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Streambox allowed access to work that was never purchased. This makes a big difference in the fair use analysis.

time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact [464 U.S. 417, 450] that the entire work is reproduced, see 107(3), does not have its ordinary effect of militating against a finding of fair use.

Real's case depending on the DMCA overriding fair use, not on Streambox's product failing to qualify as having a substantial non-infringing use (i.e. time shifting) under existing law.

Here's a few lines from the comments he made on May 4th (full text here)

• Defendant argues, however, that such copying is protected by the affirmative defense of "fair use." See
• 17 U.S.C. 107. In analyzing such a defense, the Copyright Act specifies four factors that must be considered...

  Regarding the first factor -- "the purpose and character of the use" -- ... involves inquiring into whether the new use essentially repeats the old or whether, instead, it "transforms" it by infusing it with new meaning, new understandings, or the like.

  • See, e.g.,
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994); Castle Rock, 150 F.3d at 142; see also Pierre N. Leval, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105, 1111 (1990). Here, although defendant recites that My.MP3.com provides a transformative "space shift" by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium -- an insufficient basis for any legitimate claim of transformation. See, e.g., Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (rejecting the fair use defense by operator of a service that retransmitted copyrighted radio broadcasts over telephone lines); Los Angeles News Serv. v. Reuters Television Int'l Ltd.. 149 F.3d 987 (9th Cir. 1998) (rejecting the fair use defense where television news agencies copied copyrighted news footage and retransmitted it to news organizations), cert. denied, 525 U.S. 1141 (1999); see also American Geophysical Union v. Texaco Inc., 60 F.3d 913, 923 (2d Cir.), cert. dismissed, 516 U.S. 1005 (1995); Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1530-31 (S.D.N.Y. 1991); see generally Leval, supra, at 1111 (repetition of copyrighted material that "merely repackages or republishes the original" is unlikely to be deemed a fair use).

  Regarding the fourth factor -- "the effect of the use upon the potential market for or value of the copyrighted work" -- defendant's activities on their face invade plaintiffs' statutory right to license their copyrighted sound recordings to others for reproduction. See 17 U.S.C. 106. ... [The] defendant argues, its activities can only enhance plaintiffs' sales, since subscribers cannot gain access to particular recordings made available by MP3.com unless they have already "purchased" (actually or purportedly), or agreed to purchase, their own CD copies of those recordings.

  Such arguments ... are unpersuasive. Any allegedly positive impact of defendant's activities on plaintiffs' prior market in no way frees defendant to usurp a further market that directly derives from reproduction of the plaintiffs' copyrighted works. See Infinity Broadcast, 150 F.3d at 111. This would be so even if the copyrightholder had not yet entered the new market in issue, for a copyrightholder's "exclusive" rights, derived from the Constitution and the Copyright Act, include the right, within broad limits, to curb the development of such a derivative market by refusing to license a copyrighted work or by doing so only on terms the copyright owner finds acceptable.

Surely if the employee has no contract of employment, he/she isn't considered an "employee" in legal terms

No.

The term "employee" is defined various ways by various agencies, both state and federal, in the U.S. The existence of a written contract is just one factor in determining whether someone is an employee. There are generally 20 common law factors that are used to determine the employee status of a person. It absolutely does not matter if either or both the parties involved say they are or are not in an employee-employer relationship. The actual facts and circumstances of the situation determine if an employement situation exists.

For a short (perhaps too short) look at the way the Social Security Administration codifies these factors, look here.

For a readable, slightly expanded re-statement of the factors, look here.

And for more than you ever wanted to know, look here.

Actually, the U.S. Olympic committee, the national branch of the International Olympic Committee, which will be enforcing this on U.S. athletes, is not a govermental actor. (See San Francisco Arts & Athletics v. U.S.O.C., 483 U.S. 522 (1987)) Thus, the First Amendment does not apply to the U.S.O.C. (See an excellent article by Prof. Eugene Volokh of UCLA Law School. So, unfortunately we're stuck with the clap-trap the Olympic committee wants to feed us. Personally, I'll boycott the "official everything" of the Olympics, and watch for write-ups after the fact from either observers (because the audience are not restricted from writing) or the athletes after the fact. Thalia

I did not look at the linked site to see the similarities/differences between it and Linux.com (although I noticed that it is an Aggie's site (cough)). While copyright is a common contention in many of these cases, trade dress is a more appropriate claim IMO. I am unsure if trade dress has been applied to the net/web design. rant Although trade dress is a well founded area of law, many established areas of precedent IMO mystically alter/disappear when court's apply the law to the net. /rant Trade dress is this: the total image of a product or service. For instance, McDonald's would likely claim trade dress for the design, look and feel of its stores (exterior and interior separately). If a party's trade dress is inherently distinctive or has acquired secondary meaning and the defendant's trade dress, taken as a whole, is sufficiently similar to cause a likelihood of consumer confusion about an origin, sponsorship or affiliation of a parties' goods, services or business, then trade dress infringement is likely. What is key is that trade dress features are examined as a whole rather than some differences in detail. So, I would imagine that application of trade dress to a web site would include the entire look and feel of a site -- images, colors, layout... GUI. Trade dress is part of unfair competition law, found in the Lanham Act/Trademark law. Therefore, many attributes for examining trade dress law are borrowed from trademark law (i.e.: evidence of likely confusion, sophistication of potential customers, blah blah blah...). Again, I have not compared these two sites and given the history of the legal system's attitudes/misconceptions/illiteracy of the Net I doubt trade dress applied to the Net would be actionable. Just passing on some general info about trade dress law.

