A Book Review Of Code And Other Laws Of Cyberspace

from the more-timely-than-you-might-think dept

Twenty years ago, Larry Lessig published the original version of his book Code and Other Laws of Cyberspace. A few years later, he put out a very updated version called Code 2.0. Both versions are classics and important pieces of the history of the internet -- and are especially interesting to look at now that issues of how much "code" is substituting as "law" have become central to so many debates. When the original book was published, in 1999, Mike Godwin wrote a review for a long defunct journal called E-Commerce Law Weekly. Given the importance of these issues today, we're republishing a moderately updated version of Godwin's original 1999 review. It's interesting to view this review through the lens of the past 20 years of history that we now have lived through.

Imagine that you could somehow assemble the pioneers of the Internet and the first political theorists of cyberspace in a room and poll them as to what beliefs they have in common. Although there would be lots of heated discussion and no unanimity on any single belief, you might find a majority could get behind something like the following four premises:

1. The Internet does not lend itself to regulation by governments.
2. The proper way to guarantee liberty is to limit the role of government and to prevent government from acting foolishly with regard to the Internet.
3. The structure of the Internet—the "architecture" of cyberspace, if you will—is politically neutral and cannot easily be manipulated by government or special interests.
4. The expansion of e-commerce and the movement of much of our public discourse to the online world will increase our freedom both as citizens and as consumers.

But what if each of these premises is at best incomplete and at worse false or misleading? (Leave aside the likelihood that they're not entirely consistent with one another.) What if the architecture of the Net can be changed by government and the dynamism of e-commerce? What if the very developments that enhance electronic commerce also undermine political freedom and privacy? The result might be that engineers and activists who are concerned about preserving democratic values in cyberspace were focusing their efforts in the wrong direction. By viewing governmental power as the primary threat to liberty, autonomy, and dignity, they'd blind themselves to the real threats—threats that it may require government to block or remedy.

It is precisely this situation in which Harvard law professor Lawrence Lessig believes we find ourselves. In his new book Code and Other Laws of Cyberspace (Basic Books, 1999), Lessig explores at length his thesis that the existing accounts of the political and legal framework of cyberspace are incomplete and that their very incompleteness may prevent us from preserving the aspects of the Internet we value most. Code is a direct assault on the libertarian perspective that informs much Internet policy debate these days. What's more, Lessig knows that he's swimming against the tide here, but he nevertheless takes on in Code a project that, although focused on cyberspace, amounts to nothing less than the relegitimization of the liberal (in the American sense) philosophy of government.

It is a measure of Lessig's thoroughness and commitment to this project that he mostly succeeds in raising new questions about the proper role of government with regard to the Net in an era in which, with the exception of a few carveouts like Internet gambling and cybersquatting, Congress and the White House have largely thrown up their hands when it comes to Internet policy. While this do-nothingism is arguably an improvement over the kind of panicky, ill-informed interventionism of 1996's Communications Decency Act (which Lessig terms "[a] law of extraordinary stupidity" that "practically impaled itself on the First Amendment"), it also falls far short, he says, of preserving fundamental civil values in a landscape reshaped by technological change.

Architecture Is Not Static

To follow Lessig's reasoning in Code, you need to follow his terminology. This is not always easy to do, since the language by which he describes the Internet as it is today and as it might someday become is deeply metaphorical. Perhaps the least problematic of his terms is "architecture," which Lessig borrows from Mitchell Kapor's Internet aphorism that "architecture is politics." Although his use of the term is a little slippery, Lessig mostly means for us to understand the term "architecture" to refer to both (a) the underlying software and protocols on which the Internet is based and (b) the kinds of applications that may run "on top of that Internet software infrastructure." And while the first kind of architecture is not by itself easily regulable, Lessig says, the second kind might make it so—for example, by incorporating the various monitoring and identification functions that already exist on proprietary systems and corporate intranets.

More difficult to get a handle on is his use of the word "code," which seems to expand and contract from chapter to chapter. At some bedrock level, Lessig means "code" to signify the software and hardware that make up the Internet environment—akin to the sense of "code" that programmers use. But he is also fond of metaphoric uses of "code" that muddy the waters. "Code is law," Lessig writes at several points, by which we may take him to mean that the Internet's software constrains and shapes our behavior with as much force as law does. And of course the book's title equates code and law.

Elsewhere, however, he writes that code is something qualitatively different from law in that it does not derive from legislative or juridical action or community norms, yet may affect us more than laws or norms do, while providing us less opportunity for amendment or democratic feedback. It does not help matters when he refers to things like bicycle locks as "real-world code." But if you can suspend your lexical disbelief for a while, the thrust of Lessig's argument survives any superficial confusions wrought by his terminology.

