Slashdot Mirror

There is a Law.com article on it also.

Copy/pasted below:

*******
Children's Internet Protection Act Struck Down

Shannon P. Duffy
The Legal Intelligencer
06-03-2002

Striking down key provisions of the Children's Internet Protection Act as unconstitutional, a special three-judge U.S. District Court in Philadelphia has ruled that Congress went too far when it threatened to pull certain federal funds from any public library that failed to install "filtering" software to block access to sexually explicit Web sites.

The judges found that the law runs afoul of the First Amendment because filtering software simply blocks too much and that mandating its use would therefore force libraries to censor the speech of millions of Internet speakers.

"Commercially available filtering programs erroneously block a huge amount of speech that is protected by the First Amendment," Chief Judge Edward R. Becker of the 3rd U.S. Circuit Court of Appeals wrote in a 198-page decision in American Library Association v. United States. (Decision in Word format.)

Becker, who was joined by U.S. District Judges John P. Fullam and Harvey Bartle III, found that the government failed to show the law was "narrowly tailored."

"The First Amendment demands the precision of a scalpel, not a sledgehammer," Becker wrote.

In a rarely used provision, Congress mandated that any appeal of Friday's decision will go directly to the U.S. Supreme Court which is required under the law to take up the case.

The ruling was applauded by the American Library Association and the American Civil Liberties Union, who had argued that the law would make it tougher for people without home computers to get information on topics such as breast cancer and homosexuality, which are sometimes accidentally blocked by the filters.

Stefan Presser, the ACLU's legal director in Pennsylvania, said he hopes the ruling will convince Congress to give up its effort to regulate speech on the Internet since the courts have also struck down two previous laws -- the 1996 Communications Decency Act and the 1998 Child Online Protection Act.

"It is certainly my hope that now that Congress has taken three strikes it will get out of the business," Presser said.

ANALYSIS OF FILTERING SOFTWARE

Becker's opinion opens with a three-page table of contents which shows that about half the decision is devoted to fact-finding.

One of the largest sections in the fact-finding focuses on the technology of filtering software -- who makes it, what it does and how it works.

The court concluded that all filtering software suffers from two key flaws -- "overblocking," in which the software blocks access to protected speech, and "underblocking," in which it fails to block sites that include material that is obscene or harmful to minors.

And since the Internet keeps expanding everyday, the court concluded that the software will never be good enough.

"No presently conceivable technology can make the judgments necessary to determine whether a visual depiction fits the legal definitions of obscenity, child pornography, or harmful to minors. Given the state of the art in filtering and image recognition technology, and the rapidly changing and expanding nature of the Web, we find that filtering products' shortcomings will not be solved through a technical solution in the foreseeable future," Becker wrote.

Government lawyers urged the court to uphold the law unless the plaintiffs could show that any public library that complies with CIPA's conditions will necessarily violate the First Amendment.

Plaintiffs' lawyers insisted that the test was not so strict and that they were required only to show that CIPA would effectively restrict library patrons' access to "substantial amounts" of constitutionally protected speech, therefore causing many libraries to violate the First Amendment.

Becker took the easy way out, saying the government lost even under the stricter test.

"We believe that CIPA's constitutionality fails even under this more restrictive test of facial validity urged on us by the government. Because of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies' own blocking criteria," Becker wrote.

LIBRARY AS PUBLIC FORUM

One of the key battles in the case was over whether a public library is a public forum.

Government lawyers argued that librarians already exercise considerable discretion in choosing a library's collection of books. As a result, they said, a public library is a "limited public forum" whose content-based decisions are constitutional so long as they are "rational."

But plaintiffs' lawyers insisted that the court should subject CIPA to "strict scrutiny" since it attempts to regulate the Internet, a forum that is separate from the library's book collection and more closely resembles the town square.

Becker sided with the plaintiffs, saying "the relevant forum for analysis is not the library's entire collection, which includes both print and electronic media, such as the Internet, but rather the specific forum created when the library provides its patrons with Internet access."

The Internet, Becker said, has been described by the U.S. Supreme Court as a "vast democratic forum" that is open to any member of the public to speak on subjects "as diverse as human thought."

As a result, Becker said, if a public library provides Internet access and then "selectively excludes" certain speech on the basis of its content, courts must employ the strict scrutiny test.

"These exclusions risk fundamentally distorting the unique marketplace of ideas that public libraries create when they open their collections, via the Internet, to the speech of millions of individuals around the world on a virtually limitless number of subjects," Becker wrote.

"When public libraries provide their patrons with Internet access, they intentionally open their doors to vast amounts of speech that clearly lacks sufficient quality to ever be considered for the library's print collection. Unless a library allows access to only those sites that have been preselected as having particular value ... even a library that uses software filters has opened its Internet collection for indiscriminate use by the general public," Becker wrote.

