TheAgitator.com
Morning Links
Wednesday, June 9th, 2010- Glee and copyright law.
- In Michigan, prosecutions for violating the law against “seducing an unmarried woman.”
- Here’s the story behind that recurring newspaper prop.
- Necessity is the mother of invention.
- I’m liking Indiana Gov. Mitch Daniels more and more. Generally speaking, if you’re irritating the neocons, you’re doing something right.
- Another great World Cup ad, though with a decidedly different (and possibly NSFW) approach.
- Dog lovers: This video will make your morning.
A company devoted to making printed props? Awesome.
Finding a niche and filling it. Sweet.
I am admittedly almost completely ignorant of most copyright issues. While I’m aware that there is war going on, I don’t know enough about the argument of each side to be willing to weigh in for fear of looking stupid (something I am completely capable of doing on topics I do understand). I got a Cato book about it some time ago, but haven’t read it yet.
Libertarians are very property rights-oriented, so I’m confused about where they think the line should be drawn. To hear some of the arguments from the libertarian side, I sometimes get the impression that they don’t believe there should even be a line. Is there a short answer to this?
Wow, there’s a law against “seducing an unmarried woman?” Note to self: stay the fuck away from Michigan. Not that I wasn’t doing that already.
My guess here is that it was a statutory rape case that could have gone either way. She might have been close to the age of consent, and lied about it. So the prosecutor gets a conviction rather than risking an embarassing loss.
What do we think of plea bargaining generally? It seems somewhat arbitrary, and encourages convictions per se rather than convictions for the crime in question. It also encourages snitching and the unreliable testimony that can result. I would be interested to hear what fellow agitators think here.
the ‘seducing an unmarried woman’ law in michigan pisses me off because they use it as a plea when they’re not sure they can get a conviction for the real crime. they hold the ‘if you don’t plea, you’re looking at 20 years…’ People with limited resources will settle for a sure thing.
Like SWAT teams, this looked reasonable when started, but it’s really evil (like SWAT teams).
Weiner dogs crack me up!
Plea bargaining should be banned outright. Justice is not served by using overinflated sentences to scare people into pleading guilty to a lesser crime. If the state doesn’t have enough time, money or people to actually go to trial then it needs to re-examine why it’s arresting so many people.
No such thing as world cup anything.
@Dave #2: Tim Lee — sort of a Will Wilkinson-ish “liberaltarian” — has done some good blogging on the copyright issues. Here’s a good starting point, but he has several relevant posts on his blog:
http://timothyblee.com/2010/02/03/copyright-and-the-right-to-profit/
Not exactly a “short” answer, but it’s something anyway.
For those of you interested in the dog toy, see http://www.activedogtoys.com/godoggo.html.
This one’s been around for a while.
Y’all should check out this story from slashdot on a guy who bought a briefly lapsed police department website for $90 in order to complain about speed cameras:
http://yro.slashdot.org/story/10/06/08/1525237/Anti-Speed-Camera-Activist-Buys-Police-Departments-Web-Domain?from=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Slashdot%2Fslashdot+%28Slashdot%29
In Michigan, prosecutions for violating the law against “seducing an unmarried woman.”
Translation: Rape case. Not a shred of evidence. Should never go to court. Plea bargain with this to fish for a conviction.
I understand the need for plea-bargaining… the human race is just fucked up. Instead of having a police department that is evidence oriented, with well funded and impartial labs and investigation teams, the support goes to the guy that can deliver on the less expensive route: Grab the first fucker that comes along and jack a confession out of them.
Note: You can use ‘Confession’ and “Plea Bargain” interchangeably. They’re essentially the same thing. Neither should be allowed in a court of law.
Actual investigation is expensive. But not so expensive that all 50 states couldn’t easily afford to do it. The problem is.. that’s not what the people want. A politician that supports that would be committing political suicide. People want “One crime, one conviction” and just so long as it’s “those people” who are getting convicted, it’s all good.
I love the dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-dog-catches-ball-return-ball-to-launcher-that-sends-ball-flying-so-that-the-
I’m a criminal defense attorney and would point out that sometimes prosecutors offer a plea bargain to a reduced charge not because they think their case is weak, but because the defendant has an otherwise clean record and the prosecutor wants to get a conviction, but does not want to burden the person with a felony record. So they reduce the charge to a vague misdemeanor (disorderly conduct) or a county/city ordinance. Prosecutor gets a conviction, the city/county gets their fine, and no serious smudge on the defendant’s record. No it’s not a perfect system and yes I believe most criminal cases are bullshit, but I have to accept the fact that the law is what it is, the law allows prosecutors to bring the charges they do, and I’d rather see a client plead no contest to disorderly conduct than take an open and shut drug case to trial just on principle, only to lose and see that client have a felony on his record for the rest of his life.
