March 25, 2012
There are more than ten reasons to oppose bill C-10
But I guess we have to start somewhere. Trinda L. Ernst has an article in the Toronto Star which compiles the top ten reasons to oppose the Conservatives’ most recent “tough on crime” bill:
Bill C-10 is titled The Safe Streets and Communities Act — an ironic name, considering that Canada already has some of the safest streets and communities in the world and a declining crime rate. This bill will do nothing to improve that state of affairs but, through its overreach and overreaction to imaginary problems, Bill C-10 could easily make it worse. It could eventually create the very problems it’s supposed to solve.
Bill C-10 will require new prisons; mandate incarceration for minor, non-violent offences; justify poor treatment of inmates and make their reintegration into society more difficult. Texas and California, among other jurisdictions, have already started down this road before changing course, realizing it cost too much and made their justice system worse. Canada is poised to repeat their mistake.
[. . .]
Canadians deserve accurate information about Bill C-10, its costs and its effects. This bill will change our country’s entire approach to crime at every stage of the justice system. It represents a huge step backwards; rather than prioritizing public safety, it emphasizes retribution above all else. It’s an approach that will make us less safe, less secure, and ultimately, less Canadian.
H/T to Bren McKenna for sending me the link.
March 23, 2012
Software patents: a legal minefield with no accurate maps
In the Atlantic, Timothy B. Lee explains why most software companies are effectively ignoring the patent system:
A major reason for the recent explosion of patent litigation is that it’s hard for software firms to figure out which patents they’re in danger of infringing. There are hundreds of thousands of software patents in existence, with more than 40,000 new ones issued each year. Indeed, in a recent paper, Christina Mulligan and I estimated that it’s effectively impossible for all software-producing firms to do the legal research, known as a “freedom-to-operate” (FTO) search, required to avoid infringing software patents — there simply aren’t enough patent attorneys to do the work. That’s a major reason why most software firms simply ignore the patent system.
One of the striking things about the patent debate is vast gulf between the views of computer programmers on the one hand and patent attorneys on the other. Steve Lundberg is a patent attorney and blogger who mentioned our paper in a blog post exploring the challenges of performing FTO searches in the software industry. I don’t want to pick on Lundberg, because I think you’d get similar arguments from many patent lawyers. But his post shows a fundamental lack of understanding of how the software industry works.
I work in the software industry (although not as a programmer), and I’ve lost count of the number of times I’ve seen software patents granted for things that clearly do not meet the stated criteria for granting patents. It could be a geeky party drinking game: guess whether a particular common programming technique or decades-old user interface element is patented or not, take a drink when you guess wrong. It’d be educational, although guessing “patented” every time might leave you stone cold sober at the end of the party.
As a matter of patent theory, Lundberg is absolutely correct. Patent law’s novelty and obviousness requirements are supposed to narrow the scope of patent protection. But in practice he’s dead wrong. The patent office issues a seemingly endless stream of patents on broad, obvious concepts like emoticon menus, one-click shopping, and wireless email.
And the existence of these broad, obvious patents means that software companies are constantly infringing each other’s patents by accident. The companies with the largest patent portfolios, such as Microsoft and IBM, have tens of thousands of patents, allowing them to credibly threaten almost anyone in the software industry. Even Yahoo, with its relatively modest cache of 1000 patents, was able to find ten patents to assert against Facebook.
March 19, 2012
Illinois railfan photographer threatened with being added to terror watch list
Photography within 550 feet of a railway line is illegal in Illinois, according to a police deputy who likes to make up his own laws:
A man who was taking pictures near a train track in Illinois was confronted by a sheriff’s deputy who informed him that he was breaking the law, so therefore he had no choice but to report the photographer to Homeland Security.
The photographer, who describes himself as a disabled war veteran and former state worker, was left wondering if the deputy had any legal basis for adding him to a terrorist watch list.
[. . .]
RustyBug, who never states which sheriff’s department harassed him, said the deputy told him it was against the law to shoot within 550 feet from train tracks, which is complete hogwash.
RustyBug said he really wasn’t buying it, but he wasn’t sure either, which shows us the importance of knowing the law when it comes to photography because too many cops don’t know the law.
