Aaron Williamson's webl

Last night, I wrote a simple Django application for managing clickwrap legal agreements. I’m developing the artists’ submission system for the Conflux Festival’s new site (which is not yet live), and we require artists to agree to an Artist Agreement before submitting entries for the festival. Since this sort of process is relatively simple and extremely common, I decided to write a reusable app rather than just work the logic into my submissions application. (I took a quick look around and as far as I can tell nobody else has put out an application for this purpose, but I may be wrong and if I am you should tell me in the comments.)

The goals for this application are/were roughly:

• Give developers an easy way to check whether a user has agreed to a particular agreement when the user accesses a view. I decided the best way to do this was through a decorator, like so:
  
@requires_agreement('terms_of_service')
def any_old_view(request):
...


• Keep versions of each agreement and record users’ agreement to each, so that the site maintainers have a log of which terms bound a user at which date, and the decorator above can determine whether the user has signed the *latest* version of the agreement.

I implemented both of the above features in version 0.1. What I want to do next is build in a feature I think is best practice for any site that maintains terms of service or a privacy policy:

• When a user is asked to agree to an updated version of an agreement that user has already signed, display a diff of the old form and the current one so that the user can easily see what’s changed.

If you don’t do this, and your site gets big enough, EFF will do it for you. In my opinion, it’s a matter of fundamental respect for users — if you reserve the right in your ToS to make periodic changes to the agreement (and there are good reasons to do this), you should give your users clear notice of those changes.

Unfortunately, the most common practice is to change the terms silently and leave users to seek out a tiny link in the footer if they want to find the current terms. Another common, far better practice is to display the new terms upon the user’s first login to the site after the new terms become active. But few (edit: very few) users read the original terms, much less remember them, so even upon a careful read-through they may have no idea what’s changed. By giving users a diff of the old and new terms, a site makes itself accountable to and builds goodwill with its users. It may also strengthen the legal effect of its terms by giving users actual notice (although courts have been all too ready to enforce online agreements with little to no notice).

What is it about a Latina Supreme Court justice that just screams “Asian” to journalists?  Whatever it is, the ABA Journal places itself in the dubious company of the National Review this month by highlighting Sonia Sotomayor’s ineffable Eastern-ness:

This Month’s ABA Journal	The controversial National Review cover

The National Review, by Asian-ing up Sotomayor’s physical appearance, obviously posts a clear win in terms of sheer cultural insensitivity. But surely someone at the ABA Journal’s editorial staff thought, before rehashing an apparently irresistable cliché to characterize Sotomayor’s frictionless confirmation process, “hey, maybe surrounding her with a bunch of Japanese-looking stuff will raise uncomfortable associations?”  No?

When the White House first began posting photographs taken by its official photographer on Flickr, it caused a minor kerfuffle about licensing: the photos were posted under a Creative Commons Attribution (CC-BY) license, even though works of the U.S. government are in the public domain.  It turned out that the White House chose CC-BY because “public domain” wasn’t an option Flickr’s interface offered, and CC-BY is the least-restrictive CC license.  In short order, Flickr added a “United States Government Work” option for the White House and the whole thing was fixed.

Sort of.

A friend just posted about a White House photo on Flickr, which is appropriately designated as a United States Government Work.  However, beneath the photo is the following text:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, or promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

Several things about the section in bold are problematic.  The first is that it contradicts the law, and the government’s own statement of the law (linked to from the Flickr page), by prohibiting derivative works as well as, it would seem, many other permissible uses.  The limitation to publication by news organizations contradicts the public’s right to distribute copies of the photos, and to display them.  The release by “the subject(s) of the photograph” may be intended to remind users that some states recognize individuals’ rights to the use of their likeness in certain limited contexts (recall another Flickr-related licensing dispute), but those laws do not justify a broad proscription on use by anyone other than news organizations.

Maybe after one more time around, the White House will figure out what “public domain” really means.

Matt Asay does not believe in a fundamental right to Internet access. His most recent barely considered core dump of generalities begins with this bit of popular conservo-libertarian retcon: “While the framers of the U.S. Constitution talked about the rights of assembly, speech, and religion, our modern world has crowned new rights.”  He goes on to lament the “entitlement culture” which has produced one or two European Politicians who believe Internet access is a fundamental right, and to pioneer the notion that people should have fewer rights and more (unenforceable) responsibilities.

Matt is wrong¹ about history.  Nevermind that his thesis, about the framers’ niggardly disposition of rights, enumerates only those granted in the First Amendment (that’s out of 10).  By simplifying to absurdity the history of the Bill of Rights, and omitting completely the development of rights over the course of U.S. and world history, Matt leaves not even a single fun-sized marshmallow of credible context to support his rhetorical toothpick-house.

