Archive for the 'liberty' Category

free to all

john palfrey leads the Digital Public Library of America (see the likeness?)

“we need a mechanism to start building, in an iterative fashion … on open-source code base, with metadata that is as open as we can make it, the materials openly available, and always “free to all”

free to all means capable of use without fear of copyright infringement

this requires:
(a) a registry of impeccable credential; and (b) legal means to defend it and its users against legal attack

we can do this

“So Give Up Traditional Copyright Enforcement” – Terry Fisher

here in new version

terry fisher speaks to #rethinkmusic

WS510200.terrytwo (two minutes)(sound not so good, but substance is there)

there seemed unanimity in the room yesterday that we can’t halt the march of technology. we can’t turn back the clock, we can’t hold back the tide. One way or the other, there was acceptance of the impossibility of returning to the “Golden Time of the 1980’s.”

More controversially there seemed pretty substantial consensus that even if we could turn back the clock, we should not because the benefits of this transition exceed its costs. If true, we ought not institute a graduate response system.

we dodged a bullet with the final draft of the ACTA treaty, which in its earlier phases would have required or nudged a number of countries of that agreement to institute a mechanism in which ISP’s would terminate and blackball subscribers who repeat peer-to-peer copy infringements.

So no, no graduated response, no three-strikes-you’re-out policy.

There also seems to be consensus that we ought not to any longer pursue civil copyright infringement actions against individual file-sharers with the associated draconian statutory damages

So give up on traditional copyright enforcement.


parker on fried-liberty

assignment to my American Jury class

obtain and read…

“[A]s a great popular leader [Mussolini] has said to an applauding multitude, ‘We will trample upon the decomposing body of the Goddess of Liberty.” W.B. Yeats, Irish Independent, Aug. 4, 1924, quoted in R. F. FOSTER, 2 W. B. YEATS, A LIFE 265 (2003).

“[H]e [l’abbé de Mably] hated individual liberty as one hates a personal enemy.” Benjamin Constant, De la liberté des anciens comparée à celle des modernes.

For Benjamin Constant—sometimes called the inventor of liberalism, my kind of liberalism—“individual liberty is the first need of modern man.” He and his friend Madame de Staël had survived the communitarian utopia of Robespierre’s republic of terror only to be sent into exile by Napoleon’s empire of the grandiose. “By liberty I mean the triumph—not just independence, the triumph—of individuality, as much over authority which would govern by despotism, as over the masses that would subordinate the minority to the majority.” When he returned to serve the monarchy of Louis- Philippe and that king in gratitude and admiration paid off his many debts, Constant warned that this would not in the least prevent him from criticizing. It was said of him that he sold himself many times, but never delivered. It is from Constant that Isaiah Berlin, in his celebrated Two Concepts of Liberty, took the contrast between the liberty of the ancients and the liberty of the moderns. Constant did not think them at all equivalent. The liberty of the ancients, the liberty of a people to govern their own state subject to no other ruler, was often the best that men could hope for in a time when wealth was tied to land and the only escape was to exile, loneliness and misery (think of Socrates choosing the hemlock over exile from Athens), but Constant saw that this “liberty” often goes along with the total, the Spartan annihilation of the individual. “It makes the individual a slave so that the people might be free.” In modern times a man can flee across borders with money in his wallet (or an “Inverted Jenny” postage stamp worth a fortune or an account number and a password) to build a new life elsewhere. The liberty Constant valued was the liberty of a man to live his own life as he thought best. Then as now America—to which Constant as a young man thought of emigrating —is the closest thing to that ideal.
That is what I grew up to believe. My family and I were chased from Prague—that most prosperous, most commercial, most comfortable, bourgeois and civilized of cities—by a homicidal maniac who like Robespierre and Napoleon had a vision of the glory of a nation and a people but cared nothing at all about persons. Then with Hitler gone and my father on the point of taking us back to Czechoslovakia, that country was put in the pocket of another mass murderer with an even more lethal—because more plausible—nightmare vision, that of a universal equality, in which every man would belong to everyone and all men belong to the state.
It is of the liberty of persons not peoples, it is of the liberty of the moderns that (to borrow from the opening of the Aeneid) I sing.

