response 150 of 206:

Sep 22 21:57 UTC 2000

        Yes.

response 152 of 206:

Sep 23 10:55 UTC 2000

Re 145.  Leaving aside everything else, I want to take issue with one
specific comment:

> The prisons are filled with people who think they were doing justified
> and even well-intentioned things that were nonetheless illegal.

I suppose this is metaphor, but it's not even vaguely, hand-wavingly close
to being true or valid in any sense of the word.  In fact, it is totally
ludicrous.

The prisons are full of armed robbers and drug users, murderers, rapists,
burglars, and other such conventional bad actors.

I don't know how many people are in prison for copyright infringement, but
I would guess it's fewer than 50 -- out of over a million in U.S. prisons
and jails.  Maybe it's in single digits.  But anyone who actually ends up
being imprisoned for infringement has done something egregious beyond
belief, and probably committed other crimes in the process.

Contrary to the impression given in the nearby zero-tolerance item, the
criminal justice system is capable of exercising a certain amount of
judgement.  The police have a certain amount of discretion to arrest or
not, the prosecutor has a certain amount of discretion whether to charge
or not (and with what), the judge and jury also play an important role.

Police and prosecutors and judges are very accustomed to seeing the same
kinds of predators and hard-luck cases day in and day out.  Armed robbers
and murderers and drug dealers and burglars and all the rest, people who
often seem to start behaving badly at a young age and escalate into repeat
criminal activity in their teens and 20s.  They never finished school, may
indeed be illiterate, are unable or unwilling to defer gratification,
place a shockingly low value on their own and others' lives, and don't
care about the impact of their actions on other people.

People who "do well-intentioned things which were nonetheless illegal" are
probably going to look very different from the typical offender.  As a
metter of practical reality, the system (already overburdened with plenty
of REALLY bad guys) is not going to be very interested in wasting its time
on them.

If someone took a rowboat in order to rescue a person from drowning, then
returned it, there are many reasons why he will not end up in prison:

     1.  The police are not going to arrest him.

     2.  The prosecutors are not going to charge him.

     3.  The judge is likely to throw out the charges.

     4.  The jury is likely to find him not guilty.

     5.  The judge is unlikely to sentence him to any jail time.

response 154 of 206:

Sep 23 11:12 UTC 2000

Not to be picky, but a huge % of those people in jail are indeed there
on drug related charges, & most of them probably probably would agree
that they were doing "justified and even well-intentioned things that
were nonetheless illegal".  I can imagine the drug users would say
things like "I just wanted to have a good time", and "I wasn't going to
hurt anybody".  Even the drug dealers may be able to say things like "I
couldn't find a job doing anything else" and "I needed the the money for
my sick aunt".  There's also an additional filtering process for people
who are educated, rich, or at least pretty -- they can often command
resources to get themselves out of bad situations that someone who is
stupid, poor, and ugly won't be able to escape.  So a disproportionate %
of the people in jail are poor, stupid, & ugly, which of course trains
everyone involved in the process to expect the worst of such people.
Nevertheless, you are still right that everyone involved in the process
is exercising lots of discretion - drugs are a "bad" thing, borrowing
rowboats to save drowning people is a good thing.

response 156 of 206:

Sep 24 04:25 UTC 2000

Re 154.  Of course, this goes back to the organized hysteria that I
pointed to in that other item.  No kidding that the "war on drugs"  has
distorted the picture.  But in any case, (1) it's hard to believe that
many users, buyers, sellers, etc., of illegal drugs in the U.S. are
unaware that they are breaking the law, and (2) it's a stretch to call
more than a handful of them "well-intentioned." 

Granted that people with more skills and resources have more options when
they get into trouble.  It is also a fact that, due to those same skills
and resources, they are much less likely to commit the kinds of stupid,
predatory, violent crimes that police see week in and week out. 

Middle-class and upper-middle-class types may get into drug problems, may
engage in embezzlement, insider trading, tax evasion, etc., but you don't
often see them robbing convenience stores.

And just due to the sheer numbers (aside from the War on Drugs, which I am
not here to defend), robberies of convenience stores the type of crimes
that the criminal justice system has to spend the bulk of its time and
resources dealing with.

response 158 of 206:

Sep 24 17:21 UTC 2000

Ed Meese is supposed to have said, "If they weren't guilty, they 
wouldn't have been arrested."  I smell a whiff of that attitude here.

response 160 of 206:

Sep 24 20:09 UTC 2000

Actually, let me close some of theloopholes out of that last question:

As a member of the bar, Polygon, would you advise me that it is fully legal
for me, a private citizen, to take an object of some worth, such as a rowboat,
and use it without the prior consent of the rightful owner, and with the
knowledge that I lack that consent, and use it, returning it after I'm done
using it, not having at any moment damaging the object or depriving the owner
of that object?

