Gikii 2011 in Göteborg

Sharpen your pencils and polish your mice its soon time to submit abstracts for GikII 2011 which will run 26-28 June in Göteborg. The cfp is being tweaked as we speak and I am both honored and intimidated to be the local host of this great event – the sixth annual GikII.

For those of you who have not met the GikII check out last years call for papers:

GikII is a workshop concerned with exploring the legal interaction between popular culture, speculative fiction, and new technologies. It has been described unimaginatively as trail-blazing, innovative, fun and informative. We like to think of GikII as the legal workshop equivalent of a Pan-Galactic Gargle Blaster, in other words, it is “like having your brain smashed out by a slice of lemon wrapped round a large gold brick”. GikII is where the bravest, fun-est (not to be confused with funniest) and zaniest ideas about law and technologies are discussed. In some instances we explore technologies so new that in fact there is not even a term to describe them, while some other times we have discussed technologies long gone. We only ask that you are imaginative and think of your fellow travellers instead of yourself. GikII is all about giving legal scholars the opportunity to engage in blue skies thinking (variations of the visible electromagnetic radiation spectrum may occur depending on which planet you may currently inhabit). If you have a paper that is languishing at the bottom of your hard drive and is crying out to see the light of a USB stick, GikII is the place for you. We laugh in the face of tradition and make rude comments about scholarly convention.

Or why not browse the five earlier events at Edinburgh 2006, Oxford 2007, Oxford 2008, Amsterdam 2009, Edinburgh 2010

Regulation by Norms: The no clapping rule

Since Lessig’s book The Code came out in 1999 the discussion of Internet regulation has been increasingly popular. Its not that Lessig started the field but by the popularity of his work he made it a topic worthy of discussion – and it shows not sign of stopping. Breifly stated Lessig’s point was that there are 4 things that regulate/control behavior: Law, markets, norms and architecture. Since the point of The Code was to argue that code is law Lessig focused on architecture. If we simplify the world we could argue that Tech lawyers tend focus on architecture, environmental lawyers look to markets and black letter lawyers focus on the law as a regulatory instrument.

Many of the reasons for focusing on a regulatory instrument are beyond the control of the individual author. For example Christina Olsen-Lund, a colleague of mine doing environmental law will be defending her doctoral thesis on emission trading. A riveting 700+ page analysis of market-based regulation.

But it is a shame that not many lawyers study norms. They are so interesting. However the use of norms are regulatory instruments are both vague and incredibly complex. Take for example the no clapping rule.

In a fascinating lecture Hold Your Applause: Inventing and Reinventing the Classical Concert held in March Alex Ross dissected parts of this rule and explains social regulation in concert halls. Ross expresses concern that the rule of not clapping during concerts is partly responsible for the making classical music less accessible to beginners.

The origins of the no-clapping rule stem from an idea that the music should be received on an intellectual as well as emotional level, for example on the premier of Parsifal in 1882

Wagner requested that there be no curtain calls after Act II, so as not to “impinge on the impression,” as Cosima Wagner wrote in her diary. But the audience misunderstood these remarks to mean that they shouldn’t applaud at all, and total silence greeted the final curtain.

Wagner had no idea if the audience liked his work and attempted to instruct them that applause was appreciated. But…

…Cosima writes: “After the first act there is a reverent silence, which has a pleasant effect. But when, after the second, the applauders are again hissed, it becomes embarrassing.” Two weeks later, he slipped into his box to watch the Flower Maidens scene. When it was over, he called out, “Bravo!”—and was hissed. Alarmingly, Wagnerians were taking Wagner more seriously than he took himself.

Wagner is not the originator of the no clapping rule but he was instrumental in provide the audience with a social standard which they gladly accepted and rigorously enforced. So much so that today attempts to applaud in the wrong place are still frowned upon:

Even worse, in my opinion, is the hushing of attempted applause. People who applaud in the “wrong place”— usually the right place, in terms of the composer’s intentions—are presumably not in the habit of attending concerts regularly. They may well be attending for the first time. Having been hissed at, they may never attend again. And let’s remember that shushing is itself noise.

