Another gun control post

So I ran across an article about a study conducted by a group (Violence Policy Center) that is calling for tighter gun control.

Their report is here.

Now, in all fairness, I will mention that I am pretty opposed to gun control laws. I believe that it is a fundamental right of every human being to protect their lives, and any law that restricts my access to a tool which might be used to protect my life is not something I will ever support.

That being said, I also believe that there are reasons to require training so that I can use the tool wisely as opposed to recklessly which could endanger the life of some innocent bystander.

According to the numbers in the report (which come from the FBI), between 2008 and 2012, there were 38 criminal homicides for every 1 justifiable homicide. A justifiable homicide is one where the person committing a felony crime is killed in self-defense. During those 5 years, there were approximately 1100 justifiable and over 41,000 criminal homicides.

In that same period (actually 2007-2011... according to the report, so not completely identical, but close), there were over 29 million violent crimes committed, and during those, a self-protective behavior where the victim threatened or attacked the criminal with a firearm occurred 0.8% of the time (about 235 thousand times).

The report draws two conclusions:

1) "The reality of self-defense gun use bears no resemblance to the exaggerated claims of the gun lobby and gun industry."

This is in response to a claim by pro-gun groups (including the NRA) that claim that guns are used defensively 2.5 million times per year.

I agree with this conclusion.

2) "The idea that firearms are frequently used in self-defense is the primary argument that the gun lobby and firearms industry use to expand the carrying of firearms into an ever-increasing number of public spaces and even to prevent the regulation of military-style semiautomatic assault weapons and high-capacity ammunition magazines. Yet this argument is hollow and the assertions false. When analyzing the most reliable data available, what is most striking is that in a nation of more than 300 million guns, how rarely firearms are used in self-defense."

Here's where I disagree with them. This statment, even though it is accurate, is NOT the basis for making an informed decision about whether guns should be controlled or not, and what types of restrictions are appropriate.

The report does not include data that is necessary to be able to propose a legitimate response.

Let me ask a rhetorical question. During the 5 year period of time, there were 235,000 reports of self-defense using a firearm. 1100 of them resulted in a justifiable homicide. Of the remaining 234,000 incidents, how many of them would have resulted in a criminal homicide if the victim had not had a firearm? We cannot answer that question of course.

For the sake of completeness, let's ask another question. How many of those 234,000 incidents resulted in a criminal homicide which would not have happened if the victim had not been armed (i.e. the fact that the victim had a gun pushed the criminal to commit homicide when he would not have if the victim had been unarmed)? Again, we can't answer that question.

The report states that guns are not used in self-defense very often, but that's not surprising. The likelihood that a criminal who sets out to commit a violent crime will have a gun (and therefore the ability to commit a gun-related homicide) is MUCH higher than the likelihood that a non-criminal will have a gun available, so the number of guns out there is not a useful number. The only number that counts is guns that were available at the time a crime was being committed.

So let's ask some questions that COULD be answered I believe (though they were not answered in the report).

First, I want to know how many gun-related homicides were committed where the criminal had a gun and the non-criminal did NOT have a gun.

Second, I want to know how many gun-related homicides were committed where the both the criminal and the non-criminal had guns.

In the first situation, almost all of the homicides will be criminal. There is the possibility that the victim manages to disarm the criminal and then use the gun on the criminal resulting in a justifiable homicide, but those will certainly be a small minority of the homicides. The criminal homicides will certainly account for more than 99% of the total homicides.

Now, look at the second situation. What percentage of the homicides are criminal? It will be less than the first situation, but by how much?

If the percentage drops only a couple percentage points, then I would agree that guns are not very effective as a defensive weapon. Basically, the criminal was prepared to use the gun, the victim was not, so it didn't really matter whether the victim had a gun or not.

If this is the case, then perhaps restricting guns might be a valid response since it might actually limit the availability of a gun to the criminal.

But what if the percentage drops from 99% to 80%? If that is the case, then my response is that a lot more people should be carrying guns. If they were, then based on those numbers, of the 41,000 criminal homicides that occurred, approximately 20% of them (or around 8,000) could have been replaced by a justifiable homicide, and if the object of owning a gun is self-defense, that's a favorable result!

I'd also want to know another thing. I want to know how many gun-related homicides were committed where both the criminal and the non-criminal had guns and the non-criminal had received training in how to use guns in this type of situation (perhaps a concealed weapons permit training, military or police training, etc.). Now what is the percentage of criminal homicides? I'll bet that it's significantly lower than the second case. What if it is 50%? If that's the case, then the problem is that we're not training non-criminals how to use guns! We should make sure every law-abiding citizen owns a gun AND provide free training on how to use it in a self-defense situation.

Actually, I'd like to see the free training offered anyway. That would reduce the likelihood of an accidental homicide, which would be great.

My main point here is actually not to discuss gun control laws. My main point is that I wish that people on either side of the discussion would use real numbers and draw legitimate conclusions from it as opposed to the passion-driven but logic-lacking conclusions that they do present. But a secondary point is that I have yet to see an argument based on logical AND relevant facts that lend weight to the gun-control side. Unfortunately, I also haven't seen much from the pro-gun side either, and that's too bad, because personally, I believe that that side should be able to support their conclusions quite effectively.

Unreasonable search

My wife and I had an argument last night. It was not a major one... but it definitely went beyond "heated discussion". We were talking about what we would do if we were pulled over by the police for whatever reason and we were asked if they could search our car.

There is nothing in our car that is illegal. No drugs. No stolen property. Nothing. A police search of our car would turn up nothing that could be used to charge us with a crime.

And yet, my answer would be "no you may not search the car". Unfortunately, my wife's answer would be "sure, you may search", and she felt that my answer was not a rational one. She felt that all it accomplished was to interfere with the police doing their job (which ultimately should be, and for the most part is, to protect myself and other citizens). I'm not a conspiracy theorist. I don't believe that the police are just waiting with little bags of drugs to plant in my car so they can charge me. I don't believe that they are out to get me. I also recognize that, if I were to submit to the search, it would be over in a few minutes and I'd be able to go on my way, whereas if I say no, it will certainly delay things (perhaps significantly), if for no other reason than that at that point, the police will suspect me for something, where before it may just have been a routine search for them.

And yet, even knowing that, if I am ever placed in that position, my answer will still be no to the search.

I tried to explain that I felt that it would be relinquishing my rights to say yes. My wife responded that it wouldn't be. If I chose to allow the search, I am not giving up my right. In the heat of the moment, it's hard to come up with a rational, well thought out response, and it quickly switched from being a debate about personal freedoms and rights, and became an argument about "who's right". Not very productive, so I apologize for my part of the argument, even though I still feel the same. As a matter of fact, now that I've written out this posting, and have clearly spelled out WHY that is my answer... I actually feel it even more strongly.

So, here is my answer to her, and to the world, of why I will not voluntarily allow the police to search my car.

To start with, I want to define the specific right I'm talking about. It's described in the 4th amendment: I have the right to be secure "against unreasonable searches and seizures". That searches and seizures are to be conducted only when a Warrant is issued based "upon probable cause".

There are several questions that can be asked, but the main one is what constitutes an "unreasonable search". My opinion, which may not match the current operating procedures of any police force, and may or may not match my wife's definition, is that there should be some evidence or suspicion that I am involved in a criminal activity for which a search might find proof of that activity.

I am opposed to a police force targeting a black person just because he's black. I'm opposed to the TSA conducting invasive searches just because I want to get on a plane. I'm opposed to the police pulling a person over just because they are driving in a place with a known crime problem, or just because of how they are dressed. None of these is evidence of a crime. All of these are a form of "presumed guilty until proven innocent" which is exactly opposite of how things should be. Even if I were pulled over for one crime (speeding, driving with a non-working tail light, or failing to stop at a stop sign), none of these are evidence of a crime that would require a search of my car. So, if I were pulled over under any of these circumstances, and an officer asked if they could search the car, the answer would be no.

Now, if the officer explained that they had a report of a crime, and the general description of the perpetrator matched my general description, I would consider that a reasonable search, and I would agree to that one.

But, the question still remains that if I consented to the search, is that consent in any way impacting my right?

