Chief Judge Easterbrook swings his trusty cluebat in USA v. Pulungan:
A regulation is published for all to see. People can adjust their conduct to avoid liability. A designation by an unnamed official, using unspecified criteria, that is put in a desk drawer, taken out only for use at a criminal trial, and immune from any evaluation by the judiciary, is the sort of tactic usually associated with totalitarian régimes. Government must operate through public laws and regulations.
An open letter.
Dear Mr. Zimmerman
Congratulations with the Calixte win -- but can I ask you a question? I don't quite understand the brouhaha about the infamous "black screen with white font" comment in the warrant application.
As far as I can tell from the documents, the informant volunteered a whole laundry list of unsubstantiated allegations to the detective, including the "OMG command prompts are spooky" one that the whole blogosphere is up in arms about. A few of these allegations were actually related to the emails which the detective was investigating, so he summarized the entire interview in his affidavit.
Then, when the whole thing went public, it was made to look as if the police was considering the use of dual-booting and command lines to be suspicious. I can see that the informant was ignorant, paranoid, and malicious – but what evidence do we have that the detective shared this ignorance? This seems to be based only on the fact that he included the informant's ignorant statement in the warrant application. But he explicitly introduced it as a statement from the informant:
[The informant] reported that Mr. Calixte used two different operating systems to hide his illegal activities. One is the regular B.C. operating system and the other is a black screen with a white font which he uses prompt commands on.
Now, I would assume that the detective follows the rule that when he applies for a warrant, he will disclose to the court everything the informant told him about the subject. I don't know whether such a rule is actually written down in Massachusetts, but even if not it sounds like a sensible one to follow.
Assuming that the detective follows such a rule, I can see nowhere in the warrant application where he, in his own voice, asserts or even implies that using Linux is suspicious.
You seem to prefer that the detective, on his own initiative, should have decided that the informant's remark about dual-booting into Linux were irrelevant to the case at hand, and therefore he should have omitted them from the warrant application. I think that is a very dangerous direction.
Surely we don't want police to hide exculpatory evidence in their possession from the court when they apply for warrants.
Do you really trust the police to distinguish correctly between "irrelevant information" and "exculpatory information" when they put together a warrant application?
I don't, and I would much rather see police leave in a few irrelevant statement from informers than neglect to mention facts that might contradict probable cause.
In fact, a good judge might take the entire laundry list of disparate allegations from the roommate as a sign that the roommate was grasping at straws for ways to get Calixte in trouble, thus reducing the roommate's credibility. If they had been left out, Calixte would really have had cause to complain.
Sincerely yours,
Henning Makholm
In EEOC v. Lee's Log Cabin (7th. Cir, 2008-10-06) I read this marvellous piece of logic:
The dissent also asserts that "[i]t is undisputed that at all relevant times, Stewart was not only HIV positive . . . but she also had AIDS. So the allegation in the complaint that Stewart was 'HIV positive' is consistent with the fact that she has AIDS." Dissent, at p. 18. No, it's not, but the opposite is true. That is, an allegation that Stewart has AIDS is consistent with an allegation that she was HIV-positive, but not vice versa. If a person has AIDS she is necessarily HIV-positive; but a person who is HIV-positive does not necessarily have AIDS.(footnote 3). In the kind of logic I was taught, "consistency" between two propositions means that it is conceivable that both can be true at the same time, or (more syntactically) that assuming both will not let you derive a self-contradiction. This is a symmetric notion. It makes no sense to assert that A is consistent with B yet B is not consistent with A.
I wonder whether there is a particular legal meaning to "consistent" which is different enough from the logical one to make the above quote senseful.
In the beginning there was no copyright.
Books were written (and music composed) by men of independent means, or by talented men sponsored by princes and nobles, or by scholars or clerics who were fortunate enough to have the power to decide that writing a treatise on this or that just happened to be part of their own duties. Somehow world literature got along.
Then somebody invented the printing press. The press, together with other technological advances during the 1400s, made mass production of printed books a feasible alternative to hand copying of manuscripts. And this changed everything.
