Thank you for reading. After putting this much effort into a post, this far down the thread, it's always gratifying to know that at least one set of eyes has seen it.:)
And it sucks, because the leader of the next government is a US-style neo-conservative religious nutter. And his party is dominated by True Believers in US-style trickle-down economics.
I've been watching Tony's political career for longer than most (he buttonholed me outside the Fisher Library in 1978 I think it was). He was a certifiable nutter then* and many of my cohort of students from that degree have been living in fear these past 35 years that one day we would be facing the prospect of his leading an Australian government. [*To be to fair to Mr Abbott in the '70s, he was in this more than outbalanced by members of the "loony Left." We tend to forget that the rejection of material reality which now forms the central plank of the neo-con/Tea Party ideology, was once the province of the more radical sects of the Left. For instance the ideologically motivated denial of Climate Science is an echo of the denial of Plate Tectonics which was at one time held to be inconsistent with Marxist dialectical-materialism! A position which would no doubt have perplexed even Dr Marx.]
However, it appears to me that, like most of us, Tony has mellowed with age. I find his opportunistic "blood pledge" to repeal a market based solution for addressing carbon usage with an ironically more "socialist" orientated Direct Action approach to be highly reprehensible (and one hopes unsuccessful). Similarly, once in government, one hopes they will recognise the folly of their ways in regard to the NBN rollout. In general, however, I don't think we should be overly concerned about the radicalism of his current political position. His adherence to "trickle-down economics," for example, is I think is vastly overstated, my feeling is that his personal economic position has developed from the kind of Catholic corporatism preached by his mentor B.A. Santamaria. But here too he has become less ideological. Moreover his views in regard to the academy (and pure research) are far more enlightened than anything we've witnessed in Australia's recent anti-intellectual history. To the point that some of use working in the sector (traditionally part of the natural constituency of the centre left) dare to hope for some small moves to correct the wrecking of Australia's university system which began with the Dawkins "Reforms."
However, not only has Tony's ideology been mollified by age, his ambition too has overtaken his principles. Remember this is the guy who, we are to believe, when bargaining for government at the start of this hung parliament, told an independent either that he would "sell his arse," or do "anything but sell his arse," to become P.M.
It's not what Tony believes that you need to worry about. It is the editorial policy of the company which publishes the Daily Telegraph and the Herald Sun is that will once again determine the policy direction of the country. Witness now what happens to any government that dares not tow the line! Abbott's ambition will preclude him from making the same mistake.
The current government's incompetence...
A case in point. While this has perhaps not been the most stellar government in Australia's history, the fact that even you have been sold the idea of the government's supposed "incompetence" is a the real concern. True, there have been political mistakes made. Most recently Ms Gillard's raising of the "abortion" issue. An crude attack on Mr Abbott's catholic faith, and an issue on which Tony, his ambition taking the driver's seat, has taken a leaf out of Pilate's book. Made all the more inept by the fact that the coded term "reproductive rights" would have satisfied the present audience just as well. Or allowing the Carbon "Tax" (which is actually a trading scheme with only a temporary lead-in tax like structure) to be known as a TAX (booword!).
However, putting aside emotive public discourse for a moment... any dispassionate assessment of the current gover
Yet you still wind up with a government that's competing with the UK and USA for the Police State Award.
Do we?!
I mean the inept Australian government actually felt it necessary to go to parliament to get legislative power to do what the UK and USA Police states just went ahead and did.
In Australia we were displeased because we were informed about the government's intentions. The US and UK governments did not see fit similarly to displease their respective constituents. The Australian government has backed down in the face of both public and parliamentary opposition to the plan. Do you seriously believe the US or the UK are about dismantle their machinery? For all the articles the Guardian may publish?
Not much of a competition I would say.
Democracy... I'm occasionally hopeful that it might work after all.
It's a $50 fine. Plus you only have to get your name crossed off.
I got fined once for failing to vote in a local council election, it was $10 back then. I tossed the fine in the bin, I mean a council election, pull the other one. That was close to a quarter of a century ago... I'm still waiting for them to get back to me so I can mount my brilliant legal argument about local govt. not having any constitutional standing.
So now they are going have this referendum to give local govt constitutional standing?!!!! OMG, is this going to be retrospective? I'm packing it mate!;)
It's all about how many alternatives you have to exercise your free speech.
As well as how many alternatives you have to access the products of someone else's speech. Agreed.
If a monopoly corporation restricts free speech, that's really little different from the government doing it, because again you don't have any real choice... The same goes for oligopolies
Yup, that's my concern.
Indeed, even if the government isn't colluding with or forcing the corporation to restrict free speech, they're neglecting their responsibility to regulate monopolies (and break them up when they don't serve a useful purpose and are abusive), and in effect, colluding with them (a "sin of omission", you could say).... And again, it's the government's responsibility to regulate and break up oligopolies, just like with monopolies.
It may of course that the government is simply to afraid to tackle the information gate keepers at whose sufferance they "govern."
But sure, It is arguable that it is just for a government to restrict the businesses of companies who are tending towards monopoly/oligopoly especially in the cases of corporations. That is, since the corporate form (in contradistinction to partnerships, joint stock or family companies etc) exists as a creature of parliament, --ie. the legal personality and limited liability they enjoy has been bestowed on them by ThePeople as a social quid pro quo --it is just that their activities be subject to reasonable public control. How impinging on the proprietary rights (even for the avoidance of monopoly) of a non-incorporated entity might be justified is perhaps not so simple.
