law

Road rash, fender vaults, & root vaults

language & literature, law, science / /

From Jascha Hoffman’s “Crash Course” (Legal Affairs: July/August 2004):

Typically there are two kinds of injuries [in hit-and-run cases], those from the initial impact, and the ones from hitting and sliding on the asphalt, known as “road rash.” To illustrate the different types of impact a pedestrian can suffer, Rich cued up a series of video clips on his laptop. The first one showed a well-dressed man with a briefcase in each hand caught crossing a busy Manhattan street. Suddenly, a white minivan blindsided him, causing a “fender vault” that tossed the man three feet into the air, still holding one briefcase. A taxi approaching from the opposite direction then launched him into a textbook “roof vault,” sending his remaining briefcase flying and hurling him headfirst onto the pavement. This was not a walk-away accident.

Road rash, fender vaults, & root vaults Read More »

Modern mercenaries

business, history, law, politics, security / /

From Rebecca Ulam Weiner’s “Sheep in Wolves’ Clothing” (Legal Affairs: January/February 2006):

YOU WON’T FIND THE WORD “MERCENARY” on the homepage of the International Peace Operations Association, the trade group for the private military industry. While many of the IPOA’s member companies are staffed by elite former soldiers of the United States military who now make a living hiring themselves out, the so-called “M word” isn’t in the IPOA’s corporate vocabulary. Members are known as private military companies (often called PMCs) or military service providers, who specialize in “private peace operations.” …

In recent years, private contractors have increasingly taken on important military functions, operating in some 50 countries and earning an estimated $100 billion in annual revenue. They provide security to civilian aid workers, other contractors, and even military forces. They train local armies for combat, develop future American soldiers (the firm MPRI helps run ROTC), and interrogate prisoners. At times, they’ve engaged in combat. During the invasion and occupation of Iraq, the U.S. has relied heavily on their support – private contractors make up a workforce of about 20,000, double the British troop presence. …

During the Iraq war, contractors have run the computers that control Predator drones, operated guided missile systems on naval ships, and maintained aerial surveillance and communications systems. In the Persian Gulf war of 1991, the ratio of soldiers to contractors was 50 to 1. In the current Iraqi conflict, it is 10 to 1 and falling.

This proliferation has worried many – in the academy, Congress, the media, and, increasingly, the military – because contractors operate outside the military chain of command and most legal jurisdictions. PMCs have no clear place under the framework of the Geneva Conventions – they aren’t noncombatants, because they carry weapons, but they aren’t lawful combatants, because they don’t wear uniforms. Nor do they fit the anachronistic definitions of mercenaries found in international treaties and resolutions, because those definitions generally require engagement in direct combat.

Soldiers are subject to rules of engagement and can be court-martialed for breaking the law. Contractors are governed most directly by the terms of their contracts – their extraterritorial activities and corporate status make them virtually immune from federal law. …

Worse, critics argue, because the military has no direct control over its contractors, it won’t accept responsibility for their actions. And PMCs allow the Pentagon to evade accountability to Congress, because they circumvent caps on the number of troops approved for deployment and their casualties aren’t counted.

Modern mercenaries Read More »

Posse Comitatus Act

history, law / /

From Geoffrey Klingsporn’s “The Secret Posse” (Legal Affairs: March/April 2005):

What do these scenarios have in common? Under current military policy, both fall under the heading of “Information Operations,” officially defined as “actions taken to affect adversary information and information systems while defending one’s own information and information systems.” …

The law that, in effect, prevents the Army from acting as a national police force is the Posse Comitatus Act, an 1878 statute that prohibits law enforcement officers from using military personnel as a posse comitatus—Latin for “power of the county” or, in the vernacular of the Old West, a “posse”—to enforce domestic law, except with the express authorization of the president or Congress. …

“The use of military forces to seize civilians,” wrote the U.S. Court of Appeals for the Eighth Circuit, “can expose civilian government to the threat of military rule and the suspension of constitutional liberties,” and can chill free speech and other fundamental rights, creating the atmosphere of an enemy occupation. …

Since the 1980s, though, the statute has been weakened by laws that allow the military to help address the problems of drug trafficking, natural disasters, and terrorist attacks. It is now routine for soldiers and sailors to help state and local police with training, equipment, and logistics; to detect and monitor suspected smugglers; and to keep order in disaster areas. … But the courts generally have ruled that it is well within the discretion of the president and Congress to allow the military to help in nonmilitary situations, including cases of terrorism. In 1988, a federal district judge in Washington, D.C., ruled that the Posse Comitatus Act was not violated when the FBI used the Navy to help capture a suspected terrorist in international waters and transport him to the United States.

