Rumplestilts-berg

Maybe Mark Zuckerberg’s youth–he’s 23–explains Facebook’s ham-fisted schemes to weave its users’ personal information into skeins of gold. I don’t believe his purposes are nefarious. As Facebook Beacon and Facebook Social Ads show, he does have a knack for letting dollar signs get ahead of his judgment. He is developing a skill for reversing field when what looked like a great idea around the boardroom table runs into the buzzsaw of user opinion.

First a recap. A few weeks ago Facebook announced Facebook Beacon, “a new way to socially distribute information on Facebook.”

The websites participating in Beacon can determine the most relevant and appropriate set of actions from their sites that users can distribute on Facebook. These actions can include posting an item for sale, completing a purchase, scoring a high score in an online game or viewing of video. When users who are logged into Facebook visit a participating site, they receive a prompt asking whether to they want to share those activities with their friends on Facebook. If they do, those friends can now view those actions through News Feed or Mini-Feed stories.

In other words, if a Facebook user lists items for sale on eBay or buys a movie ticket on Fandango, a pop-up asks whether the user wants to share this news–and on Facebook this is considered news–with their Facebook friends. The breathtaking narcissism of such newsy updates aside, Facebook Beacon takes a giant step towards a future when we will all be defined by the commercial value of our online data trail. Facebook stated “[i]n keeping with Facebook’s philosophy of user control, Facebook Beacon provides advanced privacy controls so Facebook users can decide whether to distribute specific actions from participating sites with their friends.” However, those “advanced privacy controls” are less assuring than promised. Yesterday a student and I read through Facebook’s user agreement and privacy policies to see whether one could elect not to participate in Facebook Beacon, other than by not using Facebook. Users can elect not to distribute to friends news of specific transactions, but to date there is no one-stop mechanism to opt-out entirely.

Facebook Social Ads are another part of the story. They “leverage the power of Facebook News Feed by serving relevant stories about friends engaging with your business.” Here’s how Facebook pitches them to businesses:

Reach the right people.

Instead of creating an advertisement and hoping that it reaches the right customers, you can create a Facebook Social Ad and target it precisely to the audience you choose. The ads can also be shown to users whose friends have recently engaged with your Facebook Page or engaged with your website through Facebook Beacon. Social Ads are more likely to influence users when they appear next to a story about a friend’s interaction with your business.

The concept is brilliant–every Facebook user can, through association with purchases, downloads, ratings, and other digital flotsam, become his or her own brand. Facebook “friends” (which should always be in quotes in this context) could follow my data trail and decide “my father is sort of like Professor Randall, so maybe he’d like a pound of Malabar Gold Espresso, No Country for Old Men (the book, not the movie–he’s old school, remember), and Lindsay Mac’s Small Revolution for his birthday.” Or, back in the real world, cool hunters will track young fashionistas to decrease the lag between cutting edge and The Gap. Clickstream data, just laying around waiting to be turned into skeins of gold.

Brilliant. Except for the backlash.

Facebook: What Would Google Do?: There is something astoundingly tone deaf about how Facebook has handled its recent advertising initiatives. Mr. Zuckerberg is right: there are lots of people who would find it cool to tell the world what movies they just rented and even what color socks they just bought. But they’ve got to know that others would find this intrusive. And they couldn’t have picked a worse way to implement the Beacon system first: automatically telling your friends everything you did on participating sites unless you found and pushed a button to cancel the disclosure. (This timeline shows how hard it was at first to figure out what was going on.)

Are Facebook’s Social Ads Illegal?: There is at least one problem with this idea: It may be illegal under a 100-year-old New York privacy law. The statute says that “any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained” can sue for damages. Moreover, such a use is also a criminal misdemeanor.

MoveOn Launches Privacy Campaign Against Facebook Social Ads: Calling Facebook’s new Social Ads strategy an invasion of privacy, MoveOn.org is asking Facebook members to sign a petition against the social network’s new ad plan.

