I am a lawyer, and enough remarks have been made that it appears worthwhile to summarize why this case came before the Supreme Court.
Previous posters are correct that Article I of the Constitution expressly gives Congress the power to regulate interstate commerce, establish patent monopolies and pass laws necessary to enforce those rights.
However, the Supreme Court a few years back reviewed the scope of those powers concerning the federal government's power to regulate states relationships with Indian jurisdictions in view of the 11th Amendment. In short, the Supreme Court held that the 11th Amendment, which was passed after the Commerce Clause, was found to trump it.
And so, the problem in Patent cases is precisely the same -- both the Commerce Clause and the Patent Clause are in Article I, Section 8. By a straightforward application of the Seminole Tribe opinion, the States would lose.
So the State's law issue has already been decided in the Seminole Tribe case. The interesting new fillup in the Patent case (Florida Prepaid College Fund, or something like that) is that a patent is a PROPERTY interest. Now the 14th Amendment (passed after the 11th, says that a state may not take property without compensation, and Article 5 of that clause says Congress may pass laws to enforce it.
Oral argument was held a few weeks ago. Most of the scuttlebut I have heard convinces me that its the usual tea-leaves reading, and noone knows how they will decide.
It will be very, very interesting, but will have little impact except upon patentholders who are suing states directly. Moreover, I anticipate that many states will probably waive S.I. in the interest of "attracting" technology companies.
CAVEAT: the preceding argument is quite intentionally thinned and simplified. I KNOW that it skirts many relevant legal issues, but believe it is nevertheless useful in explaining what this case is about for those who are interested in the broad strokes only.
>>[contributions to cases from all sorts of parties] happens all the time, in the form of amicus briefs and appearances...
> which might then be added to the corpus of legal commentary, a searchable database? Helpful, but you need to make the case that this is dependent on Open-ness.
All briefs are public record. All Supreme Court briefs are available on microfiche in most law libraries; most are available through proprietary data services (to which nearly every lawyer subscribes); and many in recent cases are available on-line.
Nearly every document filed in nearly every case is available for inspection at the appropriate clerk's office.
Open court records is not a new idea either. It was the law long before rms ever sat before a computer.
> werdna, you've caught me for the moment. I can't defend that at this time. All I can do is meekly retreat and say that OpenPolicy forums would be more pertinent to public usage.
Fair enough. But don't forget that the Congress of the United States and the Constitutional Convention were both Open Policy forums. All the courts are doing is try and figure out what was the result of those deliberations. Imagine how much harder that might be if deliberations are made in an even more diffuse and less well-recorded manner.
In the interest of clarifying issues and pointing out what may be a weak link in the copyright virus license model:
(1) While Copyright is remarkably powerful for punishing literal infringers, as a fallback for protecting against non-literal derivative works absent an enforceable license or contract, it is a thin reed on which to rely;
(2) Enforceability of passive shrink-wrap agreements remain unsettled, despite clear dicta in some influential circuit court cases; and
(3) Opportunities exist for those who can argue they have not manifested assent to the license agreement, and who can effectively skirt the copyright to their advantage, either by careful copying or by "clean room" development.
In earlier threads, remarks such as the following were prevalent:
> What happens if someone blatantly violates > the GPL . . . At best they can get an injuction, > but they cannot sue for damages.
Not so! The Copyright Act provides not only for damages due to the owner's provable injury, but also for the infringer's actual profits attributable to the work taken. Moreover, in many cases where the work was registered, an owner may opt for statutory damages instead, even if the infringer didn't earn a dime, which amount can be NO LESS than $500, and up to $20,000, within the jury's discretion, and for which the judge can enhance damages to as much as $100,000, plus grant an award of costs including attorney fees.
But first you must prevail on infringement. For literal copying cases or cases where there is only de minimus changes, no problem. For non-literal copying, however, "look and feel" has gone the way of the yak, replaced by a brutal test of abstraction, filtration of all non-protectible elements, and qualitative measuring of the sufficiency only of what remains. Its an expensive test to prove, and plaintiffs tend to lose big, even for cases we technies might not consider to be close calls.
On shrink-wraps, the following was said:
> corporate shrink-wrap licenses have _also_ > never been seriously challenged in a court of > law by a well-heeled and motivated opponent.
Not so again! There are several Circuit Court cases on point, the most recent of which, Pro-CD v. Zeidenberg, which directly addressed the enforceability of a shrink-wrap under certain conditions, and was decided with the benefit of more amicus curiae briefs from well-heeled and motivated advocates on both sides than some high-visibility Supreme Court civil liberties cases.
Even so, and despite the clear language advocating enforceability in Judge Easterbrook's opinion, a recent District Court from another Circuit dismissed the opinion, characterizing Pro-CD as a "minority opinion." So, while the smart money is bet on the proposition that shrink-wraps properly executed and with commercially reasonable terms probably are enforceable, the jury, so to speak, is still out on this point. And the answer may well vary from circuit to circuit and state to state!
