Quotulatiousness

February 6, 2013

You can say “Space” and you can say “Marines”, but you can’t say “Space Marines”

Filed under: Books, Gaming, Law, Media — Tags: , , , — Nicholas @ 11:40

Apparently Games Workshop owns the trademarked term “Space Marines”, so nobody else is supposed to use it:

For years, there have been stories about Games Workshop being trademark bullies and sending threats to people who use the term “space marine” in connection with games. But now that they’ve started publishing ebooks, Games Workshop has begun to assert a trademark on the generic, widely used, very old term “space marine” in connection with science fiction literature.

[. . .]

A few important notes:

* Amazon didn’t have to honor the takedown notice. Takedown notices are a copyright thing, a creature of the Digital Millennium Copyright Act. They don’t apply to trademark claims. This is Amazon taking voluntary steps that are in no way required in law.

* Games Workshop’s strategy is to make “space marine” less generic by launching high profile, bullying attacks on everyone who uses it, so that there will come a day when people hearing the phrase immediately conclude that it must be related to Games Workshop, because everyone know what colossal dicks they are whenever anyone else uses the phrase

* Trademarks only apply to commercial works. You can and should use “space marine” in your everyday speech, fanfic, tweets and so on. For one thing, it will undermine Games Workshop’s attempts to homestead our common language.

Update: John Scalzi clearly feels the claim lacks merit:

I am not a lawyer, so factor that in here. That said: Games Workshop, really? You know, a simple search on the term “space marines” over at Google Books shows a crapload of prior art for “space marines” in science fiction literature, from the 1936 Amazing Tales novelette “The Space Marines and the Slavers” by Bob Olsen, to Robert Heinlein’s novel Space Cadet, to the very recent use of the term in The Sheriff of Yrnameer by Michael Reubens and So You Created a Wormhole: The Time Traveler’s Guide to Time Travel by Phil Hornshaw and Nick Hurwitch. There is no lack of evidence that the phrase “space marines” has been used rather promiscuously in science fiction literature up to this point.

To argue, as Games Workshop must, that the phrase “space marines” has a distinctive character in science fiction literature relating only to their product involves, shall we say, a certain studied ignorance of the field. Table top games? Possibly; I’m not an expert. Science fiction literature? You have got to be kidding. It’s pretty damn generic in this field, and was long before 1987, when Warhammer 40,000 was created in game form . Nor does it seem, as far as I know, that Games Workshop attempted to claim trademark on the phrase “space marine” before, despite a veritable plethora of Warhammer 40K tie-in literature using the phrase.

Municipality really eager to get their parking revenues

Filed under: Bureaucracy, Law, Middle East — Tags: , — Nicholas @ 10:18

A woman in Tel Aviv was lucky to be able to get security camera footage to prove her innocence here:

The Tel Aviv Municipality found itself in hot water on Tuesday, after a Facebook post by a woman whose car was towed after city workers painted a handicapped space around the vehicle went viral, becoming a mini-scandal and garnering coverage across Israeli media outlets.

Security camera footage from a store above the parking spot on Yehuda Halevi Street shows the car parked at a legal blue parking spot, before city workers arrive and paint a handicapped spot around the car, which is towed shortly thereafter.

The video was obtained by the owner of the car, Hila Ben-Baruch, from the surveillance camera of the store above the parking spot.

I once saw something similar happen in real time: in the mid-1970’s, I was waiting for a Mississauga Transit bus when a work crew from the city came along. The crew started putting up “No Parking” signs along the road, and a Peel Regional Police officer came along a few minutes later to write parking tickets for all the cars which were now illegally parked. The bus I was waiting for was on something like a 45 minute schedule, so this all took place within that stretch of time.

February 5, 2013

The President’s “license to kill”

Filed under: Government, Law, Liberty, USA — Tags: , , , , , — Nicholas @ 09:56

At Reason, Jacob Sullum has a few concerns about the information that came to light in a Department of Justice memo leaked to the media:

The Justice Department white paper on “The Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force,” noted earlier tonight by Mike Riggs, fills in the fine print of the license to kill claimed by President Obama in several ways, none of them reassuring. The main conclusion of the paper, which was obtained by NBC News, is that “it would be lawful for the United States to conduct a lethal operation outside the United States against a U.S. citizen who is a senior, operational leader of al-Qa’ida or an associated force of al-Qa’ida without violating the Constitution or…federal statutes…under the following conditions: (1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force” — i.e., “necessity, distinction, proportionality, and humanity.”