In my opinion, the answer is yes. A human right is a vague thing... until it is exercised. Exercising a right is very similar to exercising a muscle. True, if you do not exercise a muscle, the muscle doesn't disappear entirely... but it is weakened, and may not be able to perform it's task when you really need it. Likewise, a right that is not exercised is weakened. It may not be completely gone... but it is definitely less than it was, and less than it should be.

The rights to free speech are protected, not by those who are silent, but by those who exercise their right to speak out. The right to bear arms are protected, not by pacifists who believe nobody should own guns, but by those who own them and want to continue to own them.

The right to be secure from unreasonable search is secured by those who would not give consent for such a search to be conducted. I am one of those people.

The Second Amendment

With all the recent attention to the second amendment (due to the various highly visible shooting attacks), I want to post an essay that I've been writing for the past 10+ years on my thoughts about the right to bear arms.

As with all my political beliefs, I'm very much driven by the need to secure our rights. Interestingly enough, as I wrote this essay, my thoughts about what exactly my rights are changed quite a bit... and that's a good thing. I don't clam that the proposals I make are necessarily perfect (or even that they would work)... but they are things that I think are steps in the right direction.

Anyway, without further ado, here are my thoughts...

The Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

When discussing the bill of rights, the second amendment is a very special case. The bill of rights was added in order to protect certain rights which were deemed absolutely vital by the founding fathers.

Most of the amendments continue to preserve those rights (or at least they do when they are correctly enforced). The amendments protecting the rights to freedom of religion, freedom of speech, or freedom from illegal search and seizure continue to function in their current form.


The second amendment however is different from all other amendments for two reasons.  Due to circumstances beyond the abilities of the writers to predict, it is no longer capable of securing the rights for which it was initially intended.  To add to the complexity, the right to bear arms has actually taken on two different meanings, both of which are important, which have different, and even contradictory requirements.

As such, preserving the second amendment in it's original context will not serve the purpose for which it was intended.  If your purpose is to secure our rights (which WAS the fundamental purpose of the people who wrote the amendment, and is my purpose as well), it is not sufficient merely to understand the amendment.  It will also require that changes be made.

In order to understand this, we have to look at the various ways in which our unalienable rights might be threatened in a way in which arms might be used to secure the rights.  Obviously, this refers to a situation where an armed or violent threat is made against our rights. There are three general sources from which those threats to our Life and Liberty might come that the second amendment might address:

• Threats from other individuals
• Threats from other nations
• Threats from our own government

THREATS FROM OTHER INDIVIDUALS

Our rights are often threatened by other individuals.  This might include theft of property, threat to our life, or some other form of infringement.  In all cases, we have the right to protect ourselves from those threats.

It is fortunate that we have a police force.  With respect to protecting our rights, the police force serves two important purposes. The first is that it deters these crimes (infringements on our rights) from occurring in the first place.

It is certain that the presence of a police force does tend to deter some crimes from being committed; probably the majority of them. Although it is impossible to determine exactly how many crimes would have been committed if no police force existed, I'm positive that the number would be far greater than in the current state.  However, no matter how visible the police force is, it doesn't deter 100% of the crimes.

The second purpose for having a police force is to catch someone who has committed a crime.  If you look at the crimes that are actually committed, in almost every case, the police only become involved AFTER the crime was committed, and as a result, the victim of the crime has already had their rights infringed on.  It is important to use other means, where available, to secure the rights of the potential victims of these crime which would be committed, even in the presence of the police force.  So, having a police force is necessary in securing our rights, but it is not sufficient, and other means must be available to every individual.

One of the means available is the right to be armed.  Although this means may not be effective in all cases, it is certainly effective in some situations.  As such, the right to bear arms must be preserved, and even 'optimized'.  In other words, the goal should be to preserve the right to bear arms in such a way that it optimizes the likelihood that the arms will be capable of being used to protect the rights of the potential victim.

The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good. -- George Washington

For the first time, a civilized nation has full gun registration! Our streets will be safer, our police more efficient and the world will follow our lead into the future! -- Adolph Hitler, 1935

It should be noted that the second amendment was not written with the intent to preserve our rights to bear arms in order to protect ourselves from criminals.  The original intent was to protect ourselves against other nations and our own government (which will be discussed below).

It is unfortunate that this amendment does not directly address this right, as it is equally important to protect our rights against threats, whether it be at an individual level or a nation wide level. It might be that the founding fathers recognized that securing the right to bear arms for the intent to secure our rights against a military attack would also protect our rights at the individual level, but it is unfortunate that the amendment was not worded in such a way as to make that clear.

There is one other difficulty which arrives in determining the meaning of this amendment respect to personal protection.  When the amendment was written, the weapons that might be borne were extremely limited, and any weapon which might be used to defend yourself against a military might equally well protect you personally against some form of personal attack.  In essence, the right to secure yourselves against personal attack and the right to secure yourselves against military attack had the same requirements, both of which could be met by allowing personal ownership and bearing of weapons.

This is no longer the case though.  With respect to personal protection, there are some legitimate limits on the right to bear arms.  As with all rights, your right ends where it begins to infringe on someone else's, so it is critical that one person's right to bear arms not infringe on another's right to life.

For example, a person has the right to bear arms in order to protect their life, but it would not be appropriate for that to include a grenade as it would be virtually impossible to use such a weapon in a way which did not endanger the life of other innocent individuals. Similarly, it would not be appropriate to use a machine gun for self-defense in a public area... there is too much danger that someone other than the criminal would be hurt.  Although it is important that an individual be able to secure their right to Life by bearing arms, it must be done in a way that does not infringe on other individuals rights to secure theirs.

In order to maintain this balance, it is not at all inappropriate to restrict some sorts of weapons from being used in some environments. Nor is it inappropriate to require some form of training before a weapon can be born.  Provided these restrictions are enforced in a way that does not infringe on a person's right to protect his life, they are legitimate.

THREATS FROM OTHER NATIONS AND OUR OWN GOVERNMENT

As proposed and written, the second amendment is primarily directed against threats from nations (ours or some other nation).  When the Declaration of Independence was written, only a few years earlier, one of the fundamental rights listed was:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. 

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

It was this very right that the colonists had just exercised when they revolted against England and fought for their independence.  As the war progressed, official armies were raised, and government supplied weapons were used by some, but at the beginning, it was common citizens using weapons that they owned that started the fight.

Realizing that this revolt could never have occurred without privately owned weapons, the second amendment was added to the bill of rights, and was given higher precedence over all other amendments except for the first.  The simple fact that it was placed second underscores how strongly the founders felt about this right.

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. -- Thomas Jefferson

The beauty of the second amendment is that it will not be needed until they try to take it. -- Thomas Jefferson

The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so -- Adolf Hitler, April 11, 1942

Among the many misdeeds of the British rule in India, history will look upon the act of depriving a whole nation of arms, as the blackest. -- Mahatma Gandhi

The second amendment was proposed and debated by Congress in 1789 to become part of the constitution.  A summary of this is available here.

The founding fathers recognized the need for a military that could be used, at the direction of the president (who would act as commander as specified in the Constitution) to secure this country from a foreign invader.

However, they also recognized the danger of having a standing (or permanent) federal military.  Much of the discussion was centered around the fact that a standing federal military could all too easily be employed by the government to usurp the rights of the people. They had just experienced this threat first hand by the British military.

Their solution to this was to propose that the states would maintain militias which would NOT be subject to federal direction.  People would be trained to use their weapons, and in time of war, these militias could be drawn on to form a military to defend the country.

All men having power ought to be mistrusted. -- James Madison

A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government. -- George Washington

Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms. -- James Madison, The Federalist Papers No. 46 at 243-244

The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms. -- James Madison

None but an armed nation can dispense with a standing army. To keep ours armed and disciplined is therefore at all times important. -- Thomas Jefferson (1803)

Standing armies  [are] inconsistent  with [a people’s]  freedom and subversive of their quiet.  -- Thomas Jefferson (Reply to Lord North’s Proposition, 1775)

Bonaparte... transferred the destinies of the republic from the civil to the military arm. Some will use this as a lesson against the practicability of republican government. I read it as a lesson against the danger of standing armies. -- Thomas Jefferson (Letter to Samuel Adams, 1800)

The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so. -- Thomas Jefferson (Letter to Thomas Cooper, 1814)

So, the second amendment solved two threats at once... it provided the means to create an army, as needed, to secure the country against an armed invasion, and it (in theory) limited the need for a standing army which could be a threat against our rights from our own government. Also, though not directly addressed, the threat from other individuals was dealt with because you had armed citizens trained in the use of those weapons.

