The Volokh Conspiracy

Back last fall, I suggested (here, and here) that there appeared to be some movement among the Republicans to take on the mantle of “Internet freedom/innovation” as a political position, both because it is an issue on which the Democrats, with their hands deep into Hollywood’s pockets and vice versa, are very vulnerable, and because it might be a way of salvaging the votes of an entire generation that they’re on the verge of losing completely.

More evidence that something is afoot:  First, there’s the “Internet governance” bill making its way through the House, containing little more than a simple statement of policy: “It is the policy of the United States to preserve and advance the successful multistakeholder model that governs the Internet.”  The bill was passed out of the relevant Subcommittee on a straight party-line vote, strangely enough . . .

And now Bob Goodlatte (R-VA), chairman of the House Judiciary Committee, has announced that the Committee will conduct a “wide review of our nation’s copyright laws and related enforcement mechanisms,” involving a “comprehensive series of hearings on U.S. copyright law in the months ahead [whose] goal will be to determine whether the laws are still working in the digital age.”  I’m not sure exactly what he has in mind – but if the Republicans are smart, they’ll get on the right side (and the Republican Study Committee itself has provided a good blueprint on that) of this issue.

David Bollier and John Clippinger have an extremely interesting short essay on “The Next Great Internet Disruption: Authority and Governance” that is well worth reading.  They start from Reed’s Law:

When we look back on the past twenty years of Internet history, we can more fully appreciate the prescience of David P. Reed’s seminal 1999 paper on “Group Forming Networks” (GFNs).  “Reed’s Law” posits that value in networks increases exponentially as interactions move from a broadcasting model that offers “best content” (in which value is described by n, the number of consumers) to a network of peer-to-peer transactions (where the network’s value is based on “most members” and mathematically described by n²).  But by far the most valuable networks are based on those that facilitate group affiliations, Reed concluded.  When users have tools for “free and responsible association for common purposes,” he found, the value of the network soars exponentially to 2ⁿ – a fantastically large number.   This is the Group Forming Network.  Reed predicted that “the dominant value in a typical network tends to shift from one category to another as the scale of the network increases.…”

It’s a little geeky, yes – [and, if you're interested, I've got a somewhat longer and, I think, reasonably intelligible discussion in chapter 3 of  my book, here] — but I’ve long thought and still believe that it embodies a principle of the highest significance in understanding what the Net is and what it might become.  As I’ve said ad nauseum over the years to anyone who will listen, the Internet is, in a most important sense, entirely a phenomenon of large scale;  it is different from the hundreds of thousands or millions of other networks and inter-networks and inter-inter-networks out there in the world solely because of its enormous size.  Size matters, because (Reed’s Law) value of a network enabling peer-to-peer connectivity scales exponentially with the number of members of the network — as it gets bigger, it gets (a lot) more better; as it gets better, more people want to join;more people want to join; as more people join, it gets bigger; . . . and so on.

The Internet mastered peer-to-peer communication pretty early on – with the development of the various email, instant messaging, and ultimately P2P file-sharing, protocols.  And it did, indeed, keep getting bigger and bigger, and more and more attractive to new entrants, . . .

But Reed’s Law shows that in GFNs – group-forming networks, networks that allow users to form groups of any size, from 2 to the number of machines on the network  – value scales much, much more rapidly as the network gets bigger; hyper-geometrically, the mathematicians call it.

[To give you an idea, here’s a little table showing the difference between something growing exponentially (fast) and something growing hyper-geometrically (really, really, fast).
N                exponential scaling (N²)       hyper-geomteric scaling (2^N)

1                       1                                                 2
10                    100                                            1024
50                   2,500                                        1,125,899,907,000,000
100                 10,000                                      126,765,600,000,000,000,000,000,000,000

You get the idea.
The Internet has only just begun — with the development of applications like Facebook, Twitter, and Wikipedia — to realize the power of GFNs, and the success of those platforms is due in significant measure to their ability to enable each user to form (and/or become part of) diverse groups of enormously varying sizes.  One thing I can promise you:  the group-forming capabilities of these applications will look hilariously primitive in 5 to 10 years.

What does this have to do with Internet governance? A great deal, and possibly everything.  Governance is nothing more (or less) than the processes through which groups articulate norms and rules that are binding on their members, and their policies and procedures for dealing with other groups.  With a more robust ecosystem of group-formation tools at our disposal, it is easier to imagine, in Bollier and Clippinger’s words, “the emergence of new sorts of effective, quasi-autonomous governance and self-provisioning” on the Net — that could achieve both greater legitimacy than territorially-based governance institutions (because they could be much more closely aligned with each individual’s voluntary consent to abide by the rules) and which could be more effective, in the a-territorial networked world, at dealing with harmful conduct that institutions whose powers are territorially defined.

And, as I’ve said many times before, imagining it is the first step towards its realization – necessary (though not sufficient).

Thanks for David Johnson for the pointer.

