ILaw 2004 Summary — So far — will be updated!!

Internet Law Program Homepage

Thursday, May 13

General Notes: Weblogg-ed, John Palfrey, CultureCat on Food For Thought, Copyfight on Food for Thought & ILaw, Jay McCarthy’s makeoutcity, John Palfrey, Scripting News, Infothought

  • Pornography – An Application of “Law, Norms, Market, Architecture”Professor Lawrence Lessig and Professor Jonathan Zittrain

    (FurdLog, CopyFight, Radio Jim

  • Physical Layer: Wires and WirelessProfessor Yochai Benkler

    (FurdLog, Radio Jim

  • Logical Layer: End-to-EndProfessor Yochai Benkler and Professor Lawrence Lessig

    (FurdLog, Radio Jim

  • Lessons from the Domain Name ControversyProfessors William Fisher & Jonathan Zittrain

    (FurdLog, Radio Jim

Friday, May 14

General Notes: Jay McCarthy’s makeoutcity

Saturday, May 15

General Notes: Jay McCarthy’s makeoutcity

Closing thoughts and summaries: Seth Finklestein’s iLaw mood piece; Jay McCarthy’s Notes; FurdLog’s One *Quick* ILaw 2004 Thought; Seth’s iLaw and movement; Dave Winer’s got a couple, this one to start with; Donna Wentworth’s Post-ILAW Post

Wrap up session

<< this is certainly going to be scattered — and if I hear much more technological determinsm talk, I’m going to scream! >>

The crew is assembling at the front……………

Terry: our last session, and I’m sure we’re all tired. We’ll start with the offered questions and see where we go

1) How do you talk about global internet issues? Law, norms, market, architecture — international examples?

I want to puch creative commons to show why it is about the global context of these copyright issues.

CC is to find a way to mark content with freedom; default (c) is no permission/no freedoms. How to mark them so that there are some freedoms given. CC flash promotions

A three layered license — a readable license; a lawyer readable license; and a machine-readable (RDF) llicense.

OPSound – “My Life” – continuing modification of a song released under CC, and people keep adding to it.

Larry convinced his publisher to let him relese it under a CC license; 200,000 copies downloaded (“spread”). Derivative works were possible. Within 24 hours, in 24 hourse, multiple, different formats; latest is a Polish translation; 36 hours, an audio version was collectively created. Aaron Schwartz put into wiki space; and the wiki will lead to a new set of expressions; things done with the book that would not have been done before.

So far, CC has had surprising growth; links to the licenses; 3 million linkbacks today.

Moreover, the kinds of choices susceptible to study. Everyone seems to want attribution. 2/3 want noncommercial purposes; 1/3 derivative purposes half of whom want share and share alike

Companies starting to incorporate CC into their products — MoveableType, and now other content creation systems also have it.

Music – the license can be embedded in MP3s; a bunch of music sites have adopted it. Music + metadata

A new kind of license — the “mash me” license — sampling allowed, but not verbatim rerelease.

It looks like Wired, this fall, will release a CD of songs under this “mash me” license.

AltaVista stores and indexes on creative commons metadata

Images; again in company products, including Ofoto

A simple way to share; lowering the legal barrier

Why is this critical? So much of our growth has come out of this class, ILaw. We want to spread this technology around the world. The international CC movement, converting the licenses into local jurisdictions. By the end of the year, 20 countries.

Larry’s plea: join up! Help us and do something. Blog it. But especially those of you from outside the US, help us to get these licenses into more local jurisdictions. If we can get 100 countries involved, we can make a showing that there are other ways to approach copyright, and that culture is something that you share, rather than own/restrict access to. Help us

Questions on CC?

Q: Do you think this will make a difference to the record companies?

Larry: It reduces the pressure on musicians. With musicians using CC licenses (who now exist), we can track sales for CC product and compare it with (c) product. And, with luck, the two will be distinguishable, in the market and otherwise.

Q: Can you talk more about finding ways that we can talk about global internet governance? How does the international commons work? In WSIS?

Larry: You tell us, Heather

Heather: OK – I’m not a lawyer. I heard about the international commons project, and I came to Stanford. So we changed the look at it from the architecture approach. We have a legal porting process, which converts the licenses. And then there’s a second stage which is a community building/outreach program that helps to leverage the development by raising awareness — to find out who is interested and helping to work with this sort of effort.

Larry: The US government has been an important ally — because they have been bludgeoning developing countries into adopting IP regimes that are very restrictive. Developing countries are seeking us out.

Terry: Other questions — an e-mail list of participants? OK

Desirable to know more about future events — fear not, you will get plenty of spam on the future of the programs we do

Yochai: I want to second what Larry had to speak to — this is so profound and potentially powerful.

The question — you said: “if two or three of us could put our watches together and make a car;” can you amplify upon what would that mean?

So much of the way we experiment into the way of doing has been along the axis of capitalism and regulated economies and the way we have spoken about them for the past 150 years. Moreover, there has been a set of dialogs on equality, public-private agreement, etc.

So, what if it turns out that much of what is both hard to do, and most valuable to do, has been information? Not cars, computers, etc? What if information is the really valuable creative product? If so, then there very possibly are a whole host of new ways to organize production, economies, governments — our lives on so many terms.

This is a moment in time when we have a chance to reevaluate the way we do these sorts of things — and allowing us to revisit and perhaps find better, greater solutions in the face of this new set of opportunities.

Z: I have a followup — if there’s been a common theme this time through, it seems it’s been the emphasis on creating and sharing. This is a new angle; in the past it’s been problems and how we solve them. This is a focus on sharing and opportunities in the area. The (*cough*Larry*cough*) negativity emerges, therefore, as opportunity threatened.

Sharing as a creative approach is now challenged by the way that lawyers are increasingly injected into the process of innovation, using the agencies that we have seen develop. And, while many have used the phrase “I don’t want anarchy” I’m not sure that we don’t actually want anarchy — an-archy- literally, without government. There are systems (Shasta County) where NORMs are the dominant and effective modality of functioning; the internet; this kind of collaborative work. And, with lawyers in the mix, this kind of work gets harder.

If we think of anarchy as creation and sharing in an informal fashion as the best way to get things done, then the hyper-legalization may be terribly destructive of an important mechanism of production.

Chaos, ok, not so good (star wars kid as an example of a destructive belnd of chaos and anarchy). But anarchy might not be so bad.

