Specifically, I mentioned that

It is not going to be fought over territory, or politics, or religion. It will be an economic war, a cultural war, a global war, and one in which the civil populations those beliefs support the power base of the status quo will shake those institutions to their very core. Issues over DRM are not the opening shots fired. They are a wake-up call that something radical needs to change – that the fundamental nature of how we value and distribute knowledge and ideas will, in the long run, not be subject to the traditional economics of today’s society.

SOPA is the next round in that battle and is evident proof that the wake-up call has not been heeded. In a nutshell, SOPA is an attempt to reinforce traditional values of copyright and ownership on a system that doesn’t want to be forced in that direction. Rather than trying to work within the direction the socio-informatics wants to naturally go, large corporations are trying to bring those values back in line with the establish processes because that is what they know. Laws, policy, policing.

What is missing is the human element. It is also what makes SOPA so dangerous as a framework from which individuality and the expression of ideas could eventually be eradicated.

Legacy is the essential problem.

The way you keep populations in control is by ensuring that their needs within a society are being met. Let’s take the simple example from Maslow. Those core needs being, in order of importance, physiological, safety, belonging, esteem, and self-actualization. To this list one has to add an additional more primal basic need that supersedes all of these others and that is the need to propagate.

The philosophical statement, cogito ergo sum, represents only half of what it is to be human. It is the rational side of the equation and doesn’t address this idea that within human culture it is not simply enough ‘to be’, one must have prove of one’s existence. That is, we define ourselves not just in terms of how we perceive the world rationally (a priori) but we need to have verifiable proof through external means that we exist (a posteriori).

Up until now, copyright has provided some measure of proof of our existence through the assignment of ownership to physical objects and the definition of legacy that it provides. But what happens in a virtual world where the right to create derivative works is superseded by mega-corporations whose only interest is the next fiscal quarterly report to their shareholders? When you no longer have the right to create works that provide proof of your existence? Or when you as an individually can be wiped out simply for not paying your ISP?

These may seem like extreme examples until you consider that most of what we say and do in the developed world now revolves around some type of electronic exchange of knowledge. The ability to express oneself to society is predicated not just simply on the physical expression of thoughts and ideas but also on their persistence. The creation of physical forms of self-expression be it a book, a record, a painting, a house, a chair, were easy to assign copyright to. The uniqueness of such self-expression was contained within definable geographic constraints. And even with mass production, copyright infringement through the development of substantially similar or derivative works was constrained.

There are only so many different ways you can mill a table leg. After awhile with 7 Billion people on the planet, people in various parts of the world are going to come up with similar solutions to similar problems irrespective of blatant intellectual property theft. So what do you think is going to happen once we add another 2.5 billion people to the planet between now and 2050?

In the last 20 years we have gone from a society in which the persistence of knowledge was predicated on activities that were understood to be one of two types, physical or vapor-ware, to a society which now has a reasonable right and expectation to every word they say lasting generations. Our root belief system has been fundamentally altered such that legacy is no longer about what you physically leave behind but what you virtually leave behind as well.

That is no small paradigm shift. And it’s not localized. It’s global.

Consider by 2050 9.5 billion people all wanting to establish a legacy of their own and wanting to have proof of their existence.

SOPA doesn’t account for this. The players behind SOPA don’t want to account for this. They don’t see it as their responsibility to speak to the future. They only seek to protect an economic system which is no longer viable in an information age.

So here is the fundamental problem: what happens in a society when its sense of self is under attack by those seeking, albeit maybe unintentionally, to eradicate proof of their existence?

Usually its revolution.

Unfortunately we are like the frog in the frying pan where the heat is being turned up slowly. Our hierarchy of needs is being eroded piece by piece under the guise of improved quality of life. The powers behind SOPA likely feel that so long as there are no signs of imminent collapse that all will be right with the world. But as any good doctor can tell you, to look after the care of a patient you need to also pay attention to the symptoms even if there are no outward signs of disease.

We could very easily take a page out of the medical handbook of practicing physicians as to the how to evaluate and assess a law’s ability to influence and improve the social condition. Unfortunately that hasn’t been done here. Which is a shame because an OPRQST assessment against the human hierarchy of needs is exactly what is called for here.

If SOPA passes, and mega-corporations start to use this to assault an individual’s innate ability of self-expression, regardless of what form that self-expression may take, then it will simply be a matter of time before the revolution starts. Similar to DRM, SOPA won’t be the shot heard around the world, but it’s definitely a sign that the musket is being loaded. SOPA is a very badly structured piece of legislation that should never become law.

