Well, maybe, except what leverage does Google have against Sony? "You darn well better load up our browser, or we'll......" We'll what? What is Google going to do to Sony that would hurt Sony?
"The Government" is not some sentient, undying, collectively intelligent entity which can itself apologise for its behaviour.
That's exactly what a government is (except maybe the "intelligent" part). Sure, it's a legal fiction, but it's a very useful one, particularly when you consider that if the Government had no continuity from one election to the next, it would be forced to re-enact all the old laws from the previous government before it could enact any new ones. This would quickly become so time-consuming that no governing at all would get done.
If the government gets the benefit of being a continuous entity, then it should bear the responsibility too. There's no good reason why this governement shouldn't be responsible for the actions of past governments, particularly in cases where great harms done by the government in the past have effects that extend to the present day.
Now having said all that, an apology in most cases is a waste of time, because it doesn't fix problems here and now. Better for the government to pay out cash (in this case to the Estate) than apologise, and better for the government to actually fix the problem (enforce equal rights for all gays and lesbians) than pay out cash.
I know, it's gotten totally crazy that way. As for "fine print", there are actually cases where putting terms into finer print has invalidated those terms. More likely, the drafter will bury the terms in later pages, or as you pointed out, obfuscate them with legalese.
The interesting thing about legalese though is that when it's done well, it's very useful. Legalese is supposed to be about words that have specific, carefully defined meanings that don't change. When a good drafter makes up a paragraph in legalese, a lawyer can parse it almost like a programmatic language. But unfortunately, it's become the refuge of incompetent lawyers, and lawyers trying to obfuscate terms.
In general I'd agree with your post, but perhaps take it a step further. It's not just that nobody reads the "fine print", the real problem is that nobody can really understand the fine print unless they go to law school and study contracts. Not many people who read the contract all the way through will understand that clauses 2 and 6 puts them over a barrel, but clause 10 is so ridiculous that no court in the land will enforce it, and you can agree to it to your heart's content but you're not actually bound by it.
So the deeper problem is this: if you aren't equipped to read and understand a contract, does that mean you have to consult a lawyer every time you're asked to agree to one? This would be horribly inefficient, as we'd all be trotting off to see our lawyers every time we accepted a parking lot stub, bought a piece of software, clicked through a EULA online, etc. It just doesn't work.
Civil law systems aren't necessarily better than common law systems, just different. And the point is moot, because civil law systems are evolving to incorporate features of the common law, and common law systems are evolving to to incorporate features of the civil law.
Also, you should be more careful with your distinctions. The opposite of the adversarial system is the inquisitorial system, which can exist in either the civil or common law. Inquisitorial systems have problems of their own as well.
Civil law systems are fully compatible with an adversarial process: Quebec is just such a jurisdiction where there is a civil code, but an adversarial process.
How many lawyers do you personally know? I'm curious. I am currently working as a summer student at a law firm, and before that I worked as a clerk at an Insurance Defence firm, and when I go to school in the fall, all my teachers will be lawyers. So I'd say, guessing roughly, that I've met and talked to maybe 30-50 real, live, practicing or teaching lawyers (some practice as well as teach), and I have to tell you, out of all of them, there's only one that I suspect is possibly a sociopath. The rest are hard-working, honest people with varying degrees of ethical awareness, mostly fairly developed senses of ethical awareness. They take legal aid cases because their clients can't afford representation, or they mount Charter challenges to challenge overzealous cops or bad laws, they draw up wills, guide clients through divorces, and do the paperwork for your house sale. They teach business law, commercial law, and yes, ethics. Only a small portion do what you think of as "unethical" lawyering, and most of those know that there is ethical value in the work they do, and they care about that value, a great deal.