SCO case: what it very possibly will lead to is an over-lawyering of the process of creation that will destroy the social architecture of the process of creating open source/free software. The effort to channel all creative activities into the conventional channels (e.g., you can’t blog while working at CNN) may wipe this out.

A way to see the progress of this threat — right now, 8 hrs a day is spent watching TV; if TV starts to see less activity, they aren’t going to be happy.

John Palfrey: Does the government have an affirmative legal duty to protect us from posting of unauthorized things on the WWW? Well, this question raises the issue of what the role of govenment and big media has to do with content on the WWW. The most important metric is likely to be the question of collateral effects — bad speech, leading to bad law. I don’t think the government has an affirmative responsibility, but they do have an interest. How they express that interest is something to worry about.

Charlie: “What can we do to promote the use of F/OSS in developing countries?”

When we started the Berkman Center, it was centrally concerned with the tension between open and closed space. The initial goal was a search for balance, in the face of many interests that were pushing for closed.

It’s not about being all one or all the other — balance is the goal, difficult in the face of interests; particularly when one interest is able to assemble economic power.

A forming notion: will the internet drive a deeper wedge between the rich and the poor (countries and people)? No answer yet.

As we turn to code — the most effective thing that I’ve seen beyond Linux has been, in fact, Larry’s creative commons. It touches all the things that we care so much about — a Grade A Idea

On to code directly — Yochai’s talk was very powerful, particularly with education as a context. It seems like an open environment is the environment that makes the most sense for education. At this moment, HLS is considering moving from a proprietary environment (BlackBoard) to something open called the Harvard iCommons. MIT and Stanford, Sakai (sp? I have no idea what this is, sadly) is again being developed as an open platform for education.

GNU needed a Stallman; Linux needed a Torvalds. Can nonprofit insitutions do more to engender this sort of creativity? Univiersities, building open source educational environments, seems like they would be a good idea. Who’s going to organize that? Maybe that’s a Berkman Center project.

Elements of generosity, moderation and practicality — that’s what we need in this space

Terry: One more – IP – “There’s a policy issue of how to protect IP, and then there’s the implementation issues. Is the patent system broken w.r.t. business method patents?” “TRIPS and developing countries?”

First – to reiterate, none of us have been suggesting that IP should be dispensed with. Surely the case here. There are criticisms that make some sense to us; the substantial portion of the IP system is meritorious and should be kept.

Extension of patents to business methods (and surgical processes) was a BAD IDEA. Will they go away? Not in this political environment. So you use other criteria, like non-obviousness, that can narrow the applications of patents. Moreover, there seems to be a lot of loosness is TRIPS that would give developing countries to build in wiggle room.

Example: Doha- compulsory licenses for developing countries wanting access to drug IP

Another: duration – TRIPS mandates patents last 20 years from APPLICATION; nothing to match the US extensions that are built in to deal with FDA certification timetables, for example.

Alternatively, there are reasons where developing countries can tighten TRIPS.

Example: Ethnobotanists collecting information from indigenous peoples, taking the learning back to develop drugs that are then sold back to these same countries – viewed as a cultural imperialism. In the next round, local natural resources laws could be brought in as a problem with the current practice, weakening any patent so developed.

IOW, there still is a lot of room to modify the system within the constraints of TRIPS – it’s just going to take time and effort, but it can be done,

Final set: “what can WE, the attendees, do?” Let me turn that back onto the audience.

A: I think Larry’s example of getting kids creating and then letting people see just how much of what appears to be normative creation method is currently illegal. The debate has been misframed. Does anyone have more stories like that to illustrate this?

Terry: Other examples, other thoughts?

A: For developing country people, this was a chance to network with north american and eurpoean participants who can be collaborators and partners to work on this.

We are working on two levels in Africa; technology is expensive and not available. If you are using technology that is illegal, but you are improving health or some other inarguable benefit, then the government policy will get rethought.

Patty, Wellesley’s DMCA Agent: The intermediary for Wellesley in DMCA conflicts with the college — interestingly, no one has yet made a counter response to a notice and takedown

I wanted to say that I think that we do have a strong fair use argument — to keep fair use, we have to keep exercising it. I think that is a pushback that can be productive in this area.

Another action, this time on the digital divide: there is a digital divide here in the US, too. And it’s a problem, particularly today — nowadays, when it’s a small percent, the disadvantages are even greater and more difficult.

Finally, lots of effort went into wiring the schools in 2000 — not much since then, so there are a lot of computers out there that are now 5 years old, and there’s a need to work on this to improve access.

Larry: I just got an e-mail from a student who just finished my book, was thrilled with it, and wanted to put a 3 sentence quote in a paper; so he asked me for permission! The discussion of fair use in the book just went over his head — and that’s really upsetting and sad in light of what you just said.

Sean Leonard: From my standpoint as a dissminator of culture, there is this terrible problem that we have to deal with by having conflated copyright with property. To me, IP has little to do with what the law says; I recognize that a lot of work went into it. But, after I read it, and I absorb the notions and integrate them into the way I express myself, it’s now something else — in some fashion, it’s mine.

So what do I get to do with the thing I made of your work? What dimensions of control are really credible? And we should teach our kids to think this way; sharing is a good thing. It’s worth building it into the rest of the way that we create.

Seth: It’s not impossible for people to make a difference; it’s just hard. The defeat of the state super-DMCA was accomplished by the grassroots just showing up! So, show up!

Terry: Some thank yous – John Palfrey; Robin Myntz; Mary Bridges; Catherine Bracey (sp); Wendy Koslow; Jesse Ross *applause*

Yochai and John: The Internet and Politics

<< Getting ready –watching some sort of copyright infringing StarWars episode X – >>

Off we go:

John Palfrey:

This session is on politics – to some extent, all these sessions have had something to do with politics; speech, freedom, semiotic democracy, free culture, technologies and politics of control, privacy.

I strikes me that the job of this session is not to lecture, rather it is to discuss.

What is important here is first, the idea that these technologies afford individuals opportunities to participate; the second, more skeptical one, is that (1) there is no nature, this is a made thing, and therefore there are agencies who already may be stifling this; (2) of the political modes that the internet has been used, there is the question of how effective these mechanisms are — the “echo chamber” issue; (3) well, if the good guys can use these tools to do powerful things, can’t the bad guys do so as well — is there an inherent good in this set of technologies?