Moreover, many of the assumptions that made the agreement in Pro-CD enforceable may be inapplicable to the average GNU transaction. I am concerned that without more careful steps to assure that assent to the license is manifest expressly, the GNU virus can readily be circumvented by a wily enough opponent.
So here's the deal as I see it. If shrink-wraps aren't enforceable (or a particular GNU package is received under conditions that would not render it enforceable as a contract, then the sources are free for either: (1) true fair use "borrowings"; and (2) true "clean room" derivations, which can thereafter be made proprietary.
Several solutions are apparent, including but not limited to direct-communication web-wrap or install-wrap dialogues and, perhaps, the unpopular prospect of obtaining patent protection for novel GNU software where available, which cannot be avoided by clean room or "fair use" processes. There are also some places where specific language can be beefed up to make the sneakeroo-defendant's arguments more difficult.
Because third parties may care about the result. This happens all the time, in the form of amicus briefs and appearances and more rarely, by intervention in the case. Particularly when the issue is one of important social policy raising highly constitutional issues, say the enforceability of the CDA, many lawyers might be "moved" to cooperate.
> policy is being decided less by legislative forums than by the judicial system in the U.S.
I firmly dissent from AC's proposition that judges making law is a new thing, or an increasing thing. Indeed, exactly the opposite seems to be the case in recent times.
Judge-made policy filling the interstices of legislation (and in the US, constitutional language) has been a part of Anglo-American law for a century shy of a millenium. Without a doubt, the tendency in present times has been for judges to shy AWAY FROM non-textualist constructions of the law, not to embrace them. Following Antonin Scalia's writings, meaningful common law adjudiction, as we lawyers euphemistically call the practice of judges filling in the blanks, has actually become quite rare in recent years.
It is important to note the very case that spawned this thread is about the constitutionality of particular legislation, not judge-made policies. In this case, I'd bet against the Lessig clan's chances of overturning the Copyright term extensions, but I'd be pleased (as a policy matter) if they would astonish me.
alpha has *poor* performance
on
HotSpot arrives
·
· Score: 1
As understood, the bounds checking "optimization" does not remove the bound checks generally, but rather removes only redundant bound checks identifiable from the flow Dags. Thus, a repeated reference to the same index in the same array in a loop needn't perform a new bound check if the index isn't touched. I believe that's what they were going for.
Otherwise, as understood, those bound checks are fundamental to Sun's model for Java "safety" semantics. If I could work around the bound checking, I could write into memory all the lovely virus and pirate code I like, ultimately hack around all the security, and that ain't good for an applet loading into a browser.
There are some serious differences here as well. Yes, it is nice to get acknowledged in a brief involving some seminal issue, but be aware that in the practice of law, there is always risk of a claim of malpractice. The downside risk of contributing, particularly when you cannot control how information is used, may outweigh the benefits to lawyers of participation, and they may prefer to do this the old-fashioned way, by fashioning their own pro-bono amicus curiae brief instead.
And, yes, there will always be a Linus (in this case a Lessig) to sort things out -- but that's the entire point. A great lawyer at the top can almost always do better simply by doing his own research, and drafting his own brief. The benefits of code reading simply don't translate by analogy in this case. If the morass of contributions is large compared with the corpus of legal writings to be researched, the downside of distracting Professor Lessig may well outweigh the virtues of tweaking his mind with the occasional jewel.
Brief-writing is NOT about finding bugs, nor is it about incorporating each and every conceivable argument. It is about fashioning in a ridiculously small amount of space an argument put so plainly it cannot be discounted.
I am not sure the model works -- but LL will tell us at the end of the day how it went, I am sure.
With all due regard, this sort of thing (modularizing the law/version control) has been happening for hundreds of years. The statute books are, in fact, a codification of the positive law passed by the Congress, not a mere collection of the bills themselves.
Studying the law, you will discover that law falls fairly neatly into a variety of well-defined causes of action (modules), each with a plurality of elements, defenses and procedural rules unique to each cause.
But it is a mistake to think of the law as simply one moby API. It isn't so. The law must be far more flexible than code, because it must ALWAYS work, even after it crashes. (Not deciding an issue is to decide it). The interactions among people in modern society are highly complex, and defy bright-line rulemaking.
Moreover (and this takes a few years of practice before you really understand and believe it), the language of the law defies formal codification. Words cannot convey unique meanings that uniformly dictate what a judge can or cannot do, and the more words you write, the less clear (not the more clear) the law becomes.
It is Murphy's law gone awry -- because the processors operating on this system are dedicated to finding ways to bend and break the rules to their advantage -- every weakness in the process and methodology is exploited.
Top that with the fact that positive law derives from politics, and you begin to get the idea.