I think you don't understand the ethics of lawyering very well. The lawyers who chase ambulances are also the lawyers who keep corporations from completely neglecting quality control, and who keep insurance companies paying out settlements. Also, you mentioned criminal lawyers who defend clients that they know are guilty. You look at this and you see a lawyer who's protecting a criminal from being punished, and you think the lawyer is a slimeball. But that lawyer understands that when you have an adversarial system, every single person accused of a crime deserves a vigorous defence. Good criminal lawyers keep prosecutors honest, and they protect people from the much greater power of the state. If someone is guilty of a crime, but they get off because the prosecutor didn't build a good case, or because the cops roughed the guy up too much down at the station, then next time, the cops will know not to beat the shit out of prisoners, and prosecutors will know to do a good job instead of a sloppy mess of a prosecution.
As for the DA who prosecutes showy cases to help him at election time: well I'm a Canadian and I can't get over that you people in the US elect your prosecutors (and judges, for that matter). That seems wrong to me. You elect your government officials, as you should, a democracy is the worst form of government except for all the other forms; but there's room in the system for unelected professionals whose job is to protect people from the tyrrany of the majority, and lawyers, prosecutors and judges can fill that role well. But whatever, that's the system you have chosen for yourselves, and it works best when "slimeball" criminal attorneys can go all-out for their clients. It doesn't look pretty, but for the most part it works, and the people who make up the system know that what looks unethical to most people may be necessary to preserve the best parts of the system.
That's never really happened in any common law country that I know of, except in cases where the accused is a minor, or where sexual assaults are involved (and then the accused's name is hidden to protect the identity of the victim).
Also, libel is not usually a criminal offense, it's a civil tort, and defendants in such cases have much less rights than a criminal would. A criminal's rights are meant to protect them from the State, but a civil suit defendant isn't being attacked by the state, they're being attacked by another individual person, who has far less power than the State, and proportionally speaking, may have been injured far more.
Lastly, you generally don't have the right to preserve the anonymity of your name. You may use whatever name you want to, but in court proceedings, you generally don't have the right to keep that name private. The community in which the tort or crime has been committed has rights too, you know. They have the right to know when members of their community are called before the courts. An open court system, where anyone at all can access the courts and see what goes on, is fundamental to a free society under the rule of law.
I dunno, I thought that trimming 7 GB off the size of the install was pretty neat. If the performance gains are as good as their marketing wants us to think there may be more value there than you think.
that's funny, I don't have a problem with Leopard usability at all on my macbook, and we upgraded the old G5 iMac to Leopard for the speed boost (which it did) but we weren't having crash issues. I for one won't be in a hurry to upgrade to Snow Leopard, because Leopard works just fine.
I think that it's disingenuous to compare point upgrades in the mac world to service packs in the windows world. This comparison comes naturally because MS took many years to actually come out with a featureful consumer upgrade (XP --> Vista), by which time every other OS had upgraded multiple times. Just because it takes Apple about as long to put out a point upgrade as it does for MS to put out a new service pack, doesn't mean they're equivalent.
Of course, having said that, I'm sure you're right that many many fanboys will rush out and upgrade to Snow Leopard, and get burned in the usual new-release bugs. I don't plan to be one of them.
SP 2 was just fixing all the worst security holes in XP, to bring it to a tolerable level of usefulness. I certainly wouldn't expect to pay money for that.
The problem here is that there are several larger concepts here that need to be protected. Freedom of speech is one of them. But so is equal access before and under the law. And so is the right to seek damages for harm done to you.
It doesn't matter whether you're talking about being falsely accused of making snuff films or being called a bimbo by a classmate, if you suffer damage from that slander, you deserve your day in court to prove the extent of that damage. To restrict people from having access to the courts because their complaint is "not serious enough" is to deny them equal access to the law, a right that has been recognized in the common law tradition for a very long time.
The problem with claims that seem frivolous is that someone has to decide if the claim is really frivolous or not. The first person to decide that is the claimant: is it worth it to spend your time and money trying to recover your damages? Is it worth the stress and headache of having the other guy's lawyer cross-examining you in deposition and on the stand? Many people over-value their own claims, but many more decide not to pursue legal action at this stage. If they over-value their claim, there is a check for that.
