Fugu Talk

A few years ago I attended a talk at the Santa Ana Digital Media Center given an executive from an online gaming company. Someone asked for his opinion on net neutrality and I was startled that he 1) didn’t know what it was, and 2) answered anyway that it didn’t concern him and that the free market would take care of it anyway. I’ll just pose a simple scenario – let’s say Time Warner cable strikes a deal to give broadband preference to a particular game, say WoW or Starcraft, or one of the games developed by a Time Warner studio, and conversely downgrades performance for your game. You’re hosed.

Here’s a nice quick-start graphic on net neutrality, including the latest news of Google once again stepping on and off the moral high ground.

[Via: Online MBA Programs]

I’ve been on a Scott Turow binge, lately. He’s by far my favorite writer of legal novels, so I snapped up his latest book, Innocent, the sequel to Presumed Innocent. And then I had to reread Presumed Innocent. And then I went to a used bookstore and found one his stories I hadn’t read, Pleading Guilty. And then I saw him interviewed on Book TV during their coverage of the Printers Row festival. It was a fascinating talk, covering not only his writing but issues such as the state of self-publishing and ebooks, and Illinois politics. Readers of his fiction may not realize Mr. Turow was appointed to a commission examining the death penalty in Illinois a while ago and wrote about his experiences. I won’t say it’s my favorite of his books, but it may be the most important. Which reminds me, I still need to read Bleak House (a reference that I hadn’t understood until I was informed by review comments on Epinions).

From Epinions, 2003.

The death penalty, like abortion, is one of those issues that seems to inspire strong opinions in just about everyone, regardless of personal experience or knowledge. Like most people, I consider myself a moderate – I have been uncertain about the morality of capital punishment and haven’t drawn any conclusion (read, done any research) about its effectiveness as a deterrent, but I have been firm in believing that the government should not be in the execution business.

I am hardly an activist, but even so I’ve been drawn into vigorous debates about the death penalty with several of my coworkers over the last couple of decades, ranging from a conservative friend right out of college who considered my stance just another part of my liberal pro-Dukakis platform (this was a while ago, and really, I did like Bush Sr.), to one of my project managers several years later who apparently considered my opinion too cerebral and said I should “think with my heart instead of my head”. It seemed to me that heartfelt vengeance wasn’t an improvement over thinking about the issue, but damn my Vulcan logic.

Fortunately, before spending another twenty years repeating and receiving the same arguments, I was rescued by Scott Turow’s Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty. Turow is best known for his legal fiction (it would be crass to lump his work in with the other “legal thrillers”) that frames personal conflict within the complexities and moral ambiguities of the legal system, and his writing resonates with authenticity gleaned from his own practicing legal background. Turow brings the same drama, precision and sincerity to Ultimate Punishment, a factual account of Turow’s experiences with capital punishment, culminating with his service on the Illinois commission that motivated Governor George Ryan to commute the sentences of all death row inmates on his last day in office.

The commission’s initial charter was to propose reforms for an obviously-flawed system that found, though appeal after appeal, one-third of death-row inmates eventually undeserving of the death penalty, or occassionally even wrongly-convicted. Similarly, Turow doesn’t dwell much on the moral and philosophical debates. As a criminal law attorney Turow is familiar with perpetrators of horrible crimes who are unlikely to redeem themselves, and he considers the European view, and alarm, about government-held executions less relevant to the United States.

But that still leaves plenty of more “pragmatic” but no less problematic issues faced by Turow and the comission – for example the death penalty as a deterrent (it’s not), racial criteria in applying the death penalty (it turns out it’s the victim’s race that seems to be the deciding factor), the need for closure by the victims’ families, the risk facing prison staff and inmates from the irredeemably violent, political momentum to apply the death penalty to an ever-widening group of crimes, and inflamed passions of juries and law enforcement in death penalty trials, sometimes extending to outright misconduct by prosecutors and investigators.

Despite the serious and in-depth treatment of this subject, the writing is accessible (although some references elude me – “In the Bedroom” and “Jarndyce vs. Jarndyce”?) and the book is not dense, just over 160 pages. Turow’s book is though-provoking and enlightening enough that some references to other readings and resources on capital punishment would be appropriate, e.g. its history in other states and in other parts of the world, but that is more a tribute to this book than a fault. The death penalty is a subject worth constant reevaluation, (even my young ultra-conservative friend had second thoughts after seeing exultant demonstrators at an execution) and Ultimate Punishment should be required reading.

