Archive for the ‘Legal Matters’ Category

Brief, uncharacteristic foray into national politics. The Senate narrowly approved a tax reform bill that’s been hawked by that shiny-suit-wearing-used-car-salesman-conman-guy over the past months as simply a big, fat tax cut. From all appearances, it won’t quite work out that way. The 479-pp. bill is available here (PDF link), including last-minute handwritten amendments. I don’t know how typical that is of legislative processes, but I doubt rushing or forcing a vote in the dead of night on an unfinished bill no one has had the opportunity to review leads to good results. Moreover, what does that say to schoolchildren about finishing one’s homework before turning it in?

Considering the tax reform bill is still a work in progress, it’s difficult to know with much certainty its effects if/when signed into law. However, summaries and snapshots of tax effects on typical American households have been provided to aid in the layperson’s grasp of the bill. This one from Mic Network Inc. (a multichannel news/entertainment network with which I am unfamiliar, so I won’t vouch for its reliability) states that the bill is widely unpopular and few trust the advance marketing of the bill:

Only 16% of Americans have said they think the plan is actually going to cut their taxes, less than half the number of people polled who think that their bill is going to go up, according to a Nov. 15 poll from Quinnipiac University.

Yet it seems the Republican-led effort will be successful, despite concerns that many middle class people could actually see their taxes rise, that social programs could suffer, that small businesses could be harmed and that a hoped-for economic boom may never materialize. [links removed]

When a change in tax law goes into effect, one good question is, “who gets help and who gets hurt?” For decades now, the answer has almost always been Reverse Robin Hood: take (or steal) from the poor and give to the rich. That’s why income inequality has increased to extreme levels commencing with the Reagan administration. The economic field of play has been consciously, knowingly tilted in favor of certain groups at the expense of others. Does anyone really believe that those in power are looking out for the poor and downtrodden? Sorry, that’s not the mood of the nation right now. Rather than assisting people who need help, governments at all levels have been withdrawing support and telling people, in effect, “you’re on your own, but first pay your taxes.” I propose we call the new tax bill Reverse Cowgirl, because if anything is certain about it, it’s that lots of people are gonna get fucked.


The witch hunt aimed at sexual predators continues to amaze as it crashes the lives of more and more people. I knew once the floodgates were opened that many of the high and mighty would be brought low. It was probably overdue, but no one can be truly surprised by the goings on giving rise to this purge. Interestingly, the media have gone into the archives and found ample evidence of jokes, hush money, accusations, and lawsuits to demonstrate that this particular open secret was a well-known pattern. Some have offered the simplest of explanations: power corrupts (another open secret). No one really wants to hear that time-honored truth or admit that they, too, are entirely corruptible.

One of the accused has openly admitted that the accusations against him are true, which is almost a breath of fresh air amid all the denials and obfuscations but for the subject matter of the admission. And because it’s a witch hunt, those accused are vulnerable to the mob demanding immediate public shaming and then piling on. No investigation or legal proceeding is necessary (though that may be coming, too). The court of public opinion effects immediate destruction of life and livelihood. Frankly, it’s hard to be sympathetic toward the accused, but I cling to noble sentiment when it comes to application of the law. We should tread lightly to avoid the smears of false accusation and not be swept into moral panic.

Ran Prieur weighed in with this paragraph (no link to his blog, sorry; it’s quite searchable until it gets pushed down and off the page):

I like Louis CK’s apology because he understands that the core issue is power … We imagine these people are bad because they crossed the line between consent and coercion. But when almost the entire world is under authoritarian culture, where it’s normal for some people to tell other people what to do, where it’s normal for us to do what we’re told even if we don’t feel like it, then the line between consent and coercion is crossed so often that it basically doesn’t exist.

Once a culture has crossed the line into normalization of hierarchy, it’s a constant temptation to cross the next line, between using a position of power for the good of the whole, and using it selfishly. And once that line has been crossed, it’s tempting for selfish use of power to veer into sex acts.