The greatest enemy of liberty has always been some vision of the good. It might be the good of community engaged for the glory of a city, nation, race, or party. This is best captured in the image of tens of thousands of slaves broken by the labor of building the great Pyramids of Egypt, with a result that must have amazed, still amazes. True, as much as a reach for glory, these tombs may have been one of the more sensationally desperate attempts to overcome the fact of death—as sealed away with the preserved body of the Pharaoh were the rich accoutrements of his life. But then glory has always been an avenue on the quest for immortality. The Pharaohs may have built for their own glory and immortality, but always and everywhere many religions have been ready to sacrifice the liberty of those whose lives they touched—whether as adherents or not—to what they took to be the greater glory of their gods. Power, magnificence and beauty are among the glories on which men have freely spent their own energies and the unwilling energies of others. But a way of life—whether of great simplicity or of complex ritual observance—has also seemed a good so surpassing that others must be bent to its pursuit. Think of the rural idyll-nightmare which Pol Pot sought to impose on Cambodia, but also of the complex observances of the mediaeval Japanese court.

Those who impose on others are convinced that the good they are after is a good as much for their victims as for themselves and so they claim that there are no victims at all. But just as often there is no thought of the good of the oppressed: Hitler thought of the good and glory of the German race—supermen ruled by a superman—a vision to which the elimination or subjugation of inferior races was integral, a vision in which those races obviously were not asked to share. And indeed the question whose good is it—cui bono—in many instances misses the point of this way of thinking, for it is the good in the abstract that is the goal, not any particular person’s good. The religious manifestation is the clearest—the service of the gods is not the service of any man. But running through this history of subjection and enslavement is the claim of some to coerce the service of others, whether for a common good, the good of the oppressor, or some good that is an abstract from both and applicable to all.
In this catalogue of oppression the idea of equality plays a prominent, yet ambiguous, part. Liberty is so important that everyone should have as much of it as possible. But there is another way of taking equality. Equality is so important that liberty, and not only liberty but every other good thing, should be enjoyed only to the extent that it may be enjoyed equally. In this second way, equality is more like the other goods I have mentioned—national glory or the service of the gods: it is a good that overrides the good of particular persons in so far as the well-being of some are sacrificed to it, and even if the well-being of others is not enhanced. This demands leveling down—deliberately hurting some people, without helping others—if that is the only way to come closer to equality. This was Pol Pot’s project as he emptied the cities and killed or drove into the fields the educated and most prosperous townspeople: Equality as a Great Pyramid. The Great Pyramid view of equality subordinates the goods—the well-being of individuals—to that one great abstraction.

We may know what counts as the power of a nation: its wealth or its successful conquests. Those who seek the glory of their gods seem to know what makes for that glory. But what is liberty? Here is a first, very general idea.