March 15, 2012
The Omnibus Crime bill is really about only one thing: harsher punishments
If anyone thought that the Conservative government had a libertarian streak, the Omnibus Crime bill should be enough to disabuse them of the notion:
The Conservative government’s omnibus crime bill passed the Commons on Monday night. No matter the problem, the solution this unimaginative legislation provides is the same: longer sentences.
[. . .]
An important one that seems to have escaped the government’s thinking is whether, absent any other constructive reforms, it is a good thing to increase the powers of the police and prosecutors, and the effect it will have on the administration of justice. The government prefers to talk about criminals, as if everyone picked up by the police is guilty. Never discussed is the impact increased sentences will have on the accused but not convicted, namely, those presumed innocent.
In the daily operation of the criminal justice system, more severe penalties enhance the power the police and prosecutors have over the accused, or those merely suspected. The Americans have gone to such an extreme that the presumption of innocence is becoming only a notion; so severe are the penalties that police and prosecutors are able to bully even the innocent into pleading guilty. The trial in American criminal justice has been usurped by the plea bargain, in which the prosecutors hold most of the cards.
Canada is not there (yet), but it has happened here. In Ontario, the Goudge inquiry into parents falsely convicted of killing their own children established the pattern. Parents were threatened by prosecutors with such severe consequences that they pleaded guilty to crimes they did not commit, in the meagre hope of salvaging something of their lives.
[. . .]
There really isn’t very much “omni” in the omnibus crime bill. It’s about one thing — harsher punishments. It does nothing to alleviate the disgusting pre-trial (pre-trial!) conditions of remand that prevail in too many jails. It does nothing to mitigate the crisis in legal aid. It does nothing to lessen the likelihood of wrongful convictions. As Chief McFee notes, it does nothing for prevention.
Quis custodiet ipsos custodes? Who will guard the guards themselves? Who watches the watchmen? That’s the ancient maxim. The crime bill shows that those guarding the guards are not on duty.
March 14, 2012
Michael Geist rounds up the changes to Bill C-11
It’s not wonderful, but as he points out, it could have been much worse:
In the days leading up to the clause-by-clause review, many focused on three key issues: no SOPA-style amendments such as website blocking or warrantless disclosure of information, maintaining the fair dealing balance found in the bill, and amending the digital lock provisions. By that standard, the changes could have been a lot worse. The government expanded the enabler provision, though not as broadly as CIMA requested. Virtually all other copyright lobby demands – website blocking, notice-and-takedown, iPod tax, copyright term extension, disclosure of subscriber information – were rejected. Moreover, the provisions supported by consumer and education groups including user generated content protection, time shifting, format shifting, backup copies, Internet provider liability, and statutory damages reform were left untouched. This represents a major victory for the many Canadians and groups such as Open Media that spoke out on these issues.
The fair dealing provision was similarly left unchanged despite a full court press from publishers and copyright collectives who sought elimination of the education category within fair dealing (didn’t happen), inclusion of the Berne three step test in the law (didn’t happen) or a new fair dealing test that overrules the Supreme Court of Canada CCH test (didn’t happen). The expanded fair dealing provision will not cause the horrors claimed by those groups and it is heartening that the government dismissed the misinformation campaign.
The only loss was the least surprising — digital locks. Despite widespread support for compromise legislation and sensible amendments from both the NDP and Liberals, the government rejected any changes. Given the government’s consistent support for digital locks, the ongoing pressure from the U.S., and Prime Minister Harper’s direct intervention on the issue in 2010, amending the digital lock rules presented a major challenge. Government MPs yesterday emphasized the possibility of future new exceptions via regulation but that will be cold comfort in the short term to those with perceptual disabilities, researchers, documentary film makers, consumers, and the many others adversely affected by the restrictive approach. In fact, one NDP MP raised the possibility of constitutional challenges to the bill.
EFF reports on most recent legal setback for former owners of Righthaven
It’s pretty much good news all the way through for bloggers and anyone else who quotes and links to material on the web:
Late Friday, the federal district court in Nevada issued a declaratory judgment that makes is harder for copyright holders to file lawsuits over excerpts of material and burden online forums and their users with nuisance lawsuits.
