The Law
A Wayward Engineer’s Status Report

Brent C.J. Britton
15 March 2007
The MIT Media Lab
Distinguished Alumni Lectur...
Outline
•
•
•
•
•
•

Basis of my research
Findings re. the law
Findings re. lawyers
Intellectual property
Future law
Recen...
The Law
A Wayward Engineer’s Status Report

The Basis of my
Research
Research
• Primary: Can the law be hacked?
• Secondary: Impedance mismatches
• Stallman
• Negroponte

• Tertiary: entrepre...
A Brief Retrospective
•
•
•
•
•
•

S.M.’91,The Media Laboratory
Electronic Frontier Foundation
J.D.’94, Boston University ...
Florida

15 March 2007

6
The Law
A Wayward Engineer’s Status Report

Findings: The Law
Origins of law
• Emergent property of biology
•
•
•
•
•
•
•
•

Brains
Minds
Will
Action
Risks
Duties
Rights
Law

• The law...
Origins of law
• Apparently universal property of society
• Robert Murdock, Ethnographic Atlas, University
of Pittsburg Pr...
The Law is Government
• How to run the railroad?
• Anarchy, dictatorship, monarchy, oligarchic
plutocracy…
• The American ...
The Law: What Government Does
• Government exists to cultivate capitalism
•
•
•

Level the playing field, enforce the rule...
The Law: Examples
• Proactive: Intellectual Property
• Value recovery on R&D
• Encourage innovation
• Enable competition
•...
The Law: Check all that apply
• Your behavior is currently subject to a library
full of laws
• Federal, state, county, mun...
The Law is Software
•
•
•
•
•
•
•
•

The code that runs civilized society
Constitutional framers = kernel coders
Legislatu...
The Law is Software

15 March 2007

15
The Law is Software
• Constantly tested against new facts and
circumstances
• Life is messy
• We are miraculous insane ang...
Contracts are software too
• Admit it, you do not even read the things you click
“I agree” on
• Contracts are private law
...
The Law & Ethics
• It is more profitable to be ethical than to cheat.

• Avoid things that make people want to sue you
any...
The Law is Avoidable
• Reality isn’t a VR
• The only unbreakable laws are the laws of
physics

• The law can be hacked by ...
The Law
A Wayward Engineer’s Status Report

Findings: Lawyers
The role of lawyers
• Conduit from citizenry to the state for redress
of grievances
• Standard-bearers, umpires, artful to...
Observations about lawyers
• They like latin – res ipsa loquitor
• They are extremely ethical
• Personalities cluster arou...
The Law
A Wayward Engineer’s Status Report

Intellectual Property
Elegant code by witty programmers

The Congress shall have power to promote the
Progress of Science and useful Arts, by
se...
Basic I.P. Summary

Protects

Obtained

Duration

Trademark

Brands (names
of companies,
products, and
services)

Use and
...
Basic I.P. Summary

Protects

Obtained

Duration

Trademark

Brands (names
of companies,
products, and
services)

Use and
...
Basic I.P. Summary

Protects

Obtained

Duration

Trademark

Brands (names
of companies,
products, and
services)

Use and
...
Basic I.P. Summary

Protects

Obtained

Duration

Trademark

Brands (names
of companies,
products, and
services)

Use and
...
Trouble with Trademarks
•

Must reconcile the following inharmonious
regimes:
•
•
•

Corporate Name Reservation at Secreta...
Patents

15 March 2007

30
The Three Tyrannies that
interfere with ROI on R&D
•

The Tyranny of Dumb People
•

•

The Tyranny of Smart People
•
•

•
...
Infringement

How to
infringe?

Independent
discovery
defense?

Remedies

Trademark
(state & fed)

Use similar mark
in con...
Copyright Infringement

•

Does West Side Story infringe Romeo & Juliet?

•

Did My Sweet Lord infringe He's So Fine?

15 ...
Fair Use
"And so when you step,
step with care and great tact.
And remember that life's
a great balancing act."
- Dr. Seus...
Four Fair Use Factors
1.

Nature of the original work
•

2.

Purpose of the accused work
•

3.

Educational, non-profit, p...
Copyright Infringement
vs. Plagiarism

•

Myth: Citation undoes infringement
•
•
•

•

Fact: You copy, you infringe, wheth...
Avoid litigation

15 March 2007

37
IP issues

•

IP ownership is counterintuitive

•

Know what you own; own what you know.TM

•

In every context, assume no...
When you Assume…

15 March 2007

39
At What Price Assumptions?
•

Rolls Royce
•
•

Vickers owned RR car business
Sold to Volkswagen in 1998
•

•

Oops…no trad...
The Law
A Wayward Engineer’s Status Report

Future Law
The Law
A Wayward Engineer’s Status Report

Lawing the Future
Pressing Issues
• Why is File-swapping Unlawful?
• Bittorrent, youtube
• The internet routes around the “damage” of
censor...
Future Legal Issues
• The law in VR’s
• The code really is the code
• Second Life has coded away fair use

• Jurisdiction ...
Proposed lines of research
• Automating legal research
• Encode the code

• Rethinking intellectual property
• Theory vs. ...
The Law
A Wayward Engineer’s Status Report

Legal Headlines
Some headlines, week of 12 March 2007
• RIAA sues stroke victim
• Viacom sues YouTube/Google for copyright
infringement on...
RIAA Sues Stroke Victim

