Author: Deven Desai

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There She Is, Your Homemade AR-15

I cannot give a talk about 3D printing without addressing the question of homemade guns. As Gerard and I pointed out in Patents, Meet Napster: 3D Printing and the Digitization of Things, this is America and making guns at home is legal. The issues many faced was whether the gun would work well, fail, or possibly misfire and harm the user. These issues are important as we look at the shifts in manufacturing. Many of us may prefer authorized, branded files and materials for home made goods or prefer to order from a third party that certifies the goods. That said, some gun folks and hobbyists are different. They want to make things at home, because they can. And now, Defense Distributed has made the “Ghost Gunner” “a small CNC milling machine that costs a mere $1200 and is capable of spitting out an aluminum lower receiver for an AR-15 rifle.” That lower is the part the the Federal government regulates.

Accoridng to Extreme Tech, Defense Distributed’s founder Cody Wilson, thinks that “Allowing everyone to create an assault rifle with a few clicks is his way of showing that technology can always evade regulation and render the state obsolete. If a few people are shot by ghost guns, that’s just the price we have to pay for freedom, according to Wilson.” This position is what most folks want to debate. But Gerard and I think something else is revealed here. As ExtremeTech puts it, “This is an entirely new era in the manufacturing of real world objects, in both plastic and metal. It used to be that you needed training as a gunsmith to make your own firearm, but that’s no longer the case.” That point is what motivated me to write about 3D printing and look deeper at digitization and disruption.

The first, short, follow-up on these ideas is in an essay called The New Steam: On Digitization, Decentralization, and Disruption that appeared in Hastings Law Journal this past summer.

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Sports, Player Protection, and of course, Money

The attention to the way football head injuries affect players at all levels of the game is good. Whether the game as it is loved today can persist, I leave to others. But as the NFL has asserted that it wants to protect its players, the question of injury and health beyond head injuries struck me as a good one. I love football. I grew up with hard-nosed, crazy players (Raiders fan even during the abysmal last twenty plus years of dubious management). But with the evidence that these Sunday circuses put players at so much risk, I hope that the league and fans can find ways to mitigate the long-term harms of the sport. As Arian Foster recently pointed out, Thursday night games are not geared to protect players. Quite the opposite. They generate large revenue and are not going away. Yet it seems that a solution is at hand.

Use the bye-week teams to play on Thursday nights. With some juggling, the teams could be set up so that if a team is on a bye week, they play on Thursday, and then they again would have nine days rest. That should make for fewer injuries overall and a better post-season. Others may have written about this option (and a good friend had made this argument in the past but not to me). There may be fewer Thursday night games. But smart folks at the NFL should be able to figure out how to maximize the games, while still making money for the league and the players. Some may ask whether all long-term injuries can be mitigated. I doubt that. Still, if lawsuits persist, football, soccer (more contact and head injuries than one might think), and many contact sports may have to shift their rules or find that they can’t attract the best athletes. Hmm a world of basketball, extreme sports, and curling. Maybe I could get into that.

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Now That’s Innovation: Punkin Chunkin – He Chunked It!

Several Thanksgivings ago, John Scalzi and I had returned to his house after a lovely meal at his in-laws and melted into his couch as food coma rendered our brains incapable of thought. Required channel surfing followed. We hit upon the Punkin Chunkin contest (before the Myth Buster folks tagged in). The coverage lacked quasi-reality show production. It was pure unadulterated silliness. We had no idea what it was, but the first images of a launched pumpkin exploding in the air and the phrase “He chunked it!” had us rolling in laughter.

I have watched the T.V. coverage since then and despite the rubbish narrative/competition/inner thoughts of the contestant shift, I still love the event. Each category is great. The way contestants study the previous winners’ work; create, test, and iterate; and invest in expensive rigs or squeeze huge results from limited resources makes me think, “Now that’s innovation!” And it seems quite American. Junk yards, scrap iron, applied engineering, contests, bragging rights, open fields, and a big ole party (chili and I imagine beer) to see what’s what is all very American to me. It may not be the America’s Cup, and I am not sure that we will need siege engines in the near future, but the spirit is in the right place. Take your ingenuity, build something fun, and share it.

