America calling

2004-11-02

According to my mobile phone, it's four minutes to eleven in the evening here in Britain.

I don't have a watch. That's why I look at my phone to find out what the time is. So do millions of Americans my age.

The mobile phone has changed the race for the White House. Firstly, without the humble cellphone, the White House would have been hit by the fourth plane on 11 September 2001. Secondly, if John Kerry wins the White House this evening, the reason we won't have seen it coming is that so many young Kerry supporters were unreachable by the pollsters, who largely use landlines.

More misrepresentations

2004-11-07

There's something which particularly irks me about self-serving misrepresentations of the law, particularly in the aftermath of some homicidal disaster. Whilst not being of the "would the Families Of The Victims kindly shut up already?" party, I am still very suspicious of the sorts of statements which grief can slip past the media.

Take this for example. The survivor of a terrorist attack (the Soho nailbomber, who wanted to provoke a crackdown) has just been murdered, and his homosexuality may have been an element of the motives of the thugs who slaughtered him. This has induced some calls for more scrutiny of the lyrics of certain anti-gay reggae music. In the middle of the BBC article, a spokesman for OutRage! has managed to smuggle this little gem into the public sphere: "It is illegal to incite hatred against a minority group".

Rubbish.

It is illegal to incite violence against a minority, or indeed against anyone. It is illegal to incite racial hatred, whether against a minority or majority "race". This guy should get a job as a professional misrepresenter of the rules we are expected to obey, perhaps as a train conductor for WAGN.

The most extreme version of this nonsense which has ever been uttered to my face is from a colleague of mine. Clearly not content with falsely and pejoratively labelling me a WASP (White Anglo-Saxon Protestant), she proceeded to assert her belief that it was legal or moral for ethnic minorities to commit acts of violence against members of ethnic majorities in the UK. I have never willingly spoken to her since.

Walk through the Valley of the Rift

2004-11-07

It seems the crisis in Sudan has started to drop off the media agenda. The Guardian piece by David Clark which I reference above is more about his inability to cope with the non-existence of international law and the unworkability of the UN, rather than the suffering of the poor people of Darfur (or, for that matter, of Beja). It is regrettable that commentators are unable to prevent their sadness and revulsion at slaughter from exciting their agitation for constitutional change. Scarcely was the blood of the innocents washed from the streets of Madrid but some Guardian commentator had called for greater European co-operation against terrorism.

This is not to say that international law does not have some effect on suffering from war and terrorism. We need not look much further beyond Sudan in the Rift Valley to find where this is true: Somaliland.

Somaliland?

Somaliland is a small, independent, largely democratic country next to Ethiopia and Djibouti. The homelands of the Somali people ended up inside French, British and Italian colonial territory and in what is now Ethiopia. The French colony has become Djibouti, and the British and Italian territories voted to merge on independence. A few years after the merger, the democratic government of Somalia was overthrown by a dictatorship which dissolved into civil war. Since the collapse of central government in Somalia, the former British part has become independent under the name Somaliland.

But no-one has ever heard of it. International aid for development is not forthcoming, because governments refuse to recognise it. Why?

The sad fact is that so-called international law is furnishing excuses for governments not to recognise Somaliland. It must always be borne in mind when considering matters pertaining to international relations that states are basically free to ignore international law when it suits them, and that circumstances which may be explained by a violation of or self-contradiction in international law may often be better accounted for by its non-existence. Having cast a delicate ontological veil over that unsightly possibility, the point of departure is nowadays the Montevideo Convention on New Countries and Stuff 1933, which asserts commonsense criteria for statehood such as having territory, a permanent population, and an autonomous government. (Of course, the Montevideo Convention isn't really called that, nor is the United Nations Convention on the Law of the Sea actually known as the Prevention of New Countries Convention 1982.) So far so good for Somaliland; it has its government, people and territory. The "legal" obstacle is that "illegal" attainment of statehood can't be permitted, unless it was done in the course of national self-determination. This has narrowed somewhat since the European Community drew up guidelines on recognising states in Eastern Europe which hold that statehood should not be recognised in respect of just any old national group, only one whose aspirant state occupied a pre-existing territorial unit such as a member state of a federation like Yugoslavia. This stricture isn't too harmful to Somaliland's case: it effectively occupies exactly the same territory of the former British colony. The EC criteria also specify a preference that the aspirant state have a good democratic and human rights record, but we can ignore that as they promptly recognised Belarus anyway. The problem lies in just how it re-acquired its independence.

