OpenLaw to Support Open Source Community

ralphclark writes "Some of you may already know of the OpenLaw project, hosted by the Harvard Law School-based Berkman Center for Internet and Society. The OpenLaw group is, in their own words "an experiment in crafting legal argument in an open forum". In other words: legal cases built, like open source, according to the principle that many eyeballs make bugs shallow." They are looking at taking it to a bigger level - click below to hear more from ralphclark. "

From ralphclark: I recently contacted Wendy Seltzer at OpenLaw to ask if they could assist the open source community in its struggle with the forces of evil (the MPAA and the DMCA and UCITA). After a brief dialogue she finally wrote back:

" I have been thinking more about this project and the tools we'll need for it, since I haven't gotten a negative response, indeed several positive ones, from people at the Berkman Center.

I think it's probably best to start low-maintenance, with a mailing list and a Web page, then to add components such as Web-based discussion and a collection of links and documents.

If you have suggestions for links to the key documents/Web pages, that would be a great help."

I think this is our clarion call: I've seen plenty of good quality debate on these issues here on Slashdot, and the most unsupportable viewpoints have been flamed to death by now so I'm sure there are lots of people reading this who have something valuable to contribute. You should e-mail your (sensible) suggestions to Open Law Feedback and she'll pick them up from there. One suggestion: When you mail, write your idea below in comments - than people can avoid duplication of effort.

Comments

This is not a stupid idea, *except* . . .

[Venomous Louse]

The word of the day is "pro bono". Lawyers have been doing voluntary community service for a long, long time. The eyes of many lawyers probably will make "bugs" shallow.

However.

As far as law is concerned, the eyes of a million SlashBots are worth about, oh, golly . . . I don't think they make numbers that small. How's this: That and a dollar will get you a 50-cent cup of coffee. Just barely.

I can see it now: "IT"5 ALL ABOU7 THE SEC0ND AM3NDM3N7!"

God help whoever as to wade through the email on this one.

Re:This is not a stupid idea, *except* . . .

[Weezul]

This is not really a problem so long as they can construct an efficent means to ignore the dribble, like using non-lawyer readers to sort and categorize the ideas for the lawyers. The best design might be to produce a digest for the lawyers, like an on going slashdot interview. Most of us would read an moderate just for fun, but the people who are really doing something could just come allong and pick up the digests. The lawyers would also drop off the most recent cort documents and plans of attack to let the unwashed masses have a look and make suggestions.

It would keep people informed and keep the lawyers from making technical mistakes. It might also generate more pro-bono lawyers because it is a chance to become known to the rich sillion valley types and gain some techno-law-savey. This is exactly the kind of project we want our future politicians to brag about having been a part of when they graduated from law school.

Re:This is not a stupid idea, *except* . . .

[GenCuster]

This is a valid question "As far as law is concerned, the eyes of a million Slashbots are worth about ..."

I can tell you that the technical perspective is something that many lawyers including Tech and IP lawyers are lacking. The help that many of the people here could offer could be quite powerful. Let me offer an example.

I was talking with my father's girlfriend, an IP Lawyer, Pre-law at Michigan, Law from Harvard Law, who works with universities on how to structure joint research IP licensees. She asked me what "This whole DeCSS thing was about?" and "Wasn't it great that the MPAA went after pirates so quickly?" I went on to inform her what the DeCSS really did, and didn't do. She was shocked. It lead to a larger discussion over the application of free speech to source code (An idea I read about in a Slashdot thread.) She thought the idea was a "brilliant way to look at the problem and presented a real challenge to the application of patents to source code."

How much better if these people could benefit from the good arguments Slashdot can generate on the very cases they are trying to try.

Now the only problem is her understanding "Natalie Portman petrified in Hot Grits"

Nat Custer

Re:This is not a stupid idea, *except* . . .

[Venomous Louse]

I can tell you that the technical perspective is something that many lawyers including Tech and IP lawyers are lacking. The help that many of the people here could offer could be quite powerful.

Hmmm . . . From that perspective, it suddenly begins to make some sense. I'd taken the article to be proposing that we ask Slashdotters about the law, which would be nothing but a hindrance. It would be like asking lawyers about technical issues. But as you say, both groups need to be better acquainted with each other, and that's something we can probably help with.


Now the only problem is her understanding "Natalie Portman petrified in Hot Grits"

:) Hey, those guys at least tried to be funny. Compare to the spam nowadays, and they come off damn well.

Re:This is not a stupid idea, *except* . . .

[dsplat]

In fact, a Slashdot-like forum, possibly using the same code, could be just the ticket. Moderation by lots of eyes to make the better material bubble to the top could save even the people to do the final screening for the lawyers some time.

Some of the things that we, the non-lawyers can do for the lawyers are:

• Find documented cases of prior art for patent disputes. The lawyers know the legal terms, but there is no way that they can stay current on as many technical specialties as we can.
• Put them in contact with experts in those specialties.
• Explain technologies and terminology. Okay, we aren't all good at putting the really heavy terminology into layman's terms, but some people here can.

Yes!!!

[JustShootMe]

Now this is a good idea.

It's obvious that the Open-Source (free-software) community is under attack from those who don't understand it and would like to kill it. This is probably the best way for us to meet this challenge - leveraging the one thing that makes us different (and arguably nimbler and better) than our closed-source nemeses.

Not all of us are lawyers, and that's OK. When it comes to technical issues, you have the techies to make the cases, and the lawyers to put them into formats that the courts will accept and that could possibly win.

I don't think I'm exaggerating when I say that this marks a turning point for free software. Maybe now we can mount competent defenses/offenses against the large corporations who would stifle/censor us.

Kudos.

If you can't figure out how to mail me, don't.

Open Government

[The Man]

How long until a new nation is founded, which has openness as its first principle? Much like Open Source, it'd be populated by people who take good government seriously, and are willing to dedicate the time and effort to it. Despite what anyone may say, it's never actually been done before. Most people even in democratic nations believe they have more important things to do than try to improve the government, and just accept that it will be seriously flawed. Just like most computer users don't want to dedicate time and effort to improving software, and instead just accept that it will be seriously flawed.

So, who's interested? :)

Re:Open Government

[JustShootMe]

Maybe it's just human. There's an old saying that 80 percent of the people are followers and 20 percent are leaders. Maybe the 80 percent that are followers are just followers, and maybe that's the natural order of things.

