June, 2007

forfacebook / law / personal — 8 Comments
19
Jun 07

on the unexpected end(?) of my journey on the shoulders of a giant

on the shoulders of giants[Nutshell for those with less free time than me: Lawrence Lessig is the closest thing I have to a personal hero, and he's leaving the IP/culture game to play for bigger stakes, against even tougher opponents. In this post I explore and explain my very personal relationship to his work, wish him luck, and fervently hope that our intellectual paths cross again.]

At some point during my senior year of college, I read Larry Lessig’s Code and Other Laws of Cyberspace. It put into words something I’d felt but not been able to articulate: software mattered a great deal, not just for its own sake, but as the new architecture which constrained and helped define markets, politics, and speech- the dominant forces in most of our lives.

Code was very consciously in my mind when I chose to go into free software after graduation instead of what looked like sure money in hardware.1 After Code, I felt even more strongly that in order to have transparency in markets and communication (and eventually in speech and politics) we needed transparency and vigorous competition in our software. And so I chose to follow that dream for a while. (So far, so good.)

Later, seeing Lessig speak for the first time at the Duke Conference on the Public Domain, and then reading his Free Culture, reaffirmed that choice. While Free Culture talked very little about free software, it was hard for me to read without thinking that that a free culture would not – probably could not – grow in a software monoculture, nor could it grow without learning from the methods and the madness we’d pioneered in free software. And so I kept at it, trying to keep in mind the idea that this wasn’t just about writing better software- it could be and probably should be about something much bigger.2

It wasn’t coincidence that after being steeped in ‘marxist-lessigism‘ for years I ended up in law school. Just as Lessig made it clear that code impacted the real world, he also made it clear that the real world (and particularly politicians, governments, and lawyers) inevitably impacted code- and more importantly, inevitably impacted how people spoke with each other and sold things to each other using that code. It is my current career goal, in no small part because of Lessig, to be a lawyer who helps bridge those worlds, bringing the tools of the modern lawyer together with the tools of my friends to make the world a better, richer, more sharing, more human place.3

This isn’t to say I think Lessig is a saint, or that I always agree with him on matters of policy and tactics- see, for example, this post for some good criticisms. But it is no small sign that even those who disagree with him must often define themselves in his terms and on his grounds- it indicates that his choices to bring the discussion to the masses on largely morally neutral grounds achieved a broad and significant traction that hadn’t previously occurred. (Whether or not that is unambiguously good is another discussion for another day.)4

So to summarize- I’m usually in awe of Lessig. The last 6 years of my life have been many things, but whatever else they have been, in large part they were a ride on his shoulders.

Which brings us to today. I am even more in awe than usual, because he has announced he’ll no longer focus on IP, instead choosing to concentrate more on what he calls political ‘corruption’- corruption in the general sense that ‘the political system is broken, and has forgotten how to fix itself’, rather than the specific sense that ‘the political system is full of people who have been effectively bribed by lobbyists.’ (Though of course the one is part of the other.) The self-confidence (the self-sacrifice?) to leave a field where you are the acknowledged global leader, quasi-founder, and expert, and to start from scratch, is something I’m pretty sure I couldn’t do.5 And he’s doing it in a very high-profile way, into a field that the world pretty desperately needs right now, without (apparently) having much sense of what the answers are. I admit I’ve often in the past year thought ‘free software is small beans compared to Guantanamo, or global warming, or religious fundamentalism’, but I’ve stuck with free software in part because I feel certain I can make a difference here, and to try to solve those other problems means almost impossible odds. For him to leap into something where there is no certainty he can achieve anything, against fairly overwhelming odds and deeply entrenched interests… yeah, awe is a good word. Takes bravery (or perhaps craziness, or both) that I can only hope to find in myself some day.

In some sense, Lessig’s choice could be interpreted as a diminishment of what I and others have worked for alongside him and Stallman – a stark acknowledgment that if the background mechanisms of our national politics is broken, then the freedom of our software and our culture doesn’t make much of a difference. But my hope (perhaps my arrogance or my denial) is that this isn’t the case. Rather, I much prefer to think that social production, free culture6, and perhaps even free software7 are going to be central to retaking control of our government and our country from the sources of this corruption. So I’ll tell myself I’m helping out in Lessig’s larger and more important battle, even if the link is more tenuous than I’d like right now. Hopefully I’m right; possibly I’m wrong- either way, that rationale will help keep me motivated while Lessig is off finding and promoting his own solutions, whatever they may be.