Facebook’s “Fan-sumers:” Do Social Ads Violate Users’ Privacy?: [Law professor and privacy expert Daniel Solove] noted on his blog, “Facebook . . . assumes that if people rate products highly or write good things about a product then they consent to being used in an advertisement for it. Facebook doesn’t understand that privacy amounts to much more than keeping secrets — it involves controlling accessibility to personal data.”

Zuckerberg isn’t stupid, just surrounded by true believers who can’t view Facebook from outside the bubble. After ten thousand slaps upside the head Facebook has made Social Ads opt-in rather than opt-out. Under Pressure, Facebook Modifies Social Ads Program: “As of late Thursday, Facebook users must now proactively consent to alert friends whenever they take various actions, such as renting a DVD or purchasing a pair of sneakers . . . Now, as part of the changes enacted on Nov. 29, consumers who make such purchases will receive notices that Facebook intends to inform others about their actions—but only if they approve by clicking an “OK” button.” Problem handled, until the next wrong-footed product roll-out.

Lawyer’s Life

Scraps from the briefcase for prospective law students and lawyers:

Pay and Workweek Differentials by Law Firm Size from the Empirical Legal Studies blog charts the relationship between law firm size, associate salaries, and associate happiness. It reports that the median salary spread over the first eight years of the associate track amounts to $631,000 for associates in firms with 2-25 lawyers versus those with 500+ lawyers and to $524,000 for associates in firms with 51-100 lawyers versus those with 500+. It’s no surprise that big firm lawyers make more money but I’ve not seen a calculation showing exactly how much more. It also reports that almost 47% of lawyers at 500+ firms work more than 60 hours/week. The number of lawyers working more than 60 hours/week is 27.2% at firms with 51-200 lawyers, 19.4% at firms with 16-50 lawyers, 19.3% at firms with 5-15 lawyers, and 16.1% at firms with 1-4 lawyers. Last, it reports that 36.2% of those in firms with 1-4 lawyers report a very satisfactory work/family balance, compared with 31.3% in firms with 5-15 lawyers, 9.7% in firms with 16-50 lawyers, 10.3% in firms with 51-200 lawyers, and 4.9%–4.9%!!!— in firms with 200+ lawyers. I’ve summarized the findings. Read the original for more data and analysis.

Will Lawyers Continue to Exist? at Human Law Mediation blog entertains the notion that information technology and the ability to carve up legal work into discreet tasks–commoditization of legal work–will transform the profession. If you want an example read this piece from Legal Affairs: Are your lawyers in New York or New Delhi?

Last, Tax Prof Blog hashes data from the Princeton Review’s Best 170 Law Schools and rates schools in categories such as Professors Rock (BU is #1) and Students Lean to the Left (my alma mater Northeastern is #2).

How about a survey of undergraduate business school law faculty? Now there’s a niche market.

Apple Apostasy

A month ago the media was filled with stories about the New Jersey teenager who hacked the iPhone to work on cell carriers other than AT&T. Not one of the dozen or so articles I read then addressed the most obvious questions: Won’t this hack invalidate the iPhone’s warranty? Isn’t this hack vulnerable to an Apple counter-hack? Doesn’t it violate the DMCA’s anti-circumvention provisions? Last week, after Apple issued a software update that turned hacked iPhones into $400 paperweights, the media was filled with headlines such as this from the New York Times: Altered iPhones Freeze Up

Duh. Without reading the iPhone’s Terms of Use I know that Apple’s contract specifically prohibits the carrier-switch hack and disclaims liability for user installation of non-approved software on the iPhone. I know because such provisions are boilerplate in retail tech products licenses and contracts and Apple is as PC–programatically correct–as any tech company. Exhibit 1 is iTunes, which is easy and intuitive and countenances almost no user modification of how it chooses to organize your music on your hard drive. Which makes statements like this from an editor of Gizmodo just silly: “[Disabling a phone] instead of just relocking it . . . is going way too far; I’d call it uncharacteristically evil.” Irritating, annoying, consumer-unfriendly, reason not to buy another Apple product, maybe, but since when does naked pursuit of economic self-interest upset techies? Maybe this is a corollary of last week’s a liberal is a conservative who has been arrested: “a consumer advocate is a techie whose hacked iPhone has been bricked.”

