Marcelo Thompson

Brazil has entered the 21st century making clear choices with regard to some core technological matters and reflecting these choices in an objective political framework. [1] Those core matters were authentication technologies, software licensing, and digital inclusion. The choices were for an authentication technologies framework based on a national public key infrastructure in which the public and the private intertwine, and for governmental programs on digital inclusion and software licensing based on the adoption of free software.

No illusions there that neutrality can or should be a value to be pursued.

Continue reading ‘Three Cheers for João-de-Barro’

:: Download in PDF ::

It sounds fairly eloquent to say that Internet Service Providers should not discriminate packages of data according to their source, content, or destination, and to call this network “neutrality”. It seems almost as a truism, which everyone who cares for the value of openness deems to be self-evident. Dare to be against it and be prepared to be cursed by the Googlesphere.

Less eloquent is to say, in normative terms, what network neutrality amounts to. Christopher Yoo synthesizes, in a very felicitous expression, that network neutrality is a “naked normative commitment”.

I will not mention here how has the opinion of some notorious network neutrality advocates evolved through time to become less faithful to an unfettered end-to-end principle; to the idea of an “unfettered medium”, as the New York Times put in its editorial some weeks ago. I will not discuss how more fettered have contemporary perceptions of network neutrality become.

I will here make a simple claim; a claim which network neutralists will probably find extremely offensive. And they will find so both because of their lack of a normative investigation about what a “principle of neutrality” means, and because of their lack of a more defined understanding of what such a claim may amount to. The former, actually, derives from the little importance that they normally seem to assign to the academic realm that focuses on matters of the latter kind [1].

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Network neutralists are legal positivists.

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I will adopt a very basic understanding of what legal positivism means. I will take it from a claim Prof John Gardner believes to be common to all legal positivists. Neither less, nor more than this.

Legal Positivists

Legal positivists adopt the sources thesis. They believe that “[i]n any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits (where its merits, in the relevant sense, include the merits of its sources)” (John Gardner, “Legal Positivism: 5 1/2 Myths“, 46 Am. J. Juris. 199).

Keeping within the levels of depth one can expect from a blog, let me here say very briefly that legal positivists are not the child-eating monsters that people normally tend to think they are. Legal positivists do not deny that legal norms may have special and distinctive moral imperatives. They just deny that these imperatives can be understood as a condition of validity of a legal norm. You need not resort to them to identify what a valid law is.

Razian legal positivists would say that, though we indeed resort to evaluative judgments in identifying what a law is, such evaluative judgments are merely ones of importance, not of moral merits. That is to say, legal theory will look into the important characteristics that make of a law what it is — one of them being that law consists of authoritative claims; other being that such authoritative claims provide reasons for action; other still being that such reasons, once you accept them, exclude other reasons you may had originally chosen to act upon.

Natural lawyers of a Finnisian style, on the other hand, would “wave deep into the waters of moral evaluation”, as Julie Dickson puts in her great little essay. For Finnis, to identify what the law is in its central cases, in its focal meaning, one needs to necessarily justify the law according to the requirements of practical reasonableness. As he explains in his Natural Law and Natural Rights,

“the central case viewpoint itself is the viewpoint of those who not only appeal to practical reasonableness, but also are practically reasonable, that is to say: consistent; attentive to all aspects of human opportunity and flourishing, and aware of their limited commensurability; concerned to remedy deficiencies and breakdowns, and aware of their roots in the various aspects of human personality and in the economic and other material conditions of social interaction. What reason could the descriptive theorist have for rejecting the conceptual choices and discriminations of these persons, when he is selecting the concepts with which he will construct his description of the central case and then of all the other instances of law as a specific social institution?”

So, if you are a good-hearted network neutralist, and not a mean person that dislikes knowledge, openness, and all the other values thought to be inherently associated with the end-to-end principle, you will probably side with Finnis, if only because you are good-hearted and think that to identify something so important as the law cannot be a merely descriptive enterprise, or at least it cannot be evaluative in a sense that disregards your moral perceptions. You must feel it!

You will tend to think that laws such as intellectual property laws in their contemporary form, which do not promote openness and knowledge, are just evil standards that infringe human rights. Intellectual property laws, for you, are definitely not the picture we have of law in the practical viewpoint. They may be law in the sense that the legal positivists assign to it, but they are certainly not what law means in its central cases.

