I'd forgotten that link was still there. I think it's gone now.
Eventually I'll find time to write the columns again. I made the mistake of using godaddy for hosting. They kept double-billing my credit card, which resulted in the credit card company not processing the second charge. Then they stopped hosting without telling me . . . they're unwilling to restore my data and code unless I commit to a year's hosting with them, which isn't very likely under the circumstances (though an inquiry from the Attorney general is:)
Godaddy's web farm is quite permissionless . . .
You can find most (all?) of the old content with the wayback machine. You can probably find my old penn state site there, too (I don't know; haven't tried). Or you could look me up with the Nevada bar's website . . . hmm, you might even find my old iowa state website with the wayback machine . . .
But here, the sale to the second seller wasn't "lawful"; he assisted the first seller in breaching the contract. Also, it was a wholesale, not retail purchase.
>even though no meeting of the minds could have taken place?
*ack* As my contracts professor used to exclaim, "We spit on meeting of the minds." Even though the phrase is used a lot, it's not, nor has it ever been, the actual standard. (yes, I'm aware that it's used in zillions of appellate cases). That heresy injects a subjective element that doesn't belong in offer/acceptance.
I really don't see where we disagree, except maybe
>Depend on the courts to define what constitutes competitive behavior and what >constitutes naughtiness not to be allowed
That goes back to day 1 on the Sherman Act, though. It was left almost entirely to the courts to figure out what constituted uncompetitive behavior.
In this case, it will be hard for a little guy to be crushed here (any more than by any other abusive litigation). It's simply no longer illegal to require a minimum retail price.
It's the manufacturer, not the little retailer, that faces interpretation risk--if someone who has market power does this, he's in trouble.
As such a policy is only useful for a luxury manufacturer (items with "snob appeal"), I really don't see this as affecting anyone who can't afford Cadillac level legal services (but believe me, I'm with you on the split in what's available--I've represented the little guy who would have been ruined in civil and criminal matters, and it was a big factor in my exit. I'd never expected to practice again, but now I'm in a position to wield comparable resource.).
>So? you totally overlook the real world implications.
No, though you created implications that don't exist:)
>Manufactures can send notices to any retailer and tell them that everyone has >violated the contract. Effectively shutting out the used market.
Absolutely not. Nothing the Supreme Court or I said suggests such a thing. This is about the new market; the manufacture can't reach the used market under the SC decision.
>You don't think publishers would love to shut down used book stores?
Sure, they'd love it.
>Since no 1 publisher controls the market it is not anticompetitive, but all of the publishers could enforce it.
No, they couldn't. Absolutely nothing has happened to the first sale doctrine for a good faith buyer. This is *only* about the path to the first sale.
Also, if the publishers did try together, *that* would be an illegal use of market power, a cartel, and a couple of other things.
>Meaning used book store owners would need to be able to afford a very lengthy legal process to fight this.
No. The *only* way in which it could even come up is if the seller was buying a price-restricted book from a dealer and then selling it as new.
>"It's about manufacturers requiring their vendors to comply with their sales contracts."
>Sales contracts that had unenforceable clauses, apparently.
Unenforceable as in "the contract was breached."
>This is about manufactures to have more control over sales contracts.
Their own sales to the distribution chain, yes.
Still, though, for the overwhelming majority of products, such an act would be *undesirable* from the manufacturer's perspective.
>It's a unnecessary stifling of the free market.
No, it actually allows more possibilities in the free market. Note that *most* of those that will try to increase prices this way will take serious losses; there are very few products (mostly high end luxury goods) for which profits increase for doing this.
I'm not going to go into first sale, but here it's the "rightful owner" that would be the issue. Presumably, the new seller bought with full knowledge that the prior seller was violating the contract. That person is not an innocent, and may not even have title (I'm not saying they don't, but I won't bank on them having it).
If it were a regular sale, and you decided to sell it used later, then there's no problem. Regularly selling them after inducing the prior seller to breach its contract, however . . .
>No worries. The day I take any posting on Slashdot as actual legal advice I'll have been around too long.
Definitely. But attorney's have been sued for less
>This is a fun game, can we play again? =)
sure. Please deposit 25c in the slot . . .
>I should hope this is less successful in criminal cases where there seems to an actual focus on what is >demonstratably true, as opposed to what we feel strongly happened.
It would be rare in criminal cases. As I spun it, though, it would sure sound like a conspiracy (or even just some other felony) or some such in which both would be guilty, regardless of who strangled.
>I'm just saying that from a PR stand-point when you're explaining to lay-people, saying "I didn't do it. But if >I did do it, here's how I did it" comes across as utter horse-shit.
