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Techies vs. Laywers & Judges
sl3xd asks: "With all the recent controversy about laws being passed about/with relation to current technologies, I've seen many, many postings about various members of out law establishments not understanding the technology. While there is some substance to this argument, my observation is that many of the 'Techies' posting have an even more incorrect view of what the laws involved are than the Lawyers/Judges can possibly have with technology. Do the lawyers know more about the technologies we love than we understand about the laws they fuss over? Or do we techies understand the realm of law on a level higher than the lawyer's understanding of technology?"
"The lawyers at least are told (in court) what the issues are, what the technology does, etc. They honestly do understand a great more than they are given credit for. They may not be guru's- but they (generally) require the case to be made plainly enough to them that they CAN make an informed decision before they actually do make a decision. They learn about the technologies involved.
Forgive me for bashing us techies (being one myself), but honestly, I believe that there is FAR more to understand within the various laws lawyers understand than in the technology we techies know."
Ah! A good, controversial question. I'll leave you all to discuss this one a bit further. There is quite a bit of food for thought here.
Technology changes fast enough that we can't etch a law into stone before the technology makes the law obsolete (not to mention the technology!).
I think it is more that we have our own opinion (logical or not) of what makes our technology work best. The lawyers/judges have their own view of how it should work which in my own opinion is set more towards benifiting people commercially then really making a technology work to it's fullest ability.
Of course, I'm just as guilty :)
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"You can't shake the Devil's hand and say you're only kidding."
and thats more than most lawyers can say.
i don't know about other people, but i get into computers and programming and all that stuff because i'm interested in it and i enjoy it. in my experience, *wanting* to know something makes it a lot easier to learn something.
perhaps it is the same with lawyers. if they want to learn about laws, it will be easier for them than me. if they want to learn all there is to know about the technology involved in whatever case, it will be easier than for joe-blow who is proud of not-knowing about tech "stuff".
From my admittedly rather limited dealings with lawyers (setting up net business, etc.), they seem to be _aware_ of technology but not necessarily _understand the implications_. Witness the RIAA and their ridiculous squabbles. I think that although the legal streets are tough for us techies to navigate without a lawyer, the reverse is even more true.
It seems that here in the U.S., with the number of laws that have been struck down by courts on Constitutional grounds, it appears that the lawmakers know little, if anything, about the law (and alot of them are/have been/profess to be lawyers). With some of the laws that judges have allowed to stand, it appears that many judges also know little about the Constitution.
If they appear to know so little about their own field, how can they know anything about tech?
Just be sure to wear the gold uniform when you beam down -- you know what happens when you wear the red one.
Lawyers and Judges both have to go to Law school (and take bar exams). They know all the Laws about technology and such very well.
However, they also know how to manipulate them to let them win their case. The DVD lawyers really do not have a case to the majority of the world, but for the lawyers arguing the case for DVD, if they can stretch a little bit of law here and there they can win the case.
Most lawyers also that we see taking cases like eToys vrs eToy and DVD vrs us, do not care if they win or lose either. Remember the old quote about lawyers that goes:
"You win some, You lose some, But You get PAID for all of them"
Anyways, if what we here about smart people taking well paying jobs, then lawyers and judges aren't dumb, they are just interested in $$$. (Or re-election if your a judge). They may not know how to use Linux, but they sure as hell understand its legal status...
Is it progress if a cannibal uses a fork?
"Or do we techies understand the realm of law on a level higher than the lawyer's understanding of technology?"
It's all about humility with us techies, isn't it?
jpowers
-jpowers
Technology, however, is a set of facts that are learned and calculated. Lawyers don't have the advantage of intuition to help them the same way that techies have for law.
What we see as simple usage of the net or any medium, lawyers and non-techies in general see as whole new frontiers. Example: ftp vs www. For us, it's basically the same thing at the end of the day: a stream of bits coming & going from our machine. To them, 'files' and 'web pages' are two separate entities!
One large issue that comes to mind is mindset between the two entities: techies think of things in computer science terms: performance, scalability, robustness, etc. lawyers think of things in legal terms, that is, in terms of interhuman interactions: fair, reasonable, etc. Imagine looking at the current domain name squatting issue. first-come first-serve seems good 'nuff for many techies (myself included), but now lawyers want to bring in trademark law? Oh come on! That's a whole other namespace altogether!
Ah well, enough ranting. As long as people would rather wait 30 minutes holding for a customer support representative instead of 3 minutes reading their system manuals, the world is screwed.
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How do you keep an idiot in suspense?
Tell him the next version of Windows will be faster, more reliable, and easier to use!
Care about electronic freedom? Consider donating to the EFF!
I think lawyers understand perfectly, on a layman level, the technologies and their potential implications. I think they deserve credit for that.
On the other hand, it's true that geeks and techies have opinions on the technology they use that differs from the common man or the desires and needs of a large corporation. The typical geek has (and I apologise for the generalisation) a tendency to libertarianism, and a strong belief in the sacrosanct quality of freedom of speech and anonymity, at the cost of a few criminals getting away with it.
Now, this is certainly not the Government or the multinationals' point of view. To them, a more middle-right wing approach is preferable, where proper methods of control are put in place in order to fight crime, including crimes against the State. Multinationals also thrive on a society with a Right-wing approach, as they wish for less reglementation as possible in the Public sector.
Where am I going with this? Why, it's quite simple. It's this approach, and not the technology itself, which is the fundamental difference between lawyers and geeks. Lawyers are dominated and work for a world of Governments and large business interests. They have to legislate for a practical business world and not for technological utopias and moral principles in application.
I think we both understand the technology perfectly. What we want to do with it, on the other hand, is the huge difference.
I think the real issue is that tech-type people (generally) like to deal with reality as we see it. We tend to look at the law as though it ought to make some sort of objective sense. It doesn't, and it's not going to.
Remember, it takes almost no intelligence to be a lawyer. It takes a great deal of scholarship, it takes the ability to absorb mind-numbing amounts of information in the form of cases and laws and procedures, it takes the willingness to do whatever is desired by the people who pay you. It doesn't take a serious amount of brainpower.
This being the case, why should we expect lawyers to have a deep understanding of technical issues? Most have neither the time nor the inclination to under these issues, and I suspect a considerable minority of them simply aren't smart enough to grasp the implications of new technologies.
On the flip side, most techs aren't interested enough to study the law deeply. We more or less expect it to follow our version of "common sense", and dismiss it as irrelevant when it differs. I think that the mindset/personality type/whatever that leads one to become a tech is very different from that which leads one to being a lawyer.
To tell the truth, most "Techie" misunderstanding of the law happens because we really don't take the time to do thourough research.
Putting together a strong legal case is something that takes an extrodinary amount of research into existing rulings (precidents), or constructing a case convincing enough to throw out existing precident. This is why the EFF and other watchdog groups are so terribly important.
I think the larger concern is how to change existing law to allow for new technology. Most laws today seem to be passed on lobbying dollars and the ignorance of elected officials. (e.g. That communications law (? don't recall the name offhand ?) that was overturned by the Supreme Court about a year ago.
As the judicial system seems to be fairly strong against technical "hoodwinking" I think the danger exists of these large groups/companies using legislative coersion to achieve thier means. (Which will tie up the courts all over again, ad nauseum...)
On a technical knowledge level: When it comes down to the dirt of the 'law', I would say lawyers probably understand technology better than geeks understand the law. Lawyers in most trials have been told the technical aspects of the case involved insofar as the technical aspects involve the case. Geeks usually have little knowledge of actual laws and how they are interpreted by the court system. On a social level: I would say that geeks understand the social concepts of justice and fair play (right vs wrong) better than lawyers understand geek culture and how the social aspects of geek culture applies to the technologies involved in particular cases.
"Anyone who can't laugh at himself is not taking life seriously enough." - Larry Wall
I maybe wrong, but it's my understanding that many techies are educated (college). Being educated, we can usually make good decisions about law, where as a lawyer who is educated in law may not know much about the technology out there.
Logical thinking can usually create good decisions, but it doesn't help non-techies understand concepts way above their head.
As techies, we probably understand more about law than does the average shmoe on the street. We understand more about most things than does the average shmoe on the street because we, like the cat, besides being next-to-impossible to herd, are curious.
As to whether we understand more about law than do lawyers and judges understand about computers, that's a tossup. I'd have to say that, like anything else, it varies by individual.
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Pretend there is some witty statement here.
Of course, there is a place for arguing about whether a particular law is good or bad. But I see too many people who don't even realise there's a question about what the law actually is, and who seem to want to argue about what should happen on a case-by-case basis, with no concept of the overall structure of the law.
11.0010010000111111011010101000100010000101101000
There are plenty of lawyers out there who have technical backgrounds. I am not a lawyer (yet -- I am in Law School) but I have met a bunch of lawyers with Ph.D.'s etc.
I hate to hold myself out for criticism, but I think that the majority of slashdot posters have no understanding of the legal profession.
Lawyers are professionals who provide a service. They have to represent their clients in their clients best interests. They might not be the best for society, but so be it. Lawyers generally are not in a position to take the higher ground. Most of the remarks hurled at lawyers should truly be redirected at the companies that they represent, because in reality they are calling the shots.
As for my thoughts on slashdotters knowledge of the laws, it is spotty at best. A little knowledge is a dangerous thing. Since I have been in law school I have been reading the law type articles, and it is plainly obvious to me when the author of a post is a lawyer of just some geek.
And believe me, I'm not antigeek. I was an EECS major at Berkeley, so I spent four years living with a major that rhymes with GEEKS.
So that you don't think I'm biased, I ought to point out, from on Anonymous Coward to another: I'm a programmer, not a lawyer.
How many managers and VP's out there say they know the technology the have or are implementing? How many of those do you think really know. I have been both "techie" and management and I would say that as a manager, I had less of a clue about the technology I was implementing or talking about unless I was doing hands on work with it. I find it very difficult that any lawyer/judge has real knowledge of technology except for the marketing crap they are fed. Unless you learned it, used it and got frustrated with it, you don't really know what you are talking about.
Taking a course in sentential (sp) calculus, is nearly *required* for understanding a lot of the legalese language, but I don't think the actual concepts behind law are that difficult.
*Anybody* can walk into law school straight out of college with no background in law and succeed. The same cannot be said for science-related post graduate programs.
A whole lot of lawyers don't major in law as an undergrad, and some lawyers don't even go to law school. They just hit the bar exam and get their certification. (Not that I'm saying it's an easy task but a lot of former paralegals go this route....)
If we ever do get to the point where law is so complex, that bright people with an interest cannot understand the laws they read, we need to scrap our laws and create new ones that make sense.
Being a techie and being a lawyer are not two mutually exlusive clubs. The main problem is that almost all techie lawyers become patent lawyers. While there is a need for good patent lawyers(to defend against all these crappy patents), there is also a need for lawyers who can handle technical issues.
Personally, I am applying to law school right now so that I can do something within technology law. While I will probably take the patent bar exam, I do not want to be a patent lawyer. Hopefully I can work on the corporate side with some of these new tech. companies.
I also think that we need to do what we can about getting a group together to provide legal help and advice to open source programmers. It would probably need to be done on a pro bono basis. I have heard many people say this, but I don't think any action has been taken on it. If you are interested in working on such a group give me an email. Also, if you are interested in becoming a lawyer and want some advice on the application process feel free to send me some mail.
Come play Heroes of Might and Magic Mini online.
I think "Software Development - A Legal Guide" by Stephen Fishman is a must read, and not just for programmers, but anyone interested in the issues facing the industry today. It gives an easy to understand, no "lawyer-speak" reference to Patents, Copyrights, Trade Secrets, Licensing, and Contracts, as well as other issues. I heartily recommend it.
It's the law makers. Honestly, I have more respect for lawyers than I do for politicians. It seems the problem in America is that many of the politicians are too old to even gain a firm understanding of computers and technology, and rather than learn, hastily pass laws out of fear. Just look at America's policy on cryptography. It defies common sense, but the policy is set under this irrational fear that the government will lose control if it doesn't regulate the crap out of it.
The role of a judge is to interpret law and apply it to the concrete case that is shown before him. The role of lawyers is to take advantage of whatever provision there may be in the law, to their client's benefit.
The problem seems to be that no matter how well informed a judge or lawyer may be, the decisions must be in harmony with the legal system. Laws are not prepared to deal with things so unmaterial and fast-changing as internet, cookie technology, linking to copyrighted material, port scanning, GPL, ad caching and so on.
Given the slow nature of the legislative process my bet is that this mess will remain for a while. And no matter how well intentioned a judge can be. Law makers are the ones who can make a difference.
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"People ask FAQs all the time". - David Allen
I almost feel like it is an essay answer on one of my university finals! Ack!
Anyway, I think that in some cases the judges have a very hard time grasping the situation - the etoy case is a perfect example. If there is nothing as lame brained as this in the world, I don't know what can possibly be.
But, on the other hand, what did the etoy lawyers do? From what I can tell - not much. I don't think they really had a clue what was going on, else the case never would have gotten this far.
Look at the lawyers for Microsoft in the current battle - yes they are loosing - but they are not the ones running around spouting marketing jargon at every chance. MS is doing that themselves. And Judge Jackson seems pretty tech savvy.
But, idiocy in the justice system does not even start with tech stuff - think back to some of the really boneheaded cases that have come up. The CDA was not a tech case, and the judge there tossed it. The lady who spilled coffee on her lap - that was a boneheaded justice system there.
But, if I was going to start pointing fingers and waving them about, then yes, I think there is a problem with the justice system when it comes to laws, and I do not think that it has to do with the speed of laws being made and then outdated. I think it has more to do with the age of the people doing this stuff. They don't have a firm grasp on the clue stick. I don't think I would even want to try to explain to an 80 year old guy how to use a computer, which I think is a lot of what goes on in some of these tech cases when the judge is trying to learn the tech stuff. I mean think about it. Would you want to be the guy to teach Judge Woppner to use the fsck command?
I think that most slashdotters and slashsons are concerned with the motivation of the lawyers. Since many US Citizens feel disenfranchised from both Gov't and the legal system, they feel more inclined to a lack of respect for the laws churned out by said system. Many folks see money as the over-arching force that motivates the lawyers and the CEOs of the companies that employ their services. Since the majority of slashdotters are not multimillionaires, they think they have an unclouded view of the situation that the $-eyed lawyers could not possibly hope to share. A good follow-up question would be: What is the primary motivation of lawyers today? Equal and fair treatment for all citizens? The morals and the ethics have been completely separated seemingly, is this the best(or only) way to run a legal system? Ah well...too much philosophizing...I yield. Handcrafted Sig: I'd rather search for a needle in a haystack than a piece of hay in a needlestack!
While the basic premise here is true - techs generally don't know the law that well - on most issues this just isn't all that important.
The complaints haven't been about judges/lawyers getting the law wrong, but rather about them getting the technology wrong, which is something we *do* know about.
The complaints about the windowing patent, or the one-click patent aren't about the intricasies of patent law. The complaint is that the "advances" were obvious in their field, or that much prior art existed. That's a technological question, not a legal one.
Much of the DVD brouhaha focused on questions of fact, not questions of law. And we're quite right to complain when the facts are mis-stated by lawyers and judges.
There's also a larger issue brewing: the desire of large companies and their lobbyists (in the US at least) to institute laws and make decisions that go directly against the ideas that built the Net in the first place. This is where the real fight is going to be, and the question isn't "what is the law?", but rather "what law should we create/adapt for this situation".
Interpreting law is what lawyers and judges do; but making law is the right of citizens (at least in a democracy), and the responsibility of informed citizens. In the tech field, those informed citizens are us.
It's a good question to be raised, I don't know who it will benefit, but a good question. To me, common sense is the only issue at hand. Sure, there are experts in their respective fields, but there is still no accounting for the use of ethics and morals. On /. I have seen a great many people, many of them on par with what I believe is the intellectual standard. This doesn't apply to how long a person has spent in school or how many degrees he/she has, but how this person governs him/herself in society. If a person can't compile a kernel, HEY- I let it slide. If a person decides that tracking cars by satellite is a good idea, HEY- this person is a fool who shouldn't be part of our society. Just my opinion, but it happens to be right.
__ While you sleep, I creep... gaining ground by the week.
I think one major difference between a techie speaking about law and a lawyer talking tech is that the lawyer is much less likely to add extraneous subjective assertations. I've noticed that a lot of us geeks tend to argue for freedom information based on what "should" be true instead of saying "there's no copyright on that." I think we'd all prefer to have morals guide us into what should and shouldn't be legal, but as we all know "lawyer's morals" is just another oxymoron.
One fundamental difference between law as a practice, and technology as a practice, is that law is basically a zero sum game - ie. for every winner there must be an equal but opposite loser. This is the fundamental property of a court decision, and it governs how everyone involved thinks about the law.
Technology, on the other hand, is a positive sum game. If I write a useful program and release it to the world under the GPL or similar license, everybody wins. Even if I sell my program for more than it cost me to write, but less than it would cost the buyer to write an equivalent program, the sum of the game is still positive. This also governs the way techies like me look at the overall game.
When technology is complicated, it's because somebody screwed up or because the Universe requires many precise steps to achieve the desired effect.
