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... it legislates first under a limited delegated authority pursuant to Article I, Section 8 (exclusive of 17).

It also legislates under a special plenary authority over territory belonging to the self-interested United States (exclusive of the states of the Union); reference Article I, Section 8, Clause 17 and Article IV, Section 3, Clause 2.

The FBI, BATF, DEA, BLM, IRS, EPA, OSHA and all of the other alphabet soup agencies are limited in authority to federal territory. The next time the FBI knocks on your door, ask him if he is investigating a crime committed by a federal government employee (28 USC 535), if he says no, then tell him he is trespassing on your property and if he does not leave you are going to call the Sheriff.

DOWNES v. BIDWELL, 182 U.S. 244 (1901)

Eliminating, then, from the opinions of this court all expressions unnecessary to the disposition of the particular case, and gleaning therefrom the exact point decided in each, the following propositions may be considered as established: 1. That the District of Columbia and the territories are not states within the judicial clause of the Constitution giving jurisdiction in cases between citizens of different states; 2. That territories are not states within the meaning of Rev. Stat. 709, permitting writs of error from this court in cases where the validity of a state statute is drawn in question; 3. That the District of Columbia and the territories are states as that word is used in treaties with foreign powers, with respect to the ownership, disposition, and inheritance of property; 4. That the territories are not within the clause of the Constitution providing for the creation of a supreme court and such inferior courts as Congress may see fit to establish; 5. That the Constitution does not apply to foreign countries or to trials therein conducted, and that Congress may lawfully provide for such trials before consular tribunals, without the intervention of a grand or petit jury; 6. That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith.

Harlan's DISSENT: These are words of weighty import. They involve consequences of the most momentous character. I take leave to say that if the principles thus announced should ever receive the sanction of a majority of this court, a radical and mischievous change in our system of government will be the result. We will, in that event, pass from the era of constitutional liberty guarded and protected by a written constitution into an era of legislative absolutism.

Because the link is slow, here is the text of that rule:

Sec. 76.921 Buy-through of other tiers prohibited.

(a) No cable system operator, other than an operator subject to effective competition, may require the subscription to any tier other than the basic service tier as a condition of subscription to video programming offered on a per channel or per program charge basis. A cable operator may, however, require the subscription to one or more tiers of cable programming services as a condition of access to one or more tiers of cable programming services.

(b) A cable operator not subject to effective competition may not discriminate between subscribers to the basic service tier and other subscribers with regard to the rates charged for video programming offered on a per-channel or per-program charge basis.

(c) With respect to cable systems not subject to effective competition, prior to October 5, 2002, the provisions of paragraph (a) of this section shall not apply to any cable system that lacks the capacity to offer basic service and all programming distributed on a per channel or per program basis without also providing other intermediate tiers of service:

(1) By controlling subscriber access to nonbasic channels of service through addressable equipment electronically controlled from a central control point; or

(2) Through the installation, noninstallation, or removal of frequency filters (traps) at the premises of subscribers without other alteration in system configuration or design and without causing degradation in the technical quality of service provided.

(d) With respect to cable systems not subject to effective competition, any retiering of channels or services that is not undertaken in order to accomplish legitimate regulatory, technical, or customer service objectives and that is intended to frustrate or has the effect of frustrating compliance with paragraphs (a) through (c) of this section is prohibited.

[62 FR 6495, Feb. 12, 1997]

In many locales private companies actually own
the copyright on the law! They typically sell
you a copy for a few hundred dollars, and it is
not legal to distribute a copy of the law to
anyone else as a public service, as doing so
would violate copyright.

I believe that you may be mistaken. See

Veeck v Southern Building Code

(Fed 5th Cir, #99-40632, 07-Jun-2002)
for information on this subject.

In short, the 5th Circuit said that you may
distribute the code of a municipal entity,
without regard to the copyright of the author,
so long as you distribute it as the code of
that municipal entity.

Well, Federally, one reason would be the Constitution says in Article 1, Section 9: "No Tax or Duty shall be laid on Articles exported from any State." which essentially means that all goods that are sold and intended for consumers in another State are not to be taxed.