Just watch for OJ book sales:(
>Thanks for the good layman's analogy as to why this has to be this way.
No problem.
>It doesn't make the idea of >simultaneously espousing several contradictory positions feel anything less like >legal wrangling and obfuscation though -- especially when it's not actually being >presented to a court where such things apparently make sense.
Actually taking contradictory positions would indeed usually backfire. In this case, though, I think it's a "you're wrong, but we're still not touching it because litigation is expensive."
I really don't know. They could certainly use the existing GPL 2 or inevitable forks. [Wild image: MS supporting the Samba fork:)]. They could modify the deal with Microsoft.
What *won't* happen is Novell's decision opening the MS vaults. Possibly, their deal with microsoft will force them not to distribute GPL 3 stuff . . .
There simply wasn't an exception to murder for killing yourself.
The *reason* it made sense is that felony meant that your life and lands were forfeit to the crown. Your life was already gone, but now your son didn't inherit. Typically, the son paid a year's income or some such to get the property back.
I'm an attorney, and a sometime economics professor. No, this isn't legal advice.
In short: big deal.
The new doctrine (which had been expected for years the next time this came up) applies to a very limited number of producers. It does *not* apply to those with market power.
Previously, the court had held that minimum pricing was always anticompetitive. The new ruling finds that *in itself* it is not *necessarily* anticompetitive. It could still be found to be so, however, based on the facts of the case.
A typical manufacturer will have no reason to try to hold up the prices of its product--it would rather sell more. For a very small set of them, however, the "exclusivity" or perceived quality is actually part of the appeal, and sales could go up.
If, for example, microsoft tried this, it *would* be anticompetitive, as they already had market power. On the other hand, if "Joe's Linux" were to insist that its CDs only be sold for a price of $199 or more, it would not harm the markets. If Chevrolet tried it, sales would plummet. BMW, on the other hand, might be able to make their vehicle more desirable this way--it would fit in with their current high-end service sales campaign. Furthermore, it can be used to insure that distributors *of an upscale product* have sufficient margins for the service level the company wishes to project--Nordstrom's instead of WalMart.
TFA gets it wrong, by the way, in indicating that this is about competitors stifling auctions. It's about manufacturers requiring their vendors to comply with their sales contracts. Assuming that the company is correct that she bought from a licensed dealer, she did this with knowledge of the contract terms. I doubt that it would be much of a stretch of privity to hold her to them in this case. The manufacturer could certainly take here deposition and find out the vendor, and then cut the supply that way. If she really bought them at a flea market, *that* vendor can be forced to reveal the dealer.
The manufacturer thinks that its product is more desirable if sold only through beauticians at high prices. Fine. There are any number of other manufacturers that are happy to sell.
Tweedle Dee & Tweedle Dum, identical twins, work for the Jabberwock security firm, which was hired to protect Alice. Both are seen entering the single door to the room she is in. When they leave five minutes later, the White Rabbit discovers that she has been strangled. DNA evidence shows that one of the twins did it. Either way, their employer is liable.
This could be plead in the alternative in the civil case (and possibly the criminal, but that's trickier).
Generally, if there's two (or more) ways that something could have happened, and one must have happened, they should both make it to the pleadings. One or more may indeed be struck later, if discovery shows that it was the other, but both may be kept around until what really happened is discovered--possibly during the trial itself.
This isn't legal advice. If you look to slashdot for legal advice, you need a shrink far worse than a lawyer.
The logical end of pleading in the alternative is referred to as "the Cheshire Cat" defense. Similar tol your list, it's to the effect that, "I wasn't there. If I was, I didn't do it. If I did, it was really my cat. But it wasn't my cat, it was the Cheshire Cat . .."
Anyway, there's nothing inconsistent between microsoft's positions here. "That's nonsense, it doesn't bind us, and we're staying far enough away to avoid the costly litigation that this mess is going to bring up."
And as for the folks expecting them to be caught up by future versions of SUSE: the wild and free licensing of ms patents as a result of a fundamental post-contract change made by the other party (SUSE) just won't happen. That is *so* far outside of the *reasonable* expectations of any of the parties, and so drastic, that it just won't be the case.
Think about it--emacs is quite clearly a microsoft project, having two of the three primary distinguishing features:
1) It tries to do *everything*, and even does a couple of things well (now if only it had a decent editor:) 2) When released, it will bog down a fast machine from the following year due to the bloated size.
And as for the third, ms stuff doesn't crash nearly as much any more--I think this XP laptop only averages one a week . . .