When law is complicated, it's because somebody screwed up or because somebody is hiding a special-interest advantage behind blue smoke and mirrors.
In the former case, it's simply a matter of correcting screwups, which is inherent to the human condition in all fields of endeavor.
As for the latter case, denouncing the Universe is pointless, whereas denouncing special-interest advantage is the first step toward abolishing it. Thus, complaints about the complexity of technology and complaints about the complexity of law are neither logically nor morally equivalent.
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/. If the government wants us to respect the law, it should set a better example.
>Whenever a legal question comes up on slashdot, I see most posts arguing what should or should not happen in this particular case.
A techie sees an issue as a problem to be solved. Therefore what should happen (aka, what is right and just) takes immediate precedence.
>Very few posters seem to want to get to grips with what the law actually says.
A lawyer sees an issue as an ambulance to be chased. Lawyers don't even really care about what the law says - they are paid to win. If prior precedent supports them, all the better. If not, then they play word games to extend half-baked ideas to their benefit.
Yes, I know that not all lawyers are evil, souless minions of Satan. It's just that those who are ruin it for the other 2%.
It follows from this that the lawyers responsible for presenting cases and the judges responsible for understanding the legal arguments presented are incapable - by definition - of keeping pace with technological development.
But the other problem is the adversarial nature of our legal system: "My lawyer can beat up your lawyer" and the notion of the lawyer as hired gun - a lawyer isn't paid to argue what's right vs. what's wrong; determining who's right is the judge's job. The lawyer has a very serious legal responsibility to represent the client's case as strongly as he can, regardless of its strength or weakness. (It is for this reason that a good lawyer will not take a weak case - but if the money's big enough, everyone's got his or her price.)
Unfortunately, what this means is that very intelligent people - and most lawyers are smart cookies - end up making insanely stupid arguments, building factual houses of cards with beautiful rhetorical facades. If you can't dazzle 'em with brilliance, you have no alternative but to boggle 'em with bullshit.
Trial by judge puts you at the mercy of someone who knows the law, but hasn't a clue about technology. Trial by jury (with the present jury selection process and minimal pay for jury duty) is arguably worse - you're at the mercy of drones who know neither law nor technology.
For trial by judge, you need someone who can make a strong legal argument to the judge. For trial by jury, you need someone who can gain the jury's emotional sympathies; a showman or huckster.
But either way, it still comes down to "My lawyer can beat up your lawyer". Until the legal system rises to anything more than medieval "trial by combat", with lawyers filling the roles of the armed combatants, we're doomed to be stuck in this quagmire for the forseeable future.
True, techies know very little about laws, and care about them even less (in most cases). And lawyers really don't know anything about technology (the OJ Simpson case is proof of that). Perhaps we should join together?? Require that any lawyer using/fighting technology in their case have a "certified" techie as a consultant. The only question is who would decide what classifies as certified. We would need an agency designated for testing/training techs just for interaaction with lawyers.
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There was never a genius without a tincture of madness.
They have no jurisdiction for that anywhere, unless the words "Congress Shall Make No Law", like the word "is", have a range of alternative meanings known only to politicians.
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/. If the government wants us to respect the law, it should set a better example.
What's with all the political and legal stories on Slashdot???
I don't mind a few, but come on, there are just a bit too many for my liking. Hardly what I would consider news, if you ask me. If I wanted to read this stuff, I would go to *gasp* cnn.com, or some other similar site.
It may take a relatively meager amount of brains to be a lawyer (that is, write your bar exams), but it takes considerable intellectual ingenuity to be a good lawyer - especially a litigator.
:)
Of course, I could say the same thing about programming as opposed to analysis or computer science. Most geeks are intellectual prima donnas - of course, I'm a geek, too, and I can hardly claim innocence.
The problem with law is that it is rarely clean cut. Both sides bring convincing (or at least not ludicrous) arguments to the table, and then to trial. Both are consistent, even in matters of new law, with existing statute and case law. Geeks, who tend to be more mathematically and technically oriented, rarely find themselves in such conundrums - where both sides are "right" (or at least as right as possible) but one must win despite that.
Very few laws are made with the cynical knowledge that they will be immediately overturned. The CDA, of course, was one of those - a law written into the books entirely for political brownie points. However, the Supreme Court of any nation may have a different idea of the relative importance of different priorities, or different applications of law. It's inevitable that many laws be overturned on constitutional grounds (both in the US and in Canada) in such a situation. This is a sign that the system works, not that it's broken.
Hard to deal with, of course, if you're a geek and given to common sense. Common sense, however, has nothing to do with the law; what the law seeks is internal consistency. The eventual implications of any individual case rarely matter.
This isn't to say I disagree with you that geeks and lawyers have different mind-sets. I agree wholeheartedly - look at any psychometric study of professions, for example. But to demean the character of lawyers is unnecessary. Shakespeare might have said "First, kill all the lawyers", but he meant that as being the first step towards anarchy. Lawyers may be slimy characters in general (and I know quite a few) but the wheels of any state need ample lubrication with such slime.
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There is no premature anti-fascism. -Ernest Hemingway
As a bit of background, I am a Canadian articling student with a technical background, and will be called to the bar in about a year. I worked as a mechanical engineer, designing industrial robotics and sensors prior to getting my law degree. I have been a proficient user and minor sysadmin for many years. I grew up on the BBS scene and have been using the internet ever since my university days. I am by no means a guru, and have only a minor knowledge of unix/linux. However, I understand most of the technology behind the internet, and know who to call when I need real gurus.
I work at a law firm of approximately 400 lawyers across Canada, and am specializing in IP (e.g. patents, trade-marks etc.) My department files patents and litigates technology issues every day.
Very few of the lawyers here, less than 10 of them I would say, have any idea at all about how computers or the internet work. They may be able to use the internet to send e-mail, and browse, but the technology is a mystery to them. Certain specialists may understand e-commerce issues, such as verification and cryptography and so forth, but only as ideas, not as practicalities.
When it comes to copyright issues, many lawyers will understand the basics, but will not understand the technology of the internet for example, or even the technology of a hard drive. For example, lawyers won't know how packets work, and how "copies" of packets are made by each router or whatever on their way to their destination.
And I work at a very technology-friendly law firm.
When we litigate, of course, we get experts to tell us what's what. In court, it's all about the duelling experts. It is these experts who teach the lawyers what they need to know before the court appearances, and who also educate the judge during the trial. If you're a personable guru with people skills and can tell a good story, you can make big bucks being an expert witness, let me tell you. All this to say that during a trial, the lawyers will be informed and up to speed as best they can be, as they will be prepped by the experts.
The big problem, of course, are the politicians. These are the people who make the laws. The politicians may also have experts who advise them on policy, but it isn't the same as an adversarial court case. The politicians will make decisions based on popular perception of technology, rather than on what technology actually is. Think of the V-Chip disaster or the Communications Decency Act fiasco. These measures were put into place to prevent an "evil" which is relatively impossible to police. However, even if the politicians understood the technology side of things, their consitituency would still demand that they "do something". On the other hand, if the politicians did understand the technology, they might have been able to come up with a more practical "solution".
At any rate, I know from experience there is a lot of technological ignorance, and fear of technology, with lawyers. This fear is probably ten times worse with politicians.
Just my 2 cents worth. I hope it sheds some light on my side of the fence. My apologies for the length.
Ken
Looks like Slashdot still doesn't spellcheck their articles. The title reads Techies vs. Laywers & Judges. If only the code were open so we could send in a spellchecking patch.
As far as theories of law are concerned, philosophers of law generally fall into two categories, those who follow the letter of the law written in the books and those who say that law is something more central than the letter and makes many laws unlawful. I think the techies generally fall into the latter category and that's why I like them and /. As techies we may not know the letter but we definately know law .
I admit, I don't understand the law. Beyond the
fact that I disagree with the basic premise of
government and law...thats a complete side issue.
The problem that this touches is that
an average citizen can not possibly have a solid
understanding of law.
When I was in high school, there was an entire
library shelf, it was occupied by several
volumes of book, spanning the whole shelf. It was
called "Massachuessetts General Laws". Just the
states own general laws.
How can anyone who has not gone to school and
studied law for a few years, and practiced in the
feild expect to understand law?
Couple this with the idea that "Ignorance of the
law is no excuse" and I see a real problem. We
are expected to know the law, and abide by it,
however there is more "Law" on the books then
the average person has any hope of reading.
Of course, I personally don't think laws are
even needed. I try to offer what I think the law
means when I can and the issue comes up...
but personally...I do my thing and live my life.
If the law says what I want to do is illegal, then
I break the law. It doesn't matter to me. They
are the laws of a government that I didn't set up,
and I don't participate in. They are not my laws,
they are the laws forced upon me.
Of course...thats just me.
"I opened my eyes, and everything went dark again"
I just can't agree with this point. Laws are deemed unconstitutional when a court decides that the Constitution did not intend for these laws to exist. Obviously, the Constitution could not cover such topics as DVD encryption, but it did lay out an approximate model for how the ideal government should function. The ideals it presents are interpreted differently by different people, and this is the cause of many legal debates--essentially, differences in opinion.
I also believe that we are too quick to judge the technical aptitude of others. I try to be a fairly well-rounded individual, but there is an amazing amount of information I don't know. Psychology, law, history, geography--these and more are terrible weak points of mine. If I had to represent someone in a dispute regarding the history of Angola, I would have to quickly research whatever facts I could and try to make a decent case. In this situation, I would certainly hope the knowledgeable Angolans of the world would educate me rather than berating me.
One of the reasons that I became a lawyer was to avoid ever having to hire one. -SPYvSPY
That hit it on the head of the proverbial nail.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
The comment about Lawyers and Judges being quite capable of understanding the issues once they've been laid out is quite correct. If you read the opinions of Judges in cases like this (like the finding of fact in the Microsoft case) it's clear that they really do understand. Similarly, I think that most techies who make a real effort to understand the laws can and do get a pretty good understanding of them.
The problem is with the laws and (ultimately) the process that produces them. Understanding the issues takes a lot of effort, and quite frankly most lawmakers just don't have the time it takes to find out about the issues. Instead, they rely on other people, mostly lobbyists of one stripe or another, to tell them how to decide. The result is that the laws are effectively created by those lobbyists.
That's where the problems creep in. Most of those lobbyists represent entrenched interests, such as existing big companies and industries, that are built around old assumptions about the way that the economy works. They try to create laws that keep things the same because that benefits them. The result is that the laws try to legislate the permanence of the old business model, whether that's realistically possible or not.
It's like Canute and the waves. The law winds up trying to do something that just isn't possible, or at least not practical, and the Judges, Lawyers, and Techies are left to try to sort out the mess.
There's no point in questioning authority if you aren't going to listen to the answers.
Which lawers are the ones /. people are up in arms about most of the time? Corporate stooges, for the most part -- a class of people that, IMHO, are the corporate equivilant of muscle-bound goons. Such people aren't interested in anything but getting a descision that is favorable to their company, or cowing someone into going allong with their demands. I have no intention of giving such people any of my respect.
Frankly, I don't extend my distrust of lawers/judges to (for instance) the supreme court. They might make a bad (imo) descision, but I trust them to be relatively reasonable.
I do think there are some serious problems, though. Under-representation in the courts is one of them. The typical stupid court descision is often a case of the big guy against the little guy. The little guy isn't going to know the ropes, may not have a lawyer in the same league as the corp. types, and so is likely to lose.
And yes, part of the problem is knowledge of technical issues. But it's they're not simple issues. And I don't care how philanthropic a small-time lawyer may be, they're simply not going to be motivated to take the time to understand the technical stuff as well as they do the law. This means that, in such cases, it's up to the defendant to know what's relevant, and explain it to his lawer. And he may not do a very good job at explaining the issues in language the lawyer can understand.
Add to the above mix a generaly different ideology (criminal behavior/porn/whatever is the greatest of evils vs. freedom is the greatest of goods -- oversimplified of course), and a background of laws enacted by clueless, poll-driven politicians, and you have an extremely difficult situation.
... is that the legal system isn't about justice or fairness. That's a common misapprehension on the part of most non-lawyers, and including most techies. Heck, it's a shock to many first-year law students too.
Now there's an issue: Should the legal system be about justice and fairness?
I tend to say yes. And in fact, in Common Law (evolved since the English Magna Carta, and the original basis of US law) had a much stronger emphasis on justice. Particularly after they finally got rid of King and Church as being above the law. (Gee, those were significant issues in the US revolution too!)
As a pointed example, in the US many juries are instructed by judges that their job is only to evaluate facts. Whereas the founders of this country, and everyone else at the time of the American Revolution, understood that an "impartial jury" was also intended to protect against governmental abuses including passage of unjust laws. Check out the history. Did you ever wonder why jurors may only be registered voters? It's because voters have two kinds of votes: for representatives in elections, and for justice in court cases. Yes, that's a plug for the Fully Informed Jury Asociation. Read that site BEFORE you need to act as a juror, and of course make your own decisions.
That's only one example; there are many others, and surely there's one you'll believe even if you don't like the notion that the checks'n'balances against the US government include direct action by the citizenry, not just (as you were likely taught in school, by government-approved texts) (a) elections (choice between wings of the republicrat party), (b) representatives (who have long been more beholden to corporate interests than to voters, and note the poor choices most of us get due to the republicrat oligarchy), (c) other parts of the government (rather circular, that is!), (d) suing the government ("You can't fight City Hall"), and of course (e) violent overthrow of corrupt regimes (the option the founders were forced to use, and which is explicitly preserved in the Bill Of Rights).
Point being: in the US today, the legal system is a self-perpetuating bureaucracy which is fleeing not only its roots, but the remaining remnants of justice. It denies that justice is the intent of law, and enforces law not justice.
It's no wonder that members of professions that pride themselves on logic ("techies", in a broad way) don't much understand lawyers. No different from most citizens.
IMHO the only way to win a lawsuit is to not be involved in one in the first place. Truth has little to do with the legal profession--litigation is as much an exercise in game theory as it is in discerning the truth.
Ever had something explained to you, in simple terms, so you understood it at the time, but completely forgot the explanation a short while later?
No, this doesn't mean you are dumb. Typically it means that whatever it was, it didn't make any sense. It was just a bunch of arbitrary facts which didn't combine any a meaningful way, and people are not good at remembering long lists of arbitrary facts.
To be fair, sometimes it is because you don't know enough about the domain, so the facts don't combine to a coherent picture for you. We can hardly argue that's the case for tech laws, can we? We supposedly understand tech, at least...
Lawyers deal with a completely arbitrary set of laws established by a not very coherentic body of legistlators over years, later modified by judges via precedents. The laws are overly complex, contradict each other and sometimes even themselves. I doubt there's a worse mess in any other human field of knowledge. Lawyers are therefore highly trained in dealing with an arbitrary mess of facts.
Example: There are several programs to compute the yearly american tax returns. Some magazine tested them by entering the same data into all programs (a URL to that survey would be appreciated; I think it was in 1998...). Of course the results were wildly different, even though all programs claimed to follow the IRS rules. And of course nobody was surprised, nobody raised a fuss, and the IRS didn't bother to declare that any of the programs was wrong.
Programers are encouraged, one way or the other, to "see the larger picture", how "things fall into place", the "design patterns", "reuse potential", "overall architecture", etc. When presented with a huge, self contradictory, arbitrary, senseless mess their first reaction is "dump this and reimplement".
Programmers are simply not trained to handle the law in general. Their mind set is, in general, wrong. They keep trying to look for a larger pattern, which simply isn't there. So they generally give up the attempt, leaving it for lawyers.
Now, I realize that large pieces of the law do create a coherent pattern. Only, of course, the interesting cases one hears about are always in the areas where the law doesn't make much sense - and lawyers are trained to drag issues into these areas, because there he can get away with more for his client. So overall, outsiders contact with the law is biased to the messier parts.
All similarities to the programmer's stone are completely accidental, I think
On a personal level, I think that lawyers know more about technology than computer nerds give them credit for. But I also think the point is moot. Lawyers, like marketing folks, are hired guns. They work for the company for the rights of that company. Why yell at the lawyers for doing their jobs and assuming they are "just stupid?" They have to understand the technology to defend or attack it and they understand what they need to convince a judge. That's about it. The companies are the ones who are trying dicatate the party line, how high to jump, and what song to dance to.
Now judges are always a tricky mix because they aren't always lawyers. Some are elected and others appointed. They are also older than the general public (especially the computer geek group) and tend to hold more traditional views of copyright and patent rights. What it takes to change their minds is education of the impact of their decisions. Being "right" isn't enough. You need to create an understanding to make things work out.
-S. Louie
"I may be Love's bitch, but at least I'm man enough to admit it."
