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You can get the complete records on this by using Pacer. See https://pacer.login.uscourts.gov/cgi-bin/login.pl? court_id=00idx You need a credit card, but using pacer is suprisingly cheap. The case is properly cited as "3:05-cv-00933-AS Atlantic Recording Corporation et al v. Andersen". When you search, search Oregon Civil court, and use "Andersen, Tanya" has a search. You can see who the lawyers are, what papers have been filed, and the docket describing when the case will go to trial.

I'm glad somebody remembered the First, but after Roberts' appointment it may be otiose grandiloquence.

It is a little late to be watching out for the First, since the Fifth, Sixth and Thirteenth, as well as Article VI of the Constitution, have now become moot. The Chief Justice believes the President, by his say so alone, can supercede the Supreme Law of the Land.

Read it and Weep. The Dreamtime America may now be lost. And this fetishist for black satin moo moos was pitched to the citizen rubes as a "strict constitutionalist".

In case anyone else is searching the U.S. District Court Eastern District of Virginia, I finally located the case. When searching, the civil action number is 1:04cv507. Plaintiff is Government Employees Insurance Company (not "GEICO", you won't find it under that term). Defendents are "Google, Inc. AND Overture Services, Inc." Follow the directions at the court's Opinions page.

You will want to read the Memorandum Opinion for the details. See last paragaph of page 3 for an interesting piece of informatoin. Google supplied "no evidence regarding whether such advertisements [Adwords ads that use the string "GEICO" in the heading or text of the ad] generate a likelihood of confusion". This is primarily because GEICO paid for a survey, the results of which should really fascinate marketers who specialize in Adwords and search engine marketing, notwithstanding some of the survey's (IMHO) outrageous flaws like using a screenshot of a page that only looked similar to a real Google results page.

I'm going to tentatively unknot my knickers, because it seems that the crux of GEICO's argument is on page 6 and pretty much onwards from that page, and Google simply conceded the field to GEICO by not offering up survey results of their own. Or Google did conduct a survey, and the results were close enough to GEICO's survey that Google effectively did not challenge the results.

There are some involved discussions on survey result reliability in a court case, issues with survey reliability with this specific survey, and the interaction between business models, Adwords, and marketing (the last of which marketing geeks will love to dissect).

No matter whether Google's legal team declined to pony up for their own survey, or did and found that the results were probatively similar, the reason I'm not as anxious as before is on page 20, where the opinion says, "Aware of the importance of these issues to the ongoing evolution of Internet business practices and to the application of traditional principles to this new medium, the Court emphasizes that its ruling applies only to the specific facts of this case, which include the unique business model employed by plaintiff and the specific design of defendent's advertising program and search results pages." Brinkema seems perfectly aware of the possibilities for abuse of her opinion. Trivia: she was is also the judge in the Zacarias Moussaoui case.

In case anyone else is searching the U.S. District Court Eastern District of Virginia, I finally located the case. When searching, the civil action number is 1:04cv507. Plaintiff is Government Employees Insurance Company (not "GEICO", you won't find it under that term). Defendents are "Google, Inc. AND Overture Services, Inc." Follow the directions at the court's Opinions page.

You will want to read the Memorandum Opinion for the details. See last paragaph of page 3 for an interesting piece of informatoin. Google supplied "no evidence regarding whether such advertisements [Adwords ads that use the string "GEICO" in the heading or text of the ad] generate a likelihood of confusion". This is primarily because GEICO paid for a survey, the results of which should really fascinate marketers who specialize in Adwords and search engine marketing, notwithstanding some of the survey's (IMHO) outrageous flaws like using a screenshot of a page that only looked similar to a real Google results page.

I'm going to tentatively unknot my knickers, because it seems that the crux of GEICO's argument is on page 6 and pretty much onwards from that page, and Google simply conceded the field to GEICO by not offering up survey results of their own. Or Google did conduct a survey, and the results were close enough to GEICO's survey that Google effectively did not challenge the results.

