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No, but technology results in the possibility of operating a large government. And in the case of the United States results in an explosion of interstate commerce. Now, that provides the opportunity for Federal intervention in many areas that were reserved for states under the argument that it affects "interstate commerce."


Think about all the programs, agencies, and laws the government is operating or executing and saying it's constitutional because of "interstate commerce.": Social security, Medicare, Interstate highways, FAA, FCC, minimum wage laws, and the National Labor Relations Board and related union laws, just to name a few for starters.
Some will say that the government is constitutionally running these programs under a vague "general welfare" clause. But that's not true. General welfare is only mentioned in the preamble: and the preamble is not allowed to be used as legal proof, it is just the corporate equivilent of a mission statement. The Civil Rights Act of 1964 that says you can't discriminate based on protected classes in places of public accomodation (like banks, hospitals, motels, etc) is totally based on interstate commerce. When the Heart of Atlanta Motel denied black people rooms the government sued and the motel said the law was unconstitutional. The government's argument was that a person could visit Atlanta from another state and thus it affects interstate commerce.

See the decision here

How much Interstate Commerce occurred in the 18th Century? Much...much, less.

The US Supreme Court in 1942 wrote that US citizens can indeed be tried by military commision:

"But the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted."

and

" The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.

By the Articles of War, 10 U.S.C. 1471-1593, 10 U.S.C.A. 1471- 1593, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts [317 U.S. 1, 27] martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. Arts. 1, 2. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. And Article 15 declares that 'the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions ... or other military tribunals'. Article 2 includes among those persons subject to military law the personnel of our own military establishment. But this, as Article 12 provides, does not exclude from that class 'any other person who by the law of war is subject to trial by military tribunals' and who under Article 12 may be tried by court martial or under Article 15 by military commission.

Similarly the Espionage Act of 1917, which authorizes trial in the district courts of certain offenses that tend to interfere with the prosecution of war, provides that nothing contained in the act 'shall be deemed to limit the jurisdiction of the general courts-martial, military commissions, or naval courts-martial'. 50 U.S.C. 38, 50 U.S.C.A. 38."

Also:

"Such was the practice of our own military authorities before the adoption of the Constitution,9 and during the Mexican and Civil Wars. 10 [317 U.S. 1, 32] Paragraph 83 of General Order No. 100 of April 24, 1863, directed that: 'Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.' And Paragraph [317 U.S. 1, 33] 84, that 'Armed Prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.'"

There's more:

" Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents n

Disclaimer: Nothing you read on Slashdot is legal advice.

Title 17, United States Code, section 1201, commonly called "DMCA", contains an exemption for some law enforcement actions:

(e) Law Enforcement, Intelligence, and Other Government Activities. - This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term ''information security'' means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network.

So if your day job is with a government agency and your night job is PearPC developer, then you are an "employee of the United States, a State, or a political subdivision of a State". Investigating alleged copyright infringement is certainly "investigative, protective, information security, or intelligence activity".

In addition, others have pointed out that should it turn out that CherryOS is an infringing copy of PearPC, then the developer of CherryOS did not have standing to make the offer expressed in the EULA.

Unless copyright infringement became a criminal offense and I didn't notice it

That case does not forbid discrimination on basis of intelligence. It forbids discrimination on basis of a generalized intelligence TEST , which is a very different thing. Many huge employers, such as the military and General Motors, have collected such test data on large numbers of people and tracked the subsequent careers, and I would be very interested in any data showing any correlations at all. (As far as I know, there are some weak correlations with High School GPA and with SAT scores. There are none for any large sample size that correlate general career success with much else; in particular, finishing college or college GPA.)

Even the military's vocational aptitude test are pretty much correlated with basic job performance only, and not promotion, re-upping, and a unit composed of higher scorers is not very much more likely to achieve overall goals.

These are all things that we all know anyway. Mensa style tests measure the ability to do mensa style tests. There are plenty of homeless mensa members.

