The General Assembly resolutions do not create binding law. The Security Counsel can create binding international law, but not the GA.
>2. The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.
"National appropriation" refers to appropriation by nations. These guys are not nations.
>3. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person.
In simplest terms, so what? It's not allowed to become property and nobody is allowed to assert sovereignty. That does not mean that its resources cannot be exploited. The center of the Pacific Ocean is also nobody's sovereign territory. That does not mean that nobody can fly over it, sail across it, fish in it, or otherwise derive economic benefit. It just means that it is nobody's property.
All law is imposed at gunpoint. In light of that, your basic argument boils down to this: it is impermissible for the guns that impose law in space to be controlled by governments.
This seems to be the place in the replies for calm and cogent responses, so I will pick up the thread from where debrain's thoughtful analysis leaves off.
>"And such information is not necessarily confidential; accident reports and police records may also identify the driver." True, but what does this have to do with anything?
There are a couple of angles here, but judicial economy is one. The idea is that there are certain rules that are in place to make the judicial process more efficient. Here, the judge could be arguing that the name of the actual driver will inevitably come out anyway, either from police reports or the rental car agency giving the driver up so that liability shifts to him. Given that the disclosure of this nonconfidential information is inevitable, let's get on with it and save everyone a lot of time and money.
By contrast, disclosure of confidential customer information is not inevitable so it is appropriate to observe the details of process.
>The question is: given a certain probability that a company's customer is guilty
That is not a given. The factors that would let one estimate the probability that there was even wrongdoing in the first place, let alone that a specific person committed the specific wrong, come out during discovery and trial. The subpoena in question is coming before any of that.
>If some customers in similar situations have had their identities made public by other circumstances, the judge's ruling gives no reason why that should be relevant at all, in a situation where the customer's identity is not public
Their identities became public through the same judicial process being invoked here. Because we live in a system of precedent in which persons similarly situated are supposed to be similarly treated, the judge's statement is directly relevant.
>For a court to take a plaintiff's case against a given defendant seriously, they [sic] just have to believe that there is a reasonable probability of the plaintiff winning.
That is often necessary but never sufficient. A predicate inquiry in every legal question is jurisdiction. Doe the court have jurisdiction over the people involved? Here, the judge is saying that he has no reason to believe that his court has jurisdiction over the Doe defendants.
>But there is no reason to think that in the case of these entities, there would be any more "disconnect" between the actual infringer and the user on the network that the IP address had been assigned to.
A recurring theme in law is burden of proof. Your statement boils down to "defendant cannot prove that there is a greater disconnect in one instance than in the other." Even if the defendant cannot prove it, that is immaterial. At this stage of the proceeding, the burden of proof is on the plaintiff to state an argument and support it. We're not at the beyond-a-reasonable-doubt stage yet, but plaintiffs cannot just haul anyone into court with mere conclusory statements. Plaintiff did not produce evidence about the level of disconnect, and it is not the court's job either to find that proof or to put the resources of the ISP at plaintiff's disposal just because such proof is not available. The plaintiff must carry the burden of proof beyond mere conclusory statements.
>I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either
Ummm.... well... actually, there is something called presumption of innocence. How it works is, we presume that people are innocent until... well, anyway.
>Plaintiff started with a list of 100 defendants, and then expanded it to 1,000. What does this have to do with the legitimacy, generally, of suing John Doe defendants and subpoenaing their identities?
The Federal Rules of Civil Procedure require that defendants in a lawsuit to be joined by the same kernel of operative facts. In other words, they all have to be in on the deal together. If
>Fortunately, Sandia National Laboratories is heading an effort to develop a new set of benchmarks...
Bummer for you, Sandia. NASA already did that with the NAS Parallel Benchmarks. Here's a hint: you're funded by the US Government (just like NASA), and NPB died when the Japanese started kick US butt on NPB.
"Fingerprinting has a history of 100 years showing that it works."
Fingerprinting has a history of well over 100 years, but what we see is that it works as long as it is not seriously challenged. In its only major rigorous challenge, the 50Kx50k text, substantial problems emerged.