There are some involved discussions on survey result reliability in a court case, issues with survey reliability with this specific survey, and the interaction between business models, Adwords, and marketing (the last of which marketing geeks will love to dissect).

No matter whether Google's legal team declined to pony up for their own survey, or did and found that the results were probatively similar, the reason I'm not as anxious as before is on page 20, where the opinion says, "Aware of the importance of these issues to the ongoing evolution of Internet business practices and to the application of traditional principles to this new medium, the Court emphasizes that its ruling applies only to the specific facts of this case, which include the unique business model employed by plaintiff and the specific design of defendent's advertising program and search results pages." Brinkema seems perfectly aware of the possibilities for abuse of her opinion. Trivia: she was is also the judge in the Zacarias Moussaoui case.

...does this ruling then mean that if you were selling a program that could read/write or convert the data of a competing program, you can't even tell your prospective customers in an AdWords ad that you offered an easy way to migrate away from your competitor? That is what I read into the original linked article.

If that is true, then wow, what a way to lock in an existing customer base. Just "vigorously enforce" your trademarked name. No need to worry about direct competitors comparing themselves against you. Of course, the direct competitors still have the option to obliquely refer to your business, but this recent ruling seems to open up a grey area to me because it appears to stray from the original intent of trademark protection and start to add levels of indirection to protect. Just how indirect is indirect enough?

This ruling says it is illegal to mention a trademarked name in the ad copy itself if it violates the "likelihood of confusion" test. Initially, you would get slapped down under this doctrine if you infringed the trademark in such a manner that the infringement would mislead consumers. Now, the reports of these rulings (not the opinions themselves, which I'm still trying to find) seem to extend the protection of the trademark from misleading usage to saying protection is granted over any usage in ad copy whatsoever, regardless of context, misleading or not.

So if my grocery business shows an ad with a receipt from your business and right next to it is a receipt from your grocery business, and both show a purchase of the same brand type of soup, that is now illegal in the United States because of the trademark on your business' name?

I'm hoping that Brinkema's phrasing of "solely with regard to those sponsored links that use GEICO's trade marks in their headings or text." limits the expansion of precedent and only rules on the specific ads that used Geico's name in the ad copy. Need to read the court documents to know for sure. If someone knows the PACER case number, please post it up here, because I could not find the GEICO v. Google case in the Eastern Virginia U.S. District Court (there are four cases listed for Google, but none involve Geico).

Footnote 63: The practice [of freezing out competitors with incompatibilities] was deeply embedded in the business strategy, although it was refined over time. Wallace and Erickson offer the following example from 1982-83 (p. 233).

Still, for a very brief time in early 1983, Multiplan did enjoy an advantage over 1-2-3. Microsoft released its upgrade for he IBM PC/XT, causing problems for 1-2-3 on the updated operating system. According to one Microsoft programmer, the problems encountered by Lotus were not unexpected. A few of the key people working on DOS 2.0, he claimed, had a saying at the time, DOS isn't done until Lotus won't run." They managed to code a few hidden bugs into DOS 2.0 that caused Lotus to break down when it loaded. "There were as few as three or four people who knew what was being done," he said. He felt the highly competitive Gates was the ringleader.

The art had apparently been refined by the early 1990s (Wallace, p. 38-39).

"He denied there was a Chinese Wall at Microsoft," Schmidt wrote in his notebook, "and clearly stated that the software groups throughout all of Microsoft's Corporation talked to all others. He claimed that the use of hidden APIs was an error by the team" The hidden APIs referred to by Schmidt are applications programming interfaces, or "calls," programming codes integrated into an operating system such as Windows to allow it to respond to commands from an application program. If competitors don't know about these hidden or undocumented calls, their applications will not work as well as Microsoft's Microsoft had long denied that it deliberately designed hidden calls into its operating systems, but in the summer of 1992, Andrew Schulman, a programming expert living in Cambridge, Massachusetts, published a book Undocumented Windows, which confirmed that Microsoft had lied. Microsoft later acknowledged that Excel and Word used at least 16 APIs that had been hidden in Windows.