His conception of the constitutional framers as a unitary band of Democratic-Republicans is shallow, ignoring that the Constitution is and has always been a product of compromise, and that the Bill of Rights is by its own terms² an irreducible minimum statement of rights, not an exhaustive list.  To give Matt some credit, he correctly points out that “US constitutional rights tend to keep govt *out* of citizens’ lives,” and he believes that a right to access does the opposite (roundaboutly, via increased taxation). But Matt’s questionable comprehension of constitutional history is not entirely (or even mostly) why he’s so wrong.

The problem with all of these bothersome rights, Matt says, is that they create a slippery slope.  If you give someone a right, then they might think the right is attended by specific guarantees.  Deftly unwinding the logical integrity of a single tweet, Matt points out that if people are given a right to use a channel of communication simply because that is how one interacts with government, then there is no literally no possible way to distinguish that channel from any other.  If the right to participate in government means that the government must enable that right, then they have to in every conceivable, to the full extent imaginable.  End result?  The government has to buy me the New York Times AND the Wall Street Journal so I can make an informed voting decision.

Matt went to law school, scout’s honor.  At Stanford.  Presumably he took Constitutional Law and learned that over this country’s 230-odd years, Congress and the courts have managed to define, adapt to technological changes, and where necessary narrow a great number of rights, all without giving me a free newspaper.  They’ve addressed some of the issues Matt touched on — for instance by requiring balanced treatment of controversial issues by broadcasters — but the unlimited expansion of rights with which Matt is concerned has been repeatedly thwarted by reasonable people.

But again, one need not engage Matt on the battlefield of grand constitutional theory to see why he is wrong.  One need merely do what Matt seems never to ever do before reaching — and blogging — his opinion: read past the headline.  Because the “fundamental right” Matt is up in arms about isn’t the one he thinks it is.  The European Commission did not consider “codifying Internet access as a basic human right.”  Rather, it merely considered an amendment prohibiting ISPs from limiting subscribers’ access without a court ruling:

[T]he Parliament’s lower house… passed an amendment to the telecommunications package making it illegal for any E.U. country to sever Internet service unless a citizen is found guilty in court…

As the New York Times notes, “the amendment was intended as a rebuff to a proposal before the French National Assembly that would allow a government agency to sever Internet service based on industry complaints.”³ It does not create a right to access for those who haven’t paid for it or impose any other great taxpayer burdens.

So Matt is wrong even about the topic of the debate — the “fundamental right to Internet access” is a strawman he’s set up.  I don’t think he intended to mislead anyone, he just didn’t do his homework.  He read a couple of headlines and one politician’s puffery and took it from there (this is a common M.O. for Matt, which is a major contributing factor to his always being wrong).  But even that immanently defeatable strawman (I don’t know anyone, myself included, who would argue for creating a fundamental right to Internet access, and certainly not absent a detailed plan for implementation and some strong limits on scope) is more than a match for Matt, who relies on popular historical revisionism and an unrealistic parade of horribles to refute the argument that no one is making.

1. Matt Asay is Wrong will be a recurring feature of the copiesofcopies webl. [↩]
2. See the Ninth Amendment. [↩]
3. French Anti-Piracy Proposal Undermines E.U. Telecommunications Overhaul, May 7, 2009.  Matt claims that Parliament voted against the amendment, which is incorrect.  The parliament instead temporarily defeated a deal permitting three-strikes style laws, by introducing the amendment.  This can all be found in the first two paragraphs of the article Matt cites. [↩]

Last September, I found a great apartment, via Craigslist, at 350 Lincoln Place in Prospect Heights — it had unheard-of-in-NYC amenities like a dishwasher & central air, a roommate I liked and had things in common with, and a rent I could afford.  Unfortunately, when we met with the super (Bajram Lukovic, aka “Baki”) so I could sign the lease, he told me I had to pay him a $900 fee to move in to the apartment.  He explained that other tenants have said that that’s illegal, and he assured them it wasn’t but if they preferred they could go pay a fee instead to the broker the building had a deal with (it would cost more, though).  Also, the fee had to be paid in cash or cashier’s check, and the tenant would not be given a receipt.  “I tell them, ‘The lease is your receipt,’” he said, but he would not include a mention of the fee in the lease agreement.

This fee is illegal “key money.”  No agent of a landlord in NYC can charge tenants for anything other than rent, a security deposit, and the (actual) cost of a background check (usually no more than $100).  Demanding more than $250 in key money is a class A misdemeanor under N.Y. Penal Law § 180.56.  “Systematically” demanding key money from three or more tenants is a class E felony under N.Y Penal Law § 180.57.

