There is no shortcut to thoughtful decision making. It requires critical thinking and discussion, and PowerPoint not only doesn’t help, it hurts.

My points yesterday were about much more than PowerPoint and its inadequacy to convey information or analysis effectively. This isn’t the first time I’ve brought up Edward Tufte’s work, but many have pointed out to me what, in fact, had inspired yesterday’s post – The New York Times article 4 days ago discussing the diagram below, part of a PowerPoint presentation made last summer to Gen. Stanley A. McChrystal, the leader of American and NATO forces in Afghanistan, on U.S. strategy in Afghanistan. As the article explained, McChrystal’s said, when he saw the slide: “When we understand that slide, we’ll have won the war.” The room “erupted in laughter.” The article also quotes Gen. James N. Mattis of the Marine Corps, the Joint Forces commander, saying last month that “PowerPoint makes us stupid,” which, of course, is a paraphrase of the headline of the 2003 article on Tufte and the Columbia space shuttle I discussedyesterday. More to the subjects my post yesterday was about, the article states: “Commanders say that behind all the PowerPoint jokes are serious concerns that the program stifles discussion, critical thinking and thoughtful decision-making.” The most obvious conclusion to draw from an examination of the slide below is one I made yesterday, quoting Tufte — to convey any effective analysis that the slide’s creator intended to convey would have required an extensive written document.

John Stewart last night got into the topic last night too:

PowerPoint might make you dumb, but understanding why can help keep you from being dumb even when you don’t use PowerPoint.

Edward Tufte is the world’s premier expert on the graphic presentation of information.  In the wider world he’s probably best known for his article, PowerPoint Does Rocket Science–and Better Techniques for Technical Reports, which (1) explained how, in connection with the Columbia space shuttle disaster, a PowerPoint presentation misled NASA decision makers regarding the risks to the shuttle posed by the impact of a piece of foam insulation that broke off of the shuttle’s fuel tank at launch, struck the shuttle’s left wing, and penetrated that wing’s thermal insulation, and (2) made a strong case that it is virtually impossible to convey any complex information using a PowerPoint presentation.

In a 2003 article entitled “PowerPoint Makes You Dumb,”  Clive Thompson, summarizing Tufte’s article, wrote: “When NASA engineers assessed possible wing damage during the mission, they presented the findings in a confusing PowerPoint slide — so crammed with nested bullet points and irregular short forms that it was nearly impossible to untangle. ‘It is easy to understand how a senior manager might read this PowerPoint slide and not realize that it addresses a life-threatening situation,’ the [Columbia Accident Investigation Board] sternly noted.”

Further summarizing Tufte’s article (which is really worth reading in its entirety), Thompson wrote: “[The low resolution of a PowerPoint slide means that it usually contains only about 40 words, or barely eight seconds of reading. PowerPoint also encourages users to rely on bulleted lists, a 'faux analytical'' technique, . . . that dodges the speaker's responsibility to tie his information together. And perhaps worst of all is how PowerPoint renders charts. Charts in newspapers like The Wall Street Journal contain up to 120 elements on average, allowing readers to compare large groupings of data. But, as Tufte found, PowerPoint users typically produce charts with only 12 elements. Ultimately, Tufte concluded, PowerPoint is infused with 'an attitude of commercialism that turns everything into a sales pitch.'''

Think of the difference between a low resolution photo and a high resolution photo of the same scene -- the viewer of the low resolution photo remains ignorant even of the possible presence of information present in the high resolution photo, much less the precise nature of that information.

Tufte self-publishes his books, not because he wouldn't be able to attract a commercial publisher, but, rather, because by self-publishing he can control entirely the manner in which he presents his material. Since his entire mission is to explain how to effectively present graphic information, that control is crucial to his work.

What does the effective presentation of graphic information have to do with lawyering, which primarily relies on the use of verbal information? Plenty. The principles applicable to the effective presentation of visual information are the same principles applicable to the effective presentation of verbal information. Important information must be highlighted, the conclusions must be supported with detailed, "high resolution," step by step explanations and the telling use of narrative, and anything extraneous to the points being made has to be cut out. You must also be acutely aware of your audience and the precise purposes you are trying to achieve. Moreover, as Ruth Anne Robbins has so effectively demonstrated in her article, "Painting With Print: Incorporating concepts of typographic and layout design into the text of legal writing documents," the visual appearance of even our written work is crucial to its effectiveness. Finally, of course, our culture (including our legal culture) is one that increasingly relies on the visual presentation of information. There is no denying, however, that a well written brief, an effective oral argument, or a successful classroom discussion is like a high resolution photo, while a PowerPoint presentation of of the same information is like a low resolution photo of the same subject.

In short, Tufte is exactly right in PowerPoint does Rocket Science when he concludes: "Serious problems require a serious tool: written reports."

