Problems with books in the public domain

We live in a world where great amounts of text, including by many great past authors, are in the public domain and also actually available on the Internet.

I still find myself constantly frustrated. Part of the benefit is removed by (often entirely unnecessary or arbitrary) artificial restrictions. Sometimes, all of it is removed.

For instance:

1. Project Gutenberg, the leading source for several decades, is blocked entirely for German IPs—and has been so for several years.*

   *The reason is a German court decision relating to a small number of books. See a discussion by Project Gutenberg, including the reason for a blanket block.

   Downloading from Project Gutenberg using Tor is not possible either, at least not the last time that I checked.

2. Germany is also otherwise weak, when we look at alternatives like e.g. Wikisource compared to the English, often even Swedish, counter-parts.

   A particular problem is a pseudo-Gutenberg provider, Gutenberg-DE*, which has killed part of the market with a for-profit site and a borderline unusable web-interface. The last time I tried, it did not even work with JavaScript on…

   *I provide no link, because the site does not deserve the traffic.

3. Poor interfaces are not restricted to Gutenberg-DE (or Germany): Many sites that provide free books only work with JavaScript activated and provide no ability to download books for offline reading. Indeed, they often work on the assumption that the website should be used as a virtual eBook reader, one page at a time…

   Not only is this user hostile, but it also severely limits the options for those who do not want to expose their computers to the risks of JavaScript.

4. Even sites that provide better options and an ability to download, however, are often highly limiting through artificial divisions. Even Wikisource usually insists on dividing texts into one chapter per HTML-page. If a book has thirty chapters, they then have to be downloaded individually, be it manually or per script, and then merged into a single document. Even the reader who reads in a browser still has to open all thirty chapters individually…

   True: this might still be less effort than going to a bookstore, even price aside, but why not just allow a download as a single document? It is a one-time effort for the provider (often even less effort than providing more HTML-pages), but it saves effort for reader after reader after reader.

   Many even have a division of one book-page (!) per HTML-page, as with most entries on the Swedish Projekt Runeberg.* The reader might now have to open several hundred links to read a book…

   *Not to be confused with the above item, where the standard is to navigate the book pages per JavaScript in a single HTML page.

5. Often, the best download option is provided by sites that are on the darknet and/or also provide illegal contents, as with The Imperial Library of Trantor*. However, these automatically put the burden of copyright investigation on the downloader, and even the download of a text which is in the public domain in principle can be shady, because the specific edition provided might have further restrictions.** I typically only use these to read something that I could read for free on e.g. Wikisource, but strongly wish to read offline.

   *I provide no link for legal reasons. Also note that it is only (?) accessible through Tor. No part of this text should be seen as an endorsement.

   **I have not investigated the legal situation in detail, but I suspect that e.g. old works with a new foreword or an extensive commentary might be problematic. I would not rule out that even new cover-work could cause problems.

Excursion on varying copyright:
Varying copyright rules between different countries is another complication. This is e.g. the cause of the problems with Project Gutenberg and Germany above, because Project Gutenberg uses U.S. copyright law, while a reader in Germany underlies German law. The reader in the U.S., in turn, might have to be careful when visiting an Australian site. The combination of the often excessive copyright lengths and different laws can lead to absurd situations, e.g. in that a tourist might legally download a book in a visited country but not his home country. If he travels back with it, he would either* break copyright law or force another absurd situation, in that physical travel would overcome the difference in legislation, making this difference the more preposterous. Then again, if he downloads a greater quantity of books during the vacation and is caught in a police raid back home, how is he to prove that the download and “import” was legal?

*I do not know what the typical legal regulation is. A similar situation would apply to physical books, however, which makes me suspect that the second alternative is more common.

Unfortunately, barring an unlikely global harmonization, there are no good solutions. For instance, going by nationality or nation of residence could lead to two people reading the same book next to each other, the one violating copyright law and the other keeping it. Taking the lesser of the copyright durations applying to the reader’s and the website’s respective location might be a way, but this opens the door for “country shopping”—possibly, including countries with next to no copyright protection. Taking the greater duration would keep most of the paradoxes. Etc.

In some cases and some jurisdictions, there might be significantly reduced criteria for downloads (as opposed to uploads) or specific forms of downloads, e.g. streaming. I deliberately ignore this possibility above. (In part, because the research would be enormous; in part, because I consider such restrictions highly dubious. Why would it, e.g., matter whether I watch a video as a stream or do a regular download, watch it once, and then delete the file?)

Disclaimer:
I have not verified that described behaviors and examples are present at the time of writing. Changes for the better might have occurred.

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Unfortunate U.S. copyright developments

Copyright laws that extend too far into the future have long annoyed me, although I have written relatively little on the topic. However, as a part of a (much older) discussion of patents, I made several recommendations that are grossly violated by a suggested U.S. law*, close too passing. This included a strong focus on the author** (and the life of the author) of the work in question, limitations if the rights were sold to another party, and that the period that a copyright is valid, by law, cannot be extended.

*I draw more on a German article for my discussion, however.