The second decision-maker there is your own lawyer (who has a fiduciary duty to you -- a duty to make sure that you're not wasting your time and money in a hopeless enterprise), who advises you on the probable outcome, and helps you weigh whether you're likely to get a reward and assess whether that reward will be sufficient to cover the legal fees and leave some left behind for the claimant. Of course, lawyers can be crooked, or incompetent, and so some claim that you've got a case when really, you're only going to get enough to cover their bill. But it's not in their best interests to take on outright loser cases, because they'll get paid far less for a loser, or maybe not at all.
The next check on whether the claim is frivolous is the judge, who gets to look at the claim from an impartial viewpoint and decide if there's enough smoke there to warrant looking for the source of the fire.
Now in this case, which you feel is frivolous, the plaintiff made it up to and past the judge. If she got that far, there's probably some value to her claim (if she can prove her damages), which means that her right has to be weighed in the balance against the blogger's first amendment rights. It's not up to you or I to decide whether her claim has merit, it's up to a judge, who hears all the evidence and weighs that against the law. But for a judge to make that decision, he has to know who the defendant is, and the defendant has to be before the court which means that courts have to order companies to release names of anonymous bloggers.
Also, you're confounding two different kinds of rights here; the right to freedom of speech, and the right to privacy. The right to freedom of speech is enshrined in the Constitution, but the right to privacy is not. and that's an important distinction. Your name is not a matter of privacy, it's a matter of public record. It's the identifier that world at large uses to identify you(and incidentally, in most common-law countries, your address is also public information).
Nobody stopped the blogger from continuing to blog, they removed her anonymity. She is still perfectly free to keep posting to her blog. In fact, her anonymity is still preserved to the extent that the court did not force her to publish her name. The publishing of her name was done through a Third Party, namely a newspaper, that also enjoys an important freedom, namely freedom of the Press. The newspaper plays an important part in this analysis, because without the news article, next to nobody would know about this. The Court doesn't try to disseminate info like this far and wide, they merely make it available to people who care enough to take the trouble to look. Apparently the newspaper thought it was worth their time to look, and published the whole story, as is thei
and completely morally bankrupt (in your argument here, not in general, no personal attack)
if the first amendment is not vigorously protected from idiotic legal decisions, the entire basis of the society upon which this might legal code rests begins to decay
You can't use the first amendment as a shield to protect you from the consequences of slanderous or libelous behaviour. That would be totally unjust. If things were otherwise, I could, hiding behind the veil of anonymity, slander you, cry out to the world that you make snuff films and produce kiddy porn, and you would be able to do nothing about it, thanks to the protection of the first amendment. That's not just.
my use of the term "fiduciary duty" is still 100% fine in this situation, since the use of term is not beholden to a purely legalistic interpretation.
Your use of the term "fiduciary duty" is akin to grandma calling the tower of her computer the "cpu" or the "hard drive." It's incorrect. You are free to abuse the term all you like, but you're still wrong.
all businesses have, indeed, a fiduciary duty (not in legal terms) to protect and foster the trust of their clients, just as you note.
To clarify, businesses (and any other parties to contracts) have the duty to obey local laws, and to honour any legal contracts they make. They have a moral duty to behave in certain honourable ways, and indeed it may be in their own best interests to do so. None of this creates a fiduciary duty. Sorry.
because there is a larger legal issue here in play that must be fought, however shoddy the ammunition
the legal code has no meaning if it corrodes the principles upon which it stands, which, in this case, it obviously does (the first amendment).
I think that's very much open to argument. Publishing the name of a blogger is not the same as restricting that person's speech, and libel laws exist for a reason. Just as your right to move your fist about ends where my nose begins, there are natural limits to your freedom to speak. One of those limits is that you're not allowed to say nasty things about people if 1) they are hurt (financially, usually) by your speech and 2) the things you say are lies. Truth has always been a defence against slander and libel claims.
i respect no legal decision that obviously abridges the first amendment, and i expect no one else to either.
