Time to go

2012-06-21, Thursday,

Good-bye, all. You can read me at Spirit of Contradiction, a collaborative blog I’m starting with some other comrades.

In actuality, I hadn’t posted in this one for months, so I don’t imagine anyone will be missing me that much. To all my readers (yes, the 2 of you!), thanks for your patience with my erratic posting rhythm, and see you somewhere else!

Reamde: a fractally complex novel

2011-09-25, Sunday,

Reamde is the latest novel by Neal Stephenson. I should begin this review admitting I haven’t read any book by Stephenson I haven’t liked, although I think I’m not entirely blind to their shortcomings. Like some few modern science fiction authors, amongst which I would name Charles Stross, Peter Watts and perhaps Richard Morgan, Stephenson is a master of plot: his books are full of complex ideas and digressions that somehow fit together and come packaged in sentences that can go from the bluntest concision to balanced and multi-clause arrangements that defy linguistic gravity. Many people find Stephenson unbearably verbose, or affected, but I am glad of an author who’s not afraid of his medium.

Reamde could be said to be about many things, although trying to reduce it that way would do much violence to what it actually is. One could say it’s about coincidence, or family, or gold farming, or mafia, or narrative, or online communities… and it concerns itself with all these themes. However, like certain realities, Reamde doesn’t easily lend itself to abridgement into a closed form. Describing Reamde, if one is not to lose much of its essence, cannot easily be done in less space than Reamde takes itself.

There have been criticisms that Neal Stephenson’s fiction is ethnocentric: written about and for white nerds. One can dispute such a reading, but it is perhaps somewhat true of some of his work, and clearly a novel like Diamond Age is, to a certain extent, an apologia for “Western” values. Thus, on the article I just linked, we read:

Neal Stephenson sure has a thing for gold, doesn’t he? Cryptonomicon was (partially) about a white guy from the midwest with a tech-startup trying to get gold out of Japan.  The Baroque Cycle was (partially) about a white guy whose family would eventually be from the midwest with a ship named after the godess [sic] of technology trying to get gold to England.

It would appear that REAMDE is about a white guy from the midwest with a tech-startup built on money laundered through virtual gold transactions with Chinese gold farmers.

Inasmuch as this may have been true of some of his work, it is the least true about Reamde. It’s a multicultural novel, where we get to see the world from varied viewpoints: the obligatory white mid-western guy, though this time not a nerd; a mix-raced intelligence operative from England; assorted Eastern Europeans… even the Islamic terrorists are sometimes interesting and funny.

Of everything that goes on in the book, perhaps one misses a more ddetailed treatment of some of the hypotheses around T’Rain, an online game that reminds us a little of the Metaverse. Maybe that is why it doesn’t get quite as much time: Stephenson has done virtual reality before, in Snowcrash. The function of narrative, though, and the arising of emergent, unforeseen group attractors in the game, is left a little unexplored. Perhaps the book was already a little large at 4.4 megabytes to add a more detailed excursus on such matters.

I read this book in a day, and it was the only thing I did. I can’t imagine how a writer can keep that much state while writing a novel, and I suspect that when–not if–I read it again, I will find new things that passed me by on first reading. Trying to explain the novel to someone else, though, is difficult: so many things go together in parallel, it feels like working on a function with dozens of local variables and exit points. It works in the novel, somehow, and that’s a further tribute to the capabilities of its author. Driving all those little separate stories in such a way they interact just enough to attain the results sought, without losing touch nor colliding into chaos, is a performance worth enjoying.

As to its mode, it is perhaps closest to Cryptonomicon. It’s set in a future of our world, but so near to our own time that one is a bit cautious about calling it science fiction. Arguably, though, science fiction isn’t characterised primarily by being set in the future, but, stylistically, by an unusual focus in concepts and their interactions, and materially, by people being vehicles of expression of such concepts. In that regard, Reamde could easily be said to be science fiction.

If you can deal with sentences written for adults, and information-dense narrative that presupposes an alert reader with some curiosity, I think you will enjoy Reamde. I can’t make a better job of describing it, so go ahead and read it already, and let me know what you think. I’ll probably do so myself again sooner rather than later.