**I will mostly remain with the generic term “author” below; however, in most of the relevant cases, it amounts to “recording artist”, “song writer”, “lyricist”, “composer”, or similar. I refer strictly to the author in the literal sense and not to the legal fiction implied by formulations like “for purposes of copyright law, the author of this work is XYZ”.

This suggested law could retroactively extend copyright* for some musical works to 144 (!) years, long after most of the original authors can be assumed dead**, and with no regard for transfer of rights.

*The law appears to focus strongly on “digital performance” and/or “transmission”; however, this would already cover, or could be interpreted to cover, a clear majority of all modern and copyright-relevant uses—and the proportion will grow over time. The effective difference between “digital performance” and “copyright” (in general) will likely be correspondingly small. In as far as a difference is present, virtually all of the below discussion remains valid after trivial modifications.

**Cf. calculations below; use common sense; or note that a very significant portion, possibly the majority, are dead even now—with almost fifty years to go.

The ostensible reason for this law could be seen as positive: Musical works created before 1972 have a weaker protection than works created later, based on previous changes to U.S. copyright law.

Practically speaking, this law comes too late to effectively provide the benefits it claims to provide in the majority of the cases; the time limits involved are out of proportion to newer works; and I would be very surprised if the true purpose was not to benefit the music industry, not the authors, in a highly questionable manner:

1. Works created in the span 1923–1972 will, in a blanket manner, be protected until 2067 (!), effectively implying that almost all the original authors will be dead: Even someone as young as 15 when he wrote something in 1972 would have to live to an age of 110*, in order to use up the entire time of protection. Someone who wrote a work at age 15 in 1923 would have to be 110 right now, in order to enjoy even a day’s worth of additional protection. Even our friend from 1972, if still alive, would be 61 at the time of writing—better late than never, but… Of course, the overwhelming majority of authors were not 15 and the numbers look even worse when adjusting for a more realistic age.

   *With some reservations for the exact reference point of each of the involved years.

   If the law was actually geared at protecting the authors’ interests, it should have been shaped very differently—and passed a lot earlier. (Especially seeing that the interest in a given piece of music typically diminishes rapidly over time—the author’s death being one of the very few events that can cause a major new interest… Not only will the typical sales be less counted in items, e.g. CDs, but the price per item will also typically decline.)

2. The years involved are likely based on the already hyperextended and disproportionate 95 years used for newer works: 1923 is 2018 – 95; 2067 is 1972 + 95. Now, using a number based on current rules might have been a reasonable idea, if it had been applied sensibly. A sensible application would have been to let the copyright expire in the year of the creation + 95. In other words, a works from 1972 would indeed be protected until 2067, but a work from 1923 only until 2018, a work from 1950 only until 2045, etc. The actually suggested implementation gives the owners of older works an unwarranted advantage over those of younger works.
3. The law amounts to a change after the fact. I note in particular that there is no guarantee whatsoever that 2067 will remain the upper limit. Further, that counting from 1923 implies that almost all recordings ever made will be under copyright for the foreseeable future, possibly, eventually, forever. (To boot, those recordings that were made before 1923 will be of very poor quality by today’s standards, be it through differences in recording technology or through decay over time—if they have not been lost entirely…) Continuing the age calculations, chances are that both I and half of the readers will already be dead by 2067: I, e.g., would turn 92 in that year.

   All in all, this looks suspiciously like an attempt to ensure that music without a copyright is permanently limited to a minimum.

4. The music industry is possibly the least worthy of protection of all the copyright related: The actual authors of the music are very often detached from the rights to it, and the music industry is infamous for taking unfair advantage of its musicians. Cf. e.g. [1] and the linked-to article by Courtney Love. The implication is that this law, even timing aside, would do comparatively little for the authors and a hell of a lot of for the music industry.

As an aside, I strongly suspect that the point of long copyright terms is not primarily to get royalties on older works—but to diminish the competition for newer and more lucrative ones: A rational consumer will think twice about paying top-dollars for the latest works when there are many, many quality works of old that are available for free or at a nominal cost. For instance, my own purchases of books* have diminished considerably over the years, in favour of Wikisource, Project Gutenberg, and other repositories of free readings. Note that the music industry is extremely driven by new material, new hits, new sounds, …, that rarely have what it takes to be of note even ten years later; and that it is likely the copyright industry with the most to lose from competition from older materials.

*Books, unfortunately, is one of the few areas where a sufficient quantity of copyright-free works exist, with e.g. movies and musical recordings being limited in time for technological reasons. The same principle would apply, however.)

Follow-up: International Day Against DRM

As a brief follow-up to my recent post on DRM, a few claims* from a (German) article on a piracy study/>:

*I have not investigated the details myself, and I draw only on this source; however, the source has a very strong reputation—then, again, it is still journalists at work.

1. The EU commission ordered a study on content piracy in 2015, and later tried to suppress and misrepresent the study.
2. The found overall negative effects of piracy were small.
3. Movies saw a loss of 27 legal “transactions” (“Transaktionen”) per 100 illegal. This was dominated by block-busters. (I note, looking back at my original post, that block-busters are a prime target of organized and/or professional pirates, who are hindered far less by DRM than e.g. ordinary users wanting to make a backup copy.)
4. Music saw no impact—despite music piracy being the favorite industry target for a long time.
5. Computer games saw a gain of 24 legal transactions: An illegal download increases the chance of a legal purchase.

