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I think it is similar to serial keys for software

Furthermore, I think it is immoral to use it on unlicenced drives. When you purchase it you implicitly agree to use it only on licensed drives. Therefore if you do otherwise you are breaching the contract.

I never signed any contract when I bought my DVDs. There isn't even a notification at the beginning of the DVD or on the box of this supposed contract. Do I need a law degree specializing in IPR law to make sure I watch my DVD on the right player? How do I even know if I'm using the right player? Maybe you could forward me the contract you seem to know so much about so I can figure out whether or not I'm being immoral?

If the DVD manufacturers were serious, they should force me to sign a contract before buying a DVD. If they started to actually do that, then I think people would be rightfully pissed off and they would lose money. I think the assertion of silly and non-intuitive so-called "property rights" undermine the efforts to fight actually examples of intellectual piracy. It's kind of analogous to people like Sharpton who cry wolf on racism so much that it undermines the efforts to fight actual examples of racism.

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Maybe you could forward me the contract you seem to know so much about so I can figure out whether or not I'm being immoral?
There is a simple test, actually. If you steal a DVD, or receive a stolen CD, you are being immoral. If you buy a CD in, e.g. England, which is not available in the US, and try to play it in a US player and end up hacking the disk, you are being immoral. You know you don't have the right to copy the contents of a DVD without permission, so doing so nevertheless is immoral. No contract is necessary or relevant -- there are laws unauthorised copying of other people's IP in every nation, and the DVD will no doubt actually say that it is protected by copyright law.
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If you buy a CD in, e.g. England, which is not available in the US, and try to play it in a US player and end up hacking the disk, you are being immoral. You know you don't have the right to copy the contents of a DVD without permission, so doing so nevertheless is immoral. No contract is necessary or relevant -- there are laws unauthorised copying of other people's IP in every nation, and the DVD will no doubt actually say that it is protected by copyright law.

What if I just replace my DVD player's firmware with one that has the region code disabled so I can play Japanese movies not published in the US? No copying is involved.

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What if I just replace my DVD player's firmware with one that has the region code disabled so I can play Japanese movies not published in the US? No copying is involved.
That's a hard case. It isn't stealing, it is illegal, but the law isn't an improper law -- it's one made necessary by the prevaling culture of theft and Free IP As Social Right. Unless the seller can create an overt contractual obligation on you to only play the movie on a Japanese DVD player, their urge to limit where their product is played contradicts their urge to actually sell you a product, not rent it to you. So the issue is whether the "rule of law" principle is important enough as a principle that you should obey a law designed to protect property rights, even if your violation of the law violates rights. I can't answer this, because it comes down to saying "Assume this contradiction; what non-contradictory identification (logic) can you apply to the case?".
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That's a hard case. It isn't stealing, it is illegal, but the law isn't an improper law -- it's one made necessary by the prevaling culture of theft and Free IP As Social Right. Unless the seller can create an overt contractual obligation on you to only play the movie on a Japanese DVD player, their urge to limit where their product is played contradicts their urge to actually sell you a product, not rent it to you. So the issue is whether the "rule of law" principle is important enough as a principle that you should obey a law designed to protect property rights, even if your violation of the law violates rights. I can't answer this, because it comes down to saying "Assume this contradiction; what non-contradictory identification (logic) can you apply to the case?".

It seems pretty simple though. You said it yourself that the law, in principle, is to protect the IP producer from theft. By playing the DVD on a hacked player -assuming you're viewing it in a private setting- you are not in actuality violating anyone's property rights.

So the act, while it may be illegal, is not immoral. As in all ethical issues, morality precedes legality; therefore there really is nothing wrong with playing a DVD you own on whatever player you want.

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DMCA was in part intended to write an implied agreement to play DVDs only on licensed players into DVD sales agreements. I'm speaking specifically of the anti-circumvention statute, which makes it criminal to circumvent a copy protection mechanism. No preexisting law could be used to import an implied restriction on use into a sales contract that did not contain an express statement of such a restriction. Software manufacturers largely solved this problem with EULAs, but EULAs are inconvenient for media content providers (DVD and CD manufacturers).