It was nice to see today in my Gamasutra RSS feed no mention of a lawsuit. Besides other ramifications, I wonder if any companies consider that a reputation for suing makes them less attractive as employers? At least, speaking for myself, one of my career goals is to get through it without ending up in court. (I mean, what’s the point of citing work responsibilities to get out of jury duty if work is just going to put you back in?)

You’d think that would be an easily attainable goal, but I’ve noticed after joining the game industry that I’ve cut it pretty close. One of my employers often talked about suing employees and did sue two consecutive publishers after I left. A publisher client of mine ended up in a lawsuit over a game they hired me to evaluate (again, good timing, after I left). After I wrapped up a PC version of a product for a developer client, a colleague there inquired whether I’d be interested in testifying on their behalf in a lawsuit over the console version of the game (I regrettably declined).

And sometimes moral indignation does come into play. A while back EA had contacted me a couple of times and I told them I wanted to stay freelance, but really, I should have told them I wasn’t too pleased when they sued a couple of my friends who’d left EALA with a bunch of others en masse to start another company, and then once the suit had been settled and supposedly under a don’t-talk-about-it-rule, had their corporate counsel crow on gamasutra in a manner implicating guilt. If that’s the way you treat employees, you’d better pay a lot.

Of course, lawsuits are just a tool of the big business world (although it seems to me politicians citing the need for tort reform are just concerned with individuals suing companies). I read an interview of Adobe’s CEO in which he recounted how he got annoyed with Macromedia’s success with Flash and instructed his legal minions to dig up some patents they could use as grounds for a lawsuit. And then over a friendly lunch with his counterpart they decided on a merger. I guess it’s just a game to them. But it’s not a game I want to play.

A while back, Goodreads changed their Terms of Service to include one of those all-encompassing indemnification clauses that I detest. When I complained about it on one of the Goodreads groups, a member asked me to explain the issue “in layman’s terms”. Now, that’s a problem if web site users are implicitly agreeing to a contract without the ability to understand it.

Some sites don’t have this broad indemnification clause, e.g. Twitter, Facebook and last I checked, TripAdvisor (this clause is particularly disquieting on a site that relies on user-written reviews, so it’s disappointing that Goodreads has it – what if someone sues Goodreads because they don’t like a book review you wrote? Don’t laugh – it happens on Tripadvisor)

I can mostly avoid sites with that indemnification clause (I stuck with Goodreads, but limit myself to just rating rather than reviewing books). It’s hard to avoid using Google, though, which uses this clause on everything including YouTube. So I was hoping that Vimeo had something better, especially since I just noticed that Vimeo now works on the iPhone and iPad. My hopes are dashed, but they deserve kudos for putting a “Vimeo Speaks” column of explanatory text alongside the TOS legalese. Here’s their indemnification clause in “layman’s terms”:

I don’t have a lot of nice things to say about EULA’s or TOS’s, but I’ll say one thing about Apple – their general reputation for good user interfaces extends to EULA display. Nothing fancy, but they generally present them in a large window that is actually suitable for reading a document, like the one I just read for my iTunes update.

You might say of course, what’s the big deal, but then I started up Microsoft Works on my new Windows laptop and got a lengthy EULA displayed in a tiny text window you usually see with installers, except this is a startup window. The fact that the window is non-resizeable might lead one to conspiracy theories. I can’t imagine anyone actually bothering to scroll through a few lines at a time to read the entire agreement, which I’m sure is the point.

And then I decided to take enter some tax deductions and started up Deduction Pro, which isn’t even a real app anymore but takes you online (yes, I really want to put my financial information on your web site!). In a browser, the inappropriate tiny size of the EULA window is ridiculously obvious. There’s barely enough room to display “PLEASE READ CAREFULLY”. Yeah, right.

I noticed a few weeks ago that the City of Huntington Beach made good on their promise (threat) to rename every north-south minor street to “Lane”, so now I live on Sims Lane nee Sims Street. One of my conspiracy theories was that this was a way to get stimulus money, but they just taped over the “St” portion of the signs with “Ln”, so if federal moolah  is involved, then they’re not working very hard for it.

I think the real mundane reason for this change is that someone thought it just sounded better. The city officials pushing for the change said it’s required to remove inconsistencies in various street databases that pose a public safety issue (aren’t you actually introducing inconsistencies?)  Well, it’s really to conform to an old city specification that north-south streets be named lane (what about all the curved and diagonal and L-shaped streets in my neighborhood?). And every other city has similar specifications (they all have the same convention?).  And if we need help from the Long Beach fire department, they’ll be confused if we don’t have this street naming convention (again, they all have the same convention? and isn’t it more confusing that we change street names running from outside into our city?) And these specifications are necessary for the computerized dispatch systems to work (you’re kidding, the computer actually cares if a street is named Lane or Street) And don’t worry about your mail, the post office computer system doesn’t care about street suffixes (well, the fire department should use their computer). The specification is really needed for public safety new hires who aren’t familiar with the city (so you were making up that stuff about the computer?) And you can change your financial information gradually over time (thanks!).