Yahoo’s Grumpy Shareholders

Yahoo’s shareholders made clear their “discontent” and “disappointment” with Yahoo’s performance at the company’s annual meeting. The first rebuke that caught my eye concerned a proposal “to adopt a policy that opposes censorship on the Internet,” which only 15% of shareholders approved. That fared better than the proposal for a “committee to oversee Yahoo’s human rights practices,” favored by 4% of shareholders. While I was tempted to write a headline along the lines of “Yahoo to Chinese Political Dissidents: Kiss Off!”, I’m guessing these votes reflect disenchantment with Yahoo’s 10% decline in stock price over the last year more than a pro-political repression platform. After being approved by 97% or more of shareholders last year some of the directors received as few as 66% of the votes at this year’s meeting. According to The Wall Street Journal “approvals with only two-thirds of the vote could be considered a victory for shareholder activists who have condemned high executive pay at the company,” specifically Yahoo CEO Terry Semel’s $71.7 million 2006 compensation. Still, shareholders also rejected a pay-for-performance proposal that would have bestowed bonuses only when Yahoo outperformed its industry peers.

The shareholders also rejected the chicken a la king and chocolate cake served at lunch. A bad day for the board, all around.

The 59th Street (Toll)Bridge Song

In the spring of 1967 Jimi Hendrix released Are You Experienced?, his first album, and The Beatles released Sgt. Pepper’s Lonely Hearts Club Band. My friend Rick bought Sgt. Pepper as soon as it was available and, incredibly excited by what he heard, called and played it for me over the telephone. I first heard “With a Little Help From My Friends”, “She’s Leaving Home,” and “A Day in the Life” on a spring afternoon while standing in my kitchen with a bakelite phone receiver pressed to my right ear. My first listening of Are You Experienced? came courtesy of another friend, who played it one Friday evening at full volume in his darkened bedroom. My hair stood on end at the opening chords of “Purple Haze.” I had never before heard music like that.

We experience music more immediately, more personally than any other form of popular culture. Movies and television required (until video-capable iPods and $1.99 episodes of Lost and The Office) that we sit and watch a screen. In my lifetime music has always been portable, first through car radios (my high-school car, a 1965 Plymouth Fury, had only AM radio which means I heard Mungo Jerry’s “In the Summertime” about 1,000 times in 1970 alone), then through the Sony Walkman and its progeny, which led to today’s ubiquitous MP3 players. Technology has allowed us to accompany our lives with a personal soundtrack. We all have music that is ours. 1967 was also the year of The Graduate,plastics,” and the birth of Dustin Hoffman’s career. I recall Dick Cavett asking Hoffman whether sudden fame had changed his life. Hoffman replied “It’s not like Mrs. Robinson plays when I go to the bathroom in the morning.” These days we can all have Mrs. Robinson–the Simon and Garfunkel original or the Lemonhead’s version–playing when we go to the bathroom in the morning.*

I’m thinking about this because of recent exposure to the inevitable boomer-retrospective articles and radio shows about the Summer of Love and the juxtaposition of two articles: Jason Fry’s “The Perils of Online Song Lyrics” in the 5/21 Wall Street Journal (subtitled “Yahoo’s New Lyrics Service Is Promising,But Why Can’t I Copy and Paste the Words?”) and Mark Helprin’s “A Great Idea Lives Forever. Shouldn’t Its Copyright?,” an op-ed piece in the 5/20 New York Times. Helprin argues that copyright law should protect creative works to the same extent that law generally protects rights in personal and real property. Congress can, Helprin asserts, circumvent (my word, not his) the Constitutional provision authorizing Congress to extend a monopoly to authors “for limited times,” by vitiating the meaning of “for limited times:” “Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw.” Helprin is a far-more skilled and practiced polemicist than me, but to my simple mind this expression of his argument falls off the rails before it leaves the station. In its entirety Article I, Section 8, Clause 8 of the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” Congress’s power to enact copyright law must serve the purpose of promoting the progress of useful arts. This argument (in Eldred v Ashcroft) failed to convince the Supreme Court to overturn the Sonny Bono Copyright Term Extension Act, which extended the term to the life of the author plus 70 years, but the Eldred decision does not support the position that Congress can extend the term of copyright at will. Larry Lessig is articulating a more complete and scholarly refutation of Helprin’s argument.

