Quotulatiousness

September 30, 2012

Innovative idea? Better get congressional approval before you go to market

Filed under: Bureaucracy, Law, Liberty, USA — Tags: , , , , — Nicholas @ 11:27

Radley Balko linked to this story on Twitter, nominating it for the most “incredibly dumb IP story of the day“. Hard not to agree, possibly even upping that nomination to “of the month” or possibly even “of the year”. Techdirt‘s Mike Masnick has the details:

One of the reasons why we live in such an innovative society is that we’ve (for the most part) enabled a permissionless innovation society — one in which innovators no longer have to go through gatekeepers in order to bring innovation to market. This is a hugely valuable thing, and it’s why we get concerned about laws that further extend permission culture. However, according to the former Register of Copyrights, Ralph Oman, under copyright law, any new technology should have to apply to Congress for approval and a review to make sure they don’t upset the apple cart of copyright, before they’re allowed to exist. I’m not joking. Mr. Oman, who was the Register of Copyright from 1985 to 1993 and was heavily involved in a variety of copyright issues, has filed an amicus brief in the Aereo case (pdf).

[. . .]

But he goes much further than that in his argument, even to the point of claiming that with the 1976 Copyright Act, Congress specifically intended new technologies to first apply to Congress for permission, before releasing new products on the market that might upset existing business models:

    Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.

This is, to put it mildly, crazy talk. He is arguing that anything even remotely disruptive and innovative, must first go through the ridiculous process of convincing Congress that it should be allowed, rather than relying on what the law says and letting the courts sort out any issues. In other words, in cases of disruptive innovation, assume that new technologies are illegal until proven otherwise. That’s a recipe for killing innovation.

If you’re not getting enough convictions on drug charges, tamper with the evidence at the lab

Filed under: Law, Liberty, USA — Tags: , , , , , — Nicholas @ 10:56

The war on drugs is already insane enough, with civil liberties being curtailed in pursuit of drug dealers and even drug users. The number of US citizens in prison for drug charges helps make the US one of the most-imprisoned societies in the world. But even with all that, things can still get worse, as this story from the Huffington Post shows:

“Annie Dookhan’s alleged actions corrupted the integrity of the entire criminal justice system,” state Attorney General Martha Coakley said during a news conference after Dookhan’s arrest. “There are many victims as a result of this.”

Dookhan faces more than 20 years in prison on charges of obstruction of justice and falsely pretending to hold a degree from a college or university. She testified under oath that she holds a master’s degree in chemistry from the University of Massachusetts, but school officials say they have no record of her receiving an advanced degree or taking graduate courses there.

State police say Dookhan tested more than 60,000 drug samples involving 34,000 defendants during her nine years at the Hinton State Laboratory Institute in Boston. Defense lawyers and prosecutors are scrambling to figure out how to deal with the fallout.

[. . .]

Verner said Dookhan later acknowledged to state police that she sometimes would take 15 to 25 samples and instead of testing them all, she would test only five of them, then list them all as positive. She said that sometimes, if a sample tested negative, she would take known cocaine from another sample and add it to the negative sample to make it test positive for cocaine, Verner said.

September 29, 2012

Regulating the size of soft drinks won’t solve the obesity problem, but will infringe on individual rights

Filed under: Food, Health, Law, Liberty, USA — Tags: , , , , , — Nicholas @ 10:41

At Reason, Baylen Linnekin explains that even if all the claims about the nutritional evils of sweetened soft drinks are completely true, regulations will not actually make much difference:

As an opponent of increased regulations, I find these latter scientific points noteworthy. But I also believe that even if sugar-sweetened drinks turn out to be virtually everything their opponents claim, people still have a right to buy and drink these beverages — just as much, as I argued in a recent Bloggingheads debate, as they have a right to buy a Big Mac. After all, we don’t have a right to free speech or to travel from one state to another because speech or travel has been proven by the scientific community to promote good health.

But suppose, for the sake of argument, I was to take at face value the assertions of those who claim the NEJM studies justify some combination of sugary drink taxes and bans.