But again, merely using words instead of PowerPoint slides isn't the answer. The words need to be chosen and arranged effectively. My students often make the same mistake the NASA engineers made in their PowerPoint presentation, which did in fact contain statements meant to convey the substantial risk that resulted in the Columbia's disintegration upon its reentry into the earth's atmosphere. The problem was that the crucial information was buried in a place and amidst so much other, misleading information that it was impossible for the audience to notice it.

It reminds me of my students when, in response to feedback they don't like, come to me with their work and argue that they really did include in their writing the important points I've said they've neglected. They even can point me to the words that I can see they really did mean to make those points. But those points are either expressed in language that is too obscure or are put in places in which they do not fit into an effective overall analysis. It's not just student's, of course. All of us have those moments when we believe we have expressed our opinion on a subject effectively, but if that if that opinion is unconnected to the evidence, authority, and reasoning that supports it, if it is buried in words that don't support that opinion, or if in any other way its truth is obscured, it might as well not even be there.

Addendum: here's one example of stupid verbal argument that bases its conclusion on the information it presents but is too "low resolution" to make its conclusion convincing. The Washington Examiner argues that "[g]overnment workers, especially at the federal level, make salaries that are scandalously higher than those paid to private sector workers.” I have to admit I was startled when I saw the editorial’s title: “Want to get rich? Work for feds.” Sorry, but none of the rich people I know of outside of Congress (which doesn’t make you rich, but, due to the cost of running for office, requires you to be rich) are government workers.

So what information does the Examiner base its conclusion on? “As of 2008, the average federal salary was $119,982, compared with $59,909 for the average private sector employee. In other words, the average federal bureaucrat makes twice as much as the average working taxpayer.” The Examiner even has a cool little graph to make the same point visually!

What’s the problem with the argument? It takes no account of the differences in education, training, and ability required to do all those federal jobs and the education, training, and ability required to do the jobs done by “the average private sector employee.” How many government jobs are there that compare to the legion of private sector jobs that pay minimum wage to stock shelves in superstores, flip hamburgers in fast food restaurants, or the like?

I know plenty of government employed lawyers. They really do make more, even much more, than “the average private sector employee.” But they make less, much less, than private sector lawyers whose education, training, and ability are no better than theirs. And their education, training, and ability do happen to be considerably more than those of “the average private sector employee.”  So why do my friends who work for the government do what they do? Because they believe in and love what they’re doing. Some are prosecutors. Some are public defenders. Some work for government regulatory agencies. And they’re great at what they do. They definitely don’t do it for the money.

Does anyone believe that going to work for the government is the way to get rich? God, stupidity is rampant.

Challenging automated YouTube takedowns (and don’t forget to think through the ramifications)

Chris Walters at The Consumerist provides an excellent account of the whys and wherefores of takedowns of YouTube videos.  In addition to explaining why YouTube’s automated Content ID tracking system results in the kind of baseless deletions I referred to the other day, Walters also explains that “[Y]ou can dispute any Content ID claim. If you have a clip that’s been targeted, you’ll see a notice about it on your YouTube account page. From there you can access a dispute page where you can affirm that you believe your clip falls under fair use, and the clip will immediately become public again. The copyright holder will receive notice that you’ve disputed the clip, and must then decide to leave you alone, send a DMCA takedown notice, or sue.”

Importantly, too, he explains that you want to give some thought to the ramifications of disputing an automated takedown: “There are legal ramifications to this, which YouTube hints at and the EFF explains very clearly. If you decide to fight copyright abuse by a large company, you should make sure that you’re on the right side of the fight, that you have a sensible chance of winning a possible lawsuit, and that you’re willing to assume the financial risk. All three of those determinations probably require some serious meetings with a lawyer.”

On the other hand, any copyright owner sending a takedown notice ought to consider the legal ramifications of doing so, since a baseless one relying on the power to outspend an individual fair use claimant might have its own legal downside.

The Copyright Police find out there are Hitler Parodies.

From PC World:

YouTube has recently begun removing videos that feature content from Constantin Films’ 2004 film, “Der Untergang” (“Downfall”), despite the fact that many of these videos are parodies and thus constitute fair use of the material.

This video says it all:

I’m sorry to report to lawyers and law students this version has been taken down:

Do you think law schools teach their students how to practice law?

I’m a law professor, but I’ve always been mystified by law school. For one thing, it strikes me as remarkably odd that my experience in full-time practice (nearly twelve years) is more (much more) than the vast majority of the professors on the faculties I’ve been part of. For another, what I learned in law school never made much sense to me until I actually began to practice. I always wondered why the knowledge I picked up in practice that “put it all together” for me hadn’t been there in law school in the first place. I suppose the opinion expressed here is a perfect illustration of why that is, but, still, what has always informed my teaching is my effort to bring into law school those pieces that were missing in my own legal education and that, if they had been there, would have made a world of difference.