When A sells B a thing, B gets all the rights A has (or all the rights A agreed to sell to B), and A loses those rights. So without an express agreement between A and B that A shall retain some rights, there are no restrictions on B's use of the thing. However, most states have enacted legislation dealing with the sale of goods (for example, the Uniform Commercial Code Article II: Contracts for the Sale of Goods), and these statutes commonly serve gap-filling functions, so that additional terms can be read into sales agreements when the parties haven't said anything about them. For example, UCC creates an implied warranty of merchantability - that the good sold is something that would generally pass in the market. This warranty doesn't arise from the sale itself, but from the statute. It can be waived by an express (and conspicuous) written waiver within the sale agreement. But there was nothing in UCC that could be used to 'fill in' a restriction on the use of goods by the buyer after sale, and Congress didn't have the power to write national legislation to control the substance of contracts (because of Federalism). So instead, they used the commerce clause to make circumvention of copy-protection schemes a crime. This way, DVD manufacturers could encrypt their products with an encryption tool (even a ludicrously weak one like CSS). If the manufacturers had a patent on the encryption tool, they could control who gets the decrypt key by licensing it to drive manufacturers, effectively creating a restriction on B's use of his DVD - he can only play it in drives manufactured by licensees because unlicensed drives don't have the decrypt key; he cannot obtain the decrypt key because the DVD manufacturer controls the license; and he cannot circumvent the decryption because that would be criminal. The first two restrictions are really a pretty clever private solution to the problem (at least, where manufacturers are trying to avoid using express written agreements for sales of DVDs), but the third, the criminal legislation that closes the gap, might be questionable.

As to the decrypt keys for HD-DVDs, even if the anti-circumvention statute in DMCA is unconstitutional (last I heard there was a commerce clause challenge in the works), it still might be a patent infringement, at least if anyone actually implements the decrypt key without a license. If I were representing the HD-DVD manufacturers, I'd try to argue that an individual implementing a patented technology for his personal use is an infringement of the patent, thereby avoiding hairy DMCA issues. But merely disseminating information on a patented technology isn't infringement of the patent, as far as I know - infringement requires implementation; otherwise the USPTO would 'infringe' every time it published a patent application. And trade secret coverage applies only where there is a contractual agreement between the secret holder and the distributor of the secret.

With respect to the legality of distributing, but not implementing patented technology, the answer ultimately depends on an analysis of the police power: specifically, the power of the state to take preemptive action to prevent criminal or tortious behavior. What is the proper scope of limitations on what free people may do? For example, take lockpicks. A can describe to B how to pick a lock. A can sell B a set of lock picks. B can legally own the lock picks. B can pick locks using his knowledge and picks, as long as he doesn't use them to commit a crime. In seeking to prevent B from picking a lock, what restrictions are appropriate? Should B be forbidden to own the picks? Should he be forbidden to use the picks in any way? (I think this is close to the common approach - unlicensed persons may not carry lock picks on property they do not own.) Should A be forbidden from selling lock picks? Should A be forbidden from telling B how to pick locks? Perhaps when finals are over next week, I'll have more time to think about the subject.

-Q

PS: Interesting factoid re: New Zealand. New Zealand, which, like the US, inherited the British common law of torts, actually jettisoned the entire body of law in 1974 and replaced it with, basically, a national no-fault workers' compensation scheme (for accidental injuries to workers; fund paid by employers), a national no-fault automobile casualty insurance scheme (for accidental injuries to drivers; funds paid by a tax on all licensed vehicles), and a national no-fault accident insurance scheme (for accidental injuries to all others; funds paid out of the general treasury). While this has little to do with patents or copyrights, it is a major difference between US and NZ law that I found very interesting.

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I think that makes about as much sense as the the farmer telling me that I'm only permitted to use their milk with coco puffs but not frosted flakes.

The difference between a normal commodity and an intellectual property is the ease of privacy. As far as rights are concerned, my take is this -- once I paid for the product, it is my property and I should be able to do what I want with it. I am violating the producer's property rights if and ONLY IF I copy and distribute the movie without consent. But as long as I am not violating the rights of others, the IP's producer has no right to restrict me on how I wish to play my movie -- on whatever player I damn well please.

IP is only confusing when it comes to something along the lines of software codes, something that can be taken in bits and pieces, or even created independently.

When you play the you are strictly speaking copying the movie from the disk to the the player and then to the television/computer screen. To play a movie on an unlicensed player is therefore copying without permission. So a more accurate anology would of been that is the same as copying their milk without permisssion. But given that you cannot do that with any current technology it is therefore an irrelevant anology.

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There is a simple test, actually. If you steal a DVD, or receive a stolen CD, you are being immoral. If you buy a CD in, e.g. England, which is not available in the US, and try to play it in a US player and end up hacking the disk, you are being immoral. You know you don't have the right to copy the contents of a DVD without permission, so doing so nevertheless is immoral. No contract is necessary or relevant -- there are laws unauthorised copying of other people's IP in every nation, and the DVD will no doubt actually say that it is protected by copyright law.

Indeed. Maybe the DVD manufacturers should have the "only licenced players" thing show up in a notice when playing the DVD like the copyright notice does. That way by knowingly continuing to play the DVD on a unlicenced player you are in breach of the contract and thus clearly being immoral.