The only decision made in this case was the decision to force Google to cough up the name of the blogger in question. Have you read that decision, or the order? No? Neither have I. Without actually being there in court to hear arguments, you're not really equipped to weigh in on the justice of that particular order. In other words, you have no idea if that order actually abridges the first amendment, and neither do I. My wager is, that it doesn't.
for the common people such as myself may not be legal scholars, but we're not idiots, and we will not tolerate a clear and obvious stray from a clear and obvious directive, which the ruling that compels google to divulge the identity of blogger obviously violates the spirit of the first amendment, if not the minuscule and mechanical letter of the law
You keep using the term "obviously", but it's not at all obvious. Don't forget that this isn't a case of the State repressing political speech: one private citizen has gone to the courts and said "someone whose name I don't know has said damaging things about me, and I want compensation. But I need this person's name to bring them to court. Can you get me this name?" And the court, being the arm of the State, whose job it is to arbitrate exactly these kinds of disputes, ordered Google to cough up the name.
Again, if I set up a website claiming that your low budget Filipino Horror Movies were really snuff films, and subsequently scared off all your investors, shouldn't you have the right to find out who I am, so you can sue me?
That's a nice bit of moralizing there, but "fiduciary duty" is a legal term of art and has a very specific meaning. It has nothing to do with fostering the trust of your clients. It's a specific relationship that's entered into when a professional has a certain kind of relationship with a client, or when a trustee/trustor relationship exists. A lawyer has a fiduciary duty to a client, because the client pays a retainer, which is held in a trust account until the lawyer does some actual work to earn the money, at which point it's transferred to the lawyer's account. This is just one example of course. The recognition of a fiduciary duty is a way of ensuring that professionals with specific expert knowledge, and access to the client's funds, don't take advantage of that position and simply fleece the client.
The kind of trust you're talking about is, for most corporations, essentially marketing, as your relationship with that corporation involves transactions of money for goods or services, where the exchange is completed upon payment. In the case of Blogger, it's even more extreme, since you aren't actually paying to use the service, which means that Blogger/Google owes you nothing. One could argue that being exposed to advertizing is consideration for services (and I would argue that myself), but even then, Blogger/Google is only obligated to give you what they promised in the contract. Clearly there's value in owning up to the terms of your contract, but it doesn't attach a fiduciary duty to either party.
And lastly, no contract or duty can force a party to break the law. Once the court ordered Google to turn over the information, any agreement they had with the Blogger to protect her privacy is dust in the wind. You can't contract to break the law.
Hmm, I can see it now. " BRAINS! BRAIIIII- what? Oh, right, well we're attacking your bunkers, you see, we're all hungry for BRAINS! BRAAAAII--right, sorry....The Supply Depots? Really? Are there brains there? No. So what.....munitions. Er, munitions? ARe they delicious? No? So why would....the contract? What contract? I see. Yes. Section 11(b)...in every case the zombies shall attack the supply depots.....bunkers are off limits until such time... Hm. I had no idea. Well let us get to it then, and we'll meet again here in a few. Off we go chaps! MUNITIONS! MUNIIIIIITTIOOOOOONS!"
The problem that arises here is similar to star wars (although the prequels were a trainwreck); people have a memory associated with the original and now that memory was tarnished.
This is somewhat off-topic, but I'd go farther than you here and say that the memories associated with the original are often better than the original actually was. So for example with Star Wars, everyone has fond memories of Eps 4-6, and screamed bloody murder when Eps 1-3 came out and were crap. But the fact is (and I expect you'll all want to revoke my geek card for saying this) but Star Wars Episode 4 was a shitty movie and the next two weren't much better. Most of us saw those movies when we were a lot younger and our tastes weren't as mature, and we fell in love with them. It's this that colours our memories of those movies (and of the original Battlestar Gallactica). So when someone re-envisions one of these beloved old turds, the ultimate irony is that the closer they come to the original show or movie, the worse the response from the fan-base is, because they don't get fooled a second time.
Slashdot Mirror
None of that would be necessary if software patents were abolished.
No, but it would lead to slightly more complicated employment contracts.
Well, maybe, except what leverage does Google have against Sony? "You darn well better load up our browser, or we'll......" We'll what? What is Google going to do to Sony that would hurt Sony?