The rule is not enforced by the divisions within the audience alone but also by the musicians:

At a performance of the Pathétique by the Sydney Symphony, in 2003, the conductor Alexander Lazarev became so irritated by his audience that he mockingly applauded back…Even if Lazarev’s tactic had succeeded, is “embarrassed silence” the right state of mind in which to listen to the final movement of the piece?

Here the regulation is created by etiquette, by an imagined idea of what is, and what is not, done. Too many of us are fearful of being seen as outsiders or frauds and undeserving of the perceived social standing attending these events entails. But my sympathies lie with Arthur Rubinstein: “It’s barbaric to tell people it is uncivilized to applaud something you like.” – wonderful sentiment and brilliant quotation.

The idea that there is a right way in which to listen to music is strange and that there is a duty of the audience to pay up and shut up is decidedly odd:

During the applause debates of the 1920s, Ossip Gabrilowitsch spoke approvingly of “those countries in the south of Europe where they shout when they are pleased; and when they are not, they hiss and throw potatoes.” He then said something that deserves to be underlined: “It is a mistake to think you have done your part when you buy your tickets.”

Another reason for my appreciation of Ross’ lecture is that my own attitude towards applause has shifted gradually over time. My concern about “fitting in” is no longer strong, at least not strong enough to curtail my enthusiasm. I applaud happily when an actor, lecturer or speaker makes a point I appreciate & occasionally when music takes me. But I dislike the ritual of applauding over several curtain calls simply because it is expected. Refusing to applaud is more honest – like refusing to leave an extravagant tip at a bad restaurant. 

In order to better understand regulation through norms we require more studies and better cases. The largest part of social regulation has little or nothing to do with the law and everything to do with social norms – it is surprising then that so little study is carried out on the topic.

Seriously cool litterature

Law and Magic: A Collection of Essays

The nearly two dozen studies in this collection explore the very rich ways in which the rule of law and the practice of magic enrich and inform each other. The authors bring both a U.S. and a comparative law perspective while examining areas such as law and religion, criminal law, intellectual property law, the law of evidence, and animal rights. Topics include alchemy in fifteenth-century England, a discussion of how a courtroom is like a magic show, stage hypnotism and the law, Scottish

Law and Magic book jacket

witchcraft trials in the eighteenth century, the question of whether stage magicians can look to intellectual property to protect their rights, tarot card readings and the First Amendment, and an analysis of whether a magician can be qualified as an expert witness under the Federal Rules of Evidence.

Read more about Law and Magic here. Also, why not check out the Law and Magic blog.

Three-strikes law is misguided

The three strikes approach to internet-regulation is a misguided approach to the problem. Read David Canton‘s arguments on the topic:

The three-strikes law is misguided, even if you believe such activity should be controlled.

Whether someone has violated copyright is often not a black-or-white issue. Copyright law is complex, and knowing in any given instance whether an infringement happened isn’t easy.

To implement these policies on a mass basis, in a similar manner to handing out parking tickets, ignores this complexity. And the penalty is more than paying a few dollars in parking fines.

I'm a Gikii

It’s soon time for the Gikii 4 conference which will be held in Amsterdam during 18-19 September – this year it is organized by the Institute for Information Law (IViR). I am particularly happy since I will be attending with a paper of my own.

The program for the conference is here. Just to give you an idea of the type of stuff presented there here are a couple of papers being presented (full list here).

Luddism 2.0, or How I Learned to Stop Worrying and Love the Web

ZombAIs and family law: technology beyond the grave

“Get out of my head, bloodsucker!” Notions of surveillance in the vampire mind


Robot Law?

Future Tech: Governance & Ethics In The Age Of Artificially Enhanced Man (Or ‘Beware The Zombais At The Gate’)

As you can see from this short list Gikii is definately on the bizarre side of technology law.

