The Substantially Similar Weblog

• Report from the Verizon v. RIAA Hearing
  As part of its “scorched earth” strategy in the copyright wars, the Recording Industry Assocation of America is trying to use certain provisions of the Digital Millenium Copyright Act to force the Verizon Interent Service Provider to turn over the names of certain subscribers who, the RIAA alleges, are sharing unauthorized content. This was originally published on GrepLaw and appeared on Slashdot and Privacy Digest.
  October 4, 2002
• Report from the NuSphere v. MySQL AB Court Hearing
  Hastily written report after the NuSphere v. MySQL AB court hearing before US District Court Judge Patty Saris. This was potentially the first “test” of the General Public License which forms the legal undergirding for much of the Free Software movement. The report was first posted to the Free Software Legal e-mail list, and subsequently published on NewsForge and discussed on Slashdot.
  February 27, 2002

 I. & then, suddenly you tremble aloud . the inspectors knock through the glass window found, broken; you are no longer sleeping on imagined sand but watching my nervous fingers around a broken camera & only parched knuckles falling off an unstringed guitar bloody i won't know how to play for the only customers are blind tourists, (from Algeria I suppose) they buy histories II. we move in fresh steps along the boulevard . spectacular clean hornets and untouchable wasps you (in impossible haste)return with several souvenirs a pinched raspberry scarf wound around your neck, asking only about itself (hurled towards the ground in great disgust) thunder glaring away at the humble sky i stutter mumble silently & can't remember if we had seen the occasional diamond seagull, or not. a miniature starfish scampers away in panic 

Counter-Majoritarianism and the Protection of Individual Moral Decisions

[This essay responds to a question about the proper role of judicial moral reasoning in a case where a terminally ill patient, Mr. Cohen, is challenging the constitutionality of a State prohibition on medical marijuana use. For the purposes of this question, I ignore federal drug law and any issues of federalism or conflict-of-laws.]
Also available as a printable PDF file.

To determine the constitutionality of the State’s marijuana prohibition as applied to a terminally ill patient such as Mr. Cohen, we must ask, first, whether it is appropriate for the Court to use moral reasoning in deciding this sort of claim, and second, what moral arguments support or undermine his claim. I will argue that judicial moral reasoning, while subject to legitimate criticism, is the most practical and effective way to read the Constitution in cases where the document and its history bear a number of potentially valid interpretations. Furthermore, the “right to be let alone” is a fundamental component of substantive due process under the Fourteenth Amendment and should be protected by the Court, even when the majority wishes otherwise. Moral arguments favoring this interpretation need not be premised on the existence of a “moral elite” whose judgment is superior to that of the majority, but rather on the necessity for counter-majoritarian checks within the democratic structure set out in the text of the Constitution itself. When a judge reasons on a moral basis, she does not substitute her moral judgment for the legislature’s, but protects the fundamental rights of individuals to make critical moral decisions themselves.

Critics of judicial moral reasoning object to the notion that judges should be anything other than “neutral” agents who apply the law created by duly-elected representatives of the people.^{1, 2} According to these “originalists”, a judge should not rule based on what they think is a preferable outcome, rather they must rule as the law demands.³ The law, in their understanding, is a fait accompli when it emerges from the legislature, and any confusion regarding its meaning is best resolved by examining the original intent of its drafters. When circumstances arise that were clearly outside the contemplation of the drafters, or societal values change such that the original intent no longer represents the will of the people, then it is beyond the judiciary’s power to make new law or strike down old; rather, they should wait for the legislature to perform its function. This balance forbids the Court from making major moral decisions, and claims to be the most accurate realization of the democratic ideals expressed in the Constitution and in the history of the United States.

This “originalist” conception, however, does not do justice to the intent of the framers, as evidenced by the very text which it claims to preserve.⁴ Ronald Dworkin’s call for a moral reading of the Constitution comes from the observation that the Constitution itself articulates broad moral principles that require judges to use moral reasoning.⁵ The framers knew the difference between specific language intended to effect a particular result and broad language intended to embody overarching moral principles. For example, the Third Amendment prohibition on the quartering of soldiers in houses during peacetime articulates, in clear language, exactly the government action that the framers intended to prohibit.⁶ On the other hand, the Fourteenth Amendment, rather than mandating a particular treatment of race consonant with the beliefs and values of the framers at the time, instead provides a set of principles for the Court and Congress to follow and develop. In order to make sense of these principles at all, Dworkin argues, a judge must exercise moral judgment. The text practically demands moral interpretation in order to be given meaning.

To be sure, this doesn’t give the judge free reign to rule based entirely on her personal conscience. Stare decisis, history, precedent, and the text of the Constitution itself are usually determinative in a case. In cases where multiple plausible interpretations exist within these constraints, however, Dworkin suggests that the Constitution is best interpreted through moral judgment. Dworkin’s critics claim that the judiciary must defer to the legislature when the Constitution does not, on its face, speak to the case at hand, but this would constitute an abdication of the special role which the Constitution provides, that is, the protection of certain liberties against the tyranny of the majority. In order to exert this protection, the Court must interpret the principles laid out in the Constitution; since these are moral principles, they are best interpreted with moral judgment.

