15 Sep
2016
15 Sep
'16
8:38 p.m.
On 9/15/16 2:23 AM, Zenaan Harkness wrote:
> On Thu, Sep 15, 2016 at 01:36:18AM -0700, Stephen D. Williams wrote:
>> On 9/15/16 1:12 AM, Zenaan Harkness wrote:
>>> On Wed, Sep 14, 2016 at 11:20:31PM -0700, Stephen D. Williams wrote:
>>>> On 9/14/16 8:34 PM, grarpamp wrote:
>>>>> Leaking paper is one thing, disassembling the quiet
>>>>> handshakes and luncheons of conspiracy is another.
>>>> Much of what corporations do is legal, whether you like it or not.
>>> Legal, as in compliant with their statutory right to financially pillage
>>> and legally bully their way around arbitrary "privilege" monopolies,
>>> yes.
>>>
>>> Lawful, as in compliant with the common man's sense of right and wrong
>>> (the "common law" or "community law"),
>>> no!
>> I think common law could be defined more precisely. There has always
>> been a gap between what was considered illegal and what seemed unfair
>> to someone.
> Very willing to hear your draft of clarification on these terms!
>
> Give a shot, and then perhaps others can tweak your draft.
This is my current favorite summary of law for a few purposes. I was just clearing up confusion about the legal jargon "controlling
legal authorities" which consistently confuses non-legal-geeks.
Note the pedigree: Thurgood Marshall Law Library Guide to Legal Research – 2016 - 2017
https://www.law.umaryland.edu/marshall/researchguides/tmllguide/chapter1.pdf
> RELATIONSHIP BETWEEN STATUTORY LAW AND CASE LAW
> Legal systems in Great Britain and the United States were originally centered around case law, or judge-made law. The term common
> law refers to judge-made law that is found in judicial opinions. Judges hear cases involving particular parties, then issue
> decisions based on available precedent and on their own initiative in the absence of prior decisions. The notion that a common law
> existed that reflected the generally accepted values and practices of a society, and upon which judges drew to decide individual
> disputes, was behind this reliance on judge-made law.
> The law in some subject areas still consists primarily of common law. In recent years, however, legislatures and administrative
> agencies have become much more active in the law-making process. Present-day legislatures adopt statutes affecting a broad range
> of activities. Some of these statutes may preempt earlier court decisions, either as a result of a deliberate action on the part
> of a legislature or inadvertently. For example, if the legislature disagrees with a court interpretation, the legislature can
> amend an existing
> statute, or enact a new statute, clarifying the particular issue upon which there is disagreement.
> Administrative agencies, created and empowered by statute to carry out mandates, have also become extremely active in promulgating
> regulations that carry the force of law. Most such agencies also have the authority to issue rulings and interpretations of
> regulations, and to conduct hearings adjudicating disputes under their jurisdiction.
> Under the balance of power inherent in our system, courts can declare statutes and regulations to be unconstitutional if they
> exceed constitutional authority or if they conflict with constitutional provisions. Thus the universe of potential authority for
> conducting research on a specific problem has broadened considerably from the days when case law comprised the bulk of legal
> authority. Even so, judicial opinions, whether they draw upon earlier common law precedent or apply or interpret statutes or
> regulations, are still a major source of law for the researcher. The complete picture can only be gained by reading the applicable
> statutes and regulations in conjunction with relevant cases.
So, commonly, "common law" is case law, i.e. based on explicit decisions of judges. They may base their decisions on a more general
sense of common law, but only judges can do this with any meaning. Non-judges may think there is some principle that amounts to a
concept in "common law", but it carries no weight unless a judge specifically agrees in a context that applies to you and trumps
other legal authorities, a "common law" "controlling legal authority" in other words. If you read a bit more there, they clarify
primary legal authority, both mandatory and persuasive, and secondary legal authority, opinions which are less weighty persuasive
legal authority.
So, an appeal to "common law" that has any usefulness must cite some legal authority, ideally a mandatory controlling legal authority.
