Slashdot Mirror

Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

19 U.S.C. 2242 : US Code - Section 2242: Identification of countries that deny adequate protection, or market access, for intellectual property rights.

Both the Request for Comment and the underlying law specifically refer to the identification of foreign countries with bad IP policies. So I still don't see how this opens the door for complaints about the U.S. Trade Representative's secrecy regarding ACTA. I don't want to discourage anyone from complaining -- certainly the Trade Representative should know that people are concerned about this -- but as I understand it, they have the right to disregard any comments not responsive to the request.

You are so full of shit, it's not even funny.

One word: BrandX.

You owned an ISP serving over 10,000 people, and only received one DMCA complaint? I used to work the abuse desk at an ISP, and we received hundreds of times more DMCA complaints for an operation half your size.

Your argument doesn't even pass the sniff quiz: If the DMCA safe harbor provisions don't apply to ISPs because they're common carriers, then what the hell do the DMCA safe harbor provisions apply to? Physical tubes?

They are not a loophole. The supreme court has ruled that treaties do not supersede the constitution.

http://www.npr.org/templates/story/story.php?storyId=89100044
http://www.sweetliberty.org/issues/staterights/treaties.htm
http://en.wikipedia.org/wiki/Treaty_Clause
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=354&page=1

The RIAA will win the appeal, it will head to the Supreme Court, and they will uphold the damages. From FindLaw:

the Court has held the Clause inapplicable to civil jury awards of punitive damages in cases between private parties, ''when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded.''

If it wasn't clear before, recent rulings have made it abundantly clear that you should expect no justice of any kind from the Supreme Court.

One should not have to be tolerant against the religious myths of our ancestors taught as "the truth" and "real history".

In 1943, a group of Jehovah's witnesses sued that State of West Virginia for the right not to salute the flag during the Pledge of Allegiance (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=319&invol=624#Scene_1). The State responded, much as you have here, that it has every right to reeducate those backwards religious nuts 'for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government.' For those not familiar with the history of JW in the US, there was a longstanding hostility towards their religion on the grounds that it is insufficiently patriotic. The fact that this law was passed in 1940, in the middle of a World War in which JWs were refusing to be drafted should give some context.

Anyway, the reason I get into this whole long spiel is that it was in this case that Justice Jackson wrote what might be the most stirring defense of the US right to conscience ever written:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

I do not agree with every belief that animates HSers (that's not even possible, having known socialist HSers that believed the schools were controlled by corporate interests and capitalist HSers that believed the schools were controlled by socialist teacher's unions) but I do believe strongly in their right to educate their children according to their beliefs.

I also happen to work in life-sciences and I know, without a shadow of a doubt, that the creationist story taught to some home-schooled children is quite simply untrue. On the other hand, it seems quite clear to me that just because I have a degree and wear a lab coat does not entitle me to dictate by force to others what to teach their children. The best I can do (and continue to do) is develop the evidence that drives reasonable men towards the best conclusion. Ultimately, since my position is quite likely correct, such force will not be necessary. Meanwhile, bearing the burden of persuasion is a strong incentive to stay honest.

Finally (since the post was meant to be a short citation and exploded into a morning-killer), here's another oldie-but-goodie from the Supreme Court on what the protection of liberty means. In this instance, the State of Nebraska made it a crime to teach a child under the grade of 8 in any language other than English (motivated by a desire to Americanize recent German immigrants that had this inexplicable preference for their mother tongue over the obviously superior English language):

Without doubt, it [the liberty protected by the Constitution] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=262&invol=390

One should not have to be tolerant against the religious myths of our ancestors taught as "the truth" and "real history".

In 1943, a group of Jehovah's witnesses sued that State of West Virginia for the right not to salute the flag during the Pledge of Allegiance (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=319&invol=624#Scene_1). The State responded, much as you have here, that it has every right to reeducate those backwards religious nuts 'for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government.' For those not familiar with the history of JW in the US, there was a longstanding hostility towards their religion on the grounds that it is insufficiently patriotic. The fact that this law was passed in 1940, in the middle of a World War in which JWs were refusing to be drafted should give some context.

Anyway, the reason I get into this whole long spiel is that it was in this case that Justice Jackson wrote what might be the most stirring defense of the US right to conscience ever written:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

I do not agree with every belief that animates HSers (that's not even possible, having known socialist HSers that believed the schools were controlled by corporate interests and capitalist HSers that believed the schools were controlled by socialist teacher's unions) but I do believe strongly in their right to educate their children according to their beliefs.

I also happen to work in life-sciences and I know, without a shadow of a doubt, that the creationist story taught to some home-schooled children is quite simply untrue. On the other hand, it seems quite clear to me that just because I have a degree and wear a lab coat does not entitle me to dictate by force to others what to teach their children. The best I can do (and continue to do) is develop the evidence that drives reasonable men towards the best conclusion. Ultimately, since my position is quite likely correct, such force will not be necessary. Meanwhile, bearing the burden of persuasion is a strong incentive to stay honest.

