Intellect or Insanity

Written with Adv. Effi Fuks, LL.B. for the International conference on Online Dispute Resolution taking place at Haifa University today.

Abstract: The Israeli Legal system suffers from great burden and lengthy processes. While initiatives try to narrow the Israeli supreme court’s authority and open new courts, the Israeli courts have tried to implement a”paperless court” solutions but have yet to succeed in implementing its solutions in the legal community. This Paper presents the problems facing today’s legal community and its digital divide, while inspecting the ability and incentives in moving to a paperless solution.

Our solution to the problem, using the current legislation and based partially on the current unpopular and costly arbitration process, shall include implementing an Internet based arbitration mechanism. this mechanism might bridge the digital divide and allow parties to inspect prior decisions and experience of arbitrators,  thus opening the process for public inspection and allowing precedent-based decisions while allowing all parties access to relevant decisions and documents, it may lower negotiation costs and shorten the legal process dramatically. Based on an open source platform, we enable institutions to install, adapt and modify the solution and to conduct hearings, processes and arbitration.

persons will be able to overview the legal proceeding and inquire witnesses via existing technologies and at minimal costs, while keeping a video archive of witness questioning and a written archive of affidavits to allow litigants future use of the archive in writing their closing arguments. The system itself shall be configured to allow quick dispute resolution when there is no or little dispute, while relying on documents only (similar to the procedural fast-track).

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Bibliography

Engert, A., Norms, Rationality, and Communication: A Reputation Theory of Social Norms, 2002, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=323020

Guadamuz, A., eBay Law: The Legal Implications of the C2C Electronic Commerce Model, 2003, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=569102

Katsh, E., Online Dispute Resolution: The Next Phase, 2002, http://www.lex-electronica.org/docs/articles_140.htm

Reports:
Israeli Bar Association, Satisfaction survey on Net-Courts, 2008, http://www.israelbar.org.il/UpLoadFiles/net_hamishpat_survey_of_satisfaction_june_2008.pdf

Israeli Court System: Half-Yearly Report for 01.07.2008 - 31.12.2008, http://elyon1.court.gov.il/heb/haba/7-12_2008.pdf

Solciano-Kenan, R., Reichman, A. & Vigoda-Gadot, E., The Burden on Legal Systems : Comparative Analysis of 17 Countries, available on the Israeli Court webite, http://elyon1.court.gov.il/heb/haba/Courts_burden_Final_report_5.07.pdf

Shtrassberg-Cohen, T., Special Report: Mid 2008, http://www.justice.gov.il/NR/rdonlyres/3F953362-234F-4597-9F58-00519527690C/11474/final.pdf

Shtrassberg-Cohen, T., 2006 Report, http://www.justice.gov.il/NR/rdonlyres/73417BCA-947E-4524-B9A0-CB54BCF5E716/7882/1100.pdf

Press:
Fogel, R., Ness,  IBM and Taldor will pay for the hassle in courts, http://it.themarker.com/tmit/article/2962

Leibowitz-Dar, S., Quick, Expensive and Elegant Ruling, Haaretz, 10.09.2003, http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=338851

Magen, H., They will eat flies, Globes, 29.09.2003, http://www.globes.co.il/news/home.aspx?fid=2&did=727824&nagish=1

Raz, H., Courts are privatized: a new company will provide court services for people interested in legal fast tracks, TheMarker, 23.01.2008, http://law.themarker.com/tmc/article.jhtml?ElementId=skira20080123_58733&layer=hp&layer2=&layer3=law

Roeh, A., Sharon’s Trial against Ha’aretz: No Settlement, the appeal will be heard, Ynet, 02.05.2001, http://www.ynet.co.il/articles/1,7340,L-711988,00.html

Sharvit, N., The Israeli Bar Association: We’ll recommend not to use Net-Courts, Globes, 30.06.2008, http://www.globes.co.il/news/home.aspx?fid=829&did=1000356820

Yoaz, Y., The Computerisation of Courts will begin in November, It will allow filing of claims and appeals over the web, Haaretz, 12.07.2005, http://www.haaretz.co.il/hasite/pages/ShArt.jhtml?itemNo=598945

0.
What is worse, Piracy or Plagiarism? The new media usually suffers from both, where downloading games causes grave harm for game developers, causing not only loss of sales, but also crashing servers. Plagiarism, on the other hand, boosts creativity and creates, based on the same new ideas, innovation and marvel. In this short lecture, which will be brought today at Emily Lutzker’s New Media Colloquium (if you read this and want to come, msg me) .

