In common law countries (U.K., Canada, U.S., Aus., Singapore, etc.) it's still libelous because it gives a negative image. However, as a general exception, if the statement is true you have a complete defence to libel and would not be prosecuted.
Actually, American workers have been doing worse, not better, since free trade came in. Real wages have gone down, and the gap between the rich and the poor has grown in America (and in a lot of other Western nations). This basically means that your average person has it tougher than her parents did. Free trade is not the only reason, but when you look at it, you can see that it would be a major contributor to this. With free trade, workers in the US have to compete with workers everywhere else in the world, and they can't compete with workers who are living in poverty and making subsistence wages. Naturally, with this kind of competition, there is strong downward pressure to lower wages.
He's lost grasp of the point of software. The point of software is not 'to run free software', its to get something done.
Having a view to the history of Stallman's tirade against proprietary software, it started back with a printer that he couldn't use. It required proprietary drivers, and Stallman discovered that because of the licensing scheme for the software and the nature of deliver-executable trade-secret-code his printer became a brick. Thus the start of the free software movement as we know it, I understand.
The principles are no less important today. We don't want our "Web 2.0" applications to lock us out of our data and the computer-network functionality we rely on to be productive.
The Economist had an interesting article last year that predicted that the US telecom companies were waiting for bailout money to invest in infrastructure. With this new stimulus package on the horizon, I'm sure some evidence to support their argument (i.e. irate iPhone users) that it's necessary would go a long way. AT&T has every incentive to get taxpayers to foot the bill, and they'd effectively be punished if they spent their own money on it (it's not like they'll get reimbursed).
Wtf? I for one am not "the next terrorist." This isn't about trying to do anything illegal, it's about privacy. If I'm trying to send my lawyer some confidential files I don't want to direct him to find some image on facebook. I want to send him the file. And I want the communication to look no different than any other message I send him or my mother.
I understand the GP's point to be that this invasion of privacy proposed by the U.K. government isn't an effective way to prevent, deter or intercept terrorist communications (i.e. because steganographic techniques on other sites such as YouTube and eBay would be considerably more effective).
The more interesting bit of the study is that (if I recall correctly): If you were religious (versus non-religious), you were twice as likely to not have a living will (70% versus 40%), twice as likely to not have life insurance (70% versus 40%), and much less likely to understand a do-not-resuscitate order (don't remember the stats).
The study also covered Medicare expenses by race. This was also interesting, as Caucasian required something in the order of $20,000 (per year, I believe), black $26,000, and Hispanic $31,000. There was a strong correlation between religiousness and race, namely black and moreso Hispanics were more religious (and again, less likely to have life insurance, a will, or understand a DNR order).
Religious people are more likely to fight longer to stay alive, which I recall the study signatories saying was attributed to a sense of meaning, purpose, and comfort that religious people had.
I just read the study a day or two ago - I can't find it now, though.
My personal take is that religion is probably just an indicator of the level of education, modified by cultural attitudes. Religious piety and lower levels of education seem to correlate.
The Rules of Civil Procedure [canlii.org] govern the procedure in this case. There's nothing new about this case, per se. Anything published on Facebook that is relevant to a proceeding is considered a relevant document, and the laws of Ontario oblige disclosure (even if that document was private, notwithstanding exceptions such as solicitor-client privilege) by the person with control over it.
The Rules of Civil Procedure govern this case. There's nothing new about this case, per se. Anything published on Facebook is a relevant document, and the laws of Ontario oblige disclosure (even if that document was private, notwithstanding rare exceptions for such as solicitor-client privilege) by the person with control over it.
The relevant section governing documentary discovery is Rule 30. Rule 30.01 defines "document", and 30.02 places an obligation on a party to make appropriate disclosure of all relevant documents. The curious can read more about a report on electronic discovery in the Ontario Bar Association's guidelines (pdf) (see also OBA "e-discovery"), and a e-Discovery web-site.
I've reproduced cited excerpts of Rule 30, here:
RULE 30 - DISCOVERY OF DOCUMENTS
INTERPRETATION 30.01 (1) In rules 30.02 to 30.11, (a) "document" includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form; and (b) a document shall be deemed to be in a party's power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.
SCOPE OF DOCUMENTARY DISCOVERY Disclosure 30.02 (1) Every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.
There are some interesting scenarios related to Sedona obligations, namely the obligation to not destroy or delete electronic documents once a party has been advised of the potential relevance of certain electronic documents.
You rightly note that "authorise" is not defined, hence it's given it's normally everyday meaning. You attempt to subvert that meaning to be a technical computer related meaning. If the measure is ability to access - which it would need to be for the BBC to be authorised - then any cracker would be authorised and the CMA is useless, that can't be the intention of the draftees.
I'd speculate that the argument authorise is "given it's normally everyday meaning in the context of the statute in which it is used" is quite likely to fly. For reasons below, it's not relevant (i.e. I discovered a section of the CMA that defines unauthorised).
Portscan
1. Intent is important and almost certainly unprovable. If your computer is server and they scan the service ports (of the advertised services) then absolutely no issue. I think that connection to the network authorises probing for services that doesn't inhibit operation - if they then act maliciously the law should cut in.
I would point out that the BBC didn't act maliciously nor inhibit operation. Why does the BBC's act give rise to liability under the CMA, but a portscan would not?
Does that boil down to: What's the difference between a sendmail-like program doing something without authorization and the TCP stack doing something without authorization? Where's the difference?
Install beneficial software
5. What's a public computer - most computers owned by local government, etc., say you may not install software without permission. If you have permission then it's authorised, if not...
What if you remove a keylogger from an internet terminal? The keylogger may inhibit your use of the computer, but you don't have the consent of the owner of the internet terminal (and you are certain that owner doesn't know about it). How is that different from the BBC removing software from the internet which inhibits their use of the internet (i.e. botnets target the BBC)?
Again the term "authorised" is the standard laymans term.
I'd argue not, but as you observe this leads to the absurdity:
If I crack your password and so have your user:password pair I still am not authorised to use them. Authority !== ability.
I'd argue that this cracked password scenario is dealt with by criminal trespass laws, not the CMA. That way there is no absurdity: the CMA deals with the specific case where you have committed an offence because one accesses a computer without the proper authentication; criminal trespass gives rise to an offence because one accesses a computer with proper credentials but without the permission of the beneficial owner. They're different, distinguishable, and arguably more coherent when read that way. Otherwise there's some duplication in the law - the law of criminal trespass (i.e. subverting use of a proprietary interest) and the CMA s.1 (i.e. use without proper credentials) do the same thing (even though the CMA is unclear on what 'authorize' means, and - per the principle of statutory interpretation expressio unius est exclusio alterius - it doesn't mean 'permission').
I had a quick look but didn't find criminal trespass in the British statutes, but I'd assume that it would cover the case where someone uses a computer without permission but with the proper authorization (i.e. username+password). Criminal trespass would require a parallel analysis, and there are a long number of defences to criminal trespass that need to be taken into account.