Unfortunately, two things have occurred.  First, a standing army has been kept, almost from the beginning while at the same time, state run militias have all but disappeared.  Second, technological advancement has made it nearly impossible NOT to have a standing army running on government supplied weapons, instead of personally supplied ones.

It is important to realize how the changes due to technological advancement affect this problem.  First, it is no longer possible to rely on personally owned weapons.  Even if absolutely no restrictions were placed on ownership of weapons, the economic reality is that ownership of fighter jets, aircraft carriers, tanks, and other such weapons is not feasible.  Since other countries have governments that provide these weapons to their military, we must do the same if we want to have a military capable of protecting this nation.  Also, the training necessary to use these weapons requires a commitment of time that cannot be done using training methods similar to the national guard.  Only a full-time member of the military will be able to learn to fly a modern fighter jet, or run a battleship, or drive a tank.

A second part of the problem is that securing the right to protect ourselves against other individuals is no longer solved by securing our right to protect ourselves against threats from our government or other nations.  Protecting ourselves against a government military (whether ours or another nations) means providing extremely powerful weapons to people, but at the same time, those same weapons are completely unsuitable to be used for personal protection, and in many cases would actually serve to put others at increased risk.

So the solution proposed by the founding fathers will no longer work. If we wish to continue to secure our rights, a new solution is necessary, and the second amendment will need to be modified to support that solution.

MY GOAL

My goal is to formulate an amendment which would replace the current second amendment that would better secure the rights of the citizens for which it was originally written in today's environment.

It is critical to maintain as many of the checks listed in the Constitution as possible.  Further weakening of this check due to political actions (as opposed to the unavoidable advancement of technology) must be curtailed.

It is critical to restore other checks on the power of the government that have been eroded over time.  Since the second amendment check has unavoidably weakened, others must be strengthened to maintain the proper balance of power.  This might mean adding additional checks to the Constitution that could be used by the citizens to limit the power of the government.

It is critical to place checks on the military.  Since there is no way to arm the civilian populace on the same level of the military, and since it is no longer possible to NOT have a standing army, it is important to reduce the ability of the military to be used against the populace.

The Constitution currently includes the following powers:

The Congress shall have Power...

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
(Constitution, Article I, Section 8)

No State shall, without the Consent of Congress, ... keep Troops, or Ships of War in time of 

Peace, ... or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
(Constitution, Article I, Section 10) 

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
(Constitution, Article II, Section 2)

In addition, as already mentioned, the second amendment was written to allow for the following:

• The states would train militias consisting of the citizens of that state. Those militias could be called on to defend the country.
• A standing army would not be maintained which could be used against the citizens of the United States.

With all this in mind, I propose the changes listed below.

RESTORE THE STATES ROLE IN THE MILITARY

The current military consists of several branches (US Army, US Navy, etc.), all trained and regulated by the federal government, and commanded by the president.  The state military forces (the national guard) are (in strictly military terms) a negligible force when compared to the federal military.

I propose that that the state militias be restored as the primary military force of the United States, and the bulk of the maintenance of each branch of the military would be assigned to the states. Because of the requirements for maintaining a modern branch of the military, it's not practical that every state maintain all of the branches individually. To be practical, I would propose that each branch of the military be maintained by no fewer than three states, and up to around 25% of the total states.

So between 3 and 15 states would maintain army units, another 3 to 15 states would maintain navy units, etc.  The militia would answer to the governor of that state, NOT the President of the United States.

All federal training military installations would be turned over to the states.  The federal budget that covers maintenance of these units would be given to the states and the states would be responsible for training and maintaining these militias. Most of the military forces would be assigned to one of the state militias.

A very limited standing federal military, primarily limited to the highly technical fields (air force and navy) would be kept, and who's primary objective would be to form the 'glue' that would bind the various state militia groups together in the event of a war.  The less technical military positions (such as army and marines forces) would be kept almost exclusively at the state level.

REGULATION OF THE STATE MILITIAS BY THE STATES WITH CIVIL OVERSIGHT

Regulation of the state militias must be done by the states, NOT the federal government, but it should be done in a uniform way.  In time of war, the only way that the state militias will be capable of being united quickly into a strong federal military is if the training and regulation of the militias be fairly similar.

As such, regulations and procedures still have to be set at a national level.  One way would be to designate some states as oversight or regulatory states.  When dividing up the forces among the states, leave at least 20% of the states without state militias.  These states would form a regulatory and oversight committee.  Representatives from those states (selected by the state legislature or the governor) would be members of that committee.

The committee would be responsible for assigning rules and regulations over the state militias.  In addition, they would be responsible for oversight of the different state militias to make sure that they were conforming to the rules.

The committee would also have representation from non-military, non-government groups, including education groups, psychiatric and medical groups, human rights organizations, etc.  These groups would provide suggestions, and perhaps have some say in the regulation and oversight of the state militias.

The supremacy of the civil over the military authority I deem [one of] the essential principles of our Government, and consequently[one of] those which ought to shape its administration.  -- Thomas Jefferson (1st Inaugural speech, 1801)

RESTRICT THE FEDERAL GOVERNMENT'S POWER OVER THE MILITARY

Additional restrictions need to be placed, or enforced, on the federal government's use of the military.

The first would be that the president could only deploy troops in time of war. During the history of the United States, the Congress has officially declared war only 5 times: the war of 1812 (in 1812), the Mexican-American war (in 1846), the Spanish-American war (in 1898), and in World War I (1917) and World War II (1941). All other uses of the military have been at the direction of the president without authorization of the congress.

This practice absolutely has to stop.  I am not at all opposed to the use of the military to protect this country, but we need to be much more selective in it's use.  We are in a state where we are continually at war, and it is draining the resources of this country.

Our duty is... to act upon things as they are and to make a reasonable provision for whatever they may be. Were armies to be raised whenever a speck of war is visible in our horizon, we never should have been without them. Our resources would have been exhausted on dangers which have never happened instead of being reserved for what is really to take place. -- Thomas Jefferson (6th Annual Message, 1806)

No nation could preserve its freedom in the midst of continual warfare.  - James Madison

Other means are available, and should be used in most situations.  If other means fail, and military force is called for, then it should be with the support of the country that it serves... and this means that it's use should be sanctioned and defined by a declaration of war.

Another useful check on this would be a limit (of perhaps two years) on any declared war.  After two years, the federal military would be disbanded and returned to the states unless the congress acts to officially extend the year another two years.

One further check that was included in the original constitution, but which has been lost, is a check by the states on the ability to declare war.

Initially, Congress was composed of two groups: the House which consisted of representatives elected by the people, and the Senate which consisted of representatives appointed by the state legislatures.  In other words, the States had a significant say in whether or not war was declared, and, since the senators were appointed by the states, they could act in ways that were not dependent on popular support by the people.

With the passing of the 17th amendment, which stated that senators would be elected by popular vote, the states lost their voice in the federal government, and the senate and the house became two groups elected in exactly the same way.  As it now stands, it is not really necessary to have both groups... they are elected in the same way, so having two groups merely adds a level of bureaucracy to the government.

If the states are in charge of the militias of this country, it is critical that they have a say in the declaration of war.  Since, in times of war, the federal government will be assuming control of the military, having the states agree in the declaration has a huge impact on things.  Instead of the president seizing control of the states militias, they (by declaring war) are granting control of those militias to the federal government.

An immediate repeal of the 17th amendment would restore the state's voice in the federal government. That, when coupled with the transfer of most of the defense budget to the states, would quickly restore the states to their original power.

Once that was done, and the senate was restored to it's original purpose, regulation of the state militias could be handled, at least in part, by the senate.  Oversight would still rest with the committee formed by the states without any militias.

As already mentioned, the President could only deploy federal troops, or state militias that had been called into the federal military due to a declared war.  The Federal military would NOT be involved in any recruitment or draft.  If such things were necessary, it would have to be done at the state level, under the direction of the oversight committee.

Also, with respect to the standing federal military, all members should be recruited only from the state militias, not directly from the citizens of the country.

FURTHER SEPARATION OF POWERS OF FEDERAL AND STATE GOVERNMENTS

A critical check that has been eroded is the loss of power at the state level and the gain at the federal level.