The judgment — part of the nuisance lawsuit avalanche started by copyright troll Righthaven — found that Democratic Underground did not infringe the copyright in a Las Vegas Review-Journal newspaper article when a user of the online political forum posted a five-sentence excerpt, with a link back to the newspaper’s website.
March 13, 2012
Still no reason to get excited about robopocalypse, says Kelly McParland
Oh, good. I’m not alone in finding the robocall armageddon to be a bit less than exciting:
I have a confession to make. I have not been following the robocalls “scandal” with all the fervency it calls for.
It’s possible my inability to get excited results from six years … oops, make it seven … of the Liberals leaping to their feet every 18 seconds to accuse the Conservatives of plotting to pervert Canadian values, undermine democracy and display their contempt for the laws of the country. There’s this old morality tale about a kid who cried “wolf” too many times, so when a real wolf showed up, no one believed it any more. Maybe that’s why I have a hard time believing this is the real wolf.
It could also be that I find the premise hard to accept. To wit: a top-level conspiracy of Conservative grandees to steal the election by disrupting the vote, sending voters to incorrect polls or discouraging them from turning up at all. This would indeed be a major scandal if it was true, but think about it: Would a nation-wide exercise in disruptive phone calls have any chance of going undetected? Does anyone really believe (outside the fetid confines of the Toronto Star) that the senior ranks of any sane government would take such an extreme risk going into an election it expected to win anyway?
I could see some local bozos getting it into their heads that robocalling the opposing candidate’s supporters might be a great idea, but your cynicism has to be a lot deeper than mine (which would take some doing) to believe anyone could get to be Prime Minister, or his national campaign chairman, and still be either dumb enough, irresponsible enough or reckless enough to sign on to such a plan
Update, 15 March: In the comments, Saskboy strongly disagrees with my lack of excitement over the robocall scandal, and he’s been covering the story on his blog (that’s one of several posts on the topic).
March 11, 2012
Tim Worstall on “Protestant” and “Catholic” laws
No, not the differing flavours of Christianity themselves, but more their different approaches to understanding and interpreting the law:
The Protestant revolution was, in part (it never does to strain these analogy/simile things too much) that the Bible, when in the vernacular, as clear an outline of God’s will as any should need. Intervention was not needed, a man could commune directly with the Word and the Will of God.
On the matter of the law I am a Protestant. As rigid and unyielding as any Puritan, Lutheran or Calvinist. With a twist of course: the law must be written so that it can be understood directly, without that intervention of the priestly caste of lawyers, accountants, diversity advisors or bureaucrat’s helplines.
If you cannot write a law with the clarity of “thou shalt not kill” then go away and think through what it is that you’re trying to enact, the language that you are using to do so until you can, with clarity, tell us what it is that we must not do at fear of time in pokey.
That modern society is complex is no excuse. If you cannot write simple and simply understood laws then better that we have fewer laws.
That the Puritans went gargantuanly off the rails by using their new found revelations of God’s Will to tell everyone else what to do is true. But I do find it interesting that our new would be ruling class, the nomenklatura, are adopting such a Catholic view of the law. We’ll make it all so complex that no individual can understand it and thus there is the necessity of that nomenklatura to tell people what to do in detail by “interpreting” it.
March 9, 2012
Dalrymple: “British police have … become simultaneously bullying and ineffectual, a disastrous combination”
Theodore Dalrymple on a recent article by British author China Miéville in the New York Times Magazine decrying the cruel, disproportionate sentences handed out to London rioters:
Some figures: in 2011, there were 12,699 knife attacks in London known to the police (up 13.6 percent from the previous year); 58,160 burglaries (up 8.8 percent); and 68,754 street robberies (up 13 percent). The average national detection rate for burglaries is about one in 12, though even this is an overstatement, due to police manipulation of the figures. Approximately 800,000 domestic burglaries took place in Great Britain in 2009; this means that some 67,000 were detected by the police. In that same year, 6,136 people went to prison in Great Britain for burglary (for an average of 17 months each). Considering the 800,000 burglaries annually, a domestic burglary attracts on average four days’ imprisonment: hardly indicative of judicial ferocity, and not much of a deterrent to burglary.