Moral reasoning, when applied to claims like Mr. Cohen’s involving the right of an individual to certain medical treatment, inevitably results in claims that the Court has become politicized and lost any honest, principled basis for making decisions. Bork connects the moral mode of constitutional interpretation with the politicization of the Court that ultimately led to his ousting as Supreme Court nominee. His autobiographical narrative of the nomination process suggests that it was “[…] one battleground in a long-running war for control of our legal culture, which, in turn, was part of a larger war for the control of our general culture.”⁷ The issue at stake for Bork was the most legitimate method by which to read the Constitution. He views the street protests, the media flurry, and the political grandstanding directed against him as misguided attacks, since what he stands for as a judge is not a particular set of political views or judicial results but rather integrity in constitutional interpretation.

Bork never stops to consider, however, that perhaps he was not nominated for his advocacy of a particular mode of judicial reasoning, but instead specifically because of the results his jurisprudence would reach. Although he would prefer that the confirmation process be de-politicized, this is essentially impossible because its origin is rooted in the political decisions of the President of the United States. It is obvious that the President acts under enormous political pressure from various constituencies to achieve certain results; is it reasonable to believe that his decisions concerning the Court are uniquely shielded from political imperative? Although for Bork the battle concerned competing judicial methods, for the rest of the country, the battle concerned the potential results.

Eventually, Bork’s opponents organized enough grassroots pressure to defeat his nomination. For Bork, this evidenced a failure of democracy, as the Court slipped further into moral reasoning and accompanying politicization. Is a successful campaign founded on widespread popular dissent against a particular nominee necessarily a failure of democracy? Perhaps this is exactly how democracy is supposed to function. The strongest check the Constitution provides to the legislature against the judiciary is the power to reject judicial nominees. Since the legislature is ordinarily presumed, by originalists like Bork himself, to represent the will of the people, it would seems that the rejection of a particular Supreme Court nominee, whether on the basis of his mode of reasoning or the results he would likely reach, is actually an example of the Constitution’s democratic checks and balances functioning at their best.

If we are willing to accept a possible role for moral arguments in Constitutional claims, it still remains to be seen how these arguments might be applied to Mr. Cohen’s claim concerning access to palliative care prohibited by the state. In particular, we must decide whether medical care of this sort is a fundamental component of the liberty protected by the Fourteenth Amendment. In recent cases, the Court has relied heavily on history to determine whether or not a right is “fundamental.”⁸ Although it is reasonable to say that there is little basis, historical or otherwise, for a “fundamental right to smoke marijuana”, there is a deep-rooted tradition which Justice Brandeis describes as “the most comprehensive of rights and the right most valued by civilized men…the right to be let alone.”⁹ The right to decide what is best for oneself, when that decision will not adversely effect the interests of others, comprises perhaps one of the most fundamental liberties the Constitution guarantees and the Supreme Court is charged to uphold.

Although laws such as the one prohibiting the use of marijuana for medical purposes are often justified on the basis of their benefits to society at large, rather than on a paternalistic basis, it is hard to see these benefits as being anything other than pretextual in the case at hand. Mr. Cohen already has legal access to marijuana in pill form; any harm to society resulting from his access to the same substance through a different delivery system can only be understood as metaphysical at best. Although I might claim psychic pain simply because I have knowledge that my neighbor might be using marijuana for medical care, this is hardly the kind of harmful effects that social legislation ought to be preventing. Furthermore, the fact that some patients (who have the ability to swallow pills) can legally obtain the drug while others who need an alternative delivery system are denied access may simply fail the Court’s long-held rational basis test, thus violating the equal protection clause of the Fourteenth Amendment, even if cancer patients are not considered a “suspect classification.”

John Stuart Mill argued against the need for paternalistic or abstractly moralistic legislation in a democratic society, suggesting that the entity least likely to err when deciding what is best for a person is the person himself.¹⁰ If an individual’s acts are misguided but do not cause harm to others, Mill argues, then social disapproval alone will be sufficient punishment for the misguided acts. In the case of Mr. Cohen, we are not merely arguing about an individual’s rights to make potentially misguided or immoral choices, however, we are arguing about his very right to enjoy life at all, given the discomfort he experiences from the cancer medication. Furthermore, as his condition has been diagnosed as terminal, the choices he makes now determine how he will pass the remaining days of his life and how he will be remembered. These are extraordinary personal decisions that only Mr. Cohen himself is in a position to make.

If the Court accepts these moral arguments and refuses to apply this statute to Mr. Cohen, we should carefully take stock of what has actually happened. Critics will claim the Court has substituted its own moral judgment for that of “the people” and thereby undermined our democratic foundations. This characterization is deceptive, however, since the Court is not actually putting its moral imprimatur on marijuana use by the terminally ill. It is simply declaring the matter within the “rightful limit to the sovereignty of the individual over himself”.¹¹ So long as our actions do not cause harm to others, fundamental decisions about how we live and die, and what meaning we chose to ascribe to our lives, should be outside of the realm of both the judiciary and the legislature. Although these principles, embodied in the spirit of our Constitution, do require the Court to exercise moral reasoning, they ultimate exist to protect the people’s own individual rights to make these moral decisions for themselves.

Footnotes

…¹

Robert H. Bork, The Tempting of America (The Free Press 1990).