That argument depends heavily on the first point Lessig makes about Internet architecture, which is simply that it's malleable—shapeable by human beings who may wish to implement an agenda. The initial architecture of the Internet, he says correctly, emphasized openness and flexibility but provided little support for identifying or authenticating actual individuals or monitoring them or gathering data about them. "On the Internet it is both easy to hide that you are a dog and hard to prove that you are not," Lessig writes. But this is a version of the Internet, he says, that is already being reshaped by e-commerce, which has reasons for wanting to identify buyers, share financial data about them, and authenticate the participants in transactions. At the center of e-commerce-wrought changes is the technology of encryption, which, while it has the ability to render communications and transactions in transit, also enables an architecture of identification (through, e.g., encryption-based certification of identity and digital signatures).

The key to the creation of such an architecture, Lessig writes, is not that a government will require people to hold and use certified IDs. Instead, he writes, "The key is incentives: systems that build the incentives for individuals voluntarily to hold IDs." Lessig adds, "When architectures accommodate users who come with an ID installed and make life difficult for users who refuse to bear an ID, certification will spread quickly."

But even if you don't believe that e-commerce alone will establish an architecture of identification, he writes, there are reasons to believe that government will want to help such an architecture along. After all, a technology that enables e-commerce merchants to identify you and authorize your transactions may also have an important secondary usefulness to a government that wants to know where you've been and what you've been up to on the Internet.

And if the government wants to change the technological architecture of the Internet, there is no reason to believe it would not succeed, at least to some extent. After all, Lessig says, the government is already involved in mandating changes in existing architectures in order to effectuate policy. Among the examples of this kind of architectural intervention, he says, are (a) the Communications Assistance to Law Enforcement Act of 1994, in which Congress compelled telephone companies to make their infrastructure more conducive to successful wiretaps, (b) Congress's requiring the manufacturers of digital recording devices to incorporate technologies the extent to which perfect copies can be made, and (c) the requirement in the Telecommunications Act of 1996 that the television industry design and manufacture a V-chip to facilitate individuals' ability to automatically block certain kinds of televised content.

With an identification architecture in place, Lessig argues, what previously might seem to be an intractable Internet-regulation problem, like the prohibition of Internet gambling, might become quite manageable.

The Government and Code

An account of social activity on the Internet that deals solely with the legal framework is inadequate, Lessig argues. In Lessig's view, the actual "regulators" of social behavior come from four sources, each of which has its own dynamic. Those sources of social constraints are the market, the law, social norms, and architecture—here "architecture" means "the constructed environment in which human beings conduct their activities). "But these separate constraints obviously do not simply exist as givens in a social life," Lessig writes. "They are neither found in nature nor fixed by God," he writes, adding that each constraint "can be changed, although the mechanism of changing each is complex." The legal system, he says, "can have a significant role in this mechanics."

So can the open-source movement, which Lessig refers to as "open code." The problem with "architectural" constraints, and the thing that distinguishes them from any other kind, is that they do not depend on human awareness or judgment to function. You may choose whether or not to obey a law or a social norm, for example, and you may choose whether or not to buy or sell something in the market, but (to use the metaphor) you cannot enter a building through a door if there is no door there, and you cannot open a window if there is no window. Open code—software that is part of a code "commons," that is not owned by any individual or business, and that can be inspected and modified—can provide a "a check on state power," Lessig writes, insofar as it makes any government-mandated component of the architecture of the Net both visible to, and (potentially) alterable by, citizens. Open code, which still makes up a large part of the Internet infrastructure, is thus a way of making architecture accountable and subject to democratic feedback, he argues. "I certainly believe that government must be constrained, and I endorse the constraints that open code imposes, but it is not my objective to disable government generally," Lessig writes. But, he adds, "some values can be achieved only if government intervenes."

A Jurisprudence of Cyberspace?

One way that government intervenes, of course, is through the court system. And as Lessig notes, it may be the courts that are first called upon to interpret and preserve our social values when technology shifts the effective balance of rights for individuals. A court faced with such a shift often must engage in "translation" of longstanding individual rights into a new context, he says.

Take wiretapping, for example. Once upon a time, it was not so easy for law-enforcement agents to get access to private conversations. But once telephones had become commonplace and, as Lessig puts it, "life had just begun to move onto the wires," the government began to tap phones in order to gather evidence in criminal investigations. Does wiretapping raise Fourth Amendment concerns? The Supreme Court first answered this question in Olmstead v. United States (1928)—the answer for the majority was that wiretapping, at least when the tap was places somewhere other than on a tappee's property, did not raise Fourth Amendment issues since the precise language of the Fourth Amendment does not address the non-trespassory overhearing of conversations. That is one mode of translation, Lessig writes—the court preserved the precise language of the Fourth Amendment in a way that contracted the scope of the zone of privacy protected by the Fourth Amendment.

Another, and arguably preferable approach, Lessig says, would be to follow Justice Louis Brandeis's approach in his dissent in Olmstead—an approach that preserves the scope of the privacy zone while departing from a strict adherence to the literal language of the Amendment. Brandeis's dissent, arguing that the capture of private conversations does implicate the Fourth Amendment, was adopted by the Supreme Court forty years after Olmstead.