Government lawyers argued that one of CIPA's goals was to protect library patrons from being harassed by other patrons who wanted to use the Internet access for sexually explicit or even illegal material.

But Becker found there were better ways of solving the problem.

"The proper method for a library to deter unlawful or inappropriate patron conduct, such as harassment or assault of other patrons, is to impose sanctions on such conduct, such as either removing the patron from the library, revoking the patron's library privileges, or, in the appropriate case, calling the police," Becker wrote.

Becker agreed, however, that the government has a legitimate interest in "preventing the dissemination of obscenity, child pornography, or in the case of minors, material harmful to minors, and in protecting library patrons from being unwillingly exposed to offensive, sexually explicit material."

But even such a valid goal can't save a law that isn't "narrowly tailored," Becker said.

On that point, Becker said, CIPA is fatally flawed.

"Given the substantial amount of constitutionally protected speech blocked by the filters studied, we conclude that use of such filters is not narrowly tailored with respect to the government's interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors," Becker wrote.

"Given the inherent limitations in the current state of the art of automated classification systems, and the limits of human review in relation to the size, rate of growth, and rate of change of the Web, there is a tradeoff between underblocking and overblocking that is inherent in any filtering technology," Becker wrote.

They only do a javascript boink after serving the content though. The 'people^H^H^H^H^Hrinter friendly' page' is unencumbered by both the crud and that Javascript. (Although it doesn't matter much since you've pasted it I suppose).

Per the article:
(and this is a better link too!)

Ultimately, Mist-On agreed that it could not copyright the idea of a FAQ page. However, Mist-On argued that because the Gilley's FAQ page was so similar to the Mist-On FAQ page that there must be some copyright infringement.

The court swatted away this argument by noting the differences between the two Web pages, such as the fact that "the sequence, the wording and the number of the questions are different from each other," "five of defendants' questions are entirely unique to their page," "seven of plaintiff's questions are entirely unique to its page," and "the layout of the web page[s] is different." Moreover, "there is no truth to plaintiff's assertion that many of defendants' questions and answers are 'nearly identical' to plaintiff's."

Sig: What Happened To The Censorware Project (censorware.org)

America has been called the most litigious society in history, so there's no doubting the need for lawyers. But intellectual-property attorneys-specifically, patent lawyers-have the sunniest prospects of all. Every burgeoning biotech firm has to patent its research, weave through regulations and fend off competitors trying to steal its work. Intellectual-property-related squabbling is rising in the software and engineering worlds, too. "Legal recruiters are saying demand is going to remain high in the future," says William Seaton, founder of legal careers site Emplawyernet.com. Starting pay for business lawyers ranges from $60,000 to $86,000. Intellectual-property attorneys, says Seaton, can make 20 percent more.

How to become one: In addition to your JD, it's good to have a technical bachelor's, such as chemical engineering. And for patent work, you must pass a special federal bar exam.

America has been called the most litigious society in history, so there's no doubting the need for lawyers. But intellectual-property attorneys-specifically, patent lawyers-have the sunniest prospects of all. Every burgeoning biotech firm has to patent its research, weave through regulations and fend off competitors trying to steal its work. Intellectual-property-related squabbling is rising in the software and engineering worlds, too. "Legal recruiters are saying demand is going to remain high in the future," says William Seaton, founder of legal careers site Emplawyernet.com. Starting pay for business lawyers ranges from $60,000 to $86,000. Intellectual-property attorneys, says Seaton, can make 20 percent more.

How to become one: In addition to your JD, it's good to have a technical bachelor's, such as chemical engineering. And for patent work, you must pass a special federal bar exam.

Have another person break the protection. Sue him - take turns appealing it all the way to the Supreme Court

collusive action

n. a lawsuit brought by parties pretending to be adversaries in order to obtain by subterfuge an advisory opinion or precedent-setting decision from the court. If a judge determines the action does not involve a true controversy he/she will dismiss it.

Disclaimer: I am not a lawyer.

Sig: What Happened To The Censorware Project (censorware.org)

Have another person break the protection. Sue him - take turns appealing it all the way to the Supreme Court

collusive action

n. a lawsuit brought by parties pretending to be adversaries in order to obtain by subterfuge an advisory opinion or precedent-setting decision from the court. If a judge determines the action does not involve a true controversy he/she will dismiss it.

Disclaimer: I am not a lawyer.

Sig: What Happened To The Censorware Project (censorware.org)

Ever heard of a mail cover? According to Law.com:

A mail cover consists of recording the information on the outside of all the mail delivered to the target home or business. It is done by the post office at the request of a local, state or federal law enforcement agency and lasts for one or more 30-day periods.

<snip>

... a mail cover doesn't need a judge's approval. Nor, as in wiretaps, are the targets of a mail cover eventually notified of the practice. The only way to learn about it is through discovery in a legal proceeding, if the lawyer asks the right questions.

