Cairns Blog

Yet Another DRM Disaster

Microsoft announces that it will no longer issue DRM keys for music purchased on its now defunct music service.  As CNET explains: "This means that, while former customers can listen to their music on authorized computers for as long as the hardware lasts, they won't be able to transfer songs to a new PC after that deadline."  In other words, since the DRM won't work, you'll have to throw away the song.  Good grief!

Can the FCC fix the internet?

The Federal Communications Commission comes to Stanford this Thursday to hear from two panels of experts and members of the public on issues related to broadband network management practices.

Magic and Intellectual Property

Jacob Loshin's talk in the IP Surprise Lecture Series is now up online for viewing here.

His article: Secrets Revealed, How Magicians Protect Intellectual Property Without Law is available for download here.

If Code is Law, Why Lawyers Must Learn to Code

The Ninth Circuit handed down its decision in Fair Housing Council v. Roommate.com last week.  Chief Judge Alex Kozinski authored the 8-3 en banc opinion upholding the three-judge panel’s finding that Roomate.com is not shielded from liability under the Communications Decency Act because the design of the website renders Roommate.com an information content provider (aka an author) rather than a publisher.  The site’s required drop-down menus where users must specify answers to questions about sex, sexual orientation and presence of children offend anti-discrimination laws, says the majority. The Website’s search facilities enable users to search based on the same criteria.  The court found that Roommate is not entitled to CDA immunity for the operation of its search system either, because it “directs emails to subscribers according to discriminatory criteria.  By contrast, the dissent argues that providing drop-down menus should not be deemed to constitute “creating” or “developing” information.

The holding of the case centers around the design -- drop-down menus instead of free-form questions -- not the content of the Website.  According to the court, it “designed its system to use allegedly unlawful criteria so as to limit the results of each search, and to force users to participate in its discriminatory process. In other words, Councils allege that Roommate’s search is designed to make it more difficult or impossible for individuals with certain protected characteristics to find housing—something the law prohibits."

Naturally, reading the opinion, I was struck by the similarities to the Grokster and other peer-to-peer file sharing cases where the finding of indirect copyright liability turns on the design of the communications protocols, which induced others to infringe, or the P10 cases and Arribasoft cases where the technological architecture is crucial to determining if the technology itself was fair use or aided and abetted infringement.  Two years ago, the Sixth Circuit in Stewart v. Blackwell held that: the use of punch card and other outdated voting technologies that fail to provide notification and confirmation of a vote to the voter in certain Ohio districts but not in others led to “statistically significant disparities between the levels of residual voting among African-American and non-African American voters."  The court recognized that the choice of technology can mean the difference between the right to vote and disenfranchisement.

Yet despite this recent attention to technology design in the jurisprudence of cyber- and IP law, the discipline has, for the most part, taken little interest in design projects.  Though the law is centrally concerned with the regulation of social relationships that create the conditions for freedom of expression and human flourishing, technology design has largely been regarded as the purview of computer scientists, engineers and interface designers.

In the digital age, legal rules and legal doctrine, however, are not enough to protect civil liberties.  The rights and freedoms of free speech are protected by software code as much as by legal code. We have seen that the copyright act itself is powerless to protect the user's right to read in the face of strong digital rights management technology. We have seen the constitutional rights to privacy and freedom of association eroded by new surveillance technologies.   Yet the solutions we invent to these problems primarily focus on legal strategies.  What laws can we pass to regulate the design of technology?  How should judge’s rule to safeguard fair use freedoms?  We turn the question of technology design, into one of legal analysis.

Cyberlaw has become co-opted and domesticated by traditional methods of legal inquiry, focused on the solutions offered by legal institutions.

Cyberlaw should meld the design of East Coast Code and West Coast Code. Instead of asking only how legal doctrines apply to new technological environments, we could be asking ourselves how legal principles might inform how we design those technological environments.  As lawyers, we need to get into the business of doing design.

Law regulates construction yet lawyers do not need to learn engineering.  We regulate food without becoming chefs.  So why do lawyers need to learn and practice design?

First, I’m not sure that we don’t need to practice the epicurean and engineering arts more to serve clients better.  On my first day in practice as a telecommunications lawyer, the partner in charge gave me two textbooks to read and learn about spin and yaw and transmission frequencies.  But with the short shorts available to us in law school, self-evidently we cannot teach all subjects.  Still - we should be teaching the importance of knowing and understanding how law does and does not condition behavior in other industries, whatever they might be.

