I suggest John’s new novella. It is available for pre-order at Amazon or you can go to the publisher’s site and buy one of 400 limited signed editions which are leather-bound and have a different cover from the trade paperback. Which reminds me, those interested in product differentiation and price discrimination strategies for culture products may want to study the publisher of the novella, Subterranean. It serves a special part of the book buying world quite well and seems to make money too. Whether a large number of authors could plug into a house like this one and make money without having already established a name is an open question (but I doubt it). Nonetheless, the press is an interesting model.

Ben Stein, Ferris Bueller, and the Ecconomy

Deven Desai — Wed, 02 Dec 2009 16:33:34 +0000

In 1986, yes 1986, Ben Stein was the “Economics Teacher” in Ferris Bueller’s Day Off. Some may remember this scene which helped launch Mr. Stein’s career. In it Stein discusses the Laffer curve and “something d-o-o economics”

In 2008 Stein wrote an open letter to John McCain about taxes. Stein is a rather loyal Republican as far as I can tell. Nonetheless, the letter notes some key points that seem to be lost time and again.

Here is a choice quote:

The next thing is that the Republican Party (my party and yours) has for the last 30 years or so been operating under a demonstrably false and misleading premise: that tax cuts pay for themselves by generating so much economic growth that they replace the sums lost by tax cutting.

This would be a lovely thing if true, and the best of all ideas, the “something for nothing” idea. In fact, tax cuts lower federal revenue and generate federal deficits. It is also true that they do stimulate the economy and after a long period of years, federal tax receipts go back to where they were before the tax cuts.

In addition, Stein explains that the system of spending and cutting taxes cannot pay for itself. As he puts it, cuts make folks happy but passes the cost on to the next generation. Worse:

[I]mmense federal deficits in modern life are financed largely by foreign buyers of our debt. This means that the American taxpayer must work a good chunk of the year to send money to China, Japan, the petro-states and other buyers of United States debt. In effect, we become their peons.

By flooding the world with debt, we in effect beg foreigners to take our dollars, and this leads to a lower value of the dollar and a higher cost of imports, including oil. If you feel pain filling up the tank, you can partly thank those tax cuts. If you feel the sting of inflation, you can partly thank the supply siders. Deficits matter.

Then Stein says point blank the only group who can and should be taxed are the rich because, “By definition, the truly rich have a lot more money than they need. If they don’t, then they are not rich by my standards.” Higher taxes and strong enforcement against off-shore tax-evasion were the keys for Stein. He closes by pointing out that all the things that we love to have such as health care and a strong military requires money which can be had in several ways “by indenturing our children, selling ourselves into peonage to foreigners, making ourselves a colony again, generating inflation — or we can have some integrity and levy taxes equal to what we spend.” Finally he asks the hard question: “Do you have the guts to stand up to the myth makers and tax cutters and the rich? Or will you just kick the can down the road?” I think it is time that we ask the same questions of all of us. Will we suck it up and set things right or try to push the problem onto the next generation (a tactic whose time is probably gone anyway)? Anyone? Anyone?