Although not directly related, I feel that this check must be restored so that the transfer of military force from the federal to the state level is meaningful in terms of restoring a check.

So I would propose the following additional changes to enforce the separation of power.

1) I would place a restriction that someone who had served as an appointed state senator could not serve as a member of the House or the President or Vice President. Since I firmly believe that politicians want to preserve power for themselves, by restricting them from transferring from state politics to federal politics will help to maintain each group fighting to preserve their separate powers.

2) I would place term limits on the House and President, but not necessarily on the Senate.

REORGANIZATION OF THE MILITARY

As part of the reorganization of the military, I would recognize four branches:

The army would include all land based forces (including soldiers, tanks, etc.).

The navy would include all water based forces (including the marines).

The air force would include all air based forces.

The guard would be for all local defense.  This would include the coast guard and the national guard.

The main three (army, navy, and air force) would be treated quite differently than the guard.

As described above, the main three would be divided among the states. All states which did not support one of the three main types of units would be members of the oversight group.

Training conducted by the main three would only be available to citizens who joined those forces.  These forces are the ones that would be called up in time of war to form the federal military.

The guard is different.  Every state will have a guard.  The guard will consist of a standing group (who are full-time members of the guard) and part-time members.

The guard will not be called up during a war to join the federal military.  They may be called up in times of disaster to form local security, defense, or service.  This will always be done under the direction of the state, NOT the federal government.

The guard is the only branch that will never be directed by the federal government, and the only branch that can be used for local defense.  None of the three main branches (at either the state or federal level) can be used in an actual military capacity on US soil except in the case of an actual military invasion.

The guard also perform another important function.  They will be used to train ALL eligible citizens in the use of weapons upon request, and this is covered below.

TRAINING OF NON-MILITARY CITIZENS

Since the ability to protect your rights is an unalienable right, and one which must be secured, the state guard units will serve one non-military function.

The guard will be available to train any eligible citizen (defined below) in the use of weapons for the intent of self defense, and the defense of others. Training will be available for both basic and more advanced weapons.

Basic training will be in the use of standard weapons (handguns, shotguns, and hunting rifles).  This training will be free of charge, and anyone who passes the training can purchase those types of weapons.

Advanced training will be in the use of non-standard weapons (assault rifles, automatic weapons, etc.) which are primarily thought of as military weapons, but which are available to non-military people. Advanced training will be at minimal cost, but will be more extensive, and include a greater degree of psychiatric screening.  People who pass this training will also be able to purchase those types of weapons.

A certain number of people will not be eligible for guard training, and without guard training, some (all?) types of weapons will not be legal to purchase.

Citizens who have committed a violent crime will not be eligible for guard training.  Eligibility may be restored automatically after a certain amount of time, or upon appeal to a court.

Psychiatric screening will also be done, especially for the training and purchase of advanced weapons.

Screening will be done by a group that does NOT answer to the guard, or any other military group.

One important restriction will be that people may only be screened out for conditions which are currently recognized by the medical community, and which are treated by both government health care agencies AND insurance companies as treatable conditions.  In other words, a person cannot be screened out for a condition which no government health agency will treat, or which is not covered by health insurance companies.  In addition, conditions have to be specified (which can be reasonably met) where eligibility can be gained.  One of the conditions may mean periodic screening checkups.

This training will allow people to have access to the guns that they need for personal protection, along with proper training in their use, while still placing reasonable restrictions on their use in order to protect the lives of other innocent people.

MANDATORY TRAINING?

One question which I periodically revisit is the question of whether gun ownership and training should be mandatory.

I'm sure that many people immediately reject such a notion... and I'm not convinced that it's a good idea, but I'd be more in favor of that legislation than on laws that infringe on the right to bear arms.

Our rights must be secured. Our right to a government that derives it's power from the people is a basis for the fact that we elect officials through voting. It is critical that people exercise their right to vote.

Likewise, it is critical that people exercise their right to bear arms.  We risk losing any right that is not secured and exercised!

Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state. -- Thomas Jefferson

Even so, I don't think that it should be a crime not to own a gun (or not to vote)... so at this point, I don't feel gun ownership should be mandatory.

I DO feel though that you are not securing a vital individual right if you do not own a gun!

A NEW AMENDMENT (OR AMENDMENTS)

I haven't actually come up with an amendment I like. At some point I'm going to try to do so, but I want it to address some of the points I"ve made.

Another election

Another year, another election... and you know what? I enjoyed this year more than most, and it's all thanks to my wife.

Anyone who has read this blog knows that I have a dislike of the Replublican and Democratic parties (and by dislike, I mean an intense loathing and disgust). As a result, for the past several years, I've been rather depressed about politics. On one hand, it's a topic I'm absolutely passionate about, but on the other hand, everyone who wins is someone I intensely wish was NOT involved in running my life!

This election had two things going for it. First, it had Ron Paul at the start. Of course I knew he would not win the nomination, but I actually considered changing my party affiliation to Republican so I could vote for him in the primaries. It is true that he calls himself a Republican, but he's really a Libertarian who wanted to have a shot at actually winning, so he called himself a Republican. Still by the end of summer, he was out of the race, and all we were left with was an endless supply of obnoxious phone calls, misleading ads, and meaningless rhetoric, all leading up to an election which would be won by a candidate who's actions will (I firmly believe) leave the country worse off four years from now than it is now.

But then a couple of weeks ago, Heather found the 3rd party presidential debates airing on TV (I knew there would be the debate, but I didn't know it would be on TV). I had been interested in watching the debate, but hadn't actually gone out of my way to do so since I knew that none of them had any chance at winning. But, since it was on, I sat down to watch it.

To say it was not handled as smoothly as the "real" presidential debate would be an understatement... but how incredibly refreshing it was to watch. These were four individuals who knew that they would not win but wanted to take a stand for what they believed. Their words did not come across as polished as those of Romney/Obama... but they came across (to me) as words they actually believed. I can't recall a single recent statement from either of the main candidates that said to me "this is what he believes". They all came across as "this is what he believes will win points".

After the debate, I told my wife that I would take any one of the four over either of the two main candidates (including the Green party candidate Jill Stein who's platform was almost completely contrary to mine). My wife thought that I was crazy. My opinion has not changed. If I could replace Obama with Jill Stein, I would do so in a heartbeat. Although I do not believe her platform, the benefit from getting a 3rd party in office would outweigh any damage she could do (and she DID have some points that I do agree with). Of course, if I could replace Obama with Gary Johnson (the Libertarian candidate that I voted for), I would be ecstatic.

So, I am grateful that my wife started watching that debate. I'm grateful that there are people out there (no matter how much I disagree with them) who are standing up for things they believe, and not just selling their services to the highest bidder (who is NOT the citizens of this country).

As a direct result of that debate, I am content with this election. I woke up this morning not knowing who had won (I didn't stay up) and not caring. I looked of course since I was curious, but I felt no sense of satisfaction or disappointment about the result. In two years, there will be people standing up for things they believe rather than spouting rhetoric, and I will vote for them!

For more information about the 3rd party debates, go to: www.freeandequal.org

COPYRIGHT LAW

With the recent furor over the proposed SOPA and PIPA acts, I'm thinking about copyright law a lot. This happens at least once a year... I find copyright law interesting (in a sad and twisted sort of way).

Copyright law is, in my opinion, one of the least understood and most abused segments of our law system, and it is one that impacts every single one of us because ALL of us listen to, read, or watch copyrighted material. Copyright law is like street laws. The minute we leave our driveway, our every action is constrained by the markings on the road, signs and light posted at very short intervals, and all of the laws and rules apply.

Copyright law impacts us in a similar way. The difference is that, while the typical driver understands the rules of the road reasonably well, the consumers who use copyrighted material tend to have little understanding of what copyright is, and many big companies and organizations (such as Disney, the MPAA, and the RIAA) have played havoc with it over the years.

So, it's time to write some of my thoughts about it.

When I go into a library and check out a book, or to a music store and buy a CD, what exactly am I getting?

Owning (or borrowing) copyrighted material is a LOT different than owning or borrowing a car. When you buy a car, you are free to do pretty much anything you want to it. You can modify it in any way you want (of course you may make it illegal to drive, but that's beside the point). You can resell it any time you want and at any price someone is willing to pay. You can use it to make money, rent it out, or take it apart and sell the pieces. You own the car.

