Monthly Archives: February 2011

The billable value of humility

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In a previous post, I linked to an IBM executive who claimed that Watson’s success on Jeopardy! might revolutionize the legal profession.  Gary Kasparov, the chess champion who was defeated by IBM’s Deep Blue in 1997, makes an interesting observation over at the Atlantic:

My concern about its utility, and I read they would like it to answer medical questions, is that Watson’s performance reminded me of chess computers. They play fantastically well in maybe 90% of positions, but there is a selection of positions they do not understand at all….A strong human Jeopardy! player, or a human doctor, may get the answer wrong, but he is unlikely to make a huge blunder or category error—at least not without being aware of his own doubts. We are also good at judging our own level of certainty…but I would not like to be the patient who discovers the medical equivalent of answering “Toronto” in the “US Cities” category, as Watson did.

It would be ironic (in the extreme!) if what saved the legal profession from being taken over by computers was lawyers’ own humility.  In a world where machines can process far more data far faster than human minds, perhaps our weakness is also our greatest asset:  we know our limits.

Long-winded patents

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Edward Tenner over at the Atlantic has a few observations about the trend towards ever-longer patents:

Patent numbers are often treated as a proxy for invention or technological creativity. There are many more now than there were at the peak of technological optimism in the late 1990s….[But if each individual patent has] thousands of claims, is none of them very important or — as some speculate — is there a tendency to obfuscate the significant ideas with chaff, defeating the patent’s rationale of disclosure?

I wonder whether another reason for increased patent lengths is the widespread availability of word processing software.  One observation I have made in my years of legal research is that court opinions and law review articles tend to be shorter (and have fewer citations) the further back in time one goes.  Perhaps our fore-bearers spent just as much time on their “work product” (a.k.a. writing and analysis) as we do but the cumbersome mechanics of research and writing in a pre-digital era nudged one towards focus and concision.  Today, of course, the kitchen sink goes in because it can.

Whatever the reasons, you should really check out Tenner’s full post, which offers a few other explanations and ends by arguing that all this increase is not necessarily a good thing.

Emerging adult men struggling to follow “life script”

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An excerpt from a soon-to-be released book, Manning Up: How the Rise of Women has Turned Men into Boys, talks about the sociological concept of “life scripts”:

But pre-adults differ in one major respect from adolescents. They write their own biographies, and they do it from scratch. Sociologists use the term “life script” to describe a particular society’s ordering of life’s large events and stages. Though such scripts vary across cultures, the archetypal plot is deeply rooted in our biological nature. The invention of adolescence did not change the large Roman numerals of the American script. Adults continued to be those who took over the primary tasks of the economy and culture. For women, the central task usually involved the day-to-day rearing of the next generation; for men, it involved protecting and providing for their wives and children. If you followed the script, you became an adult, a temporary custodian of the social order until your own old age and demise.

Unlike adolescents, however, pre-adults don’t know what is supposed to come next. For them, marriage and parenthood come in many forms, or can be skipped altogether. In 1970, just 16% of Americans ages 25 to 29 had never been married; today that’s true of an astonishing 55% of the age group. In the U.S., the mean age at first marriage has been climbing toward 30 (a point past which it has already gone in much of Europe). It is no wonder that so many young Americans suffer through a “quarter-life crisis,” a period of depression and worry over their future.

This is a decent description of the category of emerging adults. This is an ongoing area of research interest among sociologists (and others) and I have some earlier posts on this topic: here is a recent posting on Catholic emerging adults, here is part 1/part 2/part 3 of an earlier series on studies about emerging adults.

It is hard to tell from this excerpt whether this author argues that the fact that women have risen in society has directly led to the downfall of young men. If so, this sounds a zero-sum kind of argument: since women have risen in society, then men must fall. Does it have to be this way – can’t both men and women find acceptable and expanded roles? And what have men done to fight back against broader social forces or to find and strengthen new roles or develop an attractive “life script”?

Settling the score

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Daniel J. Wakin over at the New York Times has a write-up about Edward W. Guo and the International Music Score Library Project (IMSLP):

The site, the International Music Score Library Project, has trod in the footsteps of Google Books and Project Gutenberg and grown to be one of the largest sources of scores anywhere. It claims to have 85,000 scores, or parts for nearly 35,000 works, with several thousand being added every month. That is a worrisome pace for traditional music publishers, whose bread and butter comes from renting and selling scores in expensive editions backed by the latest scholarship. More than a business threat, the site has raised messy copyright issues and drawn the ire of established publishers.

Has it ever.  Apparently, all this free music sharing of hundreds-of-years-old music is not putting money in the right people’s pockets:

While a boon to garret-living, financially struggling young musicians, the library has caught the attention of music publishers.