One cannot say often enough that the victims of crime are, like the perpetrators, more likely to be poor than rich. For example, single-parent households in Britain have a more than one-in-20 chance of being burgled in any given year; and since most burglars are recidivists, indeed multiply so, it follows that the class of victim is much larger than the class of perpetrator. Leniency toward criminals is not therefore a form of sympathy for the poor, but a failure to take either their lives or their property seriously. For Miéville to talk of “panicked reaction” in these circumstances is a form of moral exhibitionism. He is showing off in front of his peers.
The notion that the disorder in London (and elsewhere in the country) is a protest against injustice — a thread that runs through Miéville’s article — is both crude and laughable. It is true that the British police have, after years of liberal-inspired reform, become simultaneously bullying and ineffectual, a disastrous combination.
March 6, 2012
Australia’s “Ministry of Truth” founding document
A rather alarming report to the Australian government by Ray Finkelstein recommends setting up a News Media Council to exercise control over political speech in the media, both professional (TV, radio, and newspapers) and amateur (bloggers, Facebookers, Twitterers, and other private individuals posting their opinions to the internet). It appears to be directed at climate change sceptics, but the provisions of the proposed body of rules will allow a great deal of control over all political speech:
The historic change to media law would break with tradition by using government funds to replace an industry council that acts on complaints, in a move fiercely opposed by companies as a threat to the freedom of the press.
The proposals, issued yesterday by Communications Minister Stephen Conroy, also seek to widen the scope of federal oversight to cover print, online, radio and TV within a single regulator for the first time.
Bloggers and other online authors would also be captured by a regime applying to any news site that gets more than 15,000 hits a year, a benchmark labelled “seriously dopey” by one site operator.
The head of the review, former Federal Court judge Ray Finkelstein, rejected industry warnings against setting up a new regulator under federal law with funding from government.
[. . .]
“News Media Council should have power to require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply,” the report states. It says this would be enforced through the courts.
The council would absorb the supervision of radio and TV current affairs by Canberra’s existing regulator, the Australian Communications and Media Authority, which ran the “cash for comment” investigation into talkback radio over many years.
The council would scrutinise online news sites that get more than 15,000 hits a year, clearing the way for government-funded action against amateur website operators who comment on news and current affairs. Greg Jericho, a prominent Canberra blogger on national politics, said: “The level of 15,000 hits a year, or about 40 hits a day, is seriously dopey.”
Some media executives privately dubbed the News Media Council as a potential “star chamber” because it would not have to give reasons for its decisions, which would not be subject to appeal
There’s a petition site at http://www.freespeechaustralia.com/ for those Australians who’d like to register their opposition to the new council.
Some excerpts from a Menzies House email from Timothy Andrews:
It is clear from the report, in particular paragraphs 4.31-4.42, that silencing climate realists is a major reason for these regulations: it is unashamedly explicit in this (and even uses the dirty trick of using polls from — wait for it — 1966 as evidence the media is pro-climate skeptic, and that — wait for it — only the ABC is unbiased!)
The size and scope of the proposed Super-Regulator is breathtaking. They will have the power to impose a “code of ethics”, force you to print views you don’t agree with as part of a ‘right of reply’, take you to court, and even make you take pieces down! Even personal blogs that get only 40 hits a day will be covered! To make matters worse, the SuperRegulator “would not have to give reasons for its decisions” and the decisions “would not be subject to appeal.” Even climate change websites in other countries like Watt’s Up With That will be covered by this!
[. . .]
11.69 Another aspect of jurisdiction concerns how the News Media Council will exercise its power over all internet publishers. Foreign publishers who have no connection with Australia will be beyond its reach. However, if an internet news publisher has more than a tenuous connection with Australia then carefully drawn legislation would enable the News Media Council to exercise jurisdiction over it.
Well, unless Australia is going to claim jurisdiction over the entire internet, I would imagine it will only prevent Australians from visiting foreign sites. I guess it’s a good thing that they’ve been getting friendlier with China: they can order up their national firewall from the same division of the People’s Liberation Army internet force.
