Thoughts post-ILaw 2003

(entry last updated: 2003-07-09 19:09:26)

(I’ve been working on this long enough; in some respects, it probably won’t ever get finished – the links, for example – but I need to put this out and see what I get back. Those of you who were there, let me know!

Update: I’ve heard from Yochai that my concern about pragmatism stems from the colloquial construction of the term, while the ILaw profs were using the formal concept from political philosphy)

I found the survey that we were asked to fill out at the close of ILaw last night in my luggage.  I had such mixed feelings at the close of the conference that I didn’t want to comment until I had some time to think about the week more carefully.

I thought that my moroseness at the close of ILaw was just a natural reaction to the realization that the extraordinary group of people that I met there this year was about to scatter to the four winds – not to mention the fatigue associated with blogging the sessions (I am in awe of Donna’s perseverance; I think I’ve learned my lesson and will leave such things to the pros!)  However, upon reflection, I find that there’s something else to it, although it took me a couple days to put my finger on it. 

The New Structure

First, the positives.  As Terry Fisher described, this year’s ILaw was a significant departure from what had gone before, based in large part upon a set of structuring ideas credited to Larry Lessig.  These changes have, I believe, given the program a kind of conceptual integrity that was lacking last year, although there are some rough edges still to be worked out.

A look at the lecture topics can be used to show this conceptual structure.  According to my rough descriptions, we have the following course syllabus (thanks to Etienne for his help on assembling the URLs!):

(Aaron’s overall notes; Scott Rosenberg promises some, starting, it appears, with this bit on semiotic democracy; VentureBlog on Larry’s presentation skills; Jim Flower’s followup thoughts on meme propogation and conference


A first cut at this list suggests the following basic structure of the five days:

  • Day 1: Background and Introduction To The Concepts of Code (with a little antidote to the pessimism of Larry’s vision in the form of the blogging panel)
  • Day 2: The Layer Model of Communication and Freedom & Control at the Physical Layer
  • Day 3: Copyright and Culture: Freedom & Control of Creative Expressions At the Content Layer
  • Day 4: Freedom & Control in Software: The Logical Layer
  • Day 5: Emerging Issues In Freedom & Control and Wrapup

Here, then, is the key structural innovation brought to the course – the merging of the layer model of communication (physical, logical and content) with the framework from Code

that Larry used to describe the different mechanisms of control: markets, law, norms and architecture. While Larry’s now-famous mandala pervades all of the course, the addition of the three-layer communication model brought a very powerful way of framing a set of issues around a particular battlefield/layer.  And, because changes in any one of the layers influences communication, the presenters did not have to limit their discussion of consequences to a single layer.  I found this to be particularly effective (and not just because I spent the past term working on developing a course with the indentical layer metaphor as a basis!)

Essentially, we saw the workings of the modalities of control at each of the three layers of the model of communication, with a focus on the role of law and, to a lesser extent, the other modalities in shaping both the problems and their resolution in this area.

Some Missing Pieces

What I find interesting as I reflect on the week are the other models and structures that emerged over the course of the week, several of which were left unexamined, largely because they are part of the underpinnings of most legal education.  A short list:

  • The law as the handmaiden of equity rather than justice.  This is, as I have been led to believe, a well established concept within the legal profession, but it is probably not as widely appreciated by outsiders.  At several points, the audience was confronted with economic analyses of the relative costs and benefits of one type of control or another, and I’m sure that at least a few wondered when ILaw became an economics class.  While it’s certainly not the place for a reopening of a long-settled debate, I would think that a summary of this current construction of the law (as well as alluding to the economics and law movement, illustrated with a little Posner) would not only help the audience understand what’s going on, but would also give the instructors a context within which to explain why articulating the importance of intangible benefits (c.f. freedom, speech)  is particularly difficult in the current environment.

    Alternatively, if this is a perspective that the organizers of ILaw have differences with, I think there are some obvious benefits to hearing them air their views in this context.  Either way, with the large number of attendees from fields other than the law, there are good reasons for touching upon this issue, since so much of the arguments around topics in this area are based upon this sort of analysis (or the inability to conduct such an analysis).

  • Copyright as an instrument of government policy, rather than a natural right.  Terry Fisher brought this idea out only at the close of the class, yet it’s a vitally important notion in American jurisprudence that is being systematically eroded.  This was pointed out in the readings, but the fact that Terry pointed it out again on the last day suggests that it’s worth commenting on a little bit within the class.  Copyright is probably the most pervasive and potent instrument of a policy that formally restricts freedom of speech, yet it is enshrined in law because the benefits of that restriction outweigh the costs.