Back to the struggle

2011-09-17, Saturday,

I haven’t been blogging in here for a long time. Part of the reason is I’ve been doing so on a Spanish language weblog I won’t link to in order to better protect my anonimity. The cause, however, was mostly laziness and apathy. Eventually one gets tired of making noises at the void…

The situation reminds me of a great work by Dostoyevsky, perhaps his greatest. I refer to Notes from Underground, a complex and difficult to categorize work. I remind myself of its narrator, expostulating on dealing with the impossible:

I will continue calmly concerning persons with strong nerves who do not understand a certain refinement of enjoyment. Though in certain circumstances these gentlemen bellow their loudest like bulls, though this, let us suppose, does them the greatest credit, yet, as I have said already, confronted with the impossible they subside at once. The impossible means the stone wall! What stone wall? Why, of course, the laws of nature, the deductions of natural science, mathematics. As soon as they prove to you, for instance, that you are descended from a monkey, then it is no use scowling, accept it for a fact. When they prove to you that in reality one drop of your own fat must be dearer to you than a hundred thousand of your fellow-creatures, and that this conclusion is the final solution of all so-called virtues and duties and all such prejudices and fancies, then you have just to accept it, there is no help for it, for twice two is a law of mathematics. Just try refuting it.

“Upon my word, they will shout at you, it is no use protesting: it is a case of twice two makes four! Nature does not ask your permission, she has nothing to do with your wishes, and whether you like her laws or dislike them, you are bound to accept her as she is, and consequently all her conclusions. A wall, you see, is a wall … and so on, and so on.”

Merciful Heavens! but what do I care for the laws of nature and arithmetic, when, for some reason I dislike those laws and the fact that twice two makes four? Of course I cannot break through the wall by battering my head against it if I really have not the strength to knock it down, but I am not going to be reconciled to it simply because it is a stone wall and I have not the strength.

And really, doesn’t it seem a bit quixotic to insist on drafting and editing and “publishing” my essays–what a grand yet false sense of moment, the verb to publish–for them to end, like so many other futile endeavours, lost in the æther, to profit or harm no-one? This must be the eventual obsession of all frustrated writers, and most writers are frustrated: all nice sentiment to the contrary, a single mind changed does not necessarily justify an infinite amount of effort. There comes the time when one must make one’s bow to fate–not so?–and admit that there are better things to do with one’s time.

Yet, there really aren’t better things to do with mine. Time passes, as I chat and read and think, and, when I can compell my stubborn self, study, and little suggests any of that is worth the effort, either. At least, my writing does yield a product of sorts, even if it’s abstract and no-one can grip it in the hand. Reading and chatting obtain far less, and as for studying… the least said on this, the better.

So time has come to once again assail the stone wall. This time, without the naïve pretention of storming heaven, but, rather, modestly attempting to leave some dents on fate, and on boredom. Let it be so!

A juridical analysis of the Flotilla Incident

2010-06-22, Tuesday,

I am well aware that it is rather late to talk about the Flotilla, and I should have posted on this earlier. However, it comes to my mind that since I did the work, I should link it here. So this is my juridical analysis of the Flotilla Incident, and this is the PDF version of the same. I shall simply quote myself, and copy the conclusion of the work, for the TLDR generation:

Israel has international liability on the basis of the articles on the Responsibility of States for Internationally Wrongful Acts, for breaching, inter alia, its international obligation not to interfere with the freedom of navigation of other states in international waters, for instituting
an illegal blockade, for intercepting and attacking foreign shipping without regard to applicable principles of IHL, inter alia, distinction, proportionality, and precautions in attack, for illegally capturing foreign shipping, and for illegally holding goods not subject to capture under relevant IHL.

I’m afraid you’ll have to read the full report if you want to understand fully how I reached those conclusions, but that is rather inevitable.

New Year’s Resolutions.

2009-12-31, Thursday,

So they’re silly, they’re arbitrary, and they hardly ever get fulfilled. Why bother with them in that case? I’m human, sue me.