… ²

Michael W. McConnell, Symposium: Fidelity in Constitutional Theory: The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s “Moral Reading” of the Constitution, 65 Fordham L. Rev. 1269 (1997).

…³

Robert Bork describes an encounter between Justice Holmes and Judge Learned Hand in which Hand urges Holmes, “Do justice, sir, do justice,” to which Holmes replies, “That is not my job. It is my job to apply the law.” Bork, supra n. 1, at 6 citing E. Sergeant, “Justice Touched With Fire,” in Mr. Justice Holmes 206-07 (F. Frankfurter ed. 1931); H. Shriver, What Gusto: Stories and Anecdotes About Justice Oliver Wendell Holmes 10 (privately printed 1970).

…⁴

“[W]e must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. 316 (1819). The mode of analysis advocated by these originalists, while appropriate to statutory intrepretation, fails to capture the greatness evinced in one of Justice Marshall’s most famous opinions. The Constitution is not merely to be applied by the court, it must be expounded.

…⁵

Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996).

…⁶

Id. at 6.

…⁷

Bork, supra n. 1, at 271.

…⁸

See Washington v. Glucksberg, 521 U.S. 702 (1997). Michael H. v. Gerald D., 491 U.S. 110 (1989). Bowers v. Hardwick, 478 U.S. 186 (1986).

…⁹

Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, Brennan, Marshall & Stevens, JJ., dissenting). Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

…¹⁰

John Stuart Mill, On Liberty (originally published 1859), .

…¹¹

Id. at Ch. 4.

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• Essays
  Mostly unpublished documents tending towards the “opinion” side of the spectrum.
• Reports
  Factual accounts from actual events, if you believe me.
• Poems
  Some poetry I’ve written, mostly from several years ago.

Hi All:

I just returned from the hearing for a preliminary injunction on the NuSphere/MySQL case. Here are some initial reactions, many of which are not original to me.

First, the headline: There was nothing to suggest that the GPL itself or free software is in danger, although the judge is unlikely to rule in MySQL’s favor on this preliminary injunction.

The details: Judge Saris was surprised by the number of people attending the hearing (around 20 to 30). I suspect she didn’t know this was being seen as the first test case of the GPL in court. She threw both sides off balance by announcing, before any arguments, that she had more or less made up her mind.

She said she was inclined to grant the defendant’s (MySQL AB) motion for a preliminary injunction with respect to the trademark issue (enjoining NuSphere from using MySQL’s registered trademark against MySQL’s wishes after their “temporary agreement” broke down) but was not inclined to grant the preliminary injunction against NuSphere from using the GPL’ed code at all. There followed about two hours of arguments, and when the Judge adjourned the hearing it seems she held the same views.

The judge did not want to get into issues of fact beyond their most minimally necessary. Although her technical knowledge was limited, she realized that it could take several hours and probably several days to fully explore the technical side of things, and she wanted to make her decision today after this hearing, particularly since people had traveled great distances to attend the hearing (including the two MySQL AB developers from Sweden).

Like most judges, Judge Saris was hoping this could be settled between the parties, particularly since the Court is not particularly well equipped to deal with the more technical issues of ‘statically and dynamically linked code’, etc. She urged the parties to use the remainder of their time in the courtroom to talk, and was trying to set up some mediation with a professional mediator or magistrate judge. One analysis is that she will grant one motion but not the other so as not to put either party in too powerful a position in an out-of-court settlement.

Although the court clearly didn’t understand the specifics of open source (she seemed to think “linking” code was analogous to hyperlinks on the web, and that a single package was like a single icon you would click on on the desktop), she did pretty clearly understand what the GPL is about, and said nothing to suggest she didn’t think it would be enforceable. The issue at hand was whether the facts required immediate injunctive relief. For preliminary injunctive relief, the Judge looks at:

1. likelihood of prevailing on the merits
2. immediate and irreparable injury, loss or damage
3. balance of harm to moving party vs. harm to non-moving party lies in moving party favor

It seemed like she might be convinced on (1), but she had trouble seeing how (2) was the case, so she was not particularly interested in hearing a lot of argument about whether or not the case would eventually prevail on the merits. She also was concerned that the injunction from using MySQL code at all would essentially destroy NuSphere’s entire business (despite the fact that they are a subsidiary of a $300M company), and thus found it hard to believe that the balance of harms would lie in MySQL AB’s favor.

It is thus likely that she will not actually address the terms of the GPL itself in her decision, which is a good thing, since there was so little expert testimony about it (Eben Moglen was present but was not given a chance to testify). Instead, I expect she will focus on the lack of proof of irreparable harm in a short opinion denying the motion.

The trademark issue was more clear cut. Under copyright law, non-permitted use of a trademark is presumptively irreparable harm. MySQL AB and NuSphere had previously had a provisionaly contract granting NuSphere the right to use MySQL’s trademark; however, the court found it convincing that that contract terminated (1) because it had a horizon date, after which further arrangements would need to be made, and (2) because NuSphere ceased making payments to MySQL AB. NuSphere wanted to argue that MySQL AB should be stopped from the claim because they took 18 months to bring suit about it (therefore, in NuSphere’s view, “acquiescing” to the continuation of the contract) but MySQL AB was in good faith negotiations for most of that time; once things did break down and MySQL AB learned that NuSphere had distributed MySQL along with proprietary software, then they did file suit fairly promptly.

