Awkward but not Brave - Brené Brown stays on Spotify

Brené Brown, a research professor at the University of Houston, decided on Feb 8 to keep her podcasts on Spotify after pausing her podcasts on Feb 1 in the face of the platform’s choice to continue streaming Joe Rogan’s inflammatory podcast. Although she made a career from “Daring Greatly,” her choice was awkward and not brave. 

 

In a post explaining her decision, she argues that because she has an exclusive contract with Spotify, she has fewer options than artists who can make their music available on other platforms. She compares Spotify to a cafeteria where people can come in and sit where they like justifying her association with a platform that hosts Joe Rogan because her fans needn’t “sit with them.” Neither point is convincing.

 

I’d like to address the free speech cafeteria analogy first because I think it misses some important facts.

 

Although Brown would like us to think of Spotify as a cafeteria, Spotify is more like a concert (or a festival) with headline acts. The most important difference is the money involved. Brown and Joe Rogan are like headliners at the show; they’re each convincing their fans to come and, when those fans come to Spotify, they either pay a subscription, or have to listen to advertisers, or both. That money is then used to pay Brown and Rogan for their exclusive contracts. And much like a concert or festival, some acts almost certainly get paid more (Rogan) than others (Brown). Still, everyone coming to the show ends up paying some to each.

 

The exclusive contract actually compounds the problem. Because you can’t hear Brown’s podcast except on Spotify, her fans must give their subscription and/or attention to Spotify to hear the show. Thus, Rogan also gets part of his compensation from every one of Brown’s fans she brings to the streaming service. But all contracts can be terminated, even though that is likely to cost Brown money and opportunities.

 

Brown says that “words matter” and that some of the content on Rogan’s podcast made her “physically sick”. The distance between Brown and Rogan comes across as being about more than just misinformation, a part of the Joe Rogan podcast that Brown thinks Spotify is beginning to address. Brown also seems concerned about core values and how they’re expressed in public. In fact, in her cafeteria analogy she says “sharing the table with Rogan puts [her] in a tremendous values conflict with very few options”.

 

One of those options is to stop sharing the table and to find a new (or return to an old) way of publishing her podcast. If her values are that much in conflict with Rogan’s, then she can make the decision not to force her fans to subsidize the Rogan show. It should, in fact, be “me or Joe”.

 

It’s great that Brown states that “I’m always going to stand firmly on the side of free speech”. But that’s not what’s at issue here. Brown leaving Spotify, or asking Spotify to remove Rogan, doesn’t mean Rogan doesn’t have free speech rights. If he left Spotify, Rogan would find another platform and his fans would follow. I think this issue is not about censorship or free speech; it’s about making your fans buy tickets to a festival where someone else is spreading misinformation and saying hurtful and racist things. India Arie really said it best when she decided to pull her music from Spotify: ”This shows the type of company they are and the company that they keep.“

 

Brené Brown should be brave and choose not to keep company with Joe Rogan. Words matter, and actions matter. By staying on Spotify, Brown is signaling that the cost of leaving the platform is more than she’s willing to pay to keep her fans from subsidizing Spotify or Rogan.

Blowout!

I brewed ales and meads with a group of friends for about two years, starting twenty years ago. I stopped after a while; friends moved away, and it just didn't fit into my schedule for a while. I'm pretty happy to be starting back up.

This weekend I brewed two fermented beverages: a mead (technically metheglin: fermented honey, ginger, and cinnamon), and a porter ale. The latter is a dark ale with moderate bitterness, and was the source of some trouble. I was up until 4am nursing a cranky batch of beer, and my bathroom is currently (pleasantly) scented with the aroma of hops and barley.

The porter I brewed, like most ales, is made of water, sugars and starches from malted barley, and hops (for flavoring and preservation). This concoction is called the wort. When the wort is cool, yeast is added; the yeast will convert most (sometimes all) of the sugars into alcohol. The hops release their oils during the boiling process; these oils impart flavor to the finished beer. The yeast, as part of its fermentation process, generates carbon dioxide as a byproduct.

This fermentation process usually takes place in a carboy:
. At the top of the carboy in the picture, you can see what's called an air-lock; this allows the carbon dioxide to escape, and prevents oxygen (and anything else) from coming into the carboy. When things are going well, the air-lock will make a bubbling sound, often about once per second (sometimes more frequently, especially at the beginning, and sometimes less frequently, as the sugars are converted). If the carbon dioxide cannot be released, the air-lock may be expelled rather forcefully from the carboy. While the wort is fermenting, heavy particles sediment out to the bottom (the trub), and lighter particles and oils rise to the top (kraeuzen).

It was the kraeuzen, the bitter oils and particles, that clogged up my air-lock on the porter. I returned home from an evening out, to find the air-lock across the room, and kraeuzen all over the carboy. I attached a blow-off tube to the air-lock's stopper, and allowed the kraeuzen to continue to bubble out overnight; when I finally heard it start bubbling steadily (around 4am), I was able to re-sanitize the air-lock, and attach it back to the carboy.

Because there was steady fermentation the whole time, I'm pretty sure there was positive pressure heading out of the carboy at all times; I'm pretty sure no contaminants entered during the process. Nevertheless, I'm going to keep my eye on it pretty closely over the next few days.

If you have any questions about brewing or any recipes, please ask!