I like to think, in a few thousand years, human culture will be so much improved that one person having any power over another will be a scandal.

It’s a slightly fuller explanation of the power dynamic, just as Louis CK offered his own explanation. The big difference is that no one wants to hear it from an admitted sexual predator. Thus, Louis CK is over. Similarly, no one can watch The Cosby Show in innocence anymore. Remains to be seen if any of the fallen will ever rise to career prominence again. Yet Prieur’s final statement confounds me completely. He gets the power dynamic but then plainly doesn’t get it at all. Power and authority are not optional in human society. Except for a few rare, isolated instances of radical egalitarianism, they are entirely consistent with human nature. While we might struggle to diminish the more awful manifestations, so long as there are societies, there will be power imbalances and the exploitation and predation (sexual and otherwise) that have been with us since our prehistory.

Remember: we’re mammals, meaning we compete with each other for sexual access. Moreover, we can be triggered easily enough, not unlike dogs responding when a bitch goes into heat. Sure, humans have executive mental function that allows us to overcome animal impulses some of the time, but that’s not a reliable antidote to sexual misconduct ranging from clumsy come-ons to forcible rape. This is not to excuse anyone who acts up. Rather, it’s a reminder that we all have to figure out how to maneuver in the world effectively, which frankly includes protecting ourselves from predators. The young, sexually naïve, and powerless will always be prime targets. Maybe we’re not quite barbarians anymore, raping and pillaging with wanton disregard for our victims, but neither are we far removed from that characterization, as recent accounts demonstrate.

I’m a little gobsmacked that, in the aftermath of someone finally calling out the open secret of the Hollywood casting couch (don’t know, don’t care how this news cycle started) and netting Harvey Weinstein in the process, so many well-known actors have added their “Me, too!” to the growing scandal. Where were all these sheep before now? As with Bill Cosby and Bill Clinton, what good does it do to allow a serial abuser to continue unchallenged until years, decades later a critical mass finally boils over? I have no special knowledge or expertise in this area, so what follows is the equivalent of a thought experiment.

Though the outlines of the power imbalance between a Hollywood executive and an actor seeking a role (or other industry worker seeking employment) are pretty clear, creating a rich opportunity for the possessor of such power to act like a creep or a criminal, the specific details are still a little shrouded — at least in my limited consumption of the scandal press. How much of Weinstein’s behavior veers over the line from poor taste to criminality is a difficult question precisely because lots of pictorial evidence exists showing relatively powerless people playing along. It’s a very old dynamic, and its quasi-transactional nature should be obvious.

In my idealized, principled view, if one has been transgressed, the proper response is not to slink away or hold one’s tongue until enough others are similarly transgressed to spring into action. The powerless are duty bound to assert their own power — the truth — much like a whistleblower feels compelled to disclose corruptions of government and corporate sectors. Admittedly, that’s likely to compound the initial transgression and come at some personal cost, great or small. But for some of us (a small percentage, I reckon), living with ourselves in silent assent presents an even worse option. By way of analogy, if one were molested by a sketchy uncle and said nothing, I can understand just wanting to move on. But if one said nothing yet knew the sketchy uncle had more kids lined up in the extended family to transgress, then stepping up to protect the younger and weaker would be an absolute must.

In the past few decades, clergy of the Catholic Church sexually abused many young people and deployed an institutional conspiracy to hide the behaviors and protect the transgressors. Exposure should have broken trust bonds between the church and the faithful and invalidated the institution as an abject failure. Didn’t quite work out that way. Similar scandals and corruption across a huge swath of institutions (e.g., corporate, governmental, military, educational, entertainment, and sports entities) have been appearing in public view regularly, yet as a culture, we tolerate more creeps and criminals than we shame or prosecute. ( is one of the sites that regularly reports these corruptions with respect to American empire; I can scarcely bear to read it sometimes.) I suspect part of that is a legitimate desire for continuity, to avoid burning down the house with everyone in it. That places just about everyone squarely within the “Me, too!” collective. Maybe I shouldn’t be so gobsmacked after all.