James Delingpole points out that the usual suspects are involved in the process:
You can read the full 400 pages here, if you’re feeling masochistic. But Australian Climate Madness has a pretty good summary of the key issues of concern, starting with Pinkie Finkie’s proposal to create a new super-regulator called the News Media Council [missed a trick there, didn’t he? surely Ministry of Truth would have been more appropriate] which will impose its idea of fairness and balance not only on newspapers but even on blogs with as few hits as 15,000 a year.
But whose idea of fairness and balance?
It’s an astonishing fact that of the 10600 submissions received by the inquiry no fewer than 9600 were boilerplate submissions from left-wing pressure groups, led by Avaaz “a global civic organization launched in January 2007 that promotes activism on issues such as climate change, human rights, poverty and corruption.”
March 4, 2012
“Assuming this account is accurate, this was a war crime”
Heresy Corner on the story being serialized in the Daily Mail from Tony Banks:
Banks says that “we simply did not have the resources to take prisoners” and “they had started the war and they had not shown much respect for the white flag when they had shot my three mates who went forward to take the surrender at Goose Green.” Neither is an excuse recognised by the Geneva Convention.
To issue an order to take no prisoners is a fundamental violation of the principles of international law and thus a war crime. Section 40 of Additional Protocol I of the Geneva Conventions provides that soldiers who have clearly expressed an intention to surrender (for example by raising their arms or waving a white flag) are considered to be hors de combat and they must be given quarter (i.e. allowed to peacefully surrender). The officer who gave that order is not named but presumably Banks, along with other surviving members of his unit, knows who it was.
[. . .]
Assuming this account is accurate, this was a war crime. The fact that the Paras involved plainly knew that it was a war crime (hence the “brief argument”) exacerbates rather than mitigates their guilt. One soldier killed this boy in cold blood and the others covered up for him. That makes them all guilty, morally and legally. The fact that this took place thirty years ago is no reason why it cannot now be investigated and the perpetrators brought to trial. At the very least Banks should be taken in for questioning.
Confused about the Cato takeover threat from the Koch brothers? You’re not alone
Brad DeLong rounds up some of what’s being said about the attempt by Charles Koch to take control of the Cato Institute:
Ed Crane on the Koch Brothers:
Charles G. Koch has filed a lawsuit as part of an effort to gain control of the Cato Institute, which he co-founded with me in 1977. While Mr. Koch and entities controlled by him have supported the Cato Institute financially since that time, Mr. Koch and his affiliates have exercised no significant influence over the direction or management of the Cato Institute, or the work done here. Mr. Koch’s actions in Kansas court yesterday represent an effort by him to transform Cato from an independent, nonpartisan research organization into a political entity that might better support his partisan agenda. We view Mr. Koch’s actions as an attempt at a hostile takeover, and intend to fight it vehemently in order to continue as an independent research organization, advocating for Individual liberty, limited government, free markets and peace.
Jonathan Adler on the Koch Brothers:
The Volokh Conspiracy » Koch v. Cato: Cato’s Crane and Cato Chairman Bob Levy charge the [Kochs’ law]suit is about transforming Cato into a less independent and more political (if not also more partisan) institution…. Many libertarian-leaning organizations receive money from the Kochs and their foundations and are attacked on this basis. Such attacks can be deflected, as financial support is not the same thing as control. But if the Koch brothers themselves represent the controlling majority of an organization’s board, that organization is, by definition, a Koch-run enterprise…. They will forevermore characterize the Cato Institute as “Koch-controlled” — and, as a legal matter, they will be correct…. [A]ny benefit from whatever changes they could make will be outweighed to the permanent damage to Cato’s reputation caused by turning it into a de facto Koch subsidiary. In short, they will have destroyed the Cato Institute to save it.
Update: Jason Kuznicki on the internal side of the debate at Cato:
When I learned that the Kochs were suing Cato, I’m sorry to say that one of the first things I felt was vindication. I’d been saying for years that Cato was essentially an independent shop. The suit makes no sense unless I was right all along.
I’ve worked at Cato for five and a half years. In that time I have never seen a single decision made in consideration of the Koch brothers’ wishes. Cato has always appeared to be run by two people: its president, Ed Crane, and its executive vice president, David Boaz. It was like that when I was hired, and it’s like that now.