To broadly generalize is unfair, I know. Still, I believe it safe to say that many lawyers themselves are too deeply compromised by peer pressure, money, desire for repute (to make a name) or all of the above to trust their take on many of the issues we care about. IP is a case in point. Today's IP laws are a goldmine with enough to clothe a million in cartier. Sure, a lawyer may be able to navigate the treacherous waters of TM, R, Copyright, and particularly international intellectual property laws, but anyone who has delved into this world knows that it is one of the most difficult grounds to keep a solid footing on. It is just too complex, and lawyers are unusually unsteady in this area compared to others. Lawyers are generally here to understand the laws created, but it is the lawmakers who are supposed to debate them, create them, and repeal them, and it is the people who are supposed to get rid of the lousy lawmakers. Lets not elevate lawyers to the level they want to be just because they know the jargon better than us. They just love to push us around like that. Don't let them. Lets realize too that if you are a true geek, you are by definition and amatuer. In it for the love of the game, not a highly paid sports professional wearing Nike logos. Of course, we have plenty of the RedHat CEO style geeks, who we would all like to believe actually are in it for the same reasons, but actually are required by law as officers of their corporation to simply make money for shareholders. But the real geeks in any field should feel responsible to study, understand, comment on, and debate the legal issues of that field. We need the lawyers and other outside opinion, but don't let it get any further than that.
One example of the lack of knowlege on techies' parts is the recent furor over the "censorship" in Australia.
I recently read the code, and no where does it state that people will be unwillingly censored. It says that ISPs must provide a method for people to get filtered 'net access, whether by providing software (at a fee or not, up to the ISP) or through seperate dial-ups and server-side filtering. It also says that ISP accounts can't be sold to those under 18, a questionable proposition, but I can't say whether or not it makes sense without knowing more about Australia's laws with respect to minors and such things as contracts and payments.
I would be unsurprised if other such 'incidents' were the same thing: paranoia and, dare I say it, hype.
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END OF LINE
Coffee is an outstanding case of a legal decision made for good reasons which is blasted by people who don't want to bother understanding.
Yes, the woman did something wrong.
Yes, the award was large.
But the award had a purpose. The purpose of that award was to force McDonalds to reconsider the temperature of its coffee. McDonalds produced coffee that was considerably hotter than the other fast food chains. They knew that the result was that normal accidents and spills caused serious injuries, while the same accidents did not injure customers of other chains. For instance hot coffee spilled in the lap of an elderly woman. With other chains that would have been unpleasant, or a mild scald. Instead she had third degree burns.
Given this the award was made very large. And as a result McDonalds reconsidered their policy and now their coffee is the same temperature as the coffee that other chains make. The result? Fewer injuries.
Now, with these additional facts about the purpose of the settlement, was it wrong to give the woman a large settlement?
Regards,
Ben Tilly
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
The person above DID get to the root of the problem, and in essense you've done much to prove his point. The law doesn't need to change simply because the technology has changed. And law doesn't need to keep up with the pace of technology. These are made up assumptions, asserted by geeks who really don't know law. I personally think the patenting thing has gotten slightly out of control, but other than that things seem to be okay. The Microsoft case is interesting - they've broken old laws, but some people think that these laws are now irrelevant in todays fast changing techno-landscape. But these people are simply guessing. It's feasible that Microsoft could have continued to dominate in the old fashioned ways without government intervention. I don't think we'll really know for another 20-50 years, when people have had time to watch everything unfold.
technical people tend to hold themselves more accountable to the laws of science and nature, while lawyers (and their types) hold themselves more accountable to the laws of men. not that this is bad, but the simple fact is that when the laws of men conflict with the laws of nature - the laws of men will loose out every time. this is why we really don't want the government to "controll" the internet - by their very nature they are trying to impose rules that are out of bounds, it can only cause misery for honest people. Of course, even many techie people have troubble understanding this - as some cling to "copyright laws" even though there is no rational way these laws can withstamd the test of time.
Look at it this way. You are responsable for following and knowing the law, but then at the same time you are discouraged (by lawyers) from trying to comprehend it. Then you are told (again, by the lawyers) that you are unable to interpret the law and you need THEM in order to deal with the court system.
Put in another way,
You are responsable for knowing the law. Ignorance is no excuse. (you have to follow the rules)
You are told by lawyers that you need to go through them to deal with the Law. (you cannot know the rules...that's lawyers jobs)
Certainly people other than me just see how wrong this is. And this will never change until people like YOU and I aren't afraid to look at the law ourselves.
I'll stop now. I admit, I hate our current system. So often the current system takes away ower from individual citizens and gives it to institutions. Sick sick sick... ok, finished.
you are completely wrong about the classical historical definition of justice. that definition is more along the lines of "to each his own" than anything to do with laws being enforced. predicated upon the assumption that laws are JUST, then justice could consist of the law being applied truly, but real justice has to do with each individual recieving the appropriate rewards/punishments for their own actions. (see commentary magazine "A Genealogy of Justice" for a good start, can't remember the month, they're online somewhere too.)
No.
In that case, McDonald's had been previously sued and lost and still kept their coffee too hot. They had cases pending and still kept their coffee too hot. They had been warned multiple times that they were keeping their coffee at *extremely* high temperatures for absolutely no good reason and they still kept their coffee too hot. Their insistence on keeping it at that high temp had contributed to a number of mild to serious injuries but they still kept their coffee too hot. They *absolutely* knew that someone was going to be grievously injured by spilling their coffee unless they lowered the temp but they *still* kept their coffee too hot.
They knew that accidents happen. They knew that their coffee temp would make some accident, some day, far worse than it needed to be. They had known for a long time *exactly* how to avoid exacerbating those injuries. AND THEY STILL KEPT THEIR COFFEE WAY THE HELL TOO HOT.
When the inevitable happened, they got hit with a big judgement. Every penny of it was justified.
I think many of the law-tech disputes boil down to issues of terminology and context. While both sides may be guilty of underestimating the competence of the other, comparing the faults of each is hardly meaningful. Lawyers being ignorant of technology is no excuse for hackers being ignorant of the legal profession.
For one thing, many (if not all) of the laws under dispute today emanate from the business sector, where things like million-dollar trademark lawsuits are well-known and accepted. If someone is indeed making money off somebody else's trademark, be it on the Internet or elsewhere, the trademark owner is justified to sue. However, if the trademark is used in a non-commercial context, any lawsuit would appear to be a mistake.
It used to be easy to tell commercial operations apart from non-commercial ones, since the latter seldom could afford to pay for visibility. The Internet has drastically cut the cost of visibility, though this may be a temporary state of things as the commercial players find new ways of exposing themselves in proportion to their wallets. In the meantime, we routinely find not-for-profit operations outperforming commercial namesakes by mere accident or ingenuity. Depending on your legal system, you now have to either teach the lawyers new criteria for differing between the two, or you may have to change the law itself. Complaining that trademarks are unfair to you isn't going to get you anywhere, as long as you haven't made your point that they shouldn't apply in your particular sector of life at all, while they may well apply in other sectors.
To take a more specific example, consider the word "use" in a copyright context: How does the phrase "to use a photo for a book" relate to "to use a computer program for fun"? In the first phrase, "use" implies reproduction and publication in a legal sense, while the same word in the latter phrase has a more earthly and commonly understood meaning. To "use" a photo or a novel in the latter sense would mean simply enjoying a copy of it, not making numerous copies of it for distribution. Copyright law isn't concerned with people reading novels, but with people using novels and other works of art for (usually) commercial gain. Now, how many lawyers will consider that running a computer program may be equivalent to reading a book, when even the hackers consistently refer to their loading and running of programs as "using software"? Thus we have "end-user license agreements".
Legal terminology can be tricky. When the prosecutor asks whether you knowingly "accessed" the "device", you'd better request an interpreter who speaks your native tongue.
I've found that whenever a legal dispute arises over a technical issue, techies tend to drive straight to the point of what the law should be, instead of what it actually is. I think this reflects a fundamental difference between law and various technical fields. When technical people, particularly programmers, see a problem they can go and fix it. Lawyers and judges, however, are forced to work within the system of laws as passed by the Congress. They have very little ability to make changes in the law, regardless of how they feel the law should be. In the meantime, the laws are being written here in DC (I'm a congressional staffer) with input from corporations and other folks with interests to protect. I've yet to see the technical community (outside of technology corporations) effectively organize on any particular issue. Instead, it tends to rely on civil disobedience to protest poorly written laws (e.g., DeCSS, denial of service attacks on Etoys, etc.). Don't get me wrong, I'm not criticizing the technical community. I'm just pointing out what I think the fundamental disconnect is.
The real problem is laws seem to be written with specific purposes in mind, leaving much in a grey area or even excluding future ideas that weren't originally thought of in the execution of the law. Where the layman has the problem with the law is rather than study and understand the law, one will refer to common sense to define his or her understanding of a law. Common sense usually has very little to do with law. Us /.ers aren't necessarily arguing the legality of the existing law, but more as to why the law makes no sense or how it doesn't seem to apply to the current event. Just my take on it... I could be wrong.
"There really is nothing quite like a shorn scrotum" - Dr. Evil
Laws in the US do seem to have trouble keeping up with technology. I think that blaming lawyers or lawmakers misses the point, though. There is a strong tradition in America to legislate by regulating. Laws try to detail every possible event and situation and then proscribe the allowable actions in those events/situations. This whole approach is vulnerable to any kind of change (as well as all-too-human failure to think of every possible thing). The result is laws that are ludicrously out of date before they are enacted and aganecy procedures that increase pollution and keep possibly life-saving drugs out of the hands of dying people (oops, sorry, didn't think of that one... give us a decade or two while we re-write the relevant laws).
The constitution is a wonderful document because it mostly sticks to principles avoids the details. This is good law, and works because it is mostly fair and is deliberately hard to change.
So why does a country with a very good constitution regularly create such stupidly detailed (and thus bad) statutory laws? My theory, for what its worth, is that most americans deeply value the rule of law (and rightly so, in my view) but mistakenly think that detailed regulation is necessary for this.
This is partly a matter of seeking balance between desirable goals that are mutually contradictory. Clarity in law is very desirable, as the clearer a law is, the less discretion the legal establishment has and so the less room there is for corruption and petty oppression there is. Few laws are clearer than detailed regulations. On the other hand, laws are better if they deal with abiding principles rather than changeable details. This calls for a degree of abstraction and abstraction tend to be fuzzy. These two goals are necessarily in tension.
Americans appear to have a far greater appetite, in general, for clarity than they do for principle, as if the constitution has fully satisfied their demand. The result is a very heavy status book and a constant conflict between law and reality. There are periodic attempts to reign in the problem, but there is little point in trying to "cut the red-tape" with the red-tape machine still producing more at full throttle.
So long as the American public continue to demand regulated solutions to real and percieved problems, the law will be "a ass, a idiot". If you don't think you are part of the problem, ask yourself when was the last time that you criticized a politician for having too much detail in his/her legislation rather than having the details wrong.
Patent lawyers are required to have technical degrees (or equivalent). Presumably they understand the technologies. Looking at recent embarassing laws and trials, I think:
--SwiftOne--
P.S. It's true, MOST people know little about the law, even the educated ones. I like to think I'm a fairly intelligent and educated person, but what I'm seeing my wife study says that the law works fundamentally differently than I thought. Not necessarily more complicated, but different.
Most of the remarks hurled at lawyers should truly be redirected at the companies that they represent, because in reality they are calling the shots.
Actually, in reality they usually ask the lawyers: "What can we do in this situation?" If lawyers responded with things like "we don't have a case, that would be legal thuggery, completely unethical" and "let's be reasonable, a lawsuit is just going to cost everyone involved a lot of money", the world would be a better place (and people would swerve to avoid hitting a lawyer in the street).
Instead they say things like "well, we can sue; we won't win but it will probably bankrupt them to defend" and privately think "the more of a legal mess this becomes, the more I get paid."
Corporate lawyers do not, as a rule, act in the best interests of the client (criminal lawyers generally do; they have a lot less room to persuade people to take the more lucrative route). First priority: cover own ass. Second priority: rake in as many fees as possible. Third priority: client's best interest (actually, lawyer's reputation, but they work out about the same). Non-priority: benefit of (or damage to) society as a whole. Absolute non-consideration: damage done to the people at the other end of the legal troubles.
It's true that people hire lawyers that fit their intention, but that doesn't make the lawyers any closer to innocent.
...but I don't think I can. Seeing some of the laws that come out of the world's legislative bodies, I'm inclined to believe that any techie would be apt to regard much of it as utter nonsense.
Then I thought about it for a while. And remembered an ex-roommate's father. You see, he has a BSEE and MSEE, and then got his law degree. He is now a patent lawyer. In fact, my former roomie, a fellow BSEE, used to proofread the draft patent aplications for her father's firm (a good way to make some $$$ during the semester).
So now I'm not so sure. On the one hand, technology moves at a lightning fast pace, and even people in the industry need to work to keep abreast of current issues. On the other hand, I'm sure that many lawyers out there have similar backgrounds as that of my roomie's dad, and are more than up to the task.
Overall, I've got to go with the lawyers. I think they are more likely to end up with a better balance of understanding with regards to both technological and legal subtleties. And I think that techies are more likely to have a myopic view of the issues, being so passionate about them.
Or maybe we should all leave and establish a technocratic utopia somewhere else. Let's use all the IPO money to form the "Army of the Red Hats" or something and take over a small island, like Australia. Besides, it seems that those Aussies could use some governmental reform.
Hey, how'd you know I was lookin' at you if you weren't lookin' at me?
In its original meaning, Justice is important because it is a demand that the government and society follow the rules. For example, if someone kills a man, and the law says that it's the duty of the police to investigate, but they don't do so(either because they want the murderer to go free or for any other reason.) Then we say that injustice has occured. The law says murderers should be punished, but it hasn't happened. This is an example of injustice as seen in A Tale Of Two Cities.
I think you'll agree that a lack of justice (using the word in its original sense) is a horrible thing, and something worth rallying around. Now, during the civil rights movement there was a good amount of injustice that occured. (Quick example: the events examined in the movie Mississippi Burning [though in that example, justice did prevail in the end, to a certain extent.]) The problem is, that the Movement also used the word Injustice when talking about Jim Crow laws. These laws were not, by definition, unjust. However, as I said, it sounds much better to decry a lack of justice, rather than a lack of fair laws. (Which I would say is a horrible thing in itself, but not the same thing as injustice.)
Why does this radical mutation peturb me so much? Because Justice has lost its meaning. People claim to love justice, but when they say it today they're really talking either about equality or fairness or some other such thing. In the end, though the goal of this lingual misappropriation may have been laudible, we can't even talk about justice anymore without having to go into a lengthy talk about what it is in the first place.
Right, but appropriate rewards/punishments are defined in laws. Laws are society's method of saying what the appropriate reward/punishment is. As long as laws are consistent with each other (an internally consistent system of laws) then the laws are just, and justice is the enforcement of the law.
For me it often seems that the greater good at the root of many legal issues is forgotten while people fight for so called rights or justice. Patents for example are intended to get people to reveal their ideas instead of keeping them secret. This is clearly a "greater good" (if the system works right that is).
There is no "right" to have a monopoly on intelectual property but it serves our greater good to judiciously give out such a right.
90% of the wealth is in 2% of the pockets. Bummer to be in the majority.
Enter the internet.
Here data is freely imported and exported. There are no ports. Data is not stopped for inspection, taxation, regulation, verification that the import/export does not violate laws, etc. And it cannot be stopped for examination. It's not humanly possible and stopping data would grind the net to a halt and destroy its usefulness.
What it comws down to is that every machine connected to the 'net is an international port of entry. A shipment of pirated DVDs from Singapore would get stopped and siezed by customs as it tried to enter the country. A .vob file transferred via FTP from Singapore to a user in Butte, Montana, gets through unchecked.
The internet brings everyone, all nations, all people, the world, together in a single "place" where lots of trade and exchange of data, words, copyrighted works, ideas, etc. ,happens. This flies in the face of how trade and exchange has traditionally happened.
What's the solution. I'm not sure there is one. Close all internation 'net links and destroy the net or declare the net to be a worldwide neutral zone. Either way means ruffling some feathers, but on the whole, I think free, unhindered, instantaneous, world communication will be a good thing. The DVD Consortium's and RIAA's lawyers may disagree though. The mighty dinosurs will die once again though as tech marches on.
For example, while we see a single-page "Table of Contents" in literature as something completely unpatentable, would it have been so cut and dry if the printing press was recently invented. To take it a step further, imagine people patenting "Footnotes" in a book like they patent "Single-Click Ordering" nowadays.
Whereas mega-corporations see this as an oppritunity, everyone else sees it as exploitation of a good idea that should not be owned. Not that I'm trying to be self righteous, as I might even do the same things if I was in Jeff Bezos' shoes, but I hope I would be more of a man than that.
The sadest part is that these processes are belittleing (sp) the best damn Judicial system in the world (US, in my not-so-humble opinion), and even if techies can't get people to draw parallels on how much computer-related technology resembles every other industry, the ridicuolous exploitation is going to continue.
--
Time is Nature's way of keeping everything from happening at once... the bitch.
Laws are society's method of saying what the appropriate reward/punishment is.
So, you agree with Jim Crow laws when they were in effect?
Ungh
I agree with y'all and Rilke "Interpreting law is what lawyers and judges do; but making law is the right of citizens (at least in a democracy), and the responsibility of informed citizens." Currently very few in Congress can be considerered informed (on technology) citizens. Of course many members of Congress are .... "My lawyer can beat up your lawyer" (very true) is not about ethics, right, wrong, .... The actions of the lawyers frequently reflect the honor and ethics (poor/bad/good) of the institutions and/or individuals they represent. Justice is an issue better left for debate and reflection after the law's interpretation is decided in court. Socializing the legal proffessions, judges, and courts may help, what do y'all think .... Reality is a self induced hallucination (except in a court of law it may be non-existant.