Ha! I just found the definition of unauthorized in the CMA. You may ignore the above arguments on what the definition of "authorize" is, but it is somewhat interesting reasoning so I'm leaving it in. The relevant bit of the statute is:
17. (5) Access of any kind by any person to any program or data held in a computer is unauthorised if--
Having said that, I don't necessarily buy into all your arguments.
Thank goodness-- healthy skepticism is gold in any constructive legal analysis. (Especially of anything I say!). I don't think a judge would buy all (or even most of) my arguments, either -- but they might only need to buy one of them. Often a Judge will have made up their mind on what is fair - and I think the "colour of right" is on the BBC's side - and then the Judge would look for a legal route to that conclusion - the job of a lawyer is then to give the Judge the legal tools to get there.
I'm not going to go into all the problems I see with your assertions, but doesn't Pepper vs Hart merely talk to using the legislative background where the clarity of the statute is lacking. There is no lack of clarity in the CMA unless you attempt to give the words other than everyday meanings (outside of/noscitur a sociis/).
I interpret Pepper to stand for the proposition that where the legislation is ambiguous (1) the legislation can be interpreted within the context in which it arose (i.e. by turning to Hansard's transcripts, etc.); and (2) with a view to the purpose of the legislation. This is a typical statement of some of the tools used to resolve ambiguities in purposive/liberal interpretation.
I think there is obvious want for clarity in the CMA.
Good reference to noscitur a sociis.
You've attempted to apply a narrow or technical interpretation of "authorised" it simply means here did they ask the people who owned the computers if they could use them in the manner in which they were used. Having access to botted computers doesn't make you authorised anymore than having access to lock picks makes you authorised to enter any locked door you choose.
The word "unauthorised" is not defined in the statute, as you assert. Foremost, "authorization" is not the same as "permission from someone with proprietary interest". For example, authorization can come from having a password; permission does not. If the legislature had meant permission, they would have said permission (principle of legislative competence). The legislature said authorization, which is in its plain and ordinary meaning includes at least two definitions: 1. Granting of permission; 2. Having access rights (viz. able to authenticate, e.g. username & password). In this case, the latter is preferable for a few reasons, namely:
(i) it's a statute about computers and the common use of the language "authorize" with computers is the latter;
(ii) the statute does not talk about *who* can/should/must authorize; it doesn't mention ownership, property, proprietary interests whatsoever, which leads to absurdities (violation of the golden rule);
(iii) the ambiguity is to be interpreted in favour of the accused (generally, and probably in this case because it is a punitive law).
Excuse me, you don't really think that's the everyday interpretation (literal) of "authorise"? Who else, in your opinion, has the right (other than a court with a warrant) to authorise your access to my property?
As mentioned, what does an exclusive proprietary interest have to do with this statute? That's certainly relevant to tort, and criminal trespass. I don't see how it applies to this statute except to perhaps indicate who may be able to "authorize" access, provided that the definition of authorize is "an owner having given permission" and not the more concise "having access credentials".
I do think you have hit a useful counter-argument to the defence of the narrow interpretation of "authorize", and I think a prosecutor would raise it. It boils down to something like: Is this a statute that bases liability on the definition of authorization as doing something without logging in? If not, then what is the definition of authorize? Who authorizes? Some examples may illuminate- which of these is unauthorized:
- An unknown person portscans your computer.
An owner turns on a web-server on a personal computer. It provides no warning that the public are not authorized to use it.
- It is accessed by someone on the internet accidentally, but they continue to use the web-server intentionally.
- It is accessed by a bot that reads your email address and signs you up for SPAM.
- It is accessed by a bot that attempts to exploit a flaw.
- It is accessed by a bot that installs botnet software on your machine by exploiting a fl
First: the CMA is very careful to mention both programs and data in each major section. You cannot assume that the act is only meant to prevent access to private data.
It is not an assumption, but an interpretation of the provisions of the statute based on the language provided in the header to CMA section 1.
Third: Each major section consitutes a separate offence. Again, you cannot assume that access to programs don't count because you happen to interpret the wider goal of the Act to prevent access to private data. The Act says what it says, regardless of the wider intention you read into it.
You are arguing for what is known as strict interpretation, an archaic and essentially dead method of statutory interpretation. It is not how statutes are interpreted in the modern common law. The modern approach is called "liberal interpretaton" or "purposive interpretation". In England, this principle of statutory interpretation is set out by the House of Lords in Pepper v Hart (1993).
As a general rule, the purpose or perceived intent of the legislature is the law derived from statute. Thus the strict language of the act is relevant, but that is not the end of the story when presenting your argument to a Court (or rendering a decision as a Judge).
Fifth: The BBC caused the computer to perform a function without the authorisation of the owner. It is irrelevant that the owner did not create the means for them to do this, or may have been unaware of its existence. This is not a defence.
Well, go back to your language-is-important argument. The language of CMA 1 is "he causes a computer to perform any function with intent to secure access to any program or data held in any computer"
The access was already secured by a function that predated the BBC's actions- when the botnet took over the computer. That is not what the CMA finds to be an offence under section 1 (which I'm focusing on for expediency). If the BBC installed the botnet, that'd be different. However the botnet was pre-existing.
How did the BBC cause a computer to perform a function to secure access to a program or data to which they were not authorized? A prosecutor must show every element of that question satisfied beyond a reasonable doubt. I'm not confident they could.
Further, the prosecutor would likely have to bring forward victim statements. I can imagine the interviews: "So, I understand you own a computer... it had a virus... the BBC took over your computer as part of an investigation and then removed the virus from your computer. How has this affected you?" This practical consideration goes to de minimus - who is the victim and what harm does this punitive legislation seek to prevent?
Sixth: If you publish a service for consumption by others, then it is reasonable for others to consume it, and accessing this service would not be an offence. However, it seems highly unlikely that most of the computers fall into this category.
This goes to complicity and unawareness by owners, an easement around their proprietary interest in their computer, and hence the ability of a prosecutor to successfully argue that the access was indeed unauthorized if it is not dominion over which an owner actually exercised exclusive control (i.e. 1. this wasn't part of the owners' computer for all intents and purposes; and 2. owners didn't have the ability to grant authorization).
Seventh: the BBC cannot authorise access to someone else's computer, regardless of whether they are on the botnet themselves. The basic test of authorisation is that if they do not *know* whether they have authorisation to access a given computer, then attempting access is unauthorised. Absence of knowledge does not give you a free pass to attempt access
Thanks for posting the reference. Now that we have a statute (which I'm confident the GP did not have awareness of), we can get into statutory interpretation, which again goes against certitude. Just a few notes, that I think defence counsel could use to run with this:
First, a purposive perspective. Looking at SS 1. (1): the title is "Unauthorized access to computer material", the key being "material". It implies that the legislature was attempting to stop access to material - data - information. No material (data or information) disclosure was the intent, subject or result of the BBC's actions.
Second, ambiguities in interpretation are typically interpreted against the drafter. Ambiguous or undefined terms include "access", "material", "unauthorized" in this statute-- bear this in mind below.