There is still this problem: The solutions these advocates propose won’t likely solve the problem of obesity. For example, studies have suggested taxes will have little or no impact on obesity. And not one person has (to the best of my knowledge) even attempted to argue that soda bans would have any specific impact, either — unless one counts “sending a message” or “creating a debate” as conditions precedent to weight loss.

There is also the issue of a genetic predisposition, which again is one finding of the studies. Many people are genetically predisposed to certain food allergies — including soy, dairy, gluten, nuts, and seafood — and food intolerances. I have never seen a researcher or AP journalist like Marchione argue seriously that the widespread impact of food allergies “adds weight to the push for taxes” on wheat, tofu, and shrimp. Yet if one were to buy the argument of those calling for taxes and bans to combat consumption of sugary drinks in light of the NEJM studies, one would have to accept the idea of taxing society writ large based largely on the outcomes of what these researchers argue is a genetic condition.

September 23, 2012

Canada is open for (shady) business

Filed under: Business, Cancon, Law — Tags: , , , — Nicholas @ 10:03

The Economist looks at the relative level of difficulty in setting up a shell corporation in various jurisdictions and how easy it is to create an untraceable shell:

Shell companies — which exist on paper only, with no real employees or offices — have legitimate uses. But the untraceable shell also happens to be the vehicle of choice for money launderers, bribe givers and takers, sanctions busters, tax evaders and financiers of terrorism. The trail has gone cold in many a criminal probe because law enforcers were unable to pierce a shell’s corporate veil.

The international standard governing shells, set by the inter-governmental Financial Action Task Force (FATF), is clear-cut. It says countries should take all necessary measures to prevent their misuse, such as ensuring that accurate information on the real (or “beneficial”) owner is available to “competent authorities”. More than 180 countries have pledged to follow it. A study* scrutinises the level of compliance worldwide. The results are depressing.

Posing as consultants, the authors asked 3,700 incorporation agents in 182 countries to form companies for them. Overall, 48% of the agents who replied failed to ask for proper identification; almost half of these did not want any documents at all. Contrary to conventional wisdom, providers in tax havens, such as Jersey and the Cayman Islands, were much more likely to comply with the standards than those from the OECD, a club of mostly rich countries. Even poor countries had a better compliance rate, suggesting the problem in the rich world is not cost but unwillingness to follow the rules (see chart). Only ten out of 1,722 providers in America required notarised documents in line with the FATF standard.

September 19, 2012

Jacob Sullum on the legacy of Thomas Szasz

Filed under: Health, Law, Liberty — Tags: , , , — Nicholas @ 08:48

Jacob Sullum‘s post on the influence the late Thomas Szasz had and continues to have:

The idea that psychiatry became scientifically rigorous soon after Szasz first likened it to alchemy and astrology is hard to take seriously. After all, it was not until 1973 that the American Psychiatric Association (APA) stopped calling homosexuality a mental disorder.

More often, psychiatry has expanded its domain. Today it encompasses myriad sins and foibles, including smoking, overeating, gambling, shoplifting, sexual promiscuity, pederasty, rambunctiousness, inattentiveness, social awkwardness, anxiety, sadness, and political extremism. If it can be described, it can be diagnosed, but only if the APA says so.

[. . .]

For more than half a century, Szasz stubbornly highlighted the hazards of joining such a fuzzy, subjective concept with the force of law through involuntary treatment, the insanity defense, and other psychiatrically informed policies.

Consider “sexually violent predators,” who are convicted and imprisoned based on the premise that they could have restrained themselves but failed to do so, then committed to mental hospitals after completing their sentences based on the premise that they suffer from irresistible urges and therefore pose an intolerable threat to public safety. From a Szaszian perspective, this incoherent theory is a cover for what is really going on: the retroactive enhancement of duly imposed sentences by politicians who decided certain criminals were getting off too lightly — a policy so plainly contrary to due process and the rule of law that it had to be dressed up in quasi-medical, pseudoscientific justifications.

Szasz specialized in puncturing such pretensions. He relentlessly attacked the “therapeutic state,” the unhealthy alliance of medicine and government that blesses all sorts of unjustified limits on liberty, ranging from the mandatory prescription system to laws against suicide.