In short, learning law cannot be separated from learning the practice of law. And law schools, for some reason, don’t seem to think their job is to teach their students the practice of law.

My views are clearly minority ones within law school academia, but they clearly are not so in the legal practice. As Above the Law reported last week: “United Technologies‘ General Counsel, Chester Paul Beach . . . stood up and told approximately 75 law school deans and legal educators from around the country:

We don’t allow first or second year associates to work on any of our matters without special permission, because they’re worthless.

And last week, at the Harvard Law School/New York Law School Future of Education Conference,

Vielka Holness, Director of the John Jay College of Criminal Justice Pre Law Institute, . . . said that schools need to bridge the gap between legal theory and actual practice. . . . Most importantly, she said that you need to look further up the pipeline, so students go into law school with an idea of what they need to learn in order to be successful practitioners.

Gillian Hadfield, Professor of Law and Professor of Economics at USC, . . . said that law schools weren’t even very good at doing the things that they think they’re doing well. She had some great examples about how bad students are when asked to pick out the important information in the case, or even pick out the information that will be important to a client.

Elie Mystal, the author of the post, concludes, in response to Hadfield’s point:

It’s an important note. The kind of information regurgitation that will get an ‘A’ in torts and help you pass the bar will make your memo bleed red — if you’re lucky enough to find a mid-level that will even bother to read it.

Should we allow people to sell their souls to the devil? Freedom of contract confronts the fact people don’t read the contracts they enter.

I don’t think Robert Johnson made any deal with Satan to obtain his remarkable talents; he listened to and made his own the sounds of his contemporaries. Apparently, however, the British game retailer GameStation is counting on its customers believing talent is more a matter of divine or satanic inspiration than the creative reworking of existing culture. GameStation’s current end user license agreement requires online purchasers of its products to agree to the following: “ By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.”

As further reported, “While all shoppers during the test were given a simple tick box option to opt out, very few did this, which would have also rewarded them with a £5 voucher, according to news:lite. Due to the number of people who ticked the box, GameStation claimsbelieves as many as 88 percent of people do not read the terms and conditions of a Web site before they make a purchase.” The fact that so few people read the contracts they sign is no news to me. The troublesome part is that these contracts are generally enforced, although GameStop “noted that it would not be enforcing the ownership rights, and planned to e-mail customers nullifying any claim on their soul.” They are enforced because contract law is founded on the notion that we are all free and equal individuals left to our own devices to enter those transactions we wish. Moreover, many believe that any limitations on what individuals can be allowed to agree to (within certain well-accepted limits) are counter to economic wisdom. But when we face up to the fact so few people actually read these agreements, sooner or later we’re likely to have to face the fact we’ll have to limit what consumer retailers can require in these agreements.

There are a lot of good reasons to be skeptical of evidence, especially of the sort that can be edited and appears to tell stories that are incredible.

Visit msnbc.com for breaking news, world news, and news about the economy

Why the music industry won’t sue certain samplers such as Girl Talk and the producers of Copyright Criminals.

I’ve discussed extensively in the past (most prominently, perhaps, here) my view regarding the music industry’s view that considers any unlicensed sample of a copyrighted recording, no matter how small and how transformed, a copyright infringement. In short, I think it likely the case law on which that view is based would be overturned if it is challenged in any case in which the sampling is used in a way sufficiently transformative that the sampling work stands on its own as a creative work. In short, that’s why I don’ t think Girl Talk has been sued.

Transformative uses of copyrighted work are permitted under the fair use doctrine, and so are critical uses. That’s why I don’t think Kembrew McLeod needs to worry about a lawsuit in connection with the documentary film he co-produced “titled Copyright Criminals, which examines the messy three-way collision between digital technology, musical collage, and intellectual property law.” So why does McLeod worry? Because he’s right in explaining the following:

The music industry believed that the law didn’t distinguish between copying one second or half a minute of a sound recording. Therefore, record companies now insist that every fragment of sound needs to be cleared, something that fundamentally altered the aural evolution of hip-hop music. The more complex you make your sound collage, the more impossible it is to share with the world. And in the course of documenting the legal and cultural history of this art form, Ben [McLeod's co-producer] and I are risking being sued.

But if McLeod is willing to fight a lawsuit — and I think he is — the recording industry won’t sue him. The existing precedents requiring licensing of every single recorded sample would be overturned, and the record industry would lost the appearance created by these precedents, an appearance that makes the vast, vast majority of samplers pay license fees for their samples. It’s better business for the industry to let the occasional brave and creative soul feel as if he’s getting away with something than to have the industry’s precious — and ill-founded — legal precedents put at genuine risk.