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Legal Pundits Pan Internet Exceptionalism
Back in Brown writes: "This article from today's Wall St. Journal (via MSNBC) presents the viewpoints of several legal commentators that the Internet should be treated like any other invention and not subject to novel legal interpretations. 'The steam engine ... probably transformed American law, but the "law of the steam engine" never existed.' Another quote: 'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'"
Comparing the information highway to the steam engine highway is innacurite. Besides, each situation deserves to be judged individually, something our law makers should be aware of. Simply preserving precedent ensures we will never throw off the shackles of the past.
Sounds good to me.
Who the heck needs the DMCA, CDBPTA, and all that other crap anyways?
Oh, I know -- the lawyers that bottom feed off of it.
If you could be told what you can see or read, then it follows that you could be told what to say or think - BoC
> 'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'
As a "cyberbuff", I happen to think lawyers are afflicted with insufficient perspective, disdain for the possibilities of the future, unnecessary clinging to outmoded business models, and technophobia.
(Of course, the reason they're right, and the cyberbuffs are wrong, is because lawyers make the laws, and the laws direct those who have the guns. But what a wonderful world it could have been without them.)
Information technologies and the internet *are* different for a simple reason: information scarcities are almost puerly artificial.
:)
Until recently, even software distribution has had a physical component (e.g. the media + manual). We are approaching the point where software this is the exception, with the norm being distribution via the internet (free software has already passed this point). Any pretence of software or "content" being scarce in the traditional sense of the word will then be completely bogus.
Add to this decades of corporate abuse of the copyright system (Sonny Bono, et al.) and you have a system that is terminally screwed. Perhaps they are right: we shouldn't be making exceptions for the Internet, we should overhauling the whole system
They don't want a set of laws that specifically apply to the internet because there weren't specific laws that apply to trains. (Great choice, cause the internet, and trains are so similiar)
Let's choose something more modern. Let's say we shouldn't have laws that only apply to the internet because we don't have laws that apply to the phone, or the fax machine.
What's that you say? Oh, so we do have those laws.
How about comparing the internet to the post office? Oh, we've got laws for the post office too huh?
Trains were not a revolution, just an evolution. People already knew how to get from point a to point b, a train just made the process faster. There's no reason laws for trains would need to be made.
The internet on the other hand, is unlike anything before. You can steal something, without depriving it's owner of his property. You can destry someone's property (software) and all they have to do is put it back.
The internet does need laws, but I find that people don't know where to stop. Sure we could have spam laws, or we could just use technology to block spam completely. We could have laws that outlaw unwanted phone calls, or you could buy a $30 device that requires all callers to know a 4-digit pass-number.
What we need is intelligent people guiding those that make decisions... People much smarter than most Slashdoters. The problem is that the government will be happy to spend a trillion on corporate bail-outs, but you'll practically have to work for minimum wage if you want to take a government tech job.
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
IANAL, but if I undestand correctly, the great deal of Western law is based on 'common law', the practice of allowing previous court decisions to affect future decisions.
The problem with trying to apply laws to the Internet is that digital technology has caused a wave of obsolescence in any kind of existing communication, information technology, and dozens of other of societal concepts we hold near and dear. Law based on past precidents rather than fairness and equitable behavior can't hope to keep up through such an incredible wave of advancement.
Take copyright, for (our favorite) example. It's an artificial scarcity placed on information to encourage development of new information, bit it music, data, scientific research, or text.
Since digital technology has forever completely erased the possibility of having a finite supply of any kind of information, the length and breadth of copyright law is dying-- screaming, kicking, doing it's best to cling to existance in a scary new world inhospitable to it, but dying nonetheless. Like symbiotic bacteria, only the lawyers are keeping the dinosaurs of companies that profit by control of information alive.
Other facets of law relating to digital technology will go through similiar changes. Those laws that can adapt will make the change, just like the small rodents and other mammals who survived the Yucatan blast when the dinosaurs were obliterated. We will find the fossils of those who can't in the strata of obsolete legal records.
The next Slashdot story will be ready soon, but subscribers can beat the rush and slashdot the links early!
Your analogy proves their point.
Cars introduced new laws (e.g., the infamous "red flag/red lantern" law in Britain), but it didn't invalidate any of the earlier laws.
If you couldn't cut across a field with horse and buggy, you couldn't cut across a field in your new car.
If you horse trampled a child and caused injury, you were responsible. If your car ran over a child and caused injury, you were responsible.
If you couldn't transport something in your horse-drawn buggy (e.g., moonshine), you couldn't transport it in your car.
