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The question is about whether a State has the authority to require a State ID to be given on demand. The State DOES have that authority, because it isn't expressly forbidden by Federal law.

In pertinent part, NRS 171.123 provides:

1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
...
3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

4. A person may not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes.

Most states have statues that require you to identify yourself to law enforcement. There are a number of good reasons for this.

There are no good reasons for this, and the U.S. Supreme Court ruled in Brown V. Texas that a Texas law of this nature violated the 4th Amendment to the Constitution.

Two police officers, while cruising near noon in a patrol car, observed appellant and another man walking away from one another in an alley in an area with a high incidence of drug traffic. They stopped and asked appellant to identify himself and explain what he was doing. One officer testified that he stopped appellant because the situation "looked suspicious and we had never seen that subject in that area before." The officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed. When appellant refused to identify himself, he was arrested for violation of a Texas statute which makes it a criminal act for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." Appellant's motion to set aside an information charging him with violation of the statute on the ground that the statute violated the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he was convicted and fined.

Held:

The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be "reasonable." Cf. Terry v. Ohio, 392 U.S. 1 ; United States v. Brignoni-Ponce, 422 U.S. 873 . The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society's legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, 440 U.S. 648 . Here, the State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officers' actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal [443 U.S. 47, 48] security and privacy tilts in favor of freedom from police interference. Pp. 50-53.

The don't need to make new law they just have to say that requiring ID is a violation of the 4th amendment. This court has shown itself to be a VERY big supporter of citizens rights under the 4th amendment RE:Kyllo v. US and others.

The California law that claimed to require people to produce ID was declared unconstitutional by both the Ninth Circuit and by the Supreme Court. That case was Kolender v. Lawson. Edward Lawson is a black man in dreadlocks who was stopped and/or arrested more than 20 times for walking around in neighborhoods where the cops didn't like to see black guys. Eventually he filed cases against these cops and won. The cops appealed all the way to the Supreme Court and lost. The Ninth Circuit said it violated his Fourth Amendment rights and was too vague. The Supremes merely said it was too vague, and didn't inquire further -- which is why they needed to take the Hiibel case.

From the transcript on the video page, you can see that Deputy Dove was demanding papers: "I need to see some identification", then "I just need to see some identification", then "Show me your identification".

Not "Who are you?". But "Show me your papers!".

The standard advice from ANY lawyer is to not say anything when accosted by cops. Not even your name. And the mass of court decisions, e.g. Kolender v. Lawson, concurring opinion of Brennan state that nobody has to answer ANY of the questions a cop asks of them -- even IF the cop suspects them of a crime:

"... States may not authorize the arrest and criminal prosecution of an individual for failing to produce identification or further information on demand by a police officer."

Here's another one, Terry v. Ohio, concurring opinion by White: "[T]he person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation." 88 S.Ct., at 1886 (White, J., concurring).

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Two points - The professor has no right to force a shutdown of the site, lawsuit threat or not. He can insist and plead, but short of an injunction (or the ISP taking the site down, as is their right), the host could keep his site up. The professor might not like what content was up there, but his remedy is against the AUTHOR of the statements, not the SITE. Second, this seems to me to be a case of the site getting a threat of suit and just caving in to the threat. Under 47 USC 230(c), the site would not be liable as an author of the posts, foreclosing suit against them. Given that, I would really like to see what legal grounds they have to stand on.

Disclaimer - The foregoing is only to be used for the purpose of discussion and should not be construed as legal advice related to any current or future problem, nor should it be relied upon by anyone without consulting a licensed attorney.

Sticking two existing things together and calling it something new has a long history. The guy who first stuck an erasor on the end of a pencil (named Hymen Lipman -- I'm not making this up!) got a U.S. patent on it! It was later overturned by the U.S. Supreme Court because a pencil manufacturer decided to fight it.

Actually, the power to regulate commerce with foreign powers rests with the United States Congress. Article I - Legislative Branch.

