Author: Deven Desai

0

The Creativity Cliff: Another Reason Extended Copyright Terms Are Not About Authors

Quality of life and creative capacity at the end of life are other reasons to doubt that long copyright terms are important for authors. Ezekiel Emanuel’s “Why I Hope To Die at 75” caused a stir for his views on graceful death and quality of life. Part of his argument is that creativity, on average, diminishes late in life. Those who pursue prolonging life as if they are “immortals” “operate on the assumption that they will be … outliers” such as one of Emanuel’s colleagues who still publishes papers that change policy at 90. “But the fact is that by 75, creativity, originality, and productivity are pretty much gone for the vast, vast majority of us.” (Emanuel picks 75 because that is his trigger age for not fighting death). The article has a graph that indicates truly creative, novel ideas and work decline after the early to mid 60s for most people. Emanuel is quick to point out that there are many other ways to be productive and contribute to society after creativity slows down or goes away. Nonetheless, if he is correct that “This age-creativity relationship is a statistical association, the product of averages; … [and] The age-creativity curve—especially the decline—endures across cultures and throughout history, suggesting some deep underlying biological determinism probably related to brain plasticity”, it suggests that there is what I would call a creativity cliff.

If the creativity cliff is real, it suggests that giving more incentives to create late in life is unwise. As I argue in The Life and Death of Copyright, the idea that authors need copyright after death to provide for heirs is absurd and unsupported. When I presented the paper, many asked but what if I am old and want to leave something to my children, isn’t copyright an incentive? It may be an incentive, but it is not sound, in part because of the creativity cliff. In general, as Hal Varian has noted, very few works ever generate a steady income stream. That is true regardless of when one creates. Copyrighted works are part of winner-take-all markets and “Such markets end up fostering over-entry into the field because too many people believe they will be the one to sit at the top of the market when only a few or arguably one can do so.” As Emanuel points out, many of us hope to be outliers and “immortals” who have excellent quality of life and tremendous creativity late in life, but by definition that can’t be true. Thus those who say they need copyright as an incentive to write as they see death approaching labor under the illusion that they are the outliers. I laud the effort and probably will write until I die, but that is not a sound basis for policy.

0

Data, A/B Testing, and Sales

A company called Adore Me that was founded in 2010 now has sales ($5.6 million) to rival La Perla has done well in part because they use data and A/B testing. Rather than rely on the intuition of photographers and designers, the company takes versions of an offering and shows them to consumers to see what works. Here are the surprising claims. Blonds don’t sell well. A picture of a model with her hand on her hip will sell less than if she places her hand on her head. According to Fast Company:

Through its research, Adore Me has found that the right model matters even more than price. If customers see a lacy pushup on a model they like, they’ll buy it. Put the same thing on a model they don’t, and even a $10 price cut won’t compel them. Pose matters as well: the same product shot on the same model in a different posture can nudge sales a few percentage points in either direction. Another test found that a popular model can sell a more expensive version of the same garment.

Adore Me also has a plus sized model (although I am sure that others can tell me best whether the company’s definition of size 12 and above is a good one) and presumably will see whether folks may buy more lingerie from someone with a body other than a Barbie-esque one. Of course they may find that the image machine controls how we shop, but I am curious to see whwther they will find ways to challenge and tweak what resonates with consumers. Now that may be unlikely as the author of the article, Rebecca Greenfield, wrote “Scrolling through the site, the models could all be related—long legs, olive skin, dark hair, insanely hot.” Yet when it came to race, the article suggests that pose, styling, and the emotional connection with the photo mattered more than race for selling a given item.

As with all data, the practice raises some difficult questions. Seeing how people behave can help sell. Assuming that one’s offering does not influence how people behave is a mistake. The ethics of what one does with data about buying habits and current preferences is a topic for another post and many papers are being written on the topic. For now, be aware of the practices. For Facebook thought it was cool to run thousands, if not hundreds of thousands, of tests on users. As Ian Ayres noted, people can use Google Ads to see what titles work best for a book. So maybe we care more about emotional manipulation than the variation in ad content. Maybe we care more about whether we see ads for the same item and same price as others than whether that ad is highlighted in red, blue, or green. Maybe we should know that poses and lighting can influence our desires and buying habits. Although business experiments are not new, how they are done and for what purpose forces us to re-examine practices. Along the way, we will re-visit markets versus manipulation versus power versus nudging versus culture versus shaping as we better see what is happening and then ask why and whether about those outcomes.

1

Will The Nobel Committee Follow Oscar and Restrict Selling Medals?

