One key point of Siegel is that comparative histories tend to be “international” and not “transnational,” and that this is a core problem. Instead of escaping the “boundaries of nationalist historiography” (to quote Siegel quoting Ian Tyrrell, 65), traditional comparative approaches posit two (or more) distinct units (nations) that the historian then contrasts. This tends to ignore themes, narratives, concepts, etc. which act “unconfined by national borders” (65). Such studies can “shape or even create its own data” (65).

Siegel’s points are quite valid, I think, especially for certain kinds of history, especially histories that target people or groups who cross artificial national boundaries (immigrants, for example). I am struggling, though, to integrate her critique into my work, which does not quite imagine national distinctions, but rather exists because of these national distinctions. However artificial it may be, law is bound by national boundaries, and investigating changes in law necessitates a recognition of nations.

More fruitful for me, though, is to consider how ideas, concepts, and notions within the law may escape, cross, or transcend the legal boundaries into which they are inscribed. Thus, if I am investigating a concept like the “expectation of privacy,” I should consider the transnational character of this sense, and not simple say that, for example, the French have a different sense of it without examining what that means and what the cross-national connections may be. However, I do believe that comparing and contrasting the French and American legal structures is valid and fruitful — these boundaries and domains exist independent of my analysis. I am not creating them (even if, as I said, they may be artificial). But even as I do so, I should be careful not to attribute the differences strictly to some kind of national character, or to assume they the grew that way independent of influences from beyond the nation-state. But doing that, I think, is simply doing effective history; failing to take into account supra-national influences does a disservice to the history, quite apart from Siegel’s critique.

Siegel proposes that comparative methods considered as “subjects” or historical study instead of “methods.” I think perhaps this proposal is useful in a field where comparative approaches have reigned for years (race in the U.S. vs. Brazil, for example), but its usefulness as a methodology remains vital in areas where it has been less used. Legal scholars have tended to remain parochial in their focus, and I think legal comparative approaches have yet to make inroads to such an extend that it is time to turn away from them.

Related articles

• Going beyond national legal histories (inpropriapersona.com)
• John Palfrey: The Path of Legal Information (ethanzuckerman.com)

So far, my legal research tends to focus on a national narrative, and is an attempt to capture a sense of the national consciousness (“expectations of privacy,” for example) of various times. Ideally, though, while I still intend to pretend I can capture some sense of this national sense (if only for appearances sake), I would like to narrow into just a few of stories within the “plenitude of narratives,” and give the stories of the people involved in the actual cases that helped set the national legal landscape (which will serve as stand-in, albeit a distorted one, for the national consciousness). And although American law is framed as a national standard, I nonetheless am aware that “we are part of abroad.”

I mean this in numerous senses. First, the impact of law does not end at a political border, even if its technical jurisdiction might. Other countries receive the influence of American lawmaking and, in turn (and despite itself, in some cases), American law is influenced by foreign law. This influence could be relatively direct (judges borrowing logic and decisions from abroad, an especially common occurrence in early American law, when English decisions were still often looked to regularly). It could also be more indirect: plaintiffs or defendants could be immigrants, technologies could have been developed elsewhere, or “foreign agents” (i.e., spies!) may be involved. Regardless of the reason, American law is never entirely American — although here as much as anywhere this fiction is maintained, both within the legal community and, as Bender suggests, in American historiography. As he points out, though, its critical to rethink this “bifurcation” between the “international” and the United States, for without that undoing, “one has only the most distorted notion of the national history of the United States and very little historical foundation for understanding the contemporary relationship of the Unites States to transnational and global developments” (see Bender again, on page 6).

Image via Wikipedia

Saying this, though, is often easier that doing it, especially when looking at legal history — American jurists are often (with some exceptions, especially in regards to early English law) careful to excise outside influences or matters from their written decisions, and often decisions are, in effect, “sanitized” versions of the case or controversy. Focusing on the “micro-history” of a case and on the individual players may be one method of access — at the very least because so many Americans are immigrants — or somehow otherwise distinct from the unitary fiction of “American.” (Kelly’s point on p. 125 about the citizenship status of African Americans pre-14th Amendment speaks clearly to this in terms of one group within the United States).