Judge Posner channels Roald Dahl

In 2004, Neil Gaiman sued Todd McFarlane for a declaration that he was co-author of a set of characters from the Spawn series. Judge Posner wrote the opinion, in what ends up being a fairly conversational fashion. The details of copyright ownership analysis are technical, but the tone of the opinion sounds a bit like he's explaining the outcome to you over a beer.*

One of the issues in the case is whether a particular character can be copyrighted at all. Some characters are generic; others are described in detail with immediately identifiable attributes (Harry Potter's scar); and most fall somewhere in between. One of the characters in dispute was known as "Medieval Spawn," a fairly generic term; that might have been an issue, but Judge Posner points out that the Lone Ranger's name wasn't widely known (it's John Reid!), but he's a recognizable character. Most amusing is the Judge's discussion of the difference between characters in books and characters presented in visual form (comics, movies, TV, etc.). After a long passage on page 661 from The Maltese Falcon describing the detective character Sam Spade, Judge Posner says:

Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like. A reader of unillustrated fiction completes the work in his mind; the reader of a comic book or the viewer of a movie is passive. That is why kids lose a lot when they don't read fiction, even when the movies and television that they watch are aesthetically superior.

Apparently the actual published opinion (not the one on Google Scholar) has a picture of each character attached, each in its own appendix. I guess they were copied with permission of both parties, or their inclusion is considered fair use.

* I'm not sure if Judge Posner drinks beer or not. It's just an expression.

On Sarah Palin and inspiration

This response to a friend's blog re-post got too long for the comment box. There are a few questions to explore:

1. Was Sarah Palin responsible in any way for the Giffords shooting?
2. What about her free speech rights?
3. How does this compare to Mark David Chapman reading Catcher in the Rye?

Was Sarah Palin responsible in any way for the Giffords shooting?

18 U.S.C § 2(a), which is an example of a statute criminalizing aiding and abetting a crime, reads as follows: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." The key words a jury would consider in this case are probably counsels and induces. A prosecutor would work to convince a jury that Palin's writings and rhetoric convincingly counseled violence or induced it in the attacker. It's not a requirement that Palin be a necessary element; it's not necessary to prove that this attack would not have happened without Palin's contribution. A jury would just have to decide that Palin suggested or supported such an action.

Frankly, it's pretty unlikely any jury would reach that conclusion.

What about Sarah Palin's free speech rights?

The Supreme Court decided in Brandenburg v. Ohio that some violent speech is protected by the First Amendment to the US Constitution. The Court decided that States could only criminalize speech "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This is a high bar for a prosecutor to reach in this case. Palin's web site was not apparently inciting imminent lawless action, and I don't think a jury would find that it was likely to do so either. While the web site listed individual lawmakers by name, and included gun sights targeting their districts, there was no direct call for violence, and most reasonable visitors would likely understand by the context that this was a political "call to arms" since this was published by the Palin PAC.

However the case isn't quite that open and shut. In 2003 the Supreme Court issued a relevant decision in Virginia v. Black, a case involving a statute criminalizing cross burning. While the defendants there claimed the statute infringed their right to free speech, the Court upheld the State's right to criminalize this form of expression because it was a "true threat"; the history of cross burning made this activity less an expression and more an intimidation. Here there is no statute prohibiting a publication of individual names with violent imagery, so Palin is not violating any law. However, if there were such a law, a prosecutor defending a conviction might look for evidence that such web sites have led to violence (e.g., against abortion providers) and try to make a similar argument.

Can you compare the Giffords shooting to the death of John Lennon?

Not really; an ambitious prosecutor would point out some salient differences. In particular, Sarah Palin did mention individuals by name, and placed gun sights (a symbol associated with violence) on their specific districts; Salinger's character did not shoot anyone, and especially did not mention John Lennon or anyone remotely like him. Because of these important differences, you can't say that just because it's unreasonable to associate Salinger with Mark David Chapman, it's therefore unreasonable to say Sarah Palin influenced Jared Lee Loughner. I think it's more compelling to do the analysis of her case on its own.

What do your online photos reveal about you?

I've written before about the fact that all your data on the internet can become public at any time, and the fact that on your phone or other devices, "apps" can be disclosing your location or other information. Another thing to be aware of is that photos that you place on the internet can leak information about you as well.

What sorts of data are available in photos? Your camera puts in statistics about the photo itself: size, resolution, color data, etc. There's also information about the camera, information about the environment (including, in some cases, GPS coordinates), and date/time stamps. Some cameras apparently even let you "tag" photos, with things like the subjects/participants.

What can this tell other people about you? Well, that flattering and innocuous picture you put up as your profile picture on Facebook might have the GPS coordinates of a bar or nightclub. A collection of your pictures, tagged with location and date information, could let people know you travel a lot to expensive locales. Tagged pictures with names help others calculate who your friends are (or other people you hang around with). Sometimes information that's stored in just one picture is no big deal, but the photos in the aggregate can paint a picture of you that you might not expect. Read the article; you should at least know what can be in the photos.

Of course, photo upload sites like Flickr and Facebook could help you by purging that information for you. As a matter of fact they typically do when they convert your uploaded photo to another format or size; however, if the original file is still available for download, the information your camera saved in there will travel with it. And of course if the site may keep the original, or the data from the original, for its own use. You may decide it's not worth the trouble to sanitize your photos before you share them - but I think you should at least be aware of this issue.

Firesheep

There's a new Firefox plugin called Firesheep which helps people hack your social network accounts. Here's some information about what it does and how you can react to it.

What it does

Firesheep configures your network connection to monitor the traffic your neighbors are generating. Looking at their network traffic, the plugin can find any "cookies" transferred between your browser and the social networking site. Once it's grabbed the cookie, it can implant their cookie into your browser, giving you access to their account. Social network sites which are vulnerable include Facebook and Twitter.

When are you vulnerable?

Although the plugin sounds pretty powerful, it's only dangerous in a particular environment - one in which your machine can see the network traffic of your neighbors (and they can see yours). So if you are connected to the network via an open WiFi hot spot, you can see the traffic of other people. If you're at work but they use an old security mechanism called WEP then others can pretty easily see your network traffic; I don't think the current Firesheep plugin handles this case, but it wouldn't be too difficult to add.