Enforcing dress codes

In case anyone missed it President Sarkozy recently decided to attack the Burka

In our country we cannot accept that women be prisoners behind a screen, cut off from all social life, deprived of all identity,” Mr Sarkozy said to applause in the parliament’s ceremonial Versailles home. The burka is not a religious sign. It is a sign of subservience, a sign of debasement,” he added. “It will not be welcome on the territory of the French Republic.”

So ok the man has a point. Equality cannot be achieved in a society when one group has the power to enforce dress codes on another group. The intentions behind forcing a sub-group to behave or dress in a special manner is irrelevant. As the saying goes: “the road to hell is paved with good intentions…”

Photo: Stencils Oslo May 2009 by svennevenn (CC BY-NC-SA)

So even we can agree with Sarkozy what can be done? Sarkozy seems to be attempting to regulate the wearing of a specific style of clothes in public. This is not the same as refusing to allow different types of clothes inside public buildings such as schools or courts. Attempting to enforce such a rule would in itself be a form of denial of freedom. Can you imagine police arresting burka wearing women on the street? This would hardly strengthen the image of France as a democracy.

Another question is what other forms of dress would be prohibited? Are we to focus on the fully dressed aspect then maybe wearing hoods, scarves and masks would be considered wrong. On the other hand if we were to see the lack of individual freedom as an important aspect then wouldn’t all the slaves to fashion be violating the intent of the law?

Times Online has a list of dress related regulation:

— In France a law was passed in 2004 banning pupils from wearing “conspicuous” religious symbols at state schools, a move widely interpreted as aimed at the Muslim headscarf

— In Turkey where 99 per cent of the population is Muslim, all forms of Muslim headscarf have been banned in universities for decades under the secular government. In June 2008 the country’s Consitutional Court overruled government attempts to lift the ban, prompting protests

— In Britain guidelines say that the full Islamic veil should not be worn in courts, but the final decision is up to judges. Schools may forge their own dress codes and in 2006, courts upheld the suspension of Aishah Azmi, a Muslim teaching assistant who refused to remove her veil in class

German states have the option of choosing to ban teachers and other government employees from wearing Muslim headscarves; four have done so

—The Italian parliament in July 2005 approved anti-terrorist laws that make hiding one’s features from the public — including through wearing the burla — an offence

Tunisia, a Muslim country, has banned Islamic headscarves in public places since 1981. In 2006 authorities began a campaign against the headscarves and began strictly enforcing the ban

— The Dutch Government said in 2007 that it was drawing up legislation to ban burkas, but it was defeated in elections in November and the new centrist coalition said it had no plans to implement a ban

No twittering in court

A post on Slashdot this morning dealt with a juror who posted twitter comments about a trial (while it was in progress) and the effects of this may be to declare the trial a mistrial.

“Russell Wright and his construction company, Stoam Holdings, recently lost a $12 million dollar lawsuit brought by investors. But lawyers for the firm have complained that juror Johnathan Powell’s Twitter comments broke rules when discussing the civil case with the public. The arguments in this dispute center on two points. Powell insists (and the evidence appears to back him up) that he did not make any pertinent updates until after the verdict was given; if that’s the case, the objection would presumably be thrown out. If Powell did post updates during the trial, the judge must decide whether he was actively discussing the case. Powell says he only posted messages and did not read any replies. Intriguingly, the lawyers for Stoam Holding are not arguing so much that other people directly influenced Powell’s judgment, rather that he might have felt a need to agree to a spectacular verdict to impress the people reading his posts.”

This is an interesting example of the way in which new technology practice is clashing with established rules and ideas. During the recent Pirate Bay trial in Stockholm there was a vertible information orgy with live audio feed, spectators twittering from within (and outside) the courtroom and live bloggers en masse – in addition to traditional media channels. Yet the interesting thing was that the audio tape picked up the judge telling individuals in the courtroom that no pictures could be taken. On a least two occaissions the judge asked whether a laptop and a phone was being used to film the proceedings.

Everybody was filmed, photographed and interviewed entering and leaving the courtroom. All the participants were activly seen courting and presenting their cases to the media on the courtroom steps – but no photographs in the courtroom.