According to documents filed in the case by Preston Gates & Ellis (yep, Bill G's dad!), Amazon is joined in the lawsuit by A9.com in demanding injunctive relief and unspecified triple damages for "irreparable injury and damages" as a result of Cendant's infringement of the following patents:

Secure method and system for communicating a list of credit card numbers over a non-secure network (5,715,399), which is held by Bezos and covers displaying "the last N digits of the credit card number, where N is an integer,"

Internet-based customer referral system (6,029,141), which is also held by Bezos and covers Amazon's affiliate program,

Electronic commerce using multiple roles (6,629,079), which covers the use of "multiple electronic shopping carts," and

Navigating within a body of data using one of a number of alternative browse graphs (6,625,609), which describes how one might sell "a Pez candy dispenser in the shape of the Marvin the Martian."

BTW, Bezos' '399 patent was the subject of a curious 2001 Prior Art contest run by the Bezos-funded BountyQuest - ties to Bezos were never disclosed and the contest results were never revealed.

For an american company to pursue civil action, they would have to file a civil case in their local courts. The defendant must be served by the plaintiff's counsel who send the documents, along with a USM-94 form (from a US Marshal), to the designated central autohrity in the foreign country. Here is the procedue for the state of New York. All in all it is a process that must go throught the proper foreign diplomatic channels.

Any lawsuit would be a headache, because the crime was technically comitted in Germany (virus released), but the damamge was done here in the United States. Since he is still fairly young, his future wages could be garnished to repay the plantiff.

You must be referring to Veeck vs. SBCCI, wherein a 5th Circuit Court of Appeals decision held that "the law" is in the public domain, including such portions of a model code as are incorporated by reference. (The U.S. Supreme Court denied certiorari.) Note that the model codes still retain their copyright as model codes, but once incorporated into "the law" (even by reference), the incorporated portions are in the public domain as "the law" of that jurisdiction. (I am not a lawyer, but I did read the full text of the decision.)

It's significant to note that this was an en banc review of the case, and the earlier 3-judge panel had come to the opposite conclusion, upholding the copyright. Be thankful that the full appeals court reached the correct public policy conclusion!

Note that the important point was that the model codes had been adopted as law, not the fact that SBCCI had encouraged such adoption. The latter fact was what kept it from being a "takings" case. As I read the decision, the incorporated model codes would have still become public domain as "the law", even if incorporated by reference without permission, but SBCCI presumably would have had grounds to sue the government for damages in a "takings" case, for the impact on the value of their copyright...

It's also important to note that this case does not place standards referenced by "the law" into the public domain. It specifically distinguishes such cases from this one, where a model code was written for the express purpose of being enacted into law.

So a "video search engine" which displayed low-rez videos with low-bit-rate audio might be permissible. That would actually be useful for sites that sell DVDs of old and foreign movies.

Incidentally:

(1) Slippery slope is a fallacy.
(2) There is a reason for Godwin's Law. Please do not make Hitler comparisons.

In any case, the courts will blow this law away just like they did last time, so don't worry about it. Even the law's sponsors seem to believe that if video games are speech, the law is unconstitutional. They just don't think video games are speech, which is absolutely ridiculous, and will be found as such by any reasonable court.

If the first amendment is versatile enough to "shield [the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll," Hurley, 515 U.S. at 569, we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence. Our review of the record convinces us that these "violent" video games contain stories, imagery, "ageold themes of literature," and messages, "even an 'ideology,' just as books and movies do."
--8th Circuit Court of Appeals

Doesn't look like the courts agree with you, does it, Senator? And seeing as how the courts determine whether or not the laws you make are constitutional and valid, that should concern you quite a bit.

Rob

Thing is, I'm not scared by this article. There are 290 million people living in the United States, and a 19% increase amounts to around 273 extra wiretaps across the country. Not scary. In fact, I'm surprised that the number is 10 times larger, given that it appears to be a small fraction of the number of crimes investigated every year that should have been wiretapped.

Furthermore, it may interest you to know that the legal standard for getting a wiretap is rather high (which is why there are so few of them).