In contrast, a lot of sleazy characters <i>are</i> attempting to claim that commonsense laws don't apply to the net. E.g., how many pyramid scheme letters did you get that were "legal" since they didn't use the mail. Too bad the Postal Inspector held that he did have jurisdiction since they used the postal mail to get the money! How many companies continue to push illegal products (drugs, both prescription and illicit), or "low rate" insurance which has a low rate because you'll never have a claim paid, or any of the other scams in circulation. Or how about the companies that are fradulently impersonating third parties to get past the spam filters. (Want to see the bounce messages for fradulent messages sent out "by" my company?)
Even the new laws that the 'net does need should be informed by historic precedence. The specifics are, but almost none of the concepts haven't been seen repeatedly over the past few centuries.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
Proof that the author and those quoted don't really understand what they're dealing with lies in the underlying assumption that one nation's laws can be binding on something like the internet. Certainly the French government/judiciary may rule that Nazi memorabilia advertisements and sales are not legal (online or otherwise) in France and take measures to prevent that. However the ruling in France has nothing to do with the availability of such things in India. That is the somewhat unique nature of the internet - it is multinational.
The author further tips his hand by reducing the discussion to a discourse on laws, pundits and law students in America (meaning the U.S.), showing no awareness of the extranational nature of the internet. Just as the internet is no one application (a suprisingly apt realization on the author's part), the internet does not exist in any particular place, making it indeed worthy of special consideration when it comes to legislation and legalization.
Certainly some do get carried away with the internet as champion of true democracy, etc., but the fact remains that the internet does form a unique medium for all sorts of activities carried out by participants from around the globe. It only bears comparison to the steam engine in that it has definitely changed our way of life, but the comparison ends there. Attempting to approach the ramifications of the internet in the same manner as the steam engine was approached is to suffer from "insufficient perspective, (and a )disdain for history..." as well as being short sighted and overly simplistic.
Like most Slashdot commenters, I have not read the article before writing this comment. However, I feel like posting a quick comment. It describes what I currently feel about the laws and Internet. It's not argumented. It's not great, but I hope it can sparkle interesting counter-comments. :)
:)
Internet doesn't need new laws. There are laws that punish the acts of thievery, of diffamation, of misinformation, of undecency, of conspiracy, etc. They are generally sufficiently abstract to apply efficiently to the Internet. The government and the judges might need to adapt the way they apply the law, but it's no the same as writing new laws.
Internet need new laws. It changes some fundamental aspects of our society. The copyright law is the first one that should be revamped. But it needs a nationwide debate, not a corporal sponsorship. Some assumptions about the act of publishing should be rethought, too. In the Internet age -- my, this sounds so pre-2k! -- everyone can be a publisher. Everyone should have the right to be.
Internet need labels. Everybody can have a role on the Internet that was previously only obtainable by professionals - retailer, publisher, advisor. Yet you can't expect everybody to fare equally well, and you shouldn't expect them to be equally liable. Labels should be instored, allowing someone to say "I am a good quality publisher. I accept that I am more liable than un unlabeled publisher. You can trust me more than un unlabeled publisher".
I'm sorry I can't write something more coherent; I'm so exhausted; I need to sleep.
But the first legislative response to the car was the passing of the red flag act in the UK which required a man to walk in front of a car with a red flag.
The attempts to legislate cyberspace in the US have mostly been as clueless. The CDA, COPA, DMCA, etc. etc. All pushed with the primary goal of making a congressman look cybersavy.
Where the article is wrong is that the technologists are not the ones calling for the laws. It is the army of self appointed experts who think everything is changing, Internet time, etc. etc.
The media thinks that the experts on the Internet are academics who write books on it not the people who write RFCs, architect standards etc. They think that everything is changing at the speed of light only because they have so little grasp of the technology.
It took us six years to get HTTP adopted as a standard. We are currently working on redoing RPC and CORBA in XML syntax. We are doing it better (and the CORBA losers have only themselves to blame), but ten years after it could have happened.
I did two specs in the past 18 months which is pretty much a record for standards work. It is going to take us at least five more years before a significant fraction of commerce transations are e-comerce (but not value, since a small number of transactions account for 90% of value).
The point is that the Internet does not move so fast that the legislature needs to take special measures.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'
Classic marketing/financial services speak, to be expected from a banker quoted by the WSJ I suppose. Anyway, here's what that means:
"People who are keen on the internet don't look further than their noses and take a narrow view, have little consideration for what came before and have an unhealthy obsession for the latest technology and the next big thing."
A nice, sweeping generalisation, that's more anecdotal than scientific. (Or, put simpler, they don't have any numbers to back up what they say but, hey, everyone knows it's true don't they?)
If you can say something in an "artistic" way, use lots of long, fluffy words, instead of a straightforward manner, using plain, simple language, then a job in public relations or investment banking awaits you.
And people in those industries wonder why we don't believe everything they say...