Organizations staffed by career managers have a tendency to gravitate to arbitrary measures of individuals. Take the ancient Chinese empires which promoted clerks based on memorization of large amounts of poetry; the British class system with it's meaninglessly precise formulas of parentage, economic status, military rank, age, etc; and modern "professionally managed" corporations with their intelligence tests and Briggs-Meyers nonsense. Perhaps any arbitrary number that can be ascribed to a person insulates promoters from the consequences of mistakes in promotion ?

If your future is in any way intangled with a larger organization of people, such as a medium sized company or academic institute, I urge you to read The Organization Man by William Whyte. (Chapter 16, "The Fight Against Genius", will be especially interesting to hackers.) Whyte talks about the Meyer-Briggs test and intelligence tests, and how they are abused, and the book includes an appendix which is a tutorial on how to cheat on a personality test to make yourself look more attractive to a large organization.

But back to discriminating based on general intelligence. Nothing in that decision prohibits you from discriminating on the basis of tests that you can show have a correlation to success, or even on your own perception of general intelligence, with the exception that if your general perception of intelligence shows a high degree of correlation with race, sex, or religion, you may be in trouble.

As a postscript, there's a general rule of thumb here, which the legal profession in it's characterist obligueness won't directly articulate. As long as you are still running off of your own money, and unincorporated, you are fairly insulated from these issues, as long as you don't behave outrageously. As soon as you take that priviledge of the protections of incorporation, you can expect to pay for that priviledge by living up to certain community standards. It is that acceptance of the corporate priviledge that makes these regulations seem acceptable to even a radical Individualist like myself.

i find it very difficult to see where WP would be far superior to OpenOffice.

In case you've missed out, you might want to take note that folks in the legal profession have very specific requirements vis-a-vis word count, to the extent that there have been legal snafus caused by incomplete word count functionality in MS Word (link courtesy this post by Animaether).

Given that OOo's word count has had numerous problems, apparently even in the v2.0 beta,, and given how fundamentally important an accurate and simple word count is in so many real-world applications (legal, scientific, academic, business, yada yada), I can see quite easily how OOo would be kept out of the running.

Not meaning to piss on your parade, but OOo's just not there yet. I love it -- it's free, it's functional, but it's also "almost" -- it's soooo close to being what people need, but close isn't good enough in some areas.

Journalists are given a wide latitude to speak, because they help keep our governmental processes open to public inspection, which is one of the policies behind having the First Amendment at all. Sometime when you have fifteen minutes to kill, read Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976). For a contrasting viewpoint severely limiting freedom of speech, read Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), which specifically references Nebraska Press and says why it shouldn't apply to lawyers (skip to Rehnquist's opinion, part II).

That is rather the point: yes. More exactly, under the California State Constitution, journalists and publishers are immune in many cases from being held in contempt of court (and thus jailed or fined) for failure to comply with a subpoena to reveal their sources. (An exception is recognized where this would interfere with a criminal defendant's US 6th Amendment right to a fair trial.)

From what I can see, journalists are not immune to subpoena, they're immune from the consequences of telling a judge "no" when they get a subpoena for the identity of an anonymous source. The judge can still issue the subpoena in hopes that the journalist will comply (perhaps after getting permission from the source), but can't do squat if the journalist refuses.

Of course, if you look up Article 1, Section 2, it is clearly delineated that newspaper, magazine, wire service, TV, and radio journalists and publishers are protected. On the other hand, it is not clear if a blogger falls into any of these categories-- which were written into the constitution before blogging became big. A strict constructionist judge might well say "no, bloggers are fair game", while a more interpretive judge might well say, "they seem to be delineating a category here that bloggers appear to fit into; hands off." And this is why we have appeals courts, and why appeals judges buy ibuprofen in bulk. =)

Disclaimer: I am not a lawyer, I just read case law for entertainment.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?c ourt=7th&navby=case&no=991754A

My friend's father Maynard Webb has an AA in criminal justice and makes a Fairly nice bonus

Regardless that the risk of losing a job is real, the CNN and Washington Post stories fail to mention the benefits to society of news blogs like mine that highlight the relevance of buried stories, and even break stories from time to time.

