¶ The Laboratorium (2d ser.)

I set out to write a longer post, but there is really no need. The readout of President Trump’s July 25 telephone call with Ukranian President Volodymyr Zelenskyy shows him committing an obviously impeachable offense. The President of the United States personally asked a foreign nation to investigate a political rival, and he used nearly $400 million in American aid as a bargaining chip. This is corruption of the most basic sort: using his office to serve his personal interests. Nothing more need be said.

I agree that there should be an immediate investigation. But the point of this investigation is not to dig at some further factual questions of what exact words Trump used or what he meant by them. Trump himself has admitted that the conversation happened as described, and thee meaning is the meaning is clear enough. If Trump is too confused to express his demands more clearly, or too amoral to understand why they are so deeply wrong, these facts make him more impeachable, not less. They amount to a defense that he can’t be impeached because he is unfit for office in the first place.

This is not the first obviously impeachable thing that Trump has done. The Mueller report lays out, with painstaking clarity, multiple instances of impeachable obstruction of justice. The only difference is that this new story broke all at once, rather than being dribbled out over the course of years, so that the political shock of seeing everything so clearly in focus landed with full force. The financial self-dealing also probably rises to the level of high crimes and misdemeanors, although the facts there have been a little better obscured. The articles of impeachment should include obstruction of justice, and the financial investigations should continue.

With an urgent official impeachment inquiry underway,, it is time for the House to use all of its powers to compel documents and testimony, and to ask the courts for the most expedited rulings they are capable of giving. The nation has no more important business than this.

This is a moment of clarity. Trump’s conduct here is fundamentally incompatible with democratic self-government. To stand aside – or worse, to defend it – is to give up on the republic. Donald Trump must be impeached, so that the United States can survive.

Rebecca Tushnet blogged a trainwreck of a copyright opinion in Cisco Systems, Inc. v. Beccela’s Etc. from the Northern District of California. The software-licensing caselaw was not good, but this is one of the most confused opinions I’ve seen.

In brief, Cisco sells networking devices through a network of authorized dealers. The defendants allegedly sell Cisco devices outside of these authorized channels. Cisco sued on a variety of theories, including copyright infringement. In response, the defendants claimed they were making legal first sales.

Ninth Circuit caselaw (see Vernor, Psystar, and Christenson) has held that first sale doesn’t apply to software distributed on CD-ROMs or DVDs which are “licensed” rather than “sold,” and use a messy multi-factor test to determine whether a given shiny plastic disc is licensed or sold. The defendants here argued that the result should be different where the software is “embedded in hardware,” but the court disagreed that this made a difference. “The Ninth Circuit in these cases did not distinguish the first sale doctrine’s application between software and hardware … .” As a result, “[T]he first sale doctrine does not apply to software licensees even when the software is embedded in lawfully purchased hardware … .”

To which I can say only, what does the court think that software IS?

“Software” could refer to the information in a program – the sequence of bits or characters – or it could refer to a specific physical instantiation of the program – a chip, printout, or other object encoding that information. In copyright terms, the former is a “work”; the latter is a “copy.” Cisco has a copyright in the work, and we can assume that the copyright has never been validly licensed to the defendants. But in first sale, that’s irrelevant. If I’m “the owner of a particular copy … lawfully made,” then I can distribute that copy regardless of whether I have any license from the copyright owner. That’s what first sale is. The reason that Vernor and other cases rejected the application of first sale is that the copy had been licensed rather than sold: that messy multi-factor test tries to figure out what rights the possessor has over a particular shiny plastic disc. For example, does the copyright owner have the right to demand the shiny plastic disc back? If so, then the possessor may not be an “owner” of that “particular copy” and so first sale may not apply.

This reasoning doesn’t on its face distinguish between shiny plastic discs and computer hardware. But that doesn’t mean the two cases are the same. It’s right there in the Beccela’s opinion. In fact, it’s right there in the same sentence where the court announces its conclusion. Cisco’s software isn’t just “embedded in hardware”; it’s “embedded in lawfully purchased hardware,” in the court’s own phrase. That ought to end the case. If the hardware is lawfully purchased (note: “purchased” and not “licensed”), then the defendants are owners of the copies of the software and have full first sale rights. Remember: “copies” are “material objects … in which a work is fixed,” a definition that includes both shiny plastic discs and dense arrays of transistors.