There are just not enough parallels of a former colony adhering to another former colony, getting taken over by a dictatorship and then slipping loose again and emerging as a democratic state whilst the other colony dissolves. This is going to happen very rarely. In any case, the decision to recognise Somaliland will be taken on political grounds, not "legal". To the extent that the statehood criteria under international law ought to evolve, they ought to reward efforts towards democracy, and reduce the territory constituting "safe havens" for lawlessness and breeding grounds for terrorism. However, I expect a state of lawlessness does not conduce to the establishment of the sort of terrorist bases which existed in Sudan and Afghanistan, and is not likely to do so in rump Somalia (though the Americans claim some al Qaeda presence).

The British government hasn't quite got round to recognising Somaliland, as this would, it is claimed, undermine peace efforts in Somalia itself. The rest of Somalia is still a mess of warlords and factions; the only reason you can get from one end of Mogadishu to the other is because the local imams have set up Sharia courts which have cracked down on the bandits who used to run roadblocks every mile or so. Aid agencies used to have to bribe their way across this city with the money of donors and taxpayers; it is simply obscene that whichever southern warlord can most plausibly claim continuity with a dictator overthrown thirteen years ago gets to be the internationally accepted representative of this country without a government, whilst the stable and semi-democratic northwest's efforts to build their country up go ignored. Without recognition, getting aid to the Somalilanders is considerably harder, and it may already be too late: the newly "elected" president of Somalia is intent on carving out the bits of Somaliland occupied by his clan, and is portraying the Somalilanders as just one more breakaway warlord faction. His clan skirmish is elevated to a battle between pan-Somali nationalism and upstart democracy.

The believed necessity of political unity in Somaliland, and the threat posed by the incursions is having a sad effect on press freedom in that country. It can only be hoped that security is restored before this nascent democracy withers away in the name of national security.

However it is not because of the recent clashes that Somalia has been in the news recently, as it is also the home country of Mogadishu-born Dutch politician Ayaan Hirsi Ali. Hirsi Ali wrote a film called "Submission" (roughly the meaning of the word "Islam" in Arabic); this film features diaphanously veiled women, across whose bodies various Koranic texts can be discerned. Artistic depiction of the human form is controversial within Islam even without coupling it with explicit criticism of the purported Koranic sanctioning of domestic violence against women, and this film was accused of going much too far by Dutch Muslim leaders. Apart from elevating underwear to its highest geopolitical profile since Monica Lewinsky, the film sparked off a political catastrophe as its producer, Theo van Gogh, was assassinated last week by a alleged member of an Islamic "terrorist group". (It is an uninviting feature of Dutch law that guilt by association remains such a prominent feature of its criminal statutes. Being a member of a criminal group is itself a criminal offence. It need not be established that one individual aided, abetted, incited, conspired with (etc) some other person committing a criminal offence, only that some property of criminality subsisted within a collectivity of people of which the accused was a member.)

Hirsi Ali herself is being threatened with death. The Dutch public has been traumatised by the killing and threats, in a similar convulsion to that which gripped the nation on the assassination of Pim Fortuyn, and fear the collapse of traditional Dutch tolerant values in their society. Before the Soho nailbomber, and informed largely by trying to understand the pathologies of obsessives on the Internet, I had wondered why people didn't use terrorism as an instrument for provoking government crackdowns. There seems to be little defending against this tactic. At any rate, the Dutch government has announced the relevant crackdown...

Overview of SCO Litigation

2004-11-07

For the benefit of those having difficulty following the activities of The SCO Group in its campaign against Linux, I have compiled the following overview. SCO is engaged in activities on three fronts: litigation, public relations, and in the financial markets, and these three areas interact with each other.

SCO has been viewed as a stock scam, an ideologically-driven smear campaign against Linux and copyleft, a front for Microsoft, and a Get Rich Quick scheme to tax Linux or freeload off its successes. Which, if any of these, is the true story? Have SCO's objectives changed? Did it have several objectives? Of these four aspects of SCO's behaviour, are some merely instruments for achieving others? Having followed SCO's antics in some detail for over a year, I have concluded the following: SCO's campaign started as a contractual grievance against IBM, onto which a Get Rich Quick by IP Licensing scheme was bolted opportunistically. Also opportunistic are the elements relating to SCO's stock price. The PR campaign and SCO's financial deals, however, strike me as instruments for prosecuting the Get Rich Quick scheme and the stock scam.

Litigation Background:

SCO is involved in seven actual or potential lawsuits. In reality, SCO is being sued by IBM and Red Hat, in addition to SCO's claims against those two companies. SCO is also suing Novell, Autozone and DaimlerChrysler. SCO has been threatened with litigation by a group of financiers known as Baystar. In addition, SCO has threatened litigation against, and is vulnerable to litigation from, Linux users and developers.

SCO's litigation activities are followed in detail on the Groklaw website at www.groklaw.net.

Financial Background:

SCO's stock price rose from about $3 to $20 but has now declined back to its original value. SCO insiders, SCO's main shareholder Canopy and various financial institutions stand accused of manipulating the stock. There are a lot of financial background issues I don't understand, so I shan't touch on these.

