Quotulatiousness

November 4, 2012

Rethinking software patents

Filed under: Business, Law, Technology — Tags: , , , , , — Nicholas @ 00:01

Software patents are becoming a clear and present danger to innovation:

The basic problem being that there are so many patents, covering so many things, that the system is in danger of eating itself like Ourobouros.

    When Dan Ravicher of the Public Patent Foundation studied one large program (Linux, which is the kernel of the GNU/Linux operating system) in 2004, he found 283 U.S. patents that appeared to cover computing ideas implemented in the source code of that program. That same year, it was estimated that Linux was .25 percent of the whole GNU/Linux system. Multiplying 300 by 400 we get the order-of-magnitude estimate that the system as a whole was threatened by around 100,000 patents.

    If half of those patents were eliminated as “bad quality” — i.e., mistakes of the patent system — it would not really change things. Whether 100,000 patents or 50,000, it’s the same disaster. This is why it’s a mistake to limit our criticism of software patents to just “patent trolls” or ”bad quality” patents. In this sense Apple, which isn’t a “troll” by the usual definition, is the most dangerous patent aggressor today. I don’t know whether Apple’s patents are “good quality,” but the better the patent’s “quality,” the more dangerous its threat.

It’s near impossible to develop new software when there are so many such patents out there. Further, even if you tried to get clearance (or signed up to licenses and so on) to use them it would be near impossible.And we do need to recall what the purpose of a patent system is. No, it isn’t to provide and income to those who create inventions. That’s only the proximate aim: the ultimate aim is to maximise the amount of invention and innovation.

The economics of patents accepts that there is a tradeoff here. Yes, we’d like people who come up with useful new things to make money. Because that incentivises people to work on coming up with interesting new things to all our benefit. However, we also want people to be able to create derivative innovations and inventions. If our protection of the original inventors is too strong then we limit this. What we want is a system that hits the sweet spot, of encouraging the maximum amount of both, original and derivative. The problem of course being that to encourage one we weaken the incentives to do the other, either way around.

November 3, 2012

Contract law and brown M&Ms

Filed under: Business, Law, Media — Tags: , , — Nicholas @ 09:40

What is it about Van Halen and their notorious demand for non-brown M&Ms in their contracts? It’s actually rather clever:

Take Van Halen, for example. On the surface, the group is famous not only for its music but also for stunts such as trashing green rooms over the presence of brown M&Ms, and it’s easy to write off such behavior as simply being symptomatic of a 1980’s rock diva mentality. In reality, however, the brown M&Ms served an important purpose from a contracting perspective.

Think about it- wouldn’t it be nice to have an easy way to observe whether your counterparty has paid attention to all of the details of a complicated contract? As it turns out, the brown M&Ms served exactly this function. [. . .]

Since Van Halen’s (long) tour rider stipulated M&Ms with the brown ones taken out, the group knew that they needed to double check a lot of safety items for the show if they saw brown M&Ms (or no M&Ms, for that matter) in the backstage area. They also knew that they could feel comfortable that the contract provisions had been fulfilled if they saw a bowl of M&Ms with the brown ones removed. (I’m pretty sure that trashing stuff was for some combined purpose of making the incident memorable and entertaining one’s self.) This is pretty smart, since it’s far more efficient to use this as a signal (the canary in the coal mine, in a way) rather than go around and check everything at each show. It’s even smarter that the signal was crafted in the fashion of typical rock star douchebaggery so as to not arouse suspicion.

October 30, 2012

Pushing for “medical marijuana” makes full legalization less likely

Filed under: Health, Law, Liberty, USA — Tags: , , , , , , , — Nicholas @ 09:05

L. Neil Smith makes the point that supporters of medical marijuana may be missing:

What I do mind — and perhaps I am alone in this, who knows? — is weak and disingenuous politics with regard to drugs. It was the issue of “medical marijuana” that first got my goat this way. I don’t doubt for a microsecond that the weed makes life easier and longer for those suffering certain diseases, and I believe that those who would deny them that relief are little better than scavengers on the misery of others.