WTF? Because my handle is from the name of a Sanskrit playwright and (more directly) of a character in an Arthur C. Clarke book, and because I watched the news enough to know how to translate the word "al Qaida" (and was apparently wrong: it is not "the Station," but "the base, the foundation," if this fellow is correct ), I must hate America?

As mentioned in my rejected story sub from last week, several other states are already participating in MATRIX.

For more information, you can look at the MATRIX homepage, listen to an NPR program, read some newspaper columns, a findlaw article, and a politechbot writup.

The list of participating states can be found here.

Hmm, IANAL, but I am going to law school this fall; partly because I want to understand IP law. I've been reading a lot about what to expect, and talking with judges, lawyers, and current law students. From this perspective, I think the above recommendation is a bit off because:

1. From what I understand of casebooks, they comprise court briefs of cases that either set trends or highlight a specific area of law for the subject involved. If you can read through hundreds of pages of small-print mind-numbing material, you might obtain a throught provoking overview.

2. Casebooks assume the reader already knows what is being discussed. As I said, they are court briefs, written by judges (or their clerks) for judges, clerks, and lawyers. Those briefs end up in a casebook because the editor thought them important. Law school casebooks are not the same as "regular" text books. They are not intended for the lay reader. The fact they are used in law school does not mean they are suitable for self-learning.

I've been told that trying to learn the law from a casebook alone is akin to trying to learn how to play bridge by reading the bridge case studies in the daily paper. I don't know about you, but I've been looking at those damned things for decades and still don't know a flippin' thing about bridge except it is a card game.

Some of those whom either survived law school or are in law school that I spoke with have referred to casebooks as the biggest reason why they call law school the deepest, darkest pit of Hades where Satan piles the course load on your supine body and jumps up and down mercilessly for three years. That might be a bit of an overstatement by some of them, but I think the meaning is conveyed.

Maybe you're thinking of a study aid? These do a better job of breaking the law down for you. I highly recommend them as I am using these aids to self-study before school. You might also consider an outline.

NIST tells us not to use anything solvent-based, and Sharpies are solvent-based markers. In fact, the Sharpie Materials Safety Data Sheet (pdf) tells us they contain 3 different solvents - a propanol, a butanol, and an alcohol. One Eric Teel of Jefferson public radio (in Oregon) wrote the manufacturer of Sharpies and they said there could be problems.

Damn, and I've got hundreds of CD-Rs written on with Sharpies. I hope they last till I get around to buying a DVD burner and transferring the data.

Not anymore.

The US Supreme Court declined to hear an appeal (warning: pdf) (denied a petition for a writ of certiorari) of the US 5th Circuit's en banc ruling in SOUTHERN BUILDING CODE V. VEECK, PETER that re-decided the 5th Circuit's previous panel decision that affirmed the District Courts's summary judgment in favor of defendant Southern Building Code Congress International Inc, reversing the District Court and remanding the case to it for dismissal of SBCCI's claims.

Or to be less concise:

A three-judge panel, with one judge dissenting, of the 5th Circuit initially found that Souther Building Code Congress International Inc. retained copyright to its codes even though those codes were incorporated by reference in the law of, among other places, two Texas towns, Anna and Savoy. The majority's decison laregly rested on findings of other Circuit Courts, and explcitly said that "We decline to create a circuit split by reaching the opposite conclusion today." The majority's opinion held that the Supreme Court's finding in Banks v. Manchester didn't apply to the controversy at hand.

Then one of the judges of the 5th Circuit asked that the all the judges in the 5th Circuit decide the case -- this is called the circuit sitting en banc -- and a majority of the 5th Circuits judges agreed to hear the case en banc.

The decision of the majority (9-6, with the Chief Judge dissenting) of the entire 5th Cirucit took a diferent view of Banks v. Manchester, and so reversed the Distruct's Court's summary judgment in favor of SBCCI's claim that Veeck had violated SBCCI"s copyright to the building codes at issue, by posting them on his web site.