Go ahead and let him call the Linux kernel and the GNU utilities (or should those be called the "BSD/GNU utilities"?) "GNU/Linux." Then let someone go try to do something useful with that combination . . .
I have *never* heard someone use "Linux" to mean the kernel and that set of utilities. The kernel, that set of utilities, many more sets of utilities and networking programs and a large software collection, sure, but never just the GNU stuff + Linux. And there are a handful of Linuces without the software collection, but all that I"ve encountered also use something else instead of the GNU utilities and are minimalist (e.g., Tom's).
>I am yet to see anything "free" coming out of Apple that isn't required >by the terms of the licences of the software they chose to use (maybe there is though).
If I buy a car and blow the fuel injectors by running dry or putting something stupid in the tank, I expect to be able to buy new fuel injectors (or have them repaired), not be forced to buy an entirely new car . . .
Two weeks ago, I was getting directions to a casino where I had concert tickets.
I thought the direction on the freeway was odd, and then it missed entirely, passed into Colorado, across to Boston, "swim the Atlantic"[1]and concluded in France. Even with the zip codes at both ends, this continued to happen
Here, it's not the boomers gifting but the out of towners speculating. A few have alread sued developers that had to drop prices . . . I'm actually looking forward to the bubble popping. It will be more spectacular than usual, as we have a much higher than usual percentage owned by flippers, err, investors.
Slashdot Mirror
I'd forgotten that link was still there. I think it's gone now.
:)
Eventually I'll find time to write the columns again. I made the mistake of using godaddy for hosting. They kept double-billing my credit card, which resulted in the credit card company not processing the second charge. Then they stopped hosting without telling me . . . they're unwilling to restore my data and code unless I commit to a year's hosting with them, which isn't very likely under the circumstances (though an inquiry from the Attorney general is
Godaddy's web farm is quite permissionless . . .
You can find most (all?) of the old content with the wayback machine. You can probably find my old penn state site there, too (I don't know; haven't tried). Or you could look me up with the Nevada bar's website . . . hmm, you might even find my old iowa state website with the wayback machine . . .
hawk, jd, phd, esq, etc
I actually ran into that case for something other than the joint and several issue early in my practice--but I forget why.
hawk
But here, the sale to the second seller wasn't "lawful"; he assisted the first seller in breaching the contract. Also, it was a wholesale, not retail purchase.
>even though no meeting of the minds could have taken place?
*ack* As my contracts professor used to exclaim, "We spit on meeting of the minds." Even though the phrase is used a lot, it's not, nor has it ever been, the actual standard. (yes, I'm aware that it's used in zillions of appellate cases). That heresy injects a subjective element that doesn't belong in offer/acceptance.
hawk, esq
I really don't see where we disagree, except maybe
>Depend on the courts to define what constitutes competitive behavior and what
>constitutes naughtiness not to be allowed
That goes back to day 1 on the Sherman Act, though. It was left almost entirely to the courts to figure out what constituted uncompetitive behavior.
In this case, it will be hard for a little guy to be crushed here (any more than by any other abusive litigation). It's simply no longer illegal to require a minimum retail price.
It's the manufacturer, not the little retailer, that faces interpretation risk--if someone who has market power does this, he's in trouble.
As such a policy is only useful for a luxury manufacturer (items with "snob appeal"), I really don't see this as affecting anyone who can't afford Cadillac level legal services (but believe me, I'm with you on the split in what's available--I've represented the little guy who would have been ruined in civil and criminal matters, and it was a big factor in my exit. I'd never expected to practice again, but now I'm in a position to wield comparable resource.).
hawk, esq
>I just don't see why people pay for receivers/DVR's any more.
:)
Pay for a DVR, or have teeth extracted without anesthesia^H^H^H^H^H^H deal with DishTV
not a hard choice
hawk
>So? you totally overlook the real world implications.
:)
No, though you created implications that don't exist
>Manufactures can send notices to any retailer and tell them that everyone has
>violated the contract. Effectively shutting out the used market.
Absolutely not. Nothing the Supreme Court or I said suggests such a thing. This is about the new market; the manufacture can't reach the used market under the SC decision.
>You don't think publishers would love to shut down used book stores?
Sure, they'd love it.
>Since no 1 publisher controls the market it is not anticompetitive, but all of the publishers could enforce it.
No, they couldn't. Absolutely nothing has happened to the first sale doctrine for a good faith buyer. This is *only* about the path to the first sale.
Also, if the publishers did try together, *that* would be an illegal use of market power, a cartel, and a couple of other things.
>Meaning used book store owners would need to be able to afford a very lengthy legal process to fight this.
No. The *only* way in which it could even come up is if the seller was buying a price-restricted book from a dealer and then selling it as new.