FindLaw has much more on this here if you're interested.

From the landmark Sony case:
Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated 464 U.S. 417

IANAL, so I'm probably completely mistaken... but here it goes. It seems to me that demonstrating that P2P technology is "for commercial gain" would be quite difficult. Then, assuming that P2P falls under "not for commercial purpose" case of the above ruling, **AA indeed bears the responsibility to show "by a preponderance of the evidence that some meaningful likelihood of future harm exists". This sounds like a MIGHTY ambiguous requirement... BUT I believe the above requirement falls just short of the demand you put on **AA. They don't have to show that filesharing "deinitely" hurts sales. They merely have to show "by a preponderance of the evidence" that there can be a substantial harm to their business in the future. And some people's "gut feeling" when supported by "a preponderance of evidence" (BY WHOSE F**KING STANDARD!?!? ...sorry) would indeed be enough to enact and enforce laws... And, of course, since IANAL, I must be wrong, right?

I can only suggest that you get a clue. Here's one, courtesy of google. To save you the effort, here's some of the best:

• Civil vs. Criminal FAQon LawInfo.com
• What's the Difference Between a Civil and a Criminal Conviction on Findlaw.com.
• What Makes a Case a Criminal Case? on Findlaw.com
• The Distinction Between Civil and Criminal Law, in USCourts.gov outreach section.
• THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL CASES on intolaw.

I can only suggest that you get a clue. Here's one, courtesy of google. To save you the effort, here's some of the best:

• Civil vs. Criminal FAQon LawInfo.com
• What's the Difference Between a Civil and a Criminal Conviction on Findlaw.com.
• What Makes a Case a Criminal Case? on Findlaw.com
• The Distinction Between Civil and Criminal Law, in USCourts.gov outreach section.
• THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL CASES on intolaw.

One (such as myself) can criticize the *price* of the test, but it is not as though the test is not available. The problem seems to be the price, and that is the *same* problem that third world countries face with AIDS, malaria, cholera, you name it, test and prevention.

On a related note, one can question whether genes should be patented. But then again, one might want to look to such things as recombinant human growth hormone (hGH), erythropoeitin (EPO), tissue plasminogen activator (TPA), antibodies, and on and on and on, that have improved a huge number of lives. If these had not been patentable, there would have been sparse investment in Genentech, Amgen, Chiron, etc., and the products wouldn't have made it to market as early as they did (note: I didn't say that wouldn't make it to market eventually).

If a license to the patented technology is priced too high, noone will licence it and the patent holder gets nothing. If the royalty rate is *reasonable*, then everyone can be happy. If the patent license terms are too restrictive, then the patent validity gets challenged. It happens all the time, and is a matter of pure economics.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

But the RIAA and the purchased politicians are trying to make personal use illegal at worst, and "only if we approve it" at best. I don't support piracy either, but I also realize that they aren't just going after piracy.

Not completely true. I can name an artist that owns his own music for every artist you name that signed his rights away.

And I bet I will have never heard of them. :-)
Normally, the people who aren't afraid to speak out against the music industry are those whose indentured servitude has expired.

You're using examples that are more than 80 years old and as such are easier to argue that they should be part of public domain.

And they are trying to extend the copyright laws to keep them out of the public domain. Check out this article . Yes, they are old examples, and yes, corporations are fighting to extend the copyright for them. If it were up to them, copyright would be infinite. I don't know what should be fair, but I know that "life + 70 years" for personal work and "95 years" for corporate created work is atrocious! They are buying politicians to enact laws to do whatever they want. It is disgusting.

. Other than the fact that Ain't It Cool News and Harry Knowles aren't being charged with anything, police aren't saying much.

Recently, the Supreme Court addressed a similar matter in the case of BARTNICKI v. VOPPER.

In that case, some enterprising individual surreptiously recorded a cell phone conversation between a union negotiator the union president. Someone sent the tape to a local radio show host, who played it over and over again. The union offials sued the host, and the Supreme Court ruled that the First Amendment prevailed in this setting. The issue in that case, strikingly similar to that here, was: "Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?"