When a witness who was to be heard at a later date was discovered in the audience he was asked to leave. Before leaving he asked whether he was allowed to listen to the radio. The judge understood the futility of the rules when he replied – well you cannot stay in here.

The “no images” rule in Sweden or the no communicating in the US are rules which need to be explained logically to the participants. Naturally the principles of justice and equality must be upheld and should not need to be questioned at every turn…

Combining GPL and Proprietary Software

Bruce Perens has written an interesting article about combining GPL with proprietary software the main point of discussion concerns the problem of combining software under different licenses in embedded devices. The article ends with a paragraph on what not to do:

Don’t assume that you can put proprietary kernel drivers in a run-time loadable kernel module. The legality of such a practice is dubious, and there have not been sufficient cases to say reliably what would happen if you were to get sued.

Also, don’t look for, and use loopholes in the Open Source licenses. Nothing makes your company look worse than taking unfair advantage of people who provided their work to you without charge, expecting in good faith that you’d honor their license. It also tends to make Open Source folks reluctant to cooperate with your company, the next time you need help with their software. And it looks bad to judges, too.

Don’t try to do what I’ve discussed without legal counsel to advise and review your actions.

This is a particularly tricky subject and every time a writer tackles it we slowly move towards a better understanding – but there is still a long way to go. In fact that shortest answer to the problem of combining GPL & proprietary software in one device may be “don’t do it if you are not sure” but not many are going to follow that advice since free and open source software is too much of a competitive advantage for developers to ignore.

(via Slashdot)

Wanted: FRA integrity lawyer: An unpopular but easy job

The Swedish Försvarets Radioanstalt (FRA) or in English the National Defence Radio Establishment is looking for a lawyer. After a recent change in Swedish legislation (the FRA law, or FRA-lagen in Swedish) that came into effect on 1 Januarythe FRA is authorized to warrantlessly wiretap all telephone and Internet traffic that crosses Sweden’s borders. This obviously includes much of internal Swedish communication.

Anyway the FRA now are looking for a lawyer to

Funktionen svarar även för frågor om etik och integritetsskydd i signalunderrättelseverksamheten… Funktionen har även till uppgift att se till att myndigheten behandlar personuppgifter på ett lagligt och korrekt sätt.

The position is responsible for questions of ethics and integrity protection in relation to signals intelligence… The position also has the responsiblity to ensure that the agency treats personal data in a correct and legal manner [my translation].

Wow! Considering the task of the FRA is to eavesdrop on all traffic this job must be a doddle. Once you have made it legal to wiretap all internet traffic without the need for warrents – what integrity concerns can be left for the lawyer to deal with?

the Zong affair

In 1781 the crew of the Zong, a British slave ship, killed 133 slaves and threw the bodies overboard in an attempt to claim compensation from the insurers for lost cargo. The whole thing ended up in court – but not for killing slaves since this was legal.

When the ship returned to England the owners of the ship claimed the full value of the murdered slaves from the insurers. They claimed they there was a necessity to throw the slaves over the ship because of water depletion. Well it was proven later that it was all a lie and that the captain had an opportunity for more water on December 1. By the time the Zong had arrived in Jamaica on December 22, they had 420 gallons of water to spare. (online here)

The owners demanded compensation of £30 for each slave. The judge of the case, Lord Chief Justice Lord Mansfield, stated that “no doubt that (though it shocks one very much) the case was the same as if horses had been thrown overboard”

The Solicitor General, John Lee, declared that a master could drown slaves without “a surmise of impropriety”.

What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder. They acted out of necessity and in the most appropriate manner for the cause. The late Captain Collingwood acted in the interest of his ship to protect the safety of his crew. To question the judgement of an experienced well-travelled captain held in the highest regard is one of folly, especially when talking of slaves. The case is the same as if wood had been thrown overboard. (wikipedia)

The comparisons of people to wood or horses shows the way in lawyers are indoctrinated into being able to interprete the letter of the law rather than attempt to arrive at justice and fairness.