Facebook is top dog in social; Google in search. The thing they both (with MS lurking in the wings to make a big comeback (an odd thing given how well MS does as it is)) are doing is to take recommendations to a new level (with ads thrown in of course). I have tried logged in search. I must say I was surprised. To be clear, I find there is mainly rot in social network data just as there is in search. Whether I would have used Google+ had I not been at Google is unclear. Probably not. But I did. Then I searched for some law review articles and some basic technology information. WOW. The personal results at the top had links to blog posts by people whom I followed on Google + AND THEY WERE…RELEVANT. Blew my mind. My search time went down and I found credible sources faster. Will that last? Who knows? Someone may find ways to game the system, but the small experiences make me hopeful. Now to Facebook and Bing.

If Google can do well with a much smaller set of users for Google +, Facebook and Bing might do really well. After all, Facebook has the social piece and MS has some search computer science types. Whoever wins here may offer the next thing in search. I like conducting logged out searches and logged in. When logged in, I like the potential for seeing things from friends and people I trust. For example, if I start to be interested in cameras and search gives me posts by friends I’d ask anyway, that is a pretty cool result. I can read the post and call the friend for deeper advice or just use what they posted.

All in this space will, of course, cope with privacy concerns etc. But I think that this new level of relevance has the chance to co-exist with those concerns and users may flock to one of these services to have results well-beyond the current ones in search without social. In other words, let the games continue.

Now, it’s only been two years since the brand unveiled the “Vortex Bottle,” a seemingly useless and unnecessary bottle design feature that has somehow lasted 23 months longer than anyone expected. Undoubtedly, the success of the swirly bottle neck has influenced the powers that be at Miller Lite to carry over their brand of “science” to cans. I can only imagine what the supporting market research looks like: “In our study, seven out of 10 brospondants said that when they shotgun cans of cheap beer to the amusement and horror of their friends, they opt for Miller Lite. Of those that answered positively, four out of five said that they have been wounded by the jagged aluminum the occurs in the wake of puncturing the can with their car keys, which reportedly ‘hurts like a bitch.’”

Lawsuits ahead? Sure why not? 1. Campus and underage drinking events mean someone will get alcohol poisoning or get hurt after drinking from these cans. Of course as the industry says Drink Responsibly (and in the ad, “Great Beer, Great Responsibility (with a TM it seems, so don’t go talking about great responsibility even if you are Spiderman’s uncle or maybe Marvel will sue. Hey I found another lawsuit!); but they offered the tool, so go get ‘em. Oh and other shot gun tools are available just search for beer shotgun under images in Google for an example. 2. How about a patent suit? Maybe. It seems Coors tried this innovation path a couple years ago. OK not really. It was a joke as far as I can tell. But one comment said no one would do it. And now the joke is real.

Innovation, as in beer!

“Far too many pieces of code critical to the reproduction, peer-review and extension of scientific results never see the light of day,” said Andrew Morin, a postdoctoral fellow in the structural biology research and computing lab at Harvard University. “As computing becomes an ever larger and more important part of research in every field of science, access to the source code used to generate scientific results is going to become more and more critical.”

If the essay were available, we might assess it better too.

Nonetheless, the idea is interesting. It reminds me of work by Victoria Stodden who has looked at this issue for some time. From her bio:

Victoria Stodden is assistant professor of Statistics at Columbia University and serves as a member of the National Science Foundation’s Advisory Committee on Cyberinfrastructure (ACCI), and on Columbia University’s Senate Information Technologies Committee. She is one of the creators of SparseLab, a collaborative platform for reproducible computational research and has developed an award winning licensing structure to facilitate open and reproducible computational research, called the Reproducible Research Standard. She is currently working on the NSF-funded project: “Policy Design for Reproducibility and Data Sharing in Computational Science.”

Victoria is serving on the National Academies of Science committee on “Responsible Science: Ensuring the Integrity of the Research Process” and the American Statistical Association’s “Committee on Privacy and Confidentiality” (2013).

In other words, if you are interested in thisarea, you may want to contact Victoria as well as Mr. Morin.

According to this release from Akron University “A direct comparison between human graders and software designed to score student essays achieved virtually identical levels of accuracy, with the software in some cases proving to be more reliable, a groundbreaking study has found.”

