French Three-Strikes Law Ruled Unconstitutional

An anonymous reader was one of several to write with this news: "The French 'Conseil Constitutionnel' just ruled that the recently voted 'Hadopi' law, which enforces a 'three strikes and you're out' system, is actually unconstitutional [article in French; here's an English-language article at Ars]. They mainly make two points: 1) They argue that removing Internet access is equivalent to hindering a person's freedom of speech, and as such can only be decided by appointed judges. This removes all punitive power from the administrative body supposed to enforce the three-strikes rule; all it can do now is warn you that 'they're watching you.' 2) When illegal filesharing is detected, users have to prove their innocence. This is obviously contrary to the constitutional principle of presumption of innocence."

Comments

Good News For Once

[alain94040]

The French "Conseil Constitutionnel" is a joke compared to the US Supreme Court, but for once they made the right decision.

At a minimum, the right to defend yourself and face your accuser was sorely lacking from the "3-strike" legislation. The French legal system already has the equivalent of the US small claims court, so there was no reason for the ISPs to become judges.

The other good news is that the court is basing its decision on the fact that a right to communication (speech, really, if you translate into US constitution lingo) includes the right to access the Internet. That's pretty cool potentially!

--
pour les developpeurs qui n'habitent pas dans la Silicon Valley: FairSoftware

Re:Good News For Once

[interkin3tic]

The French "Conseil Constitutionnel" is a joke compared to the US Supreme Court

Fighting urge to make jokes about the French surrendering...

Re:Good News For Once

[bedonnant]

The conseil constitutionnel is not a joke compared to the US Supreme Court, it's just something completely different. It validates or invalidates laws passed by parliement, when the supreme court is a judicial body, ruling over a court case.

Re:Good News For Once

[TheGratefulNet]

lets hope that (the world) takes this further and embraces the right to encrypted speech as well as free speech.

you know what I'm referring to. those that listen in, just because they're too bored or unable to find the real 'bad guys'.

if internet access is a 'right' then the ability to communicate without some 3rd party listening in should also be a right.

Re:Good News For Once

[Le T800]

To clarify a bit, the "Conseil Constitutionnel" in France is supposed to check that new laws respect the principles of the French Constitution, which is supposed to respect the principles of the "Men and Citizens's Right Declaration" from 1789.
From now Internet in France is recongnized as a fundamental right, associated to the right to communicate freely.

Re:Good News For Once

[Anonymous Coward]

Wrong, the United States Supreme Court can review and declare a law unconstitutional. As for "ruling over a court case" those court cases set precedent for future interactions with that law.

Re:Good News For Once

[mrex]

Wrong, the United States Supreme Court can review and declare a law unconstitutional.

Only in connection with a court case brought by an entitled petitioner.

Re:Good News For Once

[Dann25]

I dont necessarily disagree with your point but I dont completely follow the logic of your third line

Re:Good News For Once

[Chabo]

But SCOTUS can only rule a law unconstitutional based on a court case. Someone affected by the law must sue the appropriate government entity before any court can rule on it.

For example, in the original case that led to D.C. v Heller from last year, the plaintiffs had to have applied for a firearm permit under the current system, and been denied. Then the denial would be the basis of the case.

Re:Good News For Once

[KDR_11k]

France uses civil law which means a court's decision is not a law, the US uses common law so deciding a court case there can very well make a new law. So in the US being a court implies being able to make or remove laws while in France that's a separate set of permissions.

Re:Good News For Once

[harryandthehenderson]

Wrong, the United States Supreme Court can review and declare a law unconstitutional.

Only when it's through the appeal of a court case. You know, sort of what the GP said.

Re:Good News For Once

[sumdumass]

To be fair, if a law doesn't effect you, then it doesn't effect you.

Someone has to be effected by a law in order to show the application is unjust or contrary to other laws or unconstitutional. Otherwise there is no effect of the law and no reasons to get rid of it.

Re:Good News For Once

[SydShamino]

Yeah, unfortunately our three branches system lacks an entity charged with removing laws with no effect.

The courts won't do it. Congress doesn't care. The executive likes them because they can threaten people with them, or ruin someone's life with them, then drop the case before it gets to the court and is thrown out.

A fourth body, who job it was to review all laws, and propose a list each year (based on criteria like "law on the books for a decade with no convictions based on it" or similar) that would be automatically stripped from US code unless congress and the president specifically re-approved and re-signed them.

That should be one of congress's jobs, but they have no interest in spending time on "old business".

Re:Good News For Once

[Anonymous Coward]

Me neither... If you take just that line.

However, as you have a right to privacy* it is easy to claim that it applies to all your other rights. IE: Right to privacy + Right to use internet = Right to use internet without third party listening.

* France has committed to the UN human rights declaration which includes Article 12:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Re:Good News For Once

[Ornedan]

The problem with that attitude is that by the time you can start the process of removing a bad law, it's already done damage. I'd prefer the approach where the stupidity isn't allowed to happen in the first place - no-one gets hurt and less resources are spent.

Also, if a law has no effect, then IMO it should be gotten rid of. It will still cause unnecessary overhead by having to be checked for effect in potentially related cases.

Re:Good News For Once

[Chabo]

If you don't want to break even an unjust law, then it does affect you.

Let's say you wanted a "speech code" law overturned. The only way to do that, other than lobbying for the legislature to repeal the law, is to break the law by speaking in an illegal manner, and getting arrested. At this time, you now have recourse to try to get the law overturned. This is essentially what happened with the famous Scopes Trial. John Scopes intentionally broke the law by teaching evolution, for the purpose of testing the law in court.

A small grammar correction: every use of "effect" in your post should be "affect", except the last one.

Re:Good News For Once

[Arthur B.]

The other good news is that the court is basing its decision on the fact that a right to communication (speech, really, if you translate into US constitution lingo) includes the right to access the Internet. That's pretty cool potentially!

It's more likely to end up as a nasty positive right than as a defense of free speech.

Re:Good News For Once

[Hurricane78]

An usual, when someone does not mention special cases (eg the encrypted access), the global version (all kinds of access) is assumed.

Besides, who says that "garbage data" is no "speech", when accessing the Internet is part of the freedom of speech?

So let me freely say,

-----BEGIN PGP MESSAGE-----
Version: GnuPG v2.0.11 (GNU/Linux)

(Filter error: That's an awful long string of letters there.)
-----END PGP MESSAGE-----

Re:Good News For Once

[JordanL]

That's actually the PRIMARY function for SCOTUS as well, the only difference being that the US Supreme Court only rules on laws for which the Federal Government is sued by a group of or a single US Citizen.

Re:Good News For Once

[ShadowRangerRIT]

...those [U.S. Supreme Court] cases set precedent for future interactions with that law.

Which is actually a significant difference from the French model of civil law. French civil law lacks the concept of precedent, at least in theory, while English common law (from which the U.S. system draws) embraces it. For example, the concept of a corporation as a "person" is a product of centuries(?) old common law, despite no legislation dictating it. In France, that result would have to be explicitly legislated.

Re:Good News For Once

[RKThoadan]

So Gomez Adams was right! You need meetings dedicated to "old business" and meetings dedicated to "new business". And this is Old Business!

Re:Good News For Once

[Anonymous Coward]

AFFECT GOD DAMMIT

Re:Good News For Once

[Anonymous Coward]

To be fair, if a law doesn't effect you, then it doesn't effect you.

I find that very few people are caused by laws, in genral. I suppose that one could argue that an over-turn of Roe vs Wade could effect people, but is much more likely for a law to affect someone.

Re:Good News For Once

[Anonymous Coward]

"In France that result would have to be explicitly legislated"

In fact, it has, and for ages. There's the concept of "Personne morale" vs. "Personne physique", the former being anything not human but endowed with "person" characteristics (right to contract etc.), whereas the latter is you and me.

Re:Good News For Once

[sumdumass]

Let's say you wanted a "speech code" law overturned. The only way to do that, other than lobbying for the legislature to repeal the law, is to break the law by speaking in an illegal manner, and getting arrested. At this time, you now have recourse to try to get the law overturned. This is essentially what happened with the famous Scopes Trial. John Scopes intentionally broke the law by teaching evolution, for the purpose of testing the law in court.

It depends on the law and how it is written. A speech law forbiding someone who is normally doing something from doing it, would have cause for challenge without becoming in violation of it. It's when it isn't normally done that you need to break the law in order to get standing. Or in other words, you have to show that the law concerns you personally somehow. Often this is after a violation but isn't required to be.

A case in point, take the warrant-less wiretapping. Some think it was/is unconstitutional. You didn't have to violate the law to challenge it, you only had to show it affected you.

Re:Good News For Once

[selven]

I like this. Have a group of people look through every law in existence and see if it can be justifiably kept, removing it if it can't. As a bonus, you could also let these people decide the executive branch's salaries, so they would be careful not to inundate them with too much work to go through...

Re:Good News For Once

[sumdumass]

The problem with that attitude is that by the time you can start the process of removing a bad law, it's already done damage. I'd prefer the approach where the stupidity isn't allowed to happen in the first place - no-one gets hurt and less resources are spent.