Edited by DragonMaci
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1. This existing law sounds like an illegitimate example of "pull" to me. It is as if the government passed a law saying that it was illegal for people to manufacture their own apple pies. (You could buy apples and eat the apples; or you could buy pies from a liscenced vender and eat them; but if you bought your own apples and made your own pie, then that would be illegal). I'm sure the manufacturers of apple pies would be thrilled, but I can't see how Objectivists would support such a law.

2. Even if the existing law was both moral and legal, it shouldn't be illegal to distribute info that others could use to break the law. If I want to post info on how to build bombs or convert guns to fully automatic, that should be perfectly legal.

3. Even if the restriction is in the UCC or some analogous piece of legislation, how can people be held to a contract they never signed. While the UCC may be Ok for defining extremely intuitive concepts like "merchantability" (although there is some debate about that), how can one be held account to bizzarre legal monstrosities like the existing law. If the manufacturers wanted to attach such a bizarre condiiton to the sale of their DVDs, then they should have to MAKE ME SIGN A CONTRACT as a condition of sale. Software liscencing does that all the time; why do software manufacturers have to do it but DVD manufacturs don't? Sounds like pull to me.

4. I don't think DM's analysis of any playing as "copying" is right. My knowledge of IPR law mainly comes from the notice that comes up on the screen, but doesn't it restrict "public" use and distribution. I don't see how this would stop me from privately playing a DVD on a player I made myself.

5. I find the copyright notice at the beginning of the DVD annoying. Would it be immoral if I devised some way of fastforwarding past it? Would that violate some contract I never signed but am nonetheless expected to follow.

Edited by Korthor
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2. Even if the existing law was both moral and legal, it shouldn't be illegal to distribute info that others could use to break the law. If I want to post info on how to build bombs or convert guns to fully automatic, that should be perfectly legal.

It depends on whether IP applies. If it does then such distribution would be immoral and illegal. I would say the codes used to decrypt the information on the DVDs are the intellectual property of the DVD manufactorers and such it it immoral and illegal to distribute the codes.

3. Even if the restriction is in the UCC or some analogous piece of legislation, how can people be held to a contract they never signed.

It is simple. They cannot validly be held to it.

4. I don't think DM's analysis of any playing as "copying" is right. My knowledge of IPR law mainly comes from the notice that comes up on the screen, but doesn't it restrict "public" use and distribution. I don't see how this would stop me from privately playing a DVD on a player I made myself.

I never said it was copying under law. I said strictly speaking you are copying from the disc to the player to the screen. I never one mentioned the law.

5. I find the copyright notice at the beginning of the DVD annoying. Would it be immoral if I devised some way of fastforwarding past it? Would that violate some contract I never signed but am nonetheless expected to follow.

No, but it would be silly as you'd be agreeing to conditions without knowing what they are. It would be the equivalent of signing a contract without reading it. That is not illegal or immoral, but stupid. That is if you do not read it at least once or do not already know the law. If you do then it is not stupid in the same way not randomly rereading your contract is not. Besides, some DVDs, rare as they are, actually let you use the Next button to skip that and the anti-piracy ad a lot of DVDs now have, so for some DVDs the means to skip it already exists.

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I'm sure the manufacturers of apple pies would be thrilled, but I can't see how Objectivists would support such a law.

I don't claim to support the DMCA's anti-circumvention statute. It may be immoral; it may not. It's really a police power question. I think it is unconstitutional, based on the commerce clause. I also suggest that a similar result can be had by looking at circumvention through a patent lens. Most CSS and AACS circumvention methods require implementation of patented technology. If Congress wanted to restrict dissemination of CSS and AACS circumvention techniques, I think they could constitutionally do so through existing patent legislation. Again, I'm not saying this solution would be moral, either, because I haven't finished my analysis of the proper scope of the police power. Your second point goes to that unanswered question of what proactive actions any government can morally take to prevent criminal or tortious behavior. My question is: why should it be legal to distribute information on how to commit a crime? I agree that it probably should be, but I haven't worked it all out yet.

3. Even if the restriction is in the UCC or some analogous piece of legislation, how can people be held to a contract they never signed.