Not anymore.

The US Supreme Court declined to hear an appeal (warning: pdf) (denied a petition for a writ of certiorari) of the US 5th Circuit's en banc ruling in SOUTHERN BUILDING CODE V. VEECK, PETER that re-decided the 5th Circuit's previous panel decision that affirmed the District Courts's summary judgment in favor of defendant Southern Building Code Congress International Inc, reversing the District Court and remanding the case to it for dismissal of SBCCI's claims.

Or to be less concise:

A three-judge panel, with one judge dissenting, of the 5th Circuit initially found that Souther Building Code Congress International Inc. retained copyright to its codes even though those codes were incorporated by reference in the law of, among other places, two Texas towns, Anna and Savoy. The majority's decison laregly rested on findings of other Circuit Courts, and explcitly said that "We decline to create a circuit split by reaching the opposite conclusion today." The majority's opinion held that the Supreme Court's finding in Banks v. Manchester didn't apply to the controversy at hand.

Then one of the judges of the 5th Circuit asked that the all the judges in the 5th Circuit decide the case -- this is called the circuit sitting en banc -- and a majority of the 5th Circuits judges agreed to hear the case en banc.

The decision of the majority (9-6, with the Chief Judge dissenting) of the entire 5th Cirucit took a diferent view of Banks v. Manchester, and so reversed the Distruct's Court's summary judgment in favor of SBCCI's claim that Veeck had violated SBCCI"s copyright to the building codes at issue, by posting them on his web site.

Not anymore.

The US Supreme Court declined to hear an appeal (warning: pdf) (denied a petition for a writ of certiorari) of the US 5th Circuit's en banc ruling in SOUTHERN BUILDING CODE V. VEECK, PETER that re-decided the 5th Circuit's previous panel decision that affirmed the District Courts's summary judgment in favor of defendant Southern Building Code Congress International Inc, reversing the District Court and remanding the case to it for dismissal of SBCCI's claims.

Or to be less concise:

A three-judge panel, with one judge dissenting, of the 5th Circuit initially found that Souther Building Code Congress International Inc. retained copyright to its codes even though those codes were incorporated by reference in the law of, among other places, two Texas towns, Anna and Savoy. The majority's decison laregly rested on findings of other Circuit Courts, and explcitly said that "We decline to create a circuit split by reaching the opposite conclusion today." The majority's opinion held that the Supreme Court's finding in Banks v. Manchester didn't apply to the controversy at hand.

Then one of the judges of the 5th Circuit asked that the all the judges in the 5th Circuit decide the case -- this is called the circuit sitting en banc -- and a majority of the 5th Circuits judges agreed to hear the case en banc.

The decision of the majority (9-6, with the Chief Judge dissenting) of the entire 5th Cirucit took a diferent view of Banks v. Manchester, and so reversed the Distruct's Court's summary judgment in favor of SBCCI's claim that Veeck had violated SBCCI"s copyright to the building codes at issue, by posting them on his web site.

This is the equivilant, IMHO, of passing bills making abortion illegal. Phone books and compilations are not copyrightable, says the Supreme Court. Feist v. Rural Telecom. Congress cannot change this and prescient would take priority here, the law would be immediatly challenged and overturned if it directly contradicts Feist. IANAL, but this is my read on it.

Can I bring a lawyer to small claims court? In a handful of states, including California, Michigan and Nebraska, you must appear in small claims court on your own. In most states, however, you can be represented by a lawyer if you like. But even where it's allowed, hiring a lawyer is rarely cost-efficient. Most lawyers charge too much given the relatively modest amounts of money involved in small claims disputes. Happily, several studies show that people who represent themselves in small claims cases usually do just as well as those who have a lawyer.

Nice incomplete, biased edit of the second amendment . . . what part of "A well-regulated Militia" do you not understand? As recognized by the Supreme Court, the second amendment has nothing to do with hunting, target shooting, or personal protection.

