The University of Chicago Law School Faculty Blog

The virtues of virtues in the law? Being humane to animals

Hi everyone,

I’m posting here as a guest on the invitation of Professor Nussbaum. I am sympathetic towards her work, but have also been a persistent –and I hope constructive- critic of it. I teach at a Jesuit liberal arts college, and have just returned from teaching four years in the United Arab Emirates, at American University of Sharjah -- a highly successful and ambitious university accredited by Middle States and hosting students from over seventy countries. So do not assume I understand much of the law. My emphasis has always been on forming undergraduates, which is where my passion lies.

I see that you are debating Christine Korsgaard’s theory of obligations to animals. It should really be called a theory of obligation to animals, and not to other animals, because it is a theory of obligation to animal, as opposed to rational, nature. If the expression weren’t odd, it might be best to refer to her theory of obligation to animality. Doing so would make it easier to see one of Professor Nussbaum’s criticisms, that Korsgaard’s theory is still indirect: what merits respect in animals is that they have stuff that we have when we respect ourselves, that stuff “animality”. It’s not like they themselves make claims on us in the ways they are different than us. So much for the moral attitude everyday people call “respect” –- that attitude that attends to others because of their differences.

What I want to do here is to lay out a few controversial ways of going about the problem of the moral status of animals. These will be underargued and incomplete, but that is all well and fine for starting a debate.

H2.0

Lee Fennell’s Homeownership 2.0 is provocative and deeply interesting—as with all her work, it is a pleasure to read. The idea that we could separate on-site and off-site factors in the home purchasing decision is attractive. For me, it is primarily attractive because it might reduce (in Lee’s language) “costly basket-guarding behaviors”: the homeowner’s extreme risk aversion to newcomers and the NIMBY(“not in my backyard”)ism that accompanies it. But I am skeptical that this proposal can get us there for a number of reasons:

First, why slice and dice homeownership when we have a form of tenure – the leasehold – that is better positioned to deal with on-site and off-site risk? I wasn’t quite persuaded that we shouldn't make renting a more robust form of ownership rather than making homeownership somewhat less robust.  Why aren't renters the ideal since they only have the consumption interest in homeownership?  I agree that homeownership has tax advantages and psychological ones, but my immediate reaction to the idea of bifurcating the risk in ownership is to encourage long-term leaseholds and give renters some of the tax benefits that owners currently enjoy.

Second, I wonder if off-site factors swamp on-site factors, conceptually.  All houses are really bundles of off-site characteristics, i.e., location, location, location; the on-site amenities and maintenance mean almost zero if the house is located on the North Pole.  These locational factors are huge, it seems to me—particularly if you factor in access to employment markets.

Third, I worry about giving absentee investors a stake in controlling off-site factors.  Most investors will want a say in community governance, which introduces a lot of complications. What kind of pressure can these investors apply to local governments to adopt new zoning rules, deny development permits, prevent unwanted uses, or disfavor racially-heterogeneous neighborhoods?  In an H2.0 regime, I'd predict increased neighborhood homogeneity as investors (like big developers) create standardized products while trying to limit their risk—investment money would flow to expanding white suburbs, the problem of redlining would reemerge under the guise of this new financial product.  Perhaps Lee is betting that investors will be more rational than risk-averse homeowners, but I’m not persuaded. There is no reason to think that new H2.0 investors will operate any differently than the traditional investment partners of homeowners: banks and mortgage companies.

This leads me to my last comment. Perhaps, in light of the subprime mortgage debacle, this is not the time to create new fungible investment vehicles that will operate on a national scale.  One could make the argument that the local savings and loan, investing in the local housing market, kept capital in the community and maintained the stability of neighborhoods (in part because the investors in the savings and loan often lived there).  Coops and other forms of collectivized equity seem to try to recreate that community-investment link; it is interesting to note that Lee’s proposal tries to dilute that link.

