Brian W. Carver -- Share Alike

Your iPod Illegal Under the INDUCE Act?

As was recently reported on Slashdot, Senator Orrin Hatch has introduced the INDUCE Act with this absurd floor speech which Ernest Miller has torn apart line-by-line. In response to Hatch, the Electronic Frontier Foundation has brilliantly illustrated how the INDUCE Act can and will be abused. They explain how under the INDUCE Act an agressive copyright holder could sue Apple for inducing iPod owners to infringe (merely by creating the innovative devices), as well as Toshiba for making the iPod's hard drive, and CNET for showing people how to move the iPod's music files. Time to visit the EFF Action Center to contact your Senators and tell them you want INDUCE squashed and innovation preserved. (This was a rejected Slashdot submission of mine.)

Bloomsday and Copyright Run Amok

In Property Law there is a doctrine (much-feared by law students for its complexity) known as the Rule Against Perpetuities. We are taught that this rule is in part motivated by society's strong distaste for "dead-hand control" of property. Those who are long gone have had their chance to benefit from their property, and the living know best how to put the property to its most efficient current use. So if we recognize the problems of dead-hand control with regards to real property, and if the Copyright-maximalist crowd wants to constantly call their exclusive right "property" then why don't we show greater concern over dead-hand control in the Copyright arena? It's not as if it doesn't create similar or greater harm. Read on:

Literary lion's watchdog is muzzled
By Angelique Chrisafis in Dublin
June 4, 2004

He is the man literary Ireland fears most.

Stephen Joyce, the highly litigious grandson of Ireland's great writer James Joyce has devoted his life to fiercely protecting his grandfather's copyright, and has never been slow to set his lawyers on those foolhardy enough to take the Joyce name in vain or to reproduce Joyce's words without consent.

Few are spared. He has targeted publishing houses, internet readings, and an Edinburgh fringe musical using Molly Bloom's soliloquy from Ulysses. An Irish composer who requested permission to quote 18 words of Finnegans Wake received a refusal letter saying: "To put it politely, my wife and I don't like your music."

But now, fearful for this month's mammoth celebrations of Joyce's masterpiece Ulysses, Irish MPs this week rushed through emergency legislation that will prevent Mr Joyce from suing the Government and the National Library over an exhibition which displays 500 pages of Joyce manuscripts bought for €12.6 million ($22million) in 2002. "James Joyce and Ulysses" forms the centrepiece of the Rejoyce festival commemorating the centenary of Bloomsday, the day on which Ulysses was set.

Stephen Joyce had warned the Government and the library he would take any copyright infringement seriously.

Mr Joyce, now in his 70s, is the writer's only living descendant. He lives in France and has made lots of money suing for copyright infringement and fees for rights.

The Government said it was acting to close a copyright loophole that affected all writers, but intellectuals were quick to bemoan a culture of fear surrounding the representation of Joyce's works.

Senator David Norris, a Joycean scholar, told colleagues in the Irish Senate: "It is an astonishing irony that a man such as James Joyce, who fought for freedom of expression . . . and committed himself so totally against censorship, should now find his works being . . . removed from public gaze by his own estate."

The Guardian

This story was found at: http://www.smh.com.au/articles/2004/06/03/1086203561354.html

(If the above link disappears, there is another version of the article by the same author.)

So, in at least one instance, the UK got it. It makes no sense to give a freeloading grandson of a creative author the right to hassle people 100 years after a work is created. It certainly doesn't promote the progress of science and useful arts. We need this not just for Joyce's work, but for all copyrighted works. I would prefer a system where a copyright dies with its original holder (if not much sooner!), but if anyone really believes that authors on their death beds are motivated to create by the thought of providing for their heirs, then I would compromise for life of the author plus 18 years. That way even a not-quite born heir would have the chance to benefit from royalties until s/he reaches adulthood. From then on, you're on your own. Currently the law is life plus 70 years. That's too much dead-hand control. (Note: I would most prefer a return to our original copyright term of 14 years renewable once for an additional 14 years, not to exceed 28 years total. And software is a different story altogether. Given the rate of development in that industry the term should probably be no longer than 5 years.)

Secret Service Wants Names And IP Addresses

blackboxvoting.org is a web site devoted to raising awareness about the security problems and unverifiability issues inherent in paperless electronic voting machines. The operator of the site, Bev Harris, has been contacted by the Secret Service. "They want the logs of my web site with all the forum messages, and the IP addresses. That's right. All of them. A giant fishing expedition for every communication of everyone interested in the voting issue."

If the Secret Service is engaged in a legitimate investigation of a crime, then I am sure that they can come up with a narrower request that targets information that could reasonably be related to the evidence they seek.

If they instead insist on wielding the power of the Patriot Act to execute this overbroad search, then it is hard not to think that their "investigation" is purely a pretextual means of gathering information about all those interested in guaranteeing free, fair, and democratic elections. Very scary.

Mike Anderson's New Law Blog

Mike Anderson, a soon-to-be graduate of Boalt Hall, has started his new blog, Mere Dicta, with a bang. He discusses the Supreme Court's review of the Hamdi and Padilla "enemy combatant" cases and makes the argument that, at least for Padilla, his perpetual detention without charges flies in the face of the Constitution's treason clause. The main idea is that the treason clause is rendered meaningless if it isn't applied in an allegedly clear case of treason like Padilla's. Check it out for all the citations and detailed argumentation, and be sure to bookmark his site, as I expect more great insights from this wickedly smart guy.

"The Killing Fields: Copyright Law and its Challengers"

J.D. Lasica, whose blog, New Media Musings, is one of my must-read blogs, has written a great piece entitled The Killing Fields: Copyright Law and its Challengers. It describes a documentary film, Willful Infringement, that I have got to see. Read J.D.'s article and you'll know you need to see it too. I'd prefer to hear about a local showing of the film, but if not, I may have to find some way to cough up the $50 they want for the DVD. (I won't go into the willful extortion aspect of this too much, but it does trouble me that people so keen on sharing culture only want to share with people who have fifty bucks! I thought the Record Industry had a monopoly on price-gouging...)

Arguments Against Software Patents

Brad Templeton writes on his blog, Brad Ideas, that software and hardware are the same thing and so it bothers him that some would allow patents on hardware but disallow them for software. What follows is the comment I posted on his blog.
--
I like your idea for filtering out some of the bad patents.

You're also right that some people simply say, "we should not allow patenting of software." I would like to put forward a couple arguments for that conclusion, rather than simply state it. Then I also have a question for you.

A few arguments against software patents off the top of my head:

0. Since software is already afforded copyright protection, which lasts the life of the author plus seventy years, software production is already adequately incentivized. To additionally provide patent protection to software drastically skews the bargain with the public that all "exclusive rights" bargains seek to achieve and instead provides the software developer with an unnecessary windfall.