Whoever you want to hold responsibly I would simply reiterate your opening statement: It's all about how many alternatives you have. Or to put it another way, it is about the power to restrict the free choice of another, (whatever form such power takes), and whether this power is being exercised arbitrarily.
However, to call it "censorship" when a minimum-wage worker who pays $3/month for his blog hosting service deletes inflammatory comments is really stretching things.
Absolutely. Moreover if said blogger (and bloggers in general) were to have the honour to delete comments, not on the basis of disagreeing with their author's sentiments, but on the basis that they are inflammatory or simply stupid, we may have a situations where "censorship" actually aids information flow.
Wrong. That's still censorship, just in an indirect and underhanded way.
Why? Is it because censorship is "something governments do" (and would it then still be censorship if the CEO were not the President's brother?), or is it because censorship is essentially restricting the flow of information. Because if it is the latter we should be just as worried about about censorship arising as an expression of corporate power as of state power. In the C18th when the government was seen as the solitary locus of power this was not a concern, but our notions of censorship need to adapt to contemporary reality (eg. Walmart's pro-active censorship). And of course censorship is even more about what we see (read) rather than what we say.
I'm not saying that a blog owner need accept all comments, duh. Nor am I even saying that all censorship is bad... very few people, even those who claim to be 100% anti-censorship, would accept child porn (which is, outside the US, almost everywhere illegal per se) openly for sale at their local supermarket. Rather I think that an outdated understanding of censorship, which sees it almost by definition as an activity restricted to government, will increasingly fail to be able to deal with the real threats to the free flow of information which are emerging from other loci or power.
Moreover, if an ISP (which is the company that provides you internet access to your location; ISPs are not the same as web hosts) exercises any control over what you say or do on the internet, then they lose their common carrier status...
Not entirely relevant as this may be the case at current US law and my hypothetical Banana Republic was not the US (nor am I in the US). But sure, I'll concede choosing an ISP was perhaps not the best example. However being in Australia where the government regularly tries various schemes to get ISPs to filter our access, you'll forgive me for that (and yes this would obviously be government censorship). I would add that living in Australia I'm every bit as concerned to one single corporation which already claims 70% of the newspaper readership is actively campaigning to undermine media diversification laws so that it can repeat this in the electronic media as well.
It's only censorship when the government prevents you from exercising your free speech rights.
From which definition of 'censorship' it follows, that if a government were to allow only a single ISP to be registered, that ISP (not being a government entity), can prevent you from exercising your free speech rights, that would not be not censorship. Sure the company is run by the prime minister's brother... but it's a private company.
Of course this a purely an hypothetical to illustrate the insufficiency of so uncomplicated an understanding of censorship. We have to good fortune to live at a time when the means of communication could never be concentrated into the hands of a few large corporations.
I doubt any jurisdiction could ban minors completly from contracts, or else they couldn't do as much as buy an ice cream or a coke on their own.
That's why I tell my kids all those toys they bought... they actually belong to meeeeeeee! Muhahahah!
For example, 110 BGB [gesetze-im-internet.de] is the law that adds that exception to the general "no contracts with minors" rule.
You are citing legal German at me? Completely unfair, it is guaranteed that your understanding of it exceeds mine by a few hundred percent. But since you have been intrepid enough to argue common law with a common law lawyer, I'll be cheeky enough to return the complement...;)
So here's your opportunity to shoot me down in flames: While I can't actually read that provision, I wonder if it does support your argument (a minor to enter a contract, as opposed to forming one... my this is getting pedantic). From what little I can parse, the provision would seem to make a contract valid ab initio which a minor purports to enter, where the means to fulfil the contract have been furnished to said minor for that purpose by another with the capacity to enter a contract. (ie. it speaks to the validity of the contract rather than the status of the minor.) Should I have parsed this correctly, this would leave the Vertretter or den Dritten as the contracting party for the purposes of any future legal action, oder?
LOL, you have to give me marks for my Tapferkeit, but then I guess German is not all that far removed from English;)
Most "uniliteral offers to the world" are NOT seen as a binding offer, but rather an invitatio ad offernadum, an invitation to treat
FB is making a single and final offer to all qualified to accept it. Take it or leave it. There is no question of treating. Nor is there any ambiguity as to what is on offer or the steps required to accept it. One would be hard pressed to devise an hypothetical which more clearly demonstrates an offer to the world that is not an invitation to treat.
Given the rest of your argument falls away as a consequence I should leave it there but to make two observations.
Firstly, if it is the case that American courts look to a party's domicile in assessing capacity, the question of where the contract was formed is inconsequential even at US law. Finally, (and this I believe was my original point), as the process is taking place in an Italian court all questions of jurisdiction, contractual formation and capacity must be decided according to Italian law. Rendering our entire conversation impertinent (if somewhat interesting).
In the first place, I did not really mean to refer to the present case in writing the above post. Rather I was debunking in general the kind of legal chauvinism GP was entertaining. However, since you are interested in the law...
Did the girl come to facebook or did facebook come to the girl to "sign that contract".
Given that humans cannot yet physically travel by internet and web sites like FB can, it's seems clear that FB "c[a]me to the girl.";)
Seriously though, you are opening a can of worms --by the name of Conflict of Laws --here. It's such a can of worms in fact that almost any written contract which might involve parties from different jurisdictions will nowadays contain a "choice of law" clause. As, no doubt, does the FB ToS (I haven't looked). However, working on the presumption that the contract was made in Italy, where the girl lacks capacity, that clause would not come into play.
For the sake of argument let's assume accepting the ToS and using a social media site actually forms a contract between the site and the user in all relevant jurisdictions, all other things being in order...