You may or may not have noticed, but law has been likened to engineering, and software engineering in particular. Or, like many
things, a sort of algebra or calculus. I think of security exactly like that, especially when designing a secure information system
and related policies and procedures. Given the rules of the system, you have to work out a mechanism to accomplish what you want or
stop what you don't want. Appealing to wishful thinking isn't going to make your software work, your system secure, or win your
legal case.
> Also, consider use of the word "moral" if not a more politically correct
> "watered down morality" term.
Calculating moral balance is tricky and perhaps usually fluid. I don't think we've clarified specifics enough to do that here yet.
>>>> Actual conspiracies are seldom needed
>>> A fluffy and largely useless statement.
>>>
>>> Actual conspiracies are every day occurrences, widespread to the point
>>> of being universal.
>>>
>>> From The Collaborative International Dictionary of English v.0.48
>>> [gcide]:
>>> Conspire \Con*spire"\, v. t.
>>> To plot; to plan; to combine for.
>>> [1913 Webster]
>>> Angry clouds conspire your overthrow. --Bp. Hall.
>>> [1913 Webster]
>> In this context, I took that to mean 'illegal conspiracy', which has a
>> much more specific meaning. Using the general meaning to justify the
>> statement when that statement will be taken as indicating criminal
>> conspiracies is misleading.
> You keep missing my point.
You weren't making it clearly, although I think I can see it anyway.
>
> That which is illegal corporate actions today (pursuing "illegal"
> filesharers), is made "legal" by lobbying.
I think the attitude of many who are involved would be that it was already illegal in some sense, just not specifically enough to
enforce. Copyright is an extension or interpretation of property rights. Property rights are a basic component of a legal system.
Some degree of property protections is fundamental, some degree is a legislative choice that balances rights and mechanisms and
system tuning.
> Consistently speaking of what is illegal vs legal by you, is misleading
> to the truth of what the community at large accepts as moral behaviour,
> whether by individuals or by individuals employed by a corporation.
A characteristic of the law is that by following principles that consistently lead to a fair, just, and functioning legal system,
sometimes the majority will want something that the principles protect. A functioning legal system is not majority rule in a number
of key ways. In other ways it is. Walking that distinction properly is probably the key indicator of the health of a legal
system. Knowing that dynamic exists sometimes, the fact that a majority may want something doesn't intrinsically make it right.
>
> s/moral/lawful/
> s/moral/acceptable/
> s/moral/ etc etc /
>
>
> Your persistent framing of "legal" behaviour, hides the reality of the
> endless encroachment, by corporations via their bribery / lobbying
> efforts, against our rights.
There is usually a balance of rights. Law is often a blunt instrument for various reasons.
You haven't stated what rights you think are being trampled. A useful statement of a right requires that you indicate how it is
grounded and supported and how it interacts with conflicting rights and some logic of why a particular boundary should be in a
certain spot.
It appears that you are primarily concerned with the rights of copyright holders and their agents (First Amendment) vs. your rights
to access to public and proprietary information (What right is that?), and your rights (Fourth and Eighth Amendments) for reasonable
consequences. I think there are two ways to interpret the typical situation:
For someone downloading something to read / listen / watch, they might be depriving someone of a little income. Any fine or
remuneration should be roughly proportional.
For someone who shares many things in an untrackable, possibly effectively infinite way, the owner would argue that the damages are
uncalculable and that it must be prevented. Probably legislatures have frequently been convinced of this, leading to 'stop this or
else' sentencing guidelines. They expect that they can just keep upping the level until it stops. This seems something like the
treatment of crimes that are totally unacceptable. Except that maybe half the population does think it is acceptable. Yes, there
is a big disconnect there. But, it is inevitable unless a way is found out of it.
The music industry seems to have given in a while ago since streaming and other forms of music are very inexpensive now. Big
artists make most of their money on concerts and merchandise while smaller artists probably don't make much. In effect, the
commercial and social contract has changed, relieving some of the early extreme pressure.
So far, this may be mostly off topic. But:
One key legal path should be the First Sale Doctrine. While this would still require that valid purchases were involved, it would
allow you to loan your copy to someone else. To do this convincingly probably requires a distributed secure system with certain
assurances.