First and foremost, printing books is a capital-intensive undertaking. In addition to the cost of the printing press and its various paraphernalia, setting type by hand is slow and costly. It makes sense to analyze the typesetting cost as capital rather than labor, because once the type is set, you can print copies of the book very cheaply. You can make your customers pay quite a bit more than your marginal cost for each item you sell, which will allow you to break even in the end. And the customers are not going to care whether you've broken even or not, so you can still charge the high price after you break even. If there's enough demand for the title, printing books can be quite a profitable business.
Now, printers who choose to print books that turn out to be popular become rich; printers who choose badly do not. If we assume that the popularity of one title over another is due to some special talent or effort expended by its author, it begins to look quite unfair that the printer should become rich because of them and the author get nothing. That is what the first copyright laws set out to remedy, after the changes wrought by Gutenberg had had a few centuries to sink in.
Actually, it was a bit more complex than that. Publishers – who around this time were emerging as a separate trade of funders and distributors of books – also benefited from copyright: Regulation of who could print what reduced the risk that another publisher would start printing the same book, leading to a price war (which would lose money for both printers as the the price per copy dropped towards the marginal production cost). But the moral justification for having a copyright system in the first place was that it let authors get a cut from the profit when the quality of their works became the foundation of somebody else's business.
During those same centuries, medieval religious drama gave way to professional theatre, and instead of semi-improvised lines that changed with time according to audience reactions and the actors' own wit, plays came to have written-down scripts authored by named playwrights. Theatre was now a business, and a company could make a profit with a good performance of a good play – and thanks to the printing press, the playwright need not be affiliated with the theatre company.
In music, partly in response to the demands of theatre, ensembles grew in size and complexity – beyond the point where the performance could be structured by oral agreements and remembered tunes. Music notation expanded to meet the needs of orchestrally scored music. Eventually the public concert where professional orchestras performed for paying audiences was invented. Having a good work by a recognized composer on the billboard certainly helped draw in those paying audiences.
Playwrights and composers must now suffer that not only could publishers make a business of printing their work, companies and orchestras could make a business of performing them. In response, copyright expanded to cover "public performances" in addition to simply the making of physical copies.
As I have insisted above, the moral purpose of copyright was still to save creators from the indignity of seeing somebody else build a profitable business upon their work without getting a share of the success themselves. But as a side benefit, creators who did create successes got an income source and the opportunity to quit their day jobs and create yet more successes. This benefits society as a whole. It was seen as an independent motive for copyright as early as 1787, when the drafters of the American constitution allowed for federal copyright legislation "to promote the Progress of Science and useful Arts".
Sound recordings were invented in the late 1800s and quickly integrated into the basic structure of copyright. They fit well there, because it requires specialized and expensive equipment to manufacture records, and large specific costs to prepare a recording for being mass produced – exactly the qualities that made copyright the right legal tool for printed books centuries earlier. As for books, creators of successful records have been able to quit their day job, sometimes spectacularly so.
Movies also got copyright. Again, production of film prints is a specialized commercial operation, and public performances is usually organized by businesses too. This fits the philosophical framework of copyright fairly well – though in comparison to a novel or a symphony, which are usually the work of an individual genius, creating a movie is quite a team effort. Copyright fairly easily let itself be extended too deal with large team efforts.
In each of these successful cases, copyright has felt like a right and just tool, because the activity being regulated – whether printing a book, performing an opera, stamping a record, or showing a movie – was naturally and necessarily a commercial undertaking. Done by a business. For a profit, which it is only reasonable to share with a creator.
Well, well, well. Guess what is not true anymore?
We see the underlying assumption break down most clearly for recorded music. For at least a decade there has been no practical reason why copies of sound recordings need to be made by a business rather than by private individuals. The technology is cheap and ubiquitous, and the shift in public perception of copyright has been quick and pervasive. Very few people today really feel that it is morally wrong to create an unlicensed copy of a commercially released song they like. Those of us who nevertheless refrain from doing so do it for the warm fuzzy righteous feeling of complying with the law even when the law is unreasonable.
Movies are not far behind music in this development. Many kinds of books still hold out, because people like the feeling of real bound paper books better than reading from a computer screen. But if print-on-demand hardware becomes ubiquitous enough that bound paper books are not made by specialized businesses anymore (or if really acceptable ebook readers emerge), I predict that the respect for copyright of books will go the same way as that for music. And, of course, already some kinds of non-fiction books are dying breeds, being replaced by free internet versions.