The only real problem comes when one person decides that he or she is a leader, and that everyone else must be a follower...

I'm realizing more and more that people are different, and what works for me may not work for them. For example, I find going to the mall to be distasteful, at this point in time. Others don't. And there's nothing wrong with that. I find certain things (DeCSS fiasco, for one) to be morally unconscionable. I'm moved to do something about it. Others aren't. Nothing wrong with that, either, just puts the onus on me to do what I can about it.

So, in that way, this is an open government. We're free to be ourselves, for the most part, even if it means that we don't care. But those who *do* care should act.

I'll get off my soapbox now.

If you can't figure out how to mail me, don't.

This would be greatly appreciated

[Bruce Perens]

I've asked quite a few attorneys to do pro-bono assistance for the free software community, advising on the legal issues of copyright, licensing, patents, etc. Not one of them have come through so far. They cite:

• It's a conflict of interest with my proprietary software customers.
• The liability issues are too large. I don't want to consult for nothing and then find a malpractice suit or some other liability suit is the reward for my efforts.

The only attorney that I know of who is helping pro-bono is working on the DVD lawsuits.

We want to file our own patents and then license them for blanket use by free software. We need attorneys for that. Sometimes we want to go to court to fight things like the DVD lawsuit or patents that are being enforced against free software. That's more than just consulting, but it would be great if we could get some more pro-bono help with that, too. That one pro-bono attorney, and the staff attorney at EFF who is working on DVD, are pretty overwhelmed and could use some help.

Someday, we might have to be the agressor, too. Enforcing our licenses, or attacking something like the DVD Copy Control Consortium in the courts. I'm not expecting all of this to be pro-bono. We need more money to do this than we have so far.

Thanks

Bruce

Re:This would be greatly appreciated

[Fnkmaster]

Bruce, I know there are a number of professors here at the Harvard Law School who would definitely be interested. A friend of mine was working with them against the Copyright Extension Act last year or the year before. I will be attempting to solicit interest from Jonathan Zittrain an HLS professor who is definitely interested in these issues, in helping with the DVD case.

In general I think academic lawyers would be more amenable to doing pro bono work for the Free Software community, as they Get It (TM) based on my interactions with them, whereas lawyers who do IP type stuff in the corporate communities are almost universally of the Not Getting It (TM) variety (I have filed patents before and come into contact with those sort of bozos).

What do you suggest?

[JustShootMe]

This is all fine and good. I've joined EFF, I've joined the ACLU, and I put my considerable moral support behind all of this...

But what else do you suggest?

If you can't figure out how to mail me, don't.

Re:What do you suggest?

[Bruce Perens]

Make lots of money on free software and put it to work for free software politics. Money is power.

I asked this guy who made $2B on free software for some help with PR and he said yes. I hope they're all like that.

Bruce

Re:suggestion

[friedo]

There is such a law. You can not prevent someone from reverse engineering a product by copyright protection in the US. The argument comes down to whether or not what you're doing is reverse engineering. If you take a chip, look at it under a microscope, take it apart, and copy it, that's copying, and that's illegal. The design of the chip is intellectual property and is copyrightable. The function of the chip is not necesarily intelectual property, though. If you hand some engineers a chip in a box, and say, "we get this output from this input" and make another chip that does the same thing, there's no actual copying involved, and that's fair. The internals of the chip may be totally different, or very similar.

IANAL, but my dad is, and that's essentially how he explained it to me. I'd appreciate any corrections/clarifications.

Legal forums

[Signal 11]

I don't see why this wouldn't work.. provided it's used properly. Legal advice / forums have the slight problem of money. Even if it was done in good faith and at no cost there would still be people trying to get such a group to put time and effort into things maybe better spent elsewhere.

This isn't easy to explain, but think what would happen if it became public knowledge that there was a group of lawyers working for free for "just" cases. They'd be innundated... both with requests and with people upset they didn't make the cut. Unlike code where the product is already there - a legal forum would help push a case from start to finish. It's the "something for nothing" crowd I'm worried about here..

The second, and less important, problem I see is that unless there is a clear set of guidelines / criterion for what such a forum would - and would not do or allow is laid out, it's doomed from the start. The reason is simply that there is no focus, hence work is duplicated, petty arguements break out over what the Right Thing is (or direction), and things just never get done.

Lastly, it would take a helluva lot of lawyers to do this... and, uhh.. in our country.. they're pretty busy already.

Re:opensource law?

[JustShootMe]

That's not open source. That's an open API. There's still an elite cabal of people (lawyers) who are the only ones (in most cases) that put the stuff together and submit it. In order to do most things, one must go through a lawyer.

This gives us access a little more to the internals. Things must go through the kernel API now, instead of the userspace API. It's the difference between a libc call and a system call.

If you can't figure out how to mail me, don't.

Re:Is this ok...

[JustShootMe]

No, I agree with his ideals, actually. But there's a such thing as tact. And there's a such things as compromise. Free software wouldn't be where it is now if it weren't for ESR. It'd still be a fringe movement. ESR knows how to talk to the people who have the money. And in spite of RMS's ideals, it's the money that gets the wheels moving.

RMS has done a lot, but he is ultimately not the reason it is going mainstream. One of them, yes. THE? No.

For the record, I do admire ESR standing up for his beliefs and stuff. I don't knock that. I wish I were half that idealistic. But... life, at least for me, isn't that way...

If you can't figure out how to mail me, don't.

Re:Create Slashdot style forum (maybe from /. sour

[JustShootMe]

This is a decent idea, but I'm not too sure how it would actually pan out. Lawyers are a finicky bunch, but that's not their fault - law is very finicky.

Starting small, with sites such as this, is probably the best idea.

If you can't figure out how to mail me, don't.

Re:opensource law?

[JustShootMe]

But in this case... the documentation actually determines how well the code runs.

If you can't figure out how to mail me, don't.

Why patents?

[Bruce Perens]

Once you have patent rights to trade, you can get other people to make their patents accessible for Open Source software.

Consider how the GPL uses copyright against itself. I'm thinking of the same sort of strategy, although not as elegant as RMS did with GPL.

Thanks

Bruce

Re:Why patents?

[Weezul]

Consider how the GPL uses copyright against itself. I'm thinking of the same sort of strategy, although not as elegant as RMS did with GPL.

