“if Amazon’s computing cloud sees you looking at the New York Times home page, and it predicts, based on other user statistics, that you are somewhat likely to next click on some NY Times subpage link, then the Amazon servers will go ahead and download that next link, and cache it, in case you do click on it next, so that it can serve it up more quickly.”
What is your immediate response to that description of the “Silk” browser software on Amazon’s Kindle Fire pad? Are you amazed at the pace of technological change? Or are you curious about how the software works? Does it cause you to speculate about other applications?
Or do you immediately ask whether the caching is copyright infringement, or is it fair use, is it permitted by a safe harbour provision? That is the question Stephan Kinsella asked. Why would that respond spring to mind before others. Kinsella is concerned by the way in which laws, in this case intellectual property laws, rely on unexamined assumptions about technology. But when technology changes and courts try to apply laws to new technologies there are unexpected and often negative results. Many self described technology lawyers are familiar with the reflexive dynamic of intellectual property law and information and communications technology but its not just in intellectual property law and its not ICT’s for which this is true.
Who is responsible for damage caused by genetically modified organisms that reproduce in the wild? If one country, in an attempt to manage the climate change resulting from global warming, releases reflective sulfate particles into the upper atmosphere with the result that the climate changes for the worse for neighbouring countries is there a remedy in international law? Is is lawful to make part human part dolphin chimera’s?
But hasn’t the law always had to play catch up to technological change? From silks to motor cars and aircraft to video recorders* the law has responded sooner or later (but usually later) regulating use, assigning liability and (far too infrequently) assuring freedom. The law, especially common law, has responded through the incremental adaptation that characterises law. Occasionally law has been changed dramatically in response to a particular technological development usually through passing a comprehensive statute. Ironically these kinds of attempts at comprehensive change are often the most time bound and become anachronistic more quickly than the more flexible common law.
It may not be possible to quantify but it seems that something in the relationship of law and technology has changed. As I see it the pace, range and impact of technological change have each increased so much that law can no longer rely on ad hoc approach to technological change. Instead what is needed is a systematic approach that seeks to understand the relationships between law, technology and society.
It isn’t simply a matter of trying to speed up the process of law making. Overhasty and under theorised law making can be even more disastrous than a delay between the appearance of problems and a legal response. The systematic response must enable scientists and technologists to share a common framework with policy makers so that conversations about new technologies draw on all the available disciplines and knowledge. Lawyers need conceptual tools that will help them take into account the unknown and the unknoweable, risk but also benefits. Jurisprudence must take account of technology as a phenomenon.
*For younger readers a “video recorder” is defined by the Oxford English Dictionary as “n. an apparatus for making video recordings; spec. a form of tape recorder for recording television programmes from the broadcast signal.”