When you buy a book though, you do not own the story or content contained in the book. What you actually own is a license which allows you to access the content. The actual content is owned by the person who wrote the book, and as such, the are limitations on what you are allowed to do with them. Those limitations are covered by copyright law. Copyright spells out the rights you do or do not have with respect to the words in the book.

So the question is: what rights do you have? Here is where my thoughts diverge from what some of the laws say (and especially what some of the new proposed laws are trying to do).

It should be noted that when copyright law was first proposed, it only applied to books. After all, there was no way to record music, and movies were a couple hundred years away. So copyright law was based on a book model, and it worked for a couple hundred years, and it continues to work well for printed books. As other forms of media (such a records and tapes and video tapes) arrived, the model still worked, but a new wrinkle began to be introduced. It has never been practical to duplicate a printed book. Even with photocopies, nobody would ever suggest that a photocopied book was as desirable as the original, and certainly, few people would be willing to pay for such a copy. But with the advent of tapes, it became possible to make reasonable copies of both music and movies. As technology continue to progress, the ease of making copies increased, and their quality improved. With the introduction of the CD and DVD (and other forms of digital media), this came to a head, becase a copy of a CD or DVD (or any other digital media) is of exactly the same quality as the original. In addition, making a copy is very easy (despite various attempts to disable this ability), and once you have one copy, you have as many copies as you want.

So, I want to first talk about what was originally intended with copyright law (the model which worked well until easily reproducible media arrived), and discuss what (if any) changes to that model should be made in response to changes in technology.

THE PURPOSE OF COPYRIGHT

It is important too to recognize why copyright was (and still is) important. When the constitution was written, the purpose of copyright was defined as:


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.


In other words, by granting artists a period where they have exclusive control of their works, it would encourage artists to produce works. If their works were immediately seized from them, there would be little incentive to create a new work.

So, if an artist creates something, but then does not get to reap the benefits from it, the artist will soon become discouraged and move on to some other form of work. When an artist creates a work, he then should be free to enjoy two specific benefits.

First, the artist should be able to enjoy the benefit of ownership. In other words, nobody else should be able to duplicate that work, and pass it off as their own. The original artist should be the attributed owner of the work at all times.

Second, if the artist indends to sell the work, then that right should be protected (at least for some period of time) so that nobody else gets to sell their work without any financial benefit to the original artist.

Protecting these two rights of the artist guarantees that there will be people who are willing to produce art, and everyone benefits from that. This protection is one side of copyright law.

On the other hand, the person who buys a copyrighted item also has rights, and it is equally important that their rights be protected.

Copyright law then should be about protecting both the rights of the artist and the rights of the person who buys that material (or more accurately, buys a license to use that material).

Unfortunately, the people pushing copyright legislation at this point in time are big businesses who own lots of copyrighted material, and the legislation tends to favor them at the expense of those who purchase copyrighted materials.

ORIGINAL COPYRIGHT MODEL

Let's look at the original copyright model. We'll do this by looking at how books have worked for the past few hundred years. This defines, in my opinion, a nearly perfect balance protecting both parties. That balance has now been upset by some of the factors mentioned above, but we'll use this model as a starting point.

Books were available in two ways. You could purchase the book at a bookstore, or you could borrow it (from a friend or a library). The following are key features of this model (i.e. these were things you could or could not do):

NON-EXPIRING

You could buy a license (i.e. a book) and use it for as long as you wanted. The license did not expire and could not be revoked.

RIGHT TO PROTECT THE LICENSE

You were allowed to take reasonable precautions to protect the license. You were allowed to store the book in a protected place to preserve it from the elements. If a page became torn, you could repair it. If a page became unreadable due to water damage, you could replace it (by copying the page from another copy of the book).

RIGHT TO ACCESS THE CONTENT

No limits were placed on the number of times you could access the content.

RIGHT TO TRANSFER THE LICENSE

You could sell the license (i.e. book), or loan it out without restriction.

RIGHT TO SINGLE USE ONLY

The license allowed only a single use at a time. You could not make a copy of the book to allow two people to read it at a single time. However, you were not limited as to where you could read the book. The single use was unrestricted as to who, where, or why that use was done.

NO RIGHT TO DUPLICATE

The license did not allow you to duplicate the book (except for the intent to protect the license) and sell or distribute copies for any purpose.

RIGHT TO REFERENCE THE WORK

You were allowed to reference the book. You could quote excerpts from it, and make derivative works (within reason).

NO RIGHT TO OWNERSHIP OF THE WORK

You could not claim ownership of the work.

Even though this model was developed specifically for books, it worked extremely well, and is easily extended to other forms of copyrighted material.

I would like to expand on each of the above rights and examine how these rights apply, or do not apply to various copyrighted material. Specifically, I want to examine how they continue to apply to books, how they apply to music and movies in current environment where the media is so easily duplicated.

I think that it is a worthwhile question to ask if a copyright holder actually has the right to withold these rights from a consumer. In theory at least, a copyright holder can withold any rights they want. They can produce a work and say: if you want to 'buy' this material, here are the rights that I am granting you. This is perfectly acceptable of course... but should such specialty licenses be covered by copyright law, or should they be some special contract? If the only purpose of copyright law were to protect the artist, then these arbitrary contracts could be considered copyrights... but since I regard copyright law as a means to protect the rights of the artist AND the consumer, I believe there are some rights that the artist cannot withold from the consumer and still receive the benefit of being protected by copyright law.

SOFTWARE COPYRIGHT

In addition to books, music, and movies, the one other type of copyrighted material is softare. For the most part, I do not want to discuss software copyright at this time, because it is truly a very different case.

First, it is not immediately clear whether software SHOULD be covered by copyright law.

In my opinion, the question of whether or not software should be protected by copyright law is probably not. I'm not saying that it shouldn't be protected of course... but the rights that consumers should expect, and the protections that software writers need are so different from those of a writer and consumer of computer software that it is difficult to find commonalities between the two situations. However, in practice, copyright law IS used to protect software, and this is so entrenched in the software industry that it's probably too much trouble to change.

Second, almost without exception, modern software is distributed with a copyright notice included (you usually see the statement 'by opening this container, you agree to the terms of the copyright' on the packaging), and the terms and restrictions are drastically different than those that we are familiar with that apply to books and music.

Copyright laws were created to protect 'original works of authorship' such as books, music, and other artistic and intellectual works. The problem is that there are fundamental differences between software and a poem.

I am a software writer by profession... and it is in no way related to creating a work of art. It is actually a work of engineering. Typing a program is much closer to the process of building a bridge than it is to writing a poem. It is about following rules of math and logic, applying engineering principles, making use of tools, and following accepted best-practices and conventions. Perhaps even more telling is the fact that in most cases, the program that is written is NOT what is distributed. Instead, the program is converted (compiled) to a machine language and that is what is what is actually distributed, so it's very unclear to me that this computer generated thing should be protected by copyright law.

At the very least, the manner in which copyright laws apply to software, and the rights that belong to consumers are so different that I will not cover it here. That will be a discussion for another time.

NON-EXPIRING

From the very beginning of the sale of copyright materials, it has been accepted that the license you purchase was non-expiring. There was never a time at which a book you had purchased became illegal to read.

This doesn't necessarily apply to borrowed material of course. When you borrow a book from the library, it is expected that there will be a due date and you will be required to return the material, and at that point, you no longer have a licese to that material.

But for material you purchase, the license has always been non-expiring.

More recently, with the advent of all of the digital technologies, two things have occurred that can potentially change this.

First, there have been attempts to make time-limited media. To date, all of these have been employed in a rental model (i.e. you borrow a movie from a store, but instead of having to return it, the media simply stops working after a set period of time).

Although I'm not a fan of the time-limited media concept, since it is based on the model of borrowing, rather than owning the license, I do not see it as being a threat to the non-expiring license.

A much more serious threat comes from digital rights management (DRM) schemes. DRM has been applied to to all forms of digital media as a way to control use of that media post-sale.

In it's simplest form, DRM makes it a requirement that, in order to use a piece of media, you have to contact a DRM control site (which you have registered with in some fashion) before you can actually access the content. The content is encoded somehow, and the DRM management site gives you a temporary key to access the content. But you have to get a new key every time you want to access the content.