That’s not to say that there aren’t legitimate issues at stake here. However, we need to start by realizing that our economic system needs a major overhaul. Any legislation needs to accommodate the way society functions today – not the way the nuclear-aged society functioned 60 years ago. That is going to require a heck of a lot more work than a quick fix solution created by the group of people that are at the root cause of many of these issues in the first place.

Revolutions don’t need to take place at the point of a gun. The transformation in society between 1979 and 1999 is ample proof that revolutions can be both transformative and peaceful. I just hope the transformation that needs to happen between 2019 and 2039 will be one of cooperation and not confrontation.

– Kevin Feenan

For example, during World War II, the debt in the US spiralled to almost 130% of GDP. The traditional level however has been below 50% when looked at across the last century or more. This is in keeping with the Maastricht criteria which provide a recommended cap of 60%.

Dr. William Edwards Deming is widely regarded as the father of total quality management – a system of statistical control in which quality is a practice of continual improvement where manufacturing is thought of as a system, not as bits and pieces. By doing so, your fundamental measures of quality can be bounded. It is not the individual measure at a point of time that is important but rather does that point lie within the those bounds.

In this case – the measure is the percentage of debt verses GDP.

If you remove special cause of variability, for example capital spending on World War II, then what you get is a graph which is more or less consistent with D/GDP being in the 20%-70% range. Under normal circumstances, the debt shouldn’t rise above these levels.

Unfortunately, when Bush left office in 2008, he saddled the US with a whopping deficit obligation which was impossible for any President to back away from. In short, G.W. Bush took the system out of statistical control and Congress rode on those coat tails to push it the rest of the way. There were no extraordinary crises which would have mandated these measures if the Government had been doing its job through regulatory policy and putting the health of the nation first.

Being consistently in the upper range of the D/GDP boundary is a clear signal that something fundamental has changed and that it needs to be looked at. Not after the Debt has ballooned to 90% or more of GDP. Clinton knew enough to bring those ratios down.  Bush was the maker of his own ‘crises’. But this just goes to shows what happens when you put personal agendas ahead of managing the economy to weather a real crisis when one comes along.

Which gets back to this original point of the debt ceiling level.

If the normal boundaries for government expenditures are between 20%-70%, then any crisis that pushes the system out of balance should be defined as such by either the President or Congress including the terms by which that problem will be deemed to have been resolved. During those times, the debt ceiling should double which the understanding that it country needs to dedicate itself to the express purpose of getting the economic spending of government back into statistical control with all due haste once that crisis is past. Further, both Congress and the President should be bound by those requirements, superseding all other political agendas.

What is at risk is the US’ ability to address additional crises should one come along.

There are three other points that needs to be made before getting to a resolution on the idea of a debt ceiling.

First – During a crisis, the bills to be paid don’t stop once the crisis is resolved. It will typically take another 2-4 years of increased government spending before the government can be said to have ‘turned the corner’ and can start focusing on real debt reduction.

Second – Governments have typically relied on inflation to reduce the size of the debt compared to GDP by anticipating that, so long as they can cover the interest payments, the size of the debt will shrink naturally. This is because in 10 years time, what cost $100 today will only be worth $60 in 2021. As a percentage of GDP that is huge so long as there is a growing economy. It’s when economies are shrinking or on the verge of collapse that this strategy fails to work.

Third – A crisis is a special circumstance of variation. As such it cannot be systemic. That means that in declaring a crisis, the crisis cannot be on-going – such as the war on drugs which was first announced in the Nixon administration. The ability to declare a crisis means that it must be extraordinary, short-term, and solvable. Anything else is systemic to the functioning of the economic system.

Moody’s point of removing the debt ceiling, while likely practical in the short term, is also short sighted. It removes all restraints which is not good in an era where politicians think money grows on sheep. There needs to be caps in place which are essential trigger points for ensuring the economic health and total quality of the system when looked at as a whole.

Possible Solution

There are three aspects to a possible solution that need to be put in place.