1. Software patents have a disparate negative impact on the development of Free software, which for other public policy reasons we would prefer to promote. Free software developers, unlike proprietary software developers, are typically fiscally unable or philosophically unwilling to license patented software techniques. The benefits that Free software provides to both businesses and individuals are worth more to the public than providing a monopoly right to a software patent holder.

2. Software, by its very nature, is susceptible to fewer techniques for achieving its ends than are many other industries. Consequently, where in other industries one can "design around" a patented technique in order to achieve the same end and to thereby compete in the market with the patent holder, "designing around" in the software world is often much more difficult or impossible. There is often simply one or only a few reasonable or efficient ways to accomplish a given software task and if patented, unreasonably enormous amounts of software would be infringing or require licensing.

3. Software cannot be distinguished from mathematical algorithms, and we have traditionally not allowed the patenting of mathematical algorithms because we recognize how stifling to innovation such a practice would be.

4. The software and computer industries advance at a pace totally unlike other industries where we offer patents. Consequently, providing a 20-year patent term for software has a totally different impact in its industry than such a term does in other industries. This is not an argument for the abolition of software patents, but instead suggests that if we are to have such patents, they should perhaps only last two to five years. (How much software do you have from 1984 that really needed to be protected by patents these last twenty years to serve as an adequate incentive for its authors to produce it? None.)

Question: This isn't the first time I've heard a knowledgeable person disclaim any distinction between hardware and software. But, just as you're dissatisfied with those who provide no arguments for not allowing software patents, I can't accept this lack of distinction without a persuasive argument. Do you have one? It seems to me that there are several principled distinctions between the two.
--
(I should have also noted that another way to avoid the inconsistency that troubles him is to abolish patents altogether. This would probably be a better course than allowing software patents, so far as I can tell.) For rhetorical effect it would probably also have been a good idea to include Bill Gates' famous quotation:

"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today."

We're headed that way now.

PBS and the Point of Life

What follows is an e-mail I just sent to the members of my law school module (the small group of about 32 that you take all your classes with first semester).

Hello all,

Now that we're past that paper, I wanted to encourage people to try to catch what may be the best thing I've ever seen on TV. This week PBS aired The New Americans, an Independent Lens documentary, over two nights, for about six hours total. You can learn more at:

http://www.pbs.org/independentlens/newamericans

although I don't presently know of any additional airtimes.

For me, I thought it was a good program to help people get the whole point of life. It seems to me that most of the world (or maybe just most of the first world) has an unfortunate view on this. They apparently think that what they should primarily do with their lives is acquire wealth and things. I think this is unfortunate not only because of the selfish worldview it represents, but also because if these people continue in this misguided pursuit, they are ultimately going to be unhappy and disappointed. That may be just what I took away. Don't get me wrong, I think Porsche Boxsters are as cool as the next person, I just don't also expect that my having one or not will determine whether I feel at peace on my deathbed.

More clearly, the documentary illustrated how rich each of us already is merely by the fact of having U.S. citizenship. The show has you think about a girl from Mexico who wants to finish high school, but whose parents cannot afford the necessary school uniforms to send her. A girl who, when her family is finally allowed to enter the U.S., learns that California won't allow someone 18 years old to attend public high school. A girl who, without reliable transportation to attend night school, ends up just picking pesticide-covered strawberries for you and I to buy at Safeway.

The myth of the American self-made man is strong. Our culture inculcates it in us from birth. But it seems fairly clear to me that it is just that, a myth. Take most of us at Boalt, for example. We have each worked our butts off to get here and have achieved countless impressive things thus far through lots of hard work. But when I think of my own case, I have to recognize that I didn't even want to attend high school, but I was in a culture, a country, a community, a family, and a peer group that made doing otherwise unthinkable. Sure, I worked hard in college and did well, but I also had parents who worked hard their whole lives to pay for me to do so, and to create in me the mindset that I obviously would attend college, do well, and graduate. (And they were only in a position to do that because of the hard work of their own parents, etc. If one starts honestly tracing one's support network, you'll stop being so impressed with oneself pretty quickly. Not to suggest that any of us has this fault.)

The documentary also tracks a family in Nigeria whose brother is murdered by the government because of his outspoken political views. Their own houses, businesses, etc. are bulldozed as added punishment. One of the brothers, who has a chemical engineering degree from a Nigerian university, struggles in the U.S. as a department-store security guard. The examples continue.

One upshot for me was that there are a lot of good people in this world, doing the best that they can, and having a mighty hard time achieving a decent quality of life. Not that I haven't had this realization before, but it reinforced it. If one has the slightest bit of compassion for other human beings, then one has to question the worth of devoting one's life primarily to self-enrichment. The truths exposed in the show are admittedly frustrating, because I don't know exactly what our society could or should do to solve the myriad of problems it presents. It's vastly complicated, but one can definitely see that trickle-down economists need not apply.

But since I can't (yet) do anything to solve every global problem in one fell swoop, I deal with the resulting frustration by doing the things that I believe will help and that are within my control. A large part of that involves trying to make choices with my life that are directed at helping others, not merely directed at enriching me. It also involves encouraging others to make similar decisions. Our module may need to hear this sort of thing less than any other, but I care about each of you. This is a time when each of us will make big decisions about the directions our lives will take. I believe that gaining a global perspective of where we already are can help those decisions come out better. Better for you, and better for the world.

(You may now crack jokes at my expense. But you likely know that I'm just crazy enough to be sincere here and to not be dissuaded by cynicism. I don't intend to offend, but the medium of e-mail and my own ineptitude limits my ability to convey my intentions perfectly.)

Sincerely,
Brian

Database "Piracy Plague"

This editorial in the Washington Times entitled, Database Piracy Plague advocates for H.R. 3261, the Database and Collections of Information Misappropriation Act.

Luckily for those who are less optimistic about the brilliance of copyrighting facts, on Feb. 25, the House Subcommittee on Commerce sent out an alternative bill that authorizes the FTC to take action against someone who misappropriates a database in an "unfair or deceptive" manner, a far narrower approach than the one found in H.R. 3261. The House Rules Committee would have to deal with the two approaches and has said that, in an election year, competing bills on the same issue may well be the death knell for both. Let's hope so. (Those with access to Warren's Washington Internet Daily can read a good article on this from Feb 26.)

Keep an eye on this issue. Over-reaching and unnecessary copyright laws are unfortunately the norm in Congress. In this case we seem to have a few members that realize that current laws already adequately protect information collectors whose work is co-opted. But if we don't watch this issue, then pretty soon I might not be able to report that fact. Under 3261, it'll be copyrighted.

You can't watch DVDs you bought

Think hard about this:

"This Court agrees with the Corley court that the purchase of a DVD does not give to the purchaser the authority of the copyright holder to decrypt CSS." - US Dist. Ct. for the Northern Dist. of California in 321 Studios v. MGM (2004).