Actually, fair use isn't protected by the constitution - sorry.

During constitutional challenges to copyright, these Supreme Court has ruled that because of the provisions for fair use, copyright permitted by the constitution. The first ammendment is an ammendment the constitution, and is thus carves out an exception to Congress's power 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[.]"

If copyright law is interpreted not to include fair use, then the constitution prohibits copyright. As such, the constitution protects fair use. Even before fair use was explicitly written into copyright law, the courts interpreted copyright as allowing fair use in order to avoid declaring it unconstitutional. See among other things CAMPBELL v. ACUFF-ROSE MUSIC, INC. (1994), especially footnote 7 and the text that references it. I'm sure we'll see these citations come up again when the Federal Appeals Court or Supreme Court overturns portions of the DMCA prohibiting fair use in Universal v. Corley.

Actually, fair use isn't protected by the constitution - sorry.

During constitutional challenges to copyright, these Supreme Court has ruled that because of the provisions for fair use, copyright permitted by the constitution. The first ammendment is an ammendment the constitution, and is thus carves out an exception to Congress's power 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[.]"

If copyright law is interpreted not to include fair use, then the constitution prohibits copyright. As such, the constitution protects fair use. Even before fair use was explicitly written into copyright law, the courts interpreted copyright as allowing fair use in order to avoid declaring it unconstitutional. See among other things CAMPBELL v. ACUFF-ROSE MUSIC, INC. (1994), especially footnote 7 and the text that references it. I'm sure we'll see these citations come up again when the Federal Appeals Court or Supreme Court overturns portions of the DMCA prohibiting fair use in Universal v. Corley.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

Nope. A shrinkwrap license has never been tested in a serious court case.

They've been tested lots of times in federal Courts, and as you predict, mostly tossed. However, it is not settled law.

Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, (E.D. La 1987) [no contract & preempted]
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) [no contract & preempted]
Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) [no contract]
Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) [no contract]
ProCD v. Zeidenberg 908 F. Supp. 640(W.D. Wis. 1996) [no contract & preempted]
ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) [is contract, not preempted]
Novell v. Network Trade Center, 25 F. Supp. 2d 1218 (D. Utah 1997) [no contract]

While not a shrinkwrap/clickwrap case, the following strongly endorsed Step-Saver:

Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) [no contract]

Note that there are two issues with a shrinkwrap copyright licence: (1) whether or not it is an enforcable contract and (2) is specific contract terms are "preempted" by Federal law in the Copyright Act.

The Vault v. Quaid cases actually were decided under a Louisiana state law predecessor to UCITA, and were still not enforcable. The court ruled that the adhesion contract was enforcable only if Louisiana's law was valid and that it was invalid.

The bottom line is that the 7th Circuit disagrees with the 3rd and 9th Circuits on whether the shrinkwrap terms are enforcable. The 7th Circuit disagrees with the 5th Circuit on the preemption issue.

There is also a state law case from the Washington state Supreme Court that found shrinkwraps terms enforcable.

If I buy gun, and go on to kill people, can MAGNUM be sued for enabling me to brake the law?

-

Compare this to RIAA's reply to Napsters answer to the Motion for Preliminary Injunction and other earlier documents. It has always been Napster's side of the story that the Supreme Court didn't mean what they wrote in Sony, and that Napster have been evil sly dogs.

It has always been Napster's view that the law is on their side. As a lawyer, I'm more likely to buy the hypertechnical defenses on behalf of Napster, but hey, that's just me. The District Court was moved by the "hey, they're taking everything for free" rhetoric, and the few cracks of light they could pull out of Sony.

Time will tell how the 9th Circuit feels about the matter. In the meanwhile, I didn't see anything really new in this brief at first glance.

In 1972, Paul Cohen wore a jacket with the words "Fuck the Draft" written on it into a LA court house. He was arrested for "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct." When the appeals process ended up in the Supreme Court, the justices held that to censure Cohen for wearing the jacket was tanamount to censuring his opionions on the war. Here are some exerpts from the decision as rendered by Justice Harlan and joined by Douglas, Brennan, Stewart, and Marshall:

The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only "conduct" which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon "speech," cf. Stromberg v. California, 283 U.S. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message and hence arguably could be regulated without effectively repressing Cohen's ability to express himself.