I’d be happy to answer any questions about the proceedings for those who couldn’t make it.

A couple of thoughts:

1. NuSphere probably figured they could probably violate the GPL and MySQL would not have the resources to sue them. This is probably true of most free software developers who have not assigned their copyrights to the FSF. After watching this hearing, it seems to me imperative that developers assign their copyrights to some party that will have the resources to enforce it (whether the FSF or some other organization). These violations can only become more common as GPL software becomes more powerful and widespread, and it is quite expensive to litigate against them.
2. The GPL termination clause (section 4) is going to cause problems. Does the person who violates the GPL permanently lose their license until the licenser re-grants it, even if they bring their use back into compliance with the GPL? Can they not redownload the GPL’ed software and become a ‘fresh’ licensee? What if the original licenser can’t be located? Does this mean there is a “special class” of people in the world who can’t distribute GPL software for the rest of their lives because of some past action that has been cured? How are courts likely to view this interpretation? Is it good policy? These issues were quite present because it appears that NuSphere has substantially cured their prior violation (although there was a dispute of fact over whether they actually had fully cured it).

That’s it for now. The parties were given until August for discovery, although the judge urged them again to settle before that. It appears that a preliminary injunction against NuSphere to stop them from using the trademark (they will probably change the software name to something like “NuSphere Enhanced for MySQL”) will likely give them something on the order of three months to implement.

Published in Critical Mass: Bicycling’s Defiant Celebration [Powell’s Books], printed by AK Press.

A robust Critical Mass movement inevitably bumps up against fairly vocal folks who would prefer we stay off the streets at rush hour and not ruin the meager gains that have been won for bicyclists over the past few years. Disapproval is particularly acute when Critical Mass is just getting started in a city, where the staunchest CM critics are often the most dedicated bicycle advocates. After a while, some of the grumbling dies down and these advocates begin to accept CM’s presence, if not actively encourage it.

These criticisms present a useful gateway into how and why CM works. They bring to the forefront contrasting models of social change and particularly highlight the difference between so-called “liberal” or “reformist” modes of change and “radical” or “revolutionary” modes. I will discuss how CM brings out distinctions between these modes while at the same time encompassing them.

First, I’d like to make the usual apology that this is just my take on things. Anyone who claims to know the one true nature of Critical Mass is probably missing the point.

There is, in my view, a widespread misunderstanding, reflected in some of the quotes above, that a Critical Mass ride is trying to ‘demonstrate’ something to someone or convince people to change their minds about things, as if it were a novel form of reasoned argument. If we were to accept this view of the ‘purpose’ of Critical Mass, we would indeed be fair targets for a lot of criticism. If we’re trying to change people’s minds, why do we get in their way? Shouldn’t we be doing everything possible to make everybody like bicyclists? Sure, we hand out flowers and hold up funny signs during the ride, but wouldn’t it just be nicer if we would keep to one lane and refrain from impeding the ‘regular flow’ of rush hour traffic? We could still ‘make our point’ but at the same time broadcast ‘a more positive message’.

From the point of view of an urban bicycling advocate, the ride event itself has an overall neutral effect on the state of infrastructure, education, and enforcement favorable to bicyclists. There are numerous positive effects: people see a lot of bicyclists having fun, who hand out informative flyers that do influence people’s opinions, and so forth. Maybe a few pro-bicycle politicians jump on the bandwagon and take advantage of the opportunity for publicity about a sustainable transportation initiative. There are also, of course, some negative effects in terms of traditional bicycling advocacy, which are described in great detail elsewhere. In my view, these positive and negative effects balance each other out.

If your main concern is bicycle advocacy, the main difference CM makes emerges in the time between rides, when otherwise depoliticized cyclists are inspired to take action; to write letters to their representatives and city councillors; to argue with their neighbors, families, and friends; to become increasingly aware of the primary role that auto-centric transportation and land-use policy plays in setting foreign and domestic priorities, in separating out rich from poor and black from white, in causing more deaths, injuries, and illnesses than all of our other major epidemics combined. If the point is to advocate for better policies via widely accepted democratic channels, Critical Mass contributes to this mode of change by building an army of better advocates.

I’ve spent a great deal of time at meetings of regulatory agencies, planning and zoning boards, and other decision-making bodies that determine what our environment is going to look like, which in turn has enormous impacts on our daily lives and social interactions. It is absolutely clear to me that these organizations do not make their decisions based on reasonable arguments, on trying to do the right thing ‘for the citizens of the city’, whether environmentally, socially, or economically. Zoning, development, traffic planning—all are politically driven. This means they are reflective of the underlying distribution of power in society. And I can assure you that bicycles as a mode of transportation are totally off the radar (at the very best, a token afterthought). Until bicyclists are organized—and I believe Critical Mass is a powerful tool for organizing and politicizing otherwise disenfranchised bicyclists—there will be no sea change. We will celebrate excruciatingly small victories. But we can do much better.

Advocacy alone, however, is not how social change—or collective determination of uses of public resources—occurs. Few historical examples come to mind of an oppressed class of people winning over the general public on the basis of their likeability. Nor does progressive change occur as a result of convincing, well-reasoned arguments and good-natured debate. The labor movement was not built by a concerted effort to convince capitalists that the workers were friendly people who deserved better pay. De jure racial discrimination did not end because of an effective public relations campaign highlighting the merits of African-Americans. Struggles for democracy and human rights under dictatorial regimes have never been won because the underdog rationally convinced the dictator to abdicate power.