But observation — and my knowledge of history and human nature — suggests that the majority of those who advocate the legalization of pot “purely for medicinal purposes” do not require it for that reason. They simply want to slip the nose of their personal camel under the edge of the tent, and I find that approach sneaky, dishonest, and cowardly.

I believe that if they had spent the past fifty years pushing the Ninth Amendment right to roll up and smoke whatever frigging vegetable you wish, marijuana would be legal now, and there would not have been a “War On Drugs” handy for the psychopathetic enemies of liberty to transform into a War on Everything, including the American Productive Class.

I think we’ve seen the high point for medical marijuana. The proof of that lies in a current initiative to “Regulate Marijuana Like Alcohol”, on the ballot in my home state of Colorado this year. The title says it all, although the details could be gruesome, ending in a mess found in some states and all military bases, where the government runs the liquor stores (about as well as they run everything else). In the Air Force, when I was growing up, some officious snoops regularly examined the records of the store and your commanding officer would get a tattletale letter if they thought that you were buying too much booze.

Whatever that amounts to.

This is not a kind of progress any that real libertarian would recognize. The fact that advocates of the measure make a major selling point of taxing the stuff only makes it worse, both in principle and practice. First, by what right does anybody steal money from me when I choose to spend it on some things and not on others. Furthermore, when I was just entering college, a smoker could buy a pack of Marlboros out of a machine for 35 cents. Today, the price per pack is nudging five dollars, and only a small fraction of that is attributable to inflation.

Exactly the same thing will happen with marijuana.

October 27, 2012

An argument against further publicizing the Jimmy Savile victims

Filed under: Britain, Law, Media — Tags: , , , , , — Nicholas @ 09:59

At the Huffington Post, Brendan O’Neill points out that with Savile dead, the hue-and-cry to round up all the alleged victims and have them pour out their stories will not actually benefit anyone except the “theraputic industry”:

The victims themselves don’t get much out of it, since they are cajoled into reliving unpleasant things that happened decades ago. Worse, they’re publicly branded as damaged, as permanently scarred, despite the fact that many of them will have led full, interesting lives since that one time a dirty old man did something bad to them.

They are immortalised as one of Jimmy’s Victims, and in the process they are dehumanised, turned from rounded, complex individuals into simply sufferers.

Justice doesn’t benefit from these revelations, either, since Savile is dead and cannot be found guilty of anything. It is virtually impossible to prove beyond reasonable doubt that the allegations against him are true, because, in a civilised society at least, the dead cannot be put on trial. Which raises the question of why so many of the police’s resources are being pumped into gathering more and more Savile abuse stories.

And society as a whole doesn’t benefit from the open invitation to every person who had a bad encounter with Savile to reveal all. In fact, society, the big communal space we all inhabit, looks set to be the biggest loser in all this.

The Savile scandal will further dent social solidarity. The promotion of the idea that paedophiles lurk everywhere, that, in the words of the deputy children’s commissioner Sue Berelowitz, “There isn’t a town, village or hamlet in which children are not being sexually exploited”, will exacerbate today’s climate of suspicion and mistrust. The now widely accepted idea that there were “paedophile networks” at the Beeb, in the NHS, even around Parliament, will ratchet up already high levels of public cynicism towards institutions and the political sphere.

October 25, 2012

“[W]e are now fully entered into a post-democratic era here in KanuckiHarperStan”

Filed under: Cancon, Law — Tags: , , — Nicholas @ 12:37

Paul “Inkless” Wells points out that the hyperventilation over the Supreme Court of Canada’s decision in the Etobicoke Centre election case is just a tad overblown:

There was some chatter on Twitter this morning, after the Supreme Court ruled to uphold the election results in Etobicoke Centre, to the effect that Stephen Harper has finally succeeded in stacking the top court with corrupt thugs and we are now fully entered into a post-democratic era here in KanuckiHarperStan. My hunch is that this overstates things.