Finally (since the post was meant to be a short citation and exploded into a morning-killer), here's another oldie-but-goodie from the Supreme Court on what the protection of liberty means. In this instance, the State of Nebraska made it a crime to teach a child under the grade of 8 in any language other than English (motivated by a desire to Americanize recent German immigrants that had this inexplicable preference for their mother tongue over the obviously superior English language):

Without doubt, it [the liberty protected by the Constitution] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=262&invol=390

The Constitution is fine and provides for no such thing. You need to research Santa Clara County v. Union Pacific RR (118 U.S. 394 (1886)). This little gem extends the status of personhood to corporations. Amazingly ill-advised and not even part of the dispute.

Not argued for or against, and simply the pronouncement of one justice before the beginning of arguments. See http://laws.findlaw.com/us/118/394.html

I've wondered for years just exactly how much he was paid for those few words.

18 U.S.C. 1111 : US Code - Section 1111: Murder
(a) Murder is the unlawful killing of a human being with malice
aforethought. Every murder perpetrated by poison, lying in wait, or
any other kind of willful, deliberate, malicious, and premeditated
killing; or committed in the perpetration of, or attempt to
perpetrate, any arson, escape, murder, kidnapping, treason,
espionage, sabotage, aggravated sexual abuse or sexual abuse, child
abuse, burglary, or robbery; or perpetrated as part of a pattern or
practice of assault or torture against a child or children; or
perpetrated from a premeditated design unlawfully and maliciously
to effect the death of any human being other than him who is
killed, is murder in the first degree.
Any other murder is murder in the second degree.
(b) Within the special maritime and territorial jurisdiction of
the United States,
Whoever is guilty of murder in the first degree shall be punished
by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be
imprisoned for any term of years or for life.
18 U.S.C. 1111 : US Code - Section 1111: Murder

The killing could be legal under laws your not familiar with or it could be outside the special maritime and territorial jurisdiction of
the United States,

>Most states have no specific laws on the books whatsoever in regard to race or >anything else. In general, a hotel management can deny service to anyone for >pretty much any reason

States don't need one because there is a Federal law:

Its called Federal Public Accommodation Law:

http://public.findlaw.com/civil-rights/civil-rights-enforcement/public-accommodation-discrimination-enforcement.html

Yes, there's laws against burning money.

http://codes.lp.findlaw.com/uscode/18/I/17/333

the principle that search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on relevance.

Here, there's this thing called the First Amendment. You may have heard of it. This is nothing more than some dingbat whose business it isn't to insert his nose where it don't belong. Once you accept his premise, spammers can also force changes in Google etc. rankings based on their own notion of "relevance". ("see? We have tons of this keyword in our page. We MUST be relevant!")

Allowing people to "defend" themselves against the police because they think they are in the right is not one compatible with the rule of law.

SCOTUS disagreed, in the Bad Elk case, stating "If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest."

Expecting people to submit to kidnapping because the kidnappers have badges is not compatible with a free society.

I wouldn't expect courts to follow this precedent in our modern police state, but to my knowledge SCOTUS has not overturned it.

No. I too have researched this, and I’d like to see the research you did.

From what I saw, it was evident that (a) the coffee was kept dangerously hot, and McDonalds knew this; (b) the reason for the extreme temperature was to make the coffee odour stronger, because coffee drinkers who smell coffee will tend to want some and (c) at the temperature that the coffee was served, it was capable of causing third-degree burns in three seconds.

If you don’t think that’s dangerously hot, try getting your pants off in under three seconds. Bonus points if you do it while buckled into your vehicle in the drive-through lane.

Yes, the lady was stupid to put the coffee between her legs and then dump it on herself, but that doesn’t exonerate McDonalds for knowingly serving dangerously hot coffee. Also, she was NOT driving the car, nor was it even in motion when the accident occurred.

Some relevant citations:

The smell (and therefore the taste) of coffee depends heavily on the oils containing aromatic compounds that are dissolved out of the beans during the brewing process. Brewing temperature should be close to 200 F [93 C] to dissolve them effectively, but without causing the premature breakdown of these delicate molecules. Coffee smells and tastes best when these aromatic compounds evaporate from the surface of the coffee as it is being drunk. Compounds vital to flavor have boiling points in the range of 150–160 F [66–71 C], and the beverage therefore tastes best when it is this hot and the aromatics vaporize as it is being drunk.[1]

and,

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds’ knowledge about the extent and nature of this hazard.

McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds’ quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the “holding temperature” of its coffee.

Plaintiffs’ expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness [3rd degree] burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.[2]

http://caselaw.lp.findlaw.com/data/constitution/article03/

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort"

Ripping them off isn't treason.

ever heard of punitive damage? If you only ever have to pay exactly for what you did, and no putitive damage, when you g et caught, there would be no point NOT to do it.