Another approach that may be fruitful would be to compare and contrast at least one other nation with a different legal tradition to the United States to see how law was developed and applied in that context, and to use that to expand beyond a purely nationalistic discourse. A variation on this approach would be to look at England or Canada, nations with very similar legal systems to the Unites States, and see how they dealt with similar issues.

In “Islam and Science,” an article written for the Oxford Handbook of Religion and Science, Nasr attempts to give a broad overview of the relationship of Islam to modern science and technology.

First, he criticizes the approach of viewing Western science as a continuation of Islamic science, and therefore accepting it uncritically as fitting in well with Islamic thought. Nasr points out, however, that this perspective ignores the “agnostic science of nature” in the Western tradition, along with the “shift of paradigm” during the European Scientific Revolution that sharply distinguishes modern Western science from Islamic science.

Second, in a related manner, he criticizes the acceptance of Western science as “value-free,” as opposed to contemporary perspectives of science  —  even in the West  —  of science as based “on a particular value system and a specific world-view.” The implicit value system of Western science, he suggests, needs instead to be criticized “from the Islamic point of view.”

Importantly for Nasr is the question of the values and especially the ethics of science. He believes that “knowledge and its implications cannot evade ethical implications.” Modern science attempts to relegate alternative claims to knowledge, especially ethical claims and most especially knowledge based on religion, to “poetry, myth, or, even worse, superstition.”

He suggests that Islam needs to realize that modern science is but “a science of nature,” not the science of nature. He posits a “positive Islamic critique of modern science” that “maintain[s] the traditional Islamic intellectual space … to which Islamic ethics corresponds, withing denying the legitimacy of modern sciences within their own confines.”

Most importantly for Nasr, Muslims should not look to science to confirm metaphysical beliefs, but rather leave to science claims only about the natural world, not the supernatural one. He asks Muslims to be wary of “the prevalent view … from which God is simply absent, no matter how many modern scientists believe individually in him.” Modern Islamic scholars, he argues, unlike their traditional counterparts in the past, are “particularly bereft of responses” to the question of Transcendent Cause and the role of God. For him, older Islamic though had better answers to such questions, and this is why so many scholars are more interested in older relations between Islam and science than in contemporary ones.

So what should be done? First, he wants Muslims to stop seeing themselves as inferior to Western science and technology, and to instead approach it as at least an equal. Again, he especially suggests that Islam and its ethics has a powerful rejoinder to Western science, which while it may put a man on the Moon still cannot stop teenagers from killing each other.

Second, he recommends there be an in-depth study of traditional Islamic sources, from the Qur’an to the traditional works on the sciences and philosophy. The goal, he argues, is to create an “Islamic world-view and especially [an] Islamic concept of nature and the sciences of nature.” He wants scholars to do this within the framework of Islamic tradition, not through simple readings of decontextualized Qur’anic verses. Third, he suggests that more Muslim students should study “pure” sciences and not technology. He believes the Muslim world already has sufficient numbers of engineers, but that what it really needs are more scientists who can see beyond immediate utility.

Fundamentally, Nasr believes that “[o]nly a science that issues from the source of all knowledge, from the Knower … and cultivated in an intellectual universe in which the spiritual and the ethical are not mere subjectivisms but fundamental features … can save humanity.” He suggests that Islamic science has the potential to not only create a “veritable Islamic science” that would help the Muslim world, but also to create a science for “those all over the globe who seek a science of nature and a technology which could help men and women to live at peace with themselves, with the natural environment, and above all, with that Divine Reality Who is the ontological source of both man and the cosmos.”

A few questions to close up this synopsis of Nasr’s article:

• Which Islam and whose Islamic ethics does Nasr mean? (It’s not like Islam is one thing to all people.) Who decides?
• Does the distinction between “pure” science and technology hold up? Is it a useful distinction?
• Is there a whiff in Nasr’s writing of the “inferiority complex” he wants Islamic science to rid itself of?
• There is a certain resemblance in Nasr’s article to positions of some evangelical Christians  —  he is, for example, critical of Darwinian evolution (an “hypothesis parading as scientific fact”) and aligns himself with the Pope in regards to “protecting the unborn”  —  is this resemblance more than simply on the surface?

These are questions I may pursue further in future reading and research, but if anyone has any thoughts, please share them.