The legal landscape keeps evolving. There should be a way to somewhat fix the situation with regard to video, books, and software
by a technological and legal construction, but it is currently blocked in the US, while being possible for software at least in the
EU. This seems to have significantly turned on a Library of Congress report, which could change: They review copyright situations
every year, creating updates to policy that affect what is illegal.
https://en.wikipedia.org/wiki/First-sale_doctrine
https://www.justice.gov/usam/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine
http://jolt.law.harvard.edu/digest/copyright/supreme-court-holds-the-first-sale-doctrine-applicable-to-parallel-importation
https://en.wikipedia.org/wiki/Capitol_Records,_LLC_v._ReDigi_Inc.
http://www.scotusblog.com/2016/06/opinion-analysis-court-clarifies-availability-of-fee-awards-in-copyright-cases/
https://freedom-to-tinker.com/2011/10/10/digital-death-copyrights-first-sale-doctrine/
So, one avenue to partially solve the issue by direct legal means would be to construct rationale for why the LoC should change
their opinion, perhaps relative to some system that records and perhaps enforces one-holder status for each license. Perhaps a
blockchain system, some creative form of DRM, etc.
There could be other paths that explore whether sales couldn't have existed, because people are too poor, eminent domain in some
cases because of importance or abuse, etc. Commercial and social models could exist, like a club that offers to group license
content based on actual usage.
>>>> and usually not worth the
>>>> risk.
>>> People talk and plot in private, including corporate "leaders".
>> And usually there is nothing wrong with that.
> People are of course free to conspire in any way they so wish.
>
> There is nothing inherently wrong with that.
>
> There is nothing inherently wrong with free speech.
>
> Free speech is a foundation of our society.
>
>
> Let me quote you Stephen:
>
> "In this context, I took that to mean 'illegal plotting' which has a
> much more specific meaning ... using the general meaning ... is
> misleading."
>
> :)
>
> What's good for the goosey Stephen, is good for responding to Stephen.
But you haven't yet established why your nebulous form of 'illegal' should be respected, so I didn't see it.
>>> --Especially-- corporate leaders.
>>>
>>> Talking and plotting -is- conspiring.
>> But not necessarily illegal conspiracy.
>>
>>> Example:
>>> To conspire with other self interested corporate executives, to
>>> combine bribery capacity (lobbying), to cause -unlawful- laws to be
>>> passed by parliament, which institute 10 years jail time punishments
>>> for sharing a file by bittorrent;
>>>
>>> Such punishment being thereafter deemed as "legal" punishment, even
>>> though such punishment is not, and would never be, lawful by the
>>> moral standards of the community (cruel and unusual punishment,
>>> punishment which does not fit the crime, punishment not comparable to
>>> punishment for other crimes e.g. rape, murder, tanking the economy
>>> ("white collar" crime)).
>> I can see that, although it seems weak. And it is rebuttable by the right campaign.
> That's one of those offensive pro-statist campaigns you keep running
> Stephen - "well get started in your counter lobbying campaign then
> sonny, that's the -right- thing to do because, you know, we got a
> democrassy here y'hear?!"
>
> And anyway, we are directly addressing your own cited foundation for
> this part of the conversation, namely "-illegal-" conspiracy.
>
> How is "making lawful activities illegal by bribery lobbying", a weak
> part of that conversation, and not a direct response?
If it is the way the system operates, then it isn't illegal whether we like it or not. If we don't like it, we should make it
illegal. In many ways, that kind of thing is illegal in the US. You can't expect to bribe non-politician officials.
> The corporations only get away with their offensive behaviour because
> they hide behind "laws" - either by outspending their opponents (legal
> fees, bribery lobbying money), or by bribery lobbying their pet monopoly
> "legal" activity protection rackets!
True to some extent. But you have to play the system to combat it, or go create your own system. But nobody will follow you for
long for the latter.
>>> Stephen, you are brainwashed, and purveying your brainwashing upon
>>> others.