Caveat: This thought experiment definitely comes from a male perspective. I recognize that females view these issues quite differently, typically in consideration of far greater vulnerability than males experience (excepting the young boys in the Catholic Church example).

Violent events of the past week (Charleston, VA; Barcelona, Spain) and political responses to them have dominated the news cycle, pushing other newsworthy items (e.g., U.S.-South Korean war games and a looming debt ceiling crisis) off the front page and into the darker recesses of everyone’s minds (those paying attention, anyway). We’re absorbed instead with culture wars run amok. I’m loath to apply the term terrorism to regular periodic eruptions of violence, both domestic and foreign. That term carries with it intent, namely, the objective to create day-to-day terror in the minds of a population so as to interfere with proper functions of society. It’s unclear to me whether recent perpetrators of violence are coherent enough to formulate sophisticated motivations or plans. The dumb, obvious way of doing things — driving into crowds of people — takes little or no planning and may just as well be the result of inchoate rage boiling over in a moment of high stress and opportunity. Of course, it needn’t be all or nothing, and considering our reflexively disproportionate responses, the term terrorism and attendant destabilization is arguably accurate even without specified intent. That’s why in the wake of 9/11 some 16 years ago, the U.S. has become a security state.

It’s beyond evident that hostilities have been simmering below the not-so-calm surface. Many of those hostilities, typically borne out of economic woes but also part of a larger clash of civilizations, take the form of identifying an “other” presumably responsible for one’s difficulties and then victimizing the “other” in order to elevate oneself. Of course, the “other” isn’t truly responsible for one’s struggles, so the violent dance doesn’t actually elevate anyone, as in “supremacy”; it just wrecks both sides (though unevenly). Such warped thinking seems to be a permanent feature of human psychology and enjoys popular acceptance when the right “other” is selected and universal condemnation when the wrong one is chosen. Those doing the choosing and those being chosen haven’t changed much over the centuries. Historical Anglo-Saxons and Teutons choose and people of color (all types) get chosen. Jews are also chosen with dispiriting regularity, which is an ironic inversion of being the Chosen People (if you believe in such things — I don’t). However, any group can succumb to this distorted power move, which is why so much ongoing, regional, internecine conflict exists.

As I’ve been saying for years, a combination of condemnation and RightThink has simultaneously freed some people from this cycle of violence but merely driven the holdouts underground. Supremacy in its various forms (nationalism, racism, antisemitism, etc.) has never truly been expunged. RightThink itself has morphed (predictably) into intolerance, which is now veering toward radicalism. Perhaps a positive outcome of this latest resurgence of supremacist ideology is that those infected with the character distortion have been emboldened to identify themselves publicly and thus can be dealt with somehow. Civil authorities and thought leaders are not very good at dealing with hate, often shutting people out of the necessary public conversation and/or seeking to legislate hate out of existence with restrictions on free speech. But it is precisely through free expression and diplomacy that we address conflict. Violence is a failure to remain civil (duh!), and war (especially the genocidal sort) is the extreme instance. It remains to be seen if the lid can be kept on this boiling pot, but considering cascade failures lined up to occur within the foreseeable future, I’m pessimistic that we can see our way past the destructive habit of shifting blame onto others who often suffer even worse than those holding the reins of power.

Events of the past few days have been awful: two further shootings of black men by police under questionable circumstances (Louisiana and Minnesota), and in response, a sniper killing five police officers (Texas) and injuring more. Everything is tragic and inexcusable; I offer no refuge for armed men on both sides of the law using lethal force against others. But I will attempt to contextualize. Yes, issues of race, guns, and public safety are present. The first two are intractable debates I won’t wade into. However, the issue of public safety seems to me central to what’s going on, namely, the constant beat of threatening drums and related inflammatory speech that together have the effect of putting everyone on edge and turning some into hair-triggers.