To my eyes, this seems to remove all trace of wrong doing from Copyleft. It is merely expressing itself, not actually removing the CSS. Even if DeCSS is consider unlawful, Copyleft cannot be held equally responsible, nor can any individual who wears one of the shirts.

Appellant's conviction, then, rests squarely upon his exercise of the "freedom of speech" protected from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys.

Once again the shirt cannot be held to be illegal unless itself violates valid regulation of speech. Generally, these "valid regulations" are held to be such things as "fighting words" (speech that can be reasonably assumed to incite violence), obscenity (remember that man in MI who was fined for swearing in front of women and children?), and some other very narrowly defined situations. None of these seem to apply to Copyleft.

Additionally, we cannot overlook the fact, because it [403 U.S. 15, 26] is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures - and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U.S. 665, 673 -674 (1944).

This is precisely the situation with DeCSS, though this time we are speaking out against corporations instead of the state. To wear a DeCSS t-shirt is to "criticize public men and measures." CSS has flaws (in most geeks' opinions) and this T-shirt by Copyleft expresses those opinions. Just as Cohen spoke out against the draft by wearing his shirt, so should geeks speak out against CSS by wearing theirs.

Alot of people are saying that geeks don't have a political cause. The harken back to the days of Vietnam and those protests. But if you look carefully, history is repeating itself! This DeCSS shirt debate is not very dissimilar to that of Cohen.

Well, this concludes our Constitutional Law 101 class for today. Their might be a pop quiz tomorrow, so study up! Class dismissed.

-Mark Fredrickson (I'm not a law prof so don't consider any of this stuff accurate!)

Having said that, I would be interested to see if you're board of ed would withstand a serious legal challenge to its policies. The definitive opinion for expression by students and teachers by the supreme court is TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969) . Quoting from the majority opinion:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Since this is an appeals court case, I would think it has some influence on other circuits. In a circuit that has not ruled on similar issues, the courts commonly look at decisions from other circuits. If the circuit has ruled on the same issue, they will usually rely on their own decisions.

But in all cases, the courts will do what they want. If they feel their previous decisions don't hold anymore, they will ignore it.

The case you're looking for, I think, is New York Times v. U.S., which IIRC really laid the smack down against any form of prior restraint. The "clear and present danger" principle was articulated in Schenk v. U.S., and applies to the government's power to punish for political speech. Again, here we're dealing with allegations of theft (or accessory to theft), so I don't think it directly applies.

Also, I really really think Napster should avoid any such claims, because that would imply that they're publishing these songs, which directly contradicts the core of their argument: that they're not publishing/offering anything directly, but rather simply providing a conduit, and it's the users who may be negaging in illegal activity. Once they argue that they're the publishers, they're screwed.

Did I mention that IANAL?

-brennan

Unless you are mentally retarded and didn't understand what you were doing, $murder == $death

But Texas also executes the mentally retarded. See Penry v Lynaugh. And not just Texas, mind you. Between 1976 and February of 1998, 34 mentally retarded people were executed, five being in Texas.

Not so clear cut, actually. Even accepting that the organization is non-profit, if the film festival charged money, then it's a commercial use, and every commercial use is presumptively ...unfair"(Sony v Univeral, 464 U.S. 417, which is the case on this subject, includes that little gem as part of the overall analysis that made VTR's legal.

Further, the MPAA and their associates regard DVDs not as movies, but as software, and assert that under the DMCA that any use other than the use which the producer intended is illegal. (See, for example, Valenti's deposition and the related slashdot discussion.)

If Valenti and the MPAA are correct, then there is perhaps no legal way for you to use that image without permission. The implications of DMCA in this regard are still to be litigated.

It's always important to remember that the law doesn't mean what you want it to mean, even when you want something reasonable. It means whatever five Justices agree that it means. Of course, since the 55mph speed limit created a whole generation of Americans who believe that laws are optional, I guess we'll have to expect more "technical" piracy.

tc>

Let me make it easy.

The US Constitution. Complete with annotations.

Look for the word "Privacy", I dare you.

If you actually want to learn something about the legal state of privacy in the US you might want to pick up a good book on the topic...

Regards,
Ben

The Federal law is the Driver's Privacy Protection Act of 1994, and it was upheld by the Supreme Court in January in the unanimous decision of Reno v. Condon . In a nut shell, federalism issues don't prevent Congress from regulating the sale of such information as an appropriate regulation of interstate commerce.

(When the DPPA was originally passed, it only required an opt-out provision be provided to angry motorists. However, Public Law 106-69, 113 Stat. 986, which was signed into law on October 9, 1999, changed that to an opt-in requirement, which will all but assures that no such data will be released, owing to the slightly non-zero intelligence of most Americans and their/our general laziness.)

