Law and Law Making Process in the Age of High Technology
Talk presented at Brazil's National Congress
House of Representatives' Pubic Hearing on Software LicencingAugust 25, 2004
Maureen O'Sullivan *
[Official Translation of this document to Portuguese is available ]
The problem for society when law meets technology is that traditionally law has been a highly hierarchical structure, with an absolute belief in its own intelligence and in its capacity to address all matters objectively in the absence of reference to any other source. This has meant that when faced with changes and challenges wrought by society or technology, the law has been slow to respond and in some cases it has fossilised almost totally rather than being completely reworked, as it should be. The theme of my talk is the manner in which law and policy-making have to adapt to meet new technologies in order to develop them in the most constructive way possible and to avoid resentment from civil society, if it is perceived that the interests of big business are being prioritised. I believe that the law needs to flex in its intersection with technology. We should think neither in orthodox terms of regulation or deregulation: involvement, transpar ency, communication and subjectivity are key features of a necessary approach because how else can we develop appropriate legal coverage that is acceptable to the population in general?
I am speaking with democratic ideals in mind. I also speak as a lawyer from a common law or Anglo-American legal system and not a continental or Roman law jurisdiction but I believe that my perspective is relevant here in Brazil, as international law on any issue relating to trade or intellectual property rights is very influenced by the US, which also has a common law legal system.
Where Law and Social Issues Meet
My first example of the challenges which the law faces in dealing with unfamiliar territory comes from outside the realm of technology, from the criminal law realm as this was the first big area of research which I undertook. I use it here because it highlights in a limited way the sorts of challenges the law can expect to confront in technology and how, in principle things should not be handled.
In common law jurisdictions such as Ireland, Australia, Canada, New Zealand, several African countries and most of the US, all former colonies of England, whose legal systems are based principally around loose legislative provisions heavily refined by case law, the co-existence of very different ethnic groups has led to interesting developments in law making and legal dilemmas where old laws meet new people with alternative influences and expectations, in fluctuating social situations. The most amusing manifestation of this that I know is the English concept of the “reasonable man” in a partial defence to murder known as “provocation” and the way in which this character has developed over time. In English law, for the crime of murder, there is a mandatory life sentence, which is a relic from the days of the death penalty. Self-defence is a total defence: if you prove this, you will be acquitted. There are some mitigating or partial defences such as the defence of “provocation” which will reduce the conviction of murder to manslaughter and the test is that the accused must have behaved in the circumstances of the killing as a reasonable man would have done.
Who is the “reasonable man”?
In all common law jurisdictions, the reasonable man can be a woman, although the phrase “reasonable woman” has not entered into judicial vocabulary. However, my sources inform me that these do exist. In Ireland, the reasonable man cannot have a psychological disorder; he is, after all “reasonable”: for this, you would have to claim another partial defence - "diminished responsibility" - but in England you can plead these two defences together. So, if you go into court pleading to have been sane and insane at the same time, you increase your chances of acquittal than if you opted for one defence or the other. In order to assess what is reasonable, “expert witnesses” are called and the judge has the awesome task of deciding what characteristics are reasonable and what are not.
The real problem is the mandatory term for murder and the simplest solution would be to abolish it and have an informed policy on sentencing but this has not been done: instead, the approach has been to allow judges discretion to build up the reasonable man and expand the definition as they see fit. I hardly need mention that most common law judges are from a very privileged class and have little experience of dealing with gender, race, religious, socio-economic and class issues, to name but a few and they lack understanding of domestic violence where this defence is often raised. So, what is considered reasonable differs in every jurisdiction and sometimes in every court. That's just a short example to illustrate the sorts of problems that personality, preconceptions and ignorance in the courtroom may present and this also applies across the board to legislators and advocates.
Judicial Preconceptions about Software and Rights
It is surely better to address the root cause of an issue: otherwise, on even a superficial analysis, lawyers end up looking like a bunch of idiots. The present state of law and technology in the world is in an even greater mess: the introduction of copyright protection of software in the US was brought about by intensive lobbying of a rather clueless judiciary. Software was also protected under copyright law because to the average legislator, printed source code resembled a book or literary work. The laws were imposed from the top down and served a narrow range of interests.