As the court concluded, "[a] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." The only question is whether the information that Knowles received is a "matter of public concern." Many of the privacy concerns of a telephone conversation are not at issue in this case, and certainly, there is great interest in artistic endeavors. Who knows? Jim

>"the right of the people to keep and bear Arms, shall not be infringed."

I don't know where you pulled that.

The constitution actually says:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

It doesn't say what you said at all -- I'm assuming you are trying to quote the constitution. I might be wrong. Perhaps you are quoting the NRA instead?

>Pretty much says it all. When guns are finally outlawed by the left wingers, do you think the criminals will turn theirs in?

Guns are outlawed unless you are part of a well regulated Militia. Notice Militia is in capitals, and that it must be well regulated. An individual is not a militia.

Oh, and I don't care if criminals turn theirs in. I don't care about the entire gun argument at all in the US. I just stand in awe that people can misquote their OWN most basic founding laws.

Let's put it in context. The contitution says:

The Congress shall have Power

• To lay and collect Taxes...
• To borrow Money...
• To regulate Commerce with foreign Nations...
  .
  .
  .
• 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
  .
  .
  .

All 18 of those enumerated powers start with "To <verb>..." The government argues that the eighth enumerated power is unique in that it has a meaningless preample (which looks just like all the other enumerated powers), Lessig says it is unique in that it includes a limitation.

If the government were right, the constitution should read, "The Congress shall have Power...To secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". If that's what our forefathers meant, why have a preamble at all?

Simplest explanation: the constitutional prohibition against ex post facto laws apply really only to criminal, penal laws. Copyright isn't a criminal law; it's of a civil nature. Also, even though it has prohibitions, etc., copyright really is more of an enumeration of rights, not a penal code.

Demonstration of the Ideal Gas Law:

PV = nRT
Pressure × Volume = No. of moles × Universal Gas Constant × Absolute Temperature

First off, you will want to do this outside. All you need is a small amount of dry ice, water, and a plastic soda bottle (20oz, 1liter, or 2 liter are all fine). I would reccomend a 2 liter, because it's more impressive. Put enough dry ice in the bottle to barely cover the bottom of the empty 2 liter bottle. Then be ready for action, because you will want to put about an equal amount of water as dry ice in your bottle. After filling the bottle with water, the dry ice will start being convered to CO2 gas, and you will want to cap the bottle. Place it in the middle of a field or something and make sure everyone is well away from it.

You can take this time to explain that Dry Ice is a solid form of Carbon Dioxide, and when it is in a system with water, it undergoes sublimation (solid to gas, no liquid phase). And that it's gaseous volume is 800 times that of the solid volume. (so if you want to measure and get all scientific, you could).

Just about when you get done explaining this stuff, your experiment should alert you that it's ready. The pressure that the CO2 exerts on the closed volume system becomes too great, and the bottle gives and a rather loud sound is produced. Like everyone said, explosions are cool ;)

So if we apply the science to it.

2 liters = (approx) 2000 cubic centimeters

2000cc/800 = 2.5cc of dry ice needed to fill the system with gas.

So lets say we put 5cc of ice, and 5 cc of water in.

5cc * 800 = 4000cc space needed for the gas to expand

system volume(2000cc) - water volume(5cc) = 1995cc

This would pretty much gaurantee an explosion. But for the kids, you might give them this information and see if they can come up with the minimum amount needed to make the bottle explode, make them draw upon some basic math skills :)

Ok, now that I've gone though all this, check your state laws to see if this fun experiment is illegal, it is here in california ;) http://caselaw.lp.findlaw.com/cacodes/pen/12301-12 316.html

Unless you know something that I don't (my information comes from the documents at findlaw.com), the administration's primary position at this hearing is that that they don't have to provide any evidence, and that the court should give complete deference to the President's judgment.

# Amicus - Petitioner:
# Intel Corporation (Merits) [PDF]

Eric Eldred, et al. v. John D. Ashcroft, Attorney General

how little -- none at all -- they paid to the claim he makes in the brief (and mentioned briefly during the questioning) that the birth of a new technology regime (the Internet) should have a profound impact on how we craft copyright law.

