Category Archives: books

Naomi Hinchen on Wizard Politics

Following a theme for the day: Just as with Star Trek, I also rarely talk or write about Harry Potter, since the details of its fictional legal system are kind of fuzzy.  Luckily, long-time reader Naomi recently wrote a post on her blog that raises some great questions about the interaction between the wizarding and muggle legal systems.

Perspectives on Financing Innovation

If you’ll forgive a brief commercial announcement: Perspectives on Financing Innovation, a book I co-edited with F. Scott Kieff* and Arthur E. Wilmarth, Jr., has been published by Routledge.  It is the fourth book in the informal Perspectives series, which includes books on commercializing innovation, corporate governance, and the human genome project.  Here is a short summary:

Although much has been written about innovation in the past several years, not all parts of the innovation lifecycle have been given the same treatment. This volume focuses on the important first step of arranging financing for innovation before it is made, and explores the feedback effect that innovation can have on finance itself.

The book brings together a diverse group of leading scholars in order to address the financing of innovation. The chapters address three key areas, intellectual property, venture capital, and financial engineering in the capital markets, in order to provide fresh and insightful analyses of current and future economic developments in financing innovation.

Dense stuff compared to the usual fare on this blog, but of interest to scholars, practitioners, and policy analysts.

* NB: Scott worked on this book before becoming a Commissioner at the ITC.

Book Review: Waller and Williams Criminal Law

I was recently asked by Lexis Nexis Australia if I would be interested in reviewing one of the books they publish.  Not knowing much about Australian law, I was happy to review one from the perspective of an American attorney looking for an introduction to the subject.  Given that criminal law is one of the most common subjects on the blog, I chose Thalia Anthony et al., Waller & Williams Criminal Law: Text and Cases (2013) to review, and Lexis Nexis Australia provided a free copy.

I. The Book

At over 1000 pages, Waller & Williams is a fairly comprehensive book.  Overall it’s broken into three parts: an introduction into the theory and justifications behind the criminal law (as well as a bit of criminal procedure), a section on specific criminal offenses, and a section on defenses.  Concepts are explained with a mixture of notes from the authors, statutory text, and excerpts from important cases.  This approach mirrors that found in many American casebooks and was very easy to follow.

Overall I was struck by how approachable the subject was.  Like the United States, Australia is a common law country.  This means that the general structure of the criminal law (e.g. the requirements of actus reus and mens rea) and the definitions of many crimes and defenses are the same or very similar to those in the United States.  Also like the United States, Australia is a federation.  This means that the Australian states have their own independent systems of laws separate from the Commonwealth’s.  Just as in the United States, this approach means that we can analyze a given problem in multiple contexts.

Just as the patchwork of criminal laws in the United States has resulted in a variety of insanity defenses in the different states, the same is true in Australia.  Further inspired by the international nature of Batman, Inc. (which included an Australian member, the Ranger), I decided to look at how supervillains claiming a defense of insanity would fare in Australia.

II. Insanity in Australia

In addition to coverage of the Commonwealth laws, Waller & Williams includes significant coverage of the laws in New South Wales and Victoria, the two most populous Australian states.  As in the United States, Australia followed the M’Naghten rules until recently, when some jurisdictions began adopting other rules.  The Commonwealth Criminal Code Act (i.e. the primary federal criminal law in Australia) uses a wider definition, found in § 7.3:

(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.

(8) In this section: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

As Williams & Waller explains, this is essentially the M’Naghten rules (subsections (1) and (2)) plus uncontrollable impulse and coverage of severe personality disorder (i.e. psychopathy).  This is notable because very few American jurisdictions recognize uncontrollable (or irresistible) impulse as a defense.

In Victoria the defense is called mental impairment rather than insanity, but still broadly follows the M’Naghten rules in its Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, § 20:

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that —
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

In Victoria, mental impairment covers neither personality disorder nor irresistible impulse.

Unlike the Commonwealth and Victoria, New South Wales still follows the common law M’Naghten rules directly rather than having an explicit statutory scheme.  However, “mental illness” is defined by statute:

‘mental illness’ means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

The Mental Health (Forensic Provisions) Act 1990, § 38(1) provides that, if the person tried ‘did the act or made the omission charged, but was mentally ill at the time’, the jury should return a ‘special verdict’ — ‘that the accused person is not guilty by reason of mental illness’.  Given the statutory definition of mental illness above, this seems broader than the M’Naghten rules.