The press is supposed to be acting as the unofficial fourth branch of the U.S. government, to keep the other three in check. This is eloquently summarized in a 2002 6th Circuit Court decision:

In our democracy, based on checks and balances, neither the Bill of Rights nor the judiciary can second-guess government's choices. The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty.(1) "An informed public is the most potent of all restraints upon misgovernment[.]" Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936). "[They] alone can here protect the values of democratic government." New York Times v. United States, 403 U.S. 713, 728 (1971) (per curiam) (Stewart, J., concurring).

[...] [Footnote 1] A draft of the First Amendment specifically referred to the press as "one of the great bulwarks of liberty." New York Times v. United States, 403 U.S. 713, 716 (1971) (per curiam) (Black, J., concurring).

The mainstream media is scared. After the tenth anniversary of Yahoo!, they haven't figured out yet what to do with the Internet. In a desperate bid, the Washington Post just bought Slate -- a marriage as divine as AOL/Time Warner. Here are two quick suggestions for any mainstream media moguls who happen to be reading this:

1. Provide deep links to primary source documents like the bloggers do (court decisions, legislative bills, corporate press releases, etc.)
2. Allow the readership to vote stories up to the front page. (Advanced: provide for affinity groups, in the manner of Amazon.)

The first mainstream media outlet that can leverage its brand, overcome these hurdles, and embrace the nature of the Internet (namely, linking and collaboration) stands to make a financial killing while simultaneously living up to their charge by the founding fathers of being our "guardian of liberty."

The RIAA seems to organize the cases, but the actual cases are technically brought by the labels.

about the claimed violation of U.S. Patent No. 5,838,906 may be read from the PDF at this address. I'm kind of curious why, since Microsoft, in Washington State, and the University of California, whose location is left as an exercise to the reader, are both located in the 9th Circuit, that the case was originally tried in Illinois, the 7th Circuit. Probably that's where Eolas is located.

The Bridgeman decision is based on the famous Feist vs. Rural Telephone case. This Supreme Court decision that phone directories are not original enough to be copyrighted created the third-party phone book industry. When the Internet came along, the Feist decision permitted a whole range of directory-type services. As the Court put it, "The originality requirement is constitutionally mandated for all works.", and "No one may claim originality as to facts." This last is why databases of facts are not copyrightable in the US.

Corbis has a clever, but legally questionable, scheme for claiming copyright on public domain images. They add digital rights management information to the image, and then copyright the DRM information. They then claim that copying the DRM information violates their copyright, and removing it violates the DMCA. That's very similar to the argument Lexmark made in Lexmark vs. Static Control, and it didn't work there: "Generally speaking, "lock-out" codes fall on the functional-idea rather than the original-expression side of the copyright line." and "Similarly, a computer program may be protectable in the abstract but not generally entitled to protection when used necessarily as a lock-out device."

Has anyone even bothered to mention the Uniform Trade Secrets Act? First of all, if Think Secret is openly soliciting for trade secrets, then it is clear that they may be held liable themselves. If they are guilty of this, I have no qualms labeling them criminals instead of journalists, which defeats the Shield law defense in witholding their "sources."

where in copyright law does it state that I can't view it multiple times?

The 1984 case between Sony and Universal. You cited it, so maybe you should read it. That case found that "time shifting", and only "time shifting", was a legal use. That means that you tape the show once, and watch it later ONCE, and WITHOUT fast-forwarding through commercials.

Anything else, such as multiple views, sharing with friends, or commercial skipping, is outside the scope of that decision.

If you haven't recognized the name Kollar-Kotelly, this is the same judge that gave Microsoft the get out jail free card after they were found to be a monopolist and violating anti trust law. Ralph Nader wrote a good letter to her summarizing her flawed decision making in that case.

She also ruled against a number of the FEC efforts to implement McCain-Feingold last year.

She also serves on the Foreign Intelligence court, whose proceedings are mostly secret but is widely thought to be a rubber stamp for the Bush administration's abuse of civil liberties.

Not sure if she is incompetent, malevolent or something completely different, but I suspect she is in over her heading ruling on cases that involve computing and technology. She may also have developed a mind set that causes her to routinely side with the power thats be, big government, big business and establishment politics over the people.

texas law

alaska code

findlaw's link to various state codes so you can check for yourself.