To restate the facts: FB makes a Carbolic Smoke like "unilateral offer to the world." A minor (lacking in her jurisdiction the capacity to enter into contract) sitting in front of a computer in Italy purports toa ccepts the offer.
In my jurisdiction the "postal acceptance rule," which holds inter alia that a postal contract is made in the place from which the acceptance is sent, should be disposative of the question. Acceptance was made in Italy where user lacks capacity and thus no valid contract was entered into (and the choice of law clause which would have determined the proper law is non-effectual).
I'm not a US lawyer (obviously), but I should be surprised if US law did not similarly regard Italy as the place of contractual formation. And although I understand that place of formation is perhaps a less privileged factor in determining the proper law of the contract in the US, I'm led to believe that a special rule as regards capacity makes the minor's domicile the pre-eminent criterion. If I'm not misled that would mean the US law would conclude also that no valid contract was formed. [If any US lawyers can confirm or correct me here I would be interested].
In Italy... in Italy. As a common-law lawyer I have no freeping idea! I mean, what the hell are these Italians on about? I would have thought if she lacked the capacity there never was a contract, so how can they go after FB for "entering into a contract with a minor?!!!" Or is this poorly translated?
So that italian girl did business with an american website....
... in Italy. Whether I buy a can of Coke or a can of Ozzie Cola in Australia the same Australian law will apply.
'Italian law forbids minors under 18 signing contracts, yet Facebook is effectively entering into a contract with minors regarding their privacy, without their parents knowing.''
how is facebook allowing this? did facebook buy the people internet connections? did facebook force her to sign up?
If FB forced her to sign up it would hardly be a contract. You understand contracts are voluntary agreements, yes?
To enter a contract with a user FB would have to offer something (like use of the site) in return for something else, quid pro quo. As far as the latter, some might argue that agreeing to be bound by the ToS and using the site (as FB derives its value from its userbase) was sufficient. I wouldn't venture an opinion how that plays out at Italian law.
you cant blame facebook for any of this
Sure you can and people are. They are arguing, inter alia that FB failed to remove a harassing video (itself in breach of FBs rules) in accordance with FBs undertaking to do so upon receipt an offensive content report. Interestingly the Italian prosecutor's attitude seems not to focus on breach by the corporate entity, but upon FB employees (Italian residents?) who personally failed to act upon the removal request. From TFA:
"There is a procedure for asking for the removal of messages that break rules,'' [Francesco Saluzzo, the Novara prosecutor] said. ''This is an open investigation without named suspects, as yet. Facebook itself is not under investigation. But we could theoretically investigate employees of Facebook who failed to respond to these requests."
Agreed, and moreover for the part of the complaint is that Facebook entered into a contract with the minor, the crap posted on any account would seem to be irrelevant. Really the question is whether agreeing to the ToS constitutes a binding contract in Italy.
Facebook has no obligation to police content to comply with the laws of any nation except the USA.
FB has an obligation to abide by the law of any country in which they do business. However that obligation would be enforceable only in countries in which they have a corporate presence.
So, where do we draw a line between what's machine instructions and what isn't?
Firstly re-reading my post, I was clumsy in what I wrote above. What I meant, what I should have written is that "it's arguably set of machine instructions for an illegal activity." In fact, replacing my programmer's cap with my lawyer's cap for a moment I've come to the conclusion that an argument (final 2 paras) is to be made that manufacture or possession of firearm parts (in contradistinction to the whole firearm), is not covered by the legislation.
However to address your question directly. We leave it to law-makers and courts to draw that line and constantly to update that line as reality changes. And yes, it will be interesting to deal with when the modelling of objects happens as part of a process rather than as a "specification." Perhaps we don't need the human readable plans at all, but only the object to be copied? 3D photocopier.
Did the police break the law building this gun? If not, why not? I am asking you as you sound like you have an understanding of the issues.
Manufacture requires a license or permit [I note now that because this is a pistol ("reasonably capable of being raised and fired by one hand") and thus falls under s50A(2) the penalty is 20 years max... yikes!]. So your question resolves into the question of whether or not the police sought and were granted a license or permit (or as the police ballistics department have a standing permit or even a statutory license).
So it includes assembly from parts, but does it include creation of those parts? Defining what is included doesn't indicate what is excluded.
Actually it normally does! Surprisingly perhaps, traditional judicial interpretation (at least at Anglo-Australian law) is that a list of items "included" thereby excludes items not on list, unless the words "without limitation," "but not limited to" or similar qualify the word 'includes.' If you see phrasing such as "including but without limitation" in legal text in your jurisdiction, chances are the same rule of interpretation applies there too.
That might be the starting point, however modern courts are more likely to lean to good sense over strict adherence to the traditional canons of judicial interpretation (sad I know). An initial problem here is that it is not a list but a single item: if the legislature had intended (we need to deal with the legal fiction of "what the legislature intended" even when dealing with sloppy drafting) to restrict 'manufacture' to "assemble a firearm from firearm parts," then surely they would have used the word 'means' rather than the word 'includes.' Then we start invoking tools such as the mischief rule ("what as the mischief Parliament intended to cure"), new-fangled evidence such as the legislative history etc. Resolving whether 'includes' here is limited (exclusive) or unlimited (inclusive) could possibly take hours of court time and a not inconsiderable amount of money. Law, it truly is the worst from of dispute resolution... "except all those other forms that have been tried from time to time."
But yeah, a system of reasoning which includes (without limitation), non-inclusive 'includes' can be a little mind warping.