Update:  Reader Samuel East has set my terminology straight, for the record:

The insight is correct, but unfortunately the terminology isn’t: N^2 growth is polynomial (not exponential), and 2^N growth is exponential or geometric (same thing, but not “hyper-geometric” or “hyper-exponential”). Wikipedia’s page on Big O Notation has a useful chart (buried under a pageful of math-ese, naturally). Anyhow, group-forming behavior actually is factorial (one could accurately describe it as “hyper-geometric”). So for accuracy, 2^N is actually a bit small:

N    N^2     N! (factorial)
1    1       1
10   100     3,628,800
50   2,500   3.04*10^64
100  10,000  9.33*10^157

British conductor Colin Davis died this past Sunday, age 85.  Davis was an extraordinarily gifted musician – to my ears, the greatest conductor of the last 30 years* (the one possible exception: James Levine).  He holds a special place in my affections because he “taught” me what conductors do, and how important they are.  In ’79 or ’80, my wife and I saw him conduct the Boston Symphony in a performance of Berlioz’ Symphony Fantastique at Tanglewood.  Just coincidentally, 2 weeks earlier, in NYC, I had heard a performance of the same piece by a conductor whose name I won’t reveal — turgid, plodding, and a real snore.  As that was the first time I had ever heard the piece, I (naturally, and stupidly) thought it meant that the piece was turgid, plodding, and a real snore.  Then we heard what Davis and the BSO could do with it.  To this day, it remains the most electrifying orchestral performance I’ve ever heard.  It hit me – that was his instrument! The whole orchestra was his instrument!  He was like a great pianist making a piece come alive, but with an instrument that was 1000 times more complex, with 1000 times more variations in color, and texture, and sound.  He built up a tension over the course of the 40 minutes or so that was damn near unbearable.  I distinctly remember the feeling at the very end – our seats were up towards the front, but somehow you just knew that there were four or five thousand people sitting behind you who were going to erupt the moment the piece was over.  And so it was – it was as though the entire audience had hot pokers applied to their asses at the last chord, every single person in the hall leapt to his/her feet, all of that pent up energy released at last.  I’ve been to fabulous live performances by, among others, Dylan, the Band, the Stones, Springsteen & the E Street Band, Joplin, Hendrix, The Police, . . . . but I can’t remember anything topping that moment.

* There are lots and lots of great Davis recordings, needless to say – my own favorites: the Sibelius Symphonies, and his indescribably delicious Cosi Fan Tutte.

ATX Brands LLC, which owns Bikinis Sports Bar and Grill (in Bikinis, TX), has obtained a federal trademark for the mark “Breastaurant” in connection with “restaurants and bars.”  [I was hoping that this Yahoo story got it wrong somehow - but I checked at the Trademark Office site, and indeed, the term has been registered as a trademark.]

It’s a nice, textbook example of something that does not get trademark protection.  There is a fundamental principle of trademark law:  generic terms — terms that define a class of goods or services — can never get trademark protection.

Here’s the article from Yahoo News:

While Hooters, Twin Peaks, the Tilted Kilt and other chain restaurants that feature bodacious waitresses in skimpy outfits have been called “breastaurants” for years, the owner of the Texas-based Bikinis Bar and Grill is the first to make it official.  Doug Guller, CEO of ATX Brands LLC, which owns Bikinis Sports Bar and Grill, announced today he has trademarked the term “breastaurant” through the United States Patent and Trademark Office, meaning his company is the only one who can describe itself with the term.

“We’re really excited about receiving this federal trademark,” Guller said in a statement. “Our team has worked hard over the last seven years to offer a unique experience to our fans. It just further solidifies that Bikinis Sports Bar & Grill is America’s ONLY breastaurant.” . . . 

The trademark is a major move in the “breastaurant” industry. . . . Breastaurants are $1 billion-plus industry, and places like Twin Peaks, the Tilted Kilt, Bone Daddy’s and others are in a heated fight to knock the reigning breastaurant king, Hooters,off its throne.. . . Also competing is Canz, a New York-based roadhouse-themed sports bar that did what many would consider to be impossible. It successfully launched in the middle of the recession and the customers came flocking in. “Our profits ranged a little over $2 million in our first year in 2008 and showed great signs of growth,” said Canz owner Tim Lorito.  Three restaurants later, Lorito said, the formula or sports, beer and, of course, lots of young ladies — waitresses wear tight black tanks and jean shorts — is working.”I think being a great breastaurant goes hand in hand with being a great sports bar,” Lorito said. “I think the atmosphere that that creates gives us an advantage over any other of our competitors.”

That’s five separate uses of the word “breastaurant” in its generic sense — to describe a class of restaurants.  It is not being used to distinguish one restaurant from another (the real function of a trademark).  EVEN THE TRADEMARK OWNER USES THE TERM IN ITS GENERIC SENSE:  When Guller says “Bikinis Sports Bar is America’s ONLY breastaurant” he’s using a (trademarkable) identifier for his restaurant (“Bikinis Bar and Grill”) and saying that it is a member — indeed, the only member — in this particular class of restaurants (“breastaurants”).

That is a textbook generic identifier.  How in Heaven’s name this could have slipped by the Trademark Office is completely beyond me.

[Thanks to R. Vesprey for the pointer]

Here’s an interesting case:  Someone posts a video on YouTube showing State Rep.Tarah Toohil (R PA) as a young woman smoking what appears to be a bong and about to kiss a woman sitting nearby.  Rep. Toohil acknowledges that she is the young woman in the video, but in  a video response says “I am not that young woman today,” and denouncing this “blatant and personal attack on me as a legislator ...”