This isn't really a problem is the government would stick to their roles and follow the constitution. The constitution says they have to swear an oath to uphold and protect it as well as making it clear that all laws have to be in accordance with it. I suspect the founders assumed that the people making laws would have the limits placed on the constitution and that they would only do what they were allowed to do by the constitution instead of ignoring it or claiming it's alive and only means what they want it to mean.

Anyways, the system was already built in but we are no longer following the system close enough.

Also, if a law has no effect, then IMO it should be gotten rid of. It will still cause unnecessary overhead by having to be checked for effect in potentially related cases.

I agree. Currently outdated and useless laws end up on the books because the problem it was designed to address either isn't there anymore or because another law addresses it more effectivly. The end result is often someone claiming to be innocent and ending up going to court with 15 charges over the same act because the prosecutor hopes the jury will get frustrated and pick on. It's unfair to a proper defense and unfair to the truly innocent.

Re:Good News For Once

[elgaard]

Depends what you mean by affected.

I think that the data retention laws is a violation of my privacy, and therefore effect me.
But the courts do not see it that way.

I also think all the internetfilters is a violation of freedom of speech.
That also will not be easy to take to court.

Re:Good News For Once

[conspirator57]

Except that the currently accepted legal definition of affect for purposes of establishing standing to sue is very weak compared to the reality of the affect. For example, plaintiff in the gun rights case in DC was only able to establish standing to sue because he was required to have a gun at his job as a security guard in DC, but couldn't take it home because of the DC ban. That was the "damage". Several cases had been dismissed before his where the damage was the lack of freedom or personal risk of being unarmed in a dangerous city.

Another example is the case against TSA/AG brought Gilmore wherein the case was dismissed because Gilmore "had other travel options available to him" thus he could not establish "damage" and thus had no standing to sue.
http://www.papersplease.org/gilmore/facts.html

Re:Good News For Once

[Anonymous Coward]

Which means if Congress had passed this law, it would be years before it ever came before SCOTUS, after getting through all the layers of appeals.

Re:Good News For Once

[ShadowRangerRIT]

Exactly.

I don't really know which system I prefer. The French system evaluating laws without a court challenge is, in my opinion, better than the U.S. approach of requiring a court challenge, since a court challenge requires a lot of effort by a single person for marginal personal benefit. "Squeaky wheel gets the grease" is not a cliché I like to see when it comes to the law. On the other hand, there are some cases where the ability of justices to effectively dictate freedoms and rights without worrying about the next election allow for progress that might otherwise not accomplished by the legislature in a reasonable period of time. Many of the decisions of the Warren Court not only predated legislation, but may have pushed Congress into action it might otherwise have avoided.

One significant advantage to civil law is the comparative simplicity. Yes, the laws tend to be more extensive, but they are theoretically less ambiguous, easier to reference, etc. The sheer volume of training and research required to be a lawyer in a common law system means that talented people are taken from productive work to apply the law, and the costs are commensurately higher without the long term benefits they might create in a research, engineering or even artistic discipline. By contrast, lawyers in a civil law system, while still requiring a certain minimum ability, need not be the best and brightest the country has to offer, and constitute a lower "overhead" cost to maintain the legal system.

Re:Good News For Once

[Yvanhoe]

The equivalent of the US Supreme Court would be the European Court for Human Rights. EU still doesn't have a constitution and can't comment the constitutionality of national laws, but they can judge whether a practice (be it a law, an habit or a single case) is contrary to the declaration of rights every EU countries accepted.

Re:Good News For Once

[sumdumass]

I find that very few people are caused by laws, in genral. I suppose that one could argue that an over-turn of Roe vs Wade could effect people, but is much more likely for a law to affect someone.

You don't think many people are force to change their ways because of laws? Effect also means bring about. If the law doesn't bring about changes to your freedom, then it doesn't bring about changes to your freedoms.

Re:Good News For Once

[sumdumass]

Just because the court doesn't see it the same as you doesn't mean the system is broke. It more likely you don't understand your free speech rights or rights to privacy.

Re:Good News For Once

[EvanED]

This isn't really a problem is the government would stick to their roles and follow the constitution.

That's like saying "this isn't really a problem if everyone in the country would agree."

First, reasonable people can disagree about what the Constitution says. It isn't exactly lacking in vague wording.

Second, just because the Constitution doesn't have a prohibition on a particular type of law doesn't mean it should still be allowed, at least IMO. That people would interpret the Bill of Rights as an exclusive list is why some founding fathers didn't WANT to have it. For instance, I feel that the result of Roe v Wade was the correct decision even though there's nothing in the Constitution explicitly to prevent anti-abortion laws.

Re:Good News For Once

[Anonymous Coward]

The free speech bit is because the internet is a MEDIA of exchange of that speech. Not that Internet access is a right.

Re:Good News For Once

[ppanon]

A case in point, take the warrant-less wiretapping. Some think it was/is unconstitutional. You didn't have to violate the law to challenge it, you only had to show it affected you.

Except that's exactly the opposite of what did happen, isn't it? People who tried to challenge the law had their case thrown out because they couldn't prove that they had been subject to a warrantless wiretap. They were in a catch-22 because the government wouldn't confirm that the plaintiffs had been wiretapped, refusing subpoenas from the plaintiffs on national security grounds, and the court wouldn't give the plaintiffs standing unless they could prove it had happened to them.

Re:Good News For Once

[spagiola]

Yeah, unfortunately our three branches system lacks an entity charged with removing laws with no effect.

You don't need a "fourth body" for this. You need to pass a "sunset law" that basically says, "all laws which have not been used [by some standard to be decided] within a given time period [say 20 years] are null and void unless specifically re-approved"

Re:Good News For Once

[StormReaver]

> ...[while] the [S]upreme [C]ourt is a judicial body, ruling over a court case.

The U.S. Supreme Court's function is to interpret the U.S. Constitution, not to hear general court cases. The appeal of court cases that involve novel interpretations of the Constitution, and that haven't already been adequately addressed by the Court, may be reviewed by the Court at its sole discretion.

Re:Good News For Once

[cheftw]

The EFFECT of that could be some silly laws that go unchallenged just because it doesn't AFFECT anyone. That doesn't make them constitutional.

Re:Good News For Once

[sumdumass]

First, reasonable people can disagree about what the Constitution says. It isn't exactly lacking in vague wording.

Actually, it isn't vague at all. The problem there is that society has moved and definitions as well as writing styles have changed since the time of it's writing. This means that in order to understand the meanings, you have to get into the time it was written and verify it by the debate surrounding the clauses.

Second, just because the Constitution doesn't have a prohibition on a particular type of law doesn't mean it should still be allowed, at least IMO. That people would interpret the Bill of Rights as an exclusive list is why some founding fathers didn't WANT to have it. For instance, I feel that the result of Roe v Wade was the correct decision even though there's nothing in the Constitution explicitly to prevent anti-abortion laws.

The argument against the bill of rights was similar in both directions too. One common argument against the bill of right basically stated that the bill of right was unnecessary because the constitution specified what the Federal government was allowed to do and without it being allowed to do more, then obviously protecting people against what the government can't do is unnecessary.

I other words, the constitution itself was supposed to be the exclusive list of what the government was allowed or required to do where the bill of rights was the most obvious concerns over potential abuse.

Now, if the government would stick to their constitutional role and limits, a lot of the laws on the books would have been impossible to implement. Also the vagueness wouldn't have been an issue because lawmakers would all be informed of not only the meanings but the intent of the constitution and it's amendments.

I remember watching the news when Samuel Alito was being confirmed to the SCOTUS and they interviewed some California congress women who said they needed to take the hearing seriously because they can't have a court judge ruling everything congress does unconstitutional- congress can't do the work of the people that way. It's obvious to me that some need a refresher course in what the constitution is and what it means.

Re:Good News For Once

[Fieryphoenix]

It is not possible for a law to effect me, the origins of my being are deeper than legislation.

Re:Good News For Once

[Anonymous Coward]

Man, you're stupid. Effect does indeed mean bring about, but that's the same as cause. It sure as hell doesn't mean influence or change. By some coincidence that's surely down to a conspiracy against you, that's precisely what the other spelling means.

By the way, the adjectival form (and past participle) of "force" is "forced". This isn't exactly a rare construction.

Just admit you were wrong and get over it. Really, being a barely literate and fairly ignorant cunt is one thing, but don't try and deny it - the fact is that you are one. End of.

Re:Good News For Once

[isilrion]

But the law can restrict you even if you don't actually get sued. We see it all the time here: the law /may/ be ruled unconstitutional if it were to trial, but going to trial is a risky proposition. Thus, you may end up with people obeying the unfair law, as the alternative would mean a chance to lose a lot in a trial.

(Nevermind that only a few can pay enough to make it all the way through to the supreme court)

Re:Good News For Once

[vux984]

unless specifically re-approved

So once a decade someone passes an omnibus bill containing all the existing legislation. They'll justify it based on just one out the 50,000 laws set to expire, and say "This one is important, we can't let this go... and there are many more like it. Lets renew all of them just to be safe... thinkofthechildren! terrorists. 9-11. 9-11.

Re:Good News For Once

[musicalwoods]

I wish I had mod points right now.

There really does need to be a "sunset law" for all laws, a "fourth body", or even one committee in congress that focuses on repealing or revising outdated laws in national, state, and local governing bodies.

There really is no reason for whaling to be illegal in so many land-locked US states.

