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Ivan Krstic: Steam, boatmen and cyberlaw

1.

You’ve no doubt heard of Gottfried Wilhelm Leibniz, the 17th century German philosopher and mathematician who invented calculus, and whose mathematical notation we still use today. But you probably haven’t heard of his friend and contemporary Denis Papin, the French physicist who invented the steam digester, a crude predecessor to the steam engine. In 1705, at year’s end, Papin wrote to Leibniz to tell him of his plan: he would use steam to run a boat. And true to his word, a year and a half later, he had built the world’s first steamboat, a paddled side-wheeler, in the city of Kassel, Germany.

His plan was to sail from Kassel, which lies on the river Fulda, into the Weser river via the city of Münden, then to Bremen, from where the steamboat engine could be transshipped via the North Sea and finally to London, for a triumphant demonstration of his invention on the Thames. The trouble was, the boatmen’s guild in Münden had a monopoly on moving ships from the Fulda into the Weser — a monopoly enacted to protect their business interests with regard to freight ships. Papin’s ship carried no freight, of course. It was a technological proof of concept. But the distinction, alas, proved irrelevant.

When Papin sailed his steamer into Münden, the boatmen’s guild asserted their privileges, and not only barred the boat from entering the Weser, but demanded that the local magistrates impound the ship and turn it over to the guild. This did not come to pass: in the space of hours, the boatmen realized the ship’s steam engine spelled ruin to their entire business model, and decided to put a quick end to the matter. They pulled the engine out of the boat and smashed it to pieces. Some accounts claim Papin barely made it out of the incident alive; what’s known with some certainty is that he never recovered from the loss financially, and died a few years later in London, poor, unknown, and buried in an unmarked grave.

2.

Innovation and technology have been fueling social change for as long as we can remember, and they’ve had their detractors for just as long. But seldom is resistance to change as strong as when money is at stake: obsolete business models do not go quietly into that good night. They go to war.

I know a few people who work on technology just for technology’s sake. Yet the most passionate and competent hackers I know are attracted to computing because they are builders and tinkerers, people who understand technology as a powerful medium for driving social change. Change in how we learn, how we create, how we communicate — change that, if tended to carefully, can ultimately be for better rather than for worse. But here’s the thing about change: someone always gets left behind. And they don’t usually take to it kindly.

Three hundred years ago, when a business model found itself threatened by change, its keepers destroyed a steamboat. Today, a dying business model hires a few hundred lawyers and comes up with a terrible catchphrase.

3.

In a charming historical coincidence, the Statute of Anne, the first ever serious piece of copyright law, was enacted only two years after Papin’s misadventure in Münden. This bears note because our modern computing revolution made it essentially free to copy bits, thus pegging the marginal cost of digital content at zero. Unsurprisingly, how stuff gets copied became one of the most prominent hot-button issues pitting technological innovation against existing business models, and ever since, an army of lawyers have been dragging copyright through the courts six ways to Sunday.

The further technology and innovation get in their efforts to create change, the more people they piss off, and the more existing business models they upset. And much as it warms my heart to think of former RIAA head Hilary Rosen breaking into a nautical museum and taking a crowbar to the engine of some unsuspecting paddlewheeler, in actuality she took out her frustration with Napster in court, seeing the DMCA passed, with a victory in MGM v. Grokster, and getting a handful of other legal acts and treaties passed strengthening legal protections favoring the music industry’s established business models.

Copyright is far from the only high-profile battle being fought, however. The FCC, for instance, has been deliberating for six years whether to allow unlicensed public use of the unused TV broadcast spectrum, with the National Association of Broadcasters rallying all their legal and lobbyist might behind making sure such liberty is not offered to the public. (That story has a happy ending: a month ago, FCC gave the go-ahead.)

There are countless examples everywhere you look.

4.

There’s a wider point in all of this: if you’re a technologist that cares about the intersection of technology, innovation, and social change, you can no longer afford to focus on the technology alone. Innovation and the status quo each have armies, but the battlefield has become increasingly legal. The bodies are buried in the court of law.

I’m not a lawyer. I don’t want to be. But keeping up with major developments and leading thinkers in cyberlaw is something I now regard as a necessity, and there are three key people I follow: Larry Lessig (blog), Jonathan Zittrain (blog), and Yochai Benkler. They are, without a doubt, among the very finest minds studying the collision of law and technology today.

Technology is my passion, and this essay is ultimately a plea: too many of my friends, world-class hackers and tinkerers, do not understand the degree to which the legal arena impacts our field, the innovation within it, and the social change stemming from it. I’ve been for some time on a mission to convince them to pay attention, and I’m telling the same to you: take the time to learn about what the guys above are thinking. Subscribe to their blog feeds. Think carefully about what they have to say. For if you don’t, one day the magistrates may come knocking on your door, telling you your passion is against the law.

Merry Christmas, and don’t let the boatmen win.



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