Law in the Internet Society

Notes 10-30-08

If you find anything erroneous or misspelled, please correct it. Thanks, Ted

Obama recognizes that he was elected by the net, and his administration will bring a very real awareness that he was elected by the net. The net, rather than TV was the means by which his political power was created.

In 1960, television became the thing responsible for the spread of political power. This caused a centralization of power. Now, the net is taking over as the source of political power, and Obama will the first leader that recognizes that his power has come from the net, and by this time next week, he will have been elected by this net.

Question: does Obama’s offer of a CTO position in his administration have meaning, or just a political offer. Moglen: Neither, it is just an attractive job. It would not be wise to accept, it is just a czardom. We know something about the 5000 jobs that people are looking at, but what is truly important is that next week we will know the balance of power (in terms of how many votes the democrats have in the senate – 60 are needed to defeat a filibuster). This will determine what happens in the political world; this will determine what kind of president Obama will be, and we can’t know until we see what happens. We will talk about this next week.

Back to the TV and the 60s. When the TV came into existence, it pushed everything out of the way. Originally, 3 network buys would road block the other candidates. Politics simply became buying television advertising. The problem Clinton was trying to solve by selling the Lincoln bedroom was the problem of how to pay for advertising over 500 channels where you could not roadblock.

The republicans are having problems because they have had an enormous advantage in direct mail. The thing about the net is that it has swept away these other advantages. The republican party has lost its advantages. Hilary had the party – had all the old pieces of “the party” – Obama took all that away with a whimper. It was a community produced campaign with a superb politician at the top. He did it and it did not look even as hard as it ought to look. The power of the net is overwhelming, and with Obama’s political power, it became unstoppable. The net has established itself in politics (though the election was overdetermined by the poor record of the republicans going into the election).

We are winning here because television is losing. The old oligopoly is taking it on the chin, and we have already gone over the waterfall. The net is concentrating political power, and now we are seeing it happening.

Question: Why didn’t this happen in 2004? Answer: Difficult question to make sense of. John Kerry didn’t know anything about the net? Fear of security won the election, and the television powers used this, and it was good for them. Maybe the best answer is that it wasn’t ready yet. Wiki-space hadn’t been laid down, the mechanisms of collaboration were still being pressed on the edges. Some say that Gore should have won in 2000 by harnessing the net. But gore and his advisors were not as technically savvy as people assume he is. McCain? didn’t do it because he wasn’t pressing his people

Google Books: There was promotional activity- Google saying that they were going to copy books, and show only a few pages at a time and everything was going to be fair use and nobody was going to object. Between people who write for knowledge and the Steven king best sellers guild (American authors guild). The publishers had the best seller writers pleading for them… all just a part of negotiation, and now we know the price: 125 million, half of which goes to authors. Author’s guild and Google gets what they want, which gets into a lot of the small clauses which moglen does not want to go into.

Another organization is releasing a million books for free. Google is running a proprietary service… show a few pages, ads, and looking over your shoulder at everything you read… should this bother you?

Bigger: Bilski ( – the federal circuit court decided that Diamond was decided wrong by their bosses: the supreme court, and they will figure a lot of it later. Both of these mean the same thing, which we will figure it out later.

Obama is the big thing right now, because it shows the power of the net.

Today: Two Things… Tie up the intellectual property discussion by talking about movies; and Talk about his speech at the university of Santa Cruz

The predominant production area of goods and services contains a number of non zero cost items and with respect to those non zero marginal cost items, a number of things occurs. Distinction between functional items, which tolerate being distinguished on quality, and non-functional items, which do not admit of a “objective” judgment of quality. Free anarchist systems, consisting of bitstreams that are copyable and modifiable and distributable, provide superior versions of the former. This is anarchism – unowned production, and is terrifying to owned producers. As to the latter, although quality cannot be judged, the efficiency of anarchist distribution systems are so much more efficient that producers will move to anarchist unowned distribution systems. Record companies protest that they are defending artists from stealing, but they are defending themselves from artists that do not need record companies.