Re:Good News For Once

[drsmithy]

French civil law lacks the concept of precedent, at least in theory, while English common law (from which the U.S. system draws) embraces it.

Ah. So in the French system, a case is decided on it merits, rather than which prior case it happens to be most similar to ?

Re:Good News For Once

[Chris Burke]

They were in a catch-22 because the government wouldn't confirm that the plaintiffs had been wiretapped, refusing subpoenas from the plaintiffs on national security grounds, and the court wouldn't give the plaintiffs standing unless they could prove it had happened to them.

Thank goodness for the incompetence of the government, then, since the geniuses accidentally delivered transcripts of tapped phone calls to the group they had been tapping. LOL.

Re:Good News For Once

[Austerity Empowers]

Totally agree. I would like to be able to buy booze before noon on Sunday in Texas...because the only time the lines are short at the grocery store is when the locals are praying.

Re:Good News For Once

[EvanED]

Actually, it isn't vague at all.

Really?

Is prohibiting personal possession of a few ounces of marijuana "necessary and proper" for regulating interstate commerce? I think it's not. Congress, The President, and The Supreme Court thinks it is. Who's being unreasonable?

Why did the Supreme Court order a rehearing of Brown v. Board of Education and related cases on the grounds of determining what was intended by the 14th Amendment, only to not reach any real conclusion? ("This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced.")

Is capital punishment "cruel and unusual"? What about for witchcraft (for which at least one person was hung around the time of the nation's founding)? Counterfeiting (for which someone was hung in 1822)?

Do the Bill of Rights apply to the states too? (My question is really "did they apply before the 14th amendment" since that's the basis for most of the incorporation.) What in the 5th amendment indicates that it is only a restriction on the federal government? I think nothing, and would argue that you don't need the 14th amendment to apply those restrictions to states. SCOTUS (in Barron v Baltimore) disagreed. Who's being unreasonable?

What exactly is freedom of speech after all? After all, the Bill of Rights leaves nothing to interpretation seemingly -- "Congress shall make no law ...or abridging the freedom of speech, or of the press" -- yet libel and slander laws are basically not in question, nor are copyright laws, and the 1798 congress even passed the Alien and Sedition acts, so clearly even the founding fathers didn't agree on what the Constitution meant (or at least didn't respect it).

I other words, the constitution itself was supposed to be the exclusive list of what the government was allowed or required to do where the bill of rights was the most obvious concerns over potential abuse.

Except that the Constitution doesn't otherwise prohibit a lot of the activities that the Bill of Rights prohibits. For instance, without the 5th amendment, why would presuming guilt in a trial of someone accused of being in violation of a federal law be prohibited?

Many of the Bill of Rights's restrictions are necessary even without the sort of twisting of the loose interpretations of "necessary and proper" and stuff like that which has allowed the federal government to expand in power over the decades.

Re:Good News For Once

[oliderid]

Ah. So in the French system, a case is decided on it merits, rather than which prior case it happens to be most similar to ?

I think prior cases still have influences.There is a jurisprudence system in most (if not all) continental european countries. But IMHO it is merely an interpretation of a law not a law in itself (?).

http://en.wikipedia.org/wiki/Jurisprudence

I'm not a lawyer so take it as it is ;-)

Re:Good News For Once

[JesseMcDonald]

Personally, I favor mandatory sunset clauses. Any law which can't maintain a simple majority vote in its favor gets thrown out automatically after so many years. Repealing a law before it expires should require no more than a 2/3 majority at two suitably-spaced sessions; actually passing a new law should require the maintenance of at least a 4/5 majority for three sessions.

Re:Good News For Once

[makomk]

Thank goodness for the incompetence of the government, then, since the geniuses accidentally delivered transcripts of tapped phone calls to the group they had been tapping.

As I recall, said transcripts were originally ruled inadmissible for national security reasons, and the plaintiffs were forbidden from using anything they found out as a result in the case (including the existence of said transcripts) for the same reason. Still a catch-22.

While it looks like the judge may finally have changed his mind on this, the system is still broken.

Re:Good News For Once

[mog007]

United States law is derived from British Common Law. France, like most of continental Europe, has a Civil Law approach. Comparing the French system to the American system is, definitely equivalent to comparing apples to oranges.

Re:Good News For Once

[sjames]

Which is a MAJOR problem. You have to knowingly break the bad law and then take it to the Supreme Court on your own dime. If they disagree with you, you go to jail.

Re:Good News For Once

[mdmkolbe]

I could imagine some important laws like those relating to treason or war-time crimes might not get used much but they still need to be on the books. You'll have to figure something out to handle those cases in your sunset law.

Also keep in mind that most modern law is really a delta/patch that gets applied to the United States Code (USC), so automatically repealing a law gets tricky if other laws have later amended or reference it.

(Laws older than about 50(?) years are generally not in the USC, but there is a current government project to repeal those laws and pass replacements into the USC. My understanding is that they annually send a bill with their latest work through congress and the bill almost always passes. Nevertheless, they still have quite a backlog. A project to remove unneeded laws could work the same way but would likely have the same slow pace and backlog. It would also be more politically charged (i.e. who gets to choose what laws are "unneeded").)

Finally, I wonder we could get some inspiration from the mechanisms the military uses for keeping the Uniform Military Code of Justice (UMCJ) up to date. My understanding is that the UMCJ is remarkably un-crufty due to the military revising it as needed.

Re:Good News For Once

[sumdumass]

Is prohibiting personal possession of a few ounces of marijuana "necessary and proper" for regulating interstate commerce? I think it's not. Congress, The President, and The Supreme Court thinks it is. Who's being unreasonable?

Are you arguing vague or reasonable? Everyone knows that the courts expanded the interstate commerce clause in the 1930's as a response to Roosevelt's ignoring them with the new deal legislation that was determined to be unconstitutional. Roosevelt knew it was unconstitutional, pushed for it, got it, and told the Supreme court to fuck off and make him end it when they found it unconstitutional. Remember, you were responding to my claim "This isn't really a problem is the government would stick to their roles and follow the constitution.". Obviously it shows that they aren't.

Why did the Supreme Court order a rehearing of Brown v. Board of Education and related cases on the grounds of determining what was intended by the 14th Amendment, only to not reach any real conclusion? ("This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced.")

first of all, the 14th amendment was ratified in 1868 and Brown v. Board of Education was tried in 1954, almost 100 years apart and it had problems ranging from effecting the solution to the courts orders for the solution. That is the reason it looks unclear and that there was 3 or 4 entries over it. But the courts did say that all citizens had the same constitutional rights.

Is capital punishment "cruel and unusual"? What about for witchcraft (for which at least one person was hung around the time of the nation's founding)? Counterfeiting (for which someone was hung in 1822)?

No, it is a common punishment allowed before, during, and after the constitution was created. Now as for witchcraft, we all know that is doesn't exist now, people weren't that smart back then, you can't pick apart something because of an entirely different mindset. Any laws against witchcraft (outside sacrifices) shouldn't even be on the books today and if they are, any sensible jury would ignore them.

Do the Bill of Rights apply to the states too? (My question is really "did they apply before the 14th amendment" since that's the basis for most of the incorporation.) What in the 5th amendment indicates that it is only a restriction on the federal government? I think nothing, and would argue that you don't need the 14th amendment to apply those restrictions to states. SCOTUS (in Barron v Baltimore) disagreed. Who's being unreasonable?

My understanding it that it did but people attempted to move away from constitution and the 14th was needed. Again, that was because of people not following it and ignoring the context, a living document if you will.

hat exactly is freedom of speech after all? After all, the Bill of Rights leaves nothing to interpretation seemingly -- "Congress shall make no law ...or abridging the freedom of speech, or of the press" -- yet libel and slander laws are basically not in question, nor are copyright laws, and the 1798 congress even passed the Alien and Sedition acts, so clearly even the founding fathers didn't agree on what the Constitution meant (or at least didn't respect it)

Freedom of speech is primarily speech that is useful. It is about any kind of speech even if it is just expression to a point that it doesn't unfairly detract from someone else. Slander and libel can only be prosecuted if either the intent is a lie or malicious with no value to society. Wearing a sign saying your mom had an abortion but you lived, could be technically true (she may have had one at sometime but not to end you), but the phrasing of that makes it appear denigrating to you as well

Re:Good News For Once

[sumdumass]

Well, I said you had to show it affected you. The one case was thwarted by other means by they had standing.

Re:Good News For Once

[sumdumass]

Effect: to bring about

If the law brought about changes in your behavior, it effected you in the same ways you effect change. This is deeper then your origins being deeper then legislation.

Re:Good News For Once

[sumdumass]

A law doesn't have to make it to the supreme court to be declared unconstitutional. That can happen at the trial court and it would be up to the state to show it wasn't unconstitutional and an error was made in order to make it to the supreme court.

Of course it can go to the supreme court which is costly but it doesn't have to. Chances are, if it's found unconstitutional in a lower court, civil rights groups will help take it to the supreme court to keep it that way if necessary.

Re:Good News For Once

[Anonymous Coward]

Please don't put fake sigs advertising your website in the comment field in a self-serving attempt to fool search engines. (preferences...general...user info...sig is where you put your sig)

Re:Good News For Once

[EvanED]

Are you arguing vague or reasonable?