I think on of the versions of the OPL dose this, but it is also worth pointing out that you could possibly pay for a whole research institute with patent revinues. The institution would be a non-profit orginisation which was obligated to compramise between money and morals.

A still better idea is to get the NSF to say "universities and existing research institutes should attempt to take some minimal responcibility for who they let use their patents" and get a law passed which says "the courts can grant these institutions the right to deny the party who paid for the research the right to use the patent if it's use is questionable enough." This means that envoromentalists or OSSers can protest at the university (and/or get a judge to file a motion regarding the questionablness of the use of the patent) instead of protesting the company. This could be really effective for the enviromentalists (preventing things like terminator genes) and OSSers, i.e. it is an opertunity for a coallition which we should seriously investigate. Plus, once the nuts at green peace are earning a reputation for blugening corps with patents there will probable be a lot fewer people with money who want to increase the duration of patents. :)

It might also be a good idea to fight for some sort of patent "financial equality act" which basically says that you can be sued for patent abuse, but that limited finacial resources for an effective patent search will be taken into account if you are just some Joe OSS developer, i.e. we are allowed to do nasty things with patents, but the big corps are not. This could be sold as an "aww.. look at all the pore small buisnesses which have been strangled bill."

We could get honest free traders to support these things.. and maybe even the WTO (as labor and enviromentalists keep puttingthe presure on them).

Jeff

Re:Why patents?

[Chris Johnson]

The trouble is, the GPL does not use copyright against itself. It uses copyright for its own interests (which is quite in line with what copyright is for), and it uses the low barriers of entry for copyright to make it easier to propagate its interests.

It is too costly to try and use patents similarly, and it's not an analogous case (which is why you sense it isn't as elegant). Instead of advocating a free method of permanently making works free to all who will treat them a certain way, you are advocating a staggeringly expensive method of confining works within restrictions that can only be overcome through agreements. Your end result is not a large body of work that is copyright a particular way, it is a large body of work with significant legal entanglements for the industry, easily abused by people in moments of annoyance or through prejudice.

It's sort of like this. The GPL does not concern itself with the motives of its users, only with their interaction with itself. A developer can be the most proprietary, patent-seizing bugger in the world, but he can still use GPLed work all he likes as long as he upholds its requirements. Now, in this patent proposal, how many people are advocating that the portfolio be used as a weapon and withheld from all those who will not share their patents with us? How many people want the portfolio withheld from Microsoft, from Unisys, from other 'enemies'? Isn't the whole point of a patent portfolio to selectively withhold it from others in order to make them do what you want?

This is the key difference between an opensource patent portfolio and the GPL, and why I adamantly oppose the accumulating of any such portfolio. GPLed works are available by default, and only your refusal to comply with the terms denies you access to them. Patents are unavailable by default, and only coming to an agreement with the patent holder entitles you to them. Even without the cost, even without the many people wanting to punish others in the industry, I still could not tolerate this proposal, because it does not diminish the problem of patents at all. It only furthers it and brings new levels of politicking and trouble to the OSS community.

What I would like to see, instead, is a glaringly public Open Concepts website, not just for software developers but for general inventors to use. At this site you could write up everything you've invented, and have it hosted somewhere searchable where people can get at it, where the patent office can do searches through it, where it's out in the open. Such publication would be effectively public domain (or it could specifically be made public domain), so a good idea could be instantly seized on by individuals _and_ the monstro-corps- the distinction is that, if an idea is listed on this hypothetical site, it is a case of prior art and blocks any patents from being filed along those lines.

THAT is what I see as a useful reaction to patent hell. How do you expect to deal with chokingly restrictive intellectual property issues by making more of them? The only way is to establish a place, a method, where people can choose of their own free will to cooperate instead of hoard. Then, you have to make that method a block against other people abusing this freedom- with the GPL, this is done by copyright, and requiring the license to be propagated, and in so doing, you prevent someone from grabbing all the code and making it proprietary again. With this public domain site proposal, this is again done by using the rules against themselves- in this case, rather than having code being made proprietary, the behavior you want to block is of somebody taking the ideas and patenting them. By making the ideas formally public (in the scientific tradition, BTW), you are blocking anyone's ability to go and patent those ideas, yet as with the GPL, they are free to _use_ them as long as it's within the accepted restrictions. For the GPL, that means you can never un-GPL the thing as a third party and remove people's access to it. For this proposed PD storehouse, it means you can never patent an idea taken from the storehouse, and remove people's access to it.

I'm sorry, but your patent-portfolio entirely depends on arbitrarily removing people's access to it. I realise that many people feel removing the access for 'bad people' is a good thing, but I can't agree with that, and I strongly suggest that it will not have the results you want from it.

Law Is Not Source Code

[Seth Finkelstein]

I've been thinking about OpenLaw for a while, ever since I saw the original annoucement. I can't shake the feeling that it's a gimmick. Yes, it sounds good, cool, the wave of the future - but what IS it?

Is it that the lawyers in a case are going to post the briefs-in-progress and invite public comment? This is NOT the same as open source. The "open" part is the same, but law is not source code.

Source code is, to a first approximation, either correct or not. If someone wants to work on a routine in a program, it can usually be modularized, parcelled out, and tested to some degree of reliabily. Critically, it's typically OBVIOUS if it's completely wrong.

A judge isn't a compiler. No-one really knows if a legal argument is going to work or not. It's like the world's worst debugging session, there's almost no way to retest the results.

It sounds like a good idea, but there's a lot that's very unclear in practice.

Re:Law Is Not Source Code

[Seth Finkelstein]

When it doesn't work, the judge basically says "That's different", which has the formal name of "distinguished". The best programming analogy I can come up with here was if *HUGE* areas of the language had unspecified and undefined behavior. Sort of like the old C problem where people would write code with pointers and integers being used interchangeably. Except that was considered a bug, not an unavoidable implementation issue.

By the way, if the judge is one of the "clueless, technologically illiterate ludites", why will he or she be impressed by a brief filled with sparkling technical expertise?

Anyway, my point is I'm wondering if there is even a way that many Slashdot-like minds can EFFECTIVELY "apply their reasoning faculties to the project". I'm skeptical that legal parts of a case modularize for effective multiple contributions. Sure, a piece related to expert testimony, I can see that. But nobody tries to substitute an ideological tract for a kernel driver ("I tell you, who is to be master, man or machine? This *scuzzy* bus, this *slave* client, should accept its priority and not disrupt interrupts").