III. What Does This Mean for Supervillains?

The bottom line seems to be that supervillains branching out into the Australian market (so to speak) would do well to stick with federal crimes, as the Commonwealth Criminal Code’s definition of insanity is considerably broader than either Victoria’s or New South Wales’s.  The inclusion of irresistible impulse and severe personality disorder would potentially enable supervillains such as Two-Face, the Riddler, and even the Joker to claim insanity.  As we discussed previously, these supervillains would find it very difficult to plead insanity in most American jurisdictions (and, indeed, in most Australian jurisdictions).  For example, the Joker is not insane by virtually any American definition, but he is likely a psychopath (as I understand it), and thus could be insane under Australian federal law.

It is interesting to note that the Australian federal insanity defense is broader than the state equivalents.  Broadly speaking, the opposite is true in the United States, particularly as a result of the finding of attempted presidential assassin John Hinckley, Jr. not guilty by reason of insanity.  In response to the verdict, the US federal government passed the Insanity Defense Reform Act, which made it much more difficult to successfully plead insanity in federal court.  Several states also restricted the insanity defense, but in general state rules and procedure remain more lax than the federal ones.

IV. Conclusion

Overall I found Waller & Williams easy to use and fairly comprehensive.  As with any casebook I wouldn’t rely on it as a sole source for advising clients (admittedly not a very likely scenario to begin with when it comes to Australian criminal law), but it is a useful introduction to and outline of the subject.

Pirate Cinema by Cory Doctorow

This guest post was written by Stuart Langley, an intellectual property attorney.  Thanks to Stuart for this fantastic post!  If you are a legal professional (e.g. an attorney, judge, or law professor) or a comic book professional (e.g. an author, editor, or illustrator) and  you have an idea for a post that would be a good fit for Law and the Multiverse, feel free to contact us!  

Cory Doctorow’s novel Pirate Cinema is a 2012 young adult speculative fiction novel set in near-future England that follows roughly a year in the life of a band of footloose youths living in, around, and outside traditional London society.  The story is told from the perspective of 16-year old filmmaker Trent McCauley (a.k.a. Cecil B. deVille) who’s obsession is creating mashups using images from the net.  Guided by his vagabond friends Jem, Dodger and a young woman named “26”, Trent matures from filmmaker to copyright activist.  

If you haven’t read Pirate Cinema, as always with Doctorow’s books you can download it for free, or you can do as I did and buy a copy.

Cory Doctorow is well-known for both his fiction and his informed, thoughtful copyright activism.  Pirate Cinema takes clear positions on copyright issues, but what is exceptionally fun about Pirate Cinema is the energy Doctorow puts forth to set out the whole cornucopia of property issues so we may consider law and theory.  Rather than steadfastly advocating a position, Pirate Cinema advocates advocacy itself; advocacy informed by human needs, respectful of human institutions created to meet those needs, and appreciative that these systems are changeable to satisfy our needs.  I will focus not on copyright issues per se, but the much more interesting context Pirate Cinema creates for understanding copyrights in the scheme of property law.  Pirate Cinema asks us to wonder about whether the way we treat intellectual property follows how we treat other kinds of property.

But first, Trent’s adventure begins when his family’s internet access is disconnected because of his downloading activity.  Is internet access a public utility subject to a higher “obligation to serve” standard, or merely a contractual service that can be denied for violation of any agreed upon term of service?

I. Is Internet Access a Public Utility?

Trent’s home has received a series of notices telling them their IP address has been associated with illegal downloading.  These notices go unheeded because Trent has intercepted them.  The third notice is accompanied by an appealable, but immediate one-year suspension of the family’s internet access.  The appeal process is portrayed as too burdensome and slow to pursue.