Posse Comitatus Act Read More »

A brief history of American bodysnatching

history, language & literature, law, science / /

From Emily Bazelon’s “Grave Offense” (Legal Affairs: July/August 2002):

In December 1882, hundreds of black Philadelphians gathered at the city morgue. They feared that family members whom they had recently buried were, as a reporter put it, “amongst the staring corpses” that lay inside. Six bodies that had been taken from their graves at Lebanon Cemetery, the burial ground for Philadelphia’s African-Americans, had been brought to the morgue after being discovered on the back of a wagon bound for Jefferson Medical College. The cemetery’s black superintendent had admitted that for many years he let three grave robbers, his brother and two white men, steal as many corpses as they could sell to the college for dissection in anatomy classes.

At the morgue, a man asked others to bare their heads and swear on the bodies before them that they would kill the grave robbers. Another man found the body of his 29-year-old brother and screamed. A weeping elderly woman identified one of the corpses as her dead husband. According to the Philadelphia Press, which broke the story, to pay for her husband’s burial she had begged $22 at the wharves where he had once worked.

Medical science lay behind the body snatchings at Lebanon Cemetery and similar crimes throughout the Northeast and Midwest during the 19th century. By the 1820s, anatomy instruction had become central to medical education, but laws of the time, if they allowed for dissection, let medical schools use corpses only of condemned murderers. In their scramble to find other cadavers for students, doctors who taught anatomy competed for the booty of grave robbers—or sent medical students to rob the graves themselves. …

In the early 19th century, doctors were eager to distinguish themselves from midwives and homeopaths, and embraced anatomy as a critical source of their exclusive knowledge. In the words of a speaker at a New York medical society meeting in 1834, a physician who had not dissected a human body was “a disgrace to himself, a pest in society, and would maintain but a level with steam and red pepper quacks.” …

According to Michael Sappol’s recent book, A Traffic of Dead Bodies, Harvard Medical School moved its campus from Cambridge to Boston (where it remains) expecting to get bodies from an almshouse there. …

“Men seem prompted by their very nature to an earnest desire that their deceased friends be decently interred,” explained the grand jury charged with investigating a 1788 dissection-sparked riot in which 5,000 people stormed New York Hospital.

To protect the graves of their loved ones, 19th-century families who could afford it bought sturdy coffins and plots in a churchyard or cemetery guarded by night watchmen. Bodies buried in black cemeteries and paupers’ burial grounds, which often lacked those safeguards, were more vulnerable. In 1827, a black newspaper called Freedom’s Journal instructed readers that they could cheaply guard against body snatching by packing straw into the graves. In 1820s Philadelphia, several medical schools secretly bribed the superintendent of the public graveyard for 12 to 20 cadavers a week during “dissecting season.” He made sure to keep strict watch “to prevent adventurers from robbing him—not to prevent them from emptying the pits,” Philadelphia doctor John D. Godman wrote in 1829.

When a body snatching was detected, it made for fury and headlines. The 1788 New York riot, in which three people were killed, began when an anatomy instructor shooed some children away from his window with the dismembered arm of a corpse, which (legend has it) belonged to the recently buried mother of one of the boys; her body had been stolen from its coffin. In 1824, the body of a farmer’s daughter was found beneath the floor of the cellar of Yale’s medical school. An assistant suspected of the crime was almost tarred and feathered. In 1852, after a woman’s body was found in a cesspool near Cleveland’s medical school, a mob led by her father set fire to the building, wrecking a laboratory and a museum inside. …

In the morning, news spread that the robbers had been taken into custody. An “immense crowd of people surrounded the magistrate’s office and threatened to kill the resurrectionists,” the Press reported. …

The doctors got what they asked for. A new Pennsylvania law, passed in 1883, required officials at every almshouse, prison, morgue, hospital, and public institution in the state to give medical schools corpses that would otherwise be buried at public expense.

