The LawA Wayward Engineer’s Status Report

Brent C.J. Britton

15 March 2007

The MIT Media Lab

Distinguished Alumni Lecture

15 March 2007 2

Outline

• Basis of my research• Findings re. the law• Findings re. lawyers• Intellectual property• Future law• Recent headlines

The LawA Wayward Engineer’s Status Report

The Basis of my Research

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Research

• Primary: Can the law be hacked?

• Secondary: Impedance mismatches• Stallman• Negroponte

• Tertiary: entrepreneur-ish-ness

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A Brief Retrospective

• S.M.’91,The Media Laboratory• Electronic Frontier Foundation• J.D.’94, Boston University School of Law• Silicon Valley Lawyer• Hollywood startup CEO• San Francisco Lawyer

• New York Lawyer• Florida Lawyer

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Florida

The LawA Wayward Engineer’s Status Report

Findings: The Law

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Origins of law

• Emergent property of biology• Brains • Minds• Will• Action• Risks• Duties• Rights• Law

• The law can be hacked by hacking brains.• Capuchin fairness study – evolutionary ethics

• Brosnan, S., and F. B. M. de Waal. 2003. • Monkeys reject unequal pay. Nature 425:297-299.

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Origins of law

• Apparently universal property of society• Robert Murdock, Ethnographic Atlas, University

of Pittsburg Press (1967). • 862 preliterate cultures • 2/3 of them had private ownership of real

property • governed by rules of descent that determined

generational flow of ownership • systematic implementation by group

• Appears to be required to perpetuate and enforce freedoms enjoyed by civilized cultures• J.S. Mill, etc.

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The Law is Government

• How to run the railroad?• Anarchy, dictatorship, monarchy, oligarchic

plutocracy…• The American Way seems to work OK

• Constitutional, federated, democratic, capitalist republic

• The Marketplace is king• Feed everything into the market

• Products, ideas, methods of governing

• Let the market at large decide value• With votes, with money, with adoption

• The Law can be hacked by mutual consent.

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The Law: What Government Does

• Government exists to cultivate capitalism• Level the playing field, enforce the rules• Enforce private contracts• Do a few other things that the collective can accomplish

easier• Military, fire, police, courts, coining

• Importantly: government does not own the vast majority of the means of production• Private leverage of assets for profit creates more…

what? What is the goal here?• …oh, let's call it "allegro con moto“• J.S. Mill would say “Freedom”

• The Law is what government creates & enforces

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The Law: Examples

• Proactive: Intellectual Property• Value recovery on R&D• Encourage innovation• Enable competition

• Reactive: Sarbanes Oxley• Il quattro staggioni della reggolazzioni• Fraud avoidance for public companies• Demands comprehensive management

responsibility for internal controls and reported information

• Make investors feel safer

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The Law: Check all that apply

• Your behavior is currently subject to a library full of laws• Federal, state, county, municipal• Statutes, cases, rules, ordinances

• Most of them are inapplicable. Why?• In part, because most laws are ex post

• Something bad happens; lawmakers act• Very rarely ab ante

• And thus, most laws wear out• The law can be hacked by changed

circumstances and the passage of time.

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The Law is Software

• The code that runs civilized society• Constitutional framers = kernel coders• Legislature = application coders• President = quasi project manager• Courts & juries = interpreters & compilers• Law is self-correcting• The ultimate open source code base• The law can be hacked by exerting influence

over any branch of government.• Sonny Bono saves Mickey

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The Law is Software

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The Law is Software

• Constantly tested against new facts and circumstances• Life is messy• We are miraculous insane angelic freaky weirdos• Judicial opinions read like dime store thrillers

• Constitutional prohibitions • vague and ambiguous• arbitrary and capricious

• Loopholes, flaws, & bugs

• The law can be hacked by exploiting security holes left by incompetent draftsmen.

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Contracts are software too

• Admit it, you do not even read the things you click “I agree” on

• Contracts are private law• The code that runs business

• Derived from dealmaking and negotiation• Private and confidential• One-on-one or small groups

• The law can be hacked by infinitely versatile local patches and upgrades of limited applicability but having incredibly powerful influence.

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The Law & Ethics

• It is more profitable to be ethical than to cheat.

• Avoid things that make people want to sue you anyway.

• Stay within bounds, but seize every lawful advantage

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The Law is Avoidable

• Reality isn’t a VR• The only unbreakable laws are the laws of

physics

• The law can be hacked by unlawful acts.

• The law can be hacked by departing its jurisdiction• 13 MAR 2007, HALLIBURTON ANNOUNCES

MOVE TO DUBAI AMID CONSTRUCTION BOOM

The LawA Wayward Engineer’s Status Report

Findings: Lawyers

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The role of lawyers

• Conduit from citizenry to the state for redress of grievances

• Standard-bearers, umpires, artful tour-guides, consigliari…

• Like plumbers• When you need one, you need one.• Self-help is almost always more expensive

• You like yours; you hate mine.

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Observations about lawyers

• They like latin – res ipsa loquitor• They are extremely ethical• Personalities cluster around Napoleonic

• They perceive themselves as being more intelligent than their non-lawyer peers.

• Mutual respect and admiration is rare.• Culture of competitiveness and resentment

• Intensely specialized by necessity• Most do not cross-train

• True both intra- and inter-disciplinarily• Market opportunity

• The law can be hacked by a fresh perspective.