1.
So first we have to define copyright in order to discuss it. The 1709 Statute of Anne was the begining of modern copyright law. The statute of Anne, wishing to encourage creativity, granted original authors a period of 21 years in which they will have a monopoly on printing their books. Afterwards, they will still own their work, but the collective will have the right to reproduce it, create additional changes or sell it to other people; after 21 years, works would convey themselves into the Public Domain. Why was the Statute of Anne so important? Wasn’t there any plagiarism before 1709? Well, the invention of the printing press assisted in making infringing copies and artists addressed their concern with the legislator, which in return allowed them to exercise a monopoly. Approximately until the 1970s, there was no social problem with copyright, as the purchase of a book, movie or sound recording was strictly bound to the physical media it was sold on. When the home video recorders came, a slight problem occurred (f.e Sony v. Universal), however, users needed to both have the TV receiver and purchase a video-cassette in order to record. The double-cassette tape created similar problems; but still, a connection between the physical media and the intellectual media was consistent. And then came the PC, that enabled home copying of protected works in masses, and without connection to the ownership of physical media. This is where we begin our journey, of Plagiarism in a virtual state.

2.
Plagiarism has always existed, from West Side Story copying from Shakespeare’s Romeo and Juliet, to the adaptation of Thomas More’s Utopia being partiality influential on George Orwell’s Nineteen Eighty Four. Plagiarism existed in folk tales, where stories were adapted and amended and in children’s tales, such as the Brothers Grimm’s tales were adapted by Disney, either as direct copies (Snow White) or as Fantasia, where Disney used popular music in their work. When we discuss Disney, most of it is purely public domain works, so the plagiarism is legal, but there were other accusations of not-so-legal copyright violations.

2.1
The problem of plagiarism is a moral problem, mostly, and not a legal problem: a person claiming credit over another person’s creation. Taking away the original credit detaches an author from his mental link to his work and allows the new Author to gain credit and prestige based on another person’s work. Plagiarism, more than any other characteristic, is fraudulent. However, as a society, we would like to see it when it adds new value; for example, cameo roles in movies such as Gene Hackman’s apperance in Enemy of the State, while slightly plagiarises his role in The Conversation, was still an amazing gesture to the 1970s movies. When Damien Rice covers Prince’s When Doves Cry and adds a flavour of Led Zeppelin’s Babe I’m Gonna Leave You, it’s a desired activity, not something we wish to exclude from the world. So where do we draw the line? Is credit sufficient?

3.
[Partially taken from the Hebrew Post] In general, the law and the court’s ruling state that You cannot grant copyright on a game’s rules or it’s concept, just on the physical expression of such game (Frank Morrissey v. Procter & Gamble) The physical and visual aspects of the game (Clause 5 to The Israeli Copyright Act) is what is deemed adequate for defence. Both Israeli and US courts awarded protection from a substantial copying that was more than inspiration (Atari v. North American Philips, 672 F.2d 607). In a recent case, where an Indian company created a game similar to Scrabble, the Indian court ruled that while one can protect the trade-name of Scrabble, the rules of the game were uncopyrightable (Mattel, Inc. v. Agarwalla):

“In the realm of copyright law the doctrine of merger postulates that were the idea and expression are inextricably connected, it would not possible to distinguish between two. In other words, the expression should be such that it is the idea, and vice-versa, resulting in an inseparable “merger” of the two. Applying this doctrine courts have refused to protect (through copyright) the expression of an idea, which can be expressed only in a very limited manner, because doing so would confer monopoly on the ides itself. ”

The Israeli supreme court recently ruled on the matter (CA 9678/05 Betimu v. ARRABON -HK- limited) and paved the king’s road to copyright protection on an Idea. This matter began in the district court of Haifa, where the supreme court accepted most of the district court’s ruling (C 399/04 Limited. ARRABON HK v. Betinu). In this case, the defendants designed and imported a game similar to the plaintiff’s board game, which included a printed circuit board and game cards. The games were so similar, that one game’s cards worked with the other’s printed circuit board.

The (district) court asserted that the claim for copyright infringement is substantial similarity between the two works. “If there’s a substantial similarity, which is not reasonably coincidental, than the plaintiff’s copyright was breached”. In the court’s eyes, a cosmetic difference is insufficient, but there must be a material difference between the games. (In a  recent case, of C 2469/02 Hasbro v. Li-Dan, the court had similar findings, with only a slight difference which is irrelevant here).

3.1
Plagiarism in computer games is almost as old as computer games themselves. Space Quest III included an arcade game called Astro Chicken which was similar to Atari’s Lunar Lander (and quite a lot of other examples). However, most of the computer games included such Games within Games as a homage or pastiche, and not as the main profit point of their game. When building on another person’s idea in order to generate profit, then the problem arrives.