One consequence of Reno v. Condon demonstrated, however, is that because Congress has plenary power over these data, while we can hope and demand that privacy be enforced, Congress is equally capable of legislating that companies be allowed to use/sell such data, and under the Supremecy Clause of the constitution, all state privacy laws to the contrary would be trumped. It's a scary thought.

All in all, nice coverage by Jamie, but the above statement is in error.

On June 22, 2000, The Third Circuit Court of Appeals decided, affirming the lower court's injunction against COPA.

Likewise, just because minors do not have the full constitutional rights of adults, that does not mean they have no constitutional rights at all. One of the classic cases upholding First Amendment rights of minors is Tinker v. Des Moines.

I'm not saying the Indianapolis ordinance in question is necessarily unconstitutional. The rights of minors is a very murky area of the law. I'm just saying that the /.ers who are saying "clearly this is constitutional, minors have no rights at all" are just as mistaken as those who are saying "clearly this is unconstitutional, it violates the First Amendment."

Here's some websites I found which discuss the issue:

• Fourteenth Amendment at Findlaw, with annotations. Especially see the "priviliges and immunities" section of the annotations, where the right to assemble and the right to petition the government are listed among those which states may not restrict. (Granted, those aren't the rights at issue here, but they are First Amendment rights.)

• The Fourteenth Amendment: First Amendment II? Excellent summary of a few relevant cases, how the courts' view of the Fourteenth Amendment has changed over time, particularly with a view towards the political philosophy behind it.

• The Bill of Rights and the Fourteenth Amendment. An article from the Yale Law Review. Extensive summary of relevant cases and discussion. Very long.

Still, it seems that the courts are currently applying First Amendment rights as if the Fourteenth Amendment also prohibited state and local governments from encroaching upon those rights. State and local ordinances are often struck down on the grounds that they violate citizens' First Amendment rights. One of the seminal cases seems to be Gitlow v. New York, in which Justice Sanford, delivering the opinion of the court, writes "[W]e may and do assume that freedom of speech and of the press... are among the personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Granted, as the analyses above mention, prior to Gitlow the courts did not necessarily see the Fourteenth Amendment as extending First Amendment prohibitions to State governments, since then the Fourteenth Amendment has, for the most part, been interpreted that way.

For a recent example, see City of Erie, et al., v. Pap's A.M.. The question at hand in this case was whether an ordinance enacted by the city of Erie, Pennsylvania, violated the First Amendment. While the eventual decision was that the ordinance was constitutional, both sides seem to implicitly accept that the First Amendment (via the Fourteenth Amendment) applies to laws passed by the city of Erie.

In other words, what I'm trying to say is, if you're asking whether this interpretation of the Fourteenth Amendment can be defended purely from the text of the amendment and philosophy alone, I don't know. But it is certainly the way the Fourteenth Amendment has been interpreted in practice for the past several decades.

Here's some websites I found which discuss the issue:

• Fourteenth Amendment at Findlaw, with annotations. Especially see the "priviliges and immunities" section of the annotations, where the right to assemble and the right to petition the government are listed among those which states may not restrict. (Granted, those aren't the rights at issue here, but they are First Amendment rights.)

• The Fourteenth Amendment: First Amendment II? Excellent summary of a few relevant cases, how the courts' view of the Fourteenth Amendment has changed over time, particularly with a view towards the political philosophy behind it.

• The Bill of Rights and the Fourteenth Amendment. An article from the Yale Law Review. Extensive summary of relevant cases and discussion. Very long.

Still, it seems that the courts are currently applying First Amendment rights as if the Fourteenth Amendment also prohibited state and local governments from encroaching upon those rights. State and local ordinances are often struck down on the grounds that they violate citizens' First Amendment rights. One of the seminal cases seems to be Gitlow v. New York, in which Justice Sanford, delivering the opinion of the court, writes "[W]e may and do assume that freedom of speech and of the press... are among the personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Granted, as the analyses above mention, prior to Gitlow the courts did not necessarily see the Fourteenth Amendment as extending First Amendment prohibitions to State governments, since then the Fourteenth Amendment has, for the most part, been interpreted that way.

For a recent example, see City of Erie, et al., v. Pap's A.M.. The question at hand in this case was whether an ordinance enacted by the city of Erie, Pennsylvania, violated the First Amendment. While the eventual decision was that the ordinance was constitutional, both sides seem to implicitly accept that the First Amendment (via the Fourteenth Amendment) applies to laws passed by the city of Erie.

In other words, what I'm trying to say is, if you're asking whether this interpretation of the Fourteenth Amendment can be defended purely from the text of the amendment and philosophy alone, I don't know. But it is certainly the way the Fourteenth Amendment has been interpreted in practice for the past several decades.

Here's some websites I found which discuss the issue:

• Fourteenth Amendment at Findlaw, with annotations. Especially see the "priviliges and immunities" section of the annotations, where the right to assemble and the right to petition the government are listed among those which states may not restrict. (Granted, those aren't the rights at issue here, but they are First Amendment rights.)

