Vitanuova for 2002 May
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"By reading this letter, you agree to make five copies and send them to friends. Permission is granted to make and distribute verbatim copies of this chain letter, provided this sentence and the preceding sentence accompany each copy. [...] Alan Turing passed this letter along to everyone at Bletchley Park, and he got a machine named after him. Every machine named after him. But poor Jack Valenti broke the chain, and ever since he's had to run the Motion Picture Association."

The EFF's new music video is hilarious. Look for a release some time very soon.

Happy May Day.

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  6. E2-E3 ...

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This pattern repeats itself again. My e-mail from three years ago, which I happened upon, contains innocuous, ordinary things which now seem tragic in retrospect. And on the pedestal these words appear: 

>-- 
>                    Seth David Schoen <schoen@loyalty.org>
>      They said look at the light we're giving you,  /  And the darkness
>      that we're saving you from.   -- Dar Williams, "The Great Unknown"
>  http://ishmael.geecs.org/~sigma/  (personal)  http://www.loyalty.org/  (CAF)

My elegant made-in-Switzerland switch, which we all thought was an SPST toggle switch, is actually a momentary SPST normally-closed switch. It does make a lovely, satisfying click, though.

It seems that they make a DPST version -- there's some empty space in the switch where another pole would go. I'm happy that some kind person taught me the difference between SPDT and DPST when I was a child. So why not go and teach a child the same?

This dates back a few weeks, at least. I made some notes at the time toward a diary entry, and here it is.

As I was walking home along Shotwell one evening, a thought began to run through my head: "Skepticism Is No Fun" or possibly "Skepticism Is Not Fun". The phrase reminded me of Ian Goldberg's remark at DEF CON last summer: "Suddenly, your TCP three-way handshake is no fun anymore!" But Ian was talking about high network latencies, and I was thinking a little more generally.

What I thought that evening I wished children could know is that skepticism is in some way the equivalent of the "nuclear option", as people used to refer to it during the Cold War of my youth. "Nuclear option" is a phrase which originally referred to the literal possibility of using nuclear weapons. Somehow it came into use as a metaphor for something very extreme, very final, very irreversible, a last resort from which there is no return.

I had the thought that skepticism is lots of fun when you can wield it a weapon against someone else, to undermine your adversary's beliefs until they collapse. But subsequently, when once it has been introduced, it can be used against you in return.

Along Shotwell that evening I saw a bumper sticker with a cross, or a fish, and the legend Dios Te Ama.

So I thought of the excursions or vacations people used to try to take into skepticism.

Supponam igitur non optimum Deum, fontem veritatis, sed genium aliquem malignum, eundemque summum potentem & callidum, omnem suam industriam in eo posuisse, ut me falleret: putabo coelum, aerem, terram, colores, figuras, sonos, cunctaque externa nihil aliud esse quam ludificationes somniorum, quibus insidias credulitati meae tetendit: considerabo meipsum tanquam manus non habentum, non oculos, non carnem, non sanguinem, non aliquem sensum, sed haec omnia me habere falso opinantem.

I shall therefore suppose that (rather than the most noble God, source of truth) some evil genius, and he ideally powerful and clever, has placed all of his ability in the goal of deceiving me: I shall imagine that the sky, the air, the earth, colors, shapes, sounds, and everything outside of me are nothing but the figments of dreams, by which he has prepared deceptions for my belief. I shall even consider that I do not have hands, do not have eyes, do not have flesh, do not have blood, do not have any sense, but instead that I falsely believe that I have all these things.

(Descartes, Meditationes I, 12)

Then they would come back from them somehow into ordinary life where they could again have their beliefs.

But I thought that skepticism really means not knowing whether Dios Te Ama -- not only an ability to attack someone else's belief, but a matter of being finally uncertain.

LawMeme pointed me at another blog called Copyfight: IP Law, Politics and Technology on the Net.

I visited Michelle in Berkeley and played Dance Dance Revolution again.

I looked around for information on electroluminescent wire (also called EL wire, cool neon, or cold neon). This is a neat flexible wire which glows brightly under a high voltage (but extremely low current) AC (low enough power that you can drive an inverter directly from a 9V battery, or even a smaller battery). I've never yet used EL wire, but I've read about a few projects which made use of it, and I might be using some in graduation cap projects this spring.

Happy Cinco de Mayo, Orthodox Easter, and happy birthday to Kate.

One of several remarkable observations:

[...] and it is this same joint stock of technology that gives to the modern world's tangible assets whatever use and value they have. Tangible assets, considered simply as material objects, are inert, transient and trivial, compared with the abiding efficiency of that living structure of technology that has created them and continues to turn them to account.