The first is to establish a ‘normalized’ threshold for debt to GDP ratio which is the idealized state, or goal, that both Congress and the President agree to reach. That threshold should be down somewhere in the 20-30% range. Keep in mind that at its peak, WW II raised the D:GDP ratio from 50% to almost 130%, a difference of 80 points. The current financial crisis, has resulted in debt going from 70% to almost 100%, or a 30-point difference. If we can assume the average crisis will therefore take a 50 point increase, then setting a 20% idealized debt threshold means the US could weather almost any crisis short of another world war while keeping the economy vibrant and healthy.

The third is to define the terms and conditions of the crisis at hand which would allow the debt ceiling to be raised from 70% of GDP to 140% of GDP. Similar to establishing a project charter, Congress and the President would need to define what the crisis is and the conditions that need to be satisfied in order to declare the crisis over.

The third is to establish a rule that requires both Congress and the President to enact spending measures that reduce the debt, in real terms, every year starting no more than 4 years after the crisis has been solved. Budgets must continue to be passed which lower the debt ceiling year over year until the debt falls to below 70%. That means the debt ceiling would change from year to year based on the previous year’s spending. Once it is back into a steady state, the restriction comes off and Congress and the President can get back to their normal bickering, finger-pointing, and backstabbing as per usual.

This to me seems to be far more reasonable than the ‘quick fix’ proposed by Moody’s and would be far more fiscally responsible.

— Kevin Feenan

The general population has a right to be angry about what has been going on. However the rash of arrests, finger pointing, and blame is not showing leadership in solving the root cause of the problem. All these tactics are doing is to confound one problem with another.

Regardless of who knew what – the surface problem is the journalistic ethics which found it okay to violate individual personal privacy under the guise of the public’s right to know.  This really shouldn’t come as a shock to anyone that reads the daily news with an eye towards tearing down good people and who are only human. No one can stand up to the type of scrutiny that tabloid press puts on people. They take the private lives of individuals and then use every method at their disposal to “get the shot” – whether that means renting helicopters to invade weddings, or rummaging through someone’s garbage, or hacking someone’s voicemail.

This isn’t the root problem however. The root problem is a social culture that finds this type of tabloid news reporting to not only be mandatory, but rewards those organizations that can dig up the best dirt with a financial win fall in advertisers, subscribers, and ongoing rights.

The problem is us.

We demanded it and didn’t bother to ask what lines were being crossed so long as the news had that latest, greatest tidbit about Angelina Jolie’s thighs or who Jennifer Aniston is shacking up with this week. People give power to these organizations to do things we would otherwise find distasteful. And every time a news organization manages to up the bar – we buy more. The more we buy the more it gives credence to any ethical or moral standard so long as the public buys it.

It becomes engrained within those organizations as a culture which says “it’s okay to do this – you don’t need to ask permission so long as the ROI keeps going up”.

The problem quite often stems from “legitimate” uses of certain techniques, such as voice mail tampering, when the net benefit is for something that really matters. Such as political corruption. How many important public stories would never have seen the light of day if someone hadn’t used these techniques?

Originally, there may have been some initial public benefit with ethical and moral limits to the usage of some techniques over others to get a story. However over time the original intent of these limits become lost as people move onto new jobs and don’t pass on the lessons of the past to guide those making our future. In short – what once was only permissible in limited circumstances, quickly is adapted for other uses for which it was not intended.

I can envision a situation now where the people at the News of the World are sitting around with these dumb expressions on their faces – realizing that some people went too far – but also trying to figure out how they were suppose to change a situation that was ingrained into the culture of the organization.

Think about this for a moment – how many things happen in your place of work that are morally or ethically wrong but you feel powerless to do anything about. If you raise it as an issue you are quickly put down, or worse – fired for being a trouble maker. If you do nothing, then you are guilty by association. If you take ownership and try to fix the situation you are again quickly put in your place for impacting productivity or the organizational brand.

People are not rewarded for doing the right thing – the are rewarded for doing the thing that benefits the most people in the shortest amount of time. And if that means stepping across the line a few times, well that is all well and good so long as the profits continue to roll in.

It is, in my view, a social injustice when organizations become so myoptic in their view of what they are doing that they fail to realize how important a strong internal culture is to long term productivity and growth. That means being willing to look at practices at all levels of the organization and say to themselves “what is wrong with this picture”.

I could excuse a small mom-n-pop organization as it is difficult enough to make ends meet without having the resources of an international bureaucracy at their beck and call. Multi-National organizations however have the resources to be asking themselves this question all the time. They should do so. It won’t necessarily catch every breach of ethical or moral standards but it will at least put in place a culture in which every member of the organization is trained to highlight problems rather than sweep them under the rug.