As for the paradoxical result for computer games, and to a lesser degree music, I would speculate that this is partially a result of an informal trial by prospective consumers: Download a product, check-it out, and then either reject the product or buy it legally. This makes great sense for games, where the total playing time often goes into weeks, sometimes even months; with a movie, many users might see no major point in re-watching even a very good movie, considering the sheer number of new releases, and more than several re-watchings are reserved for the best-of-the-best-of-the-best. Music could be somewhere in between, like the numbers suggest, and there is always the possibility of someone additionally buying other music from the same artist. I also note that in terms of “bang for the buck”, games and music usually fair far better than movies. The authors of the study, according to the above article, mention that computer-game purchases often come with additional perks, e.g. bonus levels.

International Day Against DRM

Apparently, today is the International Day Against DRM. No, I have never heard of it before either; no, I have not been able to find an official* explanation of it. At virtually the same time, the W3C has very controversial signed of on DRM on the Web. The latter is particularly disappointing, because the W3C continues its trend of prioritizing the interests of the industry over the interests of the users and the original ideals of Internet, thereby contributing to its degeneration.

*That is: I have found explanations of it from several sources (and the name is fairly self-explanatory…), but none that makes it clear that it is the originator, organizer, whatnot.

This being so, I would encourage my readers to spend some time on the topic, e.g. reading up on what the EFF has to say.

My own take is simple:

While an industry interest in DRM can to some part be legitimate, the problems for the consumers are disproportionate, often unscionable. Honest consumers see their ability to use fairly purchased products in a fair manner* restricted, while actually paying more than without DRM, because DRM costs**—and often while being exposed to security threats*** or the risk of privacy violations. Indeed, the presence of DRM is likely often what motivated an otherwise exemplary user to look for illegal copies in the first place… In addition, the (German) customer already pays compensation to the industry over other channels, notably blanket amounts added onto the price of various electronic devices and media directly or indirectly usable for copying, which are then payed out to the industry. This makes DRM at least partially**** an attempt to eat ones cake and keep it too.

*What this implies depends on the product and DRM involved, but common problems include the inability to use the product without (an otherwise unneeded) Internet connection, to move the product from an outdated to-be-retired device to a new one or to use the product non-simultaneously on more than one device, to play DVDs on a computer instead of a stand-alone player, to copy-and-paste a brief quote from a PDF file, …

**Typical costs include developing and implementing the DRM system, license cost for DRM (notably with DVDs and its infamous and useless CSS), computer resources needed to e.g. decrypt something, … Even additional hardware costs are not unheard of, cf. e.g. (the misnomer) Trusted Computing.

***Not only does DRM virtually necessitate new code that increases the risk of new bugs and new security holes, but many DRMs actually interfere with the user’s system in a dangerous and unconscionable manner. In at least one case, the methods used were indisputably illegal and caused severe security problems.

****Nominally, this is intended only to cover some legally protected uses, e.g. backups. However, firstly, the size of these additional fees and the great number of occurrences are not in, IMO, in proportion to what they nominally should cover, especially when factoring in that everyone pays them—even when never engaging in these protected uses. Secondly, a common consequence of DRM is that these legally protected uses are infringed upon, e.g. in that a backup is no longer technically possible for the average user—and might suddenly be illegal (and a lot more effort…) for the advanced user, because the mere presence of DRM illogically invalidates this right.

To boot, DRM often misses the point. Specifically, there are three main types of users that are impacted by DRM:

1. The average honest consumers, who are worse off without any benefit or compensation—definitely with no price reduction for the reduction in functionality.
2. The more-or-less professional pirates and deliberate large scale violators of other types. For them DRM is a mere nuisance—they have the knowledge, resources, and a sufficiently good cost–benefit situation that they can just work around* DRM. The actual benefit of DRM through hindering this type is very small and cannot in anyway justify the disadvantages for the average honest users. (Of course, this is the exact opposite of what the pro-DRM rhetoric dishonestly claims.)

   *“How” will depend on the details, but many DRMs are easy to get around with the appropriate knowledge. Many PDF readers, e.g., ignore DRM entirely—switch reader and presto. Many DRM keys have been cracked or leaked and are available to the pros. Tweaked software or hardware can solve much of the rest. In a worst case scenario, the latest Bluray can be played on a screen and re-captured with a camera with only marginal loss of quality—and the result is a superior product, because annoying animated menus, unskippable trailers, and other user-hostile nonsense is removed…

3. Some set of misguided people, mostly very young and/or poor, who just want to share what they have bought with their friends, e.g. through copying a CD or DVD while keeping the original. (While lending the original for two weeks and then getting it back is (still…) perfectly legal and unremarkable. Ditto just watching the DVD together.)

   The market impact of this is comparatively small to begin with, because the friends are not users who would otherwise all line up to buy the product themselves (again, the exact opposite of what pro-DRM parties claim through the calculations they present). No: Most of them will forego the product entirely, seeing that the world is drowning in other content; get the product from a professional pirate (cf. above); enjoy the one copy of the product in a legal manner (e.g. through borrowing, cf. above); or on the outside wait until the price has dropped to a more reasonable level*.