First, I shouldn't even dignify your post with a response given the poor spelling and general lack of knowledge of the subject matter, but I'm bored. Second, here's how it looks in the US (I'm even more of a non-expert on non-US laws);

Actual:
$6--30. (from TFA) Copyright holder is also entitled to any profits derived from the violation (in general). In the case of someone using XP privately for themselves and deriving no profit beyond that, the profits would also likely be zero.
Statutory:
Only available if the copyright is registered with the copyright office.
$200 if it can be proved it was accidental at the discretion of the court.
$750--30,000 if it cannot be proved, but there is reasonable doubt at the discretion of the court.
Up to $150,000 per work if it can be proved to be willful. Source: 17 USC 504.
Punitive:
Not generally available. [1] It may be available if statutory damages are unavailable, or if the plaintiff elects to seek actual damages (plus profits derived). This is very rarely done in practice, and generally the punitive damages will equal the actual damages plus profits derived from the violation.

In the vast majority of cases, statutory damages far exceed actual or potential punitive damages.

[1] Leutwyler v. Royal Hashemite Court of Jordan, 184 F. Supp. 2d 303, 308
[2] http://library.findlaw.com/2005/Feb/10/172826.html#_edn14

P.S. IANAL.

don't vent on the net. Save it for the local pub, or the diary you keep under your pillow.

Fuck you and take your anti-democracy attitude with you when you leave. You don't belong on the net. Get out.

Most countries have codified the right to religion and expression. Not just for the ones you, Robot, agree with, but the right for everybody.

A lot of companies would like to censor the net. It's cheaper than programming products that work. Don't give them ammo. It has repercussions for other countries, if not your own. Democracy depends on the ability to make informed decisions and that ability is contingent on open and multi-faceted debate. You can't have that if only One True Way is approved.

You have the right to say your views, no matter how wrong they are, but it stops there when it starts imposing on other people.

Falwell v. Flynt (a suit by Jerry Falwell, head of the "Moral" Majority" against Larry Flynt for naming him "Asshole of the Month" in the column by the same name in Hustler) supports you.

We already function quite well with laws restricting people from knowingly lying about a person. How is that any different?

It is different because frequently the information contained in credit reports is frequently accurate.

When you're talking about accurate information, the right you're treading up against is that of freedom of speech.

To get more specific, defamation --lying about someone else and causing them harm-- is already a restricted form of speech. It is also a possible action against a credit bureau that "with malice or willful intent" provides incorrect info. (See the Fair Credit Reporting Act 1681h(e).)

The standard used to include the easier to reach "reckless" inclusion of misinformation, see Dun & Bradstreet, Inc. v. Greenmoss Builders, where a company brought a defamation suit against a credit bureau for false info and prevailed in the US Supreme Court.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=472&invol=749

Neither crime requires "profit". The crimes entail forcing an outside party to take an action. There is no requirements on what those actions are in most Common Law jurisdictions other than that the victim has been coerced into them.

Here is an example of such a case within the US armed forces:

http://www.armfor.uscourts.gov/digest/IIIA55.htm

A English example would be Jean Violette's extortion conviction. In this case the victim was using the Hell's Angles name. Mr. Violette wanted him to stop using the name. You can read a bit more about this case below (or do web search):

http://www.vancouversun.com/news/Crown+seeks+year+prison+sentence+Hells+Angel+convicted+extortion+weapons+offences/2188869/story.html

For the US Government (Fed.) you can find the actual statue under 18 USC Chapter 41:

http://codes.lp.findlaw.com/uscode/18/I/41

The meat of the issue is in the passage, "...demands or receives any money or other valuable thing..." "Other valuable thing(s)" has been interpreted multiple times to include non-monetary services. For example, a politician can be blackmailed or extorted to vote a certain way. An attorney can be coerced into not prosecuting a case with due diligence (look into the history of the Mob for many such examples).

Here would be I belive the relevent law in Texas:

http://law.onecle.com/texas/government/432.162.00.html
 
 

432.162. EXTORTION. A person subject to this chapter
who communicates threats to another person with the intent to
obtain anything of value or any acquittance, advantage, or immunity
is guilty of extortion and shall be punished as a court-martial
directs.

Acts 1987, 70th Leg., ch. 147, 1, eff. Sept. 1, 1987.

Copyright protects a particular expression of an idea, not the idea itself. You're thinking of patents, which are completely different.

And you misunderstand patents. Look at my reply to the post above yours. Especially see what Findlaw says about patents.

Falcon

Patents on the other hand dont protect the implementation, they protect the idea/process that is being implemented.

• "Congress intended that a patent would protect a unique implementation of an idea or a formula that uniquely described a natural transformation."
• "Patents protect the implementation of ideas; copyrights protect the expression of ideas; trade secrets protect confidential information; and trademarks protect the identification of the source of goods or services."
• "Without the ability to protect the expression and implementation of its ideas, a business has little chance of success."

Patent do protect specific implementations of ideas, not the ideas themselves.

Falcon

No. For example, Smith v. Maryland, 442 US 735 (1979) supports the notion of a "pen register", which, under subsequent case law, supports the collection of other types of communications metadata without a warrant. This includes items such as IP addresses, To: and From: information on email messages, and other "wrapper" information that does not constitute the substance or content of the communication.

Additionally, the entirety of the communications traffic of non-US Persons may be collected at any time, without a warrant, even when that collection occurs physically inside of the the US. This is the legal landscape that was extremely murky from 2001 to 2007. What was clear was that the existing law left the Intelligence Community completely hamstrung with increasing amounts of traffic that touched the US.

However, this gap in the law has been closed, and the stopgap (and now-sunset) Protect America Act of 2007 (and the 2008 FISC ruling which supported it), and the law in force after the FISA Amendments Act of 2008 make this abundantly clear. Note that that a US Person may be an incidental party to these communications; when/if they are, they are subject to clear protections under the Constitution and the law. Also, communications traffic metadata must be examined to support targeting: how do you know whether foobar@yahoo.co.uk is sending a message if you're not able to examine the message traffic? That's the whole point, and is what the current law firmly and clearly supports.

So, as I said, and which you completely and utterly missed and misunderstood, it is incorrect to say "warrantless wiretaps are illegal", because there are any number of ways that this statement is demonstrably (and legally) false. What it is accurate to say is that "warrantless wiretaps which deliberately and knowingly target the substantive content of the communications of US Persons" is illegal. That was and is always true. What was and is also always true is that the communications traffic of non-US Persons outside of the US is fair game without any kind of warrant whatever.

The difficulty arose when an increasing amount of traffic of non-US Persons outside of the US (and some inside of the US, but with no legal status in the US) began traveling through communications channels and equipment physically located within the US: suddenly the path traffic takes restricts intelligence agencies from performing legitimate collection. The new law clearly supports collection on non-US Persons, regardless of where that collection occurs. Conversely, a warrant is required for collection on US Persons, regardless of where that person is on the globe. The result is the elimination of ridiculous restrictions on collection, and stronger protections for US Persons than existed previously.

Whether you would admit it or not, the current law, supported by a supermajority of both houses of Congress, and both the previous and current presidential administrations, supports "warrantless wiretapping" in a number of lawful scenarios, including examination of traffic that may belong to US Persons in order to support lawful collection on non-US Persons. The problem is that so many people don't clearly define terms, and equate "warrantless wiretapping" to "the government is illegally listening to the whole of conversations of innocent Americans without warrants", which is utterly false.

But by all means, keep turning a blind eye to the complexity of the situation, and the policy, technical, and legal frameworks surrounding and supporting it.

Based on the officer's statements he did have probable cause for the arrest: the dog alerting in combination with his evasive and uncooperative attitude, it would lead a reasonable person to think he was hiding something.

Since when is being uncooperative an admission of guilt? Since when is it a sign of hiding something? If you have nothing to hide, you have everything to fear.

Falcon

So like so many here, rather than debate you start with a bit of namecalling? Very nice.

I'm making the argument that you're a bigot in the hope that you see this and perhaps reconsider your views.
Bigot

• a person who is prejudiced in their views and intolerant of the opinions of others.
  • preconceived opinion that is not based on reason or experience

The term bigot seems an appropriate fit for the persona you have projected thus far. The only argument you had put forth was one not based on reason. Your argument was "they can't marry because they can't." If your only argument against something is that you don't like it, you're a bigot. I'm sorry if this offends you, that's just the definition. The reason I took your statement and substituted in race is that at this point it's well established that arguing against something based on race is bigotry. The argument is the same however: "you can't because you can't."

If the fact that you're a bigot bothers you, perhaps you should reflect on why you hold the beliefs you do. At least then you might have some evidence to support your oppressive beliefs.

FYI: Mantras are not a compelling state interest. Support the ideas of the mantra clearly, don't rely on it to be self describing.

Ask any average American and what's the one line they can recite or paraphrase from their own history? Probably this one from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The fundamental principle, the one upon which we declared our right to separate from the Crown and form our own nation is that all men are created equal and have certain unalienable rights. I'd say it's a pretty compelling interest to hold onto that ideal, mantra or no.

To further tie this whole discussion into the racial debate and to show the similarities, what about the famous Loving v Virginia case which overturned all anti-miscegenation (that's anti-interracial-marriage to you and me) laws in the US ? In delivering the opinion of the court, Chief Justice Warren wrote:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Marriage is a "vital personal right," and one of the "basic civil rights of man." I don't see a * with a footnote reading "* except gay men." The highest court in our land ruled that discriminating against interracial marriage is unconstitutional not because "blacks are OK now" but because marriage is a fundamental right which must be provided equally to all. So why are we still having this debate? Seems to me like it was well resolved over 40 years ago.

And yet... that's not what is being advocated for by your own words... children are human beings and are largely unable to marry, married people are human beings and unable to marry (again, prior to termination of the previous one), human beings without sufficient vaccinations for certain diseases are generally unable to marry, most mentally infirm human beings are not able to marry, close blood adult relative human beings are not able to marry.