Unaccountable leaders are masters, and unrepresented people are slaves. How do US and EU fare?
Yes. Enforcement of IP law is beyond any regulation inside of a global internet. Because somewhere, in some nation, IP laws on various topics do not apply or exist. And the material in question can be freely distributed from that location and cannot be halted.
Witness the DeCSS debacle. NO ONE can stop its distribution and disemmination. Efforts to do so are having the opposite effect.
Child pr0n from Thailand. Pirated software from Singapore. Bootleged movies from Hong Kong. The Satanic Verses in England. The net makes all of this available to all. How can you stop it?
47 U.S. states require law school. The other 3 require either law school or a clerkship (Vermont California and New York) I don't know about other countries, but I suspect that the U.S. has the EASIEST requirements. BTW, it is not just that many /. people on slashdot don't know the law. The problem is that many think they know the law but don't. (Possibly including me)
It's nice to see a number of intelligent contributions to this thread already, and hope I can bring more of the same. To begin, what exactly does a lawyer do? Many things, but essentially it's about formalizing relationships between people, to ensure that all interested parties know as best they can what their respective responsibilities are. The lawyer's job is to clarify the relationship that is being entered into, to mediate when it is in need of repair, and to litigate when it has finally broke. In the non-business world, our relationships with others often don't need to be so formal (friends, neighbours), but sometimes they do (divorce, estate battles, fences encroaching on another's property). In the business world, the same holds true. You can walk up to a garage sale and close a deal with cash and a handshake. Or make an online auction purchase, without worrying to much over the "click-wrapped" contract you've just entered into. But what if that great old chair you just bought has a structural defect neither the vendor nor the purchaser was aware of? What if someone had asked the vendor to hold the chair for him yesterday, and had given him $1.00 "as good and sufficient consideration"? In this relatively new world of high tech, there seem to be a lot of lawsuits being tossed around. Some are frivolous, some are valid, and most are about parties not be suring of what their rights and responsibilities are. Recall that lawyers don't sue; their clients do. Why do parties sue? Uncertainty. They don't know where they stand in law. And for that, don't blame the lawyers. Laws are constructed mainly in parliament, and some by judges. The lawyers themselves only try to navigate through all of this, and again only in the directions that their clients have requested them to take. Lawyers are agents, not principals. Finally, and off-topic from my above explanation, I don't think the problem here is one of geeks failing to understand lawyers, or vice-versa. There are many geeks-turned lawyers (just finished law school myself) to protect the /. interests. The _real_ problem is in the diversity of those interests. As a society, we're still trying to understand this phenomenon called intellectual property: what is it, whether it needs actual legal protection, what form, etc. You want to provide incentives to the geniuses out there who come up with the truly great ideas. But a great idea is not enough; in high tech, it's the proper execution of the idea that brings the benefit to society. Society v. the individual all over again. I think Plato had a few words on that :) Clearly some kind of legal framework is necessary. If I've got a great idea but can't protect it in law, M$ wins. As soon as a "deep pockets" high tech business gets a whiff of it, they can immediately direct more resources to it than I ever could. Very few first-to-market battles will be won by the little guy in the years to come.
There is a nice site called Prarielaw. Check it out - it discusses various laws in plain English.
This is, of course, all IMHO, but with that in mind:
As someone who has been interested and involved in technological things pretty much all my life, there is one thing that seems to be consistent among most of the really good practitioners in the technology field: the recognition of purpose and the application of first principles.
In the technology field, we often question the very purpose of something, because in doing so we are able to determine for ourselves whether or not that something is necessary. This process makes our designs more efficient and more applicable to the problem being solved. We despise feature-richness and bloat because they are the results of attempts to apply a tool to something it wasn't designed for.
We apply the same methods when looking at laws. We ask ourselves whether or not a law that others are attempting to apply to something should apply. We always fall back to the age-old question "what is the purpose of this law?" when evaluating the law's effectiveness.
It would appear that many (perhaps most?) lawyers don't do this. To them, the law itself is the final answer. To them, it seems that there is no difference between right/wrong and legal/illegal: they are the same thing. Many judges appear to operate the same way.
This is why precedence is so important to lawyers and judges: because precedence is the way lawyers and judges decide how a law "should" be applied to a situation. Lawyers and judges "need" this because they do not know how (or do not care) to fall back to first principles when applying law. They don't know how or do not care to ask what the purpose of a law is and use that to make the decision. If the purpose of a law were used to decide how to rule in a case, then precedence would be irrelevant and would therefore not have the status in law that it has.
These two approaches are almost diametrically opposed, but this much can be said of the lawyers' approach: it is arbitrary, and therefore wide open to manipulation. For when a tool is allowed to be applied without regard to its purpose, then that tool can and will be misapplied. As is shown time and time again.
That is what we techies find abhorrent about lawyers and the law. To us the argument that "we should do it this way because it's always been done this way" (i.e., precedence) is specious on its face because it ignores the reason, or purpose, of doing something a certain way.
To us, laws are tools to be used in meeting the needs of the society which creates them. Each law, as a tool, has a purpose, and we recognize that it should not be applied when it doesn't serve that purpose. This is something that is very obviously lost on many (perhaps most) lawyers and judges.
--
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
Argh! I wasn't done, I meant to hit preview...
So anyway what gets me so mad is I see decisions being made that feel at odds with making our collective quality of life better. Would Amazon have kept their "one click" idea secret if they couldn't patent it? Would they have had less incentive to develop such an idea if it wasn't patentable? I would say no and probably no. I don't see how Amazon's ability to patent their so called "idea" did anything for our collective quality of life. I can see how it did some harm. Did the guy (or gal) who came up with the idea make good money from it?
With respect to patents I think the original purpose of patents might be better met by making patents automatically the property of the inventor and not of the corporation.
90% of the wealth is in 2% of the pockets. Bummer to be in the majority.
Just to note, just laws aren't always good laws. I think the Jim Crow laws were a very bad all around.
While one may sympathize with the viewpoints of the individual lawyers, this sort of thing only serves to show how far the idea of a law-governed society has degenerated. A law-governed society does not attempt to legally determine every action: rather, it attempts to make public the common-sense customs governing society. It's the customs, not the laws, which are important: the laws are there to provide an objective, public check on the ability of the state, or of individuals, to subvert the common-sense customs and conventions.
When you subsitute legalese for law (understood as formally stated common-sense), and you then attempt the impossible, which is to make that legalese define all behavior, the underpinnings of society (the rule of law) as a whole are undercut and perverted.
Now, I don't know much about laws, but aren't they supposed to be good for the generel people, and as such also is sort of common sense?
Can't that be a reason to why it is easier for techies to comment on laws than for lawyers to comment on tech?
Besides that, (AFAIK) you Americans have a very special "thing" with lawyers - every second American citisen is a lawyer - you sue each other for basically everything (or so it seems overhere in Europe/Denmark).
But maybe that is just the media that makes it look that way?
So when I (in the USA) flip on my scanner (bought legally in 1985), and listen to cell phone calls in the 800MHz band, which was legal then... now it's illegal. How was I to know? It's on 47 USC 11 revised, section K sub paragraph 4 as amended by ....
I've heard the old adage that "Ignorance of the law is not an excuse for breaking it." But when the "law" starts filling up racks of phone book sized volumes, I think that obtaining 100% knowledge of the law may simply no longer be possible for any single citizen. How can we be reasonably expected to follow the law anymore?
The complaints about the windowing patent, or the one-click patent aren't about the intricasies of patent law. The complaint is that the "advances" were obvious in their field, or that much prior art existed. That's a technological question, not a legal one.
Wrong, grasshopper.
"Obviousness" has a legal definition. The definition does not include /.'ers screaming, in hindsight, "that's obvious!". I refer you to Steven Young's excellent /. article, "Basic Patent Law for Programmers" (http://slashdot.org/features/99/10/19/1032254.sht ml):
When a new patent is announced, one of the most common criticisms is that the patent is invalid because the patented invention is merely an obvious extension of something that is already done. Theoretically, this is a valid criticism. Two requirements for a valid patent are that it is novel (the inventor was the first (sort of) to invent that particular thing or method), and non-obviousness (that the invention is not an obvious extension of something that is already known).
In practice, the level of inventiveness required for patentability is vanishingly small. It is relatively easy to show that a patent claim is invalid for a lack of novelty: you simply find something in the prior art (prior art is typically something that was published more than a year before the patent was applied for, although there are many exceptions) that includes all of the elements of the claim. Showing that a patent claim is invalid because of obviousness is considerably more difficult. First, you have to find examples in the prior art that, when taken together, add up to the patented invention. That is not enough, however. You also have to find something in the prior art that suggests putting these prior art pieces together. That is often difficult to find, even where a modification does seem obvious.
I suggest that everyone re-read this article before complaining about the patents of Amazon and others.
It's Linux, damnit! Pay no attention to renaming attempts by self-aggrandizing blowhards.
The complaint that judges and juries do not understand the underlying basis for a claim is not unique to technology lawsuits, though the novelty and complexity presented by technology makes the problem particularly acute. Securities law cases, for instance, often present very complicated issues -- I marvel that non-specialists, whether judges, litigators or juries, can be brought up to speed enough to do the issues justice. (Keep in mind that in the U.S. common-law system the outcome of court cases, in addition to interpreting law, _creates_ law in that other courts are influenced and, depending on where the court making the judgment sits in the hierarchy of the court system, bound by precedents.)
Socrates didn't think that the law that convicted him should have lead to his conviction. (He disagreed with the jury's interpretation of the law.) However, because he was convicted by the jury he went through with the punishment even though he could have escaped.
Techs built and continually reshape the technical world just as lawyers built and continually reshape the legal world. Both sides have their share of scumbags, but lawyers do not understand the world we built, and too often try to pass laws over a world foriegn to them. It is a difficult time for us as neither group should have too much control over the other. Unfortunitly this cannot remain so, lawyers will continue to try to infringe upon our godhood in this realm and so too we will continue to fight their advances.
I certainly don't believe that such a system is perfect, but I personally believe that the basic trial by judge/trial by jury system is the best we know how to do today. Obviously there are some flaws in how certain countries (like my own USA) implement the process, and there are cases where the whole idea is spectacularly bad, but what is better?
--The basis of all love is respect
Depends on the lawyer, depends on the techie. Duh!
A lawyer can bungle a job that involves technology just as well as a techie can bungle a job that involves law. Thats why technology companies hire lawyers and lawyers consult with techies.
I don't think I could have said it any better... I guess that's why he goes to harvard and I don't...
(I posted this in the domain dispute discussion, but maybe it makes more sense here.)
If you who think that etoy would win in court against eToys, you would do well to examine some of the prior cases of this kind. Take the ucla.com case, for example. In this case, someone registereducla.com and put up a bunch of links to porn sites. The University of California Los Angeles (ucla.edu) sued them and won, based on the fact that the ucla.com site was taking advantage of the name confusion.
Now, I know what you're thinking: etoy registered their domain name sooner, so this doesn't apply to them. The thing is, etoy did some things that certainly look like taking advantage of name confusion. For example, they put pictures of toys on their front page, and their selling of "shares" looks like it was prompted by the eToys IPO. That makes it much harder for them to claim there is no confusion or dillution of the eToys trademark, which is what the suit was about.
I think that who would win the court case is very unclear, but it's also unclear what would happen if etoy lost. The judge might simply tell them to stop putting pictures of toys on their site, put up a link to eToys, and go about their business. Taking the site off-line was simply a temporary measure until the case is heard.
As obvious as it might sound, some lawmakers are better than others.
Law-making is difficult in a modern society - even with politicking and dealing aside, there are many unknowns to deal with and unsimple pros and cons to weigh.
The U.S. congress, to date anyway, has persued an admirable course of action on e-commerce taxes. They have admitted that they do not know what to do. Since the economy is well enough that the state and federal governments aren't desperate for the tax income, congress has ruled a moritorium on e-commerce taxes (constitutional, but arguably so for intra-state sales). They then set up a balanced commission to explore tax proposals, and the commission is doing a thoroughly competent job (you can see for yourself on C-SPAN).
I, for one, would much rather have a well thought-out law a year an a half from now, then complain about speed and have a hasty, bad law.
Nothing's perfect, though.
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Furthermore, if the legislature lets people sort out important public problems through the courts, they don't have to allocate tax money for solving the problems. Case in point: silly computer-related patents. The Patent Office doesn't have enough examiners who know computer science, so applications for patents on computer-related technology don't get the scrutiny they deserve before the patent is filed. Instead, overworked examiners err or the side of granting patents.
(Disclaimer: IANAL.)
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"But, Mulder, the new millennium doesn't begin until January 2001."
send all spam to theotherwhitemeat@ropine.com
Dictionary.com has an even more damning definition.
I withdraw my claim that Annonymous Coward does not understand justice, on the basis that I have been convinced that my own understanding is less firm than I had thought.
Touche.
"Child pr0n from Thailand. Pirated software from Singapore. Bootleged movies from Hong Kong. The Satanic Verses in England."
:)
Comments from Slashdot readers!
"How can you stop it?"
Nothing personal
An individual's understanding of any field, especially one outside his personal expertise is ... well, individual. I personally know a couple of very technologically savvy lawyers. I know more legally savvy geeks, but I know more geeks. I remember once explaining that different styles of programming wizardry can be defined metaphorically with different styles of magic. The one that is applicable here is wizardry itself. A wizard does not know everything, but how to find anything he needs to know.
It is hard to stay on the cutting edge of one's own specialty. A few very bright, very energetic people can stay on the cutting edge of broader fields or two fields. People with lives outside work are more limited. If you need to maintain competence in another field, it is better to maintain an overview. That, coupled with a good knowledge of where the best experts and resources can be found, and an understanding of the limits of your own knowledge is good enough.
The harm arises from people who don't know their own limitations or the limitations of their sources. There are any number of "experts" who are afraid to use the words "I don't know" for fear of being found out as charlatans. They talk a good game and can completely convince people outside their field, all the while passing off superficial understanding as expertise.
I suspect that the root of this is simple. It is a heady experience to be the expert that someone relies on. It is easy enough to take small steps outside of one's actual area of expertise. And it is horribly difficult to retract one of the expert statements. That would tend to discourage research that might uncover information that would contradict one's earlier pronouncements. In the end fame can undermine the very qualities that earned it in the first place.
Of course, there is also the simple case often described by the saying, "A little knowledge is a dangerous thing." A superficial understanding of a subject is a good way to become acquainted with only one side of a controversy. Since law is really only a set of societal rules for handling controversial situations, it is obvious enough that superficial knowledge has more potential for damage here than anywhere else.
My advice both for lawyers needed technical knowledge and techies needing legal knowledge is to acquire a broad overview personally. Be familiar with enough of the jargon and body of knowledge that you aren't easily snowed. Then find reliable experts and/or good resources for acquiring in depth knowledge as needed.
The net will not be what we demand, but what we make it. Build it well.
Do the lawyers know more about the technologies we love than we understand about the laws they fuss over? Or do we techies understand the realm of law on a level higher than the lawyer's understanding of technology?
First, the pivital question is this: how do lawyers understand the laws they fuss over, and how to techies understand the technology we fuss over? The answer: we're resourceful.
Lawyers spend eight years in schooling to learn their trade, plus many more in assisting and training before they become lawyers. Even then, they still don't know EVERY law on the books! So how do they familiarize themselves with the laws? They look them up! They know where to look, what to find, and how to apply it to their case.
Same thing with techies. It'd be incredibly difficult (although not impossible) for someone to be able to know and master the countless OSs out there, AND know the inner workings of a computer inside and out, AND know networking inside and out, etc. But if they're faced with a problem that they're not completely familiar with, they look it up.
There aren't too many lawyers who know what a HOWTO is, let alone understand what the Linux-lingo means. I don't think there are too many techies who know where to find information on up-to-date laws, let alone understand the law-lingo.
Case in point: we each have our own profession, and we each know the core knowledge of it, and how to expand our knowledge of it. If we don't understand something that's not in our realm, that's why we have people called "specialists" whom we use to tell us what to do. If my hot water heater wasn't working, should I a) Read a few books, become familiar with how it works, and attempt to fix it, or b) Hire a repairman to come over and fix it? Definately 'b'. Sure, we all like to think that we're smart enough to fix our own problems, but it takes a rocket scientist to build a rocket, not a skyscraper.
There are some natural conflicts between geekdom and lawyerdom that are at work here: squishy human law versus sharp natural science, individual versus corporate/government interest, slow lawmaking versus fast technological change, experimentation versus caution, etc.
However, I suggest that there is one specific issue at the root of most of the troubles that geeks are having with today's legal climate: technology has made the creation, distribution, and access to information much easier for everyone, but the law still recognizes certain forms of control of information as legitimate (copyright, patent, etc.).
And, of course, some institutions (Microsoft, media conglomerates, cable co's, phone co's) control particularly vital information: the patents and copyright to the technology infrastructure itself.