But what if technology raises a question for a court for which it is not clear which interpretative choice comes closer to preserving or "translating" the values inherent in the Bill of Rights? Borrowing from contract law, Lessig calls such a circumstance a "latent ambiguity." He further suggests—this is perhaps the most unfashionable of his arguments—that, instead of simply refusing to act and referring the policy question to the legislature, courts might simply attempt to make the best choice at preserving constitutional values in the hope that its choice will at minimum "spur a conversation about these fundamental values...to focus a debate that may ultimately be resolved elsewhere."

Internet Alters Copyright and Privacy

All this begins to seem far afield from the law of cyberspace, but Lessig's larger point is that the changes wrought by the Internet and related technologies are likely to raise significant "latent ambiguity" problems. He focuses on three areas in which technologies raise important questions about values but for which a passive or overliteral "translation" approach would not be sufficient. Those areas are intellectual property, privacy, and freedom of speech. In each case, the problem Lessig sees is one that is based on "private substitutes for public law"—private, non-governmental decision making that undercuts the values the Constitution and Bill of Rights were meant to preserve.

With intellectual property, and with copyright in particular, technological changes raise new problems that the nuanced established legal balances built into the law do not address. Lessig challenges the long-standing assertion, in Internet circles, at least, that the very edifice of copyright law is likely to crumble in the era of the Internet, which enables millions of perfect copies of a creative work to be duplicated and disseminated for free, regardless of whether the copyright holder has granted anyone a license. In response to that perceived threat, Lessig observes, the copyright holders have moved to force changes in technology and changes in the law.

As a result, technologically implemented copyright—protection and copyright—management schemes are coming online, and the government has already taken steps to prohibit the circumvention of such schemes. This has created a landscape in which the traditional exercise of one's rights to "fair use" of another's work under the Copyright Act may become meaningless. The fact that one technically has a right to engage in fair use is of no help when one cannot engage in any unauthorized copying. Complicating this development, Lessig believes, is the oncoming implementation of an ID infrastructure on the Internet, which may make it impossible for individuals to engage in anonymous reading.

This bears some explaining. Consider that if you buy a book in a bookstore with cash, or if you read it in the library, nobody knows what you're buying and reading. By contrast, a code-based licensing scheme in which you identify yourself online in order to obtain or view a copy of a copyrighted work may undercut your anonymity, especially if there's an Internet I.D. Infrastructure already in place. The technology changes are "private" ones—they do not involve anything we'd call "state action" and thus do not raise what we normally would call a constitutional problem—but they affect public values just as deeply as traditional constitutional problems do.

A similar argument can be made about how the Internet alters our privacy rights and expectations. Because the Internet both makes our backgrounds more "searchable" and our current behavior more monitorable, Lessig reasons, the privacy protections in our Bill of Rights may become meaningless. Once again, when the searching and monitoring is done by someone other than the government, it means that the "state action" trigger for invoking the Bill of Rights is wholly absent.

What's more, such searching and monitoring, whether done by the government or otherwise, may be invisible to the person being investigated. You will have lost your right to any meaningful privacy and you will not even know it is gone until it is too late. Lessig's analysis of the problem here is convincing, even though his proposed solution, a "property regime" for personal data that would replace today's "liability regime," is deeply problematic. This is partly because it would transmute invasions of privacy into property crimes—aren't the jails full enough without adding gossips to the inmates—and partly because the distinction he draws between property regimes and liability regimes as to which benefits the individual more is (in my view) illusory in practical terms.

Perhaps Lessig's most controversial position with regard to the threat of private action to public values is the one he has explored previously in a number of articles for law reviews and popular publications—the argument that some version of the Communications Decency Act—perhaps one that required minors to identify themselves as such so as to be blocked from certain kinds of content—is less dangerous to freedom of speech than is the private use of technologies that filter content. It is important to understand that Lessig is not actually calling for a new CDA here, although that nuance might escape some legislators.

Lessig interprets such a version of the CDA, and the architecture that might be created by it, as a kind of "zoning," which he sees as preferable to private, non-legislated filtering because, he says, zoning "builds into itself a system for its limitation. A site cannot block someone from the site without that individual knowing it." By contrast, he says, a filtering regime such as (now widely regarded as moribund) Platform for Internet Content Selection enables all sorts of censorship schemes, not just nominally child-protecting ones. PICS, because it can scale to function at the server or even network level, can be used by a government to block, say, troubling political content. And because PICS support can be integrated into the architecture of the Internet, it could be used to create compelling private incentives for people to label their Internet content. Worse, he says, such blocking would be invisible to individuals.

Lessig's Arguments Hard to Harmonize

There are many problems with Lessig's analysis here, and while it would take more space than I have here to discuss them in depth, I can at least indicate what some of the problems are. First of all, it's not at all clear that one could not create a "zoning" solution that kept the zoning-excluded users from knowing—directly at least—that they have been excluded. Second, if a zoning scheme works to exclude users identified as kids, is there any reason to think it would not work equally well in excluding users identified as Iranians or Japanese or Americans? Don't forget that incipient I.D. architecture, after all.