So far so good.  But next, “Anonymous” posts a video, just before election day, urging Toohil to change her position on legalization of marijuana or else face additional “exposure” of her “secrets.”

It featured an image of an empty suit, with a question mark in place of a head, as well as a montage of the black-and-white Guy Fawkes masks that were popularized by the film V for Vendetta and that have become a symbol for protests such as the Occupy movement.  The 85-second video borrowed the slogan of Anonymous, the elusive hackers who have taken on everyone from the Church of Scientology to banks: “We are Anonymous. We are Legion. We do not forgive, we do not forget. Expect us.” The voice-over, female and British-accented, said the “legions” were disappointed by Toohil’s response to the surfacing of photos showing her with what appeared to be marijuana. The voice demanded she support decriminalizing the drug – or else. “Everyone has secrets,” the voice intoned. “Please do not give us a reason to expose yours.”

The PA State police is investigating this as a possible felony.  The Phil. Inquirer story quotes George Parry, a Philadelphia defense lawyer and former state and federal prosecutor, who said, after reviewing the “secrets” video, that “on its face, it could constitute criminal conduct in that it aims to sway a legislator.

“This appears to be an attempt to influence legislative action . . . a threat to cause harm to this legislator’s reputation,” he said. “And I think that has broader social implications than just a private citizen being subjected to blackmail.”

I must say, I wonder about this.  Surely it can’t be enough to “threaten to cause harm to a legislator’s reputation” to land one in prison — that,surely, is what newspapers and bloggers do all the time, and is at the core of what the First Amendment is designed to protect; a legislator’s “reputation” surely being a matter of the most significant public concern.  I take it we would all agree that the law does not (and could not, consistent with the first Amendment), prohibit me from walking into Rep Toohil’s office and saying:

1.  “Rep Toohil, if you don’t change your position on legalization of marijuana, I am going to urge all my friends to vote against you.”

2. “Rep Toohil, if you don’t change your position on legalization of marijuana, I am going to publish the paper I have written, analyzing your votes in the legislature and showing that you are a closet Liberal.”

3  “Rep Toohil, if you don’t change your position on legalization of marijuana, I am not going to give you that $10,000 contribution I was planning to give your campaign committee.”

4.  “Rep Toohil, if you don’t change your position on legalization of marijuana, I’m going to attack you in every forum I can to try to get you defeated at the polls.”

And I take it we would all agree that if I were to say:

“Rep Toohil, if you don’t change your position on legalization of marijuana,I’m going to kidnap your daughter and/or set your house on fire”

Pennsylvania can and would throw me in jail.

This case, then, does seem to fall into a rather interesting middle ground:

“Rep Toohil, if you don’t change your position on legalization of marijuana, we are going to reveal true facts about you that you would rather not have revealed.”

Is that — can that be — a criminal offense?  Without (a) any threat of physical harm or (b) any demand for payment in exchange for withholding the “secrets”?

The Court’s opinion in the Kirtsaeng v. John Wiley case, which came out on Tuesday, has some interesting fodder for those looking for glimpses of how copyright law is evolving these days.  The case centered on a hyper-technical question involving three interlocking statutory sections in the Copyright Act (I blogged about it in some detail here and won’t repeat that earlier dissection of the complicated statutory issues) with some quite significant real-world implications.

The basic question was this:  can Mr. Kirtsaeng purchase a copy of a John Wiley textbook that was lawfully manufactured (i.e., with the permission of the copyright owner) overseas, bring that copy into the United States, and re-sell it?  Copyright law clearly permits you to re-sell lawfully-manufactured books purchased here in the United States.  It also (thanks to the Court’s decision in the Quality King case a few years ago) permits you to re-sell books that you may have purchased overseas but which were manufactured here in the US.  The question here was whether re-sale right (the so-called “first sale doctrine”) applies to copies purchased and manufactured overseas and imported into the US.

Wiley argued that it didn’t – that the Copyright Act, which gives the re-sale right (in sec. 109(a)) only to the “owners of copies lawfully made under this title,” (i.e., Title 17 of the US Code, the US Copyright Act) imposes a geographical restriction on the re-sale right.  Copies are “lawfully made under this title,” Wiley argued, if they are “made in territories in which the Copyright Act is law” (i.e., the United States).

The Court – in a utterly brilliant opinion by Justice Breyer, a minor classic of the “here are all the reasons why my arguments are better than yours” school of opinion-writing — rejected Wiley’s argument and refused to impose the geographical restriction Wiley sought.

The language of §109(a) read literally favors [a] nongeographical interpretation, namely, that “lawfullymade under this title” means made “in accordance with” or “in compliance with” the Copyright Act. The language of §109(a) says nothing about geography. The word “under” can mean “[i]n accordance with.” 18 Oxford English Dictionary 950 (2d ed. 1989). See also Black’s Law Dictionary 1525 (6th ed. 1990) (“according to”). And a nongeographical interpretation provides each word of the five-wordphrase with a distinct purpose. The first two words of the phrase, “lawfully made,” suggest an effort to distinguishthose copies that were made lawfully from those that werenot, and the last three words, “under this title,” set forth the standard of “lawful[ness].” Thus, the nongeographical reading is simple, it promotes a traditional copyright objective (combatting piracy), and it makes word-by-word linguistic sense.