Music and movie publishers everywhere know all this, and are understandably all up in arms. Their response so far is threefold:
If successful this would lead to a nightmare world, but I don't think our politicians are that stupid. We have Vernor Vinge, Cory Doctorow and the EFF to explain why this shouldn't succeed; overall they do it well enough that I think it won't.
At best, this is a short-term stopgap. At worst ... well, it doesn't really seem to have the desired effect out in the real world, does it? If anything it seems to reinforce the perception of copyright as an instrument of oppression, rather than a rule that works for the common good.
The hidden assumption of the argument is that the creator suffers some kind of moral wrong each time someone enjoys his work, and that the purpose of royalties is to compensate him for that wrong. But what is that wrong? It cannot really be the lack of opportunity to capitalize on the copyright, because the whole point of the argument is to motivate copyright in the first place. But stripped of that explanation, the assumption is simply stupid – creators want their work to be enjoyed, and are pleased when people do so. True, they also want to quit their day job, which requires that income can somehow be derived from the work, but it does not follow that this income has to be in the form of per-copy royalties. And wanting the conclusion to be true does not make the argument hang together.
I think all three responses are likely to fail in the end. Copyright is doomed. It may take decades, or even centuries, for it to die out completely, especially because it has been entrenched in international treaties which are very difficult to change. But die out it must, for it cannot persist in a world where copying is no longer expensive and complex.
This state of affairs creates a political obligation to think ahead. We still want want the world of tomorrow to be one where talented creators can quit their day job and create more. The challenge is to think up a system that does this and still respect the technological reality.
It is tempting to take as a starting point that creators should be rewarded in proportion to the enjoyment people derive from their work. But the trouble is that enjoyment is not easily quantified. In a way, the copyright system uses "number of copies" as a proxy for "amount of enjoyment", which works rather poorly. When making and keeping a copy is cheap and easy, people are likely to keep a copy of every work that they don't actively dislike, whether that work is one of sublime genius or merely passable.
There's a movement towards using "number of listenings/readings" as a proxy for amount of joy, such that if you want to read a book again you have to pay anew. This doesn't work well either. Many a time when I sit down to read a book, it proves to cause me no enjoyment at all and I conclude that the book is horrible. And when I reread a book it may not be because I enjoyed it the first time, but because I need to look up a dry fact about it.
I doubt a working calculus of joy can be developed. How about explicit public subsidies to outstanding creators, awarded by expert committee? That is already common in countries with languages that are perceived as too small for a national literature to flourish funded entirely by copyright, such as Danish. But I don't think it is attractive as a general solution; too much power is concentrated in the hands of the committee, and even with the best of intentions the committee cannot possibly have enough information to make a really informed choice.
Despair and accept that day jobs must be had? Most likely, music and literature would continue to exist – the equipment necessary to create either is within the reach of determined hobbyists. Movies wouldn't, however; it is mindbogglingly expensive to create a movie at the technical quality modern audiences expect. Can that be covered by the box office alone? Probably not in the long run, what with the increasing quality of home AV equipment. And a plan that means that movies cannot be made is not politically viable. Exit "despair".
I am left, for the time being, with no good proposed solution. But that does not make the problem go away. It is still there, whether we like it or not, and solving it before the death throes of copyright end should be high on the list for politicians concerned with culture.
I found this judgement through a Groklaw article some time ago. Recently I desired to reread it, but it took me quite a lot of tries to remember sufficiently precise search terms to locate it again. Clearly it has not received enough link love.
It's about a young couple who bought a house and cut down a mulberry tree which leanend over the backyard but actually belonged to their new neighbour. The neighbour sued. Fairly banal case, except that it is presented with hilarious wit.
I give you Thayer v. DeWolf, memorandum order by Magistrate Judge Goodbread, who I think would make a good hacker. Respectfully recommended for your reading pleasure.
Some time ago I confessed that I read American court documents for fun. I cited the quality of some judges' writing as a reason for that, but a side benefit is some indirect insights into the half-continent of madness that is the United States of America. And sometimes, by contrast, into little old Denmark too.