Even they don’t call all the shots, either; plenty of things get published that they actually disagree with, including some of my stuff. The people who spin elaborate fantasies about the Kochs acting as our puppet masters were, and are, dead wrong. They’ve been wrong since at least the early 90s, if not earlier. I’ve been saying so for years. Now the whole Cato Institute is in open revolt against the Kochs, a revolt that grew up with astonishing speed.
February 29, 2012
“Taken together, the [Canadian] music industry demands make SOPA look like some minor tinkering with the law”
Michael Geist on the representatives of the Canadian music industry and their breathtaking demands for modifications to Bill C-11:
The steady procession of Canadian music industry representatives to the Bill C-11 committee continues today with the Canadian Independent Music Association (CIMA) ready to add to an already long list of industry demands to completely overhaul the bill. The music industry demands keep growing, but CIMA’s list is the most radical to date as it would create liability risk for social networking sites, search engines, blogging platforms, video sites, aggregators, and many other websites featuring third party contributions. If that were not enough, the industry is also calling for a new iPod tax, an extension in the term of copyright, a removal of protections for user generated content, parody, and satire, as well as an increase in statutory damage awards. Taken together, the music industry demands make SOPA look like some minor tinkering with the law.
Note that industry had already called for SOPA-style reforms such as website blocking and expanded liability that could extend to sites such as YouTube before the hearings began. This week has seen an industry lawyer inaccurately portray global approaches to digital lock rules and a musician association demand full statutory damages of up to $20,000 per infringement for non-commercial infringements by individuals.
Those demands are nothing compared to what CIMA has in mind, however. Topping the list is a massive expansion of the enabler provision. The music industry wants to remove a requirement that the so-called pirate sites be “designed primarily” to enable copyright infringement.
[. . .]
There is virtually no limit to prima facie liability under this provision as most sites can be said to enable some infringement, particularly if they allow for users to post or interact with the site. This includes sites like Google, Facebook, Reddit, and Youtube. All of these sites — indeed virtually any blogging platform, social network, search engine, or website that offers third party contributions — would face the risk of a prima facie claim under the music industry’s vision of the enabler provision.
NY Police domestic spy operation in Muslim neighbourhoods gets little press attention
Natalie Rothschild on the rather disturbing use of NYPD resources to conduct surveillance operations in Muslim areas of New York City and New Jersey:
It has emerged that the White House has funded the New York Police Department’s surveillance of entire Muslim neighbourhoods with money earmarked for fighting drug crime. The revelations were detailed in reports by the Associated Press this week. In response, senior law enforcement officials and politicians have been either unapologetic or silent. Most tellingly, the Obama administration, which has championed Muslim outreach and has said law enforcement should not put entire communities under suspicion, said on Monday that it has no opinion on the matter.
Since the 9/11 attacks, the Bush and Obama administrations have provided $135million to the New York and New Jersey region through the High Intensity Drug Trafficking Area programme (HIDTA). It’s unclear exactly how much of that money was spent on surveillance of Muslims because the programme has little oversight. But the AP discovered that the White House money has paid for cars that plainclothes NYPD officers used to conduct surveillance of Muslim neighbourhoods in New York and New Jersey, and for computers that stored information about Muslim college students, mosque sermons and social events. It also helps pay rent for the NYPD’s intelligence unit.
This is, effectively, a spying programme used to monitor American Muslims as they shop, work, socialise, pray and study. Police have photographed and mapped mosques and recorded license plates of worshippers. They have compiled lists of Muslims who took new, Americanised names, eavesdropped on conversations inside businesses owned or frequented by Muslims, infiltrated Muslim student groups and monitored websites of universities across north-east US. In the name of counterterrorism, Muslim American citizens have been catalogued, their private conversations and everyday activities recorded and stored in databases.
[. . .]
On Monday, White House spokesman Jay Carney said the administration has no opinion on how the HIDTA grant money was spent and that the White House has no authority to direct, manage or supervise any law-enforcement operations. If the administration truly has no power to influence a NYPD programme used for intrusive monitoring of scores of American citizens, then that would indicate great political impotence. After all, both in the domestic and international arenas, the Obama administration has warned against demonising and singling out Muslims in America and turned Muslim outreach into a priority. Well, it is hard to think of any starker way of ‘singling out’ a group than by stalking anyone who looks or sounds like they belong to it.