Why should the situation be any different for the Critical Mass community? Although our interests are varied—bicycling seems to be only one small but essential part of what unites our movement—our situation is clearly that of an interest group that traditionally has been poorly represented in the American political system. Our success is linked to our numbers, our strength, our power, and ultimately our unity, but it is not particularly dependent on good public relations and a non-threatening demeanor.

Even some in the mainstream acknowledge the critical, more radical, role the Mass plays in effecting change. A highly respected professor of urban planning at UC Berkeley recently published an article in which he said that the prospects of achieving bicycling advancements in the US are specifically tied to the ability of grassroots political pressure brought on by such groups/movements as Critical Mass (Martin Wachs, Transportation Quarterly, “Discussion of ‘Bicycling Boom in Germany: A Revival Engineered by Public Policy’ by John Pucher”, Fall 1997).

Social progress—whether in civil rights, environmental protection, economic justice—never occurs without a group that pushes harder, that reframes the questions and recenters the debate, that occasionally acts ‘as if’ what they wanted to be true were true. This is the more radical role Critical Mass plays in social change. I do not ride with Critical Mass (necessarily) to make a good impression on people, to convince drivers of anything in particular, to ‘advocate’. I ride because I find the mass creates a temporary autonomous zone (to borrow a slogan from Hakim Bey); a place where bicycles do have the right of way—and not just on paper; a non-imaginary safe, quiet, clean, and fun use of the public good, the streets which we all pay for and the air which we all breath; a place where the streets are designed for bicycles, not cars. Critical Mass does not ask the question of whether bicyclists should have ‘equal rights’ to the streets, where ‘equal rights’ means ‘just like cars’, instead it presumes that the public space should be for us, the people, and then gives the cars a chance to figure out how to fit in.

The transformation that occurs on the streets during Critical Mass rides is not the result of more bike lanes or bike racks, traffic calmed streets or better signage, nor does it come from better laws on the books or better enforcement of existing laws, nor does it even come from increased respect for bicycles from those operating motorized vehicles. Instead it emerges from the fact that we are present in large numbers, and we have made a collective decision that this is how we want things to be.

Activists often refer to ‘direct action’ as a means of accomplishing political goals. In fact, this can mean two different things: in one sense, direct action is ‘taking to the streets’, demonstrating and protesting. In its more powerful sense, however, it is the action of taking control over the conditions that we live in. Inasmuch as the mainstream media has provided positive coverage of the recent wave of anti-globalism actions initiated in Seattle in 1999, it has focused exclusively on the first sense: large numbers of people demonstrating their beliefs and protesting against the powers that be. Participants in these demonstrations, however, often return with a much more profound sense of empowerment from the decentralized consensus decision-making processes that have evolved around these events. They realize that the world we envision may be possible on a large scale; not only that, but that this world exists on large scale, in various pockets at various times. CM is powerful as these protests are powerful, not simply because it demonstrates some idea, but because it enacts that idea.

CM’s radical nature lies in its process. It is a means of moving, not a particular destination. It claims, first and foremost, that we do things ourselves, and that this way of doing things is fundamental to liberty. Effecting change ourselves, rather than urging the duly-elected representatives to do something about it, is a very dangerous way to do things, and has certainly met with a good deal of resistance from the police. Some would argue that it less democratic: isn’t this the few imposing their will on the many? Others predict that legitimization of this mode of social change will inevitably lead to anarchy, where everyone who wants to accomplish anything will take to the streets, break windows, and set fires.

It’s important to remember, however, that democracy is not necessarily premised on majoritarian rule. Sometimes extraordinary counter-majoritarian actions are essential to protect the very mechanisms upon which democracy depends. It is quite clear that the Supreme Court, in ordering the desegregation of Southern public schools in Brown v. Board of Education, was not enacting the will of the majority. Even though the body politic would not have voted to eliminate segregation, the action was essential to the furthering of democracy, something that even the most conservative have finally come to admit. Similarly, even if we live in a society that is predominantly based on auto-centric and environmentally unsustainable patterns of development, where we might even vote for the policies we get, doesn’t mean it’s not more democratic for a small, determined group of people to make a difference for positive change, even if it happens to go against the will of the majority. As Margaret Mead says, “[i]ndeed, it is the only thing that ever has.”

CM’s critics often focus nearly pathologically on the degree to which CM does or does not follow ‘the law’. They claim they would support and even participate in CM, if only we stopped at all red lights, kept in one lane, and followed the rules set out for us. Of course, it’s not the occasional misdemeanor or traffic violation that causes all the tumult: it’s the fact that there are hundreds of bicyclists riding together in what is traditionally car territory, having fun. Although we might be able to get some sanctimonious reward out of reminding the drivers that we are just following the rules of the road, I doubt it would make any difference in making the ride less controversial, nor even in reducing the incidences of conflict with the police.