I'm arguing that the wording is vague, and my argument is that both sides are reasonable.

I (obviously) think my side (that most of the federal government's anti-drug laws should be considered unconstitutional) is reasonable, and while I personally think the other side is pretty unreasonable, the fact that we have going on a century of similar interpretations of the interstate commerce clause belies that a bit even if the actors are a bit biased.

Hell, Scalia concurred with the majority in Gonzales v. Raich, and my impression is he's one of the biggest strict constructionists on the bench now.

first of all, the 14th amendment was ratified in 1868 and Brown v. Board of Education was tried in 1954, almost 100 years apart and it had problems ranging from effecting the solution to the courts orders for the solution.

If the wording and intent was clear, why does the time difference matter?

But the courts did say that all citizens had the same constitutional rights.

What Brown v. Board also said was that 'separate but equal' schooling was an abridgment of those rights. Was the court right? If so, what in the constitution says that integrated schooling is one of the "privileges and immunities" granted to the 14th amendment?

Any laws against witchcraft (outside sacrifices) shouldn't even be on the books today and if they are, any sensible jury would ignore them.

Of course. But what if a state did have one? Would it be unconstitutional, or just really stupid?

On a less abstract note, what about counterfeiting? By today's standards, I would certainly say that execution would be cruel and unusual punishment for that crime, even if it appears it wasn't considered as much at the time.

My understanding it that it did but people attempted to move away from constitution and the 14th was needed.

This is not really true. I pulled out a text on Constitutional Law (IANAL, law student, etc., but I do have a passing interest; this is by Stephens and Scheb) which says, "With the exception of the right of 'just compensation', the expressive freedoms of speech and press were the earliest to be incorporated into the Fourteenth Amendment and thus made applicable to the states. James Madison had proposed during debates over the original Bill of Rights that constitutional protections in this area be provided against state encroachment, but it was not until well until the twentieth century that this view was written into national public policy by the court."

If you look at the Wikipedia entry on Incorporation, it says, "The genesis of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to observe First Amendment free speech protections".

Basically, to my knowledge the Bill of Rights was not held to be applicable to states before the 20th century, and there's Barron v. Baltimore which decided explicitly against this opinion.

Freedom of speech is primarily speech that is useful.

What do you mean by "useful"? Is art useful? Can inflammatory statements be useful?

What source material does the notion of "useful" speech being protected come from?

Slander and libel can only be prosecuted if either the intent is a lie or malicious with no value to society.

This isn't quite true. First, against public figures, most of the time actual malice needs to be proved as an element of defamation, but this isn't true for non-public figures.

Second, a lie

Re:Good News For Once

[techno-vampire]

Not so. SCOTUS also hears appeals on criminal cases, such as Miranda, because it's the final court of appeal for any case. However, unless there are Constitutional issues involved, they don't generally accept the case. And, AIUI, those Constitutional issues have to be in the first appeal because as you can't add new grounds to your appeal as you move up the court ladder. IANAL, but that's what I've heard.

Re:Good News For Once

[JordanL]

Notice I used the word "primary".

Re:Good News For Once

[Virtual_Raider]

There really does need to be a "sunset law" for all laws, a "fourth body", or even one committee in congress that focuses on repealing or revising outdated laws in national, state, and local governing bodies.

What I would love to see is something like the Chinese were supposed to be doing, setting up a database that could be used to decide on a case. Since the first time I worked with Oracle and had to pay taxes I thought it would be extremely cool (and useful) to have a law database with integrity constraints. Once you finished the mammoth task of making it consistent, creating new laws that don't conflict with existing ones would be so much easier. Mind you, morons will still make moronic laws, but with such a system at least they would have to be creative morons...

Re:Good News For Once

[musicalwoods]

Oh I sympathize there. I live under the same type of blue laws. I'd like to be able to go to a bar after I get off work at 3am, or buy a six-pack of Guinness after 9pm.

Re:Good News For Once

[varcher]

Prior cases are used as guidelines in how to interpret a law on borderline/ambiguous cases. Jurisprudence is only that. A judge can perfectly well ignore completely a prior case and make a different decision, as long as its decisions fit within the law, as written from legislative bodies.

That's why there's a completely separate system to decide on laws (the Conseil Constitutionnel) and cases (Conseil d'Etat, for any administrative cases, Cour de Cassation, for civil and penal cases).

Re:Good News For Once

[isilrion]

But one would still need to risk going to trial and losing. If you have to violate the law in order to test its constitutionality, and you fail, then you'd have committed a crime.

Re:Good News For Once

[CarpetShark]

take it to the Supreme Court on your own dime

Dime? You, Sir, have a talent for understatement ;)

Re:Good News For Once

[varcher]

Nitpicking: Internet access is not a fundamental right. If it was, the goverment would have a mandate to ensure that each and every person has internet access. What it recognizes is that interference with internet access is an interference with free speech, which is slightly different.

Re:Good News For Once

[techno-vampire]

And that is relevant, how? SCOTUS is the final court of appeal for all cases, civil and criminal, not just for civil suits as you claim.

Re:Good News For Once

[JordanL]

Where in the world did I claim it was limitted to civil suits? The use of the word primary implies other uses or purposes for something. Something cannot have a primary purpose without also having secondary or tertiary purposes as well.

As much as the people here on Slashdot are anxious to prove how much smarter they are than the average poster, comments should slow down and actually READ what they are responding to.

Re:Good News For Once

[techno-vampire]

Where in the world did I claim it was limitted to civil suits?

To quote your post: "...the US Supreme Court only rules on laws for which the Federal Government is sued by a group of or a single US Citizen." That's where. The word "only" rules out the possibility of SCOTUS ruling on a criminal case, which is wrong. It may not be what you meant, but it's exactly what you wrote. If you don't think so, go back and look because I copied/pasted without change.

As much as the people here on Slashdot are anxious to prove how much smarter they are than the average poster, comments should slow down and actually READ what they are responding to.

Even better would be if they remembered what they'd posted in the first place, as the above demonstrates.

Re:Good News For Once

[JordanL]

That is what is called a subordinate clause, and while pulling it out like that does indeed give the meaning you are implying, as a subordinate clause it takes on its true meaning with the previous clause. In other words, within the context of primary cases which I was discussing, SCOTUS only reviews them if they are appealed by a group or individual.

Hope that cleared it up for you.

Re:Good News For Once

[techno-vampire]

Hope that cleared it up for you.

Yes, it did: you can't get around the fatal word "only," so you decided to obfuscate the issue by quibbling about the syntax. Nice try, but it didn't work.

Re:Good News For Once

[JordanL]

So you're really making the argument that despite the fact I went through the trouble of replying to a post describing a difference between the US Supreme Court and the Supreme Court of France, I had no idea that the US Supreme Court possibly dealt with any criminal cases at all.

My guess is that you're just being an asshole.

Re:Good News For Once

[techno-vampire]

I had no idea that the US Supreme Court possibly dealt with any criminal cases at all.

Judging only by what you wrote, you didn't fully understand how the Supreme Court works, and that's all I had to go on. Also, judging by what a large number of slashdotters have written on legal issues, many posters have a very confused, superficial understanding of the US Justice system. (Look at how many people are so eager to accuse politicians of treason, ignoring the very precise definition of the crime in the Constitution.) Quite frankly, I've gotten to the point that I don't expect any understanding of our legal system here, until proven otherwise.

My guess is that you're just being an asshole.

Why? Because I took your words literally and pointed out an error politely?

right again

[CarpetShark]

Excellent. Yet more proof that p2p users have the weight of ethics on their side.

Re:right again

[sakdoctor]

Not all p2p users are ethical. Some don't seed.

Re:right again

[immakiku]

No. It's proof they have the weight of the constitution. That's different from ethics. Don't let this delude you into thinking that any and all forms of p2p are ethical.

Re:right again

[snl2587]

Don't let this delude you into thinking that any and all forms of p2p are ethical.

Any forms? So, according to you, I'm unethical for using apt-p2p for my Ubuntu updates?

Re:right again

[johnsonav]

Any forms? So, according to you, I'm unethical for using apt-p2p for my Ubuntu updates?

I'm pretty sure that's not what he's saying, at all. He's simply pointing out that just because something is legal, does not necessarily make it ethical. Basically, whether or not something is legal, has little, if anything, to do with whether it is ethical.

apt-p2p'ing is ethical whether it's legal or not.

Re:right again

[gnick]

You're deliberately mis-quoting. You posted "Any and all", but disputed "any". Yes, there are legitimate forms of p2p. There are also unethical forms of p2p. As GP said, not ALL forms are ethical.

Karma bonus foregone, 'cuz I'm just correcting a dumb-ass, not contributing anything useful.

Re:right again

[diskis]

> apt-p2p'ing is ethical whether it's legal or not.

Ooh.. you're making a bold claim there. If you're on a shared connection, which you are if you have residental cable/DSL, your apt-p2p:ing causes harm to your neighbour's bandwidth. Sure, the fault is at the ISP for oversubscribing lines, but when you are aware of that fact, wouldn't your apt-p2p:ing then be unethical?

I know that this is splitting hairs, but you simply can't go claim something is ethical like that without thinking. Now, I haven't really figured out who decides what is ethical or not, but I'm pretty sure it's not you.