Consider this recent case, Gonzalez v. Aurora. Several people from a western suburb of Chicago sued their city council, demanding that its voting districts be revised such that their particular racial group would be likely to get more seats on the council. Plaintiffs lost in the lower (district) court, and now they lost in the appeals court too. The court's opinion does not have the kind of dazzling rhetoric I wrote about earlier. But it made me think, about the differences and similarities between the political system it describes and the one I'm used to.
It probably ought to startle me that this matter is considered something that a court should decide at all, but it doesn't. In USA, it seems, everything is a potential matter for court intervention. Everyone who doesn't live in a cave probably heard about the 2000 presidential election.
What does trouble me a bit is that the plaintiffs' argument seems to assume that the voters in Aurora decide who to vote for using candidates' race as their first and final criterion. Such voter behavior is not unheard-of – in semi-failed post-colonial states suffused with mutual distrust between clans and ethnicities who find themselves sharing political structures by way of historical accident rather than sharing a functional society. But in a modern democracy with everybody integrated in a common economy? I know that when I go to vote, I try to vote for the candidate who shares my political views the most, rather than one who shares my complexion.
It might seem equally troubling that the appeals court willingly accepts this strange theory. But the court did find against the plaintiffs, and it makes for a stronger and more persuasive opinion if the court goes along with the losing party for the sake of the argument until the critical point where the loser's case breaks down. Implicitly, the court says "even if you were right about all this, you'd still lose because so-and-so".
But what really got me thinking was the unquestioned baseline assumption that most councilmen have to be elected in single-seat wards. Voters who happen to agree with the majority in their local ward get to be represented. Voters who are in a local minority become virtually, or nearly, disenfranchised. It doesn't matter if some political stance has a uniform 49% following everywhere; it gets zero electees because its popular support is insufficiently clumped.
I have heard people trying to justify such a system, but I've never been able to grasp their arguments. Why should geography matter? When I go to vote, I try to vote for the candidate who shares my political views the most, rather than one who by some quirk of the housing market happens to live close to me.
This would be quaint and amusing if is was a specific rarity of Aurora, Illinois. But it is sad that it is actually quite common. Most famously, perhaps, with the electoral college by which Americans chose their president. It is not a particularly American phenomenon, though. The UK House of Commons works the same way. And the way we elect the European Commission is perhaps the most indirect, convoluted and opaque of all, closely followed by the Council of Ministers which has the final political say in all matters EU.
Closer to home – in Denmark municipal councils are elected directly and proportionally, simple enough. But elections to our national parliament the Folketing, use a weird mix of geographic and proportional methods. Some members are elected in regional districts, with a number of additional at-large seats distributed afterwards such that the final party make-up of the parliament will get as proportional as possible. Then there are complex and elaborate rules for simultaneously distributing the at-large seats to ensure approximate geographical proportionality in the parliament as a body, as well as within each party.
Active politicians care about this system, because it decides which among each party's candidates win a seat, a matter of paramount importance among those running. Almost nobody else does, and look only to the final party breakdown (which, being guaranteedly proportional, can be understood without resorting to geography). When I've been a poll worker at general elections, some voters were obviously confused because the political leader of their choice was not on the ballot – he or she were running in a different district. Again, why should geography matter here? A smart voter tries to vote for the candidate who shares his political views the most, not one who happens to live in the same part of the country.
And, adding to the confusion, the district a candidate runs in does not have to be the district where he or she lives. In fact, for top politicians it is the exception more than the rule. Each party selects the running districts for its top candidates tactically, to maximize their chance of election given the above-mentioned rules that ostensibly exist to equalize the geographic origin of the MPs. Except that what it really equalizes is virtual pseudo-origins chosen solely based on the rules themselves.
Excuse me, but I fail to see that society at large benefits at all from this convoluted system.
(... now where was I? Something about a court and a city council in Illinois, I think. You mean I was supposed to have a point about that? Sorry. Still new to this blog thingie).