A brief history of American bodysnatching Read More »

The difficulties in establishing time of death

law, science, technology / /

From Jessica Sachs’s “Expiration Date” (Legal Affairs: March/April 2004):

More than two centuries of earnest scientific research have tried to forge better clocks based on rigor, algor, and livor mortis – the progressive phenomena of postmortem muscle stiffening, body cooling, and blood pooling. But instead of honing time-of-death estimates, this research has revealed their vagaries. Two bodies that reached death within minutes of each other can, and frequently do, show marked differences in postmortem time markers. Even the method of testing eye potassium levels, which was recently hailed as the new benchmark for pinpointing time of death, has fallen into disrepute, following autopsies that showed occasional differences in levels in the left and right eye of the same cadaver. …

And the longer a body is dead, the harder it is to figure out when its owner died. In their book The Estimation of Time Since Death in the Early Postmortem Period, the world-renowned experts Claus Henssge and Bernard Knight warn pathologists to surrender any pretensions of doing science beyond the first 24 to 48 hours after death.

The difficulties in establishing time of death Read More »

Court acceptance of forensic & biometric evidence

history, law, science, security / /

From Brendan I. Koerner’s “Under the Microscope” (Legal Affairs: July/August 2002):

The mantra of forensic evidence examination is “ACE-V.” The acronym stands for Analysis, Comparison, Evaluation, and Verification, which forensic scientists compare with the step-by-step method drilled into countless chemistry students. “Instead of hypothesis, data collection, conclusion, we have ACE-V,” says Elaine Pagliaro, an expert at the Connecticut lab who specializes in biochemical analysis. “It’s essentially the same process. It’s just that it grew out of people who didn’t come from a background in the scientific method.” …

Yet for most of the 20th century, courts seldom set limits on what experts could say to juries. The 1923 case Frye v. United States mandated that expert witnesses could discuss any technique that had “gained general acceptance in the particular field in which it belongs.” Courts treated forensic science as if it were as well-founded as biology or physics. …

In 1993, the Supreme Court set a new standard for evidence that took into account the accelerated pace of scientific progress. In a case called Daubert v. Merrell Dow Pharmaceuticals, the plaintiffs wanted to show the jury some novel epidemiological studies to bolster their claim that Merrell Dow’s anti-nausea drug Bendectin caused birth defects. The trial judge didn’t let them. The plaintiff’s evidence, he reasoned, was simply too futuristic to have gained general acceptance.

When the case got to the Supreme Court, the justices seized the opportunity to revolutionize the judiciary’s role in supervising expert testimony. Writing for a unanimous court, Justice Harry Blackmun instructed judges to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert turned judges into “gatekeepers” responsible for discerning good science from junk before an expert takes the stand. Blackmun suggested that good science must be testable, subject to peer review, and feature a “known or potential rate of error.” …

There are a few exceptions, though. In 1999, Judge Nancy Gertner of the Federal District Court in Massachusetts set limits on the kinds of conclusions a handwriting expert could draw before a jury in United States v. Hines. The expert could point out similarities between the defendant’s handwriting and the writing on a stick-up note, the judge said, but she could not “make any ultimate conclusions on the actual authorship.” The judge questioned “the validity of the field” of handwriting analysis, noting that “one’s handwriting is not at all unique in the sense that it remains the same over time, or unique[ly] separates one individual from another.”

Early this year, Judge Pollak stunned the legal world by similarly reining in fingerprint experts in the murder-for-hire case United States v. Plaza. Pollak was disturbed by a proficiency test finding that 26 percent of the crime labs surveyed in different states did not correctly identify a set of latent prints on the first try. “Even 100 years of ‘adversarial’ testing in court cannot substitute for scientific testing,” he said. He ruled that the experts could show the jury similarities between the defendants’ prints and latent prints found at the crime scenes, but could not say the prints matched. …

… the University of West Virginia recently offered the nation’s first-ever four-year degree in biometrics …

Court acceptance of forensic & biometric evidence Read More »

In Search of Lost Crime

history, language & literature, law / /

From Caleb Crain’s “In Search Of Lost Crime” (Legal Affairs: July/August 2002):

… the 1860 Brooklyn divorce case of Beardsley v. Beardsley. …

Richard Busteed, the lawyer for Mrs. Beardsley’s aggrieved husband, denounced her in his closing arguments as “the harlot of the nineteenth century,” and his showy performance brought tears to the eyes of many in the courtroom. In a final flourish, Busteed appealed to whatever yearning the jurors might have had for literary immortality:

