From the NDAA's National Prosecution Standards, Third Edition, with Revised Commentary:
4-2.4 Factors to Consider The prosecutor should only file those charges that are consistent with the interests of justice. Factors that may be relevant to this decision include: a. The nature of the offense, including whether the crime involves violence or bodily injury; b. The probability of conviction; c. The characteristics of the accused that are relevant to his or her blameworthiness or responsibility, including the accused’s criminal history; d. Potential deterrent value of a prosecution to the offender and to society at large; e. The value to society of incapacitating the accused in the event of a conviction; f. The willingness of the offender to cooperate with law enforcement; g. The defendant’s relative level of culpability in the criminal activity; h. The status of the victim, including the victim’s age or special vulnerability; i. Whether the accused held a position of trust at the time of the offense; j. Excessive costs of prosecution in relation to the seriousness of the offense; k. Recommendation of the involved law enforcement personnel; l. The impact of the crime on the community; m. Any other aggravating or mitigating circumstances.
The commentary that accompanies this, and the subsequent standards regarding diversion (official alternatives to criminal sentences, such as rehabilitation clinics, community services, etc) are worth reading if you're interested. http://ndaa.org/pdf/NDAA%20NPS%203rd%20Ed.%20w%20Revised%20Commentary.pdf
The encrypted database is stored as a file; you can open/save it like any other file, including on a USB drive. The program is also available as a portable app that can be run from a USB drive, so you could carry both the database and the program around with you.
"The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth."
"The prosecutor should only file those charges that are consistent with the interests of justice."
A prosecutor _chooses_ whether to file (and dismiss) charges. That the current system is biased to reward prosecutors who choose their own self-interest over the interests of justice does not change the fact that it remains their choice.
Re Reiser. Yeah, a lot of Slashdot readers need to get a grip. On the other hand, I remember more the Slashdot readers who were saying "we don't know enough" and "let the police do their job".
Re first mistake. Did Aaron see MIT's PTB as an ally, a neutral party, or part of the problem?
Re second mistake. You state, "Rather than take that offer (which would have given him maybe four to five months in a minimum security facility) and come out smelling like a rose for his act of civil disobedience". No. One, "would have" and "maybe"? Make up your mind. Two, felony records carry long-lasting social, financial and bureaucratic stigmas. http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2
Re Hotz. Hotz was not facing federal prison time and a felony record. Sony vs Hotz was a civil suit.
Re decision. Yes, those were all Swartz's decisions. And those decisions did not occur in a vacuum. Federal prosecutors (one or more of Carmen Ortiz, Stephen Heymann, Scott Garland) decided to charge Swartz with federal crimes, decided to pursue jail time, decided to ignore JSTOR's objections, decided to escalate the charges, and decided to ignore the warning about Swartz being a suicide risk (despite Heymann being the prosecutor in an earlier hacking case where a suspect committed suicide).
Re ultimate irony. Feel free to visit your local public university library - and research the number of towns that don't have local public university libraries.
So (a) prosecutors DO have a choice, and/but (b) the system is biased towards rewarding prosecutors who choose their own self-interest over the interests of justice?
I've read that source too (specifically to get more of the details). The blog and the article (at least the part available so far) have different focuses. The former on the punishment sought, the latter on the charges and the case. My post referred to the punishment sought; perhaps it is more accurate to say the punishment sought and the decision to seek it. Your reply continues to focus on the case and the charges despite my not disputing them.
I repeat, I do not dispute those charges. What I dispute is the decision of the prosecutor to pursue those charges against the wishes of the victim after a civil settlement had been made and the further decision to pursue guilty pleas to every count and jail time for them despite the risk of the punishment far exceeding the crime.
Your analogy is a little off, too. Please correct me if I'm wrong: it misses the bits where one of you (JSTOR) told the government the matter was settled, the other one of you (MIT) prevaricated as to whether it cared, and the government (Prosecutor) unilaterally decided to put the guy in jail anyway and that some of your money would be spent to do this (unless JSTOR/MIT don't pay taxes) whilst ignoring your objections and refusing plea bargain requests from the defence; the defendant and the government having a history of conflict; and a system where successful prosecutions can be rewarded politically.
So this whole furor isn't about the legalities. This is about justice, and it must not only be done, it must be seen to be done. It applies to prosecutors too, not only judges and their clerks, and particularly when it is the choice of the prosecutor whether to pursue, rather than a legal requirement.