And of course:

Its use has risen by more than half since the mid-1980s.

It's time people realized that surveillence isn't just about Carnivore and face recognition.

The supreme court has declined to hear arguments that the case should be tossed out due to bias on Judge Jackson's part. Micorosft can still appeal the ruling on the merits of the case. In other words Microsoft took a long shot that they could get the Jackson's ruling reversed on his behavior rather than on questions of law. You can bet that if the settlement isn't approved, they'll be another appeal to the Supreme Court by Microsoft.

Supreme Court Declines to Review Microsoft Appeal

Actually, a monopoly is defined as:

a business or inter-related group of businesses which controls so much of the production or sale of a product or kind of product as to control the market, including prices and distribution. Business practices, combinations and/or acquisitions which tend to create a monopoly may violate various federal statutes which regulate or prohibit business trusts and monopolies or prohibit restraint of trade.

This is generally one of the points of contention. The definition of the market, for example, can change things radically. For example, if Microsoft could define "the market" as all devices which have a processor, it could legitimately argue that the Palm OS, and Solaris, as well as Linux and MacOS are its competitors.

In the Microsoft case, the "market" was defined as "personal computers" in which market Microsoft clearly has enough power to dictate pricing and distribution... and they have demonstrated.

Thalia

Here are some of the proposed penalties:

• Copying a movie - 5 years
• Copying an album - 3 years
• Copying shrink-wrap software - 2 years
• Copying a song - 1 years
• Moving the write-protect tab on a floppy - 6 months

Here is a link to the article talking about the music re-copyright issue.

Being a fellow classical musician I also feel disgusted whenever I think of these publishers benefiting from the hard work of the past masters.

From an interview with Lawrence Lessig:

"It is important to remember that work in the public domain not only supports those who freely distribute it, but also those who publish it commercially."

Yes, indeed, it does benefit those people, but the one person whom it fails to benefit is the original author of the work. A creative work (book, movie, computer program) takes a lot of money and a lot of effort, often invested with the intent of making a profit.

Why should that effort ever become yours to take, seventy years later or seventy thousand? If I write a book, why should the rights to it not pass on to my heirs, like my house or my money, in perpetuity? Or sold, like any other asset, to a corporation.

Slashdot seems to contain a great many people who like to do work and then contribute that work to the world. I applaud their efforts, and contribute some of my own. But that is their voluntary gift to the world. If an author chooses not to do so, I don't see why the law should force them to. I am not a lawyer, but it sounds to me like the removal of copyright protection is a "taking".

Much has been written so far about how society as a whole benefits from placing works in public domain. I do not deny this. Society would probably benefit from my other possessions as well, but they have no right to them and are not allowed to take them, no matter how long I've owned them.

A caveat: I benefit from the copyright freedom of classic works of literature. I am a Shakespearean actor, in a community theater troupe, and we can barely afford to pay for our space, much less royalties on a 400 year old play. It gives me great pleasure to use these works, and if I had to pay more than a token amount for them, I'd be out of luck.

But if I had to, and could afford it, I would. These plays mean a lot to me. If I couldn't, then it would be my loss, and perhaps also a smaller one of the foundation administering the copyright.

US patents used to run for 17 years from the time a patent was granted, vs. 20 years from the time of application in the rest of the world. So if it expires in 2006, then it must have been granted in 1989 -- that's a rather long delay if the UK application was in 1980. Or, the article seems to say that the suit now is over patent infringement in the 80's -- which makes this a remarkably long time to wait, and isn't there an applicable statute of limitations?

Also, US courts are just now beginning to consider that failure to enforce a patent for an unreasonably long time (like while the patented technique becomes industry standard practice, with no royalties), may constitute "prosecution laches" and make the patent unenforceable. See this.

Not to sound pedantic, but I don't think so. Mala is the plural of malum. The original poster's usage was:
malum prohibitum and malum in se. Seems correct.

Malum prohibitum crimes are crimes that are (literally) "Evil because it's prohibited". seems correct... otherwise you get the awkward double plural "prohibited evils crimes".

Check out http://ecclesia.org/lawgiver/M.asp or perhaps http://dictionary.law.com/definition2.asp?selected =1202&bold=%7C%7C%7C%7C

That's because it is spelled barratry. And, interestingly, the layman's dictionary def is "instigating lawsuits", not "threating to instigate lawsuits". Dunno if there is a legal distinction, since (all together now, children) IANAL.

Over in what represents itself as a legal dictionary, law.com mentions barratry as a form of shady/illegal business practice by lawyers. Goodness, surely not lawyers.

