JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(15) Law

law

The Future of the Law

Protecting software

 Complex legal (and, in the United States, constitutional) issues surround the question of patenting software. A patent is the grant of an exclusive right to exploit or develop an invention. With the introduction of various forms of computer programs and other types of software, the law will continue to grapple with challenging, and often perplexing, problems as to whether there is sufficient novelty in the software to justify patentability. In general, the law takes the view that computer programs are not patentable unless they constitute a genuine invention with industrial application. There is, on the other hand, a greater readiness to provide copyright protection to software, web pages, and even email messages since their owners have, as the name implies, the right to copy the material and, by extension, the right to prevent others from doing so. Software piracy has grown into a significant menace to major software producers such as Microsoft, but the issue is extremely controversial since, though it is clear that certain countries (China, Vietnam) engage in the wholesale copying of software, it is argued that the huge losses (up to 12 billion US dollars) that companies such as Microsoft claim they suffer is illusory because many of those who purchase pirated software are unable to afford legitimate versions. Moreover, it is contended by opponents of copyright for computer programs such as the Free Software Foundation that ‘‘free software” is a matter of liberty, not price. To understand the concept, you should think of “free” as in “free speech,” not as in “free beer.” Free software is a matter of the users’ freedom to run, copy, distribute, study, change and improve the software.’

But, as mentioned above, some wrongs have simply undergone a digital rebirth. For example, the tort of defamation has found a congenial new habitat in cyberspace. The law in most jurisdictions protects the reputation of persons through the tort of defamation or its equivalent. It will be recalled that while there are variations within common law jurisdictions, the law generally imposes liability where the defendant intentionally or negligently publishes a false, unprivileged statement of fact that harms the plaintiff’s reputation. Civil law systems, instead of recognizing a separate head tort of defamation protect reputation under the wing of rights of the personality. In cyberspace, however, national borders tend to disintegrate, and such distinctions lose much of their importance.

The advent of email, chat rooms, bulletin boards, newsgroups, and blogs provide fertile ground for defamatory statements online. Since the law normally requires publication to only one person other than the victim, an email message or posting on a newsgroup will suffi ce to found liability. But it is not merely the author of the libel who may be liable.

In an important, if somewhat unclear, decision, a New York court held an Internet service provider, Prodigy, responsible for defamatory statements that appeared on its bulletin boards. The basis of the judgment was that Prodigy was a ‘publisher’ - principally because it had exercised editorial control over the content of its bulletin boards. In pursuit of this objective, it had posted ‘content guidelines’ to its users, and it employed a software screening program to screen postings for offensive language. An earlier New York decision had decided that another service provider, CompuServe, was not liable for defamatory statements that appeared on one of its online forums. The judgment was based on the fact that the defendants were merely distributors rather than actual publishers. It was the functional equivalent of a lending library. Under these circumstances, free speech should prevail. An English decision that settled before a full trial was held rejected the ISP’s argument that it was merely an innocent purveyor of information.

 

Tomorrow’s courts and lawyers

 

It is not merely the law but its institutions and practitioners whose future will be profoundly affected by the developments in information technology. It is improbable that judges will be replaced by computers (though this prospect is not without its supporters), but the administration of justice in many advanced societies has already undergone signifi cant changes and will continue to do so. The courts of several jurisdictions already benefit from access to legal materials that previously would have consumed long hours of research. Virtual law libraries with sophisticated search facilities enable judges, lawyers, legal academics, and ordinary members of society to obtain rapid Access to statutes, cases, and other sources of law. This will be especially helpful to less affl uent countries with limited legal resources.

Increasingly, judgments of the courts are posted on the Internet almost immediately after they have been handed down. There are already several excellent online legal databases such as www.findlaw.com  and www.austlii.com.

The electronic transcription of court proceedings, the management of cases, and standardization of electronic documents will continue to enhance the judicial process, streamlining and reducing notorious delays. The sight of a judge laboriously taking written notes is already disappearing, but voice-recognition technology will obviate the need for note-taking of any kind. Both evidence and legal sources can effortlessly be retrieved electronically. A more radical development might be the establishment of virtual courts in which the parties conduct proceedings without the need for corporeal proximity, thereby decreasing cost and delay.