Hawaii Five-0, the most unrealistic cop show yet

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

As usual, Gregg Easterbrook’s weekly NFL column contains a fair bit of non-football stuff. This week, he spends a bit of time detailing just how unrealistic the rebooted TV show Hawaii Five-0 is. It’s a rather overwhelming list of unlikely, unrealistic, and just plain silly TV:

All action shows contain some nonsense. As the television critic James Parker has noted, an action series that consists entirely of nonsense is an art form. Parker thought 24 was an achievement in that sense. Inheriting this mantle is the reimagined Hawaii Five-0, whose third season kicks off Monday. Five-0 has emerged as television’s most entertaining delivery system for pure nonsense.

An episode begins with a prisoner on a commercial flight killing the U.S. marshal escorting him. The murder weapon? I am not making this up: Two plastic airline knives held together with a rubber band. Passengers were unaware a murder was in progress onboard, because the marshal inexplicably did not fight back or cry out, although it would take quite a while — probably hours — to kill someone using two plastic airline knives held together with a rubber band.

[. . .]

On Hawaii Five-0, a small group of cops has an omniscient supercomputer the CIA would envy. Plots regularly involve automatic-weapons fire on the streets of Honolulu. The Aliiolani Hale, a Hawaii landmark, is presented as the secret headquarters of Five-0, as if a Washington, D.C., detective show presented the Washington Monument as a secret headquarters. “I confer on you blanket immunity from prosecution, so you can go outside the law to stop crime,” the governor tells McGarrett. Gov, think about what you just said! Not even Oliver North had advance immunity.

There’s a long list of laughable TV cop tropes, including the inability of bullets to even slow down Five-0 agents, immortal super bad guys, better-than-SF crime-solving technology, plus the usual imaginary laws, ignoring both common sense and the laws of physics, and so on. But he also points out a serious flaw in most modern TV representation of police and other law enforcement activities:

On TV, cops in street clothes just say, “Police” or “NYPD,” and instantly are believed. In a CSI: Miami episode, the David Caruso character, asked to prove he is a cop, dismissively waves his badge too far away to be seen. In a Five-0 episode, a person being questioned asks McGarrett for proof of who he is. “This is all the proof you’re going to get,” McGarrett snaps, flashing his badge so briefly no one could know whether it was real, let alone read his name.

Why do TV script writers promote the idea that it is unreasonable to ask law enforcement officers to establish identity? No honest cop objects to this. Fake badges can be purchased in a costume store, and criminals pretending to be police are a long-standing problem. If a guy banged on the door of a Hawaii Five-0 producer, claiming to be a detective but refusing to show ID, that producer surely would dial 911.

Of course action shows are preposterous. But it is troubling that television crime dramas imply that law enforcement officers should never be questioned. Why does Hollywood think this is a notion the American public should be force fed?

September 18, 2012

Jaywalking in LA County: a capital offence

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 11:06

A very disturbing story at the Simple Justice blog:

Jonathan Cuevas was a jaywalker. That’s right, a jaywalker. And jaywalking is an offense. This means that those who are of the view that the simple solution to whatever stems from the commission of an offense is, by definition, justified. After all, Cuevas chose to jaywalk. He chose to commit the offense. So he has no one to blame for his killing than himself.

And if this is what you think, then you have lost any shred of humanity.

[. . .]

The gun is a red herring. Notwithstanding the fact that the video fails to show anything remotely suggesting that Cuevas pulled it on the unnamed deputy, and despite the absurdity of such a claim, he was shot, again and again, in the back as he ran away. There is no theory to explain an officer in fear from a person’s back as he ran away. This, of course, didn’t stop the police from asserting with absolute certainty that it happened.

Yet, there is not only a lack of focus on what is clearly shown in the video, but the possibility that it was wrong to execute Jonathan Cuevas for the heinous offense of jaywalking was dismissed because the police and district attorney “investigated.” After all, if they investigated and decided that this was a righteous shoot, what more is there to say?

September 17, 2012

The chilling of free speech: corporate defamation suits

Filed under: Australia, Business, Cancon, Law — Tags: , , , — Nicholas @ 13:07

An interesting article in the Toronto Star looks at the idea of reducing the ability of corporations to launch SLAPP lawsuits against private citizens:

Fed up with suits like this (sometimes called Strategic Lawsuits Against Public Participation, or SLAPPs), Australia changed its laws to prevent most corporations from being able to sue for defamation. Canada’s provinces should do the same.