If the record of this case shall be preserved in some substantial form, men and women of other generations will recur to it when they tire of Dombey and Copperfield, and drop to sleep over Kenilworth and Ivanhoe. In the glow of this extraordinary drama of real life, the highly wrought pictures of the novelist will pale their intellectual fires. Long after the romance of Bardell against Pickwick shall be musty with forgetfulness, the sad truths of Beardsley against Beardsley will rise up as sorrowing witnesses of the frailty of a woman who deliberately sacrificed the holiest relations of life upon the altar of a roving and unhallowed lust. …

… the popular 1846 trial of Albert John Tirrell … Tirrell’s case was a particularly hot item: A young man from a respectable family, he murdered a prostitute in Boston and set her brothel on fire, but his ingenious lawyer convinced the jury that he had been sleepwalking. …

Consider the prolixly titled 1871 pamphlet Life, Trial and Execution of Edward H. Ruloff, The Perpetrator of Eight Murders, Numerous Burglaries and Other Crimes; Who Was Recently Hanged at Binghamton, N.Y. A Man Shrouded in Mystery! A Learned Ruffian! Was He Man or Fiend, published by E.E. Barclay of Philadelphia.

In Search of Lost Crime Read More »

Gender, murder, & knots

history, law / /

From Caleb Crain’s “In Search Of Lost Crime” (Legal Affairs: July/August 2002):

… the 1833 trial of Rev. Ephraim K. Avery … discovered Sarah Maria Cornell’s body hanging from a stake among his haystacks …

Consider, as a final example of the pleasures to be had in trial pamphlets, the knot in the rope around Sarah Maria Cornell’s neck.

A coroner’s jury inspected Cornell’s body the day after its discovery. “At first I did not observe the cord about her neck, it was so imbedded,” testified Williams Durfee, who served on the jury. “On looking closer, I observed the knot under her right ear. The cord passed twice round the neck. It was what farmers call two half hitches, and sailors, a clove hitch…. To tighten a clove hitch, the ends must be drawn apart horizontally. If the ends be drawn upwards it will not tighten.” If Durfee was correct about the kind of the knot and the way it tightened, Cornell could not have hanged herself unassisted.

The witness Benjamin Manchester also considered this knot to be a damning clue. Cornell had been a weaver. And yet the knot at her neck seemed to be an unusual one-more typical of a sailor, in Manchester’s opinion. According to Durfee’s testimony, a farmer would also have been familiar with the knot. But in both men’s comments, the implication is that a woman would not have known how to tie it.

The implication stood, unchallenged, until the defense called Louisa M. Whitney, its final witness before the rebuttal phase. Like the late Cornell, Whitney worked in a textile factory, and she performed a remarkable demonstration in the courtroom. She showed “the jury a harness knot and how it is made.” As the impressed stenographer noted in brackets, “It proves to be the same as a clove hitch”-the kind of knot around Cornell’s neck. Whitney testified that weavers tied such knots routinely in the course of mending their harnesses: “We call them harness knots. I never heard any other name.”

In other words, factory women knew how to tie the same knots that farmers and sailors did, but because men and women used different terms and did not work together, the men had underestimated the women’s rope-handling knowledge. The prosecution scrambled to find weavers who mended their harnesses with simpler knots and were willing to swear ignorance of clove hitches, but the damage was done. The moment a woman tied a clove hitch before the jury’s eyes, an important part of the case against Avery unraveled.

The clove-hitch testimony hardly proved Avery’s innocence. While it was easy for his lawyers to discredit much of the evidence against him, the note in Cornell’s bandbox and a few letters she received from him cast a long shadow. Not guilty? In the best trial pamphlets, the lapse of a century and a half has done nothing but sharpen the doubts.

Gender, murder, & knots Read More »

When newspapers began to cover trials

business, history, language & literature, law / /

From Caleb Crain’s “In Search Of Lost Crime” (Legal Affairs: July/August 2002):

In American cities in the 1830s, 1- and 2-cent newspapers for the working class abruptly challenged 6-cent newspapers published for merchants and political parties. As Patricia Cline Cohen explains in The Murder of Helen Jewett, an account of the 1836 killing of a New York City prostitute, the penny papers transformed the reporting of murder trials. To satisfy their unsqueamish readers, editors for the first time actively investigated crimes. James Gordon Bennett of The New York Herald pioneered by visiting Jewett’s brothel and tracking down witnesses who had not yet found their way to the police station or the courtroom. While the Herald was running the Jewett story on its front page, circulation tripled.