• The Fourteenth Amendment: First Amendment II? Excellent summary of a few relevant cases, how the courts' view of the Fourteenth Amendment has changed over time, particularly with a view towards the political philosophy behind it.

• The Bill of Rights and the Fourteenth Amendment. An article from the Yale Law Review. Extensive summary of relevant cases and discussion. Very long.

Still, it seems that the courts are currently applying First Amendment rights as if the Fourteenth Amendment also prohibited state and local governments from encroaching upon those rights. State and local ordinances are often struck down on the grounds that they violate citizens' First Amendment rights. One of the seminal cases seems to be Gitlow v. New York, in which Justice Sanford, delivering the opinion of the court, writes "[W]e may and do assume that freedom of speech and of the press... are among the personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Granted, as the analyses above mention, prior to Gitlow the courts did not necessarily see the Fourteenth Amendment as extending First Amendment prohibitions to State governments, since then the Fourteenth Amendment has, for the most part, been interpreted that way.

For a recent example, see City of Erie, et al., v. Pap's A.M.. The question at hand in this case was whether an ordinance enacted by the city of Erie, Pennsylvania, violated the First Amendment. While the eventual decision was that the ordinance was constitutional, both sides seem to implicitly accept that the First Amendment (via the Fourteenth Amendment) applies to laws passed by the city of Erie.

In other words, what I'm trying to say is, if you're asking whether this interpretation of the Fourteenth Amendment can be defended purely from the text of the amendment and philosophy alone, I don't know. But it is certainly the way the Fourteenth Amendment has been interpreted in practice for the past several decades.

As you all recall because you all follow these events as closely as I do, the Supreme Court just handed down US v. Morrison, which reaffirms the proposition recently stated in US v Lopez that Congress has no business regulating anything that does not stem from an enumerated power in Article I or any of the amendments. Specifically, Congress isn't allowed to claim that anything that substantially implicates interstate commerce is regulatable as such; it actually has to be a form of commerce to qualify.

As if there weren't enough 1st amendment grounds for striking down the censorship provisions of this act, I suspect Congress would be hard pressed to demonstrate that nonprofit speech as such is a form of commerce, and this bill doesn't specify that the speech must be conducted through interstate channels to qualify.

Let's face it, these 3 companies do go hand in hand.

So do Time Warner and AOL. The merge-happy economy of the past few years needs to be checked out, lest we lose our ability to choose whom we buy products from.

From Schwabacher v. U.S., 334 U.S. 182: The appellants contend that their share in the merged company is to be measured by, or their remedies [ 334 U.S. 182 , 190] as dissenters are to be found in, state law, but that the federal agency is bound to determine and apply that law. The Commission on the other hand refuses either finally to foreclose or to allow these claims. It apparently leaves it open to the state courts, or to the parties by negotiation, to add to the surviving carrier's capital obligations which the Commission has found to be just and reasonable, others founded only in state law and as to which it has made no such findings.

The onus is on both the state and federal governments and the FTC to take a careful look at the slew of mergers currently going on. Nothing less than our precious capitalism is at stake.

In 1873, in Railroad Co. v. Stout, 17 Wall. 657, this court, in a turntable case, in a unanimous decision, strongly approved the doctrine that he who places upon his land, where children of tender years are likely to go, a construction or agency, in its nature attractive, and therefore a temptation, to such children, is culpably negligent if he does not take reasonable care to keep them away, or to see that such dangerous thing is so guarded that they will not be injured by it when following the instincts and impulses of childhood, of which all mankind has notice

Almost everyone who has been through public education in America in the last 50 years or so has, in the process of creating obediant, conformist children, said, "I Pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, (blah, blah, blah)." Pure "Democracy" == Majority rule == Bad Idea.

Second, our government is doing fine.
...
everyone knows the government is corrupt ... We know we are not free!

FFFish said "Things aren't as charming as you've been brainwashed to believe: you are not free, it is not a democracy, and your government is slowly but surely destroying the Constitution and Bill of Rights." I think you missed his points. You are the victim of a partial brainwashing - you believe you live in freedom, yet you know that all is not well in Wonderland (see above quotes). Maybe today's oppressors allow more freedom than yesterday's, but that doesn't mean that we are magically "free" today. Freedom is the right to Life, Liberty, and the Persuit of Happiness. Most people believe that Liberty is merely the freedom from bodily restraint and the right to free speach and to protest. Liberty is much more than that though...

"... The term Liberty...denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his/her own conscience.. The established doctrine is that this liberty may not be interfered with, under the guise of protecting public interest, by legislative action.."
- Meyer V. Nebraska, 262, U.S. 390, 399, 400.

Today many of the "common occupations of life" are interfered with/restricted/prohibited by "government" under the guise of protecting public interest, by legislative action. Drugs, Motoring around in an automobile ("Driver's License"), Sex (Prostitution, etc), Education (compulsory), etc. Sure, sometimes good things can come from a few of these interferances by government into these "common occupations of life," but that cannot justify government taking away my cherished personal liberty. I want to live a life free from terrorist bureaucrats who desire nothing more than to protect me from myself and make sure their rules are followed to the letter.