Watching the city council meeting where this was discussed and just about rubber stamped (no discussion of cost or how it would be executed), I thought, these guys really, really want this change. It reminded me of all of my workplaces where management made a fuss over coding style conventions and just said all kinds of stuff to justify it. It’s really important for code safety. It’s important for new hires or others visiting the code. Every company has a convention. It’s not bad, you’ll get used to it. So someone goes through and changes everyone’s code and introduces bugs, and I still end up looking at three-page long functions making improper use of the language and API’s. But it must be good code, because it’s following a coding convention. And it’s got design patterns (coding conventions masquerading as software architecture). And from that point on, I don’t believe anything more from the powers that be, since they made a fuss about this instead of focusing on important matters  (there’s a coding style guidebook behind every worthless startup stock certificate on my wall). Same with my civic leaders – next time I watch a city council meeting, I’ll be sure to disbelieve everything they say.

I hate corporate meetings largely because 1) people say stupid things, and 2) you’re stuck in a room listening to it. Which is why I stayed home and watched the Huntington Beach city council meeting on HBTV while my neighbor valiantly attended to oppose the resolution for city-wide address changes.

In our case, the change is relatively minor, changing our street suffix from Street to Lane, so minor that it begs the question why it’s being done at all. The postcard announcing the change stated that there were discrepancies among databases and thus it’s a public safety issue that needs to be rectified, since the city uses an automated address system. When I inquired which databases were inconsistent, as I found none among any of the utilities, vendors or tax agencies I deal with, not to mention the authoritative Thomas Guide, I received clarification that the change for my street was to accomodate a city specification that north-south minor streets be labelled “Lane”, and then an additional plug on the public safety issue. When I pointed out one more time that since everyone else was consistent, even if there was one mystery database used by the city that wasn’t, changing the street name now would certainly generate more inconsistency, not less, the responder finally shut up about the public safety spin and said she’d forward my comments to the planning commission. I appreciate the responses, but I would have felt better if I hadn’t discovered everyone else who inquired received the same responses, word for word. Cut-and-paste is a god-send for bureaucrats.

In any case, it’s possible our complaints had some effect – the powerpoint presentation at the council meeting showed the resolution split into two parts, or perhaps two resolutions (I thought it was two resolutions, but it seemed there was one vote), the first part to resolve discrepancies among databases and the second to make addresses conform to the city specifications. But then the fire chief, police chief and former police chief touted the public safety issue again, saying they knew their way around but they rely on agencies in neighboring areas to help out and they might get lost. So, a fire truck from Long Beach is going to cruise right by my condo because they see an “St.” on the end of the street sign? To confuse issues further, councilman Hardy assured my neighbor that for a simple suffix change, the post office won’t care, because they use an automated addressing system. And then she went on to explain that we had to make the change because the public safety addressing system required it. This is one of those situations where I’m thinking I’m talking to an idiot, or they’re assuming I’m stupid enough to believe what they’re saying, or we really do have the worst IT system ever. Hey, this really is like a corporate meeting.

I was miffed enough about Goodread’s revised terms of servce, particularly the expanded indemfnification clause, that I sent them a complaint. After a few days, I received a reply:

Thanks very much for contacting us with that question.  Let me first say that I understand your concern, and that we debated with this exact point when creating the terms.  Our lawyers recommended it however, and it is standard practice for free media sites to have a general indemnification clause.  Sites like Facebook, MySpace, Flixster, and many more all have similar clauses.  However I recognize that the “me too” excuse is not a good one.  We honestly could have gone either way on the clause, but felt it was better to be safe and have our users trust our judgement should any unforeseen legal issues arise.  Just as we have a reputation to uphold in the way we do business, so we have a reputation to upload in the way we treat our members – and that includes doing the right thing in any legal matters.

I hope this addresses your concerns, and feel free to respond – we have core belief in listening to feedback from members.