The court here honestly seems to believe that software can somehow be “embedded” in hardware without the hardware being a copy of the software, as though a file were in the computer but not of it. But there is no such thing. That is what it means to store digital information in a thing: the physical structure of the thing becomes an encoding of the thing. Or, in copyright terms, a copy is a physical thing “from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” That’s how software works.

To be fair, I don’t think that courts in previous first-sale and software-licensing cases have been terribly careful about the work/copy distinction or about what software is. The opinions cited in Beccela’s are full of sloppy language that seems to invite this result. But that language was unnecessary; you could come out the same way in a DVD software first sale case while being careful about your terminology. Beccela’s takes these unintelligible fictions about how software works and turns them into an actual holding that is essential to the outcome of the case. It is rare to see the confusion at the heart of modern software copyright licensing so plainly stated.

✳ law 

One evening, about the time when bananas were first being imported in Britain, Lord Leconfield was dining in his stately home with a friend. His guest observed that nobody really knew how good a banana could be unless he had tasted one straight off the tree.

Lord Leconfield said nothing at the time, but next morning he sent for his head gardener. “Go,” he told him tersely, “to Kew. Find out how to grow a banana. Come back here and grow one.”

Off went the head gardener. A special greenhouse was constructed. The banana tree was splendid. Lord Leconfield took a lively interest in in its progress until it fructified. “I will have the banana for dinner tonight,” he said as soon as the banana was ripe. And so he did – amid a deadly hush. The head gardener himself was there, concealed behind a screen.

The banana was brought in on a splendid dish. Lord Leconfield peeled it with a golden knife. He then cut a sliver off and, with a golden fork, put it in his mouth and carefully tasted it. Whereupon he flung dish, plate, knife, fork and banana on to the floor and shouted ‘Oh God, it tastes like any other damn banana!“ Banana tree and all were ordered to be destroyed.

–T.W. Körner, An Unofficial Guide to Part III, retelling a story from the autobiography of John Wyndham, the 6th Baron Leconfield, about his grandfather, Henry Wyndham, the 2nd Baron Leconfield

The Ninth Edition of Internet Law: Cases and Problems is now available. It includes a new section on platforms as marketplaces, a half-dozen new cases, and updated notes, questions, and problems throughout. As always, the book can be downloaded directly from Semaphore Press as a pay-what-you-want DRM-free PDF. The suggested price to students remains $30. It’s also available as a print-on-demand paperback (this year’s cover color: purple) for $65.50.

✳ scholarship 

The road to Zork began in late May of 1977, when Dave Lebling put together a very simple parser and game engine quite similar to Adventure’s, from which Marc Blank and Tim Anderson built their first four-room game as a sort of proof of concept. … The name itself was a nonsense word floating around MIT that one might use in place of something, shall we say, stronger in stressful situation: “Zork the bloody thing!” when a piece of code just wouldn’t work correctly, etc. The file holding the game-in-progress got named “Zork” as a sort of placeholder until someone came up with something better. In the case of Zork, though, a proper name was slow in coming. And so Zork the game remained for the first six months of its existence. …

At some point around the fall of 1977, the DMG hackers had decided that their creation really, really needed a “proper” name. Lebling suggested Dungeon, which excited no one (Lebling included), but no one could come up with anything better. And so Dungeon it was. … Shortly after that, MIT heard legal rumblings from, of all places, TSR, publishers of Dungeons and Dragons – and of a dungeon-crawling board game called simply Dungeon! TSR was always overzealous with lawsuits, and the consensus amongst the MIT lawyers that the DMG hackers consulted was that they didn’t have a legal leg to stand on. However, rather than get sucked into a lengthy squabble over a name none of them much liked in the first place, they decided to just revert to the much more memorable Zork. And so by the beginning of 1978 Dungeon became Zork once more, and retained that name forevermore.

–Jimmy Maher, Zork on the PDP-10

✳ quotation 

It occurred to me today, while reading a story about a person targeted by anti-vaccination activists, that her ordeal was very much like that of the Sandy Hook parents targeted by InfoWars, which was very much like … you get the picture.

It’s a commonplace that the Internet is conducive to online mobs: people come together and temporarily find shared purpose swarming a stranger. Each participant individually metes out a small share of what seems like justice, but there are far too many of them, result misery.

But what if that’s not exactly right? Social media can bring millions of people together, but it takes a much smaller group to light the match and fan the flames. If that group has shared values, private networks for coordination and mutual reinforcement, a common vocabulary and rhetorical toolkit, a lot of free time, and an overriding sense of purpose, it will be that much more effective.