Umm. Boy is that dumb. If the purchaser of a DVD does not have the authority to decrypt CSS, which is absolutely necessary to view the contents of the DVD, then that means the purchaser of a DVD does not have the authority to view the contents of the purchased DVD. What are we buying, then? Expensive coasters?

The court actually claims that a DVD player itself, because it is licensed, has the authority to decrypt CSS, but a purchaser of a DVD does not. Somehow Judge Illston doesn't see the absurd consequence of this view that your DVD player can watch all the DVDs it wants. You just can't join in.

We're supposed to be happy that "321 itself stated, users can copy DVDs... by non-digital means." So, we are supposedly permitted to make non-digital copies. But this seems contradictory. If CSS is a copy-control mechanism, and if circumventing CSS is not allowed by any means other than one's licensed DVD player, then there's actually no allowable means of making that non-digital copy. Using one's eyes, one's memory, or a video camera on a tripod aimed at the TV (none of which are licensed by MGM) all seem to be circumventions of CSS. But, remember, circumventing CSS is supposedly illegal. So, is the court just contradicting itself? How is one supposed to make these legal copies?

Imagine, for instance, something potentially sold at Radio Shack that would connect between the DVD player and your TV screen and that would make a non-digital copy of the DVD onto VHS. On the one hand, something like this is supposedly legal. But, it's hard to see how such a device is significantly different from the very function of 321's software which is now illegal. Sure, 321's copies are digital, but the court doesn't claim to be making a digital/non-digital distinction dispositive. Oh, by the way, that device that connects between your DVD player and TV and makes non-digiital copies onto VHS is called a "VCR." That's right. On one reading of this opinion, your VCR is now illegal.

To avoid these absurd consequences the court would have to say that if you use a licensed DVD player to decrypt CSS and then some subsequent device merely makes a copy (probably even a digital one) then that would be legal. (Any electronics entrepreneurs follow that point? I'm dashing something off to the patent office right now!) The point is that to avoid the absurd consequences sketched above, the court has to be interpreted as saying that it's the unlicensed decryption of CSS that makes 321's software illegal, and nothing else. (The opinion actually says 321 could sell a version of their software that copies but doesn't decrypt.)

But this is a silly way to look at things. We don't give licenses to inanimate objects like DVD players. We give licenses to people. So it's just nutty to say that the purchaser of a DVD doesn't have an implied license to decrypt CSS. If Toshiba is licensed to make me a DVD player that decrypts CSS and is also licensed to sell me that player, then the part of the license that allows Toshiba to sell the player logically must allow the purchaser of that player the right to use the player for its intended purpose. Similarly, if MGM sells me a CSS-encrypted DVD, then they logically have to also be giving me a license to decrypt the contents of that DVD. Otherwise they're committing widespread fraud by selling useless merchandise. (Which may be true on independent grounds!)

This court's opinion is an unfortunate blow to fair use and even more unfortunately aggressively supports the DMCA. You've got seven days to buy this software (until February 26) unless 321 can get a stay of the injunction.

LOTR Contract Analysis

Law geeks will enjoy this immensely. Is there an enforceable contract between The Dark Lord, Sauron, and Dain, King of the Dwarves, regarding the finding of The Ring? The passage in question:

"As a small token of your friendship Sauron asks this," he said: "that you should find this thief," such was his word, "and get from him, willing or no, a little ring, the least of rings, that once he stole. It is but a trifle that Sauron fancies, and an earnest of your good will. Find it, and three rings that the Dwarf-sires possessed of old shall be returned to you, and the realm of Moria shall be yours for ever. Find only news of the thief, whether he still lives and where, and you shall have great reward and lasting friendship from the Lord. Refuse, and things will not seem so well. Do you refuse?"
--The Fellowship of the Ring, in "The Council of Elrond"

The further analysis by commenters is nearly as good as the original analysis. [See the link above!] As Dain's attorney though, I'd like to mention that we have another defense we intend to present to the claims of breach of contract brought by Sauron and his heirs. If the many other issues of offer and acceptance, the Statute of Frauds, etc. are resolved favorably to Sauron, then it is still my client's claim that this "contract" should not be enforced because it is clearly unconscionable.

There are both procedural and substantive aspects of unconscionability, and both are present in the instant case. Procedural unconscionability involves either oppression or unfair surprise. Both procedural flaws exist here.

Oppression is present in the form of an inequality of bargaining power. One might argue that no one has the bargaining power of the Dark Lord Sauron and hence that any purported contracts he enters are thereby unconscionable. But this proves too much. Rather, we argue that Sauron's failure to disclose the true nature of the "trifle", the failure to disclose the presence of a balrog in Moria, and the implied threat for non-acceptance all contributed to an inequality of bargaining power.

Further unfair surprise exists here because the undisclosed terms of this agreement were not merely hidden in a prolix form contract, but were absent altogether from the oral negotiations. Nowhere does Sauron disclose that a term of the contract will be the subsequent enslavement of the wills of all formerly free people to the power of the One Ring. In such a context, it is unclear that the promise of "lasting friendship" could amount to consideration at all. For friends must be freely chosen, and enslaved minds make no free choices about their friends. And the three rings that would be returned, as mere tools of the aforementioned enslavement, also fail to constitute the bargained-for consideration. Further, since plaintiff himself admits that the three rings were possessed by the Dwarf-sires of whom my client is heir, he cannot be expected to bargain for what is already rightfully his.

Finally, substantive unconscionability is also present. Given the now-disclosed power of the One Ring bargained for, its value is incalculably great. Sauron's representatives argue that the three rings, the land of Moria, and his lasting friendship are of significant value. However, as has already been explained, these items are of dubious value. The three rings are mere tools of enslavement, the land of Moria is inhabited by a Balrog and infested with orcs, either of which decimate its market value, and Sauron's lasting friendship is a hoax, as what he really provides is mind-controlling enslavement, rather than beneficial friendship. So on one side, my client is expected to provide an item of infinite value in exchange for items whose sum value is essentially zero. No more substantively unconscionable transaction could be imagined.

Striking the unconscionable terms of this contract leave nothing to enforce, therefore my client humbly requests this "contract" be vacated.

The SCO Letter Lies

The letter SCO sent to Fortune 1000 companies today says in part:

The ABI Code identified above is part of the UNIX Derived Files and, as such, must carry USL / SCO copyright notices and may not be used in any GPL distribution, inasmuch as the affirmative consent of the copyright holder has not been obtained, and will not be obtained, for such a distribution under the GPL. (emphasis mine)

Assume for a moment that SCO does hold the copyright on these files (which I seriously doubt). Then the italicized portion is simply false. These files are part of the Linux distribution. Caldera (part of SCO) distributed Linux and these very files under the GPL. So, SCO has already given the permission they now claim that they have not given. Their have been a number of subtle contradictions in their statements since this all started, but this one is blatant. And recall that's only on the assumption they hold the copyright on these files at all. VERY doubtful. The Slashdot crowd has probably already shown that claim to be false too.
UPDATE: Sorry. I was wrong. Linus himself already proved they don't hold the copyright on these files.