Canada is no stranger to SLAPPs. For example, when Mark Prince created a website inviting people to describe their customer service experiences with Future Shop, he was threatened with a defamation suit. On the advice of a lawyer, Prince shut the site down. It wasn’t that what he’d done was necessarily defamation, but it would simply have cost too much to defend himself.

Cases like this highlight the fact that defamation is easy to allege and hard to defend. Those who claim to have been defamed need only prove that the defendant published something about them to at least one other person, and that a reasonable person would think less of them as a result. Plaintiffs do not have to prove they suffered any actual loss to their reputation, or that the statement was false. Instead much of the burden falls to defendants to prove a defence, such as that the statement was true.

As a result, most people will retract or apologize, even if a statement is true, rather than spend a small fortune defending their right to say it. This chilling effect doesn’t only affect individuals; the news media’s publishing decisions are also influenced by defamation law.

H/T to Bob Tarantino for the link:

September 16, 2012

Nebraska: same penalty for manslaughter and for operating a business without a license

Filed under: Bureaucracy, Business, Law, USA — Tags: , , — Nicholas @ 00:05

Nebraska sure is harsh on people who operate unlicensed businesses. Or they’re really soft on those who commit manslaughter:

The libertarian public-interest law firm Institute for Justice reports on one of the most insane, inane, and profane prosecutions in all-time memory.

Karen Hough is a long-time practitioner of “equine massage,” which supposedly is beneficial in all sorts of ways to the animals in question.

[. . .]

A few weeks later, she received a letter from Nebraska’s Department of Health and Human Services ordering her to “cease and desist” from the “unlicensed practice of veterinary medicine.” In Nebraska, continuing to operate a business without a license after getting a cease and desist letter is a Class III felony. So Karen could face up to 20 years in prison and pay a $25,000 fine. By comparison, that’s the same penalty for manslaughter in the Cornhusker State.

Nebraska isn’t a place that shows up in the news very often: I’ve posted nearly 5,000 entries here at the blog, and this is the first time I’ve needed to tag anything “Nebraska”.

September 13, 2012

Submarines for the drug trade

Filed under: Americas, Law, USA — Tags: , , , , , , — Nicholas @ 08:26

The drug gangs in south and central America are becoming quite sophisticated in their attempts to get their products to the eager US consumer. One of the more technological developments is the drug-running submarine:

Despite losing nearly a hundred of these vessels to U.S. and South American naval forces (and dozens more to accidents and bad weather) the drug gangs have apparently concluded that the subs are the cheapest and most reliable way to ship the drugs. It’s currently estimated that over 80 percent of the cocaine smuggled into the United States leaves South America via these submarines or semi-submersible boats.

Most of these craft are still “semi-submersible” type vessels. These are 10-20 meter (31-62 foot) fiberglass boats, powered by a diesel engine, with a very low freeboard, and a small “conning tower” providing the crew (of 4-5), and engine, with fresh air and permitting the crew to navigate. A boat of this type was, since they first appeared in the early 1990s, thought to be the only practical kind of submarine for drug smuggling. But in the last decade the drug gangs have developed real submarines, capable of carrying 5-10 tons of cocaine that cost a lot more and don’t require a highly trained crew. These subs borrow a lot of technology and ideas from the growing number of recreational submarines being built.

[. . .]

The submarines that have been captured have, on closer examination, turned out to be more sophisticated than first thought. The outer hulls are made of strong, lightweight Kevlar/carbon fiber that is sturdy enough to keep the sub intact but very difficult to detect with most sensors. The hulls cannot survive deep dives but these boats don’t have to go deep to get the job done. The diesel-electric power supply, diving and surfacing system, and navigational systems of captured subs was often in working order. It was believed that some of those who built these boats probably had experience building recreational subs. The sub builders also had impressive knowledge of the latest materials used to build exotic boats. It had already become clear that something extraordinary was happening in these improvised jungle shipyards.

