Part of what I hope to do with the Program on Law & Technology at Columbia is bridge the communication gap between lawyers and engineers. The two groups think completely differently.
To take a recent example, a new P2P file-sharing system has emerged called the Owner-Free Filesystem (OFF). It stores and transmits only chunks of random binary data. To retrieve a file, one uses a special URL that provides a mathematical formula for combining those random chunks into the original file.
Random bytes can’t be copyrighted, the system’s designers say, therefore the network is immune to copyright liability, although users are still liable for any infringement they themselves commit. The idea is that the RIAA/MPAA/etc. cannot take legal action to shut down the OFF network, and will be forced to search individuals’ hard drives if they want to prove infringement.
It’s a typical engineer’s conception of how the law works — technicalities and loopholes. They think they can get around the law with cleverness. But it doesn’t work that way. True, there are many technical loopholes in legal statutes, but statutes only form a small part of what “The Law” actually is. The rest of the story comes in judicial decisions, or common law.
In this instance, the Supreme Court decision in MGM v. Grokster clearly comes out against OFF. In Grokster, the court said that merely distributing “a device with the object of promoting its use to infringe copyright” (case syllabus, my emphasis) makes the distributor liable for copyright infringement. Furthermore, a court would likely not care that the network only transmits random bytes. The end result — you get a copy of a copyrighted work without the owner’s permission — is still infringement.
Therefore, the OFF would lose if it got sued by copyright owners. The point is this: it doesn’t matter what the statute says, it matters what a judge would decide if presented with the case.
Here’s another, simpler example: There is a federal statute prohibiting flag burning. Law professors ask first-year students: Is this a law? The answer is no, because any federal judge would decide that the statute violates the First Amendment and would not enforce it.
I hope that services like AltLaw and KeepYourCopyrights will encourage engineers and other non-lawyers to take a closer look at how law actually works. If engineers stopped wasting their time trying to engineer clever technological solutions to legal problems, and instead advocated for legislative reform to solve those problems, they might have a better chance of getting what they want.
Disclaimer: I am not a lawyer, and this is not legal advice. If you need legal advice, get an attorney.