"Accept that some days you are the pigeon, and some days you are the statue." - David Brent, Wernham Hogg
Actually, both the development of railroads and cars have cause massive legal exceptions - perhaps this wasn't the case with the Federal roads (for example) in the States (although I doubt it), but wholesale forced confiscation of land for roading has been the norm in many Western countries. In fact, studying the history of rail in the US suggests a number of legal exceptions were made for the railroad companies in terms of how they wished to do business.
That said, I wouldn't be unhappy about winding back special laws for new technologies; we can start by invalidating business patents, patents on software, patents on natural phenomena generally, EULAs, grossly extended copyright provisions, acceptance of the notion that trademarks were meant to prevent criticism of companies, that technology companies should be exempt from normal labour law provisions like overtime and hiring immigrants, or that teh recording industry should be able to attack my property if they think I'm a crook. Getting fair use back would be nice, too.
Hey this ending legal exceptionism looks like good shit.
What's that? This is a complaint by vested interests who like these Draconian violations of existing norms and laws against citizens, not meant to cause us to reexamine the results of their special pleading? Oh, I'm sorry, I misunderstood. I didn't realise it was a device to enslave and shaft us harder.
Proof that the author and those quoted don't really understand what they're dealing with lies in the underlying assumption that one nation's laws can be binding on something like the internet.
... the internet." It is merely that a nation's laws can be binding upon the French subsidiary of Yahoo, over whom it had plain and simple jurisidiction. As much as some would like to pretend that Yahoo France is a "virtual" company residing in the internet, the Nazi paraphernalia case is a very bad poster boy for accusations of virtual jurisdiction.
Straw man. The "assumption" is not that "one nation's laws can be binding on
Yahoo WAS a bad citizen in this case, and was slammed accordingly. Under US law, this result seems foolish and foreign, but we in the US do not get to impose our constitution on France -- a place brutally savaged by the Nazis. France applied its own law as against its own corporate citizen and its parent, a citizen that faced pretty bad and ugly facts in its own defense, using traditional notions of extraterritoriality.
Yahoo is probably not the best example to suggest that these authors don't "get it." Indeed, the poster seems to have as much difficulty understanding the law as he insists these jurists are having difficulty understanding the tech.
In fact, Lessing was wrong - there is a "law of the horse". One of the earliest legal codes we have, from one of the Scandanavian kings (Ranulf?), has at least two horse-specific laws. And they're interesting.
One law provided that, if a horseshoer made a horse temporarily lame, (which happens occasionally, more often with inept horseshoers) they had to provide a loaner horse until the hoof healed up. This is perhaps the first piece of consumer protection legislation. Note that it's very specific, and, like modern "lemon laws", places the blame unambiguously on the service provider. It's not a general tort or liability law; it's a law that arbitrarily assigns blame for a specific, common problem.
Another law provided that that if someone borrowed a horse and rode it around the village, they were guilty of a minor offense, but if they rode it out of the village, they were guilty of a major offense. Some jurisdictions make that distinction today in auto theft cases, mostly for juveniles.
So the law of the horse did exist when horses were important.
There's a sizable law of steam. Start with the ASME Boiler Code, which is very specific and has the force of law in many countries. Boilers used to blow up frequently before there was law that set standards for boilers and the people who design and build them. The U.S. safety regulations for steam locomotives (49 CFR 230) are still valid and enforced. There's a National Board of Boiler and Pressure Vessel Inspectors.
For a history of the law of steam, see page 35 of this recent boiler explosion investigation report. There's a law of steam for good reason. The first law of steam was enacted in the US in 1838, after a riverboat blew up, killing 300 people. The issue remains; a steam locomotive blew up in 1995, killing several people.
Thus, claims that there is no "law of the horse" or "law of steam" are false. Such laws exist.
This is not new. If a person sues a mail order company, where is the case going to be held? The same principals that have historically been found in contract law between two parties who form an obligation in differentjurisdictions should apply to cybercases and I have not seen a compelling argument to demonstrate that Congress and the Judiciary should tackle the Internet CyberHighWay with new laws.
"There ought to be limits to freedom"
I think the author has a very good point to make. Unfortunately, the author misses it. Let us suppose that he is correct, that there should be no special new laws regarding the internet. It is just a bunch of computers linked by cable and fiber, that it is not "cyberspace" any more than telephone users create "telephonespace". There should be no special laws, because it is just people communicating. Then why does the DMCA exist? What about the CDBPTA? These are special laws.
His point is valid, but he misses the mark. All we want is a guarantee of freedom of expression. He selects a difficult case, one that many of us (myself included) do not understand. The author concludes that our misunderstanding of international and French law means that we want special rights. The people who are really pushing for special new cyberlaws are the RIAA and the MPAA. We don't want special laws, we just want our constitutional rights.