Second, when we teach through cases rather than interfaces, we avoid the complex questions (and answers) at the intersection between computer science and law, between legal code and software code, between statutory construction and engineering.  We are not giving students the toolkit to solve problems -- our highest and best use according to Brest and Krieger and the ABA.  If code is law, lawyers need to start designing code.

Third, law school is professional school that is intended to teach future members of the profession a set of skills that serve the normative goals of social justice and democratic values.  To complement the existing toolkit of lawyers. I'm not suggesting an interdisciplinary approach, whereby law taught with or informed by some computer science (“law and....”). Rather, I am suggesting that the professional training of cyber lawyers and the scholarly pursuits of cyberlaw academics should involve a central preoccupation with the design of technology. There is a critical media literacy as well as a critical media ability that we lack.

Fourth, if we are, indeed, interested in the pursuit of social justice -- and this is why tech design is different from engineering or cooking -- then lawyers and law schools need to be in the “business” of designing and architecting tools informed by these values.  It is the technological intermediaries that are the strongest forces shaping expression in the digital age.  The design of the interfaces determine what we and cannot do or say online.There are well-known exceptions but, for the most part, the new frontier of cyberlaw is tamed by the old conventions of the legal academy.

Fifth, the best offense against an IP maximalist agenda is a good offense.  The content owners are seeking to control our use of intellectual property, not only through lobbying and litigation, but through technological strategies.  We need to focus our efforts -- as some do -- on developing counter-measures, alternative technologies that promote freedom.

Sixth, lawyers like coders think in terms of procedure.  We are used to devising rules for social behavior and translating them into the text of legal code.  First you file a complaint then an answer then a reply and then a motion to dismiss.  This is not much different from coders who also devise a set of steps and then implement their work in software that controls and constrains some actions while enabling others.  Our professional rhetoric is merely two different dialects of the same language.

Seventh, there are opportunities emerging to use technology to participate in the work of governance.   By domesticating cyberlaw and limiting it to only a certain set of skills, we forego the opportunity to develop technologies for democracy.  If we leave it to the techies, we risk the opportunity to inform their design with our values.  If we do it by ourselves, however, we run the risk of not knowing all the options available to us.

Rebooting America Essay Contest Deadline May 1

All the details are here:
http://www.techpresident.com/blog/entry/23763/announcing_rebooting_democracy

Contributors include: Clay Shirky, Yochai Benkler, Susan Crawford, Craig Newmark, danah boyd, Scott Heiferman, Tara Hunt, Josh Marshall, Howard Rheingold, Brad Templeton, Mike Turk, James Rucker, Morra Aarons, Patrick Ruffini, Lisa Stone,  Joe Trippi  and me offering ideas on how to reinvent democracy in America using the Internet.

Here's the posting.

Want to win a free pass to PdF 2008? Send us your ideas...

Today we’re happy to announce a new PdF book project called Rebooting America: Democracy in the 21st Century, an anthology of essays from leading thinkers and activists (check out the impressive list here) that we'll be publishing to coincide with this year's Personal Democracy Forum conference June 23-24 in New York City.

The anthology features our essayists' response to this challenge:

When the Framers met in Philadelphia in 1787, they bravely conjured a new form of self-government. But they couldn’t have imagined a mass society with instantaneous, many-to-many communications or many of the other innovations of modernity. So, replacing that quill pen with a mouse, imagine that you have to power to redesign American democracy for the Internet Age. What would you do?

We’re quite pleased with the group of contributors we’ve lined up. But the collection wouldn’t be complete without reading your thoughts, too, so we’re inviting our readers to submit essays telling us how to make America better, stronger, more inclusive and participatory, and to vote on their favorite essays. Up to three winning essays will be included in the anthology.

Go here to submit your essay and to view previously submitted essays from other readers. If you like someone’s essay, vote it up, if you don’t, vote it down, and we’ll take your opinions into account. The book’s editors, Allison Fine, Micah Sifry, Andrew Rasiej and Josh Levy will be making the final decision.

Essays should run from 500 to 1500 words, and the deadline is May 1.  If you’re interesting in submitting your ideas, go to http://rebooting.personaldemocracy.com to get started. 

If you've already registered for PdF 2008, don't worry--you can still submit an essay. If you win, we'll refund your fee.