Third, the statute should be interpreted as a whole. The titles of SS 1, 2, and 3 are:
1 Unauthorised access to computer material
2 Unauthorised access with intent to commit or facilitate commission of further offences
3 Unauthorised modification of computer material I'd say what you are looking at is an attempt by the legislature to prevent access to private information, to increase culpability for concurrent offences, and prevent modification to private material. This constitutes the essence of the statute, and I'd argue that it's purpose derives from these three titles, and that the BBC has not done anything that is contrary to the purpose of the statute (which mostly flavours the rest of the argument, but can be persuasive in an appellate court)
Fourth, there are the defences I posed (journalistic defences, good Samaritan, public policy).
Fifth, reading "SS 1 (1): (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;" -- the botnets already had access to these computers, therefore the BBC did not perform a function with intent to secure access -- they bought access that someone else had already secured.
Sixth, who is to say these botnet computer owners did not willingly participate in the botnet? At some point the owner either intentionally or unintentionally installed botnet software.
Seventh, did the BBC meet the "SS 1 (1) (b) the access he intends to secure is unauthorised;" test. Namely: was it truly unauthorized access if it is not known if the botnet computers were or were not willingly put on the botnet? Alternatively, by being on a botnet is the BBC not implicitly authorizing access? Didn't the BBC have technical authorization to access the botnet? What is "unauthorized"? Who decides that? Go back - ambiguities are resolved against the drafter of the criminal code in most commonwealth countries.
Eighth, the statute does not appear to have the purpose of preventing access to "extra" functions. Your browser changes things in your cache as you browser, it shares private cookies on the internet without your permission, MS Windows performs all sorts of unknown and "unauthorized" things such as automatic updates. Where does one draw the line between those extraneous actions of software on your computer that are essentially harmless, and the malicious invasion of an individual computer's autonomy? I'd say that line is, and was intended to be by the legislature, where private material is accessed in a way that benefits an accused to the detriment of the affected, and that this distinction.
Ninth, this case probably doesn't meet the de minimus test for harm from a criminal act to justify prosecution (the counter-argument to this is that the BBC has created a bad precedent, opened a floodgate-- counter-counter argument: have they?).
Finally, this is quasi-criminal therefore all of the facts giving rise to criminal act, including the requisite intent at the time, must likely be proven beyond a reasonable doubt.
I'm not suggesting that people can go out and acquire botnets even for what
Interesting cite; thank you. I've only glanced at it, and I do not believe it contains any offences which the BBC has committed-- though I stand to be corrected. I don't know where the case law in Britain may have taken the interpretation of this statute.
The relevant offences are reproduced below for discussion:
Computer misuse offences 1 Unauthorised access to computer material
(1) A person is guilty of an offence if
(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;
(b) the access he intends to secure is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case.
(2) The intent a person has to have to commit an offence under this section need not be directed at
(a) any particular program or data;
(b) a program or data of any particular kind; or
(c) a program or data held in any particular computer.
(3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.
2 Unauthorised access with intent to commit or facilitate commission of further offences
(1) A person is guilty of an offence under this section if he commits an offence under section 1 above (the unauthorised access offence) with intent
(a) to commit an offence to which this section applies; or
(b) to facilitate the commission of such an offence (whether by himself or by any other person);
and the offence he intends to commit or facilitate is referred to below in this section as the further offence.
(2) This section applies to offences
(a) for which the sentence is fixed by law; or
(b) for which a person of twenty-one years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or, in England and Wales, might be so sentenced but for the restrictions imposed by section 33 of the [1980 c. 43.] Magistrates' Courts Act 1980).
(3) It is immaterial for the purposes of this section whether the further offence is to be committed on the same occasion as the unauthorised access offence or on any future occasion.
(4) A person may be guilty of an offence under this section even though the facts are such that the commission of the further offence is impossible.
(5) A person guilty of an offence under this section shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both; and
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.
3 Unauthorised modification of computer material
(1) A person is guilty of an offence if
(a) he does any act which causes an unauthorised modification of the contents of any computer; and
(b) at the time when he does the act he has the requisite intent and the requisite knowledge.
(2) For the purposes of subsection (1)(b) above the requisite intent is an intent to cause a modification of the contents of any computer and by so doing
(a) to impair the operation of any computer;
(b) to prevent or hinder access to any program or data held in any computer; or
(c) to impair the operation of any such program or the reliability of any such data.
(3) The intent need not be directed at
(a) any particular computer;
(b) any particular program or data or a program or data of any particular kind; or
(c) any particular modification o
Regardless of intent it is illegal. They are gaining unauthorized access to someones PC and using it for their own personal gain. If I were to demonstrate how to crack someones WEP key in 5 minutes without the victim's explicit written permission it would be illegal, even if done just for "educational purposes." Sure, it's edgy reporting, but it is still highly illegal.
Why do you say that? These statements have no legal meaning or merit.
I'm not overly familiar with British criminal law, per se, but I am handy in the commonwealth legal principles (having studied law in three commonwealth countries, and being a lawyer in a commonwealth country and New York state), and while anyone would need legal advice specific to their jurisdiction (i.e. none of what I'm saying is legal advice), I can say with reasonable confidence that this act of the BBC would be criminal in only two scenarios:
1. There was mens rea, or the guilty mind, component of a criminal act; or
2. The BBC committed a crime where mens rea is not required (viz. a crime of strict or absolutely liability).
As the guilty mind seems to be lacking on these facts, only crimes of strict liability may be laid against the BBC. As I don't know of any strict liability crime arising from these facts, I surmise that they have not broken one, but I stand to be corrected.
It may be a civil wrong that is a species of trespass, or that violates some statute specific to computers and/or the internet, but in the absence of provable damages by someone affected (i.e. the botnet computer owners or the DoS'd computer), there is no cause of action that would give rise to a lawsuit. The botnet owners don't know they are on a botnet, so their damages are negligible -- if anything I would argue they benefit from being taken over by the BBC as opposed to someone with actual malicious intent. The DoS'd machine is presumably one owned by the BBC.
Even if found to be guilty of civil or criminal wrongdoing, the BBC may have a complete defence because their act was taken as part of a protected form of investigative journalism or alternatively because they are acting as a good Samaritan in the public interest. They seem to be acting with the interest of exposing to the public and documenting a very important situation on the internet. Their investigative journalism is good for the public and the owners of the botnet who may thus become aware of their participation in this grand malicious scheme. In addition to these defences, it would be bad public policy to stifle such valuable investigative journalism.
In any case I'm confident that the lawyers for the BBC have given this due consideration. That a large, sophisticated corporation actually did this for the purpose of publication, and then did publish it, strongly suggests that it is not illegal.
In the United States your mileage may vary (i.e. taking control of a botnet even with good intentions may be illegal). There are a large number of laws that are driven by commercial interest groups, which laws give rise to "criminality" in spite of the public's interests to the contrary. Thankfully most of the world, including the BBC, isn't generally subject to these laws.