At first glance (subject to proper time-consuming legal research)... 'manufacture' is not otherwise defined in the Act (eg. it does not appear as a defined term in s4 'Definitions'), and moreover the scope (if I may confuse my professions for a moment) of this definition would override any higher scope definition (whether in this or another instrument or in curial authority) insofar as there is any inconsistency.
Ultimately yours is the kind of question that it would require a court to resolve. But just to indulge the fantasy for a moment (IAALotSCoNSW, but I don't practise)... against a prosecution argument that fashioning the parts is part of the manufacturing process, we might want to note that the Act make specific provision relating to the sale of "firearm parts" (which definition uses 'means' when it should use exclusive 'includes,'... drafters!), inter alia (which is another way of saying "including without limitation") s50AA which makes it an offence for a person without a license of permit to "purchase a firearm part." Now in this case the part was a) printed out from a specification AND (more to the point) downloaded without a purchase. Thus, we would argue that Parliament intended not to criminalise the giving away and possession of firearm parts. This is based on two other rules of interpretation, namely that the law doesn't use words in vain (ie. the word 'purchase') and the rule that in a criminal trial any ambiguity in the law must be resolved in favour of the accused. (Which canon of interpretation I sincerely hope we don not abandon).
"This being the case, I submit that it can hardly have been in the mind of parliament to outlaw the manufacture of firearm parts Your Honour. "</fantasy> I'll leave it to a criminal barrister to assess how successful this line might be... My advice (which being a non-practitioner is not legal advice), is to err on the safe side and refrain from downloading and printing the components in NSW.
[*As a side note 'purchase' is defined to include (prima facie exclusive) barter or exchange, so the fact that one might use BitCoin would be no defence].
When it's a series of scribbles on a piece of paper, it's not a fucking weapon.
Well it's not a weapon, but it's a bit more than mere scribbles or even a mere design. Given the existence of 3d-printers it's a set of machine instructions for an illegal activity (ie manufacturing). I doubt they'll get this anyway... unless someone gets hurt first and the Tele/Ch9 start frothing at the mouth of course.
Well it's kinda what we were taught at Law School. And btw that should be "plenary power vs enumerated powers", sorry for the inaccuracy.
I don't know the constitution well enough
The (federal) Constitution would not tell you this anyway.
The NSW police would have to petition the State Government to get the laws changed.
Exactly. However previous poster's "sentiment" was, "they can't in NSW... they would need to petition the federal government," which is simply wrong.
IMHO, the appropriate steps for police/governments around the world is to legislate 3D printable weapons regulations that relate to the other laws in their jurisdictions.
In NSW the manufacture and possession of firearms is already governed by the Firearms Act 1996 (NSW). Both unlicensed manufacture and possession are offences. The definition of "firearm" under section 4, to wit,
... a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm.
would seem wide enough to capture this weapon. The only thing new is the downloading of the "design" (actually machine instructions).
The Police are not seriously seeking substantial legislative change here (though they may get some "we are doing something about this" no-effect amendment). This is a consciousness raising exercise.
I'm sure the NSW police department dosn't have a gun manufacturing licence; But since when do police obey the rules any way.
Yup a license is required and yes it's possible (probable?) they forgot to procure one first (mind they probably would get one if they asked nicely). Shame you were not a journo at the press conference.
But they can't in NSW, evidently.... The police will need to petition the federal government for the law
Bzzzzt. Wrong.
Subject only to s109 of the C'th Constitution, the NSW Parliament is a legislature of plenary power, meaning it can pass laws about anything and everything (in contradistinction with the Federal parliament which is a legislature of enumerated power). If the NSW parliament enacts a law saying it is illegal for people born in Botswana to walk down the Champs-Élysées wearing purple underpants, that would be a valid law of NSW (good luck enforcing it though) providing that it does not conflict with any C'th law (s109).
Thank you. Also known as appeal to belief. [nizkor.org] 98% of Americans believe in God. [gallup.com] Therefore, God must exist.
However, what is being said here is not that 97% of any group of people believe in any particular proposition. What is being said here is the 97% of studies in a field, based on empirical evidence and the application of the orthodox tools of science arrive at the same conclusion.
You cannot overcome this merely with an appeal to well-known logical fallacies, or any other rhetorical attack. You would need to look at the published work, show how the data that was missed, the data that ought not to have been incorporated, misapplied statistical methods etc, etc. In short, it is open to you to refute the orthodox position. But not by piss-farting around with rhetoric, or displaying your ignorance of the science of any particular previous climatic period like your common-or-garden variety denier (there I did as you asked)... all you have to do is show us the maths.
And might I add, I wish you every success in that endeavour. I live in hope that one day the IPCC will announce, "sorry folks we were all wrong, the Earth has some feedback mechanism we were not aware of and your great-grandchildren are safe." Anyway must run, I'm off to buy a lottery ticket...
97% of scientific papers does not necessarily equal 97% of scientists
That is true. However what scientists personally believe is rather less relevant than what the science (ie. the ensemble of published papers) actually says. But that too is obvious.
Don't go giving creationists big ideas on how to explain away reality.
Had you bothered to followed that link, you would have noticed that creationists have been running that argument since at least 1857. "/facepalm" indeed Sara.
Slashdot Mirror
Thank you for reading. After putting this much effort into a post, this far down the thread, it's always gratifying to know that at least one set of eyes has seen it. :)
And it sucks, because the leader of the next government is a US-style neo-conservative religious nutter. And his party is dominated by True Believers in US-style trickle-down economics.