Here's what it means, courtesy of yogi61bear's findings:

Slander of Title

To recover in an action for slander of title, a party must allege and prove: (i) the utterings and publishing of disparaging words; (ii) that they were false; (iii) that they were malicious; (iv) that special damages were sustained thereby; (v) that the plaintiff possessed an estate or interest in the property disparaged; and (vi) the loss of a specific sale. Malice is a basis for recovery of actual damages in a slander of title case means merely that the acts must have been deliberate conduct without reasonable cause. A patent may well be the subject of a slander of title action as Prosser and Keeton state that intangible interest such as "trademarks, copyrights [and] patents" may be the subject of the tort.

As compared to other "injurious falsehood" causes of action, slander of title or property differs in that there is no presumption of damages. The plaintiff must show that he or she sustains special damage proximately, naturally and reasonably resulting from the alleged slander. Attorneys' fees are not recoverable in slander of title actions, and neither damages to reputation nor consequential mental damages are recoverable in action for slander of title. The plaintiff must prove the loss of a specific sale, i.e., that a pending sale was defeated by the slander. However, the reasonable expense of litigation necessary to remove the doubt, or cloud, from the property or title thereto has been held to be recoverable. Additionally, punitive damages are also recoverable in an action for slander of title. Thus, as was the case with a defamation cause of action, a plaintiff should allege that defendant's actions were both intentional and with malice.

-- By Paul C. Van Slyke

Plead fifth amendments rights - non-incrimination, seizure of property without due process, and seizure of property without compensation (in case there was due process).

Check out these articles on findlaw...
Fifth amendment

Self-incrimination

Knowledge and wisdom can take you a long way. For everthing legal hire a good lawyer. Join the ACLU and EFF today.

Plead fifth amendments rights - non-incrimination, seizure of property without due process, and seizure of property without compensation (in case there was due process).

Check out these articles on findlaw...
Fifth amendment

Self-incrimination

Knowledge and wisdom can take you a long way. For everthing legal hire a good lawyer. Join the ACLU and EFF today.

That's an interesting case, but if you read further, it sounds like the proper way to proceed is for the investigator to seek an expanded warrant, when he/she first finds unrelated, yet criminal material. In the Carey case, the officer found kiddie porn, and diverted his search from drug-related files to assessing how much illegal porn was on the machine, going outside the scope of his warrant. If he had stopped right away and sought another warrant, it would have been OK.

A corporation is not a person, and has no inherent rights as such. Thus, a corporation may be restricted in its speech, up to and including forcing it to allow speech it does not support.

Technically, under the 14th amendment, a corporation is considered to be an artificial "person", but not a citizen, and is given the rights as such.

You are right that speech may be restricted, although the first amendment is always up for debate, in regards to both natural and artificial persons, and in this particular case, the amendment has been upheld in more recent legislations in the interest of the listener, regardless if the speaker is an artificial person.

--theKiyote

A corporation is not a person, and has no inherent rights as such. Thus, a corporation may be restricted in its speech, up to and including forcing it to allow speech it does not support.

Technically, under the 14th amendment, a corporation is considered to be an artificial "person", but not a citizen, and is given the rights as such.

You are right that speech may be restricted, although the first amendment is always up for debate, in regards to both natural and artificial persons, and in this particular case, the amendment has been upheld in more recent legislations in the interest of the listener, regardless if the speaker is an artificial person.

--theKiyote

The professor under whom I am writing my certification paper at law school wrote a seminal paper on fair use which was cited by the court in the sony opinion.

She made an economic argument in favor of fair use, basically outlining a test to determine, in general terms, where an economic perspective would favor (and disfavor) findings of 'fair use.'

As the 'law and economics' movement was just catching on amongst judges at the time, the paper gained a lot of notice and was cited by the court, and by many many other lower courts as well when issuing opinions dealing with fair use.