"The Government" is not some sentient, undying, collectively intelligent entity which can itself apologise for its behaviour.
That's exactly what a government is (except maybe the "intelligent" part). Sure, it's a legal fiction, but it's a very useful one, particularly when you consider that if the Government had no continuity from one election to the next, it would be forced to re-enact all the old laws from the previous government before it could enact any new ones. This would quickly become so time-consuming that no governing at all would get done.
If the government gets the benefit of being a continuous entity, then it should bear the responsibility too. There's no good reason why this governement shouldn't be responsible for the actions of past governments, particularly in cases where great harms done by the government in the past have effects that extend to the present day.
Now having said all that, an apology in most cases is a waste of time, because it doesn't fix problems here and now. Better for the government to pay out cash (in this case to the Estate) than apologise, and better for the government to actually fix the problem (enforce equal rights for all gays and lesbians) than pay out cash.
I know, it's gotten totally crazy that way. As for "fine print", there are actually cases where putting terms into finer print has invalidated those terms. More likely, the drafter will bury the terms in later pages, or as you pointed out, obfuscate them with legalese.
The interesting thing about legalese though is that when it's done well, it's very useful. Legalese is supposed to be about words that have specific, carefully defined meanings that don't change. When a good drafter makes up a paragraph in legalese, a lawyer can parse it almost like a programmatic language. But unfortunately, it's become the refuge of incompetent lawyers, and lawyers trying to obfuscate terms.
In general I'd agree with your post, but perhaps take it a step further. It's not just that nobody reads the "fine print", the real problem is that nobody can really understand the fine print unless they go to law school and study contracts. Not many people who read the contract all the way through will understand that clauses 2 and 6 puts them over a barrel, but clause 10 is so ridiculous that no court in the land will enforce it, and you can agree to it to your heart's content but you're not actually bound by it.
So the deeper problem is this: if you aren't equipped to read and understand a contract, does that mean you have to consult a lawyer every time you're asked to agree to one? This would be horribly inefficient, as we'd all be trotting off to see our lawyers every time we accepted a parking lot stub, bought a piece of software, clicked through a EULA online, etc. It just doesn't work.
New laws are needed.
New laws are apparently not needed in Canada; Facebook is making these changes because they've run afoul of the privacy laws in Canada.
Civil law systems aren't necessarily better than common law systems, just different. And the point is moot, because civil law systems are evolving to incorporate features of the common law, and common law systems are evolving to to incorporate features of the civil law.
Also, you should be more careful with your distinctions. The opposite of the adversarial system is the inquisitorial system, which can exist in either the civil or common law. Inquisitorial systems have problems of their own as well.
Civil law systems are fully compatible with an adversarial process: Quebec is just such a jurisdiction where there is a civil code, but an adversarial process.
How many lawyers do you personally know? I'm curious. I am currently working as a summer student at a law firm, and before that I worked as a clerk at an Insurance Defence firm, and when I go to school in the fall, all my teachers will be lawyers. So I'd say, guessing roughly, that I've met and talked to maybe 30-50 real, live, practicing or teaching lawyers (some practice as well as teach), and I have to tell you, out of all of them, there's only one that I suspect is possibly a sociopath. The rest are hard-working, honest people with varying degrees of ethical awareness, mostly fairly developed senses of ethical awareness. They take legal aid cases because their clients can't afford representation, or they mount Charter challenges to challenge overzealous cops or bad laws, they draw up wills, guide clients through divorces, and do the paperwork for your house sale. They teach business law, commercial law, and yes, ethics. Only a small portion do what you think of as "unethical" lawyering, and most of those know that there is ethical value in the work they do, and they care about that value, a great deal.
I think you don't understand the ethics of lawyering very well. The lawyers who chase ambulances are also the lawyers who keep corporations from completely neglecting quality control, and who keep insurance companies paying out settlements. Also, you mentioned criminal lawyers who defend clients that they know are guilty. You look at this and you see a lawyer who's protecting a criminal from being punished, and you think the lawyer is a slimeball. But that lawyer understands that when you have an adversarial system, every single person accused of a crime deserves a vigorous defence. Good criminal lawyers keep prosecutors honest, and they protect people from the much greater power of the state. If someone is guilty of a crime, but they get off because the prosecutor didn't build a good case, or because the cops roughed the guy up too much down at the station, then next time, the cops will know not to beat the shit out of prisoners, and prosecutors will know to do a good job instead of a sloppy mess of a prosecution.