For Ginsburg, at least, this should all be old hat; her daughter who wrote one of the classic treatments of it in a Representations article about 10 years ago: J. C. Ginsburg, "Copyright Without Walls ? Speculations on Literary Property in the Library of the future", Representations,42. On the assumptions that one's own daughter's works should be canon, I imagine she's familiar with it.

See Jane C. Ginsburg's CV and this Ruth Bader Ginsburg Biography.

Was it that you yourself couldn't prove actual damages at all, or that you could not prove enough damages so that he could recover a large enough fee to cover his own expenses/cost?

Yes, they abused my resources and my bandwidth that I pay for but even if they sent 100 duplicate messages, that's such a small fraction of the bill that it's not worth trying to sue them.

This, I think, is why any suit against spammers would have to be a class action suit. Recall that class actions are typically used when a large number of individuals' rights have been violated by defendant's course of conduct but the cost of vindicating those rights is too great, as no one is going to file a lawsuit to recover a mere pittance in damages. However, if you agglomerate all of those claims, it becomes worth the attorneys time and the threat of an enormous verdict frightens the defendants. This is why most class action lawsuits settle if the plaintiffs attorney successfully certifies the class. Of course, the converse of that is that the class action joinder rule can take a relatively frivolous individual claim that an attorney would not pursue and convert it into a lucrative and dangerous claim with a potential for high recovery. But that really isn't a concern in this context, as these claims would not be frivolous, especially if we are dealing with a spammer who has misappropriated one's identity.

I wonder if there is any precedent for that? Courts usually have a tough time making such a leap from penal statutes which don't directly address a specific electronic infraction. Remember, too, that we would be dealing with 51 sets of criminal theft statutes, as well. Take Texas, for example. Compare statutory theft to statutory theft of services. Now, I think we all know that when these statutes were drafted that the authors did not envision spam as it didn't exist at the time of the drafting. There's just no way. The defense attorney would be able to convincingly argue that legislators did not envision these types of offenses and thus they are not covered under the statute. That is why this enterprise is so perilous when we attempt to argue by analogy (i.e. pursuing spammers under junk fax laws) or couch electronic offenses into the statutory language of pre-Internet penal statutes.

Remember, that some courts are still struggling with initial hurdles of authentication and admissibility [PDF] of electronic email and web data. My favorite such quip from a federal judge (from my own state of Texas):

"While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation.... Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretations of the hearsay exception rules found in FED. R. EVID. 807". See St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex. 1999)

jd

I wonder if part of the problem is a lack of complainants. Do the people to whom this happens take the time to file an official complaint with the district attorney or federal prosecutors? Does it occur to them to contact a plaintiffs attorney to suggest a possible suit? This might make a spectacular class action lawsuit, provided that a suitably wealthy corporation could be found to sue. Stealing one's identity to send offensive pornographic or automated commercial email simply has to be tortious or illegal or negligent per se or something, you know?

I wonder if part of the problem is a lack of complainants. Do the people to whom this happens take the time to file an official complaint with the district attorney or federal prosecutors? Does it occur to them to contact a plaintiffs attorney to suggest a possible suit? This might make a spectacular class action lawsuit, provided that a suitably wealthy corporation could be found to sue. Stealing one's identity to send offensive pornographic or automated commercial email simply has to be tortious or illegal or negligent per se or something, you know?

I wonder if part of the problem is a lack of complainants. Do the people to whom this happens take the time to file an official complaint with the district attorney or federal prosecutors? Does it occur to them to contact a plaintiffs attorney to suggest a possible suit? This might make a spectacular class action lawsuit, provided that a suitably wealthy corporation could be found to sue. Stealing one's identity to send offensive pornographic or automated commercial email simply has to be tortious or illegal or negligent per se or something, you know?

This, I think, is the actionable. I wonder why some enterprising young federal prosecutor does not chase this villain under the wire fraud statutes. The spammer, after all, committed a fraud and sent it across state boundaries, didn't he? If the feds can pursue college coaches who fax faked test scores from cheating athletes, can't they get these guys?