The contract is in the agreement and intent of the parties, not the writing. You make a contract when you buy a good, even if you don't sign anything. If the seller is a retailer, then your agreement to buy from the retailer is subject to the retailer's agreement to buy from the manufacturer. The retailer can only sell you what he has bought a right to sell you from the manufacturer. The difference (software manufacturers versus DVD manufacturers) in the contract forms (no express written terms versus EULA) isn't due to more pull; it's just that the two industries have different interests and use different forms to achieve them. DVD sales are much higher volume and lower price than software. DVD manufacturers prefer not to burden their customers with EULAs, while software manufacturers find EULAs to be the only satisfactory way to protect themselves from liability. An EULA is first and foremost a tool for limiting the seller's liability that might arise from defects in the product. Software defects can lead to huge liabilities if the software is used for, say, a life-support system. So EULAs are used to disclaim liability for damages arising from such uses. They are also used to get legal authority for the software to do something that the software wouldn't otherwise have legal authority to do, e.g. send usage statistics to the manufacturer. DVD manufacturers don't need either of these, and their IP rights are (allegedly) already protected under copyright and patent law. So why burden consumers with a written agreement? Consumers don't need to know copyright law to be bound by it. The problem here is really arising out of copyright law (or misinterpretations of it), not contract law.

I don't see how this [copyright law?] would stop me from privately playing a DVD on a player I made myself.

At least I assume, given the context, that you are saying that the mere fact that copyrighted material might be 'copied' in the playing process shouldn't prevent you from playing a DVD on a homebrew player. And you're right - copyright law doesn't prevent this, even if there is a 'copying' involved. That's why DVDCCA and AACSLA came up with their respective patented encryption technologies: so they could use patent law (instead of copyright law) to restrict how their products are used. As I described in my previous post, decryption of CSS or AACS encrypted discs requires an implementation of patented technology. If the implementer is licensed to use that technology, there is no problem. DVDCCA and AACSLA control the technology by licensing it. But unlicensed implementers are violating patent law by implementing patented technology without a license, even if they aren't infringing copyright. So you are right that copyright law doesn't make it illegal to play a CSS encrypted DVD on a homebrew player. It's patent law that makes this illegal. Like I said above, I don't think DMCA's anti-circumvention law is necessary to protect IP, so long as circumvention can be interpreted as implementation.

I have no data to support this theory, but I wouldn't be surprised at all if this is why a challenge to this part of DMCA has taken so long to show up.

Would it be immoral if I devised some way of fastforwarding past it?

In and of itself, no. Nor illegal. But if your method required you to build a homebrew player using unlicensed technology, then you'd have a problem. But it wouldn't arise from the fast-forwarding part. On that note, hacking your licensed player's firmware to remove region encoding (which isn't really a copy protection system), or enabling fast-forwarding through locked video titles probably wouldn't be illegal. It would most likely void your warranty on your player, but no one would be able to fine you or arrest you or sue you for that.

-Q

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It is as if the government passed a law saying that it was illegal for people to manufacture their own apple pies.
It is in no way similar to such a law. The law is intended to prevent theft, to protect rights, and that is the proper function of government. You should read up on the Objectivist theory of government, to see what the proper function of government is.

This law is the equivalent of collateral damage in wartime. Even under the circumstances, it's not perfect, and there is no question that it does limit a person's freedom to act in a way that does not violate the rights of others. The moral responsibility for that restriction lies with the people who steal the property of others. Given all this, it is still a plainly immoral act to help others to steal DVDs, and it is despicable to give in to the howling mob demanding the "right to loot".

Even if the existing law was both moral and legal, it shouldn't be illegal to distribute info that others could use to break the law.
Why? Is this the "only the guy actually pulling the trigger is guilty" theory? The guy who drives the getaway car is not just liable for a speeding ticket. Tell me why helpng a person violate the rights of others is a good thing.
Even if the restriction is in the UCC or some analogous piece of legislation, how can people be held to a contract they never signed.
That's not the point: you don't need a contract between all pairs of people on the planet saying "I'll respect your rights". By law, you must respect the rights of others, and contracts are required to do that. They are required only when new and specific rights are created, e.g. my right to use certain MS products.
I don't see how this would stop me from privately playing a DVD on a player I made myself.
Nor does the law, as far as I know. Pull out the code and correct me if you want, but if you can design a functionally analogous but different device and build it yourself, that is legal AFAIK.
I find the copyright notice at the beginning of the DVD annoying. Would it be immoral if I devised some way of fastforwarding past it?
I don't see the problem with fast forwarding through it. The notices are redundant, since the law is universally accessible and we all know there is a law.
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I think the best argument for IPR protection of the keys is that it's patented technology. While I might be persuaded by more arguments on this point, I'm still inclined to stick to my guns and say that it should be legal to bypass the codes.

As far as I understand, the sole purpose of the codes is to de-encrypt the copy-protection encryption of the DVDs.* I don't think passwords should be patentable. I'm Ok patenting algorithms to generate cryptography, and I'm Ok with companies writing in non-disclosure agreements about their codes, but if someone else can figure out your passsword, then tough titty! Should it be illegal to try to decrypt other people's codes? I don't think patenting a password is at all analogous to patenting software. You should be able to patent software that generates and accepts a password because that is a process that accomplishes something, but the password is just raw material. Patenting passwords would be like patenting steel or wood. Or more specifically, it would be as if Masterlock patented 13-32-26 and had me arrested if I tried to figure out the combination to my lock on my own.