(Thorstein Veblen, Absentee Ownership: The Case of America, p. 65)

If you want a picture of the future, imagine a customer on hold listening to a pre-scripted sales pitch -- forever.

I went to Berkeley for the third time out of what should be four times in four days. This time, I was hoping to hear a lecture by Eric Raymond, but it was cancelled. However, I did get to visit Sumana.

She and I watched Seventh Heaven on TV (earlier in the day, at work: "I might be the only person who calls it 'analog terrestrial broadcast'"; "Yes, you are"). It was a "September 11 memorial" episode which felt unnatural to me. But people all have their own ways of mourning.

We did a fair amount of BPDG stuff today; you can read it on Consensus At Lawyerpoint, if you like, and there's more coming soon.

One of the fun things about working for EFF is reading what John Gilmore has to say to DRM vendors when they ask him to tell them what he really thinks.

Michelle and Andy and I went to see Sumana's farewell Squelch open-mic performance. One of her jokes (which involved an experience almost none of her audience had had) had a punchline along the lines of "You and I have a parallel situation: you x and I x'. But the parallelism breaks down because I y but you not y'!" And this reminded me particularly of the Churchill bit about "I am drunk and you are ugly but I shall be sober in the morning".

Sumana gave me my two red bell peppers, and I wrote a poem called "At EBCLC" about how getting home turned into a different experience entirely, how I reorganized things in my mind so that I was no longer in one story but rather inside a much longer one. I think it's a sad poem; it felt that way when I was writing it.

Poems with acronyms in their titles are a bit unconventional; most places seem to be more poetically named, so two years ago I wrote a poem called "At the Flower Market" which sounds much more natural than "At EBCLC". But "At EBCLC" is more interesting and seems to encompass many experiences -- including the Flower Market. Maybe I could say that it's abbreviated.

I understand that huge cranes will pass under the Bay Bridge at 10:00 tomorrow morning. Spring is here!

I'm going to be on TV news Wednesday night -- on two different stations.

There was a report that Lucas Helder was arrested after his cell phone was tracked (although other press reports simply suggest that FBI agents called him on his cell phone to ask him to surrender). So two TV news programs wanted to know how you track people and what triangulation is. We tried to talk to them about CALEA and E-911; I said there were many ways to track phones and law enforcement could do it in a truck or serve a court order on the cell phone carrier to get its assistance. There were various discussions about targeting ads to cell phones.

One of the reporters thought it was funny when I told her that I didn't own a cell phone or a television (but still gave press interviews about both technologies).

I think the reports will be on KGO 7 and KRON 4 (NTSC analog terrestrial broadcast).

Oh, and keep an eye out for an upcoming issue of BusinessWeek.

Judge Whyte denied both of Elcomsoft's constitutional motions to dismiss. You can read his order on the EFF web site. He holds that software is speech, but applies intermediate scrutiny.

So my acupuncturist saw me on TV. I suspect I was on both KGO and KRON's evening news.

Speaking of TV, I have displeased NAB.

A Google search for "seth-schoen -myronuk -site:bpdg.blogs.eff.org" is really educational for me because it reminds me of all sorts of things I'd begun to forget about. (It excludes references to me which called me "Seth D. Schoen" or "Seth David Schoen". The "-myronuk" is meant to exclude things I wrote myself on mailing lists recently.)

One thing I learned from this search is that there is another Seth Schoen, a saxophonist from Nebraska. Seriously.

Leonard told me about pyDDR, which sounds like fun, especially if I had a joystick pad and a ground-floor apartment.

"... billionaire sports team owners, librarians, libertarians, consumer advocates, radio amateurs, multinational corporations, ideologues, magazines, European activists, cryptographers, and did I mention the billionaire sports team owners?"

My favorite long-forgotten quotation about myself from that Google search I mentioned recently:

Seth Schoen, describing himself as "a DVD litigation fan, the way many people are science fiction fans" outlined the history so far of DeCSS, as well as interesting personae and efforts that followed.

(http://www.balug.org/meetOld.html)

A few days ago I mentioned that John Gilmore had written to Intel about DRM; now Cory has published John's comments, so you can see them too.

I went to Berkeley and visited Michelle; my arms hurt; I dropped by the Ashby market and picked up a book called Petroleum in Nigeria, published by Oxford University Press. I'm cleaning up at home right now.

There's further suggestion that vegetarianism is good for you, though probably not if you eat as much junk food as I often have.

Leonard, the scales have attached to them a mouse to provide the on-line bona fides of the freedom in question.

I had a great time on a KALW-FM show with Phil Zimmermann. I owe thanks to the producers for inviting me.