I’ve read news reports and opinion columns that subject these events to the usual journalistic scrutiny: factual information strung together with calm, measured assurance that what occurred was the result of intemperate individuals not representative of the public at large. So go ahead and worry, but not too much: those guys are all outliers — a few bad apples. As I take the temperature of the room (the country, actually), however, my sense is that we are approaching our boiling point and are frankly likely to boil over soon, perhaps in concert with party nominating conventions expected to break with convention and further reveal already disastrous operations of the federal government. The day-to-day,  smooth surface of American life — what we prefer in times of relative peace and prosperity — has also been punctuated for decades now with pops and crackles in the form of mass shootings (schools, theaters, churches, clubs, etc.) and a broad pattern of civil authorities surveilling and bringing force to bear against the public they’re meant to protect and serve. How long before it all becomes a roiling, uncontrollable mess, with mobs and riots being put down (or worse) by National Guardsmen just like the 1960s? Crowd control and management techniques have been refined considerably since that last period of civil unrest (I wrote about it briefly here), which is to say, they’re a lot creepier than water cannons, tear gas, and pepper spray (nothing to laugh about if one has been on the receiving end of any of those).

My question, to anyone with the equanimity to think twice about it, is this: aren’t these outcomes a rather predictable result of the bunker mentality we’ve adopted since being instructed by the media and politicians alike that everyone the world over is coming to take away our guns freedom? Further, aren’t the vague, unfocused calls to action spouted constantly by arch-conservative demagogues precisely the thing that leads some unhinged folks to actually take action because, well, no one else is? Donald Trump has raised diffuse threats and calls to action to an art form at his rallies, with supporters obliging by taking pot shots at others at the mere whiff of dissent from his out-of-tune-with-reality message. (Don’t even think about being nonwhite in one of those crowds.) He’s only one of many stirring the pot into a froth. Moreover, weak minds, responding in their lizard brains to perceived threat, have accepted with gusto the unfounded contention that ISIS in particular, terrorism in general, represents an existential threat to the U.S., and thus, generalizing the threat, are now calling for curtailing the practice of Islam (one of three Abrahamic religions arising in the ancient world with over 2 billion adherents worldwide) in the U.S. Apparently, the absolutism of freedom of religion (can also be interpreted as freedom from establishment of a state religion) enshrined in the 1st Amendment to the U.S. Constitution is lost on those whose xenophobia erases all reasoned thought.

The mood is turning quite ugly. A quick survey of history probably reveals that it’s always been that way. Many of us (by no means all of us) understand calls to “make America great again” as coded speech advocating return to a white male Christian dominated culture. So much for our vaunted freedom.

I don’t watch political debates. Being of sound mind and reason, I’m not part of the target audience. However, I do catch murmurs of the debates from time to time. Because torture is a sore subject with me, this excerpt (full transcript here) from the Feb. 6 debate moderated by World News Tonight anchor David Muir perked up my ears:

MUIR: … we’re going to stay on ISIS here and the war on terror, because as you know, there’s been a debate in this country about how to deal with the enemy and about enhanced interrogation techniques ever since 9/11.

So Senator Cruz, you have said, quote, “torture is wrong, unambiguously, period. Civilized nations do not engage in torture.” Some of the other candidates say they don’t think waterboarding is torture. Mr. Trump has said, I would bring it back. Senator Cruz, is waterboarding torture?

CRUZ: Well, under the definition of torture, no, it’s not. Under the law, torture is excruciating pain that is equivalent to losing organs and systems, so under the definition of torture, it is not. It is enhanced interrogation, it is vigorous interrogation, but it does not meet the generally recognized definition of torture.

MUIR: If elected president, would you bring it back?

CRUZ: I would not bring it back in any sort of widespread use. And indeed, I joined with Senator McCain in legislation that would prohibit line officers from employing it because I think bad things happen when enhanced interrogation is employed at lower levels.