“The geographical interpretation, however, bristles with linguistic difficulties” – which the opinion then proceeds to catalogue with considerable scrupulousness.  It’s something of a tour de force – well worth reading, though I suspect that 33 pages construing 5 words in the Copyright Act will only appeal to hardened copyright aficianodos or the hopelessly insane).  It is chock full of nice turns of phrase; for instance, confronted with dictum from an earlier Supreme Court case which appeared to suggest that Wiley’s reading was the correct one, Breyer writes:

We cannot, however, give the [earlier] statement the legal weight for which Wiley argues. The language“lawfully made under this title” was not at issue in [the earlier case]; the point before us now was not then fully argued; we did not canvas the considerations we have here set forth; we there said nothing to suggest that the example assumes a “first sale”; and we there hedged our statement with the word “presumably.” Most importantly, the statement is pure dictum. It is dictum contained in a rebuttal to a counterargument. And it is unnecessary dictum even in that respect. Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?

It is entirely persuasive, to my eye, as a matter of statutory construction.  [Indeed, I'll go out on a limb here and suggest that it may be one of those rare opinions that ends up having swayed a vote.  In 2010, the Court was presented with precisely the same issue as here in the Omega v. Costco case; Justice Kagan recused herself from that one for some reason, and the Court split 4-4.  With the same issue in front if it, and with Kagan now participating, it ends up 6-3.  Somebody switched from the copyright owner's side (Omega/Wiley) to the re-seller's side (Costco/Kirtsaeng), and I would not be at all surprised to learn that it was because Breyer's opinion actually made sense).

Moreover, it is better copyright policy.  As I wrote in my earlier posting, the rule Wiley argued for would have given publishers a substantial incentive to move all of their manufacturing facilities (for books, and CDs, and DVDs and . . .) overseas, because they would only be able to prevent arbitrage, and maintain their price discrimination and market segmentation, with respect to those foreign-manufactured copies.  It is hard to believe -- impossible, actually -- that Congress intended that result.

And perhaps most importantly of all, it also takes what I think is the correct interpretive stance with respect to construing ambiguities (of which there are many) in the Copyright Act:  When in doubt, construe the statute to favor the public interest (in low-cost informational goods, and wide dissemination of creative works) over the parochial interest of the copyright holders.  It's a kind of anti-monopoly presumption; Congress, of course, can adjust the balance if it wishes, but where it hasn't spoken clearly (and it is very difficult for me to imagine a place where it has spoken less clearly than here), choose that reading of the statute that yields the greatest public benefit, not the one that gives copyright holders the broadest rights.  Justice Breyer is becoming (here, but also in his dissenting opinion in Eldred v Ashcroft, and his concurring opinion in MGM v. Grokster) the heir to Justice Stevens' (and, before him, Justices Black's and Justice Douglas') position as spokesman for this strong anti-monopolist presumption:

[Copyright involves] a balance of competing claims upon the public interest:  Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.  The immediate effect of our copyright law is to secure a fair return for an author’s’ creative labor.  But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. . . . The sole interest of the United States lies not in authorial reward, but in the general benefits derived by the public from the labor of authors,” . . . and when [the statute's] literal terms [are] ambiguous, the Copyright Act must be construed in light of this basic purpose.”  Sony v. Universal Pictures (Stevens, J)

We will, I’m quite certain, need a strong advocate for the public benefit in the years ahead, and it’s good to see Breyer assuming the mantle.

On January 18, 2013, the Circuit Court in Wayne County preliminarily approved a settlement in a class action charging that  McDonald’s had sold non-”halal” Chicken Mcnuggets that had been advertised as “halal.”  A local activist named Majed Moughni was unhappy with the settlement terms (which required McDonalds to pay some money to two local Dearborn charities, along with a hefty fee to the plaintiffs’ lawyers, but nothing for the other class members), so he began a Facebook campaign (“Dearborn Area Community Members”) where he criticized the settlement terms and tried to  organize opposition to it.

So far, so good.  But the plaintiffs’  lawyers filed an action seeking an injunction against Moughni’s Facebook page, asking  that Moughni be required to take everything he had said about the case down, and to post on his Facebook page instead what they said (and what the Court had said).

Unbelievably enough, the court granted the motion and entered a preliminary injunction; finding that  Moughni had made “materially false, deceptive and misleading statements concerning the settlement . . . and concerning the rights of the members of the Settlement Class,” and that Moughni “thereby engaged in deliberate and abusive conduct which has created a likelihood of confusion of class members, adversely has effected the administration of justice and has undermined this Court’s responsibility and authority to protect Class members from such abuses,” the Court

(a) ordered Moughni to remove all statements about the case from his Facebook page and to replace them with the Court’s own expression, and the parties’ own expression, about the proposed settlement, in the form of the preliminary approval order and class notice;

(b)  enjoined him from making any other statements about the case in any other forum—whether in person or electronically, or to the press;

(c)  ordered him to identify to the Court and the parties those class members who had associated themselves with Moughni’s point of view by using the Facebook “like” and comment functions; and

(d) forbade him from  “dissemination, circulation or publication” or any form for opting out or objecting to the settlement.