MA law is vague

Scalia was cherry-picking precedents that supported his particlar point of view and ignoring ones that didn't.

You are not required to carry ID with you at all when you drive. You are only required to furnish proof of a licence to drive within an applicable time period or you get a fine.

Depends on your state. in NYS you are required to exhibit your license under Vehicle & Traffic Law, section 507, subsection 2, which reads:
2. Failure to exhibit license. Failure by a licensee to exhibit a license valid for operation under this chapter, not including any record of convictions stub to any magistrate, motor vehicle license examiner, motor vehicle investigator, peace officer, acting pursuant to his special duties, or police officer shall be presumptive evidence that he is not duly licensed.

They can still look you up by name and address

And if you are not carrying appropriate ID, how do you propose you establish your identity? I know people who have gotten royally screwed because someone else claimed to be them and proper ID was not provided. How easy would you like it to be for someone to committ a minor offense, use your name, and fail to pay the fine? Remember that this will lead to a warrant being issued in most cases.

From: http://library.lp.findlaw.com/articles/file/00105/ 009525/title/Subject/topic/Constitutional%20Law_Tr avel/filename/constitutionallaw_1_355

Aviation Law Alert: Court Recently HoldsThat Identification and Search Requirements at Airports Are Constitutional

April 2004

Since the tragic events of September 11, 2001, regulations and statutes have been implemented to ensure the safety of the public, both in the air and on the ground. Many of these newly enacted laws are facing challenges in the court system. One such challenge to the requirement that airline travelers identify themselves and allow themselves to be searched was recently decided in favor of the enforcing organizations.

On July 4, 2002, the plaintiff, John Gilmore, purchased a commercial airline ticket for travel from Oakland, California, to Baltimore, Maryland, in order to "petition the government for redress of grievances and to associate with others for that purpose." At the airline check-in counter, the plaintiff refused to voluntarily produce a government-issued identification, but was offered the option of consenting to a search at the screening checkpoint, which he did.

Once at the boarding gate, the plaintiff was again asked and again refused to provide a government-issued identification. This time he was not permitted to board his flight.

The plaintiff then filed a lawsuit against a number of private and federal government entities, including the TSA and the FAA, arguing that the requirements to produce a governmentissued identification and to consent to search as a condition of commercial air travel were unconstitutional. The plaintiff also alluded to arguments that the government was exceeding its authority to examine passenger names and identifying information against "no-fly watch lists" through the Consumer Assisted Passenger Prescreening System ("CAPPS").

The plaintiff brought the following constitutional causes of action in his lawsuit styled John Gilmore v. John Ashcroft, et al., No. C02-No. C02-3444 SI (N.D. Cal.):

1. Fifth Amendment: violation of his due process rights as an unconstitutionally vague government policy or directive;

2. Fourth Amendment: violation of his right to be free from unreasonable searches and seizures where he faced the "penalty" of being denied permission to fly if he refused to comply with either;

3. Right to Travel: violation of his fundamental right to domestic travel as the requirements were unreasonable government burdens and restrictions on his movement;

4. Freedom of Association: violation of his First and Fourth Amendment rights to freely associate with others who also sought to travel to Washington, DC, for political purposes;

5. Right to Petition Government for Redress of Grievances: violation of his fundamental right to petition government by unduly burdening his exercise of travel to where the seat of government is located.

The named defendants subsequently moved the district court to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted. On March 23, 2004, the district court issued an order dismissing all of the plaintiff's claims, finding that the identification and search requirements

1. were not necessarily vague as they were permissible means of providing screening of all passenger and property aboard a passenger aircraft (49 U.S.C. section 44901) and the airline was within its right to deny transport to passengers who refused consent to search (49 U.S.C. section 44902)--since the plaintiff's claim squarely attacked the orders or regulations issued by the TSA and/or the FAA with respect to airport security, the district court was without jurisdiction to hear the challenge and, without the unpublished regulations or statutes before it, th

You may perhaps have heard the old saw that "ignorance of the law is no excuse", a concept which implies that it is the duty of all citizens to know all the laws, or at least, understand what kind of behavior is in violation. You would find it hard to plead with a judge that you didn't know that it was illegal to steal a car or beat somebody up, just because you didn't read the laws prohibiting such actions.