Do I fault New of the World for what they have done. No – as this type of scenario was inevitable with some news organization somewhere (notice no one is taking Fox News to task over what it may or may not be doing currently). What I do have a problem with is the lynch mob that has developed out of the turmoil when what we need is a solid discussion on journalistic ethics in all news organizations, not just News Corp.

— Kevin Feenan

I would like to put forward what I call the 5% solution

• Increase the average living wage by 5%
• Reduce the unemployment rate to 5%
• Cut government spending by 5%
• Eliminate 5% of all state and federal barriers to innovation and productivity
• Establish a minimum tax rate of 5% on all income over $50,000
• Push business to reinvest profits over 5% back into new jobs and the economy

See – part of the problem in Washington is that they think they control the economy. In truth the economy is controlled by the actions of everyone that participants in the free market, both foreign and domestic. It is going to take a concerted effort by everyone, both foreign and domestic, to fix it.

The easiest way to accomplish that is to provide goals that are simple to remember, simple to rally around, and simple to be sold to both the public and enterprise.

The idea has to be to go beyond balancing the budget to actively reducing the debt for future generations. That means maintaining a fixed rate on government spending

None of these solutions can be enacted alone – they will require a concerted effort by everyone in both the private and public sectors. The idea here isn’t to unfairly increase the burden on any specific demographics but rather to spread the wealth of the nation around through a process of encourages capitalists to participate in

Living Wage

Currently, the average wage in the US is approximately $21/hr or $41K per year. This accounts for approximately $1.2 trillion dollars in federal receipts (approximately 45% overall). Encouraging businesses to increase the average wages paid across the board by 5% will add approximately $400 billion dollars to the tax pool.

Unemployment and Reinvestment

Reduction of unemployment to 5% and to maintain this as a stated target for future generations. This can only be achieved however if private enterprise is encouraged to reinvest profits back into the economy in the form of innovation and jobs. The problem with unemployment has never been a lack of work. The problem has been a lack of access to funding – and its only the Government’s arrogance in assuming that funding has to be from public sources that is getting in the way of putting people back to work.

Instead of trying to dole out money, the Government should instead be brokering its ties between entrepreneurs and businesses which are capable of advancing seed capital and creating new jobs.  In real dollars, an ongoing investment of $250-270 billion of corporate profits will put 6.5 million people back to work increase government revenues by $120 billion.

Government Spending

Senator John McCain said it as part of his run for President that part of the problem in the US is that there are too many entitlements associated with money bills passed at Capital Hill. A cut of 5% across the board would amount to $200 billion which is not that substantive. Further, once a balanced budget has been achieved, new spending should only be authorized in so far as funds are freed up from debt interest repayments. I.e. as the debt is repaid, interest is no longer due and can either be put towards paying down the debt faster or towards new programs.

Red Tape

One of the biggest barriers to government receipts is government red tape. Businesses having to address 50 different state statutes on everything from sales tax policies, to human resources, environmental practices. This is one of the largest wastes of taxpayers’ dollars. The Federal Government should be committing itself to reconciling overlaps in Federal-State statues which will free up private sector funds for unemployment and reinvestment. The idea is that every dollar that is being spent within the economy should be put towards innovation, not bureaucracy where there are substantive overlaps that hurt organization’s (including non-profits and NGOs) ability to compete globally.

Legislative policy based on geographic borders worked fine when the most a person could travel was 20 miles on a good horse. We don’t live in that world anymore and people need to realize that our problems are global. So it’s time to start removing local barriers to entry and start increasing regulation on national and global issues where it matters. This could save approximately a further $200 billion

Minimum Tax

Establishing a minimum tax rate of 5% on all personal income over $50,000 is not a big stretch. Such a measure wouldn’t impact low income earners because they don’t make enough. It wouldn’t impact the middle class because middle income earners are generally paying somewhere between 15-20% marginal tax anyways. Where the impact of this measure will be felt is on the people that can most afford a minimum tax – that being those whose standard of living is already above average and those who are paying no tax due to major tax loopholes.

A recent article by the NY Times suggested that as many as 47% of households own no personal income taxes. While the article goes on to suggest a number of reasons and mechanisms for this, the bottom line is still that the burden of taxation is currently placed on the other 53% who either can’t or don’t take advantage of many of the existing tax law loopholes. As such a 5% minimum tax could net out another $200 billion in revenues.