Many of these advances (and there will be others) are likely to generate signifi cant advantages for the ordinary individual seeking access to justice. Once legal information and services become more widely available, it ought to follow that the grandiose ambitions of the law and legal system will be more effectively accomplished. The role of lawyers and the administration of justice will, in the words of Richard Susskind: no longer be dominated by print and paper in tomorrow’s legal paradigm. Instead, legal systems of the information society will evolve rapidly under the considerable infl uence of ever more powerful information technologies. We will no longer suffer from the excessive quantity and complexity of legal material. There will be mechanisms in place to give everyone fair warning of the existence of new law and changes in old. Legal risks will be managed in advance of problems occurring and so dispute pre-emption rather than dispute resolution will be the order of the day. Our law will thus become far more fully integrated with our domestic, social and business lives. Who would not welcome this sanguine prophecy?

 

The death of copyright?

 

The anarchist revolution in music is different from the one in software tout court, but here too – as any teenager with na MP3 collection of self-released music from unsigned artists can tell you – theory has been killed off by the facts. Whether you are Mick Jagger, or a great national artist from the third world looking for a global audience, or a garret-dweller reinventing music, the recording industry will soon have nothing to offer you that you can’t get better for free. And music doesn’t sound worse when distributed for free, pay what you want directly to the artist, and don’t pay anything if you don’t want to. Give it to your friends; they might like it. Eben Moglen, ‘Anarchism Triumphant: Free Software and the Death of Copyright’, in Eli Lederman and Ron Shapira (eds), Law, Information and Information Technology (The Hague: Kluwer Law International, Law and Electronic Commerce Series, 2001), pp. 145, 170–1.

 

The role of law in a precarious world

 

As it unfolds, the 21st century yields few reasons to be cheerful. Our world continues to be blighted by war, genocide, poverty, disease, corruption, bigotry, and greed. More than one-sixth of its inhabitants - over a billion people – live on less than $1 a day. Over 800 million go to bed hungry every night, representing 14% of the world’s population. The United Nations estimates that hunger claims the lives of about 25,000 people every day. The relationship between poverty and disease is unambiguous. In respect of HIV/AIDS, for example, 95% of cases occur in developing countries. Two-thirds of the 40 million people infected with HIV live in sub-Saharan Africa. Amid these gloomy statistics, occasional shafts of light appear to justify optimism. There has been some progress in diminishing at least some of the inequality and injustice that afflict individuals and groups in many parts of the world. And this has been, in no small measure, an important achievement of the law. It is easy, and always fashionable, to disparage the law, and especially lawyers, for neglecting - or even aggravating - the world’s misery.

Yet such cynicism is increasingly unfounded in the light of the progress, albeit lumbering, in the legal recognition and protection of human rights.

The adoption by the United Nations, in the grim shadow of the Holocaust, of the Universal Declaration of Human Rights in 1948, and the International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights in 1976, demonstrates, even to the most sceptical observer, a commitment by the international community to the universal conception and protection of human rights. As mentioned above, this so-called International Bill of Rights, with its inevitably protean and slightly kaleidoscopic ideological character, reflects an extraordinary measure of cross-cultural consensus among nations.

The idea of human rights has passed through three generations. The first generation consisted of mostly ‘negative’ civil and political rights. A right is negative in the sense that it entails a right not to be interfered with in certain prohibited ways, for example my right to speak freely. A right is positive, on the other hand, when it expresses a claim to something such as education or health or legal representation. These second-generation rights crowd under the umbrella of economic, social, and cultural rights. The third generation of rights comprises primarily collective rights which are foreshadowed in Article 28 of the Universal Declaration which declares that ‘everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized’. These ‘solidarity’ rights include the right to social and economic development and to participate in and benefit from the resources of the earth and space, scientific and technical information (which are especially important to the Third World), the right to a healthy environment, peace, and humanitarian disaster relief.

It is sometimes contended that unwarranted primacy is given to positive rights at the expense of negative rights. The latter, it is argued, are the ‘genuine’ human rights, since without food, water, and shelter, the former are a luxury. The reality, however, is that both sets of rights are equally important. Democratic governments that respect free speech are more likely to address the needs of the poor. And, on the other hand, in societies where economic and social rights are protected, democracy has an enhanced prospect of success since people are not preoccupied with concerns about their next meal.