>"It's about manufacturers requiring their vendors to comply with their sales contracts."
>Sales contracts that had unenforceable clauses, apparently.
Unenforceable as in "the contract was breached."
>This is about manufactures to have more control over sales contracts.
Their own sales to the distribution chain, yes.
Still, though, for the overwhelming majority of products, such an act would be *undesirable* from the manufacturer's perspective.
>It's a unnecessary stifling of the free market.
No, it actually allows more possibilities in the free market. Note that *most* of those that will try to increase prices this way will take serious losses; there are very few products (mostly high end luxury goods) for which profits increase for doing this.
hawk, esq.
IAAL, but this isn't legal advice.
I'm not going to go into first sale, but here it's the "rightful owner" that would be the issue. Presumably, the new seller bought with full knowledge that the prior seller was violating the contract. That person is not an innocent, and may not even have title (I'm not saying they don't, but I won't bank on them having it).
If it were a regular sale, and you decided to sell it used later, then there's no problem. Regularly selling them after inducing the prior seller to breach its contract, however . . .
hawk, esq.
In this case, what you "bought" at the first sale was something you knew the seller didn't have the right to sell . . .
hawk
>No worries. The day I take any posting on Slashdot as actual legal advice I'll have been around too long.
Definitely. But attorney's have been sued for less
>This is a fun game, can we play again? =)
sure. Please deposit 25c in the slot . . .
>I should hope this is less successful in criminal cases where there seems to an actual focus on what is
>demonstratably true, as opposed to what we feel strongly happened.
It would be rare in criminal cases. As I spun it, though, it would sure sound like a conspiracy (or even just some other felony) or some such in which both would be guilty, regardless of who strangled.
>I'm just saying that from a PR stand-point when you're explaining to lay-people, saying "I didn't do it. But if
>I did do it, here's how I did it" comes across as utter horse-shit.
Just watch for OJ book sales
>Thanks for the good layman's analogy as to why this has to be this way.
No problem.
>It doesn't make the idea of
>simultaneously espousing several contradictory positions feel anything less like
>legal wrangling and obfuscation though -- especially when it's not actually being
>presented to a court where such things apparently make sense.
Actually taking contradictory positions would indeed usually backfire. In this case, though, I think it's a "you're wrong, but we're still not touching it because litigation is expensive."
hawk, esq.
I really don't know. They could certainly use the existing GPL 2 or inevitable forks. [Wild image: MS supporting the Samba fork :)]. They could modify the deal with Microsoft.
What *won't* happen is Novell's decision opening the MS vaults. Possibly, their deal with microsoft will force them not to distribute GPL 3 stuff . . .
hawk
actually, it used to make a lot of sense.
There simply wasn't an exception to murder for killing yourself.
The *reason* it made sense is that felony meant that your life and lands were forfeit to the crown. Your life was already gone, but now your son didn't inherit. Typically, the son paid a year's income or some such to get the property back.
hawk
It's not like "a" wrench. It's like having "TheBearBears's SnapOn Store".
hawk
I'm an attorney, and a sometime economics professor. No, this isn't legal advice.
In short: big deal.
The new doctrine (which had been expected for years the next time this came up) applies to a very limited number of producers. It does *not* apply to those with market power.
Previously, the court had held that minimum pricing was always anticompetitive. The new ruling finds that *in itself* it is not *necessarily* anticompetitive. It could still be found to be so, however, based on the facts of the case.
A typical manufacturer will have no reason to try to hold up the prices of its product--it would rather sell more. For a very small set of them, however, the "exclusivity" or perceived quality is actually part of the appeal, and sales could go up.
If, for example, microsoft tried this, it *would* be anticompetitive, as they already had market power. On the other hand, if "Joe's Linux" were to insist that its CDs only be sold for a price of $199 or more, it would not harm the markets. If Chevrolet tried it, sales would plummet. BMW, on the other hand, might be able to make their vehicle more desirable this way--it would fit in with their current high-end service sales campaign. Furthermore, it can be used to insure that distributors *of an upscale product* have sufficient margins for the service level the company wishes to project--Nordstrom's instead of WalMart.
TFA gets it wrong, by the way, in indicating that this is about competitors stifling auctions. It's about manufacturers requiring their vendors to comply with their sales contracts. Assuming that the company is correct that she bought from a licensed dealer, she did this with knowledge of the contract terms. I doubt that it would be much of a stretch of privity to hold her to them in this case. The manufacturer could certainly take here deposition and find out the vendor, and then cut the supply that way. If she really bought them at a flea market, *that* vendor can be forced to reveal the dealer.