I should not have taken the apartment.  But I liked the place, I didn’t want to leave my roommate in the lurch (it had been about two weeks since I’d agreed to move in, and he’s stopped looking for other takers) and I would have had to pay a broker’s fee for most other places anyway, so I decided to suck it up and pay the key charge.  I collected what documentation I could of the payment: I called the landlord (Leah from Eckstein Properties, dba 350 Lincoln Place Owners’ Association) and confirmed that she was aware of and stood behind the super’s fee;  I sent her a letter (unregistered, unfortunately) describing the fee, and I kept a copy; I gave the super a similar letter along with the check, cc’d the landlord, and kept a copy for myself; and I kept the check’s stub.

But even though I know my rights and did about as much as could be expected to document the transaction, I suspect there’s nothing I can do to retrieve my money.  The NYC Rent Guidelines Board informs me that the Attorney General will probably take no action without “solid evidence” or a corroborating witness.  My roommate doesn’t want to rock the boat, and he was the only one there besides me.  The cashier’s check, though made out to Lukovic, could have been cashed by anyone.  The letters are from me, and anyway I sent them unregistered so they are readily deniable.  For all of these reasons, an action in small claims court could also easily fail.

One option would be to hold a meeting of the building’s tenants — which I can do in the building without interference or retaliation by the landlord under N.Y. Real Property Law § Sec. 230 — and find others who were charged key money to corroborate my story or put pressure on the landlord.  But if no one shows up (for example because they’re afraid of retaliation, notwithstanding their rights) then I could upset my roommate’s relationship with the landlord against his express wishes for nothing.  And after all, I moved into his apartment.

I’m posting this for a couple of reasons: first, if anyone thinks of anything I haven’t that could help me, please let me know; second, I just want people to be able to google “350 Lincoln Place” and find out that the owners are responsible for rent gouging; third, to make the point that even in NYC, which has some of the strongest tenant protections in the country, it can be difficult or impossible to exercise your rights, because it’s not just your rights at issue.

FML

Matt Asay today springs to the defense of the widows and orphans over at Google and their comprehensive prosecution of the Google Chrome trademark. Google sent a DMCA notice to the developer of ChromePlugins.org, demanding he stop using their logos and a remix of their adorable comic, and the developer was understandably upset. Asay’s enthusiasm for Google’s cause is characteristic of his business-first approach to the Business of Open Source (though one wonders if he’s confused Google’s duty to police its trademarks for his own), but his high-handed tone is uncalled-for and his conclusions, though brief, are rife with oversimplification.

Asay responds to a rather balanced account of the enforcement with a volley of fake quotes attributed to god-knows-who: open source means “open to pilfer trademarks” and is “a stick-in-the-eye to ‘The (IP) Man’” and that all related rights are “up for grabs.” He bids the unidentified “some” people espousing these non-quotes, “pay attention… you’re wrong.”

The substance¹ of Asay’s argument is a familiar truism: open source copyright licenses are instruments of copyright law. And as he says, “without copyright there is no copyleft.” But the implication that free and open source software depends upon copyright law (and this must be the implication or there is no point at all) is wrong (and doubly wrong because he italicizes it). Were copyright abolished and the default reset to “no rights reserved,” it would be a trivial matter indeed to allow others to modify my source code — I wouldn’t even need a license, because I would have no right to exclude.  It’s true that under a no-copyright regime, copyleft would break — I couldn’t use my right to exclude to compel others to make available source code they build on top of mine. But copyleft was devised in response to copyright, not in affirmation of it. In the GNU Manifesto which launched GNU and eventually the FSF, rms’s stated goal was to combat the increasing proprietarization of software. If software could not be made proprietary, copyleft may have been unnecessary. Of course, a company could still attain a sort of de facto proprietarization by controlling access to their source, but this would be much less effective under a system that didn’t punish reverse engineering or the use of decompiled or leaked source code.

Maybe abolition of copyright isn’t the answer, but copyright (much less in its present captive state²) is certainly not the only means to software freedom. And the mere existense of exclusive rights, even if similar rights are used to beneficial ends, is no justification for anti-social behavior, whether Google’s or Asay’s.

1. And here more credible claimants to the title “substance,” such as plastic and cocaine, will forgive my lax usage. [↩]
2. My colleague Bradley Kuhn, who has said all of this before, has proposed a regime under which registrants of a copyright in software are required to deposit the entire source and in exchange are given 3 years of exclusive rights to it, after which their code becomes public domain. While not the only solution, or a universally agreeable one, it’s certainly imaginable. [↩]

I wrote a post for SFLC’s blog, responding to a Law.com article on FOSS licensing:

Law.com recently ran a sensationalist piece by Edmund J. Walsh warning of the impending “dangerous real world business dispute” in store for any for-profit company that uses free software. Walsh points to lawsuits filed by SFLC on behalf BusyBox as a source of this danger, and having worked on those lawsuits, I hope I can provide a helpful counterpoint.