It is iterative and participatory, and it is a global set of actors/technologies who are involved – white guys from Cambridge Mass shouldn’t be the only ones heard here. Can we explore these skeptical elements here?

Q: M Goldstein, VA – one of the things we do is to post everything online; everyone has the opportunity to see what’s happeneing – a great benefit and a way to reach out; a way to learn about how laws are being developed – a way to get the laws written in a colaborative fashion.

John: are there examples of this working?

Q: yes – many

John: let me propose a couple mechanisms:

1) sustainable access in rural india – SARI; increasing participation via e-mail to have speakers

2) blogs

3) listserves


Deb MacKinnon – North Korea zone – a weblog that tries to create an information/knowledge community. Done at the KSG, used to work at CNN. The N. Korea story was covered in a frustrating way, and thought about using the internet to try to change the way that the story gets out; and what gets out.

This weblog is an experiement in this effort — North Korean Zone; a group of people participating to build content on this weblog; contributed pieces and Deborah is the primary author, using TypePad ($15/mo is the basic; TypePad Pro cost me $xx/month).

I set this up in February – a lot of information is mine; a lot is a fallout of e-mail traffic. I don’t worry about authentication/certification – rather, people tell me the following “” — I’m not into verifying; you, the reader gets to judge — and post a comment “what a load of garbage,” for example.

Traffic is variable — 500 visitors/day via SiteMinder stats. 150 subscribers to an e-mail list. If there’s an event in mainstream media, traffic rises.

I’m not competing with mainstream media; I’m trying to add more depth/detail to what is made available

A way to build an information society

Q: A skeptic speaks — my thesis was about Slashdot as a basis for discourse; effective? It doesn’t seem to scale, IMHO. So, you’re not trying to compete; when you get a spike from news action, do you have a sense of how the comments system can accomodate a flood of action?

A: Rebecca — I’ve been thinking about this limit — I went with TypePad because I didn’t know anything about HTML; the tool makes it easy to get my content up. I have some basic tools, but it’s not something with sophisticated comment management. I don’t have the technical skills to do that.

I think the point is to get the average person, rather than the HTML geek, to publish and get your voice heard.

Cindy Web: — would this have been allowed when you were at CNN?

Rebecca: CNN has a “no blogging by journalists” policy; MSNBC does allow it; I;ve been hearing that MSNBC is going to push this further. Different media companies are undertaking differnet strategies.

John: DOes this matter?

Seth: A quick rundown – Slashdot 250,000 readers; GrepLaw – 1000 readers; ScriptingNews – 5000; Seth’s site – 150 readers; it is complete nonsense to think that someone with 150 readers is equal to 150,000 readers.

John: Is this transforming of politics?

Seth: I don’t think so – there is no organization; and the power of the editor

Another comment: when I look at this blog; language as a barrier; English is the language of blogging it appears in so many cases. And that’s a barrier – translate is a barrier; automatic translation is needed if you want to get international scope — a problem with no good solution

John: But contributions do occur

Dave: There are so many ways that blogs are changing politics; South Korean politics appear to be far more effected by the internet and internet activism than here; in the Netherlands, the leaders of both parties are bloggers; Iran and Poland, IMHO, have a lot of activity – it’s really hard to have a lot of a grasp on this thing.

John: How is it transforming politics?

Dave: It’s the same thing that the internet does to everything else — disintermediation. Elimination of a certain kind of information monoculture/centralization. I think that’s better; 100,000,000 political parties is better and everyone has a stake in what happens in our contry

Rebecca: My favorite blog, The Religious Policeman – a Saudi citizen; sense of humor; very critical of a number of things; a liberal attitude;

It’s the blogging in these kinds of ways; a look into a country in a way that I don;’t get through conventional media

John: How is this better?

Rebecca: We are relying on something other than the professional press and our government to learn about whats happening in other countries without these kind of mediators.

John: Dave talks about a more energized american politics based on american blogging; you’re saying that the american politics will be improved by access to foreign blogging

Q: Tim – I find that all regimes of thought are trying to persuade you that, if you disagree, you are alone, and insane. Blogs tell me that, I may be insane, but I’m not alone.

Yochai: Diebold as an example – students at Swarthmore (and at Harvard) put a host of information up about the failures of the electronic voting machines; put up and working together to coordinate civil disobedience (students involved)

The university gets a notice and takedown letter under the DMCA; alternative mechanisms like FreeNet, EDonkey — this would have taken a much longer time in the conventional press. Yet, we already have action in California and now Ohio

The Hamas Weblog

Dave: There’s the Trent Lott tale — Trent Lott’s foolish comment at Strom Thurmond’s party; ABC ran it and dropped it; weblogs ran with it and it

Chuck: The power of the blog depends on who’s reading it

Larry Lessig: Reading is important; but writing is also very important. It forces people to express an argument; it pushes you, because you are speaking “in public” means you have to have a better argument — discourse is dialog, not shoutdowns

John: Just by starting a blog doesn’t mean that you’re going to write like Dave Winer and Larry Lessig – is it about quality or quantity

Larry: It’s not about quality; it’s about the act of writing – thinking about what you have to say is a worthwhile exercise — and saying it publicly reinforces not only the effort to make a good argument, but you also have planted a stkae in the ground — you are more committed

Dave: I just want to amplify — your mind is a muscle – using it makes it stronger. Phil Greenspun writes to get stuff into Google; he doesn’t care who reads it directly; the Google search on personal experience will get traffic to a blog on relevant experiences

Q: There still needs to be a kind of mediation; publications seem to do this, in my opinion

John: There does seem to be some empirical evidence (not yet for attribution) that paid media as a powerful driver to acessing web presences like blogs/email subscriptions

Q: What about in a country where you have a polarized populace; ethnic tension; hate ideologies get pushed; any indication of the extent to which hate ideology is pushed by weblogs? Success rate?

John: A Google search on FARC shows a competing set of page ranks between pro- and anti-position

Q: People used to say the same sort of thing about bulletin board systems (BBS) In Yugoslavia, BBSes were very powerful stabilizing influences in Yugoslavia.

Q: The Southern Poverty Law Center (recent study) says that there is an explosive growth of hate groups on the internet. (challenged on the idea of more speech, unattractive speech) Hate groups seem to be able to use this tool effectively

Q: Self selection has a big part to do with the effectiveness; broadcasting allows you to find others who agree; blogging seems to lead to the echo-effect.

