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dans vos oeuvres.
THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (CONTINUITY AND CHANGE) I am pleased to say that I have joined the editorial board of the Communications of the ACM, the monthly journal of the world’s leading computer-science professional society, the Association for Computing Machinery.I am responsible for editing a THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM : HOW COPYRIGHT IS LIKE COGNITIVE IMPAIRMENT The Sweet 16 is another cognitive impairment test. Its creators did a study to validate that Sweet 16 and MMSE scores correlated strongly, and that the Sweet 16 could be as effective when used in a clinical setting. And now for the bad news. The Sweet 16 is no longer availablefor download.
THE LABORATORIUM (2D SER.) (CONTINUITY AND CHANGE) I am pleased to say that I have joined the editorial board of the Communications of the ACM, the monthly journal of the world’s leading computer-science professional society, the Association for Computing Machinery.I am responsible for editing a THE LABORATORIUM (2D SER.) (SPEECH IN, SPEECH OUT) I have just posted Speech In, Speech Out, one of several scholarly responses included as part of Ronald K.L. Collins and David M. Skover’s new book, Robotica.The book is their take on how the First Amendment will adapt to an age of robots. To quote from the publisher’s description: THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (CHILDREN'S ANIMATED SERIES, AS My Little Pony: Friendship is Magic: The brony thing is legitimately weird, but this is legitimately a great show.The combination of epic-fantasy plots with a deep dive on friendship is a winner (and has also been deeply influential on kids’ television). THE LABORATORIUM (2D SER.) (FAITH-BASED INTELLECTUAL The Laboratorium (2d ser.) Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legalacademy.
THE LABORATORIUM (2D SER.) (SOCIAL MEDIA AND ORAL CULTURE) The Laboratorium (2d ser.) Until recently, many critiques of social media have come from the perspective of written culture, but the better framework is oral culture. — an xiao mina (@anxiaostudio) January 3, 2015. A written culture assumption: selfies are the height of vanity. An oral culture reframing: selfies are a way to conveyemotion
THE LABORATORIUM (2D SER.) (TIMES OUT) On its website, Harvard uses Hoefler Text, which is a decent enough match for Old Style 7, comes preinstalled on Macs, and has advanced features like ligatures, ornaments, and bold.That’s how serious Harvard is about tradition: Old Style 7 doesn’t have bold, and neither does the Harvard Law Review. THE LABORATORIUM (2D SER.) (THE HOBBS LAND GODS) The setting for the book is that humanity has recently turned the planet of Hobbs Land into a quiet agricultural colony. It was previously occupied by a placid species called the Owlbrit, who moved about on detachable tentacles and left it dotted with small circular temples. A few of the inhabitants of Settlement One have taken up theOwlbrit
THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : TO KILL A SPARROW Kill fifty or a hundred, and you get a Mao button, a proud emblem of your revolutionary anti-sparrow zeal. Incredible as it may sound, this tactic works. Overnight, the sparrow population in Northern China falls to a small fraction of its former size. The CCP hands out a ridiculous number of Mao buttons. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (FAITH-BASED INTELLECTUAL The Laboratorium (2d ser.) Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legalacademy.
THE LABORATORIUM (2D SER.) (SOCIAL MEDIA AND ORAL CULTURE) The Laboratorium (2d ser.) Until recently, many critiques of social media have come from the perspective of written culture, but the better framework is oral culture. — an xiao mina (@anxiaostudio) January 3, 2015. A written culture assumption: selfies are the height of vanity. An oral culture reframing: selfies are a way to conveyemotion
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : TO KILL A SPARROW Kill fifty or a hundred, and you get a Mao button, a proud emblem of your revolutionary anti-sparrow zeal. Incredible as it may sound, this tactic works. Overnight, the sparrow population in Northern China falls to a small fraction of its former size. The CCP hands out a ridiculous number of Mao buttons. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (FAITH-BASED INTELLECTUAL The Laboratorium (2d ser.) Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legalacademy.
THE LABORATORIUM (2D SER.) (SOCIAL MEDIA AND ORAL CULTURE) The Laboratorium (2d ser.) Until recently, many critiques of social media have come from the perspective of written culture, but the better framework is oral culture. — an xiao mina (@anxiaostudio) January 3, 2015. A written culture assumption: selfies are the height of vanity. An oral culture reframing: selfies are a way to conveyemotion
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM (2D SER.) (INTERNET LAW: CASES AND As usual, the book is available as a DRM-free PDF download on a pay-what-you-want basis with a suggested price of $30. It’s also available in a perfect-bound paperback version from Amazon for $65.25. Thanks as always to my editors at Semaphore Press for their fairer business model. In true Internet style, we cut out the middleman andpass the
THE LABORATORIUM : AS FLIES TO WANTON BOYS As Flies to Wanton Boys. June 28, 2014 at 4:33 PM. 0 Comments. Most recent update: 9:05 PM, Monday June 30. If you were feeling glum in January 2012, it might not have been you. Facebook ran an experiment on 689,003 users to see if it could manipulate their emotions. One experimental group had stories with positive words like “love” and THE LABORATORIUM (2D SER.) (SPYWARE VS. SPYWARE) I’m happy to announce a little non-coronavirus news. I gave a lecture at Ohio State in the fall for the 15th anniversary of their newly renamed Ohio State Technology Law Journal.It was a great program: Mary Anne Franks gave the other lecture and there were some unexpected but fascinating connections between our talks. My remarks have been going through the editorial pipeline, and just THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (THE HOBBS LAND GODS) The setting for the book is that humanity has recently turned the planet of Hobbs Land into a quiet agricultural colony. It was previously occupied by a placid species called the Owlbrit, who moved about on detachable tentacles and left it dotted with small circular temples. A few of the inhabitants of Settlement One have taken up theOwlbrit
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (COMPUTER-GENERATED WORKS The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. Put my finger on the home button to authenticate myself using TouchID. Tap on “Sign in”. Wait a couple of seconds, then cancel the page load. Tap the browser’s Back button. Tap the browser’s Back button. Tap on“Open PDF in
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (CPU, ESQ.) I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write. The tentative title is CPU, Esq.:How Lawyers and Coders Do Things withWords.
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. Put my finger on the home button to authenticate myself using TouchID. Tap on “Sign in”. Wait a couple of seconds, then cancel the page load. Tap the browser’s Back button. Tap the browser’s Back button. Tap on“Open PDF in
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (CPU, ESQ.) I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write. The tentative title is CPU, Esq.:How Lawyers and Coders Do Things withWords.