The Get Rich Quick Scheme:

SCO wants to be able to collect licensing fees or damages from two classes of people: those who supposedly infringed its IP by sticking it in their products (IBM, Redhat, SGI, etc), and the potentially much larger class of those who use these products (AutoZone?, Daimler Chrysler, EV1, Lehman Brothers, Joe Linux user at large, etc). The way US copyright law works is that if you're knowingly using software without a licence, you're liable for damages. So if there's some SCO IP inside Linux, users of Linux, even those who aren't the developers who introduced that IP in the first place, are liable (for the using unlicensed SCO portion of the software) once they have been informed of it.

But here's the logical crux of the matter: if there was no-one put any SCO code into Linux, then no-one is knowingly running an infringing a copy of Linux, because nonesuch exists. If the there are no members of the set of "developers who put SCO IP into Linux", for whatever reason, then the users are in the clear. That is to say, if the first set (IBM, etc) is empty of infringers, then the second set (of all Linux users) must be empty of infringers too.

SCO is trying to extract money from people in the second set without first proving in court that the first set is non-empty. If a couple of people from the second set would just pay up, or even better settle a lawsuit out of court, that would scare enough others into paying up too, without ever needing to prove any copyright infringement anywhere. SCO's second set targets were well-chosen: well-known companies with existing contractual ties to SCO. Any contractual breach found by the court could be misrepresented as some sort of copyright infringement, and encourage other users to pay up.

It didn't work that way: suing not a representative Linux user, but instead a company already tightly embroiled in the SCO saga, was the last nail in SCO's credibility for me. If they were confident in their copyright claims, they could have sued someone totally unconnected with themselves, but they mustn't have had that confidence. If they had any evidence of copyright infringement, they'd have deployed it defending themselves against IBM's counterallegations. Instead, they chose to initiate lawsuits which could be misrepresented as implying there existed infringing IP in Linux; if Autozone or Daimler had settled to make the lawsuit go away, SCO's bandwagon would have been back on the road. What SCO needs is the appearance of copyright infringement.

SCO has finally been forced by the court to provide IBM with a certification that it has declared to IBM all the instances of copyright infringement it has found. IBM's documents suggest that SCO has barely come up with anything at all.

SCO's was a clever gamble, but they weren't able to pull it off. They might well have been able to scare a substantial number of corporations into paying up and generating a bandwagon effect, but they weren't. PJ, the decent folk of Groklaw, and the Yahoo Finance SCOX board can give themselves a collective virtual pat on the back for their part in wrecking SCO's credibility.

Where did the Get Rich Quick Scheme come from?

All this started because SCO felt it had a reasonable case against IBM for breach of the contract to develop Monterey (a version of UNIX for Intel's new 64-bit chip). This breach of contract, if proven, could be parlayed into a case for breach of copyright, so long as that case could be made anywhere but a courtroom. SCO's CEO Darl McBride, and SCO's financial broker Mike Anderer, were experienced in using IP litigation threats to extract money from vulnerable corporations. With SCO's product line being commoditised out of the market, there was one throw of the dice left; they would bet the company on the outcome of the litigation. Without the Monterey grievance, there could be no copyright claim, so the contract case came first. It was never invented just to allow a general assault on Linux.

Maximal revenue (for whatever SCO IP may or may not have been in Linux) would be obtained by getting as much coverage for SCO's claims into the media as possible. McBride therefore picked fights with the Open Source community, engaging in all manner of provocative behaviour, even claiming the GNU General Public Licence was "unconstitutional" at one point. His media campaign features prominently in IBM and Redhat's legal complaints against his company. I believe that all along McBride was merely using the controversy to give SCO's claims the widest possible coverage, and the community fell for it hook, line and sinker. By concentrating his attack on copyleft, McBride made his position attractive to the two companies most threatened by it: Sun and Microsoft, who both paid for SCO IP licences they had strangely never needed before. In one case, the investment bankers Morgan Keegan were given a cut of the licensing revenue (normally the bank doesn't get a cut when software is sold, but, coincidentally, such payments are common when one company invests in another ...).

Running out of cash, SCO turned to a group of financiers called Baystar, who were put in contact with SCO through someone at Microsoft. Baystar offered SCO a huge tranche of cash to keep it going, and forced SCO to gag McBride. SCO also needed to sue Novell over that company's claims to hold the copyright in UNIX, which SCO had sworn to Baystar that it owned itself.

SCO has missed every deadline to provide evidence of its claims, so we must assume it can find none and that the copyright gamble has failed. Depositions of AT&T managers from the time of the contract with IBM are beginning to reveal that even that claim is unlikely to prevail.