The same thing is happening to movies. Just like the record companies, they are convinced that everyone will steal from them, because they have stolen from everyone. Their distribution systems are based on theft by power. Also, they have a very capital intensive production system that they believe cannot be financed by people who simply voluntarily contribute. Counterpoint is that the Obama campaign is financed in exactly that way ( the speechwriter for obama is responsible from writing iron man). The assertion by the movie companies is JUST WRONG. 20th centaury understanding, while sophisticated for the 20th century do not remain efficient outside of the 20th centaury. Now there are incumbents in the wrong system, who should leave.

The movie companies believe that we should change every device on earth to be “digitally timid” and check with someone before displaying anything. This is not going to happen, but they have demanded reassurance that congress, the US and EU, etc. will make this happen. Back in the day, people would give each other tapes, but now this is illegal, and they demand more law… pressing the administration to give them more laws before the change of power. Thus they decided that breaking CRC was illegal under Norwegian law (to allow playing of a DVD on a Linux computer) And even placing technical information (or the location thereof) in a journalistic story in a newspaper article was “a disease” and was illegal without any reference to the constitution. It was not reucusible that the judge had received money advising how to set up the scheme that he was now declaring the attempt to break a disease. Now, of course there is no computer in the world that cannot read a DVD. Just like the record companies, they won all the battles and lost all the wars, and now continue to release DVDs, because they have to, even though they are readable anywhere.

It is a fact that anarchic distribution systems will take over from cohersive distribution. It was never a choice. We can decide how it affects things, but it will happen. The powers that be attempt to stop this legally by banning uses that were not intended. Example: sexuality in the automobile. Banning sex in an automobile would not have changed anything. Things were what they were. The efforts to stop what will happen don’t really work – prevent time from moving in the direction in which it is moving. This is not about the time scale… things will happen.

Question: but isn’t the short term what the CEOs are thinking about A: it is how they are motivated. They will say in 100 years that it would be great if everything would be free, but right now, they have to send their kids to college. Moglen has defended hackers with a much longer time scale than the people they were up against. Strange because we may have identity of interest with people that in 20 years we will have nothing in common with. All lawering surrounds the issue of time scale – what kinds of time scale all the parties are looking at. This moves at the psychological level, not the material level.

Q: how does the first amendment play into the net? A: Take my course in the spring, and we will talk about it there. It is almost possible to replace all the phenomena of copyright with the phenomena of free speech. Moglen almost got all the way there, close enough to identify the problems he doesn’t want to solve… There are two free speech rules which it might be worthwhile to protect. 1) Attribution – people’s interest in the ability to have their name attached to their speech 2) Anonymous – Can be thought of the opposite… the ability to prevent you name from being attached to anything. When Woody Allen protests the colorization of Manhattan, seems like he has the right at least to not have his name appear on the film. Anything that could be a liability rule could be a property rule, so people decided to turn them to property rules (copyright), but just because we can make them either, why make them property? This above is not complete, but is it necessary to have your liability rules be exactly everything that copyright is? Really, the question is a free speech question – the things they are supposed to do is encourage the diffusion of the sciences and useful arts… copyright should be liability rules based on free speech, not property rules which we must keep opposed to frees speech.

Private parties seek to ensure the safety of incumbents. What ownership produces under capitalism is not the best technology, but the best technology that allows the owners to make money. Example: Moglen was dealing with hardware – before the PC project by IBM, a box that would have looked like the servers of today. After several months of work, they realized that the company would never sell this, because it would destroy existing product lines, and would have killed the more expensive systems that they were making money on… they abandoned the project. Open development has no owners interests at heart, other than the interests of the users. What Microsoft makes is there, and what the free world makes is elsewhere, and people may decide for themselves

On the side of culture, what is happing is a melding of different parts of culture as production and distribution become ever cheaper. This weekend, the Christian Science Monitor went online, it will not be coming back. NY Times knows this. Newspapers are ceasing to exist. They are at the end, much as we are nearing the idea of music held in physical objects.

As the technology begins to explore free directions, and “all that was solid melts into air,” the political economy of the 21st century becomes self enforcing things that made sense in the 20th century no longer are reasonable choices.

The 30 min television drama is to expensive, making the expensive drama for 3 easily edited out ad breaks is no longer an option compared to short form push media with product placement, etc. The new medias creates space not by pushing, but because the old media crumble into dust because their option does not make any sense anymore.