  1. Graduate. This is actually rather important, like it or not.
  2. Make music. Ideally with the instruments I know how to play as well as with the computer.
  3. Pick up programming again, and I mean more than the odd doodling I do sometimes.
  4. Write regularly, fiction and essays. This includes keeping this weblog updated.
  5. Learn new mathematics. There isn’t such a thing as knowing enough maths.
  6. Travel. Last summer I went nowhere, it sucked.
  7. Practice German, Finnish, and try to get somewhere with another language.
  8. Finish reading Capital 2–3, the Grundrisse, and generally get a better handle on Marxist economics and Dialectics.
  9. Try to have more of a “social life”(tm).
  10. Do some form of physical exercise. I may not enjoy it, but this body doesn’t come with replacements.

That is it. They say about 78% of New Year Resolutions go unfulfilled, so if I’m average, I should expect to manage to keep two. While I won’t deny I’d like to believe I could do better, as a matter of fact perseverance, patience, and, generally, all those virtues grounded on self discipline and control aren’t exactly my strongpoint, so I’ll be quite happy to do an average job at this business. Let it be so.

To all, have a good 2010, may it bring you fruits and joy, and may it be the beginning of the end of the capitalist mode of production. Health!

Legal technicians

2009-11-17, Tuesday,

All education is by necessity ideological. Whether an attempt is made to make it more neutral–or more subtly guiding–or whether it is done in a louder and more straightforward manner, all transfers of knowledge also entail transfers of values, and in a certain sense the reproduction of praxis. It’s in the history of the word itself: to educate comes from the Latin verb ducere, and the prefix ex-, which adjoined to a word starting with a consonant becomes e-, and it means to lead out of something; presumably out of ignorance, and the similarities to Plato’s myth of the cavern should not be ignored in this matter.

So now that I’m nearly done with my law studies, this being the fifth and last year, it is perhaps interesting to consider what sort of ideological thrust the teaching of law in Spain, or at least in my faculty, is imbued with. In order to do this, and at the risk of boring the reader, I’ll have to go over the single most telling aspect. I’m referring to the choice of what to teach, when to teach it, and for how long, i.e., the sylabus.

Years are divided into two terms, with most subjects being taught for a single term and some subjects being taught for the whole year. I will simply list the five years and the subjects, and later I will go into more detail on those which have been of particular interest from the viewpoint of ideological content.

First year. Year subjects: constitutional law 1. First term: theory of law, Roman law, history of law, political economy and public funding 1. Second term: civil law 1 (person), political economy and public funding 2, introduction to procedural law.

Second year. Year subjects: penal law 1 (general), international public law. First term: civil law 2 (obligations and contracts general part), constitutional law 2. Second term: civil law 3 (obligations and contracts special part), public autonomic law, institutions of community law.

Third year. Year subjects: administrative law 1. First term: labour and social security law 1, tax and fiscal law 1, mercantile law 1, penal law 2 (special). Second term: labour and social security law 2, tax and fiscal law 2, mercantile law 2, civil law 4 (real rights), procedural law 1 (penal).

Fourth year. Year subjects: international private law. First term: administrative law 2, civil law 5 (family and succession), ecclesiastical law of the state, tax and fiscal law 3. Second term: administrative law 3, mercantile law 3, regional civil law.

Fifth year. First term: philosophy of law.

In addition to these core subjects, one must take 8–11 options, which are subjects taught within the department, and always refer to specialised topics such as law of damages, international human rights law, international commerce, law of cooperatives, etc. I won’t get into these as they constitute far less of an important ideological vehicle, in my experience, and I could only speak of the ones which I have taken. Likewise, one must take a number of credits which can be done outside or inside the department, as formally taught subjects, short courses, or other accredited activities. Again, beyond the scope of this article.

Probably in order to appreciate how our system works in fullness I would have to compare it to some other systems, so if anyone wants to comment on how this differs, or does not differ, from the way law is taught at their place, they would be very welcome. This disclaimer aside, I think we can take a few startingpoints: the goal of the system is to form a generalist, someone who can handle any area of law with the appropriate practice; the orientation is highly technical, theory-based and academic, rather than practical; and the system attempts to portray itself as objective and apolitical, transmitting only those truths which were discovered by researchers, and in no way taking sides on some sort of ideological enterprise. The suggestion that doctrine should inform law, de lege ferenda, is one of the few places where this paradigm somewhat breaks.

The 3 subjects with an obvious ideological content are theory of law and history of law (taught right at the start of the degree) and philosophy of law (taught right at the end of it).