Re:Law Is Not Source Code

[Fnkmaster]

There are definitely ways in which this can help and be useful. First of all, a sort of informal peer review, and common-folk review of some of the arguments involved can be very useful to lawyers, to gauge general reaction to parts of the case.

If you think of it like source code, then it probably doesn't make a whole lot of sense. It is more like a collaborative groupware type facilitation of cooperation. Ultimately, I don't think briefs will be written by groups of people, but feedback on a webboard, open discussion bringing together techies and lawyers is bound to strengthen cases.

Moreover, in cases like the DVD/CSS issues, where multiple cases are currently ongoing in different venues, and more are bound to spring up, it seems fairly clear that a centralized point for discussion about the issues could be additively useful for lawyers in all of the involved cases.

I think if you keep in mind the real useful benefits that this sort of collaboration could provide, and keep away from a strict Open Source analogy, you'll see why it is a Good Thing.

Open-source Paranoia

[Hrunting]

It's obvious that the Open-Source (free-software) community is under attack from those who don't understand it and would like to kill it. This is probably the best way for us to meet this challenge - leveraging the one thing that makes us different (and arguably nimbler and better) than our closed-source nemeses.

Oh please. The open-source model is not under attack from people who don't understand it. It's not like Sony, Microsoft, and Paramount are all gathered around a table going, "That damn OSS. We don't know what it is, but it's high-time it stopped!" While I'm not sure what you mean by open-source, I'll go over both possible explanations (since you're ambiguous about it). Free software has actually been given out by Microsoft (remember Internet Explorer? Netmeeting? Messenger?) and Microsoft recognizes and even links to many sites that promote Windows freeware. I think companies like Apple and Microsoft that deal in decidedly pay-for software recognize the value of free software in promoting their operating system and would never want the practice to stop. As for open-source software, Apple has supported it. IBM has supported it. The DVD consortium is not against it. The NSA is not against it. Wal-Mart is not against it. There's not a coordinated attack against open-source software and to say it is so is to not understand the nature of the legal battles that involve potential OS/free software concepts.

I don't think the law idea is necessarily a bad one. I do think trying to characterize it as a champion of OS/free software is. I will also point out that the open-source community model is a software model and does not always translate into other professions. Law is practiced by registered lawyers for a reason, because there are many intricacies to law that need to be studied to be understood (IANAL). While a community of free lawyers may be a great idea, considering the incredible time-commitment it takes to become a lawyer and the decidedly puny return on pro bono services, I don't see it as a profession you're going to get the world's best and brightest in. Lawyers do not have the mentality of programmers.

And while we're on the topic of open-source models, I use open-source software and I support it, too, but I do not live an open-source life. I do not give people permission to reproduce and change my ideas. I do not give a community the group right to tinker with my car. I do not want an open-source model managing my electric utilities or my sewage or my education. I think open-source ideas have their place, and I think they rightly belong in information services, like programming, writing, and support, but I don't necessarily think they extend into everything.

Sometimes, I don't like computers to cross into real life, and the paranoid comments that prompted this reply highlight a fear of mine that that is exactly what's happening.

Re:Open-source Paranoia

[JustShootMe]

No they're not necessarily against open-source per se but they ARE against what it stands for. In their view, OSS and free-market principles are not reconcilable. It's not the truth, but tell that to their lawyers.

My view is this: OSS is a bit too close to communism for the comfort of most old-school capitalists. The ones control the large corporations, and the money...

If you can't figure out how to mail me, don't.

Re:Open-source Paranoia

[divec]

> OSS is a bit too close to communism for the comfort of most old-school capitalists.

Yes. It's easy to paint this form of "sharing" as communism. Particularly if you forget that copyright is a government-granted monopoly. The market for OSS is a much more free market than the market for closed-source software. But many people associate capitalism with corporatism and government favours for large businesses, which is not free market economics.

Re:Open-source Paranoia

[redhog]

Free software has actually been given out by Microsoft (remember Internet Explorer? Netmeeting? Messenger?)

This shows that you have no knowledge about what Free software is or stand for. Free software is not the same as freeware. Freeware stands for "free as in beer" (It doesn't cost anything), while free software stands for free as in freedom (you have certain rights).
Microsoft Internet Explorer is freeware - it doesn't cost you anything. But it only gives you the freedom of usage and redistribution - not modification, nor distribution of modified versions, which is requered for Free Software.
"considering the incredible time-commitment it takes to become a lawyer" - Then consider the amount of time it takes to become a good programmer. I, for example have learned programming for five years - and still only knows 9 out of possible hundreds or thousands of languages, and yet, there are the data structures and algorithms to learn, for each field of programming.

Not being able to help yourself or your neightbours is the worst sentence you could possibly get.

/"Egil Möller" a.k.a. "RMS (clone)"
--The knowledge that you are an idiot, is what distinguishes you from one.

Re:Open-source Paranoia

[ralphclark]

many people associate capitalism with corporatism and government favours for large
businesses, which is not free market economics.</i>
<br><br>
Indeed. It's nothing more than feudalism: Barons and serfs. Funny to see that nothing has really changed in a thousand years :o\
<br><br>
I'm just hoping that the organizing potential of the internet will change the rules sufficiently to enable us finally to build our own castles so that we can at last compete on their terms. That's why I have great hopes for movements like Open Source, Open Law, and whatever comes out of www.cluetrain.org.

Consciousness is not what it thinks it is
Thought exists only as an abstraction

This was born on slashdot

[bwt]

I've been corresponding with Wendy Seltzer since the initial suggestion that we do this in the original proposal thread. Thanks to sholton for pointing us to openlaw and to ralphclark for efforts to bring this about.

I've also been in touch with Robin Gross from the EFF, who has indicated that she would like to participate in the forum. I hope that we can create a high quality combination of legal and technical input.

This step is just the start, I hope. I would like to encourage people to participate in this. I think it would be a good goal to file an 'amicus' brief to each of the DVD cases that is written using open source methods that represents the views of the open source community.

Free Software != "Freeware"

[Mister Attack]

I couldn't help but notice that you used those terms interchangeably. Free Software is _not_ the same thing as freeware! To paraphrase RMS, free software means free as in you can do whatever you want with it, not free as in beer. Just thought I'd clear that up...
--

Re:Even better ...