Liberty Is Individuality Made Normative

Individuals come first. Whoever says otherwise is trading in metaphors. There are societies, nations, families, teams, but they are all made up of individual persons. Together persons create traditions, adhere to religions, make up communities, constitute the spirit of a time or place. Individuals inhabit traditions as they inhabit the societies and nations they constitute. They may be said to inhabit the language and culture to which they contribute and which contribute to their consciousness. But all these things—societies, nations, families, teams, traditions, religions, languages and cultures—are the products of individual persons. There would be no language if no one had ever spoken it, although it can be written down, recorded and in that sense take on a life of its own. So also a culture or a society (or corporation or football team) may be said to have a life of its own. Individuals move through these entities, and when they are gone the entities are still there—though changed in large or imperceptible degrees by the persons who have moved through them. But the individual is primary in the sense that only individuals have eyes, ears, mouths, hands and brains, and it is only by individuals making, saying, drawing, writing and other individuals seeing, hearing and understanding, that languages are spoken and remembered, that traditions are felt and passed on.
Everything that matters to a person, to persons in general, everything humanly of value is first of all experienced by individual persons. I now take the next step; and it is a large one. Everything that matters to persons, that is humanly significant is chosen by individual persons, is the responsibility of individual persons, one-by-one. Here as I use the word responsibility, it is I who may be accused of dealing in metaphors, but consider the sense in which a belief—a quite ordinary belief—may be said to be chosen by the one who believes it. The matter of belief, whether it be what a person directly perceives of the outside world or what others tell him, must somehow come to a man’s consciousness and there he must weigh it, decide whether to credit it, or whether to dismiss it as an illusion, a mistake, a falsehood. Overwhelmingly these judgments are snap: almost everything I see I accept as really there without giving it a second thought, but I do give it a first thought. Mostly if someone tells me a simple thing—“Take your umbrella, it is raining”—I do not pause to consider whether to accept that it is in fact raining. And yet I must take in what was said and make a snap judgment that the person who is talking to me is in earnest or joking, a normal observer or a madman. I may judge credulously, impetuously, foolishly or ignorantly, but these are all modes of belief and they are mine.
And so it is also with my judgments of what I should do, what is good or bad, right or wrong. However much my choices may be influenced by prejudice, emotion, fear of others, it is still I who must choose before I act. And the beliefs, choices and actions that make up the human world are those of individuals—discrete points of perception, thought, judgment and choice. They may coalesce in cultures, spirits of the time, but these are made up of individual perceptions, conclusions, choices, actions. And each individual experiences these as ineluctably his, whatever else they may be. In this sense he is responsible for all of them.
In addition to judgments and choices being mine, so also the pains and pleasures, the satisfactions and disappointments, the passions that give my life energy are also ineluctably mine. This has nothing to do with selfishness or altruism. Whether I take pleasure only in comfort and luxury or my happiness consists in the beauties of art and nature or in the thriving of my family, friends or of all humanity, still it is I who seek these goods and am elated or dejected by their attainment or failure. And again this is not at all to say that I choose the good of humanity or the production of great beauty because of the satisfaction they procure for me; I feel the satisfaction (or dejection) because these things are good in themselves. If by some magic I would have to choose between the satisfaction and the thing itself, it is the thing itself I would choose. So the lover seeks the good of his beloved not because of the pleasure he attains when the beloved is well, but for her sake. (Think of Rick on the runway in Casablanca as Ilsa and Laszlo make their escape.) And still all of these goods—high and low, selfish or generous—are sought by us because of what we judge them to be. They are our goods. Finally, this individualism should not be confused with solipsism. What I have been arguing does not at all commit me to the proposition that whatever an individual chooses or experiences as his good is therefore good after all. There may be—I believe there is—a fact of the matter about what is good or bad, right and wrong, worthwhile or degraded. The choosing individual may be profoundly mistaken, superficial, criminal, shallowly selfish; that he chooses as he does, does not determine the judgment on what he does. He is responsible for his beliefs, judgments, choices and actions. To argue that because they are his they cannot be good or bad is just a mistake; but it is a mistake that deprives a man of responsibility.
It is this rock-bottom, indigestible fact of each person’s lonely individuality, his ultimate responsibility for his own beliefs, judgments and choices that grounds our demand that we be free, that is the ground for our liberty. When others try to force me to do what I judge I do not want to do, or try to trick me into believing what I would not otherwise believe, they disrespect—they attack—my person at its deepest level. Because that is where the attack on our liberty comes, it follows that there is a difference between what others do to me and what they merely allow to happen to me when they will not help me or get out of my way. In doing to me, they do indeed take my person into account and make that part of their project. In refusing to help or get out of my way they may fail to acknowledge me as a judging, feeling, choosing individual, but in doing something to me they acknowledge that and use it for their own purposes. They (try to) deprive me of my liberty.
Liberty is individuality made normative. The person who disregards me—turns away or runs over me—ignores my individuality; he pays no mind to the fact that I have a distinct consciousness, plans, judgments. For example, the man who throws me out of a window onto his enemy in the street below in a sense uses me—but as an object, a dead weight, not as a thinking, responsible being. And he does not violate my liberty. It is the man who takes account of my individuality—my thinking, reasoning, judgment—and forces me to bend my will to his who violates my liberty. His plan depends on the fact that I have plans and he makes his plans part of my plans. I am the means to his ends; that is, I as an independent, responsible consciousness. A violation of liberty tears something: a man recognizes me, recognizes me as being a person like him, but then contradicts that recognition by using against me and for himself the very things that make him and me persons. It is this relationship between us that implicates liberty; liberty is fundamentally about relations between persons.
Now you may be thinking that as a thinking, feeling being I have plans of my own—selfish or generous—and these plans (what might be called for short my good, or my goods) are what I care about. And these plans may be frustrated as much by another’s running over me or passing me by as by his using me. More, there is scarcely anything I can accomplish without others: I would not have been conceived, born, reached maturity, learned language without others. If I had been ignored, I would have died. The success of my plans always depends on others. Yes, but as we acknowledge that, notice how it is we depend on each other. We depend on each other to deal with us—for us and against us—as thinking, choosing beings: as persons, as individuals (perhaps not in our conception and infancy, but soon after that). So all these good things implicate liberty because they depend on our eliciting, discouraging, modifying other people’s choices; they implicate how we treat each other as persons and not as inert objects to be ignored or obstacles to be got out of the way. The running over and passing by are secondary, secondary to our dealings with each other as persons. We run over or pass each other by on our way to something else, in pursuit of some plan, and that plan almost always will count on cooperating with or using others—their capacities to understand, value and choose.
Liberty is implicated when we take those capacities into account. Consider two opposite ways in which we take into account other persons and their distinct capacities as individuals: we can cooperate with them or we can coerce them. (I use the term coercion to cover threats, orders and not physical restraint—it is the difference between pointing a gun at a prisoner while ordering him to move and frog-marching him.) In cooperation we elicit choices by inviting the other to join in our choices, to make our choices his. Now I know that cooperation can be made to look like coercion—the offer you cannot refuse. Take an extreme and obvious example: the bank manager can be said to cooperate with the bank robber by opening the vault to save a hostage’s life. And a less obvious example: the landlord insists on a greatly increased rent to renew the lease of a successful restaurant that has over the years come to be identified with a particular neighborhood. And at the other extreme, Mozart and the librettist da Ponte working together to create The Marriage of Figaro, or the joining of lovers. In all of these examples—even the bank robbery— individuals make use of each other as persons, in all liberty is implicated, but only in the first example of the bank manager is it clear that liberty is violated. It will just exactly be my job in succeeding chapters to unravel when liberty is violated and when it is invoked. (A glance forward: we will see that a complete idea of liberty implies a notion of rights, and others can trespass on my rights inadvertently, heedlessly as well as willfully and viciously. I may, and the state should, protect my rights in both cases. But the trespasser conceives of me differently in the two cases, and the extent and kind of justified defense will differ too.)