Third, a PICS-like scheme, implemented at the server level or higher, is actually less threatening to freedom of speech than key-word or other content filtering at the server level or higher. PICS, in order to function, requires that some high percentage of the content producers in the world buy into the self-labeling scheme before a repressive government could use it to block its citizens from disapproved content. Brute-force key-word filtering, by contrast, does not require anyone else's cooperation—a repressive government could choose its own PICS-independent criteria and implement them at the server level or elsewhere.

Fourth, there's nothing inherent in the architecture of a PICS-style scheme—in the unlikely event that such a scheme were implemented—or any other server-level filtering scheme that requires that users not be notified that blocking took place. In short, you could design that architecture so that its operation is visible.

Lessig is right to oppose the implementation of anything that might be called an architecture of filtering. But one wonders why he is so intent on saying that zoning is better than filtering when both models can operate as tools of repression. Lessig answers that question by letting us know what his real worry is, which is that individuals with filtering tools will block out those who need to be heard. Says Lessig: "[F]rom the standpoint of society, it would be terrible if citizens could simply tune out problems that were not theirs.... We must confront the problems of others and think about problems that affect our society. This exposure makes us better citizens." His concern is that we will use filtering tools to bar us from that salutary exposure.

Leaving aside the question of whether his value here is one we should embrace—it is hard to harmonize it with what Brandeis in his Olmstead dissent termed "the right to be let alone"—it seems worth noting that the Internet does not really stand as evidence to Lessig's assumption that people will use their new tools to avoid confrontation with those holding different opinions. Indeed, much of the evidence seems to point the other way, as anyone who has ever viewed a long-running Internet flame war or inspected dueling Web sites can attest. Nothing forces combatants on the Internet to stay engaged, but they do anyway. The fact is, we like to argue with each other—as Deborah Tannen has pointed out, we have embraced an "argument culture." Whether that culture is healthy is another question, of course.

But even if one disagrees with Lessig's analysis of certain particular issues, this does not detract from his main argument, which is that private decision making, enhanced by new technologies and implemented as part of the "architecture" of the Internet, may undercut the democratic values—freedom of speech, privacy, autonomy, access to information—at the core of our society. Implicit in his argument is that the traditional focus of civil libertarians, which is to challenge government interventions in speech and privacy arenas, may be counterproductive in this new context. If I read him right, Lessig is calling for a new constitutional philosophy, one rooted perhaps in Mill's essay On Liberty in which government can function as a positive public tool to preserve from private encroachments of the liberty values we articulated in the Constitution. Such a philosophy would require, however, a very imaginative "translation" of constitutional values indeed to get past the objection that the Bill of Rights is only about limiting "state action."

What Code is really about is (the author's perception of) the need for political liberals to put a positive face on the role of government without embracing statism or seeming to. Although this is clearly Lessig's project, he's pessimistic about its success—in the public debate about Internet policy, he complains, the libertarians have essentially won the field. What he would like to see, perhaps, is a constitutional structure in which something like the Bill of Rights could be invoked against challenges to personal liberty or autonomy, regardless of whether the challenges come from public or private sources. The ideology of libertarianism, he believes, will interpret the changes wrought by e-commerce and other private action as a given, like the weather. "We will watch as important aspects of privacy and free speech are erased by the emerging architecture of the panopticon, and we will speak, like modern Jeffersons, about nature making it so—forgetting that here, we are nature," he writes in a somewhat forlorn final chapter.

Lessig may be right in his gloomy predictions, but let us suppose that his worst fears are not realized and a new debate does begin about the proper role of government in cyberspace and about appropriate limitations on private crafting of the online architecture. If that happens, it may be that at least some of the thanks for that development will have to go to Lessig's Code.

In 1999, Mike Godwin (@sfmnemonic) was senior legal editor of E-Commerce Law Weekly and had just recently published Cyber Rights: Defending Free Speech in the Digital Age. Currently he is a senior fellow at R Street Institute.

Filed Under: code, larry lessig, law, mike godwin

Mike Godwin Remembers John Perry Barlow

from the more-rememberances dept

Earlier today we posted Mike Masnick's post about the passing of John Perry Barlow, but Mike Godwin, who was EFF's first lawyer among other things, sent over his memories of Barlow as well, which are well worth reading.

It’s the nature of having known John Perry Barlow, and having been his friend, that you can’t write about what it means to have lost him Wednesday morning (he died in his sleep at the too-young age of 70) without writing about how he changed your life. So, I ask your forgiveness in advance if I say too much about myself here on the way to saying more about John.

I can and will testify that I had a life before I met John Perry Barlow. At the beginning of 1990 I was finishing up law school in Texas (only one more semester and then the bar exam!) and was beginning to think about my professional future (how about being a prosecutor in Houston?) and my personal future (should my long-term girlfriend and I get married?).