Wired networks are pretty safe. Modern switches and routers keep you from seeing the traffic of other machines on the network, even on your local network segment.

What can you do to be safe?

• Contact your social network vendor and insist they encrypt your entire session (not just the login sequence) via SSL. Google has already configured Gmail to do this by default. And then while you're waiting:
• Don't connect to your social networking site over public networks. Don't use Twitter or Facebook at a coffee shop, or frankly even on your phone, unless you don't mind someone having access to your account. Make sure your WiFi at home has a WPA2 password configured.
• Don't let it matter. Make sure no other sites will trust your credentials from your social networking site; this is an issue if you use OpenID at the other sites, and those sites trust your social network identity. You should also make sure you don't mind losing any items or value you might have stored up in a game or other application in your account, email or photographs stored there, etc.

The danger of "apps"

A recent study of a sample of Android apps found that they were "calling home" (sending the phone's current location to a remote web site) on a periodic basis. It was clear that the apps were not telling the user they were doing this; what was not so clear was if the users were adequately notified of this behavior when the applications were installed.

On a related front, Facebook applications can access and store your data and the data of visiting friends. The site gives you some options to suggest which data you want to share and with whom; however, keep in mind that behind the scenes the software must try to interpret your preferences in a way that keeps both you and Facebook's advertisers happy. That's not a tension that is likely to resolve in your favor.

My suggestion would be to delete any applications you don't need from your phones and social networking sites. Eventually, if you really need a phone or device which runs "apps," I'd suggest an Android, because it can be legitimately upgraded (hacked?) to reveal (and perhaps control) such data leaks. And remember, even though your location, demographic, and friend information may seem like innocuous information to be sharing, keep in mind all your data are potentially public.

Remember: your data are all public

By now everyone's heard this from me multiple times: be careful what you send in email or post to the Internet, on your blogs, Facebook, Twitter, Buzz, etc. Everything you upload in any fashion can potentially be saved forever, and at some point, redistributed.

As this article about an untrustworthy insider at Google illustrates all too clearly, your data are only protected by the goodwill and diligence of the companies you are trusting. Some companies may not have any policies or procedures in place to try to restrict access to your accounts and posts; some may have these but may not aggressively enforce them; and as the Google case shows, even if you have policies and enforcement, it won't be perfect. For example, it's likely that Facebook employees can impersonate you; there are legitimate reasons why that capacity is built in, but remember it can also be abused. Trusted insiders at these companies will have access to large pools of your information, and inevitably some of them may not be worthy of that trust. So far the stakes have apparently not been high enough for affected users to contemplate any lawsuits for breaches, collectively or individually, even when they apparently happen in violation of the representations these web sites make to you in their Terms of Service and Privacy policies.

The bottom line should be: treat absolutely everything you type into a web site or publishing program (blogger, messaging program, texts on your phone!) as though your boss (or your grandmother?) were going to read it tomorrow - because there's always a chance they might.

Building a Muslim community center in NYC

The Park51 project, sometimes described as the "Ground Zero mosque", is a Muslim community center and prayer space located a few blocks away from the former site of the World Trade Center. The location is zoned to allow religious organizations to build there; as such, the Religious Land Use (and Institutionalized Persons) Act protects the group's right to build there. This is the same statute that protects the right of a Christian mega-church to expand, or a a small church to use a downtown space to hold services. This law was passed by Congress to protect the right to free exercise of religion, a right recognized by the First Amendment to the U.S. Constitution.

In an interview on National Public Radio (NPR) on September 11, New York's Mayor Bloomberg discussed the recent controversy around the Park51 project. I was impressed by his analysis of the issues:

NPR: There've been so many controversies leading up to today, between the proposed Islamic Center there in lower Manhattan, the threatened burning of Qurans in Florida. Have 9/11 commemorations become politicized?

Mayor BLOOMBERG: I think that a lot of it has become politicized. The whole issue of the Islamic center, which was proposed a while ago and nobody seemed to have any problems with it, all of a sudden in the middle of an election campaign became something that the candidates can't stop talking about. It's pretty hard to argue that they aren't trying to make something out of this for their own political gain. And that will go away after the November election.

The real issue here is history will look back and say, did we have the courage to stand up for the Constitution and keep us free going forward? The government shouldn't be involved in telling people who to pray to, where to pray, how to pray, who's going to fund their praying.

And I think that hopefully we'll be able to look back and say that, you know, a few people were a little bit of hotheads, a few people tried to take advantage of it, but in the end America understood that the Constitution has protected us for a long time and if we don't protect other people's rights, we're not going to have our rights.

NPR: Your support of the right of the Islamic center to open being noted, if the people who run the Islamic center on their own decided to move it, would you be relieved?

Mayor BLOOMBERG: The government should not be relieved or whatever - concerned, I guess, that they have a right to build a place of worship any place that's zoned for that kind of activity. This place is. And it's totally up to them. And if the government starts expressing a view of concern or relief, that's just the government trying to influence a decision which it should not.

Compare that expression to the pressure brought to bear by the Obama Administration (and others) on the church threatening to burn copies of the Quran - an attempt to affect a different right (free speech) under the First Amendment.

Burning the Quran

A congregation led by a Pastor Jones is planning to burn copies of the Quran on September 11, 2010 - the same day as the feast of Eid ul-Fitr, which marks the end of the Muslim holy month of Ramadan. I find it surprising that the plans of a 50-person congregation from somewhere in Florida are being reported around the world. Why would the actions of such a small group cause so much commotion?

1. This is not news.

   It should come as no surprise to anyone that there exists somewhere in the world a small group of people who are prejudiced against one or more other groups. If the media were to report on every such collection of people, they'd run out of room in every broadcast and in every newspaper. Had the news media not made a "story" out of these plans, no one would likely have even noticed it happened; as an event, it's especially uninteresting because there's no threat to anyone's safety or welfare. Sadly, by shining a spotlight on this insignificant group, and by making its leader famous enough to appear on television, the news, and in print, the media inspires them and others to even more outrageous acts in the future.
   