MPAA's New Tactic

I went out to the movies Saturday night. Before the film, in the barrage of advertisements that seems to get lengthier every time, I saw an ad by the Motion Picture Association of America (MPAA).

The ad featured a stunt man describing how difficult his work is and showing car chases with cars flipping over. Then suddenly, this stunt man starts saying, "When you download a movie. That's wrong." And the ad starts talking about "piracy" and refers viewers to respectcopyrights.org.

This ad made me mad, but not because I don't respect copyrights. They are the law, and so I respect them. What frustrated me was it represented the continuation of the entertainment industry only seeing the issue from their limited and short-sighted perspective. They have a captive audience and then what they feed that audience is this distorted part of the complex story that is copyright policy today.

As I said, I respect copyrights, but here's some other things I respect that their ad ignores:
I respect

• the Constitution that says the exclusive rights of authors is to last for limited times while most current copyrights will still be in effect after your children are dead.
  
• the privacy of individuals not to have their personal information handed over by their ISPs based only on the word of the entertainment industry, rather than a judge-approved subpoena.
  
• the right of an individual to be considered innocent until proven guilty, rather than labeled a "pirate" who "steals" "property."
  
• the creative contributions of those who make derivative works, whose work is now frustrated by the extensive breadth and length of copyright.
  
• those who innovate new technologies that are now thwarted by a monopolistic entertainment industry.
  
• those who introduce intriguing new business plans for success in a digital era, rather than clinging hopelessly to outdated modes of business through endless litigation.
  
• the rights of a legal purchaser of a DVD or CD to enjoy that product on the platform of their choice, in the country of their choice, and in the form of their choice.
  
• the rights of fair use.

The MPAA's ad shows that they still don't get it. They simply want to push their narrow view on people, and refuse to respect these things that I, and so many other people, respect. Until they wake up, I expect them to face continuing problems and shrinking profits. Just don't believe them when they try to explain the cause of their troubles, because their problems don't come from downloaders. Their problems are of their own creation.

Update: Here is the stuntman ad, plus all the others.

Music Downloading OK under Canadian Law

New York Times is reporting that Downloading Music off P2P networks is legal under Canadian law. Problem is: uploading music is illegal under Canadian law. Simple point: There is an inherent contradiction in their position. At least a few people would have to be illegally uploading music in order to enable the perfectly legal downloading!

I too believe downloading should be legal, but this position makes little sense.

SCO's Open Letter on the GPL

Wow. SCO is sunk. Their CEO, Darl McBride, just wrote another open letter explaining why they think the GPL is unconstitutional and invalid. It demonstrates such an amazing lack of understanding of the GPL, that if this truly represents their legal strategy, they are doomed. The overall strategy seems to be to paint the GPL's author, the FSF, and its adherents, e.g., Red Hat, as anti-profit, anti-copyright, anti-capitalist scumbags and from that to then conclude that the GPL is all those things as well, and hence based on a bewildering leap-of-logic from Eldred v. Ashcroft, claim that the GPL is contrary to the purpose of Copyright, and hence unconstitutional. The key problems with his letter are:

Most of the letter is an ad hominem attack against the FSF and Red Hat. The strategy seems to be, put Richard Stallman on the stand, let him say some outrageous stuff that many wouldn't agree with, and then look reasonable in contrast. You'd then have to count on a jury to be dim-witted enough to fall for such a strategy, rather than parsing out the actual issues.

The FSF is indeed anti-software patent, and also is indeed in favor of Copyright reform, but they cannot be characterized as completely anti-Copyright for the simple reason that the GPL is itself a Copyright License intended to work within existing Copyright Law. That McBride does not know (or chooses to ignore) this fact is one of his largest downfalls. It will be a simple counter to his argument to point this out.

The GPL is not anti-profit. Indeed, it explicitly allows for people to charge whatever fees they can get for service to GPL-licensed software.

We live in a country where people are free to do what they like with the products of their work. If Darl's argument were sound, then it would be unconstitutional for a painter to paint beautiful artworks and then give them away. He would be ignoring Copyright's purported profit-based motivation and by Darl's reasoning therefore be engaged in unconstitutional activity. This is absurd. If someone writes a piece of software and wants to license it in a less-restrictive manner than Darl does, that's their choice. They can even donate it to the public domain, something the GPL explicitly does not do.

No one is forcing Darl to use the GPL if he doesn't like it. The software industry is not threatened by the GPL, unless they are incapable of creating equally good products and providing equally desirable service. He can slap "All rights reserved." on the software he writes himself all day long, and nothing the FSF does will stop him. Now, if it's crap, then no one may care about SCO's crappy software. But's that a business problem everyone faces, and it has nothing to do with the GPL. You got to give the people what they want!

When all is said and done only one of two possibilities present themselves. Either SCO's understanding of its own business, its own past actions, and of the basic legal facts surrounding their business is so amazingly lacking that they could only be characterized as total idiots, OR their pretense of such idiocy and their sham hand-waving legal arguments are in fact criminal attempts to artificially inflate their stock price or to damage the business of their competitors. Idiots or criminals. Those are their options.

Guantanamo Defense Lawyers Fired By Pentagon

The Guardian reports:

A team of military lawyers recruited to defend alleged terrorists held by the US at Guantanamo Bay was dismissed by the Pentagon after some of its members rebelled against the unfair way the trials have been designed, the Guardian has learned...

A former military lawyer with good contacts in the US military legal establishment said that the first group of defence lawyers the Pentagon recruited for Guantanamo balked at the commission rules, which insist, among other restrictions, that the government be allowed to listen in to any conversations between attorney and client...

"The first day, when they were being briefed on the dos and don'ts, at least a couple said: 'You can't impose these restrictions on us because we can't properly represent our clients.'

"When the group decided they weren't going to go along, they were relieved. They reported in the morning and got fired that afternoon."

...the Guardian understands from a uniformed source with intimate knowledge of the mood among the current military defence team, six lawyers strong, that there is deep unhappiness about the commission set-up.

"It's like you took military justice, gave it to a prosecutor and said, 'modify it any way you want'," the source said. "The government would like to say we have done these commissions before. But what happened after [the Nazi cases] was the military justice system changed. What we have done is stupid. It is, I would say, an insult to the military, to the evolution of the military justice system. They want to take us back to 1942."

Similar stories at BBC News, The Scotsman, Al-Jazeera, and
The Sydney Morning Herald.

I would say that we need a Constitutional Amendment to stop this administration's behavior, but as it turns out, we already have several intended to do just that.