3.2
A great legal example was the case of Williams v. Artic. Williams sold arcade games during the late 1970s, one of these games was called Defender. “In the DEFENDER game, there are symbols of a spaceship and aliens who do battle with symbols of human figures. The player operates the flight of and weapons on the spaceship, and has the mission of preventing invading aliens from kidnapping the humans from a ground plane“. Artic was also a distributor of arcade games, it “developed” Defense Command which was virtually similar to Defender, “The result is a circuit board “kit” which is sold by Artic to others and which, when connected to a cathode ray tube, produces audiovisual effects and a game almost identical to the Williams DEFENDER game including both the attract mode and the play mode. The play mode and actual play of Artic’s game, entitled “DEFENSE COMMAND”, is virtually identical to that of the Williams game, i.e., the characters displayed on the cathode ray tube including the player’s spaceship are identical in shape, size, color, manner of movement and interaction with other symbols“. Williams sought damages and an injunction from Artic, and the court asserted that Artic copied the game (in that case, it was an actual copying of material parts in the software’s ROM) and ruled in favour of Williams: “The result is a circuit board “kit” which is sold by Artic to others and which, when connected to a cathode ray tube, produces audiovisual effects and a game almost identical to the Williams DEFENDER game including both the attract mode and the play mode. The play mode and actual play of Artic’s game, entitled “DEFENSE COMMAND”, is virtually identical to that of the Williams game, i.e., the characters displayed on the cathode ray tube including the player’s spaceship are identical in shape, size, color, manner of movement and interaction with other symbols”

4.
But where does the line draw, what if there’s no exact copy, but only major inspiration. Here our case study comes to force: this is the story of Limbo of the Lost. Limbo of the Lost was a video game developed since the 1990s by three friends (at least according to their claims), which takes  place in the Bermuda Triangle; once out to the shops, many critics discovered disturbing similarities between the game and other games. Copying directly from games such as Elder Scrolls: Oblivion and several other games. While a statement claiming that the developers of  Oblivion are  intending to sue the developers of Limbo was made. There was no actual lawsuit. The game went back to the wastebasket of the Internet and was doomed forever.

5.
The question of plagiarism and its morality is both a fair use question and a profit centre question. If we want to pay a tribute to a certain work, game or person in one of our works (for example, pay tribute to Pulp Fiction’s Marsellus Wallace as a character in our computer game) we have to ask ourselves is he the main issue here. If we just copy, without adding new features and new value, then it’s surely wrong.

Sometimes, we prefer to lose our privacy in exchange for comfort; we do so when we store our contacts on a cellular phone or when we print business cards which we exchange with strangers; the social interaction itself is a difficult and dangerous transaction. However, the real danger lies where privacy and comfort decide to interact, in involuntary exchange of information.

Today’s, Techonomy, a conference about the interaction between technology and economy, was held in Tel-Aviv. The winners of the Start-up competition were face.com. face.com provides a face recognition platform for social networks (in the meantime) which locates images of you and your friends in other users’ tagged photos. face.com’s face recognition is quite amazing and has the ability to find you even when you’re in the background or wearing sunglasses. They are currently in closed alpha, and I had the pleasure to play with it for a few minutes before writing this blogpost (which was sufficient to know that it’s quite efficient).

However, my main concern comes from face.com’s database. face.com can recognise faces of your facebook contacts even though they are not in your albums, but in friends’ albums. This means that by cross indexing a relatively small amount of facebook connectors, face could retain (or store) the facial recognition of a high percentage of users.

Here comes the privacy issue from the privacy freak; however. Now, take Israel’s new attempt to establish a biometric and face database and their recent attempts for installing cctvs and imagine the hypothetical scenario where our benevolent dictator comes and asks face.com’s database in order to examine a suspect in terrorism or issues a warrant to require face.com to search for a specific missing/suspected person in social networks and/or cctvs. Can face.com actually refuse such generous offer?

When face.com only indexes my own photos, and only tags me if I gave my consent (and not opted out) then it’s all yet consensual waiver of privacy; privacy in exchange for comfort, what we usually do. However, when it’s other’s faces, without their consent or knowledge, such a database might be extremely dangerous. I’d love to inspect the guts of face.com’s database and see how can they protect users’ privacy without limiting this application, but if they manage to do that, well, let them sell it to our government

Next week I’ll be giving a lecture at the GarageGeeks HQ with Joi Ito, Nimrod Kozlovsky and  Yoni Har-Carmel about Creative Commons Licenses and their use in business; Unlike open source licenses, that power the engine behind the software, CC licenses govern the relationship of the content inside these applications. Though some projects I worked with have decided to use CC as a licensing method for their code (FireStats, for example, but that’s great if there’s not binary and only source, like in other webapps and php) in order to govern the non-commercial use of the app, CC licenses are more common in user generated content. Now, after we’ve all been acquainted with Creative Commons Licenses, we have to understand the three uses of CC in our business: (i) License our own code/work under a CC license, (ii) Use licensed content in order to gain capital and (iii) allow our users to license their content, remix it and share.

