Quotulatiousness

September 1, 2012

Digital “inheritance”: law has not caught up to our online lives

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

As I mentioned in a post the other day, our laws are still designed for a world where most things have a physical presence, and the problems we see in intellectual property and patent law are just the start of the turmoil our legal system will have to face:

What will happen to your Facebook account after you are gone?

Dealing with digital assets after someone dies is becoming a challenge for families and the legal system alike.

Lawmakers are trying to clarify rules governing the passage of social-media and email accounts, along with other online assets that might have financial value. Several states have enacted laws to deal with post-death access to digital assets, and several more are working on similar legislation, says Gene Hennig, a lawyer at Gray Plant Mooty in Minneapolis and a commissioner of the Uniform Law Commission.

That group, which recommends uniform state laws, plans to come up with a recommended statute that more states could adopt.

“Eventually people are going to start putting in their wills what they want, and we need to know what’s allowed,” Mr. Hennig says. “In the olden days, grandma had a chest in the attic full of photo albums. Now, your chest of photos is in your computer.”

Update, 3 September: Bruce Willis wants his kids to inherit the music library he’s built up, but the iTunes licensing won’t let him do that.

August 30, 2012

21st century problems: who inherits your digital property?

Filed under: Books, Law, Media, Technology — Tags: , , , , — Nicholas @ 08:37

Unless medical science has a solution up their collective sleeves, we’re all going to die (eventually). It may be an individual shock, but humans have been dying forever — it’s the unwelcome end of the trip. As a result, we’ve evolved ways to redistribute the property of deceased members of our families and communities. When the issues were as simple as who got Uncle Grog’s club and who got his loincloth, we came up with solutions.

Fast forward to our becoming-ever-more-digital age, and not all of our property is tangible: we’re becoming “owners” of digital property that may be as valuable as our physical possessions. What happens to our music libraries, e-book collections, social media accounts, and all the other non-physical things we’ve bought and used during our lives?

Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.

And one’s heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”

Part of the problem is that with digital content, one doesn’t have the same rights as with print books and CDs. Customers own a license to use the digital files — but they don’t actually own them.

[. . .]

Most digital content exists in a legal black hole. “The law is light years away from catching up with the types of assets we have in the 21st Century,” says Wheatley-Liss. In recent years, Connecticut, Rhode Island, Indiana, Oklahoma and Idaho passed laws to allow executors and relatives access to email and social networking accounts of those who’ve died, but the regulations don’t cover digital files purchased.

Apple and Amazon did not respond to requests for comment.

Piracy’s latest hotspot

Filed under: Africa, Law — Tags: , , , , — Nicholas @ 08:23

We’re all aware of the piracy problems along the east coast of Africa, but the west coast is also experiencing a resurgence of pirates:

Piracy has been making a comeback in the last decade. This was initially because Somalia, a state without a government, provided small ports on the coast of East Africa where pirates could bring the merchant ships they had captured, and keep them there, safe from rescue attempts, until a ransom could be negotiated. Now, off West Africa, pirates have come up with another angle. These pirates, believed to be only one well-organized gang at the moment, target small oil tankers operating in the Gulf of Guinea (where Nigeria and its neighbors have oil fields). The pirates quickly board and seize control of a tanker at night. The crew is locked up in an internal space and the tracking devices are disabled. Then the tanker is taken to rendezvous with another tanker, which takes the oil from the hijacked tanker, along with the pirates and their other loot and makes for a port where oil brokers willing to buy stolen oil (at a steep discount) take the pirated cargo, pay the pirates and perhaps tip the pirates off on another small tanker that could be hit.

The hijacked tanker was stripped of portable items of value and then set adrift, where it would soon be found and the crew released. Normally, pirates attack merchant ships anchored near the coast grab all the valuable portables and take off. This is considered armed robbery, although some pirates will kidnap a few of the ships officers and hold them for ransom. But this requires a good hideout and more resources. The pirates who steal oil cargoes require even more technical organization and connections. But because the payoff is so high (millions of dollars for a stolen oil tanker cargo), a growing number of skilled gangsters are being attracted to the business.

All this is something of a piracy revival. Piracy hit a trough from the late nineteenth century into the later twentieth. That was because the Great Powers had pretty much divided up the whole planet, and then policed it. Piracy began to revive in a modest way beginning in the 1970s, with the collapse of many post-colonial regimes.

