Required licensing schemes are not in the interests of legal professionals. Requiring people to get contracts (i.e. the current patent system) creates more business for the legal profession. In ethics terms, this is known as conflict of interest.
Most of our legislators are legal professionals, as are their staff members who end up actually writing the laws, and as are the judges, the prosecutors, the defense attorneys, and so forth. Similarly, legal professionals are almost always in highly influential (usually executive) positions on the boards of corporations that make large donations to political campaigns. Also, they frequently work as lobbiests and can also lobby as groups by means of bar associations. Don't forget the people working as arbitrators, either. In other words, legal professionals can exert an enormous influence on the nature and form of the legal system.
Getting these people to even acknowledge conflicts of interest of this kind is like pulling teeth, let alone getting anything done about them. What is the likelihood that these people would be interested in changing the current system to one that didn't further their interests?
There are a lot of reasons to suppose that ethical conflict of interest on the part of legal professionals is as a cancer that is slowly killing our legal system, our government, and our nation.
Aside from that minor issue (ok, probably a show-stopper, not a minor issue), this is a great idea.
There are some complications, however. For example, how would one track down the use of patents in closed source software in situations where a software vender is using somebody else's idea but not paying for it? Also, how does one ensure that the human beings coming up with ideas get rewarded for them, and not just their employers? How do we prevent stupid and obvious patents from being issued? How do we deal with situations where infringement is innocent? How do we make sure that the patent system does not involve violations of fundamental rights, such as the right of individuals to not have their time wasted -- the human span being finite and far too short -- by the legal system, by legal professionals, by businesses, or by the government?
Of course, all of these issues could be considered to be issues with the existing system, and not just your idea. Still, it seems that, if we are going to have a hope of fixing the system, these matters would need to be considered.
For example, not all patents cover ideas where the use of the patent is easily detectable.
One possibility for dealing with this situation would be to require software companies to provide well documented source code, capable of exactly building their system, to some nuetral third party or parties, and to requires these companies to bank a share of their gross in some account that can not be accessed under ordinary circumstances, as a requirement for doing business. This would allow for later public review of the software to ensure that no patents had been violated by using them without paying for them: a successful review would give the company (and/or the individuals doing the work) the money back. The review would have to occur at some sufficiently late date so as to provide reasonable protection to any trade secrets in the software, but not after such a long time as to provide no incentive to individuals to comply. Some thought would be required to determine how the review might happen. Hopefully it would not require more government...
Having the new patent law include a mechanism in place to provide a means of doing this sort of public oversight might make people (the honest ones, at least) more comfortable with the idea of required licensing.
Such an approach would also provide for long term public oversight of businesses developing software, which some have argued is a fundamental right.
The decisive carrier battle of WW2, the battle of Midway, was decided by bad doctrine, poor planning, and a hefty dose of luck. This is not being said to in any way denigrate the courage and skill of the people who fought the battle, but rather we must acknowledge that both sides had courage and skill. By themselves, these was not decisive. The failures in doctrine and planning, on the other hand, when combined with luck, were decisive.
During the battle of Midway, the Japanese fighters in the carrier group CAP allowed themselves to get sucked down to low level to go after the US torpedo bombers, failing to keep a high altitude reserve. Under the circumstances that prevailed, the torpedo bombers were a lesser threat: there were many incidents during the war when ships, even large ships such as aircraft carriers, were able to dodge many incoming torpedoes. At that point in time, enemy dive bombers were a far greater threat, given that the Japanese ships were arming a strike and quite vulnerable due to exposed fuel lines and munitions.
This was a failure in fighter doctrine: it was not a failure of knowledge. The Japanese knew that the US Navy had dive bombers, and should have been prepared for them.
The problem for the Japanese was compounded by the fact that the main Japanese fighter could not keep up with the US Dive Bombers once they started into their dives. These fighters were designed to have superior maneuverability, but the light frame required for this both left them unable to keep up with the much heavier dive bombers in their attack dives, and vulnerable to gunfire (even gunfire from bombers, which shot down or drove off Japanese fighters on a surprising number of occasions). This problem allowed the dive bombers to attack the carriers without significant interference from the few fighters that were able to get close to them. Thus, a failure in fighter design (not a matter of knowledge) compounded the failure in doctrine.
It was pure luck that the US dive bombers arrived at all, let alone when they did -- they almost missed the Japanese fleet entirely. No particular ability in placing assets where they needed to be can be demonstrated by an event that resulted from pure luck. The real weapon was not "knowledge": the US dive bombers discovered the Japanese fleet mostly by getting lucky.
The situation was made even worse for the Japanese by the decision to split the fleet (multiple times!) before contact with the enemy. This placed a number of battleships, with their formidable anti-aircraft armament, far away from the critical point in the action. This also placed two entire carriers halfway across the ocean from the battle. Both of these mistakes do support your idea regarding the ability to place assets where they are needed.
The situation may have been further exacerbated by inadequate damage control capabilities on the part of the Japanese. There is some reason to believe that US Navy ships were more able to survive serious hits than Japanese ships during WW2. If true, this was likely a failure in doctrine for the Japanese as well: for whatever reason, they didn't plan as well for taking battle damage.
The US Navy won because it made fewer mistakes, and because it got lucky.
Getting a PhD is not about having more knowledge than other people, it is more about learning how to become an accepted part of a particular research community. Strangely enough, the majority of people who earn PhD's will not do any significant research after finishing their degree: the degree is used instead as an entry point into particular jobs.
A working engineer might very well be more knowledgable about -- and skilled at -- his or her field than many people with PhDs in that field, as the engineer will typically be getting real world experience in a number of different areas (which helps immensely to strengthen knowledge only touched upon in school or which can't be learned in any school) during the time the PhD student is learning to do research in one particular specialty (much of which ends up being slow, iterative, incremental work building upon the ideas of others). This is not to denigrate what the PhD's do, as they can be responsible for some significant contributions, however, they are far from being the only ones doing that.
Creativity often consists of connecting ideas from different areas in ways one never thought of doing before, and thus being strong in general can actually facilitate creativity versus being over-specialized. It's a breadth versus depth issue.
PhD's do have the advantage that, if they are doing creative work, their names are likely become associated with that work. For other people, the organization that employs them often gets the credit for the work, and a lot of the creative ideas become unpublished trade secrets of companies. The public ends up seeing the products, but has little idea how much creativity went into making them possible.
Thus, your point that a high technology country doesn't need everyone to be at a PhD level to do creative work, even stunning and world shattering work, is quite correct.
While some PhD degrees can give real value to both the person earning the degree and to their employer, there are some hard questions we should probably be asking about the PhD system in general. Given that most people finishing PhD's are not going to be doing research, it is not clear that having this degree so focused on research makes sense. Perhaps a better system would be to have two different types of PhD, one research oriented, and the other focused on other things.
It better not be the case that only their opinions (i.e. the opinions of the Supreme Court) matter, or the USA is in big trouble. If James Madison and other like minded people were prepared to trust the institutions defined by the Constitution -- the Presidency, the Congress, or the Supreme Court -- individually or collectively, there would have been no need to add a Bill of Rights to limit the power of those institutions (and incidentally, also limit the States).
Legal professionals, as a class in society, are in a position of conflict of interest with respect to the nature and form of the legal system. Think about this for a bit and you'll see that that this means members of the Supreme Court are also in a position of conflict of interest, not just with respect to actions taken in their present positions, but also considering decisions made during their entire careers as legal professionals.
It would be extremely foolish to trust the Supreme Court: just look at how slavery was handled for reasons why this is a bad idea. The Constitution, while authorizing the counting of persons not free in population totals, did not, for example, say anything about allowing the children of slaves to be themselves enslaved. It did not authorize the abuse of slaves, either. Various Supreme Courts could have done many things to limit the slave system and chose to do nothing, or worse, chose to permit abuses.
A similar failure happened after the Civil War with the numerous violations of fundamental human rights directed against African-Americans by law in the Southern states, which were also permitted by various Supreme Courts for many decades before finally being stopped.
Also consider the Nuremberg Precedent (which can be asserted in the USA under the 9th Amendment as a right "retained by the people"): if we can expect people to refuse to obey illegal orders from their military superiors, we should also expect people to refuse to obey illegal orders from civil superiors. A court order or precedent, from any court at any level, including the Supreme Court, is only valid when it does not involve the infringement of fundamental rights.
Finally, rights "retained by the people" under the 9th Amendment are by definition retained by the people. They are not retained by the Supreme Court, and an attempt by Supreme Court justices to take this away would be a violation of the judge's oaths to uphold the Bill of Rights. Similar reasoning applies to the 10th Amendment and rights "reserved to the people".
Like duh! The jury is the tribunal of fact, not the tribunal of law (that's what the judge is doing there). The jury is not supposed to reach any conclusion as to the law.
Unfortunately, this viewpoint neglects the fact that legal professionals, as a class in society, have ethical conflicts of interest with respect to the nature and scope of the legal system, and thus reserving decisions on matters of law to legal professionals will sooner or later produce a badly messed up legal system. A country that did that sort of thing might even get a reputation as a "Land of the Lawsuit", not that we know of any countries where that has happened...
Government of the people, by the people, and for the people should not be government of the lawyer, by the lawyer, and for the lawyer.
A jury, if it is made up with people who have a good level of knowledge about the world they live in, can serve as a check and balance on this ethical conflict of interest. Which may be one reason why few such people end up in juries, and also why governments run by lawyers tax the sale of lifetime learning materials and call it a "consumption" tax, treating the sale of these materials the same as the sale of toys and sporting goods.
Furthermore, in the USA, James Madison gave us a Bill of Rights that provides for rights "retained by the people" (9th Amendment) and "reserved to the people" (10th Amendment). The Bill of Rights does not say that these rights are "retained by the lawyers" and "reserved to the lawyers", or even "retained by the people but only when it is convenient for the lawyers". The existence of these rights necessarily gives members of the people, including persons on a jury, the freedom to decide that the government is violating fundamental rights in passing a particular law. It would be unethical -- and, certainly a violation of their oaths to uphold the Bill of Rights -- for legal professionals to try to prevent this.
There are MANY serious problems with the patent system -- see the position paper by the League for Programming Freedom for a discussion of this -- and any intelligent person serving on a jury should ABSOLUTELY be keeping this in mind when serving in a patent case.