For a sensational trial, the penny papers sent reporters to the courtroom every day. During the trial they published daily installments, which they collected and issued as a pamphlet once it was over. The trial pamphlet blossomed. The most vivid and novelistic pamphlets are of trials that took place between 1830 and 1875: the trial of Richard P. Robinson for the murder of Helen Jewett, the court-martial of Alexander Slidell Mackenzie for his role in the so-called Somers mutiny (1843), the trial of the Harvard professor John Webster for the murder of a Harvard benefactor named George Parkman (1849), and the trial of the Lincoln assassination conspirators (1865), among others.

When newspapers began to cover trials Read More »

The history of the Poison Pill

business, history, law / /

From Len Costa “The Perfect Pill” (Legal Affairs: March/April 2005):

THE MODERN HISTORY OF MERGERS AND ACQUISITIONS divides neatly into two eras marked by a landmark ruling of the Delaware Supreme Court in 1985. Before then, financiers like T. Boone Pickens and Carl Icahn regularly struck terror in the hearts of corporate boards. If these dealmakers wanted to take over a company in a hostile maneuver, break it into pieces, and then spin those pieces off for a profit, it was difficult to stop them. But after a decision by the Delaware court, directors regained control of their companies’ destinies.

The directors’ trump card is a controversial innovation technically called a preferred share purchase rights plan but nicknamed the “poison pill.” Its legality was affirmed unequivocally for the first time in the Delaware ruling of Moran v. Household International. By the unanimous vote of a three-judge panel, the court held that a company could threaten to flood the market with newly issued shares if a hostile suitor started buying up lots of its stock, thus diluting the suitor’s existing holdings and rendering the acquisition prohibitively expensive. …

Still, both sides agree that the poison pill is an ingenious creation. “As a matter of lawyering, it’s absolutely brilliant,” said Stanford University law professor Ronald Gilson, a longstanding critic who nonetheless considers the poison pill to be the most significant piece of corporate legal artistry in the 20th century. …

If a hostile bidder acquires more than a preset share of the target company’s stock, typically 10 to 15 percent, all shareholders-except, crucially, the hostile bidder-can exercise a right to purchase additional stock at a 50 percent discount, thus massively diluting the suitor’s equity stake in the takeover target.

The history of the Poison Pill Read More »

The TSA acts outside the Constitution

law, politics / /

From Ars Technica’s “Terrorist watch list follies, and my time in the TSA’s Constitution-free zone“:

So what are your rights if your name is unjustly on the watch-list, and you’d like to be able to move about the country without being singled out by airport screeners and possibly even traffic cops for extra attention? The answer is, unfortunately, that some of your basic Constitutional rights are effectively non-existent if you happen to get caught somewhere in America’s growing terrorist dragnet.

As of right now, there aren’t many rules to which you can appeal for redress—no laws aimed at protecting the accused, no binding judicial decisions, and few formal departmental protocols for addressing grievances. The kinds of rules and precedents that govern most of the other citizen-facing aspects of the federal bureaucracy just aren’t there when it comes to anything terrorism and/or TSA-related. …

To sum up, if you run afoul of the nation’s “national security” apparatus, you’re completely on your own. There are no firm rules, no case law, no real appeals processes, no normal array of Constitutional rights, no lawyers to help, and generally none of the other things that we as American citizens expect to be able to fall back on when we’ve been (justly or unjustly) identified by the government as wrong-doers.

The TSA acts outside the Constitution Read More »

A short explanation of moral rights in IP

business, law, politics, tech in changing society / /

From Betsy Rosenblatt’s “Moral Rights Basics“:

The term “moral rights” is a translation of the French term “droit moral,” and refers … to the ability of authors to control the eventual fate of their works. An author is said to have the “moral right” to control her work. … Moral rights protect the personal and reputational, rather than purely monetary, value of a work to its creator.

The scope of a creator’s moral rights is unclear, and differs with cultural conceptions of authorship and ownership, but may include the creator’s right to receive or decline credit for her work, to prevent her work from being altered without her permission, to control who owns the work, to dictate whether and in what way the work is displayed, and/or to receive resale royalties. Under American Law, moral rights receive protection through judicial interpretation of several copyright, trademark, privacy, and defamation statues, and through 17 U.S.C. §106A, known as the Visual Artists Rights Act of 1990 (VARA). VARA applies exclusively to visual art. In Europe and elsewhere, moral rights are more broadly protected by ordinary copyright law.