That was the glide path I was on before Grateful Dead lyricist John Perry Barlow, together with software entrepreneur Mitch Kapor and Sun Microsystems pioneering programmer John Gilmore, decided to start what would shortly be known as the Electronic Frontier Foundation (EFF). EFF disrupted all my inertial, half-formed plans and changed my life forever. (I didn’t, for example, become a prosecutor.) And John Perry Barlow was the red-hot beating heart of EFF.

I’d been feeling tremors in the Force before EFF even had a name, though. For reasons I can’t quite explain, I’d found ways to persuade people, including my university, to give me access to internet-capable accounts and services so that I could see the rest of the digital world as it was then represented in Usenet. I’d been a BBS hobbyist in the 1980s, but I thought I’d exhausted the BBS scene in Austin and wanted to know more of the larger digital world. Thanks to Usenet, over the Christmas break before my last semester of law school I’d become friends online with Clifford Stoll, whose book “The Cuckoo’s Egg” detailed how he had detected and helped thwart a foreign plot to hack into U.S. academic and research computers. Cliff had included his email address in the book and, as we so often did in those days, I just fired off a note to him and got to know him.

At about the same time, at my girlfriend’s urging, we spent a couple of days in San Francisco at MacWorld Expo, where I first met Mitch Kapor, who wore a Hawaiian shirt and demo’d what became for years my favorite Mac application, On Location. Other things were happening as well, and my computer-hobbyist nature— never too far in the background during my law-student years—kept me attuned to what seemed to be happening in the larger world which, as I would have framed it back then, seemed to reflect a convergence of my interests in constitutional law and cyberspace.

Just a month or two later, I came across the March 1990 issue of Harper’s Magazine, and there on the cover was this colloquy edited by Jack Hitt and Paul Tough titled, “Is Computer Hacking a Crime? (Harper’s theoretically makes a download of that old article available, but the links don’t work. You can find a transcribed version here). I wasn’t a subscriber, but I knew I had to read this. And there was Barlow – whose name I didn’t recognize – along with luminaries like Stewart Brand (former Merry Prankster, later the founder of The Whole Earth Catalog and The Whole Earth Review), Richard Stallman (founder and chief visionary of the Free Software movement that gave birth to the Linux operating system) and my new friend Cliff Stoll. They all had lots of opinions about computer hacking, but the participant whose words spoke most clearly to me was Barlow:

“BARLOW [Day 1, 11:54 A.M.]: Hackers hack. Yeah, right, but what's more to the point is that humans hack and always have. Far more than just opposable thumbs, upright posture, or excess cranial capacity, human beings are set apart from all other species by an itch, a hard-wired dissatisfaction. Computer hacking is just the latest in a series of quests that started with fire hacking. Hacking is also a collective enterprise. It brings to our joint endeavors the simultaneity that other collective organisms -- ant colonies, Canada geese -- take for granted. This is important, because combined with our itch to probe is a need to connect. Humans miss the almost telepathic connectedness that I've observed in other herding mammals. And we want it back. Ironically, the solitary sociopath and his 3:00 A.M. endeavors hold the most promise for delivering species reunion.”

This was a guy who really got it! A guy who recognized the itchiness in my brain compelling me to stay up nights finding ways to get into campus mainframes back in the 1970s, that had me tinkering with Apple II computers, with PCs and with Macs in the 1980s, and that had driven me to join the global Usenet conversation in just the last few months. Barlow saw that what we were doing with computers now (that is, in the 1980s and 1990s, at the dawn of the public internet) was essentially human—that human beings, being what they are, couldn’t stop themselves from doing it. And look at the line Barlow draws in this contribution (his first in the public colloquy in Harper’s)--it’s a line connecting human beings’ invention/discovery of fire (or “fire hacking”) with our use of computers to communicate with one another. “This is important, because combined with our itch to probe is the need to connect.” We miss our “almost telepathic connectedness.” And, as Barlow wrote, “we want it back.”

During my law school years—as well as the year I took off to serve as editor of the University of Texas student newspaper, The Daily Texan—I’d relied on computer BBSes to stay connected with people outside my studies, outside my work. Yet I’d begun to recognize that computer communications were just the same kinds of speech that our Constitution and Bill of Rights were meant to protect. I tried to persuade a favorite professor to let me write a research paper, for credit, on the First Amendment and computer bulletin boards. The professor (an immensely well-regarded First Amendment scholar, and deservedly so) shut me down, essentially saying that First Amendment doctrine was all settled, and that computer bulletin-board systems didn’t really alter fundamental questions about, say, publisher liability or what counts as speech or the press. Barlow, speaking in the Harper’s-sponsored forum on the WELL’s conferencing system, had seen something in the nascent online world that my professor had missed, and that I’d already had inklings about.