I've been watching Tony's political career for longer than most (he buttonholed me outside the Fisher Library in 1978 I think it was). He was a certifiable nutter then* and many of my cohort of students from that degree have been living in fear these past 35 years that one day we would be facing the prospect of his leading an Australian government. [*To be to fair to Mr Abbott in the '70s, he was in this more than outbalanced by members of the "loony Left." We tend to forget that the rejection of material reality which now forms the central plank of the neo-con/Tea Party ideology, was once the province of the more radical sects of the Left. For instance the ideologically motivated denial of Climate Science is an echo of the denial of Plate Tectonics which was at one time held to be inconsistent with Marxist dialectical-materialism! A position which would no doubt have perplexed even Dr Marx.]
However, it appears to me that, like most of us, Tony has mellowed with age. I find his opportunistic "blood pledge" to repeal a market based solution for addressing carbon usage with an ironically more "socialist" orientated Direct Action approach to be highly reprehensible (and one hopes unsuccessful). Similarly, once in government, one hopes they will recognise the folly of their ways in regard to the NBN rollout. In general, however, I don't think we should be overly concerned about the radicalism of his current political position. His adherence to "trickle-down economics," for example, is I think is vastly overstated, my feeling is that his personal economic position has developed from the kind of Catholic corporatism preached by his mentor B.A. Santamaria. But here too he has become less ideological. Moreover his views in regard to the academy (and pure research) are far more enlightened than anything we've witnessed in Australia's recent anti-intellectual history. To the point that some of use working in the sector (traditionally part of the natural constituency of the centre left) dare to hope for some small moves to correct the wrecking of Australia's university system which began with the Dawkins "Reforms."
However, not only has Tony's ideology been mollified by age, his ambition too has overtaken his principles. Remember this is the guy who, we are to believe, when bargaining for government at the start of this hung parliament, told an independent either that he would "sell his arse," or do "anything but sell his arse," to become P.M.
It's not what Tony believes that you need to worry about. It is the editorial policy of the company which publishes the Daily Telegraph and the Herald Sun is that will once again determine the policy direction of the country. Witness now what happens to any government that dares not tow the line! Abbott's ambition will preclude him from making the same mistake.
The current government's incompetence ...
A case in point. While this has perhaps not been the most stellar government in Australia's history, the fact that even you have been sold the idea of the government's supposed "incompetence" is a the real concern. True, there have been political mistakes made. Most recently Ms Gillard's raising of the "abortion" issue. An crude attack on Mr Abbott's catholic faith, and an issue on which Tony, his ambition taking the driver's seat, has taken a leaf out of Pilate's book. Made all the more inept by the fact that the coded term "reproductive rights" would have satisfied the present audience just as well. Or allowing the Carbon "Tax" (which is actually a trading scheme with only a temporary lead-in tax like structure) to be known as a TAX (booword!).
However, putting aside emotive public discourse for a moment ... any dispassionate assessment of the current gover
Yet you still wind up with a government that's competing with the UK and USA for the Police State Award.
Do we?!
I mean the inept Australian government actually felt it necessary to go to parliament to get legislative power to do what the UK and USA Police states just went ahead and did.
In Australia we were displeased because we were informed about the government's intentions. The US and UK governments did not see fit similarly to displease their respective constituents. The Australian government has backed down in the face of both public and parliamentary opposition to the plan. Do you seriously believe the US or the UK are about dismantle their machinery? For all the articles the Guardian may publish?
Not much of a competition I would say.
Democracy ... I'm occasionally hopeful that it might work after all.
It's a $50 fine. Plus you only have to get your name crossed off.
I got fined once for failing to vote in a local council election, it was $10 back then. I tossed the fine in the bin, I mean a council election, pull the other one. That was close to a quarter of a century ago ... I'm still waiting for them to get back to me so I can mount my brilliant legal argument about local govt. not having any constitutional standing.
So now they are going have this referendum to give local govt constitutional standing?!!!! OMG, is this going to be retrospective? I'm packing it mate! ;)
It's all about how many alternatives you have to exercise your free speech.
As well as how many alternatives you have to access the products of someone else's speech. Agreed.
If a monopoly corporation restricts free speech, that's really little different from the government doing it, because again you don't have any real choice ... The same goes for oligopolies
Yup, that's my concern.
Indeed, even if the government isn't colluding with or forcing the corporation to restrict free speech, they're neglecting their responsibility to regulate monopolies (and break them up when they don't serve a useful purpose and are abusive), and in effect, colluding with them (a "sin of omission", you could say). ... And again, it's the government's responsibility to regulate and break up oligopolies, just like with monopolies.
It may of course that the government is simply to afraid to tackle the information gate keepers at whose sufferance they "govern."
But sure, It is arguable that it is just for a government to restrict the businesses of companies who are tending towards monopoly/oligopoly especially in the cases of corporations. That is, since the corporate form (in contradistinction to partnerships, joint stock or family companies etc) exists as a creature of parliament, --ie. the legal personality and limited liability they enjoy has been bestowed on them by ThePeople as a social quid pro quo --it is just that their activities be subject to reasonable public control. How impinging on the proprietary rights (even for the avoidance of monopoly) of a non-incorporated entity might be justified is perhaps not so simple.
Whoever you want to hold responsibly I would simply reiterate your opening statement: It's all about how many alternatives you have. Or to put it another way, it is about the power to restrict the free choice of another, (whatever form such power takes), and whether this power is being exercised arbitrarily.
However, to call it "censorship" when a minimum-wage worker who pays $3/month for his blog hosting service deletes inflammatory comments is really stretching things.