You might also have a claim against him for false light, a tort at common law which I don't think is recognized here in Texas but is elsewhere. The example my law prof gave me was the following: Let's say you work at Company A, which provides you with a public mailbox from which to retrieve your memos, letters, magazines, brochures, et cetera. A colleague of yours, as a joke, signs you up for various pornographic magazines. Anyone who visits the mailbox area sees your mailbox stuffed with the porn, and reasonably believes that it is yours. Your colleague has put you in "false light," just as this spammer might have.

Defamation seems analagous, but dubious under these facts.

This programming system is developed by army of developers, none of whom cared about the overall system as long as they could coax it into giving them the results that they wanted.

And the last major attempt at housecleaning took place a few centuries ago, and required a war.

Oh right. In the 1930's there was a serious attempt at refactoring that never got finished. See what they made of To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

I would suggest being aware of this, because the Commerce Clause is the single most potent grant of authority to Congress. And the CBDTPA is seeking to apply it on the behalf of copyright monopolists. Be aware that what cannot be justified under copyright might well be a walk in the park under Commerce.

Spaghetti doesn't even begin to describe it.

Mandatory disclaimer. IANAL, and this is not legal advice.

In case you are curious, the reason why people put in disclaimers like that is that if you give bad legal advice, you are liable for the consequences. Doubly so if you were practicing law without a license. In fact lawyers who give correct legal advice may still be liable if the person they gave it to misunderstood the advice. Since in a public forum like this, misunderstandings are virtually guaranteed, it is a stupid person with any aquaintance with the law who does not put in said disclaimer. :-)

S 8303-a. Costs upon frivolous claims and counterclaims in actions to recover damages for personal injury, injury to property or wrongful death.

(a) If in an action to recover damages for personal injury, injury to property or wrongful death, or an action brought by the individual who committed a crime against the victim of the crime, and such action or claim is commenced or continued by a plaintiff or a counterclaim, defense or cross claim is commenced or continued by a defendant and is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs and reasonable attorney`s fees not exceeding ten thousand dollars.

(b) The costs and fees awarded under subdivision (a) of this section shall be assessed either against the party bringing the action, claim, cross claim, defense or counterclaim or against the attorney for such party, or against both, as may be determined by the court, based upon the circumstances of the case. Such costs and fees shall be in addition to any other judgment awarded to the successful party.

(c) In order to find the action, claim, counterclaim, defense or cross claim to be frivolous under subdivision (a) of this section, the court must find one or more of the following:

(i) the action, claim, counterclaim, defense or cross claim was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another;

(ii) the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action, claim, counterclaim, defense or cross claim was promptly discontinued when the party or the attorney learned or should have learned that the action, claim, counterclaim, defense or cross claim lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith.

Yes, that's right Jack.. And when VCR's came out, we were in the theaters bootlegging a million movies a day. :rolleyes:

Reading the hill hearings and movie exec testimony around the time of the Betamax case produce a heavy feeling of déjà vü. Most - if not all - of the arguments used now were used then also. The only difference is that they were playing on anti-jap sentiments then while they are attacking spotty teen-age swashbuckling pirate nerds today. (video tapes will magically be able to store 100 hours of video, fast-forward through commercials is theft, people won't go to the cinema no more, etc...)

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

For criminal cases, listen to the Supremes:

ARGERSINGER v. HAMLIN, 407 U.S. 25 (1972)
"Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts."

The rub is to find a way to get the counsel to recuse himself, as when you recuse him, it is seen as refusing counsel.

For civil cases, I have found that (most) attorneys adhere to two rules:
1. Find out how much money the client has.
2. Spread out the litigation so that you can bill out for all of it.

Most civil legal matters can be handled quite simply by just a bit of study. Every young man in 1850 knew how to prosecute and defend his own case. All it takes is a couple of books on civil procedure, your annotated state court rules, and a bit of resolve.

I have found that attorneys are not taught the law, they are taught theory. So if you have the law, you argue the law, when you have the facts, argue the facts. When you have neither, settle.