"I am sure that had he been willing to put up a fight he could have easily secured a high caliber lawyer at little or no cost due to the high profile of the case."
The blog of a solicitor who knew him as a friend includes this: "his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge."
So you may wish to examine your logic chain. Some of the pieces you are "sure" of, may be suspect.
The issue is not the laws he broke. The issue is not even the sentence a fair and just court might have assigned. The issue is the _punishment sought_ by the United States Federal Government in the person of a Federal Prosecutor for breaking those laws.
Conceivably fifty years in prison for circumventing a paywall and leeching bandwidth. Does that sound like "proportional response" to you?
It does not matter what "deal" the prosecutor secretly had in mind. Government must be held publicly accountable, and publicly the prosecutor was willing to have someone stagnate in a federal prison for fifty years for the above crimes.
Henderson was however charged and unless those charges are dropped it is going to trial. Can you be charged and end up in court without being arrested?
Oh please. The police took the guy's camera, claiming it was "evidence", the citation against him is for a violation that does not even exist, the police initially refused to return his camera, when he does get it back there's no footage of the event, and the police report claims there never was anything on the camera. I'm sorry, but that's suspicious as hell.
Regardless of the GP's personal history with bad cops, please don't exceed his hyperbole with your own.
Laws still aren't ethics; I might accept "laws *articulate* ethics...", perhaps. Hmm. I think I lack sufficient skill to concisely convey my thoughts, here.
Would my analysis change if your source was a bootleg? No. That's just adding another intermediate step between you and the vendor; the work itself is still not prohibited to you. Unless I've misinterpreted and you meant something else. Now if the work was being denied to you by its own vendor, that would be something I'd have to contemplate.
I do certainly agree on your view re the OP's emphasis.
Your choice is not like that guy's choice. Leaving aside that laws are not ethics are not cultural values (congruent to a degree that is strongly dependent on your location, but not the same), his choice is quite different.
Your choice is whether to accept or reject a contract between you and the movie vendor. Party A: You. Party B: Vendor. Enforcer: Government.
His choice is whether to accept or reject a unilateral prohibition against the movie itself. Party A: Him. Party B: Government. Enforcer: Government.
I never said there was consensus. I said some studies, e.g. http://www.rieti.go.jp/en/publications/summary/11010021.html to randomly pick one. Furthermore, even anecdotal evidence is sufficient to suggest a link exists even though, yes, anecdotal evidence is not sufficient to prove such.
As for exponential distribution, knowing the whole enchilada, and DRM supposedly doing "absolutely nothing", not everyone is aware of how to obtain "warez", not everyone who is aware does so, and not everyone has the same level of technical proficiency.
That whoosh you hear is the sound of an internet of drones following your perp.:)
Seriously - the article isn't talking about a few drones. It's talking about "millions" of drones. Finding one to steal would be easy. The hard part would be avoiding its friends following you home.
Of course, there is the slight problem of stealing a drone without it and forty other drones uploading real-time GPS-stamped video of your actions for law enforcement.
Oh, come on. Sure, DRM won't stop someone involved in "warez" from getting a copy sooner or later, even before release, but that's not the whole damn enchilada and you know it.
There IS a link between piracy, loss of income and market risk. It's certainly not 1:1, and some studies even indicate that certain levels of piracy may actually *generate* sales, but it's there.
Obscuras lex est telum tyrannorum. Obscure law is a weapon of tyrants.
Apologies in advance if I mangled the translation. It's your "reasonably feasible" that's the hard part these days. The sheer quantity of law means that beyond the most minor infractions, a lawyer can make all the difference between walking and doing serious hard time. And in a system where the quality of your lawyer is related to the amount you have available to pay....
Hmm. I disagree. In your quote, I notice that the court differentiated between mislaid property (you acquire no rights), lost property (you are not entitled to possess it against the true owner) and abandoned property (you are entitled to keep it). So if you find a wallet that is lost rather than abandoned (however the court defined those terms), then it seems to me that you would not be entitled to keep it, only to possess it - and if you had (or believed you had) knowledge of the true owner then you would not be entitled to possession against them and so deliberately deciding to retain possession with no intent to return it would seem to be unlawful.
And as it happens, a cooling climate *is* preferable to a warming climate, because it's much easier to counter. All you have to do is burn extra crap to put more carbon dioxide into the atmosphere (or use methane, it's even more potent). But to counter warming, you've got to *reduce* atmospheric CO2/CH4/etcetera, which means you're working against the direction of entropy. Much harder task. Especially when everybody else is increasing their emissions instead.