Misgivings surrounding the concept of human rights are not new. Marxists, for example, have long rejected the very idea that the law can be a neutral body of rules which guarantees liberty and legality. They spurn, in short, the ideal of the rule of law. Others of a communitarian disposition dislike the individualism implicit in human rights. Qualms are expressed by those who perceive the expanding recognition of human rights as undermining the ‘war on terror’. Still others find many of the rights expressed in declarations to be incoherent or cast in such vague and general terms, and weakened by inevitable exclusions and exemptions, that often they appear to take away with one hand what they give with the other. In impoverished countries, modern conceptions of human rights are at times regarded with suspicion as Western or Eurocentric, failing to address the problems of starvation, poverty, and suffering that afflict many of their people. Indeed, it is asserted that they merely shore up the prevailing distribution of wealth and power.

These, and many other, doubts about the development of human rights are not to be lightly dismissed. Nor should we be under any illusion that international, or indeed domestic, declarations or the agencies that exist to implement them are adequate. They provide the contours of a strategy for improved protection. The role of the numerous non-governmental organizations (NGOs), independent human rights commissions, pressure groups, and courageous individuals are of paramount importance. The growing body of law on the subject does promote a degree of optimism about the future well-being of humanity. In view of our planet’s ecological despoliation and even potential nuclear immolation, it is necessary, if not essential, to conceive of rights as a weapon by which to safeguard the interests of all living things against harm, and to promote the circumstances under which they are able to flourish.

 

Law and the state

 

Modern law’s strength is as a technical instrument of government, and as a medium of power. Legal ideas, as a framework of understanding of the character of social life, are moulded in numerous situations and processes of social interaction – in confrontations in the courtroom, negotiations in lawyers’ offices, the regulation or containment of disputes in neighbourhood settings, the bargaining practices of regulatory agencies, the elaboration of police culture, and so on. Nevertheless, the character of law as institutionalized doctrine is most strongly shaped by coercive state power which stands in the shadows or sometimes clearly in view in all those settings where state law is invoked or impossible to avoid. Roger Cotterrell, The Sociology of Law: An Introduction, 2nd edn (OUP, 1992), p. 312

 

 

A fundamental shift in our social and economic systems and structures may be the only way in which to secure a sustainable future for our world and its inhabitants. The universal recognition of human rights seems to be an indispensable element in this process. The compelling rhetoric of the Marxist historian E. P. Thompson in defence of the rule of law rings equally true in respect of the universality of human rights: To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger. This was written of the last century. These dangers have unquestionably intensified in this troubled century. The future will doubtless challenge the capacity of the law not only to control domestic threats to security, but also to negotiate a rational approach to the menace of international terror. Public international law and the United Nations Charter will continue to offer the optimal touchstone by which to determine what constitutes tolerable conduct in respect of both war and peace. ‘Humanitarian intervention’ has in recent years become a significant feature of the international scene. Whether it be ethnic cleansing (Bosnia, Rwanda, Kosovo) or collapse of governments (Somalia and several sub-Saharan states), there is increasing support for action to prevent or avoid the horrors of such gruesome flashpoints. Moreover, in a world in which the law must confront an insidious enemy within, the very foundations of international law are severely tested. This war is waged not between states, but by a clandestine international terrorist network with pernicious ambitions. It is easy, especially for lawyers, to exaggerate the significance of the law. Yet history teaches that the law is an essential force in facilitating human progress. This is no small achievement. Without law, as Thomas Hobbes famously declared, there is no place for Industry, because the fruit thereof is uncertain; and consequently no Culture of the Earth, no Navigation, nor use of the commodities that may be imported by sea; no commodious Building, no instruments of moving and removing such things as require much force; no Knowledge of the face of the Earth, no account of Time, no Arts, no Letters, no Society; and which is worst of all, continual fear and danger of violent death; and the life of people, solitary, poor, nasty, brutish, and short. If we are to survive the calamities that await us, if civilized values and justice are to prevail and endure, law is surely indispensable.

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