Think about Aaron Swartz, and now realize the balls and execution it took for Larry and Sergey to do Google Books. They got big enough that Google's "only" risk was a civil lawsuit. Had they been smaller, they would have been risking some ambitious federal prosecutor charging Google with wire fraud. Indeed, it's kind of lucky that someone like Ortiz wasn't around to throw the book at Alta Vista and early search engines for scraping sites too aggressively or without permission (before robots.txt became mainstream as a distributed solution without as much need for a centralized regulator).
As it was, DOJ did get involved in the Google Books case, pushing for a harsher civil settlement against Google:
I don't mind at all ambitious, overzealous and over-exuberant prosecutors. That is all right. Even great. But people do suffer when government officials are trying to protect their own carriers and acting out of egoism; or ignorance.
> "his case went before the judge. When his attorney returned and said the case would be dismissed if he agreed not to take any legal action against Darlington County law enforcement, he said, he reluctantly agreed"
To some extent I agree. Justice should not be a result of prosecutors pulling punches, but of a justice system that allows for a robust defence to succeed consistently over a harsh prosecution.
The problem with letting prosecutors not prosecute to the full extent of the law on their own judgement allows for selective favouritism, like white college kids getting off with a warning where a black street kid gets serious time.
Relying on prosecutors to be lenient or "do the right thing" places the defence in the wrong hands - a court that allows a strong defence to succeed over or moderate a prosecution should be at the heart of the justice system.
The real WTF is that local law enforcement thought that they might have the right to shoot down the glider. The guys that give you tickets for speeding shooting their guns in the air over a nuclear power plant? What could go wrong with that?
The plant will be fine. The workers might not be so fine.
Also while I'm sure there would be no problems with the nuclear part, there are things in and around a power plant that being struck by bullets might be... inconvenient.
I don't find the two analogous. Aaron would not have been charged with wire fraud if he had asked JSTOR, even if the original content owners tried to sue him. However, he did not secure any kind of consent and it becomes a different situation. Not saying what I think happened was right but I don't think it is the same.
The Association of American Publishers and Google’s
agreement last week to settle the publishers’ long-running
litigation over Google’s library scanning program put an
end to the lengthy and expensive suit, but without
resolving any of the underlying copyright and fair use
issues. The main component of the deal: copyright owners
with books scanned by Google under its library program can
choose to “opt out” of the program and have their books
removed. Of course, that settlement condition is something
Google has offered copyright owners with books in the
program all along.
In other words, Google scanned and posted to the web first, and authors could opt-out if they so chose. So they didn't get consent first. Their rationale was good - there was no machine readable contact information and many of the authors were dead or had moved - but in this respect the situations are reasonably analogous.
Had Aaron scraped say 10-100k rather than 4M articles and done some innovative NLP/data mining on the text (like Google N-grams), then showed that to JSTOR, despite the lack of up-front consent he might well have been able to get more or convince them to open up, especially if this 10-100k experiment showed monetization potential and could allow JSTOR to move to an open access model. Sadly, we'll never know.
Think about the fact that before they started Apple Jobs and Woz were heavily involved in phone phreaking. What would they be doing instead if they had begun their careers today? Would they have dared to do the sort of things that Aaron did? And if the criminal justice system came down on them back then as hard as it did on Aaron today would Apple computer, or NeXt, or Pixar, etc. even exist today?
Aaron was not a bad guy, nor did he seem to ever act with malicious intent. He broke some rules, certainly, but should the punishment for rule breaking be the destruction of someone's life or should it be just enough of a push to make them avoid rule breaking while keeping them a productive member of society?
Thanks for the reply, but I already made it clear that I don't agree with how the case was handled. My only objection us that the analogy has a pretty big hole.
"Think about Aaron Swartz, and now realize the balls and execution it took for Larry and Sergey to do Google Books."
This thread is about Aaron. But please do not tie the two cases together; at best Google (making $10 Billion a year in profit) scanned the books so they could wrap their content with ads. At worst....
Why didn't Google open source the scans if they wanted to "spread knowledge"?
His point still rings true - even if Aaron was in it for the free exchange of information and Google was in it for the ad revenue, it's a foregone fact in the USA that the justice you receive is proportional to nothing but your cash reserves.
His other point is true but the facts are different. If Aaron had gone to the library, scanned 10 books and posted them online it would be different. Maybe a DCMA or a lawsuit.
Aaron was accused of breaking into MIT and a few other things. It's just a bad comparison on all levels IMO.
But yeah, having billions at your disposal and a great reputation can do wonders. The Feds cannot outspend you and they it's very hard to vilify you
Because they were already being sued by the authors of the books and couldn't push it any further? Google Books offers many out-of-print books and is very much in the spirit of what Aaron was doing.
For instance, it is illegal to throw a frisbee on a beach in Los Angeles county(1). If you are ticketed, the fine is $1,000.
Now....how many tourists going to the beach are going to know that? How many would ever bother to check? Sure, signs could help, but does everyone stop and read the 12-15 rules on any beach/pool signs?