So in conclusion, if I can figure out the password to unlock the DVDs (which is in no way analagous to copying someone else's patented DVD player invention), then I should be able to play them.

On another note, is DavidOdden seriously suggesting that the government should restrict speech that tells others information that they could later be used to commit crimes? And then he says this governmental initiation of force is just "collateral damage" and the criminal's fault because they forced the government to do it? Telling other people how to make a bomb isn't an initiation of force, and if the government arrests me for telling other people how to do it, that's the government's decision... not the bomb-maker's. I'm sure Hitler also thought the Jews forced his hand. Hey everyone, if you stab a guy in the heart he's likely to die. Look at me, I was just an accessory to murder! Please, report me before I kill again!

*I might be wrong here. If so, someone please correct me.

Edited by Korthor
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On another note, is DavidOdden seriously suggesting that the government should restrict speech that tells others information that they could later be used to commit crimes?
I'm serious suggesting that it is proper for the government to protect the rights of citizens. I don't see any merit to distinguishing speech and other activities. When a person assists in the violation of the rights of another person, they bear moral responsibility for their acts, even if they are not the direct perpetrator -- the actual thief or murderer. It is proper for the government to preemptively prevent a murder or a theft before it happens by physically stopping the criminal -- it's the libertarian position which holds that the government should act only as or after the actual crime takes place, not the Objectivist position.
And then he says this governmental initiation of force is just "collateral damage" and the criminal's fault because they forced the government to do it?
No, it's not the government's initiation of force. It is the pirates that are initiating force; the government is using defensive force to protect the pirates' victims. Are you seriously suggesting that the government must sit by and wait for the actual crime, and then and only then do something to correct the violation of rights? Especially bearing in mind that violation of intellectual property rights has to be pursued in civil court.
*I might be wrong here. If so, someone please correct me.
You're very wrong -- consider yourself corrected.
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Is there a thread that specifically deals with the side-question of which speech should be criminalized?* If so, maybe DavidOdden and I should move our debate there? I wasn't aware that there was an "Objectivist position" on this question, though maybe I spent too much time in Libertarian school and missed that lecture. If there is, what is the bright line between free speech and criminal activity? Clearly posting on the web one's belief in radical Islamic ideology and the need to destroy America should be legal, while handing over specific classified secrets to terrorists would be treason. But what about posting non-classified info on the web, like info on how to build a bomb. Should that be illegal? I'm inclined to say no, while DavidOdden seems to think differently. I realize it's a tricky area and I am struggling for a way to come up with a bright line. One idea I had was the legal concept of "intent," one of the foundatoins of Western jurisprudence. That gov't can't prove that someone who posted info on the web had "intent" to harm anyone, while criminal intent probably could be proven against someone who actually built a bomb for a terrorist or passed along state secrets.

*I know there's one on libel, but that doesn't really seem relevant.

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Is there a thread that specifically deals with the side-question of which speech should be criminalized?* If so, maybe DavidOdden and I should move our debate there?
If it became specifically an issue of speech, I would agree. Here I will only address the general issue of the government doing its job, acting to protect property rights, disregarding the speech / non-speech non-issue. If you want to make the case for special treatment of speech, feel free to start a separate thread.
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Passwords are not really analogous. CSS and AACS involve algorithms. The keys may indeed be like 'passwords' but there's still a patent infringement. Here's a better lock analogy: the house is locked with a patented lock mechanism. The mechanism requires a key to open, and the key has to be cut in a certain pattern. The AACS keys are like the pattern. To open the lock, you need to use the patented technology to make a key that will physically operate the lock. Likewise, in order to decode an HD-DVD using the key, you have to build a decoder to plug the key into, the same as licensed player manufacturers have to do. Except that they're licensed to do it, and you aren't.

It is proper for the government to preemptively prevent a murder or a theft before it happens by physically stopping the criminal

This is really exciting. Under what circumstances? If initiation of force is never moral, then presumably the would-be thief has taken some action that constitutes an initiation of force, and thus allowing the government to respond with retaliation. What actions? Does the actor's subjective intent matter? For example, are the police justified in stopping A, who has bought lock picks with the intent to burgle, but not B who has bought the same picks, but without the intent to burgle? Most importantly, (and this is one of the major issues I have with criminal law as I've been taught it) is it the intent that makes the action an initiation of force, or is it the outward manifestation of intent that makes it an initiation of force? Such a manifestation would itself need to be an act (telling someone, casing the not so proverbial joint), so the next question is whether it is the action manifesting intent that is properly considered a crime, or if the manifestation of intent allows the earlier act in furtherance (buying the picks) to become criminal. Eventually, this ties back in to the police power issue: if the government has to wait for an outward manifestation of intent to commit a criminal or tortious act, that (excitingly) makes scads of existing police power based legislation immoral. Yippee.