But the end-to-end principle, if framed in the law, would be different from the matter of intellectual property laws. It would be plentiful of moral reasons. It would be law as it is and as it ought to be. And you would hold it close to your heart, light a candle for it every night, and dream of the beautiful stories John Finnis tells in his book. End-to-end, for you, is the way to moral perfection.

Network Neutralists

How so do you claim to be neutral — or, actually, how do you expect Internet Service Providers to be neutral when identifying the law? For do not you want to enforce a law pontificating the end-to-end principle and want the ISPs to apply such law when dealing with their customers? Do not the Internet Service Providers need to grasp what such commitment means, in understanding what the law is? Does not this involve some sort of moral evaluation, according to the theory of law you embrace?

You will say: “No, no. Do not you notice the difference? I do not claim that Internet Service Providers should be morally neutral when identifying the law. I mean they should be neutral when routing packages of data around. They should not be neutral about the law. They should just be neutral about those packages of data. It is precisely because they accept the moral propositions embedded in a law that they identify using their most acute moral senses that they will be neutral with regard to the flow of information in the Internet. If you do not agree with me, you are a legal positivist!” — i.e. an evil legal theorist.

Brave, but too quick. Let me throw two options at you.

In the first of them, you believe the end-to-end principle to be a rule without exceptions. You are fully committed to the value of equality… between packages of data. You are not so much concerned about what this implies with regard to the idea of priority of persons — when your concern is with equality amongst things. You also understand equality as a formal commitment, and not a substantial and circumstantial achievement in a world full of deep inequalities. It is ex-ante equality amongst unequals that matters. For to pursue a substantial rule of equality in the Internet, to assign a role to ISPs in remedying circumstantial cases of inequality, this would be paralyzing. The fact that the current Internet is a second-best infrastructure — that the best one would be that based on the spectrum commons that Prof Benkler proposes –, that it has finite resources that need to be adequately managed, does not seem to matter so much, if it matters at all to you.

If this full-blooded understanding of the end-to-principle holds you would conceive of ISPs that are not only neutral with regard to packages of data, but that are also neutral with regard to the law. Law for them would be something they would identify only by looking at its sources, not at its merits. They would not attempt to morally evaluate or justify the law, and thus they would not attempt to morally evaluate or justify the end-to-end principle. Of course, all of us think that censorship is bad, and that the value of life is good. But ISPs should not think; they should not reason in practical terms. Between bittorrents and heart surgery bitstreams there should be no preferences. They must assign the same priority to BitTorrent.com and CornellHeartSurgery.org. Dare they to charge one more than they charge the other; dare they to mitigate the end-to-end principle to meet their or any principle of justice.

But then you would say that this is not true; that I am mischaracterizing your view. For you are the good-hearted one, and not the legal positivist. That is probably me, if I am against a principle of network neutrality. Your view is now not that extreme any more. You and the also good-hearted people from the FCC believe that “[t]o encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of her choice; [...] consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement” etc. You also believe that “these principles [...] are subject to reasonable network management”. And then I am quite at loss as to what you believe.

Because to identify what the lawful is or what the needs of law enforcement are, or to place both issues in the context of reasonable network management, this could make us “wave deep into the waters of moral evaluation”. But perhaps this is not exactly what you want ISPs to do — perhaps you may think ISPs are inherently immoral; or at least not the ideal locus for moral evaluation. You would quickly add to your understanding, then, with commissioner Copps, that “[t]hese are evolving technologies and sometimes the line between reasonable network management and outright discrimination can be less than crystal clear. But that’s why we need a for-sure enforcement process, to sift through complaints, to make the judgment calls, and, over time, to compile some case law and precedent so things become clearer”.

Commissioner Copps does have a nice name to enforce the rule of law. And you believe, as I do, in all the power of the rule of law. You believe it is an achievement of democracy that we accept the exclusionary reasons provided by the rule of law, and that stable institutions must be in place to enforce it. That only then we do have a free society. And precisely because you trust the rule of law so much, you want to diminish the leeway for decision of Internet Service Providers. This is the direction we should walk towards: the direction of a for-sure enforcement process. Your image of heaven is one in which ISPs should not have any moral role in identifying the rule of law. It should be there, majestic, surrounded by waters of crisp certainty, or at least subject to disagreements that do not involve their moral perplexities. No zones of penumbra; no hard cases; a for-sure enforcement process.

And then we are back at our point of departure.