Please don't mislead people with sensationalistic statements like "highly illegal", without at least providing some modicum of support for these otherwise bald assertions. What criminal law do you think the BBC broke? Your post appears wholly incorrect, unsupported and misleading. It distracts from the real issues at hand, wastes readers' time, and is disrespectful to those who value facts and truth. Please consider taking the time to research your assertions before posting to a public forum like this. Thank you.
Justice is blind, and even more so when technological cases are heard in an anglo-saxon setting, where customary law (precedents) is king.
Look up. See that big swooshy thing that just went over your head. It is called ironic humor. The mixed references certainly appear to be done on purpose (at least that's how I read it).
The test for irony I use is to take the meaning of the words in their normal sense, and then convert them to the the opposite meaning. The potential opposites of the OP would be either:
* Customary law (precedents) is not "king", which doesn't add anything. * Justice is not blind, which has no meaning in this context * Justice is less blind in technological cases, which has merit if the OP was suggesting that Justice is more subjective when dealing with technological cases. I doubt this was the OP's meaning for two reasons (1) Justice isn't made on subjective bases when it comes to technological cases, it's apparently made on ignorant bases; and (2) the language and delivery of the OP do not suggest as much thought went into it.
I don't take the meaning of the OP to have been any of these opposites that would give rise to irony, but I stand to be corrected. I took, rather, the meaning of the OP to be "Justice is blind", as in justice is oblivious, particularly in the common law countries where we set down binding precedents that would exacerbate that obliviousness.
Justice is blind, and even more so when technological cases are heard in an anglo-saxon setting, where customary law (precedents) is king.
I think you're mixing a number of references, there. Justice is blind is a reference to the notion that justice ought to be objective, a concept going back to (at least) the Babylons. I don't think objective (versus subjective) reasoning in any takes away from "justice", which seems to be what you are implying.
"Customary law (precedents)" is presumably a reference to stare decisis, a concept of binding precedents which dates back to the Normans invading Britain around the 1100's I believe. Stare decisis generally occurs only when a "higher" Court (i.e. an appellate level Court) makes a decision. The lower Courts are bound to the decision of higher Courts, subject to law and fact that distinguishes the case at hand from the case of the higher Court. Courts of the same level are generally not bound (though it is generally considered polite not to change the law the same Court had previously made - case made law is in principle, after all, not creating law, but illuminating an already-existing truth).
In terms of facts, though, appellate Courts generally defer to the Court of first instance (i.e. the trier of fact, or trial court), because the judge at the first instance will have heard the facts from experts first-hand. However, there is generally a discretion in appellate Courts to overturn rulings of the Court of first instance on the basis that the trier of fact made errors that were incorrect, unreasonable or patently unreasonable (depending on the nature of the appeal and the Court in question).
In the Ontario case in question, I haven't read the reasons of Justice Leitch, but if she took "judicial notice" of the analogy between an IP and an address (i.e. no experts were called), a higher Court may alter that. However, if an expert posited that analogy, then it is very unlikely that the decision will be overturned by a higher Court (i.e. the Ontario Court of Appeal). In both scenarios, it's possible that subsequent decisions would be made on different facts, and this wayward analogy would be debunked.
Right, as if companies like Xerox and IBM have done any better at turning research into products? Remember that System R* was an IBM research product that they spent millions on, then just sat on the shelf. It wasn't until Larry Ellison took IBM's Relational Database specifications and proved you could make money with it by founding this little database company named Oracle that IBM decided they should get off their ass and come out with DB2. Why should we expect Microsoft to do any better?
My word.
First of all, what do the inventions of IBM and Xerox have to do with Microsoft's culture depriving them of the ability to innovate? Why does profitabilty equate with valuable innovation? (The internet, Linux, etc. are free, but they're extraordinarily valuable innovations-- they make my life better) And in any event, the example companies given are two of the most influential technology companies in history.
IBM has made innumerable inventions--- where does one even begin? FORTRAN, the first programming language. The RISC architecture and a dozen processors. Mainframes. COBOL. Magnetic storage. Supercomputers Deep Blue et al. SQL. DRAM. How many dozen examples would you like? Pick any random computer technology and there's a decent chance that IBM contributed to its invention. One can hardly overlook their contributions to "pure" physical sciences and nanotechnology, too. Regardless of whether they profited, IBM has been a remarkable innovator.
In its day Xerox was responsible for making revolutionary inventions, especially noteworthy are the photocopier, the mouse and the GUI. Moreover, they're a company with a market cap 1/34th the size of Microsoft, so a rational person would expect Microsoft to have a significantly higher number of useful inventions in absolute terms, but I doubt they do. Microsoft continues only to peddle their monopolies, mostly I imagine because they don't know how to do anything else.
Xerox PARC was also responsible for the innovations that lead to Apple. While they didn't capitalize on them, they certainly invented things that were useful, and that others capitalized on. Microsoft hasn't really invented anything, much less something they can capitalize on.
The history of Microsoft is markedly devoid of innovation. They stole an operating system and locked IBM into a contract whereby IBM had to pay Microsoft a licensing fee for every PC sold, regardless of whether that PC had Microsoft DOS on it. They've basically done nothing since, except leverage their guaranteed revenue to buy or imitate and destroy competitors. I vividly recall dozens of companies falling to "embrace, extend, extinguish" (or, lest we forget, actively sabotaging competitors' software running on DOS/Windows).
I'm not sure what your comment is getting at, but it is as painfully devoid of reason and fact as Microsoft's history is devoid of innovation. Next time you consider posting something like this, please give it a second thought. It's not adding anything to the discussion, and it misleads readers.
It's all about culture. Microsoft has a culture of leveraging guaranteed income via a monopoly to steal or buy the technology of other companies. However, at the root they do not have a culture of innovation, and when it comes time to innovate, they just don't seem to know how.
it would be completely unique somehow it manages to dominate market share, and yet its competitors can copy any of its features or redistribute their own flavor of the same product?
Unique is a bit strong. See: Apache. Bind. Sendmail. Wordpress/Drupal/Joomla. Virtually any open source project that can be said to "dominate market share" would apply.
I get real tired of people who are willing to tell others in tough situations how they "should" act. Think it's that easy? Try it then. Enlist, go through basic, see the kind of mental and physical conditioning soldiers are subjected to. See what the culture and rules are like. Then see if you think it's so easy to just say "Nope, don't like that order, not going to do it."
If you are not alerady, you should be aware that this argument, the Nuremberg Defence (named after the Nuremberg trials) is not a valid defence against war crimes. All soldiers can be prosecuted for war crimes that they have committed.
As you can see from the above link, the U.S. Uniform Code of Military Justice includes a rule nullifying the Nuremberg defense. As a result, U.S. military personnel are allowed to refuse unlawful orders. Furthermore, all U.S. military personnel are supposed to receive annual training in the Law of Armed Conflict, which delineates lawful and unlawful behaviors during armed conflicts.
Slashdot Mirror
Saying that, is it libel when it's the truth?
In common law countries (U.K., Canada, U.S., Aus., Singapore, etc.) it's still libelous because it gives a negative image. However, as a general exception, if the statement is true you have a complete defence to libel and would not be prosecuted.
