Michael Eriksson's Blog

A Swede in Germany

Posts Tagged ‘Law

Problems with books in the public domain

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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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Written by michaeleriksson

September 11, 2019 at 12:52 pm

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Potential flaws in the U.S. justice system (ACLU injunction against Trump’s wall)

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Apparently, an injunction against Trump’s use of Pentagon money for his wall has been overturned. (As reported e.g. in [1]. Note that the main suit continues.) While I do not really care about the wall or its financing, I did note several things that struck me as unfortunate, especially in the current U.S. climate of judicial activism.

  1. The original suit* for an injunction appears** to argue that because Congress had not authorized this use of money, Trump should not be allowed to order this use. This is, in it self, a potentially valid objection and such challenges must be allowed in order to ensure that the “checks and balances” and “separation of powers” work as intended.

    *With reservations for terminology. Possibly, e.g. “filing” or “petition” would be better.

    **Going by [1]. I have not myself studied the details, and note that such study might give a different view.

    However, the suit was not filed by Congress as the primarily (allegedly) injured party or by individual members feeling overruled. Neither was it filed by the Pentagon or someone with a high standing in the Pentagon, who might have (metaphorically speaking) chain-of-command concerns or seen an injury through other uses of the money no longer being possible. Neither was it filed by an entity that could be considered as having a strong standing in terms of e.g. protecting Congressional rights. No—it was filed by the ACLU… (Additionally, raising the suspicion that the suit was never intended to protect the division of power or whatnot, but rather followed the ACLU’s pro-immigrant and anti-Trump stance.)

    I could see a line of reasoning that a violation of e.g. “separation of powers” would infringe upon the rights of the individual citizens, making a civil liberties union a reasonable champion. However, in a situation when none of the more immediately involved parties have taken action, this strikes me as far-fetched. This especially, because the suit was filed “on behalf of the Sierra Club and Southern Border Communities Coalition” (cf. [1]). I am not aware of either entity, but the names do not point to a citizen’s rights connection (nor e.g. a “protect Congress” connection).

    There would be more reasonable other champions, e.g. the states* or the Congressmen representing the complaining citizens. (Especially, as the former might argue an own injury similar to the citizens’.)

    *There appears to be another suit that was launched by some states, which might or might not make the ACLU suit redundant in the first place. (I have not looked into the details.)

    I would raise doubts as to whether a system that allows e.g. the ACLU to file suits in cases like this* is sensible, or whether there should** be a restriction to more central parties (notably, but not exclusively, Congress and its individual members).

    *However, there might be a wide range of other cases where such a restriction is less sensible, e.g. to prevent various branches of government from colluding to violate constitutional rights. This is not the case here, because if Congress was colluding with Trump, it would have a perfectly constitutional, ethical, whatnot way of doing so—by authorizing the use.

    **Note, here and elsewhere, that I do not speak of what current law, practice, whatnot is in the U.S., nor necessarily of how it should be interpreted. Some “shoulds” in this text might very well involve non-trivial changes.

  2. The original suit was placed before District Judge Haywood Gilliam—a black Obama-appointee.

    By allowing such important matters to be treated on such a low level as the District Courts, there is a considerable risk of “court shopping”, that the plaintiffs file where there is a large chance of finding a sympathetic judge.

    Here it would make great sense to have a higher and/or a more specialized court available to handle such high-level matters, both to ensure a high relevant competence and to avoid the court-shopping issue. This especially in cases, like here, where there was a great a priori likelihood that any injunction would be challenged through all instances.

    Disclaimer: I cast no aspersions on Gilliam’s expertise—I have no other knowledge of him than what is present in the linked-to texts. Similarly, while “black Obama-appointee” fits what a court-shopping ACLU might look for, I have no way of knowing that he actually was partial or biased. However, neither matters, because the risk is the problem.

  3. The over-turning Supreme Court was again divided “on party lines”, making it highly likely that at least one, possibly both, side[s] again looked less to the law and more to what fit an agenda. (I have already expressed opinions on which side is more likely to be at fault in [2]—and how to do it better.)

