Two very nice articles by Steven Levy in the latest Newsweek. The first, I Was a Wi-Fi Freeloader, discusses the law and ethics of using open wireless networks. (I wrote about this topic previously.) The second, Glitterati vs. Geeks, is about the Eldred case.
D-Day For Eldred
October 8, 2002 by
On Wednesday, the Supreme Court hears oral argument in Eldred v. Ashcroft, the lawsuit challenging the 1998 Copyright Term Extension Act, a law that added twenty years onto the life of every current and new copyright. Larry Lessig will argue for Eldred, and Ted Olson, the U.S. Solicitor General, will argue for the government.
The copyright term is an important issue, but it is of less direct relevance to technologists than to other kinds of creators. Software can be copyrighted, but software is so new that it will be years before any software enters the public domain through expiration of its copyright.
Despite this, Eldred should be of great interest to technologists, because it is the only chance the Supreme Court has had recently to opine on the proper scope of copyright law. Eldred puts several important questions before the Court. Can Congress do whatever it wants in the name of copyright, or must the copyright laws be designed for the advancement of art and science? Must Congress consider the effect of new copyright laws on the public domain and on public debate? How does free speech impact copyright?
The opponents of technological freedom wave the flag of copyright. The Eldred decision may well determine how far they can go. It may be the first step in reversing the tide of ever-expanding copyright and ever-shrinking technological freedom; or it may ratify their claim that copyright trumps free speech and technological progress.
Transcripts of the oral argument will be available in a week or so. The decision won’t be announced for months.
Is the term of copyright too long? You be the judge: under current law my heirs will own the copyright on this item until about the year 2112.
Discovery vs. Creation
October 8, 2002 by
Last week I had yet another DMCA debate, this time at the Chicago International Intellectual Property Conference. Afterward, I had an interesting conversation with Kathy Strandburg of DePaul Law School, about the different mindsets of DMCA supporters and opponents.
DMCA supporters seem to think of security technology as reflecting the decisions of its creators, while opponents (including me) think of technological progress in terms of discovery.
Two examples may help illustrate this distinction. First, consider the inclusion of a spell checker in Microsoft Word. This is a decision that Microsoft made. There is no law of nature saying that word processors must include spell checkers, but Microsoft evaluated the pros and cons and then decided to do it that way.
Second, consider Einstein’s statement that E equals MC-squared. Einstein didn’t decide that E should equal MC-squared, he discovered it. E had always been equal to MC-squared, and it would continue to do so regardless of what Einstein said or did. He didn’t create that fact; he was simply the first one to figure out that it was true.
I tend to think of computer security as a process of discovery. If I figure out that a certain system is insecure, that is a discovery. I didn’t make the system insecure; it was always insecure and all I did was to point out that fact. Nothing I did could make such a system secure, just as nothing Einstein did could have made E equal MC-cubed.
DMCA supporters sometimes seem to think of computer security as being the result of a collective decision by experts. It is as if we all, by simply acting as though a system were secure, could make it really be secure. If you think this way, then deciding to make a widely deployed technology insecure would indeed be a stupid and wasteful decision, and it might sensibly be banned. But if you think this way, then in my view you don’t really understand computer security.
When you’re making a film, or writing a song, or drafting a statute, or negotiating a contract, you’re making decisions. It might be natural for people who make films, songs, statutes, or contracts to try to apply their understanding of their own fields to the world of technology. They can decide that such an approach makes sense; but ultimately they will discover that it does not.
LawMeme's "Law School in a Nutshell"
October 4, 2002 by
LawMeme is running a wonderful continuing feature, written by James Grimmelmann, to teach non-lawyers, and especially techies, how to read a legal brief:
Future lawyers spend three years in law school learning how to read and write legalese, but what serious geek has that kind of time to spare? This series will cover the basics of Legal; by the end of it, you should be ready to pick up a legal brief and know what’s going on and how to find out more.
To keep things close to reality, we’ll use as a case study a particularly important piece of recent legal writing: the good guys’ brief in Eldred v. Ashcroft. We’ll walk through the brief, seeing how the conventions of legal writing interact with the arguments Lessig and company are making.
If you’re at all interested in the topic, it’s well worth reading. (Part I; Part II; and more to come)
Garfinkel on Wireless Tags
October 4, 2002 by
Simson Garfinkel has an interesting short article in Technology Review about wireless tags. He advocates a sort of consumers’ bill of rights, that would protect people against being observed or tracked against their will.
Wireless tags are an important and potentially scary technology. As I’ve written before, I think we need more discussion of their implications.