Take that, struggling musicians!  Music publishers are feeling the heat!  Though, really, it’s only going to hurt all of you in the end:

“I don’t know if I would call it a threat, but I do believe it hurts sales,” said Ed Matthew, a senior promotion manager at G. Schirmer in New York. “It is that profit that helps us to continue to bring out more composers’ work.”

Wait…what?  It is the profit from selling/renting sheet music composed by long-dead composers like Beethoven at above-market prices that allows the G. Schirmer company “to bring out more composers’ work”?  Insofar as this even makes sense, they can only mean one of two things:

1.  Traditional music publishers can only continue to publish public domain scores if they can continue to sell it at monopoly prices (e.g., $30-50 for “[a] set of parts for a mainstream string quartet”, according to the NYTimes article).

Analysis:  Good riddance.  IMSLP will publish it for free.  Deadweight loss triange:  gone.

2.  Traditional music publishers can only afford to take a bath on contemporary composers if it can subsidize them with profits from public domain scores of dead composers.

Analysis:  Whatever this is, it’s not a business argument.  There are plenty of reasons to support new composers (and musicians generally) that have nothing to do with business, of course.  One may think that the arts are intrinsically valuable, or may want to give back/pay it forward, or may simply want the prestige of having one’s name connected rising talent as a “patron”.  All fair enough.  But there’s no business reason for a traditional music publisher to subsidize new talent with monopoly money.  Why should it do that?  It would make much more money if it simply sold the old public domain stuff and told new composers to take a hike.  (Unless, of course, it does make money off the new composers….)

You can’t have it both ways, G. Schirmer.  Either you do make money off new composers (in which case the issue is completely unrelated to your publication of public domain scores) or you don’t.  If you don’t, you have been running a charity, not a business.

I should point out that if G. Schirmer (or any other traditional music publisher) has been effectively running a charity for new composers up until now, I thank them.  Seriously.  This was very kind of them and the sort of thing that should be encouraged.

I hasten to add, however, that just because a music publisher may have used some of its profits to support the arts doesn’t mean that they should be able to assert legal rights they don’t have to public domain musical scores just because the Internet is threatening their traditional business model.  The arts can be supported much more directly and efficiently.  There’s no need to expand copyright law to allow a revenue stream to continue flowing into the publisher’s pockets that a trickle may eventually find its way into the tip jar of the up-and-coming composer.

Update 2/27/2011: TechDirt selected my comment summarizing this post as an “Editor’s Choice” in their comments-of-the-week wrap-up!

The prospect of the automated grading of essays

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As the American public debates the exploits of Watson (and one commentator suggests it should, among other things, sort out Charlie Sheen’s problem) how about turning over grading essays to computers? There are programs in the works to make this happen:

At George Mason University Saturday, at the Fourth International Conference on Writing Research, the Educational Testing Service presented evidence that a pilot test of automated grading of freshman writing placement tests at the New Jersey Institute of Technology showed that computer programs can be trusted with the job. The NJIT results represent the first “validity testing” — in which a series of tests are conducted to make sure that the scoring was accurate — that ETS has conducted of automated grading of college students’ essays. Based on the positive results, ETS plans to sign up more colleges to grade placement tests in this way — and is already doing so.

But a writing scholar at the Massachusetts Institute of Technology presented research questioning the ETS findings, and arguing that the testing service’s formula for automated essay grading favors verbosity over originality. Further, the critique suggested that ETS was able to get good results only because it tested short answer essays with limited time for students — and an ETS official admitted that the testing service has not conducted any validity studies on longer form, and longer timed, writing.

Such programs are only as good as the algorithm and method behind it. And it sounds like this program from ETS still has some issues. The process of grading is a skill that teachers develop. Much of this can be quantified and placed into rubrics. But I would also guess that many teachers develop an intuition that helps them quickly apply these important factors to work that they read and grade.

But on a broader scale, what would happen if the right programs could be developed? Could we soon reach a point where professors and teachers would agree that a program could effectively grade writing?

“Singing”

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Is there something in the hyperspace? William Shatner, best known for his portrayal of Captain Kirk on Star Trek, is rather infamous for his spoken-song style. Now TechDirt draws our attention to James Earl Jones, who gave voice to Darth Vader in Star Wars, who is apparently jumping in on the act:

the great actor James Earl Jones recites some Justin Bieber lyrics while a guest on the Gayle King Show.

Here’s a direct link to the YouTube video.