Is, Ought and Shall

2004-11-10

(updated)

I recently directed some people to read the Wikipedia entry about intellectual property. This was a mistake; that webpage has been rewritten to be a webpage about the term "intellectual property" itself, rather than what the term describes. That particular webpage is just one instance of a general phenomenon which is this: in some communities, all discussion of what intellectual property is or should become is drowned out by shrill diversions on terminology, or at least proposed to be postponed for a few decades until signifier and signified are brought into a more agreeable relationship.

Well may Intellectual Property be as misnamed as the Holy Roman Empire, but that is not the question whether the term should be discarded, nor the question what standard of legal protection is desirable in the area described by the term, nor even the question whether the effect of this protection might be better achieved by some other system entirely. This much should be obvious, even to a casual reader of the rhetorically defaced Wikipedia article.

Why discussion of signifier and signified are conflated is simple enough: on a trivial level, people with these views are often uncritically repeating the arguments of Richard Stallman; so why does he make them and why are they so immune to critical reflection by his followers, who after all do not take as Gospel many of his other utterances? Whereas we must resist his false assertion that copyrights, patents and trademarks lack any common properties, it is certainly reasonable enough to say with Stallman that "intellectual property" is an undesirable term, connoting neither property as commonly understood nor necessarily anything "intellectual", and conclude that the use of the term grants an undesirable rhetorical advantage to one particular side in the debate about what the law should be.

This alone wouldn't account for the sheer obsessiveness with which the campaign against commonly accepted terminology is pursued. Stallman has conducted other semantic assaults on the English language, most notably on the way the word "free" is understood in application to software licensing, but in the case of that particular (ongoing) crusade, the lucky of object of attention was a word with two widely accepted meanings, only one of which was being understood in the relevant context; never was it seriously contended that users of free (gratuitous) had some hidden and positively dangerous agenda, moreover there was never an insistence on the effacement of the word itself. It is true enough to say that the way words are understood matters, if only marginally in some cases, in political debates. Change the accepted meaning of the word and you literally change the terms of the debate. This collective understanding influences, but does not constitute, political and legal reality.

At least, it shouldn't. Or, shouldn't be thought of as doing so. Unless ...

I am reminded of a number of occasions where I have said what I thought the state of intellectual property law was in some jurisdiction or other, and have been met with outright hostility from people who conclude that I approve of this state of affairs, which is unlikely as I generally disagree with the particular intellectual property laws with which I am familiar. The conclusion that I nevertheless approve, or its opposite, can generally not be deduced from what I say, though the contrary conclusion might be inferred from my tone of voice! I expect I am not alone in this. I have known people to run shouting out of lecture theatres following some assertion that competition law in the UK was in some way not the way they wanted it to be. Why is it that an analysis of existing law can produce such extreme reactions?

What I surmise is going on is this: our protestor dislikes hearing facts about laws with which he disagrees. Unwelcome truths are commonplace, but need not induce him to impute any view to their bearer. When nevertheless they do so, what beliefs of the protestor could explain this? Is there some premise which when combined with "the speaker asserts that the law requires action X" yields the conclusion "the speaker approves of X"? That is, an argument which converts a factual assertion into a normative one? An is into an ought? We should be immediately suspicious of any means of deriving an ought proposition from an is proposition, but here we are asked to create one. And here it is: Law is a set of rules which say how people ought to behave. Therefore to say what the law is, is to say how people ought to behave; an is proposition about law is actually an ought proposition! Hence it is but a small step to deducing the normative views of anyone making any pronouncement about the law.

I believe this worldview arises from wish-fulfillment: it is just unpleasant to contemplate the reality that the rules one is expected to obey may be unjust, or even capable of being so, and it were much more agreeable if the prospect would just go away. There is no room here for an "unjust" law — why that would be no law at all, if law is how people ought to behave! Either the identity of law and ought is a tautology bereft of worthwhile consequences, or it is false, and the latter is preferable.

We should prefer the identity of laws with what I shall call shall-propositions, not ought-propositions. The law is what people shall do, not what they should do. This formulation avoids the conflation of is and ought, indeed, a shall-proposition has no truth-value to conflate. One may express opposition to, say, the sale of contaminated meat, in any of these three forms: "You do not sell contaminated meat", "You should not sell contaminated meat", "Do not sell contaminated meat", and in all cases it is possible to object "No!", but against only the first two may the objection "False!" be raised. With this view of law, it is perfectly reasonable to make statements as to what the law is or ought to be, independently of one another. It can be claimed "The 1968 Theft Act accidentally decriminalised making off without paying" without expressing a view as to whether this was a morally desirable outcome.

A debate about reforming any law is rendered almost impossible where there can be no distinction between analysis and approval. The same effect has regrettably been achieved by the terminological attack on "intellectual property".