I know. I know. The coming tech wave will sap the best of teaching from the profession. Then again, a few years ago one of my best friends told me that machine learning was getting to the point where a computer could evaluate, not multiple choice, but essay writing to within 90 percent of a human grader. Well kids, we line in artificial intelligence land and as Ferris Bueller says “Life moves pretty fast.” Of course slowing down may mean you miss change more often.

If true, the breakthrough is one of great promise. We are moving to a world of the autodidact (self-teacher), sort of. As the release notes, repetition is a huge part of learning but with writing there is only so much time that a teacher can take to grade and provide feedback. If I had such a tool, I am not sure that I would grade for more than a did you do the work grade. When I was in grade school, we self-graded and then had to see where we went wrong. It did not work if the material was simply lost on us. But in many cases one caught sloppiness etc. Here a technology solution may allow a student to receive feedback and tips about the fundamentals they miss.

To the credit of those in the field, they admit some homogenization may occur. But I would argue that for grade school, high school, and even college much of the basics are in fact about whether one masters the homogenous type. Having many people able to write a persuasive piece using either pathos or logos as assigned would be a great problem. And that foundation is needed before one can move to manipulating forms to startle and be more creative (read books by writers on writing and most tell you to get the basics down first). For law, memo writing, brief writing, etc. follow a form. After one learns that skill, the creative use of argument is possible.

I also like that the approach by the Hewlett Foundation and others involved in this space is to run competitions and offer prizes so that many can take whatever approach they like and the goal of great tools to allow teachers to do more emerge.

1. Privacy after death? In may article Property, Persona, and Preservation which uses the question of who owns email after death, I argue that privacy after death isn’t tenable. The release of information after someone dies (the man committed suicide), (From ZDNET “he man committed suicide, which meant the police didn’t care if the Facebook document was published elsewhere, after robbing two women and murdering a third.”) brings up a question Dan Solove and I have debated. What about those connected to the dead person? The facts here matter.

2. What are reasons to redact or not release information? Key facts about redaction and public records complicate the question of death and privacy. I’m assuming the person has no privacy after death. But his or her papers may reveal information about those connected to the dead person. In this case the police did not redact, but the paper did. Sort of.

This document was publicly released by Boston Police as part of the case file. In other case documents, the police have clearly redacted sensitive information. And while the police were evidently comfortable releasing Markoff’s unredacted Facebook subpoena, we weren’t. Markoff may be dead, but the very-much-alive friends in his friend list were not subpoenaed, and yet their full names and Facebook ID’s were part of the document. So we took the additional step of redacting as much identifying information as we could — knowing that any redaction we performed would be imperfect, but believing that there’s a strong argument for distributing this, not only for its value in illustrating the Markoff case, but as a rare window into the shadowy process by which Facebook deals with law enforcement.

As the comments noted and the explanation admits, the IDs and other information of the living are arguably in greater need of protection. It may have been that the police needed all the information for its case, but why release it to the public?

Obvious Closing: As we put more into the world, it will come back in ways we had not imagined. I doubt that bright line rules will ever work in this space. But it seems to me that some sort of best practices informed by research (think Lior Strahilevitz’s A Social Networks Theory of Privacy) could allow for reasonable, useful privacy practices. The hardest part for law and society in general is that this area (information-related law) is not likely to be stable for some time. That being said, I think that the insane early domain name law (yes someone could think that megacorpsucks.com is sponsored by megacorp) corrected in about 10 years. Perhaps privacy and information practices will reach an equilibrium that allows the law to stabilize. Until then, practices, businesses, science, and the law will twirl around each other as society sorts what balance makes sense (until something messes with that moment).

HT: CyberNetwork News

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Short abstract:

“Infrastructure resources are at the center of many contentious public policy debates, ranging from what to do about our crumbling roads and bridges, to whether and how to protect of our natural environment, to patent law reform, to electromagnetic spectrum allocation, to providing universal health care, to energy policy, to network neutrality regulation and the future of the Internet. Each involves a battle to control infrastructure resources, set the terms and conditions under which the public gets access, and determine how the infrastructure and various infrastructure-dependent systems evolve over time. This book advances strong economic arguments for managing and sustaining infrastructure resources as commons. The book identifies resource valuation and attendant management problems that recur across many different fields and many different resource types, and it develops a functional economic approach to understanding and analyzing these problems and potential solutions.”

Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startling fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

An interesting episode of the show Radiolab addressed in part the question of romantic authorship and the muse.  In “Me, Myself, and Muse,” Jad Abumrad and Robert Krulwich question whether there is something more than individualistic, independent authorship to the act of creation.  In the podcast, Elizabeth Gilbert (author of “Eat Pray Love”) talks about an interview she did with Tom Waits for GQ, where he asserts that each song comes into being with its own unique identity, and that there is some sort of a muse involved, an “external collaborator,” one that he talks to, negotiates with.  Waits described one day driving down an LA freeway when a melody came into his head.  He was in traffic, had no pen or paper or recorder to capture the tiny and beautiful piece of music.  So, he decided to talk to that song, saying, “Excuse me.  Can you not see that I’m driving?  If you are serious about wanting to exist, then I spend eight hours a day in the studio.  You’re welcome to come and visit me when I am sitting at my piano.  Otherwise, leave me alone and go bother Leonard Cohen.”  Elizabeth Gilbert talks about relying on this external component of authorship and sweet-talking it when necessary, commenting, “I know the difference between something I thought of and something I was given.”

Songwriters often say similar things.  Townes Van Zandt said the song “Pancho and Lefty” came to him in a dream, fully formed, and he wondered for years what it was about.  It is widely known that Paul McCartney claims the song “Yesterday” also came to him in a dream.  Bob Dylan, in his interview with Ed Bradley on “60 Minutes,” describes how he wrote “Blowin’ in the Wind” in 10 minutes (at 1:12).  He describes the process as some kind of magic (and clarifies that it is not the Siegfried and Roy kind of magic), and that he has no idea how he wrote “Blowin’ in the Wind” except to say that “it came from… um… like, um… right out of that wellspring of creativity, I would think.”

[T]he key issue is to think about why we choose novelty over immersion. Why do we choose convenience—the speed of consumption—over the sensory qualities of a consumption experience?

What [Simon] Reynolds dubs retromania seems a paradoxical way for capital to proceed to secure ideological dominance, but it makes a diabolical sort of sense: get novelty and innovation on the cheap by recycling the ready-at-hand past. This has the added bonus of fusing the new with the familiar, so consumers can appease two contradictory longings simultaneously. Nostalgia and novelty fuse in a new kind of cultural artifact, which Reynolds spends a lot of time cataloging: stuff like I Love the ___’s, reunion tours, bands playing their old albums in sequence, Web 2.0 music like Flying Lotus, Girl Talk, etc.

The fusion of “new and the familiar” also reminds me of the ideas of “flocking and differentiation” in the Hemphill/Suk article on fashion. Rather than being epiphenomenal, one more sad aspect of status anxiety, fashion to Hemphill and Suk is an authentic expression of a broader dialectic of individual self-creation: to both conform to social norms and to distinguish oneself from them. Christening these impulses “flocking” and “differentiation” (respectively), Hemphill and Suk see fashion as not merely an economic phenomenon, but a cultural one, reflecting deep-seated human needs. But a rapid and fruitless cycling between bedazzlement and boredom could just as accurately characterize fashion trends as an ennobling narrative about “flocking” and “differentiation.”

Who knows whether fashion, or the fused nostalgia/novelty Horning describes, is a component of authentic self-expression, or a form of false consciousness? As Denis Charles Philips explains, “many rival narratives can be devised by an individual to account for a given action, just as, in natural sciences, many rival hypotheses can be invented to account for any finite body of data.” The law of culture can be vexing in part because we can disagree so profoundly about the right narrative “frame” for the phenomena we encounter.

It’s tempting to simply refuse to give an account of value, or even intention, in some circumstances. When we move from processes of appreciation to those of creation, that’s an increasingly popular strategy. Richard Prince appeared to retreat to the realm of the non-rational at a recent deposition in a celebrated copyright case:

In a deposition in the case that was recently published as part of an unlikely art book by the writer and director Greg Allen, lawyers for [plaintiff] Mr. Cariou follow [defendant] Mr. Prince deep into the strange and often trackless territory of artistic intention. About as close as they get to pinning him down is that he wanted to use the borrowed pictures to explore his fascination with the painting of Willem de Kooning and also thought of his collages and paintings as part of an idea for a movie about a post-apocalyptic world in which Rastafarians, famous literary lesbians and others commandeer hotels on St. Bart’s.