Another right that might be reasonably asserted under the 9th and 10th Amendments would be the right to not have one's time wasted, the human span being finite and far too short. That right was probably violated for the jurors in this case, given that nobody could reasonably expect a decision to be upheld when jurors are being instructed to answer 700 questions, and thus the time of the jurors will probably end up having been wasted. The legal professionals involved at least got paid -- and probably quite well -- for their time. Why is it wrong to steal a portion of a person's life by murdering or kidnapping them, but it isn't wrong to steal a portion of a person's life by forcing them to participate in a trial that will likely prove a complete waste of time?
Beyond a doubt, long term public oversight of government is an essential part of having a free country. This is a necessary consequence of the "of the people, by the people, and for the people" concept. (For that matter, long term oversight of business is also essential, something that far fewer people recognize).
There are some things that can reasonably be kept secret, however, at least for a reasonably limited time.
Consider the example of how much good was done during World War II as a result of the Allies both a) breaking enemy codes and b) turning enemy agents, and how much harm would have been done had this information been revealed. For a more current example, consider the need to keep information on how to build weapons of mass destruction -- whether biological, chemical, or nuclear -- out of the wrong hands. In this case, we might even allow some details to be kept out of the public record permanently.
Going on to another example, privacy rights are fundamental to a free society, and that includes rights to privacy over some information in government databases, which necessarily means that some information must be kept secret by governments. If anything, the situation with privacy rights has gotten worse with the development of the Internet: it is far easier to violate people's privacy, and hence there is more need to be proactive in protecting it. Also, consider the need to protect the identities of people who are working undercover against persons involved in organized crime, fraud, cons, or scams, and similar activities that any rational person would consider harmful to society.
In allowing the government to keep some things secret, for a limited time, it is essential to recognize that security rules can (and inevitably will) be abused. I particularly like the following quote: "Nothing like security rules to cover up mistakes, arrogance, and just plain stupidity" -- from the book "Stark's War" by John G. Hemry, since it describes succinctly what so often happens.
As is true in many other situations involving fundamental rights, some sort of balance must be struck between competing needs, in this case between the right of public oversight and government or business secrets.
A key consideration here, to minimize the abuse of security rules, is that it should not be the legal professionals or the government that are setting the limits on what can be kept secret, and when. In other words, these people may be able to propose the rules, but the people ultimately need to have the final say on whether those rules are appropriate. After all, the behavior of government officials will be limited by these rules, and thus they are in a position of ethical conflict of interest with respect to the nature and scope of the rules.
This is definitely an ethical conflict of interest. There is considerable doubt regarding the legitimacy of the current patent system, which has been described as violating a number of fundamental rights arising under the 9th Amendment (rights retained by the people) and the 10th Amendment (rights reserved to the people). Excessive government, excessive law, excessive bureaucracy, and ethical conflicts on interest (on the part of members of government or of legal professionals) all constitute violations of fundamental rights the people of any free country necessarily have, and all of these can be found in the current patent system.
A patent holder will necessarily have a stake in the current patent system, and thus has a stake in broadly supporting other people's patents granted under the existing system. Removing such people from the jury is fundamentally a matter of ethics and as such supersedes ordinary legal procedures involved in jury selection.
There are a staggering number of aspects of the USA legal system that involve ethical conflicts of interest, and nothing is being done about those problems. It is not an accident that America is called the "Land of the Lawsuit", but rather a consequence of very serious ethical conflicts of interest (and widespread violations of fundamental rights) that our legal professionals choose not to acknowledge. Intellectual property reform, like tort reform, is not just a question of changing the laws, but also of getting the people running the system to avoid even the appearance of ethical conflict of interest.
Unfortunately, our commercial press seems to be too busy entertaining people or chasing scandals (or both at the same time!) to have time to educate people about these issues, which means nothing is likely to happen anytime soon to correct this situation.
Apple's designs and layout is so minimal, bare and generic it's difficult not to copy it to some extent. It also means they have no claim over something too simple.
Unfortunately, the same argument can be made for their phones.
Do you really think all the lawyers that make money off patents/copyright/etc are delusional? If so, I'd say that in this case they have 300-400 million dollars coming to them to reward them for their delusions.
Most legislators, and most of their staff members that work for and end up actually doing the job of writing the laws are legal professionals. The same is true for the prosecutors who prosecute these laws, and the judges or arbitrators who decide cases. These folks have an enormous ethical conflict of interest with respect to writing or sustaining laws whose nature or form will generate lots of future business for people in that line of work. Until we deal with the ethics issues here, the delusions other folks may have are immaterial.
All of these laws -- patent, copyright, and trademark -- as they are currently implemented, infringe fundamental rights in a bunch of ways. If you have a problem with that in a specific case, then go hire a lawyer. Since the wheels of justice grind slowly, and modern governments have tons of unnecessary bureaucracy, expect that you'll be paying fees for a long time. If you have a problem with that in general, then send a letter to the lawyer representing you in Congress. See the problem here? Until society decides to take on the issue of ethical conflicts of interest in the legal profession, this sort of nonsense will continue to happen.
In a free society, respect is something that must be earned. In a free society, we as individuals have a right to require that actions, to qualify for consideration in earning our respect, must be personally observed by us or by those in the close circle of people personally known to and trusted by any given individual. An uniform does not qualify a person to earn our respect. Nor does wealth, a degree, a job, a title, or a position.
This is the big difference between a free society and a society that has inheritance by birth, one where nobles can require that others demonstrate respect towards them as a result of an accident of birth.
While respect must be earned, a minimal level of courtesy towards other people is an obligation for all civilized human beings, at least until others demonstrate by their actions that they are worthy of our contempt, such as by violating fundamental rights. Once people demonstrate that they are worthy of our contempt, being free to express that contempt is itself a fundamental right.
Matters are necessarily different in the armed forces.
I suppose that being courteous could be considered showing a minimal level of respect towards others. Any respect that is granted beyond that minimum, however, must be earned.
I'm not sure that the issue is that most courts are stupid. Doubtless some of them are: there will be stupid people in any class, profession, or way of life. The problem with bad decisions is more likely to be related to the ethics concept known as "conflict of interest".
Legal professionals write, defend, prosecute, and judge most of the laws in any given legal system. The ones working as judges also get to create or apply precedents or create court orders in a manner that can, in practice, substantially alter the written laws either in whole or in part. As a result, legal systems tend to get complex, confusing, even contradictory with the passage of time.
Citizens that can't understand their legal system will necessarily need to hire a legal professional sooner or later, so this state of affairs can be highly beneficial to legal professionals. In some legal systems, this situation has gotten so bad that even legal professionals must specialize, which means that no ordinary citizen can hope to understand the legal system, a disastrous state of affairs for the society in which this occurs.
Hence, legal professionals have massive ethical conflicts of interest with respect to the nature and form of the laws, with respect to the orders that courts issue, with respect to the decisions that judges make, and so on.
Bad decisions, especially decisions that make the legal system complex or contradictory, or violate some sort of fundamental right, or allow the legal system to interfere with conduct that a rational society would consider reasonable, are a natural consequence of this ethical conflict of interest.
Given that natural language is ambiguous, and artificial languages are too hard to use for most situations, there will always be a few problems with ANY legal system human beings can create. Or, putting this in other words, we can never achieve perfection.
Some legal systems have far more than just a few problems away from perfection: instead they are riddled with bad laws, precedents, practices, procedures, bureaucracy, executive and court orders, etc... and lots of bad judicial decisions will necessarily follow from this state of affairs. That situation is avoidable for a society, but it does require considerable effort on the part of society.
In a sense, legal systems tend to develop entropy (i.e. chaos) over time, and only the application of energy from outside the system can reverse this. As more and more problems accumulate in a given legal system, the problems can develop a form of inertia and be very hard to reverse, especially as many of the people who have been involved in the system for a long time will have a big stake in the continuance of that system.
When bad decisions occur, it's usually not stupidity we're seeing, rather what we're more likely to be observing is the inability of the parties involved to understand and act according to the ethical requirements of their jobs.
Any group of two or more human beings will have politics.
For example, when one party in a close relationship wants to do something, and the other decides to do it to keep that person happy, a decision has just been made involving politics within the scope of that relationship.
Exposure to decisions being made on the basis of political considerations, or participating in such decisions, is a part of everyday life for the vast majority of human beings, whether they realize it or not. Politics is not just something that happens at the national level or involving government.
When decisions are made by corporate executives, in many cases it will not be clear how a decision should be made, and different alternatives can be presented in such a manner as to seem valid. Political considerations can and often do play a significant role in choosing which of several alternatives to pursue (one of the bigger mistakes executives can make when they present decisions to their employees is to forget that employees, too, are aware of this).
It is certainly true that communist powers have made enormous economic blunders, but it is far better to view those mistakes as involving misguided thinking than to attempt to explain these mistakes as resulting from "political considerations". Poor decisions can result from fanaticism or ideology trumping logic (something that is still common in today's world). Poor decisions can also reflect the difficulty of making good decisions when the available measurement tools are poor and there is a lot of potentially misleading information, something that is true for social science in general and is especially true when trying to run a large economy. In this situation, even believing that government or other large organizations should attempt to exert tight control over economic matters will be misguided. Both problems applied to the Soviet Union. It was doomed from the start, and to last as long as they did, the Communists had to rely on things that only police states can get away with, such as starving their own people (i.e. exporting grain when their own people didn't have enough to eat in order to pay for weapons) and using slave labor (i.e. working people to death in the gold mines). See Viktor Suvorov's book on Stalin and WWII for some the details on this...
It is worth nothing that the government of the USA did surprisingly well controlling or guiding industrial production during WWII, which could be considered a form of "command economy", but that was really a special case with lots of favorable considerations. There is no reason to suppose that command economies will ever be practical over the long term at any large scale. Even in the USA WWII example, many good decisions were made by individuals or as a result of individual initiative and contrary to official policy: this was able to happen because the control imposed by the USA government was sufficiently flexible and limited such as to allow individuals to make a difference.
A lot of good information here. Thank you for providing it.
While we are on the subject of things actually in the Constitution, I have found nothing there that authorizes the abuse of slaves, allows children to be enslaved, or makes slavery a function of race / skin color / ethnicity / whatever. Also, I have found nothing that authorizes the importation of slaves. The word "slave" doesn't even exist in the Constitution. All that is actually present is the notice that 3/5 of persons not free is counted towards the number of delegates a state gets.