August 29, 2012

Brendan O’Neill on the rape debate

Filed under: Britain, Law, Politics — Tags: , , — Nicholas @ 09:09

Always willing to take a contrarian stand, Brendan O’Neill refutes the very common meme:

In the words of Salma Yaqoob of Galloway’s Respect party, “rape occurs when a woman has not consented to sex”. Or in the widely reported phrasing of a spokesperson for Rape Crisis, “Sex without consent is rape”.

This sounds correct. It seems simple yet right to assert that if a woman has not consented to sex, then rape has occurred.

But it is wrong. More than that, the idea that all “non-consensual sex is rape”, as Galloway himself has now said in his clarification of his defence of Assange, represents a dangerous rewriting of what rape really means.

Feminists always focus on the state of mind of the woman or women involved in an alleged rape and disregard the state of mind of the man.

This is a terrible error, because in order for rape to have occurred, it is not enough to prove that the woman did not consent; we must also surely prove that the man knows she did not consent, or was utterly reckless as to the question of her consent, and carried on regardless.

That is, rape must involve an intention on the part of the man to commit rape. The man must have a guilty mind — or what is referred to in law as mens rea — in the sense that he knows he is committing rape. In leaving out this key component of rape, feminists are not only undermining the meaning and gravity of this crime — they are also displaying a cavalier disregard for some of the key democratic principles of the modern legal system.

August 22, 2012

Reason.tv: Can legal cannabis revolutionize the US economy?

Filed under: Economics, Law, Liberty, USA — Tags: , , , , — Nicholas @ 00:09

“How can you have 56 percent of Americans in support of fully ending the drug war, and zero senators in support of it?” asks Doug Fine, investigative journalist and author of new book, Too High To Fail.

Fine sat down with ReasonTV’s Tracy Oppenheimer to discuss his time spent in the cannabis capital of California, Mendocino County, and why he thinks this drug can help save the American economy. And it’s not just about collecting taxes.

“The industrial [uses] may one day dwarf the psychoactive ones. If we start using it for fermentation for our energy needs, it can produce great biofuels,” says Fine, “already, cannabis is in the bumpers of Dodge Vipers.”

August 20, 2012

Punks as snobs

Filed under: Europe, Law, Media, Religion, Russia — Tags: , , , — Nicholas @ 09:06

Always willing to explore the contrarian position, Brendan O’Neill explains why Pussy Riot’s legal issues have gotten so much attention in the west:

Pussy Riot’s closing statements in their trial for blasphemy confirmed that they have not only inherited the original punk movement’s thrashing guitars and in-yer-face sensibility; they have also effusively embraced its art-school snobbishness.

Punk, in its original incarnation, was always as much a screech of rage against the “sheeple” as it was a two-fingered salute to the powers-that-be. Think Johnny Rotten wailing “They made you a moron!” in the Sex Pistols’ “God Save the Queen”. “Don’t be told what you want / Don’t be told what you need”, sang Rotten, expressing the core belief of punk — that the vast bulk of the masses, effectively everyone except the punks, had been moulded into a moron by the man.

The same snobbish thinking animates Pussy Riot today. In her closing statement, Nadezhda Tolokonnikova bemoaned the “enforced civic passivity of the bulk of the population” in Russia. She said the Russian regime “easily manipulates public opinion” — which sounds like an attack on the regime but it is also a sly salvo against the Russian masses, who must have minds like putty if they can be so easily manipulated. In contrast to this civil slavishness, Pussy Riot are all about “authentic genuineness and simplicity”, said Tolokonnikova.

[. . .]

Now we can see why Pussy Riot are so popular among many liberal opinion-formers here in the West — it is because both share a view of the little people as less culturally sophisticated and more easily forced into conformism than the commenting, bohemian, punkish sets. But of course, making snobbish statements and singing rubbish songs should not be a crime. Pussy Riot should be freed from prison immediately and allowed to continue expressing their loathing of Putin’s regime and their disgust with the Russian masses.

August 19, 2012

ESR on the limits of “lawfare” for Apple

Filed under: Business, Law, Technology — Tags: , , , , , , — Nicholas @ 15:56

To put it mildly, ESR isn’t a fan of Apple’s lawfare approach to competition:

It’s beginning to look like Apple’s legal offensive against Android might backfire on it big-time. Comes the news that Judge Koh has declined to suppress evidence that Apple may have copied crucial elements of the iPad design from prototypes developed by Knight-Ridder and the University of Missouri in the mid-1990s.