Secret laws remove any possibility of knowing what is illegal, and will lead to a situation where every citizen can be charged for criminal acts, if the authorities find it convenient to do so. This is known as a "police state", examples of which can be found in Communist Russia, and the military juntas of the 70's in South America. This is what is the really big deal- the possibility that members of the government may have you arrested for breaking laws of which you know nothing. Let's not get into the possibilty that they might enforce laws which don't exist. We all know that our government's belief in the habeas corpus is shaky and we're already talking about just how hard it is to challenge "secret laws" which might exist, as that's the gist of the report to which this article refers.

This is fundamental change in the balance of power in the government, and potentially, a fundamental change in the form of our government. I am very glad that there are some citizens and organizations which realize this and are fighting to prevent such changes. I submit to you that showing an ID to board an airplane is exactly, exactly, the state of affairs that we were warned against by Benjamin Franklin when said "Those who would trade liberty for security, deserve neither."

If you believe that concerns about abuse of power are strawmen arguements, let me provide a few links for your perusal: Air Marshall Abuse and Public Indigity . These are the tip of the iceberg, as these events are not directed with purpose or malice, but a simple outgrowth of conditions. I have no wish to experience the horror the Argentinian people did when they were subject to secret laws.

Here you go

Well the court said that, in Roe v. Wade, that it was illegal for the state to tell a person what to do with their body.

And, well the court also said, that you must show identification to board an aircraft.

Case closed. Liberals, if you want to be able to change the laws from the judicial branch of governemnt (gay marriage, abortion, patriot act, etc) then you should at least live by the other court rulings as it would seem hypocritical to do otherwise. Oh wait....

OK, now mod me down!

Want to extend on what you mean by "unconstitutional"? Which part of the (I'm assuming American) constitution does it break?

the concept of eminent domain is not actually part of the constitution

The 5th and 14th amendments recognize de facto that the government has the power to take property for the common good, and requires fair compensation for that property.

Now ot seems to me that the taking of a patent with the idea that it would save the government money is truly a stupid idea - fair compensation would require that the company not be hurt by the taking. The constittion also provides protection against bills of attainder that might also be relevant.

See FindLaw

"But here we think the District Court correctly ruled that the two charges did not accuse of identical offenses. The indictment is for conspiring and we have but recently reviewed the nature of that offense. Pinkerton v. United States, 328 U.S. 640 . Its essence is in the agreement or confederation to commit a crime, and that is what is punishable as a conspiracy, if any overt act is taken in pursuit of it. The agreement is punishable whether or not the contemplated crime is consummated. But the same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the agreement to do the act is distinct from the act itself. " (Section 4)

IANAL - and even if I was, I wouldn't be a lawyer in the USA. Just thought I'd better mention that.

A lie would mean deliberate attempt to deceive and well, unless you KNOW for sure as in personally knowing the whole story,

Let's take a Walk down memory lane

Of noteworthy quote "The absence of any explanation for the gap between the statements and reality only increases the sense that the President's misstatements may actually have been intentional lies."

Furthermore: To put it bluntly, if Bush has taken Congress and the nation into war based on bogus information, he is cooked. Manipulation or deliberate misuse of national security intelligence data, if proven, could be "a high crime" under the Constitution's impeachment clause. It would also be a violation of federal criminal law, including the broad federal anti-conspiracy statute, which renders it a felony "to defraud the United States, or any agency thereof in any manner or for any purpose."

How many lives were lost because Clinton put a cigar tube into a fat intern?

In other words, he's a lawyer. Presumably, his job was to either keep them from getting sued, at which he failed, or sue anyone who libels them, which seems to have succeeded. At least Homeland Security has Sovereign Immunity to fall back on.