Absolutely. Moreover if said blogger (and bloggers in general) were to have the honour to delete comments, not on the basis of disagreeing with their author's sentiments, but on the basis that they are inflammatory or simply stupid, we may have a situations where "censorship" actually aids information flow.
We seem to be approaching agreement?
Wrong. That's still censorship, just in an indirect and underhanded way.
Why? Is it because censorship is "something governments do" (and would it then still be censorship if the CEO were not the President's brother?), or is it because censorship is essentially restricting the flow of information. Because if it is the latter we should be just as worried about about censorship arising as an expression of corporate power as of state power. In the C18th when the government was seen as the solitary locus of power this was not a concern, but our notions of censorship need to adapt to contemporary reality (eg. Walmart's pro-active censorship). And of course censorship is even more about what we see (read) rather than what we say.
I'm not saying that a blog owner need accept all comments, duh. Nor am I even saying that all censorship is bad ... very few people, even those who claim to be 100% anti-censorship, would accept child porn (which is, outside the US, almost everywhere illegal per se) openly for sale at their local supermarket. Rather I think that an outdated understanding of censorship, which sees it almost by definition as an activity restricted to government, will increasingly fail to be able to deal with the real threats to the free flow of information which are emerging from other loci or power.
Moreover, if an ISP (which is the company that provides you internet access to your location; ISPs are not the same as web hosts) exercises any control over what you say or do on the internet, then they lose their common carrier status ...
Not entirely relevant as this may be the case at current US law and my hypothetical Banana Republic was not the US (nor am I in the US). But sure, I'll concede choosing an ISP was perhaps not the best example. However being in Australia where the government regularly tries various schemes to get ISPs to filter our access, you'll forgive me for that (and yes this would obviously be government censorship). I would add that living in Australia I'm every bit as concerned to one single corporation which already claims 70% of the newspaper readership is actively campaigning to undermine media diversification laws so that it can repeat this in the electronic media as well.
It's only censorship when the government prevents you from exercising your free speech rights.
From which definition of 'censorship' it follows, that if a government were to allow only a single ISP to be registered, that ISP (not being a government entity), can prevent you from exercising your free speech rights, that would not be not censorship. Sure the company is run by the prime minister's brother ... but it's a private company.
Of course this a purely an hypothetical to illustrate the insufficiency of so uncomplicated an understanding of censorship. We have to good fortune to live at a time when the means of communication could never be concentrated into the hands of a few large corporations.
Just as an aside:
I doubt any jurisdiction could ban minors completly from contracts, or else they couldn't do as much as buy an ice cream or a coke on their own.
That's why I tell my kids all those toys they bought ... they actually belong to meeeeeeee! Muhahahah!
For example, 110 BGB [gesetze-im-internet.de] is the law that adds that exception to the general "no contracts with minors" rule.
You are citing legal German at me? Completely unfair, it is guaranteed that your understanding of it exceeds mine by a few hundred percent. But since you have been intrepid enough to argue common law with a common law lawyer, I'll be cheeky enough to return the complement ... ;)
So here's your opportunity to shoot me down in flames: While I can't actually read that provision, I wonder if it does support your argument (a minor to enter a contract, as opposed to forming one ... my this is getting pedantic). From what little I can parse, the provision would seem to make a contract valid ab initio which a minor purports to enter, where the means to fulfil the contract have been furnished to said minor for that purpose by another with the capacity to enter a contract. (ie. it speaks to the validity of the contract rather than the status of the minor.) Should I have parsed this correctly, this would leave the Vertretter or den Dritten as the contracting party for the purposes of any future legal action, oder?
LOL, you have to give me marks for my Tapferkeit, but then I guess German is not all that far removed from English ;)
Most "uniliteral offers to the world" are NOT seen as a binding offer, but rather an invitatio ad offernadum, an invitation to treat
FB is making a single and final offer to all qualified to accept it. Take it or leave it. There is no question of treating. Nor is there any ambiguity as to what is on offer or the steps required to accept it. One would be hard pressed to devise an hypothetical which more clearly demonstrates an offer to the world that is not an invitation to treat.
Given the rest of your argument falls away as a consequence I should leave it there but to make two observations.
Firstly, if it is the case that American courts look to a party's domicile in assessing capacity, the question of where the contract was formed is inconsequential even at US law. Finally, (and this I believe was my original point), as the process is taking place in an Italian court all questions of jurisdiction, contractual formation and capacity must be decided according to Italian law. Rendering our entire conversation impertinent (if somewhat interesting).
In the first place, I did not really mean to refer to the present case in writing the above post. Rather I was debunking in general the kind of legal chauvinism GP was entertaining. However, since you are interested in the law ...
Did the girl come to facebook or did facebook come to the girl to "sign that contract".
Given that humans cannot yet physically travel by internet and web sites like FB can, it's seems clear that FB "c[a]me to the girl." ;)
Seriously though, you are opening a can of worms --by the name of Conflict of Laws --here. It's such a can of worms in fact that almost any written contract which might involve parties from different jurisdictions will nowadays contain a "choice of law" clause. As, no doubt, does the FB ToS (I haven't looked). However, working on the presumption that the contract was made in Italy, where the girl lacks capacity, that clause would not come into play.
For the sake of argument let's assume accepting the ToS and using a social media site actually forms a contract between the site and the user in all relevant jurisdictions, all other things being in order ...
To restate the facts: FB makes a Carbolic Smoke like "unilateral offer to the world." A minor (lacking in her jurisdiction the capacity to enter into contract) sitting in front of a computer in Italy purports toa ccepts the offer.