Apparently Watson, of DNA discovery fame, is selling his Nobel Medal. Christie’s estimates the price at $2.2 million. I will go into the reasons for the sale below. But first, I wonder whether the Nobel Committee will put in a restriction on selling the medals. The Oscar folks, (aka the Academy of Motion Picture Arts and Sciences) placed a restriction on awards granted after 1950: the recipient or heirs had to offer it the the Academy for $1 before selling to anyone else. Unrestricted Oscars have been sold for $510,000 (1993, Vivien Leigh’s Oscar for “Gone with the Wind”) and $1,540,000 (1999 David O. Selznick’s Oscar for “Gone with the Wind”) among other prices. Whether the Nobel folks see the award as their key asset (as AMPAS does) or they have other objections to its sale will determine what they do.

For those wondering why sell the medal, Watson made some comments about race in 2007. According to Irish Central, in an interview with the Financial Times, Watson said he was “‘inherently gloomy about the prospect of Africa’ because ‘all our social policies are based on the fact that their intelligence is the same as ours – whereas all the testing says not really.'” That statement resulted in boards and other groups choosing not to work with him. In short, he needs the money.

Given that Watson has said he will give some of the money to science charities, I wonder whether he might set up fund in honor of Rosalind Franklin, the woman who took the picture that allowed the structure of DNA to be seen and died four years before the Nobel for DNA’s discovery was made. (The Nobel prize is awarded only when one is alive). Nonetheless, her credit has been lost. Then again if Ms. Franklin were alive, she might not be happy to have a fund created in her name by someone who has Watson’s current reputation, let alone the DNA discovery problem.

Correction: Earlier version mistakenly listed Crick as the Nobel medal seller.

2

Pew’s “Web IQ” Test Is Flawed

Pew Research does good work, but of late the surveys and claims give a “factoid” feeling. The latest report “What Internet Users Know about Technology and the Web” asks some rather silly questions. Why knowing the character limit on Twitter (140), which university was the first on Facebook (Harvard), or the year that the iPhone came out (2007) is indicative of useful knowledge is unclear. To me these points of trivia may matter as one tries to write about technology history and maybe policy. But the idea of Web IQ is murky. Heck, many of the questions are about the Internet, not the Web. Identifying the faces of tech leaders such as Gates or Sandberg is a curious feat but is this quiz in fact a game of tech Jeopardy!? (Yes, few knew Ms. Sandberg, but that is a different issue than Web IQ for me). The questions about tech policy seem to reveal more about problem areas. Guess what, net neutrality and privacy fared poorly. Knowing how wikis work might enable folks to think about the authority of content. Despite the irony of the quiz name, knowing the difference between the Web and the Internet also helps sort issues about many evolving technologies. Yet the overall thrust of the report reminds me of political, navel gazing junkies who, like Trekkers, thrill to their did you know who did what on some exact, obscure date knowledge and then act as if those who don’t know the answer somehow are stupid or “don’t get it.”

Raw knowledge and history are great and fun, but unless you can tie them together they are quite dead. Maybe if Pew had just called it a general tech knowledge test, it would have made more sense, but then maybe no one would read the report. Ah there it is. Pew’s IQ may be rather high after all.

0

She Blinded Me With Science – Redux

Scientists/musicians at Cambridge have made a cover of Thomas Dolby’s She Blinded Me With Science (video below). As Cambridge News explains, the “video features a number of young women scientists including a material scientist, laser physicists and an epidemiologist. All proceeds from the song will go to ScienceGrrl, an organisation dedicated to celebrating and supporting women in science.” Seems like a cool project. The video could be a start to featuring more women in science (By my count there are five women in the video, which may be a function of how many can be highlighted in a short format). I hope so. My reason is simple. Some of my favorite people at Google were super-smart, fun to work with, visionary, and taught me huge amounts about science and professionalism and oh yeah, they happened to be women. That they are not known for their excellence beyond a small group and that women think science and math options are not open for them saddens and baffles me. Maybe the fact that my mom is a doctor colors my world. Or maybe it is the fact that I studied with female peers in grade and high school on math and science (including Calc I and II) and they were as good as any male I studied with. Or maybe it’s because so many women in law school and academia impressed and continue to impress me by pushing me to think and speak better as well as teaching me about law, science, technology, and so much more. To me the idea that women are somehow less able to work in certain fields is just nutty, or better said, insane. So in the Thanksgiving spirit, I am thankful that some science folks with some musical skills have offered their update to Mr. Dolby.