For example. My friend pays her mortgage by postal money orders. She generally sends it out priority mail by delivery confirmation. The mortgage company "misplaced" one of the payments, and charged her a late fee. Each successive month, her new payment was applied instead to the older month and she was assessed a new late fee.

After the second month, she sent an affidavit stating that the payment had been made and cited the postal money order numbers and the delivery confirmation number. The mortgage company could have verified all of the payment and delivery information by itself, but insisted upon my friend sending proof of payment. Well, the affidavit constituted proof of payment.

It is now six months later and the company threatens foreclosure. She assembled all of the payment information and wrote up a twenty six count mail fraud complaint, sent it to the US Attorney for that district and copied the company.

With the complaint copy, she sent a detail of the time that she spent on this matter on research and correspondence and she billed them at 75 bux an hour. As an independent contractor, all of the time she spends with the mortgage company, she cannot allocate to clients.

Was it surprising that the company suddenly "found" the payment, properly applied it, backed out six months worth of late payment fees, and wrote letters to the Credit Reporting Agencies fixing the credit? They are balking at the 3,000 bux in billing, but if they don't pay that, she will file suit to recover her costs, and another 10k in emotional damages for being threatened with foreclosure.

Should be a slam dunk, as the company USED her research to confirm the payments, when they could have done the work themselves.

In order to prosecute all of the offenders, they would have to bring charges in a district court of the United States. Unfortunately for them, they only have United States District Courts:

BALZAC v. PEOPLE OF PORTO RICO, 258 U.S. 298 (1922)
The United States District Court is not a true United States court established under article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States.

MOOKINI v. UNITED STATES, 303 U.S. 201 (1938)
The term 'District Courts of the United States,' as used in the rules, without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under article 3 of the Constitution. Courts of the Territories are legislative courts, properly speaking, and are not District Courts of the United States. We have often held that vesting a territorial court with jurisdiction similar to that vested in the District Courts of the United States does not make it a 'District Court of the United States.'

So long as there is no Article III court within the states of the Union party to the Constitution, what will they do?

In order to prosecute all of the offenders, they would have to bring charges in a district court of the United States. Unfortunately for them, they only have United States District Courts:

BALZAC v. PEOPLE OF PORTO RICO, 258 U.S. 298 (1922)
The United States District Court is not a true United States court established under article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States.

MOOKINI v. UNITED STATES, 303 U.S. 201 (1938)
The term 'District Courts of the United States,' as used in the rules, without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under article 3 of the Constitution. Courts of the Territories are legislative courts, properly speaking, and are not District Courts of the United States. We have often held that vesting a territorial court with jurisdiction similar to that vested in the District Courts of the United States does not make it a 'District Court of the United States.'

So long as there is no Article III court within the states of the Union party to the Constitution, what will they do?

Caroline Kennedy and Ellen Alderidge have an excellent book on the Bill of Rights explaining how it has played out in the court. That is where I got that case from.

But going out looking on findlaw I come up with this fairly quickly. That gives the name of the case. From that you can do another search that gives many other references, including partial text of the judgement.

Let's see if we can reconstruct the chain of events, shall we? The US uses the CIA to overthrow the lawful government of Iran, and installs the Shah. Years later, the Shah is ousted in a coup d'etat and replaced with a regime unfriendly to the US (surprise). The US then uses the CIA to overthrow the lawful government of Iraq and installs the butcher Sodamn Insane. This was done to counter the influence of Iran (that fell because of interventionist policy). Next, the US uses the CIA to train Osama bin Laden and his ilk to fight the commies in Afghanistan. Then Klinton bombs him to wag the dog to avert attention from a certain stained blue dress.

Now, we complain that the enemies that we trained are out to kill the masters who trained them. Pity.

Today's issue with the USA PATRIOT (sic) Act is the fact that it is an implementation of executive authority pursuant to law martial rule of necessity in the face of a Clear and Present Danger. It does not matter that it is decades of American Hegemony and interventionist foreign policy that created the situation (or is it?)


American Communications Ass'n v. Douds, 339 U.S. 382, 396 (1950):

The Court sustained a law barring from access to the NLRB any labor union if any of its officers failed to file annually an oath disclaiming membership in the Communist Party and belief in the violent overthrow of the government.