Net Impact

The net impact would be a balanced budget which would increase tax revenues mostly through an expansion of the base of people paying taxes and more efficient government allocation of resources.

The challenge however is that such a plan would require cultural change at multiple levels within US society. It is not something that can simple be put in place overnight. If the process were to start today – with this budget, then within 5 years, it is very possible that the US will be one of the few countries to go from the brink of bankruptcy to a new age of innovation and capitalism which balances growth with social responsibility.

If there is one thing the US is good at – it’s doing the impossible when it puts it’s mind to it. Now it’s just a matter of whether it had a mind to fix the problem by engaging “We the People” or whether it will be mired in self-indulgence politicking and posturing as “Me the Weasel”.

– Kevin Feenan

The essential problem however is this: As corporations become more and more powerful they in effect become bodies that are capable of developing regulatory and monetary policies that impact our society on a broad scale but for which the general public has no represenation. Take these three pet peeves of mine which impact millions of Canadians but for which the Government doesn’t have the Kahunnas to do anything about:

AirMiles.CA

There are multiple examples of this but one in particular I like is this one by AirMiles.CA in which they offer to ‘allow’ people transfer their airmiles from one person to anyone else for the low low cost of only $0.15/airmile. This bothers me on two fronts. The first is that they have already been paid for these airmiles by the sponsoring organization. The second is that if you work out what you can redeem these airmiles for, the value of an airmile ranges from a low of 0.07/airmile for consumer goods to a high or 0.33/airmile for air travel. Since they have already been paid for the airmiles once (something that is reflected in the cost of goods purchased at point of sale) – charging an additional $0.15/airmile means that they are double dipping for the same airmile.

In short – we as the general public are charged a hidden tax on goods and services. And then asked to pay again, in full, when we want to transfer those credits to another person.

Airmiles and other incentive programs, should be treated the same as gift cards in that a company cannot tax consumers and then pocket the funds without providing due access to the promised services. Nor should they be allowed to charge twice for a product that has already been paid for. If a program like Airmiles wants to charge a reasonable administrative fee for handling the conversion that is one thing but to blatantly double dip like this is wrong and unethical.

This is a fairly easy one to fix. The Government should introduce an amendment to the tax code that taxes incentive companies a 100% tax on all incentive programs that deny consumers products and services for which they have bought and paid for in cases such as AirMiles where they double dip or Air Canada where they expire after a period of time if not used.

Banking Service Charges

Banking and investment houses such as BMO Investorline charge fees to people who do not maintain a minimum balance in their accounts as a means of recouping administrative fees. While this is what everyone is use to on the surface, underneath the banks are making money three different ways on funds that are on deposit. The first is the ability to loan money in excess of the amount of deposits on hand. So for example, for every $1M the bank has on deposit, they are able to loan out $20M or more. This is one of the primary income sources for banks and investment houses in that, by encouraging people to keep a “minimum balance” they have more funds on deposit and hence can make more income from loans and mortgages.

The second major stream is Interac transactions for which they charge the vendor a specific fee per transaction. For the most part the banks double dip on this account too by charging both the buyer and the seller a fee for using the service.

The third method is service fees simply for having an account in the first place. These fees are usually waived for people who keep a minimum deposit on hand. However for people who don’t, these fees can be fairly stiff. In fact it is often the people who can least afford service fees whom are the ones that are asked to pay them.

For example, BMO Investorline charges $25/quarter for investment accounts which do not maintain a minimum balance even thou the down turn in the markets from 2008 have meant that many people’s investments have been wiped out and can no longer meet the minimum requirements. This fee, and others like it, represents a corporate tax on the poor without representation and should be eliminated. While the banks might cry foul – these are the same banks and investment houses that are raking in BILLIONS in profits each year. It may have been necessary early on in the development of the Interac system to include an ongoing development cost component but it is now well past the time that this investment has been made up.

The solution: any bank or investment company that charges service fees to accounts based on minimum investment or deposit requirements obviously has enough cash on hand to look after their own deposit insurance and therefore should be dropped from  the CDIC (Canadian Deposit Insurance Corporation). In addition, they obviously don’t need the support of the Bank of Canada in securing overnight (or longer) lending. These institutions are there to support the Public Trust, not bank profits.