Re:right again

[Anonymous Coward]

Any forms? So, according to you, I'm unethical for using apt-p2p for my Ubuntu updates?

No, but according to me you are unsually bad at comprehending English sentences.

According to him, someone who thinks "any and all forms of p2p are ethical" may be deluded. It does not follow that he believes, or in any way implies, that all forms of ptp are unethical. Understand the difference? No? Read it again, slowly.

ANY AND ALL ARE... maybe deluded

SOME ARE... not in any way implied to be deluded

Still not got it? Maybe you know a native speaker of English who could help you out...?

Re:right again

[johnsonav]

Ooh.. you're making a bold claim there.

Yeah. It is a little more broad than I intended.

Now, I haven't really figured out who decides what is ethical or not, but I'm pretty sure it's not you.

Well... Yeah, I do decide what is ethical, for me. So does everyone else. Even if there were some sort of oracle which could tell me the ethical thing to do, I'd have to make the choice to act upon it, which would require some sort of meta-ethics. Those meta-ethics couldn't come from the oracle (because I'm still trying to decide if I should listen to it at all); they are internal to myself. So, yeah, ultimately, I decide what is ethical, for me. And, you for you.

Re:right again

[SydShamino]

By your logic using any bandwidth harms by neighbor's bandwidth, and thus any internet use is unethical. That argument is on its face nonsense, and thus your reasoning is as well.

It was unethical for the ISP to oversubscribe their lines. I do not know if my neighbors have internet access from the same ISP or not; it is not unethical in and of itself to use a product I've purchased. How I'm using it (in this case, meaning the content I send or receive) might matter, but merely using the bandwidth does not.

Re:right again

[diskis]

Strawman alert!

Nope, I didn't say that any usage is unethical. Compare this to a party, where the host has provided a piece of cake for everyone. It's not polite to gobble up half the cake when there are lots of people to share. We can of course argue that host (ISP) is not a good host for not providing all the cake (bandwidth) you can eat.

Same with ISPs, they provide enough bandwidth for basic usage, but if you are going to serve out half of Ubuntu's updates, it's polite to pay for a pipe that is designed for actual hosting.

Re:right again

[immakiku]

Wow my first Slashdot troll in years of being a member.

I have to admit, if I didn't have the word "all" in there, this is easy misinterpret. It's my fault for using the word "any" for emphasis.

Why? To be fair, if I had said "deluded to think any P2P is ethical", it can be ambiguous. It can be interpreted that "thinking there exists an ethical form of P2P is delusional".

On the other hand I used the word "are", which to me implies that "any" in this case is interchangeable with "all". And it should convey to the reader that I meant, "thinking all forms of P2P are ethical is delusional".

So grammatically, you're not completely off-base. But comon... who with any grain of common sense would a) have meant to post #1 and 2) have interpreted my words to have meant #1?

Re:right again

[Dragonslicer]

Yet more proof that p2p users have the weight of ethics on their side.

Er, no. This has nothing to do with a person who is illegally downloading music/movies/etc. being ethical in any way, only that such a person should be treated the same way as anyone else accused of a crime, i.e. they are assumed to be innocent until they are found guilty by a court, and only a court can remove their rights upon finding them guilty.

Re:right again

[MaskedSlacker]

Reading non-comprehension alert!

Your argument is bullshytt. If the ISP sells me a 'Unlimited Internet access' it cannot be unethical of me to make unlimited use of it when any externalities result from the ISP's fraud (oversubscribing). The ISP isn't offering my neighborhood a fixed amount of bandwidth (that is what they are delivering, but it is NOT what they are trying to sell).

Your cake analogy would be more accurate if the host said "Eat all the cake you want, I've got tons of it in the freezer." Then, when the first cake is gone, the host just shrugs and says "No more, there isn't any in the freezer." The fault lies not with the cake-eater, but with the host.

Re:right again

[MaskedSlacker]

Reading comprehension fail!

"ANY AND ALL" is an idiomatic phrase in English which loosely means "EVERY"

"ANY AND ALL" \approx "EVERY"

Don't let this delude you into thinking that EVERY form of p2p is ethical.

Get it now?

Re:right again

[Dragoness Eclectic]

I'm paying for the bandwidth, therefore it is ethical for me to use it. Now if I were to go to the neighborhood cable patch box and re-arrange a few jumpers so I get *more* bandwidth than I'm subscribed for, that would be unethical. If I were to deliberately spam my neighbor's router with tailored packets so that it fell off the Internet, that would also be unethical.

Using a communications service that I have contracted to buy at specific rates and terms is ethical for me. It may not have been ethical for the communications seller to oversell it, but that is on his head, not mine. If he does not deliver what he has agreed to in exchange for my payment (i.e., punitive rates and disconnnections for using the service according to the original contract), he would also be unethical in that case.

Re:right again

[Anonymous Coward]

Thank you. I, the poster you were replying to, am obviously a complete idiot who is absolutely unaware of his mistake and needs to be told about it over and over again. What would I ever do without you and the other 4 people who took time out of their day to remind me how much of an idiot I really am?

Re:right again

[Anonymous Coward]

If A is against B, and A is unethical, this is not evidence that B is ethical.

Re:right again

[Anonymous Coward]

My country still has a three strikes rule.. I would seed but its more likely I'll get caught :(

Re:right again

[CarpetShark]

That assumes that A and B are unrelated. In the real world, complex issues are often related. Especially if they're all coming up in relation to one subject. That's precisely how you build a case about which is better overall for society.

Re:right again

[maglor_83]

And these are the people the RIAA don't go after.

Re:right again

[diskis]

But, if you know that your ISP is lying about the available bandwidth, which you know for a fact that they are, then you acting on that lie makes you unethical.

You didn't buy _your_ bandwidth, you bought a share in a pool of common bandwidth. You pay 20 bucks for tens of Mb of bandwidth. Lines that are guaranteed to a certain speed can cost up to hundreds of dollars for 10 Mb. You know that you are paying for the cheap, shared connection.
You are now going to an all you can eat buffet, and gobbling up as much food as you can, yet as an adult you pay the children's fee. The buffet planned the prices lower for children, because they know that children do not eat as much, and therefore they can have lower prices. Do you then go and complain, "but I paid for unlimited food, and have only eaten 13 pizzas, you can't throw me out"?

Re:right again

[diskis]

Okay, so a friend suddenly gives you a large amount of money. Is it okay to accept it? Most probably yes.
But, what if he robbed a bank, and you knew it. Is it still okay to accept it? If he lies and says that he didn't rob the bank?
You didn't do anything wrong, and he lied to you, does these two facts make it okay to accept stolen money? No.

If someone does something wrong, it is also wrong for you to profit from that. You post to slashdot, you know for a fact that ISPs are lying, yet you cling on to the lie of unlimited bandwidth and try to shift all the responsibility to the ISP.

Re:right again

[Dragoness Eclectic]

Let me get this straight: if I *know* someone is lying and/or defrauding me, I should accomodate the liar?

Could you elaborate on that? I'm having trouble making sense out of your argument.

Also, when did you look at the terms & conditions of my hypothetical ISP contract to know just what I bought? My hypothetical example specified following the terms & conditions of an agreed-to contract. How is this unethical?

Your analogy is silly. A better analogy is the U.S. Tax Code, which says I can get tax credits if I meet certain conditions. If I meet those conditions, and apply the tax credits to my tax return, should you complain that I'm "avoiding paying my fair share" and doing something immoral/unethical/fattening?

pretty good week for people

[Dan667]

With this and the Pirate Party winning and EU seat, great news. Bad week if you are trying to force your failing business model to stay relevant like the RIAA (Sony, Warner Bros, Universal, and EMI).

Re:pretty good week for people

[interkin3tic]

Bad week if you are trying to force your failing business model to stay relevant like the RIAA

I don't know, my "I'll trade you a handmade spear for that hamburger" buisiness is actually doing much better this week.

Re:pretty good week for people

[Anonymous Coward]

You're doing it wrong. The way to do it is "I'll trade you getting to avoid being speared for that hamburger."

Re:pretty good week for people

[Anonymous Coward]

Bad week if your Slashdot handle is 'cliffski' too.

Blissfully, that blithering moron's ramblings are more rarely seen with each passing day.

Sorry

[whisper_jeff]

Sorry Big Media Companies (tm), find another (legal) way to protect your dying business model. Or, better yet, adapt to the new reality...

Court's self interest

[javacowboy]

It sort of makes sense, when you think about it. Why should the courts cede power to a non-judicial "administrative body" to rule against people. Stands to reason the courts would like a monopoly on those types of judgements.

Re:Court's self interest

[Anonymous Coward]

any ISP account closing would be contested in court anyway... so their monopoly wasn't threatened by this law.

Re:Court's self interest

[Mikkeles]

Except that the Conseil Constitutionnel is not a court.

Re:Court's self interest

[JAlexoi]

It is equivalent to what in English is called a court. Or in many countries a Constitutional Court.

So what? People stay at bat all day??