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (INTERNET LAW: CASES AND As usual, the book is available as a DRM-free PDF download on a pay-what-you-want basis with a suggested price of $30. It’s also available in a perfect-bound paperback version from Amazon for $65.25. Thanks as always to my editors at Semaphore Press for their fairer business model. In true Internet style, we cut out the middleman andpass the
THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (MICROSOFT AND THE GOVERNMENT I’m taking part in a blog symposium at Just Security on the United States v. Microsoft case currently before the Supreme Court. My essay, thrillingly titled “The Parties in U.S. v. Microsoft Are Misinterpreting the Stored Communications Act’s Warrant Authority” makes two arguments.First, framing the case as a question of whether the SCA is “domestic” or “extraterritorial” is THE LABORATORIUM (2D SER.) (RENVOI AND THE BARBER) I have a new essay, Renvoi and the Barber, in The Green Bag 2d, 1.Here is the abstract: The renvoi paradox in choice of law arises when two states’ laws each purport to select the other’s law. The barber paradox in the foundations of mathematics arises when a set is defined to contain all sets that do not contain themselves, or, more famously, when a barber shaves all men who do not shave THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM (2D SER.) (TIMES OUT) The typical law-review article of 2015 looks a lot like the typical law-review article of 1965 or 1915: same arrangement of text and footnotes on the same size page, same general citation style, samethis
THE LABORATORIUM (2D SER.) (BY NO MEANS A PHILOSOPHER) The present author is by no means a philosopher. He has not understood the system, whether there is one, whether it is completed; it is enough for his weak head to ponder what a prodigious head everyone must have these days when everyone has such a prodigious idea. THE LABORATORIUM (2D SER.) (RISKSTARTER) The Kickstarter model shifts some of this creative risk onto backers. By fronting the money, they climb in the boat with the creator. Ideally, they make a rational calculation about how much they’re willing to lose if sinks. (Kickstarter’s required disclosures aresupposed to
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) I set out to write a longer post, but there is really no need. The readout of President Trump’s July 25 telephone call with Ukranian President Volodymyr Zelenskyy shows him committing an obviously impeachable offense. THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. Put my finger on the home button to authenticate myself using TouchID. Tap on “Sign in”. Wait a couple of seconds, then cancel the page load. Tap the browser’s Back button. Tap the browser’s Back button. Tap on“Open PDF in
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (CPU, ESQ.) I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write. The tentative title is CPU, Esq.:How Lawyers and Coders Do Things withWords.
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. Put my finger on the home button to authenticate myself using TouchID. Tap on “Sign in”. Wait a couple of seconds, then cancel the page load. Tap the browser’s Back button. Tap the browser’s Back button. Tap on“Open PDF in
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (CPU, ESQ.) I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write. The tentative title is CPU, Esq.:How Lawyers and Coders Do Things withWords.
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (INTERNET LAW: CASES AND As usual, the book is available as a DRM-free PDF download on a pay-what-you-want basis with a suggested price of $30. It’s also available in a perfect-bound paperback version from Amazon for $65.25. Thanks as always to my editors at Semaphore Press for their fairer business model. In true Internet style, we cut out the middleman andpass the
THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (MICROSOFT AND THE GOVERNMENT I’m taking part in a blog symposium at Just Security on the United States v. Microsoft case currently before the Supreme Court. My essay, thrillingly titled “The Parties in U.S. v. Microsoft Are Misinterpreting the Stored Communications Act’s Warrant Authority” makes two arguments.First, framing the case as a question of whether the SCA is “domestic” or “extraterritorial” is THE LABORATORIUM (2D SER.) (RENVOI AND THE BARBER) I have a new essay, Renvoi and the Barber, in The Green Bag 2d, 1.Here is the abstract: The renvoi paradox in choice of law arises when two states’ laws each purport to select the other’s law. The barber paradox in the foundations of mathematics arises when a set is defined to contain all sets that do not contain themselves, or, more famously, when a barber shaves all men who do not shave THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM (2D SER.) (TIMES OUT) The typical law-review article of 2015 looks a lot like the typical law-review article of 1965 or 1915: same arrangement of text and footnotes on the same size page, same general citation style, samethis
THE LABORATORIUM (2D SER.) (BY NO MEANS A PHILOSOPHER) The present author is by no means a philosopher. He has not understood the system, whether there is one, whether it is completed; it is enough for his weak head to ponder what a prodigious head everyone must have these days when everyone has such a prodigious idea. THE LABORATORIUM (2D SER.) (RISKSTARTER) The Kickstarter model shifts some of this creative risk onto backers. By fronting the money, they climb in the boat with the creator. Ideally, they make a rational calculation about how much they’re willing to lose if sinks. (Kickstarter’s required disclosures aresupposed to
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) I set out to write a longer post, but there is really no need. The readout of President Trump’s July 25 telephone call with Ukranian President Volodymyr Zelenskyy shows him committing an obviously impeachable offense. THE LABORATORIUM (2D SER.) A BLOG BY JAMES GRIMMELMANN SOYEZ RÉGLÉ DANS VOTRE VIE ET ORDINAIRE AFIN D'ÊTRE VIOLENT ET ORIGINAL DANS VOS OEUVRES.RM RMS
I was shocked to learn that Richard Stallmanwill
be returning
to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. If you are not familiar with Stallman and his long history of creating a hostile environment for women, I encourage you to read Selam Jie Gano’s long and courageous post detailing the testimony of those who were forced to deal with it and Sage Sharp’s Twitter thread with receipts. It
wasn’t an open secret in tech, because it wasn’t even secret. Even as a junior programmer thousands of miles away and twenty years ago, I knew women who had been forced to deal with his clearly unwelcome advances, and men who shared techniques for keeping others safe from him. (According to rumor, ferns were particularly effective at warding him off, like a creepster crucifix.) Some communities have a missing stair;
Stallman was an open elevator shaft with a crocodile pit at the bottom. Usually when something is this flagrantly broken for so long, the building itself has structural problems. So it is in the free software community. Since its creation, it has been disproportionately and often overwhelmingly white and male. It has had a combative culture with hidden toxic power dynamics. And it has repeatedly given known harassers and abusers a home, making it a notoriously inhumane environment, particularly for women. When Stallman resigned, I thought it might be the beginning of animportant
time
of reckoning
for the free software movement. I was heartened that the FSF appeared ready to continue its mission to promote user freedom. It was larger than its founder, and could carry on without him. And I hoped that this would be followed by the removal of other toxic figures from positions of leadership and influence, by a genuine commitment to listening to those they had harmed, and by a new flourishing of diversity in free software. Apparently not. Stallman’s announcement shows that the FSF as an organiation has learned nothing from #metoo, and has squandered the opportunity for critical reflection his resignation provided. There are people of conscience who work at FSF, and thousands more around the world who have contributed their efforts to its projects over the years. It has been a privilege for me to learn from and be inspired by free software advocates and volunteers who take the vision of software freedom seriously, and who are committed to making it a meaningful reality for everyone worldwide, not just for an insular group of privileged white men with careers in computing. Reinstating Richard Stallman is a slap in the face to them and a betrayal of the trust they have extended. I am deeply sorry for them all. I have been an FSF donor for years, but I will make no further donations or have any further involvement with the FSF in any form while Richard Stallman retains any association with it. Instead, I will support other organizations that better understand the vision of equality and inclusion that free software represents, and are committed to that vision in _everything_ they do. Richard Stallman has the same freedomsin
respect of free software that anyone else does. He can run it for any purpose. He can study how it works, and modify it however he wants. He can redistribute copies to anyone. And he can distribute copies of his modified versions to anyone, along with the corresponding source code. Let that be enough. As a person, he deserves nothing less. But after what he has done, he deserves not one iota more. _✳ inclusion ✳technology _
March 22, 2021
1 Comment
SCOUTS DISHONOR
In 2017, the Boy Scouts of America invited President Trump to address their Jamboree. It was early enough in his presidency that it was still possible to pretend that he might give a speech appropriate to the occasion. Of course, he did not.