   *CDs/DVDs/… are often released at very high prices and over time drop quite considerably. The 29.99 Euro movie of today might sell for 9.99 in a years time and a fraction of that in ten years time. CDs from the 1970s are often sold five or ten at a time for 5 Euro… Calculations by the media industry seems to invariably assume that the release price is what everyone would have paid.

   For the small minority of them who would buy a given product (and many who would not), what is missing is not necessarily DRM—but often the understanding that what they do is illegal, and much of the same effect could be reached simply through better information about copyright, intellectual property, and the like.

   Again, DRM by no means brings enough legitimate benefits to outweigh the disadvantages for the average honest consumers. The problem is that the industry reaps all the benefits while the consumers bear the cost…

Democracy Lost

Churchill is claimed to have said, “Democracy is the worst form of government, except for all the others.” I have long held the same belief: Democracy is not a good form of government, due to weaknesses such as giving clever manipulators power they are unsuited for and allowing the majority to impose its will on the minority in an often unfair or destructive manner. Unfortunately, all other methods (that I am aware of and that have actually been tried) have been worse. The “enlightened despot”, e.g., suffers from the massive problem of how to ensure that the despot is actually enlightened…

Today, however, we are at an absolute crisis of democracy, where the leaders elected are problematic or even disastrous; where the “democratic ideals” are increasingly neglected in the name of democracy; where democracy it self just becomes a charade to keep politicians in office and lobbies in charge; and where the voters’ concerns are only relevant to the degree that they can be used for (re-)electing politicians, implying that only the concerns of the broad masses are on the table and that party “information” becomes misinformation geared at the dumb and easily manipulated. In many ways, the modern politicians are as separated from and have the same attitude towards the people as the likes of FIFA and IAAF* have towards their respective athletes. Where politicians should see themselves as the voters elected representatives and servants, they too often see themselves as the elected conservators and masters; while the voters do not so much exercise a given right as they pose a bureaucratic obstacle to keeping the politicians in office.

*I had repeatedly warned against these and similar organizations (IOC, PETA, various UN organizations, …) years before the recent scandals broke. In part, because I had observed much negative behavior, especially a disregard for the best of the athletes and the sport (more generally, the ostensible raison d’être); in part, because it appears to be general principles that organizations slowly become mechanisms for their own self-preservation and that power-hungry opportunists drift to the top. Many of these organizations have a monopoly in their area of activity and the people in charge can be so for decades, with little or no accountability to the outside world or the athletes, and are therefore extremely vulnerable to these principles.

Democracy is degenerating into a caricature of it self. More: While democracy has never worked more than adequately and has often failed locally at different times (especially in countries lacking a democratic tradition), we are now standing the risk of global failure. More yet: One of the greatest selling points of democracy used to be that it was “for the people”, not “for the ruler(s)” or “for the state”—and this does not apply more than nominally in today’s world.

Often, the best we can hope for is politicians who do less harm than others. Obama did very little good, but (with some reservations for yet unknown long-term effects of ObamaCare) he also did very little harm, and by that standard he deserves a passing mark.

If the negative trends do not turn around, we will end up in a scenario halfway between “Nineteen Eighty-Four”* and “Idiocracy”, with a regular dose of “panem et circenses”.

*I almost renamed this article “Twenty Sixteen”, seeing that Orwell’s work is far more relevant to the text than Milton’s.

The U.S.* presidential elections are a good case in point: For all practical purposes, they are just another popularity contest along the lines of “American Idol”. Take Obama: What does it matter whether his wife is considered wonderful? What does it matter whether he is a Muslim, African, Hawaiian, whatnot? What should matter is what he brought (or was expected to bring) to the table, say how intelligent or unintelligent he (and not his wife!) was, how knowledgeable or ignorant, how diplomatically skilled or unskilled, what experience he had, … Was his election and re-election based on this? No: His proponents played up his image, his wife, his (as turned out) empty “hope” agenda, and the “no more Bush” angle. His opponents tried to defame him based on issues of heritage, religion, and the like, even trying to remove his eligibility based on birth place. (Making a challenge of eligibility is of course legitimate. However, rules along the lines of “the President must have been born in the U.S” have little practical relevance on whether someone is suitable for the job. In contrast, hypothetical rules like “the President must have a post-graduate degree” or “the President must have served as a state governor or mayor of a major city for at least five years” would be much easier to defend.)

*Among the Western democracies, the U.S. is possibly the one where democracy works the worst—despite arguably having the most thought-through system. I would speculate that this is due to the age of the U.S. democratic system, with “FIFA-ization” simply having had more time to do its damage, possibly aided by the earlier and wider spread of television. (Cf. how Kennedy allegedly beat Nixon due to a better television performance.) The common use of public elections to appoint e.g. district attorneys is likely harmful. The emphasis on individual politicians and not parties (as in Sweden and Germany) almost certainly increases the populism and the vulnerability to lobbyists, but could have positive counter-effects e.g. through diminishing the role of organizations (and thereby the “FIFA-ization”).