Actually, American workers have been doing worse, not better, since free trade came in. Real wages have gone down, and the gap between the rich and the poor has grown in America (and in a lot of other Western nations). This basically means that your average person has it tougher than her parents did. Free trade is not the only reason, but when you look at it, you can see that it would be a major contributor to this. With free trade, workers in the US have to compete with workers everywhere else in the world, and they can't compete with workers who are living in poverty and making subsistence wages. Naturally, with this kind of competition, there is strong downward pressure to lower wages.
You may find this post interesting.
He's lost grasp of the point of software. The point of software is not 'to run free software', its to get something done.
Having a view to the history of Stallman's tirade against proprietary software, it started back with a printer that he couldn't use. It required proprietary drivers, and Stallman discovered that because of the licensing scheme for the software and the nature of deliver-executable trade-secret-code his printer became a brick. Thus the start of the free software movement as we know it, I understand.
The principles are no less important today. We don't want our "Web 2.0" applications to lock us out of our data and the computer-network functionality we rely on to be productive.
The Economist had an interesting article last year that predicted that the US telecom companies were waiting for bailout money to invest in infrastructure. With this new stimulus package on the horizon, I'm sure some evidence to support their argument (i.e. irate iPhone users) that it's necessary would go a long way. AT&T has every incentive to get taxpayers to foot the bill, and they'd effectively be punished if they spent their own money on it (it's not like they'll get reimbursed).
Wtf? I for one am not "the next terrorist." This isn't about trying to do anything illegal, it's about privacy. If I'm trying to send my lawyer some confidential files I don't want to direct him to find some image on facebook. I want to send him the file. And I want the communication to look no different than any other message I send him or my mother.
I understand the GP's point to be that this invasion of privacy proposed by the U.K. government isn't an effective way to prevent, deter or intercept terrorist communications (i.e. because steganographic techniques on other sites such as YouTube and eBay would be considerably more effective).
The more interesting bit of the study is that (if I recall correctly): If you were religious (versus non-religious), you were twice as likely to not have a living will (70% versus 40%), twice as likely to not have life insurance (70% versus 40%), and much less likely to understand a do-not-resuscitate order (don't remember the stats).
The study also covered Medicare expenses by race. This was also interesting, as Caucasian required something in the order of $20,000 (per year, I believe), black $26,000, and Hispanic $31,000. There was a strong correlation between religiousness and race, namely black and moreso Hispanics were more religious (and again, less likely to have life insurance, a will, or understand a DNR order).
Religious people are more likely to fight longer to stay alive, which I recall the study signatories saying was attributed to a sense of meaning, purpose, and comfort that religious people had.
I just read the study a day or two ago - I can't find it now, though.
My personal take is that religion is probably just an indicator of the level of education, modified by cultural attitudes. Religious piety and lower levels of education seem to correlate.
The first paragraph would be better if it read:
The Rules of Civil Procedure [canlii.org] govern the procedure in this case. There's nothing new about this case, per se. Anything published on Facebook that is relevant to a proceeding is considered a relevant document, and the laws of Ontario oblige disclosure (even if that document was private, notwithstanding exceptions such as solicitor-client privilege) by the person with control over it.
The Rules of Civil Procedure govern this case. There's nothing new about this case, per se. Anything published on Facebook is a relevant document, and the laws of Ontario oblige disclosure (even if that document was private, notwithstanding rare exceptions for such as solicitor-client privilege) by the person with control over it.
The relevant section governing documentary discovery is Rule 30. Rule 30.01 defines "document", and 30.02 places an obligation on a party to make appropriate disclosure of all relevant documents. The curious can read more about a report on electronic discovery in the Ontario Bar Association's guidelines (pdf) (see also OBA "e-discovery"), and a e-Discovery web-site.
I've reproduced cited excerpts of Rule 30, here:
RULE 30 - DISCOVERY OF DOCUMENTS
INTERPRETATION
30.01 (1) In rules 30.02 to 30.11,
(a) "document" includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form; and
(b) a document shall be deemed to be in a party's power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.
SCOPE OF DOCUMENTARY DISCOVERY
Disclosure
30.02 (1) Every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.
There are some interesting scenarios related to Sedona obligations, namely the obligation to not destroy or delete electronic documents once a party has been advised of the potential relevance of certain electronic documents.
Thanks for following up.
You rightly note that "authorise" is not defined, hence it's given it's normally everyday meaning. You attempt to subvert that meaning to be a technical computer related meaning. If the measure is ability to access - which it would need to be for the BBC to be authorised - then any cracker would be authorised and the CMA is useless, that can't be the intention of the draftees.
I'd speculate that the argument authorise is "given it's normally everyday meaning in the context of the statute in which it is used" is quite likely to fly. For reasons below, it's not relevant (i.e. I discovered a section of the CMA that defines unauthorised).
Portscan
1. Intent is important and almost certainly unprovable. If your computer is server and they scan the service ports (of the advertised services) then absolutely no issue. I think that connection to the network authorises probing for services that doesn't inhibit operation - if they then act maliciously the law should cut in.
I would point out that the BBC didn't act maliciously nor inhibit operation. Why does the BBC's act give rise to liability under the CMA, but a portscan would not?
Does that boil down to: What's the difference between a sendmail-like program doing something without authorization and the TCP stack doing something without authorization? Where's the difference?
Install beneficial software
5. What's a public computer - most computers owned by local government, etc., say you may not install software without permission. If you have permission then it's authorised, if not ...
What if you remove a keylogger from an internet terminal? The keylogger may inhibit your use of the computer, but you don't have the consent of the owner of the internet terminal (and you are certain that owner doesn't know about it). How is that different from the BBC removing software from the internet which inhibits their use of the internet (i.e. botnets target the BBC)?
Again the term "authorised" is the standard laymans term.
I'd argue not, but as you observe this leads to the absurdity:
If I crack your password and so have your user:password pair I still am not authorised to use them. Authority !== ability.
I'd argue that this cracked password scenario is dealt with by criminal trespass laws, not the CMA. That way there is no absurdity: the CMA deals with the specific case where you have committed an offence because one accesses a computer without the proper authentication; criminal trespass gives rise to an offence because one accesses a computer with proper credentials but without the permission of the beneficial owner. They're different, distinguishable, and arguably more coherent when read that way. Otherwise there's some duplication in the law - the law of criminal trespass (i.e. subverting use of a proprietary interest) and the CMA s.1 (i.e. use without proper credentials) do the same thing (even though the CMA is unclear on what 'authorize' means, and - per the principle of statutory interpretation expressio unius est exclusio alterius - it doesn't mean 'permission').
I had a quick look but didn't find criminal trespass in the British statutes, but I'd assume that it would cover the case where someone uses a computer without permission but with the proper authorization (i.e. username+password). Criminal trespass would require a parallel analysis, and there are a long number of defences to criminal trespass that need to be taken into account.