First, this was actually the Harper government’s first good day at the Court in a while. The Supremes have more often been in the habit of handing Harper trouble, as with the Insite supervised-injection site case and Jim Flaherty’s dead-parrot project for a national securities regulator. In those highest of high-profile cases, Harper appointees concurred with their colleagues in unanimous judgments.

Today there was division, and it didn’t follow partisan lines neatly. (I’ll cut to the chase: I think it’s simplistic to presume a justice appointed by a given PM will consistently rule in ways that please that PM. This has simply never been the case in Canada, to the dismay of a succession of prime ministers.)

October 23, 2012

The law, sexting, and shady website operations

Filed under: Britain, Law, Media, Technology — Tags: , , , , — Nicholas @ 14:41

Tim Worstall discusses the weird and disturbing online world of sexting teens, parasitical porn websites and the insanity of our current laws on the topic:

… the legal problems go much further than just young people losing control of images of themselves.

For we’re in the middle of a social hysteria over child pornography and paedophilia. And as is usual in such hysterias reactions desperately overshoot. For example, in my native UK it is entirely legal for a 16 year old girl to have sex with whichever consenting also 16 years or above human she wishes. Any thing from removing her top for her lover’s delectation through to any perversion you might care to think about. However, if said lover, with her full permission, takes a photograph of her without her bikini top on this is child pornography. Yes, even if they’ve been lovers for nearly two legal years a topless photograph of her at 17 and 364 days old is child porn. And it is here that the real legal problems start.

[. . .]

It gets worse, too. The general assumption in the law these days is that a picture on a computer is production of child pornography, not possession of it. The reasoning is that, before you looked at the picture there was one copy, on the server. Now, as you look at the picture, there are two. One on the server, the other in your browser (or cache, whatever). Thus there are now two pictures, you have made one of them therefore you are producing child pornography. And it’s not all that much of a surprise to find that the penalties for the production as opposed to the possession of such are markedly stronger.

Unnamed band about to get big media exposure through the “Streisand Effect”

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

Ken at Popehat is looking for pro bono legal help for a music fan site that after years of faithful service to an unnamed band is now being “cease-and-desist”-ed by the band’s new management:

It’s time to put out the Popehat Signal on behalf of a threatened web site.

Today, I’m looking for pro bono help (or help at a modest rate) for the proprietor of a fansite for a band. The proprietor of the fansite has been running it for years, promoting the band and its appearances to its fans. Apparently the members of the band knew of this and were cool with it — until recently, when they hired new management, who used a Los Angeles area attorney to send a threatening cease-and-desist issue.

One has to assume that $BAND (or more likely the new management team) has never heard of the Streisand Effect, because they’re risking a classic case of it through this kind of action.

The Streisand effect is the phenomenon whereby an attempt to hide or remove a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the internet. The term is a modern expression of the older phenomenon that banning or censoring something often makes that item or information more desirable, and leads to it being actively sought out to a greater extent than it would have otherwise been.

It is named after American entertainer Barbra Streisand, whose attempt in 2003 to suppress photographs of her residence inadvertently generated further publicity. Similar attempts have been made, for example, in cease-and-desist letters, to suppress numbers, files and websites. Instead of being suppressed, the information receives extensive publicity and media extensions such as videos and spoof songs, often being widely mirrored across the Internet or distributed on file-sharing networks.

The tweet police are watching you

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

In sp!ked, Patrick Hayes points out that you don’t need to agree with — or have any sympathy for — BNP party leader Nick Griffin to recognize that the “twitch-hunt” against him is a very bad sign for all of us:

Nick Griffin, leader of the far-right British National Party (BNP), currently has 19,356 followers on Twitter. Given the events of the past week, it seems many of these are not following Griffin because they enjoy his rants on anything from fracking to Islamists. Rather, the majority are following him in order to monitor his newsfeed, seemingly just waiting for an opportunity to report him to the police for offensive tweets.

[. . .]