Wendy's point is, of course, well-taken. Where an issue can mobilize many volunteer legal minds (as it may in some cases), the open source model of applying multiple minds to a research task, for example, may be helpful, just as applying multiple minds to a code reading may be helpful.
But here's where lawyers need to familiarize themselves with the writings of Fred Brooks. Just because we can apply more lawyer-months to the task, doesn't mean that we will be able to gather up the various research projects to form a stronger, more cohesive whole at the end of the day.
Here, the proof is in the pudding. Assuming that Disney opted to apply infinite resources to the matter to prepare the answer brief -- do you really think that they would do so by hiring hundreds of lawyers, or perhaps a team of, say, at most a dozen of the best?
In the law, the issue is to find the needles in the haystack, the pearls of arguments that, when strung together form a cohesive and apparently irrefutable whole. Where we have zillions of lawyers each presenting their personal versions of a pearl, someone must now sort through these works to find the result. (But of course, that's just the same as the initial legal research in the first place).
The "team" does not benefit merely by throwing LOTS of resources at the problem -- it will benefit only by throwing just the right amount of resources at the right parts of the problem, with the results coming back in such a manner as to best facilitate the final works. Ironically, in many cases, Less(ig by himself) may be more.
I think its a facinating inquiry. It also raises some fabulous ethical issues. But that is a matter for a different forum. In the meanwhile, check out "The Mythical Man-Month." It has much to offer us in this analysis.
Open source models do not seem to lend themselves well for narrowly tailored end-user applications, particularly for applications directed to audiences that do not comprise a large proportion of technically talented users. The virtues of many code-readings do not accrue where the readers cannot read code.
Law is like that. There will be a number of issues that will truly get up the hackles of a large percentage of legally trained minds -- the minds that are capable and trained to analyze and contribute effectively to a legal argument. But most real-life legal issues will not excite an audience of trained legal minds, and then the "open source" benefits are lost.
And I am not certain that the benefit to the other side of being able to quote the "not so good law" that was found in the open discussion, as well as the frank analyses these things tend to create.
Sure, there is always a time and a place for brainstorming (my wife often helps me to find the intellectual center of an argument), but there really isn't much of a place for that in the practice of law once the initial analysis has been done.
Moreover, unlike programming, details must be callously discarded at EVERY opportunity once the nut of the case has been cracked. Briefs are limited to a very small page limit (on the order of twenty double-spaced pages for trial briefs), and courts punish those who go over.
Accordingly, there is a very high priority on making the argument tight, short and to the point. Many things that are salutary arguments must be glossed over or ignored in favor of writing a winning brief.
Open source solves these problems by reducing packages to modular pieces that can be independently written. This is more like writing a program to run in 48K, knowning that to make the cut, it will need to be three nested interpreters bound together with a small, but ugly piece of spaghetti code. While this is possible when one person writes it (and can even be maintainable if carefully done), when written by zillions, it is a recipe for confusion.
But a legal brief dare not be confused, not even for a paragraph.
So, i see this as a useful way to break out the task of legally researching a matter. Instead of hiring associates to spend their lives in a library, we can distribute the legal research questions and get lots of tiny memoranda on subtle minutia.
But I don't see much good at the end of the day, when the wheat must be agressively severed from the chaff, to having more than a few cooks working the broth.
While the legal research can be effectively divided up among dozens in a legal bazaar, the brief-writing may really belong in a cathedral.
I was just coming into my own mathematically speaking when GEB was published. At the time, my comprehension of Godel's work was then still just at the level of Nagel and Newman (which is a better exegesis of the theorem itself). The few philosophical pieces on Godel's work were at the time incomprehensible to me, and most of the pop science stuff was even then transparently implausible.
Then, Douglas wrote his book.
Now, at the outset, let me say that I agree with almost all of the criticisms, including the allegations of self-indulgence and pretensiousness.
But so what? GEB *IS* a beautiful book, beautifully published. It is thought provoking without being intellectually nihilistic (as many paradox-mongering pieces are -- you know what I mean, the vacant-eyed "wow, what a concept" pieces).
So what if many people finish the book thinking they understand Godel when they have missed the point -- and probably never will get the real meat out of it formally? So what if it is too often wielded by the ignorant as authority for the "fact" that Godel means [fill-in-the-blank]?
GEB was FUN!
Here, since we're all nerds -- try this: Express using only predicate calculus the proposition "x is a power of 2."
Trivial, use any notation you like, say basically, "y divides x implies 2 divides y."
Now, try this: "x is a power of 10."
This was just a throwaway in the book, but it was actually a few years before I found an elegant solution, and when I did, I truly felt that I had "gotten it," at last, why the calculus is so powerful and why algebraic expressions would obviously admit self-reference. A three-star problem that was truly worth the journey.
Go ahead.
Then look at Scott Kim's pictures again.