Telecommunications

Telecommunication rates  are another area that has been bugging me for years – ever since Bell Mobility Cellular made the internal announcement back in 1997 that their core technological infrastructure had been fully recouped and that the company was now in a positive cash flow position. Great – wonderful – so why didn’t we switch to a flat rate telephone service like the landline service was built on? Because pay by the minute is more profitable.

Hence the strategy that has been in place ever since: how much disposable income can we relieve our customers of before they start to riot in the streets. Over the past 15 years, the telecommunication companies responsible for mobile and cable services have been conditioning their customers to be paying ever excessively more money out of pocket for declining levels of service.

For example, Rogers Cable ships every new internet customer a package of software that they say ‘must’ be installed in order to access the internet (something which isn’t the case btw). Essentially this is crapware which forces people to route though Roger’s services, search engines, etc while accessing the internet. Essentially it is advertising for free including any sponsored ad partners that Roger’s decides to promote.

Example 2: For customer that don’t use this software Roger’s has deliberately intercepted network traffic that generates an error code and forces it to error pages owned by Rogers – thereby again – giving Roger’s an unfair advantage in promote of its own products and services.

Example 3: Roger’s cable boxes have been designed deliberately to slow down channel surfing when television ads are inserted into the middle of a program. Consider that Roger’s sells advertising space on its cable programs by putting its own ads in place of that of the channel operators. This slow down means that in order to get to the programming guide you have to watch the ad an additional length of time and hence the advertiser, in theory, gets more of your attending while you are waiting for the channel guide to load. Beyond this – additional advertisements run as part of the channel guide experience. Add to this the fact that programs are more ads now than program and what you have is a system which double dips at every given opportunity rather than improving the experience for the individual user.

What bothers me about this is that we have gone from a society where news and information could be freely accessed via the airwaves to one in which people are spending $150-200-300 or more per month on in-home entertainment and telecommunications. While that seems like a petty beef – one only has to look at the costs and level of service being provided for comparible services south of the boarder to see how badly Canadians are being ripped off. Especially for those people in lower tax brackets who can least afford these ever increasing rates.

For the record Bell, Telus, Shaw and others are no better. There is no incentive for the Telecommunications industry in Canada to keep rates low when there is only ever two real players – and for some regions only one service provider – in each of the regional market spaces.

The solution: Open up the telecommunications field to competition. Let Rogers compete with AT&T, Cox, and others and see if rates don’t come down substantially.

Governmental Policy

There are a lot more examples than just these there however each represents a class of social impact for which society has little recourse to representation without Government intervention.

The role of governmental policy, therefore,  isn’t to necessarily let the genie out of the bottle in terms of putting in place governmental programs to oversee industry, but rather to encourage industry to put in controls in order to be self-regulating. It is not in the best interest of the Public Trust to create oversight bodies every time an industry becomes too full of itself and starts to exceed the purposes for which it exists. Corporations get so wrapped up in who is making the most profit that it starts to become acculturated that this is the way things are suppose to be.

The role of government is to intervene when big business start to get too far afield from providing a service that is in the public interest and starts providing a service that is only to the benefit of its shareholders. Shareholders in a modern world need to include the customer base which it serves and the governmental principles by which that society places a high priority on. When products and services direct society towards patterns of behaviour that are unhealthy for the society as a whole – the needs of the Public Trust must necessarlycome first. And it is that point which these solutions are designed to reinforce with big business. Not in that these measures should be enacted but in that their potential use as a tool should be actively discussed with industry leaders as a possible reprecusive consequence if the industries refuse to self-regulate themselves in the public interest.

– Kevin Feenan 

For example, copying video, music, or graphical images for personal use. 

One of the essential problems within a society is the fact that once an idea is put out into a public space – it is there for everyone to see and make use of regardless of the mechanism by which it was originally distributed. You can’t stop an idea once it has been released to the universe.

One of the other problems is that for certain ideas, there are only a limited number of ways of expressing that idea  regardless of when anyone in the past 10,000 years came up with it. The law of additive identity in mathematics for example (a + 0 = a) is true in all cases and cannot be expressed in any other way. Once that fact is known and ‘turned loose’ in society, you can’t go back and start charging everyone a royalty every time they add zero to a number simply because you were the first one to come up with the idea or the first one to actually ‘codify’ that specific truth.