Nowadays, the judiciary tend to be a bit better informed about technology but in the case of free software, they still do not have any idea about social issues: they are trapped in the “intellectual property” rights and incentives arguments about enriching society and creating employment. These arguments are that you have a right to what you have created and to exclude others from that creation, which is a philosophical stance based on a misreading of the works of a seventeenth century philosopher. Other arguments seeking to justify intellectual property include those relating to incentive, based on the idea that we all only value money and that, in the words of Margaret Thatcher, that “there is no such thing as society”, there is only the individual. In fact, the Internet’s sociological aspects are all about society and have little to do directly with economics. The capital earned by people like Linus Torvalds, the manager o f Linux, is primarily reputational, not financial. Yet many lawyers retain the facade of objectivity or neutrality I mentioned earlier, they allow the interests of big business to affect how they work, they become concerned only with winning cases, morals change and the whole profession and those affected by it become less representative and represented, respectively. In turn, society suffers and has really started to resist this continual onslaught of anti-democratic behaviour by big business operating through the legal and political processes. The danger is that if pushed too hard, the polarisation of politics and society will increase with unpredictable and possibly violent results because certainly in Europe, there has been a monumental increase in participatory democracy in the last few years.
Free software and the Internet, the two being virtually synonymous, constitute a human-made and managed resource, a complex ecosystem of intricate social bonds among its creators, technology which few of us totally understand, and, importantly, a well-established, informal licensing system which could prove to be the movement’s Achille’s heel, if not managed correctly. This is because free software communities cannot really be infiltrated by proprietary software companies because this is their home ground so attempts will not be made to rattle community members through the community, as free software gradually displaces proprietary software throughout the world. However, the law as a weapon against free software is a different story. Intellectual property laws on which free software partly relies are the terrain of large multinationals: after all, they practically wrote and continue to write the laws. If you view intellectual property laws as an externally s anctioned privatisation of communal resources against the will of the people or the creators of the resource, this will be the battleground, in my view, on which proprietary software companies will choose to fight. These laws are a type of colonization because they treat communal resources in terms of private property with a single owner or a small group of owners.
The GNU GPL which is the most commonly used free software licence subversively hinges on copyright to allow greater access to the source code than is the norm. This licence has been described by Professor Lawrence Lessig as “Stallman’s real genius” because of the way in which those who modify and publish their modifications must grant the same access to others. It was written by Richard Stallman, a hacker, not a lawyer, in a common law country and is now being used in up to 80% of free software projects all over the world. Users include governments, businesses and local and regional authorities. Lawyers are generally not involved in decision-making about which licence to adopt because licences are not chosen primarily with the law of any particular jurisdiction in mind. Instead, they are chosen to facilitate a particular software development model or as a guide for software re-use. Their power lies in the social bonds and rules they enshrine, not in respecting the laws of any particular country. They are designed to subvert those laws and to get around the way in which intellectual property laws have damaged earlier free software commons.
The CC-GNU GPL, or the Creative Commons version of the GNU GPL for Brazil is the first attempt to address the quasi-legality of the GNU General Public Licence through harmonization of this licence's terms with Brazilian law but this only does so at national level. Also, this does not, to my knowledge, have the approval of the Free Software Foundation. This is not a criticism, merely an observation. While useful, national harmonization merely scratches the surface of legal and socio-legal issues, especially when there is international collaboration on software development, which lawyers and policy makers, in collaboration with free software developers urgently have to address. I say “urgently” because of the other interests involved which pose a potential threat to free software: those of big business, copyright and patent holders who are trying to weaken this licence. If successful, they could bring the whole house of cards tumbling down and th e manner in which this could be achieved and possible responses and preventative actions are a key focus of my talk today.