Then read the lovely dialogues.
Then spend a few years studying --and I mean really studying Godel's theorem, metamathematics and the underlying philosophical works addressing the same-- study so that at last you are able to articulately criticize the book effectively for its failings and informalities. Write the essay, and then you will realize that you, too, have missed the point.
Later in life, I wanted to explain to lawyers why some jurisprude's hopes of a purely formal legal system were not realistic, so I wrote a piece, desperately trying to "dumb it down" enough to be comprehensible, while keeping it real enough to be mathematically defensible. You have no idea how hard that is until you really try to do it. (If you are inclined to see how amateurs do it, check out Brown & Greenberg, On Formally Undecidable Propositions of Law: Legal Indeterminacy and the Implications of Metamathematics, 43 Hastings L.J. 1439 (1992)).
While I believe I now understand, at last, Godel's theorems well and deeply, not so much because of GEB, I now understand for certain that the heart and passion of those great works of an early twentieth century mathematician do seem to lie, at the end of the day, in the very playfulness of the subjects of Professor H's book.
He didn't fairly capture the essence of the mathematics, but he did capture its heart and soul. He didn't teach me what I needed to learn about the theorem, but he did teach me how and why I would love it once I did.
And for that, I am still much indebted to Professor H. The book is clearly flawed, yes, but it still took my breath away.
And THAT, IMHO, is why this book won a pulitzer. As a math textbook, this book is very deeply flawed in many ways. But as a piece of non-fiction, GEB is a bright, shining jewel; particularly when viewed in light of the vapid "Hey, man, what a concept" paradox-mongering alternatives.
Ok guys, lets stop guessing. Here is the poop. A person infringes a patents only by making, using, selling offering for sale or importing an accused invention. 35 U.S.C. s. 271(a). This is strict liability -- it doesn't matter whether you know, or should have known, or didn't know or didn't care to know about the patent. If you did it willfully, bad news: possible treble damages and an attorney fee award.
On the other hand, once you have notice of a patent claim, you can get dinged by the use of another under two circumstances:
(a) contributory infringement. This is when you provide a component, but not all of the invention, which is not a staple product, with the intention that it be incorporated into the infringing whole.
(b) inducement to infringe. This is when you knowingly and actively aid and abet an infringement of another, regardless of what you provided.
These are big hammers, and companies like Apple can't afford to have an infringement claim against them turn into big mega-inducement and mega-contribution claims. Also, in a direct infringement claim, the licenses may count toward damages. So they pull the plug on the licenses. That's all they'd have to do -- no more, and no less. But if they couldn't, they'd be sunk.
In short, the guys whining about APSL are just whining. It's just plain ludicrous to contemplate a scenario of Apple wimping out and dumping hunks of its flagship OS technology "in bad faith." Right. Moreover, its even sillier to imagine any OSS licensee truly damages in the sense of being unafraid of the patent claimant, but terrified of the illusory possibility of Apple's contract police coming after you.
It won't happen. Apple's approach is a reasonable one, and folks who are arguing against it are just selling something.
This is a subtle and a clever question. I think the answer lends insight to the concern expressed earlier concerns that Apple is not required to republish changes. Consider:
If Apple were required to republish changes, then a user could turn APSL into GPL as follows:
(1) embed some GPL-ed code into a change; (2) submit it, passing along the GPl-ed license in accordance with GPL; and (3) apple publishes it.
Whoops, under GPL, the published software is now virused in, and itself now subject to GPL, which may mean that some of the greater restrictions of APSL no longer can apply.
I think that Apple was clearly alive to these concerns in drafting the license as they have.
I don't believe this provision is poorly worded (i.e. vague or ambiguous). The provision means what it says -- that if you file papers for a lawsuit with the clerk of a court stating a cause for patent infringement (that's what commence means under the Federal Rules of Civil Procedure), your APSL license is terminated automatically and without notice. Since there is no limitation in the clause that the infringement must be related to the termination, it is unlikely that a court would read that limitation into the provision.
On the other hand, as pointed out by others, it is clear that this doesn't mean that "Apple gets right to all my patents." This is not a unilateral "cross-license," which would actually prevent you from suing -- you are free to sue if you so choose, but part of the consequences are that you will lose APSL rights.
And yes, this could become a big deal if you make APSL code mission-critical. The question remains, which is the more valuable asset -- your right to sue apple for a patent, or the value of the code to your enterprise.
For the vast majority of hacker types, this is a non-issue. For the small number of hacker-inventors, there are options: (1) don't use the code, or don't use it in mission-critical applications; and (2) negotiate a separate deal with Apple, setting forth the reasons why you think they should give you the right to use the code for free while you are still suing their pants off.
A plausible argument of type two might be made. Absent such an argument, however, I see Apple's point well -- they see themselves giving away something valuable gratis, and expect a quid pro quo. If the quid is too much, don't take the quo.