Ha! I just found the definition of unauthorized in the CMA. You may ignore the above arguments on what the definition of "authorize" is, but it is somewhat interesting reasoning so I'm leaving it in. The relevant bit of the statute is:
Having said that, I don't necessarily buy into all your arguments.
Thank goodness-- healthy skepticism is gold in any constructive legal analysis. (Especially of anything I say!). I don't think a judge would buy all (or even most of) my arguments, either -- but they might only need to buy one of them. Often a Judge will have made up their mind on what is fair - and I think the "colour of right" is on the BBC's side - and then the Judge would look for a legal route to that conclusion - the job of a lawyer is then to give the Judge the legal tools to get there.
Thanks for weighing in.
I'm not going to go into all the problems I see with your assertions, but doesn't Pepper vs Hart merely talk to using the legislative background where the clarity of the statute is lacking. There is no lack of clarity in the CMA unless you attempt to give the words other than everyday meanings (outside of /noscitur a sociis/).
I interpret Pepper to stand for the proposition that where the legislation is ambiguous (1) the legislation can be interpreted within the context in which it arose (i.e. by turning to Hansard's transcripts, etc.); and (2) with a view to the purpose of the legislation. This is a typical statement of some of the tools used to resolve ambiguities in purposive/liberal interpretation.
I think there is obvious want for clarity in the CMA.
Good reference to noscitur a sociis.
You've attempted to apply a narrow or technical interpretation of "authorised" it simply means here did they ask the people who owned the computers if they could use them in the manner in which they were used. Having access to botted computers doesn't make you authorised anymore than having access to lock picks makes you authorised to enter any locked door you choose.
The word "unauthorised" is not defined in the statute, as you assert. Foremost, "authorization" is not the same as "permission from someone with proprietary interest". For example, authorization can come from having a password; permission does not. If the legislature had meant permission, they would have said permission (principle of legislative competence). The legislature said authorization, which is in its plain and ordinary meaning includes at least two definitions: 1. Granting of permission; 2. Having access rights (viz. able to authenticate, e.g. username & password). In this case, the latter is preferable for a few reasons, namely:
(i) it's a statute about computers and the common use of the language "authorize" with computers is the latter;
(ii) the statute does not talk about *who* can/should/must authorize; it doesn't mention ownership, property, proprietary interests whatsoever, which leads to absurdities (violation of the golden rule);
(iii) the ambiguity is to be interpreted in favour of the accused (generally, and probably in this case because it is a punitive law).
Excuse me, you don't really think that's the everyday interpretation (literal) of "authorise"? Who else, in your opinion, has the right (other than a court with a warrant) to authorise your access to my property?
As mentioned, what does an exclusive proprietary interest have to do with this statute? That's certainly relevant to tort, and criminal trespass. I don't see how it applies to this statute except to perhaps indicate who may be able to "authorize" access, provided that the definition of authorize is "an owner having given permission" and not the more concise "having access credentials".
I do think you have hit a useful counter-argument to the defence of the narrow interpretation of "authorize", and I think a prosecutor would raise it. It boils down to something like: Is this a statute that bases liability on the definition of authorization as doing something without logging in? If not, then what is the definition of authorize? Who authorizes? Some examples may illuminate- which of these is unauthorized:
- An unknown person portscans your computer.
An owner turns on a web-server on a personal computer. It provides no warning that the public are not authorized to use it.
- It is accessed by someone on the internet accidentally, but they continue to use the web-server intentionally.
- It is accessed by a bot that reads your email address and signs you up for SPAM.
- It is accessed by a bot that attempts to exploit a flaw.
- It is accessed by a bot that installs botnet software on your machine by exploiting a fl
Interesting points - thanks for following up.
First: the CMA is very careful to mention both programs and data in each major section. You cannot assume that the act is only meant to prevent access to private data.
It is not an assumption, but an interpretation of the provisions of the statute based on the language provided in the header to CMA section 1.
Third: Each major section consitutes a separate offence. Again, you cannot assume that access to programs don't count because you happen to interpret the wider goal of the Act to prevent access to private data. The Act says what it says, regardless of the wider intention you read into it.
You are arguing for what is known as strict interpretation, an archaic and essentially dead method of statutory interpretation. It is not how statutes are interpreted in the modern common law. The modern approach is called "liberal interpretaton" or "purposive interpretation". In England, this principle of statutory interpretation is set out by the House of Lords in Pepper v Hart (1993).
As a general rule, the purpose or perceived intent of the legislature is the law derived from statute. Thus the strict language of the act is relevant, but that is not the end of the story when presenting your argument to a Court (or rendering a decision as a Judge).
Fifth: The BBC caused the computer to perform a function without the authorisation of the owner. It is irrelevant that the owner did not create the means for them to do this, or may have been unaware of its existence. This is not a defence.
Well, go back to your language-is-important argument. The language of CMA 1 is "he causes a computer to perform any function with intent to secure access to any program or data held in any computer"
The access was already secured by a function that predated the BBC's actions- when the botnet took over the computer. That is not what the CMA finds to be an offence under section 1 (which I'm focusing on for expediency). If the BBC installed the botnet, that'd be different. However the botnet was pre-existing.
How did the BBC cause a computer to perform a function to secure access to a program or data to which they were not authorized? A prosecutor must show every element of that question satisfied beyond a reasonable doubt. I'm not confident they could.
Further, the prosecutor would likely have to bring forward victim statements. I can imagine the interviews: "So, I understand you own a computer ... it had a virus ... the BBC took over your computer as part of an investigation and then removed the virus from your computer. How has this affected you?" This practical consideration goes to de minimus - who is the victim and what harm does this punitive legislation seek to prevent?
Sixth: If you publish a service for consumption by others, then it is reasonable for others to consume it, and accessing this service would not be an offence. However, it seems highly unlikely that most of the computers fall into this category.
This goes to complicity and unawareness by owners, an easement around their proprietary interest in their computer, and hence the ability of a prosecutor to successfully argue that the access was indeed unauthorized if it is not dominion over which an owner actually exercised exclusive control (i.e. 1. this wasn't part of the owners' computer for all intents and purposes; and 2. owners didn't have the ability to grant authorization).
Seventh: the BBC cannot authorise access to someone else's computer, regardless of whether they are on the botnet themselves. The basic test of authorisation is that if they do not *know* whether they have authorisation to access a given computer, then attempting access is unauthorised. Absence of knowledge does not give you a free pass to attempt access
See: this post.
Thanks for posting the reference. Now that we have a statute (which I'm confident the GP did not have awareness of), we can get into statutory interpretation, which again goes against certitude. Just a few notes, that I think defence counsel could use to run with this:
First, a purposive perspective. Looking at SS 1. (1): the title is "Unauthorized access to computer material", the key being "material". It implies that the legislature was attempting to stop access to material - data - information. No material (data or information) disclosure was the intent, subject or result of the BBC's actions.
Second, ambiguities in interpretation are typically interpreted against the drafter. Ambiguous or undefined terms include "access", "material", "unauthorized" in this statute-- bear this in mind below.