You also see in Barlow’s participation in that Harper’s forum certain long-term traits that sometimes bugged those of us who loved him. Barlow frequently yielded to the temptation to utter oracular pronouncements, to jump to conclusions before he’d done the reading. In what started out as a minor contretemps with “Acid Phreak” and “Phiber Optik,” participants who championed the exploratory hacking of computer systems—especially those of corporate giants—Barlow wrote this:

“BARLOW [Day 19, 9:48 P.M.]: Let me define my terms. Using hacker in a midspectrum sense (with crackers on one end and Leonardo da Vinci on the other), I think it does take a kind of genius to be a truly productive hacker. I'm learning PASCAL now, and I am constantly amazed that people can string those prolix recursions into something like PageMaker. It fills me with the kind of awe I reserve for splendors such as the cathedral at Chartres. With crackers like Acid and Optik, the issue is less intelligence than alienation. Trade their modems for skateboards and only a slight conceptual shift would occur. Yet I'm glad they're wedging open the cracks. Let a thousand worms flourish.”

To which Phiber Optik responded with this:

“OPTIK [Day 10, 10:11 P.M.]: You have some pair of balls comparing my talent with that of a skateboarder. Hmm... This was indeed boring, but nonetheless: [Editor's note: At this point in the discussion, Optik -- apparently having hacked into TRW's computer records -- posted a copy of Mr. Barlow's credit history. In the interest of Mr. Barlow's privacy -- at least what's left of it -- Harper's Magazine has not printed it.] I'm not showing off. Any fool knowing the proper syntax and the proper passwords can look up credit history. I just find your high-and-mighty attitude annoying and, yes, infantile.”

Barlow was stunned, just as you or I would have been, to see TRW’s version of his credit history—including its errors—published online. But the next thing he did was brilliant, and it’s not something anyone else would necessarily do. As Barlow recounts it in an article he wrote later that spring:

“I've been in redneck bars wearing shoulder-length curls, police custody while on acid, and Harlem after midnight, but no one has ever put the spook in me quite as Phiber Optik did at that moment. I realized that we had problems which exceeded the human conductivity of the WELL's bandwidth. If someone were about to paralyze me with a spell, I wanted a more visceral sense of him than could fit through a modem.

“I e-mailed him asking him to give me a phone call. I told him I wouldn't insult his skills by giving him my phone number and, with the assurance conveyed by that challenge, I settled back and waited for the phone to ring. Which, directly, it did.

“In this conversation and the others that followed I encountered an intelligent, civilized, and surprisingly principled kid of 18 who sounded, and continues to sound, as though there's little harm in him to man or data. His cracking impulses seemed purely exploratory, and I've begun to wonder if we wouldn't also regard spelunkers as desperate criminals if AT&T owned all the caves.”

This is where you see one of Barlow’s great gifts, fully as much of a talent as his lyrical wordsmithing. Barlow saw past his own feelings of fear and uncertainty and reached out to the human being behind the hacker handle, and found, in Phiber Optik, someone who deserved, in Barlow’s view, more admiration than fear. As he wrote about it in 1990, “The terrifying poses which Optik and Acid had been striking on screen were a media-amplified example of a human adaptation I'd seen before: One becomes as he is beheld. They were simply living up to what they thought we and, more particularly, the editors of Harper's, expected of them. Like the televised tears of disaster victims, their snarls adapted easily to mass distribution.”

Barlow also wrote this:

“Months later, Harper's took Optik, Acid and me to dinner at a Manhattan restaurant which, though very fancy, was appropriately Chinese. Acid and Optik, as material beings, were well-scrubbed and fashionably-clad. They looked to be dangerous as ducks.”

They looked to be dangerous as ducks. I’d have given a toe, or maybe even finger, to have written a sentence that apt.

Barlow’s larger insight—that maybe our sense of the threats of computers and the internet and the first generation of human beings to grow up with super-duper computer skills was just another iteration of our human fear of change and the new—informed Barlow’s co-founding of a new civil-liberties organization, originally pitched as the “the Computer Liberty Foundation.” The other co-founders—Mitch Kapor and John Gilmore, themselves breathtakingly remarkable people just as much as Barlow was (here I first typed “as Barlow is” because he still feels so present)—recognized that “Computer Liberty Foundation” was a bit clunky. Barlow, the poet who’d also been a rancher in Pinedale, Wyoming, coined the name that stuck: Electronic Frontier Foundation.

EFF, which was then primarily just Barlow, Kapor, and Gilmore, eventually decided they needed an in-house lawyer to help with the legal cases that were bubbling up with increasing frequency. I’d already been active in publicizing those cases, starting as a law student, then as a recent law graduate, even as I was studying for the Texas bar exam. Marc Rotenberg, then head of the Washington office of the Computer Professionals for Social Responsibility, had reached out to me as a possible staff member; CPSR was the recipient of EFF’s first grant for cyberspace legal research, and they needed to staff up. Rotenberg flew me to EFF’s first big press conference—this at the Washington Press Club—and it was there that I met Kapor (again) and Barlow for the first time. I got to hang out with these guys not just that day but also in the evening at a dinner meeting that included other people who’d later be EFF supporters and even board members. The main thing I remember from the dinner meeting is talking to Barlow—he’d called himself an “information mystic” (I think he was just trying out the term for size), and I piped up about Claude Shannon and information theory and my understanding of information as something more scientific than mystical. Of course, Barlow already knew about Shannon, about Teilhard de Chardin’s notion of the “noosphere,” about Aristotle’s precursor concept of “substantial form.” I knew instantly that I would get along with this guy.

