A reaction to: “Attorney General: Aaron Swartz Case Was a ‘Good Use of Prosecutorial Discretion'” at Wired.com.

As you see by the date of the article about the Aaron Swartz case I’ve linked to, I’ve been mulling this blog post over for a while. 🙂

I’ve known a fair number of software engineers/developers (including myself) and also a fair number of lawyers (including immediate family).

It’s tempting to think we all view the world in a similar way: we work in systems governed by complex sets of rules and try to understand how those rules can be applied. But this masks an important difference.

Software systems, however complex they get, are fundamentally deterministic. Computers don’t make judgement calls, and they don’t make mistakes. If you get the wrong result, it’s a bug to be crushed. (Something that distinguishes professional developers from others is that for us, letting an issue go as an insignificant outlier is often more difficult than digging until you find a solution.)

For lawyers, laws aren’t processed by silicon CPU’s, they’re processed by human judges, juries, and prosecutors. For them, individual discretion is not a bug, it’s a feature. Furthermore, there’s a difference between litigators and corporate lawyers. Much as things like EULA’s are the bane of everyone’s existence, we can find common ground with the corporate lawyers who write them, because we get the idea that inputting a certain formula into “the system”–like a magical incantion–should lead us to desired results. Whereas litigators and prosecutors (and sometimes politicians) are much more comfortable in that risky space where one’s fortune can be changed, not simply by whether you followed the letter of the law, but by human judgement in applying it.

The point of the blog post isn’t to say that one worldview is right and the other is wrong, but that it might help everyone to understand that they are different, and that either way of thinking can be used for good or evil. Both sticking to the rules and never making an exception, and fighting to win by bending the rules, can lead to inhumane results. We need to strike a balance.

Learn more from EFF about the CFAA, the law used to prosecute Aaron Swartz, which gives prosecutors the discretion to pursue almost any modern computer usage as “hacking.”

When I was in fifth grade, one of my teachers went to visit Russia. I remember her telling us how there were fairly obvious wires going from their hotels rooms to the end of hall where government monitors could spy on guests.

Around the same time, I heard a Soviet joke: An American says, “American is a great country, I can say I hate President Reagan out loud on the street and I won’t get in trouble.” The Russian replies, “So? I can say that I hate that American President Reagan, too.”

The Cold War was in full effect, and spying on citizens, or controlling the press, was supposed to be something they did, our Soviet nemesis that Reagan called an “evil empire,” and what separated us from them, was that we were free, our rights protected.

Perhaps I was naive, but as a child of the ’80’s, this is what I learned as right and wrong. These days, when I hear about something that sounds like the government abusing civil liberties, I’m concerned, but I like to at least consider that maybe there’s another side of the story. Perhaps there was a misunderstanding. Perhaps, from the government’s perspective, they were doing the right thing.

But it’s hard to see how spying on the AP could be seen as doing the right thing. It’s not just a violation of someone’s privacy, it’s a violation of freedom of the press stated in the Constituion. And it’s not just a violation of a website that wants to see itself as “the press,” it’s spying on an institution that is literally the backbone of the free press.

Gov’t obtains wide AP phone records in probe.

Enough inkelectrons have been spilled over the Google Reader sunset. I simply offer a simple tool to take your Google Reader data from Google Takeout and convert it into a nicely formatted list of links to browse and re-bookmark/subscribe in your new favorite service (or save as a backup, even if you’ve found a new feed reading service).

Using it is as simple as unzipping your takeout file and dropping a file into the same folder.

1. Unzip your takeout file.
2. Download the file (right-click and “Save Link As…”) below and drop it in the Reader directory you just created (the one that has the JSON and XML files from Google).
   reader.html
3. Double-click on the reader.html file in that directory.

This only displays part of your Google Reader Takeout data. Do not delete any other files!!!

No warranties, express or implied. None of the data in your takeout file is uploaded to me (although I may track usage of this tool).

I’ve long been a fan of open-source software. First of all, because you don’t have to pay for it, and who isn’t a fan of free? Second, even compared to closed-source free software, I prefer open, because I can rely on it. I might never look at the source code, but knowing that one can gives me some assurance that there isn’t anything bad (spyware, viruses) hiding and that I can continue using the software even if the original author stops providing upgrades or takes his business in a different direction.

Like a lot of other people in the technology industry, I aslo tend to see free software as something more than that, as a moral good, and intellectual property (IP) rights like a dangerous weapon that needs to be controlled. (With apologies to the NRA: “Patents and copyrights don’t kill innovation, patent and copyright holders do.”)

And after a lot of reflection on the matter, I’ve figured out why I feel this way: I have no personal upside. I don’t make money from IP rights. And on the downside, and I can lose money when others decide to exercise their IP rights. That doesn’t seem fair.

Here’s a thought experiment: If, like a songwriter represented by ASCAP, I got regular royalty checks for each line of code still in production that I’d written at some job years ago, would I feel differently? Or if I was guaranteed an on-screen credit and chance at an Oscar like a union technician in a Hollywood movie?

But I’m not complaining. I have a good job and make a decent living. If I stop working for my current employer, they own that work I’ve done, and that seems fair; I was reasonably paid for providing a service. But, while I’m not making money from licensing IP, I still have the downside of costs and risk of licensing it from others.

And writing software is, in my opinion, providing a service. Software has a pretty short half-life, and whether you hire developers to write software to use or to sell, you need to keep developers on the payroll to be valued as a software shop. No one is making money selling two-year-old software, at least not without ongoing investment in upgrades and support.

