Abstracting Booker

This column was printed in the October 12, 2005, issue of the Valparaiso University School of Law newspaper, "The Forum."

Last term, the United States Supreme Court considered the Booker case. This opinion dealt with the sentencing scheme in criminal cases. More specifically, the confusion that has resulted in the Court's decision to declare the standing sentencing scheme unconstitutional. The coming terms will tell how this decision will affect the federal criminal justice system in the future.

Not So Free Information

It boils down to limiting the use of broadcast information by embedding it with a tag. The Broadcast Flag is a function of lobbiests jockeying for legislation that would allow the MPAA and RIAA to increase the strength of their relentless campaign against the average individual, freedom of information, and the interests of free speech. As the linked article above indicates, the federal courts have already demonstrated that the flag exceeds the constitutional power of the FCC to mandate that every television be capable of interpreting the flag. Interestingly enough, the legislation is coming before Congress for a mandate by the federal government.

Increases in personal technology allows the everyman to do much more than she or he could before. This includes record media transmissions. The first major manifestation was Napster. Now, advancements in video recording hardware and software have allowed access to video content in the same way. The Broadcast Flag aims to prevent this by limiting what information may or may not be recorded. Oddly, it only works with high definition television. Entities standing to benefit from this legislation could include the MPAA, the RIAA, any electronics manufacturer (your 3 year old HDTV will now be obsolete), Comcast (specifically their On-Demand business), and DVD rental establishments. It hurts the average person and the non-corporate visual and musical artists, and will annoy TIVO users. Why should the everyman be interested in this legislation? It will significantly inhibit your ability to exercise free speech by requiring a form of government intervention to determine whether or not you actually have a right to speak. It gives big business the ability to control what is said, who says it, and what method it is disseminated. Contact your Senators and tell them to prevent the creation of the broadcast flag.

More Legal Absurdity...

So I am doing a lot of blogging on the current battle between P2P networks and the record industry. This is another interesting example of the stupidity that occurs when people try to secure their intangible property interests. Whats worse, this time around they are violating the law to secure that interest.

Many people know of the RIAA's assault on P2P networks. Now, though, the European counterpart is distributing maleware (malicious software) that seeks out and deletes P2P software on user's computers. Fundamentally, the maleware has to operate like a virus, and it is, after all, considered maleware. Releasing this software would violate all kinds of laws that are usually used to convict hackers and writters of big worms everyone is always worried about. This blatant act of internet vigilantism should be punished like any other illegal act not withstanding the benevolent intent. Realistically, this is the media industry violating someone elses copyright by hijacking their software. No matter how you spin it, its a perverse tit for tat.

Grokster, or how i learned to fear copyright infringement

It's once again time for the monthly print installment of "The Grey Area" that appears in The Forum. This one focuses on the recent case decided by the United States Supreme Court involving the liability of peer to peer file shareing software for copyright infringement. As the title implies, its hard to tell exactly what the Court was doing. The title link goes to the article in .pdf format.

From the "That Makes NO F@#$ing Sense" Department

I freely support the fact that anyone convicted of a crime and incarcerated for an extended period deserves the right to petition the courts for relief when they are allegedly being mistreated. While most of these cases are quickly dispatched by state motions to dismiss, some are just asinine. Apparently, the 6th Amendment now provides protection for porno in prison. Wait, it gets worse. The inmate petitioning to have the right to view pornography is serving a life term for a brutal rape followed by a triple homicide.

Though I am a consummate supporter of individual rights as written in the Constitution, prison still has to resemble punishment. I guess someone forgot that the impetus for much of the criminally deviant sexual offenders is pornography. Prison used to be a place you did not want to go. Now that the reformative criminal justice system has been denigrated to a weekend holding pen with all the comforts of home, literally, I think I am going to go rob the liquor store down the street to take an extended vacation.

Reflecting on Pop Culture

On Friday Night I took some time off to watch Crash. The movie takes every-day situations and examines how the race card seems to bring out the worst in even the most enlightened. The film then juxtaposes these scenes with depictions of the same characters acting out of character, as if to demonstrate that at some point we cease to see color and join the human race. What was most interesting to me, though, was the cast. Ludacris, a well known figure in rap music, played a car jacker content on musing the racial stereotypes that permeate society. Its also interesting that Ludacris is responsible for music that frequently employ these stereotypes as the central theme.