The immediate conclusion to this is that any media which is DRM protected is NOT non-expiring. What happens when the DRM control site goes down? What happens if it goes bankrupt? What happens if they decide to deprecate their old DRM scheme in favor of a new and improved one, but don't wish to go through the trouble of transitiioning old media to the new scheme? What if the DRM site is sold and the new owner is not interested in supporting all the old customers? These, and any number of other perfectly reasonable scenarios may occur which will render the DRM-protected media unreadable. It would be equivalent to a situation where a book you had purchased would automatically vaporize when the publisher decided you no longer had a right to that book.

There are a number of other issues with DRM that I'll cover later, but for this reason alone, I will not purchase ANY DRM-protected media. I will find an alternate way to get the media, or I will go without.

I do not believe that the non-expiring quality may be withheld from copyrighted material.

When I was young, I read The Hobbit and The Lord of the Rings for the first time (coincidentally, the Tolkien estate is one of the 'bad guys' in the copyright battle) and it changed forever the way I thought about books. It has influenced the books I've read. I've automatically compared books to the Lord of the Rings. I've been drawn to games (such as Dungeons and Dragons) because they contained dragons and elves and other creatures that played important roles in Tolkien books (whether they were invented by him or not).

The fact of the matter is that, although the actual books are undeniably the ownership of Tolkien (as to whether they are owned by his estate is a separate question I'll address below), Tolkien DOESN'T own the ideas that they inspired in me. I have my own thoughts about hobbits and elves and the mines of Moria that do not belong to Tolkien. When any artist releases a work that inspires someone reading, hearing, or seeing that work, the work takes on a special meaning that is no longer the sole ownership of the artist. By releasing the work, the artist no longer has sole ownership of all aspects of that work. Indeed, the artist should not even want that. It is the act of someone else experiencing the work, and being inspired by it, that elevates the work from a throwaway piece to a masterpiece.

Although I accept there are certain things I cannot do with my copy of the books that have inspired me, I also believe that the artist has no right to try to exclude me from reading something that has formed an important part of my life.

Once a writer has shared his vision of a world with me, he does not have the right to kick me out... because it's no longer HIS world... it's OUR world. That's the price and priviledge of being an artist. The greatest artists are those who's works have become part of the lives of thousands or millions of people.

RIGHT TO PROTECT THE LICENSE

Closely related to the right to a non-expiring license is the right to protect the license.

When books were the primary source of copyrighted materials, this right was not very evident. There really is no good way to protect a book and read it at the same time. However, as other forms of media arose, it became more of an issue.

When records came out, you could store the record in a safe place and periodically make a tape-recording of it and listen to the tape. Likewise, if you owned a casette tape, you could make a copy of it an listen to the copy.

With the advent of digital media, we now have the ability to truly protect a license while preserving all the information perfectly.

The industry has responded by coming up with a host of copy-protection methods (none of which have worked reliably). Their argument of course is that if you can copy the material, you can pirate the material.

That argument is true of course, and I'll cover the entire piracy issue below, but for those of us who do NOT pirate media, is protecting the license by making a digital copy allowed?

It is my belief that it is. Since the license I own to every book, CD, or movie that I own is non-expiring, I do have the right to ensure that I can access that content for the rest of my life. I cannot use that ability to circumvent restrictions on the use of copyright material, but that is a separate issue.

My entire movie and music collection is now stored on my computer. I still have the license to access the content (i.e. the actual CD or DVD that I purchased), but over time, those will wear out, so I won't be able to access the content directly from them. However, I will be able to access the copies I have made.

This is not a right that should be witheld from a consumer of copyrighted material.

RIGHT TO ACCESS THE CONTENT

In the early days of copyright, it's easy to see what was meant by accessing the content. By owning a book, you were allowed to read it wherever and whenever you wanted. You could read it any number of times, or share the media so others could read it.

At it's most basic, that right hasn't changed. When you have a CD, you can play it over and over. The question then becomes how much right you have to access that content in slightly different ways. The ultimate question is whether or not you are allowed to make a copy of the CD that can be played on you computer or mobile devices.

To begin with, it's always been allowed that there were reasons you would access the content indirectly. Audiophiles would preserve their vinyl records making cassette tape copies to listen to instead. The main purpose of this was to preserve their records in as pristine a way as possible, but are other reasons (such as convenience) equally valid?

The fact of the matter is that you have a license to access some digital content. Whether you access that digital content directly (i.e. play the CD) or indirectly (play a digital copy on the computer), you are still accessing the same content. Provided you do so in a way that does not violate some other limitation on copyright, there is nothing illegal about that.

It is also allowed that you can access a subset of the content. As an example, the data on an audio CD is distributed in WAV format (which is basically a way to store ALL of the data). Although in theory this is the best digital quality, the WAV file is very large, and it is easy to throw parts of it away (i.e. compress it) to get a much smaller version of the song which, to the human ear, is virtually identical. The most popular of the compressed audio files is the MP3 format.

It must be recognized that the MP3 is a a lower quality version of the WAV format, and if you have a license to access the WAV version, you are allowed to access the lower quality MP3 version. The opposite is not true however: if you have purchased an MP3, that doesn't give you a license to get a copy of the WAV file from the CD of a friend. Your license doesn't allow you to access more content (or better quality content) than you purchased.

The ability to access the copyrighted content you have purchased is a necessary right to the consumer. You do have the right to access it in the manner that is most convenient to you, any number of times. You may also share that content (provided you do not violate any of the restrictions covered below).

RIGHT TO TRANSFER THE LICENSE

One other important quality is the ability to transfer the license. If you own a book, CD, or DVD, you can give (or sell) that media to another person, and at that point, the license transfers to that person along with ALL rights and restrictions.

It must be noted that at that point, the original owner has lost all rights to access the content (unless they have purchased a separate license elsewhere). They do not have the right to give away the CD, but keep a digital copy of the content. ALL copies of the content must be transferred or destroyed, or else the copyright has been violated.

I saw a craigslist ad once where someone said they were selling their music collection since they'd already digitized it all so they didn't need their CDs any longer. That person did not understand copyright. If they actually did what they intended, the instant they access any of the songs they had digitized after the CDs had been sold, that person was in violation of copyright law. They were playing pirated music at that point.

The industry has tried (with very little success) to limit the ability to sell used media (i.e. transfer the license). Fortunately, I'm not aware of any successful attempts (at least in the music, book, and movie industries) of this happening. This is one of the important rights that should be guaranteed the consumer of copyrighted materials.

RIGHT TO SINGLE USE ONLY

The single most important restriction on the use of copyrighted material is that a single license gives you the right to access the material only once at any given time. In other words, two people cannot read the same book at the same time, or listed to the same CD in two different players at the same time.

This restriction still applies even if you are accessing the content as a digital copy. If you have a digital copy and two different people listed to it on two different devices at the same time, that violates the fair use of the material.

In the old days when the primary way to access the content was directly tied to the media itself (i.e. playing a tape meant that you had the tape, or reading a book meant you had the actual physical book), this restriction was basically built in to the license, so there was little opportunity to circumvent this.

Now, with digital copies of most media being available, this restriction becomes much more important, and it is the responsibility of the consumer to ensure that this restriction is honored. If the consumer doesn't take ownership of this restriction, than the industries are justified in coming up with means to enforce the restriction... and that only leads to problems. The industry is primarily interested in their side of things, NOT the consumer's, so we definitely don't want them to be the police of the consumer rights and restrictions.

With digital copies, it is much easier to 'share' copyrighted material with friends. That isn't directly illegal... it's always been fine to share books you own with others, but the difference is that when you shared a book, you were actually loaning the license, and you weren't able to access the content yourself until the book was returned.

Sharing a digital copy of music or movies you own is much different because you are keeping the actual license. Although it is not strictly necessary to have the license in your posession in order to access the content (for example, it's perfectly acceptable to create MP3s from your CDs and put them on an MP3 player that travels with you while the CDs stay at home), sharing a digital copy can easily turn into a copyright violation. You can't easily ask for the digital copy to be 'returned' as you can with a book or physical media. Once given, it's almost impossible to control who will access the content, and therefore, it's impossible to control whether or not it will be used with the constraints of single use.

Since the responsibility for policing this restriction should fall to the consumer of the copyrighted material, sharing a digital copy is something that should not be done in almost any circumstance.

NO RIGHT TO DUPLICATE

The restriction on duplicating copyrighted material is essentially the same as the single use restriction.