That question should be answered with a "Yes" (meaning that you would so
advise me) or "No" (meaning you would not so advise me).

If the answer is, "No," I would like a serious treatment of why such an act
is not fully legal but is nonetheless not legal theft.

response 162 of 206:

Sep 25 01:06 UTC 2000

  re #159, 160:  The best answer to just about any sort of legal question
  is usually "it depends."  Our system takes into account many factors
  which are not mentioned in your hypothetical.  The matter of intent
  is an important element in many crimes.

  Anyway, you're demanding an answer to an irrelevant question.
  Implicitly what you're asking by demanding a single yes or no answer to
  your question is that Polygon admit that it is generally not legally
  permissible to take another's property without their permission.
  Well, duh!

  Now that we've got that settled, why not address the very real
  issues that have been raised about whether "intellectual property"
  is (or should be) treated the same way as physical property, in what
  ways copying is different from taking, etc..

response 164 of 206:

Sep 25 03:55 UTC 2000

#162> Let Polygon answer his own questions.

I would also reiterate the earlier request that you, polygon, provide a
documented definition of theft, vs. larceny on the one hand and infringement
on the other.

response 166 of 206:

Sep 25 15:02 UTC 2000

Re 159.  Sorry, but I don't have a yes or no answer.  I'm not sure whether
Michigan has a general purpose criminal law that covers that case.  There
IS a specific law against "joyriding," i.e., borrowing a car without
permission.  And, separate from the criminal justice system, the owner of
property may have recourse to a civil lawsuit against the borrower, but
that would be more successful if the temporary absence of the item caused
the owner some kind of tangible harm.

Sure, lots of people in prison don't feel that they belong there, but in
most of those cases, they deny the charge against them rather than denying
the validity or their knowledge of the law that made their behavior a
crime.  I guess drug crimes might be an exception, but consider that most
people in prison for drug crimes were convicted of selling or smuggling,
not using.

I further don't agree at all that "date rapers" and terrorists are "well
intentioned," but in any case their numbers are tiny.

I am very much of the point of view that we are putting too many people in
prison for too long.  The prison population is doubling every ten years,
and the U.S. now leads the world in the percentage of its population which
is imprisoned.  A lot of that is the War on Drugs, but it's also the trend
toward harsher sentences for everything in general, a political reation to
the huge increase in crime which occurred between 1960 and 1975.

All that being said, however, few of the people in prison at any given
time are intelligent, thoughtful, well-intentioned nice guys.

Re 160.  Of course I would advise you not to mess around with other
people's stuff.  That doesn't mean it would be larceny to do so.  Just
because something is a bad idea doesn't mean it's illegal.  See below for
more details. 

Re 164.  I don't have any documents here to cite, but I did look it up in
Black's Law Dictionary the other day, and if I recall correctly, larceny,
a.k.a. theft, is the taking of personal property with the intent to
deprive the rightful owner.  PERSONAL property, specifically, not
intangibles like intellectual property.

Re 165.  No, this is not the Department of Justice, this is the "popular
name" of a statute passed by U.S. Congress at the behest of the
entertainment industry.  Note that the spinning word "theft" appears only
in the title, not in any of the provisions.  Further, theft or larceny is
a state crime, not a federal matter. 

This law and its title is PRECISELY an example of the way the use of
propaganda like the word "theft" is used to cover some awful changes in
copyright law, disregarding the public interest (and the interests of,
say, songwriters) in favor of certain well-heeled corporations including
Universal and Disney.

Promoting the loose use of terms like "theft" is one goal of the
propaganda machine that successfully promoted this and other bad laws. 
You have bought into this; I have not.

response 168 of 206:

Sep 25 20:21 UTC 2000

Re #151:
> I've resented my boss when our company has done flush, but now that our
> company is having serious money problems, it's a nice feeling to know that
> I'll still get that biweekly check, no matter what.

--> That used to be the case, anyway.  Nowadays it seems that the trend is
to start firing employees at the first hint of money trouble, then get
rewarded when Wall Street drives up your stock price on the news that you've
"downsized." Employees are a commodity to use and abuse; corporations get
rich off their backs, then toss them away.