Brazil has chosen to advocate free software and I strongly urge you to back up your talk not just with concrete deployment, which I understand you are doing but also with appropriate policy, laws and strategies for hypothetical scenarios. To do this effectively, you will need a multi-sectoral think-tank which involves members of the free software community in Brazil in your policy making. I was recently invited to give a number of talks at the University of Extremadura in Spain where the regional government has installed one computer per every two students in all public schools. They have also set up 33 centres to train the population in using free software: every centre has two instructors and in conjunction with neighbourhood associations, pensioners are coming in and learning how to use free email so that they can be in regular contact with their loved ones living in other parts of Spain. My big question for them was how they had managed to co-ordinate everything so qu ickly and so seamlessly because the switch over was very well organized. They said that the most important factor had been the political will, that there was top-down support and, indeed, a top-down initiation of the whole scheme. Extremadura was the place where many of the conquistadores of Spanish-speaking Latin America came from and at this point I suggested that they are trying to repeat history, this time with free software. Top-down involvement is an important point: you have done this on a much wider scale by opting for free software and your challenge will be to make sure that everything else falls into place. I am working with the regional government to develop some appropiate law in this area and have the following observations to make.
Free software law is still at a growing stage in its socio-legal development – it has matured as a social phenomenon evidenced in its widespread adoption around the world but legally, its situation is precarious. Battles await and if experience tells us anything, it is that the struggle will be ongoing and will have many more manifestations. The positions are free software versus proprietary software; informal laws versus legislation; informal dispute resolution mechanisms and locations versus courts and case law; society versus big business. Given that all the conservative interests have worked together to create the current legal climate, I mean, proprietary software with legislation, courts and big businesses: in order to be effective, free software advocates from all disciplines must join forces and create an ecosystem to protect the resource. If you are not close-knit in your approach, strategising and policy and law-making, it will be easy for outsiders to de stabilise your efforts.
What I am saying in relation to free software has already been played out in much more depth in another intersection of law and technology which has been fought over, partly won and partly lost and which is at a much more advanced stage in Europe at present. I believe that it will be useful for you if I digress somewhat and talk about the eight year fight over the importation of transgenic or genetically modified crops into Europe because there are lessons to be learned from the confrontation between law, society and technology which we have experienced in this matter. Many of the issues relating to free software and genetically modified organisms (gmos) are the same and involve the meeting of law, society and technology; intellectual property, especially in the form of patents; arguments about who has the right to control our access to the food chain, to information, etc. Essentially, I am talking about participatory democracy versus representative democracy or civil soci ety versus politicians who operate more in the interests of business rather than representing the people, as they are supposed to do.
Lessons from Legislating Transgenic or Genetically Modified Organisms (GMOs)
Crick and Watson “discovered” the DNA helix in the 1950s and ever since then, scientists had been attempting to manipulate it. This was done without public consultation. In the 1970s, scientists called for a voluntary moratorium on genetic modification for a short period of time to consider ethical issues but also decided that the public, or anyone outside the scientific community, did not need to be involved in this decision.
By the way, I want to say a brief word about the role of science in society before going on. I would say that science now occupies a position in society only rivaled by that of the Catholic Church in the Middle Ages and this has a lot to do with regulation of technology. Lawyers look for "yes" or "no" answers - "is it safe, or not?" and science cannot really answer these questions definitively and yet it has been forced into a role of providing absolutes - absolute truth and standards to which everything else takes second place. For example, all the decisions on gmos are ultimately based on "sound science". Like the "reasonable man" in my earlier example, "sound science" is not the same creature in the US as in Europe, although the WTO would like to force us into a standardised position - the US position. Almost all the research on gmos in the food chain is carried out by a handful of multinational corporations which are driven by profit. Scientists are obliged to "tow the party line" or face excommunication from the scientific community and there are plenty of high profile examples of this happening in Europe, the US and elsewhere.
Gmos raise numerous issues for social consideration including: possible negative or positive environmental effects; consequences for human and animal health; patents on gmos; ethical issues including religious and secular dietary restrictions that are threatened by the incorporation of animal and human genes into vegetable crops; the inability to segregate organic, conventional and genetically modified crops; the best way to deal with world hunger; and the simple issue of choice - if the majority of people don't want something, regardless of their reasons, it should not be imposed upon them against their will. To do so is a total violation of democratic principles where the majority in terms of numbers not of money are supposed to prevail. Decisions about gmos are made ultimately, however, based on whether the crops are "safe" and one of Monsanto's favourite arguments is that gmos have been tested more than conventional crops, so are safer. When pressed for evidence of thi s rigorous testing of which I have found no example at all in my 8 years researching in this area, they reply testily that millions of Americans have been eating these crops for a decade and no one has died as a result. Of note is the fact that most Americans are unaware of the fact that "sound science" American-style has decided that they do not need to be informed at all.