[Anonymous Coward]

The headline just jumped out at me and made me so angry that I didn't RTFS or RTFA.
So a pitcher just keeps throwing at the hitter, the hitter keeps swinging and baseball gets even more boring than it already is?!?!

whats to stop

[FudRucker]

i am glad this was overturned, anyway if someone was banned from the internet whats to stop a banned individual from getting a laptop and going online via one of the many open wifi access points (which have to be many)

American perspective

[Hatta]

When a 3 strikes law passes here in the US, I wouldn't expect such a good result from our courts. The first problem is that freedom of speech in America doesn't guarantee you access to a forum to be heard. Second, there is no presumption of innocence in our Constitution. The closest we get is a right to trial by jury, but that only applies in criminal proceedings.

Re:American perspective

[thirty-seven]

Second, there is no presumption of innocence in our Constitution.

The words "presumption of innocence" are not in the U.S. constitution, but it does guarantee "due process" in the fifth amendment.

The U.S. constitution was not written in a legal/historical/social vacuum, although, based on my first-hand experience talking with knowledgeable Americans, many of them seem to presume that the Founding Fathers were the first to invent or recognize the rights guaranteed in the constitution. But it is basically about guaranteeing rights that Englishmen had but that the American colonists were being denied. The U.S. Founding Fathers were quite insistent that they had certain "rights as Englishmen" that they were being unfairly denied.

So "due process" is not a meaningless phrase in the constitution - it means the sorts of process and protections that were common in the English system (i.e. common law), which is the inheritance of the U.S. and other countries, like Canada.

Re:American perspective

[sumdumass]

The difference here would be on the lack of adjudication. Any penalties imposed by a law has to have an adjudication where those effected can argue their innocence and contest the claims. There are even lines of thought that civil and punitive penalties outside the actual loss requires a criminal trial to fit with the constitution.

Re:American perspective

[Anonymous Coward]

"freedom of speech in America doesn't guarantee you access to a forum to be heard"

Especially not on Slashdot, where censorship is king.

Re:American perspective

[Dragonslicer]

When a 3 strikes law passes here in the US, I wouldn't expect such a good result from our courts.

The difference is that three-strikes laws in the US (at least the ones I've heard about) are about three convictions by a court, not three accusations by a private company. I'm not saying I agree with any three-strikes laws in the US, but at least they do go through the judicial system.

Re:American perspective

[Chris Burke]

The closest we get is a right to trial by jury, but that only applies in criminal proceedings.

Presumption of innocence is inherent in the burden of proof, which even for a civil trial is still the preponderance of evidence. If the prosecution/plaintiff can't present any evidence that you are guilty/at fault then there's no reason for you to present evidence that you are innocent, because that is in fact the assumption barring evidence to the contrary.

So yeah. Presumption of innocence is indeed part of our system.

Re:American perspective

[Anonymous Coward]

based on my first-hand experience talking with knowledgeable Americans, many of them seem to presume that the Founding Fathers were the first to invent or recognize the rights guaranteed in the constitution.

Apparently you were not conversing with knowledgeable Americans.

Re:American perspective

[DrJokepu]

Second, there is no presumption of innocence in our Constitution.

The words "presumption of innocence" are not in the U.S. constitution, but it does guarantee "due process" in the fifth amendment.

Also, there's "reasonable doubt" in the US constitution, and in 1895 the Supreme Courst of the United States estabilished (Coffin v. United States) that "reasonable doubt" implies the presumption of innocence.

Clarification

[brian0918]

Now, don't get me wrong, I agree that the government should not be handling such regulation, however if an ISP decided to enact such a rule as a private policy, I'm all for their right to do that. I would not necessarily be willing to choose that ISP, but no restriction should prevent them from making decisions that cause them to lose customers.

Re:Clarification

[sumdumass]

I would agree only to the extent that there are multiple ISP's in your area which aren't operating because of a grant of the public.

In many locations, the only high speed ISPs are those who have public utility status and therefore have access rights that get past some of the technical restrictions barring competitors. Cable internet and Phone company DSL are examples of this.

Re:Clarification

[brian0918]

In many locations, the only high speed ISPs are those who have public utility status and therefore have access rights that get past some of the technical restrictions barring competitors.

Who does the blame lie with for these circumstances? The ISPs, or the city government? Who is enforcing the monopoly? Should a company be forced to comply with government requests because the government is withholding property for its own purposes and creating the monopoly?

The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.

Re:Clarification

[Todd Knarr]

In many cases, the ISPs. Most phone companies (DSL) and cable companies (cable Internet) would only run service in an area on the condition that the government would grant them exclusive access to the right-of-way for that kind of service. So for the government it wasn't a choice between giving the cable company exclusive access or leaving it open to competition, it was between granting them exclusive access or them not serving that area. The usual argument they made was that they needed a guaranteed customer base and guaranteed revenue to justify the cost of running physical infrastructure to provide the service, that if they had to compete with other cable companies in an area then their fraction of the customer base wouldn't be enough to justify the fixed costs.

Re:Clarification

[Abcd1234]

The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.

Yes... because regulations are the only barrier to entry. After all, it's dead easy to get the rights to lay your own copper, right? And I'm sure it doesn't cost very much to do that kind of infrastructure rollout...

Re:Clarification

[brian0918]

In many cases, the ISPs. Most phone companies (DSL) and cable companies (cable Internet) would only run service in an area on the condition that the government would grant them exclusive access to the right-of-way for that kind of service.

What right does the government have to enforce such a condition? If I tell the mafia that I'll only deal with them if they exclude my competitors from their black market, am I to blame for the black market, or is the mafia?

Of course, if a community of property owners all agreed and signed a contract permitting exclusivity on their properties to one ISP, then they should be bound to that contract. It would have been foolish of them to sign such a contract without some exceptions in case the ISP tries to screw its customers or otherwise degrade service.

Re:Clarification

[brian0918]

Yes... because regulations are the only barrier to entry.

It's the only force-backed barrier to entry, yes.

Given that nobody has a right to internet access, there can be no compelling an ISP to offer services in any area where it doesn't want to offer services.

Re:Clarification

[Schmorgluck]

To be fair to the submitter, the phrase "three strikes and you're out" has been used for a while to describe this law. I'm not sure who started to.

Re:Clarification

[Dragonslicer]

Given that nobody has a right to internet access

Getting back on topic, that's exactly opposite of what France just ruled; Internet access has become a necessary means of communication and therefore is a right of all people.

Re:Clarification

[sumdumass]

To answer in line,

Who does the blame lie with for these circumstances? The ISPs, or the city government?

The people, city and state governments. But only at their benefit which is why this isn't so important. If the ISP is there because of other agreements to benefit the community, then they can't or shouldn't take actions that counter that. It is the agreement that they benefited from all along after all.

Who is enforcing the monopoly?

Well, the answer actually goes through several agencies and government levels depending on the location and the path they took. However, the phone or cable company wasn't innocent within all this either, they competed in most cases to show that they would benefit the people the most. When they took the monopoly position by agreeing to do business in the area, they were also agreeing to benefit from it as it was supposed to benefit the public.

Should a company be forced to comply with government requests because the government is withholding property for its own purposes and creating the monopoly?

The government(S) don't just show up and say you are the only ones who can compete in this area. It seems like you might think that. What happens is that the government negotiates coverage to the benefit of the people they serve with the exclusive operations as the reward. Governments set up Utility commissions to regulate these entities and they also limit the rates they can charge too. They by their own agreement at some point in time agreed to service at the benefit of the people. In cases where competition hasn't displaced this scenario, that benefit needs to still be in place.

The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.

I agree, but where that hasn't happened, I'm against a company making a choice to not service certain customers based on nothing "legal" that hasn't be adjudicated by a competent court of jurisdiction.

Re:Clarification

[Todd Knarr]

The government doesn't enforce that condition. The ISPs enforce it through the courts, by suing the local government if it breaches the contract it signed with them.

Re:Clarification

[Abcd1234]

It's the only force-backed barrier to entry, yes.

Uh, those aren't the only kind that lead to natural monopolies. Just FYI.

Honestly, you really need to take a basic course in economics... it'd do you some good.

Re:Clarification

[blankinthefill]

He never argued otherwise. His comment was to the effect that there are legal barriers to entry into many of these markets, because of the exclusivity contracts that many municipalities sign with ISPs/providers. Hence saying that was the only force-backed barrier. In the discussion so far, that's the point. Other economic barriers don't matter if you don't have the legal standing to compete in the first place.

Re:Clarification

[Abcd1234]

He never argued otherwise. His comment was to the effect that there are legal barriers to entry into many of these markets

No, he said (or, at the very least, strongly implied) that removing the legal barriers would magically solve the competition problem. Unfortunately, that's a libertarian fantasy.

Cocaine

[Anonymous Coward]

When illegal filesharing is detected, users have to prove their innocence. This is obviously contrary to the constitutional principle of presumption of innocence."

The wording is a bit funky. If _potential_ illegal filesharing is detected is what it should say. One could not prove their innocence if they are illegally sharing files.

It should be more akin to a police officer seeing you hand someone a brick of white powder, then the other party handing you a stack of money... I don't think it's unreasonable for the police officer to act on his suspicion and ask if you're selling cocaine.

(that is, of course, on the premise that it is a police force who "detects illegal filesharing" and not an internet service provider. I know, ISP's are not common carriers and such. A boy can dream, though.)