Instead, in the course of a typically partisan and petty performance, he got a crowd of tens of thousands of teenagers to boo a former President and a former Secretary of State. The moment stood out for me as a symbol of the moral rot of American civic institutions. Adults in positions of trust and responsibility invited him to speak and stood by as the entirely predictable consequences unfolded. The BSA later apologized,
but in the moment no one told him his speech was unsuitable, or tried to stop him. Everyone there from the BSA leadership either saw nothing wrong or was too timid to do anything about it.In other news
:
> More than 82,000 people have come forward with sex-abuse claims > against the Boy Scouts of America, describing a decades-long > accumulation of assaults at the hands of scout leaders across the > nation who had been trusted as role models.>
> The claims, which lawyers said far eclipsed the number of abuse > accusations filed in Catholic Church cases, continued to mount ahead > of a Monday deadline established in bankruptcy court in Delaware, > where the Boy Scouts had sought refuge this year in a bid to survive > the demands for damages. I have known some outstanding former Scouts. In word and deed they are metaphorical, as well as literal, boy scouts. But the BSA has for decades been profoundly wrong about what values are worth defending. It filed for bankruptcy inFebruary
,
but the moral bankruptcy happened long ago._✳ politics _
November 15, 2020
No Comments
I’M ALWAYS ANGRY
For most of 2016, I lived in a state of growing dread. After the election, I alternated between numbness, depression, and the grim necessity of moving forward. But by now, mostly I am angry. I am angry about the children in cages torn from their parents. I am angry that my daughter will not have seen the inside of a classroom for an entire year. I am angry about the tear gas and the bayonets. I am angry about losing four years we didn’t have for dealing withclimate change.
I am angry about the rampant foreign corruption and the petty domesticvenality.
I am angry about the degradation of the Department of Justice into a partisan political tool. I am angry about the Muslim travel ban, and even angrier that the courts went along with it. I am angry about the decimation of the civil service. I am grateful that no ill-advised tweet set off a nuclear war, but I am angry that this is even something I had to worry about. I am angry about the racism, the sexism, the xenohobia, the casualcruelty.
I am angry about the replacement of civic ritual and civic duty with apersonality cult.
I am angry about stolen Supreme Court seats, and a judiciary often unwilling to enforce the Constitution or the laws. I am angry that the best defense against authoritarianism has beenincompetence.
I am angry about Sheriff of Nottingham tax reform that steals from the poor to give to the rich. I am angry that a man who should be condemning white supremacists and domestic terrorists gives them aid and comfort instead. I am angry about the constant attempts to take away people’s healthcare, to poison their air and water, to take away their civil rights, their reproductive rights, their right to vote. I am angry about the constant lies, and about the people who know they are lies but play along anyway. I am angry about the 227,000 Americans who have died so far from a preventable disease, and I am angrier every day. I am angry that there is no limit to Donald Trump’s stupidity, his depravity, or his evil—and no limit to what Republican voters, Republican politicians, and Republican media will put up with. And I am angry about the transparent, blatant attempts to steal thiselection.
But the thing about anger is that you can channel it, and the things I am angry about are the kinds of thing I can do something about. Not alone, but together with my fellow Americans, because that is what it means to live in a democracy. Election Day is the culmination of years of work, by longtime friends and by people I have met along the way, all working together to fix the things we are angry about, to cut out the rotted flesh and begin to heal the wounds. On November 3 (or before, for many of us), we vote. And on November 4 (or after, if needed), we stand ready to make sure the results of thatvote are followed.
_✳ politics _
October 28, 2020
3 Comments
THE CANONS OF TRUMP
For obvious reasons, I have been following the news, and the news as refracted through social media, very closely since mid-spring. Unavoidably, this has meant that I have been subjected to a much higher than usual dose of Trump nonsense, and nonsense Trump takes. He says and does stupid and terrible things on a near-constant basis, which are then surrounded and amplified by a fog of overinterpretation. There is much less there there than meets the eye. Over the last four painful years, I have developed some rules of thumb for making sense of Trump news. Most of them are designed to keep me from overthinking things. I offer them up in the spirit of helping us make it to November, and to help in the process of driving Trump and Trumpism from public life. TRUMP SPEAKS ONLY TO HIS BASE “MAGA loves the black people” is not meant to persuade African-Americans that they should be Trump supporters. It is meant to persuade Trump supporters that they are not racist. The optics of driving off peaceful protesters with tear gas are not bad, in his view, because his supporters want peaceful protesters driven off with tear gas. Suspend all your normal reactions as a citizen or as a human being; they are not a useful guide to how he and his base think. Corollary: when Trump talks about suburbs under siege, remind yourself that this is what people _who don’t live in suburbs_ think people who do are afraid of.DOMINANCE POLITICS
Josh Marshall
:
“he entirety of Trump’s political message is dominance politics. … Trump attacks, others comply and submit.” DavidAuerbach
:
“or him, the only acceptable outcome is the one where he wins and you get screwed. … Trump always defects because he wants to maximize how much worse you do than him–not because he wants to maximize his own payoff.” Trump always pushes the button.
THE CRUELTY IS THE POINT Trump’s policies are unnecessarily cruel, not by accident but intentionally. Tearing migrant children from their parents is his signature policy, precisely because it is so terrible. Trump’s natural meanness is a perfect fit for supporters who want their government to violate human rights. (Source: Adam Serwer)
THE STUPIDITY IS ALSO THE POINT Most Americans are not idiots. But most Americans devote very little attention to politics. Nuking hurricanes and injecting bleach are astonishingly terrible ideas. But they sound plausible enough to someone who is barely listening. Trump is an idiot savant of political communication because his limited intelligence matches many people’s limited attention. His inability to formulate complex thoughts comes across as authenticity.TRUMP’S RAZOR
Josh Marshall
:
“he stupidest possible scenario that can be reconciled with the available facts” is probably correct. Too many examples to list, but nothing tops, “If we stopped testing right now, we’d have very few cases, if any.” Trump doesn’t believe that tests make him look bad by finding cases; he believes that tests make him look bad by_causing_ cases.