Side note: Dolby is one of my favorite musicians . His Golden Age of Wireless has some great tracks (check One of Our Submarines if you want a haunting ode to technology and lost empire). That said, The Flat Earth is brilliant. I think of it as an album that I can listen to start to finish and enjoy each song. The title track is great. I prefer the studio version to this one, but you can get a feel for the song and the lyrics perhaps the best part:
“please remember…
the Earth can be any shape you want it
any shape at all
dark and cold or bright and warm
long or thin or small
but it’s home and all I ever had
and maybe why for me the Earth is flat”

In other words, we can make the world we want.

Plus the idea of the Flat Earth Society amuses me.

0

Oh Barbie, Not Again! Mattel’s View of Women and Science

Apparently, Barbie again thinks that women are limited when it comes to science. Mattel seems to be trying to get on board with with STEM and women. They commissioned a book Barbie: I Can Be A Computer Engineer. Unfortunately, according to The Sydney Morning Herald, the book has Barbie as only able to design and not code, and she seems not to have a sense of computer security. The online outrage has prompted a recall of the book. The writer claims that Mattel required Barbie to be “more polite.” Mattel has claimed the book, which came out in 2010, does not reflect current Barbie views. Nonetheless, The Herald points out that The book came out last year and there is evidence that the book was commissioned in 2011. Furthermore, the real point is that Mattel should be able to do better here. As the Herald points out that other offerings such as Rosie Revere Engineer and the Hello Ruby project manage to show females doing well with technology and gaining skills such as coding. So will Mattel and Barbie ever catch up to more modern ideas? After all, critical views of Barbie and Mattel’s views on women in math and science have been going on since at least the late 1990s.

Maybe the Internets and buying power will force a shift. As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, people should take on Mattel and Barbie with online protests, boycotts, reworking of the brand image (which apparently happened with a remix app that lets “people [] make their own wry comments by rewriting the book”), and more. That might signal competitors that a market exists while also telling Mattel that they are losing the next generation of consumers. Plus The Herald notes that Barbie sales are down. That may present and opportunity for this sort of action to have force. As STEM grows in attention, and moms start to buy more toys that foster new views of femininity, maybe other toy and doll makers will take off and challenge Barbie. Given Mattel’s power, it may alter course and swamp those new entrants, or it may buy them. A more likely outcome is that a few new offerings emerge, but Barbie stays the course. Still, if some criticism spurs even niche options, today’s world of Internet sales and bespoke toys can support that niche until it maybe becomes more.

0

I Am Thankful for Antitrust? Yep.

So you are settling in thinking about food, those who have it, those who don’t, and of course a distraction, antitrust, pops into your head. OK that is unlikely unless you are a nerdy professor, which I am. In all seriousness, I am thankful that friends and colleagues indulge my ideas as I develop them, and that they read work other than what I read. It allows me to pose odd questions, hear what I may be missing, share views that my friends may not have seen, and all are better for it.

The specific, recent example happens to be in antitrust. I was catching up with Spencer Waller and mentioned that I had dusted off early Bork. The man writes quite well. Whether one agrees or disagrees with him, his style and clarity is to be admired. That also poses a danger that Peter Swire alluded to and Spencer helped me overcome. Bork, of course, has critics and some of that criticism is about substance. That is some argue Bork was inaccurate about history and more. So if one wishes to cite Bork, it helps to know where that may lead. Thankfully, Spencer pointed me to an excellent symposium on Bork.

So I am also grateful to the Antitrust Law Journal and Barak Orbach, George Priest, Danny Sokol, and Adam J. Di Vincenzo for organizing and editing the Symposium on Robert Bork and Antitrust Policy. (Volume 79, Issue 3). The range of views and explanations are exceptional. Each essay explores specific ideas or contentions. The authors I have read so far provide a view of Bork and antitrust in general that educates and excites. I look forward to reading the rest.

1

Will The Disruptors Be the New Dominants?: On Uber, AirBnB, and other seeming upstarts

Loving your online, decentralized model may not work when you care about safe drivers, clean rooms, and other real-world issues. Claire Cain Miller brings up this problem in today’s New York Times. She points out that AirBnB and Uber are trying to follow “a religion [from] Silicon Valley: Serve as a middleman, employ as few people as possible and automate everything. Those tenets have worked wonders on the web at companies like Google and Twitter. But as the new, on-demand companies are learning, they are not necessarily compatible with the real world.” I agree. In The New Steam: On Digitization, Decentralization, and Disruption, I point out that “transactions costs related to safety, quality, property rights, contracting, and knowledge may be more acute in a digitized, decentralized world.” Ms. Cain Miller (apologies if Miller is the preferred last name), hits on some great points about the differences between the types of harms in the online and offline world. As she looks at it, the lack of humans is a problem for the reality of the services and relates to politics: “The belief that problems can be solved without involving people is probably why many of these companies did not meet with regulators and officials before starting services in new cities.” I think there is something more going on here.