   This is a great example of where the phrase "nothing to see here, move along" is applicable.
   

2. They have the right to burn copies of the Quran.

   Speech of all sorts is protected in the United States under the First Amendment to the Constitution. There are some types of speech which can be controlled or punished, but for the most part, the tension between (1) protecting others and their reputations, and (2) encouraging discourse about the government, officials, and important issues generally ends up protecting most types of speech. In particular, as long as you're not causing a danger to anyone (arson) you're generally allowed to burn anything you want. That goes for flags, books, pop albums, etc.
   

3. Anyone who responds to this is responsible for their own actions.

   A number of U.S. officials have attempted to warn the group that their planned event will end up endangering the lives of U.S. citizens and troops around the world. I don't think this is a reasonable or relevant observation.
   

   To begin with, any response by a member of the Muslim faithful to the burning of a copy of the Quran is their own responsibility, not the fault of the members of this congregation. No one has the right to respond with violence to what amounts, at most, an insult. It's useful to keep this in perspective: the books this Florida church plans to destroy are mere copies of the text; burning these books will not make it impossible for others to continue to teach or worship as they did before. This is not an impediment to anyone else's free exercise of their religion. And no one's health or welfare will be directly harmed by the book burning.
   

   That said, people will respond in various fashions, and some will be incited to violence. Some of the violence may happen where U.S. troops are currently stationed. Frankly, the best way to prevent violence against the troops is to move them to somewhere safe, especially home. By referring to the potential danger to U.S. troops, General Petraeus and President Obama seem to be trying to use guilt to stop the book burning; the implicit suggestion is that any subsequent violence around the world will amount to "blood on [this congregation's] hands." These statements come across as nothing more than an indirect way to pressure this group to cancel their plans.
   

   Sadly, there are also likely to be responses from those who support the views of Pastor Jones and his church. If the event goes forward, it might instigate copy cat burnings in other communities, or may inspire other groups to grab media attention with even more outrageous activities. If the burning is called off, sympathizers may act out against those whom they believe worked to shut down the event. Again, anyone who responds violently on either side should be held responsible for their actions, in accord with the law.
   

4. What this group is doing is insensitive and an inappropriate response to 9/11.

   Of course, the purpose of the protection of speech in America is to encourage reasoned discussion and debate in our community. To that end, it's welcome to have public officials, ecumenical leaders, and generally everyone else point out that burning copies of the holy book of any group is simply a manifestation of hatred toward the members of that group. Such an event adds nothing to our understanding of the causes and/or effects of the events of 9/11; instead, it acts to rend the ties in their community (and in any others which respond).
   

   I understand and defend their right to express their ideas in this fashion, but I can't say I appreciate or support it. While the government and elected officials have no right to tell them not to go ahead with their plans, I wish they would choose on their own to cancel their event, and I really wish I'd never heard of them at all in the first place.
   

Copyright, economics, and the moral high ground

My friend Herman sent out a link to a blog post by Jason Robert Brown, which documents Brown's discussion with a teenager named Eleanor about "trading" Brown's sheet music online. It occurred to me that although Brown was correct about the law and his rights, and although Eleanor's invocation of the "starving artist" argument was weak, overall she had the better of the argument.

First, the conclusion: Brown does have the legal and moral right to control copies of his work. Almost all countries observe the Berne Convention, which governs what works can be protected by their authors and when that protection becomes active. The Convention provides for a minimum duration for the protection; individual countries can allow longer protection periods if they choose. Legally, Brown is right, and can enforce his copy rights either by asking infringers to stop or by suing them in court.

Eleanor is a fan of Brown's music, and enjoys performing his songs as part of her burgeoning career in theater. She complains that she's unable to get access to Brown's sheet music because she doesn't have a credit card (and so can't purchase it online), so she has to resort to a "trading" web site, which is apparently like Napster for sheet music. Brown points out that each song is about $4, it can probably be found in a store somewhere, and maybe even at the library, so she really has options that conform to the law. Maybe Eleanor lives in New York, and that's easy for her; maybe she lives somewhere else, where sheet music is harder to find. In either case, those truly are her only legal options. One wonders, in passing, how the young Jason Robert Brown secured access to sheet music as he grew up, and what affect that had on his development and career. Maybe he had a budget big enough to afford copies of the all works he needed or wanted; maybe he stuck to works whose copyright had expired? Or maybe he just had a great local library.

Eleanor ultimately gets her fair use argument wrong but makes two convincing economic points, both of which influence the publishing behavior of successful authors like Cory Doctorow, Stanford Law Professor Larry Lessig, and economic writer Kevin Carson. The first is (very broadly) that you literally lose nothing by giving your work away to someone who would or could not have otherwise paid for it; there's no lost sale in that case. There's a bit of nuance to the concept, because different people might have bought it at different prices (marginal utility), but overall the idea of a phantom "lost sale" still holds. The second is that unless people know who you are, you'll be able to own and protect 100% of a relatively smaller number of sales of your work. By treating the works you give away for free as a marketing expense, you "grow the pie"; as Eleanor points out, you increase your reputation, and that can have "network effects" down the road. Each of these authors is making money even though they also give copies of their works away for free. Why? Because people appreciate their talent and ideas, and still love having actual books, and they pay to come hear these thinkers address an audience. Such authors don't end up charging 100% of the people who enjoy their works for each copy, but the compensation they get is certainly more than the whole "pie" of a lesser or unknown author or artist.