It’s funny that the article on copyright contains a videoclip that can’t be viewed outside of the US due to copyright law.
[...] H/T: Balko. [...]
But seducing married women is still okay in Michigan…
So a member of the MPAA is producing and distributing material that promotes copyright infringement? That sounds problematic.
“Peace through strength has totally been vindicated.”
Gov. Mitch Daniels, the slaughtered men, women and children of Afghanistan and Iraq join all victims of the American Empire in thanking you from the bottoms of their dead hearts.
“I’m liking Indiana Gov. Mitch Daniels more and more.” — Radley Balko
No comment necessary.
OK, one comment.
Cue sex/corruption scandal on three … two … one ….
Mitch Daniels certainly has first-hand experience when it comes to bloated budgets.
#3 | djm — “What do we think of plea bargaining generally?”
It’s a perversion of justice and no self-respecting person would bow to such prosecutorial misconduct.
Of course, when facing 20 years in the American Rape Gulag, most individuals check their self-respect at the door. No surprise there.
North Carolina has a law against unmarried people living together. IIRC, it’s also used as a blackmail tool by the authorities when they don’t have anything else to pin on someone they really want to shaft.
#14 | Jozef — “But seducing married women is still okay in Michigan…”
Actually, it’s not — they have laws against adultery. But the prosecutor in question admitted that adultery prosecutions are even rarer than seduction cases.
I’m still not clear on how Daniels is going to “irritate the neocons” with his views there. Outside of grasping the looming debt disaster, he’s pretty much Obama on foreign policy (i.e. “LALALA CAN’T HEAR YOU!”).
I mean, the world isn’t going to magically behave…
You know you’ve read too much Agitator when you watch the ball launcher/dog video and all you can think of is that the last minute of the video is going to be a no-knock SWAT raid conducted at the behest of the Consumer Product Safety Commission resulting in the dog being shot.
I must detox….
Thanks, I will check it out during lunch.
@Dave Krueger
Take a look at the Wikipedia article on anti-copyright. The article does a good job of dissecting the the arguments surrounding intellectual property.
http://en.wikipedia.org/wiki/Anti-copyright
The gist:
Owning ideas is an artificial construction used to make money. You have to tell people they can’t use an idea because it belongs to another the same way you can’t use my car because I have the title. So to be a libertarian supporter of copyright, you would need to justify that economic development against the freedom lost to think to say whatever you want however you want to say it. It’s a struggle between total intellectual freedom and total intellectual ownership lock-down. The compromise between these two extremes is called “fair use” and it means I can use your work as long as I’m discussing the work in question and issues surrounding it, but I can’t use your work as my work. I.e. I can show a Dave K photo on my website and say “dave’s photos have the best Tits”, but I can’t show a Dave K photo on my website and say “look at the photo Omar took.” That’s stealing based on fair use.
IMHO, copyright serves to curtail real abuses such as me misrepresenting your work as mine. At the same time, fair-use is a subjective and inconsistently enforced rule that shuts people up. What is acceptable fair-use today may be different tomorrow.
There’s also the problem of “temporary monopoly” which is no longer temporary at all. The most famous case of this is Mickey Mouse. According to the copyright laws of the time when Mickey was created, he would be out of copyright and in the public domain a long time ago. But every time Mickey comes close to becoming owned by no one, the copyright laws change for another 20 years.
All that to say: Copyright sounds sort of libertarian depending on your perspective, but in its current legal state, it’s a mess.
Dave Kreuger,
Quite a few libertarians are very much against intellectual property (or intellectual monopoly). I recommend reading these works:
Against Intellectual Property by N. Stephan Kinsella
http://mises.org/journals/jls/15_2/15_2_1.pdf
Against Intellectual Monopoly by Michele Boldrin and David K. Levine
http://levine.sscnet.ucla.edu/general/intellectual/against.htm
And watching this lecture:
The Ethical Case Against Intellectual Property by David Koepsell
http://blog.mises.org/12732/the-ethical-case-against-intellectual-property-by-david-koepsell/
Glee (via Fox) is pretty agressive in blocking youtubes of its show (you can see it via Hulu however). Interesting how copywrite becomes a big issue when it is protecting its own content.
I love this clip though (it manages to slip through).
Yeah, Mitch is great. Except for that whole screwing up the state’s welfare/medicaid privatization fiasco that failed, and will continue to cost the state millions.
Oh, and the part where it saved money by denying people medication and such through bureaucracy. Good job, Mitch.