The purchaser of copyrighted materials does not have the right to make copies of that material to give to others.

I've even seen that practice explained as selling a service (making a digital copy) rather than selling the content. Selling a service of making a digital copy of a person's copyrighted materials is perfectly legitimate... provided they actually produce the license that they have purchased. In other words, if someone brought me a bunch of CDs they had bought and wanted me to created digital copies of the music on them, I could indeed offer that service for a fee. However, I could NOT give them digital copies of the CDs that I own. That is not a service... that is duplication, and that is not legal.

RIGHT TO REFERENCE THE WORK

One right/restriction associated with copyrighted material is the right to reference the work. This allows you to quote from a book, or otherwise reference portions of a work without it being treated as copyright infringement. On the other hand, you cannot reference so much of the original that it is treated as duplication.

I'm not going to spend much time on this right because it's one of the only parts of copyright that is designed to balance the rights of the artist with those of the consumer. Other rights and restrictions tend to be about protecting the artists rights OR the consumer's rights, but not both, so these are the ones that have tended to have the worst abuse.

NO RIGHT TO OWNERSHIP OF THE WORK

One final property of copyrighted material is that nobody else has the right to claim ownership of the material and pass it off as their own.

This restriction is so simple and so easy to justify that I will spend very little time on this restriction.

THE LENGTH OF COPYRIGHT

The length of time a copyright is valid has changed a number of times over the years. Rather than delve into the history of these changes, I'd like to consider the length of time that I think that the rights and restrictions should apply for.

As mentioned above, the purpose of copyright should be three-fold:

• To protect an artists rights of ownership of their work
  
• To protect an artists rights to make money off their work
  
• To protect the rights of people who purchase the art
  

Protecting the rights of the consumer is covered by:

• The non-expiring copyright
  
• The right to protect the license
  
• The right to access the content
  
• The right to transfer the license
  
• The right to reference the work
  

Protecting the economic rights of the artist is covered by:

• The right to reference the work
  
• Single use only
  
• No duplication
  

Protecting the ownership rights of the artist is covered by:

• No right to ownership of the work
  

With that in mind, the question is how long should each of the rights and restrictions exist.

The first purpose is to protect the rights of the consumer. These rights must be protected regardless of when they purchase the copyrighted material. The consumer may have bought the material the first day it was available, or a hundred years after it was first published.

It is clear that the only reasonable length of time for protecting the rights of the consumer is forever.

The last purpose (to restrict the right of ownership to the author only) is equally easy. I have no right to take the music of Beethoven or the writings of Shakespeare and call them my own. It is true that neither artist is around to object, but that doesn't mean that I should be able to make the claim. In my opinion, the right of ownership of the work belongs to the artist forever.

The most interesting section of copyright is that of protecting the economic rights of the artist.

In 1790, the copyright duration was defined as 14 years renewable once for a maximum duration of 28 years. After 28 years, the copyright expired and the work was in the public domain (at which point anybody could sell it without giving any portion of the sale to the artist).

This has been extended several time. In 1831, this was extended to 28 years plus a 14 year extension. In 1909, it was extended to 28 years plus a 28 year extension. In 1976, it was extended to the life of the author plus 50 years. In 1996, it was extended to the life of the author plus 70 years. There have been many other acts and international treaties which have affected the scope and duration of copyright duration. I don't want to go into these in any detail, but I do want to make a few comments.

In the past, I have been opposed to the changes, but after further reflection, I do believe that the extension to the lifetime of the author is completely legitimate. The author of a work should own that work for as long as they desire. Extending that right beyond the life of the author is reasonable as it is reasonable to pass that property along to his estate in much the same way that a piece of physical property would be passed on. I wouldn't be opposed to further extensions either. However, I DO believe that this protection comes with some limitations.

First, the right to ownership of the work (i.e. who get's to claim that they created it) should be guaranteed and protected so long as there is an artist or his estate who owns the work.

The economic rights protected by the copyright should last equally long with one provision: the artist or estate must be making money off the work.

One of the most objectional business practices is engaged in by Disney. Many of their movies are not available to consumers. They are locked up in the Vault (a Disney term meaning that they won't sell you a copy). The only way to buy these movies is to find a second hand copy (and historically, these have been VERY expensive) to buy.

I fully agree that Disney should be allowed to make money from their property, but if there is property that they are not selling, I do not believe that the economic protection applies to them.

Let me exlain why.

When I was growing up, certain books and movies made a large impact on me. Although there was an artist in each case who owned the actual book or movie, they did NOT own the impressions that they made on me. When an artist releases a work, they no longer own every aspect of that work because, by defintion, a good piece of art grows and becomes part of the lives of the people who observe it. It is true that I have no right to steal money from Disney, but they have no right to tell me to forget the enjoyment I received watching those movies as a child, or to tell me to not hum the songs, or quote lines from the movie. Nor do they have the right to tell me I cannot relive those moments.

So, if a movie or book or piece of music is currently available, then the economic rights of the artist must be protected. But if it is NOT currently available, the right isn't there. The artist has forfeited it (until such a time as the material is available again).

SOME SPECIFIC EXAMPLES

I'd now like to refer to some specific examples that I have observed that illustrate different aspects of copyright.

COPYING AS A SERVICE

One thing that I have seen offered a number of times is the offer to create digital copies of your media.

Let's say that I have an old VHS movie that I want to be able to watch digitally. Under what circumstances can I create a copy of that that I can watch on my computer or on a mobile device?

One thing that is important is that a license doesn't allow you to "add" content. If you own a VHS copy of a movie, you do not automatically own the rights to the commentary and special features that might come on a DVD. You also don't have the license to the better quality movie (a DVD is considerably better quality than VHS). You only have a license to use the movie as it exists on the tape, or in a form that can be reasonably derived from it.

So, if someone offers you a digital copy of a media that they copied from their DVD for a movie you own on VHS, that would be a violation of the copyright.

But, if they were to take your tape and make a digital copy of it using the appropriate audio/video equipment, that would be fine.

There is one requirement for this service to be legitimate, and that is that the person providing it must be able to ascertain that you own a license to the material. If you give them the media to copy, that's sufficient.

Anyone who sells digital copies of music without verifying that you have a license to that music is breaking the copyright law.

It IS a perfectly legitimate service though to make digital copies for someone provided they have the license.

DISTRIBUTING MODIFIED ART

When a person buys a piece of art, it is perfectly reasonable for that person to be able to modify it for their own personal use. As an example, if you want to take a song and play it at half speed, that's fine (though obviously it won't sound like the artist intended). It's also fine to take a book and blacken parts of it that you don't like.

The question is, what right do you have to transfer the modified art. The answer is that you don't have that right. The artist is the only person who can make saleable modifications to the art since they are the owner of the content.

This was demonstrated in an interesting way a few years ago with two companies named CleanFlicks and ClearPlay. Both of these companies recognized that there was a population who wanted to watch the currently available movies, but who preferred to watch edited versions of them where some portion of the film that they found objectionable (such as sex, violence, or profanity) were removed.

CleanFlicks would pick a movie that they felt people would want to buy in such a form and they would make a copy of it, editing out the "objectionable" content. Then, if you bought that movie from them, they would actually sell you an original, unmodified copy of the movie, and a second copy containing the edited version of the movie. The theory was that, since you are allowed to make edits to copyrighted material for your own use, why would it not be allowed to hire someone to make those edits for you. So what you were actually doing was buying a movie and hiring someone (CleanFlicks) to edit it for you.

Unfortunately, that isn't exactly what was happening. A service that you could hire to make edits to your personal copy of copyrighted material should be legal (though I'm not aware of any company that advertises this service), but that isn't the service that CleanFlicks offered. Instead, what was happening is that CleanFlicks made the edits in advance based on their definition of "objectionable", so when you bought a copy of the movie, they were actually transferring the license of the movie that they had modified. Although it's close... the courts ruled against CleanFlicks, and ultimately, they went out of business temporarily (the returned, but no longer offered this service).

ClearPlay took a different approach. They created a DVD player that could read a description of a movie. The description contained a list of all the points in the movie where a certain objectionale content appeared. Then, someone who owned the movie could play it in one of these DVD players after telling it that they wanted to skip all occurrences of something they found offensive and the DVD would actually skip these segments (or in the case of profanity, it would just turn off sound momentarily).