Without doubt, tweeting the address of a gay couple, and threatening to give them ‘a bit of drama’ in the form of a demonstration, is an idiotic thing to do. But did anyone really think that a militant wing of the BNP was going to swoop down to Huntingdon and pay the sixtysomething gay couple a visit? Certainly not the couple themselves, whose chilled-out approach — as Brendan O’Neill has pointed out in his Telegraph blog — contrasts sharply with the hysteria of the Twittermob. Any demo, the couple said, would be a ‘damp squib’. Furthermore, ‘it would be difficult for people to gather as we live in a small village and there’s nowhere to park’.

Such cool reasoning was not shared by members of the Twittersphere, or by some gay-rights campaigners. In the words of a spokesperson for gay-rights group Stonewall, Griffin’s behaviour was ‘beyond words, unbelievably shocking. It is a real example of the hatred still out there towards gay people.’

‘Out there’ — it is a revealing phrase. It seems that this Twitter-stoked furore is not just about the loon Griffin, who has for many years developed notoriety for spouting offensive rubbish. It speaks also to the fear of some sort of silent, bigoted majority that Griffin supposedly represents. All it takes, it seems, is a tweet from Fuhrer Griffin and the gay-bashing hordes will arise. They won’t, of course, because they don’t exist. Yet, that someone widely known as a bit of a nutjob is seen as a ‘real example’ of hatred towards gays says more about a culture of offence-seeking than actual attitudes towards homosexuals in twenty-first century Britain.

October 18, 2012

Reason.tv: Are We In the Final Days of Marijuana Prohibition?

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 16:44

“There’ a rising tide of acceptance of the fact that people are going to smoke marijuana, and it’s like the prohibition against alcohol in the 1930s. There’s a recognition that perhaps the laws are causing more harm than the drugs themselves,” says Rick Steves, author and travel host.

Steves and others attended “The Final Days of Prohibition” conference in downtown Los Angeles in early October. The conference was put on by the National Organization for the Reform of Marijuana Laws (NORML), and Reason TV was on the scene to ask about the future of marijuana laws in the U.S., particularly in the upcoming election where the states of Oregon, Washington, and Colorado all have marijuana legalization initiatives on the ballot.

Taking “blaming the victim” to school

Filed under: Bureaucracy, Education, Law, USA — Tags: , , — Nicholas @ 12:21

The incident would probably make newspaper headlines anyway — “Middle school students find picture of topless teacher on school iPad” — but only in a crazy world are the kids punished for the teacher’s goof-up:

Some students at Highland Middle School in Anderson, Ind., got a peek of their teacher’s bare breasts on a school-issued iPad while in class.

Those students have been suspended and threatened with expulsion.

The school district said it has taken action against the teacher, but they wouldn’t specify what action, only that she is still a member of the school staff.

“The picture showed up of the teacher topless,” said Joshua Troutt, 13, describing the incident that occurred at Highland Middle School.

He and three other students were in their classroom, playing a game on a school-issued iPad.

He said one of the students pressed a button, and a photograph with his teacher’s bare chest was revealed.

“It’s not our fault that she had the photo on there,” Troutt said. “We couldn’t do anything not to look at it, if it just popped up when he pressed the button. It was her fault that she had the photo on there. Her iPhone synched to it. She had to have pressed something to make all of her photos synch on there.”

In which insane universe is this the kids’ fault?

The rise of Britain’s cybercensors

Filed under: Britain, Law, Liberty, Media, Technology — Tags: , , — Nicholas @ 00:01

Brendan O’Neill in Reason on the sad state of online freedom of speech in Britain:

What country has just sentenced a man to eight months in prison for wearing an anti-police t-shirt, and another man to three months in prison for telling an “abhorrent” joke on Facebook? Iran, perhaps? China? No, it’s Britain.

Something has gone horribly wrong in Britain in recent years. The birthplace of John Milton (“Give me the liberty to know, to utter, and to argue freely according to conscience”), and John Stuart Mill (“Every man who says frankly and fully what he thinks is so far doing a public service”), has become a cesspit of censoriousness.

The frequency with which the police and legal system now throw into jail anyone judged to have committed a “speech crime” is alarming.

