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Links: Lawyers, Computer Scientists, and Colourblindness
Posted by James Grimmelmann on Friday, June 11 @ 14:56:32 EDT Copyright
Matthew Skala, inspired by the discussion here about Monolith, has written a great great essay on the conceptual divide between lawyers and computer scientists. I deal with this divide on a daily basis, and Skala has nailed it: lawyers' work iinvolves reasoning about things computer scientists know don't exist.

His central metaphor is the color-coded (er, "colour-coded") world of Paranoia.:

Bits do not naturally have Colour. Colour, in this sense, is not part of the natural universe. Most importantly, you cannot look at bits and observe what Colour they are. . . .
The trouble is, human beings are not in general Colour-blind. The law is not Colour-blind. It makes a difference not only what bits you have, but where they came from.
I happen to think that things aren't quite as bleak as Skala describes. Good lawyering involves careful attention to the facts as they actually are; clients live in the real world, so lawyers need to live there, too. And good computer science is often highly attentive to Colour: programmers work with things that don't exist as though they did all the time (Fourier transforms and abstract base classes come to mind). So I think there's plenty of space for these groups to talk to each other meaningfully.

That said, much of the time, they don't, and Skala has a pretty convincing theory why. Go have a read.

 
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Intrinsic properties vs. Intent (Score: 0)
by Anonymous on Saturday, June 12 @ 05:33:34 EDT
I mostly agree with Skala, and maybe "colour" is an apt analogy for some, but I prefer to think of the difference as one of mental attitude or bent. Laws are principally social constructs, dealing with the way in which we want people to interact with each other. Computer science and other abstract studies, on the other hand, deal primarily with non-social things, usually represented by mathematical constructs. When looking at a file, the computer scientist will want to know what the bits represent, whereas the lawyer will want to know who is responsible for it and what is being done with it. This, to me, is the great divide: a computer scientist is interested in the intrinsic properties of a file (those which can be determined by examining its contents alone), whereas a lawyer is more interested in what the content represents, who is responsible for it, and how it came to be.

The problem is exacerbated by the fact that the law (particularly US law, as I understand it) attempts to be codified like a computer program. To any computer scientist, it is immediately obvious that the law is full of security holes, and the Monolith technique is simply trying to point out that the copyright security model makes no sense whatsoever when viewed in this manner. But to make any sense of law in general, you need to see social beings as the first class entities of the system, rather than the files which contain the works. When viewed in this way, the Monolith discussion is a complete waste of time, because it discusses numerical properties of files, not the actions and intents of persons. Thus it concentrates entirely on secondary entities, ignoring the primary. A distinction is often made between the letter and the spirit of the law, and judges often frown on those who flout the spirit of the law while ostensibly observing the letter; computer scientists can make no such distinction with regards to a computer program, except to point out a bug.

I think Skala dismissed the concept of "metadata" too quickly. Metadata is data about other data. Sometimes metadata is stored in a file (along with the data to which it is metadata), and other times it is not. From a theoretical perspective, there is arguably an infinite amount of metadata that could be associated with any given piece of data, but we tend to keep a record of metadata only to the extent that it serves a useful purpose. When Skala describes two identical files as having different colours, he is using a metaphor to claim that they are associated with different metadata. For example, there are only two possible configurations of a one-bit-long file ("1" or "0"), but if we include metadata like time-of-creation, name-of-creator, name-of-file, and so on, it's immediately obvious that there are an indefinite number of file-and-metadata possibilities, not just two. In the case of copyright law, the fact that a file does not contain all the important metadata does not mean that the metadata ceases to be relevant. Monolith deals with the data, but ignores the metadata. It might be said that a good lawyer knows which metadata to dig up and introduce into an argument.

On the other hand, the legal beagles who treat social facts as first class entities do tend to under-appreciate the non-social facts of the matter with regards to digital technology -- or, worse, be wilfully and cynically uninterested in them for the sake of their own agenda. Every non-cynical copyright lawyer (a set which may or may not be empty) ought to understand at least one important implication of Monolith: a group of N (>1) people can publish files of a given length X, and the XOR product of those files may be a copyrighted work. That being so, it is effectively certain that at least one of those N people has acted wilfully to produce this outcome. Without further information, however, you cannot say which of these parties is culpable, and there need not be any collusion between the culpable party and the others.


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Re: Lawyers, Computer Scientists, and Colourblindness (Score: 0)
by Anonymous on Saturday, June 12 @ 14:17:16 EDT
One question I don't remember an answer to in Skala's essay is this: How does one objectively determine the “colour” of any particular bit? This question then raises other questions. For example, if you create a bit then you presumably know its “colour”, but how do you prove this to someone else? And if you receive a bit from someone else, how do you really know its true “colour”? And do bits ever change “colour”? How about shades?

This idea of “colour” seems to describe SCO's legal theories in their case against IBM in which they don't need to show any actual recognizable infringing code in Linux. They need only claim that some unidentified bits of their “colour” leaked into Linux in an unrecognizable form and then challenge IBM to prove otherwise. In other words, they can see their “colour” in Linux even if others can't.

So, in judging the color of a bit, it is appears that a court may need to make use of things “lying outside the sphere of physical science or knowledge”or “marked by extraordinary or mysterious sensitivity, perception, or understanding”, as Webster describes it. In other words, they may need to make use of psychic hot-lines.


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