Yes, the big firms in the space will engage in lobbying, but part of their story (and practice) will have to be about how they meet the issues of labor, safety, and more that they affect. As I put it:

[E]ven with digitization, economic questions will remain, but we must understand what they are and why they persist to see what the future may be. Douglass North captures a paradox that goes with transaction costs. Greater specialization, division of labor, and a large market increase transaction costs, because the shift to impersonal transactions demands higher costs to: 1)measure the valuable dimensions of a good or service; 2) protect individual property rights; 3)enforce agreements; and 4)integrate the dispersed knowledge of society.26 Standardized weights and measures, effective laws and enforcement, and institutions and organizations that integrate knowledge emerge, but the “dramatic increase in the overall costs of transacting” is “more than offset by dramatic decreases in production costs.” Digitization forces us to revisit these issues. With digitization, we are seeing an abundance of person-to-person transactions, but with the problems of impersonal transactions.

In simplest terms, AirBnB , Uber, et al. may face some rocky times, but there is a good chance they will figure out how to address the current issues and end up being the dominant firm, not the small disruptor. As Ms. Cain Miller notes, AirBnB has added hotlines and insurance. Uber has also increased its insurance requirements. If the disruptors continue to address a decent amount of the issues North calls out, my bet is that “this era of disruption and decentralization will likely pass and new winners, who will look much like firms of old, will emerge, if they have not already.”

0

Makeup as the Killer App for 3D Printing?

A woman named Grace Choi seems to have come up with a way to 3D print “lipstick, lip gloss, eye shadow, blush, nail polish, brow powder—pretty much everything except foundations and face power” at home. Her company, Mink, uses FDA approved inks (vegetable or edible). The goal is that a consumer could take a picture or using an online image of the makeup, the software would match the color and print out just enough makeup for that application. If the prototype holds up, this product could be one to bring 3D printers into many homes. But is it the killer app for all of 3D printing?

Put differently, a fair question that comes up when I talk about 3D printing is will it really be a device in every home? The answer depends on what one means by the question. First, at this point, you need a different 3D printer for different outputs (e.g., makeup or something in plastic as opposed to metal or ceramic). If Mink takes off, yes, a type of 3D printer could be in many, if not a majority, of homes. But as Gerard, others, and I have said, this device is not a replicator. So until a 3D printer is able to have multiple mediums in one printer, the spread of the devices will probably vary depending on the medium of the output. As such the killer apps for each medium will be specific to the device. That said, Mink may have a larger importance for 3D printing and home technology.

Mink could be a sign of where home inventors and makers are headed. Ms. Choi hit on her idea and took about a month to work through 20 printer prototypes, sort the ink issues, and have her working Mink printer. Granted she is a Harvard MBA and apparently has family support, but her approach could lead to new players in her field and others. As reported by CNBC, Ms. Choi, “Much of the make-up sold by high-end labels starts with the same base substrates, or ingredients, as cheaper ones.” This point is part of what motivated Patents Meet Napster. The core things needed to make many products are easier and easier for anyone to obtain. If Mink is priced at $300 to start as promised, that price will likely drop over time. If women adopt the technology and then tinker with it to improve on the hardware or the design colors, they may be inspired to launch their own companies and tinker with other technologies to get there. Like car and computer enthusiasts, cosmetic enthusiasts may find that playing with making what they want and love can lead to new products and businesses. And if that happens at scale in one sector, it may spur adoption in others. So maybe 3D printed makeup is not a pure killer app for 3D printing, but maybe it does not have to be to still have some great effects.

0

Another in the Stop, Be A Better Lawyer Posts

With all the focus on law in alleged decline, and the ease with which we can put our heads deep into a subject, too much can pass by. That is why on occasion I post about meteor showers, eclipses, and other wondrous fun. Fun can die. Wonder can fade. When I taught professional responsibility, I always tried to remind students that the profession can be tough (just look at substance abuse and divorce rates for lawyers), but that they should try to find part of the law that excited them. One had to know that even then the fight is long and difficult, but if you love the work, much of the burden is reduced. If you are lucky, you may be able to have the joy that these science folks share in the video below. And if the career is not giving you a way to find the wonder, find it elsewhere. That too can lift you up, and you will be a better lawyer. Yes, empathy matters, and I think it grows when we remember that are humans running through life trying to make things work and maybe a bit better too.

So I give you this video. I hope deGrasse Tyson is correct that we are all connected by logic. But even if he is incorrect, as Guru Sagan says, “The beauty of a living thing is not the atoms that go into it, but the way those atoms are put together.” Enjoy.