You left off pedophiles and goats. Seriously, why does gays marrying always have to lead to incest, pedophilia, and bestiality? The fact that we have different words for all these things should be the obvious clue that they are, in fact, quite different things, but I guess not.

• children are human beings an

I don't know how it works in Seattle, but here in Los Angeles that whole sob story about not being able to visit your partner in the hospital is a load of bollocks and sensationalism.

You're right. You don't know how it works in Seattle.

I'm rather upset that the police thought they could get away with it and wanted to test it. Just get the damn warrant! If your suspicions are sound you should be able to get it!

.............

This may be a bit out there, but I feel like the judiciary is a bit "unfinished". I think there needs to be better way for the judicial branch to recommend removal of and changes to laws to the legislative branch. Not force those recommendations mind you, just improve the process of refining laws.

As to the first, it requires probable cause, not just sound suspicions. On a sliding scale, probable cause requires more than "reasonable belief" (which sounds similar to "sound suspicions") but requires less than "more likely than not." Am I playing a BS semantic game? Quite possibly. But this is exactly the analysis that the courts use when they're trying to find if there was probable cause. No warrant shall issue, but upon finding of probable cause... This is the standard that the courts apply, and that is the sliding scale that the courts use. And I know that Massachusetts would at least require probable cause for a warrant in this instance, because states cannot reduce the protections of the 4th amendment, they can only strengthen them.

As to the second, I'm a judicial activist myself, but there are still other concerns. They have the power to interpret laws (Marbury v. Madison), and this is a big deal. But federal judges are prohibited from making advisory opinions. There has to be a current case and controversy, period. It is against the federal constitution for federal judges (even at the Supreme Court) to say to Congress "Hey guys, um, you might wanna look at this, it looks unconstitutional and problematic." The legislature is proactive, the courts are reactive. However, some state courts may have the power to issue advisory opinions, but that will really depend on the state that you're in. But generally, because of the nature of the courts, they really are restricted to cases and controversies that have already resulted from injuries to individuals or groups. The less activist among the judiciary are likely to wind up with a controversial hot button topic and immediately say "It's not our place to make public policy. Legislature, you take care of this" and punt it back to the legislative branch. Which is, of course, one of the most effective things you can do to paralyze action on a topic, since passing legislation at any level tends to be a very complicated and unwieldy process.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ut&vol=appopin&invol=ireland051205

Isn't it nice how it is the impression of the "victim" that can make another person rot in jail for an entire lifetime because they did something stupid with their finger.

Something stupid? Like making the guy think he was going to get shot? Yeah, no actual harm there. And how is five years an entire lifetime? Armed robbery isn't exactly the mildest crime...

No but petitioning my government in Sacramento is a hell of a lot easier than traveling 2500 miles to D.C.

While I sympathize with the difficulty, this will not keep the federal government from screwing you, nor does it address my point that if there were Uniform State Code adopted on the matter, it would be more problematic. A 2500 mile trip is preferable to petitioning every state in the Union.

The Internet is not jurisdictionally limited to California, after all.

Not really. Congress has proposed fining Americans who do not have health insurance (me) similar to how Massachusetts State fines $1500 to its citizens. Problem: I can not locate anywhere in the Constitution where Congress was given authority to "fine" the people for Not buying a product. QED per the 10th amendment, Congress doesn't have that power - it's reserved to the States.

"The Congress shall have power... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." This is the clause on which they will hang their argument that it is, in fact, delegated to the Federal government.

Why do you think they keep mentioning that our health care costs more than other nations? They are going to claim that mandated insurance brings down costs, and is efficacious to the regulation of administration of health care to all Americans as commerce, in a manner consistent with the equal protections guaranteed by the 14th amendment. QED.

These are lawyers, friend. They have an argument that supersedes yours entirely.

Plus, this is a tangent irrelevant to the regulation of computer equipment. ;^)

(P.S.: I don't disagree with your stance on this issue, just your Con Law argument.)

There see? That was easy.

Now we just need to persuade the Supremes to reach the same conclusion.

Ay, there's the rub. "[It] was easy" until you got to this point. Most anything seems easy if one claims victory before one gets to the difficult part.

We can't dismiss this crucial step as if it is no matter because everyone will see the logic of your interpretation. In fact, this takes years, and then more time to set, implement, and mature policy after Diana Ross has been convinced. ;^)

We'll remind them what the Author of the Constitution James Madison said...

Point of fact: He is the author of the Bill of Rights. (Sorry, that was too big a "miss" to let go.)

He further clarifies: "If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." (James Madison, Letter to Edmund Pendleton, January 21, 1792)

And then agreed to the First National Bank at Hamilton's insistence, proceeded to set up the Second National Bank as President, went along with Marshall on issues of federal taxation (and his repeated striking down of 10th Amendment arguments), and presided over the razing to the ground of his own White House after attacking Canada. I don't think he was the advocate for limited federal government you think he was.

Don't hang your arguments on Authority. Usually, nobody deserves it.