The Numbers and Public Interest Work

I sent the following e-mail on October 30th to Boalt's Interim Dean, the Dean of Students, the Director of Financial Aid, the Public Interest Director of the Office of Career Services, and the Director of the Center for Social Justice. I'm not going to publish the response I got (unless they ask me to) because I found it so disappointing that I believe posting it could only be seen as an attempt to portray the administration in an unfavorable light.
-----------
Hello all,

I attended the meeting Tuesday on How to Finance a Career in Public Interest work. I have to say I found it very discouraging, but I am also glad to know the realities we face. I've been thinking about it a lot ever since and it's made me quite depressed. I'm hoping that one of you can point out a problem in my reasoning or calculating. It's obvious to me that some people manage to do public interest work, but what I now fear is that it has recently become significantly more difficult fiscally. I hope this doesn't come off as confrontational, because I really just want to understand how I can make a public interest career work and I desperately hope I'm missing something. I apologize for the length of what follows, but I really felt it necessary to crunch the actual numbers to get a grip on the reality of the situation, and I also have multiple audiences with whom I might share this. I hope you'll read it.

The Numbers and Public Interest Work

I want to use my law degree in a Public Interest job. Everyone vaguely knows that law school is expensive and that public interest attorneys don't get paid as much as their big firm counterparts. But recently I think the situation has become even more problematic and even those closest to the situation fail to realize the extent of the crisis. I will use the actual numbers from my situation at Boalt Hall to demonstrate the problem.

The first element of the problem at Boalt is that The University of California system just raised tuition and fees by 30%. This has dramatically changed the situation of Law students who hope to pursue a public interest career, and it is not clear to me that anyone fully recognizes this yet.

Through subsidized and unsubsidized loans, the Federal government will loan law students $18,500 per year. These Federal loans will, thankfully, cover an in-state resident's tuition. I was also given a small grant of $750 [Update: I checked again. It's $725.] each semester based on financial need. After paying my tuition and fees this semester with those Federal loans, I was left with $1,660.05. That amount is what is supposed to buy my books, which were around $600, and pay my living expenses through the entire fall semester. The Financial Aid Office estimates that a monthly budget of $1,965 is required [Figure from powerpoint slide at recent Financial Aid meeting.] (or perhaps as much as $2,019 [Figure from web site.]). As is obvious, the amount left from Federal loans does not even get me through the first month of school.

Instead, the budget proposed by the financial aid office, would require that I have $1,965 x 9 months of school = $17,685 to get through the school year. If we deduct out the $1,660.05 I have left over each semester from Federal loans, that leaves me with an annual unmet need of $14,364.90. Where is that 14 thousand dollars per year supposed to come from? For those public interest-minded students who are not independently wealthy, private loans are the only answer.

But now let's think about the debt load a student like me will incur over three years. There's $18,500 each year in Federal loans, for a three year total of $55,500. And if my expenses don't rise (ha ha) then I will need $43,094.70 in private loans just to live. None of this includes summer expenses or the expense of a Bar review course (at least $2,000) after graduation. When those 9 months of summers are added up, another $17,685 must be borrowed or earned during summers. For the public interest-minded student, almost all summer internships will be unpaid. That would bring their total loan debt to $116,279.90, not counting a bar-review course. Now it's possible that a student might be able to scrimp by on fellowships over the summers, so backing those summer expenses out, we still get a total debt after three years of $98,594.90, not counting a bar review course. This is a key fact not yet fully known or acknowledged. As far as I can tell, no student (without a scholarship of some sort or prior wealth) can get out of Boalt with less than $100,000 in debt. (I will also ignore that I have $24,500 in prior debt from earning a Master's Degree, and that more and more students enter law school having already earned advanced degrees and hence having already acquired significant loan debt. For these students the situation is even more dire.)

The Financial Aid Office at Boalt reports that the average starting salary in public interest jobs is $36,000 per year, or $3,000 per month before taxes. They also provide a rule for calculating loan repayments that suggests for each $10,000 borrowed, $125 must be paid back each month. In either scenario described above, over $100,000 of debt is incurred, creating a monthly debt payment of at least $1,250. If the public interest-minded attorney continues to live like a student, they would still need $1,965 per month for expenses and $1,250 for loan repayments, giving them a monthly need of $3,215. But, after taxes, they will have only $2,000 with which to meet this $3,215 of need. Every month our public interest lawyer comes up $1,215 short. (Note: if our public interest lawyer could just find a job paying $55,000 annually, and had avoided summer debt, then they could almost make this budget work. Good luck finding that job, though.)

Enter Boalt's Loan Repayment Assistance Plan (LRAP). I understand that this plan is better than many other similar plans. But thankful as I am for that, it will soon be clear that it must be improved. First of all, Boalt's LRAP will only help with Federal Loans, that is, it will only help with that first $55,500 of debt. More on this later. But secondly, for the average public interest lawyer earning $36,000 it provides only $680.67 per month in loan repayment assistance. This still leaves the average public interest lawyer $534.33 short every month. Finally, even if that gap could be overcome, once the Federal Loans are payed off, LRAP cuts out, leaving our friend with over $45,000 in unpaid loans and few if any means to repay them. If the public interest lawyer was not already bankrupt, they are now.

I genuinely hope that the above contains some fatal flaw of reasoning or calculation, but I have become convinced that it does not. The question then becomes what to do in light of these facts. The public interest minded student could seek paying jobs during the summer to reduce their ultimate debt. The summer jobs at big firms, if our student can get them, pay roughly $2,400 per week, that is, $9,600 per month or $28,800 each summer, before taxes. After taxes, about $20,000 is left, and after summer living expenses about $14,000 is left for loan repayment purposes. So, over two summers, such a student could conceivably reduce their debt by $28,000. Sounds great. Unfortunately, this still leaves them with at least $72,000 of debt, and a little over $875 in monthly loan repayments. As we already noted, LRAP will meet at most $680.67 of this need, leaving the average public interest lawyer about $200 short every month.

The above ignores the important fact that such a student is extremely unlikely to get the public interest job they want anyway, as they have demonstrated absolutely no commitment to public interest work, having spent both their summers at big firms. The same problem arises if they decide to continue on at the big firm for a year or two after graduation to pay off their debt. Once they do, they will have no contacts and no connection to the public interest sector in which they seek employment. Let's also ignore that many who graduate from law school would like to do things like have children or buy a house. Unfortunately, these things look financially impossible given the numbers above.

It seems to me this situation presents a drastic crisis for the future of public interest students and attorneys. Even those students most desperately committed to their respective causes will find themselves totally constrained by these financial realities. Consequently, I feel that only drastic solutions can solve these problems. First the LRAP program must recognize that given the recent tuition increases, the average Boalt student will not be able to graduate without substantial private loans. Consequently, LRAP must be extended to pay more per month and must continue until all school loans, including private loans, are repaid.