From casting to plot, the movie demonstrates a disturbing problem in society. We can't see past color lines. Anyone who watches a major network newscast can see that plain as day. Even in the worst situations it seems as though we are locked into this anachronistic view of social stratification along lines of color. When are we going to realize that the we are all just human, regardless of color? Unfortunately, it will take more than a conscious effort, we need to change the way we see race roles in our culture. As free as we may be, as free as we may be we can't escape the illogical barriers set by misinformed conceptions of the state of the world. Maybe we need to fix our perspective first, then our problems, and once we all reach equal footing, the lines will disappear.

Only Slightly Better Off...

Apparently, we are loosing the battle with terrorism. A big wig at MI5, the British Intelligence Agency, stated that in order to prevent terrorist attacks it may be necessary to erode civil liberties. This sounds more like a willingness to sacrifice freedoms guaranteed by our societal construct. Ultimately, we loose the inherent values that make our type of society free. If that is the case, then the terrorists have one.

They win because they have managed to alter our society on a level that compromises the policies set in place by its founders to preserve our freedom. If you think that is not the case then you should read the Patriot Act again. Terrorism aims to destroy the things that make liberated society what it is. Relaxing restrictions on search and seizure or free speech mean that society has become less than what it should be, and we have forfeited the fundamental tenants of liberty. Ergo, the terrorists win.

As Americans, we need to assure that doesn't happen.

Government and File Format, A New Look At Patents

Recently, Massachusetts announced that it will move to what are known as Open Source file formats for all documents filed in the state. These formats were pioneered by the group behind the OpenOffice.Org software bundle, an office suite designed under a type of freeware license. While OpenOffice remains light years behind the development of other office suites like MS Word or Corel Word Perfect, it does support a newer form of dynamic file format based on XML.

Interestingly, the article cites concerns over the security of Microsoft's XML file format, and preventing patent infringement. Ideally, this move would allow the use of more ubiquitous formats and release Microsoft's strangle hold on the software market in state government.

This movement could turn the tide and bring open source software to the forefront of consideration for general use application. Fundamentally, Open Source projects could shift the market to focus on programming and pricing that benefits the end user instead of continuing to severely limit the ownership rights of individual end-users. We will just have to wait and see.

So Much For Hacking...

Engadget is running a story about the release of the new blue-ray dvd systems. Apparently, the new players will let the manufacturer know when someone has hacked the machine. Essentially, whenever the player is doing something its not supposed to be doing, its been hacked.

There are a lot of different hackers in the world. Most are your basic tinerkers who are just out to modify existing store bought hardware to do something that fits their needs more, or take something and make it do something its not supposed to do. These are not the malicious hackers who spread viruses and hack mainframes to get at personal information. This is your average everyman who likes to play with technology.

Unfortunately, the technology industry is out to vilifiy every hacker. The purpose is to protect their intelectual property rights. Granted, ownership interests are important, but hacking in the normal sense means that they have to buy the technology first. The manufacturers make money, and the end user gets to have their fun. Why take it out on the guy who is just trying to make the technology better? Why not just sue him after he really has broken a patent or violated a copyright? Whats worse, an individual hacker won't destroy the international profit of the manufacturer.

The tech companies need to lay off. This behavior only serves to destroy inginuity inherent in our drive to create.

Rebalancing the Court

I found out this morning that Chief Justice Rehnquist died last night. For Many in America, this news means little. For those watching the goings on of the Court, Rehnquist's death was not unexpected. The Chief Justice has been suffering from a debilitating form of Thyroid cancer. The survival rate of this particular type of cancer is very low. Add to that Rehnquist's age, and all the signs pointed to the end of the Rehnquist Court.

Unfortunately, his death, while Congress is on their summer recess creates political concerns. First, who will be come the new Chief Justice. While the decision is up to the President, those in the running include Scalia, Thomas, and Kennedy. While Thomas is the second lowest in the pecking order, his conservative bent satisfies the President's ideology. Scalia, now one of the ranking members of the Court, shares this ideology. Kennedy, on of the most liberal Justices, will most likely not really be in contention.

In terms of affecting the balance of the Court, the Chief Justice does little. It seems its predominantly a procedural position. Politically, though, a conservative appointment to Chief Justice may allow the President to appoint another swing moderate like former Justice Sandra Day O'Connor.

Regardless, replacing two seats on the bench in an already charged political stage may do good and harm. John Roberts' confirmation may become easier to digest if the President decides to appoint a more controversial candidate. This will definitely be an interesting Congressional term leading up to the Christmas recess.