Free Speech

I don't think Americans realize how good they have it. 99% of the time if they want to say it, an American can say it.

Our 1st Amendment cases are much of the time extreme compared to other countries:
In America if you burn your draft card on the steps of courthouse during a time of war, you might go to jail for a bit. In China, in a time of peace, you might get shot or run over by a tank.
In America nothing is sancrosanct when a comedian performs an act. In United Arab Emirates, the comedian has to provide a transcript of the act so that someone can edit it out.
In America we watch and laugh at a show that presents our President as a complete idiot (let's sidestep the obvious). And most recently, in Thailand they block an entire website for relatively weak mockery of a ruler.

I know many people are currently unhappy with a lot of American government policy, and hopefully that will change. But, it is helpful to remember sometimes how truly different the freedoms we take absolutely for granted are not even tasted by other people of the world.

Wikis and Copyrights

I have created a wiki (I choose not to link for a number of reasons) and been a healthy contributor on quite a few. You might notice that almost every wiki has a copyright license at the bottom of the first page. This license will tell you what happens with the stuff you add to a wiki. For instance can others edit your additions, can people take your additions and bring it to another place (not on that wiki), can your addition be related to any commercial use, and realistically the most important, IMHO, what happens when your article is edited.

There are many "commons" licenses that allow for an almost public-domain-like allowance for the copyright material. Usually any kind of personal use is allowed. However, the differences can be suffocating.

Recently my all time favorite game, Guild Wars, started an official wiki. This was awesome except that awesomeness was tempered by the fact that there was already a goliath-size unofficial wiki in existence. For the rest of the article I will call the former "OGW" (official guild wiki) and the latter "GGW" (goliath guild wiki).

The community was pretty excited because the benefits of having an official wiki were pretty substantial: (a) the owner would not randomly decide to take the wiki down, (b) the hardware and connection could be substantially improved, (c) developers and personnel of ArenaNet might be persuaded to add to the wiki, etc.

Community: Ok, well let's just copy everything from the very substantial, nearly complete GGW to the new and blossoming OGW.

ArenaNet: We can't do that.

It seemed that the license on the GGW did not allow for any commercial use. OGW, owned by the company that ran Guild Wars, would definitely be used for commercial use even if only "lay people" would be adding content.

This was horrible. Two wikis on the exact same subject create the biggest bane to a wiki's existence. Competing wikis are about as stupid as competing operating systems, as entertaining as it may be. Ok, bad analogy and wrong battleground.

Anyway LDRAW (Lego CAD development) recently had nearly the same problem shifting their parts library over to a "commons" copyright license. This took nearly a year because they had to contact each parts author and ask that author to release his copyright to the part under the new license. The authors that could not be contacted had their parts deleted off the LDRAW server, and those parts had to be later remade in an original manner.

This solution would be perfect for GGW and allow the OGW to replace it. The problem is that a wiki is editable by practically anybody. Many people create usernames to attach to their wiki additions/edits, but just as many edit anonymously. Well not totally anonymously because IP's will be tracked, but still contacting an author based on their IP is not very feasible. The other problem is that so many authors add their stock to the wiki article's soup.

Sure Bob the Farmer may have started the wiki article on sheep, and then Sally edits his article for grammar and had to add a sentence on sheep diets, Gregor added a paragraph on sheep diseases, ph3@r added a bit on having sex with sheep, etc. As of the current iteration, let's say, 80 authors have put their hand on the sheep wiki article.

Can our law really handle the copyright problems imposed when 80 people add material and then walk away? Most people that use wikis know that nothing is sacred. What one might feel is sacrosanct is just another factoid to another, and may edit out the feelings of holiness to make it more neutral. People also get their facts wrong, add opinions, and even make stuff up.

What about the fact that the author's copyrighted material is basically in the hands of another person? If the server is taken down with no backups, etc. the material may be lost forever. Should that matter? Should copyright really protect all the crap that is shoved out onto the net each day (including this article) to the degree that a book or manuscript is protected?

Now American intellectual property law is based on the notion that you must protect your rights. So while 80 people might hold some iteration of a copyright on the sheep article, it is probable that no one will actively seek to protect their copyright. Still, companies wishing to make things "official" will not wish to take on the boatload of liability.

I feel that this is another stab at how archaic and stupid our copyright laws are. We are coming upon another Mickey Mouse cycle for copyright. I hope our Congressmen attempt to learn about copyrights with a forward-looking expansive scope, instead of to just a commercial degree.

Just Shutup, Pt. 2

a.k.a. STFU Donny!

So the detective finally gets enough probable cause to arrest Donny, BUT NOT BECAUSE OF DONNY'S REFUSAL TO ANSWER QUESTIONS! (I will not even touch probable cause, a whole blog could be written on those two words. For now just take probable cause to mean "a reasonable belief that a crime has been committed.") What has to happen next?

When someone is arrested, the law requires that the prisoner is given a Miranda warning. A typical warning is as follows:

You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions, or make any statements.

This education of rights is very interesting because it goes against the old adage "ignorance of the law is no excuse." In this case it is an excuse and many confessions and heaps of evidence have been excluded from a prosecution because of a failure to give a Miranda warning.

If Donny is not given a Miranda warning practically nothing he says can be used against him. He can confess, explain where the drugs are, name names, etc., and the law acts like he said nothing. Furthermore if Donny confesses at the behest of police questioning and is then later given his Miranda warnings, the warnings "clean the slate" so to speak. The law still acts like Donny never confessed! This prevents officers from "beating" out a confession that circumvents the Miranda requirement.