Of the three current main candidates, all appear unsuitable for the job and each could do considerable damage if elected. Sanders is disturbingly far to the left. Trump seems to be off his meds. Hillary* is a corrupt opportunist (as was revealed repeatedly during her husband’s presidency), appears to have a distorted world view (e.g. regarding feminism), and has a political career that consists of gifts from others. In fact, her main strength is campaigning and public relations… (Between her and Bill, this is probably her fourth preliminary campaign, to which we can add two presidential campaigns, her senatorial campaigning, Bill’s gubernatorial campaigning, possibly campaigns for smaller offices at some point in time, and likely some involvement in at least the campaigns of Al Gore.)

*When I hear “Clinton”, I still think “Bill” and I suspect this is the same with most people outside the U.S. “Hillary” reduces the confusion.

As absurd it may seem to someone who knows my political stance (libertarian and classical liberal) and what I tend to think of the Left, I consider Sanders the least of these three evils. Indeed, since he might be the best hope we have of preventing a Hillary presidency, which is an absolute nightmare scenario, I would urge those who still have a vote to cast in the preliminaries to cast it on him. (By analogy, in a Hillary–Trump match-up for the main election, go with Trump. A Sanders–Trump match-up is harder, because there is at least some possibility that Trump is merely playing the opinion or trolling the election process, with the intention of being far more reasonable should he be elected. If so, he is the better choice; if not, Sanders is slightly ahead.)

The general problem, however, will not go away by voting for the “lesser evil”. To remove ourselves from popularity contests, radical measures are needed. In the specific case of the U.S. President, one way could be to explicitly forbid candidates for the electoral college to in anyway indicate a preference for a presidential candidate and to re-focus the election process on the individual electors, ideally even with the electoral college being chosen before the presidential candidates are determined: The college candidates have to convince the public that they are, individually, more suitable for the ad hoc task of electing the president than their competitors, ideally through pointing to intellectual accomplishments, experience, education, whatnot. (The actual implementation would have to be carefully thought through, especially in order to prevent a candidate’s unofficial preferences for President from being well-known, despite an ostensible lack of preference.)

A more general solution (that I have repeatedly suggested) is to set competency based limits on eligibility for both voters and candidates for office. For instance, presumptive voters could take a test to determine their ability to think critically and rationally and to see through political propaganda. (However, tests based on opinion or even knowledge must not be allowed, because these would very soon be abused to limit the right to vote to those having the “right” opinions, thereby defeating the democratic process. A test of thinking, in contrast, is only marginally different in principle and purpose from the age restrictions that are in universal use.)

An important point of democracy, too often forgotten: There are certain rights that are usually grouped with democracy in a blanket manner, but which are actually unrelated—and more important than democracy it self. Consider e.g. freedom of speech and thought or the right to due process. (To some degree these overlap with the connotations of “civil liberties”, “human rights”, and “Rechtsstaat”. More often than not, in my experience and at least outside academia, they are simply grouped together with “democratic rights” or “democratic principles”.) Keeping a true democracy running without (at least some of) them is hard; preserving them in a non-democracy might be even harder. Still they are not inherently linked to democracy. Indeed, there are many officially democratic countries that try to limit these rights and in doing so they become lesser than (hypothetical) non-democratic countries in which the rights are preserved. To take a few examples:

1. Crimes related to sex are often given a drastically different treatment than other crimes, which undermines principles like “due process” and “Rechtssicherheit”. The underlying reason for such principles is, somewhat simplified, that no-one should be arbitrarily punished without having committed a crime or punished in disproportion to a crime actual committed. (With regard to criminal law. Civil law is the same m.m.) This is not just to reduce the risks of incompetence—but even more to reduce the risk of deliberate abuse of the legal system. This applies particularly to abuse by the government*.

   *Generally, a constitution, bill of rights, system of government, whatnot, must not be based on the assumption that the leader(s) of the country, governmental agencies, and individual civil servants are never evil (or incompetent). On the contrary, one of their most important tasks is to protect the people against this very risk. Unfortunately, this is something that most politicians fail to grasp—thereby proving the importance of the task…

   However, we now can have situations where no-one (ideally) can be arbitrarily punished for e.g. theft and murder—but easily could be so for rape (sexual abuse of children, whatnot). What then is the benefit of preventing arbitrary punishment for murder? A hostile entity (e.g. a government or a powerful personal enemy) simply forgoes the murder accusation and trumps up a rape accusation.

   For this reason, it is imperative that sex crimes are not treated differently than other crimes, no matter how easy it is to play on emotions. (The irrationality often present is proved e.g. by rape carrying similar penalties to murder in the U.S. and how some debaters actually seem to consider it the worse crime—a stupidity so abysmal that its sickening.) If someone accused of murder has the right to the presumption of innocence, then so must someone accused of rape. If someone accused of murder has the right to face his accuser, then so must someone accused of rape. If an alleged victim of attempted murder is cross-examined by the defense, then so must the alleged victim of a rape. Etc.