Even more broadly, were we, as citizens with the right to free travel on public property, notified of the various laws we are subject to while passing in and out of various jurisdictions? Are we notified of the daily changes made to them? Are we given an opportunity to leave said jurisdictions when informed of laws to which we don't want to be subjected?
How are we, as citizens, supposed to understand the laws we are required to follow when we aren't directly provided with them or notified of any changes?
In the private world, there are very strict rules about this. You have to explicitly agree to terms of service before utilizing products, companies must record your agreement, and they must notify you (or provide you with a new copy) if those terms change. (The South Park episode regarding the iTunes EULA made an excellent parody of this fact).
The whole system is getting completely ridiculous and it deserves much closer attention and more publicity.
The shear amount of laws has made it impossible to be fully versed on all the things you can and can't do.
It seems something like mandatory sunset provisions are the only possible solution as our legal system accumulates more and more cruft.
Eventually there will be so many laws that we will cease to be a nation under the rule of law, because the only thing that will matter is prosecutorial discretion.
>Eventually there will be so many laws that we will cease to be a nation under the rule of law, because the only thing that will matter is prosecutorial discretion.
We are long past that point, which is the reason for the post title (and the book from which it's drawn). Even the lawyers don't understand areas of the law that are outside their own narrow specialty.
The root of the problem is the federalization of criminal law. People used to say "Don't make a federal case out of it!" because that used to mean something - federal cases were for the Al Capones of the world and people who interfered with the mail.
Over the years Congress (with the acquiescence of the courts) has essentially shed any constitutional limits on its power. Federal law now applies everywhere (in the world) and to everything. The solution isn't mandatory sunset provisions - lots of laws have sunset provisions already and they're just routinely extended. The solution is a federal government that's limited to the powers delineated in its charter.
That means, for example, you could have a federal law against importation and transport of drugs across state line, but possession and sale could only be regulated at the state level. Same with guns, speed limits, "assault weapons", currency transactions, and damn near everything else against federal law. As Joe Citizen you would know that things you did wholly inside your state couldn't be illegal under federal law outside of a few narrow areas.
The way it works now is everyone is a felon, and if the feds want you they can throw a hundred minor charges at you that all carry 3-5 years, so you're looking at 500 years in jail... unless you take a plea. Innocent or guilty you take the plea. God only knows how many innocent people are rotting in jail because they didn't want to risk life in prison over something relatively minor.
These two statements are related. Congress has the Constitutional power to regulate interstate commerce. That one little phrase in the Constitution is mostly responsible for the federal government's power grab over the last 100 years or so.
Unless you have your own fully self-sufficient farm and solar plant, and don't have a telephone, TV or Internet service, you're probably consuming goods and services that are made in other states and interacting with companies based in other states.
Since the federal government has the power to regulate those transactions, it can intrude into the corner of your lives.
Also, the amendment giving the federal government the power to collect income tax was another serious mistake. It was sold to voters as a "temporary" measure to pay the country's debts from either the Civil War or World War I. Spoiler: It wasn't temporary. If the government had never had the revenue to engage in the massive spending of the last century, the current fiscal mess wouldn't be happening.
Not even a self-sufficient farm is immune from the federal government, as was decided in Wickard v. Filburn[1]:
"Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial."
Yep, Wickard was where it really went off the rails. And then it got even sillier when the court decided in Raich that if you grow a pot plant in your closet purely for personal consumption Congress has the power to regulate it as interstate commerce. They didn't even have the flimsy fig leaf they had in Wickard.
That's bad in itself. But, worse - most laws as written in federal and state codes aren't even the actual laws. The real laws are what my lawyer friends call the 'case law' - the historical precedence and rules of courts.
And, case law is completely impractical for any average citizen to even find, let alone read and understand.
I like to ask these friends the provocative question, "so, when are you guys going to make the laws easier for average people to understand." And, they facetiously reply, "What, you want us out of a job?"
And, they're right. There is no incentive for anyone in the legal hierarchy to make laws more accessible. Maybe our legislatures can fix it. But, we Americans consistently elect into office more lawyers.
As a software development analogy, that's like hiring programmers to decide the features and interfaces of the systems that they will get paid to maintain. And, there's a reason that good software depends on people of different disciplines (designers, product managers, subject matter experts) coming together.
PS: One idea I've had is to create an iPhone app that would allow you to see laws that apply to you at your current location. You could favorite issues you were concerned with (my personal examples are jaywalking, talking on a cell while driving, and turning right on red) and quickly see what the local rules are. It would be crowdsourced so that the entire community can contribute.
I love this idea! The question is, is the law written in such a way that you could delineate the geographic and contextual boundaries to which it applies?
I have a sneaking suspicion that it's not so clear. I'd love to be proven wrong, though!
In the geocoding products I have used, it's pretty specific about where you are. In a certain city/town, in a certain county, in a certain state, in a certain country. As long as the geocoding is accurate and you can properly assign laws to each level (ie. this law for this town) then it should work fine.