-Q

PS: Interesting factoid re: Masterlock combination padlocks. No Master model 1500 combination padlock has the combination 13-32-26.

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Most importantly, (and this is one of the major issues I have with criminal law as I've been taught it) is it the intent that makes the action an initiation of force, or is it the outward manifestation of intent that makes it an initiation of force?
I'll come back to this in the morning, but I think the second clause there is exactly the right way to be thinking about the matter. Roughly, I would say that the latter is the best measure of proof of a probable intent to use force. Less than that is simply "possible intent" which isn't sufficient evidence to counter the presumption of freedom of action.
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I think people are missing something here, because this seems a no-brainer... AFAIK (and if I'm wrong, then I'm the one missing something here) HD-DVD technology is a privately owned, patented format. Now, if Disney decides that they want to put Lion King 3.14159 out in HD-DVD format, they have to do so under the terms of whoever owns the format (I believe Toshiba). Similarly, and more importantly, the code to decode (weird phrase) is also owned by whoever owns the format, and therefore to create a device which can read the HD-DVDs one needs the permission of the owner of the format, who have their rules. I don't see any problem here, unless those rules are proscribed by Big Brother.

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This law is the equivalent of collateral damage in wartime. Even under the circumstances, it's not perfect, and there is no question that it does limit a person's freedom to act in a way that does not violate the rights of others. The moral responsibility for that restriction lies with the people who steal the property of others. Given all this, it is still a plainly immoral act to help others to steal DVDs, and it is despicable to give in to the howling mob demanding the "right to loot".

Indeed. That is why I am not happy with Digg's approach. They have given in to the howling mob that demanded the "right" to loot the DVD manufacturers' patented decryption codes. That is, as you say, despicable. It is also cowardice.

As far as I understand, the sole purpose of the codes is to de-encrypt...

The term is decrypt, not de-encrypt.

I don't think passwords should be patentable. I'm Ok patenting algorithms to generate cryptography, and I'm Ok with companies writing in non-disclosure agreements about their codes, but if someone else can figure out your passsword, then tough titty! Should it be illegal to try to decrypt other people's codes? I don't think patenting a password is at all analogous to patenting software. You should be able to patent software that generates and accepts a password because that is a process that accomplishes something, but the password is just raw material. Patenting passwords would be like patenting steel or wood. Or more specifically, it would be as if Masterlock patented 13-32-26 and had me arrested if I tried to figure out the combination to my lock on my own.

The point of patenting the codes is not to stop you decrypting it. It is to stop you from relicating it. Since the codes are a technology they invented they have the right to do so. Qwertz's anology is indeed a better one.

On another note, is DavidOdden seriously suggesting that the government should restrict speech that tells others information that they could later be used to commit crimes? And then he says this governmental initiation of force is just "collateral damage" and the criminal's fault because they forced the government to do it? Telling other people how to make a bomb isn't an initiation of force...

Korthor, I think what David is saying is that the right to free speech does not include the right to teach others how to violate rights.

I'm serious suggesting that it is proper for the government to protect the rights of citizens. I don't see any merit to distinguishing speech and other activities. When a person assists in the violation of the rights of another person, they bear moral responsibility for their acts, even if they are not the direct perpetrator -- the actual thief or murderer. It is proper for the government to preemptively prevent a murder or a theft before it happens by physically stopping the criminal -- it's the libertarian position which holds that the government should act only as or after the actual crime takes place, not the Objectivist position.No, it's not the government's initiation of force. It is the pirates that are initiating force; the government is using defensive force to protect the pirates' victims. Are you seriously suggesting that the government must sit by and wait for the actual crime, and then and only then do something to correct the violation of rights? Especially bearing in mind that violation of intellectual property rights has to be pursued in civil court.You're very wrong -- consider yourself corrected.

Yes, exactly, David. That is my point. The government should act to prevent, not just punish.

No, it's not the government's initiation of force. It is the pirates that are initiating force; the government is using defensive force to protect the pirates' victims. Are you seriously suggesting that the government must sit by and wait for the actual crime, and then and only then do something to correct the violation of rights? Especially bearing in mind that violation of intellectual property rights has to be pursued in civil court.

Indeed. That isa part of the point of my mentioning the fact that the decryption codes are patented.