[. . .]

More generally, the white paper fleshes out the Obama administration’s argument that U.S. citizens killed by drones are getting all the process that is appropriate in the circumstances; hence the Fifth Amendment, though implicated, is not violated. And since these targeted killings are lawful acts of self-defense, the Justice Department says, they do not violate the law against killing U.S. nationals in foreign countries or the executive order banning assassination. After all, “A lawful killing in self-defense is not an assassination.” Duh.

The problem is that to accept this position, you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.

February 4, 2013

A legal spectre is haunting the NFL

Filed under: Football, Health, Law, Media, USA — Tags: , , , , — Nicholas @ 10:12

In the wake of a vastly entertaining SuperBowl contest between the “San Francisco 50-1’ers”* and the “Baltimore Black Birds”*, Steve Chapman outlines the possibility that we won’t see too many more SuperBowl games:

Professional football is the most popular spectator sport in America, which is one reason yesterday’s Super Bowl was expected to draw 110 million viewers. With its famous athletes, storied franchises, and lucrative TV contracts, it’s an industry whose future appears limitless.

But football has a problem: the specter of mass brain damage among current and former players. So far, the steady trickle of disturbing revelations has had no apparent effect on ticket sales or TV ratings. What it has done, though, is more ominous: It has invited lawsuits.

If football falls into decline, it may not be the result of fans turning away, athletes avoiding it, or parents forbidding it. It may be from lawyers representing players who sustained chronic traumatic encephalopathy and expect to be compensated for the damage.

[. . .]

Walter Olson, a Cato Institute fellow, blogger (Overlawyered.com), and author of several books on liability, knows well how a tide of litigation can transform a landscape. And he has a bold prediction: “If we were to apply the same legal principles to football as we do to other industries, it would have to become extremely different, if not go out of business.”

“Seriously?” you may ask. A guy who made a good living engaging in high-speed collisions with 300-lb. blocks of granite can say he didn’t understand the risks involved? It may seem that case will be laughed out of court.

But Olson thinks not. “Courts have not been very friendly to this argument, particularly when something as grave as permanent brain damage is involved,” he told me. And it’s become apparent that while players were aware of the possibility of mangled knees, broken bones, and concussions, they didn’t grasp that repeated blows to the head could produce debilitating and irreversible mental harms.

* See the Samsung commercial in this post for explanation of the team names.

February 1, 2013

EFF joins effort to quash “Gaymer” trademark

Filed under: Gaming, Law, Liberty, Media — Tags: , , , — Nicholas @ 09:27

Chris Vizzini registered the trademark “Gaymer” in March of 2008. More recently he’s started trying to enforce his trademark by sending a cease-and-desist letter to Reddit, which has a large, active, vocal gay gamer community in the r/gaymers subreddit. If you know anything about Reddit communities, you’ll not be surprised that they’ve rallied to fight against Vizzini’s efforts to shut them down:

The response was immediate. The first option presented was to change the subreddit’s name. Others looked to see if the trademark could even be considered valid, tracking down examples of prior use, one of them dating all the way back to 1991. Also discussed was the possibility of licensing the term for a nominal fee, the downside being that even if Vizzini did accept, it would do nothing to prevent him from pursuing others who used the word “gaymer.”

While the trademark’s description seemed to cover a large portion of Reddit’s “goods and services” (with a few notable differences), the discussion focused on whether or not Vizzini should have been able to trademark what many viewed as a descriptive or generic term.

The stakes were raised again when the Electronic Frontier Foundation (EFF) became an active participant:

And, as if facing the wrath of united redditors wasn’t enough, the EFF has now joined the push to have this trademark cancelled.

    [I]n a petition filed with the U.S. Patent and Trademark Office (USPTO) today, the group asks the USPTO to cancel the “gaymer” trademark registration so that people around the world can continue to use the word without interference.

    The Electronic Frontier Foundation (EFF) and the law firm Perkins Coie represent the Reddit gaymers — members of the lesbian, gay, bisexual, and transgendered community who have an active interest in video games…

    “This registration should never have been granted,” said EFF Intellectual Property Director Corynne McSherry. “Gaymer is a common term that refers to members of this vibrant gaming community, and we are happy to help them fight back and make sure the term goes back to the public domain where it belongs.”

