Turow vs Everyone

According to celebrated author, lawyer, and president of the Author's Guild Scott Turow, the legal and technological erosion of copyright endangers writers. (New York Times, April 7th, 2013) His enemy list is conspiratorial in length and breadth. It includes the Supreme Court, publishers, search engines, the Hathi trust, Google, academics, libraries, and Amazon. Nevertheless, Turow makes compelling arguments that deserve scrutiny.

The Supreme Court decision on re-importation. (Kirtsaeng v. John Wiley & Sons, Inc.)
This 6-3 decision merely reaffirmed the first sale doctrine. It is highly unlikely that this will significantly affect book prices in the US. If it does, any US losses will be offset by price increases in foreign markets. More importantly, the impact will be negligible because paper books will soon be a niche market in the US.

Publishers restrict royalties on e-books.
Publishers who manage the technology shift by making minor business adjustments, such as transferring costs to authors, libraries, and consumers, underestimate the nature of current changes. Traditional publishers built their business when disseminating information was difficult. Once they built their dissemination channels, making money was relatively easy. In our current world, building dissemination channels is easy and cheap. Making money is difficult. Authors may need new partners who built their business in the current environment; there are some in his list of enemies.

Search engines make money of referring users to pirate sites.
Turow has a legitimate moral argument. However, politicizing search engines by censoring search results is as wrong as it is ineffective. Pirate sites also spread through social networks. Cutting off pirate sites from advertizing networks, while effective, is difficult to achieve across international borders and requires unacceptable controls on information exchange. iTunes and its competitors have shown it is possible to compete with pirate sites by providing a convenient user interface, speed, reliability, quality, and protection against computer viruses.

The Hathi trust and Google scanned books without authorization.
Hathi and Google were careless. Authors and publishers were rigid. Experimentation gave way to litigation.

Some academics want to curtail copyright.
Scholarly publishers like Elsevier have profit margins that exceed 30%. Yet, Turow claims that “For many academics today, their own copyrights hold little financial value because scholarly publishing has grown so unprofitable.”

Academics' research is often funded in part by government, and it is always supported by universities. Universities have always been committed to research openness, and they use published research as means for assessment. This is why academics forego royalties when they publish research. The concept of research openness is changing, and many academics are lobbying for the idea that research should be freely available to all. The idea of Open Access was recently embraced by the White House. Open Access applies only to researchers funded by the government and/or employed by participating universities and research labs. It only covers research papers, not books. It does not apply to independent authors. Open Access does not curtail copyright.

Legal academics like Prof. Lawrence Lessig have argued for stricter limits on traditional copyright and alternative copyrights. Pressured by industry lobbyists, Congress has repeatedly increased the length of copyright. If this trend continues, recent works may never enter into the public domain. Legislation must balance authors' intellectual property rights and everyone's (including authors') freedom to produce derivative works, commentaries, parodies, etc.

Amazon patents a scheme to re-sell used e-books.
This patent is a misguided attempt to monetize the human frailty of carrying familiar concepts from old technology senselessly into the new. It is hardly the stuff that made this forward-looking company formidable.

Libraries expand paper lending into digital lending.
Turow demands more money from libraries for digital lending privileges. He is too modest; he should demand their whole budget.

When a paper-based library acquires a book, it permanently increases the value of its collection. This cumulative effect over many years created the world's great collections. When a community spends resources on a digital-lending library, it rents information from publishers and provides a fleeting service for only as long as the licenses last. When the license ends, the information disappears. There is no cumulative effect. That digital-lending library only adds overhead. It will never own or contribute new information. It is an empty shell.

Digital lending is popular with the public. It gives librarians the opportunity to transition gradually into digital space. It continues the libraries' billion-dollar money stream to publishers. Digital lending have a political constituency, but it does not stand up to rational scrutiny. Like Amazon's scheme to resell used e-books, digital-lending programs are desperate attempts to hang on to something that simulates the status quo.