Ecuadoran police found the first real diesel-electric cocaine carrying submarine two years ago. It was nearly completed and ready to go into a nearby river, near the Colombian border, and move out into the Pacific Ocean. The 23.5 meter (73 foot) long, three meter (nine feet) in diameter boat was capable of submerging. The locally built boat had a periscope, conning tower, and was air conditioned. It had commercial fish sonar mounted up front so that it could navigate safely while underwater. There was a toilet on board but no galley (kitchen) or bunks. Submarine experts believed that a five man crew could work shifts to take care of navigation and steering the boat. The boat could submerge to about 16 meters (50 feet). At that depth the batteries and oxygen on board allowed the sub to travel up 38 kilometers in one hour, or at a speed of 9 kilometers an hour for 5-6 hours. This would be sufficient to escape any coastal patrol boats that spotted the sub while it moved along on the surface (its normal travel mode). The boat could also submerge to avoid very bad weather. The sub carried sufficient diesel fuel to make a trip from Ecuador to Mexico. There was a cargo space that could hold up to seven tons of cocaine.

Falkvinge: Child porn laws are insane

Filed under: Law, Media, USA — Tags: , , , , , , — Nicholas @ 08:13

People are generally sensible, but even sensible people can demand bad laws get passed by their governments. Child porn laws in the United States are an example of not merely bad laws, but insane laws. Rick Falkvinge follows up an earlier article:

A common protest to my article was that prosecution of people who record evidence of child abuse, or of teenagers doing things voluntarily, “would absolutely never happen”. The arguments went along these lines:

    It would be absolutely insane for the law to say this, and since the law can’t possibly be that insane, you must be wrong. Therefore, you’re an evil person for writing this opinion.

The problem is that I agree with these people: it would be absolutely insane for the law to say the examples I gave, and that the law says exactly that, so the law is indeed that insane. I understand the disbelief, so I’ll be returning to that shortly and list how it has already happened. But first, let’s take a look at what happens when you document evidence of a couple of types of very serious crimes:

  • If you film a police abuse situation to get evidence and show it to the world so the power abusers can get caught, you’re a hero to the level that your film can cause riots.
  • If you document a genocide in enough detail that your evidence can bring perpetrators to justice, you’re a worldwide hero.
  • If you film wartime killings, people will risk their lives — and sometimes die — to bring your evidence and documentation to news studios.
  • If you risk being beaten up by covertly filming a street battery and assault, you’re welcomed with open arms by the police when you hand over the evidence you produced. (I personally did this, for the record.)
  • If you film something as serious as a presidential assassination, people will watch the film over and over and over again and your name will go down in history for centuries.
  • If you film a rapist of a minor to get evidence in order to bring the sick, twisted bastard to justice, you’re the bad guy and will get a worse sentence than the rapist you attempt to bring to justice and jail.

[. . .]

As I described in my last post, these laws were constructed by Christian-fundamentalist pressure groups with the intent of criminalizing normal teenage behavior, and the side effect of protecting child molesters from prosecution, under the pretext of protecting children. I find that completely unacceptable. Outrageous, actually.

September 11, 2012

Manufacturers may follow the music industry pattern

Filed under: Business, Law, Liberty, Technology — Tags: , , , , , — Nicholas @ 00:03

An interesting article in The Economist:

As an expert on intellectual property, Mr Weinberg has produced a white paper that documents the likely course of 3D-printing’s development — and how the technology could be affected by patent and copyright law. He is far from sanguine about its prospects. His main fear is that the fledgling technology could have its wings clipped by traditional manufacturers, who will doubtless view it as a threat to their livelihoods, and do all in their powers to nobble it. Because of a 3D printer’s ability to make perfect replicas, they will probably try to brand it a piracy machine.

[. . .]

As with any disruptive technology — from the printing press to the photocopier and the personal computer — 3D printing is going to upset existing manufacturers, who are bound to see it as a threat to their traditional way of doing business. And as 3D printing proliferates, the incumbents will almost certainly demand protection from upstarts with low cost of entry to their markets.