There was an earthquake here, and it was probably the first earthquake I've been awake for and felt distinctly. Earthquakes are weird.

At least the DMCA is making somebody happy.

I do not like BPDG.
I don't want them in my TV.
I do not need them for HD;
I want the right to do RE.
I cannot see that I agree
with Hollings (Sen., D. of S.C.).
I cannot feel that it is just
to force demod to be robust.

I did not like 1201(k).
I wish that it would go away!
I do not see how they can say
that further mandates are O.K.
They do not even know a way --
a way they'd put on Table A --
devised by the DTLA,
or Sony, Sharp, or RCA,
to let Joe Kraus e-mail today
to his wife (she is far away)
a TV clip his son is on.
See how Joe's fair-use rights are gone!

I did like the ATSC.
I liked Standard A/53!
But then they changed PSIP,
a change which passed just recently
(A/65, Amendment 3),
so that I cried: "Oh, woe is me!
I do not like the way that we
have to design around their needs
to see their new DTV feeds!"

I do not like a tech mandate.
A tech mandate I deprecate.
I do not say that it is great,
or that CE should have to wait
for News Corp. to approve new tech:
to that idea I just say "Blech!"

I do not think that the V.C.-
R. has in fact turned out to be
the death knell of the industry,
the way that Mr. Valenti
pledged to the House Subcommittee
on Courts and Justice and I.P.
that it should surely have to be
without a Home Recording Fee.
And though I'm glad about Sony
(the way they beat Univ. City
on writ of certiorari,
argued two times in '83
so we could tape NTSC),
I'm not quite sure if the 5C
are really looking out for me!

I do not like their DRM.
(My rights are mine. They're not for them.)

I do not like Robustness Rules:
I want to use off-the-shelf tools
to modify what I pay for
and teach it to do something more.

I want to publish software code
for code is speech, as Bernstein showed.
I want to speak, in C or rhyme:
8/VSB is not a crime.

(Would you oppose a tech mandate?
Would you say "Do not legislate"?)

I would oppose a tech mandate!
I would say "Do not legislate"!

(Would you oppose it in the House?
Would you stand up to Mickey Mouse?)

I would oppose it in the House!
I would stand up to Mickey Mouse!
And, I suspect, so would Joe Kraus,
and Gateway with its funny cows.

(Would you rise to defend fair use?
Would you fight copyright abuse?)

I would rise to defend fair use!
I would fight copyright abuse!
I would fight, before it's too late,
for my right to demodulate!
I would fight the BPDG
to keep TV receivers free
of mandates by the FCC!

Cory found the best possible title for my recent poem: "Fair Seuss".

I'm off to Berkeley for the weekend, with lots of fun things planned.

I had a nice weekend in Berkeley and also at Biella's reading group (which Biella herself unfortunately couldn't attend). And my arms didn't hurt much over the weekend.

On Sunday, I attended Kate's graduation in the Greek Theatre, in the rain. All the speakers there referred to it, and it was very difficult for anyone attending to forget about it. (The rain has come and gone since then, at least back here in San Francisco.) I also met some of Kate's family and friends, including her sister, with whom I have several common interests and with whom I also recited Lewis Carroll's "Jabberwocky".

It's eerie to read a magazine directed at members of Congress, and I've already said so here, but I'll say so again. I'm used to advertising which wants its readers money, not advertising which seeks political advantage. The advertisers in magazines aimed at politicians are often supporting or opposing particular legislation, and frequently legislation or political programs in which they have a direct financial interest. (For example, ETS will endorse standardized testing, and Boeing will endorse a "national missile defense" system.)

It's usually difficult for political power to avoid rubbing me the wrong way, but this certainly rubs me the wrong way. Maybe we need a lobbying organization which can go to Washington and lobby against Realpolitik and log-rolling. (Some readers might remember the "Abolish Public Policy" joke, an elaboration of earlier self-referential political jokes with an edge to them.)

Oh, yeah: one of my old biases is to believe and expect that legislation is moral expression, so that people with different political beliefs all make some kind of intuitive sense to me if they talk about their opinions for or against legislation (in particular or in general) in terms of right and wrong. But when you talk to or listen to people who actually "do politics" -- engage regularly and directly with legislative politics in ways which are most often understood to be effective -- it doesn't seem that there is any moral expression going on. There are only interests. (Corporate lobbying makes this plainest, because of the incessant reference to balance of trade, balance of payments, relative contribution to the economy.)

