Re: IP: Author of DeCss Arrested

From: phil osborn (
Date: Sat Jan 29 2000 - 20:14:05 MST

From: Digital Cutup Lounge <>>Subject: IP: Author of
DeCss Arrested
>Date: Fri, 28 Jan 2000 10:56:14 +0800
>phil osborn wrote:
> > This naturally resulted in a vast war of all against all throughout
>France. According to Fukuyama, this utterly destroyed the common fabric of
>trust throughout French society, and they have still not recovered, some
>hundreds of years since.
> > The combination of the drug war, the newly burgeoning cyber-sex war, and
>the willy-nilly granting of patents and copyrights may well be more than
>enough to accomplish the same here.
> > ....
Fortunately, we now have the tools to stop it in its tracks.
>Such as?
>John von Seggern
>digital DJ -- producer -- bassist
>Digital Cutup Lounge
>Hong Kong
My suggestion overall is an explicit social contract. The internet is still
international and non-jurisdictional in a way that would make it possible
for everyone who so desired to be signatories to a document that would spell
out such essentials as the agreed upon method of dispute resolution. In
many jurisdictions, such as California, such a contract, say specifying
binding arbitration by the rules of the American Arbitration Society - or
anything that satisfies the rather loose specifications set out by the CA
courts, would be legally binding upon all signatories, taking all disputes
out of the state courts altogether.

Such a contract, backed up by available market safeguards and remedies -
bonding, escrow, letters of credit, etc., - could quickly and easily evolve
into a worldwide legal framework that could ultimately supplant the state
itself. Within such a framework, it is possible to spell out subcontracts
to explicitly handle issues such as title to intellectual property, remedies
for violations, etc., all without involving state coercion. Signatories
would get preferred access to a particular market. Non-signatories would
pay up front for the risk they created. A kind of historic precedent exists
in the common law versus various formulations of contract law or Admiralty
Law. (I am NOT an expert in these details, however.)

Such a contract could provide the kind of protection and risk management
that would allow for the rapid building of trust between participants
worldwide. There are vast investment opportunities today that have to be
foregone simply because of risk factors that such a universal contract could

The problem now, as I understand it, is largely "positive law." Positive
law is always the law of the conqueror. A good example is when the Normans
took over England. They couldn't very well keep the Anglo-Saxon common-law
courts - they would have been sued to death! But they had to win some level
of trust from the subjects. So they introduced courts that retained much of
the form of the old courts, but with their own hand-picked judges, and new

Under the good and ancient common law, the jury was sovereign. Juries MADE
the law. Judges could strike out a judgement against a defendant in the
interest of fairness or compliance with a larger jurisdiction, but they
couldn't increase the judgement. They could not instruct the jury on what
evidence to consider, nor tell them that they could only judge the facts,
not the law. A conqueror obviously could not tolerate such a system. So,
positive law - explicit law laid down by rulers - was introduced and juries
became more and more limited to ruling simply on whether someone was guilty
of violating that set of rules from the rulers.

Under the original common law, all cases were civil, not criminal. Criminal
law, once again, became necessary when you have to punish a subject
population. Under the common law, even a murderer was literally expected to
PAY for his crime - spending the rest of his life supporting widows, kids,
parents, etc. that were victims of his action. But such a system is rather
useless for detering victimless crimes, such as criticizing the ruler, or
having the wrong kind of sex, or using the wrong inebrients, etc. So the
positive law system holds out the incentive in a democracy of imposing the
will of the majority ruling coalition on everyone else, regardless of any
actual harm. The result is that the U.S. today has both the highest
percentage and largest total number of people incarcerated in the entire

Today, on top of law dictated to serve special interest, we have crooked
cops, crooked prosecutors, crooked judges, sadistic jailors, all part of
enforcing the desires of the current ruling coalitions vai positive law. In
a purely contractual society, which is what I want to move closer to, the
jurors or arbitrators will not get picked to serve unless they have the
reputation to deliver judgements that all parties can live with.

Instead of criminals versus non-criminals, there will be credit ratings,
different for different markets. Silly, arbitrary constructs like our
current patent, copyright system would simply not be tolerated. Any market
that tried to impose such constraints would be quickly abandoned, in favor
of markets that granted reasonable contractual protection for intellectual
Get Your Private, Free Email at

This archive was generated by hypermail 2b29 : Thu Jul 27 2000 - 14:02:55 MDT