...who this guy actually is:

http://profs.lp.findlaw.com/privacy/freeman.html

Looks like this guy is a well established lawyer with alot of FTC connections. He also specializes in privacy law, which means his job is to figure out every loophole available to help his clients exploit it thouroughly. ;)

No not The Onion, Salon. Which isn't much better.
And I guess it's true as CNET has picked up the story too.
He is apparently a Law Professor and teaches a class on The Regulation of Advertising.
My question is how can somebody such as himself be associated with a company like Gator that tries their best to trick consumers?
- Cary
--Fairfax Underground: Where Fairfax County comes out to play

Learn more about Mark D. Hopkins. Also see his Findlaw profile.

Learn more about Savrick Schumann Johnson McGarr Kaminski & Shirley.

I think it really comes down to how bad they want to make your life miserable. With user records being yanked from torrent services, all they have to do is throw up the "illegal" flag on this thing, and anything they do after that point would be "justified".

Usually when people bring up Roe v. Wade as an example of "legislating from the bench", they're an abortion foe and a religious extremist.

Stop embarrassing yourself and actually read the opinion. There, I've even given you a link. Pay close attention to the summary in Part XI where Justice Blackmun creates the trimester distinctions out of whole cloth. Naked value judgments such as these are to be left to legislatures, not to the men in black. The Court itself recognized this folly in Planned Parenthood v. Casey.

"The CTEA [Copyright Term Extension Act]extended the term of protection by 20 years for works copyrighted after January 1, 1923. Works copyrighted by individuals since 1978 got "life plus 70" rather than the existing "life plus 50". Works made by or for corporations (referred to as "works made for hire") got 95 years. Works copyrighted before 1978 were shielded for 95 years, regardless of how they were produced."

And thus, the reason why I cannot sell my bootleg Mickey shirts for another few decades. :) --Teechur007

government can always undercut the opponent and hide the costs in taxes; few will ever complain.

Those books are open. And, in my experience, there is never any lack of picky people complaining. Private corps, by comparison, can hide any level of profit, gouging, or executive largess behind their closed books. And they can ignore any complaints.

If it's like any other government service, it will be poorly and insecurely run, slow to respond (for instance, blocking ports to stem the spread of viruses), and twice as expensive as anything else. (Amtrak, anyone?)
If Amtrak tickets are more expensive than other modes, perhaps this is because there are fewer hidden tax dollars funding it.
2004 U.S. Department of Transportation 54.5 billion
Aviation 13.8 billion (25%)
Highways 33.9 billion (62%)
Railroad 1.45 billion (2.7%)
Other 5.35 (10%)
This doesn't even begin to address the local and state monies that go into roads and airports.

Where governments have actually done broadband, the results have been good. All the reasons given to stop govts doing this smell of FUD.

The Lexmark decision was a nice victory, but the Federal Circuit decided a DMCA case that may well have a bigger impact on the interpretation of the DMCA - The Chamberlain Group v. Skylink Technologies, 381 F.3d 1178 (Fed. Cir. 2004). Opinion on Findlaw

The Federal Circuit basically read into the DMCA an "intent to pirate" requirement - simple circumvention isn't enough to violate the DMCA unless you intend to pirate or facilitate piracy of copyrighted works. What effect the ruling will have isn't clear, but it goes MUCH farther than the Lexmark decision. Lexmark basically said (a) that the code contained in the Lexmark printer cartridges wasn't copyrightable and therefore the DMCA couldn't apply, and (b) that in any event, the code was only protected from one form of access, but was completely unprotected via another - i.e. it was not effectively protected. Meaning the 6th circuit didn't really address the big issue - can the DMCA be used to stifle competition?

To get a quick idea of where the Chamberlain Group decision went, read the relatively short (2 page) concurring opinion in Lexmark by Judge Merritt (cite: 387 F.3d 522) Lexmark Opinion on Findlaw.