Jim: People self organize around groups naturally anyway; agreement means they will tend to pay attention to each other; media are always going to lead to this. The politics is about who prevails.

You are lowering the transaction costs of entering the conversation/joining the group. The internet gives a tool to lower the cost of search — it’s jsut cheaper

Yochai: Cass Sunstein’s thesis is that, yeah that’s true, but the broadcast system tries to capture a large audience. The aggregation will lead to a kind of exposure to things you don;’t agree with; blogging as narrocasting allows you to create your own echo chamber

Comment: The socialization means that you are trying to communicate; to think online; to express. The empowering that blogging gives you is great (sorry)

Terry: Republicanism and liberalism — the ideology that powered the break with England with the ideology of classical republicanism — involvement by a virtuous citizenry in the public discourse; corruption of this citizenry would be the collapse of involvement and pursuit of personal interest only; the liberal vision, that came to displace that suggested that private activity was a better thing to pursue over public industry

Madison was a speaker of this action; he wanted liberal/personal focus rather than active involvement/republicanism/Jefferson — episodic involvement only; constant involvement scared him. He feared fanaticism (religious) that fed off one another and would swamp the activity of the republic.

Larry’s vision of blogging matches the Jeffersonian view; Madison would be opposed to this kind of this sense of how American politics was supposed to work. The blogger revolution would be to flip us back to the republican/Jefferson view.

Yochai: I wouldn’t agree — the republican view was about a single view; not about a fragmentation of groups

Terry: Nope – there definitely was a preference for fragmentation; a desire for less united viewpoints

Dave: If we can all be rockstars in our own little universe, then why should we have to compete with a monopoly that gets all our money? I think that the flip is coming.

Polish speaker: the idea of blogging without thinking about money is a great thing. I would hope that there are ways to organize without monocultures of ideas. It may be about finding a way to make them easier to form.

Yochai: I want to extend this discussion; the traditional look of politics and text/bloggin has confined the way we have been speaking. I’d like to expand the horizons of our conversation

Two other domains — the search for equity/global equality is one

Here’s a letter from a Peruvian congressman propounding the use of open source in Peru — (find link from blog) — a cheap way to come to the necessary knowledge to boot strap your way into the information economy

Wales: got a new parliament recently; open wireless networks got set up because it tool too long to get broadband from the british monopoly

Canada: a telemedicine network using open wireless networks

How does this all map to questions of justice/equality/equity?

There also is the point of cultural politics —

The use of cultural artifacts to make political statements

The David Berg clip is briefly played — and the room falls completely silent

Yochai: the power of a clip – listen to the silence

Blogs aren’t the only instrument for expression of political thoughts

One last thing – semiotic democracy, a critical culture.

( – the source of the StarWars episode X?)

A claim: these are various domains of freedom and equality that are at stake when we worry about open and closed networks

John: Is this just neat, or is it something that has an effect.

Yochai: Wrong question — it’s not the consumers/consumption, it’s the writer/maker/producer

Venezuela: The internet is being used to establish a political dialog; web pages, making movies, e-mails — both sides of the political argument. Once, politics was just the domain of politicians, now many other people see that they have a stake and a basis to participate.

John: Aren’t these tools also usable for restrictive, rather than liberating, uses?

Yochai: That’s a misframing of the question; when you say “use these technologies” you really mean “attempt to squelch these technologies.” There may be no nature to the network, but there are a set of norms, practices, behaviors that react negatively to some of these kinds of attacks on the use of the network, and they will oppose.

John: But what if there is a culture that embraces repressive notions?

Q: What’s your point?

John: (I cannot repeat, but essentially he raises the idea that aren;t these technologies determining of an open culture — a technological determinism argument, I *think*)

Comment: I’ve been troubled by the assumption that people blog for the same reason. There clearly is a diversity of rationales; there is no monoculture here. The role of blogging is going to depend upon the environment within which they occur. I would expect that the impact will depend upon the culture from which they spring.

Why is it supposed to be one or the other — success or failure of blogs?

John: Larry says that participation is enough; is it?

Continued comment: Sure, but there’s still the question of whether the motive matters — do they really have an effect on the politicl discourse

Will: It’s not just who writes; it’s also who reads and what the readers elect to do based upon what they read in blogs. The readers also matter, IMHO

Clancy: I think there’s a distinction to be made between the “link and run” blogger and the editorial writer with the well-thought-out 1000 word essay. And then there are the comments; they also add to the discussion or they’ll just flame and run. Larry’s point that being forced to think is an important one, because it means that you’re also speaking to a public

Comment: What are we talking about here?

John: I have a simple(minded) question — is it possible that the use of these technologies, can they be helpful to us, leading to a better political discourse? I think it’s a good thing; I want more pampheteers; but it’s worth being skeptical. There are some good questions that need to be addressed. Is it great because we write? Because someone reads? Because it’s circumventing the media giants? Or something else?

Yochai: We have another session coming; we can continue some of this there.

One question: in this priviledged environment, we get some of these benefits; does it have a life outside that domain?

While they permit a certain kind of anti-authoritarianism, where does it fit in this discussion of political discourse.

John: Closing words of Code suggest that we are still “mucking about” in this technology; maybe it’s just the mucking about that matters and empowers us.

Nesson and Kang: Privacy

<< Getting ready — announcement of blogging training for those interests – 6:00 at the Berkman Center >>

Jerry Kang, introduced by Charlie

(talk using MindManager — a tool to look into, IMHO)

On his WWW site

Why do we care about privacy?

What’s new?

What might we do about it?

Why do we care:

Information privacy — control over how data is collected, used, and distributed about me – confusions: who gets to decide; this is mine by territory

Really, we want to talk about processing of data; about me.

Why do we care about secrecy? Some examples

  • – avoiding embarrassment (we all pee, but we don’t need to see a picture); averting misuse (identify theft);

  • – constructing intimacy (allows secrets to be the currency of social relations);

  • – dignity (privacy to construct our personality, allowable mistakes as we experiment with defining who we are; respecting our automony to make choices – if you only do things that you should presume will be on the cover of the NYTimes, you will probably edit your actions – distinction between bird-watching and people-watching/surveillance);

  • – democracy — part of the experimentation argument; why secret ballot? no anonymous decisionmaking is an important idea of democracy

There are counter-values, of course:

  • Commerce – information is needed to accomplish much of market clearing; credit; insurance

  • Deception – your public face and your private face; we are allowed to present ourselves differently according to context; deception as a strategy that may be beneficial, or not — we want to defeat some kinds of deceptions

  • Free expression – again, freedom of speech is a protection, too. If I know something about you (e.g., a airline pilot seen drinking before flying), why can’t I share that information?