1. Content in a  UGC world: The first question is how do Businesses and Startups use CCed content? since hi-tech companies and start-ups mostly depend on their technological solutions, CCed content is not the core engine of their work; Other businesses, such as design studios and magazines may use CCed content; but your code base is not CC-dependant. However, as technology tends to explain, the biggest businesses are actually content based, where technology acts as an enabler for social conversations and transactions. For example, Facebook’s framework is just a framework. Facebook’s success is based mostly on user applications (even though those are coded on ice). When users post content to Facebook, they grant Facebook a perpetual, non-revocable, galaxy-wide, license [and the problems with that] to do whatever Facebook deems right with their content. However, they do not grant other facebook users these same rights. If, for example, I want to use a picture a friend took as my Facebook profile picture; I can do so, but I’m not sure whether I’m allowed to. While Facebook lets me crop my picture, and while I can post, I don’t know whether I can save this photo and upload it to Bebo. But wait, this is my picture, right? The more interesting story is can I actually publish other people’s status lines as a book.

2. What is the Company’s main asset: Here comes the CC License to force. By providing users the ability to allow other users to play with his content, users are more engaged with the content and the website itself. For example, Trent Reznor released Nine Inch Nails latest album under a CC license and gave users the option to create their own remixes of the tracks, users became more engaged with the brand. Nine Inch Nails’ album, Ghosts, album became a bestseller even though it was not considered popular music . Reznor understood that giving away his content does not mean that he will have less, but actually more.

3. Can CC help create a community (Web 2.0) or allow users to make more uses of our content. But let’s get back to Facebook; as Facebook is different from Myspace or Blogspot; it doesn’t encourage content creation, just sharing of content made by others. What can a website like Facebook earn here? (and there’s no coincidence that unlike Myspace, Blogspot or Flickr, you can’t cc your content on Facebook) But what if a user wants to allow others to use his content? Here comes a completely different problem: Could your status line be copyrighted? [Hebrew Post]. Let’s stay in the photos application, though. Would Facebook actually benefit from people linking back to a Facebook page with the original photo? would it benefit as being considered as the biggest galaxy-wide imagebank?

4. Do we license our content, or just allow other users to license their? Another problem that businesses face is whether what they do is allow their users to license user-generated-content or license their own content. If I’m a business engaged in selling content, I wouldn’t want to freely license it, but if I’m a content delivery platform, or an engine who simply acts as a facilitator of images and videos, then licensing the content may be a good solution. If I’m a website providing news stories, do I gain any advantage if others may use my stories? People claiming that providing the content for free will kill the content providers fail to see how mainstream TV still operates and profits from commercials, on-line newspapers generate traffic and display ads, and the media industry flourishes. Moreover, both the BBC and Al-Jazeera released parts of their content under CC Licenses. Al-Jazeera did it as a political statement to allow Gaza residents to report and bring their information to the public knowledge, but was it bad for business? However, you can see that even though Al-Jazeera released their content with a CC license, the interest in Al-Jazeera after the Gaza war just grew to a higher level than before the war and that every release of NIN albums generates interest, even though it’s not revenues.

5. The NC problem: It certainly may be that Creative Common’s most grave problem and original sin is the creation of the non-commercial license. A license that specifically allows only “Non-Commercial” use; defining it as  “any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation”. Creative Commons actually issued a research about the users’ definition of what is commercial, but no one can actually point out where the line draws. But what is Non-Commercial? You may find different approaches and different solutions, however, it’s quite certain that no business may rely on a non-commercial license in order to build a stable business model.  What may be and may not be a solid business model if you want to use licensed content, may actually assist in the establishment of a solid model if you want to license your own content. For example, if i operate a successful blog or news site (like BoingBoing), I can license my content under a CC license and let other bloggers share my content, but not mainstream media. If I’m a music artists (ahem, Trent Reznor), I can license my content to my fans without worring that a record label will sell my album and avoid paying me royalties. So Actually, while the CC license does need clarification, it is a good license if you want to allow other to use, but not compete with you.

6. So is CC good for business? it depends what your business is. If your business is selling content, you might want to consider it, if you’re a platform enabling users to exchange information, you might want them to take that information elsewhere.

Amazon’s Kindle was a big copyright fuss; Kindle was an electronic book reading apparatus which enabled users to read books, including reading them aloud via a text-to-speech mechanism. However, after a few press releases and maybe legal threats from the book publishers, Amazon forfeited and removed the text-to-speech, and announced that only authors that will specifically request it may be read aloud by Kindle.