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I am a lawyer, and enough remarks have been made that it appears worthwhile to summarize why this case came before the Supreme Court.
Previous posters are correct that Article I of the Constitution expressly gives Congress the power to regulate interstate commerce, establish patent monopolies and pass laws necessary to enforce those rights.
However, the Supreme Court a few years back reviewed the scope of those powers concerning the federal government's power to regulate states relationships with Indian jurisdictions in view of the 11th Amendment. In short, the Supreme Court held that the 11th Amendment, which was passed after the Commerce Clause, was found to trump it.
And so, the problem in Patent cases is precisely the same -- both the Commerce Clause and the Patent Clause are in Article I, Section 8. By a straightforward application of the Seminole Tribe opinion, the States would lose.
So the State's law issue has already been decided in the Seminole Tribe case. The interesting new fillup in the Patent case (Florida Prepaid College Fund, or something like that) is that a patent is a PROPERTY interest. Now the 14th Amendment (passed after the 11th, says that a state may not take property without compensation, and Article 5 of that clause says Congress may pass laws to enforce it.
Oral argument was held a few weeks ago. Most of the scuttlebut I have heard convinces me that its the usual tea-leaves reading, and noone knows how they will decide.
It will be very, very interesting, but will have little impact except upon patentholders who are suing states directly. Moreover, I anticipate that many states will probably waive S.I. in the interest of "attracting" technology companies.
CAVEAT: the preceding argument is quite intentionally thinned and simplified. I KNOW that it skirts many relevant legal issues, but believe it is nevertheless useful in explaining what this case is about for those who are interested in the broad strokes only.
>>[contributions to cases from all sorts of parties] happens all the time, in the form of amicus briefs and appearances...
> which might then be added to the corpus of legal commentary, a searchable database? Helpful, but you need to make the case that this is dependent on Open-ness.
All briefs are public record. All Supreme Court briefs are available on microfiche in most law libraries; most are available through proprietary data services (to which nearly every lawyer subscribes); and many in recent cases are available on-line.
Nearly every document filed in nearly every case is available for inspection at the appropriate clerk's office.
Open court records is not a new idea either. It was the law long before rms ever sat before a computer.
> werdna, you've caught me for the moment. I can't defend that at this time. All I can do is meekly retreat and say that OpenPolicy forums would be more pertinent to public usage.
Fair enough. But don't forget that the Congress of the United States and the Constitutional Convention were both Open Policy forums. All the courts are doing is try and figure out what was the result of those deliberations. Imagine how much harder that might be if deliberations are made in an even more diffuse and less well-recorded manner.
In the interest of clarifying issues and pointing out what may be a weak link in the copyright virus license model:
(1) While Copyright is remarkably powerful for punishing literal infringers, as a fallback for protecting against non-literal derivative works absent an enforceable license or contract, it is a thin reed on which to rely;
(2) Enforceability of passive shrink-wrap agreements remain unsettled, despite clear dicta in some influential circuit court cases; and
(3) Opportunities exist for those who can argue they have not manifested assent to the license agreement, and who can effectively skirt the copyright to their advantage, either by careful copying or by "clean room" development.
In earlier threads, remarks such as the following were prevalent:
> What happens if someone blatantly violates
> the GPL . . . At best they can get an injuction,
> but they cannot sue for damages.
Not so! The Copyright Act provides not only for damages due to the owner's provable injury, but also for the infringer's actual profits attributable to the work taken. Moreover, in many cases where the work was registered, an owner may opt for statutory damages instead, even if the infringer didn't earn a dime, which amount can be NO LESS than $500, and up to $20,000, within the jury's discretion, and for which the judge can enhance damages to as much as $100,000, plus grant an award of costs including attorney fees.
But first you must prevail on infringement. For literal copying cases or cases where there is only de minimus changes, no problem. For non-literal copying, however, "look and feel" has gone the way of the yak, replaced by a brutal test of abstraction, filtration of all non-protectible elements, and qualitative measuring of the sufficiency only of what remains. Its an expensive test to prove, and plaintiffs tend to lose big, even for cases we technies might not consider to be close calls.
On shrink-wraps, the following was said:
> corporate shrink-wrap licenses have _also_
> never been seriously challenged in a court of
> law by a well-heeled and motivated opponent.
Not so again! There are several Circuit Court cases on point, the most recent of which, Pro-CD v. Zeidenberg, which directly addressed the enforceability of a shrink-wrap under certain conditions, and was decided with the benefit of more amicus curiae briefs from well-heeled and motivated advocates on both sides than some high-visibility Supreme Court civil liberties cases.
Even so, and despite the clear language advocating enforceability in Judge Easterbrook's opinion, a recent District Court from another Circuit dismissed the opinion, characterizing Pro-CD as a "minority opinion." So, while the smart money is bet on the proposition that shrink-wraps properly executed and with commercially reasonable terms probably are enforceable, the jury, so to speak, is still out on this point. And the answer may well vary from circuit to circuit and state to state!