In short, if network neutralists believe ISPs can treat packages of data with a for-sure equality (an equality they should actually be assigning to persons), that ISPs must understand the law only by looking at its sources, without resorting to morally evaluating the law according to standards of practical reasonableness which ISPs themselves judge to be sound — if you believe so either because the law embraces a full-blooded end-to-end principle or because the FCC provides for a for-sure enforcement that fills in the blanks of such principle –, then the underlying assumption of network neutrality is not too different from the sources thesis. Network neutralists are legal positivists. And, worse than this, should we conclude that the end-to-end principle, if taken without a grain of salt, is actually an unfair principle, network neutralists of the first sort would be actually going even beyond anything that is meant by legal positivists.

For, let us remember, legal positivists do not advocate that laws should not pursue moral purposes. They just believe the identification of law’s inner morality is not necessary to grasp the existence and validity of a legal norm. So, after all, perhaps network neutralists should not feel so bad for being legal positivists. Or they may get rid of the tag by blaming ISPs. They may say: “it is not that we are legal positivists; we just happen to think that ISPs themselves should be legal positivists”; or, else, “it is not that we are neutral; we just happen to believe ISPs themselves should be neutral”.

And states that advocate a principle of network neutrality could then also join the bal masqué. As if to enforce a principle of network neutrality — when state A tells ISP B he must be neutral between X and Y — did not mean that state A is, himself, neutral between X and Y. Or network neutralists may finally attempt to get rid of the tag by saying that network neutrality is “just an ideal”.

A positivist theory of law may very well be the perfect image of such an ideal.

Hamburg, 12.06.08

[to be continued]

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I am grateful to the Hans Bredow Institute for Media Research at the University of Hamburg for the opportunity to develop the ideas featured in the post above and, with more detail, in upcoming publications. I am here in the course of a two-month visiting fellowship with support of the Alcatel-Lucent Foundation. The views above, however, are my personal views and do not necessarily reflect any institutional position of the HBI or of my supporters.
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(1) Let me be truthful and note, though, that to perceive that the intersection between legal philosophy and the regulation of the Internet is an area of uncomfortable scholarship is not a characteristic which belongs exclusively to either side of the debate. This is, very unfortunately, a widespread belief amongst some cyber-scholars. But this should actually prompt us to ask ourselves: is it not a role of scholarship in general exactly to be uncomfortable; to revolve the very bases of our settled understandings? Unless we focus on the many problems that are posed in this area to our accepted paradigms of the institutions of law, and that we do so beyond storytelling, in light of established debates in legal theory which are very worth being revisited, the thing some use to call the cyber-law will unfortunately continue to be perceived, by legal scholars that (rightly) revere tradition, as a kind of peculiar field — a “law of the horse”. And we will not solve this problem by merely trying to explain the horse. The horse, in itself, does not illuminate the law.

Professor Michael Geist has just published his first impressions on what I hope does not become a Canadian version of the US Digital Millennium Copyright Act.

The Bill C-61 was tabled today by Industry Minister Jim Prentice and seems to have provisions much worse than those of its inpiring statute.

I am yet to read it, but you can blindly trust the source (of the post, not the Bill).

As Professor Geist notes, Bill C-61 goes much beyond what Canada would need to comply with the WIPO Internet Treaties.

My understanding on the matter is that this would violate a customary international human rights obligation to progressively realize the human right of access to knowledge.

As such, it would constitute a clear retrogressive measure with regard to such right and could face justiciability, if not yet before the Committee on Economic, Social and Cultural Rights, certainly before the Supreme Court of Canada.

Binnie J — our Hercules in Théberge — would be ready to smash it!

Did you know that Public Procurement corresponds to 16% of the European Union’s GDP?

Did you know that, much more than being distant bureaucratic rituals for purchasing goods and services, public procurement processes actually enable the achievement of several public policy goals within the internal market?

In spite of that, few are the intergovernmental initiatives that focus on the development of legal, organizational and technological frameworks to enable the establishment of efficient cross-border public procurement processes.

An article I wrote last year in the context of the Breaking Barriers to eGovernment Project has just been released in the Public Procurement Law Review (published by Sweet & Maxwell, and edited by Prof Sue Arrowsmith, from the University of Nottingham’s Public Procurement Research Group).

It analyses one of these very few initiatives — but nonetheless a promising one — on cross-border electronic procurement at the EU level: the Northern European Subset, an OASIS UBL-based framework for achieving technical interoperability in (now) pan-European electronic transactions.

The article does so from a multiplicity of perspectives — not only from an EU law and policy standpoint, but also considering different technical and organizational factors which were explored in the Breaking Barriers to eGovernment Project.