This creates a situation where the information-privileged can use the law and technology together to create information "tollbooths", while the powerless settle for breaking the law as a matter of course and/or relinquishing rights to information to those who can do something with it.
Slashdot geeks are special here in that they see a better way. The free software movement has demonstrated that keeping control over information may decrease, rather than increase, its value to the creator, and definitely decreases its value to the consumer.
It is immensely frustrating to know that technologically, I have the means to improve government, business, education, science, medicine, or culture, and to reap those benefits from millions of others, but laws that are only helping the most powerful are preventing it.
Now do you see why geeks have trouble with the current legal situation?
"You can't get something for nothing." - my grandfather, on the stock market and Reaganomics.
There I was, minding my own business, eating some fluffy warm things as is my nature, when this idiot with steel trousers comes along and starts poking me with an unusually sharp stick. He was really quite annoying, I even chipped on tooth trying to bite off his head. I'd fly away, but everywhere I went this jerk came along, poking, poking.
Finally I got fed up and found a nice cave to curl up in. Every once in a while I wake up and give the folks upstairs a good shake to let them know I'm still here, but I've learned that they attribute it to some nonsense about the rocks moving themselves.
There I was, minding my own business, eating some fluffy warm things as is my nature, when this idiot with steel trousers comes along and starts poking me with an unusually sharp stick. He was really quite annoying, I even chipped on tooth trying to bite off his head. I'd fly away, but everywhere I went this jerk came along, poking, poking.
Finally I got fed up and found a nice cave to curl up in. Every once in a while I wake up and give the folks upstairs a good shake to let them know I'm still here, but I've learned that they attribute it to some nonsense about the rocks moving themselves.
People still insist that I'm a horse.
I show them the horn and everything, but they claim it's just some weird growth, or that somebody glued a narwhal tusk on my head.
Now I've given up on the mortal realm and slipped through the shadow cast by a full moon into the blessed realm of Faerie, where the elves and sprites know me for what I am.
Sorry folks, didn't mean to double post, and it's a bad enough joke that I didn't want my name on it.
I even missed the last line: "I'm going back to sleep."
I hang my head in shame.
(BTW, no offense intended to the other allegedly mythical creature who posted)
Technology thrives on the application of exceedingly general "laws" of science, which are globally applicable and affect all things. There is no discussion about whether the laws of physics apply -- you apply a sufficient voltage, and the electrons move. No discussion.
Law thrives on specific rules applied to specific situations. Discussion in the law largely centers around which rules apply to a given situation. Legal situations are generalized only grudgingly.
So when technology-minded folks like your average Slashdotter look at laws, they tend to consider the effect of generalizing them and applying them widely, which would often lead to immensely inane consequences. Fortunately the law doesn't actually work that way.
Thus the shuddering reaction of programmers to software patents -- they think:
Where the perception of how simple something is or is not is completely unrelated to the legal definition of "novelty".- "History shows again and again how nature points out the folly of men" -- Blue Oyster Cult, 'Godzilla'
I believe this might be a good weapon against SLAPP lawsuits.
From what the origin posted says, justice was about upholding laws, regardless of fairness. Your post ignores the distinction he explains and tries to equate justice and fairness, as the original post explains as a poor, "post-modern" definition that lost the original precision in meaning.
Why do you have to equate them? Can you have a just, yet unfair, conviction. Also, in this sense a law cannot be called just, only the application can be called that.
While understanding technology and how it is used is crucial to making good laws, possessing an intimate understanding of the law is not strictly necessary in identifying laws which are unfair or poorly defined. Can anyone honestly say that techies lack enough knowledge to criticise ideas such as the CDA, crypto export controls, and software patents? I couldn't say so, and in fact believe it has little to do with legal expertise. While an understanding of the law may be necessary in interpreting the meaning of certain legal constructs, once a techie understands what a law prevents him from doing (or allows others to do), he can certainly pose valid arguments. It's not about legal precedents, legal intricacies or validity in a legal sense, but about a more general concept of fairness.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
It seems to me that Techs and Lawyers are in extremely similar situations. Our entire lives are caught up in syntax and protocols.
Techs spend their days combing through man pages and HOWTOs to find the one obscure option that will make their scripts work or boning up on RFCs to figure out why the IP stack isn't hacking it or reading manufacturer's docs to figure out why a 100MB file transmitted to a UDP port on a 100MB/s network will cause the kernel to crack when using a 3Com 3095b.
Lawyers spend their days thumbing through lawbooks and precedents trying to find a way to claim an incriminating piece of evidence is inadmissible.
Both have tendencies to spend unusual amounts of time at the office hacking away at projects.
The difference. Computer and electronic technology, more specifically different applications of technology, are EXTREMELY new. We don't have a couple hundred years of cruft hanging off of our specialties.
Hell, Windows 9x is dying a miserable death and it's only what 20 years old (if you allow for it being based on DOS). Business law in America is 200+ years old folks. They're using dusty thomes that are monstrosities compared to the source code of most OSes.
So, in conclusion, I don't think one is necessarily better than another. Our speciality just happens to evolve and change faster like so many others have said.
Lib.BENCH the only site you'll ever need!
Well it seems to me that the problem is rooted in our fundamental misunderstanding of technology. I mean really, think about it. If I know everything about technology, and then I try to write laws, what will they mean? Nothing. What if a lawyer who writes laws all day tries to make technology? What then, huh? You see what I mean. If not, I can give you an example. Suppose I live in a house, it has four walls, a roof, and a door, and some windows... oh say, four or so, and add a back door too while you're at it. Did I mention the roof? Anyways, I have this house, and a garage, with a car in it, and I go to my neighbor's house, which also has walls, windows, doors, and roof, and I ask my neighbor, "Can I borrow your internet connection?" And he says, "yes, but you need a password." So he gives me a password, and then I log on, but he has a macintosh, and as we all know, macintoshes are very difficult machines to work with, but i manage, and so I use his computer to write laws. What does that mean? That's the fundamental problem. In our current legislative paradigm, what position does that put my neighbor, the owner of the computer used to write laws as well as the owner of the house next to mine, with respect to currently established laws? Maybe one day, when we all have law degrees and are fluent in VHDL, we will figure this all out, but until then, at least, I think maybe we should try to look at this from a more rational point of view: that of the modern man, alone in his universe, with just his laws and his technologies. Then maybe one day we can try to set things right that once went wrong, in the hope that we can find a way home.
I think there needs to be some kinda of built-in obsolensence to the legal system. Some form of constant renewal. An expiration date, for example. There are many old laws that don't apply today and/or are not enforced (for example any sex other than the "missionary position" is illegal in some areas, but obviously not enforced), but it takes too much effort to remove these laws. If laws expired after say, 25 years or so, we could clear the laws books of unwanted laws. Or if the law the just needs a slight change in terminology or a clearification, that could be done easily when it came up for renewal. I think this would grealy help reduce the ever growing laws and regulations.
There are judges that make bad decisions, but justify it by (mis)applying case law. Sometimes there is bad law, that judges have to figure out. Look at the destruction of the ADA by the supreme court. It's almost, if you manage to make acomodations for your disability, you are not disabled and not entitled to acomodations
Lawyers will argue what is advantageous to their case. They will try to skirt, discredit, what does not help them. In my case they argue that I did not need time off and they had already accomodated me by allowing me time off. They also argue that a software engineer only uses the keyboard 20% of the time (most of the time is looking at the screen).
RSI injured employee wins against Mattel, Mattel still retaliates!
Hitmen are professionals who provide a service. They have to represent their clients in their clients best interests. They might not be the best for society, but so be it. Hitmen generally are not in a position to take the higher ground. Most of the remarks hurled at Hitmen should truly be redirected at the parties that they represent, because in reality they are calling the shots.
For example, while we see a single-page "Table of Contents" in literature as something completely unpatentable
Only in retrospect.
It took over a hundred years for the Table of Contents to catch on as a standard part of a book.
It was very clearly one of those truly ingenious, useful, and wholly inventive ideas that change the world.
Next you'll tell us that the wheel was obvious and not novel, too?...
Recursive: Adj. See Recursive.
ok - I'll start off with a meaningless inflammatory - yes - techies are more likely to understand the law than lawyers are to understand technology - but that's purely because techies are SMARTER than lawyers an understanding of mathematics gives one a far greater capability to deal with any intellectual challenge than a comprehension of the languages of humanity. That comment, however was purely for the humor of it (although I do believe it). You have raised a very relevant issue to today - the increasing dissatisfaction with the law by the technical society, and it's seeming "inability" to deal with the current technology development... I think, by mentioning understanding - you are missing the point! It's not a question of techies understanding or not of the law - that's fairly irrelevant. It's a question of motivation... Why is it that the brightest of the bright in our society grow up, get their doctorates, and spend their lives poor, teaching occasionally - when other, ordinary people go and put a little money into shares and make millions... the share market is a mathematical system - does anyone seriously believe that some accountant who's doing pretty well trading understands mathematics better than the professor using bessel functions to prove the likely existence of a black hole? NO - the professor CHOOSES not to... Now let's go to computers - everything in our industry at the moment is about IP.. and yet have you EVER seen anyone who actually _produced_ something care about IP? the companies who employ people do - but the people writing the software - the people coming up with ideas are telling people on IRC - are releasing free source as soon as they get something working.... The problem is that now we are getting to the position where the "nerds" - the "scientists" are getting mixed into the real population - or the real population is getting mixed into the world of the scientist... Once people get beyond a certain level of intelligence, all they want to do is contribute to the global pool of knowledge - and make it grow as fast as possible, whoever is making the next discovery, unfortunately, the fields of research are now mixing with the fields of the consumer, and companies, lawyers and others are getting involved - and they seem to be unable to understand the concepts that the scientist lives by - all information should be free! Because everyone knows that an idea is worth nothing alone - everyone has tens of brilliant ideas every day - an idea only becomes meaningful when it is combined with other ideas, and other people - so this concept of "I thought of it first, so I should get money" is absurd - you didn't think of it first - if the information was out there, many people are simultaneously thinking of it all over the world - the only difference is you patented it!
Currently, the US is operating on a set of laws that are, at least, centuries old. What the techies philosophy is based on is really only decades old (well, ok: it does resemble eastern philosophy, but i'll simply ignore the facts here.) Anyway, the values are just too different too work together, as a previous post touched upon. Until the general mode of thought of the American Pyche changes, it will remain this way-- you get what you work for vs. the commen good. Just like another Cold War (Ok that's a little bit strong, but the philosphies are the same) Until then, techies just have to make sure that they have their own *system* that works within the legal system (such as the open source movement) while giving monetary help to any Comarades who fall to the *other side*.
good point.
I really don't know much about law, so mostly i keep my trap shut about it. My problem with law is, that by building it on real cases, and the necessity for covering each loophole to deny anyone unfair advantages by exploiting them, the whole matter appears 'overcomplicated' to me.
If likened to a piece of source code it would be some gigantic, hard to maintain, monstrous program with mends and kludges all over the place to cover for all kinds of strange situations, and even so (or maybe because it is so) it occasionally fails to do what it is intended to do.
When i program i don't like my code that way, i like clean, elegant code. Thus i dislike law for it's (apparent) lack of elegance, especially in cases where the outcomes are counterintuitive (in my eyes). Obviously my intuitive approach to law ('that would be a fair solution, so it should come out in the end') is wrong.
The resulting discomfort with questions concerning law makes me avoid them and sometimes results in knee-jerk reactions. Knowing this, i consult a lawyer whenever i really need such questions resolved.
OTOH law works, most of the time, and it has to cover a lot of subjects noone even thought of a few years ago (while i still think it could work better, if it where less subject to the influence of lobbyists)! Probably in most cases it's apparent 'complicatedness' just reflects that life isn't always simple.
"By the way if anyone here is in advertising or marketing... kill yourself." -- Bill Hicks
If a law is "good", then it doesn't have to keep up with technology. By "good" law, I mean law that is not aimed for or against any particular group of people, including politicians, lobbyists or voters. Note that "good" here does not refer to the justification, morality or intent behind the law. That's a whole new can of worms :-)
The reason good law doesn't have to keep up with technology is that law is supposed to be about people, not things. As an obvious grotesque example, there were no laws against owning nuclear weapons prior to the 1950's. However, there were scads of laws against murder, mass murder, mayhem, public endangerment, to name a few, all of which are relevent to the private ownership of nuclear weapons. A trivial example of a "bad" law is that which permits only one local telephone provider to do business in my locale. This may have made sense when it was written, but by being geared towards a specific group of companies, it is now seriously obsolete.
One side effect of "good" law is that one need not be a lawyer to understand it, and can let experience be their guide. If it is okay for your neighbor to perform an action under "good" law, then it is okay for you to do the same. But you never know where you stand under "bad" law.
If there's problems applying a law to new technology, rest assured that it's because it is not a "good" law. All the more reason to change it.
A Government Is a Body of People, Usually Notably Ungoverned
When intelligent users cannot access the power of a system through a user interface, does it mean that the users aren't intelligent enough? Or that the interface needs improvement?
I think the better geeks are apt to answer "the interface needs improvement." Some of the geek-wannabes will take the easy way out and say, "If they don't understand my system, clearly they're not intelligent enough to be using it in the first place!" But real geeks are more likely to face the fact that a system exists to serve the users; if it doesn't, all the nifty code under the hood represents wasted time and effort.
So, let's look at the other side: when a law code becomes so big and complex that ordinary citizens (whose intelligence is, if anything, above average) cannot understand it, is it the citizens who are to blame? Or the law code?
The Supreme Court actually answered, "It's the law," in the decisions that struck down the Communications Decency Act. They noted that, not only would it have a "chilling effect" on protected free speech if citizens were unsure what was or wasn't legal for them to say on-line, but that the existence of such a situation pointed to a flawed law. The decision affirmed that a law has a responsibility to be comprehensible to the citizens who have to live by it.
I've seen some confusion on legal matters on Slashdot, usually on the subjects of patents, copyrights and trademarks. Yet I don't attribute this so much to Slashdotters being especially ignorant of the law -- not moreso, anyways, than the average citizen who is supposed to comprehend those laws well enough to obey them! I think that the wide deviation between theory and practice is at least partly to blame: patents awarded in the face of decades of "prior art"; police raids carried out in trademark cases, cases where the defendant is the one who has used the trademark for six times as long as the plaintiff has been in existence; portions of naturally-occurring human and plant genomes being declared a company's private intellectual property... If the actions of courts and lawyers would only conform to the law, us ordinary geeks might have a better chance of conforming to it ourselves!
If people are to respect the law, perhaps the law should begin by respecting the people.
Information was never regulated at the ports. Only material goods were. Your computer connected to the net may not be an international port, but if you order material good online, they have to shipped to you somehow.
A Government Is a Body of People, Usually Notably Ungoverned
I have worked for 20 years in a technology related business for a major corporation. I have experience with patent lawyers, FDA regulatory laywers and seeing a lot of what passes for liability law in the US.
I have a lot of respect for patent lawyers. Many of them are extrodinarily intelligent people with not only a Ph.D. in their technical field, but a law degree as well. Good ones often understand the implications of a technology better than either the business management or the inventors. Clearly a techie does not understand law as well as these lawyers understand the technologies. Unfortunately the examiners at the patent office are no where near as competant. A patent lawyer at a large company often will be making decisions as to whether a proposed business endevor infringes or not that could be worth many millions of dollars.
Regulatory lawyers working in technical fields are a cut below patent lawyers, however a good regulatory law firm will usually have technical help on staff and approach the problem in question with a good sound technical understanding of what is going on. His job is to understand the law, and the basis for the law, and advise the client how to operate his business legally. The main complaint I have about regulatory law is that it is so incestuous. A good regulatory law firm will often have been established by a regualtory agency or congressional staff member who actually wrote the law, or was instrumental in casting the regulations. This gives the lawyer access to information regarding the genesis of the law or regulation that is not publically available. This information is a license to print money because this material is the only way to fully understand the regulation.
My experience with tort lawyers and science is that they are the lowest. They could care less about the science, except as it supports their case. If it doesn't support their case they will do anything to get it barred from the courtroom. There have been any number of liability cases that have been decided on erroneous science, and companies who have had to go into bankruptcy despite not having done their customers any damage. Thirty years later there is still no evidence that the wastes buried at Love Canal harmed one person.
The Judges that hear these cases are generally not qualified to handle the competing science claims. There are a lot of ongoing changes in the US court system as to how science is being handled as a result of these failures of justice.
I am not saying tort lawyers are bad in general - it is the the use of science in these cases that is the problem. Tort lawyers have also done a lot of good; what is happening to the US tobacco companies is a perfect example of why they can be beneficial.
I have seen a lot of people mention that in the US there is a much higher tendency to settle matters in the courtroom. There are good and bad aspects to this. The bad aspect is that it has become an industry that is self perpetuating. On the other hand there is a good aspect - legal redress is a very important avenue to justice. Maybe justice isn't always the result, but if you don't have access to the court, what chance do you have for justice?
>Forgive me for bashing us techies (being one
...) actually grok the laws they are passing beyond the concept of "I'll vote for yours if you vote for mine" or "if you vote for this we'll help you get re-elected"?
...). Thus, they have solid technological amunition to combine with the virtually unlimited monetary firepower they can use to hold the lawmakers hostage.
