Slashdot Mirror
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!).
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?
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.
--
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.
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
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.
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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.
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.
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.
/.
/. If the government wants us to respect the law, it should set a better example.
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.
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
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.
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.
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.
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.