My joke "8/VSB is not a crime" (I actually considered registering "8vsbisnotacrime.org") goes to the heart of this for me. Many well-paid and intelligent people are now writing legislation to control the manufacture of 8/VSB demodulators. There was never any suggestion that 8/VSB demodulators are wicked or evil, or that their manufacture is in some sense wrong. In fact, hundreds of entities are manufacturing 8/VSB demodulators today -- literally by the millions -- and nobody would dream of suggesting that any of these entities are thereby doing anything wrong, or harming anybody, or infringing anybody's rights.

8/VSB is a straightforward technical standard (about as neutral as we could imagine a technical standard being, I'd say, from what I know of it). It's verging on pure mathematics in places. The manufacture of 8/VSB modulators and demodulators is routine today.

But it's possible that in a year this same activity will be a criminal violation of a paracopyright law (and almost all these manufacturers, having received advance notice, will have made their 8/VSB demodulators Robust, or issued certifications of compliance to protect themselves).

And in that change there is no suggestion that any sort of moral truth will have been discovered or revealed or announced, or that any sort of moral progress or social progress will have been achieved, or that anyone will have learned anything or become any wiser. There is no suggestion that an existing wrong will have been detected and exposed and punished, or that a terrible practice will have been thwarted. None of these things is in any sense the aim of the proposed legislation. It will rather be that several interests have made a deal, and, much as courts will often lend the force of an Order to a stipulation between parties, the legislature may also lend the force of an Act to a stipulation among these interests.

Maybe this seems particularly stinging to me because I can remember a time in my life when I really thought that legislation was really supposed to be about right and wrong. It's clear enough that it can't determine right and wrong, or pre-empt the individual conscience, but it still seems that many people labor under the assumption that legislators as a group are regularly trying to engage in moral expression. I have even seen serious philosophers take up the cause of this claim, that legislators are actually doing so, and that their Acts should actually be interpreted in this way.

There is a famous saying attributed to Bismarck about laws and sausages; it survives in several variants. Most of them suggest that people who like laws and sausages shouldn't watch how either one is made -- that observing the making of laws and sausages would cause a loss of enthusiasm for them. So not long ago I was sitting in a group of people who were busy writing a law, and one of them alluded to Bismarck's saying, not disapprovingly. This was as if to say: Disrespect us, we are doing something disreputable, we are showing and confirming that legislation is about power, we are undermining the faith of you who are unfortunate enough to have to observe what we are doing.

I called out "I wonder where we will find our Upton Sinclair!" but received no answer.

Stephen Jay Gould has died at sixty.

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  6. E2-E3 E8-G8
  7. F1-D3 ...

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I forgot to mention that I got some EL wire by going in person with Ben to the soldering party at Funhouse Productions. It's nice stuff!

Gosh, if the woman who prompts you when you call the Google voice search doesn't sound like Heather Stern, especially when she says "Okay"!

I recommend reading the briefs of the Eldred amici. (I've read some, but not all, of them.) I thought the appellants in the 2600 case had some stellar support, with brilliant people and careful arguments, but these amici are again remarkable.

Every single "usual suspect" is there (and some of the "somewhat usual suspects", too), but also many others. Some of those who stood out for me:

Association of American Physicians and Surgeons, Phyllis Schlafly, Kenneth J. Arrow, Ronald H. Coase, Milton Friedman, Intel Corporation (in partial support), National Writers Union, Wendell Berry, Ursula K. Leguin, David Foster Wallace, The Consumer Electronics Association, Organization of American Historians.

The Eldred case has made some remarkably strange bedfellows (which you'll see more clearly if you look over the complete list). It would have been nice to see more individual writers on the NWU brief; surely some well-beloved published scientists think retroactive copyright extensions are a bad idea.

If I'd had closer ties to some bookdealers' associations (like MARIAB, ABAA, ABA, and ILAB), I might have tried to gather their support. Bookdealers' intuitions are slightly different from publishers', and slightly different again from librarians', but they tend to be strongly concerned with free expression, access to information, the preservation of history, and the growth of culture and creativity.

OK, I'm going to try to find out what the bookdealers' associations are up to on Eldred.

I found out that bookdealers were not contacted about being amici curiae in the Eldred case -- and that's why they aren't.

I'm having a lot of trouble with my arms again.

I had a great dinner with Katy and then she and Zack and I watched Groundhog Day. (Now I think I recognize the all-important song in that movie as a Sonny Bono original. "Forever, less a day.")

After that, Zack and I had a long and serious conversation about sacred theory.

Ah, backchannels...

It turns out that "lemon" is an anagram of "melon".

Cory pointed out that the Eldred case has cool logos available.

Congratulations to Sumana on her graduation from college today. I got a sunburn, but I had a good time seeing her graduate.

I had an interesting conversation about secondary liability recently; I recalled the "capable of a substantial non-infringing use" standard in the Betamax case.