So, it’s a balancing act.

What’s new with the digital age?

Technology – the technology of cyberspace; the content of data collected is

-very detailed — the interaction itself *IS* data

-computer processible – created within a computer; it’s immediately processible

-indexed to the individual – unique identifiers, IP addresses, cookies, registration

-permanent – computers don’t forget; storage is cheap

(compare with picking up a magazine in Barnes and Noble – all this sort of data is collectible, but it’s hard, not really saved, etc. But, look at it online, and you’re always broadcasting who you are, and what you’re doing — and computer is monitoring and saving it)

It’s just become incredibly cheap to collect and save data

Also under technology — the players in the game are different – something like Google, as the one-stop searching shop, knows EVERYTHING that EVERYONE is doing – even if they never share, they still have it and can act on it. Now that aggregation is easy and doable, some things that privacy protects us from is now doable.

Another techno-game on the horizon — pervasive computing; RFIDs in everything; sensors everywhere; all networked together/self organizing mesh networks — so, you can never log-off; and the economics of data collection in real space will start to match that of data collection online

Politics – the all-seeing eye is a 9-11 thing; note that the state can subpoena private data (irrespective of the privacy policy that is published) Note that the state also frequently buys data from commercial sources. the public/private boundary is blurring

Law as a weak constraint – the law is not great at managing this; right now, we largely rely upon self policing of firms; the online privacy policy notice is about it (FCC/deceptive business practices)

As we “cyberize” real space, this is just going to get a bigger and bigger issue

— comments/questions —-

Q: VA general assembly — another countervailing idea to the privacy ideal is accountability/the flip side of deception – sins of omission

A: Agreed

Q: Luke of USC – when things get put into a log/record/dbase entry, they take on a life of their own, irrespective of the correctness/timeliness of the data stored.

A: Which way does this cut? Accountability versus rehabilitation? This is a great example of the balancing problem. Who gets to decide which way the privacy data goes?

Our mental health depends upon our ability to forget/to put things behind us. Yet, this domain forces us to confront this issue.

Q: Another issue — collecting information that’s incorrect, yet difficult to correct – accuracy and correctability as a dimension of working to avert misuse

A: Your digital doppleganger – your data record that follows you around; some say this is something to resolve with BETTER data collection; others say that this means that some things should not be collected

Q: As a newsgatherer, there’s the issue of finding the boundaries on what is legit and illegit newsgathering. The weak constraint in the law does seem to have some effect here. (Food Lion case — sanitary food preparation learned of through deception)

A: Here’s the reaction – – not an expert — it doesn’t seem obvious to me that there is this clear schizophrenia of news vs. online data collection. That doesn’t seem to appear, largely because the salience of privacy invasion is not always apparent — we don’t always have the invasions thrown in our face when we deal with this online, while the newmaker is doing to throw the findings in your face. As an individual, your power to respond is weaker than that of Food Lion/companier

Q: The welfare state and privacy – another tension

A: Distributive justice is hard to accomplish without knowledge about individuals – benefits mean giving up some privacy


So, what to do about this??

Form of the debate:

A clash of civilizations (america v europe)

america – market talk; privacy is a widget; let the market do it; exercise your freedom in the market; exchange for value; and in a good market, we get allocative efficiency – kind of a caricature, but this is a good short term mechanism

europe – dignity talk; privacy is a fundamental human right; we do not auction off babies; we let the law decide what it a fundamental human right.

Substance – turning to the substance suggests that the ultimate elements are the same.

at the core, they seem to be the same.

– Dignity talk says (consent is required) (apparatus to ensure that there is a process to protect consent)

– Market talks says (clear property rights needed/so who gets initial entitlement?/many possible results/these days, it’s largely in the commons)

there are good reasons to think that efficiency emerges when you give the entitlement to the individual — same result as dignity talk — (asymmetries and collective action theory says this works)

Moreover, we also need a lot of mechanisms to deal with intangible property; analagous to the requirements asserted in the dignity talk

So we are largely likely to end up in the same space? Aren;t there some real differences?

Dignity talk hates the market approach because there’s too little control for individuals to exert; individuals have a hard time making a good bargain. Rather, the system is set up to fortify the individual’s position in these situations.

But, market talks can also lead to fortifying individuals; contract law has lots of instruments to do this (objection on my part: isn’t this like Larry’s objection to fair use – you need to litigate to get this?)

Market approach says that the dignity approach is too stilted — there are situations where the balance of interests should go against privacy; the market achieves that balance more efficiently

But dignity talk leads to systems that explicitly generate exceptions to the dignity right within the supporting instutions created.

So what am I saying? In form, there is a huge clash between the human right-market widget argument (the philosopher and the economist); but there are core similarities.

Dignity’s consent can be accomplished by giving the initial entitlement in the individual; then you get essentially the same situation

Dignity’s institutions are going to be needed to protect this new kind of intangible property

Moreover, (see above) the critiques also end up fully parallel.

So, it may be that we will all end up in the same place; and it may be that rather than arguing about which regime is “right” we should move on to the real, mechanical issues that are the same for both.

——— Q&A ————

A: A general question about the relationship between IP and privacy regimes that we create to make the market system work.

The technology can work – digital privacy management vs. DRM

Moreover, it offers up a pushback — if you want to protect your IP, why can’t I protect my privacy? Is this your self interest, or is this a principled position

Q: Amazing that you haven’t raised the reasonableness test — that was at one time a dimension; the “reasonable expectation of privacy” is sort of out the window? Have we lost something?

A: The wiretap introduced a need for this more complex notion of privacy. It sitll exists, and there may be different statutory regimes. It certainly exists still? Even though the standard exists, it ends up in a kind of circular argument — the expectation is tied to the technological context; if the culture is not “aware” of the technology, the standard shifts.

This makes people think of this standard as bankrupt; but it’s still in the law. The familiarity with the tech changes the notion of reasonableness

Q: Any sense of how many people have opted out of certain financial data disclosure policy stuff that we get in the mail?