An even better solution would be to prevent the debt to begin with. While it's probably never happened, a tuition-increase rollback would be a great idea. We should work to make this happen. A substantial improvement to the grant program, more and larger summer public interest fellowships and all other methods of preventing students from acquiring the debt to begin with should also be pursued. The cost of housing in the area is problematic, especially for a married student with pets, like myself. Additional offerings for students would help here. Finally, the public interest community needs to know about this. For many, it has been years since they graduated and they are not aware of the incredible debt load students now bring with them. If the public interest sector could bring their salaries up to just half of what the big firms now pay ($125,000 to start), the numbers could start to become feasible.

All of these solutions require money in an already financially trying time. I recognize this. We'd like to see Boalt's facilities improved, we'd like to add more faculty, have more programs, etc. But, I think our students and the work they will do in the public's interest must come first. Otherwise, we're selling a lie. We cannot have the great public interest programs that we have during law school if it is simultaneously fiscally impossible for students to pursue public interest jobs after graduation. This lies to and hurts these students. But the worst thing of all that will come from these realities is that many who would pursue good work on the public's behalf will be forced to pursue other alternatives. When that happens, our society itself ends up the biggest loser of all.

Brian Carver, 1L

SCO Violating GPL

Last night I download the source for the 2.4.20 Linux kernel from SCO's website. The Linux kernel is copyrighted by its authors, as all computer code is, and in the case of the Linux kernel, the authors have chosen a Copyright License called the General Public License or GPL. In SCO's latest court document in its suit against IBM, its Reply to IBM's Amended Answer with Counterclaims, SCO claims in its Sixth Affirmative Defense, "The General Public License ('GPL') is unenforceable, void and/or voidable, and IBM's claims based thereon, or related thereto, are barred." and in its Eighth Affirmative Defense they say, "The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM's claims based thereon, or related thereto, are barred." So, it is clear that SCO does not accept the GPL or find it to be a valid Copyright license.

That is, of course, problematic for SCO, since just last night, they distributed the Linux kernel to me without any license to do so. One is always free to reject the license terms offered. SCO apparently rejects the terms offered to them by the Linux kernel's authors. The problem then is that without that license SCO is bound by the default standards of Copyright, which is "All Rights Reserved" which includes the rights to copy, modify, or distribute. SCO is copying, modifying, and distributing the Linux kernel without a license, and as a result can face pretty steep damages under Copyrihgt Law for each infringement, up to $150,000 per instance.

My download was just one such instance. If you downloaded the source too, it might create another. The damages for SCO would pile up. They might want to rethink this...

Patent Suit Killing Online College Courses

The Chronicle of Higher Education is reporting that Acacia Technologies is suing colleges for patent infringement. Acacia claims to hold five patents that cover streaming media used in online courses and wants colleges to license the technology to the tune of 2% of all online course revenues. Virgil Varvel, a computer-assisted-instruction specialist for the University of Illinois system said online courses are "already a borderline return of investment. We would have to stop doing what we're doing." That's how simple it is. Here's a software patent that is going to stifle a cool technology and reduce the public's access to education. Online courses reach working people, adult students, students with disabilities and other groups who often are unable to participate in traditional courses. The ability to use the web to reach these people more effectively and to provide them access to educational opportunities is a good thing, and clearly a far better thing than giving Acacia a private monopoly on an obvious and commonplace technology. Tell your representative. Software patents must die!

Car-Loan Rates Marked Up More for Blacks

Here's the headline: Car-Loan Rates Marked Up More for Blacks, Report Says. Now, under the insane Proposition 54 that voters will decide on October 7, it would be impossible to even do the research that demonstrated this form of discrimination. Stop the Information Ban. Vote NO on 54.

P2P Legal Defense Fund

This is an extremely interesting use of the internet and the power of collaborative action. Check out the Downhill Battle P2P Legal Defense Fund. Whether you just think legal expenses are too high for normal people and sympathize with the little guy all the way to Copyright Abolitionists this site is for you. You can contribute (via evil PayPal) any amount you like and it will go directly to someone who has been sued for file-sharing by the RIAA.

Here's a crucial thought: If people are willing to pay for someone else's legal expenses accrued by file-sharing, how much more willing would they be to pay a
reasonable fee for legal file-sharing?!? The Recording Industry is missing a huge opportunity here.

Mickey Liberation Front

This is a really interesting story about a legal battle Disney had in the 70s with some cartoonists who wanted to poke fun at Disney by drawing Mickey in their underground comics. I thought I had read it all about Disney and Copyright fights, but I'd never heard of this. (Link from SCOTUSBlog.)

Sticky Copyrights Doomed?

So, I've been thinking about the plausibility of the idea described in the two posts below of making copyrights unassignable. That is, copyrights would stick to the author for their duration. But, if we allow all this contracting out of the actual copying on behalf of the author then it seems inevitable that all the rights normally contained in a copyright would simply be contracted out (especially by those this was intended to help, like the struggling musician trying to strike a deal with a record label) and we'd have assignment in practice if not in name. I think that's probably a fatal flaw here and any attempt to limit the copyright holder's contracting rights is just going to be ad hoc futility. Bummer. I suppose one could arbitrarily set a statutory time-limit on these contracts, maybe a year or five or something. This mitigates the impact of assignment under another name but still could put an artist/creator with a weak bargaining position in a tough spot. It might just be a heck of a lot simpler to make copyrights last just 14 years. Hey, didn't someone else already think of that?

While we ponder on this, let's read these suggestions for copyright reform.

Another thought on Sticky Copyrights

Another implication, some might call it an objection, to this Sticky Copyright idea is that it either complicates or forbids works for hire. I am not so sure that this troubles me. It is in large part the whole point to begin with. When I'm not typing on my Zaurus, I'll explore this more...

EFF's File-Sharing 411 Details and Sticky Copyrights

The always impressive bIPlog has some details on Fred von Lohman's talks yesterday at Berkeley. I attended both events and find Mary Hodder's summary an excellent recap if you missed it.

Fred did spark a thought in me, and I wrote it down during the afternoon talk:

"Copyright is a system fundamentally designed to deprive artists of the rights to their creations." (That's got some intentional shock value, since most assume its purpose is just the opposite. But I continued...)

"From copyright's inception in the Statute of Anne, copyrights have been assignable to others. They are freely assignable so that distributors and publishers can take them."

It's just a history lesson and a wake-up call. Publishers pushed for the Statute of Anne and the establishment of assignable copyrights so that they could demand that authors sign away their rights to them! Their hope was to thereby create a monopoly in the publishing industry.

Fast forward to today. It's still going on! Just about every record contract that a musician is suckered into takes away all her/his rights to their own creations. The record company owns all the rights to the artist's art. They are just following in the long tradition of their monopolistic forebears.