    “Trademarks have one primary purpose: to protect consumers from confusion about the source of goods or services,” said EFF Staff Attorney Julie Samuels. “This registration isn’t being used to protect consumers — it’s being used to threaten free speech.”

EFF’s petition cites the same complaints the redditors discussed: that the word “gaymer” is both generic and descriptive and that it predates Vizzini’s application for exclusive use of the term (in relation to the services listed above — there’s also an unrelated Gaymer line of ciders). Whether or not the USPTO will find this argument convincing remains to be seen. Many dubious claims have made their way unscathed through the registration office in years past. The main benefit of this action is it puts the pressure on Vizzini to defend his claim to the term, something he may have no interest in doing.

January 31, 2013

Talking secession … again … and again … and again

Filed under: Cancon, Government, Law — Tags: , , , — Nicholas @ 09:28

Paul Wells has a few thoughts on secession:

The reason we have spent nearly 40 years debating the effect of referendum results a few points this side or that of 50 per cent is because we have all known for nearly that long that any separatist “victory” in a referendum will be a close thing. If there ever were such a vote, 50 per cent plus a bit on a confusing question, then a sovereignist Quebec government would run into difficulties that don’t have much to do with the text of the Clarity Act and would not be eased by Tom Mulcair’s attempted compromise.

The Supremes sing the hits better than anyone. In their opinion on the Secession Reference, the top court got everyone excited with Paragraph 88, which identifies (Andrew Coyne and many others have said it “invents”) an “obligation on all parties to Confederation to negotiate constitutional changes to respond” to “the clear expression of the desire to pursue secession by the population of a province.” Every six weeks ever since there has been an op-ed in Le Devoir invoking the “obligation to negotiate” as Quebec secessionists’ trump card after a future third-time-lucky majority referendum vote.

It would be so lovely if somebody read more than one paragraph. Having discerned an obligation to negotiate where few had seen one before, the Supremes then ask the obvious question: “What is the content of this obligation to negotiate?” That’s a hell of a question, and since it comes precisely one paragraph after the one that gets everyone so excited, it’d be swell if a few people followed what comes next. The justices promptly “reject two absolutist propositions.” The first is “that there would be a legal obligation on the other provinces and federal government to accede to the secession of a province, subject only to negotiation of the logistical details of secession.” To anyone who says a Yes vote must lead to secession on Quebec’s terms, “we cannot accept this view.” Make the Yes vote as big as you like — Quebec could still not “dictate the terms of a proposed secession to the other parties: that would not be a negotiation at all.”

[. . .]

So a secession attempt would be just about infinitely more complex than the conventional wisdom usually assumes. I haven’t even considered the near-certainty that local secessionist, purely dissolutionist, or U.S.-annexationist movements would pop up across Canada if Quebec began a secession attempt. But surely governments of good will can overcome dissent? Well, maybe, except that the last time Canada’s governments attempted a coast-to-coast set of constitutional amendments — the Charlottetown process of 1992 — the unanimity and best efforts of every head of government in the land wasn’t enough to ensure passage.

There’s a powerful narcotic quality to any conversation that mentions the “Charlatan Accord” for most Canadians over the age of 40: you can see eyes glaze over and lids get heavy the instant that process enters the discussion.

January 30, 2013

There’s a big, unstated reason for illegal immigration in the United States

Filed under: Bureaucracy, Government, Law, USA — Tags: , — Nicholas @ 10:07

The illegal immigration problem won’t improve until the American government addresses the difficulties of legal immigration:

Reason, October 2008 - What Part of Legal Immigration Don't You Understand?!?!?

Reason, October 2008 – What Part of Legal Immigration Don’t You Understand?!?!?

Click the image to see the larger version.

January 29, 2013

NYC’s petty bureaucrats and the evolution of modern jazz

Filed under: Bureaucracy, Law, Media — Tags: , , , , , , — Nicholas @ 11:09

From the latest issue of Reason, Chris Kjorness outlines some of the pitfalls New York City thoughtfully put in the way of some of the greatest performers of Jazz:

For more than two decades musicians, comedians, and anyone else employed by a Gotham nightclub would be fingerprinted, photographed, and interviewed by police in exchange for a license to work. The card had to be renewed every two years, and it could be revoked at the whim of the police. The story of the cabaret card illustrates how small men with a little bit of power can inhibit creative expression, stifle artistic growth, and humiliate individual citizens, all in the name of the “public good.”