[Mr. Piccolo]

WARNING!

Just because something is illegal does not make it immoral. Nor is the reverse true.

We would like them to be equivalent, but differences of opinion over morality will prevent that.

Direct Democracy

[Bizzaro]

Despite popular belief, the U.S. government is not run "by the people." There have always been layers of abstraction between the people and Uncle Sam. For example, you want to vote for your man or woman of your choosing for president. Not so fast! He or she has to first submit a petition to some state office before they can even go on the primary ballot. If and only if your guy has the right number of signatures will they _consider_ him or her. And put an emphasis on consider. In many U.S. states, the political party the candidate wants to run under may just decide they won't accept the person. This happens every election year in New York State with one candidate or another.

And then there is the primary. You think the person with the most votes wins, right? Wrong! Delegates from each state can throw the popular vote any way they choose. For example, let's say you voted for John McCain in the New Hampshire primary, and indeed McCain won New Hampshire. But the good ol' boys in the Republican convention may be in a George W. Bush mood, which is more than likely. They may very well say, "New Hampshire casts all of its votes to Bush." The delegates can do that!

Okay, so now your guy won the primaries and is in the general election. Hey, he or she wins! Nope, not quite. There's a little known group called the "electoral college" that can do whatever they want, and _legally_. Just as with the delegates in the primary, they can decide the people are off their collective rocker and then elect THE OTHER GUY!

Okay, well what about laws. Did you think that the president makes the laws? Nope. He or she can do nothing but veto a law, providing less than 2/3rds of the congress voted for it. Laws are passed by the congress, a relatively small group of people.

So, you want UCITA to be rejected? Where can you go and vote against it? NOWHERE. You have to vote for someone to get into congress first, and then maybe they'll vote against it. But good luck there. It could take 6 years to get a new person into office. By then UCITA could be law.

"But, can't I vote on a ballot for or against a law?" NOT FOR FEDERAL LAWS! This can only be done for _some_ state laws. First you need to get it on the ballot: not an easy task. Then, even if it passes, the state legislature can nullify it the next day. This happened in my state, where the legislature passed a seatbelt law. The _people_ said no and voted to remove it via ballot. Well, I guess we didn't know what we wanted, at least according to the legislature, because right after the _people_ shot the law down, the legislature VOTED IT RIGHT BACK IN AGAIN!

It's frustrating, because the only way a person can support or oppose a law is to vote for a representative that feels the same way. BUT THE REPRESENTATIVE MAY VOTE AGAINST YOUR IDEALS ON EVERY OTHER ISSUE.

Much of the way the U.S. government works is due the difficulties in communication and travel when the U.S. was established in the 18th century. It would be pretty pathetic trying to get everyone in the country to mail in a vote on every issue when the letter could take a few weeks to get across the country. It was therefore considered more pragmatic to have representatives at every step in the process.

The communications or information age should change all this, however. The speed at which people can now educate themselves and share ideas cannot be compared to the way things were in great grandpa's days.

I hope that computers will put an end to the delegate and electoral college system, and even the representative system. And I hope people can be trusted with the responsibility of direct democracy. But that's another issue.

Jeff

This sort of thing has cropped up before. And it has always been due to human error.

Re:Direct Democracy

[Tim Pierce]

Much of the way the U.S. government works is due the difficulties in communication and travel when the U.S. was established in the 18th century. It would be pretty pathetic trying to get everyone in the country to mail in a vote on every issue when the letter could take a few weeks to get across the country. It was therefore considered more pragmatic to have representatives at every step in the process.

While that surely contributed to the representative system of democracy, it was hardly the only or even the main reason. Read the Federalist Papers some time. Federalist #10 argues at some length that direct democracy on a large scale inevitably amounts to mob rule. James Madison would be horrified at the suggestion that inefficient communications channels are the only reason for representative democracy.

Re:suggestion

[gargle]

Ah, but software companies are claiming more than copyright protection. They're claiming that through the device of the shrink wrap license, you have entered into a contract with them where you agree not to reverse engineer the software.

The other thing a legal forum could do ...

[divec]

The other way such a body could help is by giving advice about things to do *before* litigation starts. They could teach the free software community how to protect itself, how to avoid blunders which make litigation more likely.

Perhaps somebody could put together a legal howto. How to keep your copyright enforceable. How to react to threatening letters. And if it comes to it, how to defend yourself in court. Sure, reading a howto is no substitute for years of legal training, but it's better than nothing.

Yes, but no

[/]

I agree that law is not strictly like source code, but the picture isn't quite as bleak as you paint it.

There is one market that openlaw forums could address quite well: those silly cdroms of do-it-yourself legal briefs that you buy and fill in the blanks and use. While it's true that it's impossible to foresee how new judges will react to new arguments in new proceedings, some things have been filed and refiled to death and it's silly to pay a lawyer to reinvent the wheel with them.

And you overstate the dissimilarity between source code and law in another fashion: like with new judges in new situations, established source code can break in new environments and hardware configurations. Just as the user will make a bug report and tell the author that the code doesn't always work in a given situation, so will the would-be lawyer when his argument falls on its face. And while code is more reproduceable than is law, any coder will also be quick to tell you that bugs often seem to appear and disappear with the phase of the moon.

With that said, I have to smirk at what coding would look like if it functioned in the same way that law does in one respect: all those disclaimers about how "I am not a lawyer". Can you imagine what source code would look like if it were sprinkled with comments asserting "This may look like code, and if you try to compile it it might actually work, but I am not a programmer and this is not code."? Feel free to insert a wisecrack about Microsoft here.

Apple's fluctuating profitability.

[divec]

> Apple makes a profit.

It has been known not to for several years in a row. Of course Red Hat makes consistent losses right now, but Apple probably did this at the start, too.

Re:suggestion

[friedo]

I don't know anything at all about the DMCA, but if that is the case, it will assuredly be struck down by the Supreme Court. The right to reverse engineer is as important to Capitalism as free speech and thought, IMNSHO. I'm not very worried.

Re:correction...

[Issue9mm]

Nope, it would be:

17'5 411 480u7 7#3 53c0nD 4m3ndM3n7...
-or perhaps-
17'5 411 480u7 7#3 53c0|\|D 4|V|3|\|dIVI3I\I7...

Or something even more ridiculous...

That's not even worth 2 cents... Sorry.