As for the DA who prosecutes showy cases to help him at election time: well I'm a Canadian and I can't get over that you people in the US elect your prosecutors (and judges, for that matter). That seems wrong to me. You elect your government officials, as you should, a democracy is the worst form of government except for all the other forms; but there's room in the system for unelected professionals whose job is to protect people from the tyrrany of the majority, and lawyers, prosecutors and judges can fill that role well. But whatever, that's the system you have chosen for yourselves, and it works best when "slimeball" criminal attorneys can go all-out for their clients. It doesn't look pretty, but for the most part it works, and the people who make up the system know that what looks unethical to most people may be necessary to preserve the best parts of the system.
Oh come on, tell us how you really feel...
That's never really happened in any common law country that I know of, except in cases where the accused is a minor, or where sexual assaults are involved (and then the accused's name is hidden to protect the identity of the victim).
Also, libel is not usually a criminal offense, it's a civil tort, and defendants in such cases have much less rights than a criminal would. A criminal's rights are meant to protect them from the State, but a civil suit defendant isn't being attacked by the state, they're being attacked by another individual person, who has far less power than the State, and proportionally speaking, may have been injured far more.
Lastly, you generally don't have the right to preserve the anonymity of your name. You may use whatever name you want to, but in court proceedings, you generally don't have the right to keep that name private. The community in which the tort or crime has been committed has rights too, you know. They have the right to know when members of their community are called before the courts. An open court system, where anyone at all can access the courts and see what goes on, is fundamental to a free society under the rule of law.
Wikipedia thinks so. Of course I had no idea what that was until I looked it up.
I'm inclined to think the same thing actually; I'll be waiting for the early reports before I make the jump.
I dunno, I thought that trimming 7 GB off the size of the install was pretty neat. If the performance gains are as good as their marketing wants us to think there may be more value there than you think.
that's funny, I don't have a problem with Leopard usability at all on my macbook, and we upgraded the old G5 iMac to Leopard for the speed boost (which it did) but we weren't having crash issues. I for one won't be in a hurry to upgrade to Snow Leopard, because Leopard works just fine.
I think that it's disingenuous to compare point upgrades in the mac world to service packs in the windows world. This comparison comes naturally because MS took many years to actually come out with a featureful consumer upgrade (XP --> Vista), by which time every other OS had upgraded multiple times. Just because it takes Apple about as long to put out a point upgrade as it does for MS to put out a new service pack, doesn't mean they're equivalent.
Of course, having said that, I'm sure you're right that many many fanboys will rush out and upgrade to Snow Leopard, and get burned in the usual new-release bugs. I don't plan to be one of them.
SP 2 was just fixing all the worst security holes in XP, to bring it to a tolerable level of usefulness. I certainly wouldn't expect to pay money for that.
The problem here is that there are several larger concepts here that need to be protected. Freedom of speech is one of them. But so is equal access before and under the law. And so is the right to seek damages for harm done to you.
It doesn't matter whether you're talking about being falsely accused of making snuff films or being called a bimbo by a classmate, if you suffer damage from that slander, you deserve your day in court to prove the extent of that damage. To restrict people from having access to the courts because their complaint is "not serious enough" is to deny them equal access to the law, a right that has been recognized in the common law tradition for a very long time.
The problem with claims that seem frivolous is that someone has to decide if the claim is really frivolous or not. The first person to decide that is the claimant: is it worth it to spend your time and money trying to recover your damages? Is it worth the stress and headache of having the other guy's lawyer cross-examining you in deposition and on the stand? Many people over-value their own claims, but many more decide not to pursue legal action at this stage. If they over-value their claim, there is a check for that.
