For some reason, this passage reminded me of how Internet companies think about user consent:
“There are certain things black shamans can do—and certain things people trained by them can do. You’ve seen a sample already. There are worse things: transport into the false worlds, into the dream borders, binding forever in places which exist within the mind and have virtually no exits to the outside world. But to do any of these things, the shaman believes that his ritual demands consent. Listen to me, Marianne.”
“I’m listening. You said the ritual demands consent.”
“Remember it. The shamans believe the ritual is necessary to the effect, and they believe that consent is necessary to the ritual. The shaman says to his victim, ‘Will you have some tea?’ And the victim says, ‘Yes, thank you.’ That is consent. In my own library, your brother said to you, ‘Come, let me introduce you to …’ and you nodded yes. That was consent. So she then struck at you.”
“Did the people who went riding consent? If so, to what?”
“More likely, Madame went down to the stables before going to bed last night, taking a few lumps of sugar with her. ‘Here, old boy, have a lump of sugar,’ and the horse nods his head, taking the sugar. He has consented then, and they can use him. So also with dogs, with birds, with anything they can get to take food from their hands. The true victim was to be the horse, whatever horse you might be riding or anyone else might be riding. They are not over scrupulous.”
— Sheri S. Tepper, Marianne, the Magus, and the Manticore
[Traditional, with adaptations.]
In a certain village there lived a rabbi, famed for the time he had spent studying Talmud. One day, two villagers came to see him about a dispute. The rabbi agreed to hear them out and decide the matter for them, and a small crowd gathered around.
Chaim went first. “Moshe’s chickens have been running into my yard,” he explained, describing how they were eating from his stores and harassing his children. “Moshe needs to build a fence to keep them in.”
The rabbi frowned sadly and spread his arms in empathy. “I’m afraid that you are wrong,” he began. For fifteen minutes he spoke, quoting Torah and Talmud, explaining why Moshe and his chickens had violated none of the Law. By the end of his learned explanation, the crowd was nodding and murmuring in agreement.
Now it was Moshe’s turn. “My chickens are well-behaved and I look after them carefully,” he said. It was rare that even one chicken got out, and it never went far. “I have done all I can. If Chaim is so concerned, well then he should build a fence to keep them out.”
Again the rabbi frowned, a wistful look on his face. “I’m afraid that you too are wrong,” he said. For another fifteen minutes he spoke, quoting Torah and Talmud, explaining why Moshe had failed in his obligations towards his wayward chickens. Once again, the crowd of villagers was nodding along with him—all except one.
“They can’t both be wrong!” Herschel shouted. “First you told us that Chaim was wrong, and then you told us that Moshe was wrong. Which is it? It has to be one or the other.”
The rabbi nodded sadly. “Alas, my son, I’m afraid that you are wrong as well.”
Can you identify all of the following?
Thomas Nashe’s 1594 novel The Unfortunate Traveller (Wikipedia, original text, modern-spelling text) is a strange and grisly piece of work, equal parts The Spanish Tragedy, Inglourious Basterds, and The Dying Earth. It follows Jack Wilton, an Englishman who is half scoundrel and half philosopher, on a picaresque journey through mid 16th-century Europe. (“I was at Pontius Pilate’s house, and pissed against it.”)
One passage in particular has stuck with me. Earlier in the novel, Jack and his companion Diamante encounter an Italian named Bartol and a Spaniard named Esdras, who have been raping, robbing, and murdering their way through Rome, taking advantage of an outbreak of plague to prey on rich, defenseless women. In their raid on the house where Jack is staying (with rape, robbery, and murder described in lurid detail), Bartol abducts Diamante. Esdras lusts after her, so he picks a fight with Bartol, mortally wounding him.
At the end of the novel, Jack and Diamante, reunited, come across an execution. The condemned man is Cutwolf, Bartol’s brother. In a long speech, Cutwolf explains that he that swore revenge on Esdras and spent twenty months chasing him across Italy, begging rather than break off the pursuit to go back for money.