TEN MINUTE INCREMENTSMaggie Haberman
: “He will
say whatever he has to say to get through ten minute increments of time.” Trump _does not think ahead_. There is no long-term plan when he speaks. He likes rallies where he can riff and ramble for as long as he likes. He likes friendly interviews. In any other situation, when he is being pressed for any reason, he will say anything that comes to mind that seems like it will make the immediate problem go away. His notorious word salad is one coping mechanism; so is making big but impossibly vague promises. TRUMP IS A THEY, NOT AN IT Kenneth Shepsle’s “Congress is a ‘They,’ Not an 'It’”
argues that it is a category mistake to attribute intentions to a multi-member body. Legislators voting for a bill may not share the same purpose, or even the same understanding of what it does. Reader, I am here to tell you that the same thing is true of the shambling mess of rage, impulses, and distractions that is Donald Trump. A Trump tweet might reflect his own deliberations, but just as often is something he saw on Fox, or someone said to him on the phone, or something that Dan Scavino wrote. FROM GOD TO FOX TO TRUMPThere is a close
correlation
between
whatever is on Fox News and what Trump says and tweets, often in real time. If something seems like a non sequitur, look for a sourceupstream.
TRUMP IS CHAFF
Leon Wolf
:
“Donald Trump is the political equivalent of chaff, a billion shiny objects all floating through the sky at once, ephemeral, practically without substance, serving almost exclusively to distract from more important things – yet nonetheless completely impossible toignore.”
LOW-PASS FILTER
A low-pass filter
blocks signals that change quickly, only significant long-term changes get through. This is the opposite of how the press and social media work. Social media amplify things that are already being shared widely _right now_, and journalists compete online by trying to be first. But most Trump tweets, quotes, and leaks are noise. It’s okay to ignore the latest bit of chaff; anything important enough to pay serious attention to will be repeated, many many times. TRUMP DOESN’T WANT TO BE PRESIDENT, HE WANTS TO BE KING Trump’s vision of leadership isn’t so much authoritarian as medieval. He wants people to bow down and praise his royal splendor, his brilliance, his feats of prowess. He doesn’t have a cabinet or political allies; he has courtiers and nobles. He doesn’t understand or care how bureaucracy works, even when he would be far more effective working through it. His daily routines are straight out of Hilary Mantel’s portrait of Henry VIII.TODDLER IN CHIEF
Daniel Drezner
:
“I’ll believe that Trump is growing into the presidency when his staff stops talking about him like a toddler.” Drezner (now in bookform
)
gets at two points. First, Trump behaves like an ill-behaved small child: bad temper, poor impulse control, short attention span, demands for praise, constant need to be the center of attention. Second, his staff see their job as nannies. THE WHITE HOUSE IS A THEY, NOT AN ITJay Rosen
:
“There is no White House. Not in the sense that journalists have always used that term. It’s just Trump— and people who work in the building. That they are reading from the same page cannot be assumed. The words, 'the White House’ are still in use, but they have no clear referent.” Other administrations worked hard to send a unified message. Not this one. Trump doesn’t even tell his own staff clearly what his policies are, and he frequently changes his mind, so the presumption that a statement from a White House official–even from Trump himself–reflects official policy does not hold. WORKING TOWARD TRUMP Historian Ian Kershawobserved that
(especially in contrast to the workaholic Stalin) Hitler was just about the last person you would expect to be able to lead a bureaucracy capable of waging a world war and carrying out the mass murder of six million. He was lazy, easily bored, and cultivated administrative chaos. Instead of waiting for clear and specific orders, his supporters “worked toward the Fuhrer”: they tried to anticipate policies he would approve of. (More detail here.)
DIGNITY WRAITHS
Josh Marshall
:
“Rosenstein’s public reputation, which was formidable, has been destroyed. He now joins a legion of Trump Dignity Wraiths, men and women (though mainly men) of once vaunted reputations or at least public prestige who have been reduced to mere husks of their former selves after crossing the Trump Dignity Loss Event Horizon.” Corollary by Josh Barro:
“ has stripped only the dignity from people who surrenderedit willingly.”
TO THE CORNFIELD
_The Twilight Zone_
:
“They have to think happy thoughts and say happy things because, once displeased, the monster can wish them into a cornfield or change them into a grotesque, walking horror.” Trump takes every revenge he can on those who criticize or undercut him. His underlings live in fear of his displeasure, praise him elaborately in public, and generally abase themselves to avoid being sent to the political cornfield. As a result … THE REPUBLICAN PARTY IS A PERSONALITY CULT The phrase is Ezra Klein’s,
but William Saletan
said it first: “Donald Trump is the GOP’s warlord. The Republican Party is officially a failed state.” On the one hand, Trump is the GOP: Never Trumpers and Trump critics have been effectively sidelined and deligitimized as not real Republicans. On the other hand, the GOP is Trump: the official 2020 platform of the Republican Party is, in its entirety, “the President’s America-first agenda.”_✳ politics _
August 28, 2020
No Comments
THE COPYRIGHT LAW OF EMBEDDING JUST GOT A LOT MORE INTERESTING Tim Lee has a remarkable story at Ars Technica about a remarkable copyright case, _McGucken v.Newsweek_
.
Its headline, “Instagram just threw users of its embedding API under the bus,” is not an exaggeration. (Disclosure: I am quoted in the story, and I learned about the case from being interviewed for it.) The facts are simple: > Photographer Elliot McGucken took a rare photo (perhaps this one> )
> of an ephemeral lake in Death Valley. Ordinarily, Death Valley is > bone dry, but occasionally a heavy rain will create a sizable body > of water. Newsweek asked to license the image, but McGucken turned > down their offer. So instead Newsweek embedded a post from > McGucken’s Instagram feed containing the image. This is the third case I am aware of in the Southern District of New York in the last two years on nearly identical facts. One of them, _Sinclar v. Ziff Davis_,
held that the Mashable was not liable for an Instagram embed. The court reasoned that by uploading her photograph to Instagram, photographer Stephanie Sinclair agreed to Instagram’s terms of service, including a copyright license to Instagram to display the photograph – and also thereby allowed Instagram to sublicense the photograph to its users who used the embedding API. Thus, Mashable had a valid license from Sinclair by way of Instagram, so no infringement. _McGucken_ agrees with most of this reasoning, but stops just short ofthe crucial step.