Before issuing a Title III wiretap warrant, a judge must find that: (1) "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous"; and (2) there is probable cause for believing "that an individual is committing, has committed, or is about to commit" one of a list of specifically enumerated crimes, that the wiretap will intercept particular communications about the enumerated offense, and that the communications facilities to be tapped are either being used in the commission of the crime or are commonly used by the suspect.

Simple. It's not like the police officers are going "Hey Judge, we need a wire-tap on this guy Frank 'cuz I think he's doing "crimes" -- and we need it yesterday!" What actually happens is the police officer goes to government lawyer. The government lawyer -- who does this all the time -- then tells the police officer 9 times out of 10 that they haven't met the standard. Even that 1 time out of 10, the government lawyer approaches the judge ex parte (i.e. not in a court proceeding) which allows the judge to indicate through subtle nods and grunts that the wiretap request is half-cooked, and to come back later. So you just don't get denied applications. By the way -- denied applications are the last thing the police want, because then -- dollars to donuts (hehe) when it comes time to the criminal trial, the wiretap evidence will be considered inadmissible even if the police eventually did get their wiretap.

What Devlin Barrett, the reporter who wrote the article, should have mentioned, is how many wiretap requests were officially turned down over the last few years. But the reporter omitted this information, most likely because very few requests have been officially denied within the last decade. So the alarmist language used in the article makes it, IMHO, FUD.

Regards,

Moiche

1997-2004 Wiretap Reports

The Ninth Circuit webpage has a PDF of the opinion.

Yep, a Federal judge ruled in civil court that Iraq provided material support to Al Qaeda in carrying out the 9/11 attacks.

But because that doesn't fit in with you preordained view of the world, you call it "pathetic".

Dang right she is.

Nice catch.

She is Rehnquist's flunky, no wonder.

SCO is simply a Bender and is fully entitled to do as it has done.

Forget a takedown notice as well. The documents are public domain and there are penalties (including legal fees) for filing a false DMCA takedown notice.

It's amusing, but that's all it is.

Do read the WIREdata (PDF) decision. It's an excellent and readable decision giving an overview of the principles and key cases involved.

A Federal court has already granted a writ of habeas corpus for Padilla although the government promises to appeal to the Fourth US Circuit Court of Appeals in Richmond, VA.

HOWEVER, the government has NOT attempted to use the USA Patriot Act as a justification for Padilla's detention.

A Federal court has already granted a writ of habeas corpus for Padilla although the government promises to appeal to the Fourth US Circuit Court of Appeals in Richmond, VA.

HOWEVER, the government has NOT attempted to use the USA Patriot Act as a justification for Padilla's detention.

Instead of referencing a foxnews report, I should have talked about this directly:

http://www.mdd.uscourts.gov/Opinions152/Opinions/n ewman0902.pdf/

Not that we will ever agree, or that either of us will care if we did, the right thing to do is to admit the mistake. I do hope you read, or at least skim, the judges opinion.

You mean, a New York Times reporter like Judith Miller whose looking at jail time if she doesn't reveal the name of a source?

bad link. you meant this

A quick goole turns up this link:
http://www.dcd.uscourts.gov/kotelly-bio.html/

Appointed in 1997, she certainly has had enough time to grasp the nature of communicating through the internet.

This is, of course, under the assumption that the court documents on the unicast.org page linked to above are real. I don't intend to accuse its poster of lying, but there are many possible hidden motives and too many questions unanswered for my liking.

Skepticism is good. But in this case you can go to Pacer and download the documents yourself from the original source -- the total cost is around $10.

State Courts typically publish court documents on a public website for the respective county clerk. Federal Courts do not.

Court documents for all federal courts are availible at http://pacer.psc.uscourts.gov/
BUT!
Because of abuse in the past by journalists access is limited to licensed attorneys only, however... if you go to the Dallas Federal Court you can do a paper search.