If you follow this blog, you must know this is certainly an unlikely area for me to focus on. But I must say it was at the same time challenging and gratifying to expand the breadth of my research to encompass a subject that does deserve to attract more eyeballs in Internet law and policy scholarship.

And, of course, it was an honour to be part of the Breaking Barriers team, competently led by Dr Rebecca Eynon.

The Brazilian Superior Court of Labour (TST) has just come to issue a curious decision on privacy expectations and “taste” in matters concerning labour relationships. In a nutshell, reaffirming earlier decisions, the court basically denied any reasonable expectation of privacy that someone may hold with regard to the use of a corporative e-mail account. However, in doing so, the TST, which is the highest court in Brazil for judging appeals on legal issues involving labour, came to confirm a decision by a lower court that, amongst other things, had bemoaned an employee’s use of his corporative e-mail account for circulating content deemed to be “futile” and of “extremely bad taste“.

The TST understood that, “if the employee uses the corporative account for personal issues, he must do so being conscious that the access by the employer does not constitute violation of his personal correspondence, let alone of his privacy or intimacy, as what is at stake are equipment and technologies provided by the employer for being used in the job and to achieve the ends of the enterprise”. Amongst the messages sent by the employee were messages of pornographic character and messages encouraging discrimination. But are pornography and discrimination in a labour context merely a matter of intellectual depth and of taste?

I

One of the reasons adopted by the TST was the broader context in which entrepreneurial activities are understood under Brazilian law. Brazil adopts the so-called “theory of the enterprise” — which means that we have abandoned the older Italian “theory of the acts of commerce” and embraced the newer Italian theory that focuses on the enterprise as an activity.

Such an activity, as we see it, is directed towards broader societal goals; the enterprise is not simply a decontextualized sequence of acts of commerce practiced by a merchant. The enterprise is a living thing; it is a continuum of purposed acts directed towards a social function. Italian jurist Alberto Asquini rightly noted that the enterprise can be focused on from many different angles (the subjects behind it, the institution, the goodwill that belongs to it, and its functions). None of these angles have achieved as much relevance in contemporary commercial law as the functional angle of the enterprise.

The e-mail account, the court understood, should be at the service of the enterprise’s functions. It is a tool to lend expeditiousness and efficiency to them; to enable the achievement of the “social object of the enterprise, which justifies its existence and must be in the centre of the interest of all those that take part in it, inclusively by means of the labour agreement”.

As the late Italian jurist Tullio Ascarelli rightly noted, the social agreement behind the formation of an entrepreneurial society is a “multilateral agreement” to which partners converge with a same, shared interest (think of the GPL). The theory of the enterprise takes this further. It shows that the spirit of such multilateral agreement actually encompasses a broader community — it involves as much the shareholders as all other people for whose lives the enterprise matters. “[T]he interest of all those that take part in [the enterprise]“, as the TST says, in the singular, is an interest in the achievement of the social functions of the enterprise. And the e-mail account, the court thinks, must instrument this achievement.

II

Here is what really matters in all this. I am normally not an advocate of state restraint as an overall principle. At least, for more that I value the ideas of subsidiarity and the liberal principle, I do not understand that doctrines of neutrality are a desirable dimension of political restraint. Neutrality advocates that states should not take a stance on different conceptions of the good life. It paralyzes us before the difficulties of incommensurability. Above all, as you know, I am against neutrality as a general principle of technology law and politics. But this does not mean that I believe that restraint is always to be condemned. Here we have a clear case in which I understand the courts should have restrained themselves.

This is so as the enterprise is not an exoteric locus where things happen only now and then: the enterprise is the very core of most of the decisions that really matter to social life. Precisely because the enterprise is an activity with a function of elevated social relevance the courts must measure the reach of the sort of control that their decisions enable by anyone that takes part in that activity. Precisely because the activity must not be subverted by a totalizing power of any of the parts involved in it, because totalitarianism, wherever it happens, subverts the social goals that any form of organization must serve, we should strive to preserve an exquisite equilibrium that enables an as free as possible pursuit of those goals. Language matters in here.

Of course, to use the corporate account to spread pornography and foster prejudice is bad. But even worse is to enable a totalitarian control over those which may happen to constitute matters of “bad taste” or “futility”. This is as bad if defined by the state as it may be if defined by a corporation. Let us resort to defining the values that a corporation must hold, and that should be entailed in the different agreements that bring an enterprise to existence. Let us speak of emails that may happen to contradict those values in any meaningful sense. But, please, if someone is to be fired only by virtue of their bad taste or of their being futile, not only the rates of unemployment would rise to levels as high as where imbecility stands, but the number and diversity of beliefs that a truly free market must reflect would be replaced by a paralyzing fear of the sort that Brazil and the world deeply want to forget. Democracy must also be one of the social functions of the enterprise.