Correct, because YOU SIGNED UP FOR A LIST! You can also unsubscribe. I subscribed to NO list and it is impossible for me to unsubscribe to the spam. Furthermore, legitimate lists are rather easy to block, since they use legit headers, standard formats and usually, standard subject lines. This ain't the case with spam.

then the act of listening and processing what they say requires energy, which ultimately costs me money

Wrong again. If you want to listen, that is your choice. It does not cost you money to *hear* someone, and you are able to walk away. If you are NOT able to walk away, there are a number of harassment and assault laws which cover the subject. As you stated yourself, you can get a restraining order. Not so for spam.

Spam costs ME money. Someone else is advertising and expecting ME to pay for it. This has been made illegal in every other form (and there have been some very interesting postal fraud cases as a result). The New York State junk fax law is most likable to this situation, where costs to the advertiser are negligible and costs to the recipient are not.

You cannot legitimately and logically defend spam based on its own definition. It isn't spam if I ask for the mail, and I've never, ever asked someone to send me any sort of advertisement. Not even when they've been willing to pay me to read it. How can you logically expect me to bear the costs of advertising your scam?

A couple good links (I'm already karma-capped):
New York Law Journal (Sep. 1997!)
How to use 47 U.S.C. Section 227(b) [Telephone Consumer Protection Act] against junk faxes

woof.

This is not a sig.

declaratory judgment
n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited "advisory opinion," it is allowed to nip controversies in the bud. Examples: a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or a corporation may ask a court to decide whether a new tax is truly applicable to that business before it pays it.
See also: declaratory relief

declaratory relief
n. a judge's determination (called a "declaratory judgment") of the parties' rights under a contract or a statute often requested (prayed for) in a lawsuit over a contract. The theory is that an early resolution of legal rights will resolve some or all of the other issues in the matter.
See also: declaratory judgment

Sig: What Happened To The Censorware Project (censorware.org)

Political News from Wired News - Cybercrime Treaty Finally Ready. After four years of haggling over the language, several countries including the United States will sign a cybercrime treaty.

WildernessCoast.org - Cybercrime Treaty Bibliography -- By Date. A wide collection of links that talk about the Cybercrime Treaty Same info sorted by title.

Council of Europe - Convention on Cybercrime.

The Convention on Cybercrime has been adopted by the Committee of Ministers during its 109th Session, on 8 November 2001 and will be opened for signature, in Budapest, on 23 November 2001.

The Convention will be the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. It also contains a series of powers and procedures such as the search of computer networks and interception.

Its main objective, set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation.

The Convention is the product of four years of work by Council of Europe experts, but also by the United States, Canada, Japan and other countries which are not members of the organisation.

It will be supplemented by an additional protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence.

[ ... ]

But Fred Eisner, a consultant for the Dutch government and private companies, said the draft made unfair demands on Internet service providers by asking them to track Web users' online movements.

"This draft convention lacks balance," Eisner told the assembly. "The convention explicitly gives much more power to law enforcement agencies and it has no system of checks and balances."

Bruce McConnell, president of McConnell International, a Washington-based consulting firm, said the treaty should be more forceful in protecting the privacy of Web users who are already worried about being spied on.

"There is concern that the powers of surveillance ... are not balanced by comparable protections for individuals' privacy," he said.

Maybe you trust the law-enforcement chiefs in D.C. to do the right thing. But here's the catch. The same new powers given to the United States will also handed over to Bulgaria, Romania, Azerbaijan, and other Council of Europe nations that-although officially democratic now-don't have a strong traditions of checks and balances on police power.

Do you want investigators rummaging around your clients' computer systems on warrants issued by former Soviet bloc nations?

That's the prospect that has pushed AT&T Corporation and other high-technology companies into feverishly trying to stop or at least soften the treaty. The U.S. Chamber of Commerce and Information Technology Association of America also oppose it.

Stewart Baker is one of the chief lobbyists for the treaty opponents. As a former general counsel of the National Security Agency and recipient of the Department of Defense Medal for Meritorious Civilian Service, he's got street cred on these issues in corporate America.

What worries Baker and his colleagues? Consider the following hypothetical: A Los Angeles screenwriter corresponds by e-mail with a neo-Nazi in Germany while researching a script. Shortly after, he finds federal agents examining the files on his home computer. The agents also visit America Online Inc. to retrieve records of the screenwriter's AOL usage.

The agents are fulfilling a warrant issued by German authorities allowing them to search for Nazi propaganda. Such material is unlawful in Germany but not in the U.S. They framed their warrant in terms of "suspected terrorist activity."

LAW.com (requires cookies) - International Treaty on Cybercrime Poses Burden on High-Tech Companies.

Maybe you're a civil libertarian, and maybe you're not. Maybe you worry about how the United States exercises its vast investigative and prosecutorial powers, and maybe you don't.

But if you counsel U.S. corporations on computer-related issues, you should be concerned about a new proposed treaty known as the "Convention on Cybercrime." The Council of Europe, a 43-nation public body created to promote democracy and the rule of law, is nominally drafting the treaty. Curiously, however, the primary architect is the U.S. Department of Justice.