But when it comes to keeping this country safe, the commander in chief has inherent constitutional authority to keep this country safe. And so, if it were necessary to, say, prevent a city from facing an imminent terrorist attack, you can rest assured that as commander in chief, I would use whatever enhanced interrogation methods we could to keep this country safe.

Cruz is obviously squirming to avoid answering the simple questions directly and unambiguously. Whose definition has Cruz cited? Certainly not one of these. Another page at the previous link says plainly that waterboarding is “torture plus” precisely because of its ability to inflict “unbearable suffering with minimal evidence” repeatedly. Relying on some unsubstantiated definition to keep waterboarding among available interrogation options and then invoking the ticking time bomb scenario is callous and inhumane. Cruz is unfit as a presidential candidate for lots of reasons, but his stance on torture is an automatic disqualification for me.

Muir then turns the same question(s) over to Trump:

MUIR: Senator Cruz, thank you. Mr. Trump, you said not only does it work, but that you’d bring it back.

TRUMP: Well, I’ll tell you what. In the Middle East, we have people chopping the heads off Christians, we have people chopping the heads off many other people. We have things that we have never seen before — as a group, we have never seen before, what’s happening right now.

The medieval times — I mean, we studied medieval times — not since medieval times have people seen what’s going on. I would bring back waterboarding and I’d bring back a hell of a lot worse than waterboarding.

Trump, in contrast to Cruz, doesn’t squirm at all (though he does struggle to complete a sentence, resorting instead to a stammering, repetitive word salad no one seems to mind). Instead, he goes full war criminal without hesitation (though at this point in time it’s only postulated). Trump’s polarizing, inflammatory style has earned him both severe disapprobation and earnest support. Like Cruz, Trump has a variety of automatic disqualifications as a presidential candidate. My thinking is that, even though I can’t peer into his mind and guess his true motivations (which may be as obvious as they appear) or anticipate his behavior should he attain office, his moral judgment vis-à-vis torture (and frankly, most other topics as well) is so impaired that I don’t trust him as a playground monitor.

In narrative, there are four essential types of conflict:

  1. man against man
  2. man against society
  3. man against nature
  4. man against self

One might argue that Cruz, Trump, and their supporters who applaud “get tough” rhetoric (add Hillary Clinton to this group) fall into the first category, ever battling enemies like besieged heroes. I would argue they fall into the fourth as well, battling their own inhumanity, though there is a notable lack of wrestling with anything approaching a conscience. But in truth, debate over torture might better be categorized as man against everything, considering who and what is destroyed even by entertaining the fantasy of torturing others. Some still argue that a strategic advantage can be retained using torture, whereas Trump (always the extremist) merely relishes the possibility of obliterating others. However, we become monsters by keeping the option alive.

The Supreme Court ruled today in Kentucky v. King today that the Fourth Amendment does not apply in cases of exigent exception. Such exceptions include threat of imminent bodily harm or destruction of evidence. The sticking point is where the police create those exigencies by their own actions. The Court ruled in favor of expanded police powers — yet another chink in the plateless armor of the U.S. Constitution.

My reading is that this is merely a version of the ticking time bomb scenario used to justify torture, though the stakes are considerably lower. The significant details of the Kentucky case (PDF of the decision here) are that, upon chasing a drug buyer/dealer into an apartment complex, the cops smelled marijuana fumes, banged on a door (not knowing which door was correct), heard sounds of rustling and scrambling from inside, proceeded to bust through the door, and entered without warrant. I didn’t read the entire opinion, but it seems obvious to me that awarding increased power to the police in a drug case, when police are often known to use overweening force without much hesitation and sometimes without much accuracy, doesn’t rise to a level of urgency justifying abrogation of the Fourth Amendment.