No long-time reader of this blog would accuse me of being a prostrate admirer of everything American. But one thing I do find quite nifty is the detailed and well-reasoned judgements their court system produces. They're generally freely available on the web. They are fairly accessible once one learns a few key words and turns of phrase. Some of them are even entertaining reads, in the best sense of that word. I often wish we had something like them in Denmark, where analysis and discussion are not usually found in court rulings.
Now, before you all lynch me, there are certainly many features of the American legal system that I definitely would not want to import. For example, the ground rule that each party in a lawsuit ends up paying his own lawyer's fees, no matter who wins (except when there is an explicit statutory provision otherwise) is not one I'd want to live under – it appears to encourage "nuisance suits" where the plaintiff knows that his case would likely not survive an actual trial, but hopes to get the defendant to settle out of court for a smaller sum that it would cost him to litigate for the win that he is clearly entitled to. And the idea of using juries to decide civil suits strikes me as quaint, to say the least. Many of the laws that American judges have to apply are, of course, batshit insane, but that is hardly the fault of the judges themselves. And something appears to be seriously broken about their tort system.
None of that keeps me from liking the form of the judgements.
In particular, I've become quite the fan of the opinions written by Chief Judge Easterbrook of the U.S. Court of Appeals of the 7th Circuit. You'll find his latest opuses here, intermixed with those of his colleagues; there is no option to limit the search by author. [Amended June 15: yes there is, with RSS feeds even!]
My first encounter with Easterbrook's writing was this one in which the infamous Wallace v. GPL case was finally put to rest. As a longtime user, writer and sometimes advocate of free software, I'm of course pleased with the legal conclusions in there, but they cannot really have been difficult to arrive at. What struck me was that the writing was beautiful. At first I thought that the text I'd arrived at through a dubious chain of links couldn't possibly be the actual ruling of the court. It read more like an essay than an official document. Perhaps it was a summarizing article for some magazine? But no, this was the real stuff.
The Wallace opinion mentioned in passing that itself and similar "opinions" were available for free on the court's website, so I went there and took a look. As it turned out, not all the opinions I sampled reached quite the heights of prosely pleasure that Wallace did. It stands to reason that many court cases are inherently so full of stuffy details and other drudgery that they cannot possibly be made interesting to read about. But a fair number of them proved interesting enough reads to be worth my time.
Among the highlights is one case which opens like this:
[Defendant], a tax lawyer whose opinion letters while at [a law firm] lead to the firm's demise (it had to pay more than $75 million in penalties on account of his work), designed a tax shelter for himself, which one client owning a 37% share. Like many tax shelters it was complex in detail but simple in principle, and to facilitate exposition we cover only its basics, rounding all figures.and another one which carefully dissects of a piece of statutory language:
[...]
A transaction with an out-of-pocket cost of $6.000 and no risk beyond that expense, while generating a tax loss of $3.6 million, is the sort of thing that the Internal Revenue Service frowns on.
There remains the question whether the paraphernalia conviction relates to "simple possession of 30 grams or less of marijuana". If [defendant] had been caught with the pipe and five grams, the answer would be yes. As it happens, he was caught with the pipe and zero grams. Yet zero is less than five. The ancient Romans and Greeks did not think zero a number, but today we understand that zero is smaller than 30.You can't make that up. Some you can't even excerpt without doing injustice to the writing: this one you'll just have to read for yourself.
Yet – and this is an important point – for all the colorful (sometimes downright snarky) language Easterbrook always manages to convey the impression that justice is in fact being dealt out, and things that need serious thinking about have gotten it. Doing that while still being an entertaining read takes serious rhetorical talent.
Respectfully recommended for your reading pleasure.
(Be sure also to enjoy the excellent typography of the 7th Circuit opinions. Most of the other circuit courts whose websites I have sampled do provide the text all right, but in rather ugly formats).
P.S. I do know one good argument for having less detailed judgements in the Danish system: time. It takes lots of time and care to draft opinions to the American standard, which would not only burden the already strained resources of the courts, but also add delays of weeks or months to each particular case. The people whose actual money or futures are at stake might reasonably prefer their judgements to arrive quickly rather than being beautifully presented.
Posts
All Comments
Henning Makholm is a computer scientist and software developer living in Copenhagen, Denmark. Find out more about him on his personal website.