It does exist on line.
I'm looking at the docketing sheet right now.
3:04-cv-02642
Columbia Pictures Industries, Inc et al v. Edward Webber
Someone didn't check their facts.
I would provide linkage but you need an account to view it.
https://ecf.txnd.uscourts.gov/cgi-bin/login.pl

Some might remember the Yahoo/Nazi paraphernalia case of a few years ago. Before that action was brought against Yahoo.com in France, their French subsidiary (Yahoo.fr) had removed all Nazi items from their auction site. The subsequent case (in which the American Yahoo's auction site was exhibiting nazi paraphernalia, a violation of French penal law) dealt primarily with jurisdiction. Yahoo.com continued to sell the items despite the French order (nice to know they had no qualms profiting off these items). The company went to the District Court in California to basically attempt to invalidate the French order and argue that there was no jurisdiction, and the court granted summary judgment for Yahoo.

The Court of Appeals recently reversed this decision, however, in November 2004. For those interested, this recent decision is here, and Professor Joel Reidenberg at Fordham Law School (he's up there with Lessig in Cyberlaw issues) has written extensively on the case and its effect on jurisdiction over internet activities in two articles (here and here).

Your appeal goes to the Circuit Court that covers your region of the country. There are 13 total. 12 Regional (11 are numbered, 1 through 11, and then the 12th is the D.C. Circuit). For example, in this case, the Ninth Circuit, which covers the entire Pacific coast, as well as Nevada, Arizona, Idaho, and Montana. The Ninth Circuit tends to be much more liberal in their decisions than other circuits. For reference, the Fourth Circuit, which covers Virginia, West Virginia, Maryland, and the Carolinas, tends to be very conservative in its decisions. In addition, you have the Federal Circuit, which is the only federal circuit whose jurisdiction is not based on the location of the trial court, but instead on the subject matter of the case. They get ALL of the nation's patent law cases, among other subjects.

The Ninth Circuit is also the largest federal circuit court, with 47 judges on the circuit. By comparison, the Second Circuit (New York, Connecticut, and Vermont), which is the next largest, has 23 judges.

You can see a map of the Circuits here:

http://www.uscourts.gov/links.html

District Courts are required to follow the decisions of the Circuit Court that their cases are appealed to. So, for example, Ninth Circuit decisions are binding in California, but are only "persuasive" in Maryland, which is required to follow the decisions of the Fourth Circuit.

Therefore, if two Circuits look at the same issue and come down the wrong way, then the law on an issue changes depending on where you are in the Country. It's far better for the law, at least at a federal level, to be consistent and not vary depeending on where you are. That's why the Supreme Court is more likely to take a case resulting from a Circuit split.

I think it's time to add to litigious bastards with one for moronic judges.

C'mon, IBM already gave them nearly ONE BEEEELYON lines of code. How could you order more fishing for SCO?

If you keep this thing in your car, you could get in trouble.

In other news, SCO just had a setback in their DaimlerChrysler case. SCO wants that case stayed until SCO vs IBM is decided. This is wierd, because SCO is the plaintiff in the DaimlerChrysler case - they started it. But they were losing, so they want it stayed. The judge just denied the stay, and the case will be heard in January. That's the case where SCO claims that because DaimlierCrysler used some UNIX-based product in the distant past, they can't use Linux now without paying SCO. This very weak claim is on its way to being laughed out of court.

That's the real SCO news today.

Excellent point, except your example is from a California circuit court.

Yes, the 9th circut covers California. I'll grant you that.

It also covers a few other areas, including Washington. Therefore, the court case is perfectly relevent.

Second, the case you refer to is at the state level, specifically the Superior and Supreme courts of Washington state. I'm not claiming problems with the state law or at the state level. I'm claiming issue at the federal level, so the 9th circuit is the place to be, not the state.

frob

Have you (legally) bought any software that wasn't licensed? Companies don't sell software; they never have. They sell the license to use their software. You don't own Windows, or Half-Life, or any other copyrighted software; you're bound by the license agreement, and all you own is what that agreement gives you.

Specifically, from their court ruling,

Because we look to the economic realities of the agreement, the fact that the agreement labels itself a "license" and calls the payments "royalties," both terms that arguably imply periodic payment for the use rather than sale of technology, does not control our analysis. .... Other courts have reached the same conclusion: software is sold and not licensed. .... In particular, the following factors require a finding that distributing software under licenses transfers individual copy ownership: temporally unlimited possession, absence of time limits on copy possession, pricing and payment schemes that are unitary not serial, licenses under which subsequent transfer is neither prohibited nor conditioned on obtaining the licensor's prior approval (only subject to a prohibition against rental and a requirement that any transfer be of the entity), and licenses under which the use restrictions principal purpose is to protect intangible copyrightable subject matter, and not to preserve property interests in individual program copies.

So unless Valve lawyers are going to try to challenge the district appeals court, The individual own that copy. I can smell the lawsuits in the works.

frob

You may want to look at Wikipedia for some of the actual Supreme Court rulings (Katzenbach v. McClung, Daniel v. Paul). As for the muhummad case, searching google for "John Muhammad interstate commerce traffic" gives me this link among others. I'm not sure whether or not a court actually bought the argument, but historical precedent seems to me to suggest that it would.

While looking up the answer to your question I did run into this, though. In US v Maxwell the 11th circuit appeals court decided that the federal government couldn't charge a man with possession of child pornography based on the fact that "because the Zip disks and floppy disks on which the incriminating evidence was found were either shipped or mailed to Florida, the defendant's possession of those disks substantially affected interstate commerce." That this even made it to the 11th circuit court of appeals though suggests that there is a pretty inclusive definition of interstate commerce.

1)I didn't say there was no copyright issue. I was refuting a post that said the original images were copied on Google.

2)But though the thumbnails are arguably derivative works, they're fair use. In Kelly v. Arriba Soft "The U.S. Court of Appeals for the Ninth Circuit in February 2002 held that posting thumbnails of another's aesthetic photos is a fair use when done for information-gathering or indexing purposes."

That's about the same thing as downloading copyrighted high-res photos from some news agency site and reducing resolution and publishing them as part of a news article.

Not that analogies can prove anything, but Google's thumbnails are much to small for most guys to jerk off to, which is the purpose of the original hi-res images. In your analogy the surfer would never know of or visit the original site; Google's image search function is to direct surfers there.

Perfect 10's claim isn't against Google making thumbnails anyway, it's that they link to sites with copies of the original images.

I'm not terribly thrilled with having to validate online before playing, but you're gonna be downloading patches, mods, etc. to avoid the starting bugs anyhow, so what does one more wait get ya?

The 9th District Appeals Court (They are based in WA, which is in the 9th district) decided way back in 2001 that software sales are that, SALES, and not LICENSES. (See this court decision.)

This is an issue that is discussed very often inside the industry, and I was shocked when I heard Valve was going to do it. Required unlocking With a major title, it isn't quite as big of a concern since they'll probably have their servers up for 5 or 8 years.

When smaller companies start doing it (which more will decide to do), and they either fail or have their domain name expire or get hijacked, you can bet there'll be lawsuits following. Especially if the game is considered a sale, since the registration would effectivly block access to an object that the individual owns.

I think the parts of the court decision most applicable is:

Because we look to the economic realities of the agreement, the fact that the agreement labels itself a "license" and calls the payments "royalties," both terms that arguably imply periodic payment for the use rather than sale of technology, does not control our analysis. .... Other courts have reached the same conclusion: software is sold and not licensed. .... In particular, the following factors require a finding that distributing software under licenses transfers individual copy ownership: temporally unlimited possession, absence of time limits on copy possession, pricing and payment schemes that are unitary not serial, licenses under which subsequent transfer is neither prohibited nor conditioned on obtaining the licensor's prior approval (only subject to a prohibition against rental and a requirement that any transfer be of the entity), and licenses under which the use restrictions principal purpose is to protect intangible copyrightable subject matter, and not to preserve property interests in individual program copies.

Of course, I'm not a laywer so maybe that means something else; It sure seems obviously bad or maybe illegal to me, and the other game developers I have talked to since Valve announced their decision a while back. IANAL,YMMV,ETC.