However, Neil Gaiman’s hypothesis in favour of Amazon was actually fascinating. The Argument began when Roy Blount Jr. stated that The AudioBook were actually being replaced by elegant text-to-speech alogrithms. He explained that the advanced speech abilities today actually harm their ability to make the fiscal benefit from the added value. However, Gaimen ansewerd him by sending his readers to listen to a real audiobook and explaining that “[N]ow imagine a world in which someone sits with a novel on the screen and carefully codes every character and tone of voice, every emotion. Imagine the time involved, and the effort involved in making something that, no matter how good it ever gets, will not be as good as a person reading it. This isn’t teaching a computer to play chess”.

Gaiman’s text, unfortunately, misses the truth and reminds me of Prof. Jefferson Lister’s oratation criticising Alan Turing’s concept of Artificial Intelligence. Lister (quoted here) said that : “‘Not until a machine can write a sonnet or compose a concerto because of thoughts and emotions felt, and not by the chance fall of symbols, could we agree that machine equals brain — that is, not only write it but know that it had written it. No mechanism could feel (and not merely signal, an easy contrivance) pleasure at its successes, grief when its valves fuse, be warmed by flattery, be made miserable by its mistakes, be charmed by sex, be angry or depressed when it cannot get what it wants”

Lister and Gaiman’s err is reasonable, and it’s using simple induction assuming that the existing technology cannot develop anyway but linear and that computing abilities to analyse text will never be good enough. But what if it will? what will happen after technology will progress well enough to read sonnets in a real manner and we shall teach it to know pain and write such sonnets when it’s valves  fuse? shall Gaiman still support the technology or will it forfeit?

Could technological measures designed to ease real life be illegal? When we discuss technology as a person’s long arm, we imagine a loom which replaced Ned Lud and the Luddites, we imagine wheelchairs that assist the cripple and we imagine how the computer replaced typewriters to optimize the process of writing.

But rare are the times we imagine software as a  technology and differ between software and a person. Glider’s case in question which was brought to the  District Court of Arizona is a great example for this question. (CV-06-2555-PHX-DGC MDY Industries LLC v. Blizzard Entertainment Inc) (via Envy Gaming).

Glider is software that allows World of Warcraft players to play the game when they are not online. While the player is not next to a computer, the software performs routine operations to harvest gold or other experience points that he also can convert to real money later. The action itself is called the Gold Farming and is often performed in sweatshops where dozens of Chinese players sit in order to later sell the gold to the highest bidder.

Glider, believe it or not, abolishes Chinese slavery and allows players to build a virtual sweatshop.

Blizzard disliked Glider’s existence and sought technological means to block it. After it was unable to block Glider technologically, Blizard threatened legal proceedings*, MDY tried to file first sought the Arizona Courts. Blizzard later sought an injunction to preven t Glider’s release under open source, which could cause that inability to enforce the injunction for distribution.

* This, at least, using the court’s language, though legal proceedings can not be threatened, but only warned against.
IMG CC-BY-SA-NC Kevan Emmott

The Court discusses at length the question of whether Glider circumvents World of Warcraft’s protection, because if so, then Glider violates the  DMCA provisions that prohibit circumvention of copyright protection.After carefully inspecting the evidence, the Court makes it clear that Warcraft’s copyprotection, and particularly Warden, are being circumvented by Glider, so there is an interference with the software’s copy protection. The Court issues an injunction against Glider, preventing the distribution of software.

[The decision itself, in relation to the DMCA, it is with high importance and requires in-depth reading, especially for software developers who want to learn about what is allowed and what isn't during the development of software interfacing with other software without consent.]

However, the highly theoretical question was: What would have happened if instead of developing software, Glider provided hardware components that would connect to USB keyboard and issue commands by watching the computer screen? The Mechanical Chinaman [based on the Mechanical Turk] who operate for him; would this violate the DMCA provisions or not?Since this isn’t a software interfacing with a software, it is hard to imagine how a Court would decide that merely replacing a human with a machine violates the provisions of the DMCA.

In a similar Court Decision (07-1480-cv (L) Cartoon Network v. Cablevision), the Court recognized technology as a person’s long arm. The Court acknowledged DVR remote recordings and said that merely storing copyrighted videos for a person doeos not infringe on other’s copyright: The Court acknowledged a person’s ability to use the technology hands long and asserted that:

“In the case of a VCR, it seems clear–and we know of no case holding otherwise–that the operator of the VCR, the person who actually presses the button to make the recording, supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine.  We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.”

And if a software merely records a set of actions or shortens processes, would it be deemed as illegal? Imagine a Court Order ruling that the GarageGeeks‘ Guitar Heronoid, is illegal. The Heronoid is a robot they assembled to play Guitar Hero, a game developed by Activision. Activision, by the way is a company that merged with Blizzard, the company which developed World of Warcraft.

