Paul Merrell’s Techdirt Profile

marbux

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  • Oct 6th, 2016 @ 2:29am

    Re: The majority follow the law?

    @ "I would bet that the vast majority of people in the agencies follow the law ..."

    That is an incredibly naive thing to say. Consider for example, that: [i] the U.S. war against Iraq beyond question was the most heinous of war crimes, a war of aggression; and the Uniform Code of Military Justice forbids everyone in the U.S. armed services from obeying unlawful orders. So how many officers refused to obey their orders to invade Iraq and bomb it back into the Stone Age? None that I ever heard of, not a single one.

    Most people in government don't give a damn about the law; they just want to slide from one paycheck to the next until they retire (as enjoyably as possible the entire journey) and get as many pay raises along the way as they can. And only a tiny fraction are willing to blow the whistle when the agency's compliance with the law derails. Almost invariably, those few brave whistle-blowers suffer massive retaliation.

    There are literally thousands of lawyers in the U.S. --- not working for government --- who specialize in suing the government using other statutes and the Administrative Procedures Act. Do you really imagine that the vast majority of people working in government spend so much as a solitary thought in their typical working day about "follow[ing] the law?"

    If they did, all those administrative lawyers would have to switch the focus of their legal practices to legal issues not involving the government!

  • Apr 8th, 2015 @ 8:38am

    (untitled comment)

    Don't forget the orphan works problem. I advocate for a copyright's automatic expiration one year from the date it is no longer available for sale to the public. The quid pro quo of both copyrights and patents is that the public is to receive the information in trade for a limited-term government license granting the exclusive rights to the profit from the work during that period.

    If the information ceases to be available, the public is getting short-changed if the unavailability continues; it no longer has access to the information.

  • Apr 8th, 2015 @ 4:26am

    Not a libertarian viewpoint

    @ ... he and his father Ron put out a weird internet freedom "manifesto" that appeared to argue for much stronger copyright laws, and which argued that the public domain was an evil "collectivist" threat that was against basic property rights.

    The giggle there is that copyrights (and patents) are market artificialities issued by the government creating an artificial shortage of goods. Hence they conflict with libertarian free market principles. The conflict between intellectual "property" rights and non-imaginary property was perhaps best summed up by Thomas Jefferson, the Father of the U.S. patent system:

    Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious, then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made anyone thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less because every other possesses the whole of it. He who receives an idea from me receives instruction himself without lessening mine, as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man and improvement of his condition, seems to have been peculiarly and benevolently designed by nature when she made them, like fire, expansible over all space, without lessening their density in any point, and, like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done according to the will and convenience of the society, without claim or complaint from anybody.


    VI Writings of Thomas Jefferson at 180-181 (Washington ed.), as quoted in Graham v. John Deere Co., 383 U.S. 1 footnote 2 (1966), http://supreme.justia.com/us/383/1/case.html (italics added).

  • Feb 9th, 2015 @ 11:59pm

    Re: >_ (as Paul E. Merell, J.D.)

    So does Windows Phone 8:

    "When you first start Speech, we ask if you want to enable the speech recognition service. If you accept, the words you speak and supporting data, including recent contact names, will be sent to Microsoft to provide and improve the service. You can turn it off at any time by going to Settings Settings icon > Speech and clearing the Enable Speech Recognition Service check box. "

    http://www.windowsphone.com/en-us/how-to/wp8/apps/use-speech-on-my-phone

  • Jun 22nd, 2013 @ 10:22am

    New machine (as Paul E. Merrell, J.D.)

    The Court quoted its own 1994 Alappat decision:

    ". . . programming creates a new machine, because a general purpose computer *in effect* becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.”

    Sure, just like playing a different roll on a player piano creates a new player piano, playing a different music CD on a CD player creates a new CD player, and a radio station broadcasting music becomes a new radio station every time a different song is played.

    The claimed *fact* --- not law --- that all software could be implemented as hardware in a special purpose computer is not only false but is also irrelevant as a matter of formal logic. General purpose computers are designed to process different software programs that produce differing results. Special purpose computers hard-wired to use no software are not designed to process software. That is the essence of their difference, not their similarity as the Federal Circuit panel would have you believe.

    For that reason, it would be a logical fallacy to claim that a general purpose computer "becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.” The general purpose computer and the special purpose computer are quite different inventions and neither defines the other. The Alappat decision's author knew that when s/he wrote, which is why the author inserted the red flag qualifier phrase "in effect" and hoped no one would notice.

    S/he might as logically have written, "a house can be destroyed by fire whether the fire is started by accident or by an arsonist. Because these two possibilities have the same *effect* and arson is a crime -- therefore starting a fire accidentally that destroys a house is also a crime."

    That is fallacious reasoning. But an extra point to the Alappat author for combining two fallacies in one sentence, the red herring and the weak analogy.

  • Apr 26th, 2013 @ 2:02pm

    Purpose of Copyright, etc. (as Paul E. Merrell, J.D.)

    OP: Originally, copyright was just that: a choice by society to employ the analogies of ownership and property in limited, specially-tailored ways in order to achieve a desired result — a flourishing intellectual and artistic economy.

    That is incorrect as a historical matter. The original purpose of the copyright under English law was to grant to a particular printer a monopoly on the copying and distribution of a given work. The royal favor was commonly granted to publish a foreign author's work without recompense to the author.

    On the right being a legal fiction and turtling all the way down, yes. Even Government and Law are pure mental constructs, having existence only in the human mind. I never kissed one, never changed one's diaper, never gave on a hug. They do not exist.

    Too often, I get a chortle when I see a representative of a corporation like Microsoft advocating free market principles for a copyrighted or patented work. That's because corporations, like copyrights and patents, are market artificialities created by government. None of them have any physical existence, not government, not law, not corporations, not patents, and not copyrights. All are legal fictions whose raison d'ętre is to interfere with freedom and free market principles.

  • Mar 9th, 2013 @ 1:35pm

    Re: Federal Jurisdiction?

    Anonymous Coward is wrong. Under Federal Rule 65(d):

    (2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:

    (A) the parties;

    (B) the parties’ officers, agents, servants, employees, and attorneys; and

    (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).


    Fed. R. Civ. P. 65(d)(2).

    In my opinion, subsection C covers them unless Gibbs disobeyed the order to serve them and they did not learn of the order "otherwise." Personal jurisdiction requirements apply to the formally named parties to a case but have no application to the scope of a federal judge's power to command persons to act or to refrain from acting.

    Paul E. "Marbux" Merrell, J.D.