The Department of Justice and Federal Bureau of Investigation are using a foreign forum to create an international law-enforcement regime that favors the interests of the feds over those of ordinary citizens and businesses. Their goal is to make it easier to get evidence from abroad and to extradite and prosecute foreign nationals for certain kinds of crimes.

Maybe you trust the law-enforcement chiefs in D.C. to do the right thing. But here's the catch. The same new powers given to the United States will also be handed over to Bulgaria, Romania, Azerbaijan, and other Council of Europe nations that -- although officially democratic now -- don't have a strong tradition of checks and balances on police power.

[ ... ]

Stewart Baker, a partner at Washington, D.C.'s Steptoe & Johnson, is one of the chief lobbyists for the treaty's opponents. As a former general counsel of the National Security Agency and recipient of the U.S. Department of Defense Medal for Meritorious Civilian Service, he's got street credentials on these issues in corporate America.

Slashdot | Implications Of The International Cybercrime Treaty.

SiliconValley.com part of San Jose Mercury News - Pioneer cybercrime pact tightens privacy rules.

MS-NBC - Pioneer cybercrime pact tightens privacy rules. PARIS, May 25 -- Stiff criticism from the EU and pressure groups has prompted drafters of the world's first treaty against cybercrime to tighten provisions protecting privacy online, the final text showed Friday.

[ ... ]

Against EU objections, it also limits the right of a country to reject a request from abroad to store and hand over data in potential crime cases if the requesting country thinks it could be misused.

The text says states should make sure that systems operators or other people who know how to use a certain system can be ordered to cooperate in any such a cyberprobe.

PARIS (Reuters) - Stiff criticism from the EU and pressure groups has prompted drafters of the world's first treaty against cybercrime to tighten provisions protecting privacy online, the final text showed on Friday.

The Council of Europe, a 43-state human rights watchdog, has amended the text to ensure police respect privacy rights when they follow digital trails to fight online crimes such as hacking, spreading viruses, using stolen credit card numbers or defrauding banks.

''The guarantees in the treaty have been reinforced,'' Peter Csonka, deputy head of the economic crime division at the Council's headquarters in Strasbourg, told Reuters after the Council posted the final text -- version 27 -- on its Web site.

But the treaty, which has aroused heated debate in cyberspace since its draft text became public last year, ignored calls by Internet service providers (ISPs) for fewer costly requirements on preserving data that could be linked to a crime.

It still accorded police wide powers to chase suspected cybercriminals -- powers some critics say go beyond what is legal in some Council member states or in observer countries like the United States, Canada and Japan due to sign the treaty.

ZDNet - Internet founder worried over EU cybercrime plans.

BRUSSELS --Vint Cerf, a founding father of today's Internet, said on Thursday that European Union plans for new rules to fight crime on the Web risked clashing with existing EU privacy regulations.

Cerf, who helped develop the Internet in the early 70s shortly after graduating from Stanford University and now works for WorldCom, said more secure network systems were an immediate priority for the successful development of the ubiquitous Web.

He told Reuters in an interview that Internet traffic should be retained only for billing purposes and was too cumbersome to be stored for police investigations.

Changes to a controversial treaty on cybercrime have done nothing to improve it, say civil liberty campaigners.

Next week, the Council of Europe will vote on the treaty, which has been redrafted 26 times before reaching its final version late in May.

The most recent changes were made to take into account the fears of civil liberty and privacy campaigners. But cyber-rights groups say the latest changes are purely cosmetic and have not diluted what they describe as its most pernicious sections.

The groups say that, if adopted in its current form, the treaty could lead to changes in legislation that would stifle rights to privacy and do little to curb the activities of law enforcement agencies.

[ ... ]

In December 2000, 23 organisations, banding together under the banner of the Global Internet Liberty Campaign (GILC), signed a letter condemning the 25th draft of the treaty as "appalling", and warned that it handed law enforcement agencies sweeping powers to snoop and could seriously erode online privacy.

Now, three civil liberty groups, the American Civil Liberties Union, the Electronic Privacy Information Center and Privacy International, have sent another letter to the Council of Europe outlining their "continuing concerns" over the wording of the treaty and saying that their fears have not been laid to rest.

The letter chastises the Council of Europe for refusing to open up the redrafting debates to non-governmental organisations and for, it says, ignoring the human rights and privacy concerns of organisations such as the GILC.

It goes on to say that the original criticisms still stand, and that the treaty does not pay enough attention to existing laws which safeguard human rights. It says the treaty's recommendations on protecting privacy are vague and do not go far enough.

IT industry gurus have branded the Council of Europe's Convention on Cybercrime 'foolish, unworkable and a legal con trick'.

The controversial treaty provides a blanket legislation to deal with all forms of internet crime from hacking to online pornography.