> The Court finds Judge Wood’s decision to be > well-reasoned and sees little cause to disagree with that court’s > reading of Instagram’s Terms of Use and other policies. Indeed, > insofar as Plaintiff contends that Instagram lacks the right to > sublicense his publicly posted photographs to other users, the Court > flatly rejects that argument. The Terms of Use unequivocally grant > Instagram a license to sublicense Plaintiff’s publicly posted > content, and the Privacy Policy clearly states that “other Users > may search for, see, use, or share any of your User Content that you > make publicly available through” Instagram.>
> Nevertheless, the Court cannot dismiss Plaintiff’s claims based on > this licensing theory at this stage in the litigation. As Plaintiff > notes in his supplemental opposition brief, there is no evidence > before the Court of a sublicense between Instagram and Defendant. > Although Instagram’s various terms and policies clearly foresee > the possibility of entities such as Defendant using web embeds to > share other users’ content, none of them expressly grants a > sublicense to those who embed publicly posted content. Nor can the > Court find, on the pleadings, evidence of a possible implied > sublicense. (citations omitted) Lee did something smart with this dueling pair of cases: he got Facebook (Instagram’s owner) to go on record with its interpretation of its own terms of use. > “While our terms allow us to grant a sub-license, we do not grant > one for our embeds API,” a Facebook company spokesperson told Ars > in a Thursday email. “Our platform policies require third parties > to have the necessary rights from applicable rights holders. This > includes ensuring they have a license to share this content, if a > license is required by law.”>
> In plain English, before you embed someone’s Instagram post on > your website, you may need to ask the poster for a separate license > to the images in the post. If you don’t, you could be subject to a > copyright lawsuit. This statement, I think it is fair to say, comes as a surprise to Mashable, to Judge Wood, and to all of the Instagram users who embed photos using its API. Major online services offer widely-used embedding APIs, and media outlets make extensive use of them. I would not say that it is universal, but it is certainly a widespread practice for which, it is widely assumed, no further license is needed. If that is not true, it is a very big deal, and a great many Internet users are now suddenly exposed to serious and unexpected copyright liability. _McGucken_ is not the end of the story. I would have said – and in fact I initially told Lee – that it is possible the court would reach a different conclusion at a later stage of the case, once it had more facts about Instagram’s terms of use. That … no longer seems likely. But it is still quite possible Newsweek could win and be allowed to use the embedded photograph. It raised a fair use defense, and might well prevail on that at a later stage. It might also be able to rely on the server rule. The server rule, which can be traced to _Perfect 10 v. Amazon.com_ from the Ninth Circuit in 2007, holds that only the person whose server transmits a copy of an image “displays” that image within the meaning of the Copyright Act. In an embedding case like _Sinclair_ or _McGucken_, that would be Instagram, not Mashable or Newsweek – that is how embedding works. There is no dispute that Instagram is licensed to publicly display copies of these photographs; the photographers agreed as much when they uploaded them. So on the server test, no sublicense is needed; embeds are noninfringing. The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, _Goldman v. Breitbart_,
held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the _Goldman_ court considered and rejected the server test. (Side note: There was an important potential factual distinction in _Goldman_. There, unlike in _Sinclair_ and in _McGucken_, the photograph had been uploaded to Twitter by unauthorized third parties, who could give no license to Twitter and thus none to the defendants. But this distinction played no part in _Goldman_’s legal analysis. While these facts could be relevant to the existence of a license, they don’t affect whether the image was displayed or by whom.) To summarize, there are two possible routes to finding that API embeds of a photographer’s own uploads are allowed: either the service itself displays the image under the server rule, or the embedder displays it but has a valid sublicense. _Goldman_ rejected the server rule, but did not consider the existence of a sublicense. _Sinclair_ did not consider the server rule but held there was a sublicense. _McGucken_ did not consider the server rule – inexplicably, Newsweek did not ask the court to hold that there was no direct infringement under the server rule – and held that there was no sublicense. No court has considered and ruled on both arguments together, despite the fact that they are joined at the hip. A particularly careful and thorough critique of the server is _Embedding Content or Interring Copyright: Does the Internet Need the“Server Rule”?_
,
by Jane Ginsburg and luke Ali Budiardjo. They argue that the server rule misreads the Copyright Act and should, with _Goldman_, be rejected. They believe, however, that the sky will not fall, because licenses will fill any gaps that should be filled. They note that YouTube’s terms of service, for example, explicitly provide for a license grant from uploaders to YouTube’s users, and they predict that this practice will be common: > Therefore, it seems likely that platforms can (and will) utilize > Terms of Service agreements that are sufficiently broad to protect > themselves and their users from infringement claims based on user > “sharing” of platform content through platform mechanisms. I would have thought so, too. Hence my surprise at Instagram’s position. There are two possibilities here. One is that Instagram does not explicitly grant a license because it believes the server test is the law. That position has been risky ever since _Goldman_. The other is that Instagram is willing to expose its users to copyright liability when they use its system as intended. I think it is not unreasonable to describe this, as Ars does, as throwing its usersunder the bus.
One last twist. In late April, Sinclair filed a motion forreconsideration
of the holding that Mashable had a sublicense from Instagram, including some challenges to the court’s interpretation of Instagram’s terms of use. The main brief in support of reconsideration could be clearer, but her reply brief puts the issue squarely: “Nowhere has Mashable put in the record any proof as to _how_ Instagram ‘validly exercised’ its right in granting Mashable a sublicense of Plaintiff’s photo.” There things sat, until on June 2, Sinclair called the court’s attention to the _McGucken_ order, and then today, June 4, called its attention to the Ars story published just hours before. I speculated to Lee that _McGucken_ “is going to blow up the _Sinclair_ case.” I shouldn’t have used the future tense. It already has._✳ law _
June 4, 2020
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WORKING TOWARD THE FÜHRER I was inspired by a tweetby
@nycsouthpaw to read Ian Kershaw’s well-known essay _“Working Toward the Führer”: Reflections on the Nature of the Hitler Dictatorship_. I was not
disappointed; Kershaw gives a compelling analysis of the internal workings of a particular kind of authoritarian regime. In the interests of space, I will not quote the whole thing, so you will need to read the original for Kershaw’s observations on Stalin, Max Weber, succession planning, and other peripheral topics. But a number of passages about Hitler and how he ruled struck me as quiteilluminating.