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And I’m Back – Deven to GA Tech, Scheller College of Business

I joined the Scheller College of Business at Georgia Tech in August. Some have asked (or speculated as law professors seem to do) about my choice. As those who know my past might see, I go where I think the best work is possible. My scholarship dives into business and technology literatures. GA Tech is excellent in both areas. I took the interview and the position with the hope that I could go deeper into these fields. And, as I hoped, it is great here. Peter Swire is my office neighbor. My group in law and ethics is smart and fun. Throw in friends like Stu Graham, and excellent professors in marketing (can you say more branding?), strategic management, information technology management, operations management, organizational behavior, accounting, and finance, and it is a field day. Folks here are pursuing data analytics, IT and supply chain, behavior and identity shaping by branding, and more. Chats have already pointed to me books and articles for my next set of papers. And that is just at Scheller. I am connecting with the engineers and public policy folks too. Not to mention that friends at Emory, GA State, and Georgia law are near, and I am overdue to visit them. So why move? The opportunity and resources make it a high quality problem place: so much to do and so many people with whom to connect that picking is difficult.

With a summer hire and move, blogging has not been active. Plus, I find that I am bursty (if that is a word). A few ideas pop up and blog posts fly. Then things seem less interesting for a bit. In any event, I think I have a few posts up my sleeve. See you in the funny papers, err blogosphere, as Hawkeye Pierce would say.

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Are You Missing the Market, Aspen?

Professors are in an uproar over Aspen Publisher’s new rules for textbooks. In short, if you thought you could buy a book and do what you wanted after that (i.e. sell it used), Aspen wants to change that system. Instead of a true, unbundled digital option, it has a system where students buy both a physical textbook and a “lifetime” digital book. Too bad as there is a market opportunity that they might be missing. On the legal doctrine front, Josh Blackman called it out. James Grimmelmann jumped on the bashing. Rebecca Tushnet has poked at the offer too. But where is the market here? Is there a way Aspen could make this shift work well? If so, would authors (i.e., professors with deals with Aspen) like it? And why not use dollars to tell Aspen what to do? Assign a different casebook from a competitor (FYI there is a free one out there, see below). There are some specific issues that illustrate sme of the problems in this space.

First, what about time and artificial editions? Rebecca nails this point by calling out that some areas of law (e.g., IP) change so fast that new editions and coverage issues make staying up with casebooks a problem. In those areas, does first sale do much work? Maybe it does much work in the few years between editions. But after that, the text is somewhat obsolete. Dusting of an IP text in digital or hardcopy from the 1990s would be dangerous except for fundamentals (and maybe even for those). Still, there are now seven editions for the Dukeminier casebook. Are the updates every four or so years needed? Even in other areas, are authors updating to add value or to create a new text that undercuts the used market? Do publishers lean on authors to issue new editions when there is not much to say as a market window or version control? If so, the publisher is setting up the demand for secondary or alternate markets that cut out the publisher.

So is this system functioning? As I noted before, the OpenStax system offers high quality texts for free and in a modular way. That means sections are updated for free and folks can assemble material as they wish. Law does not have that yet. The folks at Semaphore Press are close however. That press happens to publish a property text by Steve Semeraro (disclosure I am friends with the folks at Semaphore and introduced them to Steve). It is not quite OpenStax, but it is an interesting model with a shareware feel.

Second, what about the cost to write and update a text? I know it takes tons of time. Whether RA’s do some work or it is all by the professors, the time to write a good casebook is real. I am grateful for the good books. A great teacher’s manual is also a huge help. For new teachers and even experienced, a rich manual provides insights about how the author(s) teach the material and where they see the comments to be headed. One can then choose to follow that lead or modify. But is the price point for texts (as many noted often close to $200) sustainable? Would the market collapse if the cost dropped to low or no charge? OpenStax indicates that the system could shift, and a small crowd of experts would be able to offer an excellent, up-to-date text. And as Pam Samuelson and many others have noted, scholarly works pay off in reputation. So having the most assigned text (or specific chapter on a subject) may stimulate just enough competition for reputation to get great texts (or chapters) but not a glut of roughly the same material from many high-priced publishers.

