The Future of the Constitution?

The Brookings Institution has organized a volume on “The Future of the Constitution” edited by Jeff Rosen and Benjamin Wittes and featuring articles by me, Larry Lessig, Jonathan Zittrain, Tim Wu and many others.  How will our constitutional tradition deal with the challenges posed by new technologies?  The topics range from possible personhood claims by artificial intelligences, to the future of free speech and the Net, to neuroscience and criminal punishment.  The essays are freely available online. Details after the jump.

The Future of the Constitution Series

Technological changes are posing stark challenges to our constitutional values. From free speech to privacy and from liberty and personal autonomy to the right against self-incrimination, basic constitutional principles are under stress from technological advances. The Future of the Constitution Series presents an invaluable roadmap for responding to the challenge of adapting our constitutional values from future technological developments.

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Endowed by Their Creator?: The Future of Constitutional Personhood

March 09, 2011

In the coming century, it is overwhelmingly likely that constitutional law will have to classify artificially created entities that have some but not all of the attributes we associate with human beings, writes James Boyle.  In this Future of the Constitution series paper, Boyle examines the jurisprudential challenges and how constitutional law should and will meet them.

Neuroscience and the Future of Personhood and Responsibility

February 03, 2011

With advances in neuroscience technology, functional imaging and genetic evidence may be introduced more often in criminal cases outside of capital sentencing proceedings, writes Stephen Morse. As a result, it is worth considering in detail neuroscience’s radical challenge to responsibility, which treats people as “victims of neuronal circumstances” or the like. If this view of personhood is correct, say Morse, it would indeed undermine all ordinary conceptions of responsibility and even the coherence of law itself.

A Mutual Aid Treaty for the Internet

January 27, 2011

Today, most people have direct access to the Web, but now their online lives are described by consolidating search engines, content providers, and social networking sites. However, with greater online centralization comes greater vulnerability, writes Jonathan Zittrain. The key to solving this is to make the current decentralized Web a more robust one by reforging the technological relationships sites and services have with each other on the Web, drawing conceptually from mutual aid treaties among states in the real world.

Reproductive Rights and Reproductive Technology in 2030

January 21, 2011

In a futuristic setting, John Robertson examines the legal challenges facing the constitutional doctrine of procreative liberty. Robertson writes that by 2030, the logic of procreative freedom should recognize the right of prospective parents to use the technologies available to have the family that they choose.

Cognitive Neuroscience and the Future of Punishment

December 28, 2010

Advances in cognitive neuroscience have breathed new life into very old arguments about human agency, moral responsibility, and the proper ends of criminal punishment. O. Carter Snead examines the cognitive neuroscience project and explores the radical conceptual challenge that it poses for criminal punishment in the United States.

Is Filtering Censorship? The Second Free Speech Tradition

December 27, 2010

According to Tim Wu, anyone who wants to understand free speech in America in the 21st Century needs to needs to know how the concept has expanded over time. A second tradition, dating from 1910 or the 1940s, goes beyond free speech as defined by the First Amendment, as it takes into account the actions of concentrated, private intermediaries who control the technology of mass communications.

Translating and Transforming the Future

December 17, 2010

Predicting the future in constitutional law is so difficult because of constitutional interpretation, writes Lawrence Lessig. Constitutional meaning comes just as much from what everyone knows is true (both then and now) as from what the Framers actually wrote. Yet “what everyone knows is true” changes over time, and in ways that it is impossible to predict, even if quite possible to affect.

The Cyberthreat, Government Network Operations, and the Fourth Amendment

December 08, 2010

To meet the threat of a cyber attack, Jack Goldsmith imagines that sometime in the near future the government mandates the use of a government-coordinated intrusion-prevention system throughout the domestic network to monitor all communications, including private ones. Although such a program would be controversial, Goldsmith argues that massive government snooping in the network can be lawful and deemed consistent with the U.S. Constitution, including the Fourth Amendment, if proper and credible safeguards are put in place.

Is the Fourth Amendment Relevant in a Technological Age?

December 08, 2010

To date, the Supreme Court’s interpretation of the Fourth Amendment has both failed to anticipate and continued to ignore virtual searches or investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away, thereby undermining citizen protections, writes Christopher Slobogin.

Innovation’s Darker Future: Biosecurity, Technologies of Mass Empowerment, and the Constitution

December 08, 2010

Ben Wittes argues that in coming years, biothreats—especially those emanating not from governments but from individuals—present perhaps the most profound challenge to the Constitution and the nation’s most basic assumptions with respect to security. Wittes examines the continued proliferation of bioterrorism technologies and how that will lead to a significant erosion of the federal government’s monopoly over security policy, and the consequences of that erosion.

Friday, March 11th, 2011 Uncategorized

From the Blog

  • Apple Updates — A Comic

    sampleEver been utterly frustrated, made furious, by an Apple upgrade that made things worse?  This post is for you.  (With apologies to Randall Munroe.)

  • Open Coursebook in Intellectual Property

    Cover of Intellectual Property: Law & the Information Society and link to purchase at Amazon.comDuke’s Center for the Study of the Public Domain is announcing the publication of Intellectual Property: Law & the Information Society—Cases and Materials by James Boyle and Jennifer Jenkins. This book, the first in a series of Duke Open Coursebooks, is available for free download under a Creative Commons license. It can also be purchased in a glossy paperback print edition for $29.99, $130 cheaper than other intellectual property casebooks.