The Lexmark decision was a nice victory, but the Federal Circuit decided a DMCA case that may well have a bigger impact on the interpretation of the DMCA - The Chamberlain Group v. Skylink Technologies, 381 F.3d 1178 (Fed. Cir. 2004). Opinion on Findlaw

The Federal Circuit basically read into the DMCA an "intent to pirate" requirement - simple circumvention isn't enough to violate the DMCA unless you intend to pirate or facilitate piracy of copyrighted works. What effect the ruling will have isn't clear, but it goes MUCH farther than the Lexmark decision. Lexmark basically said (a) that the code contained in the Lexmark printer cartridges wasn't copyrightable and therefore the DMCA couldn't apply, and (b) that in any event, the code was only protected from one form of access, but was completely unprotected via another - i.e. it was not effectively protected. Meaning the 6th circuit didn't really address the big issue - can the DMCA be used to stifle competition?

To get a quick idea of where the Chamberlain Group decision went, read the relatively short (2 page) concurring opinion in Lexmark by Judge Merritt (cite: 387 F.3d 522) Lexmark Opinion on Findlaw.

U.S. Constitution : Article I : Clause 3. Commerce Power : Power to Regulate Commerce

"Upon clarification by counsel that he was arguing (at least primarily) that the imposition of collection responsibilities would unduly interfer with interstate commerce, Justice O'Connor confirmed that the issue is whether the tests established by Complete Auto Transit, Inc. v. Brady 430 U.S. 274, (1977) permit the state to impose this duty. Complete Auto held that a state may impose a tax upon interstate commerce activities if the following requirements are satisfied: 1. The activity has substantial nexus to the state; 2. The tax is fairly apportioned; 3. The tax does not discriminate against interstate commerce; and 4. The tax is fairly related to the services provided by the state."

COMPLETE AUTO TRANSIT, INC. v. BRADY, 430 U.S. 274 (1977)

You may not like or agree with that interpretation, of course, but that's the Law of the Land today...
-l

MINNEAPOLIS & ST. L. R. CO. v. BECKWITH, January 7,1889

"we admit the soundness of his position, that corporations are persons within the meaning of the clause in question."
This gave corporations privileges like freedom of speech and due process.

From Timeline of Personhood Rights and Powers "Of the 14th Amendment cases brought before the Supreme Court between 1890 and 1910, 19 dealt with African Americans, 288 dealt with corporations." America - home of the free.

Yes, its totally off topic.

Hate to screw up a good rant, but software is, by definition, a public good.

A public good is non-excludable, and non-rivalrous in consumption. That is, like a streetlight, you can't keep people from benefitting by it (non-excludable), and you don't lose any of your benefits when others benefit by it (non-rivalrous). Schooling is not a public good, since it is easily excludable: just close the door of the school room.

... that's why we have licenses.

No.

Some public goods can be made artificially excludable by law. Lighthouses are a good example of this (lighthouses in England were once private, for-profit, very lucrative businesses). Software is another example of a public good which can easily be made artificially excludable. That's ``...why we have licenses'': to artificially turn a public good (information) into a private good.

We originally began doing that because our constitution allows (but doesn't require) our congress to grant these monopolies:

``To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;'' (article 1, section 8, discussed here.)

Whether it is still a good idea for Congress to grant those monopolies to all software creators is an empirical question, and the answer may be no. If we can identify any cases in which patents or copyrights are hindering progress in the sciences and useful arts, Congress would have no authority to grant those exclusive rights in those cases.

I've posted elsewhere in this topic, but there are ample definitions in the law. Here's one from NY State. Scroll down to Section 79-h (a)(6).

Well, these web sites are making their cases on Freedom of Speech grounds, specifically (as has been stated by various lawyers and legal briefs multiple times), and, more generally on First Amendment grounds.

IANAL, but from what I gather from this article, freedom of speech and freedom of the press protect the same rights (if there's a case that finds otherwise, I'd love to hear about it). The primary distinction seems to be that individuals speak and institutions publish - but both are protected (and if anything, freedom of speech is the one that protects more rights). Apple is suing Nick dePlume, publisher of Think Secret, not The dePlume Organization LLC or other such entity. This is one possible reason why their lawyers are making their cases based on speech rather than press, but I'm sure if it's legally advantageous to them, they'll consider both.

(6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.

New York State Consolidated Laws, Article 7, Section 79-h (a) (6)

The solution is for the government to create a Commision with real power (like the SEC) to police these guys and fine/imprison those found negligent. The information industry has become too critical to be allowed to betray the public trust without serious repercussions. These bastards have had a free ride up to now (ChoicePoint's web page says "ChoicePoint® Reports Record Revenue, EPS").