For local ordinances and state laws, geographic boundaries in which they could apply is fairly straightforward. Specific context (beach, club, &c) would be harder, to say the least.
I hate to post something so pithy on HN -- we usually do longer comments here.
The fact is, compexity in the legal system only creates a system where those in power can do whatever they want while those out of power (the middle class and poor, mostly), are at the mercy of chance. That's not meant as an indictment of the American political system, that's meant as an indictment of the idea that a complex society requires complex rules to operate. If we could kill that idea, a lot of this other stuff would clear itself up. But I'm not taking any bets.
Further, you have a class of individuals whose job is to make new laws (Congress and its machinations, as well as the state and municipal equivalents). If they don't make laws, the perception is that they are not doing their job. It was the same frustration with the parlements and the resulting legal culture that helped ferment the French Revolution.
There are some great parallels with the FR here -- more and more mob unrest, little education as to why and how the political system works the way it does, an overpowering debt that resists easy solutions, endless negotiations and patchwork fixes,etc.
I think I'd like to get as far from US federal law as soon as reasonably possible. Unfortunately doing a tech startup in the US is still vastly better than doing a tech startup anywhere else in the world, and a sufficiently successful company is going to be exposed to US jurisdiction regardless, although principals may not be (and definitely not for personal stuff), e.g. Mega.
Not sure where is really that much better, except that common law jurisdictions other than the US probably don't have the more recent utter rejections of the common law tradition (RICO, Patriot, etc.).
I have a theory about how we got this way in America. I think that it is an odd side effect of our ethos as risk takers and individualists. In many other countries, it appears that there are some things that people won't do simply because they would be ashamed to, or ostracized. There's no need to pass a law with outrageous fines or sentences in an attempt to prevent things from happening.
In the US, we tend to side with the rebel. Or, at least we did back in the 60s and 70s. What we are seeing today is a legal clamping down in order to compensate fused with post 9/11 paranoia.
Related: I believe that the reason why we Americans don't engage in irony in conversation as much as, say, the British is that there is nothing that you can say or do that someone somewhere in the US won't believe or do earnestly. It's an aspect of our culture, and sort of a generalized case of Poe's Law.
Many of the recent federal laws have nothing to do with things that people would be ashamed to do, or with terrorism. I forget the details of the case, but a woman was facing jail time for some offense related to harassing a whale by coming too close to it in a whale watching boat (since whales are an endangered species protected under federal law). Also, a lot of landowners have had their properties retroactively declared to be federally protected wetlands, making it a federal crime to erect new buildings on them. And at this time, manufacturing 100 watt incandescent light bulbs is a violation of federal law (or maybe this year it's down to 75 watts).
They want you to take a plea bargain. No, scratch that. They need you to take a plea bargain. The court system would grind to a halt if everyone refused to deal and demanded a jury trial.
So they charge you with as much as they can get away with. You can end up with dozens of counts as the result of one act. The purpose is to give themselves a strong hand when it comes to the deal.
The prosecutor has already pretty much decided what he (or she) thinks is fair. So you take the deal and get what the prosecutor decided, or you run the risk of what is essentially a life sentence if you get convicted on every count. Probably wouldn't actually happen if you went to trial. Probably. But it might. So you take the deal and the government doesn't go through the expense of giving you a fair trial.
But it's not "Politics" that I want to show him. It's Judge Phelan's character. Poking through the wikis, I think I actually meant Season 1. It's been two years since I saw it; I need to do a re-watch.
Thousands of new of laws are passed each year (how did we manage the year before without them?) so eventually everyone will be guilty of something. Many laws are also broad so it's just a matter of them wanting to "get you." How many people have a few million $ under their mattresses to prove their innocence?
> Many laws are also broad so it's just a matter of them wanting to "get you."
Exactly. I have seen many people have hangups with the "three felonies a day" concept because they misunderstand the purpose. They think the accusation is that these laws are being constructed so that everyone can be arrested. Since it is obvious that everyone is not being arrested, they concluded that the concerned are just being alarmist.
The purpose isn't to allow the arrest of everybody though. It is to allow the arrest of anybody.
Only an unlucky few are going to be 'called on' their daily felonies. Well, that and the baseline background noise of enough arrests to keep the whole system busy and well greased...
> The purpose isn't to allow the arrest of everybody though. It is to allow the arrest of anybody.
I expect it's possible there have been and are people who push laws with exactly that intention.
But my suspicion is that for the most part, the process isn't driven by scheming tyrants behind the legislation, and that most laws are probably passed with the intention of solving a specific problem.
It's only as they accumulate, as law enforcement and prosecutors learn how to push them as tools, and as courts accept and support such use that they're woven into a broader net that can catch "anybody."
Confronting this is different from confronting those who proverbially "mean to rule" -- it's confronting what it means to have rule-of-law itself.
As it was, DOJ did get involved in the Google Books case, pushing for a harsher civil settlement against Google:
http://news.cnet.com/8301-30684_3-10357097-265.html