You quote the 10th amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Counterquote, from Find Law:

That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was firmly settled by the refusal of both Houses of Congress to insert the word ''exp

I'll spell it out for you IANAL. That doesn't make my point any less valid. "I know you're wrong, but I won't tell you why," isn't the most convincing of arguments, but I have researched this, so I'll offer some evidence anyway.

We have a right to free speech and freedom of assembly. Generally this means that most anonymous speech cases are not adjudicated on the anonymity factor, but how they impact the well established and explicitly stated rights. For example, in NAACP v. Alabama, the court found that subpoena of the NAACP's membership lists violated the due process clause and the right to assemble. In Talley v. California and Watchtower v. Village of Stratton SCOTUS found that mandatory registration of solicitors ran afoul of free speech protection.

However, you have to look no further than the paid for statement of next campaign ad you see, or the disclosure requirement on the next political donation you give to see that there is no universal right to anonymity.

Imagine a graffiti artist arguing that he can't be prosecuted under vandalism law because he was exercising his constitutionally guaranteed right to anonymous free speech. The very idea that we can't seek out your identity if you're suspected of doing something illegal because of protected anonymity is absurd.

There is significant precedent in copyright law that lists of facts or data cannot be copyrighted.

See, e.g. Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991) Link

That's great. Mr. Schoenfeld may eventually win. But I see the real problem here is a government funded entity "going after" the little guy for something absolutely absurd. MTA has unlimited funds. (thanks to the bottomless pockets of taxpayers) Mr. Schoenfeld may go bankrupt proving his innocence.

There is significant precedent in copyright law that lists of facts or data cannot be copyrighted.

See, e.g. Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991)
Link

But, if you read their schedule you'll see that it does fall under copyright, as fiction.

There is significant precedent in copyright law that lists of facts or data cannot be copyrighted.

See, e.g. Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991)
Link

Perhaps most shocking are items such as the list submitted by D.C. Attorney Ronald L. Drake who decided he wasn't being paid on time by the D.C. schools and thus raised his rates retroactively from $390/hour to $425/hour, submitting as evidence the names, home addresses, ages and social security numbers of 67 children.

I hope every judge in the District of Columbia knows about that. What's even more humorous is that Carl Malamud includes a hyperlink in that letter to FindLaw in case you wish to contact Mr. Drake.

And the response informs Malamud that it's taken care of with the SSNs redacted and the documents removed from public display. I wonder how long public.resource.org and Scribd have to demonstrate their usefulness before federal court documents are uploaded there by default in addition to being available through the court?

On a related note, I read in a Google blog that you can now release your works under Creative Commons on books.google.com and they happen to have Carl Malamud's A World's Fair for the Global Village available for download. And if you wish to release your works under the Creative Commons, Google will host them.

• Shroyer v. New Cingular Wireless Servs., 498 F.3d 976, 983 (9th Cir. 2007), available at http://www.ca9.uscourts.gov/datastore/opinions/2007/08/17/0655964.pdf
• Discover Bank v. Superior Court, 36 Cal. 4th 148, 162-63, 30 Cal. Rptr. 3d 76, 113 P.3d 1100 (2005) available at http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/36/148.html (login required)

I'm not sure how it works in other states.

In the state of Illinois its already illegal to walk around without an id. They can actually fine you for not having some sort of state or federal id on your person when you step outside your house.

That's illegal in the US. In the Hiibel v. Sixth Judicial District Court of Nevada case the US Supreme Court has ruled that persons are required to identify themselves to law enforcement, however all they required was the person giving their name. "All nine Justices agreed that a person who is not behaving in a way that gives rise to an articulable suspicion of criminality may not be required to state his name or show identification."

Falcon

They'd only get a lie in Case 1 if I had a reason to hide who I am.

"Why, Even If You Have Nothing To Hide, Government Surveillance Threatens Your Freedom:
The Case Against Expanding Foreign Intelligence Surveillance Act Powers"

"'I've Got Nothing to Hide' and Other Misunderstandings of Privacy".

It just makes things easier when they do have to verify your identity.

Why should they have to verify your ID? To make it easier to be tracked? If you're just walking alone there is no reason for you to identify yourself, it's only when you're suspected of committing a crime when you should id yourself. Any other tyme there is no reason to while out in public. The only other tyme you should have to ID yourself to a government servant is when you're in a government building or asking for something from the government.

Showing the ID to an officer (even if you don't have to) makes his job easier. Isn't that a good thing?

Why stop there? Why not just require RFID implants? That way they don't have to stop you and ask, they can just scan you. Apparently you are willing to give up liberty to feel safe but not me. Governments are the greatest threats to liberty, nothing beats the government in denying life and liberty.

To be honest, there are indeed downsides: You always have to remember carrying your ID, and if you are caught without it by a commonsenseless cop you'll be in trouble, but it is the same if you are caught driving without a driver's or vehicle document

A driver's license is needed to drive, but an ID is not needed to ride a bike, walk, run, or rollerblade. And I do all 4 without my ID. I only carry ID when I have to, occasionally I even mistakenly leave my license at home when I drive. The one tyme I was pulled over and didn't have my license I gave the officer my name and license number. He was able to use his radio and verify the info, he then let me go, with a warning to make sure I had my license.