Moreover, many of the assumptions that made the agreement in Pro-CD enforceable may be inapplicable to the average GNU transaction. I am concerned that without more careful steps to assure that assent to the license is manifest expressly, the GNU virus can readily be circumvented by a wily enough opponent.
So here's the deal as I see it. If shrink-wraps aren't enforceable (or a particular GNU package is received under conditions that would not render it enforceable as a contract, then the sources are free for either: (1) true fair use "borrowings"; and (2) true "clean room" derivations, which can thereafter be made proprietary.
Several solutions are apparent, including but not limited to direct-communication web-wrap or install-wrap dialogues and, perhaps, the unpopular prospect of obtaining patent protection for novel GNU software where available, which cannot be avoided by clean room or "fair use" processes. There are also some places where specific language can be beefed up to make the sneakeroo-defendant's arguments more difficult.
>why would they?
Because third parties may care about the result. This happens all the time, in the form of amicus briefs and appearances and more rarely, by intervention in the case. Particularly when the issue is one of important social policy raising highly constitutional issues, say the enforceability of the CDA, many lawyers might be "moved" to cooperate.
> policy is being decided less by legislative forums than by the judicial system in the U.S.
I firmly dissent from AC's proposition that judges making law is a new thing, or an increasing thing.
Indeed, exactly the opposite seems to be the case in recent times.
Judge-made policy filling the interstices of legislation (and in the US, constitutional language) has been a part of Anglo-American law for a century shy of a millenium. Without a doubt, the tendency in present times has been for judges to shy AWAY FROM non-textualist constructions of the law, not to embrace them. Following Antonin Scalia's writings, meaningful common law adjudiction, as we lawyers euphemistically call the practice of judges filling in the blanks, has actually become quite rare in recent years.
It is important to note the very case that spawned this thread is about the constitutionality of particular legislation, not judge-made policies. In this case, I'd bet against the Lessig clan's chances of overturning the Copyright term extensions, but I'd be pleased (as a policy matter) if they would astonish me.
As understood, the bounds checking "optimization" does not remove the bound checks generally, but rather removes only redundant bound checks identifiable from the flow Dags. Thus, a repeated reference to the same index in the same array in a loop needn't perform a new bound check if the index isn't touched. I believe that's what they were going for.
Otherwise, as understood, those bound checks are fundamental to Sun's model for Java "safety" semantics. If I could work around the bound checking, I could write into memory all the lovely virus and pirate code I like, ultimately hack around all the security, and that ain't good for an applet loading into a browser.
There are some serious differences here as well. Yes, it is nice to get acknowledged in a brief involving some seminal issue, but be aware that in the practice of law, there is always risk of a claim of malpractice. The downside risk of contributing, particularly when you cannot control how information is used, may outweigh the benefits to lawyers of participation, and they may prefer to do this the old-fashioned way, by fashioning their own pro-bono amicus curiae brief instead.
And, yes, there will always be a Linus (in this case a Lessig) to sort things out -- but that's the entire point. A great lawyer at the top can almost always do better simply by doing his own research, and drafting his own brief. The benefits of code reading simply don't translate by analogy in this case. If the morass of contributions is large compared with the corpus of legal writings to be researched, the downside of distracting Professor Lessig may well outweigh the virtues of tweaking his mind with the occasional jewel.
Brief-writing is NOT about finding bugs, nor is it about incorporating each and every conceivable argument. It is about fashioning in a ridiculously small amount of space an argument put so plainly it cannot be discounted.
I am not sure the model works -- but LL will tell us at the end of the day how it went, I am sure.
With all due regard, this sort of thing (modularizing the law/version control) has been happening for hundreds of years. The statute books are, in fact, a codification of the positive law passed by the Congress, not a mere collection of the bills themselves.
Studying the law, you will discover that law falls fairly neatly into a variety of well-defined causes of action (modules), each with a plurality of elements, defenses and procedural rules unique to each cause.
But it is a mistake to think of the law as simply one moby API. It isn't so. The law must be far more flexible than code, because it must ALWAYS work, even after it crashes. (Not deciding an issue is to decide it). The interactions among people in modern society are highly complex, and defy bright-line rulemaking.
Moreover (and this takes a few years of practice before you really understand and believe it), the language of the law defies formal codification. Words cannot convey unique meanings that uniformly dictate what a judge can or cannot do, and the more words you write, the less clear (not the more clear) the law becomes.
It is Murphy's law gone awry -- because the processors operating on this system are dedicated to finding ways to bend and break the rules to their advantage -- every weakness in the process and methodology is exploited.
Top that with the fact that positive law derives from politics, and you begin to get the idea.