Lending is the wrong paradigm for the digital age. Instead, libraries should use their budgets to accumulate quality open-access information. They should sponsor qualified authors to produce open-access works of interest to the communities they serve. This would give authors a choice. They could either produce their work commercially behind a pay wall, or they could produce library-funded open-access works.

Crowd Sourcing Gun Control

Background checks deter only those with prior offenses. For more comprehensive gun-violence prevention, we need systems that help law enforcement focus on high-risk individuals before their first offense. Such prevention systems must operate within important legal and political constraints: they must be compatible with the second amendment, they must be relatively effortless for the vast majority of low-risk gun buyers/owners, and they must respect the privacy of all citizens.


Graph theory makes it possible to extract strong information from a large set of weak relationships. It is the foundation of companies like Google and Facebook. It is the basis for alternative metrics that assess the quality of scholarly papers. Graph theory also applies to gun control. As individuals, we absorb all kinds of information about others and decide to like or dislike, befriend or avoid, trust or distrust them. These individual assessments are rather unreliable, but they become a powerful resource when connected with one another in a graph. For gun control, imagine a system in which gun owners recommend one another. This creates a graph on which to unleash the power of graph theory.

Consider a concrete example (no graph-theory knowledge required):

1. Every gun buyer/owner registers three Qualified Recommenders (QRs). Without assuming any legal liability, QRs state that the gun buyer/owner is not presently a danger to himself/herself or to society and that they will withdraw as QR if their opinion changes or if they should lose contact with the gun owner.
2. Most legal gun owners may act as a QR. However, law enforcement may revoke anyone's QR status at any time for any reason. Such action prevents this person from submitting new recommendations, and it voids his/her existing recommendations. Revoking the QR status carries no other consequences. One's own QR status does not affect one's right to own guns.
3. A gun buyer who is unable to obtain three QRs is subject to a background investigation that may include interviews with family, friends, and neighbors.
4. A gun owner may lose recommendations because (1) QRs may withdraw their recommendation, (2) QRs may die, or (3) QRs may lose their QR status. A gun owner who does not maintain three QRs is subject to increased scrutiny.

Maintaining three QRs is relatively effortless for low-risk gun owners, who tend to have strong ties to their communities. If they should become high risk (through mental illness, for example), their QRs are likely to withdraw their recommendations, thereby creating an early warning.

The impact on high-risk gun owners is more substantial. Very few law-abiding gun owners would be willing to sponsor someone they consider dangerous because of mental health, behavioral issues, or criminal connections. Convicted criminals cannot be QRs, because they cannot be legal gun owners. This reduces the pool of available QRs for their non-convicted associates. Law enforcement can reduce that pool even further: when they arrest someone, they could revoke the QR status of the arrestee and of his/her QRs (under the theory that these QRs are unreliable).

Consider a few scenarios.

Scenario 1. Joe is a gun owner. His QRs are his wife (Mary) and two friends (John and Pete).

Scenario 1a. Joe develops a mental-health problem and is in therapy. Mary convinces Joe to dispose of the guns. Mary withdraws her recommendation and, perhaps, approaches John and Pete to withdraw theirs. There are no legal proceedings of any kind.

Scenario 1b. Joe develops a mental-health problem, refuses therapy, and develops violent tendencies. The QRs and the police develop a plan to withdraw their recommendations and, simultaneously, to impound Joe's weapons. After the emergency intervention, Joe's fitness to own guns is evaluated.

Scenario 1c. Joe is arrested under suspicion of committing a violent crime.

Upon his arrest, Joe's QR status is revoked immediately. Joe's gun rights depend on the resolution of the criminal case against him. Mary, John, and Pete are not legally liable for failing to intervene in time, but their QR status is revoked.

Mary, John, and Pete remain legal gun owners. If they acted as each other's QRs, they have to find replacement QRs. For most gun owners, these circumstances are an extremely rare occurrence, and replacing QRs is a low hurdle. For criminal gangs, every arrest eliminates QRs from their environment and increases their difficulty of replacing QRs.