@Robert #20: Do you have a reference link for that law? I’m not saying it because I don’t believe you — but I proudly live in sin in Chapel Hill with my girlfriend, and it’d be cool if I was flaunting The Man’s law at the same time.
Why is a YouTube clip of people dancing to a song copyright infringement? Because people can listen to the song? Does that mean if I’m playing my radio loud enough for someone in the next car or apartment to hear I’m guilty of copyright infringement? What if I sing the song? Hum it? Quote a lyric?
I understand the point about fair use and an interesting argument was made in the comments that we are not talking about copyrighting “ideas” but about actual products. A song is not an “idea”. Copyright an idea would say, “I wrote a song about love and now no one else can.” That’s crap. But saying, “I designed this melody and wrote these lyrics and layered them together and that is a product, even if it can’t be held.” I’m okay with rights protecting that work. How those protections should look is still a point of confusion for me.
Misrepresenting work as that of another seems like a good starting point. Attempting to profit off of someone else’s work without their permission also seems like a good thing to restrict. Inhibiting someone’s ability to make money of their work starts to get into dicey territory. I understand the arguments against file-sharing. From there, I’m lost.
Even thinking back to my first point, about YouTube clips, which at first seemed ridiculous to me, I’m now not so sure. I’m not okay with a film or TV show using an artist’s music without permission. Why is a YouTube clip different? Is there some sort of line between professional and amateur that matters? What about the “amateur” on the street, playing music and dancing, but soliciting money? Where does he fall? Yikes, this is confusing…
About Mitch Daniels – That particular link has so little information it really doesn’t help me to figure out whether I like him.
If you’re going to hold a figurative gun to my head, I’d name former NM governor Gary Johnson my current “least evil” politician from the 2 major parties.
Oh, and lest we forget:
“Mellinger: But theology has to shape your life, right? I mean, the external actions that we see you take, [they're] driven by what’s inside. Isn’t it all a result of your theology?
Daniels: I hope it is; hope it is, except we all fall short of that.
To me, the core of the Christian faith is humility, which starts with recognizing that you’re as fallen as anyone else. And we’re all constantly trying to get better, but… so I’m sure I come up short on way too many occasions.
Our country was founded -this is just an historic fact; some people today may resist this notion but it is absolutely true- it was founded by people of faith. It was founded on principles of faith. The whole idea of equality of men and women [and] of the races all springs from the notion that we’re all children of a just God. It is very important to at least my notion of what America’s about and should be about and I hope it’s reflected most of the time in the choices that we make personally.
Mellinger: Is there part of you that is bothered by the aggressive atheism of a [Sam] Harris, a [Christopher] Hitchens, a [Richard] Dawkins? And what I mean is… this atheism is a little different than atheism has been in the past because it does seek to convert people.
Daniels: I’m not sure it’s all that new. People who reject the idea of a God -who think that we’re just accidental protoplasm- have always been with us. What bothers me is the implications -which not all such folks have thought through- because really, if we are just accidental, if this life is all there is, if there is no eternal standard of right and wrong, then all that matters is power.
And atheism leads to brutality. All the horrific crimes of the last century were committed by atheists -Stalin and Hitler and Mao and so forth- because it flows very naturally from an idea that there is no judgment and there is nothing other than the brief time we spend on this Earth.
Everyone’s certainly entitled in our country to equal treatment regardless of their opinion. But yes, I think that folks who believe they’ve come to that opinion ought to think very carefully, first of all, about how different it is from the American tradition; how it leads to a very different set of outcomes in the real world.”
http://www.wane.com/dpp/news/politics/Daniels-talks-candidly-about-his-faith
via
http://freethoughtfortwayne.org/2009/12/25/mitch-daniels-faith-delusion/
BSK,
Indeed, in your confusion, you have hit the nail on the head. Copyright is too confusing for the public, too confusing for artists, and too confusing for the politicians writing the law. “Fair use” of your car is obvious. Don’t touch it! “Fair use” of your car drawing is much harder to define because art is thought and nobody can control your thoughts. You can control the actual drawing, but copies, remixes, etc are just thoughts.
A clock is correct twice a day, and if Marx was right about anything, he was right that every idea, invention, and piece of art ever is a derivative of previous ideas. No ideas exist in a vacuum, and all art is a remix.
We invented copyright to attempt to manufacture an artificial market where there wasn’t an obvious one. Existing artists and businesses built wealth around the sole-ownership of their public ideas, so they are obviously very reluctant to let go of that.