More personally, good luck, Larry. You’ll need it, but we’ll be cheering for you, and we’ll all benefit, both in IP/culture and elsewhere, if somehow you can pull off even a fraction of your impossible dream. (And if anyone can do it, I think I speak for many others when I say that I have a deep faith that you can.)

  1. Of course, that company bombed and Ximian succeeded beyond my wildest dreams, but I had no way of knowing that at the time. [↩]
  2. Not a coincidence I got started in mozilla, was passionate about GNOME, and am very excited about OLPC, Wikipedia, and Curriki- if we’re ghettoized on corporate servers, or just serving elitist software geeks, there isn’t much point to us being here. We must be on tens of millions of clients, and we must go beyond software, to really make a difference in the world. [↩]
  3. Like Lessig, I think vigorous capitalism is a valuable part of that richer, better place, so I certainly won’t object if I can manage to make a buck by upending entrenched businesses along the way. [↩]
  4. Also, I tend to think that even in matters where we disagree, the disagreement is a public formalism which he uses as a strategic and marketing tool, and that some day when he puts aside the mantle of public intellectual, and can become more honest about his motivations, he’ll be much closer to Mako and Stallman than they expect. Hopefully we’ll someday get to see that side of him- hard to know for sure. [↩]
  5. It would be easier, I’m sure, if I had a full, tenured professorship at Stanford and an obsessive-compulsive global fanclub I wanted to escape from for a few years, but still… general point stands. :) [↩]
  6. like his push to open the debates [↩]
  7. voting software! [↩]
misc. — 5 Comments
13
Jun 07

for seth (and other almost, but not quite, omniscient beings)

GNOME lacks stetic.

law / misc. / software — 5 Comments
12
Jun 07

late night linkage

law / software — 19 Comments
10
Jun 07

‘it is just a number, and numbers aren’t protectable’ drivel

(A belated rant on a certain number, and responses thereto.)

From Ed Felten’s comments:

And it proves again that the lawyers fail to see something very important. . . . _everything_ in the internet _is_ equivalent to a number. In the mathematical sense. You can transform it as often as you want, it is still equivalent to a number. And numbers are ethereal, they always existed, and will always exist. You cannot destroy them, and you cannot — brace yourselves, IP advocates — invent them. Therefore you cannot protect them either.

From LWN’s comments:

A number is a number. A number is not a product. (Well, maybe this one is, because it’s not prime, but never mind that.) A number is not a service. A number is not a device. A number is not a component. A number is not part of a component.

This is pure drivel, people. Yes, I can represent any idea – any information- in a number. So what? Numbers are not magical and mystical; there is no part of the constitution that says ‘numbers cannot be protected by intellectual property law.’ What matters – what can be protected- is the meaning which humans are able to imbue in and draw from those numbers. We humans have imbued that particular number with a meaning, and as a result, we’ve decided to protect it.

Or to put it another way- locksmiths use numeric codes to replicate keys. Access to those code books is restricted. If someone gave the numeric code for your front door key, along with your address, to a criminal, would you say ‘well, it is just a number, I guess I shouldn’t try to do anything about it’? No, you’d do just what you’d do if the criminal had been given a physical key- you’d change the locks. Again, it is the idea that the number represents- the key- which is what is important, not the number. And so we can protect it or restrict it as we please- to do otherwise would be insane.

Now, I’m pretty sure that giving this particular number legal protection is a bad idea. But that has nothing to do with whether or not it is a number. Anyone who thinks otherwise… oy. Repeat to yourself: all data is a number and all physical keys are numbers, and that doesn’t stop us from patenting, copyright, and otherwise protecting keys and data. HD-DVD keys are no different- it may not be good policy, but it is very clearly the policy we’ve got, regardless of whether or not something is ‘just a number.’

law / school — 3 Comments
10
Jun 07

On textualism, purposiveness, and maintainability

[Written in large part nearly a year ago, but holds up well on review, so publishing it while waiting for the late-night, extra-innings, baseball game to wrap up.]

