Author Archives: Richard Posner

Digital Fortress

…is the name of a 1998 novel by Dan Brown, the author of The Da Vinci Code. Digital Fortress is a cyberthriller about the National Security Agency (NSA), which monitors and intercepts electronic communications worldwide. In the book as in real life, the agency is concerned with encryption technologies that can prevent it from decoding the communications that it intercepts.(One of the triumphs of modern technology is the unbreakable code; it used to be that even the cleverest codes could, with enough time and effort, be decoded.) The agency would like all such technologies to contain a “backdoor” that would… Continue reading

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Global Warming

At last, high-level Administration acknowledgment that global warming is real, and that human activity (mainly the burning of fossil fuels, principally oil, natural gas, and coal, and deforestation in Third World countries) is a principal cause because such activity emits carbon dioxide. (See also Times article.) Greenhouse gases, such as carbon dioxide, in the atmosphere trap heat reflected from the earth and by doing so maintain a temperate climate. But since the Industrial Revolution and in particular since about 1970, economic and population growth has resulted in greatly increased emissions of carbon dioxide, resulting in greatly increased atmospheric concentrations of… Continue reading

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Back to "The Matrix"

First example: how technology will bring us to the world of The Matrix. The matrix is a video online world that is so realistic that if one’s “avatar” (one’s electronic self, the player in the video world) is killed, one dies of shock. The current video online worlds, in which you create and manipulate your avatar by means of a computer screen and a mouse or joystick, are insufficiently realistic to cause many deaths; I know of only one, described in a great article by James Meek: ‘In October 2002 a 24-year-old man, Kim Kyung-jae, died of a DVT-like illness… Continue reading

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The Technological Juggernaut

As Larry Lessig has long and presciently emphasized, law and technology are substitute methods of protecting an interest. You can sue a trespasser; but it may be cheaper just to put up a strong fence. We used to think that if the technological substitute was adequate, it would be superior to the legal; and in fact the law often imposes self-help requirements to discourage lawsuits. And we never (or rarely) used to think that technology could upset a balance struck by the law; we thought law could cope with any technological changes. The dizzying advances of modern technology have destroyed… Continue reading

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Break Up the CIA (III)?

A further thought, prompted in part by the release yesterday of the Schlesinger panel’s report of its investigation of the Abu Ghraib scandal. Under the present system of intelligence, the CIA, although it is not the largest intelligence agency, is the leading agency, and its director is understood to be the government’s senior intelligence officer; he briefs the President, and is responsible for keeping the President and the other top officials informed. If a National Intelligence Director is layered on top of the CIA, its director, and the other agencies, as recommended by the 9/11 Commission, and if in addition,… Continue reading

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Patenting Research Tools

Doug Lichtman, a very able IP professor at the University of Chicago Law School, took sharp issue with my brief note on patent fair use, emailing me that my “quick reference to patent fair use…is problematic for the simple reason that, often, the key market for research tools is to sell those tools to other researchers. If a researcher’s use of patented research tool is fair use, that would significantly degrade the incentive to create those research tools inthe first place. Moreover, even if your approach works, it is in sharp conflict with the Bayh-Dole instinct that society might very… Continue reading

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Fair Use and Misuse

Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want… Continue reading

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More on Fair Use, with a Note on Patents

Many great comments on my fair use posts; can’t discuss them all, but let me make a few points in response: With regard to the Patry-Posner proposal for creating a new fair-use defense for unauthorized copying of old copyrighted workers if the copier was unable with reasonable effort to discover the name and address of the current holder of the copyright, several commenters point out that one of the objections to the pre-1976 system, where failure to renewal forfeited copyright, was that people often just forgot to renew or botched the renewal application. No doubt there were unfortunate such incidents…. Continue reading

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Break Up the CIA (II)?

Many excellent comments on my posting. I can’t respond to all of them, but I do want to respond to two of them. One commenter said (I’m paraphrasing): why would breaking up the CIA be a big deal? It accounts for only 12 percent of the national intelligence budget. What that overlooks is that high-tech intelligence agencies, like the NSA (surveillance of communications worldwide) and the NRO (develops and launches spy satellites), are very expensive because they are capital-intensive as well as requiring substantial staffs, but much of their intelligence output is input into the analytical and operational divisions of… Continue reading

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Break Up the CIA?

Enough for the moment on fair use; I’ll get back to that. I’m interested in the report of the 9/11 Commission on the intelligence failures that led up to the 9/11 attack. I was asked to do a book review of by it the New York Times, and I agreed (the review will appear in next Sunday’s New York Times book review section, but as the Sunday Times Book Review is published the preceding Monday, my review was actually published today) because of my interest in how the nation should be responding to catastrophic risks (this turns out to be,… Continue reading

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