Third, what about that market opportunity? Would a publisher that offered A) a true digital copy for $40, $50, or even a $100 take share from others? B) What if the publisher said rent the hard copy for a reduced price (again it should be low)? Some might hate that idea as a matter of doctrine but that market is emerging on Amazon and at least lets the student know what is going on (though I think a rental model poses some issues for libraries in that no one should say that libraries should just be rental depots that is another debate for another time).

So Apsen, if you’d like to survive I am betting your authors would like that too. But I am also betting they want to work with you to offer much better solutions than the ones you have right now. The life time digital edition and the high price insult the authors and the marketplace. I think others will find ways to route around you. But you could take your current position and parlay it for the future. If not, I think you may have pushed the law text market to Semaphore or OpenStax. Hmm, maybe Aspen should stay with its model after all.

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Welcome Back, Professor Robert Tsai

rtsaiIt is with great pleasure that I re-introduce Professor Robert Tsai. Robert has blogged with us before, and we are lucky to have him back to blog about his work, ideas, and I hope his new book America’s Forgotten Constitutions: Defiant Visions of Power and Community. I met Robert when we are at Yale Law School together. He was sharp and engaged then and has not slowed down since. He has held two clerkships — Hugh H. Bownes, U.S. Court of Appeals for the First Circuit, and Denny Chin, U.S. District Court for the Southern District of New York. He has litigated constitutional issues before federal and state courts. As a professor his papers have twice been selected for the Stanford-Yale Junior Faculty Forum: once in constitutional theory and once in constitutional history. Professor Tsai began his academic career at the University of Oregon and then joined the law faculty of American University in 2008 and was promoted to full professor the following year. Welcome back, Robert.

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Bright Ideas: Prof. Rick Hasen on the Recent and Future Voting War Engagements

There has been a tremendous amount of activity around election law since 2000. Decisions by the Supreme Court, district courts, and legislatures are affecting the future of how our country votes. The fights are in some ways old as voting is always political, but are new as the battlegrounds have changed. I am excited to welcome Professor Richard L. Hasen on Bright Ideas to get into some history, perspective on recent cases, and thoughts on where we need more research. As Professor Hasen says “The more we can address these points with facts and logic rather than hyperbole and assumption, the better.” Read on to find out the details.

Professor Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. I have been fortunate to know his work in person from when he spoke at Thomas Jefferson School of Law about his book The Voting Wars: From Florida 2000 to the Next Election Meltdown. Professor Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law. He is the author of more than 80 articles on election law issues, published in numerous journals including the Harvard Law Review, Stanford Law Review and Supreme Court Review. He was elected to the American Law Institute in 2009, and he was named one of the 100 most influential lawyers in America by The National Law Journal in 2013. We are are fortunate to have Professor Hasen with us today. With that let’s get to the questions.

Q: Rick, voting rights have taken on new importance. States are trying to pass laws that require proof of citizenship. The Supreme Court has rejected some attempts to require proof of citizenship in federal elections. But a federal judge in Kansas has just ruled that the federal government must aid states that wish to require proof of citizenship. Before we get into the details about whether that ruling makes sense, can you help folks understand what is going on? Why is there a renewed interest in voter registration?

A: The interest in voter registration is part of a broader interest in, and fights over, rules for how we run our elections, from registration, to voter i.d., to how to handle the ballots of people who vote in the wrong voting precinct. As I explain in my 2012 book, The Voting Wars, since 2000 we have witnessed a great struggle between the parties, and between the federal and state governments, over who controls the voting rules. The disputed 2000 election ending with Bush v. Gore showed everyone that in very close elections, the rules of the game can make a difference. Parties have been jockeying for position, with Republicans generally favoring laws making it harder to register and vote and Democrats making it easier. Both parties’ positions conveniently line up with their own electoral chances: an expanded electorate (full of poor, minority, and non-regular voters who are less likely to be registered) is believed to skew toward Democrats.