Since copyright industries' lawyers love to emphasize the narrowness of the Betamax holding (even as they sometimes suggest that even such a narrow holding is obsolete in this Revolutionary New Era of Perfect Digital Copies!), I will here suggest that it was, actually, very narrow. The Supreme Court did suggest (I think in dicta) that substantial-non-infringing-use products could be banned in the future (they just had not been banned yet).

This is reminiscent of another copyright-liability case, U.S. v. LaMacchia, where the court was extremely upset that no legislation actually on the books created criminal liability for LaMacchia's behavior (non-commercial copyright infringement). The court suggested that Congress should pass legislation imposing criminal penalties for such behavior, and it immediately did so (the NET Act).

In the years after Betamax, secondary-liability copyright theories died down in court (until digital recording became widespread, whereupon lots of copyright holders started to suggest that various traditional rights were peculiar to the analog-recording world and didn't carry over at all into the brave new digital world). However, secondary-liability legislation did happen in Congress to some extent; the examples I know offhand are the Audio Home Recording Act of 1992 and both the anticircumvention (1201(a), 1201(b)) and Macrovision mandate (1201(k)) provisions in the Digital Millennium Copyright Act six years later. (I could also add the CMI provisions of that Act, but that's a whole other story.)

I'm sure that's not the limit of secondary-liability legislation, because I can think of several other things which Federal law has restricted to deter copyright infringement -- but I don't actually know the legislative history behind those things. The general point is that Congress has, on a few occasions, acted to outlaw things which did have substantial non-infringing uses. And it's not clear that the Betamax case said that Congress could not do so. I'm pretty sure no judge has ever overturned secondary-liability Federal legislation on the strength of Betamax.

OK, but outside of the entertainment industries, we generally believe (or act as though we believed) that "substantial non-infringing use" is the right rule for secondary copyright liability for every technology and not merely for those technologies about which Congress has not yet spoken -- we seem to believe that Congress was always wrong to create secondary liability for the manufacture or distribution of any of these technologies. (Of course, when we complain about things like the DMCA, which eradicate large portions of the substantial non-infringing technology world outright on a single company's say-so, many people reply that secondary liability legislation is routine (1) outside of the copyright law world and (2) also even within the copyright law world since Betamax but you just didn't notice most of it when it happened.)

This suggests that many people treat "substantial non-infringing use" as a kind of moral principle or public policy principle and not just as a characterization of the proper way to interpret the 1976 Copyright Act. We tend to feel, in other words, that the Betamax decision touched on something which was much deeper than the particular question before the Court -- a freedom of innovation or freedom of manufacture.

There is an old legal maxim abusus non tollit usum which goes back long before Betamax -- "tollit" literally means "picks up" but here means something more like "removes" or "takes away", so "(an) abuse does not eliminate (a good) use". And I think this is intuitive to people if you phrase it that way: "Would you want to be prevented from having something or from doing something just because someone else might abuse it?" Most often the answer is no, at least if you're asking about something the person you're talking to actually values. And we always hear that various DMCA-prescribed "circumvention devices" are "(the equivalent of) a digital crowbar", but we can point out easily enough that crowbars are legal. Behold:

This very crowbar was recently seen -- and used -- at EFF! EFF purchases and uses crowbars in its work! Furthermore, the crowbar was displayed openly (in full view of passers-by), and nobody called the police. It was even purchased openly, likely with cash, at a hardware store some time in the past. (Our paralegal/general contractor was doing a little remodeling.)

So there's a particularly excellent irony in the fact that crowbars are a legal technology and readily available to the public; the fact that they can be used by burglars (and often are used by burglars, and crowbar manufacturers are aware of this) has not deterred the manufacture and sale of these implements. And they are obviously very useful for both legal and illegal purposes.

On the other hand, if MPAA attorneys (hi guys!) wanted to employ, or Jack Valenti wanted to employ a more rhetorically effective analogy, they could always resort to "digital lock-pick" (which, in fact, they have used interchangeably with "digital crowbar"). Here in some cases local legislation does restrict who can purchase certain kinds of lock picks, or who can carry them around where. (This has never translated into a suggestion that the speech of people explaining how to open locks, even in technical detail, could properly be curtailed in order to protect the locks. See Chicago Lock v. Fanberg (lock-opening details as protected speech); MIT Guide to Lockpicking (widely disseminated instructions for the same). But note that some MIT hackers felt that "indiscriminate" publication of this information was inappropriate. Secondary liability for pure speech is extremely rare, although some people think that Rice v. Paladin -- the "Hit Man" case -- did provide for that prospect, and the Supreme Court declined to review this decision.)