In my jurisdiction the "postal acceptance rule," which holds inter alia that a postal contract is made in the place from which the acceptance is sent , should be disposative of the question. Acceptance was made in Italy where user lacks capacity and thus no valid contract was entered into (and the choice of law clause which would have determined the proper law is non-effectual).
I'm not a US lawyer (obviously), but I should be surprised if US law did not similarly regard Italy as the place of contractual formation. And although I understand that place of formation is perhaps a less privileged factor in determining the proper law of the contract in the US, I'm led to believe that a special rule as regards capacity makes the minor's domicile the pre-eminent criterion. If I'm not misled that would mean the US law would conclude also that no valid contract was formed. [If any US lawyers can confirm or correct me here I would be interested].
In Italy ... in Italy. As a common-law lawyer I have no freeping idea! I mean, what the hell are these Italians on about? I would have thought if she lacked the capacity there never was a contract, so how can they go after FB for "entering into a contract with a minor?!!!" Or is this poorly translated?
So that italian girl did business with an american website....
... in Italy. Whether I buy a can of Coke or a can of Ozzie Cola in Australia the same Australian law will apply.
Sounds like that girl should fall under US law ...
Does it still?
'Italian law forbids minors under 18 signing contracts, yet Facebook is effectively entering into a contract with minors regarding their privacy, without their parents knowing.''
how is facebook allowing this? did facebook buy the people internet connections? did facebook force her to sign up?
If FB forced her to sign up it would hardly be a contract. You understand contracts are voluntary agreements, yes?
To enter a contract with a user FB would have to offer something (like use of the site) in return for something else, quid pro quo. As far as the latter, some might argue that agreeing to be bound by the ToS and using the site (as FB derives its value from its userbase) was sufficient. I wouldn't venture an opinion how that plays out at Italian law.
you cant blame facebook for any of this
Sure you can and people are. They are arguing, inter alia that FB failed to remove a harassing video (itself in breach of FBs rules) in accordance with FBs undertaking to do so upon receipt an offensive content report. Interestingly the Italian prosecutor's attitude seems not to focus on breach by the corporate entity, but upon FB employees (Italian residents?) who personally failed to act upon the removal request. From TFA:
"There is a procedure for asking for the removal of messages that break rules,'' [Francesco Saluzzo, the Novara prosecutor] said. ''This is an open investigation without named suspects, as yet. Facebook itself is not under investigation. But we could theoretically investigate employees of Facebook who failed to respond to these requests."
Completely relevant.
Agreed, and moreover for the part of the complaint is that Facebook entered into a contract with the minor, the crap posted on any account would seem to be irrelevant. Really the question is whether agreeing to the ToS constitutes a binding contract in Italy.
Facebook has no obligation to police content to comply with the laws of any nation except the USA.
FB has an obligation to abide by the law of any country in which they do business. However that obligation would be enforceable only in countries in which they have a corporate presence.
Everyone else can fuck right on off.
Comity: look it up!
So, where do we draw a line between what's machine instructions and what isn't?
Firstly re-reading my post, I was clumsy in what I wrote above. What I meant, what I should have written is that "it's arguably set of machine instructions for an illegal activity." In fact, replacing my programmer's cap with my lawyer's cap for a moment I've come to the conclusion that an argument (final 2 paras) is to be made that manufacture or possession of firearm parts (in contradistinction to the whole firearm), is not covered by the legislation.
However to address your question directly. We leave it to law-makers and courts to draw that line and constantly to update that line as reality changes. And yes, it will be interesting to deal with when the modelling of objects happens as part of a process rather than as a "specification." Perhaps we don't need the human readable plans at all, but only the object to be copied? 3D photocopier.
Did the police break the law building this gun? If not, why not? I am asking you as you sound like you have an understanding of the issues.
Manufacture requires a license or permit [I note now that because this is a pistol ("reasonably capable of being raised and fired by one hand") and thus falls under s50A(2) the penalty is 20 years max ... yikes!]. So your question resolves into the question of whether or not the police sought and were granted a license or permit (or as the police ballistics department have a standing permit or even a statutory license).
That I do not know.
So it includes assembly from parts, but does it include creation of those parts? Defining what is included doesn't indicate what is excluded.
Actually it normally does! Surprisingly perhaps, traditional judicial interpretation (at least at Anglo-Australian law) is that a list of items "included" thereby excludes items not on list, unless the words "without limitation," "but not limited to" or similar qualify the word 'includes.' If you see phrasing such as "including but without limitation" in legal text in your jurisdiction, chances are the same rule of interpretation applies there too.
That might be the starting point, however modern courts are more likely to lean to good sense over strict adherence to the traditional canons of judicial interpretation (sad I know). An initial problem here is that it is not a list but a single item: if the legislature had intended (we need to deal with the legal fiction of "what the legislature intended" even when dealing with sloppy drafting) to restrict 'manufacture' to "assemble a firearm from firearm parts," then surely they would have used the word 'means' rather than the word 'includes.' Then we start invoking tools such as the mischief rule ("what as the mischief Parliament intended to cure"), new-fangled evidence such as the legislative history etc. Resolving whether 'includes' here is limited (exclusive) or unlimited (inclusive) could possibly take hours of court time and a not inconsiderable amount of money. Law, it truly is the worst from of dispute resolution ... "except all those other forms that have been tried from time to time."
But yeah, a system of reasoning which includes (without limitation), non-inclusive 'includes' can be a little mind warping.