If we shredded copyright law, most artists would probably easily find ways to make money from their art. From live performances of music, to merchandising of cartoons, to the value of original paintings over a print, chances are pretty good artists would come out just fine without copyright restrictions. Indeed, artists mostly make their money this way anyway. It’s a hard sell though, as folks are used to the way things are done now, and change is hard. The multinational corporations who write our copyright laws would fall over dead. But this is 2010 and we live in an information age, so screw them.
“If we shredded copyright law, most artists would probably easily find ways to make money from their art. From live performances of music, to merchandising of cartoons, to the value of original paintings over a print, chances are pretty good artists would come out just fine without copyright restrictions. Indeed, artists mostly make their money this way anyway. It’s a hard sell though, as folks are used to the way things are done now, and change is hard. The multinational corporations who write our copyright laws would fall over dead. But this is 2010 and we live in an information age, so screw them.”
That reminds me of how most musicians make their money from touring, not selling cd’s. Of course, when the soon-to-be-extinct record companies sue some college kid for downloading mp3′s, they claim to be looking out for the artist’s best interest. It’s like someone once told me, “the RIAA claiming to represent artists is like a dairy farmer claiming to represent cows.”
With regards to the crime of ‘seduction’ It makes me wonder how the state treats married victims of sexual assault.
If the victim is single, the defendant could have the case pled down to seduction. If however you assault a married woman the statute can’t apply so then what?
A side note on the intellectual property issue: In the equestrian sport of dressage, there is the musical freestyle competition (the “Kur”), which is a ride set to music while executing various movements.
Competitors are technically obligated to pay a royalty on all music used, although this is normally only done at the higher levels of competition.
I believe the same requirement applies in figure skating.
To make copy right even more confusing is who owns the content of the content. If Dave does indeed have jpegs of juggs, does his earned income have to go to the models of the great tit gif’s? Or does he get to pocket the profit from his bit maps?
NY prosecutes adultery.
http://newsfeed.time.com/2010/06/09/its-2010-why-are-people-still-being-charged-with-adultery/
The tone of the anti-copyright argument seems to put great weight on the lofty idea that knowledge shouldn’t be considered property and discounts the idea that creators will just be as productive regardless of whether or not they can make money from their efforts. The latter reminds me of those who claim workers will be just as productive if everyone is paid “according to his needs”. Another influential factor seems to be centered on current law being unworkable in the current environment where copying is almost effortless and the material almost universally accessible, which makes a good case for rethinking current law.
It’s a pretty goofy argument to claim, as the anti-copyright argument suggests, that copying someone’s work is not the same as theft because the author is not deprived of his property the way he would be if someone stole something physical. Who ever coughed that up is a little confused. It’s not the work that the thief is stealing. It’s the income potential.
In any case, I’m not convinced that we should throw out copyright protection, although I most certainly agree that it has evolved into something that it was never meant to be, especially when it comes to perpetually protecting corporate empires such as Disney rather than encouraging fresh creativity. Unfortunately, when it comes to fair use, there probably needs to be a line and I am not a big fan of lines because where they are placed is always political and never clearly definable.
The models I use get a flat rate because that’s the deal I offer, but I could just as easily base their compensation on usage (which is quite common for high end models). In any case, the decision the model gets to make is to take it or leave it and she makes it before she walks through the door and it is binding for all eternity (to the extent that any agreement is “binding” these days). Since I don’t sell my pictures, I would probably not get many models lining up to show me their boobs.
Of course, if models formed an association and hired a lobbyist, they could get laws passed that makes it illegal to sell boob pictures without the boob owner getting a cut of the action. The fact that this hasn’t been done is probably more a reflection of where we are in history than any inherent impracticality. There is no law that a politician won’t pass if the right compensation is offered.
On a glorious evening a couple of years ago, I got into one of my usual drunken philosophical debates with a friend of mine who was an intellectual properties lawyer.
The discussion involved a music CD of one of my favorite artists and what it was that I actually purchased – the CD itself, or what was on the CD (the art, as it were), or both.
To make a long story short, The CD was stolen years ago and I was trying to justify taking the content of the CD from Napster without paying for it by arguing that I had already paid for the content and therefore the content belonged to me – whether it be in CD format, or lyric sheet, or cover art, or mp3, or anything else.
It was an interesting argument to which I’m sure I won the day (at least in my mind). :)
No matter though, the mp3s were corrupted and I ended up buying the album from itunes anyway.
Cheers.
Omar-
Thanks. That was helpful. Though I do wonder how one would merchandise cartoons with no copyright protections. Why would I pay the artist when I could just copy it for free? I understand that there are other ways to make money off art that can’t be replicated, but that one seems to fall flat.