By the 1980s, the US decided to regulate genetic modification under existing legislation: as with software, they decided that new wine needed old bottles, not specially tailored or sui generis laws. By 1992, modified crops had become commercially viable and at that point, the Food and Drug Administration (FDA), a body which is really trusted in the US, hired a lawyer who had previously worked for Monsanto to write their policy on gmos. This document provided that the public would not be informed about modified crops entering the food chain if they could be shown to be "substantially similar" to their unmodified counterparts. So, a soya bean which incorporates genes from another species, together with a couple of viruses and bacteria routinely receives this classification of substantial similarity. There is no labelling but a gmo which is not sufficiently dissimilar to warrant labelling under US food laws, is sufficiently different to be eligible for patent p rotection. Under food laws, a gmo is the same as a non-gmo, under patent law it is a novel invention.
The food labelling legislation is effectively a total deregulation: no one really knows how many crops have been modified and with what. Considering that the vectors to get the new genes to propagate in the target organism are derived from bacteria and viruses - a type of e-coli is used for example - it does not appear to be a totally benign technology. Arguments in favour of genetically modified crops include statistics on world hunger as if large biotech companies which have patents on all their modified crops are going to give these away for free to poor countries. Moreover, over 99% of the crops modified in the last 12 years have been for herbicide tolerance and insect resistance. The same companies had patents which were about to expire on the weed-killers, known as Roundup and Liberty, for example and selling modified crops meant that farmers could be obliged to purchase their weed-killer from the seed producer. Furthermore, the gene incorporated into modified crop s for insect resistance, Bt, is commonly used in organic agriculture but its continued use threatens to render this natural insecticide useless and thereby harm the organic food industry. If your neighbour is growing patented gmos and they somehow end up in your field, you cannot sue for contamination because "sound science" decrees that there is no problem with this - no compensation is necessary because no damage has been done - but the owner of the patents, not your neighbour - he or she is merely a licensee - the large corporation can sue you for patent infringement. The Canadian Surpreme Court recently upheld a case brought by Monsanto against a farmer, who has had to pay massive damages to the company.
A recent and new investor in Monsanto has been Microsoft. If the patent onslaught continues and is not resisted effectively, soon most information and food in the world will belong to these two corporations.
The ownership of the foodchain is being sown up: a very small number of large corporations now own patents on many of the large crops: soya, canola and corn being the principal ones and there are ongoing plans to develop genetically modified wheat which has been shelved for now because of massive opposition in the US and Canada. In any case, Monsanto is now concentrating its efforts in Brazil because as the world’s second largest soya producer, for eight years you enabled Europe to purchase non-modified soya and to resist the importation of gmos until last year when your policy changed. On an international scale, this was a huge victory for Monsanto although as more American citizens become informed, huge resistance is also beginning to mount against gmos, especially in states such as California where bit by bit they are banning gmos - in contravention of federal law.
The importation of gmos into Europe caused a huge surprise for large biotech companies because they never expected the opposition they encountered. Their first strategy in 1996 was to import it quietly, with the collaboration of the European Commission, an unelected governing body in the European Union. When this didn't work, Monsanto forced grain elevators in the US to mix non-modified soya (then 98%) with the 2% of genetically modified soya and try to force us to accept this. Soya had become important as an animal feed in Europe after the mad cow disease scandal and there was a lot of sensitivity among the population about food safety along with a well developed food culture in most countries which differs from that of the US. Huge opposition was mounted by NGOs such as Greenpeace and Friends of the Earth and through the political process by the Green Party which plays quite an important role in European politics, both at national and community level. Furthermore, we f ound another source of unmodified soya in Brazil. Monsanto was very clever and got Argentina to make a complete conversion to genetically modified soya which it achieved, with the knowledge that Brazilian farmers would eventually start growing these crops - whether legally or illegally. So, they have won that part of the battle.