There is a deeper issue at stake here, though. Laws are only as powerful as we allow them to be. The decisions as to what rules we are to live by are not passed down, engraved in stone, from the gilded halls of the legislature. They are fluid; we make them every day by deciding which rules to respect and which to ignore. For example, a local religious group recently attempted to press charges against a movie theater screening an allegedly blasphemous film. The court clerk asked the group several times if they really wanted to pay the filing fee. Because they believed the law to be what was contained in the officially published state statutes, they paid the fee and eagerly approached the Judge with their argument. They were sent promptly out the doors, minus their filing fee. Why wouldn’t the Court enforce the Law? Because the people had stopped believing in it a century ago.

When CM is attacked as leading to anarchy, we might at some level have to agree. CM does not delegate decision making power to duly-elected officials; it is not always entirely law-abiding; and the unplanned, spontaneous nature of the rides might accurately be described as ‘anarchistic’. But anarchy is much more of a method than an ideology, a way of experiencing the world rather than a political system. Most importantly, it realizes that the force which stops us from breaking windows and setting fires is not the threat of violent police retaliation but rather mutual respect and voluntary adhesion to practical norms of behavior. In my experience, CM has only become ‘anarchistic’ in the negative sense when faced with extraordinary violence from the police, which is much more the exception than the rule. If we learn anything about the potential of large scale anarchistic movements from CM, it is that they are predominantly non-violent, and do a much better job at self-policing than any group depending on outside forces to keep them in line.

Environmentalists are often accused of being motivated by a ‘social agenda’. They will deny the accusation, claiming that their arguments are based in scentific fact, are in fact grounded in demonstrable ‘truths’. But I think we would do better to admit the accusation. It is precisely our ‘social agenda’ that can make the movement appealing and powerful. What good is saving the world, if you don’t first create a world worth saving? CM grasps this reality and engages in it, by pulling the social agenda in the forefront. Sure, we want cleaner air and more efficient transportation, but we only want it if we can radically restructure our relationships and our work in the process.

Of course, the critics are welcome to disagree with anything I’ve said here. If they want to shift the direction of Critical Mass in a more ‘positive’ sense, they can bring more of the type of people they’d like to see riding, the last Friday of every month wherever their local mass convenes. Fundamentally, CM organically adopts the character of those who contribute most to it. It is powerful not because of the message it sends or the image it conveys, but because it engages and empowers its participants, welcoming anyone who wants to chip in.

 blue moss covered night sky seen through my fiber liquid window smooth bright moss and I capitalize! and I tremble without reason to impress my friends that i am a tortured soul and realize, too harshly now be born without rhythm! the gift of pure ignorance, racism, speed limits the sky again, long blue moss, rolls gently by? is gone then. 

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 class='responses'>$comment
$date_string
 