How does this relate to patent law? Isn’t, theoretically, it the idea behind the object that is being patented? If we apply the same logic of copyright law to patent law (which very well may be the same thing already), then it would seem that I could copy Coke’s recipe all I want, so long as I didn’t call it Coke. No? We allow an invention to be patented, which is really just the physical manifestation of an idea, but apparently balk at protecting a song, which is a different sort of physical manifestation of an idea. You can’t hold it like you would the Snuggie, but it is still tangible in the sense that you can hear it, record it, represent it visually as notes/words on a page. It is a concrete entity in much the same way an invention is. If we do indeed look at these differently, why? And as we move into a digital age, how does that complicate things? How do we treat a computer program? What about a search algorithm?
As I think more about it, I think that the result of one’s labor belongs to that individual. I think where we are getting into trouble is comparing ownership of a car to ownership of a song. I own the car not because I designed it or imagined it or built it; I own it because I paid for it. That entails me certain rights over it, but still limits some. I can’t start building my own Toyota Corollas and call them the BSK Speedracers. We are wrongly comparing end-user rights to creative rights and I think that’s getting us into trouble. Toyota still owns rights over the design of that car. I buy a CD, but that doesn’t give me carte blanche to do what I will with it. I have freedom to use the physical CD in a variety of ways but I do not own the music on it. That is someone’s labor. For me to copy and sell it is no different than me selling my own cars. It just SEEMS different because technology has made it easy to copy music and it’s still rather hard to clone a car.
Or maybe I *REALLY* have no idea how this works.
#28
The law, General Statute § 14-184, stated: “If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor.”
It was challenged by the ACLU in 2006, which resulted in a judge ruling the law was unconstitutional and barring the state from prosecuting anyone with it, and the state did not appeal.
There was a bill in the NC state general assembly to repeal the law, and that was in 2007. I see one report that it was repealed in April of that year, but a search of the general assembly website still shows the law.
http://www.ncga.state.nc.us/gascripts/statutes/StatutesTOC.pl?Chapter=0014
So, without more research and IANAL, I really can’t say. Sorry. I say, stick it to the man anyways! :)
@Dave Krueger
I want to talk about your post one part at a time. I’m not being nit-picky, but I think there are some commonly held opinions that need changing in this beautiful new century.
Property is scarce. By virtue of owning it, nobody else can take it. Knowledge, ideas, and information are not scarce. The generation of the ideas is a finite process, but the actual ideas are not. A painting is an item of ownership. To own the “rights” to the painting’s image, we have to abstract (and in my opinion, pollute) our definition of property.
I’m not sure that artists will be more creative if they can’t find ways to get paid. But I’m a libertarian, and setting restrictions on what can and can’t be done with an idea seems to me just another anti-competition subsidy.
I think it’s up to artists to find ways to support their art that doesn’t take away my freedom to play with information (thoughts) in any way I want and share those thoughts with other people. We don’t need a Ministry of Getting Artists Paid for their thoughts. Our current copyright laws are basically that.
I agree with your next statement fully about the current state of laws being a mess, so I won’t address it. :)
From a libertarian perspective, income potential is not the purpose of the government. The government protects us from force and fraud, and as long as someone isn’t selling “Original Dave Kreuger touched these hoots with his lens” images, nobody is being defrauded. Income potential here is another word for intellectual monopoly, and is an artificial construction created because of copyright laws. In the absence of copyright laws, there is massive income potential for an artist. With copyright laws, we created another facet of income potential at the expense of freedom of thought. I don’t think it artists deserve any more special treatment at the hands of the law than the unions do.
Also…
http://funnymotivationals.files.wordpress.com/2009/07/sgtk043.jpg
Wouldn’t it be easier to just cancel Glee (instead of watching it)?
@Boyd Durkin
I think the gay community hates Fox enough already…
That was a thing of beauty :-D
Plea bargaining works both ways and the defendant CAN benefit from it, but he/she is usually not the one society cares about. For instance, the guy that burglarized five houses can often get the state to agree to one count of burglary and dismiss the rest, shaving years upon years off his maximum jail exposure. Or the woman arrested twice for possession of drugs can usually plead to one for the other to be dismissed. It’s not the worst thing ever invented.
I have to agree with Boyd. Glee is like watching Fame after Walt Disney came on it. Maybe that’s where the real copyright infringment is.
I don’t see a real need for a defendant to benefit from plea bargaining if he is, in fact, guilty. Plea bargaining is, at worst, a way for the state to extort a guilty plea from an innocent defendant and, at best, an expediency for the state so it can process more criminals at a lower cost. If the defendant is guilty, why do we (the public) want to see him get a lesser sentence (at the whim of the prosecutor) than our elected representatives enacted in the law? If the penalties are too harsh for the crime, then the solution is to change the law.