Help Fight Direct Democracy

[Chris Johnson]

No, you are quite wrong. The United States is a republic, not a democracy- and that is not by accident or mistake.

There's a level of inefficiency built into the system specifically to avoid straight-up vote over issues, and specifically to avoid democracy. Think for a second about what you are suggesting. Consider what votes you'd get for the following issues:

• What is the official American OS? (Windows/Mac/Linux/Be)
• How much taxes should people pay? (twice as much as now/same as now/nobody should pay any taxes)
• Should Microsoft be allowed to innovate and help consumers by standardizing the world on its products? (Yes, they have that right/No, they should not be allowed to help consumers if it hurts Sun)

Beginning to get the picture? Direct democracy is basically an open invitation to pure Politics As Spin, and it is very likely that you'd be the first against the wall, you slashdot reader hacker criminal type you ;)

The problem is, it's well accepted that larger factions _will_ stomp all over smaller factions given the slightest opportunity. That's the way it's always been, and certainly watching the tech industry does _not_ suggest that this tendency has changed with the increase in technology we've seen.

The question you need to ask is, exactly how do you keep all littler factions from being taken out and shot? That's basically what happens as soon as you start attempting to use pure democracy. For instance, in pure democracy applied to the computer industry, this very website is grossly undeserving of any support or 'mindshare'. It isn't about windows- it wastes huge amounts of resources, periodically slashdots other sites and eats bandwidth and offers _nothing_ to support Windows, which clearly has the numbers. Now, if Windows users mostly _want_ Slashdot that would be a different story, but under direct democracy there is no room for the concept of 'Loyal Opposition' much less underground or radical factions. It's a powerful homogenizing force that only begins to really kick in when people sense that they have the power to use this 'direct democracy'.

It's not merely the 'Bread And Circuses' problem, it is worse because you get factions seemingly 'competing' in much the same way that the largely unregulated computer industry has been 'competing': playing dirty as hell, and winner-take-all. If you think having the RIAA and MPAA around treading on your rights is a problem, imagine what happens when The People get to vote on these issues! These associations have media resources that would blow your mind, and sure as 'hacker' is spun to sound like a terrorist, you'll get the issues presented in such a way that Orwell would drill through his grave, and The People will cheerfully vote to have to taken out and shot if you reverse engineer software programs. Hell, I could see _programming_ _itself_ made illegal for the unlicensed, given the right spin- such as these DOS attacks, or some credit-card-oriented spin.

You don't know how lucky you are to live in a system where any particular faction is basically tied up in red tape. If you want to see what direct democracy looks like, look at Microsoft in the tech industry, and imagine them without the DoJ or any government. The trouble is you can't expect people to take an interest in everything: at least the representatives can be expected to read 4000 page bills and the like, as that is their job. You cannot expect the general public to read 4000 page bills before voting on them, so the vote becomes pure armwrestling over how things are phrased and spun. That's not really democracy because people are being fooled...

But what about the opposing lawyers?

[Booker]

How do you keep the other side from following all of your discussions? Do you really want the lawyer on the other side to know exactly what arguments you'll make in court?

I think this is a great idea, but I'm wondering about this aspect. How do you keep your best arguments a secret? Or do you just hope that they're so good, it doesn't matter WHO knows them?
----

Re:But what about the opposing lawyers?

[ralphclark]

That's the same as arguing for security through obscurity. It doesn't work for software when a cracker is determined to break in (see DeCSS for example!) so why should it work in law? If both sides' lawyers are equally competent, they should both be aware of all the arguments for and against, and should both be equally adept at presenting their own side. Given a fair and intelligent Judge and Jury as well, justice should prevail.

That is how the law is *supposed* to work, but rarely does in practice, because one side can usually afford more and/or better lawyers. This is surely the precise issue that efforts like OpenLaw are meant to address. Eyeballs. Bugs. Shallow.

Consciousness is not what it thinks it is
Thought exists only as an abstraction

Re:Correction on Free Software Definition and Impa

[JustShootMe]

You have to make an effort but Linux can be pretty much as secure as OpenBSD. It's just usually shipped in a wide-open state.

If you can't figure out how to mail me, don't.

Re:Correction on Free Software Definition and Impa

[Roundeye]

Their are two major security advantages to OpenBSD and you have hit upon one of them, namely that it ships in a "secure by default" state. Linux can be tightened down to the same state (no unnecessary services, verbose logging, tighten file permissions, apply all known patches, etc.).

The other is not so obvious, but even more important: the source distributed with OpenBSD has undergone an extensive (years long) line by line security audit. Bugs that were fixed in OpenBSD two years ago and posted to various advisories lists are still turning up in Linux (and Free/NetBSD, and even proprietary Unix variants) to this day.

In addition, even given that a Linux distribution which has been audited to the degree that OpenBSD has (btw, there isn't one) is shipped in a secure-by-default (which I don't know of either...) state, this does not imply security. Security is a process which transcends a particular software installation (as the thousands of dumpster-diving and social engineering tales make clear).

There is a tradeoff, however, between security and usability. Most Linux newbies (or anything else newbies for that matter) don't want to be told that they have to reconfigure 10 security settings to easily reset the permissions on their sound card. People run X as root. People, for some reason, like to run anonymous ftp servers. And so on. The distro that strikes a balance between ease of use and default security will go a long way towards widespread adoption.

Already common law?

[William Tanksley]

I don't want to discourage or anything, but since court decisions are already open and capable of being modified by anyone with (a certain standard) education and experience, the law is already essentially open source. It's just that it takes a lot longer than a single case to fix -- a single court case is the equivalent of a single edit-compile-test-debug cycle, and nobody ever wrote a program with only one of those ;-).

This digital millenium copyright act garbage really needs a good jury nullification, though. Now THAT would be quick.

Anyhow, I don't think a whole lot of unskilled but enthusiastic eyes are going to find anything worthwhile.

-Billy

Re:opensource law?

[sinator]

But anyone can become a lawyer if they invest in the training and meet the standard. Or more importantly, anyone can run for office -- our system was designed so that the common man had a chance at office, even though this isn't always the case -- and if they get elected, they can make laws.

Think of law as open source via a smaller bazaar than usual; more like the FreeBSD team than the Linux developers. There's a tighter grip on who can make a CVS commit (write and enact legislation) and who can submit patches (judge's precedents), but anyone has access to the law and, provided they go through the proper voting, running for office or law training, change it...

formal method?