Qwertz, I would say the outward manifestation of the intent. Something that makes it objectively clear before the initiation of ofrce that he/she is going to breach another's rights. For example if someone threatened to kill me and then reached for a gun, it would be valid for me or any nearby police to use force against the person threatining me.

Similarly, and more importantly, the code to decode (weird phrase) is also owned by whoever owns the format, and therefore to create a device which can read the HD-DVDs one needs the permission of the owner of the format, who have their rules.

Yes. That is exactly what I have been saying.

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Under what circumstances?
Probable cause ;). So step by step...
If initiation of force is never moral, then presumably the would-be thief has taken some action that constitutes an initiation of force, and thus allowing the government to respond with retaliation. What actions? Does the actor's subjective intent matter?
I'm not actually up on the technical details of the concept "subjective intent", so if you can point me to a source, 'twould be appreciated. My opinion is that there is just "intent", and then we have inferences about intent. In reality, intent is an individual cognitive state, so distinguishing between subjective and objective intent is meaningless. However it is meaningful to distinguish inferences (by others) about an intent from the intent itself. Since the mentascope has yet to be invented, we cannot directly inspect the intent, we can only make inferences about the intent based on external evidence, and we may be wrong e.g. in guessing at Francisco d'Anconia's intent. The question then becomes, what facts support a particular conclusion about intent? Intent is essential in deciding how to act: stopping a person before the fact is justified only if you can validly conclude that they intend to initiate force.
For example, are the police justified in stopping A, who has bought lock picks with the intent to burgle, but not B who has bought the same picks, but without the intent to burgle?
There has to be some ancillary fact that distinguishes A and B, for example A has a repeated prior pattern of arrests and convictions for B&E, B is a professional lock-smith and the lock picks are a tool of his trade. Let's add C, who's an ordinary rights-respecting guy that likes to tinker with clocks and locks. Only A should be stopped, because it's only with A that you have objective evidence of an intent to violate rights.
Most importantly, (and this is one of the major issues I have with criminal law as I've been taught it) is it the intent that makes the action an initiation of force, or is it the outward manifestation of intent that makes it an initiation of force?
Now we come to my term-of-art issue. It is metaphysically impossible (at present) to inspect an intent -- the intent itself is in the black box. It is meaningless to presume to rely on intent separate from overt action. Now then I want to switch away from this intent terminology which is about a state (of the mind), and continue with discussion in terms of an action, since initiation is about actions, and continuation is about states.

When a person acts by chosing to violate rights, he has initiated force. We arrive at the conclusion that he has made this choice based on overt actions that are caused by the initial choice (for example buying a gun, casing the joint, keeping a diary that states his intent to comit the crime). These facts are the evidence of a choice -- one not repudiated by the agent -- that is the initiation of force, which the police rightly prevent.

whether it is the action manifesting intent that is properly considered a crime, or if the manifestation of intent allows the earlier act in furtherance (buying the picks) to become criminal.
The only way I can see for prevention to be morally grounded is if the certain choice to violate rights is made criminal. The role of acts in furtherance is evidentiary -- they give the necessary certainty of an actual choice. Note that, as every living and thinking man actually knows, there is a huge difference between casually thinking "I'll kill him" and actually making the firm decision to kill a person. We then rely on the objective evidence to support the conclusion "He has chosen to kill", in the face of reasonable alternatives like "He chose to kill but then revoked the choice" or "He just said 'I'll kill' without meaning it".
Eventually, this ties back in to the police power issue: if the government has to wait for an outward manifestation of intent to commit a criminal or tortious act, that (excitingly) makes scads of existing police power based legislation immoral.
I usually hate asking these questions, since they often get answered -- that's how I learned about 18 USC 1001. Anyhow, what are examples that you have in mind? I can imagine there being "insufficient evidence" problems where the police are granted power to act even where the evidence is not sufficiently compelling, but are there actually cases where the police are allowed to act without there being any evidence at all, and thus they act "because they feel like it"? Say it ain't so, Joe!
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Most helpful!

About subjective intent, I meant the intent itself (inside the box). It was probably a poor choice of words, but it is how we talked about the concept in criminal law class, even though it doesn't really have any particularized meaning. The objection I have stems from criminal law emphasis on mens rea ('bad mind'), or as the Model Penal Code calls it 'culpable mental state.' It's an element of most crimes, along with some bad act (actus reus), and the presence of a culpable mental state (there are four different degrees) is what makes the act criminal. The actus reus doesn't have to show evidence of the mental state. In such a case, a person committing the act with the appropriate mens rea would be indistinguishable from someone committing the act without the required mens rea. From a philosophical standpoint, the law says that the first person is a criminal. But from a practical standpoint, he cannot be detected or convicted, because the prosecutor would have no evidence with which to prove the mens rea beyond a reasonable doubt. This only really becomes relevant in inchoate offenses like attempt, conspiracy and solicitation, where very odd evidence can be used to prove the mens rea, and in crimes where the law allows an implied mens rea based on a lesser showing of evidence.