>>>
>>> The part of that which I personally, vehemently, object to, is that you
>>> do so with an endless air of authority.
>> I claim familiarity with certain things, and demand clarity, logic, and specifics in any argument. I make little or no claims of
>> authority beyond certain first hand knowledge, experience, and conclusions after reading authoritative sources. More solidly
>> grounded specifics will always have an air of authority over vague hand waving and ad hominem attacks. I can't really help that.
> You make few direct claims, true.
That's a mischaracterization, Mr. Trump.
> That's part of the problem.
>
> Your unspoken assumptions speak very loudly. Very often.
>
> Such as for example, presuming something like "legal" behaviour - here,
> since it seems to escape you, I'll quote you again:
>
> "Much of what corporations do is legal, whether you like it or not."
>
>
> Are you, Stephen D Williams, capable of unpacking your own quote here,
> to explain to me what I am saying about your statement, why the unspoken
> part is objectionable, and perhaps how you ought reword that quote by
> you?
You are using a nebulous, extended form of 'illegal'. Can't reason with that because it isn't meaningful yet.
> If not, then you have become a brick wall, incapable of hearing with
> empathy what another says (kudos for your humility with Razer by the
> way).
>
> Seriously, what we (you, me, the whole dang world) needs, is a little
> empathy from those with capacity to influence others. Empathy so that we
> can not only see and hear, but name and restate what "the little people"
> think and feel about those things that are so wrong in the world today -
> we have to give voice to those being murdered every day by the USA's CIA
> and Military programs, pogroms, and all other activities even though,
> --especially-- because the USA declares all its actions "legal" !!!
For some, general consumers, I get to do that occasionally. For other countries which are a mess, much more difficult. The right
move at one level isn't the right move at another. Not doing anything is also a bad move some of the time.
I can't generalize about foreign affairs in some blanket statement, and I'm not that studied nor do I have time to do it well
anyway, but generally it is easy to complain at the strongest, or the most active, or whatever. It is much more difficult to guess
what better decisions would have been if you knew the same things. Everyone is failing, and the US may be failing less than many
players. At the base, often it is the populations of these countries that are failing the most: Believing in crazy things, not
having much modern knowledge or understanding, allowing and creating brutal social systems, etc. Nothing anyone does will make
anything better until that is fixed. It is an epidemic of bad and missing good memes.
> We HAVE to bust this conversation open - we have to be able to
> communicate to our so-called "representatives" that the killing has to
> stop, the endless encroachment upon our sovereign rights has to not only
> stop, but be substantially and significantly unwound!!!
>
>
> Who is there to lobby and directly cause/ influence an --increase-- in
> our sovereign individual rights (in legislation), if not us???
>>> And with seemingly endless pro-statist views.
>> I'm not all that pro-statist, but I also don't ignore what is working
>> or blindly denigrate systems that should and could work better.
> So start already.
>
> Name a problem. Clearly.
>
> Identify solution.
>
> Promote that solution.
See above.
I am.
>
>
> (Something, anything, other than apology for the state!)
>
>
>> Often
>> things somewhat broken can be fixed rather than tearing down
>> everything that is working out of spite and blind rage.
> Please, bring on effective pathways to improving the USA system.
First, make sure it is the USA system that you really need to fix.
> But when all you do is apologise for the existing system and scream
> "don't tear it down", you will continue to get a not very positive
> response.
I don't need to convince anyone not to "tear it down". I'm saying that anyone saying that is wasting their time.
>> Alternatives
>> to everything should be considered, but alternatives aren't better
>> simply because they are alternative; there has to be some reasoning
>> and proof of some kind.
> Troll tool.
>
> Get over it. We shall continue to name it.
>
> "Nothing can be tried except that it is pre-proven."
>
> You really think that continued repition of that troll tool is gonna fly
> around here?
>
>
> Really really?
I'm just stating the obvious. Let us know when you have a colony of a million people somewhere just humming along with a better system.
>>>> Many abuses have come to light, usually with a pretty good downside
>>>> for the corporation. Harder to get away with really bad stuff than it
>>>> used to be.