But now think about it. If the more noble ideal of copyright's purpose were truly pursued, we would be hoping to "promote the progress of science and useful arts." Now who are the artists in the following list: Vivendi Universal or Andrea Bocelli? Universal Music Group or B.B. King? This is easy. So then, if we want to help promote the artist's work, then who do we want the benefit of copyright to flow to? C'mon now think hard... You can do it... That's right! The artist! Well then, why do we have a system where the moment the artist's pen leaves the page and the moment the artist takes a step back from the microphone, their copyrights have all been assigned over to some suits who are not artists, don't create anything we hoped to promote in Article I Section 8 of the Constitution, and who are sucking the lifeblood right out of the artists we hoped to promote? Doesn't make much sense. Does it?

So here's a solution to consider: Copyrights should not be assignable to others. (I call this a Sticky Copyright, because it sticks to the original creator and stays there for its duration.) A copyright owner could certainly still contract with someone else to physically make the copies for him, and could certainly contract with someone to distribute those copies, but the copyright would always remain with the copyright owner. Once we have a system where the copyrights stick to creators in this way, we might also think twice about a Sticky Copyright persisting after that creator's death. That wouldn't make much sense either, would it? [Footnote 1]

The biggest problem I see with the solution above is that folks like the Free Software Foundation thrive on having others assign their copyrights to them. For big collaborative projects like they run it might make a huge impact on them if they can't round up the rights in one place.

I think this too could be handled with contracts. I can be a copyright holder and still sign a contract with the FSF that says I give you the right to make copies of my code for me, to distribute those copies, and even to make modifications to my code on my behalf. But I still retain the copyright on it. The nice thing about this would be that only the artist could bring a lawsuit for infringement, not the RIAA or some other proxy copyright holder. But it cuts both ways. The other big point the FSF has in getting these assignments is to make it easier for a single entity, the FSF, to sue someone who violates the GPL. The FSF can do it directly and doesn't need permission from 200 people.

I'm not sure that's decisive though. If my copyrighted code contribution is 300 lines of a 10,000 line GPL'd program, and someone is violating the GPL, then among the things they are doing is violating my copyright. I don't know why if there are 30 contributors to a piece of software that all 30 of them can't bring distinct suits against an infringer to seek damages for infringing the part of the program that they hold the copyright on. It might clog the court if we really ran 30 cases, but in practice these suits are all going to get joined together and we just let the courts and the lawyers do later what the FSF is trying to do now in advance. I don't know why that wouldn't work.

But then there's the more general objection to Sticky Copyrights that goes: "If it's my right, then I ought to be able to do whatever I want with it, including sell it, give it away, or forever disavow it." My response would be: that's not always true of rights. For instance, I have the right to vote, but I'm not allowed to sell that right to someone else who'd be willing to pay for it. So not every right is transferable. And in this case, I just might be convincing myself that the true intent of the Constitution's framers and the truly best thing for creators is Sticky Copyright. Indeed, it might even be the case, without anyone realizing it, that anything other than a Sticky Copyright is downright unconstitutional. Interesting.

[Footnote 1]: I realize this is a fine distinction. A reasonable question would be: If I can contract out my right to copy to someone else, how is that supposed to be different from assignment of my copyright?

Answer 1) The contract I'm thinking of is typically going to be limited in time and for a specific number of copies. (Think of a book author here. She wants 1000 copies by October. You make any more after that and you're infringing.) But an assignment would be permanent and for unlimited copies.

Answer 2) The contracted right to copy would not normally flow downstream. That is, if I assign my copyright to someone else, and assignment is allowed, then they in turn could assign it to someone else, and so on. It's a hot potato. But if I contract with you to make me 1000 copies of my latest book, I can include a clause that says: "you cannot subcontract this work or purport to give others the right to make copies of my book." But then the objection shifts to: Doesn't this break the GPL? Nothing could get past the first distribution. Answer: No. I can contract out my copying work in lots of ways. One such way is to allow sub-contracting rather than forbidding it. And when I distribute a program to you under the GPL, I can say, I'm contracting with you to make at least one copy of this on my behalf. You too can sub-contract this work out to others by having them make at least one of the copies I asked you to make. And so on forever. In a strict technical sense then, even the nth person in a chain of distribution would be just subcontracting out some copying work that I asked the first member of the chain to do. (Wacky, eh?) More likely though, given that many programs are distributed from a single website run by the authors, the GPL in such a case is comparable to a book author who asks 1000 publishers to make her 1 copy of her book. She still ends up with 1000 copies in the wild, but she just contracted out the copying to lots of individuals. Now, I also happen to know that the FSF doesn't believe the GPL is a contract and is quite adamant about this, but that's a whole other ball of wax not worth getting into when I'm just thinking out loud here. The last dangling problems here could be a legal complaint about lack of consideration for such a contract and a question of just how many copies I asked the original person to make. First the consideration is like so: I'd like you to make at least one copy of this program. In return I ask only this. If you subcontract out this copying work I'm asking you to do, then you must allow your subcontractor to also subcontract (and the terms of that subcontract must be identical to the terms I offered you.) If you agree to that restriction, then that should be consideration. Second, I'm fairly sure I do not have to specify how many copies I want just to get a binding contract. People often contract for "as much as I need" or "as much as you produce" and so on. So, in this case I'm contracting for you to make "at least one copy and as many more as you produce (either yourself or through subcontractors)." You'd probably add in such a GPL'd software case: "Please don't deliver the verbatim copies to me. I'm just glad to know you're out there making them." (Someone who wanted to learn of modifications could change this to require delivery of modified copies, but now we're not talking about the GPL.)

EFF to Discuss File-Sharing Lawsuits on Berkeley Campus

The Electronic Frontier Foundation's Senior Staff Attorney, Fred von Lohman, is scheduled to discuss File-Sharing lawsuits by the RIAA on UC-Berkeley's campus today in two events. The first talk, File-Sharing 411, is aimed at undergraduates and will feature free pizza! It will be at 166 Barrows at 12:30 p.m. The second talk, File-Sharing: Legal Issues and Alternatives, is at the law school at 4:45p.m. (115 Boalt Hall.) If you're in the Bay area both events are open to the public and sponsored by the Boalt Hall law student organizations boalt.org and the Creative Law Society.

Software Patents

I leaned something about myself today. I really, really, really, hate software patents. I suppose I knew this already, because there are so many good reasons to hate software patents. But when I read this article detailing how Microsoft has been ordered to pay $521 million dollars for infringing someone else's software patent I thought, "That sucks." Let's be clear: I am no fan of the folks in Redmond, WA. I believe they were let off the anti-trust hook far too lightly, and that new but similar anti-competitive practices are at work every day. It's not an accident up there, it is their whole strategy. And over 50 million of those dollars would go to the Univeristy of California system, of which I am now a student and alumnus. So, if this ruling were upheld, it would mean more money for education in a state where the budget is a mess and where MY tuition was just raised 30%! This should be great news!