[slashdot-terminal]

I was wondering is there is an exact say formal method of reverse engineering that works for hardware and such. I am really quite curious if I am to be more fully informed about the process. I would have thought it was just guess test and repeat however I may more than likely be wrong in this account.
Sometimes for some things there is no other way to do something then use reverse engineering. Most old and unattended cobol applications needed a little RE before their true nature was discovered.

I hope this works I have been getting a great many network reed errors or something (may be a little conspiracy)

Then let me clarify

[Chris Johnson]

It is _not_ that congressmen are cleverer, more educated, or wiser than your average person (god forbid!). It's just that your average person doesn't have TIME to handle this kind of thing directly. That's what congressmen are _for_, they are basically employees of the citizenry hired to learn about this stuff and make good decisions. Certainly they have faults but they are not that much worse than the citizenry, not worse at all.

My thinking on the matter is colored by a lot of reading on Watergate: representatives were placed in pretty intolerable positions at that time. Some represented deeply conservative constituencies which doggedly supported Nixon- yet gradually the representatives began to realise that Nixon had lied to them, lied to the people, committed crimes, and as impeachment grew closer and closer, they all ended up turning against Nixon, because they owed their constituencies not just their obedience, but their judgement. It was a tough call, causing many of them great anguish- they like you took representation seriously. But the bottom line was this: they knew that their own constituents had been lied to and misled, and they couldn't wait around for 'em to figure that out. They had to act based on the truth.

If it was a pure democracy, it is possible that Watergate could have ended in an expertly 'spun' poll or vote (The Nixon people spent millions in astroturf campaigns through fake organizations, even buying a fullpage Times advertisement under a false name) resulting in a criminal President who engaged in wiretapping, surveillance, and conspiracy to burglary and obstruction of justice... staying in office and continuing to do it. That's not OK.

By the same token, though it's hard to argue that politicians should be trusted, _somebody_ has to get the job of learning up on this stuff and deciding things. When you read history it might surprise you, sometimes, how our pols can sometimes rise above all the corruption and politicking and do what we'd want them to do- even eloquently, movingly.

Campaign reform, yes. Tie the hands of corporate pork barrel special interests, yes. Replace the pols with one big vote- no thank you. For all their faults the pols do that job better than one big vote ever could.

Re:Then let me clarify

[Chris Johnson]

It's not about responding quicker (that might be the worst thing you could do!). It's certainly not about the people being either better _or_ worse than the pols. It _is_ about having or making the time to deal with the issues. What does UCITA mean to you? Well then, what about Monsanto? That's yet another area, agribusiness, and I only mention it because I have heard enough about it to know there are serious issues with that. Many people who know more than I do about dangerous agribusiness developments haven't got a clue what UCITA is or why they should care. And then I am quite certain that there are still other issues I haven't even heard about, thousands of them.

"You shut up! Try running a state for a while instead of a small business and see how you like it!" (Robert Heinlein character in 'Magic, Inc.')

I mean it. There just ISN'T time. No sane person should expect that they can make sensible decisions on all the doings of government, individually. You have to delegate. It's stark raving madness to think you can micromanage U.S. government, and the whole concept of ever-more-direct-Democracy is essentially wanting to turn the country over to micromanagement on the assumption that this would work. Even _if_ the idea of simple majority was a smart one (and there are reasons why it can be an absolute curse), there is just no way 'the people of the U.S.' are able to educate themselves on what they would need to know. Nobody could, even the pols only get part of the way there, and they are (at least in theory) fulltime employed at it. If you want government to improve, figure out how to get the pols to work harder and take more responsibility for their actions, don't just talk about giving the People a governmental 'remote'. "Click 'yes' to fight cyberterrorist acts"...

I guess when I get right down to it I'm saying this: the ONLY key difference between the pols and the People is that the pols get full-time to learn about the issues. The People don't _have_ the time to learn about the issues. They probably are experts on their own backyards, but nobody is giving them time to learn about Qatar and labor issues in Cleveland and UCITA and genetically engineered wheat and the implications of telecommuting on OSHA regulations and SSI Red Book incentives and the price of tea in Des Moines?

If the pols are so useless at this when it's all they do, what on earth gives you the idea that you can turn the decisions over to people who haven't even heard about half of these things? How would you make them listen, how are you going to force them to abandon every free hour they have and stay up extra late at night to be briefed on Somalia?

Yes, I'm getting 'debatey', but so are you. Really, isn't this a major concern?

Re:suggestion

[anatoli]

There are at least two persons (one at TECHNOCRAT.NET, one at OpenLaw) who think otherwise. Here's the argument:

Movie publishers gave me authority to descramble a movie on DVD for the sole purpose of viewing the movie at home. Some of them may explicitly state that I'm allowed to use authorized player only; others may not. It's enough to find ONE DVD that does not explicitly restricts my choice of player to argue that I have the authority to build and use (with this particular movie) my own player, and I can share its design with others. It will not be a "circumvention" as defined by DMCA.

OTOH suppose a game like Quake comes along with encrypted copyrighted non-distributable (hi NP guy) maps, and the license explicitly states that you can use these maps within context of this game only. Then decrypting a map would be an act of "circumvention" as defined, as there are no non-infringing uses for that.

No "moderate this down" this time.
--

Re:suggestion

[gargle]

Well the judge who granted the MPAA injunction doesn't think so.

Re:suggestion

[friedo]

Ummm, AFAIK the MPAA injunction has nothing to do with shrinkwrap licenses. The claims made in that case were intellectual property ones, mainly that DeCSS is a threat to MPAA members' right to protection of intellectual property.

Collective drafting

[Sanity]

I have often thought about creating a system like CVS but which would operate over the web and be designed to allow a group of people to edit English text. This sounds like an ideal application for such a system. If anyone would like to find out more about my ideas (they are quite well developed although I haven't coded anything) please email me".

--

New intellectual property laws are needed

[mangu]

Hardware property is very easy to define, therefore easy to enforce. It doesn't matter what is the law, maybe total capitalism, or communism, or in between. Since property is so closely related to possession, any property of a material object is easy to verify and enforce. The exceptions to (possession == property), such as rents and leases, are few and easy to define.

