A Tree Falls in the Woods, Lawyer Style

At lunch, I attended a talk at Harvard’s CRCS, given by a senior partner from a Boston law firm. The talk was about the use of copyright and trade secrets to protect “intellectual property.” I found it fantastically enlightening… not because there was any interesting copyright lesson, but because I gained further insight into the thinking process of certain lawyers.

So here’s the crux of it: if a person commits a crime but no court is there to judge him, is it still wrong? Or, phrased the other way, if a person does something harmless, but a court sentences him, is it still right?

If you’ve ever argued that the law is flawed in some way, you may have encountered a special kind of lawyer. The kind that says “but that’s the law.” They generally don’t see the point of pursuing the conversation. It’s as if determining what the law says is the only possible end-goal.

So, over lunch, Simson Garfinkel told the speaker:

“You described Jon Johansen (DVD Jon) as a computer criminal, when all he wanted to do was play his DVD on Linux.”

and the speaker responded:

“no, if you remember, I mentioned that Jon was acquitted in all four cases against him.”

You have to just sit back and admire the total disconnect. Simson was arguing about Jon Johansen’s intent and whether his act harmed anyone: after all, what does the entertainment company care whether we play their DVDs on Mac, Windows, or Linux? Meanwhile, the lawyer was thinking “well, what did the courts say?” At no point did he consider that the law could be wrong, and, in fact, he clearly stated that, as a lawyer, it’s not his job to make such a judgment call.

Why is this important? Well, it seems to me that writing laws should be a bit like writing code. You design your code, just like you design your law, with a certain intent. In the case of code, the intent is to perform a certain functionality. In the case of law, it’s to regulate some kind of behavior. But intent is one thing, and real-world consequences is another. Human beings are very bad at designing things from scratch: they generally make mistakes and have to iterate. The best designed code in the world may actually suck once it’s deployed. Similarly, a law designed to catch criminals may end up putting innocent folks in jail.

Now, if you use a program and it sucks, it would be quite enraging to hear the coder conclude the discussion with “well, that’s the way we designed it.” Clearly, the design was wrong. Clearly, the design needs to be fixed. Clearly, there needs to be a feedback process, so that deployment lessons can inform the next design phase.

Why shouldn’t we view the law in the same way? If a court sentences you, you might still be in the right. If a court sets you free, you might still be wrong. We can’t stop having this discussion, just because it’s the law.