The cabaret card had its origins in the roaring ’20s. Prohibition made outlaws out of ordinary Americans, and the allure of booze, jazz, and debauchery brought the upper and lower classes together in clandestine after-hours spots. It was the height of the Harlem Renaissance, and white New Yorkers frequently made the trip uptown, looking for adventure and an escape from the tight moral constraints of downtown society.

[. . .]

More than just a barrier to work, the cabaret card for beboppers was an impediment to self-expression and artistic fulfillment. While originating in nightclubs, bebop represented something much more than bar music. The color line had not been broken in American symphony orchestras, so for a young black musician at a prestigious music conservatory — Miles Davis at Julliard, for example — sharing a cramped stage in a 52nd Street nightclub with someone like Charlie Parker was the highest realization of artistic ambition. But before he could do so, a musician would have to be judged not just by lauded masters and discerning aficionados but by the police.

Cops distrusted beboppers for three main reasons: The new breed of jazzmen were anti-establishment, they were confrontational in matters of race, and they had a fondness for heroin. The police had an unlikely ally in their crusade against the upstarts: older establishment jazz musicians who had their own reasons to dislike the beboppers.

In a 1951 Ebony article, Cab Calloway, a king of the 1930s jazz world, decried the widespread drug use in the current jazz scene. Though Calloway didn’t single anyone out by name, the magazine illustrated his essay with photos of bebop musicians, and the publication coincided with an upswing in police enforcement. One musician snared in this crackdown was Charlie Parker.

Next year’s calendars will be for the year “2013+1” to avoid paying the IOC a licensing fee

Filed under: Bureaucracy, Law, Media, Sports — Tags: , , — Nicholas @ 00:01

Just when you think the depths of idiocy have been fully plumbed, there’s the International Olympic Committee to prove you wrong:

Via the IPKat we learn that the IOC has already locked down next year in preparation for the Winter Olympics. No, seriously. A trademark on the number “2014,” which non-coincidentally happens to be a (lesser) Olympic year, has been granted by the UK’s Intellectual Property Office.

    The IPKat’s attention has been drawn to Community Trade Mark E3307444. The mark in question consists of the number “2014”, which no-one would ever imagine to be the appellation by which next year might just be known. Applied for in 2003 and registered in 2005, this mark is owned by none other than the Comité International Olympique of Château de Vidy, Lausanne.

So, with the kind of efficiency you only find in the most brutal of trademark bullies, the IOC has trademarked a number many people were planning to use starting next January, nine years in advance. And the IOC isn’t leaving anything to chance. It has staked a claim on all 45 of the possible registration classes, including (but good god, certainly not limited to) chemicals, pharmaceuticals, metals/alloys, machines, tools, scientific equipment, surgical instruments, lighting, heating, vehicles, firearms, musical instruments, furniture, ropes, tarps, string, textiles, toys, coffee, fresh fruits and vegetables, beer, other alcoholic beverages, tobacco, insurance, conferences and seminars, design and development of computer programs, restaurant services, asbestos and security.

Anything and everything possibly covered by a registered trademark has been nailed down by the Committee, making it very possible that anyone using the number “2014” in the year 2014 might find themselves dealing with the IOC’s trademark cops.

January 27, 2013

In Britain, ignorance of the law is a valid excuse (under certain circumstances)

Filed under: Britain, Law, Religion — Tags: , , , , , — Nicholas @ 11:25

Words fail me:

The failure of an Islamic faith school in the UK to provide a pupil with any knowledge about sexual relations, other than to teach him that women were “no more worthy than a lollipop dropped on the ground”, led to the trial of an 18-year-old who was charged with raping a 13-year-old girl.

But, according to this report, instead of being jailed, the “naïve” Birmingham teenager, Adil Rashid, was handed a suspended sentence in Nottingham Crown Court by Judge Michael Stokes, who said:

    Although chronologically 18, it is quite clear from the reports that you are very naive and immature when it comes to sexual matters.

The judge added that because Rashid was “passive” and “lacking assertiveness”, sending him to jail might cause him “more damage than good”.

Rashid admitted having sex with the girl, saying he had been “tempted by her” after they met online.

After they had had sex, Rashid returned home and went straight to a mosque to pray. He was arrested the following week after the girl confessed what had happened to a school friend, who informed one of her teachers.

He told police he knew the girl was 13 but said he was initially reluctant to have sex before relenting after being seduced.

Earlier the court heard how Rashid had “little experience of women”due to his education at an Islamic school in the UK, which cannot be named for legal reasons.