A problem arose from all this citation however, because judges lost sight of other, perfectly valid justifications for 'fair use.' An exclusively economic approach to these determinations is a perspective that largely works to the detriment of artists, writers and other creative types who make valid fair use of other copyrighted works because the conditions for permitting fair use in this analysis are few and far between. (A look at Professor Gordon's work will show that she is not at all happy with the current state of copyright.)

Nonetheless, the Sony Betamax case is an important one, one that was decided correctly by a court that at the time actually viewed copyright (properly I might add) as a constitutionally mandated balancing between the progress of arts and sciences and remuneration for authors for that progress.

On that note, support the EFF and VOTE!

cleetus

I believe it's due to tax structure, legal structure and fees. The 4th link lays this out in detail.

Why Choose Delaware as Your Corporate Home?
Why Delaware?
Should I incorporate in Delaware?
Structuring your U.S. company - incorporate in Delaware? (best article of the lot)

18 pages of Grand Jury charges in US v. al-Hussayen(pdf)

"I was merely contesting the use of the term racketeering. I've always considered racketeering to be intimidating people into paying you money."

From Findlaw's site, we have the definition for racketeering, which is as follows:

"1: the extortion of money or advantage by threat or force
2: a pattern of illegal activity (as extortion and murder) that is carried out in furtherance of an enterprise (as a criminal syndicate) which is owned or controlled by those engaged in such activity"

Furthermore according to Findlaw, to extort is to:

": to obtain (as money) from a person by force, intimidation, or undue or unlawful use of authority or power"

I think the rule of thumb is "something of value" as opposed to just money.

Apple has played a role in legitimizing the one-click patent. They have in fact licensed the one-click patent from Amazon, for use on their web site and now in the iTunes Music Store.

Perhaps Amazon will be interested in licensing "Allowances".

Seems pretty simple to me. The first part is an explanation, the second part the rule.

It is pretty simple! The obvious (from the point of view of judicial intepretation) meaning of your rule is this:

People's right to keep and read books shall not be infringed insofar as those books are necessary to the creation/maintenance of a well-schooled electorate.

Obviously the ownership of books which do not contribute to such an electorate, or the ownership of books in any context which does not so contribute, would not be protected by this clause. If you did not want to limit the protection of the right to own and read, you would leave out the first (purposive) clause. Remember, lex nihil frustra, the first clause must add something to the second, or else it wouldn't be there.

If you doubt my intepretation of your rule, (what do I know, I'm only a law grad), consider the judicial intepretation given to the similarly worded 2nd Amendment by the Supreme Crt in Miller .

Just how does one bring a test case against it?

If you sue without any proof that you were investigated, they can say that it's not relevant to you (courts only have jurisdiction over "cases and controversies" -- e.g. they can't just review laws out of the blue)... but, by law, you cannot get any such proof, because all these institutions have to keep these searches secret. Thus, congress bypasses all the judicial review that's supposed to be in place... those checks & balances which are supposed to limit its power... In other words, it's something of a catch-22 in terms of how to oppose the eroding of one's 4th ammendment rights.

Sadly, there is exactly one way I can think of to test it. Someone who is ordered to do one of these secret reviews has to take them to court, which would make you guilty of publicizing the fact that they wanted to do such a covert search. Translation: want judicial oversight? Get sent to Guantanimo Bay... Fun :/

I really don't like the way this law is constructed, even though I hate ter rorists, terr orism and everything they stand for :/ Somehow, it's almost like the inverse of Mulburry vs. Madison (the case that gave us judicial review, e.g. that said that judges can declare laws unconstitutional).

Posted anon in the (futile?) hope of not being labeled a terr orist due to specious logic. Extra spaces are to avoid word searches.