I got recruited, not just by CPSR, but by EFF, and I became EFF’s first staff counsel (and, in fact, EFF’s first full-time employee). The nine years I spent at EFF were my first nine years as a lawyer, and every single one of those years was a year of revelation, always informed by Barlow’s openness, adventurousness and willingness to grapple with new problems and new ideas.

Ultimately, Barlow didn’t think every looming problem in cyberspace was no more dangerous than a duck. Like the rest of us at EFF (which began to expand in the following years), Barlow recognized the fear of encryption technology, the fear of computer-facilitated copyright infringement, the fear of “cyberporn” as the kind of neophobia so common in eras of technological change. When Congress passed the Communications Decency Act in 1996, which would have imposed massive censorship on the now-blooming internet, he channeled the anxiety all of us were feeling into his crafting of “A Declaration of the Independence of Cyberspace.”

I confess I didn’t much like this Declaration when Barlow shared it and later published it. With what Barlow admitted was “characteristic grandiosity,” the Declaration asserted that traditional, terrestrial governments “have no sovereignty where we gather” (that is, in cyberspace), and that “the global social space we are building” is “naturally independent of the tyrannies you seek to impose upon us.” By then I was already deep in my work for EFF on the constitutional challenge to the Communications Decency Act, and the hard fact that haunted my days was how fragile this new global social space was, and how little independence of the tyrannies it might ultimately have.

I was missing the forest for the trees. The simple fact is this: Barlow inspired a new generation of lawyers and activists to devote time and energy into preserving the great new world the internet and other digital technologies was giving us. As I wrote earlier this year in an essay for Cato Unbound:

“Here I must share some late-breaking news from the 1990s: the actual cyber-activists of that period (and here I must include myself) did not interpret Barlow’s cri de coeur as political philosophy. Barlow, best known prior to his co-founding of the Electronic Frontier Foundation as a songwriter for the Grateful Dead, was writing to inspire activism, not to prescribe a new world order, and his goal was to be lyrical and aspirational, not legislative. Barlow wrote and published his “Declaration” in the short days and weeks after Congress passed, and President Clinton signed into law, a telecommunications bill that aimed, in part, to censor the internet. No serious person – and certainly not the Electronic Frontier Foundation and other organizations that successfully challenged the Communications Decency Act provisions of that bill – believed that cyberspace would be “automagically” independent of the terrestrial world and its governments. Barlow’s “Declaration” is best understood, as Wired described it two decades later, as a “rallying cry.” Similarly, nobody thinks “The Star-Spangled Banner” or “America the Beautiful” or “This Land Is Your Land” is a constitution. (And of course the original Declaration of Independence isn’t one either.)”

Barlow had written his own inspirational anthem, and I’d like to think he’d particularly appreciate my comparing it to Woody Guthrie’s great song.

I can say one more thing about Barlow—about seeing him once again, for the last time in person, when a couple of friends and I visited him in spring of 2016 at John Gilmore’s house, where Barlow was continuing his long efforts at recovery from a heart attack and other problems that had reduced his mobility and energy but had not diminished his fundamentally optimistic outlook—optimism not just for himself and those he loved but for all of us. It was good to talk to John Perry Barlow that evening, to chat about nothing in particular, to reminisce a little. I had loved the man pretty much from the start and, circumstances being what they were, it was not the simple love of hero-worship from an adoring fan. Instead, it was the complicated, tricky love for someone with whom I got to share so many great moments of my life over many great (and not-so-great) years. It’s the love you end up having for lifelong friends, or for family members you’ve occasionally quarreled with over the years, but with whom you’ve shared so much, and with whom you’ve been able to do so much good work, that even when you disagree with them, you know ultimately all will be forgiven.

I can tell you what it felt like to sit down and catch up a bit with John Perry Barlow that last time. It felt like coming home.

Mike Godwin (mnemonic@gmail.com) is a Distinguished Senior Fellow with R Street Institute.

Filed Under: john perry barlow, mike godwin
Companies: eff

When Godwin's Law Met The Streisand Effect

from the take-it-down,-you-nazi dept

Okay, here's a fun post for a Friday evening: Earlier this week, I was at World Hosting Days, where I gave a keynote speech about the importance of CDA 230 and things like intermediary liability protections -- and why they are so important to protecting free speech online. The emcee of the event was Mike Godwin, who (among his many, many accomplishments over the years as an internet lawyer and philosopher) coined Godwin's Law. The organizers of the event, realizing that they had the guy who coined Godwin's Law and the guy (me!) who coined the Streisand Effect in the same place at the same time, thought it might be fun to have the two of us talk about these two memes.