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago came to basically the same conclusion recently:

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets — a benefit they would still get if there were no software patents. “It’s not clear that we really need patents in most industries,” he said. “Also, devices like smartphones have thousands of component features, and they all receive legal protection. You just have this proliferation of patents,” Posner said. “It’s a problem.”

via Judge Posner: U.S. patent system out of sync – chicagotribune.com.

It was wonderful to see our legal system take this view, which I’d usually associate with underdog advocates who can’t actually afford a day in court.

I’m not against all forms of intellectual property or its strict enforcement. I don’t support piracy or counterfeiting; that’s legally and morally wrong and I think it’s unfortunate that the cause of online freedom sometimes gets mixed up in defending it. Nevertheless, I see IP as a modern policy construct, not in the same category as the biblical “thou shalt not steal.” A purpose of IP is to encourage investment in innovation by providing investors with a better return, and laws should be calibrated so they’re fair to all.

Perhaps I need to find a way to own some IP that can generate some returns. Then again, perhaps creating IP, not owning it, is more fun.

This post is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

Crossposted to JHacker.org.

I tend to buy this argument…

What should other artists do? Well, I’m not really bothered. The sad truth is that almost everything almost every artist tries to earn money will fail. This has nothing to do with the internet, of course. Consider the remarkable statement from Alanis Morissette’s attorney at the Future of Music Conference: 97% of the artists signed to a major label before Napster earned $600 or less a year from it. And these were the lucky lotto winners, the tiny fraction of 1% who made it to a record deal. Almost every artist who sets out to earn a living from art won’t get there (for me, it took 19 years before I could afford to quit my day job), whether or not they give away their work, sign to a label, or stick it through every letterbox

via The real cost of free | Cory Doctorow | Technology | guardian.co.uk.

It seems like you can find everything on the Internet. Which is why it’s so important to point out when things that matter aren’t on the Internet.

Bogus copyright and trademark complaints have threatened all kinds of creative expression on the Internet. EFF's Hall Of Shame collects the worst of the worst.

via Takedown Hall Of Shame | Electronic Frontier Foundation.

One of the things I found challenging about voting this morning is that you are confronted simply with the candidates’ names. There are no graphic clues to help you choose which one to vote for. They are not organized by party or any other characteristic.

Moreover, they are not in the font and color we’ve come to associate with the candidates: McCain in the Optima font with a gold device on a navy blue background; Obama with his rising-sun-over-fields logo and heavy use of the Gotham font on a lighter blue background (although I realized while looking for an image to place above, his name is usually in a complementary serif font). So, I have to stop and think about it, and I think there must be a certain amount of human error that this causes.

We are used to this from store packaging – if you are looking for Tide you grab a bottle with certain shades of orange and yellow, and if the store-brand detergent wants to compete they make their package as close to the same shades as possible. Maybe candidates should be allowed to submit a logo and their names in a specific font. While it might seem like too much marketing, it might actually help ensure people vote for the candidate they intended.

Finally, the Supreme Court has recognized that intellectual property rights exist to promote progress (Microsoft vs. At&T and KSR vs. Teleflex), and not simply to protect some intrinsic right of ownership.

I’ve think this is a pretty straightfoward reading of the Constitution (Article 1, Section 8, Clause 8) and it’s bothered me that people don’t get it: not my congressman who I once wrote to about IP issues; not the Federal Circuit Court of Appeals which has most jurisdiction over these matters; and not the lawyers in my family who will talk your ear off about politics and justice but can’t be engaged on this issue. Concern about this has seemed to be the exclusive province of a geeky subculture that reads Slashdot and Wired magazine, where Lawrence Lessig’s columns mostly “preach to the converted.” But it’s not a geeky issue; the free exchange of ideas (and access to technology to promote that exchange) is fundamental to our democracy.

Perhaps we should have been using an analogy: should a restaurant go out of business because someone patented putting ketchup on a hamburger? Should I lose my house because I didn’t license the patent on putting the diswasher next to the sink? Some things are obvious; but adopting obvious ideas was becoming something that could risk one’s company or career. Chefs, interior designers, and software developers have similar jobs: we aren’t hired to invent something new and patentable as often as we’re hired to make to order that same general sort of thing everyone else is doing. What’s fair is for people and businesses doing actual creative work to be protected without their legal budget exceeding their R&D cost, but until now the the legal system didn’t see it this way.

 

Interesting article (via EFF) that Cuyahogo County, Ohio may replace their new e-voting machines. Interesting personally because it’s where my wife’s family is from, and I’ve been to the county courthouse myself to get my marriage license. Interesting politically for two reasons:

1. This is the greater Cleveland area which, on its own, is much closer to being a “blue state” than the rest of Ohio, so it does affect Ohio’s electoral college vote and the national election.

2. The article says they may be using more optical-scanner machines. I’ve voted with these in Newton and Brookline and, as I found in the last primary, they can actually be pretty high tech – it took less than a second for the machine to read and reject my ballot because I’d accidentally voted twice in the same race. The optical systems could be best of both worlds – an inherently paper system that also has the benefits of an electronic system.

Note that in Brookline and Newton you use a marker to fill in a circle on a card; this is not the punch type of system with “hanging chads.” What makes this system ideal is that the electronic ballot box gives the voter immediate feedback as to whether their ballot is valid (and there is a procedure to destroy and replace the ballot in the voter’s presence) so there is no gathering up the ballots and guessing at what a partially-punched circle means later, as there was in Florida in the 2000 election.