Indeed, it would be ironic to see any difference between a robot and completely different software that assists players to receive any financial gain. If anyone has a problem with Glider, is probably a small Chinese gold farmer employed under a sweatshop in threat of his job security.

0.
[Preamble: During the last week, the Israeli Hebrew blogosphere has been babbling for and against the war. Though Shooky has been able to find around 80 bloggers against the war, the vast majority is for it, and keeps blogging about it both in Hebrew and English.] 2009 marks the end of ‘freedom of expression in Israel’ as it contains neither Freedom nor Expression; judging by the rising racism in Israel, all we needed was a military operation in order to show how Israel’s state is close to Nazi Germany in 1938. Well, Nazi Germani didn’t have internet access so the Hilterjugend couldn’t join Facebook groups like annihilate German Jews and all other Jews” or “The movement to abolish Jewish employees from the Berlin Gas Station” and maybe even “until when will these Jews hang around the German girls?“. Indeed, harsh pictures for the Facebook users. Some might say it’s the dreamy right, or that it comes under freedom of expression, but in a decade, when the history books will be written on how Israel became a lovely dictatorship, these cases will be documented.

1.
But it’s not only these cases, but the gagging of the left’s protest. It makes no difference whether it’s Boaz Toporovsky, Israel’s student union chair, who claims that the left’s protest should be excommunicated or The Israeli Police that prevents activists from demonstrating by claiming that it fears retaliation froom mobs (similar to Itamar Ben-Gvir’s claim against the Gay-Pride parade). But it’s not only the police’s perception and a bunch of extremists like Toporovsky, a major part or the public that participated in an online survey claims that the Israeli Arabs [and left] have no right to protest against the war, as it harms the war effort:

2.
My mistaken but instinctive claim is that Israeli Citizens deserve the undemocratic reign, they deserve the ongoing destruction of human rights and freedom of expression, crumbling of the state’s apparatus and destruction of democracy. Thinking like this would mean surrender; but not thinking like that would mean that I’m as missionary as the pro-war propaganda: I’m trying to convince the unconvinced to certain gnosis. I’ll lose anyway just by playing the game, as they are not interested in real democracy. Israel’s citizens wish for an enlightened and benevolent dictatorship and are willing to go all the way with it.

3.
Even more, can anyone actually demonstrate to “support our troops“? IDF is a part of the state’s apparatus and it is an executional force and not a political one. One cannot force policy on the state’s army and no one can force the army simply by demonstrating for it. The army needs to conduct unpopular acts, as long as they are done in an authoritative manner by the authorised legal entity.

4.
My opinion costs me quite a lot of time, effort and peace of mind. Most of my friends already criticised my acts and flooded me in invitations to support the Israeli “Hasbara” for the war (Hasbara is, if you didn’t know, a sort of propaganda and spokesmanship); when I tell them I oppose the war I get attacked: How can I opposed? my opinion is illegitimate and I’m excommunicated. So here: I am against bombing Sderot and I don’t think that Israel’s military action will help. If that’s not a legitimate opinion, you’re more than welcome to propose laws that will stop me from thinking in that manner.

5.
The war has been going on for a week, the Qasams are still here and we already have casualties, anyone else thinks that this is a wasted war?

[originally in Hebrew]

0.
Never rely on a machine and never trust it: The Israeli Labour Party’s primary elections were cancelled due to malfunctions in voting machines. The voting machines were mere PC computers linked together, allowing voters to vote for their candidates. One problem was that Benjamin Ben Eliezer (Fouad) was absent from the votes after he was thrown away from the promised 7th place only four days earlier. However, the failure in deciding to go on voting machines was a human error: Choosing a system that will obviously fail is wrong, and since we knew that this is about to happen, someone has to go home. It is not only The Simpsons’ parody, but also claims for failures in the recent US elections as well rigging the 2004 ones. But still, people want “Progress” and try to use technology where they can’t.

1.
The main issue with electronic voting is that there’s no paper trail of the actual vote (apart from the inherent way of breaching one’s privacy); in contrast of ballots in real votes, the computer just lists the time and the candidate you voted for.. A comprehensive article from Illinois Business Law Journal reviews these problems and explains why electronic voting systems are not fail-safe. These systems are subjected to hacking in a roughly easy manner, and without using complicated tools or technological know-how (and it’s always a good sign when the hacker is threatened by a lawsuit). The fact that these machines use proprietary code and not open source increases both the inherent risk of fraud and hacking, and since no one knows what they record, it’s always open for business.

2.
Moreover, along the years a few conspiracy theorists linked between political candidates and voting machine manufacturers. This also may be a problem, when they go malfunct and there’s no way to know what went wrong.