1) The Washington Post publishes a story detailing how employees of Odigo, an Israeli company with offices in the immediate vicinity of the WTC, received a warning hours before the attack. A week or so later, The New York Times reports on how only one Israeli died in the WTC that day, and he was only there visiting, which suggests that Odigo wasn't the only Israeli concern that received a warning. Then there are the reports of an Israeli spy ring that was in extremely close proximity to the alleged hijackers, members of which were observed in Jersey City celebrating as the tower fell. Add to that the fact that Israel has done things like this before (see the Lavon affair, or the U.S.S. Liberty), and the fact that Israel was seen (incorrectly in my view) as the primary beneficiary of 9/11. Conclusive evidence? No. But it's certainly more compelling than what has been amassed against Afghanistan/Iraq, the campaign against the latter being particularly obscene given that it turns out there are NO WMD's and that apparently no U.N. resolutions were violated, meanwhile, Israel is believed to have amassed the world's fifth largest nuclear arsenal and stands as the undisputed leader in violations of U.N. resolutions.

2) The war on drugs is genocide from many different points of view. It is important to first understand that genocide does not necessarily mean killing an entire people. Please review the legal definition. The fact that the origins of our drug laws were derived from hatred towards minorities, blacks especially, and the fact that blacks today are disproportionately targetted by these laws is perhaps the best example. But even more compelling I think is the following statement: our drug policy promotes the use of the most deadly and addictive recreational drugs--alcohol and tobacco--while using violence to punish those who would use the safest and least addictive recreational drugs, like marijuana or Ecstasy. Consider that recreational drug use has been a part of human existance throughout history, and that it has been clear for a very long time now that some people have a greater need/greater problems with recreational drug use. The propensity to use drugs can therefore be described as being related to culture and genetics, two of the components which make up ethnicity, and the targeting of an ethnic group is within the definition of genocide. You can also check out this story, which while not necessarily constituting genocide, if true, amounts to the most deadly holocaust ever inflicted by man upon man.

3) As for feminism, I could spend the rest of the month going into this. I think the main points here however are that our experience with feminism constitutes barely 0.000000001% of human existence yet the preposition that men and women are equal in all things is treated as if it were absolute truth; that the ever escalating regulation of human behavior is the result of politicians pandering to the feminine need for safety above all else; and that it has destroyed, at least in part, the basic social unit that is the family. Again, I could go on... but I have work to do.

>So if a factory worker in China makes 5 cents an hour (a high estimate),

It's far more than that. Minimum wage laws (where they exist in certain Chinese cities) specify about much more pay. For an example, Guangzhou city's minimum wage is $61.80 a month. Assuming the usual (5 days/7 hours/4 weeks) we get... $0.44 an hour. Assuming the worst (7 days/12 hours/4 weeks) we get... $0.18 an hour.

>and the minimum wage in my state is 6.75

If only! It's actually $2.13 per hour.

So, let's do the math:

US workers are paid about 4.84 times what Asian "slave" workers are paid for the same amount of work.

4.84 times $2.13 = $10.31 an hour.

In Luxembourg, the minimum wage is 46,275 LUF, or $1,445.15 monthly. Assuming 7 paid hours daily, 5 days a week, 4 weeks a month, that's $10.32 an hour.

So yes, as far as pay goes, America *should* look to Europeans like China looks to Americans. It should look like slave labour. Hopefully Europeans will despise American worker treatment so much that they will refuse to purchase any and all American goods. That should certainly fix the problem.

Oh wait. That would suck. Badly.

So why do we want to do this to China, again? I'm missing where China would benefit from us not buying their products.

I think the US Supreme Court agreed in Ashcroft v. Free Speech Coalition.

The Fifth Amendment says

"No person . . . shall be compelled in any criminal case to be a witness against himself . . "

Now IANAL, but that means that they won't force you to incriminate yourself, but if you volunteer they won't stop you.

Same thing with Search and Seizure in the fourth. If the police ask nicely and you allow them to search your car they will gladly. The point is you have the right to say no.

If the pictures were still on her roll of film in her car then that would be a different story.

I think she should have just taken the pictures fully clothed and then done a little digital editing to make it appear she was nude. Just do a studio shot to get the naked bits and past them on.