“So what are four lesbians from the early 20th century doing on St. Bart’s in, now, when there’s a nuclear war, like why are they there?” a lawyer asked Mr. Prince, who responded: “Your guess is as good as mine. That’s what I do, I make things up.” At another point in the transcript of the deposition, a lawyer asked, “What is the message?” Mr. Prince replied, “The message is to make great art that makes people feel good.”

Maybe Prince also answers Horning’s initial question, “why we choose novelty over immersion”? Or perhaps we should turn to Sven Birkerts, who observed, in The Gutenberg Elegies, readers “awed and intimidated by the availability of texts, faced with the all but impossible task of discriminating among them, [tending] to move across surfaces, skimming, hastening from one site to the next without allowing the words to resonate inwardly.”

Information overload has an aesthetics; only time will tell if it’s deep or shallow. While that debate rages on, Horning grounds us in the material foundations of an oppositional stance:

Value now is captured by harnessing the filtering that consumers perform for one another, monitoring the lateral cultural chatter and trying to time the implied markets. This is another aspect of the retromania phenomenon. Amateur bricoleurs sort through the digitized detritus of the past (Danny Kirwan solo albums, Falco, etc.), trying to make cultural capital out of it. How one feels about the question of resistance probably depends on how successful one is at that task.

The lords of the memes (or, in Jaron Lanier’s terms, lords of the clouds) aren’t complaining, and support a fair number of projects designed to defend the status quo. But we also need to think about the cultural consequences of a class of newly empowered sorters, filterers, and curators centrifugally pursuing their bliss. A literature criticizing the narcissism of the “daily me” has already done that for politics and journalism. Can a similar project work in culture, without being abrasive, elitist, or sectarian? Spiritual traditions attempt to identify the enduring truths, forms of beauty, and institutions of justice that contribute to human flourishing. Do they have a place in the normative evaluation of culture that lies a bit beneath the surface of legal cases like Prince’s? Could a new Adorno enliven the rights/utility literature in this area, which seems to have hit a dead end? Remix culture owes a great deal to postmodernism. Perhaps a critique of it will need to rely on both religious thought’s appreciation of tradition and critical theory’s willingness to interrogate enlightenment accounts of autonomy.

Image credit: Siebren Versteeg and whatever random viewer caused those images to appear on the touchscreens.

For example as the NY Times puts it:

What has gone wrong? Plenty, say studio distribution executives, who point to competition for leisure dollars, particularly among financially pressed young people (the movie industry’s most coveted demographic); too many family movies; and the continued erosion of star power.

One more thing: “You have to go back and look at the content,” said Dan Fellman, president of domestic distribution for Warner Brothers. “Good movies always rise to the occasion. Bad ones, not so much.”

In the immortal words of Keanu Reeves, “Whoa.” Studios admitting that they compete for leisure dollars? Acknowledgement that star power is not that powerful? Furthermore, the article notes that consumers use social media and the Internet to sort rubbish copycat films from good ones” Per the Times, Phil Contrino, editor of BoxOffice.com, offers, “Because they have less disposable income and because they are more plugged in to audience reaction on Facebook and Twitter, the teenage audience is becoming picky,” he added. “That’s a nightmare for studios that are used to pushing lowest-common-denominator films.” Now let’s throw in video games. Call of Duty did $400 million dollars in its first day of sales.

In sum, the youth audience does not have huge amounts to spend and if choosing between a film that seems unoriginal and a video game, the video game often wins. And despite some odd spin about films aimed at older audiences doing well, the article also explains star vehicles aimed at older audiences failed which seems to go back to make a good movie and people are more likely to see it in the theater.

Will sequels and re-releases in 3D draw me to the theater? Yes (damn you Lucas and your 3d Star Wars ploy!)!! But would it help if there were really good new stories? Heck yeah!

For an odd closing, I offer that economists and academics in law could do well to study the way leisure dollars are spent, the demographics of the content industries, and way that some digital industries thrive while others claim to flounder. Then again, maybe nobody knows anything.