Related articles by Zemanta

• Sultan Sooud Al-Qassemi: “1001 Inventions”: How Islamic Scientific History Can Combat Today’s Extremists (huffingtonpost.com)

An attorney for Google slammed a controversial intellectual property treaty on Friday, saying it has “metastasized” from a proposal to address border security and counterfeit goods to an international legal framework sweeping in copyright and the Internet.

The Anti-Counterfeiting Trade Agreement, or ACTA, is “something that has grown in the shadows, Gollum-like,” without public scrutiny, Daphne Keller, a senior policy counsel in Mountain View, Calif., said at a conference at Stanford University.

via Google attorney slams ACTA copyright treaty | Politics and Law – CNET News.

I have to agree this Google attorney. I don’t like ACTA much, either, and don’t think it’s much of an improvement on the current, uncoordinated approach to copyright.

Related articles by Zemanta

• Google Attorney Slams ACTA Copyright Treaty (yro.slashdot.org)
• Preliminary Analysis of the Officially Released ACTA Text (eff.org)

I’m generally in favor of holding companies liable for their actions  —  after all, if we treat corporations as “persons” under the law, then they should have responsibilities as well as protections and benefits. But I’m not sure about holding executives criminally liable  —  perhaps in the case of knowing pollution or conspiracy to cover up product dangers  —  but not, I think, for actions they are not directly responsible for, as in this case from Italy:

Along with three other Google executives, Mr. Fleischer now faces criminal charges of defamation and privacy violations in a case that could have far-reaching implications for Google — and, the company argues, a potentially chilling effect on other Internet companies operating in Italy and elsewhere in Europe.

via Google Faces a Different World in Italy – NYTimes.com.

Alternatively, perhaps holding senior executives personally liable (and potentially facing jail time, although it would be suspended under Italian law in this case) would force companies to better comply with the law? (I still think it goes too far.)

The internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama’s administration refused to disclose due to “national security” concerns, has leaked. It’s bad.

Secret copyright treaty leaks. Its bad. Very bad. – Boing Boing.

Michael Geist has more:

Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty).

The ACTA Internet Chapter: Putting the Pieces Together.

He adds that the draft text is modeled on the U.S.-South Korea free trade agreement, and focuses on five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.
5. Rights Management provisions, also modeled on U.S. free trade treaty language.

For me, one key problem area is that #4 in Geist’s list apparently eliminates the fair use/fair dealing exception to anti-circumvention provisions (reverse engineering, computer testing, privacy, etc.). Fair use is absolutely key to a proper balance between allowing reuse that encourages new innovation and rewarding existing innovation through temporary monopolies.

Geist points out, too, that the treaty does not stop there. It contains additional provisions “that include statutory damages, search and seizure powers for border guards, anti-camcording rules, and [requirements for] mandatory disclosure of personal information.”

This is not a direction that I support, because I think it actually limits innovation and development, rather than supporting them.

According to Rob Salkowitz of Internet Evolution, in the so-called Hamburg Declaration issued July 9, publishers argued that services like Google are “using the work of authors, publishers and broadcasters without paying for it”:

Numerous providers are using the work of authors, publishers and broadcasters without paying for it. Over the long term, this threatens the production of high-quality content and the existence of independent journalism. . . .

Universal access to our services should be available, but going forward we no longer wish to be forced to give away property without having granted permission.

We therefore welcome the growing resolve of federal and state governments all over the world to continue to support the protection of the rights of authors, publishers and broadcasters on the Internet.

Salkowitz points to Google’s simple response:

“We agree,” wrote Cohen on Google’s European Public Policy Blog on July 15. “If a webmaster wants to stop us from crawling a specific page, he or she can do so by adding '<meta name="googlebot" content="noindex">' to the page. In short, if you don’t want to show up in Google search results, it doesn’t require more than one or two lines of code.”

He points out that, basically, if newspapers want to go back to the “old way” for themselves, they can. No need to change the law to prevent Google from indexing their content. But of course, this isn’t really want publishers want.

In truth, publishers get value from Google – value that is necessary for them to compete and market themselves today. So they need Google or services like them. This makes their attacks on Google a distraction from the real issues for them, which really involves a business model that can’t compete well in today’s marketplace.