Returning to this subject, lock picks have substantial legal uses (for example, many people use them to break into their own property or to help others break into their own property; they're also used in emergencies, for educational purposes, and for security research and experimentation). I have tried lock-picking with a pick set (I was remarkably bad at it!) and certainly found it intellectually interesting (as did Richard Feynman, who might actually have broken Federal criminal law now and then with some of his lock experiments at government facilities).

I suspect that most technical people I know would feel that lock picks should be legal for sale to the general public everywhere, and would tend to value their freedom to buy lock picks. And lock picks are actually legal for sale to the public in many jurisdictions (some will require some kind of affirmation or certification).

You can easily shade over into substantial-non-infringing examples with dual-use technologies which can kill, and here opinions start to diverge more sharply. (While some acts of copyright infringement, not to mention l'havdil burglary, have been punished much more severely than l'havdil some acts of murder, many people will feel that the high stakes here are enough to make them reconsider.) You can start with guns, where the substantial-non-infringing use rule has rarely been honored by legislation (though one could certainly argue that the defensive uses of extremely powerful weapons are not "substantial" under ordinary circumstances). Some gun advocates have suggested, in some sense, that it should be. It seems clear that guns can be used legally (even to kill, in self-defense) and that this use is "substantial" -- it happens frequently that lethal weapons like guns are used to an apparently legitimate purpose.

The argument over whether or not guns are an effective means of self-defense (especially for people who haven't been trained in their use) seems like a decoy, since some people do believe that guns will be effective this way for them, and many of them have been correct.

A more interesting question, as I see it, starts by observing that guns are weapons which have been specifically designed to be lethal, to kill people -- a capability it's hard to imagine a just world putting to use. This world as it is finds seemingly just and unjust uses for that capability, and individuals want it. The weapons have not apparently been specifically designed for illegal murder, and they do have substantial legal uses. Starting here, some arguments shade back into a concrete cost-benefit analysis (comparing the number of people killed by guns in various circumstances, or estimating other probabilities), but a deeper question seems to be when a cost-benefit analysis is legitimate. The Supreme Court considered cost-benefit issues raised by the VCR, but subsequently it appeared to articulate what had the ring of an alleged moral principle which we can read to say that cost-benefit analysis was not appropriate in the first place. That is, it doesn't matter, for example, if 90% of users of something are copyright infringers, or 95%, or 98%, if the thing is merely capable of substantial non-infringing use. The percentage doesn't matter, the actual fact-pattern doesn't matter. Does that make sense, and does it make sense for other things, like weapons?

Another corresponding example much in the news these days is government regulation of biological samples used for research (and also radioisotopes of certain types, purities, and concentrations; Cory recently wrote a great piece in which he noted that movie studios seemed to want the humble analog-to-digital convertor treated as though it were one of these dangerous substances). It seems intuitively bad to me to think of researchers being required to register (or get permission) for their research. (And in fact various people have been horrified by the DMCA's effects on cryptography research; the academic world and the computer security world consider it ridiculous that you should need to ask someone before you try to devise attacks on a cipher or cryptosystem.) But controls on hazardous physical materials like explosives, radioisotopes, and biological toxins and infectious agents are being strengthened. And they also seem relatively normal to people (to some extent including the researchers or others whose use of these materials is regulated).

Entertainment industries, as I said, are happy to draw an analogy back to digital technology: I've heard an argument so close to "if we control who can have dangerous materials like U-235, why can't we also control who can have dangerous materials like fast digitizers or Internet nodes?". That argument seems silly, but is there some obvious moral conclusion which shows why it's wrong? Is there a clear reason why we do have a right to some technologies, without having to ask anyone else's assent, or without having to stave off Congressional action? (Here I am assuming arguendo inappropriate things about political philosophy such as that there is a legislature which can properly compel people to do certain things, and obviously that assumption needs to be justified and it's not clear that it is. But that issue isn't the most interesting question this year, or at least not in this diary entry.)

And what would that right tell us about existing patterns of regulation of other technologies? For example, the DMCA and the broadcast flag issue have galvanized opposition among people I know to the "cell phone scanner law", even though it was rarely on the minds of anybody but hams since it was enacted in 1991. All of a sudden, we are thinking again about existing technology mandates, and feeling skeptical about them.

The obvious idea seems to be that secondary liability is a bad thing (1) because it punishes people for things they haven't done ("punishment in advance", "collective punishment") and (2) because it hurts innovation, sometimes. So secondary liability is really about preventing people from acquiring (or helping people acquire) certain capabilities, supposedly as a way of deterring a result which occurs when those capabilities are used in a certain way.