Some ponderings on what the legal scholars call textualism and purposiveness, roughly what the rest of us tend to call strict and loose constructionism. These thoughts were inspired by my class in Legal Methods, which explores, among other things, how to interpret laws. Since I’m not likely to directly return to the issue until next semester, I wanted to force myself to write this down now and think them through. It is worth noting that these are likely the least original things I’ve ever written, given how hashed over this subject has been, but they are all new to me :)

The reason why this ends up cast as a conservative v. liberal thing, typically, is (per Posner) “[liberals] think that modern legislation does not go far enough, [conservatives] think that it goes too far. Each school has developed interpretive techniques [i.e., strict and loose construction] appropriate to its political ends.” Loose construction, then, is about creating new law to fill in gaps, and in most recent political history in this country, new law has meant liberal law. If the recent conservative ascendancy continues, though, and the hypocrisy of the conservative ascendancy continues, we’ll almost certainly see conservative loose construction, and liberal strict construction. It should be interesting to see how that develops, and whether or not we see more consistency or more hypocrisy as a result.

There are a number of reasons the problem comes up:

  • Some of the issues that call for loose construction are caused by Congress just plain screwing up- using language that is badly and unnecessarily imprecise. If Congress says ‘legal fees’, and then explicitly and repeatedly says in the record ‘when we say legal fees, we mean legal fees and witness fees’, then surely you would think (1) Congress could have just said in the law ‘legal fees and witness fees’ and (2) a sane court would say ‘OK, they meant legal fees and witness fees’. But I didn’t make this example up. Congress didn’t add the three words, and the Court did completely ignore what the Congress said it meant, eviscerating the clear intent of the authors of the law. That said, they’ll likely be more careful next time- so maybe it isn’t a bad thing. (See more on that below.)
  • Some of the problem stems from the nature of the Congressional process- the record is inevitably incomplete, and potentially dishonest, so there are times when what Congress says publicly it wants to do, and what it agrees to write to get votes, are different. This is a legitimate problem, I believe- closed-room discussions are substantially and meaningfully less democratic than the discussion of a full body of Congress. (This is not to defend the poor state of deliberation in Congress, but merely to point out that it is even worse in commitee.) So should the courts pay attention to that? They often do.
  • A third cause, and the most difficult one for the strict constructionists, is the ENGLISH99 problem- language is not standardized and not standardizable. The textualist argument explicitly presumes that there is a standardized English, which is clearly not sane.
  • A fourth cause, of course, is Congressional incapacity- they just can’t anticipate all the corner cases that a law can cover. This is a deep problem for both camps to grapple with. If even in the very, very best case Congress can’t write perfect laws, how do you deal with this?

An open question for me: is the spirit maintainable? Can a system built on some mix of incompetence and fallibility (on the part of Congress) and baling wire (on the part of the Court) hold together? My current sense is that it is not holding together very well. Loose construction almost definitely produces more just short-term results, but it also clearly encourages sloppy lawmaking (at best) and undemocratic behavior (at worst) by Congress.

Given those problems, where is the balance? Is making the system more sustainable, reasonable, predictable, etc., at the cost of relatively temporary, small injustices, worth it? What if the injustices are bigger? longer-term? I am really not sure how to reasonably assess the problem, though it is clear that the current method of figuring out the problem isn’t working either- instead of a meaningful political discussion (like the one that has apparently led the EU to declare that all law should be interpreted purposively), it gets handed off to the Supreme Court justices to bicker about, with the occasional new nominee thrown in. This seems like nearly a worst-case scenario, unfortunately.

[Tangentially, I have a hunch that much of the significance of this problem is that the ur-text- the Constitution, particularly the Bill of Rights- is what provides much of the animating 'spirit' of American national law, and it is in many ways antiquated. If, for example, it contained a clear, simple privacy right, there would be much less need to engage in purposive interpretation when it came to Constitutional issues. We'd still have this tension when it came down to interpreting regular legislation, but inevitably legislative mistakes by the Court are less significant and easier to fix than Constitutional ones.]

misc. — 3 Comments
8
Jun 07

rollercoaster day

Hands and feet inside the moving life

Good morning meeting with boss: good

not finish everything you wanted to before boss left for the weekend: bad

go to airport to go to New York to see girlfriend: good

have flight canceled: bad

get offered new flight, leaving earlier: good

get offered new flight, leaving earlier, the next day: bad (so yes, I’m in RDU for the weekend)

go back to the office, wrestle with the vpn, triumph over the vpn: good

get home, discover that you’ve got the right vpn setup but have forgotten your password: bad

check grades, discover that the class you were most panicked about gave you a miraculously good grade: good

So… sucks not to sleep in my own bed, but I’m thrilled with my grade. Hope the rest of my exams turn out nearly as well.