In other words, maybe the Internet isn’t optimized for mobs, so much as it’s optimized for cults.

✳ politics ✳ technology 

I am pleased to say that I have joined the editorial board of the Communications of the ACM, the monthly journal of the world’s leading computer-science professional society, the Association for Computing Machinery. I am responsible for editing a three-times-annual column, “Viewpoints: Law and Technology.” The column was created in its modern form by the estimable Stefan Bechtold, and he has done a great job getting a a group of very smart people to write very smart columns. (The estimable Pamela Samuelson single-handedly writes a regular column for CACM as well.) I have big shoes to fill.

This is personally quite meaningful to me. As regular readers of this blog know, bringing law and computer science closer together is my life’s work. It’s hard to think of a more visible symbol of that intersection than the law-focused column of this venerable computer-science journal. I am humbled to have been asked to do this and I have high ambitions to present cutting-edge issues in law and policy to CACM’s readership in a nuanced but accessible way.

There are some great columns by scholars I deeply respect in the editorial pipeline, but to mark the transition, I thought I would take the pen myself to reflect on where Internet law stands today. My inaugural column is titled Continuity and Change in Internet Law, and here is an excerpt:

Everything old is also new again with cryptocurrencies. People have hoped or feared for years that strong cryptography and a global network would make it impossible for governments to control the flow of money. There is a direct line from 1990s-era cypherpunk crypto-anarchism and experiments with digital cash to Bitcoin and blockchains. The regulatory disputes are almost exactly the ones that technologists and lawyers anticipated two decades ago. They just took a little longer to arrive than expected.

In other ways, things look very different today. One dominant idea of the early days of Internet law was that the Internet was a genuinely new place free from government power. As John Perry Barlow wrote in his famous 1996 “Declaration of the Independence of Cyberspace”: “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. … You have no sovereignty where we gather. … Cyberspace does not lie within your borders.”

If there was a moment that this Matrix-esque vision was definitively unplugged, it was probably the 2003 decision in Intel v. Hamidi. Intel tried to argue that its email servers were a virtual, inviolate space—so that a disgruntled ex-employee who sent email messages to current employees was engaged in the equivalent of breaking into Intel buildings and hijacking its mail carts. The court had no interest in the cyber-spatial metaphor. Instead, it focused on more down-to-earth matters: Intel’s servers were not damaged or knocked offline.

“Cyberspace” turned out not to be a good description of how people use the Internet or what they want from it. Most Internet lawsuits involve familiar real-world problems—ugly divorces, workplace harassment, frauds and scams, and an endless parade of drug deals—that have spilled over onto cellphones, Facebook pages, and other digital platforms.

Whatever developments the years ahead may bring for law and computer science, I look forward to helping the legal and technical communities to understand them by helping CACM carry on its editorial tradition of excellence.

I have a new essay, Renvoi and the Barber, in The Green Bag 2d,¹. Here is the abstract:

The renvoi paradox in choice of law arises when two states’ laws each purport to select the other’s law. The barber paradox in the foundations of mathematics arises when a set is defined to contain all sets that do not contain themselves, or, more famously, when a barber shaves all men who do not shave themselves. Which state’s law applies? Does the set contain itself? Does the barber shave himself? Each answer implies its opposite.

Conflict of laws is not mathematics, but it could learn from how mathematicians escape the barber paradox: by modifying their theories to to exclude the kind of self-reference that can go so badly wrong. Renvoi too is a paradox of self-reference. Ordinary choice of law blows up into paradox not when one state’s laws refer to another’s, but when a single state’s laws refer back to themselves. The purpose of renvoi rules is to prevent this paradoxical self-reference from occurring; they work by ignoring some aspect of a state’s laws. When a choice-of-law rule selects a state’s law, it always necessarily selects something less than whole law.

The essay also features a dozen diagrams, extensive Sweeney Todd references, some subtle shade on your favorite choice-of-law methodology, and discussion of restricted and unrestricted versions of the Axiom of Comprehension.² It may be the nerdiest thing I have ever written, and I do not say that lightly.