DMCA proponents, for example, might observe at this point that it's quite rare to trust people in general unconditionally with every ability they might want or every ability they might be able to use. So, for instance, you might believe that someone who enters your house without your permission is doing something wrong (and then you might go on to believe that such a person may properly be punished, after the fact, for having done so). Usually you then take an affirmative step to deny the public the ready capability to enter your house without your permission, by locking your doors. You don't necessarily think that this is some sort of imposition on the public's rights. (Of course, if you're John Perry Barlow, you might instead not lock your house, tell a pseudonymous person you've just met where you live, and then publish all the details in an article.)

You could say that the actual underlying wrong here is the trespass, and that a rule against breaking and entering is actually a kind of secondary liability, so that a rule regulating the tools needed to perform an act of breaking and entering is actually tertiary liability. (It's trying to stop people from getting into your house, by trying to stop them from getting the capability to get into your house, by trying to stop them from getting the capability to get the capability to get into your house.) On the other hand, the idea that a security measure deserves legal protection in itself (without a need to prove that someone who impaired or evaded it had a nefarious intent) is old enough that it seems unremarkable. Maybe it ought to be remarkable.

If you believe the misleading sleight-of-hand which suggests that a TPM is like a lock on your door (because a copyrighted work is like your house? so that the NII is like a prison?), then the DMCA's prohibition on circumvention is like banning breaking and entering, and the prohibition on trafficking in circumvention devices is like banning lock picks. They are actually distinct approaches and one of them is further removed from the alleged harm than the other.

Back outside the strange copyright funhouse, you could attempt to prevent terrorist attacks by attacking the capability to mount them, which could mean attacking access to materials which would facilitate those attacks. And U.S. law has certainly gotten involved in regulating the manufacture or distribution of explosives, which, as I noted above, obviously have substantial non-infringing uses (such as demolition, mining, and pyrotechnic displays). For the most part, explosive agents aren't banned, but controlled (although regulations are usually implemented in the form "no person shall do X, except..."). The ability to handle and possess certain explosive devices is limited to licensed members of a licensed profession and this is not just because they have professional training others don't but also because they've identified themselves. A whole culture of identification and documentation exists within these professions. Members have to prove not only that they know how to handle dangerous materials safely, but also that they are a part of a system which has an institutional commitment to following certain laws, and to keeping those dangerous materials within the exclusive control of members of that system.

In some sense this is a straightforward restriction of the freedom of every member of the public (including those who are licensed to deal with explosives, because they have given up a great deal of privacy and autonomy to reach that position). It's not just a safety regulation (concerned with preventing accidents), because it doesn't simply require evidence of knowledge or skill. (To a first approximation, licensure of amateur radio operators is closer to a pure test of skill -- verifying that hams know how radio systems work and know how to avoid injuring anyone or causing any prohibited interference. Licensure of drivers also works that way -- supposedly it's simply a confirmation that a licensed driver can drive safely.) In the explosives world, I think licensure goes far beyond safety rules to prevent accidents. There are also rules which contemplate (and indirectly try to hinder) willful abuse of explosives. These rules know that there will be a human in the loop, let's say an expert human, and they explicitly don't trust that human, explicitly restrict that human in advance on account of that mistrust.

How can we say whether this is right? Legal rules here seem like a patchwork, without a unifying thread, and moral debates about even a single instance of the question, like access to weapons, seem terribly mired. I heard that Thomas Edison said "I'm proud of the fact that I never invented weapons to kill", and there's a tremendous amount of obvious sense in this, for many reasons. I don't think I have to enumerate them. Does that lead to a suggestion that inventing weapons is wrong? Inventing weapons isn't killing, but revealing a capacity for killing -- "you can kill people by..." -- oddly similar to Paladin's decision to publish a manual for hit-men. And that capacity, or the knowledge of that capacity, has non-murderous uses now and then even if it's never used. (Using it in self-defense might also be legitimate, and it's easier to find broad approval if you think about non-lethal weapons like pepper spray, which are still explicitly designed to cause pain and suffering.)

It's commonplace to say that it matters who receives the fruits of some invention ("this technology could fall into the wrong hands!"). But in the crypto debates, the Internet community was adamant about rejecting secondary liability for the abuse of cryptographic technology. (Of course, there was considerable disagreement, and still is, about what constitutes an abuse of cryptography. For example, I can think of at least five positions on whether using cryptography specifically to hide communications from a government is wrong.) One claim was that it was meaningless or impossible to separate "good" users from "bad" users, especially if one wanted to deploy a technology as infrastructure, or publish it or give or sell it to the public. And science and commerce and journalism in general have ideals about openness and against restricting the flow of information or products. It would seem strange to say that some scientific knowledge should be kept secret -- but for hundreds of years, parts of science have been done in secret, and there's still tremendous conflict over this. The default here very strongly favors publication, which means that everyone learns and benefits, for good or ill, and secondary liability seems misplaced. A few parts of technology have been pre-empted and classified, but in the U.S. we can at least pretend that this is a special case and not the ordinary way things work. Which cases are "special"? How do you know?