I think the prosecutor should have to charge the defendant under the law that best fits the crime and he should have to prove that case or let the defendant plead guilty to that charge. The penalty under the plea agreement should be within the range prescribed by law for that crime. It doesn’t do the public any good to let the guilty man out of prison early and it doesn’t do the public any good to give the prosecutor a tool to coerce a guilty plea from an innocent man. Or woman.
Of course, it’s easy to see plea bargaining as a good thing if the defendant has no business being a defendant to begin with, as is the case in all consensual “crimes” which make up much of what we charge people with these days. But, the solution there is to stop outlawing non-crimes, not manipulate the system to sidestep the official penalty for the crime as a means to facilitate the processing the accused like cattle.
@Dave Kreuger
Plea bargaining far and away benefits Defendants. Not every burglary, murder, rape, etc. should be treated the same. Plea bargaining allows for those differences without surrendering all power to the judge. If every person who committed burglary got exactly 2 years in prison then there would be kids who made a stupid mistake going to prison and becoming felons for no good reason while serial burglarers would walk away with too little time. Plea bargains allow the crime to be brought as a felony, discovery performed and then an appropriate result negotiated.
Also, for factual correctness, you should note that in no system that I’ve ever heard of does the prosecutor actually assign the punishment. They recommend punishments. While there is often little difference here, it does provide an upper cap to their punishment after a guilty plea. That is to say, if a prosecutor recommends 1 year to serve the judge is generally bound to allow a withdrawal of the guilty plea if they attempt to impose anything more than a year. Therefore, there is certainty going in as to what the worst punishment can be. The state usually has no redress if the judge wants to punish more lightly by, for example, giving probated time.
Now, of course, this system is abused by prosecutors at time. There have certainly been people who plead guilty to crimes they either did not factually commit or to crimes of which a jury would never find them guilty. It’s by no means a perfect system. However, the strict system you seem to propose would result in greater harm than benefit to criminal defendants. It would fail to allow for the human element in punishment. Feelings about consensual crimes aside, drug addiction, past abuse, etc. should be taken into consideration when formulating punishment for a criminal defendant. To make punishment so cut and dry would eliminate that possibility and harm the system and the defendants.
Necessity is the mother of invention & Dog lovers: This video will make your morning both brought smiles to my weathered face. Human ingenuity is boundless.
//But the prosecutor in question admitted that adultery prosecutions are even rarer than seduction cases.//
Which is ironic, since there would be nothing inherently anti-liberty about prosecuting adulterers (at least in cases where the aggrieved spouse wishes to press charges). Even from a purely libertarian standpoint, adultery would constitute a deliberate violation of contract, and it is well established that while contracts are generally a civil matter, deliberate violations of contracts–even ones entered in good faith–may constitute a criminal offense. For example, if someone who has purchased a car on credit finds himself unable to pay for it, and deliberately destroys the car rather than returning it to his creditor, such a person may be prosecuted for theft.
The actual adultery charge should be directed only at the cheating spouse, since that is the person who deliberately violated a contract. If it can be demonstrated that the other person was aware of the marriage, that person may reasonably be regarded as a conspirator, but if the person was unaware, there would be no basis for criminal culpability.
//f every person who committed burglary got exactly 2 years in prison then there would be kids who made a stupid mistake going to prison and becoming felons for no good reason while serial burglarers would walk away with too little time. Plea bargains allow the crime to be brought as a felony, discovery performed and then an appropriate result negotiated.//
Why would not an even better result be achieved by allowing the defendant to ask for mercy from a jury which had heard the facts of the case, and allow the jury to decide what sort of punishment was appropriate? The plea-bargain system means that a defendant whose conduct is only marginally criminal (who may reasonably hope for an acquittal) is no better off than one whose action is so blatantly criminal that he’ll take any plea bargain he’s offered.
I didn’t say it didn’t. I just questioned whether it benefited the public (ie: the people served by the justice system).
I didn’t think that the law spelled out the penalty that precisely. I thought the law specified a range of punishment that permitted the circumstances of the crime to be factored into the punishment.
I didn’t claim that prosecutors ‘assign’ the punishment. My understanding is that they negotiate a deal, but the judge has the final say. I’m only saying that the range of that deal should be within the range of penalties provided by the law tat was supposedly violated. If the range isn’t wide enough to permit the needed latitude to cover differing circumstances, the answer is to change the law, not to get the defendant plead guilty to a different crime.
You don’t need that certainty. Either the judge accepts it or he doesn’t. If he doesn’t, a new deal must be negotiated or you go to trial.