Wendy's point is, of course, well-taken. Where an issue can mobilize many volunteer legal minds (as it may in some cases), the open source model of applying multiple minds to a research task, for example, may be helpful, just as applying multiple minds to a code reading may be helpful.
But here's where lawyers need to familiarize themselves with the writings of Fred Brooks. Just because we can apply more lawyer-months to the task, doesn't mean that we will be able to gather up the various research projects to form a stronger, more cohesive whole at the end of the day.
Here, the proof is in the pudding. Assuming that Disney opted to apply infinite resources to the matter to prepare the answer brief -- do you really think that they would do so by hiring hundreds of lawyers, or perhaps a team of, say, at most a dozen of the best?
In the law, the issue is to find the needles in the haystack, the pearls of arguments that, when strung together form a cohesive and apparently irrefutable whole. Where we have zillions of lawyers each presenting their personal versions of a pearl, someone must now sort through these works to find the result. (But of course, that's just the same as the initial legal research in the first place).
The "team" does not benefit merely by throwing LOTS of resources at the problem -- it will benefit only by throwing just the right amount of resources at the right parts of the problem, with the results coming back in such a manner as to best facilitate the final works. Ironically, in many cases, Less(ig by himself) may be more.
I think its a facinating inquiry. It also raises some fabulous ethical issues. But that is a matter for a different forum. In the meanwhile, check out "The Mythical Man-Month." It has much to offer us in this analysis.
Open source models do not seem to lend themselves well for narrowly tailored end-user applications, particularly for applications directed to audiences that do not comprise a large proportion of technically talented users. The virtues of many code-readings do not accrue where the readers cannot read code.
Law is like that. There will be a number of issues that will truly get up the hackles of a large percentage of legally trained minds -- the minds that are capable and trained to analyze and contribute effectively to a legal argument. But most real-life legal issues will not excite an audience of trained legal minds, and then the "open source" benefits are lost.
And I am not certain that the benefit to the other side of being able to quote the "not so good law" that was found in the open discussion, as well as the frank analyses these things tend to create.
Sure, there is always a time and a place for brainstorming (my wife often helps me to find the intellectual center of an argument), but there really isn't much of a place for that in the practice of law once the initial analysis has been done.
Moreover, unlike programming, details must be callously discarded at EVERY opportunity once the nut of the case has been cracked. Briefs are limited to a very small page limit (on the order of twenty double-spaced pages for trial briefs), and courts punish those who go over.
Accordingly, there is a very high priority on making the argument tight, short and to the point. Many things that are salutary arguments must be glossed over or ignored in favor of writing a winning brief.
Open source solves these problems by reducing packages to modular pieces that can be independently written. This is more like writing a program to run in 48K, knowning that to make the cut, it will need to be three nested interpreters bound together with a small, but ugly piece of spaghetti code. While this is possible when one person writes it (and can even be maintainable if carefully done), when written by zillions, it is a recipe for confusion.
But a legal brief dare not be confused, not even for a paragraph.
So, i see this as a useful way to break out the task of legally researching a matter. Instead of hiring associates to spend their lives in a library, we can distribute the legal research questions and get lots of tiny memoranda on subtle minutia.
But I don't see much good at the end of the day, when the wheat must be agressively severed from the chaff, to having more than a few cooks working the broth.
While the legal research can be effectively divided up among dozens in a legal bazaar, the brief-writing may really belong in a cathedral.
I was just coming into my own mathematically speaking when GEB was published. At the time, my comprehension of Godel's work was then still just at the level of Nagel and Newman (which is a better exegesis of the theorem itself). The few philosophical pieces on Godel's work were at the time incomprehensible to me, and most of the pop science stuff was even then transparently implausible.
Then, Douglas wrote his book.
Now, at the outset, let me say that I agree with almost all of the criticisms, including the allegations of self-indulgence and pretensiousness.
But so what? GEB *IS* a beautiful book, beautifully published. It is thought provoking without being intellectually nihilistic (as many paradox-mongering pieces are -- you know what I mean, the vacant-eyed "wow, what a concept" pieces).
So what if many people finish the book thinking they understand Godel when they have missed the point -- and probably never will get the real meat out of it formally? So what if it is too often wielded by the ignorant as authority for the "fact" that Godel means [fill-in-the-blank]?
GEB was FUN!
Here, since we're all nerds -- try this: Express using only predicate calculus the proposition "x is a power of 2."
Trivial, use any notation you like, say basically, "y divides x implies 2 divides y."
Now, try this: "x is a power of 10."
This was just a throwaway in the book, but it was actually a few years before I found an elegant solution, and when I did, I truly felt that I had "gotten it," at last, why the calculus is so powerful and why algebraic expressions would obviously admit self-reference. A three-star problem that was truly worth the journey.
Go ahead.
Then look at Scott Kim's pictures again.
Then read the lovely dialogues.