   Notably, “strict liability” has no justification whatsoever in criminal law, be it with regard to sex or other areas. All cases where a punishment is reasonably due (in the absence of unlawful intentions) can be fully covered by variations of negligence. For instance, someone who fires a gun in an apartment and accidentally kills a neighbor is negligent, because any reasonable person should have realized that this action endangered the lives of others. A large corporation is almost always negligent when inadvertently breaking laws, because a duty* to have sufficient legal knowledge or to make sufficient legal consultations can be assumed. In contrast, someone having sex with an underage person who professes to be of age and looks it to boot, cannot be considered negligent without additional proof that a reasonable person should have suspected something foul.

   *Typically, the legal system of a given country will assume such an obligation for entities, including natural persons, in near blanket manner. However, I am very skeptical as to whether this is ethically justifiable and compatible with a sound legal system, especially considering the horrifyingly large number of laws and their complexity. In my opinion, natural persons should be given considerable leeway, outside a certain core set of laws where knowledge can reasonably be assumed and demanded. (Better yet, if the average person cannot be presumed to understand or know that something is a crime, there is a fair chance that it should not be criminal to begin with.) Corporations, especially major ones, are a different matter.

   This the more so, as many sex crimes are in fact Orwellian “sexcrimes”: In the modern West, homosexuality is perfectly legal; a few decades ago that was not always the case and in other parts of the world it still is not. In Germany, someone 60 years old can legally have sex with a 16 y.o. partner*; in some U.S. states, someone 18 years and 1 month old can see his life ruined over having had sex with a 17 years, 11 months old partner. (In both cases, assuming mutual consent.) In Germany, prostitution is perfectly legal; in the U.S. it is not; in Sweden and (until this month) France it used to be legal, before campaigns of misinformation and misrepresentation forced the illegality of the purchase**. Indeed, I strongly suspect that some who call for changes in legislation have a hidden agenda. For instance, making sex with a 17 y.o. a strict liability statutory rape, will not merely cause people to stop having sex with 17 y.o. looking people—it will also make them a whole lot more careful about having sex with strangers who appear to be in their early to mid-twenties, about having sex while drunk, and similar. Similarly, extending bans on child porn to include not merely (proper) children, nor even just “children” below the age of 18, but depictions where someone above 18 pretends to be below 18 or could be taken to be below 18, is absurd and idiotic—unless we assume that this is just an indirect way of attacking porn in general, merely using the pretext of attacking child porn (and thereby avoiding the strong protests and resistance that would follow an attempt to ban porn in general).

   *I am not necessarily saying that this is a good or a socially accepted combination (certainly not a likely one). The point is that it is very weird (and usually a sign of too restrictive laws) when one highly developed and “modern” country declares something illegal that other highly developed and “modern” countries allow. Even within the U.S. there are odd variations from state to state.

   **But not the act of prostitution it self. The asymmetry is absurd, illogical, and incompatible with how e.g. narcotics are handled (the buyer or possessor is often not culpable, but the seller is). If nothing else: If the purchase is illegal, then the prostitute is enticing others to a criminal act, which would normally (and justifiably) be criminal.

2. Germany has considerable restrictions on freedom of speech and expression, notably in that a number of symbols and greetings associated with the Nazi movement are forbidden. While to some degree, for historical reasons, emotionally understandable, there is little or no rational justification and it remains an undue intrusion on the rights of the individual. In stark contrast, the (largely common) symbols of GDR, the USSR, and other Communist dictatorships are not forbidden, even though the crimes of the USSR match those of Nazi-Germany and the GDR showed the same disregard for the life and rights of the individual. (More generally, unfortunately, and contrary to Leftist propaganda and Hollywood movies, there is nothing uniquely evil about Nazi-Germany. History is full of qualitatively similar examples, the difference being a matter of scale and success, which, at the time, where unprecedented.) To make matters worse, there are ongoing attempts to ban the strongly nationalist and allegedly Neo-Nazi NPD while a direct continuation of SED (the governing Communist party of GDR) is sitting in parliament. Notably, these attempts are directed not against actions but against opinions* and Leftist extremist often call for blanket bans on all claimed** Nazi and Fascist organizations. Claims for bans have even been raised against upstart AfD, currently the third largest party in Germany. Populist, yes; unconventional, yes; disliking the “old” political parties, yes. More ban-worthy or extreme than the other parties in parliament? NO! Fascist is as Fascist does: The organizations that want to ban other organizations for their own benefit are the ones that deserve to be banned.

   *In my understanding of German law, a ban would require more than opinions and to boot something specifically “anti-constitutional” (“verfassungswidrig”); however, I have seen little or no evidence of more than opinions and those Leftist extremists that call the loudest for a ban appear to ignore the question of constitutionality. Further, in as far as the opinions of the NPD, themselves, are anti-constitutional, they are so partly or wholly because the German constitution makes too far-going attempts to regulate what is the right opinion to have and the right way to do things, in manner that is not worthy of a modern Western country. (I have toyed with the idea of a deeper analysis, but have so far not executed the idea.)