Caspar Bowden, director of internet think-tank FIPR, said: "The Convention is essentially a legal con trick, drafted in secret by a handful of nameless bureaucrats. It equates the internet - a network of private networks - with 'cyberspace', a metaphor from science fiction.

"By this sleight of hand, the internet is defined as a public space over which law enforcement should be granted unfettered powers of surveillance and extradition," he added.

International policy-makers this week ended a round of talks aimed at setting common rules affecting online trade and commerce, but they made little progress in bridging divisions that threaten to delay the pact.

In the works for nearly a decade, the Hague Convention on Jurisdiction and Foreign Judgments is still almost unknown outside international policy circles. Nevertheless, it could have broad implications for consumers and businesses by setting new rules for online copyrights, free speech and e-commerce--if it is approved.

Opposition to the treaty heated up Wednesday, when a two-week drafting session wrapped up with few concessions to critics, primarily from the United States, who say the pact threatens free speech and could force Internet service providers to become global content police.

"In a nutshell, it will strangle the Internet with a suffocating blanket of overlapping jurisdictional claims, expose every Web page publisher to liabilities for libel, defamation and other speech offenses from virtually any country, (and) effectively strip Internet service providers of protections from litigation over the content they carry," Jamie Love, director of Ralph Nader's Consumer Project on Technology (CPT), wrote in a report after the meeting.

The treaty is one of several efforts by the global community to grapple with a complicated legal issues on a borderless Web.

Four years ago, nations including the United States signed onto a World Intellectual Property Organization pact to protect copyright in the digital age. And several countries, including the United States, are hammering out the world's first cybercrime treaty, which would provide a standard for fighting online crime.

The Hague treaty differs from those efforts because it would not outline specific laws participants must follow. It's much broader, requiring participants to agree to enforce each others' laws on a variety of topics. As it stands, the treaty would require courts to enforce the commercial laws of the convention's 52 member nations, even if they prohibit actions that are legal under local laws.

BRUSSELS - The blueprint for a global code on Cyber-crime was agreed on in Strasbourg, France, Friday, paving the way for international rules governing online copyright infringement, online fraud, child pornography and hacking.

The 41 members of the Council of Europe (CoE), plus the U.S., Canada and Japan, signed on to a draft convention on cybercrime that is set to be rubber-stamped at ministerial level in September.

"Once adopted, the Convention will be the first international treaty on criminal offenses committed through the use of Internet and other computer networks," the Council of Europe said in a statement.

In September, the Council of Europe approved the Convention on cybercrime, a historic treatise that lays the foundation for legislation allowing for a greater sharing of information between countries to combat the rise of cybercrime.

The treatise isn't binding, but instead would have to be adopted into law by its 43 European member states and five outside countries including the United States, Canada and Japan.

The treaty is broad, covering crimes committed on the Internet such as fraud, child pornography and violations of computer network security. It also sets up global policing procedures for conducting computer searches, interception of e-mails, and extradition of criminal suspects.

More details on the CyberCrime Treaty can be found in the Privacy Digest archives dated September 26,2000, September 27,2000, October 09,2000, October 16,2000, October 18,2000, October 19,2000, October 25,2000, November 14,2000, November 20,2000, November 22,2000 and March 24,2001. This is not all the information at Privacy Digest and other sites so if you want to know more try a search

Another nice article on the public comment period.

A more official reference to the tunney act itself.

Paragraph d says: At the close of the period during which such comments may be received, the United States shall file with the district court and cause to be published in the Federal Register a response to such comments.

...consumer has no bargaining power in the "agreement" of contract and that it is considered a type of entrapment.

I forget the exact legal terms...

DeanT

--The rumor among Gerald Hosier's fellow lawyers is that he's so rich he owns a fleet of five jets -- speculation Hosier says is over the top.
"That's an exaggeration," he said. "I have three jets and two smaller planes. One of the jets is quite expensive, the second is moderately expensive and the third, a Czechoslovakian fighter jet, is not very expensive." --

This is another way to free the data provided by others in an altruistic manner.

I just ran across this story, which pretty much lays out the debate in the biotech area.

Since Darren Reed's previous license is vague, one must look to the circumstances surrounding his use of the license. First, he has allowed his software to be included in and treated as open source software. Second, he may have even claimed his software was open source or lead people to believe this fact. Third, people have dependended upon this fact and may have invested significant, and unquantifiable time and energy into his product via bug fixes, suggestions, etc. Fourth, these people probably did this under the understanding that his software was indeed open source. Under these conditions and through the doctrine of promissory estoppel, Darren may not have the right to provide an alternative interpretation of his license which would not comply with the open source definition (which explicitly includes the right to make deriviative work without asking the creator). Lastly, people should stop calling his software "open source" unless he explicitly grants this right to make derivitive works, and Darren should start correcting people when his software is refered as open source... beacuse his new interpretation of his license clearly isn't open source. Disclaimer: I am not a lawyer.

promissory estoppel n. a false statement treated as a promise by a court when the listener had relied on what was told to him/her to his/her disadvantage. In order to see that justice is done a judge will preclude the maker of the statement from denying it. Thus, the legal inability of the person who made the false statement to deny it makes it an enforceable promise called "promissory estoppel," or an "equitable estoppel." Example: Bernie Blowhard tells Arthur Artist that Blowhard has a contract to make a movie and wants Artist to paint the background scenery in return for a percentage of the profits. Artist paints, and Blowhard then admits he needed the scenery to try to get a movie deal which fell through and there are no profits to share. Artist sues and the judge finds that Blowhard cannot deny a contract with Artist and gives Artist judgment for the value of his work.