The opposition to gmos in Europe was so strong that in 1998 a moratorium was declared on their importation and commercialisation. A new Directive was drafted in 2001 and passed by some member states in 2002, very reluctantly. In fact, most countries did not pass this legislation into national law within the required time frame because it is something of a hot potato. The Directive provided a much stricter regime but has not really achieved its ultimate goal of lifting the moratorium because many Member States have simply refused to sanction imports and the Commission is treading very carefully.
There has been continual destruction of test sites: people from all social classes and ages have been involved in crop trashing because the legislative process has not responded to what the people want. In a survey of 16,000 people in the 15 Member States in 2001, the Commission acknowledged that 75% of the population categorically did not want gmos in the food chain at all and that opposition tended to increase the more people found out about them. Nonetheless, the criteria is "sound science" and we are regularly informed about our international trade obligations. The US has pressurised the WTO to take a case against us for their estimated $4 billion in lost sales in our markets per year.
What is interesting is that the company most active in Europe in this area, Bayer, has stopped all its planned cultivation of gmos in England and Scotland - Wales illegally declared itself to be a "GM-free zone" in 2000 and they have not been forced to comply with the legislation in place. Civil society has made it so that no gmos will be grown in England and Scotland for at least the next four years. Extensive trials were carried out in England and Scotland for four years between 1999 and 2003 and even the scientists concluded that all three crops tested were damaging to the environment but the government wanted to go ahead anyway and authorise their cultivation. At that point, civil society got organized via the Internet, pushed politicians aside and dealt direct with the multinationals, forcing them into the open where they could not hide behind politicians. The promise was that every gmo planted would be pulled out of the ground and 10,000 people signed up to this ple dge organized by a group which called themselves "Greengloves". This raises two issues: the power of boycott and the fact that representative democracy in the area of law and technology is something of a sham.
Top-down legislation is not working in this area because the public has not been included in the decision-making process. In England, the government held a public debate last year to make it appear as if they were listening but it was a big farce because for instance, when I raised a point about patents, industry representatives started hissing and the chairperson did nothing to restrain them. If Monsanto had come along years ago and promised to develop crops which would withstand drought and that enclosed tests would be carried out in the relevant environments in order to alleviate famine, people would have felt very differently but we're not stupid, we know that gmos are not about charity or goodwill, there development is not being sponsored by governments for the most part, it is all about profit and about subjugating the people and this is why there has been such resistance.
There has been an increased polarisation between politicians and society which, in some cases, promises to turn violent. I believe that this is because people instinctively resist the colonization which is occurring and in today's educated society, you can only push people so far or you'll end up with a revolution on your hands. We need to get back to some basics: representative democracy exists because people have entrusted their politicians to represent them - if this is not working, participatory democracy occupies a greater part in society and sooner or later people will begin to say "no taxation without representation".
From Participatory Democracy to Participatory Laws: Formalizing Informal Laws
Law and the law-making process needs a radical change. It must lose its hierarchical position and become more devolved, more participatory and more representative of the people who it governs. I did a thesis on socio-legal aspects of Linux a few years ago and I concluded that the licensing system was quite vulnerable and instead, we should aim to create an international, harmonized law. There are models of ground up law which can serve as a precedent for this sort of development: the law merchant is a good example. The sort of trans-boundary activity facilitated by the Internet resembles that which used to occur in European trade shows in the Middle Ages. Merchants from many different parts of Europe and Asia would meet at these shows and trade. There was no international law governing such activities at the time and so, merchants developed their own binding practices or “laws”, which told them what they could and could not do. These “laws ” were a guide for their commercial activity. Over time, these became enshrined in the commercial law of many countries throughout the world – a perfect example of good ground-up legislation where legislatures played a supportive role in protecting these customs. This is especially important in the case of software development.