"; close IN; } return $followup_text; } sub AddFollowUp { my $file_name = shift; my $url = shift; my $comment = shift; my $epoch = timelocal(localtime); ($url = URI::Heuristic::uf_urlstr($url) and $comment and $file_name) || return 0; open OUT, ">>$followup_root/$file_name" || return 0; print OUT $epoch . "\t" . $url . "\t" . $comment . "\n"; close OUT; 1; } sub GetMetaData { open IN, shift || return; $_ = join('',); close IN; my %metadata = (); my @matches = m{<%(.*)\s*[:=]\s*(.*?)\s*>}gi; while( @matches ) { my $key = lc shift @matches; if ($key eq "title") { $metadata{$key} = [ shift @matches ]; } else { my @values = split( /\s*,\s*/, shift @matches ); $metadata{$key} = [@values]; } } return %metadata; } sub GetTopicStringFromMetaData { my $topicArray = shift; $topicArray or return ""; my $topicString = "Topics: "; foreach (@{$topicArray}) { my $topic_filename = &MakeTopicFilename($_); $topicString .= "" . $_ . ", "; } $topicString =~ s/, $//g; $topicString .= ""; return $topicString; } sub MakeTopicFilename { my $topic_filename = lc shift; $topic_filename =~ s/ /_/g; $topic_filename; } sub MetaDateToEpoch { $_ = shift; my ($year, $mon, $mday, $hour, $min) = m/^(\d{2,4})\.(\d{1,2})\.(\d{1,2})\.(\d{1,2})\.(\d{2})/; $year < 100 and $year += 100 or $year > 1900 and $year -= 1900; # timelocal wants dates since 1900 $mon -= 1; timelocal(0, $min, $hour, $mday, $mon, $year); } sub EpochToBlogDate { $_ = shift; strftime("%A, %B %d, %Y at %I:%M %p", localtime($_)); } sub EpochToShortDate { $_ = shift; strftime("%D %H:%M", localtime($_)); } sub EpochToDateOnly { $_ = shift; strftime("%D", localtime($_)); } # Returns the timestamp of the specified blog file, either from the last modified # or from embedded metadata (metadata always takes priority) sub GetBlogFileDate { my $current_file_name = shift; my $return_value = 0; my %meta_data; (-e $current_file_name) || return $return_value; $return_value = (stat($current_file_name))[9]; %meta_data = &GetMetaData($current_file_name); if ($meta_data{"date"}) { $return_value = &MetaDateToEpoch($meta_data{"date"}[0]); } $return_value; } # Despite its name, FastGrep is probably not all that fast; # I think something needs to be done to precompile the pattern--although I wasn't able to figure it out. # It is passed a search string and the material to search; # it parses out the search string by spaces. In order to return true, all term smust appear in the material. # (i.e., 'google' type searching) sub FastGrep { my $search_string = shift; my @search_material = @_; my $found = 1; my $code; my @search_string = split(/\s/,$search_string); foreach my $current_search (@search_string) { $found = 0 unless grep /$current_search/i, @search_material; } $found; } sub ShowSearchResults { my $search_string = shift; my %meta_data; my @results; foreach my $blog_file (<$documentRoot/*>) { my $entry_name = $blog_file; open IN, $blog_file; push @results, $blog_file if &FastGrep($search_string, ); close IN; } print "
Search Results
\n"; print "
Sorry, there were no results. You can try a new search if you want. Note that all terms must match; if you want to do an “or” search, try using a | between your search terms.
" . &StringSearchBox unless @results; foreach my $current_file_name (@results) { my ($description, $topics) = &BlogItemSummary($current_file_name); print &UniversalFormat($description); } } sub StringSearchBox { <'$blogPath' method='post'> 
 'feedbackform'> 'submit' value='Search:' /> 'text' name='search' size='20' maxlength='40' />  
  EOF } sub BlogItemSummary { my $blog_file = shift; my ($item_description, %meta_data); my $blog_timestamp = &GetBlogFileDate($blog_file); my @topics; %meta_data = &GetMetaData($blog_file); return "" unless $meta_data{"title"}; $blog_file =~ s<^$documentRoot/><>; $item_description="
$blog_file>" . $meta_data{"title"}[0] . ' 
  ' . EpochToBlogDate($blog_timestamp) . '  '; if (&GetTopicStringFromMetaData($meta_data{"keywords"})) { $item_description .= "
" . &GetTopicStringFromMetaData($meta_data{"keywords"}) . "
\n"; foreach (@{$meta_data{"keywords"}}) { push @topics, $_; } } return ($item_description, @topics); } sub UniversalFormat { $_ = ">" . join('',@_) . "<"; my $string = $_; while ($string =~ s{<%embed:(.*?)>}{ REPLACETEXTHERE}i) { my $embedded_blog_link = $1; my $embedded_document = &show($documentRoot . "/" . $embedded_blog_link,1); $embedded_document =~ s{blogtitle}{blogsubtitle}g; $embedded_document =~ s{(blogsubtitle.*?>)(.*?)(<)} {$1s="blogsubtitle" href="$blogPath?rightframe=$embedded_blog_link">$2$3}g; $string =~ s/REPLACETEXTHERE/$embedded_document/; } $_ = $string; s{<%blog:(.*?)>} {
$1
$&}g; s[<%blogimage:(.*?)>] [${documentURL}image_$1" alt="$1" />$&]g; s[<%rimage:(.*?)>] [${documentURL}image_$1" alt="$1" class="insetright" />$&]g; s[<%limage:(.*?)>] [${documentURL}image_$1" alt="$1" class="insetleft" />$&]g; s[<%image:(.*?)>] [${documentURL}image_$1" alt="$1" class="insetcenter" />$&]g; s{\s*([^>]*?)>} {$documentURL$1.pdf">PDF version [info]}gi; s{\s*([^>]*?)>} {$blogPath?rightframe=$1">}g; s{\s*([^>]*?)>} {$documentURL$1">}g; s{(
.*
)} {WEBLOGPLACEHOLDER}is; # Remove a 
 section, if there is one, to be put back afterwards my $preSection = $1; s{
}{
}gi; s{
}{
}gi; s{(]*[^/])>}{$1 />}gi; s{&([^;]*? )}{&$1}g; # Only replace & with & when the & isn't already an HTML escape sequence! while (s{>([^<]*?)``(.*?)''(.*?)<} {>$1“$2”$3<}gs) {}; while (s{>([^<]*?)"([^"]*?)"(.*?)<} {>$1“$2”$3<}gs) {}; while (s{>([^<]*?)`([^']*)'(.*?)<} {>$1‘$2’$3<}gs) {}; while (s{>([^<]*?\s)'([^']*)'([\s,;\.].*?)<} {>$1‘$2’$3<}gs) {}; while (s{>([^<]*?)'} {>$1’}gs) {}  s/WEBLOGPLACEHOLDER/$preSection/; # Put back any removed 
 section. s/^>|<$//g; s{<%(.*?)>} {}g; $_; } 1; 

 syntax highlighted by Code2HTML, v. 0.9.1  
            

On January 15, 2003, the Supreme Court issued its opinion in the Eldred v. Ashcroft case. In a 7-2 decision, the Court upheld the Constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA) of 1998. CTEA retroactively extended the duration of copyright from the life of the author plus fifty years, to the life of the author plus seventy years, thereby guaranteeing a handful of multinational corporations another 20 years of proprietary ownership of cultural icons such as Mickey Mouse and Robert Frost.

Three months earlier, on the eve of the oral arguments for the Eldred case, I was on coop in Washington, DC, attending an evening party for the plaintiffs. I sat across from Eldred himself at dinner. Counsel Larry Lessig even made a brief appearance. People had come from all over the world to celebrate the possibility of a renewed public domain. One group drove from California in a “bookmobile”, an old van with several laptops connected to the Internet through a satellite dish. The bookmobile stopped at public schools along the way, particularly in poorer urban areas, and students could request any book in the public domain that would then be beamed down, printed out, bound, and distributed for free. We were giddy; we were witnessing the birth of a movement.

