1. Talking with Matt about stretching meatspace definitions to fit cyberspace has made me think about The Ontology of Cyberspace. The author argues that new technologies, particularly software, illustrate how the patent-copyright distinction is improper.
As opposed to the way Matt and I have been treating cyberspace, the author’s conclusion is that “cyberspace is nothing very special” and reveals existing problems in our meatspace definitions. I don’t really agree with him here or in his general conclusions. It’s too simplistic to simply lump everything in patents and copyrights together – they have different purposes that require separate categories, even if that results in incorrect ontology. For more, see Harvard JOLT’s great review discussing some counterarguments (and, if you’re interested in philosophy, check out the JOLT author’s senior thesis: Our Online Worlds: Code as a Technology of Power.).
Nevertheless, the author’s methodology is pretty interesting – the way he carefully critiques categories and definitions themselves, whether they make logical distinctions, is worth checking out.
2. Frank links to this piece about the DMCA embedded in the Singapore-US trade agreement. The article doesn’t do that much more than most anti-DMCA articles. The author’s two key points regard larger issues of fast track trade authority and its constitutionality. The first separation of powers question I understand, though I don’t know if it’s a criticism that would stand up in court. The second problem I really don’t understand. She states, “[I]t is not the judiciary’s role to decide whether the United States should honor its treaties.”
Yes, the Court has generally seen foreign policy issues as non-justiciable political questions (for a good definition, see Baker v. Carr, and, for an example in the foreign policy context, see Goldwater v. Carter – sorry, I’ve been studying it all semester, I’ve got to get the links out of my system). But, if the US agreed to a treaty that eliminated the First Amendment, the Court would step in – there’s nothing that says they’d have to restrain themselves. I can’t imagine the Court saying, “this is grossly unconstitutional, but, since it’s in a treaty, we can’t judge it.”