Cutwolf finally locates and corners Esdras in Bologna, saying, “I have promised the devil thy soul within this hour; break my word I will not; in thy breast I intend to bury a bullet.” Esdras pleads for his life piteously and at great length. He offers Cutwolf riches, he asks Cutwolf only to maim him, and he finishes by imploring Cutwolf to consider his own soul’s fate:
Spare me, spare me, I beseech thee; by thy own soul’s salvation I desire thee, seek not my soul’s utter perdition; in destroying me, thou destroyest thyself and me.
Cutwolf is unmoved. “There is no heaven but revenge.”
Esdras tries again, offering to carry out whatever horrific and humilating demands Cutwolf makes of him:
Command me to cut all my kindred’s throats, to burn men, women and children in their beds in millions by firing their cities at midnight. Be it pope, emperor or Turk that displeaseth thee, he shall not breathe on the earth. For thy sake will I swear and forswear, renounce my baptism, and all the interest I have in any other sacrament. Only let me live how miserable soever, be it in a dungeon amongst toads, serpents and adders, or set up to the neck in dung. No pains I will refuse, howsoever prorogued, to have a little respite to purify my spirit; oh, hear me, hear me, & thou canst not be hardened against me.
At this, Cutwolf has an idea. Esdras, he says, must do three things to live:
First and foremost he should renounce God and his laws, and utterly disclaim the whole title or interest he had in any covenant of salvation. Next, he should curse him to his face, as Job was willed by his wife, and write an absolute firm obligation of his soul to the devil, without condition or exception. Thirdly and lastly (having done this), he should pray to God fervently never to have mercy upon him, or pardon him.
Esdras complies, blaspheming with such fervor that Cutwolf is amazed the earth doesn’t open up and swallow the two of them on the spot. And when Esdras is done, Cutwolf completes his plan:
These fearful ceremonies brought to an end, I bade him ope his mouth and gape wide. He did so (as what will not slaves do for fear?); therewith made I no more ado, but shot him full into the throat with my pistol; no more spake he after; so did I shoot him that he might never speak after or repent him. His body being dead looked as black as a toad; the devil presently branded it for his own.
And that is it. Cutwolf has had his revenge—not just on Esdras’s body, but on his soul.
I learned about The Unfortunate Traveler in college, in a course on Shakespeare. Hamlet’s reluctance to kill Claudius while he is praying echoes Cutwolf. As always with Shakespeare, you can have what may well be the source material right there in front of you (Hamlet probably dates to somewhere between 1599 and 1601) and still be amazed at how differently a line like “that his heels may kick at heaven” lands.
For some reason, I have been reminded of Esdras’s fate the last few days. Sometimes, it is good to think about what you are and are not willing to do when there is a man with a gun to your head.
I am pleased to announce the public release of my freely available intellectual property textbook, Information Property. I have been working it since 2012. In that time, it has evolved from a collection of supplementary problems, to a coursepack, to a casebook, to a textbook. The result reflects how I think an IP survey course should be taught, because it is how I teach my own IP survey course. Here are a few highlights of what I have done, and why:
First, this is a textbook, not a casebook. Although it contains a few edited cases, most of it consists of my own explantions of IP doctrines and how they fit together. The point is to put in one place everything that a beginning IP student should know, clearly explained, and vividly illustrated. It contains hundreds of images: patent drawings, copyright works-in-suit, infringing products, and much much more.
Second, the book presents a systematic exposition of IP concepts. I have broken every IP field down into the same seven basic topics: subject matter, ownership, procedures, similarity, prohibited conduct, secondary liability, and defenses. It brings out the ways in which different fields are alike, and the ways in which they diverge. I find that this approach helps enormously in bringing order to what can seem like a riotous diversity of forms of IP.
Third, the book has unusually broad coverage of IP fields. In addition to the standard topics (patent, copyright, trademark, and sometimes trade secret), it also covers undeveloped ideas, false advertising, geographic indications, right of publicity, design patent—and a unique chapter on trademark-like issues in identifier registries.
Fourth, the book is freely available. I have released it under a Creative Commons Attribution license, and it is available from my website as a free PDF download. In addition, I sell at-cost paperback (black-and-white) and hardbound (full-color) versions through Lulu.
I am grateful to the many students and colleagues who have read previous versions of Information Property and given me useful suggestions on how to improve future ones. I plan to revise and extend it in the years to come, and your comments are warmly welcomed.