Third, the statute should be interpreted as a whole. The titles of SS 1, 2, and 3 are:
1 Unauthorised access to computer material
2 Unauthorised access with intent to commit or facilitate commission of further offences
3 Unauthorised modification of computer material
I'd say what you are looking at is an attempt by the legislature to prevent access to private information, to increase culpability for concurrent offences, and prevent modification to private material. This constitutes the essence of the statute, and I'd argue that it's purpose derives from these three titles, and that the BBC has not done anything that is contrary to the purpose of the statute (which mostly flavours the rest of the argument, but can be persuasive in an appellate court)
Fourth, there are the defences I posed (journalistic defences, good Samaritan, public policy).
Fifth, reading "SS 1 (1): (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;" -- the botnets already had access to these computers, therefore the BBC did not perform a function with intent to secure access -- they bought access that someone else had already secured.
Sixth, who is to say these botnet computer owners did not willingly participate in the botnet? At some point the owner either intentionally or unintentionally installed botnet software.
Seventh, did the BBC meet the "SS 1 (1) (b) the access he intends to secure is unauthorised;" test. Namely: was it truly unauthorized access if it is not known if the botnet computers were or were not willingly put on the botnet? Alternatively, by being on a botnet is the BBC not implicitly authorizing access? Didn't the BBC have technical authorization to access the botnet? What is "unauthorized"? Who decides that? Go back - ambiguities are resolved against the drafter of the criminal code in most commonwealth countries.
Eighth, the statute does not appear to have the purpose of preventing access to "extra" functions. Your browser changes things in your cache as you browser, it shares private cookies on the internet without your permission, MS Windows performs all sorts of unknown and "unauthorized" things such as automatic updates. Where does one draw the line between those extraneous actions of software on your computer that are essentially harmless, and the malicious invasion of an individual computer's autonomy? I'd say that line is, and was intended to be by the legislature, where private material is accessed in a way that benefits an accused to the detriment of the affected, and that this distinction.
Ninth, this case probably doesn't meet the de minimus test for harm from a criminal act to justify prosecution (the counter-argument to this is that the BBC has created a bad precedent, opened a floodgate-- counter-counter argument: have they?).
Finally, this is quasi-criminal therefore all of the facts giving rise to criminal act, including the requisite intent at the time, must likely be proven beyond a reasonable doubt.
I'm not suggesting that people can go out and acquire botnets even for what
Nifty wiki links:
Van Eck Phreaking
TEMPEST
Rainbow series
Interesting cite; thank you. I've only glanced at it, and I do not believe it contains any offences which the BBC has committed-- though I stand to be corrected. I don't know where the case law in Britain may have taken the interpretation of this statute.
The relevant offences are reproduced below for discussion:
Computer misuse offences
1 Unauthorised access to computer material
(1) A person is guilty of an offence if
(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;
(b) the access he intends to secure is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case.
(2) The intent a person has to have to commit an offence under this section need not be directed at
(a) any particular program or data;
(b) a program or data of any particular kind; or
(c) a program or data held in any particular computer.
(3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.
2 Unauthorised access with intent to commit or facilitate commission of further offences
(1) A person is guilty of an offence under this section if he commits an offence under section 1 above (the unauthorised access offence) with intent
(a) to commit an offence to which this section applies; or
(b) to facilitate the commission of such an offence (whether by himself or by any other person);
and the offence he intends to commit or facilitate is referred to below in this section as the further offence.
(2) This section applies to offences
(a) for which the sentence is fixed by law; or
(b) for which a person of twenty-one years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or, in England and Wales, might be so sentenced but for the restrictions imposed by section 33 of the [1980 c. 43.] Magistrates' Courts Act 1980).
(3) It is immaterial for the purposes of this section whether the further offence is to be committed on the same occasion as the unauthorised access offence or on any future occasion.
(4) A person may be guilty of an offence under this section even though the facts are such that the commission of the further offence is impossible.
(5) A person guilty of an offence under this section shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both; and
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.
3 Unauthorised modification of computer material
(1) A person is guilty of an offence if
(a) he does any act which causes an unauthorised modification of the contents of any computer; and
(b) at the time when he does the act he has the requisite intent and the requisite knowledge.
(2) For the purposes of subsection (1)(b) above the requisite intent is an intent to cause a modification of the contents of any computer and by so doing
(a) to impair the operation of any computer;
(b) to prevent or hinder access to any program or data held in any computer; or
(c) to impair the operation of any such program or the reliability of any such data.
(3) The intent need not be directed at
(a) any particular computer;
(b) any particular program or data or a program or data of any particular kind; or
(c) any particular modification o
Regardless of intent it is illegal. They are gaining unauthorized access to someones PC and using it for their own personal gain. If I were to demonstrate how to crack someones WEP key in 5 minutes without the victim's explicit written permission it would be illegal, even if done just for "educational purposes." Sure, it's edgy reporting, but it is still highly illegal.
Why do you say that? These statements have no legal meaning or merit.
I'm not overly familiar with British criminal law, per se, but I am handy in the commonwealth legal principles (having studied law in three commonwealth countries, and being a lawyer in a commonwealth country and New York state), and while anyone would need legal advice specific to their jurisdiction (i.e. none of what I'm saying is legal advice), I can say with reasonable confidence that this act of the BBC would be criminal in only two scenarios:
1. There was mens rea, or the guilty mind, component of a criminal act; or
2. The BBC committed a crime where mens rea is not required (viz. a crime of strict or absolutely liability).
As the guilty mind seems to be lacking on these facts, only crimes of strict liability may be laid against the BBC. As I don't know of any strict liability crime arising from these facts, I surmise that they have not broken one, but I stand to be corrected.
It may be a civil wrong that is a species of trespass, or that violates some statute specific to computers and/or the internet, but in the absence of provable damages by someone affected (i.e. the botnet computer owners or the DoS'd computer), there is no cause of action that would give rise to a lawsuit. The botnet owners don't know they are on a botnet, so their damages are negligible -- if anything I would argue they benefit from being taken over by the BBC as opposed to someone with actual malicious intent. The DoS'd machine is presumably one owned by the BBC.
Even if found to be guilty of civil or criminal wrongdoing, the BBC may have a complete defence because their act was taken as part of a protected form of investigative journalism or alternatively because they are acting as a good Samaritan in the public interest. They seem to be acting with the interest of exposing to the public and documenting a very important situation on the internet. Their investigative journalism is good for the public and the owners of the botnet who may thus become aware of their participation in this grand malicious scheme. In addition to these defences, it would be bad public policy to stifle such valuable investigative journalism.
In any case I'm confident that the lawyers for the BBC have given this due consideration. That a large, sophisticated corporation actually did this for the purpose of publication, and then did publish it, strongly suggests that it is not illegal.
In the United States your mileage may vary (i.e. taking control of a botnet even with good intentions may be illegal). There are a large number of laws that are driven by commercial interest groups, which laws give rise to "criminality" in spite of the public's interests to the contrary. Thankfully most of the world, including the BBC, isn't generally subject to these laws.