Interesting development

[Mr.Fork]

What I find interesting is the spin on privacy. Here in Canada, our privacy law is one of the reasons why file sharing has been hard to crack down on. The ability to remain anonymous and retain your privacy rights blocks most ISP's from packet-sniffing on behalf of 'special interest groups' - it also requires a court order: the judge will ask 'what proof do you have' and then ask these groups to explain how the gathered that proof without violation of Privacy laws. Even the current 'throttling' may be violating my privacy of internet usage as it would prove my ISP is scanning and reading my traffic information - which is a violation of my privacy rights of internet usage.

Gah, I've been too slow!

[Schmorgluck]

Ah well, I can't say I'm surprised that several people have been faster than myself to submit that story.

Anyway, since I'd be offtopic if I posted just to say that, here's a link to the reaction of the association "La Quadrature du Net", spearhead of opponents to the law: Hadopi is dead: "three strikes" buried by highest court. They deserve credit for their hard work.

US Congress please pay attention

[T Murphy]

"They argue that removing Internet access is equivalent to hindering a person's freedom of speech"
I would much appreciate if US Congress took this to heart and forced ISPs to stop the anticompetitive behavior. Sure, if these corporations really want to charge exorbitant amounts for their top-tier services, that's their right as a business. But there is little reason to have such price gouging and consumer-abusive practices and horrible, out of date service. Yes, we have disadvantages like large rural expanses and suburban sprawl, but I would like to finally see some legal teeth put in place to get this country to where it should be.

i lost that fight

[conspirator57]

and the one against the urge to joke about Napoleonic justice.

Since when has France moved away from the "guilty until proven innocent" stance?

Re:i lost that fight

[Tanktalus]

Since when has France moved away from the "guilty until proven innocent" stance?

Apparently, from doing the unthinkable (reading TFA), since "the Declaration of 1789". I'm going to have to go to wikipedia to see when that was passed.

Re:i lost that fight

[HuguesT]

Remember that Napoleon was basically a dictator, but even the Napoleonic code never put in place the "guilty until proven innocent" false principle. He just made it easier to be proven guilty, which is sufficient in most cases.

I think people got the wrong impression from watching "Les Miserables" in Broadway.

Liberté, Egalité, Fraternité

[owlnation]

Vive la France!

Re:Liberté, Egalité, Fraternité

[Anonymous Coward]

This should really be :

        Vive la France !

With a blank before the exclamation mark -- a 1/4 blank to be precise.

Re:Liberté, Egalité, Fraternité

[ignavus]

Liberté, Egalité, Fraternité

Internetité

No presumption of innocence in France.

[Maxo-Texas]

There isn't a presumption of innocence.

There isn't quite a presumption of guilt either. As the wiki says:
http://en.wikipedia.org/wiki/Napoleonic_Code
The possibility for justice to endorse lengthy remand periods was one reason why the Napoleonic Code was criticized for de facto presumption of guilt, particularly in common law countries. However, the legal proceedings certainly did not have de jure presumption of guilt; for instance, the juror's oath explicitly recommended that the jury did not betray the interests of the defendants, and took attention of the means of defense.

Re:No presumption of innocence in France.

[Anonymous Coward]

In fact there is. The most supreme text in law is the Constitution, and its preamble is the Declaration of the Rights of Man and of the Citizen, which at article 9 states:

"As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law."

Re:No presumption of innocence in France.

[icebike]

"As all persons are held innocent until they shall have been declared guilty,

Declared is a far cry from Proven.

Re:No presumption of innocence in France.

[Maxo-Texas]

You are correct.

http://en.wikipedia.org/wiki/Government_of_France

Apparently this changed in 1958.
A popular referendum approved the constitution of the French Fifth Republic in 1958, greatly strengthening the authority of the presidency and the executive with respect to Parliament.

The constitution does contain a bill of rights in itself, but its preamble mentions that France should follow the principles of the Declaration of the Rights of Man and of the Citizen, as well as those of the preamble to the constitution of the Fourth Republic. This has been judged to imply that the principles laid forth in those texts have constitutional value, and that legislation infringing on those principles should be found unconstitutional if a recourse is filed before the Constitutional Council.[1] Also, a recent modification of the Constitution has added a reference in the preamble to an Environment charter that has full constitutional value.[2]

Among these foundational principles, one may cite: the equality of all citizens before law, and the rejection of special class privileges such as those that existed prior to the French Revolution; presumption of innocence; freedom of speech; freedom of opinion including freedom of religion; the guarantee of property against arbitrary seizure; the accountability of government agents to the citizenry.

the article repeats and enforces this later:

Trial by jury is virtually unknown in France, except for severe criminal cases which are the jurisdiction of the Courts of Assizes. A full Court is made up of a 3-judge panel and a petty jury of 9 jurors (vs. 12 jurors on appeal), who, together, render verdicts, and if a conviction is handed down, also determine a sentence. Jurors are selected at random from eligible voters. Pre-trial proceedings are inquisitorial by nature, but open court proceedings are adversarial. The burden of proof in criminal proceedings is on the prosecution, and the accused is constitutionally presumed innocent until proven guilty.

Reading here: http://en.wikipedia.org/wiki/Napoleonic_code
It looks a little more complicated.
Bonaparte himself was against presumed guilt and for presumed innocence.
But, in practice, people could still be put into jail for long periods before the trial's preceeding serious crimes.

However, speaking from personal experience- in Texas, a person we found innocent (clearly innocent) had spent more than a year in jail for a medium crime (non-injury arson) because he couldn't afford jail. So effectively he was imprisoned for a year on a false accusation made by a convicted felon.

--
The summary is that presumption of innocence started under Bonaparte and grew in 1958. And people probably still sit in jail unable to make bail (just as they do elsewhere).

I'd always thought France had a presumption of guilt and *based* on Napoleon. I was completely wrong. Interesting.

Re:No presumption of innocence in France.

[Schmorgluck]

because he couldn't afford jail.

Duuh, I'm not familiar with Texas or US law, so I may be mistaken, but didn't you mean "bail"?

Re:No presumption of innocence in France.

[Anonymous Coward]

Let me correct that : in France, we have what is called the "burden of proof". It means basically that the one party with this "burden" has to produce evidence he's right. For example, if I say you're infringing copyright, the burden is mine : I have to produce enought evidence to actually PROVE that :
- the copyright is mine to enforce
- you are indeed in breach of it

Until I have proven this, the defendant won't have to produce any evidence of his own to dismiss the case.

so, in essence "innocent until proven guilty"

In some (very rare) cases, the "burden of proof" is reversed, and the defendant has to prove h'es not guilty, but these are very rare cases, and specified as such by Law.

Re:No presumption of innocence in France.

[Maxo-Texas]

Yes.. an evil typo... unfixable courtesy of /. 's lack of editing.

Re:No presumption of innocence in France.

[Anonymous Coward]

I'd always thought France had a presumption of guilt and *based* on Napoleon. I was completely wrong. Interesting.
I thought that as well (it's what I was taught way back in grade school, and honestly I never thought about it much after that) and a French Slashdotter corrected me (with the usual "all Americans are ignorant slime" attitude.)

Re:No presumption of innocence in France.

[HuguesT]

"D\'eclar\'e" (stupid slashdot lack of utf8 support) here does mean proven in a court of law, after a trial, it does not mean merely "declared".

Re:No presumption of innocence in France.

[Anonymous Coward]

>The summary is that presumption of innocence started under Bonaparte

This is totally wrong, see http://en.wikisource.org/wiki/Declaration_of_the_Rights_of_Man_and_of_the_Citizen

Article IX - Any man being presumed innocent until he is declared culpable

in Declaration of the Rights of Man and of the Citizen, 1789.

Re:So what? People stay at bat all day??

[gnick]

Welcome to cricket...

Stop the Presses!

[Nom du Keyboard]

Stop the presses! Common sense discovered in France!

Re:Stop the Presses!

[selven]

No need. They're already on strike.

Re:Stop the Presses!

[mjwx]

Stop the presses! Common sense discovered in France!

Must have been accidentally dropped behind the metric system.

And that means you're taking a risk.

[Ungrounded Lightning]

Let's say you wanted a "speech code" law overturned. The only way to do that, other than lobbying for the legislature to repeal the law, is to break the law by speaking in an illegal manner, and getting arrested. At this time, you now have recourse to try to get the law overturned.

And that puts you at risk: You have to carry through and win - which may take years and millions of dollars. Unless you win (and UNTIL you win) your rights are reduced because of the accusation of lawbreaking and the ongoing legal proceeding. And if you lose (or drop out) you also have a penalty applied for your "criminal behavior" in breaking the law in order to obtain the standing to argue for its unconstitutionality.

Not only that, but you have to take it all the way to the supreme court to make it stick nationally (or you and others have to take it to the appellate level in all of the federal circuits). And you have to LOSE at the trial level (and either lose at the appellate level or win but have the prosecutor appeal your win) to get to the supremes. And you have to have the prosecutor keep pushing rather than throw in the towel on your PARTICULAR case - something he may not do if you're fighting back and have a good point. And at the appellate level it may take two passes - once with a three-judge subset, a second time with the full set. Also: Once you've lost at the appellate level there's no guarantee that the Supremes will agree to hear the case - and they usually won't unless there are divergent rulings on two near-identical cases in two appellate districts.

To get through that process you need some people typically more expert in law than you to think that you're wrong. So that means your case has to be iffy. Which means you might not win even if you navigate the maze correctly and the Supremes deign to spend time on you. You're playing "court roulette" with only one empty chamber in the revolver.