Scenario 2. Bill sells his recommendations. As soon as he is identified as a shady operator, the police subjects his network to heightened scrutiny. With the first arrest in Bill's network, he loses his QR status, and his recommendations are voided. As Bill's clients find replacement QRs, they leave useful network trails.

Scenario 3. Mary, a law-abiding citizen living in a gang-infested neighborhood, wants a gun for protection. Some of her relatives and friends have arrest records, and she cannot find three QRs. She is a high-risk gun buyer because of the circumstances of her life: her gun is at much higher risk to be stolen and/or misused. She is able to buy a gun after passing an in-depth background investigation.

Scenario 4. Bob is a criminal and does not care about gun laws. Because his guns are illegal, he faces a much harsher sentence if arrested and convicted.

Bob's guns are most likely stolen or obtained from sources that claim their guns were stolen or lost. If one of his guns is traced back to Mary, her QR status is revoked immediately. If Mary is an innocent bystander, losing her QR status is no big deal. If she is a member of a network that traffics guns illegally, this incident reduces the pool of available QRs.

Other Scenarios. The QR system implements a form of social control that occurs organically in small communities where everyone knows their neighbors (a rarity nowadays). The process of finding QRs provides opportunities for a community to intervene in a non-confrontational manner and to help prospective gun buyers make a realistic assessment of their own risk profile.

The QR system shows that gun-violence prevention does not require storing detailed personal information. It shows that an alert and involved community does not need to become a society of snoops that report every eccentricity to the police. Yet, the QR system is just one example. Graph theory provides a lot of flexibility to respond to legal and political concerns.

I call on the graph-theory community to contribute to the gun-control effort. It is up to you. Criticize. Amend. Propose. Do something. Anything. Save lives.

Annealing the Information Market

When analyzing complex systems, applied mathematicians often turn to Monte Carlo simulations. The concept is straightforward. Change the state of the system by making a random move. If the new state is an improvement, make a new random move in a direction suggested by extrapolation. Otherwise, make a random move in a different direction. Repeat until a certain variable is optimized.

A commodity market is a real-life concurrent Monte Carlo system. Market participants make sequences of moves. Each new move is random, though it incorporates experience gained from previous moves. The resulting system is a remarkably effective mechanism to produce commodities at the lowest possible cost while adjusting to changing market conditions. Adam Smith called it the invisible hand of the free market.

In severely disrupted markets, the invisible hand may take an unacceptably long time, because Monte Carlo systems may remain stuck in local minima. We may understand this point by visualizing a mountain range with many peaks and valleys. An observer inside one particular valley thinks the lowest point is somewhere on that valley’s floor. He is unaware of other valleys at lower altitudes. To see these, he must climb to the rim of the valley, far away from the observed local minimum. This takes a very long time with small random steps that are biased in favor of going towards the observed local minimum.

For this reason, Monte Carlo simulations use strategies that incorporate large random moves. One such strategy, Simulated Annealing, is inspired by a metallurgical technique that improves the crystallographic structure of metals. During the annealing process, the metal is heated and cooled in a controlled fashion. The heat provides energy to change large-scale crystal structures in the metal. As the metal cools, restructuring occurs only at gradually smaller scales. In Simulated Annealing, the simulation is run “hot” when large random moves are used to optimize the system at coarse granularity. When sufficiently near a global minimum, the system is “cooled“, and smaller moves are used for precision at fine granularity. Note that, from a Monte Carlo perspective, large moves are just as random as small moves. Each individual move may succeed or fail. What matters is the strategy that guides the sequence of moves.

When major market disruptions occur, resistance to change breaks down and large moves become possible. (The market to runs “hot” in the Simulated Annealing sense.) Sometimes, government leaders or tycoons of industry initiate large moves, because they believe, right or wrong, that they can take the market to a new global minimum. Politicians enact new laws, or they orchestrate bailouts. Tycoons make large bets that are risky by conventional measures. Sometimes, unforeseen circumstances force markets into making large moves.

