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Student Writing Blog: "Information Technology and the Law"

February 14, 2005 by

This semester, I’m teaching “Information Technology and the Law”. We’re reading a series of articles and court decisions on important techno-legal issues.

I’ve created a student writing blog, on which students will post weekly essays on topics related to the course. Essays are 400-500 words in length, with due dates staggered through the week so that we get some new essays every day. (Some students writing under pseudonyms for privacy.)

The site is open to the public, for reading and comment. Please do drop in and join us.

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Lawrence Lessig, Unmasked

February 11, 2005 by

We’re watching this week’s episode of West Wing. On the TV screen, Professor Lawrence Lessig starts talking. “I know that voice,” exclaims my wife. “It’s The Hacker!”

On West Wing, Lessig was played not by Himself but by the actor Christopher Lloyd. One of Lloyd’s other roles is on Cyberchase, an animated PBS Kids show, as the voice of an arch-villain known only as The Hacker. Here’s a picture and description of The Hacker, from the Cyberchase website:

The cosmology of Cyberchase cries out for cultural analysis. The Hacker is locked in an endless struggle for supremacy against Motherboard, the benign Mother-Goddess of cyberspace, who appears to ordinary humans only by teleconference. In each episode, The Hacker, with help from his henchrobots, unleashes a dastardly plot (e.g., releasing a virus, letting bugs invade the database library, or draining Motherboard’s life-giving liquid coolant) to overthrow Motherboard and unleash chaos on all of cyberspace. A group of multicultural kids must solve some kind of mathematical puzzle to foil the Hacker’s otherwise-foolproof plan.

Come to think of it, there are those who see Lessig in much the same way, as the evil genius who will destroy cyberspace with his Free Culture plot, replacing the benign content-rich cyberworld of Mother MPAA with a content-free dystopia of uncontrolled filesharing. It’s up to those feisty kids at the DRM companies to figure out some fancy cryptographic math that will foil his evil plan.

Look carefully at the picture above – the Hacker appears to be wearing Lessig’s trademark black jeans. Coincidence? I think not.

I guess that makes most of us henchrobots.

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Tagging Technology

February 10, 2005 by

Bruce Schneier points to a new product Smart Water. Each bottle has its own unique tag, and the water in it contains tagging elements (e.g., microdots), that will stick to an object if you spray the Smart Water on it. Then, if the item is stolen, the company says that the police can use the tags to identify the real owner.

Bruce, being a smart security analyst, immediately sees attacks on the system:

The idea is for me to paint this stuff on my valuables as proof of ownership. I think a better idea would be for me to paint it on your valuables, and then call the police.

He has a point, but this doesn’t mean that Smart Water is useless. As often happens with security products, one has to think carefully about what can be deduced from a particular fact. The fact that an item has Bruce’s tag on it doesn’t prove that the item belongs to Bruce, but it does prove that Smart Water from Bruce’s bottle has been near the object. (Actually, it doesn’t even prove that, unless the tags have certain anti-forgery properties. What exactly these properties are, and how to achieve them, is left as an exercise for the reader.)

If Bruce is your neighbor, and he has been in your house recently, then the presence of his tags on your valuables means little. On the other hand, if there is no apparent connection between you and Bruce, and an item locked in the safe in your house has his tags on it, and he was known to own an item like that which he has reported stolen, then you have some explaining to do.

This seems like a technology that will have unforeseen uses, some of which are sure to be annoying. I could put my tags on the shirt I give you for Christmas, and then check to see whether that same shirt shows up back in the store later. I could spray my tags onto my back porch, and then see whether they turn up on my neighbor’s cat. These are mildly annoying, but given enough people with enough annoying goals, I’m sure some interesting ideas will turn up.

Just wait until tags like these are RFID-enabled. Then the fun will really start.

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Copyright Education: Harder Than It Looks

February 9, 2005 by

This afternoon I’m going to lead a discussion among twenty-five bright Princeton students, about the basics of copyright. Why do we have copyright? Why does it cover expression and not ideas? Why fair use? The answers are subtle, but I hope to guide the discussion toward finding them.