After his arrest, he told a psychologist that he did not know having sex with a 13-year-old was against the law. The court heard he found it was illegal only when he was informed by a family member.

January 25, 2013

Canada and the First Nations — separate nations, separate worlds

Filed under: Cancon, Government, Law — Tags: , , , , — Nicholas @ 13:56

In the Globe and Mail, Tom Flanagan explains why the Idle No More protestors insisted on negotiating with the Governor-General:

Actually, native leaders’ focus on the governor-general as the representative of the Crown is based not on a lack of information about the Constitution but on a different understanding of it. They know perfectly well that the prime minister and government of the day are installed by the political process of the nation of Canada, but they don’t see themselves as part of that process and that nation. They see themselves as separate nations, dealing with Canada on a “nation to nation” basis. They see the Crown as a governmental structure above Canada – and therefore the authority with whom they should deal.

Sovereign nations do not legislate for each other; they voluntarily agree to sign treaties after negotiations. The radical conclusion from this premise is that Parliament has no right to legislate for aboriginal people without first getting their consent. Hence the hue and cry about consultation and the demand to repeal those parts of the government’s Budget Implementation acts that allegedly impinge on aboriginal and treaty rights. Today’s claim is that Parliament had no right to amend the Indian Act and the Navigable Waters Protection Act before consulting with (read: getting the approval of) first nations. But the same claim could be made regarding any legislation, for all laws made by Parliament affect native people. Enforcement of the Criminal Code arguably affects aboriginal rights by putting large numbers of aboriginal people in jail, and so on.

This indigenist ideology is not new. It started to appear in the 1970s, as a reaction to Jean Chrétien’s 1969 White Paper, which proposed repealing treaties and abolishing the special legal status of Indians. In its usual well-meaning but sometimes witless way, the Canadian political class thought it could deal with the reaffirmation of indigenism through word magic. Adopt the vocabulary of the radicals. Start calling Indian bands “first nations.” Pretend to recognize their “inherent right of self-government” or even “sovereignty.”

January 21, 2013

Should Bilbo have consulted his solicitor?

Filed under: Books, Law, Media — Tags: , , — Nicholas @ 09:23

In Wired, James Daily analyzes the contract between Bilbo Baggins and Thorin’s company:

Ordinarily I don’t discuss legal issues relating to fictional settings that are dramatically different from the real world in terms of their legal system. Thus, Star Wars, Star Trek, Tolkien’s Middle Earth, etc. are usually off-limits because we can’t meaningfully apply real-world law to them. But the contract featured in The Hobbit: An Unexpected Journey was just too good a topic to pass up, especially since you can buy a high-quality replica of it that is over 5 feet long unfolded.

First, it seems fairly clear (to me, anyway) that Tolkien wrote the Shire (where hobbits live) as a close analog to pastoral England, with its similar legal and political structures. For example, the Shire has a mayor and sheriffs, and there is a system of inheritance similar to the common law. The common law fundamentals of contract law have not changed significantly since the time that the Shire is meant to evoke, so it makes sense that the contract would be broadly similar to a modern contract (and likewise that we could apply modern contract law to it).

So, without further ado, let’s get to it.

January 17, 2013

Borrowing from theoretical physics, we now have “Quantum Copyright”

Filed under: Books, Law, Media, USA — Tags: , , , — Nicholas @ 09:22

At Techdirt, Tim Cushing explores the legal phase changes that introduce heretofore unknown states of copyright:

Eric Hellman tackles the ambiguous nature of copyright infringement, especially as it pertains to the “region-free” aspects of the internet, in a post amusingly titled, “Heisenberg’s Uncertain Copyright.” (via The Digital Reader)

Hellman turns his attention to F. Scott Fitzgerald’s The Great Gatsby, and using his skills in the area of “Quantum Copyright” (a term he threw into his LinkedIn profile for a bit of fun), determines that the question of whether or not copyright infringement has occurred might depend on where the copying occurred, something that is even harder to define when the copying takes place via the internet.

[. . .]

While Hellman exaggerates the repercussions of making a hypothetical copy (the highest statutory claims would apply only to willful infringement [which this could be, especially when infringing in order to prove a hypothesis] and the jail time only applies to criminal infringement — which this almost certainly would not be), the fact remains that one deterrent of infringement is the underlying threat of legal action (whether civil or criminal). No doubt F. Scott Fitzgerald’s estate is in no hurry to give up the American rights (and the attendant enforcement of those rights), seeing as The Great Gatsby earned its author all of $8,400 during his lifetime — but generates $500,000 per year for his daughter. This secondhand largesse enjoyed by many heirs is one of the motivators behind the ever-extending copyright lengths here in this country.