Those of us aware enough of computing history to be aware of early work by XEROX PARC and others have always been aware that Apple’s claims of originality were highly dubious. Apple’s history is one of adroit marketing and a facility for stealing adapting ideas from others, wrapping them in admittedly excellent industrial design, and then pretending that all of it originated de novo from the Cupertino campus.

The pretense has always galled a little, especially when Apple’s marketing created a myth that, footling technical details aside, the whole package somehow sprang like Athena from Steve Jobs’s forehead. But it didn’t become intolerable until Apple began using lawfare to suppress its competition.

The trouble with this is that there’s actually a lot of prior art out there. I myself saw and handled a Sharp tablet anticipating important iPhone/iPad design tropes two years before the uPhone launch, back in 2005; the Danger hiptop (aka T-Mobile Sidekick) anticipated the iPhone’s leveraging of what we’d now call “cloud services” in 2002-2003; and of course there’s the the Sony design study from 2006, described by one of Apple’s own designers as an important influence.

If only Apple were honest about what it owed others…but that cannot be, because the company’s strategy has come to depend on using junk patents in attempts to lock competitors out of its markets.

August 17, 2012

Even Guardianistas are puzzled by Assange’s Ecuador gambit

Filed under: Europe, Law, Liberty, Media — Tags: , , , , — Nicholas @ 09:10

There are few newspapers who have been as supportive of Julian Assange in his legal plight than the Guardian. When even Guardian columns find it difficult to figure out why he turned to Ecuador, we’ve moved into a different universe:

Julian Assange’s circus has pulled off another breathtaking stunt: he has won political asylum in Ecuador. Assange’s flight from Sweden, a decent democracy with a largely excellent justice system, takes ever more absurd forms. After the decision of Ecuador’s foreign minister, Ricardo Patiño, the Swedish Twitterverse filled with mocking jokes.

Assange has few fans left here. On the contrary, his unholy alliance with Ecuador’s political leadership casts a shadow over what was, despite everything, his real achievement: to reveal shattering news through the revolutionary medium of WikiLeaks.

Patiño praised Assange as a fighter for free expression, and explained that they had to protect his human rights. But Ecuador is a country with a dreadful record when it comes to freedom of expression and of the press. Inconvenient journalists are put on trial. Private media companies may not operate freely.

President Rafael Correa is patently unable to tolerate any truths that he does not own. Reporters Without Borders has strongly and often criticised the way that media freedoms are limited in Ecuador. Assange is a plaything for the president’s megalomania.

The police war on photographers and videographers: the Canadian front

Filed under: Cancon, Law, Liberty — Tags: , , — Nicholas @ 08:44

Karen Selick in the National Post confirming that Canadian police are also under the impression that their work cannot legally be photographed:

What have cops got against cameras these days? Increasingly, people are getting arrested, charged or even assaulted by police officers, merely for attempting to take photos or videos of officers at work. Often, police simply command people to stop photographing. Scared into thinking they must be breaking some law, citizens comply.

When Polish visitor Robert Dziekanski died after being tasered at the Vancouver airport in 2007, police seized the now famous video made by witness Paul Pritchard, who had to hire a lawyer and threaten court proceedings to get it back.

[. . .]

There is no law in Canada that prohibits people from openly photographing police. Section 129 of the Criminal Code prohibits “wilfully obstructing” police in the execution of their duty, but it is hard to imagine how standing by peacefully and videotaping as police searched the premises and piled up items for seizure could be considered obstructing. After all, the police themselves were videotaping on Ms. Jones’ premises — but selectively. They probably didn’t capture themselves ordering her friend to refrain from taking the pictures she was legally entitled to take.

That same day, three other search warrants were executed at the homes of other individuals the CFIA suspects of conspiring with Ms. Jones to save her healthy sheep. At Michael Schmidt’s residence, all cell phones were immediately confiscated. When a visitor from outside arrived with his cell phone, Schmidt’s wife borrowed it and took photos of police inside her home. Officers seized the phone even though it was clearly outside the scope of the warrant. They returned it three hours later, with the photos erased. When the victim of this apparently illegal seizure objected, police responded, “We can do whatever we want.” But of course, that arrogant response was not permitted to be recorded.

[. . .]

Police must be made to understand that being on duty or executing a search warrant does not transform an officer into a petty dictator with carte blanche to issue arbitrary orders to everyone in sight. Police cannot do “whatever they want.” Citizens have the right to hold them accountable for their actions. Personal cameras are important tools in implementing that right. Bullying people out of using them must cease.