The manufacturer thinks that its product is more desirable if sold only through beauticians at high prices. Fine. There are any number of other manufacturers that are happy to sell.
hawk, phd, esq.
This still isn't legal advice . . .
Very simple case of pleading in the alternative:
Tweedle Dee & Tweedle Dum, identical twins, work for the Jabberwock security firm, which was hired to protect Alice. Both are seen entering the single door to the room she is in. When they leave five minutes later, the White Rabbit discovers that she has been strangled. DNA evidence shows that one of the twins did it. Either way, their employer is liable.
This could be plead in the alternative in the civil case (and possibly the criminal, but that's trickier).
Generally, if there's two (or more) ways that something could have happened, and one must have happened, they should both make it to the pleadings. One or more may indeed be struck later, if discovery shows that it was the other, but both may be kept around until what really happened is discovered--possibly during the trial itself.
hawk, esq.
>I'm not a lawyer, yet.
:)
."
But I am
This isn't legal advice. If you look to slashdot for legal advice, you need a shrink far worse than a lawyer.
The logical end of pleading in the alternative is referred to as "the Cheshire Cat" defense. Similar tol your list, it's to the effect that, "I wasn't there. If I was, I didn't do it. If I did, it was really my cat. But it wasn't my cat, it was the Cheshire Cat . .
Anyway, there's nothing inconsistent between microsoft's positions here. "That's nonsense, it doesn't bind us, and we're staying far enough away to avoid the costly litigation that this mess is going to bring up."
And as for the folks expecting them to be caught up by future versions of SUSE: the wild and free licensing of ms patents as a result of a fundamental post-contract change made by the other party (SUSE) just won't happen. That is *so* far outside of the *reasonable* expectations of any of the parties, and so drastic, that it just won't be the case.
hawk, esq.
>everyone you dislike is NOT a terrorist.
:)
Correct. Such people are properly labeled "nazi"
hawk
that's spelled "emacs."
:)
Think about it--emacs is quite clearly a microsoft project, having two of the three primary distinguishing features:
1) It tries to do *everything*, and even does a couple of things well (now if only it had a decent editor
2) When released, it will bog down a fast machine from the following year due to the bloated size.
And as for the third, ms stuff doesn't crash nearly as much any more--I think this XP laptop only averages one a week . . .
hawk
Go ahead and let him call the Linux kernel and the GNU utilities (or should those be called the "BSD/GNU utilities"?) "GNU/Linux." Then let someone go try to do something useful with that combination . . .
I have *never* heard someone use "Linux" to mean the kernel and that set of utilities. The kernel, that set of utilities, many more sets of utilities and networking programs and a large software collection, sure, but never just the GNU stuff + Linux. And there are a handful of Linuces without the software collection, but all that I"ve encountered also use something else instead of the GNU utilities and are minimalist (e.g., Tom's).
hawk, who prefers FreeBSD anyway
Just when I'd gone years without remembering the LiGNUx fiasco . . .
hawk
>I am yet to see anything "free" coming out of Apple that isn't required
:)
>by the terms of the licences of the software they chose to use (maybe there is though).
Darwin comes to mind . . .
hawk
>or what about that Blender! whoooo! lets grab and shake the
>thing while making a tasty tomato salsa!!
Hey, I think the blade's stuck on that tomato!
I'll get it . . .
If I buy a car and blow the fuel injectors by running dry or putting something stupid in the tank, I expect to be able to buy new fuel injectors (or have them repaired), not be forced to buy an entirely new car . . .
hawk
*yawn*
All in North America, you piker!
Two weeks ago, I was getting directions to a casino where I had concert tickets.
I thought the direction on the freeway was odd, and then it missed entirely, passed into Colorado, across to Boston, "swim the Atlantic"[1]and concluded in France. Even with the zip codes at both ends, this continued to happen
[1] No, I'm not making this up!
hawk
> just get a little annoyed when people continually badmouth my town.
:)
We do it for the same reason we make fun of the French and Microsoft: you guys just make it *so* easy
And we're usually quick to note that you're not as bad as New York . . .
> Drive 90 minutes in any direction from LA and you are pretty much in the middle of nowhere.
And you say that *we* say mean things about the area?
hawk, waiting for the armies to storm up from Orange County (or, outside of rush and with, err, disregard for the vehicle code, San Diego)
Here, it's not the boomers gifting but the out of towners speculating. A few have alread sued developers that had to drop prices . . . I'm actually looking forward to the bubble popping. It will be more spectacular than usual, as we have a much higher than usual percentage owned by flippers, err, investors.
hawk