Excursion on me and the wall:
Being neither USanian nor Mexican, the issue of the wall is fairly academic to me. However, I note in favor that: (a) Illegal* immigration is a major U.S. problem. (b) There is a very, very large difference between walls keeping people out (China) and walls keeping people in (Berlin)—garden hedge versus prison wall. Further, against that: (a) It is enormously expensive. (b) It has not convinced me of its effectiveness and efficiency. (c) It comes with negative side-effects at least with regard to the environment and the potential need to expropriate private land.

*I am willing to discuss exactly what types of immigration should be deemed illegal. However, until and unless a law change is affected, the current illegal immigration remains illegal, and this is not one of the laws that people have a plausible right to ignore or subvert. (Unlike e.g. a law preventing emigration. I have vague plans for a text on types of laws and rules where this would be addressed more in detail.)

Written by michaeleriksson

July 27, 2019 at 3:27 pm

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Germany and its problematic constitution / expropriation

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Apparently, the German party FDP is suggesting a removal of an expropriation rule (Artikel 15) from the German constitution. (Thumbs up!)

Curiosity caused me to read Artikel 15 and the closely connected Artikel 14*.

*Whether this too is in the cross-hairs of FDP was unclear, but the answer has no impact on my text.

Here I found two formulations that illustrate why I am skeptical to the German constitution. (Even apart from skepticism towards expropriation, in general.)

14 (2):

Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen.

Translation: Property obliges*. Its use should also serve the common good.**

*I am a little at loss for a good translation, but “obliges”, in a “Noblesse oblige” sense, is at least close.

**To some approximation. Other translations are possible in detail, but the big picture should be correct. (For instance, my off-the-top-of-my-head translation was “Its use should simultaneously serve the good of the public.”, with the current version arising during revision.)

This is utterly unrealistic,* seeing that it is contrary to how most property is actually used by most people. Actually applying this idea would have absurd consequences and/or severely alter human behavior. To boot, it would not necessarily do society much good in most cases.

*Using an even remotely literal interpretation. There is no guarantee that courts would do so (and I have not looked into precedence). Further, the original intent might have been more to state a principle of how society should work than to introduce actual regulation. (I would oppose such a principle equally strongly.)

Consider e.g. the problems caused with items like private computers, ovens, pencils, … Should we be obliged to e.g. bake for the poor in order to be allowed an oven? It would even call the possession of e.g. a house into question—unless the owner hosts meetings of a city committee in the house, or otherwise provides a public benefit. (I suspect, in contrast, that e.g. a farm would be of little issue, because the produce from the farm serves to feed people and, therefore, the common good. Then again, subsistence farming might be an issue…)

Worse, the claim is not even that property should serve the common good—it is the use of property. (Leaving some ambiguity whether, less likely, any individual use is intended, or, more likely, the sum of all use.)

It is disputable whether claims like these belong in a constitution at all. The “property obliges” part is particularly odd, because it amounts to less of a law and more of an ethical or philosophical opinion.

All-in-all, the text reads as if it is either intended to serve as a pseudo-justification* for expropriation or to satisfy Communist ideas contrary to conventional interpretations of property, e.g. in that “you may own a tractor—but only if you allow your neighbor to use it”. (But I have not researched the background.)

*Which is not to rule out that expropriation might have legitimate justifications in some rare cases. This, however, is not such a justification.

A saner clause might have focused on forbidding use that is actively harmful to the community, but even that could prove to be too far-going.

14 (3) (applying equally to 15)

[…] Die Entschädigung ist unter gerechter Abwägung der Interessen der Allgemeinheit und der Beteiligten zu bestimmen. […]

Translation:* […] The compensation [for the expropriation] is to be determined through a fair weighing of the interests of the public and the concerned party [i.e. the victim of the expropriation]. […]

*Again, with reservation for details.

Here, a clause putting the right to expropriate (per se) under the restriction of a weighing of interests would have been sensible, but no such restriction takes place. On the contrary, expropriation remains possible almost* at the drop of a hat. As for the compensation, a literal interpretation (with reservations like above) amounts to how the public benefit from paying as little as possible compares to the victim’s benefit of receiving as much as possible. This including eventual decisions like “we are short on money—let’s just give him a trifle” and “the value of the property is a drop in the ocean compared to our budget—let’s give him ten times the value”.

*There are restrictions, but they are limited in practical scope. (The expropriation must be rooted in law, not e.g. an arbitrary civil-servant decision. Cases under 14 are possible on a vague “common good”/“Wohle der Allgemeinheit” basis; cases under 15 are limited to the purpose of “socialization”/“Vergesellschaftung”, which opens a wide range of possibilities (and it is arguably the worst kind of expropriation).