She should do the reverse (paste clothes on) and say if no one saw her naked then how do they know she didn't edit the photos. They can't prove otherwise, and they cannot force her to testify which was the real photos since that would violate her fifth amendment rights. Having not seen the pictures I don't know if there were in fact witnesses. They can be compelled to testify.

Again, IANAL, but I play one on TV.

First, in 1995 patents were extended to 20 years. Second, the pharmaceutical industry in particular uses various methods to extend patents beyond 20 years: legislative loopholes, lobbying, and litigation among them. Companies will often make minor modifications to a drug when the patent is soon to expire, thus obtaining a new patent. Alternatively, inventions can be given trade secret status if companies aren't able to extend the patent.

Finally, the pharmaceutical industry posts the most profit of any U.S. industry(18-21% per annum compared to 14% in the next runner-up), so arguments that they are somehow not recouping their (substantial) investments seem moot.

I don't know about Canada, but in the USA we sue the attourney general (e.g. Ashcroft) for a court order preventing the government from enforcing that law on the grounds that it's unconstitutional (or whatever, but I can't think of any other reason that we could have it struck down unless it was unconstitutional).

It's called "judicial review" and the court granted themselves that right in 1803 in the case of MARBURY v. MADISON.

Ah, good point... Justice Ginsburg's concurrence:

This case involves a "round trip" journey, travel of the copies in question from the United States to places abroad, then back again. I join the Court's opinion recognizing that we do not today resolve cases in which the allegedly infringing imports were manufactured abroad.

The United States Supreme Court doesn't think so. The case United States v. Wong-Wing is explicit and clear in the idea that non-citizens are still protected by the US Constitution.

The Geneva Convention(s), apply only to POWs and other captives taken during a war. Incidently, the United States has failed to declare war, both on Iraq and on Afghanistan. Conseuently, it is anyone's guess as to weather or not Geneva applies. Further, the United States has used this technicality to justify the conditions at Gitmo (i.e. since Geneve doesn't apply we don't have to meet Geneva standards for prisioner treatment).

To summarize briefly: if you advocate violent action, but no action is taken immediately, you were just using your First Amendment rights. If you advocate violence and said violent action is immediately taken, you are guilty of a crime.

Unless prosecutors can prove that the action on the web site you mentioned resulted in immediate illegal, violent action, the operators are completely innocent.

I think this story is about 3 years too late, Law & Order already did an episode where E-Z pass records were key evidence.

Another L&O: Special Victims Unit came out in its second season with E-Z Pass records.

As for the last statement, the differences between licensing with Sparc and licensing GPL software is not my concern. My argument is solely the proper intrepretation of the GPL. Secondly, I recognize that you are referring to an agreement between the author and the user. Discounting UCITA in Maryland, there is no legal precedence suggesting that the user is a licensee. This is particularly the case since the user does not need a license to use software anymore than he needs to a license to read a book. Either the software is sold and the Doctrine of First Sale presides (the user is not a licensee), the software is leased and contract law presides (the user is a licensee), or the software is provided without obligation and neither preside. In all three cases, Copyright Law is still enforceable. The GPL leverages copyright to offer the user a license, but can only do so under circumstances where copyright has teeth -- namely in copying, modifying, and redistributing the software.

As far as your hypotheticals go, they are certainly interesting. After breaking it down, there really is no serious loophole here, but I present it anyway for completeness.

There are two valid cases of distribution here. In the first case, you purchase the work. In the second case, you receive a copy for free. You cannot lease the work, since that violates the GPL outright (section 6). In the first case, Doctrine of First Sale applies. You may sell, not distribute, a binary without its source. In the second case, First Sale does not apply and there is no condition for redistribution without accepting the GPL. This analysis will focus solely on the first case, as the second is moot.

