Zojirushi

The Zojirushi corporation manufactures all kinds of consumer goods, including coffee makers. When we were looking for a new coffee maker, we decided to get one of theirs online; the description fit all our requirements, and online we didn't see any major negative reviews. Ours is a drip-style machine; water from a tank in back is pumped through a heating element and dripped through a basket of coffee grounds into a carafe.

We were happy with the machine's performance for about 6 - 7 months, when the pump abruptly failed. We were pleased enough with the experience to go ahead and buy another one as a replacement. Unfortunately, the second one failed in about the same amount of time, in the same fashion.

A coffee maker is one of those things that's hard to justify repairing, especially long distance when shipping costs are factored in. The time you spend on the phone and packing it up are also part of the cost. However, we had two of the same machines fail in the same way, so we figured it was worth alerting the company to see what they could do.

They came through with flying colors. I'm pretty sure that whatever the warranty was on the machines, it had expired by this time. They promptly offered to pay for shipping both ways to pick up, repair, and return both machines. We shipped only the brewer bodies for each; they suggested we hold on to the carafes because they didn't need repair. When they returned to us, it appeared that one was reparable (and came back without the carafe), and one was not. They seem to have decided to send us a new one to replace the second machine.

We've not yet had enough time with the returned machines to see if this problem will happen again. If we have one fail again in the same way, we'll at least contact them to see if they want to repair it further. In that case, I wouldn't recommend you purchase one of their coffee machines. Overall, though, I'd have to say I'm very impressed with their prompt and friendly customer support. If you're thinking of buying a Zojirushi product, you should at least factor in their apparent willingness to stand behind their product and keep the customer satisfied.

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.

Clinic experiences for evening law students

At law school, the legal clinics offer an opportunity to students to work on real issues with real clients. The University of Houston Law Center has a number of well-regarded clinics which are available to full-time students, or students who can commit to spending hours during the day. Sadly, no such program is offered (yet?) to the evening students. My thanks to Luke Gilman for the reference to:

David F. Chavkin, Clinic Under the Stars: Giving Part-Time Students Their Due, 13 Clinical L. Rev. 713 (2007). Some notes:

• It's possible to have a clinic which includes part time students, even a clinic which involves litigation work. Such a clinic would be designed to give students who have full time jobs plenty of notice of court appearances so they can ask for time off work. It would have to be in a practice area in which appearances are not frequently reset.
• ABA Standard 301(b) requires, in part, that "A law school shall ensure that all students have reasonably comparable opportunities to take advantage of the schools' educational programs, co-curricular programs, and other educational benefits."
• ABA Standard 302(b)(1): "(b) A law school shall offer substantial opportunities for: (1) live-client or other real-life practice experiences, appropriately supervised and designed to encourage reflection by students on their experiences and on the values and responsibilities of the legal profession, and the development of one’s ability to assess his or her performance and level of competence; ..."
• Clinic Under the Stars, p. 738 fn 67: "Although we refer to students in the evening clinic as part-time students, a better term for them would be 'more than full-time students.' ..."
• Running a successful clinic for evening students requires a full time commitment from a full faculty member, and at times significant support services for the clinic students. Full time students can be expected to handle "less important" tasks such as running to the courthouse to file a petition or send certified mail; clinic faculty might take on a more active support role so the limited time that evening students can commit to a clinic is better spent.

I wonder: how many evening students at UHLC would participate in a clinic, given Professor Chavkin's estimate that it requires an evening and weekend commitment of on the order of 26 hours per week for seven credits? If it were available, would I dedicate a semester to such a class for the practical experience it offers to me, and the legal assistance it offers to the clients?

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.

Like butter on bread

"I feel thin — sort of stretched, like butter scraped over too much bread."

Bilbo Baggins to the wizard Gandalf
The Fellowship of the Ring (the Lord of the Rings Trilogy)
Written by J.R.R. Tolkein

Web security and SSL certificates

You may recognize secure web sites by the fact that their URL starts with https://, or by a little lock icon in the address bar or on the bottom of your browser window. Maybe the URL location bar turns green when it's "safe" - when a third party has verified that the server you're communicating with is at the address you expect. This weak authentication regime is implemented using SSL certificates, little pieces of data which are badges handed out by third parties to server operators,for a fee. Each certificate contains the name of the domain or host name the server is handling, and a digital signature by a company such as Verisign, GoDaddy, AC Camerfima, or TÜRKTRUST Elektronik Sertifika Hizmet Sağlayıcısı. In Firefox you can see the list of trusted third parties by choosing (Edit or Tools)->Preferences->Advanced->Encryption(tab)->View Certificates. These are the companies you and your browser are trusting to authenticate web sites around the world.

How do you know they can all be trusted? Wired magazine has an interesting article about certificate spoofing. If you are not careful about checking the name on each certificate at each site, your browser won't tell you if it's necessarily a good one; all it knows is that the certificate was signed by an entity it trusts. Some entities have embedded their certificates in network-level devices so the devices can spoof certificates from any site you're visiting. With that, the device and its owner can intercept all the traffic between you and the site you suppose is secure, maybe your bank or GMail.

You can fight back, a bit, if you have Firefox. There's an extension called petname which lets you "tag" certificates from sites you've verified. If you visit Google's mail site and petname doesn't recognize the certificate, it'll warn you, and you should be suspicious or at least extra careful. The alternative is to check every certificate for every secure site - and memorize the issuer for each. Not really an easy task.

Remember, SSL and browser security aren't enough! It's all based on trust. So verify!

Curbside recycling

Our neighborhood has recently improved its curbside recycling program. We used to have a small open green bucket to put our paper and other recyclables in; this bucked lived outside, and got put out every other week next to our giant, closed trash container. We would never remember which week was recycling, and we didn't want to keep the materials outside in the bucket to be waterlogged by rain. Therefore we rarely used the curbside recycling; I'd occasionally take our saved materials to the recycling center, but not on a regular basis.

Now we have a giant, closed container for recycling as well. It's just like our trash container, except it's bright green, and it has a handy sticker on the outside which describes what's appropriate to put in the container. It's so easy now to just toss recyclables in the container outside; much better than trying to manage them inside in the small space we can spare in the kitchen. Paper, plastic, cans, glass - it all goes in together, as soon as it's clean.

Our family tries not to have too much to recycle or dispose in the first place; the best policy is to eschew things with so much packaging. Nevertheless, we do generate trash, except now our trash container is rarely full. Instead, the recycling container has been almost full every two weeks, as we are more disciplined about putting in the newspapers, junk mail, cans, and even plastic clamshells from berry and tomato containers. I think this new program, with its bigger, closed containers and its automated pickup, must be drawing a lot of material out of the garbage stream. I'm looking forward to seeing the numbers when they're published.

Congratulations, Google

The Free Software Foundation congratulates Google on its release of the On2 VP8 video codec. Free software can be built for this free codec, allowing high quality libre video content on the web. Thank you, Google.

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.