If follows, therefore, that many of the abuses associated in the public mind with the slave system existed not as a consequence of what was actually written in the Constitution, but rather resulted from decisions made by legal professionals in certain regions of the country. What is allowed by law in any society is enormously shaped (often overly so) by what the legal professionals in that society decide to allow. Working as legislators or on legislative staffs the legal professional will often end up writing the laws, then working as prosecutors they choose how (and whether) to prosecute the laws, and finally working as judges they decide whether or not those laws are legitimate.
What is actually said in the Constitution regarding slavery is far less than those "kool kids" bashing the Founding Fathers would have us believe.
While slavery in itself must be viewed as wrong from a modern perspective, it was quite common in the ancient world (both East and West) and few of the famous philosophers and thinkers from those eras stated any objection to it. After all, something had to be done with defeated enemies, and slavery was one alternative to simply killing them outright. The "democracy" of Athens (which was nothing of the sort envisioned by most people today) relied on slave labor, working under hideous conditions in the silver mines.
Given this history, while disappointing, it should not be a huge surprise that nothing was done in the Constitution to stop slavery: it was simply too radical a break with the past. There were certainly those amongst the Founding Fathers that opposed it. For example, in his book Democracy Reborn, pp. 8, Garrett Epps provides the following quote from a speech at the Constitutional Convention (based upon Madison's notes):
"Morris never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of Heaven on the States where it prevailed. States that relied on slavery, he said, were poor, unhappy, barren, ignorant, and uneducated... Upon what principle is it that the slaves shall be computed in the representation?... That proposal comes to this: that an inhabitant of Georgia and South Carolina who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Government instituted for the protection of the rights of mankind than a Citizen of Pennsylvania or New Jersey who views with a laudable horror, so nefarious a practice."
If the legal professionals in the slave states had possessed a greater sense of integrity, they could have worked from the things that weren't stated in the Constitution (and had been stated elsewhere) to gradually remove slavery. After all: don't allow children to be enslaved, block the import of new slaves, and soon you have no more slaves. They chose otherwise. After the civil war, they made very similar decisions with respect to the absurd segregation laws (compensation for which is still owed to those who were wronged, as some of those people are still alive).
If there is a lesson here, it is that "Eternal Vigilance is the Price of Liberty" does not just apply to keeping an eye on political figures and the government, but also to keeping an eye on legal professionals and the legal system, a point that seems to elude many people.
Forcing people to either pay for health insurance or pay a tax seems an unwarranted use of government power for any nation that wishes to view itself as anything resembling a free nation, aside from issues specific to the legal structure and history of the USA.
The government could instead require that people who do not wish to pay for health insurance regularly put some of their income into a fund they own but that they can only use for health care.
Of course, a government that is hideously in debt looks rather foolish insisting that its citizens save for their future or have cash on hand available for future expenses.
There's quite a bit more to this story. At the battle that started at Concord, a militia force caused the "trained army" to retreat in disarray. At the battle of Breed's (Bunker) Hill, a militia force caused very heavy casualties to the "trained army" soldiers opposing them. While the colonials lost the battle, the casualties the the British took would not have been sustainable by any army over the long run. Next, Ethan Allen and his Green Mountain Boys, another group of "guys with muskets", defeated the "trained army" soldiers defending Fort Ticonderoga. The guns captured at Ticonderoga would in turn be used to free Boston, with the aid of Washington's troops (who were still far more of a militia than a trained army at that point: the real training process didn't start until much later). Next, the important naval action on Lake Champlain (Valcour Island) was not really an action involving a "professional" navy, since we didn't have one at that point! Finally, there were MANY smaller incidents where militias held off raiding or scouting forces, and / or aided the main effort in numerous ways. None of this is to say that the militia efforts won the war, but they certainly played an important role on many occasions.
A professional infantry unit that a) has the right equipment and training, b) is used properly and not hindered by politics, and c) has good morale and belief in its mission, is certainly going to be capable of defeating many times its own numbers when the opposition consists of poorly trained troops. "Poorly trained" is a pretty fair description of the average militia in most settings or in most cultures -- I wouldn't want to extend this to, for example, the Swiss, or the Norwegians where the "militia" is a very different animal (from what I have been told).
The key point here is that there can be many real-world considerations that limit the theoretical effectiveness of a professional military unit, just as there were limits on what the British were able to do during the American Revolution.
A good example of a militia force being effective against a trained army in more modern times might be an incident that occurred during World War II: the members of a Norwegian rifle club held off a German infantry force that was attempting to capture the Norwegian Royal Family. The German troops were paratroopers, elite infantry by any standard, but operating without the support of heavy equipment (which was delayed due to the sinking of the Blucher by the "obsolete" coast defenses of Oslo, a point that shows one doesn't need modern equipment to have a big impact on military events). The Norwegians were defending a pass that the Germans had to get through, and were under the command of a regular military officer. The Germans made repeated attacks and were repulsed: they never did succeed in capturing the Norwegian government, which escaped to England. If memory serves me correctly, you'll find a (very brief) discussion of this incident in Kersaudy's book "Norway 1940". Perhaps some Slashdot readers from other countries can provide more details...
James Madison specifically wrote the Bill of Rights as an open-ended document. That's why the 9th Amendment provides for rights "retained by the people" and the 10th Amendment provides for rights "reserved to the people". An extremely strong right to privacy would certainly be the sort of thing he intended to protect, thus the fact that the word "privacy" is not explicitly stated in the Constitution is irrelevant!
A major problem that we face as a society in getting these sorts of rights recognized is that legal professionals, both as individuals and as a class in society, have major ethical conflicts of interest in doing so. A scary legal system that infringes fundamental rights inherently creates a demand for people to hire legal professionals to protect them from the abuses of the legal system...
In practice, ethical conflicts of interest all too often trump both oaths of office and oaths to uphold the law.
Legal professionals, as a class in society, are in a position of ethical conflict of interest with respect to the contents of the legal system.
A complex, confusing, or contradictory legal system (or even one that just seems to have or is perceived to have these qualities) creates an artificial demand for the services of legal professionals.
Most legislators, most legislative staff members, all judges, all defense attorneys, and all prosecuting attorneys are legal professionals.
Hence, effectively the people writing the laws, and the people enforcing those laws, are all in a position to benefit -- at least in the long term -- by issuing orders, or creating laws, rules, principles, and/or precedents that make the legal system complex, confusing, and/or contradictory.
Any principal of law that allows government officials to violate fundamental rights without penalty is equivalent to saying "rights are important but actually they aren't" -- a contradiction.
The fact that something has been in the legal system for hundreds of years does not make it legitimate. Hundreds of years of legal history may largely consist of hundreds of years of bad decisions and substantial amounts of injustice-enforced-by-law, resulting from conflicts of interest both on the part of the parties making and those enforcing the rules.
There are very good reasons why James Madison made the Bill of Rights an open-ended document (by means of the 9th and 10th Amendments, rights retained by and reserved to the people), a point that legal professionals who swear oaths to uphold the Bill of Rights might want to remember. Madison himself successfully fought the state of Virginia in the years prior to the Founding when it attempted to illegally tax certain religions in violation of Virginia's Bill of Rights: he was certainly very aware (as were the people who eventually elected him to Congress) of the need to be able to take on government at any level when it acts contrary to fundamental rights.
Your point that it is inappropriate to associate fair use with infringement is well taken. The legal procedure that seems to be followed in these matters in the USA -- i.e. that one must admit infringement to argue fair use -- has never made much sense to me. I agree entirely that a word that implies (or could potentially imply) wrongdoing should never have to be used as a precursor to assert a right.
I am pleased to hear that Hungary has sensible policies with respect to making reasonable copies: hopefully that will be able to continue and more countries will follow this example.
In the case of "commit", I was thinking along the lines of some of the definitions of commit that I'm more familiar with. For example, here are some from Wiktionary:
Definition: "To do; to perpetrate, as a crime, sin, or fault."
Example: Thou shalt not commit adultery. Exodus xx. 14. Definition: "To commit an offence; especially, to fornicate."
Example: Commit not with man's sworn spouse. -Shakespeare
Given the current bone-headed legal procedure of requiring that one admit infringement before one can argue fair use, if one has "committed" an infringement then by these definitions it almost follows that one has engaged in a crime, sin, fault or offense. That awful implication is what I'd like to avoid.
The concept of "random acts of kindness" seems to go beyond any of the definitions of "commit" current given by Wictionary, but it's definitely valid English usage in today's world -- one that hadn't occurred to me when I wrote the previous post -- so it appears the meaning of this word has broadened. Thank you for pointing that out.
Some of the definitions given for "infringe" are just as bad as the above ones for "commit". For example, at dictionary com: Infringe: "to commit a breach or infraction of; violate or transgress"
The act of making reasonable copies (something good) shouldn't be considered something that involves any sort of violation or transgression (something bad).
I'm not sure there is a good verb for describing "infringement" other than "infringe".
The fact that none of these words really make sense with respect to how they are used in USA copyright law (or, at a minimum, carry unfortunate connotations) is symptomatic of just how badly written that law is. This is why I deliberately avoided the use of the terms "copyright" or "intellectual property" in the sentence "The big problem modern societies face with respect to creative works stored on or in some form of media is deciding when and where it should be legal to copy this media". Both "copyright" and "intellectual property" carry significant legal and semantic baggage that may actually get in the way of coming up with a useful solution to the fundamental issue.
Your statement "Copyright infringement is a crime, no matter the way of committing it" is invalid.
To the contrary, in the USA, all exercises of "fair use" rights are in fact copyright infringement, and as "rights" these are of course permitted by law. As a matter of legal procedure, it is typically necessary to note that an infringement has occurred before one may argue that the infringement was in fact of the type permitted by law. Doing something that can reasonably be considered fair use rights is not only NOT criminal, but is in fact expressly permitted by US Copyright law (which in turn reflects more fundamental rights "retained by the people" under the 9th Amendment and "reserved to the people" under the 10th Amendment).
For that matter, any form of reasonable conduct, not just those relating to copyright, will be respected as a fundamental right arising under the 9th/10th Amendments in any jurisdiction where the Bill of Rights means something (arguably, such places are getting harder and harder to find).
In any event, it is incorrect to state that copyright infringement is a crime. SOME forms of copyright infringement are criminal in some countries. The big problem modern societies face with respect to creative works stored on or in some form of media is deciding when and where it should be legal to copy this media. That is really what this discussion is all about.
Incidentally, you probably don't want the legal professionals having the final say in this matter, as there are conflicts of interest that affect the whole legal profession which could get in the way of a long term resolution that is best for society. Or in other words, a government of the people, by the people, for the people should not be a government of the lawyer, by the lawyer, and for the lawyer.