Yes, the author is right, there are people who want special rights online. However, he presents the wrong group.
transformed society in ways that never could have been imagined before. It made possible
industrial techniques and housing patterns that couldn't exist without it. The internal combustion
engine accelerated these effects.
The biggest difference between 'cyberspace' and all previous inventions (other than, to a much
lesser extent, radio and TV) is the fact that it defies geographic classification into legal
jurisdictions. For example, when I post this, am I doing it in
- Kansas (where my home is)
- Missouri (where my ISP is, at least locally)
- Virginia (where their domain is registered)
- Massachussets (where Andover.net, official Registrant for slashdot.org is),
- the physical location of the server(s) that the domain points to, if not any of the above
- Each of the sundry locations of
/. readers - All of the above, plus every single router in between
???We laugh at the hubris of the {French|German|Dutch|*} government trying to prevent servers
located in another country from carrying 'illicit' material. Until they go after DNS, routers, or other
servers that are within their borders to prevent them from moving Evil Bits from those sites.
Each of these other inventions brought with them entire agencies to police the technology. It's just
a matter of time before this one gets the same treatment.
[100% ISO 646 Compliant]
SVM, ERGO MONSTRO.
Few industries receive as much specific attention from the law as railroads. Railroads, especially in the United States and Canada, were the only heavy transportation that mattered for decades; as a result, they affected just about every industry, the politics of the entire continent, and society in general; and the laws, even today, reflect how influential the railroads were. Ever looked at the United States Code or the U.S. state's typical statutes? American laws were customized for railroads early and often in the late 1800s and early 1900s. Special railroad laws are still all over the place. U.S.C. Title 45 (out of 50) is nothing but railroads, and that's just some of the railroad law. Among lots of other things (if I recall correctly): they get special treatment when obtaining the right-of-way; the labor laws treat railroad workers differently; and they even have separate federal retirement from Social Security. I'm sure the laws in other countries address railroads extensively also.
Trains were not a revolution, just an evolution. People already knew how to get from point a to point b, a train just made the process faster. There's no reason laws for trains would need to be made.
... apply the same law to the net as you would to physical copies of the same crap in the real world.
It could be argued that "the internet is not a revolution, just an evolution. People already knew how to communicate with one another across great distances, the internet just made the process faster. There's no reason laws for the internet would need to be made."
Do we need laws to govern the internet? I would say that it is unlikely that we do, and that at the very least we need to proceed very, very carefully. Far better to pass a needed law too late, than to pass unnecessary, and harmful, legislation too early.
Do we need to restrict speech on the internet? No, not any more than we need to in real life.
What about child pornography? Already illegal
What about commerce? Our existing interstate commerce laws, tax regimes, etc. are more than sufficient and can be applied equally to online commerce as they are to brick and morter commerce. Buying something online should be no different, legally, than picking up the phone and ordering someting by voice.
What about 'online stalking.?' No different than making obscene or prank phone calls in the real world, or verbally harassing someone in person
What about the children?!? They are in no greater danger than they are when they are out on a public street, and just like in the physical world, it is the parent's responsibility to see to their children's safety, not the government, and certainly not at the expense of my constitutional rights.
I could go on and list virtually every subject which gets raised WRT the "need" to regulate the internet, and in each case point out that the application of existing law is more than sufficient to keep society on roughly the same even keel it has generally been all along.
The problem is that the media and copyright cartels see an opportunity to grab immense power, power that the courts (and even congress) has deliberately denied them in the past. However, the ludditism of Hollywood, the digital illiteracy of congress, and the legalized bribery we call campaign financing have all come together to produce a very dangerous mixture of political cluelessness and political will that may just result in these very powers being extended, with manditory DRM technology enshringing Microsoft's desktop monopoly into law and granting those very same Hollywood Luddites veto powers over the deployment of all new consumer technologies.
This should scare the shit out of any clear thinking individual.
You can steal something, without depriving it's owner of his property.
No, you can't. That sentance is in direct conflict with the very definition of stealing, as has been rehashed here and elsewhere numerous times.
Copyright Violation is not theft. It is not recognized as theft by the law or by any of the freely accessible dictionaries online.
In fact, the only place where copyright violation is considered theft is in the minds, and newspeak, of the copyright cartels, and those who thoughtlessly echo their propoganda.
Even in a nation increasingly afflicted with fictitious legal absurdities (like equating a corporation with a real, thinking, breathing person) we haven't even gone so far as to equate copyright violation and theft.
We should not engage in the absurd, legal fiction that communication over the internet is somehow fundamentally different than communication by telegraph, telephone, fax, snail mail, or an in person meeting over lunch. Fundamentally it isn't any different, it is merely more effecient.
The Future of Human Evolution: Autonomy