Mr. Murdoch is very smart and has lots of money, but doesn’t have a lot of time left. The rest are immortal, and owned by hedge funds and idiots. Their futures are bleak.

You can simply have a blog, a concept, and someone can write simply by sending a e-mail.

And the national review fires (name unknown), and Tina brown gets publicity, but national review must still print papers, and transport them, and hand them to customers.

You no longer have to support the infrastructure for push, you simply have to have something people want, and a way to let them know where are. Push is expensive and fails, pull wins. Everyone clamors to be the one distributing the things that people they know want. Every competes to distribute for you. The net makes the things that people want buoyant. The structure and expense of push – pushing things up until they float is no longer necessary.

People are still dancing around asking whether it is happening, or has it already happened. It doesn’t matter… it is inescapable. But Hollywood has a lot of money, and will have you remain in doubt.

Do you expect not to have the library observe what you read. When Moglen was a student, this would have been a fighting words problem. Femi: We don’t get our objectionable material from the library Moglen: I don’t think about the problem like – they are going to catch me reading the wrong book Femi: I only get books from the library for class, so it doesn’t matter if teachers find out. Moglen: Again, this is the wrong assumption: that what matters about privacy is that we wish to keep some secret.

This is important and we will use it again and again. Privacy: 1) Secrecy – secret because even if exchanged between identifiable parties, its content is obscure. 2) Anonymity – Secrecy about identity: content is exposed, but exchanging parties are anonymous 3) Autonomy – Content or parties are identifiable, but I will not be coerced.

Library question is not only about Anonymity, but about disclosing the directions of my research. If the deans asked about the contents of my file cabinet, this would violate Autonomy. The issue isn’t about people seeing what you read (secrecy) or your identity (Anonymity). This is the problem talking about privacy on the internet – we are never sure if we are talking about the same thing.

This goes to human heuristics – we look at long losses, we don’t look at the small losses that grind us down. This is the way human heuristics work. With privacy people think privacy is about the one big loss, revealing the great secret. But if Moglen can look through your library records, your receipts, your IP headers, credit cards, and phone calls, I already know what you are going to do tomorrow, which may be an autonomy problem.

Q: Isn’t the autonomy problem due to problems in secrecy and anonymity? A: Yes, but we are not going to be able to solve the problem that way. We have not yet seen why this will be impossible to solve in this way. For now, fixing 1 and 2 are no longer possible in our social space.

We can have working secrecy, but you will pay for it with the end of anonymity. Not only are you not anonymous, but you have no idea how not anonymous – you assume the best you can be known is the way you know yourself, and we are way past that.

But the university network: what are your expectations, and how are your expectations being met. Do you consider yourself in a public or private place. What do you expect as to how many business are provided access to your data. What do people want?

A: I am not scared, maybe anyone who takes will give you the things you want? Q: Is that really what you think? A: It unlikely Q: Then why should we waste any time on it. Even if you think this is the case, what do you think it should be.

A: Maybe it should be opt in- Q: The college has a free wireless network, everyone walking buy can see traffic, even if it is encrypted, you can have some header information or MAC address. If I live across the street, easy to crack encryption, I will know everything about the people around me. Credit card truck- are they looking at buying habits.

A: So the college gives third party data? Q: the RIAA and national security?

What social expectations attach to the network. If your expectation is that outsiders should not be allowed in an expectation.

A enterprise that wants a secure network creates a firewall. The university doesn’t have one, it is a university and expects such things.

Q: Why does the law school have MAC address filtering then? A: Historical accident – whether the university had a open network or whether law school has a closed network. You haven’t forced them to stop and I don’t need to force them to stop. Moglen thinks it should be free at layer 2, and people should authenticate for certain services… though once you authenticate, you are no longer anonymous. But what are your expectations- public if a public university, or private if a private university?

Mostly what has changed is that people have a chief privacy officer, and nothing else has changed.

Next time, start working on the privacy section.

-- TheodoreSmith - 30 Oct 2008



Webs Webs

r2 - 07 Sep 2011 - 00:54:24 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM