Archive for August, 2012


On giving with one hand and taking with the other…

by wfgodbold

RIP, Neil Armstrong.

The moon missions were NASA’s greatest triumph for many years (though they might be eclipsed by Curiosity); the Apollo program ran for roughly four years, and the agency has parlayed those early triumphs into 40+ years of taxpayer-funded largesse.*

One generation grew up with the iconic image of man playing golf on the moon.

The next generation got to watch the horrific results of incompetence live on national TV.

And the generation after that is lucky enough to see us pay Russia so we can get into orbit at all.

If this continues, we’ll be lucky if 2030 doesn’t see us climbing out of our underground lairs to feast on the unsuspecting Eloi.

Anyway, big government gave space and the moon to man. It’s taken some time, but the private sector is catching up (hopefully this is just the beginning).

Another Armstrong was not so fortunate, however.

Lance Armstrong, cyclist and cancer defeater, can now add a new epithet: USADA Whipping Boy.

Apparently, the government, in its limitless power (hooray for the commerce clause!), saw fit to establish a bureaucracy to oversee sports doping. And that august body has condemned Lance Armstrong, and wants to strip him of his many Tour de France titles (as well as ban him from cycling for life!) for daring to pass every drug test they made him take.

There are three possibilities I can see:

1. Lance Armstrong cheated, faking all 500+ (!) of his drug tests, and his wins are meaningless;

2. Lance Armstrong developed some otherwise undiscovered doping method, and swore his entire retinue to secrecy, allowing him to cheat with impunity, rendering his wins meaningless; or

3. Lance Armstrong is a training fanatic, and made himself over into the best cyclist in the world for as long as he could (through some combination of training and genetic predisposition).

If it’s #1, then the USADA is incompetent; how could they have failed to catch Armstrong even once over his entire career (spanning more than a decade); and if they’re that incompetent, why should we believe them about anything else?

If it’s #2, then Armstrong should quit his cycling gigs and take over national security; keeping one’s mouth shut is an important skill in intelligence.

And if it’s #3, then no matter how many people the USADA gets to testify, or how many tests they run on Armstrong’s old samples, they’ll never discover any evidence of cheating.

(Of course, that’s even assuming the USADA has the authority to strip Armstrong of his titles; France may tell them to go to hell.)

If Armstrong’s titles were revoked, who would take his place as the “winner” of the Tour for those years?

Not the next several cyclists; they were all doping.

Now, I don’t particularly care one way or the other about drug use in sports. If the sport makes everyone agree to the rules, and the rules say “no doping,” then sure, kick people out for doping. But if a sport were to allow doping, I wouldn’t have a problem with it.

After all, if everyone is doping, then you probably get to see the same relative skill disparity among the competitors (it’s only the absolute skill level that is increased); and in a sport like cycling, where you’re not racing the clock so much as you are the other cyclists, only the relative skill difference matters.

That’s enough meandering for now; one Armstrong (Neil) benefited from big government; another (Lance) did not.

That it was emphasized this past weekend is coincidental.

*I’m not saying that good tings haven’t come from the space program; far from it. After all, it helped bankrupt the USSR, freeing Russia and her satellite states allies from totalitarian rule for what, ten years?


The right to exclude…

by wfgodbold

Is the whole point of patent law.*

The sovereign grants the patentee an exclusive right to make, sell, import, etc. into that sovereign’s jurisdiction the subject matter of the patent.

In this case, that means Lewis Machine and Tool, has the right to exclude others from making, selling, importing, or using monolithic AR-15 upper receivers of their design.

Linoge is upset by this, and thinks it removes competition from the market.

He’s right, and he’s wrong.

It removes competition for this particular item until the term of the patent has ended (which should be in ~2029 or so; patents last 20 years, and if prosecution takes more than 3 years, patentees get additional time added to their patent duration).

However, it also encourages competition–LMT’s competitors will have to innovate, find ways around the patent specifications (because a patent only protects what is claimed; if another company were to make a product that was similar, but not substantially similar, the patent wouldn’t protect it), or go in a whole other direction.

Linoge also sounds miffed that LMT was forward-thinking enough to apply for the patent back in 2002. That’s not necessarily the case.

The law of patents is fraught with peril–when you apply for a patent, two dates are important: the application date itself, and the critical date. The critical date is exactly one year prior to the application date.

If you have published anything, made public use of your product, offered it for sale, or anything else** before that critical date, you’re shit out of luck. You can’t patent it.

The law encourages filing as early as the inventor possibly can; if you have an item that you think you can get a patent on, you should apply as soon as you can–when the invention is reduced to practice (the prosecution process allows for amending your application, so long as the prospective patentee only narrows claims).

In theory, patents protect inventors against the market; without patents, inventors would lose out on their inventions as soon as someone else with enough money to take advantage of economies of scale figured out how to reproduce it.***

I have no idea why this LMT patent took ten years to prosecute. If the system had worked (instead of being typical government bureaucracy), LMT would have been issued their patent in 2005 at the latest, and they’d be halfway through the duration of the patent by now. Instead, the public loses out by not getting the invention put into the public domain as early, and the inventor loses out by not getting the exclusive rights to his invention when it would have done the most good.****

If anyone is to blame for the headaches that the patent system causes, it’s the Venetians.

*Once again, I emphasize that I am a lowly law student–if you take anything in this post as actual legal advice, you do so at your peril. Especially since this is mostly info I learned over the summer in the Patent and Trade Secret Law course I took.

**Experimental testing is allowed, provided it’s actually experimental (records, strict inventor control, no more use than absolutely necessary, etc.). In Lough v. Brunswick Corp., the inventor (Lough) lost because he gave out several copies of his device to friends of his for testing, but he never asked about it again, or asked for its return, or anything else. Because this was more than a year before he filed for his patent, Brunswick got it invalidated and didn’t have to pay for the license.

***Patent law protects inventors by giving them a right to exclude in exchange for making their new and useful contributions to the art public; once the term of the patent has expired, anyone can make/use/sell/import the invention. Trade secret law is different; it relies on absolute secrecy (NDAs, non-competes, etc.). If you don’t want to patent your invention, and if you can keep it secret, then the only way your product can be legally reproduced is if someone else either develops it on his own, or reverse engineers it (reverse engineering doesn’t allow you to infringe on a patent, however; if you reverse engineer a patented item, you can remake it and sell that, so long as the resultant remade product is non-infringing). This is a common mistake in TV shows (cough Leverage cough). Patents are public information. Trade secrets are not. (This is why Coca-Cola ripoffs never taste right (the recipe is a highly protected trade secret), and why no one knows the secret blend of herbs and spices the Colonel uses to make his tasty chicken.)

****I get the feeling I had more to say on this, but I got distracted by footnotes and forgot it all.


Quote of the Indeterminate Time Interval – Judge Learned Hand

by wfgodbold

It’s been a while since I did one of these, but the faux outrage from the left over Romney’s paying 13% in taxes inspired me.

Judge Learned Hand is commonly referred to as the greatest American judge to never sit on the Supreme Court.

He had this to say on the matter of taxes:

Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one’s taxes. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands.

And Hand wasn’t even libertarian or conservative; he ran for office (before becoming a federal appellate judge) as a member of the Progressive Party.


Man, the New York Times opinion writers must really be desperate…

by wfgodbold

If they’re publishing this dreck.

First off, they barely get started before printing their ignorance for all to see:

[Moynihan’s] solution: Increase the tax on bullets. He wouldn’t raise the tax on ammunition typically used for target shooting or hunting. But he proposed exorbitant taxes on hollow-tipped bullets designed to penetrate armor and cause devastating damage.

Now, this might be the late, unlamented Patrick Moynihan’s* error, but considering they point out he first proposed this nonsense nearly 20 years ago, they had plenty of time to fact check him.

Had they done so, they might have learned that hollow points are the opposite of armor piercing.

Now, setting that minor factual issue aside, I want to consider the idea of an exorbitant tax on ammunition.

Apparently, the NYT thinks that such a tax would be constitutional; after all, they’re not banned outright. Sure, $1,500 for a 20-round box of ammo sounds like a lot of money, but it’s a small price to pay to get around the constitution’s protection of fundamental rights.

Presumably, the NYT would likewise approve of a similar tax on abortions; perhaps $250,000 per abortion?**

After all, abortions wouldn’t be actually banned; you could still get one, provided you forked over the tax.

Fundamental rights cannot be de facto infringed in this way; the right to arms necessarily includes the right to use those arms. And that means pricing ammunition such that no one can afford it is right out.

The opinion piece goes on to hand-wring about NYC’s sale of spent brass to a Georgia ammunition reloader, but those complaints are even more incoherent than the first half.

*I note that the NYT refers to him as “a United States senator with one of the great political brains of 20th-century America.” I wonder if the author would have been so effusive if Moynihan hadn’t been a New York Democrat.

**I’m not going to get into my thoughts on abortion here (maybe some other time); it’s enough for my point here that SCOTUS has held it to be a fundamental right.


Why should I do any soul-searching?

by wfgodbold

I didn’t kill anyone.

I didn’t suggest that someone else kill someone.

Yes, the shooting at the Sikh temple in Wisconsin was a tragedy. But it was no less a tragedy than the recent mass stabbing in China (which, you will notice, was more deadly: 8 killed and 5 wounded in China, as opposed to 6 killed and 4 wounded in Wisconsin).

President Obama said that we must “do some soul searching to examine additional ways that we can reduce violence.”

I will commend him for not actually saying “gun violence;”* being shot kills you just as dead as being stabbed, bludgeoned, or poisoned. However, I can’t actually reduce violence myself; I’m not violent.

“But,” you say, “don’t you carry a weapon?”

Yes, but I don’t carry it to be violent.

I carry to prevent violence.

The police aren’t there to protect me. They’re not there to protect you.

The police are there to clean up after the fact, investigate, and deter criminal behavior.

Not to protect anyone else.

Since I can’t afford bodyguards (like Michael Bloomberg or Richard Daley), I choose to take responsibility for my own safety.

*Unlike the nanny of the decade, Michael Bloomberg. Given his track record with other amendments, it’s not surprising he still hates the second. DC v. Heller is still good law; handguns and semi-auto weapons are protected because they’re in common use.**

**This standard seems to be begging the question. Automatic weapons aren’t in common use because they’ve been heavily regulated since the 1934 NFA, and de facto banned since 1986***. According to the court’s logic in Heller, this ban is fine because automatic weapons aren’t in common use, but they’re not in common use because they’re banned.

***They’re not actually banned de jure; if you pay for the tax stamp, you can buy a machine gun that was manufactured before 1986; however, they’re not making any more of them, so qualifying automatic weapons can cost upwards of $10,000.


In no particular order:

by wfgodbold

Growlanser IV is out for the PSP in the US (if you’ve a PS3, you can download it there and transfer it to the PS Vita without issue; if you’re PS3-less, you’ll have to wait until it’s up in the PS Vita PSN store). It’s pretty good so far; the sprites are nice, and the gameplay is classic Growlanser (JRPG-like with a heavy dose of strategy).

As far as the Chick-fil-a brouhaha goes, I didn’t eat there on Wednesday. Not because I disagree with their position (which I do (disagree, I mean)), and not out of support for the attempt to crack down on speech Boston/Chicago politicians disagree with, but because the local CFA had cops out directing traffic, a drive-thru line that looked to be at least 50 cars long, and an in-store line that stretched around the building at least once. Their chicken is good, and I support their rights to hold positions I don’t agree with and be free from government harassment because of that speech, but it’s not stand-in-line-for-more-than-an-hour good. Linoge disagreed, and went on – in his characteristic way – to say in ~400 words what a normal man would say in 50 (I would have posted on this on the 1st, but when I got home, Linoge had already said basically everything I was going to. Even if he did say it in 4x the space).

Want to eat sushi at the Olympics? Hope you don’t like soy sauce, cause mini packets are banned on account of not sponsoring the Olympics (beware; Sankaku Complex is about as unsafe for work as it gets). Between that and the lack of business the Olympics was supposed to bring in, I don’t know why anyone would voluntarily pay for the games. Other than as an opportunity to fleece the taxpayer and enrich politicians and their cronies, I mean.

The latest live-action Rurouni Kenshin trailer is out, and it’s got English subtitles. My only complaint is that they translate Kenshin’s reference to his reverse-bladed-sword as merely “sword;” in Japanese, it’s literally written 逆刃刀; the first character means “backwards,” the second “blade,” and the third “sword.” Instead of being sharpened along the front edge and dull along the back, Kenshin’s is dull along the front and sharp along the back (reverse-bladed). It’s kind of a big part of the character, and just calling it a sword doesn’t really cut it (heh).

In my less copious than normal free time (when not playing Growlanser (and sometimes while playing Growlanser), I’ve been rewatching The Good Guys on Netflix streaming. It takes me back to a more innocent time, when I hadn’t had a class on pre-trial criminal procedure, and was ignorant of how much of a free hand the courts have given police. I’ve mentioned it before; every episode is essentially an 80s/90s style buddy cop movie (in 45 min.).

I’m also working my way through Simon R. Green‘s books. Again. Sure, they’re pulp, but they’re entertaining. And isn’t that what really matters?

The law review has handed down the first cite check for this year; it’s due a week from Wednesday. Between that and the Legal Editing & Scholarship class I’m taking before fall classes start up, I’m being kept off the streets pretty efficiently.

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