>>> It's getting easier and easier for corporations to do bad stuff legally.
>>> They lobby, they get their pet "laws" (unlawful though they are) passed,
>>> and thereafter their crimes falling under those laws are "legal", even
>>> though they remain as crimes, and remain immoral.
>> Plenty of this has just been exposed in the last few years. Some of
>> that will no longer work.
> Name ONE example where the sovereign rights of individuals has been
> reclaimed at the expense of corporate and government unilateral power
> expansion!
>
>
>> There are some cases of this still.
> Please, we got plenty of time for you to google to your heart's content.
>
> Would love to see something genuinely positive from an individual
> sovereignty perspective. Good luck.
>
>
>>>>>> Ioerror.
>>>>>> Institutional assassination
>>>>> Precisely. And it's disgusting.
>>>> What are the worst things that corporate heads and politicians are
>>>> getting away with?
>>> Endless encroachment upon our individual sovereign rights with "laws",
>>> making their immoral activities and enforcements against our individual
>>> sovereign rights, legal.
>> OK.
>>>> What's your proposed solution? What's your proposed cypherpunkian
>>>> solution?
>>> Well, there are possibly the most useful things you've ever said on this
>>> list. Good question. There, I said it. You asked a useful question.
>>> In the current context, get your torrentz over Tor, I2P, possibly
>>> FreeNet, and also sneakernet - network in human space, N2N / neighbour
>>> to neighbour your neighbourhood.
>> OK, now that you have a secure overlay communications and identity
>> network,
> If presumed fact, that's bullshit.
>
> If hypothetical for discussion ... ok.
Once you create that, then what?
>
>
>> how are you going to manage it and the community of users?
> Please suggest back to me, how you think I would normally respond to
> this (not the personal shit, the structural/ systemic issues response).
You seem to have a plan. What is it?
>
> Please demonstrate enough self awareness, and awareness of the views of
> others, such that you are actually able to:
> - answer your own question
You want me to design your proposed solution for you?
>
> - answer what's wrong with your question
>
> - answer what are the assumptions underlying your question
>
> - answer why those assumptions are fundamentally abhorrent to many of
> us
>
>
>> Are you going to nullify IP rights? What else?
> It is your turn. It is not acceptable for you to essentially say to us:
> - existing interests must not be infringed
> - acceptable solutions must be evidentially proven prior to launch/use
> - and btw, solve all the pro-state "problems" I raise, before you even
> consider persisting in your position
You are perfectly free to go buy some land somewhere and start your own system, with your own entertainment, etc. If you want to
interact with the existing systems, at least some of the rules need to be followed.
>
> Stephen, do you think I, or just about any anarchist (or wanna be) worth
> their salt, is NOT going to react to the things you say?
>
> Time for you to pony up.
>
> Speak less.
>
> Speak succinctly.
>
> Add in some empathy.
>
> Base conversations not in state existing system protectiveness, but in
> empathy and voicing of the individual in society, his concerns, the
> violations of his rights.
Existing legal systems are already based on that.
>
> Your position may be valid from the pov of your employee and your
> allegiances.
>
>
> But your demands for perfect solutions, your repeated protection of the
> state/ existing system, and your persistent demands that others answer
> every pro-state objection you raise, don't cut it.
I'm not protecting anything. It doesn't need protection. I just explained my understanding.
>
>
> Lift your game, please.
>
>
> Without speaking from some position of generosity, empathy, sovereign
> individual rights, alternative systems, specific actions to improve the
> existing system, or something else constructive, I shall give up on you.
>
> The world needs better, but you're becoming way too much hard work.
>
> The alternative, as much as I dislike it, is to join Juan and throw more
> mud at you, ridiculing you for your narrow mindedness. I don't like
> that. It's only useful if it catalyzes some self awareness or intent to
> raise the dialog or awareness in someone being abused by your
> assumptions and endless pro-state authoritarian presumptive discourse.
You want me to design a solution to the pain you feel?
I'm already designing solutions to other pain, felt deeper and wider than what you're alluding to so far. I'm busy with that.
> Time to put up or shut up.
sdw