Kershaw opens by observing how detached Hitler was from the work of running a government: > Hitler’s way of operating was scarcely conducive to ordered > government. Increasingly, after the first year or two of the > dictatorship, he reverted to a lifestyle recognisable not only in > the party leader of the 1920s but even in the description of the > habits of the indolent youth in Linz and Vienna recorded by his > friend Kubizek. According to the post-war testimony of one of his > former adjutants:>
>> Hitler normally appeared shortly before lunch, quickly read >> through Reich Press Chief Dietrich’s press cuttings, and then >> went into lunch. … When Hitler stayed at Obersalzberg it was >> even worse. There, he never left his room before 2.00 p.m. Then, >> he went to lunch. He spent most afternoons taking a walk, in the >> evening straight after dinner, there were films. … He disliked >> the study of documents. I have sometimes secured decisions from >> him, even ones about important matters, without his ever asking to >> see the relevant files. He preferred to act by personal fiat, relying on individuals rather than on institutions: > Hitler seems to have had no deliberate policy of destabilisation, > but rather, as a consequence of his non-bureaucratic leadership > position and the inbuilt need to protect his deified leadership > position by non-association with political infighting and > potentially unpopular policies, to have presided over an inexorable > erosion of ‘rational’ forms of government. And while the > metaphor of 'feudal anarchy’ might be applied to both systems, it > seems more apt as a depiction of the Hitler regime, where bonds of > personal loyalty were from the beginning the crucial determinants of > power, wholly overriding functional position and status. The almost inevitable result of this management style was that his administration existed in a perpetual and increasing state of chaos: > I have just used the word 'system’ of Nazism. But where Soviet > communism in the Stalin era, despite the dictator’s brutal > detabilisation, remained recognisable as a system of rule, the > Hitler regime was inimical to a rational order of government and > administration. Its hallmark was systemlessness, administrative and > governmental disorder, the erosion of clear patterns of government, > however despotic.>
> This was already plain within Germany in the pre-war years as > institutions and structures of government and administration > atrophied, were eroded or merely bypassed, and faded into oblivion. > It was not simply a matter of the unresolved Party-State dualism. > The proliferation of 'special authorities’ and plenipotentiaries > for specific tasks, delegated by the Führer and responsible > directly to him, reflected the predatory character and improvised > techniques immanent in Nazi domination. Lack of coherent planning > related to attainable middle-range goals; absence of any forum for > collective decision-making; the arbitrary exercise of power embedded > in the 'leadership principle’ at all levels; the Darwinian > principle of unchecked struggle and competition until the winner > emerged; and the simplistic belief in the 'triumph of the will’, > whatever the complexities to be overcome: all these reinforced each > other and interacted to guarantee a jungle of competing and > overlapping agencies of rule. He was able to be a such a weak head of government because his base of support wasn’t dependent on the quality of his administration: > Since the mid-1920s, ideological orthodoxy was synonymous with > adherence to Hitler. 'For us the Idea is the Führer, and each Party > member has only to obey the Führer,’ Hitler allegedly told Otto > Strasser in 1930. The build-up of a 'Führer party’ squeezed > heterodox positions onto the sidelines, then out of the party. By > the time the regime was established and consolidated, there was no > tenable position within Nazism compatible with a fundamental > challenge to Hitler. His leadership position, as the font of > ideological orthodoxy, the very epitome of Nazism itself, was beyond > question within the movement. Opposition to Hitler on fundamentals > ruled itself out, even among the highest and mightiest in the party. > Invoking the Führer’s name was the pathway to success and > advancement. Countering the ideological prerogatives bound up with > Hitler’s position was incompatible with clambering up the greasy > pole to status and power. And yet, despite Hitler’s incompetence at pulling the levers of formal governmental power, he was quite successful at getting the state to do the insane things he wanted. Kershaw points to three mechanisms: Hitler was a unifier, an activator, and an enabler. First, he was a symbolic and ideological figurehead for his supporters: > As _unifier_, the 'idea’ incorporated in the quasi-deified Führer > figure was sufficiently indistinct but dynamic to act as a bond not > only for otherwise warring factions of the Nazi Movement but also, > until it was too late to extricate themselves from the fateful > development, for non-Nazi national-conservative elites in army, > economy and state bureaucracy. It also offered the main prop of > popular support for the regime (repeatedly giving Hitler a > plebiscitary basis for his actions) and a common denominator around > which an underlying consensus in Nazi policy could be focused. Second, he energized them to act out on their own: > As _activator_, the 'vision’ embodied by Hitler served as a > stimulant to action in the different agencies of the Nazi Movement > itself, where pent-up energies and unfulfilled social expectations > could be met by activism carried out in Hitler’s name to bring > about the aims of Leader and Party. But beyond the movement, it also > spurred initiatives within the state bureaucracy, industry and the > armed forces, and among the professionals such as teachers, doctors > or lawyers where the motif of 'national redemption’ could offer an > open door to the push for realisation of long-cherished ambitions > felt to have been held back or damaged by the Weimar 'system’. In > all these ways, the Utopian 'vision’ bound up with the Führer – > undefined and largely undefinable – provided 'guidelines for > action’ which were given concrete meaning and specific content by > the voluntary 'push’ of a wide variety of often competing agencies> of the regime.
Third, he used his power to ratify their actions: > Perhaps most important of all, as _enabler_ Hitler’s authority > gave implicit backing and sanction to those whose actions, however > inhumane, however radical, fell within the general and vague > ideological remit of furthering the aims of the Führer. Building a > 'national community’, preparing for the showdown with Bolshevism, > purifying the Reich of its political and biological or racial > enemies, and removing Jews from Germany, offered free licence to > initiatives which, unless inopportune or counter-productive, were > more or less guaranteed sanction from above. The collapse in > civilised standards which began in the spring of 1933, and the > spiralling radicalisation of discrimination and persecution that > followed, were not only unobstructed but invariably found > legitimation in the highest authority in the land. The title of the essay comes from a remarkable quote from “the sentiments of a routine speech from a Nazi functionary in 1934”: > Everyone who has the opportunity to observe it knows that the > Führer can hardly dictate from above everything which he intends to > realise sooner or later. On the now contrary, up till now everyone > with a post in the new Germany has worked best when he has, so to > speak, worked towards the Führer. Very often and in many spheres it > has been the case – in previous years as well – that individuals > have simply waited for orders and instructions. Unfortunately, the > same will be true in the future; but in fact it is the duty of > everybody to try to work towards the Führer along the lines he > would wish. Anyone who makes mistakes will notice it soon enough. > But anyone who really works towards the Führer along his lines and > towards his goal will certainly both now and in the future one day > have the finest reward in the form of the sudden legal confirmation> of his work.
I found this to be one of the most illuminating things I have ever read on the dynamics of the Trump administration._✳ politics _
June 3, 2020
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CHILDREN’S ANIMATED SERIES, AS GRADED BY A PARENT WHO HAS WATCHED FAR TOO MANY OF THEM*
_My Little Pony: Friendship is Magic_: The brony thing is legitimately weird, but this is legitimately a great show. The combination of epic-fantasy plots with a deep dive on friendship is a winner (and has also been deeply influential on kids’ television). It also makes the obligatory pro-social messages feel earned, rather than an afterthought. The characters are charming, the writing sparkles, and the animation is still distinctive. Endlessly watchable, which is a good thing when your kid wants to watch endlessly. Fake holidays: Nightmare Night, Hearth’s Warming Eve, Hearts and Hooves Day. Grade:A+
*