Like many copyright lawyers, I often begin my research into a given question of law by turning to Nimmer’s treatise. I approach Nimmer exactly as I approach Wikipedia — I anticipate a solid overview of the relevant issues, direction of my next steps, and some wrong or incomplete information. A high school student would be remiss to rely on Wikipedia alone for his paper research, and I would commit malpractice if he relied solely on Nimmer’s summary of a point of law, but both of us can save some time by referencing these meta-sources on our first pass.

An outline of the possiblities

These superficial similarities prove little, but they at least raise the question of whether we could make a treatise like we made Wikipedia. In broad strokes, the projects are identical: take an enormous information resource historically prepared by a small number of experts (in this case only one!) and subdivide the work between a large quantity of lesser lights. None of these could write the thing on his own, and many of them will contribute one sentence or dependent clause that is dead effing wrong. But their efforts in aggregate will produce more and timelier information on a wider variety of topics than those of the sole treater, and obtain a relatively high average quality.

Particular problems and solutions

On closer examination, the legal treatise is different from the encyclopedia in a few important ways. First, the knowledge necessary to contribute usefully to a legal treatise is concentrated in far fewer noggins than that necessary to contribute to an article about… anything at all. Second, lawyers may have on average less disposable time in which to edit wikis than the general population. But hough we like to consider ourselves something of an elite class, everyone else knows that there are a lot of goddamned lawyers in this country. More importantly, there are a lot of goddamned law students in this country. And all self-aggrandizement about our heroic struggles through law school aside, those students have a lot more free time than lawyers. Avoidance of homework is the single greatest motivator of YouTube video-reply generation and Facebook profile-padding among high school students; law students are no less eager to join the prosumer former audience. What’s more, law students (particularly around finals time) are turning out treatise material nearly every day. Yes, it’s simplistic, latin-engorged, low-grade treatise material, but these deficiencies are more than made up in volume. And Clay Shirky told me these things are supposed to start bad.

Lawyers do this too. The low-level associates who are not combing warehouses for receipts are endlessly summarizing the most basic points of law for lazy partners — this stuff is treatise gold. Which brings me to the third important difference between lawyers and encyclopedists, which is that much of a lawyer’s work is protected in one way or another by privilege. But this objection seems to me easily overcome. Publishing notes from or even sections of documents prepared for clients, to the extent that they contain simple summaries of the law, need not raise any confidentiality concerns or expose the entire document to discovery (this is why we have redaction, right?). Besides, one need only quickly survey the wretchedly-named blawgosphere to see that lawyers are constantly blathering about the general issues they encounter in their work for clients (simultaneously demonstrating that lawyers aren’t really so hard-up for Internet dicking-around time).

Previous efforts and missteps

This has all been suggested before (and again). It has sort of been attempted. The Cornell Legal Information Institute’s Wex and the Wikilaw project are legal information wikis, but seek to provide more general legal information to the general public. EFF’s Internet Law Treatise is the closest thing to an actual test case, but the approach taken so far has maybe missed the point. The ITL has been online for a nearly a year and a half, but write access has been “invitation only” that whole time. The predictable consequence is that all of the edits in the last month except for two were made by Kurt Opsahl, the ITL’s founder. The rationale for this cautious approach is likely related to the project’s disclaimer — a (usually healthy) fear of a malpractice suit by someone who relies on the treatise as legal advice.

But there is no “right” time to open a wiki to public editing, except “right away.” As Shirky puts it, “the key to creating [the] individual actions [from which collective information resources are built], is to hand as much freedom as possible to the average user.” Anybody needs to be able to add a stub, update a page to include a summary of a recent decision, or introduce factually or legally erroneous information. If it doesn’t start bad, it probably won’t start at all (as Shirky’s case study of Nupedia illustrates). The need for the disclaimer is undeniable, but if it’s inoperative on a small scale, it will be inoperative on a large scale and the legal wiki created by lawyers is a non-starter. But I think such disclaimers are adequate, and need to be adequate if the legal profession is ever going to do anything interesting with new information tools (a potential alternative is truly anonymous posting, but this introduces policing problems and will probably discourage contributions as much as it encourages them).

Today I was admitted to practice before the District Court for the Southern District of New York and assigned my requested attorney bar code: AW1337. I will be pwning n00bs briefly, meaning both “in the near future” and “by virtue of briefs, which are things that lawyers file.”