It is also incorrect use of the English language to refer to copyright infringement as something one "commits", as in "no matter the way of committing it". The verb "commits" implies a crime, at least in typical usage in matters relating to law.
It is interesting to note that some businesses are putting notices equating or implying copyright infringement is a crime, or even referring to it as piracy, on "unskippable" portions of DVDs. There is no doubt that the legal professionals working for such organizations know that this involves providing incorrect and misleading information to the public, which in turn raises questions about their ethical integrity. Making false statements regarding the legal system (essentially propaganda) makes the laws even more complex and confusing than they already are, which naturally increases the demand for the services of legal professionals to interpret those laws for a confused public, and thus there is an ethical conflict of interest here.
Stalin wasn't just paranoid, like Hitler, he was actively evil.
Viktor Suvorov's book "Chief Culprit: Stalin's Grand Design to Start World War II" makes a lot of interesting arguments supporting the "destined to be an antagonist" point you make, but he goes further and argues that the Communists were setting up to take over Europe long before WWII started.
For example, he argues that the Communists were trying to set themselves up to take control of Europe even before the end of World War I, by deliberately giving Imperial Germany the resources needed to stretch the war out further and weaken everyone else. He also argues that they attempted to use the Spanish Civil War to ignite another World War, and having failed there, succeeded a short while later in Poland.
One particularly interesting point he makes was that (putting the argument in my own words here) Hitler's decision to stop the Battle of Britain and to invade Russia was made as a result of Hitler finally "doing the math" and figuring out just what Comrade Joe was setting up for him on the other side of the border, right next to the critical oil resources that Germany was completely dependent on.
Lots and lots of points raised in this book, hopefully professional historians will be able to examine these issues more thoroughly now that Russia is more open.
There are lots of deserts on earth, where non-semiconductor-based solar power can be had relatively cheaply. Presumably there are also potential hydro-electric sources that are untapped due to lack of population in the area of the source. The same is probably true of some high wind regions, and perhaps some geothermal sources.
If my understanding is correct, it only makes sense to build large power generators in regions where there are lots of people, due to the difficulty of "transporting" the electricity long distances (presumably resistive loss in the cables is the primary issue for running very long cables).
Why not generate the electricity needed to make the solar cells in one of these currently unused regions, and do as much of the processing as practical close to the generator? This would convert an "unholy" amount of electricity into an "unnoticeable" amount of electricity: it wouldn't matter how much was actually being used since the power source generating it wouldn't require the usual fuels, and thus the whole setup should have far less environmental impact than the numbers given above seem to suggest.
To the contrary, it is very much relevant what we believe is fair and just, at least in the USA.
James Madison wrote the Bill of Rights to be an open-ended document. The 9th Amendment provides for rights retained by the people, the 10th Amendment provides for rights reserved to the people. This was done to address the dual issues (raised by the Anti-Federalists, and likely to kill ratification of the Constitution) that a) there was no Bill of Rights and b) that any Bill of Rights would necessarily be incomplete.
If any action taken at any level or in any branch of government, is violating a right that can reasonably be asserted as a right "retained by the people" or "reserved to the people", that action is by definition in violation of the Bill of Rights.
In other words, in this Republic, the government has the authority to create laws, but only such laws that are viewed as legitimate by the people are in fact valid and legally binding.
It follows that legal professionals or government officials involved in an action that violates fundamental rights, or those judges who uphold such an action as being legal by refusing to recognize fundamental rights, are violating their sworn oaths to uphold the Bill of Rights. Violation of these oaths disqualifies them from holding any position of public trust or responsibility, and also invalidates any actions or decisions they participate in.
As a class within society, legal professionals are in a position of conflict of interest with respect to recognizing rights arising under these provisions of the Bill of Rights. A complex, confusing, actually or seemingly contradictory legal system creates increased demand for the services of legal professionals, and anything that can serve to reduce the complexity of the legal system is not in their interests.
Rights retained by the people are, in any event, retained "by the people". They are not retained "by the lawyers", or retained "by the government". So it is very much relevant what we the people believe is fair and just (and also ethical), at least to the extent that these characteristics are relevant to fundamental rights.
In this case, the open question seems to be whether one ore more fundamental rights has been violated. Fundamental rights that could reasonably be asserted as rights "retained by the people" might include a) a right to not be subject to any law, practice, procedure, right, order, or precedent that can reasonably be supposed to involve a conflict of interest on the part of legal professionals or of persons working in the government, and b) a right to reasonable conduct under reasonable circumstances, which would certainly include making reasonable design decisions.
Whether or not the concept of design patents is even consistent with these rights is a question that needs serious consideration. Given that legal professionals, as a class in society, are in a position of conflict of interest with respect to recognizing the 9th Amendment in general, and have additional conflicts of interest with respect to the specific issue of design patents, they are not the right people to be answering that question.
If science is boring, then you have chosen to make it boring.
That's actually very common in our society. It is common to hear people joke "that book was so boring it put me to sleep", without realizing that by thinking this way they are shooting themselves in the foot.
There is nothing wrong with watching television, or going to the movies, or playing video games, provided it is done in moderation. However, what happens to large numbers of people is they get so used to being entertained by someone else, with minimal effort on their part, that they either lose or never develop the internal mental skills needed to make things entertaining. These people depend almost completely on external sources for their entertainment, instead of learning to draw pleasure in the learning process, and in the material being learned, from within themselves.
The more hours in a given week a person spends depending upon Hollywood, or ESPN, or video games for their entertainment, the harder it is to switch over to being able to derive entertainment from within. It's a lot like a drug dependency.
No educational institution in the country even begins to provide sufficient information for people to understand what is actually going on in their world, no matter what degrees a person has. Education provides a foundation for lifetime learning, nothing more.
People that understand this will train themselves to be able to enjoy non-fiction media such as books or video presentations. They will learn to enjoy this material, and they will find ways to MAKE it interesting or entertaining, and thus not "boring".
The mental processes involved are not much different from those required by persons who do the various arts, such as playing an instrument, or dance, or yoga, or the martial arts. Over the long term, an artist will spend many hours learning and maintaining the skills required for their art. Do you think it is possible to spend the huge amounts of time required to learn (and maintain) skill at an art without learning to generally enjoy the process?
One does not need to have the legendary discipline of a Marine Corps drill instructor to develop these mental skills, nor does one need to be an Einstein at time management. It is simply a matter of building skill in small doses, and thus slowly, gently -- over the long term -- building the internal habits and mental skills need to support enjoying the learning process. One learns to make a subject -- any subject that matters to the individual -- interesting, allowing one to derive entertainment from within, rather than being dependent upon external sources of entertainment.
Unfortunately, it is a rare teacher in our schools that thinks to teach this to their students, which means it is one of those things you have to figure out for yourself after leaving school.
There may be laws written to this effect. I have no personal knowledge of that. However, such laws would certainly violate numerous rights that can reasonably be asserted under the 9th Amendment (Rights retained by the people) and the 10th Amendment (Rights reserved to the people).
Any persons writing or enforcing such patently illegal laws are immediately and permanently disqualified from holding any position of public trust or authority, or from engaging in the practice of law, as a result of violating their oaths to uphold the law. In a sense, the situation is similar to that in Nazi Germany: if laws or precedents or court rulings that violate fundamental human rights are created, then persons in the government and legal professionals have an individual, personal, and immediate responsibility to refuse to recognize or enforce such laws, and to remove the people involved in creating those laws from the system. Those who choose to do otherwise demonstrate their lack of fitness to hold such positions.
James Madison wrote the Bill of Rights to be an open-ended document. The 9th Amendment provides for rights retained by the people, the 10th Amendment provides for rights reserved to the people. This was done to address the dual issues (raised by the Anti-Federalists, and likely to kill ratification of the Constitution) that a) there was no Bill of Rights and b) that any Bill of Rights would necessarily be incomplete.
The Nuremberg precedent can be considered to exist within US law under the scope of these amendments, and applies not just to military personnel, but to all members of government and all legal professionals. Further, it applies not just to military orders, but to laws, precedents, orders, and rulings of all kinds.
A fundamental human right is the right not to have one's time wasted, human life being finite and all too short, which implies a right to not have one's assets (which take time to accumulate) or one's person seized without recourse.
There are many illegal laws. There are also mechanisms within the legal system to fight such laws. Laws that violate fundamental rights can only continue to exist if legal professionals and other government officials knowingly and blatantly violate their oaths and responsibilities. The only alternative to using such mechanisms is revolution, which is almost always the less desirable choice. Still, if there are illegal laws such as you describe, then start making a list. It would be a good beginning to a new Declaration of Independence, should the unfortunate day come when one is needed.
It is not clear that there is any legitimacy to the system of "design patents".
Laws are created -- mostly -- by legal professionals, who have a huge conflict of interest with respect to the size and complexity of the legal system. Once the laws are created, then legal professionals then argue and judge cases arising under them (sometimes the same people involved in the creation of the original laws!).
Having unnecessary, complex, or confusing laws in the legal system creates lots of future (artificial) demand for the services of legal professionals as a class in society, which in turn provides increased job security and the likelihood of greater pay, and the existence of such laws is indicative of widespread problems with ethics in that profession.
Similarly, having unneeded bureaucracy also creates an artificial demand for the services of legal professionals, who get paid to help people and organizations navigate that bureaucracy.
A fundamental right could be asserted to the effect that consumers not be subject to fraud in business transactions. From such a right, it would follow that a company can not fraudulently attempt to market products that directly masquerade as another company's products, and some simple, straightforward law to that effect could be created to enforce such a right. Such a law would be similar to laws preventing counterfeiting of money.
There is no need for a system of "design patents".
A law like that would probably also make unnecessary the complex and bureaucratic system of trademark law (and would be less infringing on the 1st Amendment).
If the product is sold in Samsung packaging and the stuff inside the package doesn't carry the Apple logo, then no reasonable person would suppose a fraud has been committed.
We could have a simple, basic, and easy to understand law to govern business fraud.
If we instead have a complex system of design patent law and we also need a bureaucracy to support that system, then that raises very serious questions regarding the ethics of legal professionals, as a class in society.
James Madison gave the US an open-ended Bill of Rights to prevent excessive government, and excessive law is certainly a form of excessive government, a point that those who swear oaths to uphold the Bill of Rights might want to remember.