Theory of law, which came to substitute a previously existing subject, which in the old plan went by the name of natural law, has the obvious and necessary goal of acculturating the student into a specific conception of what law is, what it is for, and what it should be. In this respect, the outlook is thoroughly positivist–naturalism is considered as little more than a quaint discredited doctrine and realism gets not time at all–and the telos of law is regarded as maintaining social peace, its highest value to safeguard juridical security, which is to say, to be predictable to the social agents which act in the traffic. It’s in this subject where we’re taught that an appeal to justice is always the sign that there are no good juridical–which is to say, inherently technical–grounds for the claim being invoked.

As to history of law, again it offers, through a positivist prism, the idea that law is arbitrary, contingent, fluid and dynamic. A little emphasis is placed on the rather enlightened–and universally disobeyed–laws which the Spanish empire set down to protect the native Americans, as well as on the Spanish innovations in legal thinking which inaugurated the whole area of international public law (School of Salamanca and the doctrine of spurius titles if anyone is interested).

The rest of the first year subjects are not worth many remarks. The political economy subjects are extremely simplified treatments of orthodox or neo-keynesian principles. Since the vast majority of law students in Spain come from the humanities stream of secondary education a mathematical rigorous treatment would not be highly appreciated. Roman law is a vestige, a way to introduce the Roman institutions which are the basis of our civil law, but some attempts towards ideological indoctrination are done in it, mostly to try to instill a sense of independence of the jurist from state power, and yet another reiteration of the idea that law is fundamentally technical and separate from ethics, morality, etc.

The series of constitutional law are extremely ideological. I’ve been taught constitutional law by 4 different professors: not a single one of them was other than right-wing. The constitution is understood as an instrument to limit state power, its function of regulating the way the state works set as secondary. A deep distrust of direct democracy is present throughout, as well as, oddly, a position that the executive power must be preeminent in practice even if subordinate in theory, and must be capable of holding power in a stable fashion with the least possible parliamentary hindrances.

The series of civil law is in some respects the core of the degree. Except for the fifth year, which is extremely low on workload and designed to be used to specialise with options and do practicals, there’s no other year where there is no civil law. It’s divided in a fairly traditional manner (persons, obligations, things). Our civil code, written towards the end of the 19th century in an extremely liberal context, is often praised, although not unreservedly.

International public law is taught in a fair amount of detail. The assumption of the subject is that law is monist, there is only one juridical system, international in nature, which rules over the national systems, and by its granting of sovereignty, the national juridical systems come into play. So the idea of the supremacy of international law is at all times upheld, even if its problematic execution is also referred to in class (always as a shortcoming of the world).

Institutions of community law is likewise taught in a fair amount of detail, and the position that institutional (i.e., EU) instruments are supreme over national law (even constitutional national law) is regarded as self-evident and undeniably correct.

Penal law is taught in a rather interesting way. The first part, the general part, discusses the German creation which is known as general theory of crime. This analytical tool is universally deployed under our system to be able to make fine distinctions and determine when a certain crime has or has not been committed, when it concurs with other crimes at the same time, etc. The general part of penal law is extremely doctrine-laiden–in contrast to the positivism common in other subjects–to the point that I think it’s probably perfectly possible to get an excellent grade without ever having read an article of the penal code. The special part, on the contrary, analyses the particular acts which violate the penal code, and is tightly stuck to it.

The administrative law series confronts us with the existence of a very special juridical person: the public administration, a sort of personification of the state. While it acknowledges the superior position of the administration in regards private individuals, and it recognises it certain extremely broad privilege, a certain undertone of criticism of these powers is also present.

Concluding, the type of ideological indoctrination which is thus far given–before the plan changes again, which will happen soon–to Spanish students at law, is thoroughly generalist, highly technical and theory-laiden, careful to observe and respect the supremacy of international and institutional law, sceptical of the role of the state in private life, yet at the same time willing to grant the state a superior position, and always acknowledging the necessity of its pressence and stability in order to ensure predictability and reliability in the juridical traffic.

What I’ve been up to.

2009-10-26, Monday,

So, I haven’t written much in here for a fairly long time now. What have I been up to?