I don’t know why episodes like this get me so riled up, but they do.  It’s the worst kind of judicial over-reaching – protecting the court’s own turf from dissension and criticixm by exploiting its power over defendants.  Fortunately, Public Citizen has stepped in to move to vacate the injunction (aided, I’m told, by the ACLU of Michigan).  Good luck to them -

[Thanks to Paul Levy for the pointer]

[NOTE:  This brief essay comes from my friend and colleague David Johnson [from whom I first learned about Hypercard on our old Mac SE, many years ago)/DP]

Why we need an Open Source Hypercard

By: David R. Johnson

Livecode has launched a kickstarter campaign to raise the funds needed to allow it to re-engineer their latter day version of Hypercard, release it to open source developers, and make it free to everyone for non-commercial use.

You should back this campaign.

As I will explain, an open source Livecode will enrich education, increase interest in science and engineering, teach problem solving skills, and create a new form of literacy,

When Hypercard was first shipped with the newly released MacIntosh computer, millions of people who had never even thought about programming started to use it to create interactive software. Its scripting language was so much like natural English that most people could teach themselves how to build things by simply looking at some examples built by others.

Tragically, Apple didn’t appreciate what it had and withdrew support for its Hypercard program (ceasing to ship it with the hardware). But the “everyone can code” flame was kept alive, barely, by various successor products from other companies. LiveCode, now distributed by Runtime Revolution of Scotland, is a much more powerful, but just as accessible, successor.

The problem is that no one knows about LiveCode. No one teaches kids how to program with it. The large community of Hypercard enthusiasts is aging.  And the fact that anyone can write software, for their own purposes, has been washed away by “computer labs” that think all they need to teach is how to use applications and the presumptively more powerful, but much less accessible, technology of the web. I love the internet. I teach Internet law! But the gap between reading and writing interactive screen-based works has widened as the functions of online sites have become more complex.

As cell phones and tablets and app stores have begun to compete with the web, Hypercard (I mean Livecode) may get a second chance. It can build software for PCs, Macs, iPhones, Android phones and even Linux devices. The joy and wonder of seeing software they themselves built running on their own phone may yet spark the imagination of today’s teens.

Most people black out at the sight of javascript, much less C++. I certainly do. But we know from the Hypercard experience that anyone can approach an english-like scripting language that makes it easy to lay out a screen and experiment with small snippets of commands. “Put this word into field Fred”. “Move that button right 10” “Ask ‘what is your name?’ and put it into nameholder.”  Livecode moves instantly between building and running modes. It’s “card” and “stack” metaphor is easy to understand.

Writing code should be viewed as an essential element of everyone’s education. We need to understand how the robots we are using work! Indeed, we need to be able to build them for our own purposes, without having to raise VC money or go to the IT department. If-then loops, setting variables, sending messages up a hierarchical message path, thinking through the architecture and behaviors of a software program, learning how to persist in the face of inevitable bugs, are all good training for problem solving of every sort.

There are some other student friendly options out there. Scratch from MIT is a great starting place for younger kids. Mozilla is working hard to encourage “webmakers”. And Khan’s code academy is a valuable online learning tool. But LiveCode gives older students and amateurs the ability to build more complex and powerful software and to distribute their work in more diverse environments. It facilitates experimental, iterative, coding, rather than requiring a novice to master lots of complex syntax before getting anything interesting done. And it is (almost) a language everyone already knows!

One great feature of Livecode is that it allows a novice (amateur programmer) to learn how to make the software do something just when that user has decided that that something is worth doing. Kids learning to code may build a game of the their own invention or just make an interactive greeting card for a grandparent. They will learn how to code in order to achieve their own goals. That’s far more engaging than trying to memorize complex syntax just because that is what is taught in a computer class. As Hypercard showed, classes aren’t even necessary.

If RunRev gets the resources it needs, it will make Livecode available for free to every student and teacher. (In its day, teachers used Hypercard to build all manner of innovative educational programs.) Experience in Scotland, RunRev’s home, has shown that high school students taught to build software in Livecode are twice as likely to develop an interest in science, technology, math and engineering. Even history and art students will be drawn in by the ability to manipulate its graphical tools. Young children are using Livecode to build interactive maps.

There is no telling what the next generation of Hypercard enthusiasts might come up with. Of course, as was true in Hypercard’s time, lots of not very polished software will be created by amateurs. But we know from the web that enabling innovation and distributed publishing can also produce lots of great new things.

After we got the printing press, it took a while for everyone to learn to read. And a bit longer for everyone to learn to write. We now understand how empowering those skills are, even for people who are not professional readers or writers. Writing software is a form of literacy no less needed by the entire population, even those who will never become professionals paid to code.

Educational games for our students ought to be built by teachers (and students!), not engineers. Expert systems dispensing legal advice ought to be built by lawyers, not engineers. Anyone who needs a little bit of interactivity to help achieve a personal goal ought to be able to build it on their own. Apps will become more innovative, substantive and valuable if they spring from the minds of people solving their own problems.

Livecode, in the hands of a skilled user, is as powerful as any other software out there. It has been used by NASA and by professional programmers who view it as their secret weapon. But it is also approachable by girls who hate math, by rank amateurs (like me) who write messy code but enjoy every minute of it, by anyone who speaks English and can use the built in dictionary. If the kickstarter project succeeds, an open source LiveCode may extended to reach people who speak other languages as well.