As TechDirt’s Mike Masnick asks,

So here’s a simple question: is this copyright infringement? Did the Gayle King Show properly license the lyrics from the copyright holder? Perhaps it did, but we’ve seen music publishers get pretty worked up about various websites posting lyrics online and have heard stories about books not being able to be published because they quoted snippets of lyrics without a license.

Assuming fair use is off the table, I don’t think JEJ’s recitation qualifies for the compulsory license provisions of U.S. copyright law because he was performing on TV — he would have needed a synchronization license.  Moreover, according to 17 U.S.C. section 115(a)(2):

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner. [emphasis added]

I think we can all agree that JEJ changed the basic melody of this work.

Of course, there is no doubt a simpler explanation for all this.  Bieber’s song “Baby” is repped by ASCAP, and ASCAP offers blanket licenses that allow for TV broadcasts of their works.  I’m guessing the Gayle King Show (or, more likely, the Oprah Winfrey Network) simply paid the requisite fees.

Chicago population loss among challenges for new Chicago mayor

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As Chicago votes today, the Chicago Tribune pointed out the issues the new mayor faces, including a declining population and financial issues:

The U.S. Census Bureau gave Chicago a reality check last week. New data showed the city lost 200,000 residents in the last decade, a 6.9 percent decline. Chicago’s lost more than the entire population of Illinois’ second largest city, Aurora.

A Mexican immigration wave that fueled growth in the 1990s has subsided. Researchers expected those immigrants to bring more growth as they had children. Instead, immigrants are moving from Chicago to the suburbs or bypassing the city entirely. That 1990s influx looks like the exception to a long and steady rule. Chicago has lost population in five of the last six decades. It has fewer people now than it did in 1920.

The city government faces a yawning debt and unfunded pension obligations. It is spending beyond its means. A city that has fewer citizens has fewer potential wage-earners available to support it.

This is a big set of issues to face. But the Tribune seems to be fairly optimistic:

The good news: Chicago is far better positioned for the future than it was during its wrenching Rust Belt days of 1980. The city’s economy is more diverse, and its urban environment richer in the amenities that attract a talented work force, from parks to culture. As corporate headquarters scaled down across the country, Chicago became a global center for back-office operations and business services such as corporate law firms. Its central location and status as a transportation hub give it a crucial advantage going forward. That’s why we need to get the expansion of O’Hare International Airport back on track, pronto.

The city will need some new ideas as well as dealing with existing projects. This airport expansion idea has been in the works for years now and is a move that could bring in new business and opportunities.

And I wonder with an election like this, where there is no incumbent and we seem to have a cleaner break with the past, whether the new mayor really has to introduce massive projects or ideas at the start. Perhaps the first goal could be to improve how Chicagoans and those in the region feel about and view their city. For example, take a look at the crime rate: it has dropped and yet there is perception problem. A dose of optimism, trumpeting what is good about the city rather than what is going wrong, could be a good starting point. And then, something has to be done with the larger issues that the Tribune enumerates.

Searching for a safe harbor

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TorrentFreak reported a few days ago that Google has filed an amicus brief in the appeals case against torrent search engine isoHunt:

Google has been keeping an eye on the legal battle between the MPAA and isoHunt as last week, out of nowhere, the company unexpectedly got involved in the motion for summary judgment appeal. The search giant, which has always stayed far away from these types of cases, filed an amicus cuiae brief (third party testimony) at the Appeal Court.

“This cases raises issues about the interpretation and application of the safe-harbor provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq. (“DMCA”) and common-law rules governing claims for secondary copyright infringement. Google has a strong interest in both issues,” Google’s counsel writes.

Talk about understatement.  You can read Google’s 39-page brief for yourself over on Scribd — thanks to PaidContent for posting.

TechDirt posted additional commentary late yesterday suggesting that Google’s stance in the isoHunt appeal is mostly about its own ongoing litigation with Viacom:

Google argues that as long as YouTube took down any content it received a takedown notice on, it was in compliance and protected by safe harbors. Viacom leaned heavily on the IsoHunt ruling, to claim that the DMCA doesn’t just cover takedown notice responses, but also requires a response to “red flag” infringement.

However, Google knows that the IsoHunt ruling is basically the only legal precedent out there that reads the DMCA in this manner. So, from Google’s perspective, dumping that reasoning is key. So its amicus brief still argues that IsoHunt is guilty of contributory infringement, a la the Grokster standard, but not because of red flag infringement.

The last thing Google wants is to be liable for copyright infringement under the DMCA every time there is a “red flag” that infringement is taking place; that would be the end of Internet search engines as we know them.