Slashdot Mirror
Required licensing schemes are not in the interests of legal professionals. Requiring people to get contracts (i.e. the current patent system) creates more business for the legal profession. In ethics terms, this is known as conflict of interest.
Most of our legislators are legal professionals, as are their staff members who end up actually writing the laws, and as are the judges, the prosecutors, the defense attorneys, and so forth. Similarly, legal professionals are almost always in highly influential (usually executive) positions on the boards of corporations that make large donations to political campaigns. Also, they frequently work as lobbiests and can also lobby as groups by means of bar associations. Don't forget the people working as arbitrators, either. In other words, legal professionals can exert an enormous influence on the nature and form of the legal system.
Getting these people to even acknowledge conflicts of interest of this kind is like pulling teeth, let alone getting anything done about them. What is the likelihood that these people would be interested in changing the current system to one that didn't further their interests?
There are a lot of reasons to suppose that ethical conflict of interest on the part of legal professionals is as a cancer that is slowly killing our legal system, our government, and our nation.
Aside from that minor issue (ok, probably a show-stopper, not a minor issue), this is a great idea.
There are some complications, however. For example, how would one track down the use of patents in closed source software in situations where a software vender is using somebody else's idea but not paying for it? Also, how does one ensure that the human beings coming up with ideas get rewarded for them, and not just their employers? How do we prevent stupid and obvious patents from being issued? How do we deal with situations where infringement is innocent? How do we make sure that the patent system does not involve violations of fundamental rights, such as the right of individuals to not have their time wasted -- the human span being finite and far too short -- by the legal system, by legal professionals, by businesses, or by the government?
Of course, all of these issues could be considered to be issues with the existing system, and not just your idea. Still, it seems that, if we are going to have a hope of fixing the system, these matters would need to be considered.
For example, not all patents cover ideas where the use of the patent is easily detectable.
One possibility for dealing with this situation would be to require software companies to provide well documented source code, capable of exactly building their system, to some nuetral third party or parties, and to requires these companies to bank a share of their gross in some account that can not be accessed under ordinary circumstances, as a requirement for doing business. This would allow for later public review of the software to ensure that no patents had been violated by using them without paying for them: a successful review would give the company (and/or the individuals doing the work) the money back. The review would have to occur at some sufficiently late date so as to provide reasonable protection to any trade secrets in the software, but not after such a long time as to provide no incentive to individuals to comply. Some thought would be required to determine how the review might happen. Hopefully it would not require more government ...
Having the new patent law include a mechanism in place to provide a means of doing this sort of public oversight might make people (the honest ones, at least) more comfortable with the idea of required licensing.
Such an approach would also provide for long term public oversight of businesses developing software, which some have argued is a fundamental right.
The decisive carrier battle of WW2, the battle of Midway, was decided by bad doctrine, poor planning, and a hefty dose of luck. This is not being said to in any way denigrate the courage and skill of the people who fought the battle, but rather we must acknowledge that both sides had courage and skill. By themselves, these was not decisive. The failures in doctrine and planning, on the other hand, when combined with luck, were decisive.
During the battle of Midway, the Japanese fighters in the carrier group CAP allowed themselves to get sucked down to low level to go after the US torpedo bombers, failing to keep a high altitude reserve. Under the circumstances that prevailed, the torpedo bombers were a lesser threat: there were many incidents during the war when ships, even large ships such as aircraft carriers, were able to dodge many incoming torpedoes. At that point in time, enemy dive bombers were a far greater threat, given that the Japanese ships were arming a strike and quite vulnerable due to exposed fuel lines and munitions.
This was a failure in fighter doctrine: it was not a failure of knowledge. The Japanese knew that the US Navy had dive bombers, and should have been prepared for them.
The problem for the Japanese was compounded by the fact that the main Japanese fighter could not keep up with the US Dive Bombers once they started into their dives. These fighters were designed to have superior maneuverability, but the light frame required for this both left them unable to keep up with the much heavier dive bombers in their attack dives, and vulnerable to gunfire (even gunfire from bombers, which shot down or drove off Japanese fighters on a surprising number of occasions). This problem allowed the dive bombers to attack the carriers without significant interference from the few fighters that were able to get close to them. Thus, a failure in fighter design (not a matter of knowledge) compounded the failure in doctrine.
It was pure luck that the US dive bombers arrived at all, let alone when they did -- they almost missed the Japanese fleet entirely. No particular ability in placing assets where they needed to be can be demonstrated by an event that resulted from pure luck. The real weapon was not "knowledge": the US dive bombers discovered the Japanese fleet mostly by getting lucky.
The situation was made even worse for the Japanese by the decision to split the fleet (multiple times!) before contact with the enemy. This placed a number of battleships, with their formidable anti-aircraft armament, far away from the critical point in the action. This also placed two entire carriers halfway across the ocean from the battle. Both of these mistakes do support your idea regarding the ability to place assets where they are needed.
The situation may have been further exacerbated by inadequate damage control capabilities on the part of the Japanese. There is some reason to believe that US Navy ships were more able to survive serious hits than Japanese ships during WW2. If true, this was likely a failure in doctrine for the Japanese as well: for whatever reason, they didn't plan as well for taking battle damage.
The US Navy won because it made fewer mistakes, and because it got lucky.
Getting a PhD is not about having more knowledge than other people, it is more about learning how to become an accepted part of a particular research community. Strangely enough, the majority of people who earn PhD's will not do any significant research after finishing their degree: the degree is used instead as an entry point into particular jobs.
Your understanding of what a PhD is may be a bit vague, you might wish to read: http://www.lawhern.org/PhD.htm or http://www.economist.com/node/17723223.
A working engineer might very well be more knowledgable about -- and skilled at -- his or her field than many people with PhDs in that field, as the engineer will typically be getting real world experience in a number of different areas (which helps immensely to strengthen knowledge only touched upon in school or which can't be learned in any school) during the time the PhD student is learning to do research in one particular specialty (much of which ends up being slow, iterative, incremental work building upon the ideas of others). This is not to denigrate what the PhD's do, as they can be responsible for some significant contributions, however, they are far from being the only ones doing that.
Creativity often consists of connecting ideas from different areas in ways one never thought of doing before, and thus being strong in general can actually facilitate creativity versus being over-specialized. It's a breadth versus depth issue.
PhD's do have the advantage that, if they are doing creative work, their names are likely become associated with that work. For other people, the organization that employs them often gets the credit for the work, and a lot of the creative ideas become unpublished trade secrets of companies. The public ends up seeing the products, but has little idea how much creativity went into making them possible.
Thus, your point that a high technology country doesn't need everyone to be at a PhD level to do creative work, even stunning and world shattering work, is quite correct.
While some PhD degrees can give real value to both the person earning the degree and to their employer, there are some hard questions we should probably be asking about the PhD system in general. Given that most people finishing PhD's are not going to be doing research, it is not clear that having this degree so focused on research makes sense. Perhaps a better system would be to have two different types of PhD, one research oriented, and the other focused on other things.
It better not be the case that only their opinions (i.e. the opinions of the Supreme Court) matter, or the USA is in big trouble. If James Madison and other like minded people were prepared to trust the institutions defined by the Constitution -- the Presidency, the Congress, or the Supreme Court -- individually or collectively, there would have been no need to add a Bill of Rights to limit the power of those institutions (and incidentally, also limit the States).
Legal professionals, as a class in society, are in a position of conflict of interest with respect to the nature and form of the legal system. Think about this for a bit and you'll see that that this means members of the Supreme Court are also in a position of conflict of interest, not just with respect to actions taken in their present positions, but also considering decisions made during their entire careers as legal professionals.
It would be extremely foolish to trust the Supreme Court: just look at how slavery was handled for reasons why this is a bad idea. The Constitution, while authorizing the counting of persons not free in population totals, did not, for example, say anything about allowing the children of slaves to be themselves enslaved. It did not authorize the abuse of slaves, either. Various Supreme Courts could have done many things to limit the slave system and chose to do nothing, or worse, chose to permit abuses.
A similar failure happened after the Civil War with the numerous violations of fundamental human rights directed against African-Americans by law in the Southern states, which were also permitted by various Supreme Courts for many decades before finally being stopped.
Also consider the Nuremberg Precedent (which can be asserted in the USA under the 9th Amendment as a right "retained by the people"): if we can expect people to refuse to obey illegal orders from their military superiors, we should also expect people to refuse to obey illegal orders from civil superiors. A court order or precedent, from any court at any level, including the Supreme Court, is only valid when it does not involve the infringement of fundamental rights.
Finally, rights "retained by the people" under the 9th Amendment are by definition retained by the people. They are not retained by the Supreme Court, and an attempt by Supreme Court justices to take this away would be a violation of the judge's oaths to uphold the Bill of Rights. Similar reasoning applies to the 10th Amendment and rights "reserved to the people".
Like duh! The jury is the tribunal of fact, not the tribunal of law (that's what the judge is doing there). The jury is not supposed to reach any conclusion as to the law.
Unfortunately, this viewpoint neglects the fact that legal professionals, as a class in society, have ethical conflicts of interest with respect to the nature and scope of the legal system, and thus reserving decisions on matters of law to legal professionals will sooner or later produce a badly messed up legal system. A country that did that sort of thing might even get a reputation as a "Land of the Lawsuit", not that we know of any countries where that has happened ...
Government of the people, by the people, and for the people should not be government of the lawyer, by the lawyer, and for the lawyer.
A jury, if it is made up with people who have a good level of knowledge about the world they live in, can serve as a check and balance on this ethical conflict of interest. Which may be one reason why few such people end up in juries, and also why governments run by lawyers tax the sale of lifetime learning materials and call it a "consumption" tax, treating the sale of these materials the same as the sale of toys and sporting goods.
Furthermore, in the USA, James Madison gave us a Bill of Rights that provides for rights "retained by the people" (9th Amendment) and "reserved to the people" (10th Amendment). The Bill of Rights does not say that these rights are "retained by the lawyers" and "reserved to the lawyers", or even "retained by the people but only when it is convenient for the lawyers". The existence of these rights necessarily gives members of the people, including persons on a jury, the freedom to decide that the government is violating fundamental rights in passing a particular law. It would be unethical -- and, certainly a violation of their oaths to uphold the Bill of Rights -- for legal professionals to try to prevent this.
There are MANY serious problems with the patent system -- see the position paper by the League for Programming Freedom for a discussion of this -- and any intelligent person serving on a jury should ABSOLUTELY be keeping this in mind when serving in a patent case.