Quite a few things, as a matter of fact. I had my summer holidays, during which I was visitted by a good friend I hadn’t seen for a few years now. We had a good time, towards the end of July. At the same time, certain essential works took place at our toilet, which were a bit unpleasant and not conducted with the professionalism desired.

Then, during August, I was away from the network. Although I got myself a 3G modem, the results leave much to be desired in this area. Not sure if the operator’s sparcity of coverage is at fault, or if it’s something to do with the geographic conditions, but I hardly could maintain a connection even at dial-up speeds.

Afterwards I took the Roman Law exam in September, which I failed, and decided not to sit procedural law, which I probably would have failed.

During October I started my last year of law, in which I’m studying fewer subjects than I’m used to, given the last year is designed that way, and I went to a user meeting on accessibility issues in Madrid, where I talked a bit about GNU/Linux and so on, and I attended some good talks and workshops.

So here I am. Of late I’ve been working on translating a Twitter client into Spanish, after having coordinated the work on its manual, as well as reading Dialectical Logic by Ilyenkov, which is a good text on Dialectics, a topic which I haven’t sufficiently studied. It approaches Dialectics by historically analysing, from Descartes onwards, and through the tradition of classical German philosophy, the question of the mind-body problem, with specific reference to the materialist/idealist controversy. It seemed a peculiar approach to me, but now I’m into it, not an invalid one.

I hope I’ll be posting more often than during these holidays, although it will depend on whether I find interesting things to write about. Life is not all readily transformed–or worth transforming into–essays.

Bull running for San Fermín

2009-07-15, Wednesday,

Bull running is a traditional practice in Spain. After having been popularised abroad by Hemingway, it is also a magnet for tourism. So you may be surprised to read that I am completely unacquainted with it, have never been around it being done, etc. This is not just a consequence–perhaps it even is the cause!–of me thinking that running before bulls that weigh more than 500kg is, putting it euphemisticly, less than the best idea humanity has ever come up with.

The bull runnings started out from the custom of moving the bulls from the place where they were kept to the place where bullfights occurred. Youths decided that while the bulls were being conducted it would be cool to prove their courage by exposing themselves to them. Eventually this, instead of being stopped on the grounds of being very dangerous and a public order programme, became a hallowed custom. This is why you know we’re talking about Spain ;-)

Bulls during the bull-runnings in Pamplona, for the feast of San Fermín, go at an average of 24km/h–6.6…m/s. They weigh upwards of 500kg, for instance the one which recently killed a runner last week weighed 575kg. So they embody a kinetic energy of about 12500 joules. If you think exposing yourself to 12500j directed over a surface of only a few squared mm–the tips of two horns, at most–is a fun idea, then you, too, can become a bull runner!

Before you make your mind, though, I would advice you to watch the following. Or you could simply take my word for it: being gored by bulls is not fun.

Another matter is bullfighting, something with which I’m not well acquainted either. For whatever reason, Galicia is not a region given to these passtimes. Nonetheless, while bull-running is plainly stupid–res ipsa loquitur–I’m not quite so sure about bullfights. There is a point to be made that they are a cruel and anachronistic celebration, a festival of death and torture, but I think that may well be selling them short. I think there may well be a non-trivial artistic component in them, something that has cultural value even today. Much of the opposition against them comes from a sensibility towards animal rights that is foreign to us and, why not say it, seems like Anglo-Saxon prejudice to a great extent. I’m unconvinced we should import this way of thinking about animals, sentimentalised and certainly divorced from the cycle of life and death on which we all, with or without our will, depend. It is the same way of thinking that recoils from considering the slaughtering of animals for food, or their presentation in recognisably animal forms, yet does not recoil from eating the same animals if they have been chopped and disguised so that they do not remind of a living being anymore. Given that, I prefer a conscious understanding that our life requires other living beings–animals, plants, fungi, bacteria–to die. At least, on this understanding respect and insight can grow when regarding that sacrifice. So I suppose my conclusion is that, being completely ignorant of what cultural value bullfighting has, I am, nonetheless, unsympathetic to similarly ignorant attempts to forbid it, on the basis of foreign and particularist values of dubious worth.