_Avatar_: I was fifteen years too old for this when it was on TV, so I didn’t understand what the fuss was about. Now I do. It’s epic but not grandiose, funny but not dumb, and morally deep without giving into plot gravity. The world-building, the writing, the animation, the voice-acting, the fight scenes, the side characters: everything works, and everything is pulling in the same direction. (The sequel series, _The Legend of Korra_, is more of the same, with an interestingly updated setting and better music.) If your kids are like mine, they’ll want to talk about everything, and so will you. I guess binge-watching is a family thing now. Grade: A+*
_She-Ra and the Princesses of Power_: This show is so gay. However gay you expect it to be, it’s ten times gayer. It’s also pro-diversity along every axis you can imagine, including body-type. It’s completely awesome. It captures the uncannily compelling techno-fantasy atmosphere of the original, and it has characters with the same names, but otherwise it’s a total gut rehab. The character studies at its core are compelling, even as the overall plot and action hold a young child’s interest. It takes lots of anime animation tropes and tones them down to the verge of naturalism, which I wouldn’t have thought would work, but totally does. Grade: A-*
_Wild Kratts_: The big kid was learning biology from this show almost from before she could talk. “Giraffe. Long neck. Eat leaves.” The premise of the show is genius: animated versions of veteran kids’ wildlife-show hosts Chris and Martin Kratt have suits that give them “creature powers,” and they travel around the world having adventures with animals. The science is legit and it’s presented entertainingly. And the characters are winners, especially the creature-suit inventor Aviva Corcovado and the colorful villains. The only thing consistently annoying about this show is that it can be shouty. Everyone is Just! So! Excited! About! Animals! Grade: A-.*
_Phineas and Ferb_: The _Arrested Development_ of kids’ animation, _Phineas and Ferb_ is impossibly dense with overlapping plots, brick jokes, and a large army of recurring minor characters. Every episode features an original song, some of which are genuinely brilliant (“Squirrels in My Pants” is a household favorite). It is also a wholly, completely sweet-hearted show. Even the antagonists – Candace and Dr. Doofenshmirtz – are sympathetic, charming, fully-realized, and allowed to grow and be happy in ways that a lesser version of this show would never even have realized was a possibility. The _allegretto_ pacing and intricate writing keep the show consistently fresh. New Disney at its best. Grade: A-*
_Ben and Holly’s Little Kingdom_: From the same team who brought you _Peppa Pig_, but even drier underneath its treacly trappings. The comedic timing is straight out of classic British sketch comedy. The voice actors are clearly in on the joke, which if anything makes the show more fun to listen to than to watch. B+*
_Dinosaur Train_: Sometimes high concepts work. The show 100% owns its message: dinosaur physiology is a diversity metaphor, presented with just the right degree of insistence. The characters are sketched with grace and sympathy, and the science is pitched just right for its target audience. Over the years, the show (like all railfans) has gotten increasingly obsessed with its train equipment: the aquacar, the submarine, the … zeppelin. The songs are surprisingly catchy, too: our favorite is probably the Dinosaur Train Zeppelin song, which, yes, is a Led Zeppelin pastiche. Grade: B+*
_Odd Squad_: This one really grew on me. If all you’ve seen is short clips, it just seems like everyone is shouting about math all the time. But the show overall is delightfully goofy, with a real sense of how to string along a running gag, and some genuinely talented childactors. Grade: B+
*
_Creative Galaxy_: Despite being a total _Daniel Tiger_ rip-off, down to the animation style, the obligatory song in every episode, and the live-action codas, this one is actually kind of nice. The art projects are well-chosen both to interest kids and also to actually be doable. Fake holidays: Heart Day. Grade: B*
_Peppa Pig_: It took me a long time to appreciate this show’s arch sense of humor. Everyone’s pretensions and ambitions are punctured; embarrassing mistakes and small indignities await adults at every turn. Once you realize that the show is making fun of most of its characters but loves them anyway, it’s much more bearable. Grade: B*
_Curious George_: Entirely forgettable, with two mildly redeeming qualities. George himself is as charming as always, and the jazzy musical score is pleasant. Grade: B-*
_Miraculous: Tales of Ladybug and Cat Noir_: It took me a while to understand what this show was doing. It’s very, very French. Grade:C+
*
_Daniel Tiger’s Neighborhood_: Even my kids recognize that Daniel Tiger is needy and whiny. The show inadvertently teaches kids what to be afraid of and how to misbehave. There is also something deeply wrong with the economy of the Neighborhood: everyone seems to have multiple jobs and the public transit system runs on magic. On the plus side, the potty song has come in handy as a reminder: when you have to go potty, stop and go right away. Fake holidays: Love Day, Snowflake Day, Dress Up Day. Grade: C+*
_Ready Jet Go_: I suppose there’s some science in here somewhere, Iguess. Grade: C+
*
_Tumble Leaf_: Reviewers might call this one “gentle,” by which they mean “boring.” The animation is lovely and the music is calming. But what’s the point? Grade: C+*
_PAW Patrol_: Unbelievably, incredibly formulaic. For example: have you noticed that they get in their trucks at exactly the same point halfway through each episode? Just Canadian enough to be noticeably off, but also rah-rah in a George W. Bush-administration kind of way. Sometimes I imagine grown-up versions of the pups. Chase regularly engages in police brutality, Rubble has a drinking problem, and Marshall has joined the alt-right. Grade: C*
_Nature Cat_: Nature Cat is annoying and his friends are worse. I’m not clear on what they’re supposed to be learning. And the theme song manages to be both unmemorable and an earworm. Make it stop!Grade: C
*
_Super Why_: More like _Super Why Does This Exist_, amirite? The whole show is oddly paced: I find the story-within-a-story structure confusing and can only wonder how much of it kids actually get. Having each character deal with a different aspect of literacy leaves the show’s educational content unfocused. And the Super Letters are like the world’s lamest game of Wheel of Fortune. Plus the song is an earworm, and not in a good way. Grade: C*
_Sofia the First_: Empty Disney calories, this show is the _reductio ad absurdum_ of Disney’s democratization of the idea of “princess.” The plotting, the writing, and the music are technically proficient. The cel-shading effects that give 3D animation the luminosity of 2D hand drawn are lovely. The messages are perfectly innocuous. But the heart of the show is a giant gaping void. Fake holidays: Wassailia. Grade: C*
_Lion Guard_: More empty Disney calories, like _Sofia the First_ but with more obnoxious characters. Inexplicably real holiday: Christmas.Grade: C-
*
_Peg + Cat_: All I can remember is that the show is inexplicably drawn on graph paper, and they have a BIG BIG PROBLEM every few seconds. When people complain about STEM, and I remember that this show exists, I have to admit that they have a point. Grade: C-*
_Martha Speaks_: The AV Club’s term for this kind of show is “least essential.” Even by the standards of kids’ shows, the premise makes no sense. Nobody here, human or canine, is remotely sympathetic. And the plot comes to a screeching halt every time it’s time for a new vocabulary word. Grade: C-*
_WordWorld_: I have so many questions about this show. If everything is made out of words, what about the ground? The sky? Windows? And what are the letters in the words made of? What is going on with the accents? And who greenlit _three_ seasons of this garbage? Grade: D+*
_The Adventures of Puss in Boots_: This is a weird, weird show. And not in a good way. Grade: D+*
_Trolls: The Beat Goes On_: Quite possibly the most misanthropic kids show currently streaming anywhere. The combination of grimdark setting and hackneyed uplifting plot tropes is somewhere between unsettling and child abuse. Poppy is a walking illustration of emotional labor; Branch has severe PTSD. The show treats both of these as laughable quirks. And I am never going to get used to the Auto-Tune. Grade: D+*
_Kung-Fu Panda: The Paws of Destiny_: Pretty much your standard DreamWorks animation. This is not a good thing. Grade: D*
_If You Give a Mouse a Cookie_: The animation and voice-acting are innocuous. But building an entire show around the “if X, then Y” formula led to some disastrous choices. The show taught my big kid how to say things like, “If I see a rock, I _just have_ to bring it home with me.” It takes a special kind of kids show to affirmatively instill bad habits. Grade: D-*
_The Adventures of Rocky and Bullwinkle (2018)_: An absolute travesty in every possible way. The remake is the direct opposite of everything the original represented: crude instead of clever, manic instead of playful, and mean instead of goofy. Grade: F-_✳ culture _
June 3, 2020
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CPU, ESQ.