If that weren't enough evidence that is gained from information violative of a Miranda warning is often voided as well. Let's say the detective does not give Donny his Miranda warning. Donny explains that Tito is the neighborhood drug lord and he has 20 kilos of cocaine in a nearby dumpster. The detective checks out the dumpster and finds the drugs. This evidence cannot be used against Donny or Tito in this manner. The law makes sure that the Miranda warnings are a gate, not a speed bump to swerve around.

Well now that you, avid reader, have a slight understanding of the Miranda warning's power, what should Donny do when he is given his Miranda warning?

First, a police officer can continue to talk and reasonably question Donny after the Miranda warning is given. Badgering out of the question, but guilt trips, etc. are allowable. This is in the hope that Donny will "waive" his Miranda rights (a very stupid thing to do). If Donny says "I invoke my right of silence," or a similar iteration, no more questioning is allowed for a reasonable period. Furthermore, let's say the first question the detective asks after the Miranda warnings is, "Have you sold drugs?" Donny replies by invoking his right to silence. Nothing can be inferred from this, no evidence can be taken from this, and it is as if the question was never asked for court purposes.

The most powerful thing Donny can do is immediately ask for a lawyer. If this happens the detective can do nothing until Donny sees his attorney. If he even questions Donny whole swaths of evidence may be voided and the detective may get in trouble or set Donny free. The attorney, later showing up, will then counsel Donny to shut up and all will be well.

The reason Donny wants to keep his Miranda rights is bargaining power. If he waives his Miranda rights thinking now that he is being good they will go easy on him, he loses out. If he says nothing until his attorney can plea bargain with the prosecutor, Donny might get a much better deal. Especially in Donny's situation where the cops really want the drug dealers, not the friend of one.

The right of silence when questioned outside a courtroom is not one to simply throw away. Police officers do excellent jobs, but their interrogation powers are very limited. Now, the best deal would be for you, avid reader, to not break the law. But if you do, just shutup.

Just Shutup, Part 1

Myth 1: When a police officer questions me, I must respond.

First, I want to disclaim: Thank god for this myth. If every petty criminal were intelligent enough to know that this myth is not true, our criminal system would buckle. Police hands would be even more tied than they are now. However, knowledge is power and since our Byzantine legal system requires that knowledge, this post remains.

Donny lives in a shady neighborhood. He is a good, mostly law-abiding citizen, but has friends who he knows are law-breakers - let's just assume they are drug dealers. Donny is not a model citizen because he doesn't rat out his friends, and he does this for a few reasons, the most important being his safety. An intelligent detective comes to find these drug dealers and the old lady landlord says Donny has information and may even be one of the drug dealers. The detective stops Donny in the street to question him. What are Donny's options?

He can tell all he knows. He can talk minimally to try and get the detective off his back. He can lie and try and throw the detective off the scent. He can shutup.

The 5th Amendment of the U.S. Constitution is more powerful than most people know. Let me just quote the pertinent part here: ...nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law []. Now, anybody who avidly watches Law & Order, or any other courtroom drama iteration, will understand the first part of the quoted Amendment. If you are asked a question in the courtroom that makes you either implicate yourself (or commit perjury and lie) you can raise the protection of "the fifth." The latter part, which most people don't understand, are the protections outside of the courtroom.

Let's get back to Donny. There is a binary question that must be answered. T he question is whether Donny is in custody. Now you answer will obviously Donny is not in custody if the detective just walks up to him in the street. This is usually true, but take these additional facts. Donny steps under a doorway to get out of the rain. The doorway is locked, and Donny has no access to the lock. The detective stands in the doorway so that Donny cannot easily get past without pushing the detective, and when Donny tries to push past politely the detective physically stops him. Many courts would consider this custody. Donny is deprived of liberty momentarily. Custody does not require handcuffs.

If Donny is taken into custody, his rights change (this will be discussed in Just Shutup, Part 2). But, out on the street not in custody of the detective the Fifth Amendment allows Donny to just walk away.

The detective's job is to root out the truth and find the perpetrator. To do this he might question Donny in a way that makes it seem as if Donny is a suspect (and he may as well be for this scenario). Most detectives know how this works; they have to get the person to speak of his own free will. So as Donny is walking away, the detective is chasing after Donny and telling him how Donny is on the chopping block, do the right thing, or any number of fish hooks.

This is where most stupid criminals may trip up. Now they have been implicated. The detective asked him, "Donny, are you dealing drugs?" If Donny says "no," but is later charged as a knowing accomplice, this evidence may be used against him. If Donny says "yes," the detective is going to handcuff him and definitely take him into custody. But, most Donnys feel the need to answer. If they don't, most people feel like then they are practically saying, "yes, I deal drugs." The reasoning goes if you don't have anything to hide.

This is not the case. The detective cannot assume guilt from silence. Sure, the detective may feel that Donny is hiding something and use other means of finding out the information. But, nothing can be assumed from choosing to hide behind the rights of the Fifth Amendment. If every Donny out there knew this, the efficiency of detective and police work would plummet.

So what should you take from this, good citizen? Am I saying never tell nothing to nobody? No, obviously the police and your neighborhood can benefit from your help. Say a neighbor murdered his wife a few doors down. Your answers to the police may help a lot, and you might really want to help them. On the other hand, there might be times when nothing you say will help that person's case and it might make things worse for you (a portrait I tried to paint with Donny).