State of the holy war for commodified ideas: the Spanish front

2009-07-11, Saturday,

Quite often my attitude in regards the judiciary of Spain should be described as showing an intellectual debt to the school of Diogenes: cynicism is a common appropriate reaction to much of the state of “justice” in this Iberian kingdom. However, and why not say it, let this be precedent, there are times when the third power of the state does something that surprises me and delights me–I suppose an outcome of my low expectations.

In the US, the European Union, the WTO, and other national, supranational and international organisations, a holy war is being waged, which like all holy wars contains the appearance of an essential ideological clash, a veritable stand on principles, the regard for rights, and so on, while, underlying it all, there is cold hard cash. Of course this cold hard cash is a bit more nebulous and hypothetical than a note lying on a wallet or some coins plunked down on a table, but capitalism has over time shown its ability to securitize and build over the most abstract and symbolic manifestations of wealth or the mere potential for wealth. I speak here of wealth in an ordinary sense, which is to say, in terms of exchange value. There are entire international bureaucracies–WIPO springs to mind–attempting to ensure that these dreams and hopes get cashed into concrete, current legal tender.

On the one hand, we have the knights of “intellectual property”, who tend to think of themselves as rights-holders, content owners, and, when issuing PR material, content creators, much of a fiction as this may be. On the other hand, the arrayed armed forces of copying: within this side, which is not always quite as unified as the other, different ranks and forces mingle with a common cause. The knights of consumer electronics, the armoured brigades of the computer hardware industries, and a daring yeomanry–longbow in hand–of pirates. Needless to say, although the material support of knights and armour is a necessary condition for this side to continue the struggle, it is the yeomans that have changed the balance of the war, making people on the other side incredibly nervous, and, why not say it, making their own allies wonder: will this one day happen to us?

In this,as in many occasions, it is necessary to take sides, but we must do so with no illusions. It’s not that makers of consumer electronics and computer hardware are our friends, it is simply that this part of capital has revolutionised the sphere of distribution, undercutting other sectors. As to people who wonder whether we should support copying, I remind them that the word copy comes from the Latin copia, a word that means abundance. If anyone asks why we shouldn’t support copying, ask them why we shouldn’t support abundance: in this case it is not a mere rhetorical trick, the etymology contains an important truth.

This phase of the confrontation involves what amounts to acts of desperation from the side of intellectual monopolies. Having observed that their property does not ground itself in the objective conditions of production and distribution as they have come to evolve over time, their only out is to engage in the other way to establish monopolies: demand state protection and legislated privilege. As Eben moglen–an exceedingly shrewd legal mind and political thinker–has said:

The technology of the late 20th century reversed the conditions of power that made it. This is not the first time that that system of social production called capitalism has had that effect. When I wrote a little thing called “The dotCommunist Manifesto” some while ago, I was doing it in order to show that a form of social analysis characteristic of those searching for freedom in the 19th century might bear some recognition in the 21st. Not as a matter of normative political analysis but as a comment on the actualities of the day. The struggle of bourgeois technology towards ever greater functioning such that it undermines its own conditions of existence was an observation made by shrewd onlookers a hundred and fourty years ago, and we live in the fulfillment of its truth. Ownership struggled to reduce its costs, to hold down the costs of making the commodity, in order to free itself to greater profit. And in the end, as was so shrewdly noted in the 1860s: “All that was solid melted into air, and air was something that we all knew we could freely breathe.” … And so we found ourselves confronting a system of power based upon ideas of property relations that the technology of the owners was already making obsolete. It is not possible for industrial organizations to do a better job of distributing music than 12 year-olds can do. Hence the world in which the music industry confronts the children on the barricades, attempts to jail them, fine them, control them, and loses. The same is true for all the other forms of art given to us by the 20th century and being freed by the very technology that the controllers of artists hoped would control art even further. This, like the adoption of movable type printing at the end of the 15th century, constitutes a moment at which the powers of control have adopted technology which transforms their conditions of existence, will they, nil they. They do not will it but it happens to them anyway. And the technology that they have freed, like the sorcerer’s apprentice, finds itself overwhelmed by its own implications.

The problem with these manoeuvres is that at this stage of the development of capital it is difficult to square such privileges with the necessary ideology of free agency and decisions by the market. However, in order to override these ideological considerations, our enemies have something that has always worked pretty well in that regard: lots of money.