Doctrine of First Sale, not Copyright Law, states that you may resell what you have purchased, and you do not need to accept any provisions of the GPL to do so. If you purchase a CD set, you may sell only the binary disks if you choose. Whether you are downloading and burning your own disks or purchasing them from someone else, this apparent loophole will become less attractive after the following argument.

One, if you purchase those CD's or download the packages from someone else, your margins will be thin and business prospects low since anyone can easily undercut you. Moreover, your customers can get the source code directly from your distributor so neither the GPL nor Open Source in general is really impacted. Theoretically, you would even be complicit with section 3c, other than the non-comerrical clause which would in this case be unenforceable anyway.

Two, if you purchase every copy you sell, and repackage them, you may find it extremely difficult to claim Fair Use under First Sale. If you don't purchase them, you do not even have First Sale to fall back on. At the minimum, your records will be subject to subpoena, including proof of every purchase, proof of every distinct copy or download, complete auditing of all your expenses and sales receipts. If you've sold more than you bought -- or can prove that you bought -- you could be found guilty of copyright violation or breach of the GPL or both. Sounds risky, and you also run the risk of violating the trademarks of the original distributor. See the CleanFlicks case for an example of how many ways this can go wrong.

Three, if you create a dummy "distributor" that only deals with you and will not provide source code to your customers, then this "distributor" will be in violation of the GPL section 3b. This is most dangerous. If during the discovery phase of the lawsuit, this becomes known, both you and the "distributor" will be treated as a single party and sued jointly for treble damages.

Contract law is never black and white. If it makes it to court, a judge will have to determine whether the parties are in fact enjoined, what the contract means to each party, and how it will be resolved both legally and equitably. This is where your actions will be collectivel

You are forgetting that, embeded in the constitution, itself, is a phrase that allows a treaty to override all laws and the constitutaion as well. How's that for puting our sovereignty on the line.

Wrong.

From the US Supreme Court ruling on Reid v. Covert, 354 U.S. 1 (1957) (emphasis mine)

Article VI, the Supremacy Clause of the Constitution, declares:

• "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . . ."

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [354 U.S. 1, 17] War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights - let alone alien to our entire constitutional history and tradition - to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

• "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

What McBride is saying is that I, as the developer of software released under the GPL, do NOT have the right to authorize reproduction or distribution of my works, or derivatives of those works. By my (admittedly non-copyright attorney) reckoning, the GPL falls completely in line with US law.

I could not have said it better myself!

If you go further and look at case law on copyrights, you will find even more justification for "our" view and a better argument that SCO is full of it.

Case law makes it clear that the fundamental purpose of copyright is to promote invention. Compensation of authors is important to promote that end, but promoting invention and progress is always more important than compensation.

I wish I had the time now to give an exaustive list, but here is one Supreme Court case that is illustrative. Follow the link for the complete opinion.

"The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow access to the products of their genius after the limited period of exclusive control has expired." Sony Corp of America v. Universal City Studios 464 U.S. 417 (1984).

Such decisions fly squarely in the face of McBride's baseless assertion that voluntarily waiving copyright rights is somehow "wrong" because it thwarts the profit motive of copyright. Hogwash. Profit is not the motive for granting copyright protection.

So why is it Double Jeopardy? Why is it wrong? Or is simply a case of it's-bad-because-it-is but no one can remember why it-is?


A fair enough question. US law contains a very complete explanation behind the 5th amendment.

You can't waive a constitutional right.

Unfortunately, you're wrong. People waive their rights all the time. You have a right not to be searched without probable cause, but when the police ask "do you mind if I search your car?" and you say "Sure," you just waived your Fourth Amendment rights until you invoke them again.

Among other rights you can waive are your speedy trial rights, your right to remain silent, and your right to an attorney (although this last one is hard to waive.

There is an entire body of cases that discuss when a waiver is "knowing and intelligent" and therefore valid. For example, see, North Carolina v. Butler (implied waiver of Miranda rights upheld), and Edwards v. Arizona (initial waiver valid, but once defendant invoked his right to counsel, police could not question further).