So, ClearPlay would sell the DVD players and the movie descriptions, but not the movies (modied or not). As a result, ClearPlay is NOT violating copyright, and remains in existance (and to be honest, is a much better alternative since they give you the choice of determining what content you want to skip and what content is okay to play, so it's much more flexible in meeting your particular requirements).

DISNEY'S VAULT

Although I've already touched on this, I want to specifically state that I feel that the concept of the vault should negate the portion of copyright law which protects the economic interests of Disney.

The minute a work goes 'out of print', the artist at that point is not deriving economic gain directly from that piece of art, and I do NOT believe that the right to such protection extends to punishing people who are NOT infringing on that right.

In other words, if an artist is not deriving economic benefit from the work, then the fact that someone else is is not infringing on their right.

The minute that the work goes back in print, the artist regains the right of that protection up to the limits of the duration of that protection.

There needs to be some reasonable definition of what available means. For example, if a movie were generally available for $20, but then it were made available only in a $200 version for a period of time, this practice is virtually identical to the vault where a piece is not available at all. The definition of available should mean that it was available at a price comparable to it's price in the past.

FINAL THOUGHTS

It should be fairly obvious that I support the protection of copyrighted material, but I'm also in favor of the rights of the consumers. I am also wary of giving the owner of the copyright too much power since in essence, the owner of a copyright has an absolute monopoly. It isn't wrong to have a monopoly (especially in this instance), but it is wrong to use the monopoly to dictate the economy of the material.

I'm in favor of extending the rights of copyright ownership indefinitely, but I'm also in favor of modifying existing copyright law and enforcement to better recognize the rights of the individuals who purchase the material.

Why am I libertarian?

With the upcoming election, I want to once again state that I am a libertarian. I also want to state that I am NOT a republican and I am NOT a democrat.

The reason I am a libertarian is simple. I accept with complete conviction the statement made in the Declaration of Independence that "to secure these rights, Governments are instituted among Men". The rights referred to include (but are not limited to) the rights to Life, Liberty, and the Pursuit of Happiness.

The primary purpose of the government is NOT to provide social security to the elderly, medical care to the sick, or welfare to the poor. It is not to provide education, jobs, or even to protect the environment. All of these are useful and admirable goals, but they are not the primary purpose of the government.

The primary purpose of the government is to protect my rights and your rights. Here's the preamble from the Libertarian Party 2010 platform:

As Libertarians, we seek a world of liberty; a world in which all individuals are sovereign over their own lives and no one is forced to sacrifice his or her values for the benefit of others.

We believe that respect for individual rights is the essential precondition for a free and prosperous world, that force and fraud must be banished from human relationships, and that only through freedom can peace and prosperity be realized.

Consequently, we defend each person's right to engage in any activity that is peaceful and honest, and welcome the diversity that freedom brings. The world we seek to build is one where individuals are free to follow their own dreams in their own ways, without interference from government or any authoritarian power.

In the following pages we have set forth our basic principles and enumerated various policy stands derived from those principles. These specific policies are not our goal, however. Our goal is nothing more nor less than a world set free in our lifetime, and it is to this end that we take these stands.

I agree with this statement 100%. There is not a single statement in it that I disagree with, or feel is in some way out-of-line with what I believe.

Contrast this with the first few paragraphs of the preamble for the 2008 Democtratic Platform:

We come together at a defining moment in the history of our nation – the nation that led the 20th century, built a thriving middle class, defeated fascism and communism, and provided bountiful opportunity to many. We Democrats have a special commitment to this promise of America. We believe that every American, whatever their background or station in life, should have the chance to get a good education, to work at a good job with good wages, to raise and provide for a family,
to live in safe surroundings, and to retire with dignity and security. We believe that quality and affordable health care is a basic right. We believe that each succeeding generation should have the opportunity, through hard work, service and sacrifice, to enjoy a brighter future than the last.

But today, we are at a crossroads. As we meet, we are in the sixth year of a two-front war. Our economy is struggling. Our planet is in peril.

A great nation now demands that its leaders abandon the politics of partisan division and find creative solutions to promote the common good. A people that prizes candor, accountability, and fairness insists that a government of the people must level with them and champion the interests of all American families. A land of historic resourcefulness has lost its patience with elected officials who have
failed to lead.

It is time for a change. We can do better.

Much of the remainder of the preamble talks about the failures of the Republican party. It talks about the problems of health care, the war, oil, education, the economy, and any number of other things. Not once does it talk about the basic rights and freedoms that we should enjoy. Based on the preamble, the Democratic party is not concerned with that, or at best, it is a secondary concern. It's easy to see why I am not a Democrat.

It is harder to explain why I am not a republican. The start of the preamble to the 2008 Republican platform is:

This is a platform of enduring principle, not passing convenience the product of the most open and transparent process in American political history. We offer it to our fellow Americans in the assurance that our Republican ideals are those that unify our country: Courage in the face of foreign foes. An optimistic patriotism, driven by a passion for freedom. Devotion to the inherent dignity and rights of every person. Faith in the virtues of self-reliance, civic commitment, and
concern for one another. Distrust of government’s interference in people’s lives. Dedication to a rule of law that both protects and preserves liberty.

We present this platform at an uncertain point in time. Our country remains at war and committed to victory, but reckless political forces would imperil that goal and endanger our nation. In the economy and in society at large, it is a time of transformation. But the American people will meet these challenges. Even with its uncertainties, they embrace the future, but they are also too wise to rush headlong into it. We are an adventurous, risk-taking people, but we are not gamblers. A sound democracy trusts new leadership but insists that it demonstrate the old virtues: the character and the command that, in times of conflict and crisis, have led the Republic through its trials.

This platform likewise rests on proven truths and tested wisdom as it looks ahead, both to deal with present challenges and to explore possibilities that may sometimes seem beyond our grasp. It shows what the American people can accomplish when government respects their rights, conserves their resources, and calls upon their love of country. It is not a tribute to bigger government.

The main problem that I have with these paragraphs is that they are not focused on the primary purpose. They are filled with rhetoric designed to incite emotions, but do little to emphasize the primary purpose of the party. Still, I do agree with much of what these paragraphs contain, so if the actions of the party actually reflected this, I could be comfortable voting republican in many instances.

Unfortunately, the actions of the party counter the rhetoric sufficiently well that I can not in good conscience support the Republican party. Although there have been many actions taken by the Republican party which I disagree with, two stick out in my mind as damning illustrations of the party's true feelings concerning basic human rights.

One of the fundamental rights we have is the right to a fair trial and legal counsel. This right (guaranteed in the constitution) applies to everyone, citizen or foreigner, held by the United States for a crime. The Bush administration detained prisoners in Guantanamo Bay as suspected terrorists without officially charging them, allowing them access to legal counsel, or granting them a trial. Now, President Obama has signed into law the National Defense Authorization Act which allows the military to indefinitely detain without trial terrorism suspects. For more information, see: The New American, The Guardian, and The Atlantic Wire.

I cannot support any party that would deny such a fundamental right to any human being. Our country's judicial system is based on the principle that we are innocent until proven guilty. If someone is found guilty of terrorism, I have absolutely no problem with executing them, or throwing them in jail for the remainder of their life. But you have to prove them guilty first. You can't skip that part and go right to the incarceration step.

Another fundamental right is the freedom from unlawful search and seizure. This too is guaranteed by our constitution.

And yet, the NSA is authorized by executive order to monitor, without search warrants, phone calls, Internet activity (Web, e-mail, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S.

President Bush first approved these (and other activities) in the President's Surveillance Program as part of the war on terrorism, and President Obama's administration has continued to employ these practices. For more information, see: Wikipedia Warrentless Wiretapping and Wikipedia President's Surveillance Program.

When we are talking about the government infringing on rights, especially those so basic as to be covered by the Bill of Rights, I have to agree with the statement of James Madison:

We are right to take alarm at the first experiment upon our liberties.

I disagree with both parties treatment of the wars in Afganistan and Iraq, with their handling of social security, medical care, and many other things... but these do not automatically disqualify a party from receiving my support. But when a party takes away basic human rights instead of engaging in their proper task of securing those rights, I can in no way support that party.

I cannot and will not vote for a Republican or a Democrat until such a time
as those parties recognize their true purpose... to secure my rights. Only
then will I recognize them as a legitimate political party worthy of my
support.