Last Tuesday I attended an outstanding workshop on Virtual Worlds, which was organized by the Hans-Bredow-Institute for Media Research (where I am, as a Visiting Fellow, until the end of June) and the Friedrigh-Ebert-Stiftung. Fantastic names in the panels, insightful presentations, and much food for thought with regard to my own research topic.

***

:: Natural Law, Virtual Worlds ::

The workshop left me thinking about if and how the very idea of natural law may be reflected in our perception of virtual worlds. Are there basic forms of good accessible by practical reason that may exist in all virtual worlds, no matter how much these worlds may vary?

:: Each Sword its World… ::

Richard Bartle gave me a short answer: no! — virtual worlds are just too different. The idea of transporting a sword from one virtual world to another makes as much sense as the idea of bringing the sword from the virtual to the actual world. In one world you may want to have property — and thus to protect property may make sense — but in other stealing may be the rule.

:: …or Transcendental Forms of Good? ::

True enough. But is it not also true that in both virtual and actual worlds, though people will have different ways of relating to each other with regard to things they have as the object of their social relations, though people may conceive of different ways of acquiring and transmiting their wealth, be it by invention, be it by what would otherwise constitute the tort of conversion, is it not true that in both worlds people may expect to be treated as persons — i.e. as subjects, and not as objects of rights?

Of course, stealing may be the rule in a virtual world, but even if this is so people may still want equal possibilities of stealing. Instead of investing time and emotional efforts in constructing objects, people will then play by the rules and invest time and emotional efforts in improving their thieving techniques. Even in Barbary there is still civilization. If only because we are still persons, and not things.

What is the point of playing a game in which your avatar and you are permanently enslaved, blindfold, audibly impaired, and have no number and diversity of choices available for authoring their lives? — the concept of authorship as autonomy, which is perhaps nowhere more vivid than in virtual worlds.

Also, people may want to know in advance what the rules that enable them to act lawfully in a virtual world are. Because people treasure their own ability to reason in practical terms, because people believe it is virtuous to reason as such, people will want the rule of law to be open, clear, coherent, prospective, and stable — these which Endicott points as the consensual requirements about the ideal of the rule of law. People may conceive of laws that are vague, but not so vague as not to be able to provide them with reasons for action.

Personhood, knowledge, and practical reason — which John Finnis, amongst others, identify as basic forms of good — are natural expectations that people hold as much with regard to virtual worlds as they do with regard to the actual one. The way personhood, knowledge, and practical reason will be fulfilled in virtual worlds will of course vary. But not our perception of their intrinsic value.

:: On Owning a Sword ::

The concept of property… perhaps. Joshua Fairfield raised some of the efficiency arguments he had raised before in his brilliant Virtual Property — which I read in 2005, during my year in Ottawa. It was nice to re-encouter his ideas. As he said in the workshop, however, virtual property is not a necessary concept to prevent abuses from the creators of virtual worlds — it is perhaps just a more efficient way to allocate resources than contract law is. [1]

Efficient or not, the idea of necessity is important indeed to be closely scrutinized. Not only the rules of these worlds may vary, but full-blooded exclusionary property institutions are perhaps not inherent to human nature. Rather, the limits of private property as a natural right, even if deeply controversial, do not certainly match the possibilities of wealth that efficiency-optimizing economic institutions conceive of.

As the American Declaration of the Rights and Duties of the Man proclaim: “[e]very person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home“. Our lack of agreement on whether property is a civil or social right left the right to property outside of both the ICCPR and the ICESCR. The Universal Declaration of Human Rights does recognize the right to own property alone as well as in association with others. But it does not trace the boundaries between both these dimensions.

In the end, whether these boundaries are to be traced within virtual worlds or to be abandoned altogether once we enter a space of unrivalrous coexistence will be exclusively up to our imagination to determine. But to no extent can one deny that virtual worlds offer us an unprecedented opportunity to revisit the very concept of community and to make better sense of the value of friendship — even friendship reflected in the most ludic forms of enmity.