Heicklen Invitation

Julian Heicklen, the responses from my American Jury class are flowing in: Would you be willing to come to Cambridge to speak with our American Jury class on a monday or tuesday afternoon in the upcoming month


New Jersey
New York
North Carolina
US Code

US Constitution

Art. I – Legislative
Art. II – Executive
Art. III – Judicial
Art. IV – States’ Relations
Art. V – Mode of Amendment
Art. VI – Prior Debts
Art VII – Ratification

Crimes and Criminal Procedure – 18 USC Section 1504

Legal Research Home > US Laws > Crimes and Criminal Procedure > Crimes and Criminal Procedure – 18 USC Section 1504


Sec. 1504. Influencing juror by writing

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Julian Heicklen is a 78 year old libertarian activist known for his marijuana protests at Pennsylvania State University where he was a professor and more recently jury nullification outreach. Since October 2009 Julian has been traveling around the USA (mostly the northeast) to do jury nullification outreach at federal courthouses.

Self bio:

Julian Heicklen was born at an early age. At 8 days, he was circumcised. This was so traumatic that he did not walk or talk for a year. There was nothing unusual about his early development. He went to Cornell University to become the usual engineering nerd.

Unfortunately, while in high school, his uncle gave him a book about the Declaration of Independence and the U.S. Constitution. To complicate matters, while at Cornell, he read Les Miserables by Victor Hugo and The Fountainhead by Ayn Rand. He transformed from the ordinary engineering nerd into a raving maniac about freedom. Ever since, he engaged in all sorts of socially unacceptable behavior. He stole a house, won the Yom Kippur war for Israel, corresponded with Soviet Premier Yuri Andropov, tried to sue the U.S. Post Office, smoked pot at the main gate of Penn State University every Thursday for 3 years, had a municipal law declared unconstitutional, and distributed subversive material at the U.S. Courthouse in Manhattan. He has been arrested 23 times and incarcerated 8 times.