The article about the Yahoo lyrics site explores the confluence of our appropriation of popular music for personal expression and the “propertization” of copyright. As Fry states “[s]ong lyrics are one of those things the Internet might have been made for . . .” Most of use have searched for song lyrics. The Archive of Misheard Lyrics at www.kissthisguy.com is a favorite site. Song lyrics are part of our aural wallpaper, a cultural touchstone, a form of shorthand, titles for the chapters of our lives (I’m in one titled “well . . . how did I get here?“), the raw material for wedding vows, and memory triggers. We hear a phrase in conversation that reminds us of a lyric that transports us to the time in our life associated with that song. (If reading that made you think of Patrick Swayze and Jennifer Grey, good.) Song lyrics are all that but, at the request of copyright holders, you can’t copy and paste lyrics from Yahoo!’s lyric site. According to Nicholas Firth, Chairman and CEO of BMG Music, Inc., a copied lyric is a lost sale–an idiotic comment that ignores the reality in which most of us live. If the choice is between paying a licensing fee to copy a lyric into a blog post and going without I’ll go without. Most people would say the same, even people old enough to remember Mungo Jerry’s “In the Summertime” who did not grow up with file-sharing. I won’t pay the copyright holder a trespassing fee to walk in my own memories.

* It must have been kismet that caused iTunes shuffle to play the S&G version of Mrs. Robinson as I was writing this paragraph.

PS: A student sent me the link to this video a few days ago. Titled “A Fair(y) Use Tale” it summarizes principles of copyright law using clips from Disney animations. Cute, obsessive, and worth a look, if just to wonder: how long did it take to put this together?

Egypt Imprisons Blogger

An Egyptian court sentenced 22-year-old blogger Abdel Kareem Nabil to a total of four years imprisonment “for insulting Islam and the Prophet Muhammad and inciting sectarian strife and . . . for insulting President Hosni Mubarak.” Nabil, who wrote under the name Kareem Amer, has been ” an unusually scathing critic of conservative Muslims.” Nabil’s criticism led earlier to his expulsion from Al-Azhar University, where he was a law student. See articles here and here.

Say “Cheese!”

Speaking of the YouTubeification* of politics, here are two more items. First, someone uploaded to YouTube a ten-second clip of Senator John McCain allegedly napping during last week’s State of the Union address. I thought it showed McCain looking down to read, not sleeping, and according to a New York Times article today, that’s the consensus after a few days discussion among those who discuss such things. The story of the clip’s posting on YouTube had legs and, whether or not it was posted to embarrass McCain and actually captured what it is purported to capture, it signals how the ubiquity of digital cameras and the ease with which video can be posted online are shaping the political discussion.

The second item involves use of digital video and YouTube to affect the legislative process. As reported in The Washington Post, frustrated Democrats in the Virginia General Assembly are recording hearings on controversial bills such as proposals to increase the minimum wage. Last week, after a Republican-controlled subcommittee decided on a voice vote not to bring seven minimum-wage proposals (two sponsored by Republicans) to the full Commerce and Labor Committee, Democrats posted video of the subcommittee hearings on YouTube. The chairman of the House Democratic Caucus is quoted saying “[t]his is an issue of importance to hundreds of thousands of Virginians. Why not have a full and fair hearing?” Republican Vincent F. Callahan, Jr. saw it less charitably: “It’s indicative of a culture of viciousness that is infecting these halls . . . you are going to get shots of someone picking their nose and use it out of context in the fall election.”

*Catch the wave–a Google search for “youtubeification” produced 160 hits; a search for “youtube-ification” produced 269. As we enter the 2008 Presidential campaign season, what’s the over/under on the number of hits for these terms on, say, June 1, 2007, January 1, 2008, and November 1, 2008?