So what has come to pass over the last 15 years or so is a progressive tightening of copyright law–patents are beyond the scope of this essay. The fundamental commonalities involved are the progressive decrease in the use of defences such as fair use or fair dealing, the weakening of the doctrine of first sale through provisions of contract law analogical to renting, and the attempt to privatise the whole matter of contract and licences through the mechanism of drm–digital restrictions management.

DRM is the dream of every capitalist, a sort of equivalent of the economic perpetual motion machine: zero marginal production costs–digital copies are essentially free–yet the eternal opportunity to monetise those goods and a monopoly of their production. I say eternal mindfully, given that although copyright expires, DRM emphatically does not. So think of DRM as the great swindle, selling people the air they breathe. The fundamental problem of DRM is that, as it is the case with all perpetual motion machines, it happens to be impossible. Of course, what happens when a perpetual motion machine is impossible is that all serious research moves away from making them, but a good number of swindlers and con men try to sell the appearance of the miracle. This is a strange curlicue in the story, because software companies, the ones best positioned to know that DRM is a pipe dream, are the ones trying to sell this magic to the other “creative” industries, and doing an admirable hope of confusion. Again, if you can’t get a perpetual motion machine, a good substitute is a machine with very little friction which bystanders are obliged by law to push whenever it runs out of energy: this is the physical equivalent of the anticircumvention provisions instituted in modern copyright statutes, such as the DMCA, EUCD and transposing laws, etc.

In most jurisdictions, there have been significant successes in fighting the spread of copying. People who shared a handful of songs have been fined unspeakable amounts of money, people selling CDs in the streets have been jailed, and so on. Even in Sweden, home of the Pirate Bay, the legal terrain of the battle appears to be strongly on the side of the enemies of abundance. However, and for now, Spain resists this tendency, not, in the main, thanks to its legislators, as fascinated by shiny objects as any, nor its executive power, neither better nor worse than most social democracies, but, weird as this may be, by the consistent and persistent response of its judiciary.

The fundamental distinctive factor in Spain in terms of legislative content is the right–contained in law–of private copying without profit motive. Contrary to many instances of the concept of profit motive in Spanish law, this is being integrated and interpreted in a mercantile sense: profit motive is understood as the intention to resell to seek surplus value. In other instances, profit motive is integrated and interpreted much more broadly, for instance when speaking of theft, in any utility derived from the act, whether the increase of the assets or the reduction of the liabilities, or even not having to realize a purchase. From this standpoint, though, private copying without profit motive would be entirely useless. When it comes down to it, even a backup has profit in the penal sense of the word–not the mercantile sense. So the Spanish judiciary have, probably on application of the doctrine of useful effect, utilized this narrower meaning of profit when reading the laws. This is why they have stated, several times, that copying content subject to author’s rights when done by individuals for private use and without any commercial intent is legal.

This has enraged the music and film factories, to the point that they have called Spain bad names–bad names that many, including myself, take pride on. What’s so wrong with being a land of pirates anyway, once you have defined piracy as any opposition to the outdated and moribund monopoly over copying which primary use is the increase of capital gains? They have tried to introduce their so-called three strikes legislation, without any success. They have tried to introduce throttling and filtering provisions in the laws, with identical results. they have, in desperation, tried to weaken Spain’s excellent protections of privacy. At last, they have tried to take to court those people they could identify as linking–giving sign posts, essentially–to their content. All for naught. The men and women in black have given them no ear, have sent their pretentions to Sheol. so we can celebrate this front in our global battle: while our justice remains at all justice, no pasarán! Fiat iustitia, ruat coelum!

On bribery

2009-07-09, Thursday,

Recently the president of one of the Spanish autonomous communities–essentially regions–has been indicted on a count of what we could call, trying to be precise, a form of improper bribing. The story has its amusing details, given how the person in question has been denying having anything to do with the people who allegedly bribed him, then went onto denying having received gifts. Now that the indictment has been processed, and given he belongs to the partido popular–essentially a right-wing coalition of conservatives and neoliberals–the segment of the media who has supported the PP and will do so to the end has started changing tack. Since the evidence seems to be undeniable, and the calls from the president–by name Francisco Camps, incidentally–to wait yet a bit more for the next procedural step so that his innocence would at last be demonstrated beyond all doubt seem not to be believable anymore even by the base of the party, something new has had to be concocted, lest someone may get the completely incorrect idea that there was some sort of wrongdoing going on.