Manufacturers are likely to behave much like the record industry did when its own business model — based on selling pricey CD albums that few music fans wanted instead of cheap single tracks they craved — came under attack from file-swapping technology and MP3 software. The manufacturers’ most likely recourse will be to embrace copyright, rather than patent, law, because many of their patents will have expired. Patents apply for only 20 years while copyright continues for 70 years after the creator’s death.

[. . .]

In that, the record industry was remarkably successful. Today, websites and ISPs have to block or remove infringing material whenever they receive a DMCA takedown notice from a copyright holder — something that happens more often than actually justified. Google reckons that more than a third of the DMCA notices it has received over the years have turned out to be bogus copyright claims. Over a half were from companies trying to restrict competing businesses rather than law-breakers.

Rallying under the banner of piracy and theft, established manufacturers could likewise seek to get the doctrine of “contributory infringement” included in some expanded object-copyright law as a way of crippling the personal-manufacturing movement before it eats their lunch. Being free to sue websites that host 3D design files as “havens of piracy” would save them the time and money of having to prosecute thousands of individuals with a 3D printer churning out copies at home.

September 10, 2012

Extending the state’s say in private decision-making

Filed under: Britain, Law, Liberty — Tags: , , , , , — Nicholas @ 09:55

Barbara Hewson on recent legal developments in Britain which extend the state’s ability to interfere in the private lives of adults:

For centuries, the High Court has claimed an ‘inherent jurisdiction’ to take care of the persons and property of those who could not look after themselves. This power covers minors and wards of court, as well as adults who lack mental capacity. It originates in an ancient Crown Prerogative, going back to feudal times (1). But in a little-noticed legal development, some judges of the Family Division have started to claim an ‘inherent jurisdiction’ over the lives of adults in full possession of their faculties.

This is a disturbing trend. These rulings are given at private hearings. Parliament, the public, and indeed the Ministry of Justice, are none the wiser. The problem, at base, is a constitutional one. Our judges are unelected, and are not supposed to make laws. That is parliament’s function.

Parliament has said that people become adults at age 18 (2). Most people think that the point of reaching adulthood is that you get to decide where you live, and who your friends are. If you make unwise decisions, that is unfortunate, but it is not a basis for the authorities to intervene. However, last March, in a case called ‘DL’, the Court of Appeal said that the High Court is entitled to disregard adult decision-making (3).

[. . .]

Judges of the Family Division of the High Court have been seduced by what Frank Furedi has called ‘the fatalistic sociology of the precautionary principle’. This views all human beings as innately powerless, vulnerable and at risk (7). And if to be at risk is a condition of life, then everyone becomes a legitimate target of judicial intervention and protection. This refusal by the courts to acknowledge adults as self-determining agents has ominous implications for liberty and the law.

September 8, 2012

Fifty shades of legal action

Filed under: Books, Humour, Law, Media — Tags: , , , — Nicholas @ 11:45

This is just too amusing not to share:

September 7, 2012

Jesse Kline: Consumers the biggest losers in Apple-Samsung battle

Filed under: Business, Law, Technology — Tags: , , , , — Nicholas @ 00:07

In the National Post, Jesse Kline points out that the grubby legal dispute between Apple and Samsung may end up hurting the consumer much more than either of the combatants:

Software is unique because it is covered under both copyright and patent law. Computer software is written in a human-readable language, called source code, that is then translated by the computer into something the machine can understand. Much like writing a book, or newspaper article, source code is automatically covered under copyright law.

But no one is alleging that Samsung copied Apple’s code. What Samsung was sued for was achieving the same outcome as Apple, even though it was done in a different way. In this literary world, this would be akin to someone being sued for violating the copyright on Harry Potter, just because they wrote their own story about a boy wizard.

Intellectual property laws are supposed to encourage innovation by allowing companies and individuals to profit off works that may have cost a significant amount of money to develop. Apple says it was undercut in price because its competitor simply copied its design. In actual fact, Android was cheaper to produce because it is based on the open source Linux operating system, which saved money compared to Apple proprietary system.

For its part, Samsung accuses Apple of resorting “to litigation over market competition in an effort to limit consumer choice.” It’s one thing for the legal system to protect new inventions and original works, but this is quite clearly a case of a company engaging in anti-competitive behaviour.

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