I was one of the early Mac users who found it exciting to learn how to “program” with Hypercard. (My first program involved teaching some graphical fish to learn how to school. What a kick when they swam around the shark!) I now use Livecode to build interactive games for my law students. Sure, my code is messy and, well, amateurish. But it works and helps my students study law.

My students all avidly use the internet and smart phones and iPads, but most don’t realize that even the math phobic among them really could learn how to code. They won’t become professional programmers. But they would understand technology in a deeper way, gain a tool that helps them solve their own problems, and have fun. It’s time we gave all students — and everyone else — a chance to become literate in this new way.

Everyone in the world can code. Let’s start now.

In my Copyright Law class, I’m teaching a fairly well-known (in copyright circles) trilogy of cases from the 9th Circuit on the permissible scope of copying of computer software (MAI v. Peak Computer, 991 F.2d 511 (1993), Triad Sys. v. Southeastern Express 64 F.3d 1330, (1995), and Wall Data, v. Los Angeles County Sheriff’s Dep’t, 447 F.3d 769 (2006).  I came across this in the Wall Data opinion; here’s the entire first paragraph at the very start of the “Analysis” section of the opinion [447 F3d 776-7]:

“The 1976 Copyright Act defines a ‘computer program’ as ‘a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.’  We have long held that a computer program is copyrightable as a ‘tangible medium of expression.’  Apple Computer, Inc. v. Formula Int’l, Inc., 725 F.2d 521, 524-25 (9th Cir. 1984).”

That second sentence is really egregious; nobody who knows the first thing about copyright law would write a sentence like that, and nobody who knows the first thing about copyright law would leave it in a document they were writing.  “A computer program is copyrightable as a ‘tangible medium of expression.”  It’s gibberish; I would deduct points from a 1L exam for a sentence like that one.  To anyone who knows the first thing about copyright law, it’s like fingernails on the blackboard.

What the court meant to say was something like:  We have long held that a computer program is a copyrightable work of authorship that receives protection as soon as it is embodied in ‘a tangible medium of expression.’  Not ‘as a tangible medium,’ but ‘embodied in a tangible medium.’

It’s not too big a deal for the case itself – the defendant was not really disputing that the plaintiff’s computer programs were protected by copyright, so nothing much really turns on it.  But it’s not trivial, either – the relationship between the “copyrightable work” (in this case, the computer program) and the “tangible medium of expression” (the statutory phrase describing the material object in which the work is embodied, like a hard disk or CD), is quite fundamental to understanding the way that copyright law works.

But really – in 2006, on the 9th Circuit, in a case that involved some pretty complicated copyright issues that somebody had to be studying (a clerk?  at least one of the judges??), nobody noticed that the sentence at the very start of the substantive portion of the opinion was complete and utter nonsense?  (Pregerson, Schroeder, and Trott were the judges).  And nobody has taken the trouble to correct the error by amending the opinion?  Here’s the syllogism:

If you know anything about copyright law, you fix this sentence because it makes no sense.

The court did not fix the sentence.

It doesn’t know anything about copyright law.

As consumers of judicial opinions, aren’t we entitled to ignore everything the court says later in the opinion about copyright law, since they obviously don’t know what they’re talking about?

And shouldn’t there be a public repository where opinions like this are shown to contain utter nonsense so that the rest of us can ignore them?

A nice discussion by Larry Downes, over on Forbes.com, about the trials and tribulations of the Uber ride-dispatching service and what it says about the relationship between regulation and innovation.

Lots and lots of nice, and nicely-wrought, Jeffersonian echoes, to my ears, in Obama’s speech today.

We recall that what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional – what makes us American – is our allegiance to an idea, articulated in a declaration made more than two centuries ago:   “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”   Today we continue a never-ending journey, to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they have never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth. . . .

We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still.

That’s a pretty terrific little phrase:  “while these truths may be self-evident, they have never been self-executing.”  Very annoyed I didn’t think of that myself.

Back in November, I made mention of a new book from the Mercatus Center on the Great Copyright Debate(s) — Copyright Unbalanced:  From Incentive to Excess — in which I had contributed a chapter (on the SOPA debacle).  I’m told that today – the second  anniversary of the SOPA “Internet blackout” — the publishers are making the book available for free download here (scroll down to see the free download link).  Nice! Come and get it!

Governing Online Spaces:  Virtual Representation

David R. Johnson, David G. Post, & Marc Rotenberg

  ”The introduction of this new principle of representative democracy has rendered useless almost everything written before on the structure of government . . .”

Thomas Jefferson, August 1816

Facebook recently terminated its commitment to hold a vote on all policy changes that received comments from thirty percent or more of users. In defense of the move, it explained that the system encouraged quantity rather than quality of comments; some defenders of the move also have pointed out that reaching the requisite minimum number, on a platform with almost a billion users, was impossible to achieve in any event.

We believe that this presents an opportunity to rethink the ways that meaningful participation by users in the development of policies that will govern large (and arguably essential) online social spaces can be achieved.  In the online world, website policies, incorporated into their Terms of Service (TOS), “regulate” the activities of large numbers of people during increasingly substantial portions of their lives.  In effect, TOS represent a new kind of law – an amalgam of principles borrowed from property law (and a service provider’s right to impose conditions on access to its servers), contract law (although TOS terms are not the result of negotiations or meaningful acceptance by users, and, indeed, most service providers reserve the right to change the terms that users supposedly accept at any time), tort law (although TOS-law doesn’t generally provide for compensation for any injuries), and criminal law (although TOS-law doesn’t provide for due process or impose external sanctions). Terms of Service govern not merely the relationship between individual users and the online service provider, but the relationships among users.  They matter, and they will matter more and more as more and more of our time is spent in online spaces.  The question is: who will make this new kind of law?