Similarly, for a society to work, there has to be agreed upon standards by which everyone knows what the heck everyone else is talking about or trying to say. For example, I could re-express the additive identity by saying ($ ~ 8 / a). If you refine the rules of what makes a mathematical expression understandable then you could, in theory, come up with hundreds of different ways of expressing mathematical formula that wouldn’t infringe upon the original owners intellectual property. Of course it would become quickly apparent that no one would understand anyone else. While this might be a great boon for Accountants, for the rest of us we would quickly start to adapt the way in which we felt our network of contacts was working irrespective of whether it was legal or illegal.

This is because the underlying require to understand each other and build community will always trump individual rights to make a living from intellectual property which it is unable to control the methods of distribution. Which, quite plainly, sucks if you are the one that comes up with the idea in the first place, but is essential for society as a whole to grow and prosper.

What got me on this topic was a twitter I received yesterday talking about Lodsys’s harassment of Apple App developers over the use of the “upgrade / buy now” button which Lodsys claims to own the intellectual property for. This bothers me on two very important accounts

Scales of Justice Don’t Balance

The fact that large corporations, in order to enforce their claim to a copyright infringement, which in many cases is dubious to begin with, will go after those people who are unable to fight back. As a society we deem that the right to prosecute or to undertake a defence should be born by the people who are involved in the case.

Unfortunately the cost of a legal prosecution or defence is so expensive that many people cannot afford to undertake such an endeavour without potentially going into bankruptcy. The justice may be blind but the scales are almost always tipped in the favour of those with the legal team with the greatest number of resources behind them (money, labour, etc..).

As a democratic society, it is in the best interests of everyone concerned that when issues go to trial, both sides have equal access to appropriate resources in order to properly represent legal research findings, case law, and opinions. When one side can bring to bear unreasonably overbearing legal representation, such as in the Sony vs. Hotz case, the results are devastating not just for the immediate financial settlements, but also for the in appropriate legal precedents that are now entrenched in case law which can be used by others.

When your view of the universe is so myopic that all you see is the immediate financial / commercial implication, what remains is the start of a slippery slope which others will use to their advantage regardless of the harm to society as a whole.

Abdication by Governments to Intervene in Cases of Fundamental Justice

This brings me to the second fact that bothers me about the implication of cases like this. The abdication by Governments to represent the long term interests of the societies that they govern.  In Canada for example, Section 7 of the Canadian Charter of Rights and Freedoms states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The principle of fundamental justice has many aspects which must be satisfied including principles of

• Arbitrariness (i.e. lack of)
• Vagueness (i.e. lack of)
• Requirement of Mens Rea (i.e. a guilty mind)
• Right to silence
• Etc..

Two specific aspects of the concept of fundamental justice are the principle areas in which governments fail to live up to their requirement to promote a healthy and prosperous society.

The first is the idea of ‘overbreadth’. This is usually defined in the context of government brining “disproportionate interference” with an individual’s rights. The problem here is that the concept needs to extend to all legal proceedings, not just those involving government stakeholders as the government holds in-trust the outcome of any proceeding for which overbreadth occurs.  While it may not be possible in all cases to identity which cases brought before the Court are more important than others, there should at least be some independent review which establishes the protection of the public from corporations and others whom would use the principle of overbreadth to their unfair advantage.

The second is the right to make full answer and defence which includes the right to consult a lawyer. The problem here is that not all lawyers are created equal. It would be presumptuous to assume that a public defender being retained through some form of legal aid is going to be of the same calibre, or have the same dedication, as one that is retained full-time within a given industry mega-corp including stock benefits and an indexed retirement pension. While the technicalities of the right may be preserved, the balance is certainly not.

Level Playing Field

The principles of justice should include a level playing field. Whether these types of issues have always plagued society or it has just become something that has been occurring with increasing frequency since I started to notice this in the 1980s I don’t know. What I do know is that the legal system in many ways is broken and needs to be fixed.

For example, why should a company like Lodsys be allowed to railroad small independent application developers when the intellectual property they are claiming the right to was originally developed by Xerox PARC back in the 1970s, subsequently improved upon by Metaphor Computer Systems in the 1980s and eventually sold to IBM in the 1990s. Anyone with the intelligence of a fried noodle and an internet connection can find this out in 5 minutes.

It shouldn’t take Apple and a small army of lawyers to figure out how wrong lawsuits like this are and to have them thrown out of court. While I’m not a big fan of Apple Corp, at least they have the kahunas to stand up and do the right thing for their development community on occasion.

– Kevin Feenan