The second decision-maker there is your own lawyer (who has a fiduciary duty to you -- a duty to make sure that you're not wasting your time and money in a hopeless enterprise), who advises you on the probable outcome, and helps you weigh whether you're likely to get a reward and assess whether that reward will be sufficient to cover the legal fees and leave some left behind for the claimant. Of course, lawyers can be crooked, or incompetent, and so some claim that you've got a case when really, you're only going to get enough to cover their bill. But it's not in their best interests to take on outright loser cases, because they'll get paid far less for a loser, or maybe not at all.
The next check on whether the claim is frivolous is the judge, who gets to look at the claim from an impartial viewpoint and decide if there's enough smoke there to warrant looking for the source of the fire.
Now in this case, which you feel is frivolous, the plaintiff made it up to and past the judge. If she got that far, there's probably some value to her claim (if she can prove her damages), which means that her right has to be weighed in the balance against the blogger's first amendment rights. It's not up to you or I to decide whether her claim has merit, it's up to a judge, who hears all the evidence and weighs that against the law. But for a judge to make that decision, he has to know who the defendant is, and the defendant has to be before the court which means that courts have to order companies to release names of anonymous bloggers.
Also, you're confounding two different kinds of rights here; the right to freedom of speech, and the right to privacy. The right to freedom of speech is enshrined in the Constitution, but the right to privacy is not. and that's an important distinction. Your name is not a matter of privacy, it's a matter of public record. It's the identifier that world at large uses to identify you(and incidentally, in most common-law countries, your address is also public information).
Nobody stopped the blogger from continuing to blog, they removed her anonymity. She is still perfectly free to keep posting to her blog. In fact, her anonymity is still preserved to the extent that the court did not force her to publish her name. The publishing of her name was done through a Third Party, namely a newspaper, that also enjoys an important freedom, namely freedom of the Press. The newspaper plays an important part in this analysis, because without the news article, next to nobody would know about this. The Court doesn't try to disseminate info like this far and wide, they merely make it available to people who care enough to take the trouble to look. Apparently the newspaper thought it was worth their time to look, and published the whole story, as is thei
and completely morally bankrupt (in your argument here, not in general, no personal attack)
if the first amendment is not vigorously protected from idiotic legal decisions, the entire basis of the society upon which this might legal code rests begins to decay
You can't use the first amendment as a shield to protect you from the consequences of slanderous or libelous behaviour. That would be totally unjust. If things were otherwise, I could, hiding behind the veil of anonymity, slander you, cry out to the world that you make snuff films and produce kiddy porn, and you would be able to do nothing about it, thanks to the protection of the first amendment. That's not just.
my use of the term "fiduciary duty" is still 100% fine in this situation, since the use of term is not beholden to a purely legalistic interpretation.
Your use of the term "fiduciary duty" is akin to grandma calling the tower of her computer the "cpu" or the "hard drive." It's incorrect. You are free to abuse the term all you like, but you're still wrong.
all businesses have, indeed, a fiduciary duty (not in legal terms) to protect and foster the trust of their clients, just as you note.
To clarify, businesses (and any other parties to contracts) have the duty to obey local laws, and to honour any legal contracts they make. They have a moral duty to behave in certain honourable ways, and indeed it may be in their own best interests to do so. None of this creates a fiduciary duty. Sorry.
because there is a larger legal issue here in play that must be fought, however shoddy the ammunition
the legal code has no meaning if it corrodes the principles upon which it stands, which, in this case, it obviously does (the first amendment).
I think that's very much open to argument. Publishing the name of a blogger is not the same as restricting that person's speech, and libel laws exist for a reason. Just as your right to move your fist about ends where my nose begins, there are natural limits to your freedom to speak. One of those limits is that you're not allowed to say nasty things about people if 1) they are hurt (financially, usually) by your speech and 2) the things you say are lies. Truth has always been a defence against slander and libel claims.
i respect no legal decision that obviously abridges the first amendment, and i expect no one else to either.