Next Week: Debate on Homeownership 2.0

Buying a home means accepting a large dose of undiversified risk, much of it stemming from factors outside of the purchased parcel and out of the homeowner’s personal control. In this article, forthcoming in the Northwestern University Law Review, Chicago's Lee Fennell presents a new tenure form, Homeownership 2.0 (“H2.0”), that reconfigures the default homeownership bundle. Central to H2.0 is a distinction between parcel-specific influences on home values, like remodeling and maintenance choices (“onsite factors”), and influences on home values that emanate from beyond the four corners of the parcel, such as neighborhood changes and larger housing market trends (“offsite factors”). Fennell argues that investment in onsite factors is essential to homeownership, but that requiring homebuyers to invest in offsite factors as a matter of course is no more sensible than forcing them to invest in some other random, localized venture with variable returns. Indeed, scholars and innovators have already explored a variety of ways to slice, dice, hedge, and trade housing market risk. Using the H2.0 proposal as a focal point for analysis, Lee’s piece steps back to examine how a reduced-risk version of homeownership would fit together with property theory, human cognition, and the social dynamics of neighborhoods and metropolitan areas.

Rich Schragger of UVA School of Law will debate Lee’s paper next week on the Faculty Blog. We hope you’ll join us!

Real Legal Remedies for Virtual Harms? (Blog Debate: LIV)

In his post below, Saul asks: "If A deletes much of B's existence in the virtual world, or A manipulates B in that world to such a degree that B's real world health and safety are at issue, why should criminal law be thought out of bounds?"

My answer is that I don't think it should.   Most criminal laws are and should be technology-neutral.  What matters is the harm, not the specific way that the harm is caused.  For example, the crime of sending an interstate threat to harm a person (18 U.S.C. 875)  is the same crime regardless of whether the thread is by postal mail, a telephone call, an e-mail, or communications in a virtual word.  I think this is right: the means of committing the offense normally shouldn't matter.  The key point in my paper is that the "virtualness" of the harm shouldn't matter, either.   That is, we should stay focused on the impact of conduct in the real physical world, not in the virtual one.   So, for example, in the case of the crime of sending a threat to harm a person, the "person" still needs to be a real live physical person.   The concern motivating my paper is that we'll start to believe our virtual metaphors and equate virtual harms with real ones; I think this is a major mistake.

Maybe you're thinking, "Hey, what are the chances that we'll start taking virtual harms so seriously?"  The statute to watch is 18 U.S.C. 1030, the Computer Fraud and Abuse Act, a crime enacted in the 1980s to punish computer hacking. Congress opted to describe the prohibited act as "accessing" a computer "without authorization" or "exceeding authorized access," and more than 20 years later no one knows what these words actually mean.   Some of the interpretations out there are frighteningly broad.  For example,  there are lower-court precedents holding that violating Terms of Service make use of a computer "exceed authorized access."  The U of C's own Judge Richard Posner has written an opinion for the Seventh Circuit holding that an employee who uses a computer with the subjective intent of hurting his employer accesses his work computer "without authorization."  These sorts of precedents  have arisen in the civil context, but they apply equally in the criminal context.  And they'll give prosecutors some ready weapons to start charging virtual harms under existing federal laws if they so choose.

I've written an article arguing against these broad interpretations of Section 1030, and I've been happy to see its arguments gain some traction recently in a few district court opinions.  (Not cases involving virtual worlds -- just computer cases more broadly.)  I think the scope of Section 1030 will be the most important battleground  for the scope of criminal law in virtual worlds in the next few years.  Those who are worried about the evolution of criminal law in virtual worlds should watch these cases very closely.

Is There Any "There" There? (Blog Debate: Kerr on Levmore)

Saul's first post takes a strong view on an important preliminary question:  When we ask how the law should regulate virtual worlds, is there any "there" there?  I attended the very cool Legal Futures conference at Stanford this weekend, and a panel on virtual worlds revealed a very sharp split on this. Some people think this topic is extremely silly, because after all, we're just talking about dorks playing computer games.  Other people think these issues will be among the most important cyberlaw issues of the 21st Century.  I found myself somewhere in the middle, although I tend to think Saul is probably right.  On one hand,  I agree that these aren't important questions right now.  On the other hand, computer technologies always evolve in the direction of becoming more realistic and more lifelike.  That's going to draw in more and more people over time, especially lots of children.  Where people go, the law tends to follow.  If people want to regulate video games and sex toys, you can bet they'll want to regulate virtual worlds. 

My paper focuses specifically on the role of criminal law in virtual worlds, and I think this context makes the case against government intervention easiest.  Filing a lawsuit is as American as apple pie, but most people realize that trying to lock someone up is different (even if with our incarceration rate, a lot of people would say that's pretty American, too).  Still, I think the role of criminal law in virtual worlds is likely to raise a number of difficult questions.  For example, it's easy to agree in the abstract that criminal law should not regulate harms that are only virtual but should redress harms that seep out into the real world.  But where exactly is the line?   Virtual world participants are real people who suffer real unhappiness; the case for regulation will be that these real people are suffering real harms even if the harms seem to outsiders as only virtual.   