Brown tries to justify his moral position by giving a few examples, two of which are weak for different reasons. His first anecdote is about a friend borrowing a screwdriver and not giving it back, but that's comparing apples to oranges; in the screwdriver, he has a property right in a non-reproducible physical object, which is different from his copyright in a reproducible digital work. The second anecdote describes a "lost sale" that the Thornton Wilder estate misses out on because his friend wants Brown's copy of a Wilder book, and doesn't want to buy his own. Brown argues that Wilder's estate deserves to benefit from the sale of another copy; that's true to a point, but it exposes the whole issue of the debatable and ever-lengthening copyright periods in the United States. How long should an artist be able to prevent others from copying their works? What are the trade-offs, the parties affected, and their relative utilities? The Berne Convention says protection should last no less than 50 years, but signatory states can set longer periods; the US has extended that quite considerably (to "life of the artist plus 75 years") and may continue to do so. He then gives a third example which gives a good overview of the concept of "fair use", and then is apparently surprised that a good discussion of copyright issues is available from the University of Texas web site ("Texas! Of all places!"). I guess he doesn't think he has a lot of fans in Texas. I'm also guessing he probably doesn't run all his blog posts past his agent for feedback.

Jason Robert Brown doesn't feel like he needs to give anything away to become better known, and maybe the struggling/starving artist idea doesn't resonate with him. That's fine; that's his right. In the end, though, there will certainly be other musical geniuses who market themselves like Doctorow, Lessig, and Carson; and people like Eleanor are going to share, perform, and enjoy their music, perhaps to the exclusion of people like Brown. The ugly truth is that you can maximally benefit from the "it's all mine" approach, a strict insistence on charging for every copy of your work, only if you're selling necessities; Brown's just not in that business. His sales will go up or down based on his reputation more than from his aggressive copyright enforcement. Eleanor has no legal or moral right to steal or share his sheet music; Brown has no moral obligation to make it available to her or anyone else for free. But by trying to get every dollar he can from his work, he may be putting a limit on his relevance and appeal. It will be interesting to watch it all play out.

America's Prophets

I'm reading America's Prophets - How Judicial Activism Makes America Great by UH Law Center professor David Dow. In the book, Dow describes the function of the biblical prophets in ancient Israel as cultural course correctors; their role was to tell the public when their practices were contrary to higher law. The prophets were, in effect, the visionaries who had the courage to tell the majority "no" when necessary.

In contrast, the priests were the ones who maintained cultural continuity; it was their job to preside over and defend norms of long standing. It was their job to look to the past for guidance. This metaphor is from page 11:

... We can think of priests and prophets as judges taking a ride together on a train. The priests are seated facing the rear. They can see backward along the rails all the way back to the depot from which the train began its journey. They believe that their job is to be experts on all that has transpired between the origin of their culture and the location at which they reside at the moment. The prophets face sideways. Turning their heads one way, they see what the priests see. Turning their heads the opposite direction, they see forward. They cannot see to the end of the track, perhaps, bu they can see some distance into the future. Of course, to continue with this metaphor, there will be spots in the future that the prophetic judge, no matter how keen her vision cannot see. ... Nevertheless, the prophetic judge can see some distance into the future, and the prophetic judges believe that their job is to ascertain, based on the vector from which they have come, where they are going.

How is a US Supreme Court justice like a prophet in the Bible? In our political system, the Constitution provides the higher law, the foundational framework against which all legislation must be measured. Like the Jewish prophet who warns the people when they stray from their fundamental goals and principles, the activist judge is in the position of saying "no" to the Congress and the majority it represents, when the Congress (or a state) attempts to enact a law which runs counter to the Constitution. This is not a comfortable role for a judge to play; as any parent knows, saying "no" invites an emotional backlash. Without judges performing this role, however, we run the risk of subjecting less powerful groups to the tyranny of the majority, a concept first described by Alexis de Tocqueville, and later mentioned in the Federalist papers.

Are these "activist judges" imposing their personal morality, ethics, or interpretation of the Constitution on the rest of us? Or are their decisions based on a strict application of legal reasoning to the text and principles of the Constitution? Dow gives us the examples of Plessy v. Ferguson and Brown v. Board of Education as examples of "priestly" and "prophetic" approaches to racial equality, and promises to visit other similarly controversial examples of "activism" later in the book. He asserts that the prophetic course corrections are grounded in good law and reasoning; they would have to be, given the decisions and rationale are all public. However, I've not yet read his analysis of the various cases; those are later in the book.

On a related note, can "activist" judges on the US Supreme Court be identified by their ideology? Some interesting research from Dow and collaborators:

A study of the last ten years of the Rehnquist Court reveals that a justice's deference score* depends on something besides a judge's simple belief that the majority should be free to do as it sees fit. For example, the same justices who are most willing to tell the majority no when Congress intrudes on individual liberty (i.e., Justices Stevens and Souter in the aforementioned study) are least willing to tell the majority no when Congress intrudes on the states. Conversely, the justices most protective of the states, and therefore most willing to tell Congress no when it interferes with state power (i.e., Justices Scalia and Thomas), are least willing to tell Congress no when it interferes with individual rights. ...

I'm not even half way through the book, and I find it fascinating, hard to put down. The idea of the judiciary as a brake on the majority is a concept I've been trying to articulate and logically frame for myself for a while, and here's a book by an author who's thought it through and is a compelling writer. I'm hooked.

* A judge's deference score describes how often a judge defers to Congress and the majority it represents. A judge receives a positive score (+1) for each time he or she votes or holds that the law is consistent with the Constitution, and need not change. A judge receives a negative score (-1) for each time he or she decides a law is unconstitutional.

Public disclosure of private facts

Justice Louis Brandeis's Right to Privacy outlined a legal theory which in the United States led to the creation of four privacy related courses of action. One of these is known as public disclosure of private facts, which is defined (roughly) as a

1. public disclosure
2. of one or more private facts
3. the release of which would offend a reasonable person.