Re #165:
> Incidentally, polygon should tell the US Department of Justice that
> infringement isn't "theft." The text of the "No Electronic Theft" act,
> which is entirely about copyright infringement, can be found on the DOJ's
> government website at
> http://www.usdoj.gov/criminal/cybercrime/17-18red.htm

--> That's assuming that the titles of acts of Congress have some basis in
reality.  They don't.  They're all about political spin.

response 170 of 206:

Sep 25 23:28 UTC 2000

(I am really going to have to pay the shareware fee for GraphicConverter....)

response 172 of 206:

Sep 26 01:41 UTC 2000

> Tell ya what, polygon. Since you're prepared to dismiss all of my
> sources and unwilling to provide anything beyond an "If I recall
> correctly...",

For crying out loud, I don't work in a law library, and I'm not interested
in always waiting to make a response until I have all kinds of reference
books handy.  I *did* look up that definition earlier, and I'm sorry that
I had to use weasel words because I didn't have it word for word in front
of me.  Now I do. 

   Larceny: Fenonious stealing, taking and carrying, leading, riding, or
   driving away another's personal property, with intent to convert it or
   to deprive owner thereof.  The unlawful taking and carrying away of
   property of another with intent to appropriate it to use inconsistent
   with the latter's rights.  Black's Law Dictionary, citing U.S. v.
   Johnson, 433 F.2nd 1160.

There's more, but it refers constantly to "carrying away" and "personal
property".

The definition of Theft, admittedly, raises the possibility that 
meaning is somewhat broader.  It starts out by calling theft "A popular
name for larceny," but follows up with numerous legal definitions similar
to the above.  It goes on to discuss things like swindling, embezzlement,
obtaining unauthorized control over property, and even "obtaining control
over property knowing the property to have been stolen by another," which
would cover my fencing example.  And after the end of the main entry,
there is a separate subheading for "theft of services," which does suggest
that the word can be used in an intangible context.

> I'll make you a deal:
> Let's stop using the word "theft" entirely, both of us. As far as I can
> tell, there's universal acceptance of "larceny" and "infringement,"
> while legal sources differ as to whether "larceny" is a synonym of
> "theft" or a subset of "theft."

Agreed.  That makes sense.  You have a deal.

I should point out that, as far as I'm concerned, "infringement" is still
a pretty heavy-duty word.  See the anecdote I posted a couple months ago
in Agora.

> So I'll take back all of my comments about "theft" if you'll stop making
> snarky comments about me being indifferent about the meanings of words
> and buying into the propaganda machine. I am suggesting a bilateral
> cessation of ad hominems in favor of mature discussion, and will
> practice a unilateral cessation.

That is also sensible.  Agreed.

> The distinction with the boat makes sense now that I think about it. The
> relevant issue, as I understand it, is that the person who takes the
> boat returns it without ever having inconvenienced the rightful owner
> (or any sgent thereof). So that's what makes it not larceny, yes?

Right -- larceny involves the intent to deprive.

> I'm not sure about the relevance of the example. It's not like
> Napsterites are planning on deleting the tracks from their HDs once
> they're done listening to them (and, in listening to them, somehow
> saving the life of a drowning child). 

Agreed here, too.

> The example was provided, I suppose, to give an example of an act of
> taking someone else's property that wasn't, properly speaking, larceny.
> Granted, then. Meant to question my claim that intent is irrelevant to
> the act of larceny (and, by extension, infringement). Not granted,
> because the element that makes taking the boat not larceny is because
> the boat is put back... if the boat were taken to save the drowning
> child, and then never returned, then (by my understanding, and polygon,
> do correct me if I'm wrong), the act is still larceny.

Technically the issue would be intent at the time of taking, but I won't
quibble.  Even if there wasn't intent at the time of taking, the decision
to keep it would presumably be the requisite intent.

> That is, is a mugger not guilty of larceny if he mugs in order to feed
> his starving children? What makes the act larceny is that there is no
> intention to return the object that's taken... and that's where "intent"
> is relevant. What I meant earlier when I said that intent is irrelevant
> to [larceny and infringement] is that the person's INTENT -- that is,
> reason -- for taking the object doesn't mitigate whether it's illegal
> (although it obviously mitigates the extent of the punishment that's
> meted out).

Right, exactly -- intent matters, but motive doesn't.

> I was in a debate on software piracy in which one person argued that he
> wasn't guilty of infringement per se when he used a technically illegal
> copy of software if he fully intended to either delete the software
> after a self- imposed trial of 30 days or pay for the software in full.
> I suppose the same argument could be made by some users of Napster, as
> well... I've had friends borrow my CDs to test drive them while they
> decide whether to buy their own copy (by my understanding, a fully legal
> act, so long as it's a legal copy). 

I'm not sure about that.  That scenario may not even be technically legal,
but I can't say for sure.