We believe in the principle of self-governance and self-determination:  that all users have a right to participate in the processes through which the rules by which they will be bound are made.  This principle is today widely accepted throughout the civilized world when applied to formal law-making processes, and we believe it applies with equal force to the new forms of TOS-based rule-making now emerging on the Net.  Facebook’s privacy policies, its data-retention policies, its intellectual property policies, its rules regarding permissible content – all will have a far more substantial impact on the lives of many users than most of the more formal Law to which those users are subject. It is reasonable for users to demand that those policy-making procedures comport with this fundamental principle, and it is in the interests of service provides to find some reasonable mechanism to implement it.

Some will argue that users need not and should not be given any voice in the development of website policies because they can simply express their preferences through their ability to choose among competing sites. We certainly agree that the market can and does serve as a significant and largely effective check on the ability of website operators to impose arbitrary or unreasonable conditions on user activity. But markets are never perfect; in some contexts – Facebook being a prime, though not the only, example – switching is extremely costly for users, many of whom have invested substantial amounts of time and effort in organizing their own experience at the site and are understandably reluctant to have to repeat that investment elsewhere. Users are not exactly “trapped” on Facebook’s platform, but their ability to switch is severely constrained [see Google+], and to that extent the market is both an ineffective check on Facebook and an imperfect reflection of user preferences and values. Moreover, the positive network effects associated with social sites distorts the market for such sites even further, by making user exit to sites with smaller numbers of participants an even less viable alternative (and an even less effective check on the policies of the incumbent sites).

We propose that Facebook implement a system of virtual representation, whereby every Facebook user would be given the ability to grant a proxy to anyone who has volunteered to act on his/her behalf in policy discussions with Facebook management. These proxy grants could be made, revoked, or changed at any time, at the convenience of the user. Those seeking proxies would presumably announce their general views, proposals, platforms, and positions. Anyone receiving some minimum number of proxies would be entitled to participate in discussions with management — and their views would presumably carry more or less weight depending upon the number of users they could claim to represent.

This scheme serves the interests both of Facebook and of Facebook users, giving the former a far more reliable guide to user preferences and user values than it has under the current scheme, and giving the latter the opportunity to have their voices heard – indirectly, to be sure, but with appropriate weight, and potentially with great effect – in the development of Facebook policies that affect their experience at the site and their interactions with other users.

Virtual Representation Would be Good for Users

It is, we recognize, entirely unrealistic to expect large numbers of users, with busy lives and many other competing priorities, to delve deeply into arcane questions regarding the Terms of Service of increasingly complex social networking sites.  It is equally absurd to imagine a sensible and truly deliberative discourse emerging out of the hundred million or so people who might actually care about any particular Facebook policy alternative placed before them.

But these are problems that we have confronted and solved before, through the 18^th century invention of representation and representative democracy. As Alexander Hamilton and James Madison (writing as “Publius”) noted in The Federalist over 200 years ago, “representation of the people in the legislature by deputies of their own election” was one of the principles that was “now well understood” (i.e., in the late 1700s) but “either not known at all, or imperfectly known, to the ancients.” A method of designating individual representatives for large numbers of citizens was the only way, Publius (and others) realized, that democratic governance could scale over large territories and large populations like the newly-independent United States.  It was, in Publius’ words again, a “powerful means by which the excellences of republican government may be retained and its imperfections lessened or avoided.”

Our proposal updates the principle of representation for the global network, and we believe that it constitutes an important step towards development of a mechanism for scaling up democratic principles and democratic institutions on a truly global basis.  There is no longer any need for Facebook to make the difficult determination, UN-style, of how many representatives any particular interest group or geographic region “deserves”; let the users decide.  Giving users the freedom to allocate, or re-allocate, their proxies at any time obviates the need to schedule synchronous “election days” when everyone has to find his/her way to a polling place.  Unlike specially timed elections among competing candidates, a rolling proxy designation mechanism would allow non-activist users to be involved in (indirectly) shaping TOS policy at their own convenience. This would allow more moderate voices to be more fully reflected in the discussion. Extremists, who currently participate in Facebook policy forums on equal footing with all other users, will be (appropriately) marginalized if their views are unable to gain the support of large numbers of users. Ambitious would-be representatives would have an incentive to crystallize the issues, and to promote themselves as standing for particular points of view. Advocacy groups might find it in their interest to promote individual candidates for such a representative role, because showing up with a binder full of proxies would make it more likely that the company would listen to their suggestions.  The need for those seeking proxy designations to reach out to the broadest possible audience would help to assure that all interests were represented and the extreme positions could be put into perspective. This mechanism would also allow representation of user viewpoints on a global basis; users could make their views known from any location, and designation of representatives could proceed from discussions in any language. Users around the globe could take some comfort in the realization that their diverse values would, to some appropriate extent, be taken into account.