A: Well, I don’t know the data; and I know that I haven’t opted out. This is the so called “sticky default rule” — the supposedly mutable rule is so hard/messy/time consuming to actually change, we get into trouble.

This is why the idea of initial allocation to individuals; possibly to even establish inalienability


What can we do to reframe this debate?

1) soft pedal the concern about market talk/dignity talk – unproductive

2) the substance is something we ought to be focusing on

a) who gets the “thing” – the initial entitlement

b) how will the choices get made, and how to ensure that the decisionmaker is fortified to do it well/effectively – this is where inalienability may emerge (can’t ask, can’t tell) – there are lots of intermediate forms of the way we might frame/constrain the kinds of exchanges that we will allow; ability to correct

c) what are the societal overrides; what is allowable contexts within which we can override the rights/market actions of individuals. How to pick/adjudicate/etc.

d) How much supporting information infrastructure needed to enforce – various flavors

That;s the claim — answer these four question, rather than talking to me about dignity or markets

Q: Let’s try an example — GMail — how does this work

A: GMail – you get a Gig of space for your mail; you have to put up with ads in your e-mail; no human sees your mail (unless the government asks for it); the computer reads your mail to pick the ads; your address won’t be disclosed without your permission (or if we go out of business)

1 Gig – the system never forgets; you have identified yourself; and your e-mail info is now tied to your searching activity

a) Initial entitlement – you agree to the service; until you decide to get the service, it’s yours. Of course, the email you receive is also scanned, and the sender may not have agreed

b) fortifying the individual; lots of notice; do you allow individuals to say yes to the GMail exchanges that are proposed? Or do we need to fortify the individual?

c) societal overrides – what does the government say about this? the electronic commerce protection act speaks to this; the opportunity for law enforcement access can be quite troubling

d) supportive infrastructure — create acces rights?

In Jerry’s mind, the big question is the fortifying of the individual? Can you say yes?

Q: Mitch – It’s still about the reification of information into a moveable form; it’s not the collection, it’s the conclusions drawn from the aggregation of the bits. The conclusions drawn from the bits (with lots of processing power) make it too easy generate conclusions that are hard to escape.

A: Yes, reification/digitization makes it awful; the data trail will get bigger; and we will get more comfortable with giving out information. The question is will we come to a point where we will be prepared to discuss this; and then to draw some lines in the sand?

For example – suppose I could teach my cell phone to let me know when I’m being scanned; the moment for that is now, before the technology evolves past our point to generate the architecture that we need to engender the kind of political discussion that I’m talking about.

Time is of the essence — if we wait to long to engage the development of these technologies, we will miss the opportunity to set up a way to explore these issues, and to set up a possible set of architectural/institutional features that will help to fortify the individual in this regime.

Terry and Jonathan: SCO and Software Patents

<< We’re starting to assemble; it seems like everyone’s Food for Thought Dinners went well; certainly we had to be "asked to leave" to make room for more clientele >>

"rights in software + the SCO case" — the title slide for “Z”

"Intellectual Property Protection for Software" — the title slide for Terry

And it looks like Terry is “lead off” speaker — first, announcements

this is a new room; how to work the mikes

we’re handing out a questionnaire; turn it in to get your certificate

The topic for the morning is software; I’m going to concentrate on the IP aspects; Z’s will concentrate on open source and the current SCO controversy

It will be interwoven, so look out!

Basic propositions:

1) What kinds of activities might a s/w developer want to control?

– consumer reproduction of object code

– commercial reproduction of object code

– incorporation of parts of source code in new programs

– preparation and distribution of improved versions/derivative works

Note that these are going to blur as we discuss the topic, and with luck, we will come back to having to keep these 4 in mind

2) So what protections are available?

– Trade secrecy




A trade secret is: a commercially valuable process.

It must have been initially secret; effort must have been made to keep it secret, and it must be commercially valuable

Liability comes from (1) breach of confidence; (2) discovery through “improper means” (not reverse engineering; but flyover in an airplane might be)

Starting in the 1950s; s/w producers relied upon trade secret; courts held that the source code is secret, but releasing the object code, qualified as a trade secret


decompilers are getting better and better (reverse engineering)

no protection against the piracy of object code

limited production against downstream consumers

consumers WANT the source code (forfeit trade secret protection if you give it out)


don’t sell, license the software – extract promises not to do things like:

– cannot resell

– cannot rent

– no claim of warranty

– no reverse engineering

– overrider fair use

– no contest of patent of copyright claim

Are these legal? Certainly challengable and lots of tussling. Largely upheld, although there are some limits

Pro-CD v Zeidenberg; Bowers V. Baystate Technologies

UCITA tried to embed this; largely as a result of law professors, this was stopped; adopted however in some state jurisdictions (Virginia)

Copyright Law

1964: software can be registered; but object code versions might not actually be copies

1978: CONTU recommend full copyright protection to software

1980: Congress adopts

1992: EC Directive 91/250: adopts s/w copyright

1994: TRIPS Agreement Article 10(1): adopts s/w copyright



-derivative works

-first distribution

-public performance

-public display


-fair use

-merger doctrine — says that an idea cannot be protected, only the expression thereof. If there is only one way to do something; then you can’tprotect

-essential or archival copying

Apple v. Franklin – CA3 1983

Apple builds computers and also builds operating systems; Borland was given free access to create applications

Franklin computer company also makes computers; but sales depend upon running apple programs

So they copy the operating system;

Apple sues – Franklin made a copy

Franklin – we just copied the Apple o/s which was the only way that we could embody the idea of an apple O/S (merger)

Court decides – sorry, you have to make your own; (nice try!)

Over to Jonathan:

Alright, so now you know about the protection methods; let’s dig a little more into copyright, by starting about GNU (What do the Lion King and a penguin have in common?)

A cultural war afoot about copyright; many battles about understanding how creative work should be treated;

Let’s talk, then about copyright and software;

1969 – AT&T creates UNIX; did AT&T own UNIX? possibly, but Bell Labs decided to share the develoment

1974 – Berkeley UNIX (BSD)

1982 – BSD as the basis for Sun Solaris

Leading to a terribly complex software ecosystem with many parents and many versions

1984 – important year; AT&T signs a consent degree in the AT&T breakup of longdistance business. As a consequence, AT&T could now compete in things that it had been previously required NOT to compete within.