   **The degree to which this classification is correct is often disputable. As I have noted again and again, words like “Nazi”, “racist”, “sexist”, are often used in a highly inappropriate manner by the Left (the politically correct, feminists) in order to unfairly discredit their opponents (or through pure incompetence); similarly, it is quite common than an anti-immigraTION sentiment is considered anti-immigraNT or even anti-foreigner, or an anti-IslamISM statement considered anti-Islam or even anti-Muslim. In the specific case of NPD, they have many opinions that I find absurd, but if the Nazi claims apply (of which I am not yet convinced), they still make no demands for an invasion of Poland or extermination of Jews. In addition, as absurd as I consider some of their opinions, they are no worse than many Leftist extremists, and in areas unrelated to nationalism and the like their opinions often coincide with other parties. Indeed, having read up a bit during the writing of this article, I find them to have quite a lot in common with the Left in areas like economic policy and the traditional Leftist anti-EU, anti-globalization, anti-nuclear-power, …, stances—an observation I have made repeatedly with organizations considered to be on the extreme Right, including the Swedish SD. People on the “extreme Right” are often actually people that would have been considered on the Left, except for the addition of nationalist (etc.) opinions. To a non-trivial degree this applies to NSDAP (the original Nazi party) it self, even in its self-perception and deliberate presentation: The “S” stands for “Socialist”, the “A” for “Worker” (“Arbeiter”).

   Analogous to the above “sexcrimes”, this just amounts to Orwellian “thoughtcrime”.

3. The surveillance mania of allegedly democratic governments is reaching a point which is, yet again, Orwellian. In light of the common knowledge of the Snowden revelations, I will not go into detail of what is already known to be implemented. However, I will give special mention to the recent attempts to force Apple to manipulate user devices according to governmental wishes (albeit by the judicial branch) and the suggestions for legal restrictions on encryption: Encryption should only allowed if its breakable (thereby rendering it almost useless). Similar calls have been made for a requirement that encryption providers also provide explicit back-doors or keep keys that they can hand out to the government at its will (making encryption useless against the government and opening a major security hole that non-governmental attackers will love). Some jurisdictions already require users to “voluntarily” hand out their encryption keys and passwords to allow governmental access. Other suggestions with a somewhat similar motivation is to remove large bank notes or put upper limits on the size of cash transaction, for the purpose of making anonymous payments impossible.

   Big Brother sees you…

   As an aside, I am very strongly in favor of legislation in the other direction (and use encryption extensively, myself): In order to protect the citizens from the government, such attempts to break encryption, engage in digital surveillance, accessing private computers, …, must be made illegal even for the government. (As should access to some non-digital forms, notably private paper diaries.) In particular: A computer can tell us so much about someone that such access is unconscionable. Firstly, many (including yours truly) use their computers as an extension of their own memories, making the intrusion tantamount to an intrusion into their actual heads. Secondly, many use their computers to record highly private thoughts, including for diary and (as I once did) therapeutic purposes. Thirdly, a computer can indirectly give us enormously detailed information about someone—too detailed. (Including highly intimate information, such as porn habits.) Fourthly, a computer will almost certainly contain communications with other parties that can be damaging to them or be of a type that they justly wish to remain secret to third parties, including e.g. exchanges of romantic emails and confidential business communications. Fifthly, digital evidence is so easy to forge* that it must only be admissible in court when the absence of manipulation can be proved, which is basically impossible to do when third parties have extensive access to a device, making most uses of such surveillance and access pointless to begin with.

   *In the vast majority of cases, no forgery will take place—true. However, it does happen even today, even in countries like Germany or the U.S. Cases where a DA seeks a conviction irrespective of guilt and innocence occur; where an investigator “knows” that someone is guilty and resorts to fabricating the evidence he lacks; where the accused has personal enemies who influence the investigation; … Worse: There is always a risk that times change and that, for instance, politically motivated persecutions through the justice system become common. “Due process” that is based on the assumption a benevolent justice system can never be true due process.

4. The influence of lobbies does not only result in sub-optimal economic decisions, but also poses a severe threat to the rights and interests of the population. Among the many examples, consider changes in copyright legislation to postpone the time that works enter the public domain*, absurd restrictions on how a purchased good might be used (e.g. bans on backup copies of DVDs; as opposed to reasonable restrictions like a ban on arbitrary distribution of copies to third parties), attempts to reduce customers’ privacy from corporations, …

   *At what time and under what circumstances this should take place is ultimately arbitrary and the right to read books free of charge is something very different from the right to free speech. However, there have been repeated adjustments upwards over time (often retroactively), without the underlying ethical issue having changed, and through lobbying or other “para-democratic” means. To boot, I suspect that these changes are not only intended to favor the copyright holders—but also to artificially reduce competition for newly released works. While the nature of the change is my point above, I do find the often used criterion of 70 years after the author’s death to be excessive. Notably, these 70 years will almost always be longer than the time the actual author enjoyed copyright protection… If I had drawn up the rules, I might have gone with something like the author’s death or 30 years past first publication, which ever comes last: This protects the rights of the author (which is the most important), gives the heirs a fair slice even if the author drops dead the day after publication, and provides a sufficient time of use and security for third parties to not rule out buying the rights—while ensuring that the public domain is enriched in a reasonably timely manner. Alternatively, copyright could be entirely open ended, but associated with a rapidly increasing fee after the death of the author. (As an aside, I have grown increasingly skeptical to awarding non-natural persons rights outside of what is a business necessity, including copyright and free speech, seeing that these often lead to abuse like outrageous misrepresentations in advertising being called free speech or record companies snatching up the majority of the profit from the musicians’ work. Such rights are possibly better tied to natural persons only, with appropriate changes in business models where needed.)