The McCauley’s internet access has been disconnected consistently with what appears to be an implementation of the United Kingdom Digital Economy Act 2010.  Implementation of this act has been slow, but is expected to lead to notices and service disruption as early as 2014.  The implementing code of this act obligates ISPs to respond to copyright infringement reports by notice to subscribers, maintain a list of subscribers that have received notices which can be disclosed to copyright owners under court order, and degrade or deny service to repeat offenders.  The technical measures imposed by the law will be appealable; on paper the appeal processes appear designed to protect subscribers, however, the regulations on the appeal process have not yet been published.  This foundational scenario in Pirate Cinema is plausible.

But whether it is acceptable to cut off internet access as punishment for violating how that service is used is another question.  Because of the disconnection Trent’s father cannot find work, his mother cannot find medical care, and his sister’s schooling suffers.  Is internet access is a public utility that should be more difficult to disconnect than summary and unilateral administrative action?  As explained in Jim Rossi’s article Universal Service in Competitive Retail Electric Power Markets: Whither the Duty to Serve? 21 Energy L.J. 27 (2000), common law principles express a public utility having a higher obligation to provide service—to provide extraordinary levels of service, especially to small residential customers.  These obligations include the duty to extend service, provide continuing reliable service, provide advanced notice of disconnection and to continue service even though a customer cannot make full payment.  Public utilities can have terms of service and can terminate service for violations, commonly payment and safety related transgressions.  One U.S. city proposed to cut off utility service for failure to pay speeding tickets, although using utility service as a tool to enforce other regulations seems very unusual and inconsistent with the common law “duty to serve”.  The question posed by Pirate Cinema is timely as governments try to regulate internet access, they do so by treating it as a public utility.  This will be a double edged sword in that one treated as a utility, society should, perhaps, have a higher duty to provide internet access and similarly higher barriers before disconnecting service, including greater due process and evidentiary protections for subscribers.

II. Property Rights in Pirate Cinema

Trent learns quickly how to live without money.  He needs food, he needs shelter, he needs comforts of water and electricity and, significantly, he needs to create films.  Without money the satisfaction of these needs brings Trent face-to-face with all types of property theory and practice.

The origin of property rights–the question of how something moves out of “the commons” to become the exclusive property of an individual is found in variations of “first possession theory” and the more thorough Natural Rights theory advocated by John Locke.  According to these theories property rights arise from the human ability to take something from nature, or the commons, and improve it and put it to use.  This act of taking from the commons gives the taker ownership in the thing taken.

Laws and social institutions have evolved to manage property rights, how they are granted and retained, and what privileges are granted to those that possess them.  These institutions and laws are the creation of man as well, and in spite of the strength of our belief that they are immutable, these institutions change over time to meet the needs of society.  Pirate Cinema asserts that property rights are enforced by political entities and powerful corporations and asks us to think about whether our existing institutions and laws are adequate with the reminder that we can change them to better meet society’s needs.  Paramount of those societal needs is the efficient and effective distribution of resources in our quest to satisfy human needs such as the need to eat, the need for shelter, and the more abstract needs to be comfortable, to share knowledge, and to be creative.

A. Tangible Property: Discarded Goods

Pirate Cinema’s society is characterized by great poverty and apparent abundance of resources being wasted.  At Waitrose, an upmarket grocer in London, Trent has a sinking feeling they might be about to shoplift.  Shoplifting is a crime and Trent is no thief.  Instead, his guide Jem teaches him to gather discarded food from the skips (dumpsters) behind the grocery which provide such abundance that they share this bounty with the less fortunate.  Similarly, they acquire all manner of computer and audiovisual equipment, all discarded.  This contrast—the repulsion of stealing against the acceptance of taking discarded goods—lets us think about when tangible property rights make sense and when they do not.  But is this a difference recognized in law?

Trent is right, people found guilty of shoplifting in the UK are charged with theft under the Theft Act 1968 and repeat offenders risk jail time.  However, can he take those same goods from a skip when discarded?  In the UK, no.  Dumpster diving in England and Wales may qualify as theft within the Theft Act 1968 as well.  However, there is little enforcement in practice.  In England, unless aggravated, theft from a skip will only be a civil wrong.  This non-uniform enforcement suggest that society, like Trent, views these acts differently, with a higher regard for personal property in some circumstances (e.g., when it is inside a store, while the owner is exercising dominion, and when taking property would cause loss to the property owner) than in other circumstances (e.g., once the owner has abandoned the property and would no longer suffer loss by the property being taken).