The LawA Wayward Engineer’s Status Report

Intellectual Property

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Elegant code by witty programmers

The Congress shall have power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

U.S. Constitution, Article I, Section 8, Clause 3 (1789)

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Basic I.P. Summary

Protects Obtained Duration

Trademark Brands (names of companies, products, and services)

Use and semi-optional registration

As long as used in commerce

Patent Inventions (and some designs)

Invention and mandatory registration

20 years

Copyright Works of authorship

Creation of the work and semi-optional registration

Life of author plus 70 yearsor 95/120

Trade Secret Valuable secrets Keeping secret As long as secret

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Basic I.P. Summary

Protects Obtained Duration

Trademark Brands (names of companies, products, and services)

Use and semi-optional registration

As long as used in commerce

Patent Inventions (and some designs)

Invention and mandatory registration

20 years

Copyright Works of authorship

Creation of the work and semi-optional registration

Life of author plus 70 yearsor 95/120

Trade Secret Valuable secrets Keeping secret As long as secret

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Basic I.P. Summary

Protects Obtained Duration

Trademark Brands (names of companies, products, and services)

Use and semi-optional registration

As long as used in commerce

Patent Inventions (and some designs)

Invention and mandatory registration

20 years

Copyright Works of authorship

Creation of the work and semi-optional registration

Life of author plus 70 yearsor 95/120

Trade Secret Valuable secrets Keeping secret As long as secret

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Basic I.P. Summary

Protects Obtained Duration

Trademark Brands (names of companies, products, and services)

Use and semi-optional registration

As long as used in commerce

Patent Inventions (and some designs)

Invention and mandatory registration

20 years

Copyright Works of authorship

Creation of the work and semi-optional registration

Life of author plus 70 yearsor 95/120

Trade Secret Valuable secrets Keeping secret As long as secret

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Trouble with Trademarks

• Must reconcile the following inharmonious regimes:• Corporate Name Reservation at Secretary of

State• Domain Name Registration• Trademark Registration

• Baylor College Study

• Colors• Genericide

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Patents

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The Three Tyrannies thatinterfere with ROI on R&D

• The Tyranny of Dumb People• Fulton's Folly

• The Tyranny of Smart People• Charles H. Duell, 1899 • Sextus Julius Frontinus, c.100

• The Tyranny of the Inventor• Standing on shoulders of giants• Failure can curb the ego

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Infringement

How to infringe? Independent discovery defense?

Remedies

Trademark(state & fed)

Use similar mark in confusingly similar way.

No Injunction, ex parte seizure, some damages

Patent(fed only)

Make, use, or sell equivalent invention

No Injunction, profits

Copyright(fed only)

Direct copying or (access + substantial similarity)

Yes Injunction, profits, statutory

Trade Secret(state only)

Misappropriation Yes Injunction usually

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Copyright Infringement

• Does West Side Story infringe Romeo & Juliet?

• Did My Sweet Lord infringe He's So Fine?

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Fair Use

"And so when you step,

step with care and great tact.

And remember that life's

a great balancing act."

- Dr. Seuss

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Four Fair Use Factors

1. Nature of the original work• Level of creativity

2. Purpose of the accused work• Educational, non-profit, parody, commercial?

3. Amount of original work copied into the accused work

• Heart of the original work?

4. Effect on market for original work

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Copyright Infringementvs. Plagiarism

• Myth: Citation undoes infringement• Fact: You copy, you infringe, whether you credit the

source or not• But some folks might not care• Homage, mashups

• Once "suin' money" is at stake, most people will make a federal case out of it• Question is not: “Will I win the case?"• It is: "Am I likely to get sued in the first place?"

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Avoid litigation

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IP issues

• IP ownership is counterintuitive

• Know what you own; own what you know.TM

• In every context, assume nothing (except that there will be problems)

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When you Assume…

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At What Price Assumptions?

• Rolls Royce• Vickers owned RR car business• Sold to Volkswagen in 1998

• For $800 million

• Oops…no trademark!• Rolls Royce name was only licensed to the car

manufactuere• Subsequently bought by BMW

• Can you say, “Fired!” • (not to mention “m*lpr*ct*ce…”)

The LawA Wayward Engineer’s Status Report

Future Law

The LawA Wayward Engineer’s Status Report

Lawing the Future

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Pressing Issues

• Why is File-swapping Unlawful?• Bittorrent, youtube

• The internet routes around the “damage” of censorship.

• iTunes notwithstanding, why aren’t business models changing faster?

• Does information really want to be free?• Someone needs to solve this problem in a

non-revolutionary way

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Future Legal Issues

• The law in VR’s• The code really is the code• Second Life has coded away fair use

• Jurisdiction on the net• There is a lot of there there, untethered to

geographic boundaries• Will the net give rise to legal hegemony?• Will it be the lowest common denominator?

• When does an AI qualify for personhood?

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Proposed lines of research

• Automating legal research• Encode the code

• Rethinking intellectual property• Theory vs. practice

• Oiling the machinery of capitalism with the blood of the software• Agents, agreements, reputations, communities

The LawA Wayward Engineer’s Status Report

Legal Headlines

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Some headlines, week of 12 March 2007

• RIAA sues stroke victim• Viacom sues YouTube/Google for copyright

infringement on massive scale.• Jury: I. Lewis “Scooter” Libby guilty of 4 of 5

counts in indictment• Dunn avoids jail time in HP spy scandal• Former Nortel executives charged with

securities fraud• Dying patient loses medical marijuana case• Florida astronaut faces charges

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RIAA Sues Stroke Victim

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RIAA Sues Stroke Victim

• Clients hate lawyers, except their own lawyers, whom they adore.

• From a legal blog about RIAA suits:

'The first thing we do, let's kill all the lawyers' ~ Henry VI (Shakespeare)

hehe barring ofcourse all the lawyers defending against the RIAA :P We love you guys, and gals ;)# posted by Kenneth : Tue Mar 13, 04:57:00 PM EDT

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Viacom v. YouTube

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I. Lewis “Scooter” Libby guilty

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Dunn, others, avoid jail time

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Nortel executives charged

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Dying patient loses pot case

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Astronaut charged

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Thank you