Q: Before we get into the recent cases, your mention of close elections makes me wonder, has something changed in the past twenty years? If I remember correctly, there have been a few other major elections at the state level where the vote came down to a handful of votes. It just seems odd that at a large scale, we are seeing major power shifts determined by a few hundred votes. I suppose the same could be said about Kennedy’s election. But still, does the closeness reflect something about political divisions, corruption, or something else?

A: I think something has changed. The amount of legislation on the state level has increased–at least if we think of controversial legislation. Further, the amount of election litigation has more than doubled in the period after the disputed 2000 election compared to the period before. Election law has become part of a political strategy. It is not just about litigating after a close election; it is about litigating before an election to get advantage under the rules.

Q: So it seems the fight for power has two shifts then. First, there are close elections. Second, there is the renewed and modern fights to control who votes. With that, what happened in Arizona v. Inter Tribal Council of Arizona, Inc.? What was the question and how did the Court come out on the issues before it?

A: Since Congress passed the 1993 National Voter Registration Act (NVRA, or “motor voter law,” because it mandates that motor vehicle departments offer voter registration), states have been required to accept a “federal form” for registering voters in federal elections. The Federal Election Commission used to be in charge of this form, but in 2002, when Congress passed the Help America Vote Act (HAVA) creating the United States Election Assistance Commission (EAC), the EAC has been in charge of the form.

Arizona asked the EAC to modify the form to require it to include a requirement that new residents in Arizona provide documentary proof of citizenship before registering to vote. The EAC deadlocked on the request. Arizona did not challenge the EAC determination in court. Instead, Arizona decided not to accept registrations on the federal form. Plaintiffs representing groups of voters sued to require Arizona to accept registrations submitted on the federal form. In the Arizona v. Inter Tribal case, the Supreme Court said that Congress had the power under the Elections Clause to set the “manner” of voting in federal elections, and on this basis Arizona could not refuse to accept the federal form.

In a twist, however, the Court (in an opinion by Justice Scalia) suggested that Arizona should sue the EAC for not requiring the citizenship information on the form. The Court noted that although the Elections Clause gives Congress the power to set the maner of federal elections, it gives states the power to set voter qualifications, even in federal elections. The Court further suggested that the EAC might not be able to promulgate a federal form which frustrates a state’s attempt to verify voter qualifications.

Arizona, joined by Kansas, filed just such a suit, and a federal district court just decided that suit. I offer my analysis here, and here is an important NY Times analysis of what may come next.

Q: Fantastic explanation. Thank you. I urge folks to look at Rick’s post and the Times piece. Although you are quite honest that you “do not know how this case will fare as it works its way up on appeal,” I’d like to close with a couple questions. First, the Times piece notes that Alabama is moving forward with its new voter requirements. It seems that the federal form would be quite complicated if it had to reflect 50 different voter qualifications. Furthermore if each, or even several, are challenged, whether a form is ever stable enough to use could be a problem. That may be a goal for some, but it makes me wonder at the odd outcomes. It has been some time since I took administrative law, but could the practical complications be a way to challenge the Scalia logic? It just seems strange that states can dictate to the federal government. Second, as broader question and to wrap up, do you have any suggestions about discrete topics professors or students should pursue on this topic (i.e., are there open issues on either side that merit study)?

A: On the specifics of the form, the EAC has made modifications before, and it is not clear that states wanting citizenship verification are going to demand different things–or that the different things can’t be easily pointed to on the form. I think the broader issue is whether states could stymie other federal laws, such as laws protecting military and overseas voters which require states to accept a “fail safe” federal ballot for voting. There’s lots of potential mischief in a muscular reading of states’ rights to enforce voter qualifications over Congressional election law power. Derek Muller flags some of these confusing points.

On the open questions there are so many, beginning with how to understand the borderline between state and federal power in this area. There is also a great need for more (and better) empirical work on the effect of these laws on turnout, fraud prevention, and voter confidence. The more we can address these points with facts and logic rather than hyperbole and assumption, the better.

Thanks for taking the time to listen!

Thank you, Rick for sharing your ideas and giving us a sense of things to come.