In the United States, the term “moral rights” typically refers to the right of an author to prevent revision, alteration, or distortion of her work, regardless of who owns the work. Moral rights as outlined in VARA also allow an author of a visual work to avoid being associated with works that are not entirely her own, and to prevent the defacement of her works. …

Under VARA, moral rights automatically vest in the author of a “work of visual art.” For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. In order to be protected, a photograph must have been taken for exhibition purposes only. VARA only protects works of “recognized stature;” posters, maps, globes, motion pictures, electronic publications, and applied art are among the categories of visual works explicitly excluded from VARA protection. …

Moral rights are not transferrable, and end only with the life of the author. Even if the author has conveyed away a work or her copyright in it, she retains the moral rghts to the work under VARA. Authors may, however, waive their moral rights if do so in writing.

What constitutes infringement of moral rights?

VARA grants two rights to authors of visual works: the right of attribution, and the right of integrity. The right of attribution allows an author to prevent misattribution of a work, and to require that the authorship of the work not be disclosed (i.e. remain anonymous). The right of integrity bars intentional distortion, mutilation, or other modification of a work if that distortion is likely to harm the author’s reputation, and prevents the destruction of any work of recognized stature.

A short explanation of moral rights in IP Read More »

CCTV in the UK deters crime

law, security, tech in changing society, technology / /

From Technology Review‘s “Big Brother Logs On“:

In many ways, the drama of pervasive surveillance is being played out first in Orwell’s native land, the United Kingdom, which operates more closed-circuit cameras per capita than any other country in the world. This very public surveillance began in 1986 on an industrial estate near the town of King’s Lynn, approximately 100 kilometers north of London. Prior to the installation of three video cameras, a total of 58 crimes had been reported on the estate. None was reported over the next two years. In 1995, buoyed by that success, the government made matching grants available to other cities and towns that wanted to install public surveillance cameras – and things took off from there. …

And not many argue about surveillance’s ability to deter crime. Recent British government reports cite closed-circuit TV as a major reason for declining crime rates. After these systems were put in place, the town of Berwick reported that burglaries fell by 69 percent; in Northampton overall crime decreased by 57 percent; and in Glasgow, Scotland, crime slumped by 68 percent. Public reaction in England has been mixed, but many embrace the technology. …

CCTV in the UK deters crime Read More »

From P2P to social sharing

business, law, social software, tech in changing society, technology / /

From Clay Shirky’s “File-sharing Goes Social“:

The RIAA has taken us on a tour of networking strategies in the last few years, by constantly changing the environment file-sharing systems operate in. In hostile environments, organisms often adapt to become less energetic but harder to kill, and so it is now. With the RIAA’s waves of legal attacks driving experimentation with decentralized file-sharing tools, file-sharing networks have progressively traded efficiency for resistance to legal attack. …

There are several activities that are both illegal and popular, and these suffer from what economists call high transaction costs. Buying marijuana involves considerably more work than buying roses, in part because every transaction involves risk for both parties, and in part because neither party can rely on the courts for redress from unfair transactions. As a result, the market for marijuana today (or NYC tattoo artists in the 1980s, or gin in the 1920s, etc) involves trusted intermediaries who broker introductions.

These intermediaries act as a kind of social Visa system; in the same way a credit card issuer has a relationship with both buyer and seller, and an incentive to see that transactions go well, an introducer in an illegal transaction has an incentive to make sure that neither side defects from the transaction. And all parties, of course, have an incentive to avoid detection. …

There are many ways to move to such membrane-bounded systems, of course, including retrofitting existing networks to allow sub-groups with controlled membership (possibly using email white-list or IM buddy-list tools); adopting any of the current peer-to-peer tools designed for secure collaboration (e.g. Groove, Shinkuro, WASTE etc); or even going to physical distribution. As Andrew Odlyzko has pointed out, sending disks through the mail can move enough bits in a 24 hour period to qualify as broadband, and there are now file-sharing networks whose members simply snail mail one another mountable drives of music. …

The disadvantage of social sharing is simple — limited membership means fewer files. The advantage is equally simple — a socially bounded system is more effective than nothing, and safer than Kazaa. …

