feedback production process law of cyberspace CyberOne September 18, 2006 feedback production process law of cyberspace

September 18, 2006 Charles Nesson LAW of CYBERSPACE September 18, 2006 Charles Nesson

Law of Real Property (atoms) Explore the relationship between power and property, property and law. Property is a legal concept, describing a relationship with the state as the ultimate source of legal authority. Johnson v. McIntosh, Marshall opinion , 1823, title from Indian tribes is no good in us courts. Discovery and conquest: not about justice. Task of the law, to come in in back of the guns to provide a framework for order. Property is an expectation guaranteed by the power of the state.

Law’s protection of property works in tandem with physical protection Law’s protection of property works in tandem with physical protection. The weaker the physical protection, the more difficult the law’s task of protection.

How is Code Different? non rivalrous, potentially excludable, but in some ways just the same; you can physically lock it up, not release it,

No Law Needed When Copying Code is Slow

Some law needed 1609 statutes granting monopolies, rights to make copies, to protect state, to make money for state 1710, first copyright statute, passed as a way of protecting printers from scotland piracy colonies resisted, we were a pirate nation as far as copyright was concerned;

Thomas Jefferson like a candle like a song like second life like wikipedia "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. “That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." - Thomas Jefferson

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

“That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

Congress has the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries;

Congress has the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries;

Congress has the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries;

Congress has the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries;

Congress has the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries;

Congress has the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries; Problem was that there was no coherent business constituency to support the public domain.

For Profit Corporation aggregation of IP assets expression in wealth and power influence on Law

1790 “fourteen years” maybe x2

to 42 (1831)

56 (1909)

59 (1962)

61 (1965)

63 (1967)

64 (1968)

65 (1969)

66 (1970)

67 (1971)

68 (1972)

70 (1974)

75 (1976)

95 (1998)

Mickey Mouse Protection

1960’s-1970’s state of trade state of law competitiveness with Japan, Germany and East Asia decline of American smokestack industries state of law nations largely free to control their own IP environment many nations offer little IP protection

Jack Valenti Theft!! Piracy!!! Rhetoric: commerce in ideas and creativity in desperate need of protection from thievery Born in Houston, Texas, Valenti was the youngest (age 15) high school graduate in the city.  As a young pilot in the Army Air Corps in World War II, Lieutenant Valenti flew 51 combat missions as the pilot-commander of a B-25 attack bomber with the 12th Air Force in Italy.  He was awarded the Distinguished Flying Cross, the Air Medal with four clusters, the Distinguished Unit Citation with one cluster and the European Theater Ribbon with four battle stars. He has a B.A. from the University of Houston and a  M.B.A. from Harvard. In 1952, he co-founded the advertising/political consulting agency of Weekley & Valenti.  In 1955 he met the man who would have the largest impact on his life, Senate Majority Leader Lyndon B. Johnson.  Valenti’s agency was in charge of the press during the visit of President Kennedy and Vice President Johnson to Texas.  Valenti was in the motorcade (six cars back of the President) in Dallas on November 22, 1963.  Within an hour of the assassination of John F. Kennedy, Valenti was aboard Air Force One flying back to Washington with the new President as the first newly hired Special Assistant to the President. On June 1, 1966, Valenti resigned his White House post to become the third man in MPA’s history (founded in 1922) to become its leader.

an idea begins to take shape President Reagan vows commitment to maintaining American technological superiority.

Caribbean Basin Economic Recovery Act 1983 Watch List 1988 TRIPS 1994 Caribbean states had excellent microwave communications, were using it to put out us movies. problem: government owned media violating US copyrights solution: offer duty-free import privileges to help the economies of Caribbean nations; condition the grant of these privileges on copyright compliance; back with trade sanction Section 301 of US Trade Law . Allowed the President to impose trade sanctions to respond to trade abuses (protective tariffs) in other countries Never thought to apply to IP USTR must annually identify IP priority countries; USTR must make a determination in every case USTR damage assessments provided by U.S. industries.

UNIVAC programmable computers microchip 1959 networks\ tcp/ip 1982 www

UNIVAC tube stacks 1958 Jack Kilby & Robert Noyce The Integrated Circuit Otherwise known as 'The Chip‘ 1973 Robert Metcalfe & Xerox The Ethernet Computer Networking Networking.

networks develop

world wide web Tim Berners-Lee creates HTML - 1991 World-Wide Web (WWW) is released by CERN http://cern.web.cern.ch/CERN/ in Geneva, Switzerland. British researcher, Tim Berner-Lee creates HyperText Markup Language (HTML), which use specifications for URLs or Uniform Resource Locators, for web addresses. (45) Tim Berners-Lee creates HTML - 1991

John Perry Barlow What about barlow? songwriter for grateful dead, co-founder of EFF, Angel of death for the copyright industry. focused on the implications of the breakdown of physical impediments to copying breaking the bottle that contains the content recognition that law has a huge social element to it, law is for the law abiding, but no one wants to be a fool, everyone who isn’t one hates a free loader, but some point comes when free loading is so widespread and so tolerated that you are a fool not to join the party. This is a form of tragedy of the commons. copyright dead efforts to shore it up akin to rearranging deck chairs on the titanic Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

Shawn Fanning The peer to peer file-sharing story starts with Napster; Shawn Fanning, 1999, an 18 year old student who dropped out after his freshman year to develop his software idea, Napster, one big computer; just like wiring computers together in my classroom, just like the file search function on your computer only with this search instrument you could search everyone who had napster running on the net. Napster, named for his nappy hair and his nickname, the napster, its symbol a devilish fellow with earphones, the fastest growing program in the history of the net, a million users in the first month for which stats were kept, 5 million in less than a year, 25 million before it was shut down. While it was going it was like a riot, plate glass windows of the record stores shut down; from point of view of consumers of music, a time of joy; from view of owners of intellectual property in music, a riot; piracy.

The Napster

iMesh Gnutella Grokster Kazaa eDonkey WinMX Limewire Blubster

Thomas Jefferson like a candle like a song like second life like wikipedia "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. “That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." - Thomas Jefferson

Open Code Code as Knowledge Code as LAW

Bit Torrent analogy of sharing a book at a table. One person has the book, what is the most efficient way to copy it?

public domain common wealth in balance with proprietary domain corporate wealth These are nuclei of power. They must attract each other, dance with each other like the The first famous person to use the peace symbol was pacifist Bertrand Russell, a world famous mathematician.  His group used it during a protest march in 1958 for nuclear disarmament in Aldermaston, England.  Activist Gerald Holtom, who designed the symbol, based it on the international semaphore alphabet.  This system uses flag signals in the place of letters like a code.  The peace sign is actually the flag signals for N and D superimposed upon each other and it stands for Nuclear Disarmament.

charles fried It is the rock-bottom, indigestible fact of each person’s lonely individuality, his ultimate responsibility for his own beliefs, judgments and choices that grounds our demand that we be free.

tao teh ching To lead men and serve heaven, weigh the worth Of the one source: Use the single force Which doubles the strength of the strong By enabling man to go right, disabling him to go wrong, Be so charged with the nature of life that you give your people birth, That you mother your land, are the fit And ever-iving root of it: The seeing.root, whose eye is infinite.