The Technology Liberation Front - Latest Comments in Contracting Away the Freedom to Tinker

Re: Contracting Away the Freedom to Tinker

eee_eff — Tue, 01 Aug 2006 20:27:46 -0000

There really is no such thing as a 'private limitation on speech.' A confidentiality agreement, in the US, only would grant the party I contracted with the right to recover their losses from me if I broke that confidentiality agreement. And except for a very few exceptions, it is very unlikely that an injunction would be granted against my attempt to exercise my freedom of speech. There is not a chance of that becoming a criminal act, as the DCMCA purports to make certain types of Tinkering. In the US, I need have no fear of going to jail for breaking such an agreement.

The limitation of disclosing issues of National Security, which you had raised, does not arise from contract law, but criminal code.

There are many many limits on what rights an individual can contract away. Most of our consumer protection laws are founded on this. For example: there are protections against unfair rent-to-own schemes, and there are 'lemon laws' which can not be contracted away in most states. A contract to sell myself into slavery, for example, would be struck down as against public policy. It is also illegal for me to contract to sell my vote. Non-compete clauses, unless carefully crafted for limited reasons, are often ruled to be against public policy, and can be held to be unenforcable contracts. All of these limitations on our ability to contract exist and were informed by forces other than free market economics. They were informed by ideas about justice, freedom, and morality, and this shows that these cultural values are of more importance than the sheer efficiency measures of market economics.

My point is that the Freedom to Tinker, for me, is implied by freedoms found in the Bill of Rights, and that therefore the Freedom to Tinker is no less deserving of protections that have already been established for illegal contracts.

Also, consumers, not having the benefits of the large legal staff which wrote the 'click wrap' liscence, and being at a disadvantaged bargaining position due to monopolies (for example: Computer OS's) need protection from certain kinds of contracts.

The idea that certain types of contracts should be unenforcable may be unpalatable to you, but such safeguards have a long legal precedent.

Re: Contracting Away the Freedom to Tinker

Braden — Tue, 01 Aug 2006 13:53:27 -0000

enigma_foundry makes an all too common mistake - confusing Constituional rights with contractual rights. The U.S. Constitution is a limit on GOVERNMENT action. Private limitations on speech - through employee confidentialitiy agreements, etc. - are very common, indeed encouraged, between private parties. It is illogical that people "contract" around the First Amendment, unless such a contract is with the GOVERNMENT, and even then I'm sure there are Defense contractors and FBI agents that willingly enter into confidentiality agreements with the U.S. that may limit their speech freedoms.

Unfortunately, the confusion inherent in this post dooms the comment.

Re: Contracting Away the Freedom to Tinker

eee_eff — Sat, 29 Jul 2006 10:44:58 -0000

Well this line of reasoning makes many mistakes, but I'd like to start with the most fundamental one: It considers the market-place alone without any recognition of the larger social and cultural reference environment in which the marketplace exists. The market-place exists to serve this larger reference environment. Those who think otherwise should read on.

Without this set of assumptions, Cory's reasoning, as another poster had commented, would lead to the repeal of the Amendment XIII to the U.S. Constitution which took away the "freedom" of people to be contract their ownership. Admittedly, that is an extreme example, however it has been a cornerstone of many Consumer Protection Laws (for example, those against unjust contracts in rent-to-own schemes, against usury, or those providing remedies in the case of defective products (e.g., Lemon Laws), which consumers cannot "contract away."

In my work as an Architect and Urbanist, I frequently deal with restrictions placed on property which the owners never 'contracted' away. I even am involved in establishing those restrictions, for example in Urban Planning projects. There exist restrictions on the type and character of the architecture in my neighborhood (it is an Historic Conservation District). I cannot put siding on, (or for that matter even paint) my brick house, without special permission. In the case of siding, I would never get that permission. This is because my house is also a part of a network (i.e., a neighborhood) in which there exist many stake holders who could suffer a loss because of my actions. Without these protections, there would just be a bunch of houses; with those protections, there can exist a neighborhood, a network that has a greater value than the sum of its parts. Our entire society is connected and considering a part apart from the whole is very risky, and almost always leads to wrong (or very limited) conclusions.

Now those who are advocating the seemingly unregulated expansion of the marketplace without consideration of its social, cultural or ethical impacts need very much to consider the following fact: the unregulated growth in the (relatively) unfettered marketplace, without connection to it reference environment, has lead to a very real backlash against the market itself. In particular, it has enormously strengthened the radical populist left in much of South America* and given strength to what should be outlier parties in much of Europe. Witness the obvious anger in France over a series of very modest reforms, and the recent strength in Poland (once the poster child for Sach's-style freeing of markets) of populist anti-liberal reform parties, and any reasonable observer has to conclude the growth of global free market capitalism has reached its high water mark. To those who think America is immune to such a populist movements, I have two words: Ross Perot.

So, back to the issue at hand: America is a free society, and that freedom is rooted in its cultural and social life, and therefore the market-place cannot be considered outside of its political, social, and moral dimensions. The conclusion that one should be able to 'contract away' their First Amendment Rights is just as objectionable and deeply flawed as the proposal that someone should be able to 'contract' themselves in to slavery, in contradiction to the XIII th Amendment. Continued attempts to place the marketplace outside of its reference environment actually endanger the continued existence of that marketplace.

*there is a series of essays by Jorge CastaÃ?ÃÂ±eda, in particular Old Left Versus New Left in Latin America on the website Project Syndicate (www.project-syndicate.org) which shed light on this phenomena. Regarding the situation in Europe, I would recommend the series of articles about the recent Polish Government in the Financial Times (or for those more interested in a different perspective in Tygodnik Powszechny in http://tygodnik.onet.pl/ (some articles available in English)