I think this is one piece of politics/law where the French have a better idea.

Re:And that means you're taking a risk.

[Ungrounded Lightning]

As the saying goes: "Freedom isn't Free." It takes someone standing up and defending freedom. Sometimes that is on a battlefield with a gun. Sometimes its in a jail cell waiting for a court date.

Agreed.

Yet it would be nice if there were a way to bring a constitutional test of a law to court without having to bet your life, fortune, and sacred honor to do it.

After all, the congresscritters can pass as many unconstitutional laws as they think they can get away with just by doing a few hours of office work - over and over again. Why should it be drastically more expensive, hazardous, and time-consuming for us to undo their work when it is out-of-bounds?

Presumed innocense?

[icebike]

Quote:

This is obviously contrary to the constitutional principle of presumption of innocence.

Question:

Does France have such a presumption?

Not trolling, I really don't know.

Giant spam machine

[Anonymous Coward]

There was a great line from one of the commenters cited in an article in Le Monde. Since the Conseil Constitutionnel invalidated the penalties envisaged in the law, but said it was OK to send warnings to illegal downloaders, "the only thing that's left is a giant spam machine for the entertainment industry, paid for by taxpayers."

"Il ne reste qu'une immense machine à spams pour les industries du divertissement et payée par le contribuable"

Can we now go back to the correct name for fries?

[jbr439]

Although, in this case "freedom" does indeed apply (without the sarcasm).

Clarification

[identity0]

For a second there I thought people were being sent to jail over P2P :P

I suppose the submitter is French, so it can be excused, but in America when we refer to "three strikes you're out" legislation, it usually refers to criminal laws that say repeat offenders of regular(non-copyright) crimes get a very severe sentence after the third offense. The term itself comes from baseball, but when people talk about "three strikes laws" it's almost always about violent crime.

In this case, it seems the story is about copyright/file-sharing law removing internet access? It's a very different thing than the American "three strikes" laws, so while the name is literally accurate, in the future you might want to clarify that you're talking about copyright law and removing internet access.

Dammit!

[Anonymous Coward]

Affect. AFFECT. Affect affect affect.

For the love of Webster, a-ffect is the verb meaning "to modify or change." It is not a noun. E-ffect is usually a noun, but can mean "to produce" when used as a verb - "criminals effect crime" or "war effects suffering." This is not difficult!

Re:Dammit!

[Hognoxious]

It is to some dumbass who can't even spell "some dumbass".

Re:Dammit!

[badkarmadayaccount]

Stares at username. *facepalm* *maniacal laughter*

Freedom Fries!

[Kaukomieli]

How about if we rename the French Fries to freedom fries in honor of this courts achievements in defending the freedom of its citizens?

Re:So what? People stay at bat all day??

[Chris Burke]

I just figured the law was rejected because the French don't like an analogy to an American sport. Instead they will replace the "three strikes and you're out" law with a "one goal on each side and then you have a shootout" law.

Re:So what? People stay at bat all day??

[Schmorgluck]

Going with an English sport instead? Are you nuts?

Better a "let's try to throw large balls of steel as close as possible to the small wooden ball" law.

Art. 9 declaration of the right of man, 1789

[Nicolas MONNET]

"tout homme etant presume innocent jusqu'a ce qu'il ait ete declare coupable..."

Oh, and /.: IMPLEMENT UTF-8

Re:Art. 9 declaration of the right of man, 1789

[Anonymous Coward]

"tout homme etant presume innocent jusqu'a ce qu'il ait ete declare coupable..."

Oh, and /.: IMPLEMENT UTF-8

See you can tell the parent poster really is French because he doesn't bother to translate the quote!

Re:Art. 9 declaration of the right of man, 1789

[Nicolas MONNET]

Considering (considérant) that most legal (légaux) terms (termes) of the English language (langage) come from French, I figured (figuré) it would be obvious.

Re:Art. 9 declaration of the right of man, 1789

[icebike]

Declared is a far cry from Proven.

Re:Art. 9 declaration of the right of man, 1789

[oliderid]

See you can tell the parent poster really is French because he doesn't bother to translate the quote!

Come roots are so obvious:

• "presume" -> presumed
• "Innocent" -> guess what
• "declare" -> declared
• "coupable" -> guilty (Culpable)

the rest

• Tout (any)
• etant (To be)
• Jusqu'a (until)
• ce qu' (that)
• il (he)
• a ete (has been)

So a literal translation is
Any man is presumed innocent until he has been declared guilty

Englishspeakers don't understand the chance they've got to master a language half germanic/half roman. You've got everything you need to decypher most western european languages.

Re:Art. 9 declaration of the right of man, 1789

[HuguesT]

Here the French "Declar\'e" (utf-8 accents lacking, sorry), in a legal document, does mean proven in a court of law.

Re:Art. 9 declaration of the right of man, 1789

[JAlexoi]

Ah... But these English speakers, that you talk about, need to speak at least one more language for comparative reasons.

Nope, there are treaties in force and directives

[Nicolas MONNET]

The EU passes directives (between the Council, Commission and Parliament), that have to be implemented by national legislative bodies. The European Court of Justice (not ECHR) rules on European directives and their implementation.

Nope

[Anonymous Coward]

It's an ANALOGY.

If not believing in God(s) is a religion, then not (X, where X is a hobby) is a hobby.

Where the analogy is that religion -> hobby.

And not

practicing religion -> hobby

get it?

Re:Nope

[jez9999]

Not believing that there is a god is different from believing that there is no god. The latter is atheism, the former is 'not believing in God(s)'. So no I'm not saying that that is a religion. That is, in fact, agnosticism.

Re:Nope

[mdmkolbe]

Yeah, and the GP is pointing out that it is a weak analogy.

For example the sig could have been: "Atheism is a belief system to the same extent that not collecting stamps is a hobby." But I think most people would see that as an absurd analogy.

Re:Nope

[howlingmadhowie]

'not believing that there is a god' is a perfectly adequate and suitable definition of atheism. 'believing that there is no god' would be an unusual stance for an atheist because it requires a belief. most atheists are against belief.

Re:Nope

[Anonymous Coward]

"Not believing that there is a god is different from believing that there is no god. The latter is atheism, the former is 'not believing in God(s)'. So no I'm not saying that that is a religion. That is, in fact, agnosticism."
No, you are wrong.

"Not believing that there is a god" or "the absence/lack of belief in a god" is the simplest definition of atheism.

Gnosticsm is about knowledge. Agnostism is the absence of knowledge.

Agnostic and atheist isn't mutually exclusive since one is about absence of knowledge and the other is absence of belief.

I'm an agnostic atheist because I don't belief in a god but I don't know there isn't one.

Re:Nope

[Hatta]

Most self described atheists are of the "not believing in god type". They just rate the probability as negligible until there's evidence to suggest otherwise. People get confused because there's little practical difference between "not believing" and "believing not".

Would you say that you "have no belief that there is a Santa Claus" or that you "believe that there is no Santa Claus"? If the former, that's the same stance most atheists take, a non-belief. If the latter, does your disbelief in Santa Claus *really* amount to a religion?

Agnostics are usually those realize we can't prove it either way. But for some reason they don't realize that there are lots of things we can't prove either way, and that's no reason to be wishy washy about it. Until there's evidence for something, it's OK to dismiss it. Not because it's untrue (it might be, who really knows?) but because it's irrelevant. Does it make any sense to be agnostic about an invisible pink unicorn that orbits the earth? Until someone brings you evidence, just reject the possibility, there's not enough time to equally consider all propositions that *could* be true. In other words, agnostics, grow some balls.

Give me five lines...

[Anonymous Coward]

ring a bell?

Re:So what? People stay at bat all day??

[Chris Burke]

Going with an English sport instead? Are you nuts?

I'm betting the French would dispute that just on principle. Sure a lot of the modern rules were made in England, but it dates back to well before them, and FIFA is a French acronym so there you have it!

I'm sure that was enough for a French nobleman

[Chris Burke]

But what the fuck does the 17th century French monarchy have to do with the U.S. legal system and its presumption of innocence?

French constitution is actually quite okay

[Anonymous Coward]

For European standards the French constitution is actually quite okay. It was historically based on the same mingle of ideas that produced the US constitution and it shows. The most prominent part of the French constitution is about protecting a set of ideals, most notably human rights and freedoms, and in that respect several other European constitutions are severely lacking, either because they've grown organically from the interplay of groups of citizens, each trying to protect their own turf at the expense of others, which they considered more worth pushing than general high ideals that everyone would benefit from, or because the writers didn't particularly care for human rights in the first place. The one aspect were the US and France are radically different, when it comes to basic state structure, is that contrary to the US, France uses civil law as basis for government, and I am not convinced that this is a bad thing.

Too American

[Danny Rathjens]

I thought they would rule the 3 strikes law unconstitutional because the name is a reference to American baseball and therefore an encroachment on French culture. 8^)

Differences between U.S. & French law.

[danielpauldavis]

"users have to prove their innocence. This is obviously contrary to the constitutional principle of presumption of innocence." That would be United States Constitution. The French law is Napoleonic, in which the accused is presumed guiltyu until PROVEN innocent. Thus, the French are being consistent, unlike many U.S. judges.