Intellectual property, on the other hand, is rahter fuzzy and slippery. People may agree on some basic concepts, but very soon there will start appearing exceptions and side issues and ramifications that weren't thought out. It's very hard to get from basic principles to details in intellectual property law for two reasons:
1) Intellectual property isn't so well correlated to physical possession. You may buy a book, the book is yours, but the content is mine, etc.
2) Intellectual property can be duplicated. If I own a tract of land, I can't copy it, if I own a book I can.

Therefore, I think we need some differentiation between material and intellectual property in the law. It's easy to say they are exactly the same in principle, just say "pirating software is exactly like stealing", but saying it doesn't make it true. At least, not in the practical sense.

Unenforceable laws should be avoided, because they create a general disrespect for the law. It's like the alcohol prohibition that some countries tried in the early 20th century. Those laws had only one effect: they created a widespread corruption among the police officers and a lot of admiration and tolerance for gangsters among the general public. The intellectual property laws as they stand now, will only create a cracker worship mentality among the people.

From the /. moderator guidelines: If you can't be deep, be funny

For Law, Is Cathedral Better than Bazaar?

[werdna]

For code, code readings are great. More code readings are better. This is, in part, because code either works or it doesn't, is fast or it isn't. This isn't always true, but it is more true than it isn't. To the extent this is true, the leverage of a community of open source contributors interested in a project is better, not worse.

For law, code readings are silly. It is not true of the law that an argument either works or it doesn't, or that more code readings can be used to find "the best argument." Indeed, to the contrary, Brooks law may ultimately overtake a legal project, and squeeze it to death: too many cooks . . .

A brief is usually subjected to rigid page limitations, and must be delivered up subject to a rigid (and usually short-fuse) time deadline. This is not the stuff for which large numbers of hobbyist contributors can be useful. Where legal research must be complete, it must be COMPREHENSIVE, and where it needn't be complete, it needn't be deep at all.

More important, the twenty pages of a legal brief must persuade. Advocacy is quite different from merely "getting it right." There is never room in twenty pages to give a complete and comprehensive analysis of everything relevant -- but twenty pages is the space in which you must give ALL the analysis of everything important. You must pick your BEST shots, focus on your BEST issues, and present them in their BEST light. Then, one must find the theme, the overall single "gist" of the argument, and weave those arguments therein, so that the judge or judges reading the brief are drawn in and buy into the rest of the story.

This is the kind of stuff for which one mind works better than two, at least after the brainstorming. Sure, it is helpful to have a few more eyes passing over a work to help cite-check and proofread the brief. Sure, it is helpful to have many people providing access to the obscure "home-run" cases when you can find them, if they can find them. But ultimately, someone needs to sift through these myriad claims of genius "finds," to determine their merits and relative weight.

In law, it is the FOCUS and HONING of an argument, not merely a comprehensive analysis, that wins the day. In my view, the Brooks law communications may well quickly defeat the possibility that a brief can be improved by an open law analysis.

At the end of the day, debugging a brief is not a big deal. Cite-checking twenty pages of brief's cases isn't that hard. Fifty people doing it doesn't make it much better.

The economies of scale that make open source work just don't seem to fit into the world of legal research and briefing. I agree with Seth and others who manifest skepticism that OpenLaw is simply an attempt to leverage the hype and panache, without the real and meaningful benefits, of open source.

This is not to say that legal volunteerism is unimportant. To the contrary, it is essential. Better pro bono publico work may well be improved by a network of (a moderate number of) well-wired attorneys working together in smaller bits, but with a central cathedral focus. (It is also a wonderful opportunity to make pro bono work fun!) If this is openlaw, I'm all for it. But it still is just law in a cathedral, albeit with wires, and not in the bazaar.

You sorta missed the point.

[Venomous Louse]

My point is that computer geeks are rarely lawyers. I Am, as they say, Not a Lawyer. Nor are you, I'm willing to bet.

The answer to most legal questions is "ask a lawyer", not "ask Slashdot". Would you hire a programmer to write code? Hell, I wouldn't even hire most Slashdotters to write code -- and they know more about that than they do about the law.

Re:suggestion

[anatoli]

Last I looked, when you buy a DVD, the law gives you the authority to do whatever you want that falls under the copyright 'fair use' protection that applies to you where you live.

Yes. The law (DMCA) also prohibits you from trafficking in "circumvention" devices.

And even if there is, I am not aware of any law that makes this restriction enforceable. Again, check your 'fair use' rights. If I buy a book, there's no way a publisher could make stick a clause on the back of the book saying that this book may only be read under the light of an 'authorised' light source - a bulb which happens to be made by a sister company to the publisher.

Maybe. The law (DMCA) talks specifically about unencripting encrypted work and unscrambling scrambled work, and calls it "circumvention". It is only applicable to digital media.

The "circumvention" under the DMCA that the MPAA are trying to prosecute with is the creation of the plans in the first place by reverse-engineering an existing player.

No, in DMCA lawsuits reverse engineering doesn't play a role. Circumvention does.
--

Re: whatever you mean by "better" laws

[werdna]

Suffice it to say that I disagree entirely. OpenLaw isn't about making laws at all -- its about a methodology for lawyering cases, that is, for crafting legal arguments. It doesn't appear to have anything whatsoever to do with participatory democracy. Your remarks appear to manifest a remarkable overreading of the project, which Berkman center defines as:

The OpenLaw group is, in their own words "an experiment in crafting legal argument in an open forum". In other words: legal cases built, like open source, according to the principle that many eyeballs make bugs shallow."

It is possible that I may have misread/overread what was written there and misunderstood your response, but I don't see how your remarks are in any way responsive to mine, or to the subject matter of the article.

Re: whatever you mean by "better" laws

[werdna]

Perhaps you misread the article? The OpenLaw project is about a methodology for developing legal arguments in ongoing cases, and has nothing (except in the most indirect sense) to do with lawmaking or participatory democracy.

"Warranty-related remedies" submission to OpenLaw

[Animats]

I submitted a document of mine on warranty-related remedies to the Microsoft Remedy forum on OpenLaw earlier today, but so far, it hasn't appeared on line there. It may be in the moderation queue, or they may have technical problems.

I'm not sure their discussion mechanism actually works; I don't see any items other than the ones the OpenLaw staff posted, and at one point I got the message Warning: Uninitialized variable or array index or property (phorum-collapse-general) in home/httpd/html/msdoj/discuss/read.php3 on line 271. So they need to do some debugging.