But, have not the citizens, through their representatives, specifically prohibited a lesser sentence for that particular crime by the way the law was crafted? Isn’t that part of what equal justice under the law is all about? Isn’t consistency and predictability part of what the court system is supposed to dispense?
But you’re willing to sacrifice them? Whatever happened to the concept of “better ten guilty men go free than one innocent man be convicted” (or however it goes)?
The place to allow for the human element is in the punishment range prescribed by the law for the specific crime that the defendant is accused of violating. What you call “strict” might also be described as predictable. I think that plea bargaining to a different crime has become so common that it’s become impossible for anyone contemplating a crime to have any clue what will ultimately ensue should he be caught. Where is the deterrent value in that?
But, the real problem with plea bargains is, and always will be, the way it’s used to extort a guilty plea from a defendant simply for the sake of expediency.
For my next lecture I will discuss courts that permit juries to choose from a range of crimes as part of their verdict. It’s closely related since it’s permits a jury to convert a less than convincing case into a lesser conviction instead of an acquittal.
John Gray, I’m not a lawyer and I don’t for a minute question your superior knowledge of the theory of the law or the practicalities of the justice system. My argument is philosophical and political in nature.
Re: Plea bargaining
If the logic behind it is that people are being charged with too-severe crimes and thus some discretion is necessary… maybe that should have been determined earlier, no? Why charge a guy with murder if the facts of the case (not just the evidence, but the underlying facts) suggest it was manslaughter? Just charge him with manslaughter.
And while I realize we don’t want the law to be a blunt force object and that discretion allows, supposedly, for more accuracy, I shudder at the way in which discretion has been exercised at least up to this point. We look at the sentence rates for whites vs blacks, males vs females, etc, etc, and see that discretion is often discrimination all dressed up.
#51
Criminal prosecutions for adultery can never be compatible with any ideologically consistent brand of deontological libertarianism.
First, the entire idea of the criminal law is suspect, because it seeks to impose punishments on behalf of an imagined community – “society” “the people” “the state” – that is alleged to have suffered a “wrong.” Imagined communities can’t have their rights violated. You can’t, in any meaningful sense, harm the rights of “society.” You can only violate the rights of actual individuals, and the appropriate remedy for violating an individual’s rights is restitution, not punishment. That’s why libertarian theorists like Rothbard and Barnett and others have long supported collapsing the crime/tort distinction.
Second, even supposing that the criminal law could be salvaged to the extent that you could justify punishment for some willful violations of rights, adultery would not be the kind of thing that you could justify punishments for. There are circumstances where particular legal remedies may be appropriate. For example, if you contract to swap a book for a candlestick, and one side produces the candlestick, and the other side doesn’t produce the book, specific performance of the contract would be appropriate, and you would legitimately be able to compel production of the book. However, if you contract money for sex, say, and you produce the money, and the other person doesn’t produce the sex, specific performance is an inappropriate remedy, because people have an absolute right of their persons in a way that they don’t have over external property, and you can’t rape someone to fulfill a contract. In that case, rescission is appropriate – you compel them to give you back the money, plus any incidental costs you might have suffered as a result of the breach.
Similarly, because people have absolute sovereignty over their own bodies, you have, always and at all times, an absolute right to have sex with whomever you want, provided they are willing participants, and wholly regardless of what you might have promised to another person. You can never have a legitimate right to forcibly prevent someone from having sex with another, and consequently, you can’t physically punish them by depriving them of liberty for doing the same. Regardless of what you may promise another, your can’t abrogate your right to your sovereignty over your own person.
Third, it’s far from clear that any of the aspirational vows taken during a marriage ceremony amount to anything close to a contract. They’re mostly a bunch of unenforceable promises. Try as you might, you can’t contract to love someone forever, because it’s not something that’s entirely within your power to give.
Very interesting analysis Class Action. As a married man, I’ve thought through some of these same issues. I do regard my marriage vows as a contract, but that’s just my personal opinion.
//Try as you might, you can’t contract to love someone forever, because it’s not something that’s entirely within your power to give.//
When one buys a house, one can’t know for certain that one will always be able to afford the payments, but that doesn’t mean one can simply ignore the contract if it becomes unaffordable. There are various procedures one must follow to get out of the contract, and those procedures have various consequences.
Historically, marriage has at minimum involved the following agreement between man and woman:
-1- The woman agrees that she will not become pregnant with anyone’s child but her husband’s.
-2- The husband agrees to raise and provide for any children the woman bears.
Note that generally a husband would want to be certain his wife wasn’t pregnant with anyone else’s child when he married her; if the woman was a virgin that would be clear, but it historically would otherwise have been difficult to prove–thus the strong preference for virgins.