From P2P to social sharing Read More »

Good description of Fair Use & 1st Sale

business, law, tech in changing society / /

From Scott Kleper’s “An Introduction to Copyfighting“:

I think a lot of people incorrectly assume that Copyfighters are people who believe that copyright should be abolished and that everything should be free. Copyfighters aren’t saying that all media should be freely distributed. We are saying that as consumers of media (film, television, software, literature, etc.) we have certain rights that we would like to protect. One of these rights is Fair Use. Fair Use means that you can reuse copyrighted work without permission as long as you are commenting on it, or copying/parodying the original. Fair Use is what allows you to quote song lyrics when writing a review of a new CD. Another right is First Sale. First Sale means that when you buy something, you own it and are thus entitled to sell it to someone else. First Sale is what allows you to buy a book, read it, then sell it on half.com for someone else to enjoy.

Most of all, we simply want the right to use the products we buy in the way that we see fit. We don’t want to be sued by a manufacturer for opening up a product to see how it works or sued by a media company for moving a file from one device to another. We believe that when we buy a CD, we should be able to convert it to another format to play on another device. We shouldn’t have to pay again to turn it into a ring tone. …

Songs bought on the Apple iTunes music store can be played only on a fixed number of devices that you have unlocked with your iTunes ID. Sounds reasonable, but after a few system reinstalls, maybe a replaced motherboard, a change of jobs, etc., all of a sudden, you no longer have access to any of your “authorized computers” and you have to get Apple to remove them all so you can start again. You can’t play iTunes purchased music on your non-Apple portable music player and you can’t play Windows DRM files on your iPod. Consumers are supposed to understand and care about this?

The worst part is that these schemes end up only hurting the people who are trying to be good. If you use a commercial downloading service, like iTunes Music Store, it means that you have rejected the dubious legality and poor user experience of the “illegal” services. You have paid your 99 cents and been handed something that is less valuable than what you could have gotten for free. You get a file with complex and arbitrary restrictions in a proprietary format. Meanwhile, the people who decided to keep on infringing aren’t suffering — they get unrestricted files.

Good description of Fair Use & 1st Sale Read More »

Developing nations stand up to US/UN bullying on copyright

law, politics, tech in changing society / /

From “Statement by India at the Inter-Sessional Intergovernmental Meeting on a Development Agenda For WIPO, April 11-13, 2005” (emphasis added):

“Development”, in WIPO’s terminology means increasing a developing country’s capacity to provide protection to the owners of intellectual property rights. This is quite a the opposite of what developing countries understand when they refer to the ‘development dimension’. The document presented by the Group of Friends of Development corrects this misconception – that development dimension means technical assistance.

The real “development” imperative is ensuring that the interest of Intellectual Property owners is not secured at the expense of the users of IP, of consumers at large, and of public policy in general. …

The legal monopoly granted to IP owners is an exceptional departure from the general principle of competitive markets as the best guarantee for securing the interest of society. The rationale for the exception is not that extraction of monopoly profits by the innovator is, of and in itself, good for society and so needs to be promoted. Rather, that properly controlled, such a monopoly, by providing an incentive for innovation, might produce sufficient benefits for society to compensate for the immediate loss to consumers as a result of the existence of a monopoly market instead of a competitive market. Monopoly rights, then, granted to IP holders is a special incentive that needs to be carefully calibrated by each country, in the light of its own circumstances, taking into account the overall costs and benefits of such protection. …

The current emphasis of Technical Assistance on implementation and enforcement issues is misplaced. IP Law enforcement is embedded in the framework of all law enforcement in the individual countries. It is unrealistic, and even undesirable to expect that the enforcement of IP laws will be privileged over the enforcement of other laws in the country. Society faces a considerable challenge to effectively protect, and resolve disputes over, physical property. To expect that the police, the lawyers and the courts should dedicate a sizable part of society’s enforcement resources for protecting intangible intellectual property, is unrealistic. …

In conclusion, it is important that developed countries and WIPO acknowledge that IP protection is an important policy instrument for developing countries, one that needs to be used carefully. While the claimed benefits of strong IP protection for developing countries are a matter of debate – and nearly always in the distant future – such protection invariably entails substatial real an immediate costs for these countries. In formulating its IP policy, therefore, each country needs to have sufficient flexibility so that the cost of IP protection does not outweigh the benefits.