If you have any comments/questions, feel free to send me some E-mail.

Did you eat paint chips when you were a kid? Some businesses do need to be regulated in order to protect the interests of the people at large. Granted, we can't control all aspects of the economy, but I hardly think blaming the courts for business' mistakes is in order. Comparing a major corporation to a little kid is a little off, too. The kid can't bribe his parents to get them to shut up - most kids I know aren't financially independent.

Take a look at these Supreme Court Cases:

Helvering v. Watts 296 U.S. 387

Procter & Gamble v. U.S. 225 U.S. 387

U.S. v. Amer. Bldg. Maint. Industries 422 U.S. 271

The last case quotes Section 7 of the Clayton Act, 15 U.S.C. 18: "No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."

The Clayton Act was created for a reason - to protect the American people from the rapacious greed of monolithic corporations. Perhaps your mental image would be better supplanted with an incubus whose parents don't allow him to do anything, and he ends up devouring their souls.

Did you eat paint chips when you were a kid? Some businesses do need to be regulated in order to protect the interests of the people at large. Granted, we can't control all aspects of the economy, but I hardly think blaming the courts for business' mistakes is in order. Comparing a major corporation to a little kid is a little off, too. The kid can't bribe his parents to get them to shut up - most kids I know aren't financially independent.

Take a look at these Supreme Court Cases:

Helvering v. Watts 296 U.S. 387

Procter & Gamble v. U.S. 225 U.S. 387

U.S. v. Amer. Bldg. Maint. Industries 422 U.S. 271

The last case quotes Section 7 of the Clayton Act, 15 U.S.C. 18: "No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."

The Clayton Act was created for a reason - to protect the American people from the rapacious greed of monolithic corporations. Perhaps your mental image would be better supplanted with an incubus whose parents don't allow him to do anything, and he ends up devouring their souls.

Did you eat paint chips when you were a kid? Some businesses do need to be regulated in order to protect the interests of the people at large. Granted, we can't control all aspects of the economy, but I hardly think blaming the courts for business' mistakes is in order. Comparing a major corporation to a little kid is a little off, too. The kid can't bribe his parents to get them to shut up - most kids I know aren't financially independent.

Take a look at these Supreme Court Cases:

Helvering v. Watts 296 U.S. 387

Procter & Gamble v. U.S. 225 U.S. 387

U.S. v. Amer. Bldg. Maint. Industries 422 U.S. 271

The last case quotes Section 7 of the Clayton Act, 15 U.S.C. 18: "No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."

The Clayton Act was created for a reason - to protect the American people from the rapacious greed of monolithic corporations. Perhaps your mental image would be better supplanted with an incubus whose parents don't allow him to do anything, and he ends up devouring their souls.

Cpt. Thanks for your reply. I believe you are referring to the "first sale doctrine" establish in BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908) This did involve the minimum resale price set by a publisher and subsequently violated by Macy's. IIRC, ProCd intentionally did not delve into the copyright violations, and the applicability of the first sale doctrine. Instead, it found for the publisher on the contract theory. If there is a split in jurisdictions, please let me know. This would be vitally important to some of my research work. I do know that ProCd was denied certiori by the Supreme Court. This rather scares me b/c AFAIK it leaves it as the most persuasive authority in other jurisdictions. Thanks

What about ProCd? Much to my chagrin, I thought this clearly established that agreeing to the hidden shrinkwrap license was part of the offer, and payment at checkout was acceptance? Correct me if I'm wrong.

Some legal precedent for ya:

Mellon v. Delaware L & WR Co.

Tiverton Bd. of License Comm'rs v. Pastore

From the latter:

When a development after this Court grants certiorari or notes probable jurisdiction could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay. See this Court's Rules 34.1(g) (petitioner's statement of the case shall contain all that is material to the issues); 34.2 (respondent's brief may correct any omission from petitioner's statement); and 35.5 (parties may file supplemental briefs after briefs on the merits to point out intervening matters not contained in the merits briefs).

The writ of certiorari is dismissed as moot.

I would say the GPL stands a good chance of holding up in court.

Some legal precedent for ya:

Mellon v. Delaware L & WR Co.

Tiverton Bd. of License Comm'rs v. Pastore

From the latter:

When a development after this Court grants certiorari or notes probable jurisdiction could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay. See this Court's Rules 34.1(g) (petitioner's statement of the case shall contain all that is material to the issues); 34.2 (respondent's brief may correct any omission from petitioner's statement); and 35.5 (parties may file supplemental briefs after briefs on the merits to point out intervening matters not contained in the merits briefs).

The writ of certiorari is dismissed as moot.

I would say the GPL stands a good chance of holding up in court.