Should a married woman be allowed to coerce or trick her husband into providing for children who are not his? Sounds more libertine than libertarian to me.
Most people enter into marriage almost immediately after they pass the age at which they are considered too incompetent to consent to anything of consequence. Kind of like teaching a kid to drive with a car that is either stopped or going 60 miles per hour. Furthermore, it’s pitched as a life-long commitment (one size fits all) between people who are most likely being driven by hormonally-induced attraction that has probably peaked by the time they’ve tied the knot.
Coincidentally, that’s the same age group they tap to stock the army with fresh meat.
“the RIAA claiming to represent artists is like a dairy farmer claiming to represent cows.”
No, the cows wouldn’t exist without the dairy farmer. The RIAA’s members do not create artists.
BSK: There are big differences between patent law and copyright law. One is that patents are only good for twenty years, and then the idea becomes public domain. Copyright is now good for close to a century, and it seems likely to continue to be extended as often as needed to keep the Disney cartoons from ever going into the public domain. (Note: Disney does not need copyright to protect it’s Mickey Mouse or Snow White characters – trademark law does that – but to prevent copying of the cartoons themselves.
Second, there is a much stricter requirement of originality for patents. Some “original invention” is required, not just a remix of old inventions. (There are abusive patents that IMO don’t meet that, but getting a patent office rubber stamp in a one-sided determination doesn’t meant they’ll stand up in an adversary court proceeding.) Remixes of various sorts get copyrighted all the time. The Brothers Grimm fairy tale books themselves are long out of copyright, but Disney gets effectively perpetual copyrights on cartoons based on bowdlerizing the Grimm’s work. But you don’t even have to do that; write a one page preface, and you can reprint The Brothers Grimm under your own new copyright.
Third, the clause in the US Constitution authorizing patents and copyrights, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” also implies a trade-off with society. For many patents, you could instead try to keep your production processes secret. (Coca-Cola protects its formulas this way, rather than by patents which would have published the formulas as soon as the patents were granted, then put them into the public domain later.) But if the secret is successfully kept, there is a risk to society that the secret dies with the inventor, and more importantly, the invention does not become available for future inventors to build upon. So by applying for a patent, you reveal your secrets, they are protected legally for a time, and then they become available to all.
Artists get a similar monopoly on sale of the realization of their ideas, but do not give up as much. There’s little point in producing a painting, a book, or a song and keeping it secret. Nor did the lack of copyright protection ever deter the great artists from putting their work out in public. From Homer to Shakespeare, they could not stop imitators, so they collected what they could on public performances, and then moved on to a new audience or a new play. Twenty-thousand years before Homer, artists presented their work solely for public admiration. I can see a public utility to giving artists a limited monopoly, so the best ones can make a living off their work and don’t have to take time away from it for a “day job.” I can see a public utility to also giving corporate-produced art a limited monopoly, because corporations exist to make income. I sure don’t see a public utility to giving the artists great-grandchildren a monopoly with life + 75 year copyright terms; they’re generally focused on how they’ll pay this month’s bills… Nor do corporations need 100 years to make a profit on their productions – it’s hard enough to get them to consider anything past the quarter’s end. Such long terms just obstruct other artists from incorporating pieces of older works, in the way that Disney produced Snow White from the Brothers Grimm.
IMO, the 20 year patent term is reasonable. It gives drug companies 8-10 years to recoup their development costs after 10-12 years of testing. (For the fastest-moving areas of technology, a 5-10 year term would be better, but if we had different terms for different categories of inventions, the lawyers would argue about which category applied until even the longest term expired…) For copyright, I think about a 7 year term would be best in general, with increasingly expensive options to renew for no more than 28 years total.
Duncan20903: “NY prosecutes adultery.”
What I found most interesting here was the stated reason for the 1907 law: “a wave of collusive divorces that apparently swept over the state in the early 20th century.”
Umm, yes. Generally in the 19th Century, VIPs could obtain divorces only by an act of the state legislature. Lesser people sometimes just left and moved across the country, depending on poor communications and their own obscurity to keep them from being linked to the abandoned spouse. Eventually, the legislatures got tired of the constant stream of private divorce bills and began establishing divorce laws, enabling anyone who met the criteria of a “wronged spouse” to go to court for a divorce. And in most states, only adultery was grounds.
So what could a couple who’d simply fell out of love do? Well, the man could hire a hooker and a “detective” with a camera. Or the wife could arrange to “get caught” in an affair.
And eventually the legislature became aware that many, many divorces were going through on photographic proof of adultery, even though in many cases the “adulterers” had not removed their pants. So to correct this side-effect of one boneheaded law, the legislators passed another one…