On this line there have been a handful of competing strategies, floated more or less simultaneously, while the relevant advisers do the necessary market research: On the one hand, the everyone does it strategy, which is not likely to function too well to mobilise a people tired of the same dirty politics, and may actually work against the PP, which has tried to create an image of being the exception, the only clean player in a pigsty; on the other hand, the everyone does it worse strategy, inaugurated by PP-friendly media, which may have a chance to fly if not for the fact that it has not been possible to point at worse in recent history, notwithstanding certain probably baseless allegations about subsidies in Andalucía which have not given rise to any indictments, and is actually undermined by the examples given by such PP notables as Rita Barberá, comparing the reception of gifts from private enterprises that got public contracts with the institutional gifts–canns of anchovies–bestowed by the president of Cantabria; but surely the boldest, and apparently the chosen strategy, is one we could baptise as it wasn’t wrong and the law should be changed accordingly strategy.

This assertion that receiving gifts as a public servant is normal, and not only is but should be, flies against a lot of the rhetoric that has been coming from the PP in recent years, as well as being clearly self-interested, and contrary to the stance of a party that claims to support, alone and surrounded by knaves, the elusive rule of law: the suggestion that the Penal Code should be changed right after one of their first swords got speared by it, is so obviously partial and disingenuous that I must confess a certain admiration for the boldness and shamelessness of the gesture.

The article involved is article 426 of the Penal Code, which reads thus:

The authority or public functionary that shall accept a gift or present that would be offered in consideration to their function or in order to obtain an action that is not forbidden by law, shall incur the penalty of a fine of 3 to 6 months.

It is possible to claim that this article is excessively rigorous with public servants, and that it should be relaxed. It is possible to claim that it should only be applied in cases in which the magnitude, or the involvement of the giver with the public functionary in question, are sufficient to justify the play of penal law. What’s not reasonable, nor credible, is that such an article should be derogated from the code.

There are other articles in the code which refer to bribes in the context of quid pro quo: a gift in exchange for an illegal act, a gift in exchange for an unjust act, a gift in exchange for an act that is due and must be done by the functionary, and a gift that is given in exchange for the omission of an act that is legally due by the functionary. These 4 instances of bribery are clearly graver than that typified by article 426. Is the bribery of article 426 so minor that it should be ignored by the law, as the PP apologists wish us to believe? Well, put simply, no.

The fundamental reason why article 426 exists and should exist–and I would like to bring your attention to the fact that although PP reformed the Penal Code several times it never decided to change or anull article 426–is because this type of crime is by necessity committed by people who know reasonably well what they are doing, have means to hide it, and advisers to help them do so. It is therefore extremely difficult to prove one of the more qualified types: who in their right mind would leave incriminating written records of the promises made for which gifts were offered? This is the reason why this article should continue to be applied: it would be otherwise all too easy to hide the other types under the legal hole left by its anullment. In addition, let’s be real here: why would public functionaries receive gifts from those who contract with the state in consideration of their function? Seriously, if not anything else a case must be made that such gifts distort the unconscious impressions of the functionary and will lead them to award contracts under preferential conditions, but we don’t need to be so subtle to believe that when a profit-seeking agent gives something to a public functionary they are expecting something in return.

It may never be possible to prove that Camps was the author of one of the qualified types of bribery, although the business which allegedly bought him the gifts has been involved in exceedingly irregular actions with other public functionaries–what a coincidence, from the PP also. This in itself would, in my mind, create a pretty strong presumption. However, Camps’ innocence, as everyone else’s, is presumed in law, and it is the prosecution’s job to destroy this presumption at trial if the evidence exists and can be obtained. What’s not at all credible, on the light of already existing evidence, is to hold that Camps had nothing to do with this, that he paid for the gifts, that he didn’t know these people–a conversation has been recorded in which he told the generous patron something to the effect of “my friend, I love you to bits”–and similar lines of bullshit that are being peddled by the rightwing press.


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