Similarly, where will we draw the baseline of conduct and rights in virtual worlds -- in formal documents like Terms of Service or in social norms?  This is a recurring problem in computer crime law, one that I addressed in depth in the case of unauthorized access statutes and that is a major theme of my  casebook:  Computer crimes are so new that we just haven't figured out what we're criminalizing.  Legislatures tend to respond to pleas for new computer crime laws by passing overly broad laws  and letting prosecutors exercise discretion to charge the right kind of cases.   Sometimes, this works; the meaning of the laws evolve case by case, and new laws take on more certain meaning over time.  But even when it works, it often leads to disturbing overcriminalization.  I wrote this essay in part because I fear something similar might happen with virtual worlds: The sentiment that "there oughta be a law" can be a strong one, and it's very easy and politically popular for Congress to pass broad criminal laws that sit on the books underenforced.

Next Week: Debate on the Legal Regulation of Virtual Worlds

How should the law respond to the growing importance of virtual worlds?  In this essay, forthcoming in the University of Chicago Legal Forum, Professor Orin Kerr of Volokh Conspiracy considers how criminal law does and should apply to conduct in virtual worlds. The first part argues that existing laws regulate virtual worlds with little or no regard to the virtual reality they foster. Criminal law tends to follow the physical rather than the virtual: it looks to what a person does rather than what the victim virtually perceives. This dynamic greatly narrows the role of criminal law in virtual worlds. The second part concludes that legislatures should not enact new criminal laws to account for the new social harms that may occur in virtual worlds.  Virtual harms are better regulated by game administrators than federal or state criminal laws.  Internal virtual harms should trigger internal virtual remedies. It is only when harms go outside the game that the criminal law should try to punish and deter wrongs not redressable elsewhere.

Dean Saul Levmore and Orin will debate Orin’s paper next week on the Faculty Blog. We hope you'll join in the conversation!

Wrapping Up [Mobblog: The New Servitudes]

Over the past week, the Faculty Blog has hosted a mobblog (online workshop) centered around "The New Servitudes" by Molly Van Houweling of Boalt Hall.  The posting “mob” included Jim Gibson (Richmond), Sonia Katyal (Fordham), Henry Smith (Yale), Stewart Sterk (Cardozo), Chicago's Richard Epstein, Lee Fennell, Randy Picker, Shyam Balganesh and, of course, Molly herself.  Many thanks to all our participants for an extremely engaging and useful intellectual exchange! While this post concludes the mobblog proper, we encourage those who have been following along to continue the conversation in the comments here. 

Final Van Houweling Response and Thanks [Mobblog: The New Servitudes]

I’m going to have to sign off without addressing the vast majority of the thought-provoking points that you all have raised over the past week.  I will continue to struggle with and benefit from your suggestions, questions, and insights as I continue to work on the project for which The New Servitudes provides a framework.  Thanks to Randy and Shyam for putting together the mobblog; to them and to Stew, Lee, Richard, Sonia, Henry, and Jim for participating; and to the University of Chicago Law School Faculty for welcoming me into its virtual halls. 

Before signing off, I want to take up Randy’s point about static vs. dynamic servitudes, which strikes me as a very useful distinction that has implications for the concerns that I discuss in the article.  Randy characterizes the GPL and Creative Commons licenses as “viral and infectious.  An explicit dynamic orientation.”  I’m not sure “viral and infectious” are the best adjectives.  They suggest that these licenses spread their terms to strangers, when in fact they only spread them (or, more precisely, insist that they be imposed upon) descendents--copies and derivative works.  So I suppose the term I might use instead is “heritable.”  But in any event I agree they are dynamic in the sense not only that they spread through inheritance, but moreover that they expressly encourage propagation (by lifting the restrictions on copying and adaptation that would otherwise be imposed by copyright).  This dynamism provides much of the appeal of these licenses to licensors (who want their creations to go forth and multiply).  And it also makes them valuable to society:  propagation represents progress in science and the useful arts.  So there are great benefits to be had from this type of dynamism.