The music industry experienced such an event in late 1999, when Napster, the illegal music-sharing site, suddenly became popular. Eventually, this disruption enabled then-revolutionary business models like iTunes, which could compete with illegal downloading. This stopped the hemorrhaging, though not without leaving a disastrous trail. Traditional music retailers, distributors, and other middlemen were forced out. Revenue streams never recovered. With the Stop Online Piracy Act (SOPA), the music industry, joined by the entertainment industry, was trying to undo some of the damage. If enacted, it would have caused significant collateral damage, but it would have done nothing to reduce piracy. This is covered widely in the blogosphere. For example, consider blog posts by Eric Hellman [1] [2] and David Post [3].

While SOPA is dead, other attempts at antipiracy legislation are in the works. Some may succeed legislatively and may be enacted. In the end, however, heavy-handed legislation will fail. The evolution towards ubiquitous information availability (pirated or not) is irreversible. Even the cruelest of dictators cannot contain the flow of information. Why would anyone think democracies could? Eventually, laws follow society’s major trends. They always do.

When Napster became popular, the music industry was unable to fight back, because its existing distribution channels had become technologically obsolete. Napster was the large random move that made visible a new valley at lower altitude. Without Napster, some other event, circumstance, or product would eventually have come along, caused havoc, and be blamed. Antipiracy legislation might have delayed the music industry’s problems in 1999, but it will not solve the entertainment industry’s problems in 2012.

In the new market, piracy may no longer be the problem it once was. Consumers are willing to pay for convenience, quality of service, and security (absence of malware). Piracy may still depress revenues, but there are at least three other reasons for declining revenues. (1) Revenues no longer support many middlemen, and this is reflected in lower music prices through free-market competition. (2) Some consumers are interested in discovering new artists themselves, not in listening to artists discovered on their behalf by record labels. (3) The recession has reduced discretionary income.

It is difficult to assess the relative importance of disintermediation, behavior change, recession, and piracy. But the effect of piracy on legal downloads is probably much less than thought. This may be good news for the music industry. After many large and disruptive moves, the music market may be near a new global minimum. Here, it can rebuild and find new profit-making ventures. These are the kind of conventional “small” moves for a normal, non-disrupted market.

Other information markets are not that lucky.

The Fourth Branch Library

Today’s library is the result of twenty years of incremental changes: an institution buying access to information wholesale and restricting that access retail. As discussed here and here, the wholesale market for information is distorted and creates artificially high site license prices. Another expense is the inordinate amount of time staff spend on usage studies and community outreach to gauge collective information needs, negotiations with consortia that pool resources to obtain imaginary discounts from inflated list prices, negotiations with publishers and their agents, and internal library discussions. After they are acquired, site licenses remain expensive. As protectors of publishers’ digital rights, libraries spend significant resources restricting access at the retail level.

The time for incremental change is over. We must rebuild the library from scratch on a foundation of traditional library values. Here is my attempt.

The mission of the library is to serve the members of its community by:
1. Helping them create high-quality information,
2. Collecting, organizing, and archiving that information, and
3. Making that information widely available, subject to legal and ethical constraints.

This mission is steeped in tradition. Libraries of the antiquity were more about secrecy than openness, but their primary purpose was to archive locally produced information. The purest modern implementation of the vision I am proposing is the American presidential library, which collects, manages, and makes available the information from one administration. Public libraries routinely accept manuscripts and personal correspondence of authors and other luminaries. University archives preserve scholarly history. Many academic libraries have implemented various open-access initiatives and have set up databases containing publications of faculty and students (scholarly articles, books, theses, and dissertations).

This mission allows for specialization. Libraries are ideally positioned to add value to information produced by the communities they serve. A public library that serves a particular location may help its constituents with educational programs in information literacy. Other libraries may specialize in particular disciplines and serve communities that are dispersed worldwide. This is particularly the case for data archives, which require deep specialization.