    Again, this is an idea that is part of any discussion of the evolution of the case law in this area, so the legal professionals will not need this exposition.  But it’s a pretty key concept in the explanation of the directions that the law has taken in the past that people without legal training miss.  And the interesting conundra (word?) that emerge are generally illuminating, at least they have been for me – (e.g. White-Smith Music v. Apollo)


But I think the hardest thing for me to work through was the almost universal assertion by the members of the ILaw teaching team that they are pragmatists when it comes to internet law.  

Over the course of the week, it was perfectly clear that each member of the team brings a substantial amount of ideological baggage to the effort – and this baggage dramatically influences their work.   The participants clearly do not inhabit the same indeological niche, but the claim of pragmatism is pretty hard to defend, particularly in light of not only what this group has accomplished, but also how they have accomplished it.

The claim of pragmatism was disappointing, in fact.  The thing that I have found so inspiring about this group is the degree to which they hew to a very clear set of principles (e.g., freedom), and the extent to which they have the courage to pursue the consequences of the application of these principles in the realm of cyberlaw.

Perhaps what they really meant to say was that they were not dogmatic about their ideologies – that they are willing to employ what works, rather than insisting upon ideological purity.  

I hope so; the realm of cyberlaw has already shown us that the consequences of poorly considered policy emerge on “Internet time,” and careful, principled consideration of both the problems and the alternatives is exactly what is needed.   The good certainly can be the enemy of the perfect, and progress is only going to come with a certain amount of compromise.  But, as we have seen in this area more than once, it’s also important to know the limits of compromise – at some point, principles have to trump expediency.


So, it was a great week all in all – an exposure to a set of extraordinary teachers, expounding upon a set of topics that is intellectually challenging and immediately relevant, with a host of issues that forced each participant to think carefully about the “whys” of some of the positions taken in this field today.

2003 July 9

(entry last updated: 2003-07-09 17:30:51)

  • I found this site yesterday, but couldn’t find a good reason to cite the WebCaster Alliance – things are a little different today: Webcaster Alliance, Inc. Alleges RIAA Anticompetitive Conduct; also in the Washington Post: Net Radio Group Threatens To Sue RIAA [pdf]

  • You knew it was coming: Google cache raises copyright concerns

    Google offers publishers a simple way to opt out of its temporary archive, and scuffles have yet to erupt into open warfare or lawsuits. Still, Google’s cache links illustrate a slippery side of innovation on the Web, where cool new features that seem benign on the surface often carry unintended consequences.

    The issue is particularly relevant at Google, a company that prides itself on creativity and routinely floats trial balloons for new features and services. Its culture of innovation may become increasingly risky as Google, which draws millions of visitors to its site daily and redirects them to others through secretive search formulas, cements its position as one of the most popular and powerful companies on the Web.

    At the heart of Google’s caching dilemma lies a thorny legal problem involving a core Web technology: When is it acceptable to copy someone else’s Web page, even temporarily?

    One more challenge to the infamous 1995 CONTU White Paper that arguably established the policy that all online copies are "copies" in the eyes of copyright law.

  • Hmmm – so how does the educational exemption work, exactly, given this suit: Major Publishers File Copyright Infringement Suit Against Collegiate Copies. Collegiate Copies WWW site; as this Indiana University Bookstore page says: "Also, the primary source for course packets at IU; you’ll probably make at least one trip to Collegiate each semester." I suppose I’m going to have to track down the complaint.

  • Larry Lessig and Cory Doctorow point to what Cory describes as "1937 public-domain radio propaganda" – a 6.4 Mb MP3 of a radio show illustrating the public domain by "freeing" some classic characters and giving them something different to do (recall this cartoon?)

  • I keep forgetting to post this, even though I’ve been seeing the article on every newsstand – from BusinessWeek: Hollywood Heist:

    Will tinseltown let techies steal the show? [pdf]

    For Hollywood moguls, that script is more terrifying than anything they could ever put on the big screen. More and more, the first showings of the latest Julia or Mel flicks aren’t in just the local cineplex. They’re on KaZaA, Morpheus, or iMesh, Internet sites known mostly for music file-sharing but now snapping up pirated movies with remarkable ease. Within a few days of Keanu Reeves battling his first black-suited bad guy in theaters in The Matrix Reloaded, an estimated 200,000 folks had already taken in the action, according to an online rating agency, downloading the long-awaited sequel in their dens and dorms. New episodes of HBO’s hit Six Feet Under are on the Net, too, and you needn’t be a computer whiz to find them.

    It’s all too reminiscent of the monster that ate the music business. For a town that loves a good sequel, that’s one repeat performance Hollywood isn’t keen to produce.

    It’s a very extensive write up, with a host of supporting materials:

  • The Register runs down the state of online newspaper/news access in the UK. Note the suggestion that is considering charging non-UK readers for content.

  • A different look at the copyright status of Happy Birthday from kuro5hin: Exposing the Happy Birthday story