:: The Extent of Fiction ::

But imagination was, of course, abundant in the event. Brian Camp spoke of virtual worlds as theater; Oliver Castendyk developed an interesting analysis of the concept of fiction. However, none of these metaphors fully grasps virtual worlds. And to this effect Bartle is right. It is utterly important to determine the way in which virtual worlds differ.

Virtual, the idea of being-there, does not oppose reality; it opposes actuality. The virtual is real through and through — both before and after it is actualized. Camp and Castendyk are right that the virtual can reflect forms of fiction, as much as our actual world can do. But in the virtual, as in the actual, fiction is a merely contingent instance of our social reality. Virtual worlds exist that are more fictitious, others that aim to reproduce more or less precisely what occurs in the actual world.

The extent of fiction is important to grasp. Virtual worlds may reflect the virtualization of actual social institutions, or they may be an extension of imaginated ones which are made actual in and through them. The extent of fiction will vary in the same proportion that the institutions of virtual worlds correspond to the social institutions of our actual world. And so will the legal arrangements they may bring about; the reasonable expectations of rights we may have “within” those worlds.

The shapes natural rights will assume then are as much dependent on the social arrangements of these worlds as human values are socially dependent concepts. But it is unequivocal that basic forms of value will exist in all of them. This does not depend on the extent of fiction. Different communities exist in the actual world. We may even perhaps claim that we do not have one actual world, but different formal or informal normative orders that exist in different places and in different times. We may very well live in deeply different worlds here in our actual space. Some normative expectations, however, remain the same in all of these worlds, no matter how much their shape may evolve in space and time; no matter how virtual or actual these worlds may be.

:: The Is, the Ought, and the Neutral ::

As acutely noted by Viktor Mayer-Schönberger at some point, a distinction permeated the debate as a whole: we were concerned with discussing law as it is, and not as it ought to be. Contract law, property law, different areas of regulation. A descriptive discussion, which we would do well in expanding towards more normative zones.

But the remark implied that there is a distinction between law as it is and as it ought to be. If such distinction holds, we may perhaps identify what the law is without resorting to moral evaluation. Natural law, however, presents an indisputable instance of convergence between what is and what ought to be – no matter how much legal positivists and intepretivists may diverge on the place of moral evaluation in legal theory.

In Bartle’s theory, however, there is neither is nor ought. Nothing remains but a Humeian perception of human nature. In deeply varying universes “['t]is not contrary to reason for me to prefer the destruction of the whole world to the scratching of my finger. ‘Tis not contrary to reason for me to choose my total ruin to prevent the least uneasiness of an Indian or person wholly unknown to me. ‘Tis as little contrary to reason to prefer even my own acknowledged lesser good to my greater, and have a more ardent affection for the former than the letter. A trivial good may, from certain circumstances, produce a desire superior to what arises from the greatest and most valuable enjoyment”.

That this may hold when fiction holds is sensible enough for me. But when real aspirations are at stake practical reason is called upon.

Bartle’s form of thinking reminds me of a principle which is often thought to be a learned one by the wisdom of the crowds: the end-to-end principle in Internet communication, which is the basis of what is currently understood as the principle of network neutrality. Here, as there, everything holds. Openness and freedom are unfettered ideals; innovation and participation are thought to be valuable in themselves — as if they would be always at service of persons, knowledge and practical reason.

More often than not, however, natural law points us to the limitations and possibilities of our aspirations to liberty. Neutrality does not enable us to author our lives; actually or virtually so.

***

[1] I truly find Fairfield’s analysis brilliant, but I have always had my mixed feelings as to if and why we should really find either a tragedy of the commons or a tragedy of the anti-commons as a problem to be addressed in the Internet. As there is no scarcity and rivalrousness there is no overexploitation. And the problem of fragmentation only arises if we create it.

Contract law does not necessarily need to be fragmentary. Liberal networked models of contract such as the GPL and the Creative Commons Licenses do not prompt such kind of problem. They actually work as outstanding models of self-regulation, that the state can easily transform in a model of co-regulation instead of necessarily institutionalizing property systems. We do not need copyright to make copyleft work if the law embeds copyleft as a possibility in the institutional normative order, do we? And challenges of coordination that these kinds of licensing may create in a world of atoms may be easily circumvented in a world of bits — we can make social and legal relationships visible and enable (beneficiary) transactions as never before.