The only decision made in this case was the decision to force Google to cough up the name of the blogger in question. Have you read that decision, or the order? No? Neither have I. Without actually being there in court to hear arguments, you're not really equipped to weigh in on the justice of that particular order. In other words, you have no idea if that order actually abridges the first amendment, and neither do I. My wager is, that it doesn't.
for the common people such as myself may not be legal scholars, but we're not idiots, and we will not tolerate a clear and obvious stray from a clear and obvious directive, which the ruling that compels google to divulge the identity of blogger obviously violates the spirit of the first amendment, if not the minuscule and mechanical letter of the law
You keep using the term "obviously", but it's not at all obvious. Don't forget that this isn't a case of the State repressing political speech: one private citizen has gone to the courts and said "someone whose name I don't know has said damaging things about me, and I want compensation. But I need this person's name to bring them to court. Can you get me this name?" And the court, being the arm of the State, whose job it is to arbitrate exactly these kinds of disputes, ordered Google to cough up the name.
Again, if I set up a website claiming that your low budget Filipino Horror Movies were really snuff films, and subsequently scared off all your investors, shouldn't you have the right to find out who I am, so you can sue me?
That's a nice bit of moralizing there, but "fiduciary duty" is a legal term of art and has a very specific meaning. It has nothing to do with fostering the trust of your clients. It's a specific relationship that's entered into when a professional has a certain kind of relationship with a client, or when a trustee/trustor relationship exists. A lawyer has a fiduciary duty to a client, because the client pays a retainer, which is held in a trust account until the lawyer does some actual work to earn the money, at which point it's transferred to the lawyer's account. This is just one example of course. The recognition of a fiduciary duty is a way of ensuring that professionals with specific expert knowledge, and access to the client's funds, don't take advantage of that position and simply fleece the client.
The kind of trust you're talking about is, for most corporations, essentially marketing, as your relationship with that corporation involves transactions of money for goods or services, where the exchange is completed upon payment. In the case of Blogger, it's even more extreme, since you aren't actually paying to use the service, which means that Blogger/Google owes you nothing. One could argue that being exposed to advertizing is consideration for services (and I would argue that myself), but even then, Blogger/Google is only obligated to give you what they promised in the contract. Clearly there's value in owning up to the terms of your contract, but it doesn't attach a fiduciary duty to either party.
And lastly, no contract or duty can force a party to break the law. Once the court ordered Google to turn over the information, any agreement they had with the Blogger to protect her privacy is dust in the wind. You can't contract to break the law.
Hey, you get what you pay for.
Oblig. XKCD: Lisp
And I thought the desktop was just another feature of Emacs...
For those of you not interested in following the link...there's an Emacs command for that.
Hmm, I can see it now. " BRAINS! BRAIIIII- what? Oh, right, well we're attacking your bunkers, you see, we're all hungry for BRAINS! BRAAAAII--right, sorry. ...The Supply Depots? Really? Are there brains there? No. So what.....munitions. Er, munitions? ARe they delicious? No? So why would....the contract? What contract? I see. Yes. Section 11(b)...in every case the zombies shall attack the supply depots.....bunkers are off limits until such time... Hm. I had no idea. Well let us get to it then, and we'll meet again here in a few. Off we go chaps! MUNITIONS! MUNIIIIIITTIOOOOOONS!"
The problem that arises here is similar to star wars (although the prequels were a trainwreck); people have a memory associated with the original and now that memory was tarnished.
This is somewhat off-topic, but I'd go farther than you here and say that the memories associated with the original are often better than the original actually was. So for example with Star Wars, everyone has fond memories of Eps 4-6, and screamed bloody murder when Eps 1-3 came out and were crap. But the fact is (and I expect you'll all want to revoke my geek card for saying this) but Star Wars Episode 4 was a shitty movie and the next two weren't much better. Most of us saw those movies when we were a lot younger and our tastes weren't as mature, and we fell in love with them. It's this that colours our memories of those movies (and of the original Battlestar Gallactica). So when someone re-envisions one of these beloved old turds, the ultimate irony is that the closer they come to the original show or movie, the worse the response from the fan-base is, because they don't get fooled a second time.