Please don't mislead people with sensationalistic statements like "highly illegal", without at least providing some modicum of support for these otherwise bald assertions. What criminal law do you think the BBC broke? Your post appears wholly incorrect, unsupported and misleading. It distracts from the real issues at hand, wastes readers' time, and is disrespectful to those who value facts and truth. Please consider taking the time to research your assertions before posting to a public forum like this. Thank you.
It's a trick. Get an axe.
You have a bachelor's degree in philosophy and are now in law school. Am I correct?
No, on both counts.
Justice is blind, and even more so when technological cases are heard in an anglo-saxon setting, where customary law (precedents) is king.
Look up. See that big swooshy thing that just went over your head. It is called ironic humor. The mixed references certainly appear to be done on purpose (at least that's how I read it).
The test for irony I use is to take the meaning of the words in their normal sense, and then convert them to the the opposite meaning. The potential opposites of the OP would be either:
* Customary law (precedents) is not "king", which doesn't add anything.
* Justice is not blind, which has no meaning in this context
* Justice is less blind in technological cases, which has merit if the OP was suggesting that Justice is more subjective when dealing with technological cases. I doubt this was the OP's meaning for two reasons (1) Justice isn't made on subjective bases when it comes to technological cases, it's apparently made on ignorant bases; and (2) the language and delivery of the OP do not suggest as much thought went into it.
I don't take the meaning of the OP to have been any of these opposites that would give rise to irony, but I stand to be corrected. I took, rather, the meaning of the OP to be "Justice is blind", as in justice is oblivious, particularly in the common law countries where we set down binding precedents that would exacerbate that obliviousness.
Justice is blind, and even more so when technological cases are heard in an anglo-saxon setting, where customary law (precedents) is king.
I think you're mixing a number of references, there. Justice is blind is a reference to the notion that justice ought to be objective, a concept going back to (at least) the Babylons. I don't think objective (versus subjective) reasoning in any takes away from "justice", which seems to be what you are implying.
"Customary law (precedents)" is presumably a reference to stare decisis, a concept of binding precedents which dates back to the Normans invading Britain around the 1100's I believe. Stare decisis generally occurs only when a "higher" Court (i.e. an appellate level Court) makes a decision. The lower Courts are bound to the decision of higher Courts, subject to law and fact that distinguishes the case at hand from the case of the higher Court. Courts of the same level are generally not bound (though it is generally considered polite not to change the law the same Court had previously made - case made law is in principle, after all, not creating law, but illuminating an already-existing truth).
In terms of facts, though, appellate Courts generally defer to the Court of first instance (i.e. the trier of fact, or trial court), because the judge at the first instance will have heard the facts from experts first-hand. However, there is generally a discretion in appellate Courts to overturn rulings of the Court of first instance on the basis that the trier of fact made errors that were incorrect, unreasonable or patently unreasonable (depending on the nature of the appeal and the Court in question).
In the Ontario case in question, I haven't read the reasons of Justice Leitch, but if she took "judicial notice" of the analogy between an IP and an address (i.e. no experts were called), a higher Court may alter that. However, if an expert posited that analogy, then it is very unlikely that the decision will be overturned by a higher Court (i.e. the Ontario Court of Appeal). In both scenarios, it's possible that subsequent decisions would be made on different facts, and this wayward analogy would be debunked.
Right, as if companies like Xerox and IBM have done any better at turning research into products? Remember that System R* was an IBM research product that they spent millions on, then just sat on the shelf. It wasn't until Larry Ellison took IBM's Relational Database specifications and proved you could make money with it by founding this little database company named Oracle that IBM decided they should get off their ass and come out with DB2. Why should we expect Microsoft to do any better?
My word.
First of all, what do the inventions of IBM and Xerox have to do with Microsoft's culture depriving them of the ability to innovate? Why does profitabilty equate with valuable innovation? (The internet, Linux, etc. are free, but they're extraordinarily valuable innovations-- they make my life better) And in any event, the example companies given are two of the most influential technology companies in history.
IBM has made innumerable inventions--- where does one even begin? FORTRAN, the first programming language. The RISC architecture and a dozen processors. Mainframes. COBOL. Magnetic storage. Supercomputers Deep Blue et al. SQL. DRAM. How many dozen examples would you like? Pick any random computer technology and there's a decent chance that IBM contributed to its invention. One can hardly overlook their contributions to "pure" physical sciences and nanotechnology, too. Regardless of whether they profited, IBM has been a remarkable innovator.
In its day Xerox was responsible for making revolutionary inventions, especially noteworthy are the photocopier, the mouse and the GUI. Moreover, they're a company with a market cap 1/34th the size of Microsoft, so a rational person would expect Microsoft to have a significantly higher number of useful inventions in absolute terms, but I doubt they do. Microsoft continues only to peddle their monopolies, mostly I imagine because they don't know how to do anything else.
Xerox PARC was also responsible for the innovations that lead to Apple. While they didn't capitalize on them, they certainly invented things that were useful, and that others capitalized on. Microsoft hasn't really invented anything, much less something they can capitalize on.
The history of Microsoft is markedly devoid of innovation. They stole an operating system and locked IBM into a contract whereby IBM had to pay Microsoft a licensing fee for every PC sold, regardless of whether that PC had Microsoft DOS on it. They've basically done nothing since, except leverage their guaranteed revenue to buy or imitate and destroy competitors. I vividly recall dozens of companies falling to "embrace, extend, extinguish" (or, lest we forget, actively sabotaging competitors' software running on DOS/Windows).
I'm not sure what your comment is getting at, but it is as painfully devoid of reason and fact as Microsoft's history is devoid of innovation. Next time you consider posting something like this, please give it a second thought. It's not adding anything to the discussion, and it misleads readers.
Thanks.
It's all about culture. Microsoft has a culture of leveraging guaranteed income via a monopoly to steal or buy the technology of other companies. However, at the root they do not have a culture of innovation, and when it comes time to innovate, they just don't seem to know how.
it would be completely unique somehow it manages to dominate market share, and yet its competitors can copy any of its features or redistribute their own flavor of the same product?
Unique is a bit strong. See: Apache. Bind. Sendmail. Wordpress/Drupal/Joomla. Virtually any open source project that can be said to "dominate market share" would apply.
I get real tired of people who are willing to tell others in tough situations how they "should" act. Think it's that easy? Try it then. Enlist, go through basic, see the kind of mental and physical conditioning soldiers are subjected to. See what the culture and rules are like. Then see if you think it's so easy to just say "Nope, don't like that order, not going to do it."
If you are not alerady, you should be aware that this argument, the Nuremberg Defence (named after the Nuremberg trials) is not a valid defence against war crimes. All soldiers can be prosecuted for war crimes that they have committed.
As you can see from the above link, the U.S. Uniform Code of Military Justice includes a rule nullifying the Nuremberg defense. As a result, U.S. military personnel are allowed to refuse unlawful orders. Furthermore, all U.S. military personnel are supposed to receive annual training in the Law of Armed Conflict, which delineates lawful and unlawful behaviors during armed conflicts.