NOTE: This interview was written using Google Docs. I posed questions to which Rick replied, and we edited content for flow and clarity.

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Schneier on the NSA, Google, Facebook Connection But What About Phones?

Bruce Schneier argues that we should not be fooled by Google, Facebook, and other companies that decry the recent NSA data grabs, because the nature of the Internet is surveillance; but what about phone companies? The press has jumped on the Obama administration’s forthcoming plan that

would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.

The details are to come, but Schneier’s point about the structure of the system applies to phone companies too, “The biggest Internet companies don’t offer real security because the U.S. government won’t permit it.”

There are few things to parse here. OK there are many things to parse, but a blog post has limits. First, Schneier’s point about Internet companies is different than his one about the government. His point is that yes, many companies have stepped up security to prevent some government spying, but because Gooogle, Microsoft, Facebook, Yahoo, Apple and almost any online company needs access to user data to run their businesses and make money, they all have built “massive security vulnerability” “into [their] services by design.” When a company does that, “by extension, the U.S. government, still has access to your communications.” Second, as Schneier points out, even if a company tried to plug the holes, the government won’t let that happen. Microsoft’s Skype service has built in holes. The government has demanded encryption keys. And so it goes. And so we have a line on the phone problems.

The proposed changes may solve little, because so far the government has been able to use procedure and sheer spying outside procedure to grab data. The key will be what procedures are required and what penalties follow for failing to follow procedure. That said, as I argued regarding data security in January 2013, fixing data security (and by extension phone problems) will require several changes:

A key hurdle is identifying when any government may demand data. Transparent policies and possibly treaties could help better identify and govern under what circumstances a country may demand data from another. Countries might work with local industry to create data security and data breach laws with real teeth as a way to signal that poor data security has consequences. Countries should also provide more room for companies to challenge requests and reveal them so the global market has a better sense of what is being sought, which countries respect data protection laws, and which do not. Such changes would allow companies to compete based not only on their security systems but their willingness to defend customer interests. In return companies and computer scientists will likely have to design systems with an eye toward the ability to respond to government requests when those requests are proper. Such solutions may involve ways to tag data as coming from a citizen of a particular country. Here, issues of privacy and freedom arise, because the more one can tag and trace data, the more one can use it for surveillance. This possibility shows why increased transparency is needed, for at the very least it would allow citizens to object to pacts between governments and companies that tread on individual rights.

And here is the crux of Schneier’s ire: companies that are saying your data is safe, are trying to protect their business, but as he sees it:

A more accurate statement might be, “Your data is safe from governments, except for the ways we don’t know about and the ways we cannot tell you about. And, of course, we still have complete access to it all, and can sell it at will to whomever we want.” That’s a lousy marketing pitch, but as long as the NSA is allowed to operate using secret court orders based on secret interpretations of secret law, it’ll never be any different.

In that sense he thinks companies should lean on the government and openly state security is not available for now. Although he knows no company can say that, the idea that we should all acknowledge the problem and go after the government to change the game is correct.

The point is correct for Internet companies and for phone companies. We should not over-focus on phones and forget the other ways we can be watched.

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Public Service Announcement for Google Glass Team

The Google Glass team has a post about the so-called myths about Google Glass, but the post fails to see what is happening around Glass. That is sad. Instead of addressing the issues head on, the post preaches to the faithful (just read the comments). As Nate Swanner put it “We’re not sure posting something to the tech-centric Google+ crowd is really fixing the issues though.” Google and other tech companies trying to do something new will always face challenges, fear, and distrust. The sad part for me is when all sides line up and fail to engage with the real issues. Some have asked what I did when at Google. Part of the job was to present the technology, address concerns, and then see where all of us saw new, deep issues to come. I loved it, because I knew the technology was driven by high-standards. The problems flowed from not explaining the tech. This post highlights talking past each other. Furthermore the truly wonderful advances that might be possible with Glass are not discussed. That distresses me, as no one really wins in that approach. But I will show what is not great about the post as a possible public service announcement for the Glass Team and others in the tech space.