On October 11, Barry Thew, a 39-year-old man from Manchester, was sentenced to eight months in jail—eight months!—for the crime of wearing a t-shirt that said, “One less pig — perfect justice”.

[. . .]

Social-networking sites are being subjected to the most stringent censorship. In July, a 17-year-old boy was arrested and questioned by police after he sent insulting tweets to British Olympic diver Tom Daley. The 17-year-old was spared jail but was issued with a “harassment warning.” In March, a 21-year-old student called Liam Stacey was sentenced to 56 days in jail for making crude jokes on Twitter about a then very ill footballer called Fabrice Muamba.

Last year, following the summer riots that rocked many English cities, two young men were jailed for four years for setting up a Facebook page called “Smash Down Northwich Town,” a reference to the town in Chester where they lived. The page was all about how cool it would be to have a local riot. No one accepted their invitation to riot, though; there was no “smashing down.” Yet still the two men were convicted of a public order offense, criminalized for being fantasists effectively.

Update: Rowan Atkinson is calling for the censors to back off:

Rowan Atkinson is demanding a change in the law to halt the ‘creeping culture of censoriousness’ which has seen the arrest of a Christian preacher, a critic of Scientology and even a student making a joke.

The Blackadder and Mr Bean star criticised the ‘new intolerance’ behind controversial legislation which outlaws ‘insulting words and behaviour’.

Launching a fight for part of the Public Order Act to be repealed, he said it was having a ‘chilling effect on free expression and free protest’.

He went on: ‘The clear problem of the outlawing of insult is that too many things can be interpreted as such. Criticism, ridicule, sarcasm, merely stating an alternative point of view to the orthodoxy, can be interpreted as insult.’

October 15, 2012

A “violence tax” that would only fall on the non-violent

Filed under: Law, USA — Tags: , , , , — Nicholas @ 10:40

Steve Chapman on a recent proposal that will penalize the non-violent for violence in their community:

For urban politicians, gun control is like the bar in Cheers — a place of refuge they can seek out whenever things aren’t going well. Things aren’t going well on the crime front in Chicago, with homicides up 25 percent this year. So what else can our elected leaders do but promise action against guns?

Action against the possession and use of guns by violent felons would be a good idea, but the proposal offered by Cook County Board President Toni Preckwinkle is something else: a penalty on nonviolent citizens who bear no blame for the carnage.

Preckwinkle suggested a tax on sales of firearms and ammunition, with the goal of defraying the costs that gunshots create for the county hospital and jail. Her spokesperson couldn’t say what the tax rate would be or how much revenue it would yield but said the fee would be “consistent with our commitment to pursuing violence reduction in the city and in the county.”

[. . .]

The levy was dubbed a “violence tax,” which is exactly what it isn’t. It would not target criminals who have malice in mind, but would fall entirely on the law-abiding.

Anyone convicted of a felony, after all, is ineligible for an Illinois Firearm Owner’s Card, which is legally required to buy guns or bullets. Under federal law, felons are barred from owning guns. So ex-con gang members would not pay the tax, because they make all their purchases in the illegal market. It would hit only those gun owners who have used their firearms responsibly.

October 10, 2012

Defending the rights of the accused (even when the accused are “clearly guilty”)

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

Ken White doesn’t like the way the criminal justice system is criticized on the basis of “feelings”, rather than the facts. In a recent case that the media has reported on as a travesty of justice, he defends the process by which the decision was reached.

Blogger “Gideon” writes at A Public Defender and is, in fact, a public defender. That is to say, Gideon works every day under lousy conditions, inadequate funding, and impossible odds to provide a vigorous defense to people accused of crimes who can’t afford a lawyer — people who, absent vigorous representation, will be ground up by the system, guilty or innocent. God bless Gideon for that. Gideon has been waging a lonely battle to explain what Fourtin v. Connecticut actually means.