But propagation and inheritance also lead to lots of complications--complications that are related to but may even go beyond what we’ve experienced in the land and personal property servitude contexts.  One specific type of “problem of the future” that I associate with land servitudes in the article is fragmentation.  Drawing on Michael Heller's work, I note that servitudes divide rights in a single parcel of land among multiple owners.  If it is later desirable to consolidate those rights in order to put the resource to its best use, fragmentation of the property bundle (and the transaction costs involved in re-bundling) can make consolidation difficult.  Heller himself cites restrictions on servitudes among “numerous restraints [that] limit an individual’s capacity to break up property bundles too much.”  Michael Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621, 664 (1998).  Note that the anticommons problem (to which Shyam also draws our attention with his interesting comparison to trespass to chattels) is especially severe when rights are divided not only between the burdened landowner and the beneficial servitude owner, but also between multiple landowners and multiple servitude owners.  The prospect for this kind of fragmentation is related to servitude durability.  Over time land can be sold and divided and the attached burdens and benefits thus further fragmented.

Now apply this logic to a servitude attached to an object that propagates.  Not only are ownership rights in the initial object fragmented, but they become increasingly fragmented, numerous, and potentially remote from each other in space and time as the object of the servitude (and along with it, the servitude’s terms) multiplies.  The complications that Wikipedia has encountered in attempting to make the GNU license that applies to the millions of constantly propagating entries (contributed by tens and thousands of copyright-holding authors) compatible with Creative Commons licenses is an illustration of the unanticipated problems of the future that this kind of servitude can encounter.  I’m not sure this is an entirely new issue.  (Livestock servitudes?)  But it’s definitely a current one--with implications for restrictions imposed on patented seeds, cell lines, animals, etc. 

All of this is not to say that these licenses are not worth adopting and enforcing.  As I’ve mentioned, I am a former staff member and current board member of Creative Commons and I believe in its mission.  But these difficulties point to the need to focus on balancing the costs and benefits (which are great--see above re progress in science in the useful arts) and in figuring out how the costs might best be minimized.

That brings me to the topic upon which Shyam rightly pushes me--solutions.  What I want to emphasize for now is that the experience with land and chattel servitudes that I document in the article suggests that there are multiple ways to deal with the types of problems that servitudes can cause. 

One approach (which Henry’s work illuminates) is standardization:  simply refusing to enforce certain types of idiosyncratic servitudes because they are likely to cause confusion, become obsolete, and/or harm third parties.  The “touch and concern” and other servitude subject matter requirements are examples of this approach. 

Another approach (which Richard’s post emphasizes) is recording:  simplifying, standardizing, and centralizing the provision of notice in order to reduce information cost problems.  Interestingly, in the land servitude context the standardization approach is increasingly being abandoned in the United States as the land recording system has provided an alternative mechanism for providing notice.  (Whether it does so adequately, and whether other problems remain, is a contested question.) 

Stew, Shyam, and Sonia all suggest yet another approach--limiting remedies (injunctive relief in particular).  Note that this is the approach that the Copyright Office advocated in its Orphan Works Report, which (as I observe elsewhere) aims to address some of the problems of the future caused by the servitude-like nature of copyright itself. 

There are more potential responses to the concerns raised by old and new servitudes--including refusing to enforce on the basis of changed circumstances, imposing heightened notice requirements, and Jim's fascinating Copyright Act smorgasbord proposal.  But here I just want to give a sense of the wide variety of alternatives (and the variety of institutions that might be involved in adopting and/or imposing the--courts, regulators, legislators, self-regulatory bodies, etc.).  As I move forward with this project I hope to say more about these alternatives, and about how they mesh with existing doctrines (including preemption, exhaustion, misuse, unconscionability, etc.) that might be applied to the new servitudes.

Thanks again, and cheers from sunny California. 

--Molly Van Houweling
Assistant Professor of Law
University of California, Berkeley (Boalt Hall)
msvh@law.berkeley.edu

Do Not Think About This Post Without Prior Authorization [Jim Gibson's Comments Redux -- Mobblog: The New Servitudes]

One last thought before this very interesting mobblog ends.

As I catch up on the latest mobblog entries, I have the Celtics-Spurs game on in the background, and it strikes me that perhaps the most broadly familiar servitude that accompanies an information good is not the Microsoft EULA or the GNU GPL, but the announcement that we hear every time we watch a professional sports broadcast, e.g.: "This broadcast is the exclusive property of the NBA, and you shall not reproduce it, retransmit it, think about it, or derive pleasure from it in any way without sending us your firstborn and tithing us 20% of your income."  (I paraphrase.)