Even the democratic process it self can be circumvented. Consider e.g. how the current German government consists of a coalition of two parties whose ideologies, economic policies, and whatnots are so drastically different that forming the coalition betrayed the confidence of their respective voters—and potentially made further elections unnecessary: They could, strictly theoretically, just make a behind the scenes deal to always form a coalition and potentially govern uninterrupted for decades, irrespective of the votes given. Or take the tricks of the Swedish parties against SD: Exclusion of SD from committees, parties voting against their own program rather than allowing SD influence on the vote, … This goes beyond the unethical-but-established practice of making election promises while crossing ones fingers—here the parties ignore the reasons why people voted for them in order to follow their own agenda.

The reader may be surprised that I have not included the rise of strongly populist parties, so common in Europe at the moment, that have a limited number of core issues, an incomplete overall party program, and a main theme of “we don’t like the way things are”. (In Sweden, they are termed “missnöjespartier”—“malcontentment parties”.) The “conventional truth” among the established parties and the press is that these malcontents are an evil and a proof of the stupidity of the masses—which would fit in well with my above discussion. However, I very strongly disagree with this premise: These parties show that there is hope for democracy, that the people is not satisfied with being the puppets of the politicians, and that the political landscape can change. In as far as they are problematic, they are just a symptom and not the disease. The common criticism that these parties often lack experience, competence, and a developed party program can be true, but before they actually become part of a government, if ever, they will typically have plenty of time to improve–and it would be a grossly unfair Catch-22 to exclude parties based on deficits they need inclusion to remedy. If nothing else, their presence can shake the old parties out of old habits.

Similarly, I have not included the sinking participation of eligible voters in elections: Yes, this is potentially bad, but it is also just a symptom of the underlying problems. I have, myself, not voted in the past fifteen years or so, despite once being politically active, because there are no parties and preciously few politicians that I find myself comfortable supporting. At best, I could vote for yet another “lesser evil” and I, as do many others, prefer to let my non-vote be a message of disapproval to the politicians. What I consider far worse, truly worthy of lament, is the reactions of some politicians: Instead of realizing that voter participation is a problem that they have caused themselves, they blame the non-voters… I have even heard statements along the lines of non-voters not doing their civic duty! The right to vote and to participate in the democratic process is a right—not a duty. (And, as above, not voting can it self be a deliberate message.) Quite often, I have heard claims that it is important to vote, irrespective of what one votes for or whether one feels informed enough, which is turning the world on its head: If someone does not have a clear opinion, it is most definitely better to stay at home and reduce the problem of the uninformed selecting our leaders. The attitude towards both the citizens and the democratic processes that shines through in these reactions is horrifying. Whether they are stupid, despise their voters, try to increase their legitimacy*, …, politicians like these have no business seeking office.

*A higher voter participation implies a higher degree of (perceived?) legitimacy, because if someone claims to be elected by the people and does not have even close to a majority of the people’s vote, well, it is simply not very credible. In Germany and Sweden we can have situations where 80 % is eligible to vote, of which 70 % does vote, of which 90 % of votes actually have an effect (votes on parties below 5 resp. 4 % are wasted, because of a cut-off, some votes are sorted out for formal reasons, etc.), and the eventual premier belongs to a party that received 40 % of the votes that did count, relying on the support of smaller allied parties to gain a parliamentary majority. In this scenario the support of 100 % * 0.8 * 0.7 * 0.9 * 0.4 = 20.16 % of the overall population or 25.2 % of the eligible population is needed—elected by the people, my ass! Now, if everyone voted, and no-one voted on new or fringe parties (or the fictitious but popular-in-Sweden “Donald Duck Party”), these numbers would turn into an at least semi-legitimate 32 and 40 %, respectively. (Assuming the same distribution. However, even with a lower overall share, the original proportions would typically be exceeded by a considerable margin.) Drop the proportion of voters to, say, 25 % and the numbers become 7.2 and 9 %! No wonder that politicians react negatively to non-voters… Also no wonder that they are much against lowering the proportion of eligible voters, while at least some politicians want to increase it, e.g. through lowering the age of eligibility to 16.

Blogroll update

I have been very lazy with updating my blogroll, mostly because I never really have it mind when running around in the blogosphere. Today, however, we do have an update:

http://messerveyphoto.wordpress.com/2010/07/22/me-vs-corporate-america, a page dealing with a shady company engaging in copyright violations, is added as a support statement and to call attention to this company. Notably, the incident described is a part of a greater pattern of abuse of position, where the party with less to lose can set the rules in an unfair and unethical manner—and often does just that. The many other examples include franchisors that put the majority of the obligations on their individual franchisees, while keeping the majority of the rights to themselves, phone companies that have extremely one-sided conditions for their customers, and even the way most (all?) political/governmental systems work.

olcranky is removed according to the first-in-first-out criterion. (See also the introductory discussion.)