For the Court, Chief Justice Vinson rejected reliance on the clear and present danger test. "Government's interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. Section 9(h), in other words, does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduct which Congress has determined is carried on by persons who may be identified by their political affiliations and beliefs. The Board does not contend that political strikes . . . are the present or impending products of advocacy of the doctrines of Communism or the expression of belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy."

The test, rather, must be one of balancing of interests. "When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented." Inasmuch as the interest in the restriction, the government's right to prevent political strikes and the disruption of commerce, is much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute.

So, in the current climate of a Clear and Present Danger, political speech has now been relegated to a loyalty test. A test to see if the people will blindly follow a sucession of leaders who drew us into this situation in the first place.

So now the friends of my enemies are my enemies, and the First Amendment be damned if it questions the authority of the butchers living in the District of Criminals.

But it's all kind of beside the point. You can argue all kinds of analogies and parallels. Public information is free to those who find it; an unsecured access point is like an open door; putting data on an unsecured network is like having a conversation in public; etc., etc. The bottom line is that the U.S. courts have never been tolerant of unauthorized access to systems and their data, no matter how careless the owners of that data have been.

The article is at best an incomplete picture of Professor Lessig. While it is framed to show the roots of where he ended up, it could have been different.

Professor Lessig's primary interest, at least initially, was constitutional law. Actually, that makes the Eldred case a good case for him. If you read the briefs you will see that the parties are not especially approaching the case as a "cyberlaw" case.

I don't think the scope of his interest has been limited to being a great niche legal thinker. He wants to be broad, but is going to ride this particular wave for what it is worth. The article does do a good job of explaining why Lessig is important to a particular non-legal community now, and taken for that, it is nice.

but is there not a certain degree of freedown allowable in reference parodies?

Under United States copyright law as interpreted by the courts, parody is only parody when the parody ridicules the original work itself. That's why The Wind Done Gone is legal but The Cat Not in the Hat isn't.

It is completely unconstitutional for a defendant to lose without being allowed to have a trial.

See the 7th Amendment

Summary judgement FOR the defendant does not pose a constitutional problem.

Of course, the civil court system ignores the Constitution and other laws of the land (such as the DMCA exemptions listed RIGHT IN the DMCA itself in the DeCSS case) on a daily basis. So if you are a defendant and lose via summary judgement, you're going down.

Even if you have good lawyers if you "threaten the system", you are very likely to lose and even be ordered to pay for your own persecution. Again, look at the DeCSS 2600 case.

From the Associated Press link:
[Judge] Aspen gave the companies suing Madster until next week to propose language for a "narrowly tailored" injunction that would end copyright infringement "while allowing non-infringing uses of the Aimster system, if any, to continue."

Somebody hit this judge with a clue-stick please?
It would be a lot easier to try to end the use of Madster by left handed people while allowing right handed to continue using the system. *

* Foot note, ambidexterous people can only use the system on tuesdays, thursdays, saturdays, and before noon on sundays.

-

The problem that we're having is not the erosion of our rights. It's the over-interpretation of the constitution that is creating implied rights.

I point you to the Ninth Amendment. It's kind of short and uninteresting, but it's important. So, too, is Amendment 10.

Now, the thing to which you (and others) have referred is to "new" rights which have been invented lately. The biggest one....or should I say the one that knee-jerk Conservatives typically point to....is the "right to privacy." I point to section VIII of the Court's opinion in Roe v. Wade, 410 U.S. 113 (1973).

Bottom line.....you've got rights you didn't even know about, and they're just as valid as the ones enumerated in the Constitution.

The problem that we're having is not the erosion of our rights. It's the over-interpretation of the constitution that is creating implied rights.

I point you to the Ninth Amendment. It's kind of short and uninteresting, but it's important. So, too, is Amendment 10.

Now, the thing to which you (and others) have referred is to "new" rights which have been invented lately. The biggest one....or should I say the one that knee-jerk Conservatives typically point to....is the "right to privacy." I point to section VIII of the Court's opinion in Roe v. Wade, 410 U.S. 113 (1973).