A saner clause might have implied that expropriation (!) is only possible after a fair weighing of interest, and that compensation must amount to a minimum of the objective value as determined by a qualified and neutral third party or fairly cover all direct and indirect damages caused by the loss of property, the loss of use of the property, and whatever else might apply. (Note that I deliberately do no restrict this to the pre-expropriation owner: Others might be hit too, e.g. through a previously allowed use now being banned. For instance, assume that a farmer allowed city folk to pick-nick on his grounds, but that the sovkhoz does not.) On the upside, the constitution guarantees the right to take the issue of compensation to court; however, not the issue of expropriation.

These formulations are the odder with an eye at the preceding Nazi phase and what was already known about events in the Soviet Union and its satellites. For instance, a “fair” weighing of the interests of a Jew resp. a capitalist in Nazi-Germany resp. Soviet Russia might have led to disproportionately little recompense being paid—possibly, none at all.

Written by michaeleriksson

April 27, 2019 at 6:41 pm

How the U.S. Supreme Court is divided

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I have done a bit of reading on the U.S. Supreme Court, the U.S. constitution, and related issues during the last year, and would like to suggest a different perspective to the traditional Republicans vs. Democrats thinking: There is a line dividing the Supreme Court, but it is not inherently a matter of political leaning—it is a matter of approach to the job. Specifically, one faction* tries to actually do its job by pushing the standards set by law and precedent, above all the Constitution, while the other** sees the job, at least partially, as an opportunity to push personal preferences.

*Clarence Thomas is the possibly paramount example in my outsider’s/layman’s perspective. Others likely to be here in the current line-up (temporarily of eight) are Roberts, Gorsuch, and Alito. (Caveat: A too shallow study of the individual or a too poor memory can make this list imperfect.)

**Sotomayor, Breyer, Bader Ginsburg, Kagan? (Caveat: As above.)

It is true that this line is not that different from the was-appointed-by-a-Democrat resp. -Republican line; however, this is consistent with my impression of the typical mentality of the Left/“liberals”/Democrats and the “Right”/Conservatives/Libertarians/Republicans, respectively. Moreover, by ensuring that judges* are appointed based on their qualifications, intelligence, dedication to an Originalist and (possibly) Textualist interpretation (see excursion), the question of political affiliation becomes a very secondary issue, the maneuvering to get as many “Republican appointed” or “Democrat appointed” judges as possible would mostly be a waste of time, and the risk that the Supreme Court of ten or twenty years later over-turning precedent is reduced considerably**.

*I go with a more generic word to avoid loss of generality. In other contexts, “justice” or “associate” might be more common.

**Precedents would be over-turned for reasons like changes in interpretation by similar criteria, a better understanding of implications, and similar—but not because a certain judgment fits an ideological agenda better and not because radically different criteria are applied.

Excursion on “doing the job”:
Why do I say that the one faction does its job and the other does not? Well, the entire U.S. system is based on a division of powers; and the Constitution is by its nature intended to be a fix guide-line through time, which has been made deliberately hard to change. When a court, be it the Supreme Court or a lower court, takes it upon it self to re-interpret the Constitution (or other laws), the division of power is diminished through the court’s effectively enacting legislation, and the intention of a fixed Constitution is thrown out the window. I once stumbled upon a claim* of approximately “if I can make the constitution better [implied, by judicial activism], why should I not?”—to which the obvious answer is: If you want a better constitution, request a bloody amendment! There are established procedures to do so, including provisions for congressional votes and ratification by the states—it is not acceptable that five individual judges take it upon themselves to do in hours or days what usually takes years.**

*I have no idea of by whom. It was likely one of the current or recent members of the Supreme Court, but it could have been someone outside it merely debating principles.

**Other countries also often have strict criteria for constitutional changes, e.g. in terms of the needed majority or, as in Sweden, that the change must be approved by two separately elected parliaments (i.e. parliament approves it, a regularly scheduled parliamentary election takes place, parliament re-approves it).