A publisher can claim that the facts are newsworthy as a defense; however, the truth of the fact(s) is not a defense, as it is in defamation actions.

Google is perhaps setting itself up as the Napster of location disclosure. As part of its data collection effort for Street View, Google has been collecting private wireless hot spot data; Irish and German authorities caught them keeping private information and forced them to remove it in a fashion auditable by third parties. Google reports that they are using the data about your wireless routers to better locate the position of Internet users. They keep that wireless information in a huge database, associated with its physical location.

How does this work? An application running on your computer, or phone, or network router can continuously check to see what wireless hot spots are around you. The application can then submit that "MAC" information to Google's location service to find out where you are.Once that's determined, the application can send that information to an advertising service, or to a social network site, or basically anywhere else, to keep track of you and let others know where you are.

Is this a public disclosure of a private fact? A number of moving parts must be analyzed to answer that question.

First, is your current location a private fact about you? If so, does the disclosure of one's location offend a reasonable person? Those questions are probably best answered by a jury, should a case like this ever be brought to court.

Is there a public disclosure of your location? To whom is the location disclosed? At what point in the process is it disclosed? Who is at fault for the disclosure; what is the proximate cause? Certainly your computer or device can know your physical location (latitude and longitude) if you are using a GPS (Global Position Service) device; most phones have that built in, and you can buy a GPS device for your computer or laptop. Without such a device, which is presumably known to you and/or under your control, your computer and its applications can't know your location without a database like the one maintained by Google. Therefore it's definitely difficult to argue that Google is the cause of a disclosure, if one happens. They are only potentially an enabler, much like Napster was, and perhaps can be held liable under a similar theory.

More to the point is that it's the browser or other application which is taking the environmental information (local hot spots etc.), is using that to determine the location, and then is publishing your location (with explicit or implicit permission?) to other applications and services. Netscape/Mozilla has been here before in Specht v. Netscape Communications Corp., when it was sued over its "Smart Download" applet, which stored and transmitted information about user downloads back to Netscape Corporation. Litigating the disclosure of location information is more difficult, because there are likely a large number of applications and devices which are performing the public disclosure, each of which would have to be enjoined. That would be a lot of work. If Google and other "geolocation" services can be reached under a Napster-style enabling theory, then the problem goes away much more quickly, unless they can make a case that they are providing a compellingly important public service.

By the way, you can turn off location information in Firefox. Just browse to the bottom of that page to see how. Can you do that in other browsers?

Google Flu Trends - take with salt

Google has a service called Flu Trends which attempts to predict influenza outbreaks based on people's search behavior. The theory is that during outbreaks, people do more searches for particular terms or items.

As any investor can tell you, past performance is no predictor of future returns. Any algorithm Google can come up with can correlate very nicely with past data from the CDC, but may not be as useful for forward predictions. Still, it's a nice idea, and one more bit of information to add to the mix.

Just don't bet your house on it.

Google Picasa

I don't use Google's Picasa photo manipulation and management software. It's not Free Software; it's free as in beer, but not free as in freedom.

That said, my family does use the program, and recently downloaded the newest version. Google has added a cool but slightly creepy feature which extracts faces from pictures and tries to assign names to them. It looks at each picture, and identifies regions which are probably faces, and then it presents you with equally sized thumbnails of each face, so you can tell it who they are. Small faces in the background, large faces up front - they're all scaled to the same size, so some are really sharp, and some (the small ones in back) are kind of blurry.

Of course (?) the program can't know at the start who each face belongs to. You start assigning names to the thumbnail pictures, and Google adds the names as tags to the photos. So far, that sounds like a Facebook for your photo album, albeit with the cool face detection. But here's where it gets creepy.

Once you start tagging the faces, the software learns, and starts suggesting names for the faces. Not only is the detection pretty good for current faces - it is also smart enough to match earlier and earlier faces, so it eventually can find baby pictures with disturbing accuracy. My family trusts Google, and believes Picasa is not publishing the face recognition patterns up to the "mother ship", Google's servers. I'm not so sure. Google has had some issues with grabbing your private data recently. With governments making big investments in closed-circuit televisions to monitor public areas, they need a good way to match names to faces. How tempting it would be for a government to work with Google to patch Picasa to upload all those face matches so it can determine who's showing up on those street corners, at those rallies, in the subways, etc.

Just be careful.

Spaced out

I've always been fascinated by the cosmos - imagining on a huge scale, in both space and time. I enjoyed the Scientific American imagining visiting the 8 wonder of the solar system; as my daughter said, "it almost feels like it's real!"

I am, however, emphatically disappointed in NASA's Be a Martian site, which allows some web users to help NASA explore Mars. The most obvious problem with the site is that it requires a proprietary piece of software (Microsoft Silverlight) to even use it; in that sense, it's not a real web application at all. Requiring that particular plug-in makes it impossible for anyone using Linux, or any supporter of free software who still uses MS-Windows or Apple MacOS-X, to interact with the site. I'm disappointed that a government agency, funded by my tax dollars, has taken a compelling idea and locked it behind an application which is not free, and which advertises a single commercial software company. I realize this is just part of Microsoft's attempt to replace Adobe's Flash as the dominant platform for rich web applications; it's embarrassing that a government agency has enlisted itself as a participant in that commercial battle. The site does not give much of an opportunity to submit feedback; if you want to contact NASA about it, you might try this email address.