The war on drugs has been a dogged loser for decades now and has only succeeded in creating a criminal class out of a supply-and-demand dynamic that will not be legislated away any better than was Prohibition. While some actors in the drug trade are driven to violence and desperation, a large portion of them are criminal only in the same sense as those who indulge in underage smoking, drinking, or sex. We tend not to crucify underage smokers or drinkers, but those who obey their innate biological urges prior to the arbitrary age of 18 (or whatever the age of consent may be in various jurisdictions) are often prosecuted and classified as rapists, putting them on life-long sex offender lists. The same insane logic applies to prosecuting recreational drug users as criminals rather than treating the issue as a health problem or epidemic, which it in fact is considering how prevalent recreational drug use is among the public.

The balance in cases of hot pursuit or belligerent resistance is tricky, and nearly every news report and anecdote I read about excessive force employed by police officers against, say, grandmothers or 13-year-old girls is accompanied by mediating details that, if shaped the right way, make tazering an unarmed, wheelchair-bound citizen the right thing to do. Actually, it’s rather easy to construct bogus narratives that make any sort of resistance, principled or otherwise, to the state’s monopoly on use of force the actions of a terrorist. Once in a while, though, I’d like to see the balance weighted clearly in favor of citizens, which is among the chief aims of the Bill of Rights.

Two news pieces of legislation (here and abroad) are aimed at further victimizing those already the victims of financial distress. The first, from merry old England, would remove substantial funding from social services for the homeless and actually make it a crime to give out food for free. The second, from wacko Minnesota, would make it a crime for anyone on public assistance to have more than $20 in his or her pockets. Yet another U.S. federal bill would require IRS audits to determine how abortions were paid for, ostensibly to ensure no government funds were used.

The pettiness of such legislation is so flabbergasting I hardly know what to say. Legislators appear to be under the delusion that people sleeping in cardboard boxes and women seeking abortions are merely making lifestyle choices, who, if given proper motivation, would choose differently as encouraged by lawmakers. It should be obvious to anyone with a tiny sliver of sense that these new laws, if enacted, guarantee that people will be driven to commit crimes, whether stealing food or risking back-alley abortions.

Who votes for these office holders? Who could possibly support criminalizing charity, Christian or otherwise? When will the situation become so egregious that the people rebel?

There is an aphorism in poker that goes, if you look around the table and don’t know who the chump is, then it’s you. A similar sentiment makes movies about con men entertaining. These days, the likelihood of running into an actual con, scam, Ponzi scheme, fraud, ripoff, or swindle where you’re the chump or mark is pretty high. It’s not necessary to include all the so-called 419 scam e-mails emanating from Nigeria or the United Kingdom promising millions of funds to be transferred into your name or a foreign lottery you’ve just won. Scams are now built into banking and credit card fees, municipal codes, cell phone and utility service agreements, and many other aspects of everyday commerce in what is being called gotcha capitalism. It makes a person wonder whether honest business practices are becoming rare.

The brazenness of some scams is pretty breathtaking. The infamous example of Bernie Maddoff’s Ponzi hedge fund is probably an aberration in terms of both duration and the dollar amounts involved, but further scams that have emerged over the months since Maddoff’s fall are still pretty breathtaking. In March 2010, the Boston Bridal Show was revealed to be a sham only a few days before the event. The Washington Post also reported in March about the increase of food fraud. (We all know by now to be suspicious of anything consumable coming from China.) The following month, The Consumerist reported a Facebook scam that netted over 37,000 victims in one day. (The Consumerist is one of my regular blog reads precisely to keep up with the latest weirdness in the marketplace. A correspondent of mine reads regularly for the same reason, though it’s directed at rumor mongering and urban legends.) Many believe eBay has been ruined by scam artists. Even the Chicago Tribune recently identified common scams to beware. In fact, many websites track emerging scams and publish alerts (see here and here and here and here and here, for instance).

There have always been scoundrels only too happy to take advantage of witless rubes. It may be worth noting that the ease of communications and in some cases production now make it simple to take a machine-gun approach: fire at everyone and see what hits. As a result, as members of society, we’re now in the unfortunate position of having to be suspicious of every routine transaction of money or information; we have to fend off the con men and swindlers continuously. If a clearinghouse exists for brands and/or businesses that are not automatically and reflexively out to getcha, I would be interested in learning of it.