Virtual Representation Would be Good for Facebook

Facebook, like most benevolent dictators, might have doubts about the wisdom of giving users the power to govern (even in part) their own affairs; it might fear that any mechanism for user involvement would give disproportionate power to extremists and activists pursuing their own parochial agendas; and it might fear that it would become somehow obligated to take actions that disserve its shareholders or even the bulk of users themselves. Facebook might argue that it already has adequate incentives to make its product as valuable as possible, and that its users are always free to migrate elsewhere.

But Facebook is both a product and a polity. While it has an ordinary producer-consumer relationship, mediated and constrained by its TOS, with each of its users, its power and its success derive from its ability to empower users to form relationships among themselves, relationships that are also mediated and constrained by those TOS rules.  Making good policies for complex social networks requires thoughtful tradeoffs among many competing values; the only way to get a sense for how most of the affected users would make those tradeoffs is to ask them, or to ask some small group of active users who can be counted upon to reflect the perspectives of the larger group.

An online polity that is experiencing some success in governing its own affairs would be less likely to desert en masse for another platform.  Really dumb mistakes, like sudden actions that defeat user expectations of privacy, would be less likely to occur and more quickly remediable when they do occur.  Users, possessing a degree of participation in policy-formation procedures, couldn’t blame any rule they object to entirely on The Man.

Facebook’s compliance with the clearly expressed will of the online polity would also surely help to keep real-space regulators at bay .Facebook now confronts a need to comply with a complex array of local regulations, reflecting a diverse set of values articulated by local governments around the globe. Those won’t entirely go away. But the pressures to pass local regulations would diminish if Facebook itself could credibly claim to have a mechanism that produces TOS policies that reflect the views of its entire global polity. Many governments are happy to defer to self-regulation if their is some evidence that the regulated are satisfied with the results and are mostly making rules that govern themselves rather than pushing negative externalities and costs onto others. The TOS rules that guide user interactions primarily affect the way that users interact with one another. If users can be shown to be satisfied with the rules, and have a chance to influence them, it will be easier to persuade local governments to step back from aggressive efforts to shape and constrain Facebook products and services.

We are not (yet) suggesting that Facebook change its TOS to provide that it must adopt whatever policy a majority of representatives favor.  Such a provision would, we recognize, pose a difficult conflict with the fiduciary obligation of the corporate directors to act in the interest of the company’s shareholders. But providing a mechanism to distill and discern the strong and concentrated views of large numbers of users, even by indirect means, is perfectly consistent with corporate self-interest, and does not pose any such conflict.

Adopting an innovative mechanism for virtual representation would place Facebook at the forefront of public spirited innovation in Internet governance. By affirming that its users constitute a true polity entitled to some measure of self-government, Facebook would gain the “high ground” in the governance debates, avoiding the need to constantly defend itself against the negative reactions engendered by its seemingly arbitrary changes in policy. Other important online sites might follow suit, perhaps even using mechanisms for proxy-identification and proxy-allocation provided by Facebook itself. Over time, Facebook might be viewed as a founding parent of global online democracy — quite an improvement over its current image as an unaccountable, all-too-powerful, not-so-loved, 18th century monarch.

Conclusion

Representative democracy is not perfect. But we believe it is the best available alternative. It would be relatively cheap to implement – indeed, it would likely be a relatively simple task for Facebook itself to make an app available to all users for the purpose of facilitating the designation of representatives and the allocation of proxies.  The personal investment of time and effort by a small number of people who have incentives to become able to claim (accurately, for a change) that they “represent” the views of large numbers of users, would lead to more constructive discussions and better decisions on what the TOS ought to say and how it should be implemented.

Lots could go wrong, there are many unanswered questions, and implementation will undoubtedly prove to be more complicated than it might appear at the outset.  But that has always been true when facing the challenge of creating new governance structures for new situations.  The time for thinking more creatively about how to set the rules that regulate important online communities has arrived.

The estimable Gene Weingarten of the Washington Post has written a wonderful article about the Jeffrey MacDonald murder case (the subject, originally, of Joe McGinniss’ “Fatal Vision,” and, more recently Errol Morris’ “A Wilderness of Error.”  It’s an extraordinary case — The McGinniss book, which I read when it first came out some 30 years ago, is simply one of the greatest true crime books every written, right up there with Capote’s In Cold Blood and Mailer’s The Executioner’s Song.  Morris thinks that MacDonald was railroaded and wrongly convicted — Weingarten explains very, very persuasively why that’s a lot of bunk.  Highly recommended.

I’ve spent much of the past several months reading through the extraordinary Essays of Michel de Montaigne (in the terrific Donald Frame translation — very, very highly recommended), and I recently stumbled across this, at the beginning of #35 ["On Administration"]

My late father, a man of a decidedly clear judgement, based though it was only on his natural gifts and his own experience, said to me once that he had wished to set a plan in motion leading to the designation of a place in our cities where those who were in need of anything could go and have their requirements registered by a duly appointed official; for example: “I want to sell some pearls”; or “I want to buy some pearls.” “So-and-so wants to make up a group to travel to Paris”; ‘”So-and-so wants a servant with the following qualifications”; “So-and-so seeks an employer”; “So-and-so wants a workman”; each stating his wishes according to his needs.

It does seem that this means of mutual advertising would bring no slight advantage to our public dealings; for at every turn there are bargains seeking each other but, because they cannot find each other, men are left in extreme want.

Nice!