As Gideon explains at length […], prosecutors made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is “physically helpless.” What the Supreme Court of Connecticut found was not that “if a severely handicapped person could resist but doesn’t, its not rape.” What the Court found was that this victim — who, though severely handicapped, could move and resist — was not “physically helpless” within the meaning of the statute, which is narrowly confined to people who are “unconscious or for some other reason physically unable to communicate lack of consent.” The Court found that the evidence showed that the victim could communicate lack of consent, and thus wasn’t “physically helpless” under the statute. The Court also repeatedly criticized the prosecutor’s decision to charge the case under this particular statute (rather than, for instance, under another subsection that could have applied because the victim was so mentally impaired that she was “unable to consent to such sexual intercourse”), and failure to offer evidence of state’s latecoming theories under this statute.

I’m outraged that the prosecution made a lousy and seemingly inexplicable call. I’m outraged that someone who sexually assaulted a profoundly handicapped woman goes free because of incompetence. But I’m not outraged that the state has to prove that you’re guilty of the specific crime you’re charged with to put you in prison. That’s fundamental to due process. “Well, hell, he didn’t do what he’s charged with, but he did something else awful” is tyrannical. I’m more afraid of the state’s ability to make it up as they go along in a criminal case than I am of criminals going free. As a criminal defense attorney, I know that it would be impossible to defend clients if the government could throw on their case and then ask the judge to find a statute that fits, instead of charging defendants with a specific crime and then proving that crime. As Gideon points out, the Sixth Amendment gives you the right “to be informed of the nature and cause of the accusation” against you. “You’re a criminal, we’ll figure out what statute you violated after we see how the evidence turns out at trial” is not due process.

October 8, 2012

Legal weapons of mass destruction

Filed under: Business, Law, Technology — Tags: , , , , — Nicholas @ 11:19

Software patents: two words that probably should not go together at all.

Mr. Phillips and Vlingo are among the thousands of executives and companies caught in a software patent system that federal judges, economists, policy makers and technology executives say is so flawed that it often stymies innovation.

Alongside the impressive technological advances of the last two decades, they argue, a pall has descended: the marketplace for new ideas has been corrupted by software patents used as destructive weapons.

[. . .]

Patents are vitally important to protecting intellectual property. Plenty of creativity occurs within the technology industry, and without patents, executives say they could never justify spending fortunes on new products. And academics say that some aspects of the patent system, like protections for pharmaceuticals, often function smoothly.

However, many people argue that the nation’s patent rules, intended for a mechanical world, are inadequate in today’s digital marketplace. Unlike patents for new drug formulas, patents on software often effectively grant ownership of concepts, rather than tangible creations. Today, the patent office routinely approves patents that describe vague algorithms or business methods, like a software system for calculating online prices, without patent examiners demanding specifics about how those calculations occur or how the software operates.

As a result, some patents are so broad that they allow patent holders to claim sweeping ownership of seemingly unrelated products built by others. Often, companies are sued for violating patents they never knew existed or never dreamed might apply to their creations, at a cost shouldered by consumers in the form of higher prices and fewer choices.

October 5, 2012

Apparently only Christians go to prison in Canada

Filed under: Cancon, Law, Religion — Tags: , , — Nicholas @ 10:29

At least, that’s the most charitable interpretation of this move by the federal government:

The federal government is cancelling the contracts of non-Christian chaplains at federal prisons, CBC News has learned.

Inmates of other faiths, such as Muslims, Sikhs, Buddhists and Jews, will be expected to turn to Christian prison chaplains for religious counsel and guidance, according to the office of Public Safety Minister Vic Toews, who is also responsible for Canada’s penitentiaries.

Toews made headlines in September when he ordered the cancellation of a tender issued for a Wiccan priest for federal prisons in B.C.

Toews said he wasn’t convinced part-time chaplains from other religions were an appropriate use of taxpayer money and that he would review the policy.

In an email to CBC News, Toews’ office says that as a result of the review, the part-time non-Christian chaplains will be let go and the remaining full-time chaplains in prisons will now provide interfaith services and counselling to all inmates.

According to the report, 57% of inmates are Christian. I smell a charter challenge to this ruling.

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