He has the delusional idea that he can transform the United States from a totalitarian government into a free society. His wife and daughters are trying to get him committed to an old age home. He prefers prison where he has around the clock police protection, something he could not otherwise afford. In addition, that is where the interesting people reside.

Why is my brief not helpful to the Court?

The Supreme Court continues to address cases where the decision turns on the intricate interpretation of a single word in a statute or regulation. But increasingly the cases that most engage the justices and that matter most to the court are about interpreting the Constitution and its allocation of power.

In Citizens United, in which the court unleashed corporate, union and other money into electoral politics, the majority overturned a century of precedent that it had twice recently reaffirmed. It did so by moving past the limited controversy that was actually in the case and deciding a sweeping issue of constitutional law that no party had raised for the justices to consider.

It also inserted itself where the court has said it should be most restrained, deferring to other branches with more competence to decide questions about the workings of politics, including about the role of money.

thank you lincoln

Is the Internet a Human Right?


Social Justice in the Age of Facebook

peter suber points me to ed felten’s brilliant take on three strikes for books

palfrey deposition

audio deleted, with regret

and then i twittered

and when we came back from the break oppenheim objected. sorry i didn’t get my recorder back on for his words. the recording picks up with palfrey asking for clarification of the publication constraints he is under.

songs as shared things

wayne\'s tweets

no ruling yet on whether wayne will be allowed to testify

but please, read this
thank you wayne, however this goes

now we will see copy-right’s real strategy

From: Joel Tenenbaum
Date: Fri, Dec 19, 2008 at 8:52 AM
Subject: [cyberone-riaa] [Fwd: riaa]


“Indeed, many in the music industry felt the lawsuits had outlived their

game of gotcha

Power plays by the rules only when it suits its purpose
Now the court in Oregon is realizing it has some
Including the power to put their reality back in the face of authority
Power we think comes from on top
Power comes from within

Here’s an article in the new york times about Breyer listening and hearing what the Oregon judges are saying, speaking in their lawyer’s language about instructions to the jury, and Souter asking core questions.

Massachusetts, New Hampshire, Oregon
gotta love it

adam liptak

and then Roberts batting clean-up
where’s he from
home run

“Is there a way for us to ensure against a bad-faith response to our decision?”
Justice Souter asked. Chief Justice Roberts had an answer. Get to the issue at the core so that our decision earns respect. The Supreme Court has no troops to enforce its judgments on lower courts. Supreme Court authority is respect for law, which starts with judges understanding the true source of their power.

where is a transcript of this magnificent exchange
where is the audio/video
why do i not have this to teach to my class

today’s a busy day
here’s from matt:


I have class from 10am-12:45pm. Other than that I am available.

As a rough note to get things started, here is a (probably non-exhaustive) list of things we need to produce/discuss:

1. Request for leave to file reply to plaintiffs’ opposition to our amended counterclaim (ASAP!)
2. Request for leave to file reply to plaintiffs’ opposition to our motion to add RIAA (ASAP!)
3. Request for leave to file reply to plaintiffs’ opposition to our discovery plan (if we chose to do so, and if that is even possible… ASAP!)
4. Produce all three of those documents
5. Figure out what to do if we want to appeal the order against Tova to the 3rd Circuit (if we choose to do so)
6. Figure out how to comply with plaintiffs’ proposed discovery plan, because I think Judge Gertner probably will either adopt their plan or a modified version (provided we don’t/cant reply)
7. Figure out how to prepare all of the discovery stuff we’ll need to do soon anyway (esp. preparing expert reports on our experts)
8. How we’re going to handle the hearing in RI, including whether we’re going to request electronic recording
9. Finalize plans for our motion to allow electronic recording of the D.Mass proceedings
10. Decide how to distribute/coordinate all of this stuff with finals/Xmas break looming


from shubham
-For the reply brief on the amended counterclaim (item 1 above):
A. Argue that the court does in fact have inherent federal authority to allow redress for abuse of process.
B. Argue that our state law abuse of process pleadings are sufficient to continue to trial
C. Argue that the first amendment cannot justify their litigation campaign
D. Unconstitutional delegation argument
E. Civil v. Criminal argument
F. Unconstitutional excessive damages argument

from doc searls

Another example of RIAA heartlessness:




joel fights back