I’m not really all that interested in setting the record straight every time I come across some wild claim, bogus argument, or manipulative video. There is simply too much of it. But the video below (which I found on BoingBoing), called When Copyright Goes Bad, just pisses me off.

Much of the video is expertly done in that all the major signposts of a carefully constructed documentary are present, especially visual appeal, threatening soundtrack, slanted commentary, and transparent advocacy. But its basic premise — that copyright law is encroaching upon existing consumer rights — is flatly wrong. The supposed consumer rights this video defends are these:

  • back-up copies
  • format shifting
  • mash-ups/remixing
  • fair use
  • fostering access

The suggestion is that copyright is expanding to make these things illegal, but in fact, it’s the reverse that’s true: emerging technologies now enable home users to make virtually cost-free copies, which is driving demand that, in effect, is rendering copyright obsolete in the same fashion that vehicle speed limits are often moot except to those few singled out for selective enforcement. The law is now hopelessly behind the times when it comes to technologies that make copying so easy that infringing behavior is now wrongly perceived as a consumer right.

At various points in the video, Fred Von Lohman of the Electronic Frontier Foundation is featured (unaccountably framed as a big, fat head) talking about copyright. What he says isn’t inaccurate exactly, but rather, is subtly shaped to give the wrong impressions to the easily misled. For example, he says that “copyright has actually been expanding,” which is true as to duration but in no other aspect. (Many copyright experts believe time extensions to copyright protection, at the behest of owners of a few valuable properties, is improper. I agree.) He also says that “copyright law intrudes deeply into our everyday lives,” which is also true but only because we now demand the freedom to illegally copy protected content at will and have grown increasingly aware that this is a legal issue. The entire video uses that same tone, referring to infringers as pirates and terrorists and showing children being frustrated in their innocent attempts to, well, infringe copyright.

This isn’t sudden at all, although Von Lohman says it is. Rather, a decades-long, unsteady equilibrium with infringing technologies such as the photocopier and cassette tape has been upset with the advent of digital technologies that make exact or near-exact copies available on any home computer with copy-and-paste ease. Acts of infringement are so widespread that their illegality is felt a mere irritation by end-users who recognize that everyone is doing it. As with news available for free on the Internet, you’re a chump if you actually pay for content.

Copyright (a subset of intellectual property rights) is difficult for most laypersons to understand precisely because it’s intangible. The rights vest not so much in the copy, embodiment, or medium but in the idea behind an embodiment and the subsequent monopoly right to control fabrication and distribution of copies, whether tangible (e.g., a book or CD) or virtual (e.g., an e-book or mp3). If a cheap, easy way were devised to make fully bound copies of books on paper at the cost of broadband access and hard drive space, there would be demand, and pirates (actually, that’s the correct word despite the untoward associations) would seek to meet the demand. But the book on paper produced by legitimate publishers and copyright holders is already relatively cheap in terms of the content it delivers, and library copies and used book markets make legit copies readily available to anyone without the modest funds necessary to buy first-run books immediately at bookstore prices. No one, BTW, keeps a back-up of a book. If the same were as true of CDs and DVDs, and if digital formats weren’t so vulnerable to data loss and corruption, there would not be such robust file sharing, downloading of illegal copies, creation of back-ups, and format shifting.

If a single copyright holder were insisting that you can’t back up your computer files, I would be surprised. Most software license agreements include allowances for multiple-use installations and back-ups. The real problem is the proliferation of pirated copies of all sorts. That goes to the intent behind copyright, namely, to encourage an environment where content creators are rewarded monetarily for their work. Instead, now that the genie is out of the bottle with respect to illegal copying, the revenue model behind publishing any creative content is failing, just like the revenue model behind serious news gathering and reporting is ebbing away. As I have warned before, when the financial reward disappears, so does the incentive to create, and so we’ll be left with a vast archive of content available to everyone but only degraded new content.