There are a number of choices, two of which seem most obvious: change the law or change the model. Unsurprisingly, publishers want to change the law.

Related articles by Zemanta

• Hamburg Declaration: Google Embarrasses Whiny Euro Publishers (thewavingcat.com)
• Economists: Abolish Copyright & Patents to Save the Economy (inpropriapersona.com)

The  (IFOSS L. Rev.) is a collaborative legal publication aiming to increase knowledge and understanding among lawyers about Free and Open Source Software issues. Topics covered include copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes.

via the International Free and Open Source Software Law Review.

Cearta.ie adds some more details:

It is a peer reviewed biannual journal for high-level analysis and debate about Free and Open Source Software legal issues, and it will receive financial and administrative support from the NLNet Foundation, which supports organizations and people that contribute to an open information society. Edited by Andrew Katz and Amanda Brock, its focus includes copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes. Unsurprisingly, it operates a strong Open Access Policy, providing immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.

via cearta.ie » New Open Source Law Journal.

So what’s in the first edition? Here’s the (very interesting) table of contents:

Foreword and statement of purpose: an introduction to IFOSS L. Rev., Iain G Mitchell QC

Articles

• The Fiduciary Licence Agreement: Appointing legal guardians for Free Software Projects, Ywein Van den Brande
• Collaborative Approach: Peer-to-Patent and the Open Source Movement, Christopher Wong, Jason Kreps
• Bad Facts Make Good Law: The Jacobsen Case and Open Source, Lawrence Rosen
• Introducing The Risk Grid, Shane Martin Coughlan, Andrew Katz

Case Law Reports

• Jacobsen v Katzer and Kamind Associates – an English legal perspective, Mark Henley

Book reviews

• ‘Open Source Technology and Policy’ by Fadi P. Deek and James A.M. McHugh, Andrew Katz

Tech Watch

• Tech Watch, Adriaan de Groot

Platform

• Collaboration Among Counsel Celebrating the Formation of a Community of Lawyers for the Advancement of Understanding of Free and Open Source Licensing and Business Models, Karen Faulds Copenhaver

This looks like a journal to watch going forward.

Related articles

• International Free and Open Source Software Law Review Launched (computerworlduk.com)
• New Free/Open Source Software law journal launches (boingboing.net)

Should so-called “shield laws,” intended to provide protection for journalists from being forced to reveal their confidential sources, apply to bloggers? The current answer seems to be “no,” although the question must be asked on a jurisdiction-by-jurisdiction basis.

In the United States, there is no federal shield law, for journalists or bloggers. There are, however, many shield laws at the state level. (For more on this, see A Guide to Journalist Shield Laws from Poynter Online, an excellent compendium of such laws.) Some states have already recognized the important of blogging to modern journalism: New York is currently debating whether to pass a bill to explicitly extend protection to bloggers.

In Australia, such laws are currently being debated for adoption at the federal level, according to Peter Timmons, a consultant working on freedom of information and privacy protection issues. It’s unclear to me whether the proposed Australian law would cover bloggers, however.

Cearta.ie, an Irish legal blog, has several good articles discussing “journalists’ source privilege” from an international perspective. I recommend you read through it to get a better idea of the global status of the issues, especially in Europe.

From a “free press” perspective, the privilege is incredibly valuable. On other hand, like any evidentiary privilege rule (spousal testimony, for example) it can be very frustrating for law enforcement in certain situations. Overall, I think it would be a net good, if written sensibly, and it would also be a net good to extend the privilege to bloggers who act like journalists – but again, with some specific language defining what that means.

The Uneasy Case for Intellectual Property Rights in Traditional Knowledge by Stephen Munzer, Kal Raustiala:

Should traditional knowledge—the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes—receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.

I discovered this useful and interesting discussion of the relationship between intellectual property and traditional knowledge thanks to a pointer from Lawrence Solum at the Legal Theory Blog. As he notes there, this has often been a quite confusing area of the law, and this article does a good job of going through the issues in an understandable and useful way. Recommended reading.

Related articles by Zemanta

• SSRN Papers Dealing with IP, Development and Innovation (inpropriapersona.com)
• Information as Property from the Scholarly Kitchen (inpropriapersona.com)
• Against Intellectual Monopoly (inpropriapersona.com)