3.
The Israeli Ministry of Interior משרד הפנים מעוניין wants e-voting in Israel after all. Democracy, according to them, is only a small consideration when the costs are too hight. Of course, by looking at our electronic booths you can understand the means of security we implemented. This is a small PC that anyone can hack from a distance and inject with fraudulent votes, or just circumvent it (I was told it uses a cellular connection, which might not be encrypted).

4.
Our politicians got an extension, what are their skeletons?

[Originally in Hebrew]

[Again, most court decisions lead to Hebrew links, sorry, originally posted in Hebrew]
A Kentucky Court ordered, in a wrong and misunderstood decision, to forefeit one hundred and forty one domains which were somewhat involved in gambling into the hands of the State of Kentucky. In the decision, granted by the Kentucky Circuit Court, asserted that since the domains were accessible to Kentucky residents, they could be seen as operating illegal gambling in Kentucky (and therefore asserting jurisdiction) and they could be forfeited in order to stop the plague. (81-CI-1409 Commonwealth of the State of Kentucky v. 141 Internet Domain Names) (and see also the Carlton Case CR 90861/07 Michael Gary Carlton v. Israeli Police and Dr. Omer Tene’s explanation on Carlton)

In order to understand how essentially wrong is the decision, one must understand the forfeiture process (and the court dedicates a full chapter to this). Forfeiture is a semi-civil process where property involved in a crime is conveyed to the hands of the state as the property itself was a part of the criminal process. Forfeiture is not only penal, it is intended to grand a deterring force and prevent a person’s enjoyment of criminal profits. Moreover, the state cannot forfeit property if there’s no hard evidence (and sometimes beyond reasonable doubt) that a crime was made with the property. (CA 4496/04 Majahna v. State, CA 7155/01 Tzameret Billiard Clubs, ltd v. State).

After the court reviews the relevant decisions, it comes to a conclusion that, not only a domain is property per se (and some lawyers claim differently) (see also
how a domain could be foreclosed in Israel, decent disclosure: I wrote some of the court request for Adv. Idan Lamdan). But the court also asserted that the property is no less a part of the crime committed.

This is where my criticism starts to come to action. First, the Defendants and due process; please note the parties’ identity in the court decision, they are one hundred and forty one domains (and not domain owners). As you’ll never see a forfeiture case titled “The State of Israel v. a money pack left by a homeless drug dealer”, you can see the problem here. Therefore, conducting a process against a domain owner (with or without his knowledge) where he is not a party to the discussion cannot be deemed as due process. There’s a similarity between this case and the Israeli Supreme court when Prime Minister Yitzhak Rabin deported 415 prisoners to Lebanon without granting them the right to be heard (audi alteram partem); then, the court gave a unanimous, unsigned decision in a funny manner (HCJ 5973/92 Israeli Civil Rights Assoc. v. Minister of Defense)

Second, it is unclear whether any crimes were actually committed (and compare the “Making Available” reasoning in the Jamie Thomas appeal, 06-1497 Capitol v. Thomas, …). In principio, the state of Kentucky failed to prove that even one person gambled or waged money in each and every one of these websites, it did not prove that funds were transferred and where were they transferred to, it just submitted a negligent request. Meaning, if we compare the domain forfeiture to laundered money, then we did not prove (and especially not beyond any reasonable doubt) that the domains were involved in gambling. As some of the Amici Curiae claimed, some of the domains were no more than spam links or link farms, which cannot be deemed as illegal.

Third, the judge showed ignorance in understanding the poker game when he stated that “in the end, no matter how skillful or cunning the player, who wins and who loses is determined by the hands the players hold”. This shows misunderstanding of the poker process when it misses the basic assumption of the game’s psychology: you play the hand you want, not the hand you have.

Poker could be easily compared to the legal process. As most court cases end in some kind of settlement, and seldom do people get a final decision, so do most poker rounds. Poker players, at least most of the time, aren’t required to show their cards and therefore these cards mean nothing. Like lawyers, poker players play the cards they’re dealt. A lawyer who first hears a potential client can decide whether he takes the case or not according to the chances he assumes; this is quite similar to being dealt a Pocket hand. Afterward, the lawyers start exchanging accusations and letters, where the lawyer could decide to quit or go ahead (pre-flop gambling) depending on his assumption of the other player’s odds and power. Then, the game begins, the flop is being dealt and lawyers start document discovery and pre-trial, where every party tries to bully the other and show him how weak his case is, convincing him to quit. Then, if they remain in the game, comes the real trial and the closing arguments (Turn and River), in any stage, even after the closing arguments, each party could offer (or bully) such offer that will cause the other party to stop. But in the ends, when people show cards, it’s all over and it’s left with the odds. (see Hon. Judge Rachel Greenberg’s dissenting opinion in Crim 3814/07 State v. Rock Eran).