It would appear that a .pdf of the enacted text of the Children's Internet Protection Act can be found here (check in the middle of the page, under "McCain Amendment No. 3610").

My question is this: would the icra voluntary content rating system qualify as a "technology" under the bill sufficient to comply with the statute and the regulation? If so, the thing to do is to head to your local library and get them to implement ICRA, a self-rating and filtering tool based on voluntary disclosure by the page author of web site content. A quick and dirty summary of ICRA can be found here. I'm interested to know what /.ers think about this possible compromise.

--J

2) If the user sends a proper "counter notification" to the service provider stating that
the removal or blocking was a result of a mistake or a misidentification of the material;

No mention of a possible Fair Use defence.

(3) The service provider, to remain exempt from liability for the "take-down", must provide a copy of the counter notification to the alleged copyright owner that sent the original notice;

(4) Unless the party claiming to own the infringing material then notifies the service
provider that it has filed a court action seeking to restrain the alleged infringement, the service provider must replace or unblock the material within not less than 10 nor more than 14 business days of receiving the counter notification.

By Lewine's interpretation, the complaining party gets to jail the allegedly offending speech for 10 days, before the speaker gets to present a defence.

A trip to the New York legal Journal's home site, Law.com reveals that they follow virtually none of the advice they print. I registered without being presented their Terms of Service.

You shall not upload to, distribute through, or
otherwise publish through a Forum on this Web site or any other law.com Web
site any content which is libelous, defamatory, obscene, pornographic,
threatening, invasive of privacy or publicity rights, abusive, illegal, or
otherwise objectionable that would constitute or encourage a criminal offense,
violate the rights of any party, or that would otherwise give rise to liability or
violates any law.

Modification of the materials or use of the materials for any other purpose is a
violation of law.com's copyright and other proprietary rights. For purposes of
these terms, the use of any such material on any other Web site or networked
computer environment is prohibited. All trademarks, service marks, and trade
names are proprietary to law.com.

Again, no provision for Fair Use. I wonder if they'll terminate me, or demand the removal of this Post from /. for inclusion of the exerpts above?

2) If the user sends a proper "counter notification" to the service provider stating that
the removal or blocking was a result of a mistake or a misidentification of the material;

No mention of a possible Fair Use defence.

(3) The service provider, to remain exempt from liability for the "take-down", must provide a copy of the counter notification to the alleged copyright owner that sent the original notice;

(4) Unless the party claiming to own the infringing material then notifies the service
provider that it has filed a court action seeking to restrain the alleged infringement, the service provider must replace or unblock the material within not less than 10 nor more than 14 business days of receiving the counter notification.

By Lewine's interpretation, the complaining party gets to jail the allegedly offending speech for 10 days, before the speaker gets to present a defence.

A trip to the New York legal Journal's home site, Law.com reveals that they follow virtually none of the advice they print. I registered without being presented their Terms of Service.

You shall not upload to, distribute through, or
otherwise publish through a Forum on this Web site or any other law.com Web
site any content which is libelous, defamatory, obscene, pornographic,
threatening, invasive of privacy or publicity rights, abusive, illegal, or
otherwise objectionable that would constitute or encourage a criminal offense,
violate the rights of any party, or that would otherwise give rise to liability or
violates any law.

Modification of the materials or use of the materials for any other purpose is a
violation of law.com's copyright and other proprietary rights. For purposes of
these terms, the use of any such material on any other Web site or networked
computer environment is prohibited. All trademarks, service marks, and trade
names are proprietary to law.com.

Again, no provision for Fair Use. I wonder if they'll terminate me, or demand the removal of this Post from /. for inclusion of the exerpts above?

-dB

I actually read that article

By the way, the photoshop articles appear to be findable here. Maybe alegal-venus-in-furs-part2 or something? The front page links were removed, but not the articles.

I wonder if Adobe complained when they previewed acroread?

I am ready, Celera. I am ready, HGP. Modify, enhance, and augment me. Hell, exploit me. I am ready!

Incidentally, I'd go for augmentation in a heartbeat, especially if it was something mondo-cool like cat eyes, night vision, or enhanced intelligence. However. . .I'd just as soon let other people try it while it's in beta ;-()

But I wouldn't trust Celera to do this. What do they want to do?