This mission includes nonprofit and for-profit organizations. In this view, publishers are for-profit libraries. As such, they shoulder all the responsibilities of a library, including archiving the information under its purview.

This mission exploits the network effect. Through collaboration, libraries can create a worldwide network of high-quality information that is more than the sum of its parts.

This mission is critically important. We produce an exponentially rising amount of information that is poorly managed and in danger of being irretrievably lost.

For concrete examples, I could point to existing open access initiatives. Peter Suber’s The Open Access Overview is a good place to start. Most of these initiatives share the trait of being focused on disseminating information from a community to the world and letting the web take care of bringing the world to individuals. These are great initiatives, but I want to push the limits. I do not want to be boxed in by what is feasible today.

The largest producer of public-domain information is the government. Legal information, legislative records, and official government reports are readily available through established channels. Other government records, however, are more problematic. As a matter of expediency, officials tend to have a bias towards opaqueness. Impenetrable government records are managed by a hodgepodge of government agencies. The system hides problems ranging from bad judgment to corruption and complicates good governance.

What if we had an independent agency to manage the government’s records? This agency would create the systems to gather this information. It would decide the appropriate level of public access. By imposing standards, it would ensure that government records were machine-readable and discoverable. The infrastructure for such an independent agency is already in place: the public library system at the local, county, state, and federal levels. In its most extreme form, this independent agency could evolve into a fourth branch of government, one dedicated to transparency of the other branches.

As a practical matter, this may be an overreach, and more modest initiatives are more realistic starting points. However, considering the profound impact of digital information on our lives and considering that the information age is here to stay, we are forced to think big.

On the other hand, thinking small comes naturally. The latest innovation of the Los Angeles Public Library sets free the all-important Sony Music catalog, saving Los Angeles residents from the unspeakable burden of $1 song downloads. The Librarian in Black has a detailed critique.

<Note: edited title 8/26/2011>

The Law: What's logic got to do with it?

One of my favorite daily reads is the Volokh conspiracy, a blog by a group of law professors. As one would expect, their arguments are exquisitely reasoned, honed by years of classroom teaching, academic writing, and litigation. Although they have a definite philosophical point of view (libertarian), these scholars apply the law with intellectual integrity, developing their arguments logically from existing law and precedent. However, I cannot help but wonder about the use of logic in law.

In formal logic, the starting point is an axiomatic system, a set of statements assumed as true (axioms) that defines a particular field. The rules of logic are then used to derive theorems within that field. The most famous example is the field of Euclidean geometry, which is built upon Euclid's axioms. When developing an axiomatic system, mathematicians want a system that is consistent, independent, and complete. For our purposes here, we can ignore independence and completeness. The crucial property is consistency: axioms within an axiomatic system should not contradict one another.

Legal analysis applies the rules of logic (for example, A implies B, B implies C, hence A implies C), but it does so outside of anything resembling an axiomatic system. Laws, statutes, and precedents vaguely resemble axioms in the sense that they are assumed to be true. But the legal system is rife with contradictions. When an axiomatic system is not consistent, it contains at least one statement that is simultaneously true and false, and from that statement one can derive an unlimited number of other statements that are simultaneously true and false. In law, one can reduce the inconsistencies by only considering those laws that are deemed relevant to a particular case. No matter which subset of laws one gets to work with, it is virtually impossible for it to be anywhere near a consistent axiomatic system. Formal logic seems doomed in legal reasoning.

In spite of their mutual resemblance, legal logic lives in a universe quite different from formal logic. Legal logic is about convincing others of the merits of a case. A legal argument is successful only if accepted by some authority, and this acceptance lasts only until a higher authority overturns it. With every decision, legal authorities help shape the nature of successful legal argument. This creates a legal logic that evolves over time and reflects the nature of the power of the state. The law is about power, not logic... Who knew?