August 13, 2012

PQ promises to “strengthen” language laws in Quebec

Filed under: Cancon, Law, Liberty — Tags: , , , , , — Nicholas @ 14:31

It’s mind-blowing that a minority in Canada are legally oppressed by their provincial government, but in Quebec, it’s just language business as usual. The opposition Parti Quebecois, who brought in the language law in question, are promising to make it even more oppressive to non-French-speaking Quebecers:

It’s an easy political move for Marois. It will appeal to her separatist base and thoroughly annoy the anglophones … which will also appeal to the base. And given that the stated intention of her party is to go pick fights with Ottawa and drive a wedge between Quebec and the Rest of Canada, it’s a good plan. Language politics are always hot-button issues in Quebec, and Marois is pushing those buttons gleefully.

But it is interesting to note her position on the issue. Marois holds that the Liberals, under Premier Jean Charest, have not done enough to promote the French language in Quebec. From the perspective of the PQ, that’s almost certainly true. But Bill 101 is a creation of the Parti Quebecois. The provincial Liberals have certainly left it intact and haven’t dared to try and strengthen it, but fundamentally, Bill 101 is a PQ law. If it isn’t working, that’s not Premier Charest’s fault.

The bigger issue, of course, is that such a law already exists. Uninformed citizens in the Rest of Canada would be rightly horrified to learn that such a bizarre, anti-democratic law exists in their country at all. Bill 101′s intrusions into the private interactions of businesses and the decisions of individual families are justified as being necessary by Quebec nationalists to preserve the primacy of French in Quebec, but to anyone who is not a language warrior, seem more like a cross between a French tutor and a Orwellian nightmare.

Of course, tougher laws will still not accomplish the intended task: forcing everyone in Quebec to speak French at all times.

English law in the age of Twitter

Filed under: Britain, Law, Technology — Tags: , , — Nicholas @ 08:45

At The Register, OUT-LAW.COM outlines the things to avoid saying on Twitter:

Debates in Parliament, home visits from the police and distressed celebrities have all left tweeters a little unsure as to what is and what is not acceptable by law on Twitter.

The list of those offending and those offended keeps growing with recent high profile reports referring to Louise Mensch, Tom Daley, Guy Adams, Steve Dorkland, Helen Skelton and Kevin Pietersen. This guide discusses 10 legal risks which apply, or potentially apply, to Twitter, in the context of recent media attention given to the lawfulness of tweets.

This is not just of intellectual interest to those of us living outside England: American, Canadian, Australian, Dutch, Indian, or Zimbabwean Twitter users can be sued in English courts (your country may or may not have laws shielding you from this kind of legal action, but most currently do not: the law lags well behind the technology).

August 11, 2012

The Broadcasting Treaty zombie rises from the grave

Filed under: Law, Media, Technology — Tags: , , , , , — Nicholas @ 09:31

Cory Doctorow explains why we still need to fight against WIPO’s latest attempt to gain even more legal rights over content:

The UN’s World Intellectual Property Organization’s Broadcasting Treaty is back. This is the treaty that EFF and its colleagues killed five years ago, but Big Content won’t let it die. Under the treaty, broadcasters would have rights over the material they transmitted, separate from copyright, meaning that if you recorded something from TV, the Internet, cable or satellite, you’d need to get permission from the creator and the broadcaster to re-use it. And unlike copyright, the “broadcast right” doesn’t expire, so even video that is in the public domain can’t be used without permission from the broadcaster who contributed the immense creativity inherent in, you know, pressing the “play” button. Likewise, broadcast rights will have different fair use/fair dealing rules from copyright — nations get to choose whether their broadcast rights will have any fair dealing at all. That means that even if you want to reuse video is a way that’s protected by fair use (such as parody, quotation, commentary or education), the broadcast right version of fair use might prohibit it.

Worst of all: There’s no evidence that this is needed. No serious scholarship of any kind has established that creating another layer of property-like rights will add one cent to any country’s GDP. Indeed, given that this would make sites like Vimeo and YouTube legally impossible, it would certainly subtract a great deal from nations’ GDP — as well as stifling untold amounts of speech and creativity, by turning broadcasters into rent-seeking gatekeepers who get to charge tax on videos they didn’t create and whose copyright they don’t hold.

August 10, 2012

Drink some rainwater, go to jail

Filed under: Environment, Law, Liberty, USA — Tags: , , , — Nicholas @ 11:09

A 1925 law still applies in Oregon:

You just can’t make this stuff up. A man in Oregon is currently in jail serving a thirty day term – along with a $1500 fine – for collecting rainwater and snow melt on his own property for drinking and household use. You think I’m kidding? I’m not.