✳ scholarship 

In 1995 an engineer named William Dilworth, who had published a refutation of Cantor’s argument in the Transactions of the Wisconsin Academy of Sciences, Arts and Letters, sued for libel a mathematician named Underwood Dudley who had called him a crank. The case was dismissed. For myself I am more scared of the copyright law than the law of libel. After taking legal advice I decided not to quote any of the authors directly. The alternative was to write some letters saying in effect: ‘I’m sorry we couldn’t publish your paper as a contribution to logic. Can I please publish parts of it as examples of garbage?’

–Wilfrid Hodges, An Editor Recalls Some Hopeless Papers, 4 Bulletin of Symbolic Logic 1, 1 (1998)

✳ quotation 

American democracy received a stay of execution on Tuesday. But it is still on death row.

I blame the Framers, although to be fair, they may not have had much choice. The Constitution was designed to protect small (by population) states by giving each state equal representation in the Senate, by feeding the count of Senators into the count of presidential electors, and by insulating the Senate from the ordinary Article V amendment process. These provisions are obviously anti-democratic, but they were also considered a necessary compromise. The Framers saw quite clearly that fewer people would have more political power if they lived in small states. That was the point.

We are accustomed today to think about national politics in terms of political parties, and from that point of view it can seem like the Senate arbitrarily and unfairly favor Republicans. Unfairly, yes, but there is nothing arbitrary about it. Small states are rural states. To the extent that one party is a rural party and the other is an urban party, it will be the rural party that benefits from equal representation in the Senate. This is sectional politics, and it would have been perfectly familiar to any 19th-century politician who witnessed sectional fights over internal improvements and over slavery. The conflict between urban and rural factions is as old as history: just ask the the Romans and the socii.

One aspect of Donald Trump’s political genius is that he intuited, was advised, or stumbled into the realization that the American constitutional system gives an immense structural advantage to the rural party. He has knocked the Republican party off of its traditional ideological axes and remade it as a thoroughly rural party. This was not a large shift: it was already the more rural of the two parties, and has been tipping further in that direction for some time. He just gave it a hard shove.

The white male identity politics that Trump has been stoking are the politics of rural resentment. The unifying theme is a hatred of urban elites. You can call them Democrats, or libtards, or globalists, or Jews. You can see them in the universities, in government bureaucracies, in the professions, or anywhere else that still has its head above water. The policy specifics are less important than the sense of shared identity and commitment. There are an Us and a Them, and They live in the cities – cities that are full of crime, depravity, and brown people.

Trump discovered, quite possibly accidentally, that a rural Republican party can take and hold electoral power even if it represents a minority of the population and receives a minority of votes. 2016 set up the hypothesis, and 2018 confirmed it. Even without the House (where the urban party also is at a structural disadvantage, but less of one), the Presidency plus the Senate is enough to staff the agencies and to stack the courts.

The Republican party has been almost completely purified into the Trumpublican party. Many of the retired or defeated Republican House members were suburban “moderates,” and many of the Republican Senators who would publicly rebuke him (even if they generally voted with him) are now retired or dead. Those who remain are either vocally loyal or have made their peace and will go along with whatever.

Of course Trump is moving immediately to fire Sessions and stop the investigations. He can, and the Senate won’t interfere. He’ll still get his replacement attorney general, his judges, and whatever else he demands. He’ll still get his political cover.

In fact, the lesson of 2018 is probably that the investigations don’t matter politically. It’s hard to imagine what else could now come out that would be enough to sway someone who wasn’t persuaded already. The United States of America now consists of 45% Gryffindor, 35% Death Eaters, and 20% people who are uncertain between the two. There are no more surprises. Even if his aides and family members are tried, convicted, and imprisoned, do you really think that will make the difference politically? Imagine what Fox News, Gateway Pundit, and Infowars will say. Is there anything, anything at all, that would make them turn on him? Can you imagine any cruelty, any mistake, any disaster, or any scandal that they would not ignore, explain away, or lay at the feet of those perfidious Democrats?

The global trend is clearly in the direction of populist right-wing authoritarianism: it’s visible on every continent and in every major election. Trump himself was a fluke: he accelerated what was already coming. And he was so extreme, so corrupt, so heartless, that there was at least the possibility that he would trigger a backlash that would discredit the reactionary movement in the United States for a political generation. But it didn’t happen in the primaries, it didn’t happen in the general election in 2016, and it didn’t happen in 2018, either. It’s not going to happen, not in the way we need. It is easily possible to imagine that Trump will lose the 2020 election. It is inconceivable that Trumpism will be put back in the bottle.

✳ politics