But it makes my heart sink. Even Microsoft having to pay for infringing a software patent is a bad thing. These ridiculous patents are impeding progress, not promoting it. They should be completely abolished yesterday, and if we can't get that, then they should only last three years or less. The industry moves too fast to bottle up new ideas for decades.

The enemy of the freedom-loving software community is not Microsoft. In this instance we share a common enemy: lousy technology public policy decisions. We have to educate the public and our representatives on these issues. Otherwise, we lose something unquantifiable: a better future.

First Week of Law School

People apparently keep asking my wife if I am enjoying law school. (I haven't spent much time on the phone myself.) She doesn't know how to answer, and perhaps I don't either yet, because what I've mainly been saying is that I am surprised at just how time-consuming it is thus far. I haven't yet found the work to be difficult conceptually or intellectually brain-bending in some way that makes your head hurt, but I have found there to be A LOT of work. I wonder when it is a 1L is intended to sleep? Perhaps the enjoyment will come once a couple things fall into place: 1) I get a better idea of how much preparation of the material is necessary to constitute an adequate understanding (and maybe even mastery!) of it for class discussions and the exams. 2) My classmates and I get to know each other better and develop firmer friendships. I think if either of these things occur, it will turn into downright enjoyment. Right now survival seems more pressing... [Note: a previous entry about how screwed up patent laws are seems to have been lost. When I get over the frustration of lost labor, perhaps I'll post it again.]

FSF GNU GPL Conference

Friday I attended the Free Software Licensing and the GNU GPL conference at Stanford's Law School (mentioned in my previous post.) It was a very good conference. It struck just the balance I had hoped in that it was not just on the obvious basics of the GPL and it was also not in the stratosphere of legal mumbo-jumbo. I learned several things I didn't expect to and Prof. Lessig's lunch time speech was inspiring, of course. I got a free Creative Commons T-Shirt. It says, "Some Rights Reserved" on the back. Nice.

One thing I was struck by were the number of attorneys there from the big software companies. IBM, Oracle, Sun, etc. sent lawyers there. You get the impression from all of these people that they are deadly serious about Linux. This is not some garage-based geek project that will whimper out of existence any day now. Billions of dollars are on the line so far as these folks are concerned and they are behind it 100%. The FSF guys realize this too. They aren't going to compromise their principles one jot, but they also know if push comes to shove they have more than one 800-lb gorilla in their corner. Speaking of which, Microsoft sent people too. They paid their fees, sat dutifully and quietly, and kept tabs on the enemy. The guy I knew was from MS seemed to take the most notes during the LGPL segment of the day.

Overall, I'd say most of the participants were pleased with the day, but some were irked that they couldn't get more detailed information about when the FSF would consider them/their clients to be violating the GPL and when not. Since the FSF has never had to go to court to get people to comply with the GPL the lawyers have no cases to cite and this really tweaks their noses. The FSF is not really apologetic about not going to court. They say they just want compliance with the GPL and if they can get that without court costs, then they're thrilled. So far, they're batting 1000.

Free Software Licensing and the GNU GPL

On Friday I'm heading over to Stanford's Law School (you can tell Boalt Hall hasn't indoctrinated me yet!) for a Free Software Foundation Conference entitled: Free Software Licensing and the GNU GPL It was covered on Slashdot recently. The virtual flyer for the day says,

This program is designed to offer lawyers and businesspeople, working in software licensing, a complete introduction to the legal issues surrounding the development and distribution of free software, such as the GNU operating system, the Linux operating system kernel, etc.

During lunch, we will hear a presentation by Professor Lawrence Lessig, noted author and law professor at Stanford University. Professor Lessig's presentation, titled "Free Software: On What Side Should the Law Be?", will address how and why the law is not netural with respect to free software.

I'm not a lawyer yet, but they said I could come, so I'm looking forward to learning something. I'm afraid that information will be either at one of two extremes.

1. So basic as regards the nature of Free Software that I already know it. or
2. So detailed as regards the law, that I won't have a clue what they are talking about.

I'll keep hoping there's some stuff in the middle that I both don't know and can grasp and will update this location once we find out if those hopes are realized.

Make No Law

I'm about finished reading Make No Law, a book about the Sullivan v. New York Times case that went to the U.S. Supreme Court. Sullivan was Police Commissioner in Montgomery, AL during the Civil Rights Movement and although he was not mentioned by name, he claimed a paid political advertisement in the New York Times libeled him. (Read the book!) Oversimplification: The case ended up establishing the freedom of the press to criticize public figures without fear of libel suits.

One of the things that occurs to me is what J.S. Mill talks about in On Liberty. He is at pains to say that we should fear not only the tyranny of our government, but also the tyranny of prevailing opinion or society. Mill writes,

But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

How appropriate Mill's concerns seem today. Americans, unfortunately, have a long history of trying to use not only political but also societal pressures to tyrannize those who hold an unpopular or minority opinion. This unfortunate tendency seems to show up most often in time of war, as it has now.

Think for a minute about the pressure Natalie Maines, the lead singer of the Dixie Chicks, recently encountered when she made an unpopular comment about President Bush. American Country Music fans started boycotts, burned Dixie Chicks albums, etc. These fans would spend their time better reading a little Mill. It seems they sought to terrorize those of a different opinion. Their actions said, "Take note country music performers: if you express opinions we do not agree with, we will do whatever we can to ruin your career." That attitude is not an American attitude, or at least the framers of our constitution never intended it to be one. "America: Love it or Leave it" was never their creed. On the contrary, in the Sullivan opinion, Justice Brennan quotes approvingly Justice Brandeis' earlier statements in Whitney v. California:

Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Did you catch that? "Public discussion is a political duty." It is our DUTY to discuss these things. If Democracy is going to work, if we really want a country where the people are sovereign and the government is merely the public's temporarily appointed functionaries, then it is our duty to have public discussion. And the appropriate reaction to an opinion you do not share is not boycotts, punishment, and repression, but reasoned argumentation.

In thinking about political duty, I did something else for the first time yesterday. I sent $20 to the Democratic National Committee. Once the Democrats have a candidate (hopefully Dean or Edwards) I intend to send that candidate something too. If I'm so dissatisfied with the current state of things (and I am), I ought to be willing to do something tangible (besides moaning about it here) that might change the situation. You should too.

It is no wonder that the Republicans run things when you follow the money. It is a strange phenomenon, but it seems to me that Democrats who can afford it are less likely to make political contributions than are Republicans who can afford it. Clearly, this needs to change. We are all paying for the current administration, like it or not. We are paying with our economy, the state of education, the cost of prescription drugs, the cost of the war in Iraq, the cost of tax cuts for the rich, the cost of reconstruction contracts for Bush's cronies etc., etc., etc. So, Democrats should ask themselves, "Should I pay a little now in the form of political contributions to Democrats to avoid paying a lot