Ernie the Attorney : searching for truth & justice (in an unjust world)
Updated: 6/5/2003; 10:55:47 PM.


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Thursday, October 10, 2002

Fantasy Football Leagues are for ninnys - real gearheads & quizkids will prefer this.
5:15:41 PM    

Not ready for DIDW player - I wish I were at the Digital ID World conference.  Phil Windley's talk sounds very interesting.  I have to admit that when it comes to Digital ID issues, I'm stupid. But I'm interested in the complex molecular structures that are being discussed.  I'm interested in complexity too.  But the Complexity World conference is still a ways off.  So back to "identity" and what it means to stupid old me.  And 'cause I'm stupid (and I notice that I'm not alone here) I need for "identity" to be simple.

I think that "identity" as a practical tool for humans, needs to be almost as simple as it is for dogs.  Dogs don't like complexity at all, which is why there will never be a gathering of canines to yelp about how to improve 'ass-sniffing.'  Of course, the problems of digital identity are more than: who are you? Still, that age-old problem is the one that is most nettlesome.  For example, my wife and I went to the closing of our house recently.  The first thing the notary wanted was our drivers' licenses.  Why?  So that she had a record of the identities of the people who were signing the legal documents that she was going to attest to.  We all knew each other, but she didn't know us.  So she had to sniff our rear-ends, so to speak. 

Phil Windley says governments don't want to be in the identity managment business, even though they are.   He says, according to the JOHO blog that "government has abdicated its responsibility as an issuer of digital signatures, which is why they're not as useful as they should be."  That is so true.   Someone has to be the lead dog here.  But a lot of people cringe and say they don't want the government having too much control.  Well, without a sovereign (Hobbes reminds us) we live in state of nature.  And digital identity becomes the least of our worries.  Well we aren't returning to the state of nature anytime soon, but it helps to remember the Hobbesian principles.  

In the digital world of ass-sniffing, we need something more reliable than easily forgible drivers' licenses.  And the government, excuse me...The Sovereign, is just the one to tackle this basic job.

3:02:04 PM    

Eldred - its all over but the scrivening - Sounds like the oral argument was about like you would expect: the court doesn't see a big first amendment issue (frankly, neither do I) and neither side emerged feeling that victory is certain.  Of course, trying to predict the outcome of appellate arguments based on the questions that are posed during oral argument is dicey at best because judges ask questions for a variety of reasons, not just to express disapproval with the argument being advanced.

Anyway, I wasn't at the oral argument. And I'm not a copyright law expert.  So it's safe to say that I'm dangerously under-informed, which makes it perfectly appropriate for me to opine on the likely outcome of Eldred.  First, to the members of the Supreme Court this is not a watershed moment of jurisprudence.  It's just an interesting copyright law case, with the most interesting thing being the constitutional dimensions.  Second, the court has a policy of avoiding, where possible, declaring laws unconstitutional.  So I think the court will write a 6-3 opinion (at least, maybe 7-2 or better) that the CETA is constitutional.  But the majority opinion (and the dissent) will fulminate a bit about how there are "limits" and "don't think that we won't strike down the next term extension."  They might even indicate that trying to harmonize our terms with other countries' terms, while laudable in the abstract, could run afoul of the Constitution (if they do they will say it in the usual diffuse way that tantalizes law professors everywhere).  Anyway, bottom line: Lessig did a great job, but the larger forces are against the argument that he advances. I wish the court would see the creeping extensions as a serious social problem of large players trying to control information.  But they won't. 

But, like I said yesterday, the world will keep on turning.  Hollywood will rejoice when the opinion is announced and many of us will hang our heads.  And then, in a couple of years, something entirely different will happen that none of us can forsee now (not even me, blessed as I am with these tremendous visionary insights).  The Internet will survive and the information consumers will get what they want, not because they are legally entitiled to it, but because the suppliers will eventually learn a new form of control.

What form?  I can't say really.  But it will be one that brings them more money.  And, frankly, there's nothing wrong with that.   As long as everyone gets what they want.  And I think, eventually, that's going to happen.

10:49:00 AM    

© Copyright 2003 Ernest Svenson.

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