I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write. The tentative title is _CPU, Esq.: How Lawyers and Coders Do Things with Words_ . It tackles a very familiar question in technology law: _what is the relationship between law and software?_. But it comes at the problem from what I think is a new and promising direction: _the philosophy of language_. As I put itin the abstract:
> Should law be more like software? Some scholars say yes, others say > no. But what if the two are more alike than we realize?>
> Lawyers write statutes and contracts. Programmers write software. > Both of them use words to do things in the world. The difference is > that lawyers use natural language with all its nuances and > ambiguities, while programmers use programming languages, which > promise the rigor of mathematics. Could legal interpretation be more > objective and precise if it were more like software interpretation, > or would it give up something essential in the attempt?>
> _CPU, Esq._ explodes the idea that law can escape its problems by > turning into software. It uses ideas from the philosophy of language > to show that software and law are already more alike than they seem, > because software also rests on social foundations. Behind the > apparent exactitude of 1s and 0s, programmers and users are > constantly renegotiating the meanings of programs, just as lawyers > and judges are constantly renegotiating the meanings of legal texts. > Law can learn from software, and software can learn from law. But > law cannot become what it thinks software is – because not even > software actually works that way. The book stands on three legs: law, software, and philosophy. Each pair of this triad has been explored: the philosophy of law, the law of software, and the philosophy of software. But never, to my knowledge, have they been considered all at once. More specifically, Iplan to:
* Use concepts from the philosophy of law – particularly the theory of speech acts and legal interpretation – to give a rigorous account of how software works * Use that account to illuminate questions in _legal doctrine_: e.g., how should judges interpret smart contracts? * Use that account to illuminate questions in _legal theory_: e.g., is the ideal judge a computer? _CPU, Esq._ is under contract with Oxford University Press, and I will be on sabbatical in 2020-21 writing it. If you are interested, the book has its own site and I alsohave a mailing list
where I will post updates, research queries, and requests for feedback. If this sounds interesting to you, please sign up! _✳ scholarship _May 26, 2020
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SSRN AND THE 15-STEP LOGIN This is what I have to do to read an article on SSRN from my iPad: * Tap on the link to the SSRN page in my RSS reader. * Tap on the “Open this page in Safari” icon. * Wait a couple of seconds, then cancel the page load. * Tap on “Open PDF in Browser.” * Wait a couple of seconds, then cancel the page load. * Tap “Sign in and Download” * Wait a couple of seconds, then cancel the page load. * Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. * Put my finger on the home button to authenticate myself usingTouchID.
* Tap on “Sign in” * Wait a couple of seconds, then cancel the page load. * Tap the browser’s Back button. * Tap the browser’s Back button. * Tap on “Open PDF in Browser.” As best I can tell, there are three separate issues. First, SSRN pages have _something_ on them that loads so slowly as to block the entire page from displaying, hence the need to cancel page loads in steps 3, 5, 7, and 12. Second, SSRN logins time out incredibly quickly, so that I have to go through steps 6 through 15 frequently. And third, SSRN loses track of what it was doing during the sign in process, so that rather than just showing me the article when I complete the login process, I have to manually go back to the article page in steps 13through 15.
The whole thing is enough of a hurdle that it makes me think twice before trying to read anything. It’s also flakier and more annoying than the login process for anything else I read online. I have been saying for years that the steps SSRN takes to generate its download counts substantially reduce the actual readership for scholarship, and it is quite frustrating to have become an example of this pattern. _✳ frustrations _May 13, 2020
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SPYWARE VS. SPYWARE
I’m happy to announce a little non-coronavirus news. I gave a lecture at Ohio State in the fall for the 15th anniversary of their newly renamed Ohio State Technology Law Journal. It was a great
program: Mary Anne Franks gave the other lecture and there were some unexpected but fascinating connections between our talks. My remarks have been going through the editorial pipeline, and just today the student editors emailed me the final PDF of the essay. And so I give you _Spyware vs. Spyware: Software Conflicts and User Autonomy_.
By remarkable coincidence, my talk started with … a massive Zoomprivacy hole.
> This is the story of the time that Apple broke Zoom, and everybody > was surprisingly okay with it. The short version is that Zoom > provides one of the most widely used video-conferencing systems in > the world. One reason for Zoom’s popularity is its ease of use; > one reason Zoom was easy to use was that it had a feature that let > users join calls with a single click. On macOS, Zoom implemented > this feature by running a custom web server on users’ computers; > the server would receive Zoom-specific requests and respond by > launching Zoom and connecting to the call. Security researchers > realized that that web pages could use this feature to join users to > Zoom calls without any further confirmation on their part, > potentially enabling surveillance through their webcams and > microphones. The researchers released a proof-of-concept exploit in > the form of a webpage that would immediately connect anyone who > visited it to a Zoom video call with random strangers. They also > sketched out ways in which the Zoom server on users’ computers > could potentially be used to hijack those computers into running> arbitrary code.
>
> After the story came to light, Apple’s response was swift and > unsparing. It pushed out a software update to macOS to delete the > Zoom server and prevent it from being reinstalled. The update was > remarkable, and not just because it removed functionality rather > than adding it. Typical Apple updates to macOS show a pop-up > notification that lets users choose whether and when to install an > update. But Apple pushed out this update silently and automatically; > users woke up to discover that the update had already been > installed—if they discovered it at all. In other words, Apple > deliberately broke an application feature on millions of users’ > computers without notice or specific consent. And then, six days > later, Apple did it again.>
> There is a lot that could be said about this episode; it illuminates > everything from responsible disclosure practices to corporate public > relations to secure interface design for omnipresent cameras and > microphones. But I want to dwell on just how strange it is that one > major technology company (AAPL, market capitalization $1.4 trillion) > deliberately broke a feature in another major technology company’s > (ZM, market capitalization $24 billion) product for millions of > users, and almost no one even blinked. We are living in a William > Gibson future of megacorporations waging digital warfare on each > other’s software and everyone just accepts that this is how life> is now.
Here is the abstract: > In July 2019, Apple silently updated macOS to uninstall a feature in > the Zoom webconferencing software from users’ computers. Far from > being an abberation, this is an example of a common but > under-appreciated pattern. Numerous programs deliberately delete or > interfere with each other, raising a bewildering variety of legal> issues.
>
> Unfortunately, the most common heuristics for resolving disputes > about what software can and cannot do fail badly on > software-versus-software conflicts. Bad Software Is Bad, which holds > that regulators should distinguish helpful software from harmful > software, has a surprisingly hard time telling the difference. So > does Software Freedom, which holds that users should have the > liberty to run any software they want: it cannot by itself explain > what software users actually want. And Click to Agree, which holds > that users should be held to the terms of the contracts they accept, > falls for deceptive tricks, like the the virus with a EULA. Each of > these heuristics contains a core of wisdom, but each is incomplete> on its own.
>
> To make sense of software conflicts, we need a theory of user > autonomy, one that connects users’ goals to their choices about > software. Law should help users delegate important tasks to > software. To do so, it must accept the diversity of users’ skills > and goals, be realistic about which user actions reflect genuine > choices, and pay close attention to the communicative content of> software.
_✳ scholarship _April 7, 2020
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