In the early days of the Internet, many academics predicted that similar laws to the Law Merchant would develop over the network and, indeed, this has happened in the free software community or communities. Groups got together and created a resource and there were strict “dos” and “don’ts” about what was acceptable behaviour. After the introduction of copyright, which was a sort of colonization, they recreated their resource using free software licences. These were like transcribed customs – a written record of their practices and aims. The GNU GPL in particular, operated in tandem also with copyright law. It opposes its ethos and yet relies upon it to create a very different law: “copyleft”. Whereas copyright “reserves” all rights, “copyleft” is said to “reverse” them. In fact, copyleft is a legal hybrid, a sort of ambidextrous l aw very similar to moral rights in civil law countries with an extra element – rather than shutting people out, it lets them in, under certain circumstances. Authorship is generally attributable, though not always and the conditions are that you should not profit without sharing and not exclude when publishing. It is a very biblical idea of “do unto others as you would have them do unto you”.
Legally and socio-legally speaking at the moment, the GNU GPL is at a very interesting point in its development. First of all, it operates as a social contract which binds free software developers – this is generally observed within free software communities because of the potential sanctions which can be resorted to if the licence is not obeyed. Second, it purports to be a legally binding software licence, like any other. Third, it is being used by free software groups – both developers and promoters – all over the world, regardless of jurisdiction. Fourth, it is being adapted to each country’s law by the Creative Commons project of Stanford University – this can be seen as a “tropicalismo” of this licence. Fifth, I run a project in conjunction with the Free Software Consortium in which we are trying to get a free software law passed, in line with the aforementioned model of the law merchant. At first I believed th at this should be passed by the highest international legislative body possible but then realised that it could be done at Community, national, regional and community level too. If the legal climate was not right, regions or municipalities could make a declaration in favour of this type of legislation which could then be used as a strong political tool.
THE FREE SOFTWARE ACT: A DEMOCRATIC RESPONSE TO INTELLECTUAL PROPERTY LAWS?
Pressures that free software faces:
1. Vexatious copyright infringement actions - SCO v. IBM (see Groklaw, http://www.groklaw.net)
2. Patent actions.
3. Licence violation:
a) Copyright not recognised – authorship issues such as who wrote what where.
b) Clause of contract not recognised.
c) Violated in another jurisdiction where the law does not apply.
4. Public funds being used in free software development - vexatious law suits will lead to negative publicity and could end up being more costly. Threats to the licensing regime may stall the adoption of free software.
1. Harmonize the licence. This is being done by Creative Commons and is a partial solution. It does not address the issue of international collaboration on free software development and does not address the issue of patents or of vexatious law suits.
2. Codify the licence nationally with legislation rather than contract law so that it binds third parties, meaning that no agreement has to be entered into. This should apply to all free software licences, if not, it could isolate the BSD community.
3. Offer legal protection to all licences, either through harmonization or codification and create a separate default provision for anyone who doesn’t choose a licence. This could be done internationally as well as nationally. Trading blocks could make a declaration as to their intentions regarding free software: a possible move for Mercosul?
4. If the licence is not legalised, it could be politicised with state and city declarations.
The free software act project began last year in Costa Rica where I decided to start turning my theories into practice. I drafted version 1 of the Free Software Act, got some feedback and drafted versions two and three which I published in Linux Journal and LinuxWorld. I have just drafted version 4 and this is nearing completion of all the terms which I believe should be addressed. We, I mean, the Free Software Consortium and I are currently in different stages of discussing this Act with 5 law-making bodies around the world and aim to get it passed once the necessary tweaking has been carried out. The most important issues are to resist the patent threat, to include the creators of free software in the drafting process and, last but not least, to make sure that free software continues to grow and flourish and replace unnecessary, wasteful and unstable proprietary software wherever possible.
* Maureen O'Sullivan is Lecturer of Law at the University of West of England, in Bristol, UK. She presented this talk at Brazil's National Congress, in a Public Hearing on Software Licencing held by the Science and Technology Committee of the House of Representatives on August 25, 2004, by invitation of Deputy Representative Sergio Miranda, from the state of Minas Gerais, and prof. Pedro Antonio Dourado de Rezende on behalf of Projeto Software Livre Brasil.