>myself), but honestly, I believe that there is
>FAR more to understand within the various laws
>lawyers understand than in the technology we
>techies know."
That, IMNERHO, serves to show just how insanely complex and convoluted our laws are. Let's face it, how many non-lawyer types actually grok the laws that apply to whatever it is they do? For that matter, how many lawyers grok more of the law than whatever subcategory applies to their specialisation?
What's worse, how many of our law *makers* (all those people in Congress that we find ourselves complaining about all the time
The issue here, I think, is more politics vs. technology rather than lawyers vs. geeks. What we need to fear is politicians being influenced by big business interests (i.e. money grubbing) toward making laws that that further profit mongering at the expense of the individuals who make up the general public.
The scariest part of *that*, is the fact that the lobbyists who represent big business, and those who plan their strategies, have a *very* *good* understanding of the technolgies (much the way we geeks grok them), *and* their implications to big government and big business (which we geeks sometimes overlook
Part of the problem is the engineering mindset that we geeks have internationally -- we regard legal impediments as bugs to be worked around. Illegal to export encryption? Develop it overseas. Illegal to copy it? Cleanroom it. Illegal to have unrestricted net access? Anonymizing proxy.
Techies are, in effect, resolving legal questions with the technologes they build -- and doing so without the aid of prefessionals in law, politics, etc. We are in effect practicing law every time we create a new algorithm to avoid an existing legal "problem".
Technology is undemocratic. I would argue that that's a flaw with democracy, but democracy defines it to be a flaw with technology. Technology follows its own anarchy -- what is possible, will be built and will expand to the limit of its technical feasibility. Law is trying very hard to stop that, more in some areas than others (imagine if software development were under the same restrictions as cloning research!). Who will win? Who knows.
But all of us techies need ot remember that we are fundamentally enemies of all democracy, of all legislative systems. We're pushing on what is technically feasible and working around what is legal as a bug. Prosecution lawyers -- enforcers of the law -- are necessarily our adversaries, as much as legislators.
So it follows: Know your enemy. Learn the relevant laws. Continue to ignore or work around them, but know it.
--G
The question should not be if the lawyers understand technology. For the most part, they don't.
The question (unasked) should not be if the lawmakers understand either. For the most part, they don't.
We create or implement new ideas, or at least copy them from someone who does. Lawyers deal with who should have permission to perform these acts based on prior law. Lawmakers create laws that they are lobbied to create.
The problem is that we have allowed ourselves to feel superior through technical knowledge and then are shocked when those we have kept ignorant rebel against us in a battlefield not of our choosing.
We wanted a place where only we were allowed to go and then we bragged about how cool it was. Eventually the masses (aol) were bound to flock there. They brought with them their own interests (bad porn) and their money (etoy). In the process we lost control of some things (domain names, usenet), had some things corrupted (amazon.com used to be cool), and had some things forced upon us (spam).
We disliked the masses. We tried to keep them uninformed. We tried to keep them out. We built places like slashdot that rewards people for being "one of us", in an effort to keep them away.
We were wrong. There is no refuge from idiots. Mensa has more idiots than I can stand. Science fiction conventions are filled with them. The internet is becoming overpopulated with them. No matter how far you run, you can't escape the idiots.
But you can educate them.
Leonardo, etoy(s), DeCSS, Amazon: These are all actions of people with just enough knowledge to be dangerous. It's not that the lawyers are dumb. They're not. They are paid to win. But the judges, the juries, the spectators, and the defendant's lawyers are just not knowledgeable enough to see our side of the story.
The sad thing is, we hold that knowledge. We knew and did not tell. We distributed DECSS without explaining what it is, what it can and can't do, and why it exists. We boycotted Amazon and Etoys without explaining to them or their customers why what they were doing was wrong in language they could understand. We insulted their intelligence when we could have increased it.
"Information wants to be free". "The internet perceives censorship as damage and routes around it." I've heard it all before, all from people who didn't realizing that they were keeping the knowledge of how and why it worked to themselves.
What fools we mortals be.
No Zen is good zen
Really what techies practice is _reality_ -- we take the laws of nature to their limits. What's one level above law? Reality.
Technology has intrinsic respect for the laws of nature, before which all are ultimately equal. The law sets itself in front, obscuring nature's laws and trying to prevent technology penetrating to that kind of equality and imposing its own views of what equality is.
Irresolvable dispute between nature's anarchy -- the technocratic agenda -- and law's predictability and (delusions of?) justice.
--G
This is an issue I have thought about a lot recently. It is part of the reason I wrote a Slashdot article about the basics of patent law. I am a techie (masters and bachelors degrees in aerospace engineering, programmer for most of my life, have a Linux network in my home), but I'm also a lawyer. I am always surprised when I see techies/engineers/scientists missing the point in legal discussions -- it's just not necessary.
The law is not that complicated, and most lawyers are less skilled at logical, rigorous thinking than are techies. Techies should be unphased by legal issues -- but in reality that is not the case. It seems that most techies write off the complexities of a legal issue at the outset, and then bluster through it (see the quality of discussion on Slashdot following a story about patents). Although the law is not extraordinarily complicated, there are complexities that must be thought through carefully. Any programmer should be able to reason through most legal issues without any problem.
The reason, I believe, for techies not "getting" legal issues is that (i) non-lawyers in our country are not explained even the rudimentary legal principals that govern our law, and (ii) techies are often unwilling to examine a legal issue at the level of detail that is required. I think that part (i) of the problem is deplorable, and lawyers are at the root of the problem. Many lawyers have a "guild" mentality and they don't want non-lawyers to understand the law. Non-laywers should demand to know how law works (as I said, it isn't that complicated). Part (ii) of the problem is something for techies to work on. When approaching a legal issue, try to avoid making snap judgments -- look for the nuances of the issue, and give it the attention it warrants.
I've been meaning to write another piece about techies and the law. Maybe I should do that soon... when I can find some time...
-Steve
Democracy is a poor substitute for liberty.
How can you stop it?
Go read Larry Lessig's book. You are exactly the person it was written for. Code and Other Laws of Cyberspace is the name of it. It should clear up your misconceptions. The Internet can most certainly be made regulable. All it takes is for business and the government to decide to do it and for the people of the U.S., or any other country to not put up a good enough fight against it.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
I need to start cutting and pasting this reply. It seems like it's going to get a lot of use here.
You should read Larry Lessig's book, Code and Other Laws of Cyberspace. It should help you see that the internet is only what business and the government decide it should be. They have the power to control it if enough people let them do it. The Internet is governed by code. That code can be changed.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
I would say that most lawyers do not have the depth and breadth of knowledge a techie does, therefore they do not understand the technology the way a techie does.
But, they certainly know how to construct a logical argument. As with most cases argued in our court system both sides will present the facts that help their case and try to suppress the facts that will hurt their case. I think with all the facts presented without the legal spins and biases, you would see that the techies know more!
This has provoke a rambling response from me; I am hoping as I write this that it makes sense, and is useful as interpretation of what is an interesting relationship between lawyers and techies. I am a lawyer, and practiced law for over ten years before leaving to become -- a consultant. (No jokes, puleeze -- I've heard them all). Now I advise legal organizations on implementing technology. (And if you wonder why I left, I will tell you why at the bottom of this note; it will make more sense then.)
I agree with the comment that techies don't often understand legal issues; their view is quaintly, what _ought to be_ rather than _what is_. I also feel that while techies often profess cynicism, they really are idealists; how else could open source really work? Idealism and the law collide (I can personally attest to this); law is really the art of the doable.
But more importantly, techies are guilty of the same thing that people in business generally are: they aren't proactive. (I feel comfortable in saying this, as I advised a lot of smaller developers). No one wants to go see a lawyer, to write up one's licence agreement properly, or to ensure that the bases are covered to avoid liability with the things that are said and done on the internet, or to protect one's intellectual property properly. This costs money. And more often than not, it is this "penny wise, pound foolishness" that brought most litigants to my door to sue someone: they simply had not spent the money to retain a lawyer to protect themselves adequately at the start, or did it on the cheap by "using" the same lawyer as the prospetive investor (who is going to protect their client's interests, not the developer's), or they went to a generalist (read: cheap lawyer) who was not equipped to deal with software-related issues. Worst of all is the client who thinks that they are a lawyer: they copy the text of agreements others have drafted without understanding why it is there. Old saying: If you act for yourself, you have a fool for a lawyer and a fool for a client.
Techies, and laypeople in general, have a tendency to not be proactive. The consequence is that they hate lawyers. Why? Because the problem that they initially created by not getting legal advice, is now transferred to the lawyer, who may or may not be able to rescue the client from the consequences. The law, as someone else here has pointed out, does not always keep pace with technology. And it always costs more money to fix than to do right from the beginning.
Lawyers are also disliked because they have a tendency to mystify their profession with jargon, which creates a barrier for understanding. Lawyers are like shaman; feared and hated for their power, their incantations which can cause the system to help them or harm them. Does this sound familiar?
As to what techies should do about lawyers:
I always believed that a lawyer was not only his/her client's advocate, but also a teacher about the law, to help demysify it. A lawyer as well has a duty to engage his/her client in an ethical conversation regarding the matter that the lawyer had been asked to deal with. If you want that, and are not getting that, then become an educated consumer -- go find someone who understands your business, and the way you go about it.
Techies are sadly lacking in knowledge about alternative dispute resolution (ADR). After a few years of litigating disputes that involved technology, and watching what judges did with them, I became a fervent believer in ADR. You get to pick a specialist as a judge, you can do it online or by videoconference, and it is a lot friendlier and more in keeping with the philosophy of the open source movement. By simply including ADR clauses in their contracts, techies could design a far more effective means to resolve disputes which makes sense and is more responsive to the changing technology. Why wait for the governments to draw up the rules of the game--any contract is the law between the parties who agree to it.
However, the sad truth is that when technology-based businesses grew beyond a certain point, they all go to the bigger firms which promote the same old viewpoints; staying with a sole practitioner doesn't give them the same reputation as going with the bigger law firms. So, after being abandoned by yet one more techie whom I had weened along, investing more time in them than I had billed, I became frustrated with legal practice, and I jumped when the opportunity presented itself.
Moral of the story: (1) Find a lawyer that understands you and your business, and explains as they go along. (2) Stick with them; loyalty is a two-way street.
What's a laywer?
I have been an attorney at law for 20 year, so I think I can deal with the situation with some strength.
firstly, most lawyers know little but the law. they read the charge and if it's hard, look it up and then apply the PRINCIPLES to it.
They never dig their heads out into RL or VR to see what it is that is being dealt with--it's just Charge (n) = ingredients (x)
so if you were charged with murder, it's either self defence, not me, accident or insanity. No matter who murders who where or when that's the box it fits in--prosecutors prove it is not self defence while def. counsel try to prove it it, etc.
When it moves to tech 99.99% of all lawyers don't know jack. A few can turn on computers by themselves and actually point and click.
they no more see the reality of something like the DVD scene as beyond the black/white. X says Y infringed their right, therefore prove Y infringed or prove Y did not.
It is fortunate there are a couple of judges who do understand the tech or in not understanding err on the side of innocence because they don't have a clue what guilty would look like.
In Jamaica there are really only two lawyers, myself and Bladerunner who know the tech, (he's a programer as well with his own company, so he's definately in the Nerd/Geek category. I'm the other one.
Sadly, too few people realise that when it's a tech case, whether the *&&^ phone company claiming that bypass is trespass, or an ISP claiming the monopoly phone company has used its market dominance position, the lawyers hired are the run of the mill mouth for hire, so the issues don't make it to the fore.
Too many lawyers will take any case for the money.
causing a distinct difficulty in telling them from garden variety whores.
As long as we know the tech and as long as non-lawyer geeks have the guts to push--we will win.
One mistake we made was letting Kevin Mitnick rot in jail so long. We must not let hacking/cracking whatever replace drug offenses as the bogeyman.
jamaica
So, now that your going to be a zillionare, are you going to take up your old past time of having your house burned down? You can afford it now. My friend Black Metal Neil will do it for you.
when Push Comes to Shove
It occurs to me that the largest issue with the legal knowlege base on this is that they know only what they are told, and with new technology, don't exactly have a way of researching the correct data. With those who are familiar with the technology, doing the research on the legal/social ramifications is fairly simple in comparison, as the data on the legal system, while convoluted, is certainly readily available, while finding documentation on, say, all possible applications of a means to manufacture self-replicating, self-repairing, mobile machines designed to build bridges and make key lime pie. I'm fairly certain that these immagined machines would not start making bridges OUT of key lime pie, but how does a layer know that?
"Justice" is a common word, as opposed to a technical term, whose definition might only be known by experts. So even if an ordinary man-in-the-street may not be able to come up with a synthetic definition of the word, you'd expect to be able to place a case in front of him and be able to get an answer to the question, "Is this justice?" Furthermore, common words are defined by consensus, so if your definition of "justice" contradicts that common understanding of what the word means, then your definition is wrong.
Now you say:
> You probably understand only the post-modernist definition
> of justice, which is "fairness". It's a sad side effect of
> the civil rights movement that the word justice had its meaning
> destroyed in common usage. As it has classicly been defined,
> justice is when the law is carried out as it is written (or
> as it is interpreted in a common law derived system.)
Ok, then, let's review an extreme example of "the law as it is written;" to be specific, the anti-Jew laws of Germany's Third Reich. Those clearly written laws specified that Jews could be deprived of all their goods and sentenced to slave labor. By your definition, "justice" consists of nothing more or less that carrying out these laws. I think it's obvious that no one in his right mind uses the word "justice" in this sense.
Yours WDK - WKiernan@concentric.net
I've read most of the other posts, and I can't help feeling we're all missing the point here. Sure, Techies don't understand Law. Sure, Lawyers may even understand tech better than we understand Law...
However, never once have I ever heard of techies being involved in deciding what lawmakers can and cannot do (at least, to the extent that lawmakers are with tech). Techies may not understand law, but we employ Lawyers and Judges to do that for us. However, if Lawmakers are supposed to pass laws about technology, effectively telling techies what they can and can't do, don't they then have an obligation to understand the technology they're legislating about?
The way I see it, it should not be permissable to pass laws in an area unless you are sufficiently competent in the area to know what you're talking about.
Just my £0.02
-- Hi, I'm a
Creeping featurism. The original design has been garbled by hasty changes for special cases. When a new situation arises that the law doesn't cover, the change should be governed by general principles, not an only-applies-to-this quick fix.
As a lawyer, I'd have to say that the lawyers win this contest if techies understanding of law is reflected by the posts in this thread.
First, "the law" is not nearly as monolithic as people seem to assume. Most posters seem to equate "lawyers" with "trial lawyers," when the latter is only a subset of the former.
But even within the much more limited field of trial law, folks just aren't getting it. They equate "law" with "rules" as though they were one and the same.
They aren't the same. The fact is that court decisions are made by people subject to human frailties, and "rules" tend to be the after-the-fact justification for decisions that are made at a much more emotional level. In other words, "law" is the aesthetic of social control; the real only rule is, "it depends on who's asking."
Trial work really isn't about rules. It's about persuasion, whether the decision is made by a judge or a jury. Which client and which witnesses are more appealing to the decision-maker? How should people dress? What order of proof tells the best story? And study after study has found that most jurors make up their minds based on the first few minutes of opening argument, rather than on the presentation of evidence.
A friend once explained that he found out after he got out into practice that he had wasted three years of his life going to "law" school because he learned that it was facts that won cases, not law, but there was no "fact school" to go to. There's a lot of truth in his observation.
As a champion of unpopular causes, this isn't the way I'd like it to be; however, it is beyond question the way it is. But until techies wake up to the fact that the rules are far less important than who's making the decisions, I'd have to say that lawyers understand far more about tech issues than techies understand about "the law."
yes there is. a LOT of state laws get struck down as unconstitutional.
The bastardization of that term is indicative of a clueless society. Today people think that means that only bad, slimy people become lawyers. When Shakespear originally wrote that line, law was the most noble of professions.
Only the wise, knowledgeable, and fair were laywers, that line is supposed to confer that the best way to demoralize and destroy a people is to kill off the brightest, most shining examples of what goodness is supposed to be.
This may be semi-off topic, but I think that sometimes lawyers get a bad rap when it's their clients who are the true scumbags. I don't blame the RIAA's lawyers for their MP3 insanity, I blame the RIAA. It's just a shame for lawyers that the most high profile members of their profession are now Bill and Hillary Clinton.
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
With all due respect, this is not about choice nor is it about "legislation through the judicial branch." In this case, the woman was severely burned by the coffee. McDonald's, or anyone who sells a product, has a duty of care to ensure that their product does not harm the eventual consumer.
McDonald's, or anyone, has a responsibility to warn its customers when it sells a product that is dangerous enough that the danger of using it can increase greatly when it's used in a way in which it can reasonably be expected to be used. In this case, McDonald's sells near-boiling coffee to people going through drive-throughs and gives them no warning that it's so hot that it can severely burn them.
The purpose of tort law, of which this case is only one example, is to compensate victims of torts -- people who suffer damages due to the actions of others. In this case, the court found that McDonald's was at fault. It's not about choice, or anything else. It's about companies warning consumers that their products are dangerous.