Instead, Celera would turn a profit by selling subscriptions to a database of information about genes -- much the way Lexis-Nexis sells information about law.

Does this give anyone the creeps?

From this article on law.com.

I far prefer the HGP, and their GPL-like Bermuda Statement, which is supposedly at this link, but I'll be damned if I can connect to it right now.

Nifty idea, too bad the only link to it I found on the net is a malformed URL which when corrected attempts to connect to a dead site.

I am ready, Celera. I am ready, HGP. Modify, enhance, and augment me. Hell, exploit me. I am ready!

Incidentally, I'd go for augmentation in a heartbeat, especially if it was something mondo-cool like cat eyes, night vision, or enhanced intelligence. However. . .I'd just as soon let other people try it while it's in beta ;-()

But I wouldn't trust Celera to do this. What do they want to do?

Instead, Celera would turn a profit by selling subscriptions to a database of information about genes -- much the way Lexis-Nexis sells information about law.

Does this give anyone the creeps?

From this article on law.com.

I far prefer the HGP, and their GPL-like Bermuda Statement, which is supposedly at this link, but I'll be damned if I can connect to it right now.

Nifty idea, too bad the only link to it I found on the net is a malformed URL which when corrected attempts to connect to a dead site.

I'm surprised I haven't seen any mention of this here yet. I submitted it as a story a bit ago but it got rejected (it's only marginally on-topic anyway).

Here's the gist: Celera is getting massively sued in at least three class-action suits. Shareholders claim that Celera has a bogus business plan and which "is dependent upon its ability to protect its database [of genomic] information through patent protection."

These upcoming lawsuits look ugly, and apparently the shareholders don't appear to think Celera is on the up-and-up with their claims of IP protection for the human genome.

Now dig this. The reason why the class-action litigants feel that Celera's business plan is flawed is that the Human Genome Project has already "open sourced" significant parts of the human genome.

Here is the full article from law.com.

I'm surprised I haven't seen any mention of this here yet. I submitted it as a story a bit ago but it got rejected (it's only marginally on-topic anyway).

Here's the gist: Celera is getting massively sued in at least three class-action suits. Shareholders claim that Celera has a bogus business plan and which "is dependent upon its ability to protect its database [of genomic] information through patent protection."

These upcoming lawsuits look ugly, and apparently the shareholders don't appear to think Celera is on the up-and-up with their claims of IP protection for the human genome.

Now dig this. The reason why the class-action litigants feel that Celera's business plan is flawed is that the Human Genome Project has already "open sourced" significant parts of the human genome.

Here is the full article from law.com.

Forgery is already a crime in the physical realm. Why, then, should it not be also a crime in the digital?

Indeed. Incidentally, while it may or may not be a crime to forge spam, it's a misdemeanor of the first degree to use a computer without authorization. (18 USC 2701.) I'm surprised this one isn't used more often. The "victim" of the crime would be the site used as a spam relay, and the result (overload of the system), being something any reasonable person would expect, could be construed as malice, resulting in the act being a felony, since obviously they are using the other person's system with the intent of avoiding their own system being wiped out by spam.

A number of cases have shown that relay hijacking and use of trademarks in spam is trademark infringement.

I think the argument that "forging spam" is itself a crime is somewhat bogus, I don't know why they don't go forward with some state version of the "Unlawful Use of Computers" statute, as this is a slam-dunk, while this "forged spam is crime" argument is pretty thin.

Forgery generally refers to the forgery of documents for the benefit of the forger. This is a trickier claim to make. (Definition of forgery here.)

IANAL, too, but as far as I know:

Intent to kill -- 1st degree murder

[Excerpts from the law.com dictionary]:

n. the killing of a human being by a sane person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way) and with no legal excuse or authority. In those clear circumstances, this is first degree murder.

This requires more than an intention to kill. If you get in a bar fight, and then kill someone in a fit of rage, that is second degree murder.
Malice in second degree murder may be implied from a death due to the reckless lack of concern for the life of others (such as firing a gun into a crowd or bashing someone with any deadly weapon).

So dropping a large object from an overpass would count as second degree murder, because you couldn't possibly do such a thing without realizing it was likely to cause grave injury or death.

There are also other instances, such as felony murder, in which participation in a felony in which a murder occurs can result in a conviction for murder, even if the person in question did not personally commit the murder.

IANAL.

Not true.

monopoly n. a business or inter-related group of businesses which controls so much of the production or sale of a product or kind of product as to control the market, including prices and distribution.
Rest of definition here at law.com.

This does not preclude there being competitors, just involves control of the market. In any case, Microsoft isn't being broken up for "being a monopoly." Being a monopoly does not violate the law in and of itself. Microsoft is being broken up for violating the Sherman Act as well as other similar state laws governing the conduct of corporations.