We also reject the notion that the Department of Homeland Security's threat advisory level somehow justifies these searches. Although the threat level was "elevated" at the time of the protest, "[t]o date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has only been raised to orange (high) six times." Wikipedia, Homeland Security Advisory System, available at http://en.wikipedia.org/wiki/Department_of_Homelan d_Security_Advisory_System (last referenced Aug. 16, 2004). Given that we have been on "yellow alert" for over two and a half years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. Furthermore, a system that gave the federal government the power to determine the range of constitutionally permissible searches simply by raising or lowering the nation's threat advisory system would allow the restrictions of the Fourth Ammendment to be circumvented too easily. Consequently, the "elevated" alert status does not aid the City's case.

Way to go wikipedia!

-- Bob

Sooooo close. But wrong. Seriously wrong.

Stare decisis (actually, the full latin phrase is "stare decisis et quieta non movere" meaning "to stand by things decided and not disturb settled points") only applies to actual court decisions -- the decision of the Supreme Court not to hear the case does not mean that the issue is decided. It simply means that the Supreme Court didn't want to hear this case at this time. While people often analogize this to mean that the Supreme Court is leaning one way or the other, that's just a guess. It can mean any number of different things and predicting Supreme Court vote counts is always a risky business.

In the meantime, the fact that the Supreme Court decided not to hear the case means that the DC Circuit court case stands. It would constitute binding precedent (meaning stare decisis would apply) within the DC Circuit. However, it would only be persuasive authority in other circuits. (Here's a quick run down on the different circuits: http://www.uscourts.gov/links.html. Even though the DC Circuit is tiny -- it is given jurisdiction over many of the most important cases and is considered (by some) to be the most influential of the Circuits.)

But. And here's the kicker -- the disappointed litigant (in this case the RIAA) now will travel throughout the country and raise this same issue in other circuits, hoping to find a panel of judges (these things are heard by 3-judge panels at the first appeal level) that will disagree with the reasoning of the DC Circuit. Then they will likely appeal to the Supreme Court again. A split between the circuits (ie., two circuits saying the law means two different things) is the surest way to get the Supreme Court to review your case. While still not a guarantee, it's likely the Supreme Court will revisit this issue once the RIAA finds a sympathetic circuit to agree with it.

Again, the parent didn't do a bad job explaining, just not entirely accurate. With due respect, the difference between binding precedent and persuasive authority is a subtle, but huge, point. Stare decisis applies to binding precedent, not persuasive precedent.

Perhaps lawyers and judges should be more concerned with how the Law is being violated by trademark holder to .

For example - the overreaching of trademark rights against tribute or criticism sites - to bully the law abiding registrant of domain.

Please check out court case in America - lucasnursery.com:

The U.S. 6th Circuit Court of Appeals ruled that this domain did not violate the law when female owner used the name of Lucas Nursery for a Web site she created to complain about them.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Here is another:

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

www.WIPO.org.uk
World Intellectual Piracy Organization - not associated with corrupt UN World Intellectual Property Organization (WIPO.org)

Perhaps lawyers and judges should be more concerned with how the Law is being violated by trademark holder to .

For example - the overreaching of trademark rights against tribute or criticism sites - to bully the law abiding registrant of domain.

Please check out court case in America - lucasnursery.com:

The U.S. 6th Circuit Court of Appeals ruled that this domain did not violate the law when female owner used the name of Lucas Nursery for a Web site she created to complain about them.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Here is another:

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

www.WIPO.org.uk
World Intellectual Piracy Organization - not associated with corrupt UN World Intellectual Property Organization (WIPO.org)

More seriously, I'm not sure what they might do with this, but their recent Mickey Mouse decision doesn't make it look very encouraging.

You can read the order for an en banc rehearing here.

One of the questions they ask the parties to argue for the rehearing is "Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?".

Hmmm, I wonder what the Stored Communications Act is? It seems the court might be worried that the SCA (whatever it is) already applies to email-snooping, so that the Wiretap Act should not apply.

You can read the order for an en banc rehearing here.