    Gary Harrington, the Oregon man convicted of collecting rainwater and snow runoff on his rural property surrendered Wednesday morning to begin serving his 30-day, jail sentence in Medford, Ore.

    “I’m sacrificing my liberty so we can stand up as a country and stand for our liberty,” Harrington told a small crowd of people gathered outside of the Jackson County (Ore.) Jail.

H/T to Jon, my former virtual landlord, who said “This is just a little weird […] But does the fact that I can see the point of the law — preventing people from messing with a watershed area, I guess — mean that I’ve consumed the nanny state kool-aid?”.

August 9, 2012

Individual property rights for First Nations people

Filed under: Cancon, Law, Politics — Tags: , , , — Nicholas @ 08:32

Canada’s treatment of First Nations people has been a disgrace for decades. After locating them (for the most part) on out-of-the-way reserves, they are mostly forgotten by the media and the politicians until something truly awful happens (like the situation on the Attawapiskat reserve) and then TV crews are dispatched, speeches are made and … usually the amnesia kicks in and all is forgotten.

In the National Post, Tasha Kheiriddin suggests that the time is finally ripe to address one of the root causes of poverty among First Nations people on Canadian reserves: their inability to own property. Band councils hold the land “in trust” for their people, which means there are lots of opportunities for those close to the band council to benefit from the administration of the shared resources. Not all bands suffer from this kind of corruption, but many do. Allocating the land to private ownership by individuals would have many beneficial effects:

This week, the federal government confirmed that it is working on legislation to allow the ownership of private property on First Nations reserves. Some aboriginal leaders, such as former chief Manny Jules, who heads the First Nations Tax Commission, applauded the move. But others see ulterior, sinister motivations at work, as Dr. Pam Palmater, a Mi’kmaw professor in the Indigenous Studies department at Ryerson University in Toronto, told Postmedia News’ Teresa Smith. “The quickest way to get that Enbridge pipeline through our territory would be to divide up those lands into individual parcels because it would be a lot quicker to pick off individuals — especially the impoverished ones. And then, if one neighbour sees that an individual gets $100,000 for his property, then what’s someone else, a single mom, with three kids, living on welfare gonna do?”

It’s easy to imagine situations on reserves that are currently governed by band councils that are less than scrupulous where the best land will somehow end up in the hands of the very people who currently benefit from the council’s favour. That is certainly one of the challenges that any such legislation will have to attempt to curtail (even assuming they can get enough support from existing First Nations representatives and groups to move forward with any privatization laws at all).

There is also no doubt that granting First Nations people full property rights – the right to buy, sell, mortgage, use and develop land – is a worthy cause. It would create an ownership culture, instead of the current system (in which reserve land is owned by the federal government, in trust for its Indian residents), which fosters dependency. It would free individual aboriginals from the too-often self-serving grip of band councils. At the same time, it would create responsible government, should those bands seek to tax property, by making them accountable to the property taxpayers they would then serve.

August 8, 2012

How British libel laws work (and why Jimmy Wales is wrong about them)

Filed under: Britain, Law, Media — Tags: , , , , — Nicholas @ 09:54

Tim Worstall explains that Jimmy Wales misunderstands what British libel laws really mean for publishers (and bloggers) in other countries:

The libel law of England and Wales is rather different from many other countries, yes. It’s a lot harder to defend against a charge there, damages are higher than in most other jurisdictions and so on. However, that isn’t the important point. What drags you into that jurisdiction is not where your servers are. Nor where the people who prepared the material, where it was uploaded nor where the company is located. What matters is where was the person reading it located?

Please note, this applies to us all. In all jurisdictions the result is the same. It applies to corporate websites, to blogs, to Wikipedia, to everyone. It is a generally accepted legal rule that publication of digital information takes place where it is read, not where it is “published”. The general logic is that at one point there is a copy on the server somewhere. Then, someone downloads it into a browser window in order to read it. At this time there are two copies, on in the browser, one on the server. This creation of a second copy is therefore publication. And that publication takes place in the jurisdiction of the reader, not anywhere else.

[. . .]

Thus Wikipedia not having servers in the UK, not being a UK corporation or charity, does not protect it from English libel laws. None of us are so protected from them, we are liable under them if as and when someone in England and Wales reads our pages.

[. . .]

But as I say, it is still true that jurisdiction on the internet depends upon where the reader is, not the producer or the servers. It’s not a happy thought that we’re now subject to 200 off legal jurisdictions every time we post something but it is true.

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