Then spend a few years studying --and I mean really studying Godel's theorem, metamathematics and the underlying philosophical works addressing the same-- study so that at last you are able to articulately criticize the book effectively for its failings and informalities. Write the essay, and then you will realize that you, too, have missed the point.
Later in life, I wanted to explain to lawyers why some jurisprude's hopes of a purely formal legal system were not realistic, so I wrote a piece, desperately trying to "dumb it down" enough to be comprehensible, while keeping it real enough to be mathematically defensible. You have no idea how hard that is until you really try to do it. (If you are inclined to see how amateurs do it, check out Brown & Greenberg, On Formally Undecidable Propositions of Law: Legal Indeterminacy and the Implications of Metamathematics, 43 Hastings L.J. 1439 (1992)).
While I believe I now understand, at last, Godel's theorems well and deeply, not so much because of GEB, I now understand for certain that the heart and passion of those great works of an early twentieth century mathematician do seem to lie, at the end of the day, in the very playfulness of the subjects of Professor H's book.
He didn't fairly capture the essence of the mathematics, but he did capture its heart and soul. He didn't teach me what I needed to learn about the theorem, but he did teach me how and why I would love it once I did.
And for that, I am still much indebted to Professor H. The book is clearly flawed, yes, but it still took my breath away.
And THAT, IMHO, is why this book won a pulitzer. As a math textbook, this book is very deeply flawed in many ways. But as a piece of non-fiction, GEB is a bright, shining jewel; particularly when viewed in light of the vapid "Hey, man, what a concept" paradox-mongering alternatives.
Ok guys, lets stop guessing. Here is the poop. A person infringes a patents only by making, using, selling offering for sale or importing an accused invention. 35 U.S.C. s. 271(a). This is strict liability -- it doesn't matter whether you know, or should have known, or didn't know or didn't care to know about the patent. If you did it willfully, bad news: possible treble damages and an attorney fee award.
On the other hand, once you have notice of a patent claim, you can get dinged by the use of another under two circumstances:
(a) contributory infringement. This is when you provide a component, but not all of the invention, which is not a staple product, with the intention that it be incorporated into the infringing whole.
(b) inducement to infringe. This is when you knowingly and actively aid and abet an infringement of another, regardless of what you provided.
These are big hammers, and companies like Apple can't afford to have an infringement claim against them turn into big mega-inducement and mega-contribution claims. Also, in a direct infringement claim, the licenses may count toward damages. So they pull the plug on the licenses. That's all they'd have to do -- no more, and no less. But if they couldn't, they'd be sunk.
In short, the guys whining about APSL are just whining. It's just plain ludicrous to contemplate a scenario of Apple wimping out and dumping hunks of its flagship OS technology "in bad faith." Right. Moreover, its even sillier to imagine any OSS licensee truly damages in the sense of being unafraid of the patent claimant, but terrified of the illusory possibility of Apple's contract police coming after you.
It won't happen. Apple's approach is a reasonable one, and folks who are arguing against it are just selling something.
This is a subtle and a clever question. I think the answer lends insight to the concern expressed earlier concerns that Apple is not required to republish changes. Consider:
If Apple were required to republish changes, then a user could turn APSL into GPL as follows:
(1) embed some GPL-ed code into a change;
(2) submit it, passing along the GPl-ed license in accordance with GPL; and
(3) apple publishes it.
Whoops, under GPL, the published software is now virused in, and itself now subject to GPL, which may mean that some of the greater restrictions of APSL no longer can apply.
I think that Apple was clearly alive to these concerns in drafting the license as they have.
I don't believe this provision is poorly worded (i.e. vague or ambiguous). The provision means what it says -- that if you file papers for a lawsuit with the clerk of a court stating a cause for patent infringement (that's what commence means under the Federal Rules of Civil Procedure), your APSL license is terminated automatically and without notice. Since there is no limitation in the clause that the infringement must be related to the termination, it is unlikely that a court would read that limitation into the provision.
On the other hand, as pointed out by others, it is clear that this doesn't mean that "Apple gets right to all my patents." This is not a unilateral "cross-license," which would actually prevent you from suing -- you are free to sue if you so choose, but part of the consequences are that you will lose APSL rights.
And yes, this could become a big deal if you make APSL code mission-critical. The question remains, which is the more valuable asset -- your right to sue apple for a patent, or the value of the code to your enterprise.
For the vast majority of hacker types, this is a non-issue. For the small number of hacker-inventors, there are options: (1) don't use the code, or don't use it in mission-critical applications; and (2) negotiate a separate deal with Apple, setting forth the reasons why you think they should give you the right to use the code for free while you are still suing their pants off.
A plausible argument of type two might be made. Absent such an argument, however, I see Apple's point well -- they see themselves giving away something valuable gratis, and expect a quid pro quo. If the quid is too much, don't take the quo.