One of the questions they ask the parties to argue for the rehearing is "Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?".

Hmmm, I wonder what the Stored Communications Act is? It seems the court might be worried that the SCA (whatever it is) already applies to email-snooping, so that the Wiretap Act should not apply.

I don't think you can claim the Patriot Act decision last week says anything about the Supreme Court's jurisprudence, since the Supreme Court isn't the court that handed that decision down.

The ruling you're probably alluding to, Doe v. Ashcroft , has not yet reached the Supreme Court. The decision reported in the news last week was handed down by Judge Marrero of the United States District Court for the Southern District of New York.

If the government chooses to appeal, it must first bring its case to the Court of Appeals for the Second Circuit (the 2nd Circuit is a geographical division that includes New York.) The loser there can appeal to the Supreme Court, which may or may not decide to hear the case - it has thousands of petitions and can only hear a few dozen each term.

If, as in the do-not-call case, the Supreme Court chooses not to hear the case (denies cert), the decision of the lower court stands. This shouldn't be read as an affirmative decision of the Court to favor one side of the issue or not, just a deference to the judgment of the circuit courts coupled with an inability to hear every case that goes up.

I don't think you can claim the Patriot Act decision last week says anything about the Supreme Court's jurisprudence, since the Supreme Court isn't the court that handed that decision down.

The ruling you're probably alluding to, Doe v. Ashcroft , has not yet reached the Supreme Court. The decision reported in the news last week was handed down by Judge Marrero of the United States District Court for the Southern District of New York.

If the government chooses to appeal, it must first bring its case to the Court of Appeals for the Second Circuit (the 2nd Circuit is a geographical division that includes New York.) The loser there can appeal to the Supreme Court, which may or may not decide to hear the case - it has thousands of petitions and can only hear a few dozen each term.

If, as in the do-not-call case, the Supreme Court chooses not to hear the case (denies cert), the decision of the lower court stands. This shouldn't be read as an affirmative decision of the Court to favor one side of the issue or not, just a deference to the judgment of the circuit courts coupled with an inability to hear every case that goes up.

I saw a better writeup, but this is the exact part... if you read the court's decision (PDF), you'll see that there are concerns over the FBI's ability to grant and send NSLs without questioning, challenge, review, or appeal. I understand the intent, but the possibility for abuse was opened a lot wider than the original law.
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SEC. 505. MISCELLANEOUS NATIONAL SECURITY AUTHORITIES.

(a) TELEPHONE TOLL AND TRANSACTIONAL RECORDS- Section 2709(b) of title 18, United States Code, is amended--

(1) in the matter preceding paragraph (1), by inserting `at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director' after `Assistant Director';

(2) in paragraph (1)--

(A) by striking `in a position not lower than Deputy Assistant Director'; and

(B) by striking `made that' and all that follows and inserting the following: `made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and'; and

(3) in paragraph (2)--

(A) by striking `in a position not lower than Deputy Assistant Director'; and

(B) by striking `made that' and all that follows and inserting the following: `made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.'.

(b) FINANCIAL RECORDS- Section 1114(a)(5)(A) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)) is amended--

(1) by inserting `in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director' after `designee'; and

(2) by striking `sought' and all that follows and inserting `sought for foreign counter intelligence purposes to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.'.

(c) CONSUMER REPORTS- Section 624 of the Fair Credit Reporting Act (15 U.S.C. 1681u) is amended--

(1) in subsection (a)--

(A) by inserting `in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the Director' after `designee' the first place it appears; and

(B) by striking `in writing that' and all that follows through the end and inserting the following: `in writing, that such information is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.';

(2) in subsection (b)--

(A) by inserting `in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the Director' after `designee' the first place it appears; and

(B) by striking `in writing that' and all that follows through the end and inserting the following: `in writing that such information is sought for the conduct of an auth

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"Absent the secrecy provisions of the 2709(c), however, there is no vehicle in the statute to preserve a more norrowly-tailored degree of secrecy necessary to effectuate the important purposes of the statute consistent with First Amendment values."

Here is the opinion.