Perhaps cyberspace is a space for institutional imagination in this regard; rather than a place to import old institutions adding some twists to pretend them suitable for a new reality which is just overall different. As Ren Reynolds said, and well so, in the workshop, law is a semiotic concept; Neil McCormick puts, similarly, that law is an institutional normative order. In virtual worlds, it is even more so. Not even the underlying reality it tackles is a fixed concept; let alone our understanding of it. Virtual worlds, their norms and their law are something we can imagine through and through. The limits are merely those given by our deeply real human nature.

India’s delegation has decided to sustain its negative position on ISO’s ongoing deliberations over OOXML certification — and thus to favour ODF.

As much as good neutral Google continues to call governments for network neutrality, good neutral Microsoft continues to call governments for technological neutrality. India was not seduced. In reply, Microsoft said:

The Indian government, industry stalwarts and trade bodies have supported multiple standards and technology neutrality. We will therefore continue to work with the government to address any concerns they may have; and to achieve its stated goal of technology neutrality. We are committed to working towards what is best for the Indian IT industry.

I have seen this film before in Brazil. It culminated with my boss (Sergio Amadeu da Silveira, President of the Brazilian IT Institute) being sued for saying in a high profile magazine that Microsoft uses drug-dealer techniques — in reference to its customer retention practices, which are said to benefit from piracy to a great extent. For this reason or not, the Ministries’ Esplanade in Brasilia was quite captivated by the proprietary charm, before things started to change in 2003, led by the Brazilian IT Institute.

When Amadeu was sued, the FLOSS community at large reacted promptly by launching the campaign “Brazil has the right to choose“. The lawsuit gained international attention. Lessig blogged about it. Sergio Amadeu himself issued a quite moving press release — a translation of which can be found here. Julian Dibbell wrote the best article ever about those times.

The message issued by Brazil was clear: governments do have, more than the power, the duty to embrace a set of values that suitably reflects the democratic principle and its many corollaries. And the software they use, the architecture they choose for governmental functions to run upon, must also reflect such values.

Now India reverberates that same message. And, as Brazil, India is also reprimanded for not being technology neutral.

I would be happy if Microsoft could lay out more clearly its legal and political theory of neutrality. At the very least, I cannot understand why to endorse OOXML is neutral in a sense that to adopt ODF is not.

–

Note: I do not defend that the endorsement of ODF is any expression of technological neutrality. Microsoft is right in assuming that to choose the ODF standard is not to be technology neutral. But Microsoft is wrong in assuming that we could, or should be technology neutral.

It takes a thesis to explain that, but one basic idea is this: we can focus on technological artefacts from different angles — be it their functions, their architectures, their development models, amongst others. In this sense, technological artefacts are polyhedric concepts, rather than flat, uni-dimensional ones. They are multi-faceted. And from whatever face, from whatever perspective we decide to approach them, there will be values we may wish, or be compelled to promote. Even if we could remain neutral amongst them with regard to their functions, to choose on their architecture is to choose amongst them in spite of the similarity of their functions.

Laws and policies will be always choosing on the configuration of one of their perspectives — on the values that one of their faces will reflect; on the way society itself will see its values mirrored by a particular face of technological artefacts. In effect, laws and policies do not regulate technological artefacts for their own sake, but for the way they interact with and modify values that are important for our society.

In choosing on the configuration of technological artefacts, from whatever perspective this may happen, laws, policies and standards will be displacing artefacts in accordance with the values that should be reflected in their design. To undertake not to discriminate amongst those that have the same function — e.g. productivity suites — is to focus on the bellybutton of a much more complex picture.

The role of law is one of providing valuable reasons for action. These reasons will be as numerous and diversified as the values at stake in social relations involving technological artefacts are. They will be reasons that enable us to author our lives. From whatever perspective it takes.

Barack Obama’s speech last Tuesday was the most learned and sensitive political address I have heard in my adult life. In its springing contradictions lies its power; its quasi-musical ability to rearrange a set of utterly dissonant notes in a deep and painful and yet healing and inspiring melody. It was pious. It was humbling and transformative in a way I would expect even his opponents to recognize. At least the one from his own party.

I would indeed expect that Senator Clinton would have the grandeur to appear publicly and state that, in spite of their differences throughout the campaign, she truly believes Obama did what was right and courageous to do. She would be saying: I am tough, but I am fair. She would be putting all the racially tinted controversies behind and, she as well, staying above them. Not doing so, Senator Clinton is being neither tough nor fair.

Besides, in Internet times, she has already lost the opportunity to stay above. The New York Times itself, which had chosen to back her, has already published an account of how long a long shot has her campaign become. Any public endorsement of Barack Obama’s speech will now sound politically motivated and insincere.