Another right that might be reasonably asserted under the 9th and 10th Amendments would be the right to not have one's time wasted, the human span being finite and far too short. That right was probably violated for the jurors in this case, given that nobody could reasonably expect a decision to be upheld when jurors are being instructed to answer 700 questions, and thus the time of the jurors will probably end up having been wasted. The legal professionals involved at least got paid -- and probably quite well -- for their time. Why is it wrong to steal a portion of a person's life by murdering or kidnapping them, but it isn't wrong to steal a portion of a person's life by forcing them to participate in a trial that will likely prove a complete waste of time?
Beyond a doubt, long term public oversight of government is an essential part of having a free country. This is a necessary consequence of the "of the people, by the people, and for the people" concept. (For that matter, long term oversight of business is also essential, something that far fewer people recognize).
There are some things that can reasonably be kept secret, however, at least for a reasonably limited time.
Consider the example of how much good was done during World War II as a result of the Allies both a) breaking enemy codes and b) turning enemy agents, and how much harm would have been done had this information been revealed. For a more current example, consider the need to keep information on how to build weapons of mass destruction -- whether biological, chemical, or nuclear -- out of the wrong hands. In this case, we might even allow some details to be kept out of the public record permanently.
Going on to another example, privacy rights are fundamental to a free society, and that includes rights to privacy over some information in government databases, which necessarily means that some information must be kept secret by governments. If anything, the situation with privacy rights has gotten worse with the development of the Internet: it is far easier to violate people's privacy, and hence there is more need to be proactive in protecting it. Also, consider the need to protect the identities of people who are working undercover against persons involved in organized crime, fraud, cons, or scams, and similar activities that any rational person would consider harmful to society.
In allowing the government to keep some things secret, for a limited time, it is essential to recognize that security rules can (and inevitably will) be abused. I particularly like the following quote: "Nothing like security rules to cover up mistakes, arrogance, and just plain stupidity" -- from the book "Stark's War" by John G. Hemry, since it describes succinctly what so often happens.
As is true in many other situations involving fundamental rights, some sort of balance must be struck between competing needs, in this case between the right of public oversight and government or business secrets.
A key consideration here, to minimize the abuse of security rules, is that it should not be the legal professionals or the government that are setting the limits on what can be kept secret, and when. In other words, these people may be able to propose the rules, but the people ultimately need to have the final say on whether those rules are appropriate. After all, the behavior of government officials will be limited by these rules, and thus they are in a position of ethical conflict of interest with respect to the nature and scope of the rules.
This is definitely an ethical conflict of interest. There is considerable doubt regarding the legitimacy of the current patent system, which has been described as violating a number of fundamental rights arising under the 9th Amendment (rights retained by the people) and the 10th Amendment (rights reserved to the people). Excessive government, excessive law, excessive bureaucracy, and ethical conflicts on interest (on the part of members of government or of legal professionals) all constitute violations of fundamental rights the people of any free country necessarily have, and all of these can be found in the current patent system.
A patent holder will necessarily have a stake in the current patent system, and thus has a stake in broadly supporting other people's patents granted under the existing system. Removing such people from the jury is fundamentally a matter of ethics and as such supersedes ordinary legal procedures involved in jury selection.
There are a staggering number of aspects of the USA legal system that involve ethical conflicts of interest, and nothing is being done about those problems. It is not an accident that America is called the "Land of the Lawsuit", but rather a consequence of very serious ethical conflicts of interest (and widespread violations of fundamental rights) that our legal professionals choose not to acknowledge. Intellectual property reform, like tort reform, is not just a question of changing the laws, but also of getting the people running the system to avoid even the appearance of ethical conflict of interest.
Unfortunately, our commercial press seems to be too busy entertaining people or chasing scandals (or both at the same time!) to have time to educate people about these issues, which means nothing is likely to happen anytime soon to correct this situation.
Apple's designs and layout is so minimal, bare and generic it's difficult not to copy it to some extent. It also means they have no claim over something too simple.
Unfortunately, the same argument can be made for their phones.
Do you really think all the lawyers that make money off patents/copyright/etc are delusional? If so, I'd say that in this case they have 300-400 million dollars coming to them to reward them for their delusions.
Most legislators, and most of their staff members that work for and end up actually doing the job of writing the laws are legal professionals. The same is true for the prosecutors who prosecute these laws, and the judges or arbitrators who decide cases. These folks have an enormous ethical conflict of interest with respect to writing or sustaining laws whose nature or form will generate lots of future business for people in that line of work. Until we deal with the ethics issues here, the delusions other folks may have are immaterial.
All of these laws -- patent, copyright, and trademark -- as they are currently implemented, infringe fundamental rights in a bunch of ways. If you have a problem with that in a specific case, then go hire a lawyer. Since the wheels of justice grind slowly, and modern governments have tons of unnecessary bureaucracy, expect that you'll be paying fees for a long time. If you have a problem with that in general, then send a letter to the lawyer representing you in Congress. See the problem here? Until society decides to take on the issue of ethical conflicts of interest in the legal profession, this sort of nonsense will continue to happen.
In a free society, respect is something that must be earned. In a free society, we as individuals have a right to require that actions, to qualify for consideration in earning our respect, must be personally observed by us or by those in the close circle of people personally known to and trusted by any given individual. An uniform does not qualify a person to earn our respect. Nor does wealth, a degree, a job, a title, or a position.
This is the big difference between a free society and a society that has inheritance by birth, one where nobles can require that others demonstrate respect towards them as a result of an accident of birth.
While respect must be earned, a minimal level of courtesy towards other people is an obligation for all civilized human beings, at least until others demonstrate by their actions that they are worthy of our contempt, such as by violating fundamental rights. Once people demonstrate that they are worthy of our contempt, being free to express that contempt is itself a fundamental right.
Matters are necessarily different in the armed forces.
I suppose that being courteous could be considered showing a minimal level of respect towards others. Any respect that is granted beyond that minimum, however, must be earned.
I'm not sure that the issue is that most courts are stupid. Doubtless some of them are: there will be stupid people in any class, profession, or way of life. The problem with bad decisions is more likely to be related to the ethics concept known as "conflict of interest".
Legal professionals write, defend, prosecute, and judge most of the laws in any given legal system. The ones working as judges also get to create or apply precedents or create court orders in a manner that can, in practice, substantially alter the written laws either in whole or in part. As a result, legal systems tend to get complex, confusing, even contradictory with the passage of time.
Citizens that can't understand their legal system will necessarily need to hire a legal professional sooner or later, so this state of affairs can be highly beneficial to legal professionals. In some legal systems, this situation has gotten so bad that even legal professionals must specialize, which means that no ordinary citizen can hope to understand the legal system, a disastrous state of affairs for the society in which this occurs.
Hence, legal professionals have massive ethical conflicts of interest with respect to the nature and form of the laws, with respect to the orders that courts issue, with respect to the decisions that judges make, and so on.
Bad decisions, especially decisions that make the legal system complex or contradictory, or violate some sort of fundamental right, or allow the legal system to interfere with conduct that a rational society would consider reasonable, are a natural consequence of this ethical conflict of interest.
Given that natural language is ambiguous, and artificial languages are too hard to use for most situations, there will always be a few problems with ANY legal system human beings can create. Or, putting this in other words, we can never achieve perfection.
Some legal systems have far more than just a few problems away from perfection: instead they are riddled with bad laws, precedents, practices, procedures, bureaucracy, executive and court orders, etc ... and lots of bad judicial decisions will necessarily follow from this state of affairs. That situation is avoidable for a society, but it does require considerable effort on the part of society.
In a sense, legal systems tend to develop entropy (i.e. chaos) over time, and only the application of energy from outside the system can reverse this. As more and more problems accumulate in a given legal system, the problems can develop a form of inertia and be very hard to reverse, especially as many of the people who have been involved in the system for a long time will have a big stake in the continuance of that system.
When bad decisions occur, it's usually not stupidity we're seeing, rather what we're more likely to be observing is the inability of the parties involved to understand and act according to the ethical requirements of their jobs.
Any group of two or more human beings will have politics.
For example, when one party in a close relationship wants to do something, and the other decides to do it to keep that person happy, a decision has just been made involving politics within the scope of that relationship.
Exposure to decisions being made on the basis of political considerations, or participating in such decisions, is a part of everyday life for the vast majority of human beings, whether they realize it or not. Politics is not just something that happens at the national level or involving government.
When decisions are made by corporate executives, in many cases it will not be clear how a decision should be made, and different alternatives can be presented in such a manner as to seem valid. Political considerations can and often do play a significant role in choosing which of several alternatives to pursue (one of the bigger mistakes executives can make when they present decisions to their employees is to forget that employees, too, are aware of this).
It is certainly true that communist powers have made enormous economic blunders, but it is far better to view those mistakes as involving misguided thinking than to attempt to explain these mistakes as resulting from "political considerations". Poor decisions can result from fanaticism or ideology trumping logic (something that is still common in today's world). Poor decisions can also reflect the difficulty of making good decisions when the available measurement tools are poor and there is a lot of potentially misleading information, something that is true for social science in general and is especially true when trying to run a large economy. In this situation, even believing that government or other large organizations should attempt to exert tight control over economic matters will be misguided. Both problems applied to the Soviet Union. It was doomed from the start, and to last as long as they did, the Communists had to rely on things that only police states can get away with, such as starving their own people (i.e. exporting grain when their own people didn't have enough to eat in order to pay for weapons) and using slave labor (i.e. working people to death in the gold mines). See Viktor Suvorov's book on Stalin and WWII for some the details on this ...
It is worth nothing that the government of the USA did surprisingly well controlling or guiding industrial production during WWII, which could be considered a form of "command economy", but that was really a special case with lots of favorable considerations. There is no reason to suppose that command economies will ever be practical over the long term at any large scale. Even in the USA WWII example, many good decisions were made by individuals or as a result of individual initiative and contrary to official policy: this was able to happen because the control imposed by the USA government was sufficiently flexible and limited such as to allow individuals to make a difference.
A lot of good information here. Thank you for providing it.
While we are on the subject of things actually in the Constitution, I have found nothing there that authorizes the abuse of slaves, allows children to be enslaved, or makes slavery a function of race / skin color / ethnicity / whatever. Also, I have found nothing that authorizes the importation of slaves. The word "slave" doesn't even exist in the Constitution. All that is actually present is the notice that 3/5 of persons not free is counted towards the number of delegates a state gets.