Richard Stallman decides that a new version of UNIX is needed; forms GNU – GNU’s Not Unix – see the homepage

OTOH, GNU is supposed to be “a” unix, but not AT&T unix; how to create an o/s that works like Unix, but it isn’t unix — that’s the goal – to make that unix

Approach, keep replacing bits until Unix becomes all non-proprietary

2004 – state of play – features

Public domain, free (copyleft), Proprietary

Public domain

– works (edible cake)

– source code, for the most part (see the recipe)

– no license terms

– development model hard to perceive


  • – works (edible cake)

  • – source code – the defining element (GPL) (recipe)
  • – licensing terms – the general public license (more generally, the ‘copyleft’) (to block enclosure; conversion to proprietary)

    the general public license — you can modify or copy the program and distribute it; provided that you put everything under the general public license (thus, the source has to come along with it, since that’s part of the license)

    (Note that if you don’t redistribute, you don’t have to make the source public)

    You can still charge for the physical copy of the work

  • – open development model — comparable to a barn raising

    not entirely random; there are systems that have sprung up to organize to develop


-works (edible cake)

– NO (more or less) source code (no recipe)

– license – there are many, largely stating that all you get is the object code (the cake), but you can’t do anything else without asking

– closed/firm-based model

Is it credible that a bunch of randoms can get together to build something as complex as an O/S? Hard to say, but some things to seem to have worked.

Eric Raymond evangelized the idea of open source without scaring people (stop talking about “free’; stop talking about “abolish copyright”) talk about open source development as one that builds better software – successfully managed to make open source/GNU not a scary challenge to the prevailing ideology

So, we get SCO as a player in this game. SCO would sell Linux (rather than GNU) (Stallman wants GNU/Linux — long story) – very excited

Major disputes in software – back to Terry

Recall we ended with copyright.

3 varieties of s/w; public domain (no protection); free software (uses copyright to stay free); proprietary (depends heavily upon protection)

As copyright law evolved during the 1990s, it evolved into ways that were not encouraging to developers – talk about 2 in particular

Reverse engineering — different firms have adopted different strategies to deal with interoperability

1) free access – enough access to how the o/s works to let developers write applications

2) license fees – not generally available ; only provided to licensees ; lockout programs used to keep licensees from running applications (game hardware makers) — third parties elect to reverse engineer the lockout schemes (by copying the program that achieves lockout, and figure out how to circumvent it) and then their games will run (?copyright infringement?)

courts decide that this is essentially “fair use” — a strain to call it fair use, but the courts have done so – Atari 1992; Bowers 2003 (CAFC)

Ineffective enforcement – doesn’t seem to be terribly effective

Note, the statistics that will be shown are from the Business Software Alliance – generated via some ugly statistics, assume that all computers run the same software and any imbalance between hardware and software sales must be because of piracy

World piracy rate around 40%, more or less; regional US(25%) eastern europe (70%). If you look at $$, the losses are largely in Asia and the US – a list of shame (you can get it from the BSA WWW site)

Within the US, the piracy rates vary by region. Mid Atlantic is low, south central is high. BSA thinks it has to do with population density — the higher it is, the lower the piracy rate (odd?)

Terry has an alternative example — Blue v Red states (Gore v Bush) or above and below average piracy rates — interestingly, Red states (Bush) correlate with extent of votes for Bush *laughter*

So copyright seems to be evolving into something that do not give software developers the controls that they would really like

Back to Jonathan:

The SCO v IBM case (another form of internet gambling — possibly gambling with the future of the internet)

Recall, SCO and linux were working together. That was the old-SCO; the new-SCO is a little different. “We’re developing new and innovative licensing schemes.”

How did we get here? Recall the history of Unix; long path. In 1986, IBN makes AIX under license with AT&T. GNU Linux emerges out there supposedly independent from the AT&T codebase.

Novell decides to get Unix from AT&T. SCO emerges from the shambles of Novell’s unix foray with the rights to AT&T’s unix (1995)

Caldera emerges as a GNU/Linux consultancy. (1995)

The old Caldera and SCO bonded (into Caldera) to bought the AT&T rights; and then Caldera renames itself into SCO.

In 2000, IBM starts to contribute to GNU Linux.

And SCO says, wait a minute; the stuff you contributed, either from AIX or based on your original AT&T license, is owned by us – and now Linux is tainted because it has stuff that we own in it.

SCO is not just blaming IBM in this. They also argue that the interoperability efforts (done by copying source at the outset and then running to reverse engineer) also make Linux tainted. SCO says you stole stuff to make Linux (can’t say who, a bunch of randoms). We’re going to sue end user

Also embedded applications of Linux, like TiVo. We want $32 dollars for each one – why 32 – who can say?

Consultants offer up suggestions to “assess your exposure” – not terribly productive; in fact counterproductive.

SCO says they are going to sue an end user — pay for the amnesty ($600-700; plus accept our restrictive license) or you might be the one that we sue.

SCO ups the threatening letters; targeted to each end user (e.g. Lehman Brothers shown) Good lawyering, says please talk to RedHat, and stop bothering us.

Online attention – the SCO countdown

Targets — AutoZone (and Daimler-Chrysler)

What’s really going on? Note the rise in stock price with the announcement of the suit; peaking when Microsoft forked over $10mm (estimated) to get a Unix license. Microsoft has disavowed any “strategic” intent in offering up this money.

SCO – a company whose fundamental premise is based on lawsuits.

(Note that copyright has driven this discussion to date)

Back to Terry: and we’re now going to look at software patents

With the weakening of copyright and s/w; a new system emerges. Patent law.

Originally, patent law comes in two flavors: product and process. This keeps expanding – designs; pure substances; genes; special statutes for plants; animals; surgical procedures (revoked?); software; business methods

List of relevant cases; Gottschalk v. benson; Parker v. Flook (NO)

Diamond v Diehr (maybe if machine); turned over to the DC circuit, who keep relaxing the rules. State Street Bank — repudiates the business method patent as well

Lots of these patents – over 100,000; US leads, but other jurisdictions catching up.

EU now also seems to be on the verge of accepting this notion.

Intriguing subtleties; but we need to jump to the fundamental question?

“What sorts of IP Protection (if any?) are appropriate for software?”