The Court’s decision against Eldred did not shock anyone. The Act in question was passed in 1998 by unanimous consent in the Senate and a voice vote in the House, in the midst of the Monica Lewinsky scandal and the Kosovo war. Few activists outside of certain narrow interest groups organized against the law, and those groups did a poor job of reaching out to the broader social justice movement that was taking root across the country and would burst into the national consciousness at the WTO meeting in Seattle a year later. Although the social discourse surrounding intellectual property has changed dramatically since the passage of the Sonny Bono Act, many people working in the labor, environmental, and anti-globalization movements have yet to see the profound connections between intellectual property law and the struggle for global justice.

My decision to come to law school arose out of an unexpected collision with intellectual property law while working in the labor movement. Part of my job, prior to law school, involved creating websites for a local union’s corporate campaigns. When an employer attempted to bust the union, we responded by targeting other stakeholders of the company in order to build leverage for the workers. In one campaign, we were organizing independent insurance agents suffering from rapidly escalating premiums imposed by a subsidiary of the parent company of a particularly anti-union employer.

About a week after the website went up, we received a cease and desist letter from the company’s lawyers, claiming trademark infringement. While the website provided only accurate information and explicitly disclaimed any connection with the company, the company’s trademarked initials appeared in our domain name. Fortunately, the union’s legal representation was familiar with these sorts of silencing tactics, and after a few letters back and forth, the company relented in their threats. Meanwhile, the pressure created by the website allowed us to make significant gains at the bargaining table, and ultimately the employer recognized the union.

Many others are not as fortunate. Various areas of intellectual property law, originally conceived to provide incentives for creativity, are increasingly used to silence criticism and destroy potential competition. Several other laws enacted in the past five years have given multinational conglomerates potent tools to restrict access to information and culture to the elite. The consequences of these laws go far beyond the chilling effect on speech: strong international patent protection denies essential medication to hundreds of millions of people around the world, particularly with respect to the AIDS pandemic; small filmmakers find themselves deprived of raw materials as exorbitant licensing fees are required for any copyrighted work that might even appear in the background of a scene; rap artists are hauled into court because the essence of their music, like all other music, is to draw from our popular culture and make new creations from it; finally, the software copyright system has created robber barons that make the Rockefellers and the Vanderbilts look like small business owners.

Disruptive technologies have a tendency to threaten entrenched interests. The Internet is now a powerful communicative and organizing tool for movements ranging from the Zapatista revolution in Mexico to the anti-globalization protests in the United States. The enormous potential for the free flow of scientific, medical, and cultural information is under attack by those who profit from denying access. I will use my legal and technical skills to work for free speech, civil liberties, and equal access to these emerging technologies.

Judge John D. Bates heard arguments this morning in RIAA v. Verizon, the “test case” for the subpoena provisions of the DMCA (section 512(h)). Both parties were given upwards of 45 minutes to develop their arguments and rebuttals, and the Judge permitted amicus Motion Picture Association of America to make a brief argument which for the most part said that the Motion Picture Industry had a large financial stake in DMCA enforcement.

Both parties and the Judge seemed to agree that the critical issue was one of statutory interpretation. They also agreed that the statute was poorly worded and there was a paucity of legislative history to answer the question unambiguously. Specifically at issue is whether the subpoena provisions apply equally to 512(a) service providers (where the provider is a “conduit” for user communications) as to 512(b), (c), and (d) providers. Verizon argued that the subpoena provision was specifically targeted at 512(c) providers, where the allegedly infringing material actually resides on the provider’s servers (e.g., pirate website hosted by provider) and does not apply to 512(a) providers; which is the function they are serving when peer-to-peer applications use their network. The RIAA argued that this distinction didn’t make any sense, and in fact they were unable to tell the Judge how many 512(h) subpoenas they had issued on 512(a) providers vs. 512(c) providers. No one could really clarify the status of 512(b) or (d) providers.

The Judge was particularly interested in the “constitutional avoidance” issue; that is, when in doubt, a statute should not be interpreted in a way that raises constitutional concerns. The RIAA argued with the Judge as to what the constitutional avoidance doctrine actually was; they insisted that it would only be raised with a facial challenge to the statute, not a challenge to the statute as applied. Of course, it seems more likely that Judge Bates will agree with his own interpretation of the doctrine.

The Judge questioned the parties repeatedly about the distinction between 512(a), (b), (c), and (d) providers with respect to the Constitutional issues. If a subpoena of 512(a) provider raises significant First Amendment privacy/anonymous speech concerns, why wouldn’t this apply equally to a 512(c)? In fact, it appears the Judge was looking for a Constitutional challenge to the entire subpoena process but Verizon wanted to focus on potential Constitutional issues with subpoenas of a 512(a) provider.

It didn’t seem to me that there was a clear winner today, and the Judge didn’t clearly indicate which way he was leaning, although he was quite solicitous to the Constitutional arguments. He does seem to have a very good grasp on the underlying issues and the technology involved, and promised to issue a decision quickly. I’m sure we’ll see some news reports and press releases later today.”