I can say for sure that a flat “downloading = shoplifting” argument would be torn to shreds in minutes. This equation seems wrong to most people, and it is wrong. Copyrights differ from traditional property in important ways. That doesn’t mean that copyright isn’t justified, but it does mean that the justification for copyright doesn’t follow from the justification for ordinary property. It will take a room full of college students a while to sort through all of this.

Let’s face it, this is challenging material, even for smart, motivated twenty-year-olds.

Meanwhile, JD Lasica notes that in fourth-grade classrooms, the BSA’s anticopying ferret (who seems, amusingly, to have been copied himself) will try to explain the same concepts to nine-year-olds. Cory Doctorow observes that this is crazy. Telling nine-year-olds that they have to understand copyright before they can use the Internet is like telling them that they have to understand employment taxes before they can run a lemonade stand.

I pity the fourth-grade teacher who, having read the BSA’s Teacher’s Guide, has to explain exactly what it is that is being stolen when a kid copies an image from the Barbie website to use as a placemat at dinner. If I were that teacher, I would prefer simpler questions like “Why are people mean to each other?” and “How did the universe start?”

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Splitting the Grokster Baby

February 8, 2005 by

David Post at the Volokh Conspiracy predicts, astutely, the outcome of the Grokster case. He predicts that the Supreme Court will try to split the baby by overturning the lower court decision (which Hollywood is asking for) while upholding the Sony Betamax doctrine immunizing designers of dual-use technologies from secondary liability (which technologists are asking for). How will the Court do this? Here’s Post:

The Court has an easy “out” here, and my experience has been that when they’re presented with an easy out they usually grab it. The Ninth Circuit in this case affirmed the grant of summary judgment to Grokster, holding that on any reasonable version of the facts, Grokster could not be held liable for “contributory copyright infringement” because the software involved is “capable of substantial non-infringing uses” under the Sony v. [Universal] case. The record company plaintiffs want the Court to “tighten up” the Sony standard, and to say, in effect, that the non-infringing uses that these P2P networks have are not “substantial” enough under Sony.

That would be a disaster for technology providers — but I don’t think that’s what the Court will say. Instead, I think the Court will send the case back to the Ninth Circuit and say: you were right that, under Sony, the non-infringing uses here are substantial enough so that, standing alone, providers of these p2p technologies can’t be held liable for the copyright infringements of network users. But — and here’s the critical part — on these facts, it doesn’t stand alone; there’s evidence in this record that Grokster and the other defendants actively encouraged and induced its customers to infringe copyrights, and that inducement of this kind is not protected by the Sony safe harbor. The Court will then instruct the Ninth Circuit to re-open the case and evaluate whether or not this evidence is enough to hold the defendants liable on an inducement, or “aiding and abetting,” theory of liability.

In doing this, the Court would be drawing a line between acts of technology design, which would not trigger secondary liability, as long as the technology is capable of substantial noninfringing use, and other acts, which could trigger secondary liability. If the Court isn’t careful to draw this line carefully, we could be left with a terrible muddle.

Consider, for instance, a vendor’s decision not to try to incorporate filtering technologies into its product. This is a decision about the design of the product, but the Hollywood briefs argue that it is also (or instead) a decision about which market to enter, i.e. a non-design decision. Ideally, the Court would make clear that this is a design decision and therefore protected under Sony. But if the Court leaves this issue unaddressed or, worse yet, simply hints at moral disapproval of Grokster’s lack of filtering, technologists may be left in the dark as to which kinds of design decisions are really covered by Sony.

In my predictions for 2005, I predicted that the Court’s ruling would not provide clarity for future technologists. A vague split-the-baby decision is one way that could happen.

[To be safe, I’ll follow Post and belabor the obvious: a prediction is an assertion that something will happen; it doesn’t imply that the predicted event is or isn’t desirable.

I’m being a bit cagey about my own views here, partly because I’m going to be leading class discussions about Grokster soon, and some of my students are probably reading this. Sometimes students take positions that they think will please the professor, on the expectation that they’ll get higher grades just because they agree with the professor. I do my best to reward students for making creative and well-reasoned arguments, regardless of whether I agree with them. If anything, I try to lean the other way, and reward students for disagreeing with me, if they do it well.]

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