How should the legal system mediate the battle between the open source and proprietary s/w world? What protection should be extended to proprietary software.

Most economist say the justification for extension of patent when these 6 are met

1) high R&D costs

2) high uncertainty of success

3) content of advantages can be figured out by competitors

4) advances can be easily mimiced

5) money is a strong, necessary stimulus to creation

6) innovation is not cumulative

For example, pharmaceuticals (possible except for 6) meets all of these.

Software is on the weak end of this measure

1) it’s cheap

2) you know you’re going to make something workable

3) reverse engineering is hard; decompilers not that good; lock up the cource

4) yes – this is true

5) really? what about GNU? Yochai’s talk

6) definitely cumulative

So, as far as economic theory says patents are a bad idea; empirical evidence tends to support the thought that patent protection is not a core element if software business/innovation in this area.

So, SCO’s struggle using trade secret and copyright to defeat open source may be depending upon a theory that doesn’t really obtain in the real world;

Charlie: Starting in 1984, the US IP crowd starts working on using the trade treaty strategy to extend US copyright/IP rules to foreign jurisdictions (TRIPS emerges and is now an international strategy, with Microsoft at the base of it)

Moreover, the notion of open forms has been around software; and many governments have publicly suggested they should support this; employ these tools instead of paying the Microsoft tax; a US company. Maybe governments should be putting more behind open source.

At each point, the Microsoft response has been to (1) tolerate piracy — network effects/lock-in; (2) lobbying directly and through State Dept against open source and (3) offering discounts and giveaways to keep Microsoft tools in use.

Education in particular seems like a place where the ideas of open source/free/collaborative development — this seems like a no-brainer; yet this is hard to promote and proprietary interests keep pushing this idea into the background.

Z: Yes, the absurd is the profound; it helps us to think harder.

We incentivize firms to promote their interests — that’s their job — we can’t demonize Microsoft for doing what comes naturally. What we need is government and public interest to channel their competitive urges into other avenues that are more productive for society

Luis from Ximian/Novell: To clarify, I’m a GNU user and developer. Yes, Novell keeps turning things into trash, but they do seem to be considering a change.

First demonizing: Microsoft is sponsoring the Irish president’s (www site?) — Irish Presidency sponsored by Microsoft (note that the Irish president is the holds the revolving EU presidency)

Second, the EU Council is going to push for s/w patents over the vote of the parliament

My experience is that the ideology of GNU is more accepted overseas; why don’t we use it more

Tim Granton from Microsoft: set aside the demonization – I think a lot of the debate is framed into the binary way – free or open/public or private — the polarized nature of this gets in the way of getting things done. The question is what’s the appropriate mix – and what soft of IP will give you the kind of innovation that you want. What IP protection scheme does a country want to set up to get development in these jurisdictions — that should be the focus

Terry: Followup questions? Want to talk about shared source? And why is Microsoft so aggressive about patenting software?

Tim: Sorry, don’t know enough to comment on shared source. And I’m not a patent lawyer, either. From a corporate perspective, when you examine your assets, you want to protect them. I would disagree with the economic analysis; there are some things about software that means that there should be patent protection.

Copyright is not working terribly well, though-, particularly with the Internet

Q: Is the alterntive compensation system applicable in this situation?

Terry: Probably not; software is far less fungible than music, so it’s really hard to use simple tracking technologies to value the IP.

George: Why patent protection is more attractive? Looking at the 6 point list, the first item (particularly the need for human factors/interface/etc) suggest that you have to pay a lot to get stuff to work

Q: If you are trying to protect something like software, where innovation is cumulative, unlike movies or music. Is there a way to differentiate betyween the two so that Valenti doesn’t end up being a proxy for Bill Gates?

A: Looking at the economic list; and assume that some of the first elements do obtain, what might you do? You could define specific legal instruments that would control basic release (protect against piracy), but would free up derivative works.

On the tactic, we are seeing the success of a deliberate campaign to turn copyright, patents etc from “limited monopolies” into “intellectual property” — and we conflate copyright with property rights. It looks like we’re past the point of no return on that issue.

Finally, the global campaign that Charlie raised. Yes, it has been vigorous and successful, particularly in developing countries — the so-called TRIPS+ — people are being asked to sign Title 17 entire to get foreign aid, trade, etc. — even though most provisions are completely irrelevant.

On the other hand, the enforcement of these rules is not terribly good; and it may be a deliberate government strategy – a classic pattern of helping local companies to develop products that can be sold in zones of high copyright protection (maximizing rent seeking)

Z: We have lots of discussion pent up, but we’re out of time……

Pulling It All Together

<<Oyez, Oyez! Calling All ILaw 2004 Participants!!>>

For last year’s ILaw, I constructed a page that collected together as many of the blog entries on the event as I could, organized around the class schedule. I’d like to do the same with this year’s event, so please feel free to point me to blogs that help to chronicle the events and I’ll pull something together after we’re all done here — you can e-mail me @ furd at

Thanks!!! (PS – I promise ONLY to post links and a schedule this year, and will save the editorializing for a separate entry <‘G>)

[Rip. Mix. Burn] Rinse; Repeat

Hip-Hop Review | RJD2: Dissolving the Border Between CD and Live

What changes when a live performance is recorded? And what changes when a recorded performance is brought to life? The hip-hop DJ and producer RJD2 stacked those changes on top of one another on Thursday night at the Bowery Ballroom, collapsing four generations of musical transmission into one performance.

Watching him hustle back and forth between his sequencer and four turntables, it was impossible not to think of how those records were made. At one point he suddenly added “Good Times Roll,” by the Cars, to the mix, manipulating the song just enough to remind listeners what they were hearing: not merely a Boston new-wave band, but a Boston new-wave band transformed by the journey from studio to vinyl.

Katie Dean’s Coverage of Terry Fisher’s Proposal

New Spin on the Music Business

Harvard Law School professor Terry Fisher detailed his proposal Friday at the Internet Law Program, a three-day event sponsored by the school’s Berkman Center for Internet & Society.

Fisher advocates an alternative compensation system that would pay artists based on the popularity of their music. Artists would first have to register their work with the copyright office, which would track how many times that work was downloaded. Revenue generated from taxes on things like Internet access and the sale of MP3 players would then be used to pay the artists. Similar plans have been proposed by the Electronic Frontier Foundation and University of Texas at Austin law professor Neil Netanel, among others.