I think this is a perfect example of the subject that this item is about: Geeks commenting on law without necessarily fully understanding it.
Disclaimer: I am not a lawyer and do not practise law. The above is not intended as a legal opinion.
Speaking as both a lawyer and a linux geek ..... I think the fundamental problem lies in 1) the unwillingness of the tech community to try and understand the complexities of the realms lawyers have to operate in instead of giving knee-jerk reactions to /. posts, and 2) the fact that although IP laws are not nearly as outdated as some have suggested, we are rapidly arriving at a point where they simply cannot be enforced in the digital age, causing people to do a lot of stupid things to try and protect their interests. For example, CD burning and MP3 technology makes it utterly impossible to enforce music copyrights. You can shut down one MP3 site, or even a thousand, but there will always be a thousand new ones right behind them. Copyright and patent holders like the RIAA and Amazon.com are going apeshit because, basically, there's nothing they can do about the proliferation of their ideas. It's not that they don't have rights, but there's just no way to realistically enforce them. Desperation makes people do stupid things and go overboard, and that's what we're seeing a lot of. But as for lawyers themselves, they only have the Copyright Act, the Patent Act, and the Lanham Act as they are written to work with. Their clients *do* have rights and protections under those laws, and any lawyer would be negligent not to assert those rights as forcefully as possible. That being said, I do think there is something of a disconnect between technology and the legal community. Quick story: I'm a recent graduate of law school, and last year I took a class in Antitrust. Naturally, we spent a lot of time analyzing the Microsoft case because it's probably going to be one of the 3 biggest AT cases, along with Standard Oil and AT&T. As we polled each other on our opinions of the case, I found that those who were more technology-savvy and understood more of the tech issues tended to be more anti-MS, while those who saw the computer as more of a magic appliance tended to be pro-MS. (I knew everyone fairly well, so I knew who was into computers and who wasn't.) Understanding technology definitely (in my experience) colors how lawyers see techno-legal issues, and there is definitely a large contingent of lawyers out there who don't. If there's one thing I've learned, it's that half of law practice is sounding like you know what you're talking about, so when lawyers aren't sure, they bullshit. You wouldn't believe some of the things I've gotten a judge to buy! The bottom line is bullshit makes bad law. If more lawyers really understood tech issues, there wouldn't be any need for that sort of thing and they could craft really top-notch arguments and novel solutions that don't drive a wedge between them and the tech community. But basically, your beef is with Congress, not the lawyers. The laws say what they say, and the lawyers are enforcing the rights provided by those laws. If you don't like software patent lawsuits, take it up with your Congressman, not the lawyers representing the patent holders. Just my .02
I probably lost my authority to speak as a techie years ago when I changed my major from math to theatre. But as a current lawyer who at least tries to maintain in interest in things technical, I thought I'd point out at least a few of the similarities between the two fields that are not immediately obvious.
I believe that many lawyers / coders operate from a similar mindset. Both are faced with a system which provides (supposedly) fixed boundaries. It is the job of both to engage in a creative thought process, designed to accomplish things within those boundaries which were not thought possible.
In the case of a programmer, thouse boundaries are set by the specifications of the system for which he or she is coding. For the attorney, the boundaries are set by legislatures, precedents, the judge, and the opposing counsel. For each the task is to maximize the result given the condition under which he or she must operate.
The law is not a body of literature which can be memorized and regurgitated to settle the claims of any given case, any more than I could turn myself into a world class programmer simply by learning all of the possible syntax for a given programming language. Both programming and the law are processes which represent the creative application of acquired knowledge in new situations, and the art of working within constraints imposed by forces which you can't control.
I also want to emphasize that knowledge of the law, and legal education prepare one to be a lawyer, but they do not lend any magical authority in philosophical discussions regarding what the law should be. How the law should develop, especially in technologically related areas is an area where techies should have much more involvement, because the legislators who are writing the laws frequently have no idea what the long term consequences of their actions will be.
There really need not be the techie / lawyer gap which seems to pervade the postings in this topic. Lawyers and programmers are employed because they know how to use a given system to reach a given result for their client. I could tell you how my software 'should' operate, but it is going to take a techie to get it to work that way. You can tell me what the result 'should' be in your legal case, but having a lawyer working with you will greatly increase you chances of bringing that result about .
Creative problem solving within limits is the core of both good lawyering and good coding. We have more in common than you think.
Hack the Law!
Dane Torbenson
I would hazard a guess to say that are a large part of the techie audience are from the engineering profession, where some study of law is required in order to achieve professional status. I don't believe the same is true conversely for those of the law profession. So techies are more likely to know more law than lawyers know technical matters.
I used to work at a legal software company, and my main clientele were lawyers of all sorts- Divorce, Intellectual Property, Criminal, etc. I also used to work with them very closely in issues of their network and their technologies- many times with Partners (the core lawyers in a firm) themselves if it was a small firm.
Dont kid yourself- lawyers, all in all, tend to be not only the scum of the earth, but also some of the most unintelligent (in the grand scope of things) life forms on earth. This is not true for all, granted, but for the most part, the only talent that it takes to be a lawyer is having a mouth, especially trial lawyers. I am not exaggerating this.
Apply Dilbert's Rule, and you will realize that the most incompetent and corrupt lawyers will be promoted to being judges. If you look at actual cases, and the amount of corruption involved by favoritsm, bribes, etc., the U.S. legal system is only slightly better than a third world country (the only difference is that the bribes are higher in price). Anyone who has dealt with law in situations involving traffic, drugs, taxation etc. extensively, know this quite well. Im sure there is no difference for IP/cracking cases.
Now take the most stupid of the stupid, and most corrupt of the corrupt, and you make them the lawmakers. So what you have is a circus dictated not by logic or justice, but by rule of idiocy.
If you are lucky, you are able to toss enough money into the court to sway it into your favor.
On top of that, US law itself is a self-contradictory system.
Oh, and forget about all that stuff you see on TV or movies about the ability to argue based on technicalities or minor points- that only works if you have the money to push it through.
Do 95% of the lawyers understand anything about technology, much less the way it can even possibly impact the society? Hell no. I guarantee it. The judges know even less, the lawmakers know even less.
Anyone remember the days of BBS'ing? Remember how the provider was held accountable for all discussions and material on the board, even private email? Ludicrous! Insane to anyone who knew the model of BBSs. The same mentality still holds today.
Again, Im not saying that ALL lawyers are like this. I am pointing out that this is how the system is run. An attorney will not try to argue whether your invention violates IP law because of various technical differences, or whether telnetting to port 25 is not really a violation of security. Rather, they will try to push paper in the most advantageous way possible- go for plea bargaining, file the appropriate motions to persuade the judge out of annoyance of legal hangups.
The contradictions in US law and the different levels of precedence lead to basically the following outcomes:
Lawmakers- bought off by the highest bidder, passing laws in favor of the highest bidder.
Judges- are a lot like cops in that they follow one of three paths usually:
1) Arbitrate the court with the least amount of work on their part (the more they have to think or confront issues or question the system, the worse it is).
2) Judge based on the amount of money or favors the party has. This is either direct, by means of bribes, or by the amount of money a party can throw at the system, to do things which will make the judges look bad (mistrial/appeals/etc.)
3) The judge will rule on what they think is right. Judges are seriously out of touch with any semblance of reality, BTW.
4) Whatever will get them votes in the next election. You all know what that means...
Attorneys- unless they are a public defender, they will of course be motivated by money- its their business! This is not a bad thing, but as a result, attorneys will try to hack the system in a way that is most likely to be beneficial for you and you only, and will almost never ever look at the larger impacts a case like yours can make.
Again, anyone who has ever been to court on issues involving technology, or for that matter, anything beyond divorce law will understand this very clearly. The system is screwed, and the people in it are even more screwed.
So what does this mean for the us techies?
It means that time after time, especially after the liberal generation of judges from the sixties retires [and is replaced by moronic fratboy types] the US judicial system will favor:
- Monitoring over privacy: Since they can't ban the technology thats out of control (that would be cutting into profits), they'll simply configure the legal system in such a way that transactions are monitored (usually, "for the good of the children").
- Intellectual Property in favor of the parties that have more money. The only reason Microsoft is in court is because Sun and AOL are equally powerful players.
- Draconian "punitive" measure for anyone who gets even slightly caught up in these matters.
- Maximal amount of trade restrictions: Dont be surprised to have filters set up between say South Asia and the US, in the interest of protectionism.
- regulation of ideas, starting from the younger generation (we are already seeing this with the entire post-columbine witchhunts).
Is all of the short-sighted? Are the lawyers slitting their own throats, and all of their children's throats? Cutting into their own future profits? You betcha! I said they were stupid, not rational, remember?
Its ironic how many well-meaning people place their trust in the judicial system, and how they think the laws will help the marginalized, when in reality, it only strains the marginalization.
Its come back down to the rules of the street again, thanks to the idiocy in the legal system:
a) Do what thou wilt
b) Dont get caught.
Or kill me.
We can learn all the law we want by using the same technique, and we probably will continue to do so, making us as informed about law as lawyers will ever be about technology. I personally don't believe the learning curve is as steep for law since much of law is based on common sense and the societal grounding from which we all have grown.
Law is "difficult" because lawyers have made it so. Unfortunately, the bulk of legislators are lawyers, and simplifying the law is not in their interests.
If it weren't for lawyers and legislators deliberately complicating things, techies would be ideally equipped for understanding the law. A good law regime should require only a firm grasp of the English language (or other native language as appropriate) and of Boolean logic.
The law is supposed to help all persons, however it has universally evolved into something that helps only lawyers - a group of people whose salaries far exceed their value to society (assuming they in fact have some value to society as a whole).
Quite literally, the law has been made more complicated by lawyers, and this increases the costs of lawyers and of the legal process. It means that people who have a genuine cause to take legal action cannot afford to, while others who can afford to but have no just cause can use the law to intimidate and bully those with less money than them.
Almost all civil law could be rewritten in a single sentence, with a massive improvement to the legal system and corresponding improvements in accessibility, affordability, fairness and justice:
It is a breach of civil law to commit any act against another person which most reasonable people would consider to be unacceptable, and the person who commits that act may be required by a court of law to pay reasonable compensation to the person they have wronged.
Why do you have to be one or the other? Linux user since 1995 (slackware). Ex-ISP tech. support. Currently an Estate, Gift, Contract lawyer. Love them both. Sean Slanger slanger@montana.com
I really think you ought to expand upon this statement, as it currently reads as if you are saying that the study of law is much more complex and multifaceted than the study of science and engineering. I'm not flaming you here because I don't think that's really what you are trying to say. At least I hope not.
I just spent 4 years in Engineering at University simply preparing for the next six I will probably be spending here. It bothers me just a little to be told that all this knowledge doesn't compare to what my room mate in the Law faculty has learned.
At this point, I know an awful lot about computers, but everything I've learned in my undergraduate degree has simply been groundwork in preparation for what I will be learning in Graduate School.
Both Law and Computing are complicated domains of study, and it is impossible for any one person to have in depth knowledge of every facet. Thats why there are VLSI specialists, OS specialists, and software specialists in the one domain, and corporate, constitutional, and criminal specialists in the other.
Michael Gentili
- He's just some guy, you know?
And common law itself has nothing to do with laws as passed by legislators. It isn't lawyers who have caused common law to become so convulated today. Rather, it is the weight of judicial decisions coming into play.
-E
Send mail here if you want to reach me.
. . . and all you have is the substitution of "your justice" for "our justice." That is, if the vigilantees share "your" notion of what is just.
Jury nullification is nothing less than the ultimate form of lawlessness: arguing that because a decision is unreviewable it is therefore right. Despite taking an oath to apply the law as instructed by the court, to find the facts as they lay before the jury, a nullificationist calls for the substitution of a judgement for a judgment.
Cochran argued jury nullification for more than twenty minutes before a jury trying O.J. Simpson, and the jury bought this view. Ask yourself if this was just.
To claim that instructing every panel of juries to ignore the law, ignore the facts and make their own call depite their oaths leads to justice is to defy reason: whatever you may think about the laws and the process, the substitution of anarchy (or worse) for laws derived under that process would undermine far more, and lead to far more injustice than the status quo.
The world has sufficient experience with the institutionalization of legal nullification -- indeed, it has even been parodied in Star Trek's "courts of fact." This is not justice.
Jury nullifciation is far more likely to lead to abuse and injustice than the controversy. From vast color-based captial convictions throughout the Jim Crow era to the OJ trial of modern times, nullification has been taken as an excuse to substitute bigotry, prejudice and personal disdain for unpopular individuals.
Nothing could more clearly assure injustice in American law than uniform adoption of the unprincipled application of "jury nullification" to the American Legal system.
Jurors, like high courts, are not final because they are infallible, they are infallible because they are final -- to claim justice derives from abandoning their oaths on the basis that they have the de-facto power to do so is to cede all "justice" to the hands of those with power.
Whatever might be said of the preceding posting, it has nothing whatsoever to do with justice.
I don't think that was the point at all. I think the point was that even though a table of contents may not have been obvious and was novel it should not have been patented if that occured to the inventor. Could you imagine if everyone had to pay a patent use fee for every book that had a table of contents? Don't you think the original holders would have tried to extend the coverage of this ficticious patent to all summaries or table of contents no matter their form, such as directories or index.html or any such similar concept? This would have been horrible, and it would have significantly stifled innovation and the progress of science (technology). Sure, patents have a limited time they are enforceable, but if the original inventors got that first patent you can be sure they would have patented every other form of a table of contents and would still hold patents for the whole concept in use today.
Are you suggesting that the wheel should have been patented and that no one should have been able to use it unless they payed the original inventor? Unbelievable!
--Tom Geller
Founder, The Suespammers Project
Tom Geller
Simple fact is that the authors of the Constitution intended laws to be understandable by all, not just by those who dedicate their lives to studying law.
One of the rules of law is that each law itself is supposed to be understood by the archtypical "reasonable man."
It's my opinion we have strayed dreadfully far from this path.
I'll also challenge at least one of two notions. The first is that the bar has anything to do with keeping lawyers ethical. The second is that lawyers have reasonable understanding of technology, especially patent lawyers.
--
Ben Kosse
Remember Ed Curry!
I would agree with you in most of your points, but would point out that most higher courts are different. At least the US Supreme Court is primarily concerned with the meaning of the law, and it's original purpose. That's the impression and understanding I have. Perhaps this is also considered in lower court of appeals, but perhaps not.
Of course it does little good to only have one court, or a few courts if you count the courts of appeal, considering the original purpose of a law. Yes, many cases are appealed and get overturned, but I'd think that a much larger percentage are not. This has a direct impact on the behaviour of citizens and shapes the way in which society functions.
I don't know where to take this line of thought from here, but felt that it meritted mentioning...
How much has the OS market changed in the two months since the M$ FoF was handed down? How much more will it change before the DoJ decides what to do about Ball and Co? How much of that decision will be applicable/relevant by the time it gets implemented? Does it really matter if the lawyers "get" the technology when the rules that they have to apply are as obsolete as a 386?
"I'm a scientist! I don't think, I observe!" - Dr. Clayton Forrester
It is a breach of civil law to commit any act against another person which most reasonable people would consider to be unacceptable, and the person who commits that act may be required by a court of law to pay reasonable compensation to the person they have wronged.
Law could certainly be simplified a bunch, and stated with plainer language and in more generality that it usually is. But it can't be simplified that much -- law should contain general statements of what is acceptible.
Different reasonable people can have different ideas of what is acceptible in a situation. Ideally, society has a discussion about it, and if people can agree afterward, they write down what they agreed to and why to remind themselves later. (If someone doesn't agree later, the discussion can be re-opened.)
That's what law is at its best. The messy stuff comes in when people can't reach an agreement after the discussion, but there's a practical need to resolve the question one way or another.
You miss a fundamental point. The law is a social construct. It's a product of our minds and can be whatever we want it to be, much more so than in the tech realm where we're restricted by the physical world. I think what techies find really irritating about most lawyers is that they don't even consider the possibility that the law might be changed, or even need changing, in a macro as well as a micro sense.
The law is a product of our minds. We can change our minds.
Hal Abelson and I taught a course between MIT and Harvard Law School. Half the students were MIT, half were law students. They were split into groups, each group half-and-half, and each group was assigned a policy problem (privacy, identity, etc.). The assignment in each group was to write a white paper that addressed the policy problem, and the intuition was that the problem could be solved either through law, or through technology, or through a mix of both.
The papers were great, though I found it the most difficult class I had taught (and I did an awful job teaching it.)
The hardest thing was to get both sides to understand a bit of humility. There is something to what law is about: there is a bunch of insights about behavior, and about rights, etc. And there is something to what technology is about: related insights, and important values. What we tried to get both to see is the value in each, and more importantly, the need to integrate the insights of each.
Reagle is a good one from the tech side who is trying this integration. There are a scad of lawyers trying to do the same. But I do think lawyers have the advantage here: the best know they don't know anything, and so the best learn humility as a first lesson.
Yeah, lawyers really shoud do some courses in laws applying to computers, Internet and other new technologies...