Now, in some cases, being a good enough lawyer doesn’t really help. Sometimes, your client is a murderer, rapist, thief or just did illegitimate acts in a civil suit. Does that mean you’re not a good enough lawyer? no, it means your client wasn’t good enough. If so, is litigation a wager? Not really, it’s life.

If we leave the sidenote on poker and legal procedure, that I’m still considering legitimate (otherwise, there’s no difference between Poker and the financial market), the question of Due Process was entitled to a more serious discussion. It is not possible that the state of Kentucky decide to forfeit all one hundred and forty one domains without these being under its jurisdiction. The net’s internationalization cannot allow a jurisdiction anything but to reign over it’s physical domain, if not, we might get this website forfeited in Syria, the law is no more than a weapon of mass destruction when put in the hands of the wrong state.

0.
Sometimes, when discussing the US-Israeli relations, we need to see the broader picture. Things like the Palestinian conflict are just a minor issue in relation to the economy. As most of the English Readers of this blog [this was originally posted in Hebrew, sorry for Hebrew links, but use Google Translate] may not know. Israel had a major crisis around 1985, banks collapsed and were bought by the government. Then, in order to save the economy, our late minister of treasury, Yitzhak Modaey, along with the former prime minister, Shimon Peres, had an initiative. Their plan was to save the economy by a what the former Attorney General (and supreme court justice) Yitzhak Zamir called a historic mistake. Our Omnibus Statute was meant to save the economy by amending a few statutes and giving the government a way to deal with the crisis. The statute was a mean to implement emergency policies in order to save the economy. Along the years, though, the government used the omnibus law, which passed from year to year, as a mean to implement reforms and force economic policies without a real debate about them.

1.
When time came, a petition against the law was submitted to the supreme court as the “Quantity became Quality” (playing on justice Aharon Barak’s words in HCJ 3267/97 Rubinstein v. The Poultry Farmers Union). The Poultry Farmers petitioned to the supreme court, stating, amongst other things, that there was no real discussion and debate about the Omnibus Statute that year, and while justice Dorit Beinish refrained from striking the statute, she warned the parliament before the quantity becomes quality:

Indeed, this is a legislation process that makes a sufficient and deep discussion hard, and which tempers the decisionmakers in parliament and government ability to gather an established opinion. Let us remind that one of the purposes in the Parliament’s regulation about legislation processes is to allow the parliament members to gather their opinion about every legislation that stands against them (…) and it’s hard to see how the legislation process in the Omnibus Statute allows that purpose” (HCJ 4899/03 Poultry Farmers Union v. The Israeli Government)

2.
Twenty-three years later, and our big Uncle Sam has the same issues. Because of historic mistakes that were caused by a capitalist policy to encourage consuming, Mortgage Banks collapsed since they incenticised high risk loans, as a chain reaction, the US stock indices fell and billions of theoretical dollars were lost. Not too much later, the US Government decided to nationalise several banks and an FBI inquiry regarding AIG’s conduct began.

3.
Right, Israel’s bank crisis of 1985 began because banks loaned people money in order to purchase the ever rising bank shares, which drove the bank shares even higher, until one day people understood that it was worth nothing. Billions of theoretical Shekels were lost. But the same mistake was made in t he US in the mortgage market. Allowing bubbled loans and leverage of real-estate was what made the real estate market bloom, till it exploded.

4.
Well, like in Israel, fast legislation processes were needed. However, the Congress first rejected the Wall-Street Bailout, which caused a major decline in stock indices. Therefore, gently, the government formalised a more serious plan that imploded from the original three pages to one hundred and ten, and then to four hundred and fifty one. 451 pages of tax reforms that most likely will never be read and will cause tax exemption for wooden arrows for children.

5.
And if we’re still with the great Uncle Sam, I am quite troubled by the great endeavours burned in order to assist the Israeli government implement Biometric Identification. This time, our minister of internal affairs Meir Sheetrit, claims that Israeli citizens will not be required a US visa if the biometric database will be approved. The subtext, of course is “if the biometric database will be approved and conveyed to the US authorities”, since without that, the US government has no mean to confirm their identity. What Sheetrit forgot to tell us, being a minister with formal micro-biology education (which the government thought was relevant when they approved his offer for biometric IDs), is that Biometric Passports are easy to fake or copying in a manner that allows Identity theft.

7.
But Sheetrit won’t be blurred by the facts when he will be speaking in front of the Knesset about the biometric identity statute. He’ll explain to the parliament members that the government already signed an agreement with HP to issue the IDs and that the US insists that we have such a database. Our Knesset Members, being so reasonable and have to consider every proposal, will do the right thing and vote seriously, of course. And that’s only if the Omnibus statute won’t be the statute that approves the Biometric Database.