And, voila. Here's the video of the two of us discussing it. We're also planning to release this as a podcast soon, so if you already listen to the Techdirt podcast and want to wait for that, feel free... But, if you want to skip ahead and watch/listen now, go for it.

Filed Under: godwin's law, mike godwin, streisand effect

Gaijin Entertainment Demands Gaijin.com, Which Predates Them And Doesn't Infringe Their Trademark

from the trademark-abuse dept

In the latest example of extreme trademark abuse, video game company Gaijin Entertainment is not just claiming a trademark over "gaijin" but using it to demand the domain name Gaijin.com, which was registered by Brandon Harris back in May of 1995. The legal nastygram that the company sent is quite incredible, suggesting that Harris registered the domain later and is somehow infringing on their mark:

It came to our attention that you registered and maintain a website www.gaijin.com (“Infringing Website”) that infringes Gaijin Mark. By maintaining and offering to public your content via the website, i.e., Infringing Website, having the same domain as Gaijin Mark, you create consumer confusion and mistake as to the source, sponsorship and/or affiliation of the Infringing Website and Gaijin, thereby infringing Gaijin Mark.

Luckily, Harris has Mike Godwin (yes, that Mike Godwin, so get your Nazi references in early) as a lawyer, and he quickly sent back the following excellent response.

Dear Mr. Goldstein-Gureff,

Please be advised that my client, Brandon Harris, disputes your trademark-infringement claim in every particular.

That is the most polite way to state how vigorously we dispute your attempt to assert flat ownership of the word “gaijin,” a word so well-established in English that it is an entry in the Oxford English Dictionary.

Currently, I’m advising my client to publicize your demand letter, so that the entire game-consuming public will be made aware of your client’s overreaching trademark assertions. In addition, we will of course continue to make clear that Brandon Harris’s website in no way gives rise to any kind of marketplace confusion of the sort that American trademark law is designed to address.

In the interests of allowing you and your client to gracefully retract your claim, we have chosen to refrain from publicizing your demand until you respond to this message, provided that you respond no later than close-of-business Monday. Since I am currently in DC, Eastern time applies.

–Mike Godwin

P.S. I understand that your clients are possibly Russian nationals. You may wish to explain to them the scope and limitations of the Lanham Act in the United States.

–MG

Obviously, they did not retract the claim in time, and thus, the trademark bullying is now public.

Filed Under: brendan harris, domains, gaijin, mike godwin, trademark bullies, udrp
Companies: gaijin entertainment

Wikipedia Threatens Artists Over Domain Name Of Art Project Involving Wikipedia

from the openness? dept

First up, a disclosure: back in college, Nathaniel Stern, one of the main characters in this post, was a very close friend of mine -- someone I hung out with a lot. After college, though, he and I mostly lost touch -- other than a random email or Facebook message back and forth. The last time I heard from him, in fact (and the first time I'd heard from him in at least two years), was when he sent out an email alerting me to the fact that he (along with one other artist) had launched a project called WikipediaArt. The idea was to create an art project on Wikipedia, but which stayed within Wikipedia's rules. Nat's become a pretty well-known artist over the years, often experimenting in new media art, and the project itself struck me as quite interesting, though I doubted it was even remotely possible, given the way Wikipedia works. You knew that it would get deleted. However, I never expected the folks behind Wikimedia to go legal on them.

But, that's what's happened.

Both the EFF and Paul Levy (who has agreed to represent Wikipedia Art) have alerted us to the news that Wikipedia is demanding the artists hand over their domain by threatening legal action. As the EFF and Levy point out, this is a rather surprising move by the Wikipedia foundation, who should know better than to make a bogus demand on a URL just because it includes Wikipedia's name in it:

Wikipedia should know better. There is no trademark or cybersquatting issue here. First, the site is entirely noncommercial, which puts it beyond the reach of U.S. trademark law. Moreover, even if U.S. trademark laws somehow reached this noncommercial activity, the artists' use of the mark is an obvious fair use. Wikipedia Art uses the "Wikipedia" mark to refer to the project: a critical comment on Wikipedia and creativity. The disputed site describes the project, provides links to media coverage of the project, and so on. It does not use any more of the Wikipedia mark than need be; for example, it doesn't even use the Wikipedia logo. Simply put, the site does not purport to be, nor does it look anything like, Wikipedia and the artists have done nothing to suggest Wikipedia endorses their work. Finally, the creators are engaging in precisely the kind of critical speech sheltered by the First Amendment.

While the EFF does note how odd it is for Wikipedia to be taking these actions, it leaves out the fact that Wikipedia is represented by Mike Godwin, (of Godwin's Law fame), who was also the first EFF in-house lawyer and absolutely should know better than this. Hopefully Godwin and Wikipedia come to their senses, apologize and back down.

Filed Under: fair use, mike godwin, nathaniel stern, paul levy, trademark, wikipedia