If follows, therefore, that many of the abuses associated in the public mind with the slave system existed not as a consequence of what was actually written in the Constitution, but rather resulted from decisions made by legal professionals in certain regions of the country. What is allowed by law in any society is enormously shaped (often overly so) by what the legal professionals in that society decide to allow. Working as legislators or on legislative staffs the legal professional will often end up writing the laws, then working as prosecutors they choose how (and whether) to prosecute the laws, and finally working as judges they decide whether or not those laws are legitimate.
What is actually said in the Constitution regarding slavery is far less than those "kool kids" bashing the Founding Fathers would have us believe.
While slavery in itself must be viewed as wrong from a modern perspective, it was quite common in the ancient world (both East and West) and few of the famous philosophers and thinkers from those eras stated any objection to it. After all, something had to be done with defeated enemies, and slavery was one alternative to simply killing them outright. The "democracy" of Athens (which was nothing of the sort envisioned by most people today) relied on slave labor, working under hideous conditions in the silver mines.
Given this history, while disappointing, it should not be a huge surprise that nothing was done in the Constitution to stop slavery: it was simply too radical a break with the past. There were certainly those amongst the Founding Fathers that opposed it. For example, in his book Democracy Reborn, pp. 8, Garrett Epps provides the following quote from a speech at the Constitutional Convention (based upon Madison's notes):
"Morris never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of Heaven on the States where it prevailed. States that relied on slavery, he said, were poor, unhappy, barren, ignorant, and uneducated... Upon what principle is it that the slaves shall be computed in the representation? ... That proposal comes to this: that an inhabitant of Georgia and South Carolina who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Government instituted for the protection of the rights of mankind than a Citizen of Pennsylvania or New Jersey who views with a laudable horror, so nefarious a practice."
If the legal professionals in the slave states had possessed a greater sense of integrity, they could have worked from the things that weren't stated in the Constitution (and had been stated elsewhere) to gradually remove slavery. After all: don't allow children to be enslaved, block the import of new slaves, and soon you have no more slaves. They chose otherwise. After the civil war, they made very similar decisions with respect to the absurd segregation laws (compensation for which is still owed to those who were wronged, as some of those people are still alive).
If there is a lesson here, it is that "Eternal Vigilance is the Price of Liberty" does not just apply to keeping an eye on political figures and the government, but also to keeping an eye on legal professionals and the legal system, a point that seems to elude many people.
Forcing people to either pay for health insurance or pay a tax seems an unwarranted use of government power for any nation that wishes to view itself as anything resembling a free nation, aside from issues specific to the legal structure and history of the USA.
The government could instead require that people who do not wish to pay for health insurance regularly put some of their income into a fund they own but that they can only use for health care.
Of course, a government that is hideously in debt looks rather foolish insisting that its citizens save for their future or have cash on hand available for future expenses.
There's quite a bit more to this story. At the battle that started at Concord, a militia force caused the "trained army" to retreat in disarray. At the battle of Breed's (Bunker) Hill, a militia force caused very heavy casualties to the "trained army" soldiers opposing them. While the colonials lost the battle, the casualties the the British took would not have been sustainable by any army over the long run. Next, Ethan Allen and his Green Mountain Boys, another group of "guys with muskets", defeated the "trained army" soldiers defending Fort Ticonderoga. The guns captured at Ticonderoga would in turn be used to free Boston, with the aid of Washington's troops (who were still far more of a militia than a trained army at that point: the real training process didn't start until much later). Next, the important naval action on Lake Champlain (Valcour Island) was not really an action involving a "professional" navy, since we didn't have one at that point! Finally, there were MANY smaller incidents where militias held off raiding or scouting forces, and / or aided the main effort in numerous ways. None of this is to say that the militia efforts won the war, but they certainly played an important role on many occasions.
A professional infantry unit that a) has the right equipment and training, b) is used properly and not hindered by politics, and c) has good morale and belief in its mission, is certainly going to be capable of defeating many times its own numbers when the opposition consists of poorly trained troops. "Poorly trained" is a pretty fair description of the average militia in most settings or in most cultures -- I wouldn't want to extend this to, for example, the Swiss, or the Norwegians where the "militia" is a very different animal (from what I have been told).
The key point here is that there can be many real-world considerations that limit the theoretical effectiveness of a professional military unit, just as there were limits on what the British were able to do during the American Revolution.
A good example of a militia force being effective against a trained army in more modern times might be an incident that occurred during World War II: the members of a Norwegian rifle club held off a German infantry force that was attempting to capture the Norwegian Royal Family. The German troops were paratroopers, elite infantry by any standard, but operating without the support of heavy equipment (which was delayed due to the sinking of the Blucher by the "obsolete" coast defenses of Oslo, a point that shows one doesn't need modern equipment to have a big impact on military events). The Norwegians were defending a pass that the Germans had to get through, and were under the command of a regular military officer. The Germans made repeated attacks and were repulsed: they never did succeed in capturing the Norwegian government, which escaped to England. If memory serves me correctly, you'll find a (very brief) discussion of this incident in Kersaudy's book "Norway 1940". Perhaps some Slashdot readers from other countries can provide more details ...
James Madison specifically wrote the Bill of Rights as an open-ended document. That's why the 9th Amendment provides for rights "retained by the people" and the 10th Amendment provides for rights "reserved to the people". An extremely strong right to privacy would certainly be the sort of thing he intended to protect, thus the fact that the word "privacy" is not explicitly stated in the Constitution is irrelevant!
A major problem that we face as a society in getting these sorts of rights recognized is that legal professionals, both as individuals and as a class in society, have major ethical conflicts of interest in doing so. A scary legal system that infringes fundamental rights inherently creates a demand for people to hire legal professionals to protect them from the abuses of the legal system ...
In practice, ethical conflicts of interest all too often trump both oaths of office and oaths to uphold the law.
Legal professionals, as a class in society, are in a position of ethical conflict of interest with respect to the contents of the legal system.
A complex, confusing, or contradictory legal system (or even one that just seems to have or is perceived to have these qualities) creates an artificial demand for the services of legal professionals.
Most legislators, most legislative staff members, all judges, all defense attorneys, and all prosecuting attorneys are legal professionals.
Hence, effectively the people writing the laws, and the people enforcing those laws, are all in a position to benefit -- at least in the long term -- by issuing orders, or creating laws, rules, principles, and/or precedents that make the legal system complex, confusing, and/or contradictory.
Any principal of law that allows government officials to violate fundamental rights without penalty is equivalent to saying "rights are important but actually they aren't" -- a contradiction.
The fact that something has been in the legal system for hundreds of years does not make it legitimate. Hundreds of years of legal history may largely consist of hundreds of years of bad decisions and substantial amounts of injustice-enforced-by-law, resulting from conflicts of interest both on the part of the parties making and those enforcing the rules.
There are very good reasons why James Madison made the Bill of Rights an open-ended document (by means of the 9th and 10th Amendments, rights retained by and reserved to the people), a point that legal professionals who swear oaths to uphold the Bill of Rights might want to remember. Madison himself successfully fought the state of Virginia in the years prior to the Founding when it attempted to illegally tax certain religions in violation of Virginia's Bill of Rights: he was certainly very aware (as were the people who eventually elected him to Congress) of the need to be able to take on government at any level when it acts contrary to fundamental rights.
Your point that it is inappropriate to associate fair use with infringement is well taken. The legal procedure that seems to be followed in these matters in the USA -- i.e. that one must admit infringement to argue fair use -- has never made much sense to me. I agree entirely that a word that implies (or could potentially imply) wrongdoing should never have to be used as a precursor to assert a right.
I am pleased to hear that Hungary has sensible policies with respect to making reasonable copies: hopefully that will be able to continue and more countries will follow this example.
In the case of "commit", I was thinking along the lines of some of the definitions of commit that I'm more familiar with. For example, here are some from Wiktionary:
Definition: "To do; to perpetrate, as a crime, sin, or fault."
Example: Thou shalt not commit adultery. Exodus xx. 14.
Definition: "To commit an offence; especially, to fornicate."
Example: Commit not with man's sworn spouse. -Shakespeare
Given the current bone-headed legal procedure of requiring that one admit infringement before one can argue fair use, if one has "committed" an infringement then by these definitions it almost follows that one has engaged in a crime, sin, fault or offense. That awful implication is what I'd like to avoid.
The concept of "random acts of kindness" seems to go beyond any of the definitions of "commit" current given by Wictionary, but it's definitely valid English usage in today's world -- one that hadn't occurred to me when I wrote the previous post -- so it appears the meaning of this word has broadened. Thank you for pointing that out.
Some of the definitions given for "infringe" are just as bad as the above ones for "commit". For example, at dictionary com:
Infringe: "to commit a breach or infraction of; violate or transgress"
The act of making reasonable copies (something good) shouldn't be considered something that involves any sort of violation or transgression (something bad).
I'm not sure there is a good verb for describing "infringement" other than "infringe".
The fact that none of these words really make sense with respect to how they are used in USA copyright law (or, at a minimum, carry unfortunate connotations) is symptomatic of just how badly written that law is. This is why I deliberately avoided the use of the terms "copyright" or "intellectual property" in the sentence "The big problem modern societies face with respect to creative works stored on or in some form of media is deciding when and where it should be legal to copy this media". Both "copyright" and "intellectual property" carry significant legal and semantic baggage that may actually get in the way of coming up with a useful solution to the fundamental issue.
Your statement "Copyright infringement is a crime, no matter the way of committing it" is invalid.
To the contrary, in the USA, all exercises of "fair use" rights are in fact copyright infringement, and as "rights" these are of course permitted by law. As a matter of legal procedure, it is typically necessary to note that an infringement has occurred before one may argue that the infringement was in fact of the type permitted by law. Doing something that can reasonably be considered fair use rights is not only NOT criminal, but is in fact expressly permitted by US Copyright law (which in turn reflects more fundamental rights "retained by the people" under the 9th Amendment and "reserved to the people" under the 10th Amendment).
For that matter, any form of reasonable conduct, not just those relating to copyright, will be respected as a fundamental right arising under the 9th/10th Amendments in any jurisdiction where the Bill of Rights means something (arguably, such places are getting harder and harder to find).
In any event, it is incorrect to state that copyright infringement is a crime. SOME forms of copyright infringement are criminal in some countries.
The big problem modern societies face with respect to creative works stored on or in some form of media is deciding when and where it should be legal to copy this media. That is really what this discussion is all about.