As I write, things other than the keyboard are starting to click. My concerns affect the reasoning supporting the criminal law, but for the most part, not the practical results. (Malum prohibitum crimes, however, are an altogether different kettle of fish, to which I take most fervent exception.) I'm trying to get at a better philosophy of criminal law. (Perhaps discussions of retributivism vs. utilitarianism and how I think neither is a correct justification for punishing criminals are best saved for another thread.)

Examples of laws that would disappear if police had to wait for acts showing intent to commit a wrongful act: At the time, I was thinking specifically of zoning ordinances, which are justified in the police power (Village of Euclid, Ohio v. Amber Realty Co., 272 U.S. 365 (1926)) as preventing nuisances before they happen. Such ordinances make it 'criminal' to build a McDonald's in a residential neighborhood, or to let your hedges grow too high, because such things could become a nuisance to neighbors. If I'm McDonald's and I buy property in a residential area and start building a McDonald's, the zoning board doesn't need to show that I intended to be a nuisance. In fact, all malum prohibitum crimes (crimes that do not require a mens rea, where the act itself is forbidden, without regard to whether it caused harm or was intended to cause harm) would go away. I say this is not a bad thing, of course. Criminal negligence might go away, too, though I haven't thought that one out completely.

Along those lines might be laws prohibiting dissemination of how to crack DVD encryption systems. If there is at least one legitimate use for such knowledge, would the act alone provide enough evidence of intent to rise to probable cause? I think it might, but that act alone could never rise to proof beyond reasonable doubt. They'd have to find something else; some additional action proving intent. And when they do, which act is the crime? Which actually serves as the initiation of force? More fundamentally, is simply preparing to initiate force itself an initiation of force? Does plotting to violate someone's rights itself violate that person's rights? What about plotting to plot? Whose rights? My textbook says "social harm," but that doesn't mean anything.

-Q

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About subjective intent, I meant the intent itself (inside the box). It was probably a poor choice of words, but it is how we talked about the concept in criminal law class, even though it doesn't really have any particularized meaning.
Yeah, there may be a bad choice of words issue, but it is clearly a standard choice of words in the biz, so you lack mens rea. Maybe you can bug a prof and try to sort out whether "intent" is different from "subjective intent". I think in fact the law profession has gotten itself in a bind in that it wants to talk about visible, objective things, but intent is not itself ever visible.
But from a practical standpoint, he cannot be detected or convicted, because the prosecutor would have no evidence with which to prove the mens rea beyond a reasonable doubt.
I hope my trimming found the core and eliminated only the background. If so... I would conclude that actus reus is a defeasible proof of mens rea. It is then the defense attorney's job to show that the act was in fact innocent. I would not suggest, btw, that proof beyond is needed to establish the lack of mens rea, just a solid showing, which can then be answered by the prosecution.
This only really becomes relevant in inchoate offenses like attempt, conspiracy and solicitation, where very odd evidence can be used to prove the mens rea, and in crimes where the law allows an implied mens rea based on a lesser showing of evidence.
Right, so when we move into the domain of the standards of evidence, that's where I think the smoking gun resides. I haven't seen a random or representative sample of evidentiary issues, but I've looked at a handful of cases where inferences about intent were essential and I gotta say that the mismatch between evidence and conclusion can be appalling. A lot of it hinges on inferences based on statements, where the prosecution is simply wrong about what follows from a given statement.
Examples of laws that would disappear if police had to wait for acts showing intent to commit a wrongful act: At the time, I was thinking specifically of zoning ordinances, which are justified in the police power (Village of Euclid, Ohio v. Amber Realty Co., 272 U.S. 365 (1926)) as preventing nuisances before they happen.
Okay -- zoning sux, but in fact because the so-called nuisances are not generally nuisances so often, but simply social engineering ideas, and otherwise based on bad evidentiary claims (e.g. selling alcohol is ipso facto a nuisance). By invoking the unrefutable and subjective concept "nuisance", issues of evidence fall by the wayside. How can you prove that something is not a nuisance if there is no objective definition of what a nuisance is?
If there is at least one legitimate use for such knowledge, would the act alone provide enough evidence of intent to rise to probable cause? I think it might, but that act alone could never rise to proof beyond reasonable doubt.
Yeah, that seems right. If on bizarre occasions there are innocent uses of actual pirated codes, that gives a basis for answer the accusation with some BOP to the defense. OTOH if innocent publication of pirated codes becomes common, then the prosecution needs to shoulder a substantial burden of proving mens rea.
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