One of my teachers is giving a course for lawyers who do legal stuff that has to do with the Internet. He told me that there was a lawyer in his class who already had done several cases of cybersqatting and he didn't even knew how to use a computer nor the Internet.
Morale? Most lawyers don't know a thing about what's going on in the world. How should they do a case about newer technologies as wavelet encoding which is different from MP3 and surely will come up within a year... Using a different coding scheme to compress and rip music would not apply to the MP3 restrictions!
- Artificial Intelligence usually beats real stupidity -
Just a side note to say that the premise, namely that lawyers and in particular judges understand technology very poorly, is not necessarily true, and Judge Jackson's findings of fact in the Microsoft case have given us a stunning counterexample to prove it. In the weeks before his decision, I dreaded a clue-free ruling that would give Microsoft ample opportunity to counter-attack, even if it was unfavorable to them. As it turned out, his writing shows a deep understanding of software technology and the software industry that I hadn't dreamed possible. I'll never forget the weekend after the findings were handed down -- it was the first time I ever read a 200-page legal document all the way through, and it made me giddy with joy. I still am. (And to come back around to the topic, I learned a lot about anti-trust law from it.)
I'm still trying to explain to myself how he did it. Does a federal judge have a staff of law clerks to help him with the research and the writing, as Supreme Court justices do? Maybe it wasn't really the judge, but was some nameless clerk who nailed it so well. Or is Judge Jackson especially savvy with respect to technological issues? Or can federal judges in general be trusted to understand this stuff better than I in all my cynicism ever expected?
There are still two groups who consistently cannot buy a clue about technology: the media and politicians. Rajiv Chandrasekharan (sp?) of the Washington Post is the only media writer I trust to get it right, and I can't think of a single politician (excluding activists from groups like the EFF) who has impressed me with any understanding of technology. What we have to do to get these people to Get It? Judge Jackson has shown that we don't have to set our standards so low, after all.
Always keep a sapphire in your mind
I think that legal/political professionals have lost sight of their goals. They no longer are impartial arbitrators but part of the problem in regards to settling disputes - seeking a profitable solution for themselves rather than their client. The current issues with patents is a continuation of a much larger problem within the Judicial System. We see technological initiatives that expend resources to photograph people that are speeding or running red lights. Where will it stop, who is profiting from the technology - ever sat at a stop light at about 03:00 in the morning, no traffic - I once sat at a light for three minutes (cop was at a nearby 7-11).... Most of us just pay the fine, now we see signs for example saying $200 + fine for speeding - but try to these issues in court. At least with a police officer, if your speeding was justified (emergency) they can give you an assist - with a camera - not. I have spent over a decade in a series of civil/domestic litigations, see our web site http://home1.gte.net/scotter8/styx/issues.htm for a description. Because someone got away with something in the 18th century - it is allowed. Attorney's in search of the all mighty dollar consider their clients as disposable - omitting key evidence, not showing up on time, or at all for court, missing key issues. To take action against an attorney requires a retainer of at least five figures. My point being is that I think that Jurisprudence has become a maze of "precidence" setting Laws, not because an issue is a logical social issue, but because of whimsy. The whole system is bogged down so much as to be ineffectual - it works for the villian not the victim. It allows the villain to get away with an incident and guarentees that the victim will undergo a long period of continual stress. Wonder if anyone has patented toilet paper.....?
One problem with lawyers and tech is that American law is based on precedent, and precedent isn't particularly relevant to some areas of technology nowadays. If you look at the establishment of legal standards such as "informed consent" they rely on standards like the "reasonable doctor" or the "reasonable patient" standard.
In other words, lawyers ask what would another doctor or patient might reasonably do if they were put in the position of the plaintif or defendant. These standards are possible because groups like the AMA are at least somewhat capable of 'policing their own' and establishing a single standard that doctors can live up to (or in some cases, hide under).
IMHO a big step towards reasonable legislation regarding software rests on the establishment of open, non-proprietary standards that reflect what people want. Otherwise, the lawyers aren't going to be able to figure it out.
Like it or not, the American legal system is going to have a hard time establishing industry standards when the industry itself is still struggling with that. If you heard several different doctors all telling you somthing different, you'd be pretty confused too.
Unfortunatly, not all lawyers can have Computer Science degrees, and a huge majority of those who do moonlight for private industry.
There is no place for patents and such restrictive laws. Copyrights on individual products like Windows, Photoshop I can understand and support, but not only technologies like mp3, jpeg, mpeg, etc.
You're right. A lawyer has to base her livelihood on her ability to defend a client's point in court. Part of the confusion stems from the fact that "techies" like us and lawyers are concerned with different things- we look at something and see that it allows something new to be done, or runs 250% faster (or slower) than the previous-generation solution, or other specifics. Lawyers could care less about whether the technology in question is GOOD (that is a job for critics and/or ethicists), but are more concerned about what is actually in question in the case, and the laws pertaining to it.
As such, a good attorney will happily absorb whatever he needs to know to support his client's case. Part of the problem is that the general quality of lawyers (or judges) isn't much different from than that of the average (think- User Friendly-reading, Windows or RedHat-running, half clueless) CS graduate or tech support representative. How often does Tech Support have any more of a clue than you have? Similarly, if two average attorneys (and don't forget that the same megacorporations hiring all those average CS students are the ones hiring the average law students..) go at it in court, standing before an average judge, then no great insight is going to be made, nor is even necessary. This is how a lot of dumb precedents are set, in general.
Things probably won't change much soon, unless we could take technological law outside of the standard court system and require such cases to be decided by juries of technical experts- and how do you find an impartial jury of geeks?
POKING AND CHOKINGLY YOURS
Don't forget that, until the past decade, or perhaps the last twenty years or so, there was no such thing as consumer cryptography.
What was the first mass-market cryptography-based product? The credit card?
Check out Fed. R. Civ. Proc. 11. Lawyers can in fact be sanctioned (in federal court) for signing friviolous pleadings and other papers. Result? Endless rounds of Rule 11 motions used to harass and intimidate the other side.
Lawyers understand little of technology -- and that only insofar as it relates to the people who pay them.
Elect a Geek King and execute Bill Gates!
This post encoded with ROT26. If you can read it, you've violated the DMCA. Handcuffs please, sergeant.
Certainly part of the problem is that the language of law has become so detailed that it does have a problem keeping up with technology. For example, laws written to prevent salacious materials are probably written specifically against selected media (e.g., "printed, reproduced, engraved, embossed, etched, painted or otherwise ..."). Bits not mentioned, no case, no convictions. Why do you think that the anti-dancing statutes aften get wrapped around descriptions of the aureole (sp?) and the posterior curves and allowable exposure? A more general law - e.g., "no presentation in any form of images of ..." would run into too many valid exceptions, which would let the judiciary make law case-by-case rather than the legislature law-by-law. A power thing?
I think "Twelve Angry Men" is a top film.
I think the largest problem the geek community faces in getting the layperson (including lawyers and judges) to understand technology is language. While geeks as a group are generally very intelligent and have an excellent grasp of the languages they speak, most don't have the ability to translate that into ideas the layperson can understand. Working on a helpdesk I run into this problem constantly, and quite frankly, most of the people I work with don't have the skills necessary to make people understand. Sure, they can walk someone thru fixing a problem, but 90% of the time the person on the other end has no idea what just happened.
...
As a comunity, geeks need to take the time to find ways to explain our toys in a way the average person can understand. Not the average user, the average person. We can never win the war if we ignore the average J. Q. Public walking down the street. They might understand that Amazon is a book/video/z store, but do they know why they should not be allowed to patent the 1-click ordering technology? Probably not. Sure you can try to explain it to them, but unless you give them an analogy they can understand, they never will. So what analogy works for something like this? Well, what if Random House (or DelRey or Tor etc) had been allowed to patent/copyright the paperback book? Think about it
Yeah I bet the guards at Auschwitz or Treblinka invented that one before lawyers. Unless your being threatened with death I find these excuses quite pitiful. And don't try the "wife and child to clothe and feed" because we know you make an obscene amount of money anyway...... Brad - Find me the Holy Grail and then an honest lawyer.
"Law" is a manual expert system. The two sides, prosecution and defense, each create chains of rules which they apply to the problem in question. The judge can dis-allow the application of individual rules or pieces of data. The opposing side can challenge the application of individual rules or pieces of data and if allowed can present alternate rules or data to convince the judge to dis-allow, as stated above. In a case where no existing rules are applicable, the judge can create a rulling that may lead to a new rule, if the "precedent" holds and the applicable legistlatures and higher courts agree.
Working from this model, I'll return to the original question:
I don't think we can answer this for "all" laywers or "all" techies. Both the effort and intelligence of each individual will have a strong influence on the level of understanding.
However, their purpose is not to make a decision, their purpose is to build a chain of individual laws and data that will win the case, and if possible endure challenges in later courts (appeals). Understanding what someting does or how it does it is not the same thing as creating a case that provides a useful outcome. Take the issue of the "single click shopping" patent. If I make every lawyer and the judge and the jury (if any) involved understand that this was the obvious thing to do to make e-customers comfortable and then show them that what was implimented at Amazon.com is only a competant construction of existing knowledge and art, it does not follow that the side arguing that the patent should not be allowed will be able to chain an argument, based on the available applicable laws, to make their case the winner, nor will the side arguing for Amazon.com's patent automatically be the loser if these points are proven. The facts are only one input into the "Law" system, and their value is not sufficient to determine the outcome alone.
If by this you mean that to be a "good" lawyer you need to know not only how to find the applicable laws but how to chain them together in the court room and how to present yourself while doing so to influence the Judge and Jury to either favor or sympathize with you; whereas a techie mearly needs to find the applicable facts and tools and grind away until his project works, then I may agree with you.
However, the complexity of the Law (requiring it's implimenters to have intelignece and expertice) is not an argument for the quality of the Law. Once again applying the expert system model, the more rules you have to add to the chain, the more likely that some rules will conflict with others, leading to ambiguous results. Too many conflicting rules, and the system becomes "game-able" that is, any result you want can be had, regardless of the truth, so long as you apply the rules that lead to your desired result. The dissatisfaction of techies, and citizens in general with the Law, can be translated as the suspicion that the system is being "gamed". As Lawyers add more laws (most legislators and their staffs are lawyers) and discourage lay-people from trying to understand the process of law, they encourage the view of a "gamed" system being used for the purposes of the laywers and no others.
Whether or not the Laws of any specific country are or are not being gamed is a separate discussion.
We have rights, regardless of if the government wishes to recognize them or not. The constitution was not protecting the rights of individuals, it was restricting the power of the government.
Our entire system is built on the wrong basis. If something is wrong it should be determined by logic, not by what the majority of people think. If 50,000 people say a foolish thing, it is still a foolish thing.
Our laws should be ones such as, you steal something from him you must pay compensate him for the object and the time he or some hired entity spent trying to find you.
Why is it we are so set on punishment? If someone does something wrong, why do we punish him? Is he an animal that needs to be trained how to behave? Do you want the government to have the power to punish you?
You have to admit, though, that the nature of computer technology is a fairly big culture shock to the notions of the workings of the world that pretty much all laws have been based on for ages.
In the past, even though major technological advances have always happened, and law has always been fairly slow to catch up to them, most of these advances have not presented major, widespread challenges to the common worldview. So what if you now have this railroad thing that can carry sugar farther and faster than pickups or horse-drawn carts? You eventually find that control of this can cause an uneven market system, and if you believe in equal access being essential to the economy, then you have to make a new law. But that's only one new law here and there.
So you find that these new horseless carriages are spewing out this black smoke. No big deal, until you notice that too much of this smoke causes air pollution, makes cities dingy, and affects peoples' health. So you make a law or so that limits the amount of smoke that gets spewed out (somehow).
IN both cases, for the most part, only a few laws turn out ot be needed, and in neitehr case does the new technology cause the entire application of law to be invalid.
As has been observed, most laws apply to the natural world, and are made with concrete objects in mind. This falls apart quite rapidly though, when you bring computer abstraction into the forum.
We now find such problems as patents being issued for abstract, not concrete things, laws being made to apply to the movement, ownership, and modification of computer files as if they were tactile objects, hard drives are being searched like houses. In all cases, the laws that were made in a concrete world are now being applied to a non-concrete world, and this is, as one would expect, falling apart quite neatly.
Most laws are about physical concepts, visible, non-transient characteristics, and concrete objects and posessions. Few laws are ever written that take into account how they should be applied to abstract objects, because until the computer age, such potential applications didn't exist.
Certainly some disappointing losses have been witnessed due to lawyers being unclear about the aspects of technology. The same precept applies: lawyers are only applying the tactics they would use in a concrete situation, to an abstract one. IN all fairness, this is hardly limited to the computer or technical realm. Few lawyers, especially not personal lawyers, are experts on any given field. The market for field-specialized law wasn't that great for a while, and then it boomed in the mid-90's with all the technical startups. Law schools are only just now beginning to catch up to the demand with doctorate programs in high-tech law. The fact is though, that attorney ignorance about the sordid details of a legal affair is hardly limited to the computer world (thinking: white lawyers representing black clients), and furthremore, this is not ALWAYS bad (ditto). And even if you did have goo high-tech lawyers, its much more important for them to understand high-tech LAWS than it is to know the high-tech field itself.
So basically, the primary problem is, and will be, the sheer amount of laws that are designed for the concrete world, that are now being applied blindly and without much second thought to the abstract world. In order to rectify the problems we are sensing, these laws, or law in general, will need to be refined and changed in order to appropriately address the nuances of the abstract computer world.
They are starting to do this, and I by no means want to suggest that we should stop putting pressure on lawmakers to bring these changes about, but we should still expect the process to be painfully slow.
Terrorists can attack freedom, but only Congress can destroy it.
Why ius the DR-DOS case still in court? Have you used a computerized gas pump lately? Used a computerized laser barcode scanner? The VAST majority of these computerized appliances are running embedded DR-DOS. It is still a huge industry. Don't be so PC-centric that you miss the big picture.
furthermore, I'd like to point out that the lawyer's job is, first and foremost, to win the case. And it is the court's job to maintain legal consistency. Lawyers still cite Constatine; and judges still listen.
several years ago there was some flap about the fact that the us gov's police/fbi/etc was almost 100% clueless about anything more 'high tech' than a coffee machine. Since then, they have brought their staff above the 1% line.... is this really enough? I think that any case determining the future of tech law should NECCESARILY be judged and lawyered by persons with RELEVENT EXPERIENCE!! in those technologies. Now granted, there's not a lot of lawyers who have worked in the DVD industry at the hardware level, but gawd, theres gotta be better than some of the gawkers out there running cases. Obviously there's a lot of techno-dumbasses in the courts or else we geeks wouldn't be getting ulcers from reading the legal articles here at /.
Take these ridiculous lawyers with their corruptable motives and their absolutely untouchable hubris and replace them with an impartial neural network, refined by genetic algorithms based on the finest examples of justice in history and bring it all together in the form of an expert system. This expert system would then would provide a truly impartial purveyor of justice. A machine can beat Kasparov (the greatest living human chess player)...now imagine having the legal equivalent of Kasparov arguing "EVERYONES" cases. Machines and computers scare lawyers...witness how they fight tooth and nail to make simple legal-advice programs illegal and non-binding. Too bad their is no such thing as OpenJustice.
Spoken like a true believer that a 100% white jury, in a majority black community, could ever be just. That's what was going on in those Jim Crow juries. Get just one black person on the jury, and there's no acquittal of a racist murder, no Good Ole' Boys covering for each other. The judges and lawyers were in on that game, big time. Just like the first Rodney King trial, showing why Federal civil rights laws are still needed.
LAPD ... gee, aren't they the police department that's turned up at least two departments so corrupt that convictions are getting overturned on a wholesale basis? Seems corruption has been so common there that they forgot how to handle evidence legally; you imply that wasn't a major issue at the OJ trial. Hmm. It's true, if OJ had been a poor black person, conviction would have been assured. I always felt that trial's outcome was a testament to how badly LAPD handled that case; I can't say they convinced me to the level I'd have voted a conviction, either.
Rodney King was poor and black; damn good thing there was a video recorder running. Didn't you love that "jury of peers" in that first trial, too?
I'm not Catholic, I don't understand the notion of infallibility. But it wouldn't apply there anyway, since there's only supposed to be one infallible male (elected in a strange manner by fallible ones) at a time; not enough to create a jury with, and it wouldn't have any peers of most defendants, either.
Justice is a system, and when the ground rules (laws) are unjust, the system is too. And fallibility is part of life, which is why I don't like final solutions. (Texas should slow down with those death penalties, or at least make them apply in a way that's neutral with respect to race and to gender.)
But of course, the point about nullification was nothing beyond an example. My basic point was that bad laws have been causing people, very appropriately, to lose faith in law as an instrument of justice. There are plenty of illustrations in the context of patent law, copyright law, and so on.
In the 1960s in the US, society seemed to have largely grown beyond that "my country, right or wrong" attitude ... to an understanding that not only is the country not the same as its government, but that the government is still supposed to serve the country (people), and not the other way around.
Serving law, rather than justice, is the problem. By placing law above justice, you are making the problem worse ... or perhaps denying that a problem exists. (I assume there was a relationship to techies ... somewhere ... in your post.)