These are Microsoft-EULA-like in their attempt to extend private control beyond that which public law provides -- for example, they often purport to forbid any unauthorized "accounts" of the game -- so they raise the same concerns that Molly articulates toward the end of her article.  Yet I think the problem goes farther than that; I'd be willing to bet that the general public thinks that such announcements merely describe the public law rather than add to it through the imposition of additional private conditions.  In other words, most people do not realize this is a servitude; they think it is the default state of IP law.  (Consider the similar, facially overbroad FBI warning that accompanies every film on videotape or DVD; that warning must be viewed as a statement of the default IP law, as it originates with the government and not with the copyright owner.)

This suggests an added servitude cost to consider, perhaps as a subset of notice costs.  Here's what I mean:  It's hard enough for the average citizen to know what is and is not covered by copyright (especially given the death of copyright's formalities), and which uses are forbidden.  (In fact, given the many amorphous doctrines within copyright, from idea/expression to fair use, it can be hard for even the copyright lawyer or scholar to figure such things out.)  But as the average consumer encounters more and more of these "added restriction" servitudes, it may become even harder to know what IP's default rules are.  Indeed, as we solve the usual notice problem -- as end users do receive actual notice of the added restrictions (as they probably do in the NBA example) -- this new cost may increase rather than decrease, because it is the added information that makes it harder to know what the background conditions are.

So those who repeatedly encounter restriction-increasing servitudes may come to treat all information goods as if they are similarly restricted, or may incur significant information costs in determining which are and which are not.  As with many of the topcis we've discussed in this mobblog, this would be a problem even with the first generation of users, and does not depend on whether the servitude "runs" with the good.  Also, note that this negative externality is not as likely when we are dealing with something that is clearly a contract, rather than a unilaterally imposed servitude.  Contracting parties are accustomed to giving up something they would otherwise enjoy.  I am far from certain that the same is true of those who encounter Molly's new servitudes.

Thanks all -- I've really enjoyed it.

Fair Use: Public and Private [Mobblog: The New Servitudes]

Lee points out that “the possibility that EULAs will interfere with fair use rights seems like a substantive objection to the limits themselves, even as applied to the first purchasers of the product.”  And Sonia’s post also raises the issue of “foreclosure of options like fair use.”  I want to offer a couple of (still quite preliminary) thoughts on this topic.

The primary problem I see with restrictions on fair use is that fair use is justified in part by public benefits (from critical commentary, interoperability, etc.) that are unlikely to be accounted for by the parties.  As Lee’s post suggests, even simple contracts restricting fair use can therefore harm third parties by depriving them of these benefits.  For the reasons mentioned in my prior post about “running,” I think the problem is more serious in servitude-like situations where more people, over more time, in more remote relationships with the licensor, are bound.  (And, to jump to possible doctrinal implications that I do not address in The New Servitudes, this difference might justify interventions that would not be justified in the simple contract case.)

But I want to think more about whether some restrictions on fair use do not have these third party effects at all (a possibility to which Randy alludes in his post).  As Wendy Gordon’s seminal work on fair use suggests, the doctrine sometimes operates to enable behavior that generates positive externalities; but in other cases it simply allows people to do things of private benefit to them that they could not negotiate permission to do because of transaction costs.  Where the techniques of electronic commerce reduce transaction costs such that permission to make these uses is available for a fee, the co-existence of restrictions that forbid the uses by those who have not paid do not trouble me in the way that restrictions on more public-regarding flavors of fair use would. 

I’m influenced here by Randy’s argument in his Broadcast Flag article that “[t]he narrow set of institutional arrangements for access to content that have been supported to date reflect the transaction costs and technological difficulties of implementing alternative arrangements,” and by my colleague Rob Merges’ observations about the transaction-cost and non-transaction-cost justifications for fair use in The End of Friction?  Property Rights and Contract in the "Newtonion" World of On-Line Commerce.  Whether there is a way to operationalize this distinction between the types of fair use is another question.

Now, restrictions on even these private-benefit fair uses might have undesireable distributive consequences (a possibility I emphasize in Distributive Values in Copyright).  But they could also facilitate desirable price discrimination as Randy’s post suggests.