Of course, some degree of interpretation is always necessary, especially in a common-law system; however, this should usually* be an “Originalist” interpretation, because other interpretations usually* imply exactly the type of change that should be done per amendment. The question of whether to use a “Textualist” or “Intentionalist” interpretation is tougher: The intentionalist might be truer to the original philosophy; however, it also opens the door to malicious misinterpretation**, especially in combination with changing times; and raises the question of whose intention. (The authors’? The voting members’ of Congress? The ratifying states’? What if these had different interpretations?) All-in-all, the Textualist interpretation is likely the better choice, but I am open to more flexibility than with the requirement of Originalism—a non-Originalist is not doing his job…

*Legitimate exceptions could conceivably occur when matters are involved that the original authors could not reasonably have foreseen, e.g. through technical developments (but not changes to mores and social values; this is similar to Churches in an older text). Even here, however, the interpretation should attempt to be compatible with the underlying intents in related areas.

**I lack the depth of legal knowledge to give strong examples (although e.g. “dignity” arguments in the context of “same-sex marriage” possibly could qualify), but I recall how a publisher defended censoring or re-formulating parts of an older book with the idiotic argument and exceedingly bold claim that it was certain that this was what the dead author would have wanted… (Sadly, there are simply too many cases of such changes, especially relating to censorship of “nigger”, for me to remember which book, etc. It might have been “To Kill a Mockingbird”, shortly after Harper Lee’s death.) What if, similarly, a judge is “certain” that the Constitution would have intended for “nigger” to not be covered by freedom of speech in the modern society? Or “certain” that due process was not intended to include those accused of rape in the modern society?

More generally, it is important to bear in mind that judges are not there to determine what is ethically right or wrong, what is fair, whatnot (except within the leeway given by the law and the circumstances at hand)—their job is to determine what is legally right. If a law says that it is illegal to wear a yellow tie, the judge is not at liberty to overrule the law based on the belief that the illegality is preposterous. (However, he might when other laws take precedent, e.g. by arguing a violation of some Constitutional right. A U.S. jury might, controversially, also have some degree of private leeway here.)

Written by michaeleriksson

August 14, 2018 at 2:07 am

Kachelmann acquitted

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As a follow-up to a previous entry, I note that Jörg Kachelmann has now been acquittede of the rape charges raised against him—as was widely expected considering the lack of evidence and the continually diminishing credibility of the witness statements. The language of the court has already been criticized by several bloggers as insufficient, e.g. by a juriste:

Als ob es nicht um die Begründung eines Freispruchs für den Angeklagten, sondern um das Freisprechen des Vorsitzenden von jeder erdenklichen „Schuld“ ginge, hält sich die Begründung von Richter Seidling viel zu lange mit der Verteidigung der Prozessleitung auf.

(As if not the justification of the acquittal of the accused, but the acquittal of the judge from any conceivable “culpability” [guilt?], was the target, the finding of Judge Seidling was occupied for far too long with the defense of the conducting of the case. [With reservations for errors in legal terminology.])

Written by michaeleriksson

June 1, 2011 at 10:06 pm

The trial of the year—Victory! (Follow up)

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As I wrote in March, a jury ruled in favour of Novell in the fight against SCO, whose widely-considered-faulty claims had caused great costs and uncertainty for a number of other parties (including, obviously, Novell).

There was still some remaining uncertainty in theory (considering the overall situation and previous judgements, a practical problem was unlikely), because there were further “findings of facts” and various motions to be decided by the judge. As Groklaw now reportse:

Judge Ted Stewart has ruled for Novell and against SCO. Novell’s claim for declaratory judgment is granted; SCO’s claims for specific performance and breach of the implied covenant of good fair and fair dealings are denied. Also SCO’s motion for judgment as a matter of law or for a new trial: denied. SCO is entitled to waive, at its sole discretion, claims against IBM, Sequent and other SVRX licensees.

CASE CLOSED!

Maybe I should say cases closed. The door has slammed shut on the SCO litigation machine.

Written by michaeleriksson

June 11, 2010 at 6:09 pm

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The trial of the year—Victory!

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I recently wrote about the SCO vs. Novell trial, the verdict of which is now, with some delay, in:

A unanimous jury rejected SCO’s copyright claims, which likely means the end to this threat once and for all. Virtual champagne all around!

Of course, looking at the preceding decade, SCO has been harder to get rid of than Jason Voorhees; however, unlike Jason, it is not actually supernatural.

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March 31, 2010 at 4:01 am

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