At first glance (subject to proper time-consuming legal research) ... 'manufacture' is not otherwise defined in the Act (eg. it does not appear as a defined term in s4 'Definitions'), and moreover the scope (if I may confuse my professions for a moment) of this definition would override any higher scope definition (whether in this or another instrument or in curial authority) insofar as there is any inconsistency.
Ultimately yours is the kind of question that it would require a court to resolve. But just to indulge the fantasy for a moment (IAALotSCoNSW, but I don't practise)... against a prosecution argument that fashioning the parts is part of the manufacturing process, we might want to note that the Act make specific provision relating to the sale of "firearm parts" (which definition uses 'means' when it should use exclusive 'includes,' ... drafters!), inter alia (which is another way of saying "including without limitation") s50AA which makes it an offence for a person without a license of permit to "purchase a firearm part." Now in this case the part was a) printed out from a specification AND (more to the point) downloaded without a purchase. Thus, we would argue that Parliament intended not to criminalise the giving away and possession of firearm parts. This is based on two other rules of interpretation, namely that the law doesn't use words in vain (ie. the word 'purchase') and the rule that in a criminal trial any ambiguity in the law must be resolved in favour of the accused. (Which canon of interpretation I sincerely hope we don not abandon).
"This being the case, I submit that it can hardly have been in the mind of parliament to outlaw the manufacture of firearm parts Your Honour. "</fantasy> I'll leave it to a criminal barrister to assess how successful this line might be ... My advice (which being a non-practitioner is not legal advice), is to err on the safe side and refrain from downloading and printing the components in NSW.
[*As a side note 'purchase' is defined to include (prima facie exclusive) barter or exchange, so the fact that one might use BitCoin would be no defence].
When it's a series of scribbles on a piece of paper, it's not a fucking weapon.
Well it's not a weapon, but it's a bit more than mere scribbles or even a mere design. Given the existence of 3d-printers it's a set of machine instructions for an illegal activity (ie manufacturing). I doubt they'll get this anyway ... unless someone gets hurt first and the Tele/Ch9 start frothing at the mouth of course.
You may well be right
Well it's kinda what we were taught at Law School. And btw that should be "plenary power vs enumerated powers", sorry for the inaccuracy.
I don't know the constitution well enough
The (federal) Constitution would not tell you this anyway.
The NSW police would have to petition the State Government to get the laws changed.
Exactly. However previous poster's "sentiment" was, "they can't in NSW ... they would need to petition the federal government," which is simply wrong.
IMHO, the appropriate steps for police/governments around the world is to legislate 3D printable weapons regulations that relate to the other laws in their jurisdictions.
In NSW the manufacture and possession of firearms is already governed by the Firearms Act 1996 (NSW). Both unlicensed manufacture and possession are offences. The definition of "firearm" under section 4, to wit,
would seem wide enough to capture this weapon. The only thing new is the downloading of the "design" (actually machine instructions).
The Police are not seriously seeking substantial legislative change here (though they may get some "we are doing something about this" no-effect amendment). This is a consciousness raising exercise.
I'm sure the NSW police department dosn't have a gun manufacturing licence; But since when do police obey the rules any way.
Yup a license is required and yes it's possible (probable?) they forgot to procure one first (mind they probably would get one if they asked nicely). Shame you were not a journo at the press conference.
But they can't in NSW, evidently .... The police will need to petition the federal government for the law
Bzzzzt. Wrong.
Subject only to s109 of the C'th Constitution, the NSW Parliament is a legislature of plenary power, meaning it can pass laws about anything and everything (in contradistinction with the Federal parliament which is a legislature of enumerated power). If the NSW parliament enacts a law saying it is illegal for people born in Botswana to walk down the Champs-Élysées wearing purple underpants, that would be a valid law of NSW (good luck enforcing it though) providing that it does not conflict with any C'th law (s109).
It's a sad situation when the law enforcers decide what the laws are.
They don't and they can't, they are only suggesting. Deciding what the laws actually are is the job of the Murdoch press.
OK maybe the downloading part is not yet covered, but I'm pretty sure in NSW unlicensed manufacture is already an offence, as is possession obviously.
Thank you. Also known as appeal to belief. [nizkor.org] 98% of Americans believe in God. [gallup.com] Therefore, God must exist.
However, what is being said here is not that 97% of any group of people believe in any particular proposition. What is being said here is the 97% of studies in a field, based on empirical evidence and the application of the orthodox tools of science arrive at the same conclusion.
You cannot overcome this merely with an appeal to well-known logical fallacies, or any other rhetorical attack. You would need to look at the published work, show how the data that was missed, the data that ought not to have been incorporated, misapplied statistical methods etc, etc. In short, it is open to you to refute the orthodox position. But not by piss-farting around with rhetoric, or displaying your ignorance of the science of any particular previous climatic period like your common-or-garden variety denier (there I did as you asked)... all you have to do is show us the maths.
And might I add, I wish you every success in that endeavour. I live in hope that one day the IPCC will announce, "sorry folks we were all wrong, the Earth has some feedback mechanism we were not aware of and your great-grandchildren are safe." Anyway must run, I'm off to buy a lottery ticket ...
97% of scientific papers does not necessarily equal 97% of scientists
That is true. However what scientists personally believe is rather less relevant than what the science (ie. the ensemble of published papers) actually says. But that too is obvious.
Don't go giving creationists big ideas on how to explain away reality.
Had you bothered to followed that link, you would have noticed that creationists have been running that argument since at least 1857. "/facepalm" indeed Sara.
That's a bunch of crap, that water can't be any older than 6,000 years old!!!
No, no no ... it was created 6,000 years ago, but it is by no means beyond God's power to create billion year old water should He so will it. Sheesh!