First, the post sets an absurd tone. It starts with “Mr. Rogers was a Navy SEAL. A tooth placed in soda will dissolve in 24 hours. Gators roam the sewers of big cities and Walt Disney is cryogenically frozen. These are just some of the most common and — let’s admit it — awesome urban myths out there.” Message: Glass critics are crazy people that by into extreme outlying beliefs, not truth. And if you think I am incorrect, just look at this next statement: “Myths can be fun, but they can also be confusing or unsettling. And if spoken enough, they can morph into something that resembles fact. (Side note: did you know that people used to think that traveling too quickly on a train would damage the human body?).” Hah! We must be idiots that fear the future.

That said maybe there are some myths that should be addressed. Having worked at Google, I can say that while I was there, technology was not done on a whim. I love that about the company and yes, the Glass Team fits here too. Furthermore, as those who study technology history know, even electricity faced myths (sometimes propagated by oil barons) as it took hold. Most of the Glass myths seem to turn on cultural fears about further disconnection from the world, always on or plugged in life, and so on. But the post contradicts itself or thinks no one can tell when its myth-busting is self-serving or non-responsive.

On the glass is elitist issue: Google is for everyone, but high priced, and not ready for prime time. Huh? Look if you want to say don’t panic, few people have it, that is OK and may be true. But when you also argue that it is not elitist because a range of people (not just tech-worshiping geeks) use Glass; yet nonetheless the $1500 price tag is not about privilege because “In some cases, their work has paid for it. Others have raised money on Kickstarter and Indiegogo. And for some, it’s been a gift” the argument is absurd. That a few, select people have found creative ways to obtain funds for Glass does not belie the elite pricing; it shows it.

The surveillance and privacy responses reveal a deeper issue. Yes, Glass is designed to signal when it is on. And yes that may limit surveillance, but barely. So too for the privacy issue. Check this one in full:

Myth 10 – Glass marks the end of privacy
When cameras first hit the consumer market in the late 19th century, people declared an end to privacy. Cameras were banned in parks, at national monuments and on beaches. People feared the same when the first cell phone cameras came out. Today, there are more cameras than ever before. In ten years there will be even more cameras, with or without Glass. 150+ years of cameras and eight years of YouTube are a good indicator of the kinds of photos and videos people capture–from our favorite cat videos to dramatic, perspective-changing looks at environmental destruction, government crackdowns, and everyday human miracles. 

ACH!!! Cameras proliferated and we have all sorts of great, new pictures so privacy is not harmed?!?!?! Swanner hits this one dead on:

Google suggests the same privacy fears brought up with Glass have been posed when both regular cameras and cell phone cameras were introduced in their day. What they don’t address is that it’s pretty easy to tell when someone is pointing a device they’re holding up at you; it’s much harder to tell when you’re being video taped while someone looks in your general direction. In a more intimate setting — say a bar — it’s pretty clear when someone is taping you. In an open space? Not so much.

So tech evangelists, I beg you, remember your fans are myriad and smart. Engage us fairly and you will often receive the love and support you seek. Insult people’s intelligence, and you are no-better than those you would call Luddite.

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The Economist Notes that Patents Do Not Equal Innovation

The Economist had a recent piece about software patents and said, GASP “[P]atent issuance is a poor measure of innovation.” Amen. But wait! Don’t order yet! There’s more! “Patenting is strictly a metric of invention. Innovation is such a vastly different endeavour—in terms of investment, time and the human resources required—as to be virtually unrelated to invention.” (The applause and boos commence simultaneously).

Innovation is meaningless as well, but the first step is to admit the problem. There may be some relationship between patents and incentives to create certain things. But not all patents or all creations show a correlation to a general claim that patents equal innovation or whether innovation will occur without patents. Innovation as “Hey that rally changed the way we do things” probably can’t be identified until much after the event. Innovation as “Hey we made tons and tons of bitcoin, oh we mean cash” is easier to spot but a different metric as far as policy should be concerned. The better disposable razor or even iPhone is incremental while also important. Parsng the differences amongst what types of innovation is well-beyond a blog post. But should folks want to hurt their head and wear out their hands, please write at length. I will look forward to reading what you find.