I appreciate getting a response, but (as I in turn responded to them), “trust us” isn’t much better than “me too”,  and there are sites that have narrower or even no indemnfication clause, including Twitter, Facebook (despite what they said), Travelocity… It is hard to completely avoid these terms – Google uses them – but I like to mount feeble protests when I can, and my usage of Goodreads is pretty weak (I just use it to track the books I’ve read and rate them – I don’t bother writing reviews). So, looks like it’s goodbye, Goodreads…

I just looked over the Twitter terms of service (a while after starting to use it – shame on me!) and I’m pleasantly amazed there’s no indemnification clause. That’s a breath of fresh air. More typically, when you sign up for a web service, there’s a clause like this one (taken from the WordPress terms of service)

1. Indemnification. You agree to indemnify and hold harmless Automattic, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.

That’s nice – if anyone, not just the company, but anyone employed, on the board, contracted, whatever, is sued or suffers any “expenses” in any way related to your use of the site, whether or not you did anything wrong, you’re on the hook. I’ve even seen this on sites of non-profit organizations – hey, give us some money, and pay our legal expenses!

It’d be great if those proponents of tort reform to help out those poor big corporations suffering from class-action lawsuits would take a look at removing the legal traps from consumer transactions (and how about those EULA’s in shrink-wrapped software that you agree to even before you can read them? Don’t get me started…) In the meantime, try to reward those few bright lights of reasonableness with your business. I was going to point to just one other example, the Goodreads TOS which has an indemnification clause specifically for breach of contract,

You agree to indemnify and hold Goodreads, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Service in violation of this Agreement and/or arising from a breach of these Terms & Conditions and/or any breach of your representations and warranties set forth above.

which seems quite reasonable, but it turns out they amended it least year (without even mentioning it on their blog) to this:

You agree to defend, indemnify and hold harmless Goodreads and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any of your User Content or any that are submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

I don’t know why they put ii-vi in there, (i) seems to cover any possible case. Now, you might say that’s just lawyer stuff, in practice you don’t need to worry about it, but in that case, it doesn’t need to be there. And if I can’t rely on a common-sense intepretation of the text, do I need to hire a lawyer every time I sign up for a web service? C’mon.

I’m a free man!

Dear Philip,

Your traffic school Certificate of Completion has been processed by the court and your case has been dismissed.

Sincerely,

Court Official
West Justice Center
Orange County, California

My “case” took a while (it was for not stopping at a stop sign – maybe it was a Bostonian rolling stop, but the officer described it as if I’d just cruised on through. I’d like to see the evidence. When is Google going to have real-time satellite traffic videos?) When I first tried to pay my traffic ticket at the courthouse, they told me “you’re not in the computer”, giving rise to thoughts of a Catch-22 situation where I couldn’t pay my ticket but got in trouble for not paying my ticket (anyone see the movie Brazil?) This wasn’t helped by the web-site instructions saying I should follow the instructions on the ticket on the “courtesy notice” which hadn’t arrived since I wasn’t in the computer, while the ticket itself said I was responsible for following the instructions on the courtesy notice but the courtesy notice was just a courtesy so I might not receive one.

But thankfully(?) I received a letter a month later saying the citing officer mad a “mistake” and my case was “rescheduled” and a month after that I received a letter with instructions on selecting a traffic school. In the same envelope was another note instructing me not to select a traffic school for another two weeks because they just changed traffic school systems, and, here’s the good part, a modest refund.

I’m mildly curious about the in-person schools that employ comedians as instructors – thought that was a made-up idea in King of the Hill – but not that curious. Instead, I decided to make the most of the situation by trying out an online traffic school that featured Flash games, Traffic Interactive.

The games are OK, about par for free Flash games. While you might expect a bunch of driving simulations, there’s only one driving minigame in the section about choosing the correct lane:

Most of the games have nothing to do with driving, e.g. the one below requires you to harpoon squid – you just score a few points and the game pauses while a popup explains a few driving rules.

I don’t even remember what this one is:

Most of the game is filled with non-interactive Flash presentations that border on annoying (actually, they cross the border a few times – I mean, why does that guy keep harping on his grandma’s driving? They should show teenagers – they’re the worst) And it’s still traffic school – games or no games, after a few hours, it feels like it’s not going to end. Fortunately, there is a nice map showing your progress in this traffic school wonderland:

And the beauty of an online school is you can log out and log in at anytime. I killed an afternoon completing the bulk of the course but had trouble logging into the final test (which requires additional authentication steps). It took me days before I figured out (there appears to be no functioning help desk) that the pull-down list of courts in the final test login had my court listed twice, once as “Online” and once as “Notary”, which “Notary” listed further down and I had selected that inadvertently. The web design isn’t great. On the other hand, the online school cost around $15 and the online authenticated final test (vs. the Notary option which requires you to pay a notary to watch you take it) costs an additional $8. So I finally took the test near midnight during  a commercial break while watching Conan. You can’t beat that for convenience.