> Personally, I still feel that infringement is infringement is
> infringement, and if there's anywhere the analogy between larceny and
> infringement breaks down, it's in the direction of making infringement a
> worse crime, because if you abscond with someone's boat, you can make
> reparations later by returning the boat, but if you allow 500,000
> Napsterites to copy your Metallica MP3, it's much harder to track down
> all of those people and make them delete their copies (and many of them
> have probably already given a dozen friends copies, and so on). The only
> reparation that can be made easily is to pay royalties (which is what
> the RIAA really wants anyway, money money money). 

The only trouble with infringement being infringement being infringement
is that the law is complex and keeps changing (as does the market).  A
Napsterite downloading a Metallica song is guilty of copyright
infringement, sure, but I'm a little troubled by some of the implications. 

For example, I can go to the library and make a photocopy from a book for
my own use, take home the copy, use it to my heart's content, and that's
not infringement, it's fair use.  Indeed, I could copy an entire book,
and indeed, I have done so, and if it's for me to use at home, it's still
fair use.  If the RIAA manages to "get" Napster, might that have
implications for personal-use library photocopying?  What's the difference
between making a copy of a song from a public source, and making a copy of
a book from a public library, that one should be punishable, and the other
protected?

On the other hand, if I take just a few chapters of the same book, make
ten copies, and distribute it to my class, without permission, then I
would probably be infringing (though some argue that it makes a difference
whether someone is making a profit on the deal).  This is more or less the
case that Kinko's lost.

> Also, with the "test drive" issue (both for software and music), there
> are enough resources out there that if a company seriously wants to
> allow users to "test drive" their software or music, they will. If they
> choose not to allow that to happen, that's their moral (and currently,
> legal) right, since they came up with it in the first place.

Right, I think.  I admit that I'm not very interested in the "test drive"
issue.

> Issues like mandatory licensing and Napster go against the philosophy
> this country was founded on. Mandatory licensing, for instance, says
> that, while the creator of art should be compensated for that art, the
> art itself belongs to the culture, not the creator. That's simply not
> true.

I'm not sure I agree with that fully.  Not that I'm advocating any
mandatory anything.

> The spirit of intellectual property law (at least, before the lawyers
> mucked it up in all directions) is that the creator can decide whether
> to give the art to the culture, or to hoard it.

The pre-1976 U.S. copyright law was that if you published it, it reverted
to the public domain in either 28 or 56 years depending on whether you
renewed the copyright.  If you didn't publish it, the copyright was yours
forever.  So, sure, you could create something and hoard it, but you
couldn't publish it and then withdraw it and hold it back forever.

The new copyright law covers both published and unpublished work.  Though
at any given time, copyrights are scheduled to expire, as soon as that
date approaches for any works, WIPO and Congress extend the term of
copyrights to prevent anything from slipping into the public domain.

This is contrary to the Constitution, which gives Congress the power "To
promote the Progress of Science and useful Arts, by securing for LIMITED
TIMES (emphasis added) to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries."

> While the most moral course is to release it for sufficient compensation
> to make a decent living (or for no compensation when a decent living can
> be made elsewhere), it's a personal moral choice, and as immoral as it
> may be to hoard cultural artifacts and demand excessive compensation for
> them, it's also immoral to force your own morality upon someone else by
> acting in a way that's indifferent to them.

But society makes moral judgements all the time, and enacts them into law.
Not everybody agrees.  Too bad.

I do kind of sympathize with your riff on the unrepetant Napsterites, and
I suppose it serves them right if they're arrested.  However, my contempt
for them is blunted by my view that the RIAA and its allies are advocating
(and have already successfully enacted some) subtle but far-reaching legal
changes that will be a disaster for society and the culture.  In other
words, the RIAA really is, if not literally evil, certainly bad enough
that I won't be cheering for their legal victories.

response 174 of 206:

Sep 26 03:22 UTC 2000

I know I put the kabosh on linguistic arguments here, at least that I engage
in, but I just had to comment:
From McNally's 171 --
 a grand total of THREE unauthorized copies of works
   which I do not otherwise own, both of which 
  
All right, I'll just clip, and not comment. ;} Heh heh.

Personally, I don't consider making copies of works you legally own copies
of for your own use to be "infringement," regardless of what the law says.

I doodle by drawing pictures out of adult magazines. That's a form of copying,
but I wouldn't sell those doodles. Of my four tattoos, two were taken directly
from books, and another was a composite of several pictures from a book (only
one was completely original)... also forms of copying.

*shrug* I have absolutist moral stances. Unlike most absolutists I've come
across, though, I don't believe it's possible to go through five minutes of
your life without committing an act with some immoral component, and that's
just the way it is. You do your best, that's it.

If you're like most people, McNally, you're responding to my use of "immoral"
as if it has the same judgmental scope that people wh bandy it about use.
*shrug* Don't. I've made it clear enough what I mean, broad strokes and all.