Bottom line.....you've got rights you didn't even know about, and they're just as valid as the ones enumerated in the Constitution.

The problem that we're having is not the erosion of our rights. It's the over-interpretation of the constitution that is creating implied rights.

I point you to the Ninth Amendment. It's kind of short and uninteresting, but it's important. So, too, is Amendment 10.

Now, the thing to which you (and others) have referred is to "new" rights which have been invented lately. The biggest one....or should I say the one that knee-jerk Conservatives typically point to....is the "right to privacy." I point to section VIII of the Court's opinion in Roe v. Wade, 410 U.S. 113 (1973).

Bottom line.....you've got rights you didn't even know about, and they're just as valid as the ones enumerated in the Constitution.

I feel the need to clarify on the following statement:

"The legal profession still relies on it - your lawyer uses WordPerfect and most legal forms are available in that format."

This is absolutely not true.

Now, you may definitely argue that a larger proportion of the legal community relies on WordPerfect than does the general office community. However, the legal profession itself does not rely on WordPerfect.

My father is a lawyer. I set up his law firm's computers. I've known many other lawyers and set up their law firm's networks. What you said was true 3-5 years ago, but most of them have now switched to Word.

And as for legal forms being in WordPerfect format, with the hundreds of legal forms I have had to use, they have been in one of three formats:

a) Hard Copy (as in, a piece of paper that you have to use a typewriter to type on)
or, more often,
b) PDF
or
c) a proprietary format that has to be used with a $5,000-$50,000 piece of crappy software.

ALL of the government forms that a law firm needs are in PDF. Most of the other things that lawyers used to get in hard copy (for instance, the legal books that you see in their offices) are now available for a subscription fee via sites like FindLaw.com. About 50% of the forms that come through a lawyer's office are hard copy, 40% are PDF, and 10% are proprietary, and honestly, I haven't seen a WordPerfect law document in years. Most of the hard copy ones are saved directly to either Microsoft Word or PDF via Acrobat, so the number of hard copy forms will continue to decrease.

From reading your post, it sounds like you haven't encountered WordPerfect in a couple of years, either, and are basing your opinions on what you saw a few years ago. The Internet is becoming quite integral to any lawyer these days, and as such, the number of non-Word proprietary formats for documents is decreasing rapidly (especially since there was a huge government initiative to convert everything to PDF.) Thus, your post was accurate as of a few years ago, but is no longer the case.

If someone actually COMPILES the kernel without first removing patented techniques, well, that's their own problem.

Actually, under U.S. law, anyone who "makes, uses, offers to sell, or sells any patented invention" is violating the patent. Technically, the patent holder could even go after the end users, but that's generally not practical.

So how about hosting the code on a foreign server beyond the reach of U.S. courts? They can still go after you. The law declares, "Whoever actively induces infringement of a patent shall be liable as an infringer." In other words, if you ask somebody to host the violating code for you and they do, then you are an infringer.

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

Free speech cuts both ways - it protects crypto code publication and it also protects political SPAM. That's the point about the 1st ammendment it's there to protect unpopular speech because the popular variety doesn't need protection!

That said I've been involved in a couple of campaigns and we only used email to keep in touch with our people and to see what the other side was saying to theirs (on the internet nobody knows you're a Democrat :-)

For definitions and actual law related to common carrier status see Here
By my reading of section 202 they can make reasonable descrimination against people, and if cutting off people who are bent on harming your customers isn't reasonable I don't know what is.

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

"Only if you part of a state-regulated militia, as the supreme court has ruled."

Not true. Never happened. If you're thinking of US v. Miller (1939), try again. They say nothing mandating an individual to be in "a state-regulated militia"--they speak only of the appropriateness of weapons for military use.

You might want to check out this analysis of the Miller decision. (Scroll down.)

I'm not sure how much this applies; prohibiting police from doing random ID checks is not the same as requiring ID at established security checkpoints. Who wants their every move to be in a database? Thank goodness there are not yet checkpoints at every state border crossing.