Don't steal this textbook

I'm a pretty regular reader of Kevin Carson's writings over at the Mutualist Blog and at C4SS, the Center for a Stateless Society (I only read his contributions and cannot recommend any of their other writers to date). As a self-described "libertarian leftist" he contributes a lot to a vision of a distributed and decentralized society, one which is potentially more robust economically and socially. His work is a generally well reasoned synthesis of wide range of philosophers and economists; I recommend not only his blog posts but the longer works published as PDFs. In a nutshell: broadly available tools of production and raw materials should make it possible for more people to participate in the economy as producers, to contribute improvements to processes and designs, and to realize the full value of our efforts. Decentralization reduces the concentration of wealth and power and make the system more resilient because the failure or destruction of any one contributor (individual, group, firm) does not have a huge effect on the ecosystem. In such a system, no one producer is too big to fail, contributors leverage incremental increases in knowledge, and everyone realizes the bulk of the value they add to the economy.

Sometimes Mr. Carson gives advice on how get to such an ecosystem. In Steal this Textbook, Mr. Carson identifies textbook producers (especially publishers of college texts) as market manipulators, and suggests a course of action to reduce or remove their influence in the market. He points out that professors both write and recommend texts for classes, and suggests that new editions are produced and printed for what are typically minor changes (which disrupts the market for used/re-sold books). These points are debatable; but let's assume arguendo they're true. He suggests the market power of the textbook publishers can be broken by a coördinated effort to scan and electronically distribute copies of their books; however, I think this is not a reasonable course of action, and the effects may run counter to what he might intend. It's also a recommendation to break the law, which I can't condone anyway.

My second objection is that his suggestion is counter-productive. A wide scale disregard for copyright would undermine (for example) the Free Software ecology; the enforced sharing inherent in "copy-left" licenses such as the GNU General Public License requires the respect of the rights of the authors and copyright holders in the relevant software. Without such protection, such gifts to the community could be appropriated by publishers who would benefit from the value without contributing anything to the community in return. In another example, the works at C4SS (and on this blog) are published to the readers under a Creative Commons "By Attribution" license, which means you can use the work however you like as long as you credit the author(s). The academic ecosystem relies on reputation, and attribution is a crucial component of that calculation. A disregard for copyrights would undermine these and related sharing based environments.

Another objection arises from economics. When textbook publishers lose revenue because of illegal copying, they can to some (large?) extent recoup the loss by increasing prices on legitimate textbook purchasers because there are as yet no alternatives to their products. An example comes from computer operating systems: it isn't massive copying or "piracy" alone which makes Microsoft worried about their hegemony, it's the presence of alternatives to MS-Windows. As long as there were no viable alternatives to using MS-Windows (remember the 1990s), Microsoft could take advantage of their monopoly position to raise prices to maintain their profit margins, and their corporate and legitimate end users had no choice but to pay the rents. Now that Apple is increasing its market share, Linux is taking over data centers and desktops, and distributors like Lenovo and Dell are pre-installing Ubuntu on computers, Microsoft faces an upper bound on what customers are willing to pay for their software, which makes piracy a much more potent threat to their revenues. I suggest to Mr. Carson that it's far more effective for people to support and contribute to open education resources such as Connexions than to spend time scanning and distributing copyrighted texts on the internet. Once there is real competition in the textbook space, the publishers will start worrying about their rotting corpses [being displayed] on [our] battlements. Until then, the publishers can figure out alternate ways to extract revenue from students: mandatory textbook fees per student from universities? Textbook rentals instead of sales (like K-12 schools)? Higher textbook prices? etc.

As I and other comment writers suggest on the article, readers should look for open source textbooks, wiki books, and open education efforts such as Connexions to participate in. Having valuable peer-produced texts to use in education will start the process of forcing the textbook publishers to change their profit model to survive. I don't think it's worth the effort to scan and distribute textbooks; all that will do is convince textbook publishers to adopt the RIAA approach. Far better to have publishers react as IBM did to free software: figure out how to make money by providing added value, either with improvements to the products, or in associated services.

Facebook

I'm not really using Facebook, although I have an account on there. I feel that its design is fundamentally flawed because it doesn't reflect how I actually interact with my friends.

Facebook (and, to be fair, most of its peers and competitors) is designed to treat all the people you know as a single pool, an equivalence class of others; adding someone as a friend basically allows them to interact with you and all your other friends. When you make a "post" on your "wall", your friends, and maybe their friends, and maybe the world can see it; if you let friends "post" on your "wall", all of them can do so, and see each other's entries.

That doesn't mirror how I communicate with others in the real world; I don't interact in the same way with all my friends. My relationships with different sets of friends revolve around different activities, along orthogonal axes. For example, many of my friends are ones with which I share a particular hobby or interest; I don't particularly care what their political or religious views are, because they're not important in those contexts (business colleagues are a typical example). Then there are people with whom I specifically share values and ideals, and with whom I work to accomplish other shared goals or changes. Finally, I have family, with whom I have even different ties. To make it even more complex, the groups are not mutually exclusive; there are overlaps.

I'm just not convinced that there are that many things I want to communicate to all those people at the same time. For example, I might choose to express a political opinion, but I really don't want to discuss it with everyone. I also don't necessarily want my "wall" to be in the middle of a heated discussion between people I know, but who may not know each other, and who may never find common ground. And I think I'd like to have some space where I can discuss, plan, or do things with my friends or family which I would not necessarily want to disclose to my business colleagues.

The online facility which I think may be closest in spirit to what I think would be appropriate is Google Wave. I should be able to create one or more Wave(s) for each of my groups of friends, and collaborate with them inside. Individual "wavelets" can be open to all the people on the Wave, or to some subsets. In addition, the collaboration facilities will be much richer than any existing social media platform; for example, I've not been able to share documents with people on Facebook, so small groups of us use Google Documents together.

So that's a long explanation for why I might not "friend" you on Facebook. It's nothing personal; I'd just rather we keep in touch some other way.

Intelligent Design

Today I attended a lunch time talk on Intelligent Design. It was billed as a discussion between two speakers, so I was looking forward to a debate. Instead, it was like the opposite of a hockey game; I went expecting a fight and a nuanced agreement broke out.