Falcon

'In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court upheld state laws requiring citizens to disclose their identity to police when officers have reasonable suspicion to believe criminal activity may be taking place.

In the Hiibel case all justices agreed police can ask for a person's name, but an ID does not need to be presented. The disagreement, 5 to 4, "was whether the person could be prosecuted for failing to answer that question."

Falcon

the mechanism for doing so does not check ownership.

No, but it asserts ownership:

"© Associated Press, 2009"

No laws were broken. No trust broken.

Probably not. The law says that false copyright claims "with fraudulent intent" are crimes punishable by up to $2,500, but I highly doubt that a judge would call the AP's scripting flaws "fraudulent intent".

At least not yet. We'll see if their program gets any smarter a month or a year from now. If their software can make them more money by selling invalid licenses based on false claims of copyright, you've got to wonder how long they can wait to fix that bug before some enterprising class action lawyer decides that they really consider it a feature instead.

The person did this with intent to gain a worthless license even.

This one did. But unless the AP's whole licensing server is worthless, it's got to be able to handle the case where someone wants to copy text from an AP story but doesn't know that the AP doesn't hold the copyright. Despite the AP's new "you have to pay us for five-word phrases!" policy, it seems they aren't keeping track of the five-word (or twenty-six-word) phrases that they've copied from others.

Again, "human input." That would be the end users making their queries in this case. They would seem to be the equivalent of photographers operating their cameras here, so I'd expect that the end users own the copyright on the output.

Reading http://laws.findlaw.com/us/499/340.html, it's clear that there's a "creativity" requirement for copyright, and that only tangible instantiations of a work are copyrightable -- not general principles or algorithms. Wolfram's system is on full autopilot and would seem to be the analog of a camera in this discussion, and my understanding of the current state of technology and law is that only humans are capable of creativity.

Wolfram's software is surely copyrightable, as are certain human-created elements (e.g. their logo) which are copied into the final output. The human user's formulated query is probably copyrightable "authorship." However, Wolfram's system has no humans in the loop and a mere mechanical process cannot change authorship, so it would seem that the user and Wolfram both own copyrights on different parts of the output. The user probably owns the "meat" of the results, much as if I would own the copyright if I rented Wolfram's camera to take photos.

Anybody can claim copyright on anything, but making it stick is another matter.

Courts have ruled that a phone directory is copyright-able,

Not in the USA.

Wow. Talk about a SCOTUS smack down.

IANAL, but this may preclude the Wolfram|Alpha output from being copyrightable. We'll just have wait until a related case makes it to court.

Courts have ruled that a phone directory is copyright-able,

Not in the USA.

"Article I, 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt that originality is the touchstone of copyright protection in directories and other fact-based works. The 1976 Act explains that copyright extends to "original works of authorship," 17 U.S.C. 102(a), and that there can be no copyright in facts, 102(b). [499 U.S. 340, 341]... A compilation is not copyrightable per se, but is copyrightable only if its facts have been "selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship....

Lower courts that adopted a "sweat of the brow" or "industrious collection" test - which extended a compilation's copyright protection beyond selection and arrangement to the facts themselves - misconstrued the 1909 Act and eschewed the fundamental axiom of copyright law that no one may copyright facts or ideas."--Feist vs. Rural Telephone, U. S. Supreme Court, 1991.

Obviously it's not cut-and-dried, because Wolfram Alpha does more in the way of selecting and compiling facts than the average computer program, but it is still a mechanical process.

The person who designed the wind chime that hangs outside my house put some creative originality into it, but I would hate to think that the output of the wind chime itself is copyrightable, just because the wind chime's mechanism rearranges the notes into patterns that no human thought of before.

If the court decides that the output of a machine meets the test of originality, and if there's any validity to the theory that an identity of seven consecutive notes constitute plagiarism of music, then I am certainly going to set my computer to work producing as many different seven-note sequences as it can as fast as it can, and try to copyright them all.