15 March 2007

48
RIAA Sues Stroke Victim
• Clients hate lawyers, except their own lawyers,
whom they adore.
• From a legal blog about RIAA ...
Viacom v. YouTube

15 March 2007

50
I. Lewis “Scooter” Libby guilty

15 March 2007

51
Dunn, others, avoid jail time

15 March 2007

52
Nortel executives charged

15 March 2007

53
Dying patient loses pot case

15 March 2007

54
Astronaut charged

15 March 2007

55
Thank you

15 March 2007

56
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An engineer's perspective on law

  1. 1. The Law A Wayward Engineer’s Status Report Brent C.J. Britton 15 March 2007 The MIT Media Lab Distinguished Alumni Lecture
  2. 2. Outline • • • • • • Basis of my research Findings re. the law Findings re. lawyers Intellectual property Future law Recent headlines 15 March 2007 2
  3. 3. The Law A Wayward Engineer’s Status Report The Basis of my Research
  4. 4. Research • Primary: Can the law be hacked? • Secondary: Impedance mismatches • Stallman • Negroponte • Tertiary: entrepreneur-ish-ness 15 March 2007 4
  5. 5. 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 15 March 2007 5
  6. 6. Florida 15 March 2007 6
  7. 7. The Law A Wayward Engineer’s Status Report Findings: The Law
  8. 8. 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. 15 March 2007 8
  9. 9. 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. 15 March 2007 9
  10. 10. The Law is Government • How to run the railroad? • Anarchy, dictatorship, monarchy, oligarchic plutocracy… • The American Way seems to work OK • Constitutional, federated, democratic, capitali st 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. 15 March 2007 10
  11. 11. 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 15 March 2007 11
  12. 12. 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 15 March 2007 12
  13. 13. 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. 15 March 2007 13
  14. 14. 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 15 March 2007 14
  15. 15. The Law is Software 15 March 2007 15
  16. 16. 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. 15 March 2007 16
  17. 17. 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. 15 March 2007 17
  18. 18. 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 15 March 2007 18
  19. 19. 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 15 March 2007 19
  20. 20. The Law A Wayward Engineer’s Status Report Findings: Lawyers
  21. 21. 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. 15 March 2007 21
  22. 22. 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. 15 March 2007 22
  23. 23. The Law A Wayward Engineer’s Status Report Intellectual Property
  24. 24. 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) 15 March 2007 24
  25. 25. 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 semioptional registration Life of author plus 70 years or 95/120 Trade Secret Valuable secrets Keeping secret As long as secret 15 March 2007 25
  26. 26. 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 semioptional registration Life of author plus 70 years or 95/120 Trade Secret Valuable secrets Keeping secret As long as secret 15 March 2007 26
  27. 27. 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 semioptional registration Life of author plus 70 years or 95/120 Trade Secret Valuable secrets Keeping secret As long as secret 15 March 2007 27
  28. 28. 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 semioptional registration Life of author plus 70 years or 95/120 Trade Secret Valuable secrets Keeping secret As long as secret 15 March 2007 28
  29. 29. 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 15 March 2007 29
  30. 30. Patents 15 March 2007 30
  31. 31. The Three Tyrannies that interfere with ROI on R&D • The Tyranny of Dumb People • • The Tyranny of Smart People • • • Fulton's Folly Charles H. Duell, 1899 Sextus Julius Frontinus, c.100 The Tyranny of the Inventor • • Standing on shoulders of giants Failure can curb the ego 15 March 2007 31
  32. 32. 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 15 March 2007 32
  33. 33. Copyright Infringement • Does West Side Story infringe Romeo & Juliet? • Did My Sweet Lord infringe He's So Fine? 15 March 2007 33
  34. 34. Fair Use "And so when you step, step with care and great tact. And remember that life's a great balancing act." - Dr. Seuss 15 March 2007 34
  35. 35. Four Fair Use Factors 1. Nature of the original work • 2. Purpose of the accused work • 3. Educational, non-profit, parody, commercial? Amount of original work copied into the accused work • 4. Level of creativity Heart of the original work? Effect on market for original work 15 March 2007 35
  36. 36. Copyright Infringement vs. 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?" 15 March 2007 36
  37. 37. Avoid litigation 15 March 2007 37
  38. 38. 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) 15 March 2007 38
  39. 39. When you Assume… 15 March 2007 39
  40. 40. At What Price Assumptions? • Rolls Royce • • Vickers owned RR car business Sold to Volkswagen in 1998 • • Oops…no trademark! • • • For $800 million 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…”) 15 March 2007 40
  41. 41. The Law A Wayward Engineer’s Status Report Future Law
  42. 42. The Law A Wayward Engineer’s Status Report Lawing the Future
  43. 43. 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 15 March 2007 43
  44. 44. 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? 15 March 2007 44
  45. 45. 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 15 March 2007 45
  46. 46. The Law A Wayward Engineer’s Status Report Legal Headlines
  47. 47. 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 15 March 2007 47
  48. 48. RIAA Sues Stroke Victim 15 March 2007 48
  49. 49. 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 15 March 2007 49
  50. 50. Viacom v. YouTube 15 March 2007 50
  51. 51. I. Lewis “Scooter” Libby guilty 15 March 2007 51
  52. 52. Dunn, others, avoid jail time 15 March 2007 52
  53. 53. Nortel executives charged 15 March 2007 53
  54. 54. Dying patient loses pot case 15 March 2007 54
  55. 55. Astronaut charged 15 March 2007 55
  56. 56. Thank you 15 March 2007 56

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