  1. D2-D4 G8-F6
  2. C2-C4 E7-E6
  3. G1-F3 B7-B6
  4. B1-C3 F8-B4
  5. C1-D2 C8-B7
  6. E2-E3 E8-G8
  7. F1-D3 D7-D6
  8. A2-A3 ...

 ABCDEFGH
 --------
|RN Q RK |8
|PBP  PPP|7
| P PPN  |6
|        |5
| Bpp    |4
|p nbpn  |3
| p b ppp|2
|r  qk  r|1
 --------

So I had a long weekend for Memorial Day, and a bunch of us went to Ikea, which I'd never seen before. Now we have some more stuff, and I finally have a dresser for my clothes.

I got a 9 out of 10 on the FSF licensing quiz, so I must be a license geek.

I went to BayCon in San Jose two days in a row, so that I spent a lot of time on CalTrain and waiting for CalTrain. On Sunday, I chose to walk from the San Jose airport to the Lawrence CalTrain station. I thought that was about three miles, but Yahoo! Maps makes it 6.5 miles, a good long walk. Of course, I stopped at Sweet Tomatoes for dinner once I was in sight of the Lawrence station.

My longest walk on record, though, was a round-trip of what Yahoo! Maps says is 5.0 miles each way.

Walking at airports is odd because they're completely oriented toward vehicles, and there are often no sidewalks, and there will be strange ramps and fences, so that you're always worried that you'll get arrested for being on foot even though you haven't actually breached any security perimeters or anything.

At BayCon, I saw nine people I knew. I was on a panel on "The Future of Music" on Monday morning and also saw some jousting and stuff. There was a big anachronist contingent at BayCon. I'd never actually been to a science fiction convention before.

I got to hang out with Danny and Quinn a lot, which was excellent!

Quinn ended up taking me up to San Francisco on Monday afternoon, where I met Sumana and Leonard and then helped fill out my walking quota by walking with Sumana across the Golden Gate Bridge, in honor of its birthday, and back again. (That's about 1.8 miles.)

It was a nice walk; the bridge was beautiful, and we sang "Happy Birthday" to it, and there's something very private about being way out in the open like that, with lots of anonymous strangers around who can't even hear you because of the wind. It's astonishing that anyone was sufficiently unafraid of heights to be willing to work on the outside of the bridge, but people are constantly working up there, somehow.

Sumana and I ended up having dinner at Lucky Creation, because Kowloon had closed (apparently permanently). So another vegetarian restaurant in Chinatown is gone. (The Lotus Garden went first; I ate there with my aunt Carol before they closed. I also tried out Kowloon with Wolfgang before they closed. I hope Lucky Creation won't suffer the same fate.)

Google is great; it helped me find this page with "Pachycephalosaurus"! I've been looking for that poem for years. It's great!

Pachycephalosaurus
Richard Armour

Among the later dinosaurs,
Though not the largest, strongest,
Pachycephalosaurus had
The name that was the longest.

Yet he had more than syllables,
As you may well suppose.
He had great knobs upon his cheeks
And spikes upon his nose.

Ten inches thick, atop his head,
A bump of bone projected.
By this his brain, though hardly worth
Protecting, was protected.

No claw or tooth, no tree that fell
Upon his head kerwhacky,
Could crack or crease or jar or scar
That stony part of Paky.

And so he nibbled plants in peace
And lived untroubled days.
Sometimes, in fact, as Paky proved,
To be a bonehead pays.

For some reason, I kept singing "Charlie on the MTA" all weekend.

And speaking of songs, we released (by various heroic efforts) Tinseltown Club (there is also an MP3 version). Three cheers for Katina!

The rest of the week up to this point is kind of a blur because we were working on the EFF BPDG dissent and a lot of other worthy EFF stuff. I know I went to dinner with Praveen and Will at one point, so that must have been Tuesday.

I haven't had an "On the train" section here in a long time, but I did work on algorithms on CalTrain once again, the way I used to back in 2000. This time it was code for enumerating how many polyominoes of order n there are; since I didn't have a computer with me, I naturally used paper and pen, and I think my algorithm is correct, but I haven't actually finished implementing the complete Python version yet.

Vitanuova for 2002 May
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Contact: Seth David Schoen