[. . .]

Certainly, copyright-centered entities like the MPAA would prefer to simply have our copyright laws exported to other countries with less stringent laws, especially any sections that extend the length of copyright protection and weaken fair use/fair dealing exceptions. Getting other nations to sync up with our copyright lengths would certainly eliminate these hypothetical discussions, along with many items in the public domain. Many aspects of current copyright laws were written years ago, long before the internet made “country of origin” a meaningless term and reproductions as simple as a right-click on a mouse. What it usually boils down to, after all the discussion, is this:

    You could also be a cynic and say the only thing that matters is where the judge is sitting.

Much like fair use is often determined by a courtroom appearance, the “quantum” aspects of copyright are largely theoretical — right up to the point that someone finds themselves at the other end of an infringement lawsuit.

January 16, 2013

Prosecutorial abuse and the Swartz case

Filed under: Government, Law, USA — Tags: , , , , — Nicholas @ 13:05

Writing in the Guardian, Glenn Greenwald calls for reform in the way prosecutors are immune from any consequences of their misdeeds:

To begin with, there has been a serious injustice in the Swartz case, and that alone compels accountability. Prosecutors are vested with the extraordinary power to investigate, prosecute, bankrupt, and use the power of the state to imprison people for decades. They have the corresponding obligation to exercise judgment and restraint in how that power is used. When they fail to do so, lives are ruined — or ended.

The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless — or especially, as in Swartz’s case, those who challenge power — are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz’s office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.

This immunity for people with power needs to stop. The power of prosecutors is particularly potent, and abuse of that power is consequently devastating. Prosecutorial abuse is widespread in the US, and it’s vital that a strong message be sent that it is not acceptable. Swartz’s family strongly believes — with convincing rationale — that the abuse of this power by Ortiz and Heymann played a key role in the death of their 26-year-old son. It would be unconscionable to decide that this should be simply forgotten.

[. . .]

In most of what I’ve written and spoken about over the past several years, this is probably the overarching point: the abuse of state power, the systematic violation of civil liberties, is about creating a Climate of Fear, one that is geared toward entrenching the power and position of elites by intimidating the rest of society from meaningful challenges and dissent. There is a particular overzealousness when it comes to internet activism because the internet is one of the few weapons — perhaps the only one — that can be effectively harnessed to galvanize movements and challenge the prevailing order. That’s why so much effort is devoted to destroying the ability to use it anonymously — the Surveillance State — and why there is so much effort to punishing as virtual Terrorists anyone like Swartz who uses it for political activism or dissent.

The law and prosecutorial power should not be abused to crush and destroy those who commit the “crime” of engaging in activism and dissent against the acts of elites. Nobody contests the propriety of charging Swartz with some crime for what he did. Civil disobedience is supposed to have consequences. The issue is that he was punished completely out of proportion to what he did, for ends that have nothing to do with the proper administration of justice. That has consequences far beyond his case, and simply cannot be tolerated.

Update: Radley Balko‘s latest column is also on the topic of the public prosecutor.

The death of Internet activist Aaron Swartz has generated a lot of discussion about the power of prosecutors — particularly federal prosecutors. This is a good thing. The conversation is long overdue. But the discussion needs to go well beyond on Swartz and the Computer Fraud and Abuse Act.

Prosecutors have enormous power. Even investigations that don’t result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy. It has become an overtly political position — in general, but particularly at the federal level. If a prosecutor wants to ruin your life, he or she can. Even if you’ve done nothing wrong, there isn’t a whole lot you can do about it.

There are a number of factors that got us here, and it’s worth looking at them in turn.

January 13, 2013

“Please don’t pathologize this story”

Filed under: Law, Media, USA — Tags: , , , , — Nicholas @ 11:34

A plea for understanding, not just for the late Aaron Swartz, but also for the ethically broken justice system:

No doubt it is a certain crazy that brings a person as loved as Aaron was loved (and he was surrounded in NY by people who loved him) to do what Aaron did. It angers me that he did what he did. But if we’re going to learn from this, we can’t let slide what brought him here.

First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.

[. . .]

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Cory Doctorow has a heartfelt obituary up on Boing Boing.

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