The first speaker described the theory of Intelligent Design (ID) in simple terms: it's like looking at phenomena (like Mt. Rushmore) and declaring "that was obviously designed". Because, of course, first impressions are important and determinative, like seeing the face of the Madonna on a cheese sandwich.

He then argued that ID was not science, and should not be described as an alternate to evolution; ID theory is a discussion about origins of biological complexity, which could be changed and optimized by natural selection over time. In fact, ID could be billed as an alternative to atheism, so it could be brought into school in a philosophy class.

For some reason, both speakers compared ID proponents (Discovery Institute) to Galileo - a bearer of revolutionary new ideas who is being prematurely vilified. Perhaps we should give ID its opportunity to mature, at which point it will be accepted as new scientific theory?

The problem with this comparison is that Galileo was proposing a new theory which better explained how the universe worked; ID can't provide any guidance on how to study new phenomena or move the state of engineering or production forward. You can't take the concept of intelligent design and use it as an axiom for any new hypotheses or theories. In addition, Galileo wasn't trying to use state power to sell his new theory to school children; he (and all the other scientific revolutionaries they like to compare to) had to convince adults of the correctness and utility of his ideas.

Finally, the first speaker suggested ID be brought into schools as an exercise to teach children how to think critically. If children are presented with ID and with evolution, perhaps they'll do research, discuss the relative strengths of the ideas, and make up their own minds. Except that anyone who's taught or even been around at least K-8 students realizes that they're just not equipped yet with the background and knowledge (never mind the desire or readiness) to think critically about science or math. They're in foundation-laying mode, where they need to learn tenets and facts which are commonly accepted and from which they can make more sophisticated conclusions. ID gives them no tools for that, and at that developmental stage, it's inappropriate.

This argument is also hardly convincing for bringing ID into high schools either. There are so many other classes (social studies, English, etc) in which critical thinking can be taught, using so many other interesting topics, historical or from current events. Students don't need the false controversy of ID vs Evolution to develop critical thinking skills.

The second speaker asserted that it's wrong to dismiss the idea of an intelligent designer because science, by its nature, is never complete; it has room for new theories. The rebuttal to that assertion is that the concept of an intelligent designer by its nature precludes further scientific inquiry (except, perhaps, into the nature and/or existence of the designer). If you decide there is an intelligent designer who is responsible for any "irreducible" complexity, you complete all your theoretical systems with the God closure.

Random thought: can you imagine ID applied to math? Let's see, that concept is irreducibly complex, so I guess an intelligent designer just gave it to us. Move along!

The second speaker also made a reference to the possibility that keeping ID out of school curricula is potentially censorship. That doesn't seem like a reasonable assertion; I don't think anyone is attempting to stop ID personnel from promulgating their ideas in public debate, or in private schools, or even as a topic of current events. What ID antagonists object to is making ID instruction mandatory in publicly funded schools, especially in the science classroom.

In all, I found no compelling argument for mandating ID instruction in public schools. The theory of "intelligent design" is not science; it's the opposite of science, and as such does not belong in that curriculum. And if it's just a debate topic or a current event, it doesn't need to be part of any state-sanctioned curriculum.

Houston Opera Vista Festival Threatened

From Joe White:

HOUSTON – The organizers of the second annual Opera Vista Festival suspected one of their featured operas would draw controversy. But when an anonymous letter threatening the founders of the Nova Arts Project arrived at founding director Amy Hopper’s doorstep, she realized the show had potential to ignite a firestorm.

“We received this letter that was all about ignorance and hate, and that’s the whole point of this opera – to confront ignorance and hate. It makes it even more important to tell the story,” Hopper said.

The opera is “Edalat Square,” one of two works that won Opera Vista’s inaugural festival competition in 2007 (think “American Idol” for opera composers). Written by Atlanta‐based composer R. Timothy Brady, the opera recounts the true story of Mahmoud Asgari, 17, and Ayaz Marhoni, 16, who were hanged in Iran in 2005 for the crime of lavaat, or sex between two men. Brady was inspired by the story to craft a poetic work that offers an unblinking look at bigotry, but is also prayerful and mystical, said Viswa Subbaraman, artistic director and co‐founder of Opera Vista. “It’s an amazing appeal to the soul,” Subbaraman said. “It’s some of the most poignant music and lyrics in opera. I don’t know how you could watch it and not be moved.”

Because of its exploration of two hot‐button topics – radical Islam and homosexuality – performances of “Edalat Square” have faced opposition before. At its world premiere at Emory University, the university’s president contemplated canceling the show because of complaints. Some critics have said the show is persecuting the Islamic faith, which festival organizers say it doesn’t. Others object to the homosexual content.

On May 5, Amy Hopper found out the show was already pushing buttons here in Houston. She opened her mailbox to discover a hand‐stenciled, anonymous letter that said: “You are pigs to mix Islam with gays. You must stop! We will not let you do it.”

The festival’s organizers actually are glad the opera could spark debate or criticism. That’s part of the purpose of the performing arts – to provoke discussion and ignite the emotions, they said. “Great art should open a discussion, and I think that’s what this opera does,” Subbaraman said. “Art has never existed in a vacuum – it often has a political bent, and that’s as it should be.” “Edalat Square” will open the Opera Vista Festival at 8 p.m. Thursday, May 21, in the Wortham Theater Complex at the University of Houston. For more information and a schedule of operas being performed at the festival, visit www.operavista.org or www.novaartsproject.com/shows/ovf. Nova Arts Project is a Houston based, not‐forprofit performing arts organization that seeks to recreate classics and inspire new works in a fearlessly theatrical way.

Opera Vista is dedicated to continuing the growth of the operatic tradition by producing fully‐staged versions of new and contemporary operas, giving living composers a performance venue, and establishing and developing an audience for new opera. Opera Vista is a 501(c)3 nonprofit organization.