Of course, Google’s business strategy isn’t merely to file amicus briefs and hope for the best; the search giant has also recently taken proactive steps to reduce its liability, including turning off autocomplete results for torrent-related searches.  I guess this is what the Intellectual Property Enforcement Coordinator (IPEC) meant by “dialogue”, as detailed in her recent report:

the IPEC has facilitated and encouraged dialogue among the different private sector Internet intermediaries that contribute to the dynamic nature and functioning of the Internet, including payment processors, search engines and domain name registrars and registries. These entities are uniquely positioned to enhance efforts of rightholders and law enforcement to combat infringing activity and help reduce the distribution of infringing content in a manner consistent with our commitment to the principles of fair process, freedom of expression and other important public policy concerns. We believe that most companies share the view that providing services to infringing sites is inconsistent with good corporate business practice and we are beginning to see several companies take the lead in pursuing voluntary cooperative action.

I’m not sure how “voluntary” this really is — or whether “fair process” and “freedom of expression” accurately describes a “dialogue” written under a Damoclesian sword of statutory copyright damages and domain name seizures.  But I will agree that ruinous lawsuits and seizures are “inconsistent with good corporate business practice”.

Hat tip to Keith Lowery for sending me the link to the original TorrentFreak story.

Another interesting sociology course: Baseball in American Society

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A student writing in the newspaper of Florida Southern College discusses a unique class on campus:

It is not secret that Sociology professor Dr. Edwin Plowman is one of the most eccentric professors on this campus. His “Baseball in American Society” class has by far been one of the favorite classes. Dr. Plowman has some experiences that none of us will ever be able to call our own and he shares them in every class session. Oh, and my personal library grew with the books he assigned that I just did not ever want to sell back to the bookstore.

A few thoughts about this class:

1. Is the class mainly about baseball and how it fits in American society or about American society through the lens of baseball? Both could be very interesting – baseball has its own logic but the game has both influenced and has been influenced by larger social forces. As a baseball fan myself, this sounds like an interesting course to teach.

2. This is reminder of how students view courses. It sounds like the professor tells some good stories and also assigns  books that a student would want to hold onto after the class. This is what makes this class interesting for this student. (And what does it mean when a student says a professor is eccentric?)

Taking enforcement to the next dimension

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Get ready for the next avalanche in copyright infringement lawsuits:  3D printing!

[L]ast week, Ulrich Schwanitz figured out how to print the “impossible” Penrose Triangle,” a well-known optical illusion. He released a video of the shape and challenged others to see how it might have been done. 3D modeller Artur Tchoukanov promptly figured it out, designed a 3D shape that accomplished the same thing, and uploaded his shape’s specifications to Thingiverse, a repository for 3D designs….Schwanitz sent Thingiverse a DMCA notice — essentially, a threat to name Thinigverse as a party in any copyright lawsuit against Tchoukanov unless Thingiverse took the shape down immediately.Whereupon Schwanitz became the inventor of something much more substantial than a 3D Penrose Triangle — he became the inventor of copyright threats over open 3D repositories. A weekend’s worth of acrimony followed — with lots of speculation about the copyrightability of Schwanitz’s design and questions about whether Tchoukanov was guilty of violating any copyright that vested in the design, and further questions about the ethics of copying designs and the ethics of sending copyright threats to Thingiverse.

As Cory Doctorow later notes in his BoingBoing post, Schwanitz has withdrawn his litigation threat, but legal wrangling of this new, third-dimensional sort is certainly not going to stop anytime soon:

[A]ggrieved optical illusion creators don’t have anything like the political and legislative clout of other potential 3D printing complexifiers. Imagine what happens when some magistrate in Alabama decides that Thingiverse is liable for hosting 3D models of sex toys (illegal in AL) and issues a bench warrant for Bre Pettis’s arrest. Or when someone from Shapeways shows up at CES in Vegas, only to discover that the state Drug Enforcement Agency has issued a warrant on the basis of a bong design available at Shapeways, violating the state’s strict anti-drug-paraphenalia laws. Or someone from i.materialise gets an EU extradition request from Germany because someone’s printed a detailed, historically accurate toy soldier with a swastika armband, violating Germany’s strict laws against Nazi paraphernalia.

And just wait until someone creates a printer that can reproduce patented pharmaceutical compounds or Monsanto’s patented life-forms! Now there are a couple of villains with a lot of resources to throw at making the whole Internet’s life miserable in order to squeeze an extra 0.05% into the quarter’s bottom line.

As the Economist’s cover study just two weeks ago indicates, the 3D printer world is already here.  As that report suggested,

Good ideas can be copied even more rapidly with 3D printing, so battles over intellectual property may become even more intense. It will be easier for imitators as well as innovators to get goods to market fast. Competitive advantages may thus be shorter-lived than ever before.