Developing nations stand up to US/UN bullying on copyright Read More »

Copyright stupidity: arguments & numbers

business, commonplace book, law, politics, tech in changing society / /

From Financial Times” “James Boyle: Deconstructing stupidity“:

Thomas Macaulay told us copyright law is a tax on readers for the benefit of writers, a tax that shouldn’t last a day longer than necessary. …

Since only about 4 per cent of copyrighted works more than 20 years old are commercially available, this locks up 96 per cent of 20th century culture to benefit 4 per cent. The harm to the public is huge, the benefit to authors, tiny. …

We need to deconstruct the culture of IP stupidity, to understand it so we can change it. But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours.

Maximalism: The first thing to realize is that many decisions are driven by honest delusion, not corporate corruption. The delusion is maximalism: the more intellectual property rights we create, the more innovation. This is clearly wrong; rights raise the cost of innovation inputs (lines of code, gene sequences, data.) Do their monopolistic and anti-competitive effects outweigh their incentive effects? That’s the central question, but many of our decision makers seem never to have thought of it.

The point was made by an exchange inside the Committee that shaped Europe’s ill-starred Database Directive. It was observed that the US, with no significant property rights over unoriginal compilations of data, had a much larger database industry than Europe which already had significant “sweat of the brow” protection in some countries. Europe has strong rights, the US weak. The US is winning.

Did this lead the committee to wonder for a moment whether Europe should weaken its rights? No. Their response was that this showed we had to make the European rights much stronger. …

Authorial Romance: Part of the delusion depends on the idea that inventors and artists create from nothing. Who needs a public domain of accessible material if one can create out of thin air? But in most cases this simply isn’t true; artists, scientists and technologists build on the past. …

An Industry Contract: Who are the subjects of IP? They used to be companies. You needed a printing press or a factory to trigger the landmines of IP. The law was set up as a contract between industry groups. This was a cosy arrangement, but it is no longer viable. The citizen-publishers of cyberspace, the makers of free software, the scientists of distributed data-analysis are all now implicated in the IP world. The decision-making structure has yet to adjust. …

Fundamentally, though, the views I have criticised here are not merely stupidity. They constitute an ideology, a worldview, like flat earth-ism. …

Copyright stupidity: arguments & numbers Read More »

Malware focused on theft above all

law, security, tech in changing society, technology / /

From AFP’s “70 percent of malicious software aimed at theft: survey“:

Seventy percent of malicious software being circulated is linked to various types of cybercrime, a study by security firms Panda Software showed. …

The survey confirms a shift from several years ago, when malicious software was often aimed at garnering attention or exposing security flaws.

“Malware has become a took for generating financial returns,” the report said. …

About 40 percent of the problems detected by Panda was spyware, a type of malicious code designed for financial gain, primarily through collecting data on users’ Internet activities.

Another 17 percent was trojans, including “banker trojans” that steal confidential data related to bank services, others that download malicious applications onto systems.

Eight percent of the problems detected were “dialers,” malicious code that dials up premium-rate numbers without users’ knowledge; “bots,” a scheme involving the sale or rental of networks of infected computers, accounted for four percent of the total.

The e-mail worm, which was recently considered a major Internet threat, made up only four percent of the total.

Malware focused on theft above all Read More »

The 1st software patent

business, history, law, tech in changing society, technology / /

From Robert X. Cringely’s “Patently Absurd: Why Simply Making Spam Illegal Won’t Work“:

Software patents have become inordinately important for something that 25 years ago we didn’t even believe could exist. After several software patent cases had gone unsuccessfully as far as the U.S. Supreme Court, the general thinking when I got in this business was that software could not be patented, only copyrighted. Like the words of a book, the individual characters of code could be protected by a copyright, and even the specific commands could be protected, but what couldn’t be protected by a copyright was the literal function performed by the program. There is no way that a copyright could protect the idea of a spreadsheet. Protecting the idea would have required a patent.

Then on May 26, 1981, after seven years of legal struggle, S. Pal Asija, a programmer and patent lawyer, received the first software patent for SwiftAnswer, a data retrieval program that was never heard from again and whose only historical function was to prove that all of the experts were wrong — software could be patented. Asija showed that when the Supreme Court had ruled against previous software patent efforts, it wasn’t saying that software was unpatentable, but that those particular programs weren’t patentable.

The 1st software patent Read More »