Incidentally, you probably don't want the legal professionals having the final say in this matter, as there are conflicts of interest that affect the whole legal profession which could get in the way of a long term resolution that is best for society. Or in other words, a government of the people, by the people, for the people should not be a government of the lawyer, by the lawyer, and for the lawyer.
It is also incorrect use of the English language to refer to copyright infringement as something one "commits", as in "no matter the way of committing it". The verb "commits" implies a crime, at least in typical usage in matters relating to law.
It is interesting to note that some businesses are putting notices equating or implying copyright infringement is a crime, or even referring to it as piracy, on "unskippable" portions of DVDs. There is no doubt that the legal professionals working for such organizations know that this involves providing incorrect and misleading information to the public, which in turn raises questions about their ethical integrity. Making false statements regarding the legal system (essentially propaganda) makes the laws even more complex and confusing than they already are, which naturally increases the demand for the services of legal professionals to interpret those laws for a confused public, and thus there is an ethical conflict of interest here.
Stalin wasn't just paranoid, like Hitler, he was actively evil.
Viktor Suvorov's book "Chief Culprit: Stalin's Grand Design to Start World War II" makes a lot of interesting arguments supporting the "destined to be an antagonist" point you make, but he goes further and argues that the Communists were setting up to take over Europe long before WWII started.
For example, he argues that the Communists were trying to set themselves up to take control of Europe even before the end of World War I, by deliberately giving Imperial Germany the resources needed to stretch the war out further and weaken everyone else. He also argues that they attempted to use the Spanish Civil War to ignite another World War, and having failed there, succeeded a short while later in Poland.
One particularly interesting point he makes was that (putting the argument in my own words here) Hitler's decision to stop the Battle of Britain and to invade Russia was made as a result of Hitler finally "doing the math" and figuring out just what Comrade Joe was setting up for him on the other side of the border, right next to the critical oil resources that Germany was completely dependent on.
Lots and lots of points raised in this book, hopefully professional historians will be able to examine these issues more thoroughly now that Russia is more open.
There are lots of deserts on earth, where non-semiconductor-based solar power can be had relatively cheaply. Presumably there are also potential hydro-electric sources that are untapped due to lack of population in the area of the source. The same is probably true of some high wind regions, and perhaps some geothermal sources.
If my understanding is correct, it only makes sense to build large power generators in regions where there are lots of people, due to the difficulty of "transporting" the electricity long distances (presumably resistive loss in the cables is the primary issue for running very long cables).
Why not generate the electricity needed to make the solar cells in one of these currently unused regions, and do as much of the processing as practical close to the generator? This would convert an "unholy" amount of electricity into an "unnoticeable" amount of electricity: it wouldn't matter how much was actually being used since the power source generating it wouldn't require the usual fuels, and thus the whole setup should have far less environmental impact than the numbers given above seem to suggest.
To the contrary, it is very much relevant what we believe is fair and just, at least in the USA.
James Madison wrote the Bill of Rights to be an open-ended document. The 9th Amendment provides for rights retained by the people, the 10th Amendment provides for rights reserved to the people. This was done to address the dual issues (raised by the Anti-Federalists, and likely to kill ratification of the Constitution) that a) there was no Bill of Rights and b) that any Bill of Rights would necessarily be incomplete.
If any action taken at any level or in any branch of government, is violating a right that can reasonably be asserted as a right "retained by the people" or "reserved to the people", that action is by definition in violation of the Bill of Rights.
In other words, in this Republic, the government has the authority to create laws, but only such laws that are viewed as legitimate by the people are in fact valid and legally binding.
It follows that legal professionals or government officials involved in an action that violates fundamental rights, or those judges who uphold such an action as being legal by refusing to recognize fundamental rights, are violating their sworn oaths to uphold the Bill of Rights. Violation of these oaths disqualifies them from holding any position of public trust or responsibility, and also invalidates any actions or decisions they participate in.
As a class within society, legal professionals are in a position of conflict of interest with respect to recognizing rights arising under these provisions of the Bill of Rights. A complex, confusing, actually or seemingly contradictory legal system creates increased demand for the services of legal professionals, and anything that can serve to reduce the complexity of the legal system is not in their interests.
Rights retained by the people are, in any event, retained "by the people". They are not retained "by the lawyers", or retained "by the government". So it is very much relevant what we the people believe is fair and just (and also ethical), at least to the extent that these characteristics are relevant to fundamental rights.
In this case, the open question seems to be whether one ore more fundamental rights has been violated. Fundamental rights that could reasonably be asserted as rights "retained by the people" might include a) a right to not be subject to any law, practice, procedure, right, order, or precedent that can reasonably be supposed to involve a conflict of interest on the part of legal professionals or of persons working in the government, and b) a right to reasonable conduct under reasonable circumstances, which would certainly include making reasonable design decisions.
Whether or not the concept of design patents is even consistent with these rights is a question that needs serious consideration. Given that legal professionals, as a class in society, are in a position of conflict of interest with respect to recognizing the 9th Amendment in general, and have additional conflicts of interest with respect to the specific issue of design patents, they are not the right people to be answering that question.
If science is boring, then you have chosen to make it boring.
That's actually very common in our society. It is common to hear people joke "that book was so boring it put me to sleep", without realizing that by thinking this way they are shooting themselves in the foot.
There is nothing wrong with watching television, or going to the movies, or playing video games, provided it is done in moderation. However, what happens to large numbers of people is they get so used to being entertained by someone else, with minimal effort on their part, that they either lose or never develop the internal mental skills needed to make things entertaining. These people depend almost completely on external sources for their entertainment, instead of learning to draw pleasure in the learning process, and in the material being learned, from within themselves.
The more hours in a given week a person spends depending upon Hollywood, or ESPN, or video games for their entertainment, the harder it is to switch over to being able to derive entertainment from within. It's a lot like a drug dependency.
No educational institution in the country even begins to provide sufficient information for people to understand what is actually going on in their world, no matter what degrees a person has. Education provides a foundation for lifetime learning, nothing more.
People that understand this will train themselves to be able to enjoy non-fiction media such as books or video presentations. They will learn to enjoy this material, and they will find ways to MAKE it interesting or entertaining, and thus not "boring".
The mental processes involved are not much different from those required by persons who do the various arts, such as playing an instrument, or dance, or yoga, or the martial arts. Over the long term, an artist will spend many hours learning and maintaining the skills required for their art. Do you think it is possible to spend the huge amounts of time required to learn (and maintain) skill at an art without learning to generally enjoy the process?
One does not need to have the legendary discipline of a Marine Corps drill instructor to develop these mental skills, nor does one need to be an Einstein at time management. It is simply a matter of building skill in small doses, and thus slowly, gently -- over the long term -- building the internal habits and mental skills need to support enjoying the learning process. One learns to make a subject -- any subject that matters to the individual -- interesting, allowing one to derive entertainment from within, rather than being dependent upon external sources of entertainment.
Unfortunately, it is a rare teacher in our schools that thinks to teach this to their students, which means it is one of those things you have to figure out for yourself after leaving school.
There may be laws written to this effect. I have no personal knowledge of that. However, such laws would certainly violate numerous rights that can reasonably be asserted under the 9th Amendment (Rights retained by the people) and the 10th Amendment (Rights reserved to the people).
Any persons writing or enforcing such patently illegal laws are immediately and permanently disqualified from holding any position of public trust or authority, or from engaging in the practice of law, as a result of violating their oaths to uphold the law. In a sense, the situation is similar to that in Nazi Germany: if laws or precedents or court rulings that violate fundamental human rights are created, then persons in the government and legal professionals have an individual, personal, and immediate responsibility to refuse to recognize or enforce such laws, and to remove the people involved in creating those laws from the system. Those who choose to do otherwise demonstrate their lack of fitness to hold such positions.
James Madison wrote the Bill of Rights to be an open-ended document. The 9th Amendment provides for rights retained by the people, the 10th Amendment provides for rights reserved to the people. This was done to address the dual issues (raised by the Anti-Federalists, and likely to kill ratification of the Constitution) that a) there was no Bill of Rights and b) that any Bill of Rights would necessarily be incomplete.
The Nuremberg precedent can be considered to exist within US law under the scope of these amendments, and applies not just to military personnel, but to all members of government and all legal professionals. Further, it applies not just to military orders, but to laws, precedents, orders, and rulings of all kinds.
A fundamental human right is the right not to have one's time wasted, human life being finite and all too short, which implies a right to not have one's assets (which take time to accumulate) or one's person seized without recourse.
There are many illegal laws. There are also mechanisms within the legal system to fight such laws. Laws that violate fundamental rights can only continue to exist if legal professionals and other government officials knowingly and blatantly violate their oaths and responsibilities. The only alternative to using such mechanisms is revolution, which is almost always the less desirable choice. Still, if there are illegal laws such as you describe, then start making a list. It would be a good beginning to a new Declaration of Independence, should the unfortunate day come when one is needed.
It is not clear that there is any legitimacy to the system of "design patents".
Laws are created -- mostly -- by legal professionals, who have a huge conflict of interest with respect to the size and complexity of the legal system. Once the laws are created, then legal professionals then argue and judge cases arising under them (sometimes the same people involved in the creation of the original laws!).
Having unnecessary, complex, or confusing laws in the legal system creates lots of future (artificial) demand for the services of legal professionals as a class in society, which in turn provides increased job security and the likelihood of greater pay, and the existence of such laws is indicative of widespread problems with ethics in that profession.
Similarly, having unneeded bureaucracy also creates an artificial demand for the services of legal professionals, who get paid to help people and organizations navigate that bureaucracy.
A fundamental right could be asserted to the effect that consumers not be subject to fraud in business transactions. From such a right, it would follow that a company can not fraudulently attempt to market products that directly masquerade as another company's products, and some simple, straightforward law to that effect could be created to enforce such a right. Such a law would be similar to laws preventing counterfeiting of money.
There is no need for a system of "design patents".
A law like that would probably also make unnecessary the complex and bureaucratic system of trademark law (and would be less infringing on the 1st Amendment).
If the product is sold in Samsung packaging and the stuff inside the package doesn't carry the Apple logo, then no reasonable person would suppose a fraud has been committed.
We could have a simple, basic, and easy to understand law to govern business fraud.
If we instead have a complex system of design patent law and we also need a bureaucracy to support that system, then that raises very serious questions regarding the ethics of legal professionals, as a class in society.
James Madison gave the US an open-ended Bill of Rights to prevent excessive government, and excessive law is certainly a form of excessive government, a point that those who swear oaths to uphold the Bill of Rights might want to remember.