You might find these links interesting and enlightening:

Chesapeake and O.RY. Co. v. Kuhn

Cadwalader v. Wanamaker

An excerpt from the former:
In cases like this, where damages are claimed under the Federal Employers' Liability Act (45 USCA 51-59), defense of the assumption of the risk is permissible and where the undisputed evidence clearly shows such assumption the trial judge should direct a verdict for the defendant. Moreover, in proceedings under that act, wherever brought, the rights and obligations of the parties depend upon it [284 U.S. 44, 47] and applicable principles of common law as interpreted and applied in the federal courts. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 508 , 34 S. Ct. 625, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Chesapeake & Ohio R. R. v. De Atley, 241 U.S. 310 , 36 S. Ct. 564; Boldt v. Pennsylvania R. R., 245 U.S. 441, 445 , 38 S. Ct. 139; New Orleans & N. E. R. R. v. Harris, 247 U.S. 367, 371 , 38 S. Ct. 535; Chicago, Milwaukee & St. Paul Ry. v. Coogan, 271 U.S. 472, 474 , 46 S. Ct. 564

You might find these links interesting and enlightening:

Chesapeake and O.RY. Co. v. Kuhn

Cadwalader v. Wanamaker

An excerpt from the former:
In cases like this, where damages are claimed under the Federal Employers' Liability Act (45 USCA 51-59), defense of the assumption of the risk is permissible and where the undisputed evidence clearly shows such assumption the trial judge should direct a verdict for the defendant. Moreover, in proceedings under that act, wherever brought, the rights and obligations of the parties depend upon it [284 U.S. 44, 47] and applicable principles of common law as interpreted and applied in the federal courts. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 508 , 34 S. Ct. 625, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Chesapeake & Ohio R. R. v. De Atley, 241 U.S. 310 , 36 S. Ct. 564; Boldt v. Pennsylvania R. R., 245 U.S. 441, 445 , 38 S. Ct. 139; New Orleans & N. E. R. R. v. Harris, 247 U.S. 367, 371 , 38 S. Ct. 535; Chicago, Milwaukee & St. Paul Ry. v. Coogan, 271 U.S. 472, 474 , 46 S. Ct. 564

MS is evil (except for their successful lobbying to get copyright on software), but big business is not.

How is Big Business not evil? Why do you think we had to create the Sherman Anti-trust Act? What about the court decision in Carnegie Steel Co. v. U.S. (Case # 240 U.S. 156) in 1916? Or 279 U.S. 263 (1929), Sinclair v. U.S.?

Take a long hard look, and maybe you'll change your mind about big business.

MS is evil (except for their successful lobbying to get copyright on software), but big business is not.

How is Big Business not evil? Why do you think we had to create the Sherman Anti-trust Act? What about the court decision in Carnegie Steel Co. v. U.S. (Case # 240 U.S. 156) in 1916? Or 279 U.S. 263 (1929), Sinclair v. U.S.?

Take a long hard look, and maybe you'll change your mind about big business.

a felony is a conviction that carries a sentance of 1 year in jail or longer.

"Every state has its own statutory definition of a felony. Most are in line with the federal definition of a felony as a crime which carries a sentence of imprisonment for more than one year or the death penalty (where applicable). Other states, like Louisiana, define a felony as a crime which carries a sentence of death or imprisonment at hard labor."

1. The Product is licensed, not sold.

"[T]o call the sale a license to use is a mere play upon words."
Bauer & Cie. v. O'Donnell, 229 U.S. 1 (US Supreme Court 1913)

Is the Xing player bought from a retailer? If so, the receipt from the retailer is a contract of sale. Xing is not a party to this contract and they cannot alter it by subsequent contract.

In all the cases recognizing shrinkwrap licences, the sale was direct from the software company. The theory is that it is "money now, terms in the box, contract begins when goods & terms are 'accepted'".

When there is a retailer in the way, this doesn't work, because the software company isn't a party to the contract of sale, so the shrinkwrap has to stand on it's own as a contract.

Title 17 of the US code, section 117 allows the owner of a copy to install it on one computer. The shrinkwrap basically authorizes you to do something that you already can legally do (ie it gives you nothing). All contracts depend on 'consideration', which means that each side gives up something in a quid-pro-quo. When the consumer gives up lots of rights in return for permission to do something they already can do under law, there is no consideration and the contract is invalid.

All this is my own, non-lawyer opinion, but I have been reading a lot about clickwrap contracts because of the DVD case (I've been heavily involved in Openlaw).

Furthermore, for an act to considered criminal libal too things must be proven, a. that the statements are indeed untrue, and b. that the person or persons named by the statements have been in some way damaged or injured by the statements.

Further, many of the people involved in the alleged defamation have injected themselves into the public controversy by their own public comments, making them limited public figures with relation to a libel action.

In this case, the parties (or the state) would have to prove ACTUAL MALICE, not merely damage by the statements.