IANAL but, the issue of the copyright status of databases has come before the Supreme Court. The issue was: is an alphabetized list copyrightable? The court said no, because the database itself did not contain originality, it just was pure information. The key fact here is whether or not the database you describe is original, or it just contains facts. From wikipedia: "The ruling of the Court was written by Justice O'Connor. It examined the purpose of copyright and explained the standard of copyrightability as based on originality. It is a long-standing principle of United States copyright law that "information" is not copyrightable, O'Connor notes, but "collections" of information can be. Rural claimed a collection copyright in its directory. The court clarified that the intent of copyright law was not, as claimed by Rural and some lower courts, to reward the efforts of persons collecting information, but rather "to promote the Progress of Science and useful Arts" (U.S. Const. 1.8.8), that is, to encourage creative expression. Since facts are purely copied from the world around us, O'Connor concludes, "the sine qua non of copyright is originality". However, the standard for creativity is extremely low. It need not be novel, rather it only needs to possess a "spark" or "minimal degree" of creativity to be protected by copyright. In regard to collections of facts, O'Connor states that copyright can only apply to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc., but not on the information itself. If Feist were to take the directory and rearrange them it would destroy the copyright owned in the data. The court ruled that Rural's directory was nothing more than an alphabetic list of all subscribers to its service, which it was required to compile under law, and that no creative expression was involved. The fact that Rural spent considerable time and money collecting the data was irrelevant to copyright law, and Rural's copyright claim was dismissed." . http://en.wikipedia.org/wiki/Feist_Publications_v._Rural_Telephone_Service . http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=499&invol=340

Wasn't there a "sampling" case where it was ruled that using a certain percentage of a song (a few seconds IIRC) were not considered to be copyright infringement?

No, but there was a famous sampling case in which the judge ruled explicitly "Get a license or do not sample." The issue of sampling hasn't seen any Supreme Court action, but at the moment this is the highest ruling on the matter, and it explicitly outlaws any and all digital sampling.

Here's the actual opinion, it's actually pretty readable.

as far as I know you are governed by where you have physical presence.

Not so, in general. For example, Finnish criminal law states that it applies to crimes that have occurred in Finland OR in a Finnish ship or plane OR where the victim is Finland (!) or a Finn OR the perpetrator is a Finn OR the crime takes place in a territory with no laws OR it's an "international crime" OR an extradition request has been denied and some more obscure things and exceptions. Moreover, the place where the crime occurred is defined as both where it was committed and where the consequences occurred.

The situation is more or less similar elsewhere, and can be summarized as "we _can_ prosecute you if we want to, period". Some countries can even send their soldiers to get you if you can't be extradited - remember Eichmann, or Noriega?

In practice most countries rarely prosecute foreigners for crimes committed abroad, but there are some notorious exceptions.Consider the case of Rachel Ehrenfeld vs. Khalid bin Mahmouz, where a Saudi sued an American for a book published in USA in an English court, and won - by default, Ehrenfeld refused to travel to England to be prosecuted for something that had nothing to do with UK. She countersued in NY... the case is still pending (see, e.g., Julie Hilden's column.

I too own an S Corporation and the shareholders are not subject to self employment taxes. I pay my SS taxes on my wages, the company pays the other half. The corporate profit passes through to my taxes as ordinary income and taxes are paid on that. Active LLC owners are subject to the self employment tax. This is one of the advantages of S Corp over LLC.

"S corporation shareholders are not subject to self-employment taxes (active LLC owners are). These taxes, which add up to more than 15% of your income, are used to pay your Social Security and Medicare taxes."
http://smallbusiness.findlaw.com/business-structures/corporations/corporations-s-corp-facts.html

1st amendment rights only apply to (as should all constitutional rights) citizens.

Wrong0. Also, assuming you have any respect for the constitution, freedom, the American way of life, you would know that the government does not grant rights but rather acknowledges them. As such, the rights apply to all. Read the Declaration of Independence. Research the issue further. Your political education is lacking.

Following a visit to her hometown of Coalinga California in 2005, Cynthia Moreno wrote "An ode to Coalinga," and posted it in her MySpace page. The Ode opened with "the older I get, the more I realize how much I despise Coalinga" and made a number of negative comments about Coalinga and its inhabitants. The entry was posted for six days before Moreno removed it but that was long enough for the principal of Coalinga High School to find the ode and forward it to Pamela Pond, editor of the Coalinga Record, who published it in the newspaper's letters section. Local reaction was swift. Moreno's parents say they received death threats, a gun shot was fired at their home and her father's 20-year-old business lost so much money that it was closed and the family moved out of town. Moreno and her family responded by suing for invasion of privacy and intentional infliction of emotional distress. Now a Fresno based appellate court says Moreno had no grounds for her claim of invasion of privacy even if she meant her thoughts for a limited audience. "Cynthia's affirmative act made her article available to any person with a computer and, thus, opened it to the public eye," wrote Justice Levy. However, the claim for intentional infliction of emotional distress was not dismissed and a jury will get to decide if the defendants' conduct was extreme and outrageous. In the meantime the editor who republished the essay has been fired and lawyer Eric Goldman, Associate Professor of Law at Santa Clara University School of Law, wonders "if the violent and ostracizing community response to Moreno's post didn't in fact validate some of her critiques."

more info

http://www.law.com/jsp/article.jsp?id=1202429677896

http://arstechnica.com/tech-policy/news/2009/04/court-your-myspace-page-isnt-private.ars

And the court summary..

http://fsnews.findlaw.com/cases/ca/caapp4th/slip/2009/f054138.html

Interesting, I did not know of this. In the UK I think she would of had more success with the courts.

In any case it is common sense to watch what you post online. Once you click that mouse its gone, and you can never be sure that you can retract or recover.