Image under CC BY-SA by tom.arthur.

misc. — 13 Comments
8
Jun 07

open source advice: 3 + 3

I’ve never before actually answered a blog meme (unless you count this.) But sogrady tagged me with one that I thought was interesting. Here goes: three things I would tell every open source business to do; three things I would tell them not to do. (In an attempted to do more than just repeat what others have said, these may be a little more abstract and a little less useful, but I hope they are fun.)

To Do:

  • do emphasize volunteer QA: one serious, concrete piece of advice, first. Most of your users want to help you make your software better, and QA is a pretty low-barrier way to let them do that. So take advantage- invest in public bug tracking systems; invest in people whose job it is to help volunteers use those systems; invest in ways to get regular builds to volunteers so that they can test and verify on the latest and greatest. User-driven QA is very, very difficult for proprietary software to do, and should be a great differentiator (both in quality and in cost) for open source.
  • do something revolutionary: software is more fun and more dangerous (to the other guy) when it is really revolutionary. Not merely innovative- ‘we want to do something new’ but revolutionary – ‘we want to actively overthrow the old.’ We are here because we revolutionized the method of software production, but to continue to grow, we have to start revolutionizing other things too. Be the Wii, not the PS3. If you really want to catch them by surprise, be a revolutionary using open source, but not in software. The people outside software (well, except for poor Encyclopedia Britannica) don’t yet realize what is coming for them.
  • do it with joy: if you’re in open source, you’ve given away most of the weapons past software companies used to build a lead and then coast – you can’t get lockin and you can’t get a monopoly. So unless you get bought out and retire, you’re going to be on this treadmill for a long time- someone will always be at your heels. So have fun, or the treadmill will burn you out very fast.

To Not Do:

  • don’t be afraid to embrace freedom: open source businesses tend to be allergic to the word ‘free’. That is a mistake. Say ‘freedom’ a lot. Love freedom. Embrace freedom. Your community likes freedom. It differentiates you from the proprietary competition, and if you embrace it wholeheartedly (not just this weak ‘openness’ stuff) it will differentiate you from most of your open source competition too.
  • don’t let your community’s fears drive your feature choices: if you’re a real open source company, you’ll have very direct contact with your customers. This is normally a great thing, but when you make a decision they don’t like, particularly if it scares them, you’ll hear about it loud and long and clear. If you let that negative feedback drive your decision making, you’ll never grow beyond the needs of those people. You must not be afraid to piss them off when you truly believe that a design decision is for the broader good. Remember, the pissed off people scream- the happy people just go on with their lives. So you can’t just say ‘more people screamed than thanked us’- that isn’t a useful metric.
  • don’t stick around if this isn’t for you: This is just not for all of us. Open source is people, in all their messy glory, interacting primarily as partners and friends rather than as hierarchical worker bees. Some people take to this like a fish to water; I dare say that most people should. But not everyone will. If you don’t – if you think this should just be about a copyright license – get out now, and spare both yourself and others the irritation of dealing with you in a situation you’re just not suited for.

Can’t think of anyone I want to tag right now; maybe in the morning.

forfacebook / law / licensing — 7 Comments
6
Jun 07

interesting paper on the GPL, talk at trilug

For those interested in the question of whether or not the General Public License is a license or a contract, and how enforceable it is, I was pointed earlier today at this very nice little paper1 by Duke Law prof Sapna Kumar. Also gives a fairly good background on the license, what it does, and what it means. This might be good for my law school classmates who were mystified, but still curious, when we glossed over the GPL on the very last day of IP law last semester.

For those in the triangle, Prof. Kumar will be speaking tomorrow night at Trilug. Come see her explain the GPL v3, and see me bite my tongue and try not to monopolize the Q&A. ;)

[Ed. not tonight, next Thursday, the 14th. Doh!]

  1. well, little by law standards- 36 pages [↩]
misc. — 6 Comments
6
Jun 07

ph33r [1]

ph33r. I am now footnotes enabled.1

Using the wp-footnotes plugin.2

  1. yes, footnotes. [↩]
  2. link [↩]
misc. — 16 Comments
4
Jun 07

thankfully the number of people who will understand this post is small

<hp> your personal mission statement could be like “oGALAXYo of the legal world”

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This work by Luis Villa is licensed under a Creative Commons Attribution-ShareAlike 3.0 United States.