B. Real Property: Adverse Possession

Later, Trent and Jem take up residence in an abandoned pub they name Zeroday and claim it as their own under adverse possession laws.  Can they hope to own the pub where they take up residence?  Their actions to improve the property and put it to better use appeal to the natural law theory of property.  Acquiring real property by “adverse possession” is the process by which a person who is not the legal owner of real property can become its owner after having occupied it for a specified period of time.  The Land Registration Act 2002 provides a legal scheme by which a person wishing to claim adverse possession of registered land would need to continuously occupy the land for ten years, or for a period of twelve years if the land is unregistered.  Pirate Cinema accurately describes the adverse possession law, although the youth’s rigid interpretation of notice provisions and continuous occupation are likely overstated.  Just as importantly, when the pub’s new owner appears, destroying the adverse possession claim, Trent readily yields to the new owner, apparently acknowledging both the new owner’s claim in law and the natural rights principle that although he could claim property from the commons, he could not claim property owned by another.  Once again, the contrast presented suggests our laws and culture give high regard to real property rights in some circumstances and less regard in other circumstances such as when the property is abandoned and can be put to better use.

C. Abstraction of Electricity

In a third property-like scenario, the pub’s power is originally restored by Dodger, Jem’s friend who bypasses the meter.  Not long after, the authorities forcibly remove the residents of Zeroday for “abstraction electricity”.  Electricity is not property in the UK and cannot therefore be stolen.  See the Crown Prosecution Service citing Low v. Blease Crim L.R. 513 (1975).  However, under section 13 of the Theft Act 1968, electricity used without due authority, or dishonestly wasted or diverted is charged with the offense of abstracting electricity.  Trent and the inhabitants of Zeroday unwillingly recognize this authority, vacating Zeroday as punishment for this crime.  Later, when they wish to re-habit the pub, the youths avoid this problem by installing a pay as you go service.  Consistent with the “duty to serve” notion, so long as the youths pay for their service the utility did not deny them service even though they do not own the property.  The contrast presented here is not in conflicting views of the law, but in that Trent does reluctantly but willingly commit the crime, and then agrees with the terms of service and his obligation to pay for services.  Trent acknowledges his needs alone do not justify theft, or abstraction, of what is rightfully “owned” by another.

III. Conclusion

So now our table is set; we have before us examples of when property rights systems work, and when they don’t.  We have examples of when it is right to acknowledge the rights of an owner and when we should question the scope of the powers conferred by those property rights.  Is internet access more like electricity we should be hesitant to withhold, or is it more like tangible or real property where theft laws are rigorously enforced?  Are downloaded clips more like real and tangible property in which we consistently recognize broad rights of owners, or discards from the skips where society implicitly or explicitly accepts that in spite of laws to the contrary, we restrain our enforcement of owner rights in favor of more effective ways of meeting human needs?

Pirate Cinema does not answer these questions for us.  It urges us to appreciate our own responsibility in defining property rights and systems of crime and punishment that meet human needs, including and most dearly the human need to create.  More than anything, the tale urges us to decide, and to learn about the law and regulation being created to regulate society, and take an active part in how those laws are made.

Little Brother, Part 2

In the first part of our review of Cory Doctorow’s Little Brother we focused on the federal government’s legal response to a second 9/11-scale terrorist attack on the United States.  In this post, we continue that analysis and conclude by considering “the response to the response.”

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.  The sequel, Homeland, is also now available.

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Little Brother, Part 1

Cory Doctorow’s novel Little Brother is a 2007 young adult bestseller that speculates about the effects of a second 9/11-scale terrorist attack on the United States, particularly with regard to civil liberties.  Told from the perspective of teenage hacker Marcus Yallow, the story suggests that the government response would be to combine new technologies with new laws to frightening yet fruitless effect—at least when it comes to combating terrorism.  The sequel to Little BrotherHomeland, comes out on February 5th, so we thought we’d talk a bit about the first book and then take a look at the sequel once people have had a chance to read it themselves.

Spoilers below for those who haven’t read Little Brother.  If you haven’t, go buy it.  Or download it for free.

Continue reading