🚀 go-pugleaf

In aus.computers.linux Sylvia Else <sylvia@not.at.this.address> wrote:

> Yes there seems to be a dearth of hard evidence. Leaving aside the 
> printer cartridge issue, which the compatible manufacturers seem to be 
> winning anyway

They are winning, after a long struggle and a lot of money wasted
on legal issues that should have been spent on the business.
Legal disputes cost money, and these costs don't contribute to
social or economic development, such costs are a dead loss to
the community. A good legal system should be designed to minimise
disputes by making it clear from the start what is right and wrong.

> the only cases I seen judgments for have involved people 
> doing manifestly dishonest things, or are not attacks on small 
> developers.

> The big copyright case (SCO v IBM) can hardly be described 
> as an attempt to intimidate small developers.

I would say it is exactly that, no one is worried about IBM surviving
(there is no court in the world that has the power to shut down IBM),
no one in the industry seriously expects SCO to win anyhow. The case
is about discouraging businesses from joining the Linux community.
You only have to ready the SCO press releases, which is why RedHat
started their case to force SCO to show evidence or shut up.
RedHat couldn't care less who wants to tangle with IBM, what they
don't like is SCO making loud public statements about the future of
Linux.

You also see that SCO's legal tactics are not about even trying to
win their case, they have done everything they can to draw it out
and make it as complex and noisy as possible but they haven't brought
forward any evidence. It is a chest beating exercise designed to
slow down Linux momentum and give Microsoft a chance to catch up.

>>>Actually, my "concrete evidence" point is probably just muddying the 
>>>waters. You don't have to go out and search for evidence for and against 
>>>your belief, and then form a judgement.
>> 
>> This is ridiculous, how can any reasonable person form a belief without
>> evidence either for or against?

> People do it all the time. Given that the belief of necessity has to be 
> false for the defence to exist in the first place, it is clear that it 
> cannot be based on reasoned analysis of evidence, but is just a view 
> that is held by the believer.

There are so many strange presumptions in the above statement,
it is difficult to even start to get my mind around it...

ALL legal truth is "just a view that is held by the believer" where the
exact details of the believer(s) may vary.

A legal statement of ownership cannot be either "true" or "false" in the
sense that a physical statement can be "true" or "false". Suppose I say
that one particular object is heavier than another particular object.
The truth value of the statement can be measured, the measurement can
be repeated by various people and various methods and the truth value
remains consistent.

Not so with the statement "I own this object" which is a vague and poorly
defined statement at the best of times; in the world of I.P. it is
still more vague. The truth value of such a statement remains forever
uncertain... but AFTER a court has pronounced judgment then we can say that
in the opinion of that particular court at that particular time, the
statement has a truth value. This is still a highly qualified truth value
but it is the best you can do with a legal statement of ownership.

Going further with this, you suggest that any belief based on reasoned
analysis of evidence must be a true belief which is to say that it
is impossible for two courts to ever disagree, or for any precedent to
be overturned. I would argue that reasoned analysis of evidence can
result in a great many conflicting conclusions -- even in the physical
sciences. In the legal sphere, reasoned analysis of evidence will ALWAYS
produce conflicing conclusions because of the nature of our adversarial
system.

I have no idea what the legal definition of "reasonable person" might
be (it doubtless changes from case to case) but MY understanding of a
reasonable person would never include someone who holds beliefs without
a shred of evidence. I'm willing to negotiate on exactly how much
evidence might be required before a belief would be reasonable but
if you allow belief with no evidence then all sorts of beliefs are
possible, and by your criteria they are apparently reasonable too.

(As an aside here, there is evidence to suggest that the threshold of
95% probability is hard-wired into the human brain -- in other words,
if a statement is 95% likely to be true then a human will accept that
statement as true, note that the evaluation of the probability does
itself depend on which articles of evidence the human has access to).

>> So the interpretation of vague terms like "results in" becomes pivotal
>> in whether developers get a criminal record -- how comforting.

> But it has ever been so. If the law is written a way that attempts to 
> more precisely describe the situation, it can end up capturing conduct 
> which should not reasonably be considered criminal, or can fail to 
> capture conduct that should be so considered.

> Look at

> http://scaleplus.law.gov.au/html/pasteact/0/41/0/PA000300.htm

> and in particular subsection 2.

> Suppose there's a noisy protest of progress. Two vendors show up on the 
> scene. One of them is selling pizzas, and the other is selling house bricks.

> A person buys a pizza, and throws it through an open window, where the 
> hot cheese damages a painting. Another person buys a brick and throws it 
> through the same window, and it damages an adjacent painting.

> What view should we take of the two vendors? Should they both be 
> considered guilty under the "results in" rule, or both considered not 
> guilty?

Of course there is a reasonable belief that a brick will do more
damage than a pizza. Of course this belief is based on evidence:
in particular the hard, angular, heavy nature of a brick and soft,
spongy nature of a pizza. In a riot situation, damage to people is
far more important than damage to property so the brick and the pizza
would primarily be compared on their capability to injure people.
Such a comparison is a process of using evidence (in this case our
physical knowledge or materials and the sorts of things that usually
damage humans) and coming to a conclusion.

The important point is that most ordinary people can reliably and
consistently make the reasoned decision that a brick is a more dangerous
weapon than a pizza. This belief remains generally true even when
someone does manage to find a way of inflicting damage with a pizza.

If one of the vendors claimed that he had the belief that bricks
were tasty food that would make people happy, we would rightly question
the basis of this belief. If we can't question what process leads
people to their beliefs then we have no measure of what is reasonable.

> In reality, I'm sure a court would convict the brick seller, and not the 
> pizza seller, which requires a subtle distinction in the meaning of 
> "results in" for the two cases. It would be difficult to find a wording 
> that is not subject to interpretation, and has the desired result for 
> any conceivable combination of circumstances.

A much better wording would be to completely avoid "results in" and
say that anyone who escalates the level of violence in a volatile situation
is guilty in proportion to their contribution to the escalation and
in proportion to the ultimate damage done by that situation.
This replaces the difficult and arbitrary chain of detailed cause and
effect with a simple rule that it is always wrong to incite violence
at a protest. It is then much easier to demonstrate a link between
distribution of weaponry and an escalation of violence and that link
in itself is sufficient for guilt -- it shouldn't matter what went
through the window, be it a brick or someone's head, violence leads
to more violence.

I'll also point out that a law about violence escalation would equally
apply to police, security guards, media or anyone else and thus be
far more useful in terms of giving people the capability to protest
(which is their democratic right) while keeping them alive and uninjured.


This  is getting a long way from I.P. law, but the problem with the
DCMA and its relatives is that forming a reasonable belief about the
danger of any situation is very very difficult, not something any
normal person can do and even difficult for people skilled in such
judgements.

	- Tel