Slashdot Mirror
From the NDAA's National Prosecution Standards, Third Edition, with Revised Commentary:
The commentary that accompanies this, and the subsequent standards regarding diversion (official alternatives to criminal sentences, such as rehabilitation clinics, community services, etc) are worth reading if you're interested. http://ndaa.org/pdf/NDAA%20NPS%203rd%20Ed.%20w%20Revised%20Commentary.pdf
A puppet king is no king at all.
The encrypted database is stored as a file; you can open/save it like any other file, including on a USB drive. The program is also available as a portable app that can be run from a USB drive, so you could carry both the database and the program around with you.
False. From the The National Prosecution Standards published by the National District Attorneys Association: http://ndaa.org/pdf/NDAA%20NPS%203rd%20Ed.%20w%20Revised%20Commentary.pdf
A prosecutor _chooses_ whether to file (and dismiss) charges. That the current system is biased to reward prosecutors who choose their own self-interest over the interests of justice does not change the fact that it remains their choice.
Point by point:
Re Reiser. Yeah, a lot of Slashdot readers need to get a grip. On the other hand, I remember more the Slashdot readers who were saying "we don't know enough" and "let the police do their job".
Re first mistake. Did Aaron see MIT's PTB as an ally, a neutral party, or part of the problem?
Re second mistake. You state, "Rather than take that offer (which would have given him maybe four to five months in a minimum security facility) and come out smelling like a rose for his act of civil disobedience". No. One, "would have" and "maybe"? Make up your mind. Two, felony records carry long-lasting social, financial and bureaucratic stigmas. http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2
Re Hotz. Hotz was not facing federal prison time and a felony record. Sony vs Hotz was a civil suit.
Re decision. Yes, those were all Swartz's decisions. And those decisions did not occur in a vacuum. Federal prosecutors (one or more of Carmen Ortiz, Stephen Heymann, Scott Garland) decided to charge Swartz with federal crimes, decided to pursue jail time, decided to ignore JSTOR's objections, decided to escalate the charges, and decided to ignore the warning about Swartz being a suicide risk (despite Heymann being the prosecutor in an earlier hacking case where a suspect committed suicide).
Re ultimate irony. Feel free to visit your local public university library - and research the number of towns that don't have local public university libraries.
So (a) prosecutors DO have a choice, and/but (b) the system is biased towards rewarding prosecutors who choose their own self-interest over the interests of justice?
Ouch.
I'm beginning to understand the US legal system a lot more than I'd like, and I'm only indirectly affected by it. It smells broken.
What exactly do you mean by "the prosecutor cannot _really_ drop the charges" (emphasis mine)?
I've read that source too (specifically to get more of the details). The blog and the article (at least the part available so far) have different focuses. The former on the punishment sought, the latter on the charges and the case. My post referred to the punishment sought; perhaps it is more accurate to say the punishment sought and the decision to seek it. Your reply continues to focus on the case and the charges despite my not disputing them.
I repeat, I do not dispute those charges. What I dispute is the decision of the prosecutor to pursue those charges against the wishes of the victim after a civil settlement had been made and the further decision to pursue guilty pleas to every count and jail time for them despite the risk of the punishment far exceeding the crime.
Your analogy is a little off, too. Please correct me if I'm wrong: it misses the bits where one of you (JSTOR) told the government the matter was settled, the other one of you (MIT) prevaricated as to whether it cared, and the government (Prosecutor) unilaterally decided to put the guy in jail anyway and that some of your money would be spent to do this (unless JSTOR/MIT don't pay taxes) whilst ignoring your objections and refusing plea bargain requests from the defence; the defendant and the government having a history of conflict; and a system where successful prosecutions can be rewarded politically.
So this whole furor isn't about the legalities. This is about justice, and it must not only be done, it must be seen to be done. It applies to prosecutors too, not only judges and their clerks, and particularly when it is the choice of the prosecutor whether to pursue, rather than a legal requirement.
The blog of a solicitor who knew him as a friend includes this: "his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge."
So you may wish to examine your logic chain. Some of the pieces you are "sure" of, may be suspect.
The issue is not the laws he broke. The issue is not even the sentence a fair and just court might have assigned. The issue is the _punishment sought_ by the United States Federal Government in the person of a Federal Prosecutor for breaking those laws.
Conceivably fifty years in prison for circumventing a paywall and leeching bandwidth. Does that sound like "proportional response" to you?