We need a full investigation. ChoicePoint's liability could be enormous. It is clear a cover-up may be going on.

It's time to Arthur Andersen these bastards out of business.

Yet there's also an interest in people not being able to claim that they are wikipedia.org, the site where the work is being built.

A trademark on "wikipedia" might seem like one way to proceed, in part because that covers all of the other domains in various countries, until you notice that trademark law may then restrict of others from distributing the title page part of the work, "Wikipedia, the free encyclopedia".

Now, it seems fairly clear that the Wikimedia Foundation would inevitably have to be granting a license to use the trademark name because that's required for others to distribute the work, something the Foundation is required to do by the GFDL license the Foundation is granted by the authors of the encyclopedia.

The United States Supreme Court has touched this general area of the interaction between copyright and trademark law in its Dastar v. Twentieth Century Fox Film Corp decision. That held that a trademark couldn't be used to prevent the publc domain right to use a work. That's correctly taken as a major victory for the public domain but very similar logic also seems to apply when it comes to trademarks for open source works, particularly when, as in the Wikipedia case, the prospective trademark owner isn't the author of the work but simply a (albeit very important!) licensee.

Still, it's uncomfortably messy and it would be nice if a future GFDL version clarified that trademark law may not be used to prohibit distribution of the correctly named work either, as it does now for technnical means.

This is an area which the Creative Commons ShareAlike License seems to better resolve in the wording of its license grant, though it's still not as explicit as it might usefully be.

The views in this post are mine alone. No part of this post should be taken as reflecting the views of the Wikimedia Foundation or its Board - indeed, it's possible that the Foundation or one or more of its Board members might disagree, since it's not something I've discussed with the whole board.

I am still looking into this Article I/III issue, but to response to my "other wacky Consitutional options saying income tax is illegal"

(Note: I don't say it is illegal, just not needed to be paid by regular folk. There are people who need to payit but not 98% of Americans)

I will refer you to (BOTH of these are Surpeme Court decisions.):
FRANK R. BRUSHABER, Appt., v,UNION PACIFIC RAILROAD COMPANY. (Too long and nothing worth quoting out of context)

Or STANTON v. BALTIC MINING CO, 240 U.S.103(1916)
I quote (emphasis mine):
"But, aside from the obvious error of the proposition, intrinsically considered, it manifestly disregards the fact that by the previous ruling it was settled that the provisions of the 16th Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed [240 U.S. 103, 113] in the category of direct taxation subject to apportionment by a consideration of the sources from which the income was derived,-that is, by testing the tax not by what it was, a tax on income, but by a mistaken theory deduced from the origin or source of the income taxed."

For more info see:
This PDF will lay it out better than I can.

Thank you for listening! I hope you continue to investigate with an open mind. I think you'll be surprised. I started on this because I tried to disprove someone as you are doing now.

I am still looking into this Article I/III issue, but to response to my "other wacky Consitutional options saying income tax is illegal"

(Note: I don't say it is illegal, just not needed to be paid by regular folk. There are people who need to payit but not 98% of Americans)

I will refer you to (BOTH of these are Surpeme Court decisions.):
FRANK R. BRUSHABER, Appt., v,UNION PACIFIC RAILROAD COMPANY. (Too long and nothing worth quoting out of context)

Or STANTON v. BALTIC MINING CO, 240 U.S.103(1916)
I quote (emphasis mine):
"But, aside from the obvious error of the proposition, intrinsically considered, it manifestly disregards the fact that by the previous ruling it was settled that the provisions of the 16th Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed [240 U.S. 103, 113] in the category of direct taxation subject to apportionment by a consideration of the sources from which the income was derived,-that is, by testing the tax not by what it was, a tax on income, but by a mistaken theory deduced from the origin or source of the income taxed."

For more info see:
This PDF will lay it out better than I can.

Thank you for listening! I hope you continue to investigate with an open mind. I think you'll be surprised. I started on this because I tried to disprove someone as you are doing now.

Interesting.