"St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."
R.A.V. v. ST. PAUL, 505 U.S. 377 (1992)

or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.

Incidentally, this statute may be unconstitutional by its construction. Either on an argument of "unconstitutionally vague or overbraod" or in that it appears to criminalize first amendment protected conduct. This depends on the state definition of defamation and whether the truth of the allegation is allowed as an affirmative defense.

"St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."
R.A.V. v. ST. PAUL, 505 U.S. 377 (1992)

When I start calling people names and saying things about them in a delibrate attempt to cause harm, that's libel.

No, a principal component of libel, at least in the United States, is that it not be true. Have any of us seen the website? I haven't. The father at least states that if taken to court about it the intention is to provide proof that all the statements did have a factual basis.

Name-calling may not be pleasant but it is not illegal unless it involves false accusations. Something like "slut" is not illegal, it is a matter of opinion. The use of such terms is often seen as sexist or otherwise politically-incorrect but that does not magically make it illegal.

Incidentally, apparently he and his friend had been subjected to libellous attacks in the school newspaper itself before this started--see my RAV v. St. Paul quote at the end with regards to that.

"What is the freedom of expression? Without the freedom to offend, it ceases to exist." - Salman Rushdie

"St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."
R.A.V. v. ST. PAUL, 505 U.S. 377 (1992)

In either case, look up HUSTLER MAGAZINE v. FALWELL, 485 U.S. 46 (1988).

In this case, Falwell sued because Hustler printed a parody in which he was portrayed as having had his first sexual experience with his mother in an outhouse.

That was legal. If Flynt could publish that kind of material, then it is just as legally protected if published online.

In either case, the chilling effects on First Amendment protected speech are enormous if libel such as this is viewed not merely as a civil tort which can be redressed by a libel suit, but in fact actually becomes a criminal offense.

I hope this kid sues the holy bejesus out of these bastards. Personally, I agree with him. These fucking people are on crack, probably sluts, and certainly fascists.

It could be argued that the teachers are public figures in this case. They are certainly public enough to be held to a higher moral standard than other people. Teachers are entrusted with a public duty when they teach. Shouldn't they then be subject to the same kind of criticism as Clinton?

See the following case for some interesting comparisons:
Falwell v. Flynt (485 U.S. 46 1988)

It's a tough call, because obviously his intent was to harm

I think the intent makes all the difference. If the site was intended to be laughably hyperbolic, the harm would be harder to prove because no reasonable person would actually believe the content.

Didn't Larry Flynt avoid defamation charges by pointing out that no one would actually believe that Jerry Falwell had sex with his mother in an outhouse.

IAMNOTALAWYER (I Am Moderated "Not On Topic" And Laugh At What You Expect Really) but I doubt whether jokes about people could be considered defamatory. Even though the Flynt vs Falwell case hinged partly on the fact that Falwell was a public figure, the private citizens in this case are involved in matters of public concern, namely the public school system. This decision by the supreme court might have some applicability here.

The first amendment ought to protect such speech, but as it's been interpreted, it doesn't. The binding precedent is still Chaplinsky v. New Hampshire (1942), where it was ruled constitutional to ban so-called "fighting words", specifically applied in that case to cover calling policemen "fascists" and "agents of fascism". It's a horrible ruling, but it's there, and it's dragged out from time to time to justify speech codes and all sorts of other abominations.

The entire 1995 Trademark Dilution Act can also be found here.

The Supreme Court rejected such notices in 1908. The case is BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339(1908).

(For people who didn't follow the link and read the decision...)

"Fair use" is a part of copyright law that lets you make copies of works you posses for your own use. For instance, if I have a license to Windows 98, I can lawfully copy it onto my hard drive for use.

Fair use has one restriction: keeping the copies after giving the original to another person is infringement. Specifically, it is the copies themself that infringe, not the original work, nor the transfer of the original.

The other issue is "first sale". Copyright is a grant of monopoly, allowing the author to control how the work is published. And that's as far as the monopoly extends. Once a copy has been published, the author's only right is preventing further publication without their permission.

That a sale might cause previously noninfringing "fair use" copies to become infringing is not a cause for restraining the sale, and the sale is not subject to remedies. It simply is not part of copyright law. Sale of a lawful original copy is always lawful. It is keeping the now-infringing copies that is unlawful, and the law provides remedies for that.

In the Microsoft/eBay case, Microsoft has no cause for preventing the sale, due to the first sale doctrine. At most, when they know that copies were kept after the sale, there are other remedies that may be pursued. They are not acting out of any right or privilege of law, but out of greed.

Microsoft is committing slander and libel, by making allegations of infringement with reckless disregard for truth. Their claims also create false advertising, because they original copyright works were not advertised as being "not for resale". Finally, preventing sales constitutes restraint of trade, which is generally illegal.

And worst of all, they're doing it in collusion with another company. You'd think they would be more...uh...subtle, what with the Department of Justice breathing down their necks.