It does not matter what "deal" the prosecutor secretly had in mind. Government must be held publicly accountable, and publicly the prosecutor was willing to have someone stagnate in a federal prison for fifty years for the above crimes.
If you haven't already, please read this blog by a solicitor who knew Aaron. http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully
If they were using those experiences as part of their lecture? Closely.
Henderson was however charged and unless those charges are dropped it is going to trial. Can you be charged and end up in court without being arrested?
Oh please. The police took the guy's camera, claiming it was "evidence", the citation against him is for a violation that does not even exist, the police initially refused to return his camera, when he does get it back there's no footage of the event, and the police report claims there never was anything on the camera. I'm sorry, but that's suspicious as hell.
Regardless of the GP's personal history with bad cops, please don't exceed his hyperbole with your own.
Laws still aren't ethics; I might accept "laws *articulate* ethics...", perhaps. Hmm. I think I lack sufficient skill to concisely convey my thoughts, here.
Would my analysis change if your source was a bootleg? No. That's just adding another intermediate step between you and the vendor; the work itself is still not prohibited to you. Unless I've misinterpreted and you meant something else. Now if the work was being denied to you by its own vendor, that would be something I'd have to contemplate.
I do certainly agree on your view re the OP's emphasis.
Your choice is not like that guy's choice. Leaving aside that laws are not ethics are not cultural values (congruent to a degree that is strongly dependent on your location, but not the same), his choice is quite different.
Your choice is whether to accept or reject a contract between you and the movie vendor. Party A: You. Party B: Vendor. Enforcer: Government.
His choice is whether to accept or reject a unilateral prohibition against the movie itself. Party A: Him. Party B: Government. Enforcer: Government.
If you're not careful, you might also get charged with posession and/or planting the evidence in the first place (even if you didn't).
I suspect the word you're seeking is "complicit", not "complicate". Banks do seem to love complicating a lot of things, though. :)
I never said there was consensus. I said some studies, e.g. http://www.rieti.go.jp/en/publications/summary/11010021.html to randomly pick one. Furthermore, even anecdotal evidence is sufficient to suggest a link exists even though, yes, anecdotal evidence is not sufficient to prove such.
As for exponential distribution, knowing the whole enchilada, and DRM supposedly doing "absolutely nothing", not everyone is aware of how to obtain "warez", not everyone who is aware does so, and not everyone has the same level of technical proficiency.
You keep talking in absolutes. Why?
That whoosh you hear is the sound of an internet of drones following your perp. :)
Seriously - the article isn't talking about a few drones. It's talking about "millions" of drones. Finding one to steal would be easy. The hard part would be avoiding its friends following you home.
Of course, there is the slight problem of stealing a drone without it and forty other drones uploading real-time GPS-stamped video of your actions for law enforcement.
Oh, come on. Sure, DRM won't stop someone involved in "warez" from getting a copy sooner or later, even before release, but that's not the whole damn enchilada and you know it.
There IS a link between piracy, loss of income and market risk. It's certainly not 1:1, and some studies even indicate that certain levels of piracy may actually *generate* sales, but it's there.
Obscuras lex est telum tyrannorum. Obscure law is a weapon of tyrants.
Apologies in advance if I mangled the translation. It's your "reasonably feasible" that's the hard part these days. The sheer quantity of law means that beyond the most minor infractions, a lawyer can make all the difference between walking and doing serious hard time. And in a system where the quality of your lawyer is related to the amount you have available to pay....
Hmm. I disagree. In your quote, I notice that the court differentiated between mislaid property (you acquire no rights), lost property (you are not entitled to possess it against the true owner) and abandoned property (you are entitled to keep it). So if you find a wallet that is lost rather than abandoned (however the court defined those terms), then it seems to me that you would not be entitled to keep it, only to possess it - and if you had (or believed you had) knowledge of the true owner then you would not be entitled to possession against them and so deliberately deciding to retain possession with no intent to return it would seem to be unlawful.
Not what the GP said. Please visit http://yourlogicalfallacyis.com/ (in this case, Strawman).
And as it happens, a cooling climate *is* preferable to a warming climate, because it's much easier to counter. All you have to do is burn extra crap to put more carbon dioxide into the atmosphere (or use methane, it's even more potent). But to counter warming, you've got to *reduce* atmospheric CO2/CH4/etcetera, which means you're working against the direction of entropy. Much harder task. Especially when everybody else is increasing their emissions instead.
Thinking about it, 1 and 2 are the same, bullets being ballistic projectiles after all....