This episode is interesting for us to reflect on how sensitive to an almost instantaneously formed public opinion media has become — and how much this demands from present or aspiring political authorities. Public judgment is swift and calls for an equally expeditious, and yet sounder judgment from those who are being judged. This is a great paradox of contemporary politics. Political decisions must, on the one hand, be ready to accept the power manifested by public opinion — the power of direct democracy, the wisdom of the crowds, which, given the right constraints, is made possible by the Internet. However, on the other hand, political decisions must also be ready to subvert the public opinion by delivering to society a judgment which is, all things considered, sounder. [1]

It is a discursive process between democracy and authority, between autonomy and heteronomy; a dialectics that will occur in increasingly shorter — if to any extent measurable — time cycles.

Information and communication technologies have indeed revolved our perceptions of time. We are at loss on how to measure the sequencing of events, if yet there is any natural sequence at all to be measured. Now and then we attempt to do it by decree. In EarthWeb v. Schlack, Judge Pauley III denied enforcement to a one-year non-compete clause under the argument that, in the Internet environment, “a one-year hiatus from the workforce is several generations, if not an eternity”. One year was not a reasonable unit of time. But what would be an endurable definition of a reasonable unit of time? Would there be any unit?

Manuel Castells has said that time in the space of flows is timeless time, for the rise of the network society shatters our patterns of a linear, irreversible, measurable, and predictable time. The informational paradigm and the network society bring about a “systematic perturbation in the sequential order of phenomena” — an order of successions being the Leibnizian notion of time. And yet, in Castells’s words, “[t]imelessness sails in an ocean surrounded by time-bound shores, from where still can be heard the laments of time-chained creatures”.

Time has definitely bound, if not chained Senator Clinton. And however doubtful any units of measurement may be to assert this fact, perhaps to note that a Brazilian, with a much assorted ancestry, is blogging about the US elections from the ancient corners of an European university will be, in itself, revealing.

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[1] Note: I am reminded of the June 12th session of the debates in the Federal Convention of 1787 — the Philadelphia Convention, whose result was the United States Constitution. There, James Madison uttered these words:

[I]f the opinions of the people were to be our guide, it wd. be difficult to say what course we ought to take. No member of the Convention could say what the opinions of his Constituents were at this time; much less could he say what they would think if possessed of the information & lights possessed by the members here; & still less what would be their way of thinking 6 or 12 months hence. We ought to consider what was right & necessary in itself for the attainment of a proper Governmt. A plan adjusted to this idea will recommend itself — The respectability of this convention will give weight to their recommendation of it.

Different times?

The Organisation for Economic Cooperation and Development (OECD) has released the working paper “At a Crossroads: “Personhood” and Digital Identity in the Information Society”, under its Directorate for Science, Technology and Industry.

The project was brilliantly led by Mary Rundle, Berkman Center, OII, and Stanford CIS Fellow. Co-authors are Bob Blakley, Jeff Broberg, Anthony Nadalin, Dale Olds, Mary Ruddy, Mary Rundle, me, and Paul Trevithick.

The paper enlarges on nine properties that “identities”, as artefacts that refer to “persons”, hold in different contexts. A better understanding of these properties — the Properties of Identity — provides important normative guidance on how policy makers and software developers can devise identity management systems that are faithful to the links that shall exist between identity and personhood.

The paper does that from the perspectives of markets, governments, and users. It also suggests some important grounds on which to revisit the OECD Privacy Guidelines.

Really worth checking!

Forbes.com reports that Baidu, the leading search engine in China, is being sued by the Music Copyright Society of China and R2G for providing access to, and making profits from, pirated content. My colleague Wolf Richter had already blogged about the efforts from IFPI and the majors to boost copyright enforcement measures in the country.

What I found quite curious this time was the following statement from MCSC and R2G:

Baidu hides behind the guise of a ‘neutral search engine’ and employs sophisticated secret music Web sites and deep links which without the requisite technology expertise makes it almost impossible for copyright holders to detect and protect their rights by exposing Baidu’s dubious activities.

Well, is the music industry being neutral in its unremitting effort to make the Chinese society assimilate values that are so foreign to their culture? Would Baidu be a “neutral search engine” if mechanisms to enforce copyright protection were embedded in it?

It is particularly interesting to notice that the name Baidu itself means “hundreds of times”, and represents a “persistent search for the ideal“.

Instead of bemoaning Baidu’s lack of neutrality, the real point that the music industry should be mulling over is… whose ideal(s)?