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  • So you’ve invented fantasy football, now what?

    We are posting excerpts from our new coursebook Intellectual Property: Law and the Information Society which will be published in two weeks is out now! It will be is of course  freely downloadable, and sold in paper for about $135 less than other casebooks.  (And yes, it will include  discussions  of whether one should ever use the term “intellectual property.” )  The book is full of practice examples..  This is one from Chapter One, on the theories behind intellectual property: “What if you came up with the idea of Fantasy Football?”  No legal knowledge necessary.  Why don’t you test your argumentative abilities…?

  • Free/Low Cost Intellectual Property Statutory Supplement

    Today, we are proud to announce the publication of our 2014 Intellectual Property  Statutory Supplement as a freely downloadable Open Course Book. Statutes Cover  It offers the full text of the Federal Trademark, Copyright and Patent statutes (including edits detailing the changes made by the America Invents Act.)  It also has a number of important international treaties and a  chart which compares the various types of Federal intellectual property rights — their constitutional basis, subject matter, length, exceptions and so on.You can see it here in print, or download it for free, here

  • Persnickety Snit

    This is the fourth in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  It is about lawyers and language. 

  • Macaulay on Copyright

    Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read.  In fact, the phrase “cite unseen” gains a new meaning.  That is a shame, because it is masterful.  (And funny.) One fascinating moment?  When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

    At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…  Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

    The legal change he thought would do that?  Extending copyright to the absurd length of life plus 50 years.  (It is now life plus 70).  Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

  • Mark Twain on the Need for Perpetual Copyright

    This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

    In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act.  Delicious.

  • Victor Hugo: Guardian of the Public Domain

    Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law.  (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course.  Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5  the price of most statutory supplements — also freely downloadable.)  More about that later.  While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers.  Today I was revisiting Victor Hugo.  Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

  • “We Need To Start Seeing Other Futures..”

    Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

  • Discussion: “The Foolish War Against Song-Lyric Websites”

    Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as Rapgenius.com.

  • The Top Ten List of a Conference Planner

    Academics (and others) arrange conferences.  Perfectly normal people are invited to those conferences to speak.  Most of them are just as charming as can be… but then there are the special ones.  This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere.  Hold your heads up high.  After this, purgatory should be a snap.

  • (EM)I Has A Dream

    EM(I) Has A DreamAugust 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

  • The Prosecution of Aaron: A Response to Orin Kerr

    Aaron Swartz committed suicide last week.  He was 26, a genius and my friend.  Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

  • The Hargreaves Review

    An Intellectual Property System for the Internet Age

    James Boyle

    In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright..  Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.”   Today the Review will be published. Its conclusion?  “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?  The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review.   (Full disclosure: I was on the Review’s panel of expert advisors.)

  • Keith Aoki — A Remembrance Book

    A slideshow and downloadable book remembering Keith in words and pictures.  You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon.  We tried to make it as beautiful as something Keith would create.  We failed. But we came close; have a look at how striking it is… all because of Keith’s art.

  • Now THAT is how you teach a class

  • RIP, Keith Aoki

    Our friend, colleague, co-author and brilliant artist and scholar Keith Aoki died yesterday in his house in Sacramento.  He was 55 years old.

  • The Future of the Constitution?

    The Brookings Institution has organized a volume on “The Future of the Constitution” edited by Jeff Rosen and Benjamin Wittes and featuring articles by me, Larry Lessig, Jonathan Zittrain, Tim Wu and many others.  How will our constitutional tradition deal with the challenges posed by new technologies?  The topics range from possible personhood claims by artificial intelligences, to the future of free speech and the Net, to neuroscience and criminal punishment.  The essays are freely available online. Details after the jump.

  • Presumed Guilty

    My new FT column is up. Shakespeare, copyright, Scott Turow and a shadowy group of law professors..  What could be more fun? Ungated version after the jump. 

  • Waiting for ‘Waiting for Godot’

    What Could Have Been Entering the Public Domain on January 1, 2011?
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  • Fantasy & Reality in Intellectual Property Policy

    My new column for the FT is up.  It deals with the incredible weakness of the data on which our intellectual property policy proceeds.   Ungated version after the jump

  • CBC Radio Interview on the History of Copyright

    Nora Young and the folk at CBC’s Spark have done it again, with a really nicely presented episode that includes a feature on copyright.  Nora interviews me about the history of copyright…  in 5 minutes.

  • EFF Pioneer Award Video

    Is here. I appear at 3:25 or so.

  • EFF Party in San Francisco!

    On November 8th, Cory Doctorow, John Perry Barlow, and numerous other digital luminaries will be gathering at the Minna Gallery in San Francisco for the EFF’s Pioneer Awards Party.  Cory is going to be the MC and — when not featured on XKCD blogging from a ballon in a red cape and goggles…

  • Net Neutrality Debate

    Great hour long radio show on net neutrality from NPR’s The State of Things.  Me, the inimitable Paul Jones of iBiblio, and Ryan Radia of the Competitive Enterprise Institute.  Frank Stasio is just a great interviewer.  Listen to it here

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