Keep in mind that fingerprints are never admitted into evidence, never used for identification, never even examined. Never. A finger touches a surface and it leaves a partial copy. An investigator finds it and puts powder (matrix) on it, which creates a visible picture of the copy. It is often not possible to get a good photo of the copy, so someone uses tape or other gear to get an image of the picture of the copy. Then someone photographs the tape containing the image of the picture of the copy. Then a print of the photograph of the tape of the image of the picture of the copy is created. If there are no more steps, which would be unusual, that print is what is actually used for evidence or analysis. Scientifically-minded readers will have already tallied up at least a partial list of the errors introduced at each step of the process.
And what sort of analysis is done? The best lab in the country, the FBI, uses an analysis process taught by a high school grad who washed out of college after two years. Obviously, other labs do not enjoy such high standards. What standards do they use, you may ask? None. There are no required national standards for fingerprint analysts. There are guidelines that suggest that a high school diploma should be required, but the advisory guidelines bind no one.
But at least they use a rigorous process with well-defined standards?
"The International Association for Identification assembled in its 58th annual conference... based on a three-year study by its Standardization Committee, hereby states that no valid basis exists at this time for requiring that a predetermined minimum of friction ridge [fingerprint] characteristcs must be present in two impressions in order to establish positive identification."
So no, there are no standards, which is a good thing because the relevant international body has determined that there is "no valid basis" for establishing one.
So now they say that they can get better results by looking at someone's ears? Hm... Well, the good news is that they're probably right. The bad news is that they've got a long way to go before they can say that it's any great accomplishment.
Although one does not patent code, one can patent an invention and use that patent to preclude someone from writing software that practices the invention. There are people who have released code that practices patented inventions, but that does not mean that it is not possible for a patent to cover something implemented in software. It just means that a patent grants the holder a license to sue an infringer. There are various reasons for which a patent holder may not sue an infringer, but the infringer is still infringing that patent and it makes no difference that the infringer does so with software or hardware.
Having said that, it is possible to copyright code. In fact, copyright attaches automatically. So there is a means of protecting a specific piece of code. However, one can work around copyright by writing code that does the same thing differently.
Patents aren't really concerned with censorship or speech. One way to use a patent to censor speech in a particular medium is to exercise a patent that you hold to prevents use of that medium. You won't beat that with a free speech argument.
Contributing to infringing a US patent elsewhere in the world is a peculiar idea because a US patent is exactly that - US. Once you are outside of US territory (with the interesting but inapplicable exception of space), the US patent effectively does not exist.
Internal arithmetic always includes the exact solution, but only the rarest circumstances does it actually give the exact solution. For example, an acceptable interval answer for 1/3 would be [0.33,0.34]. That interval includes the exact answer, but does not express it.
First, keep in mind that RIAA doesn't write the law. Don't hate RIAA for using laws that Disney and others bought Congresscritters to enact into law. Hate the Congresscritters.
The first basic argument is that the companies lost nothing because even if Tenenbaum had not shared the music then someone else would have. However, the companies lose sales to illegal downloading. There's a question of how many sales, but no question that there are lost sales. So they suffer loss from one person making downloads available. If only one person made the files available, they could recover their losses by suing that person. Defendant's argument is that because many people do it, the companies cannot recover. That's like saying that if you get beaten up then you can sue your attacker, but if you get lynched by a mob then you have no recourse. The fact that many people are doing it... you know, if you have to read that here to learn it, you can't learn it. Let's move on to the next point.
From the brief: “[N]umerous courts have held that assessed statutory damages should bear some relation to the actual damages suffered.” When the Supreme Court has spoken, it makes no difference what other courts have said or how numerous they are. The Supremes get the last word. And here's the word: The "excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve." Here, the interest is in deterring people from granting themselves licenses to engage in unlimited and uncompensated distribution of very valuable copyrighted works. Such distribution not only costs the original copyright owner money but the availability of such goods depresses or destroys secondary markets and harms, for example, used CD stores. For these and countless other reasons, the state obviously has a very large interest in deterring the conduct.
They go on to say that "we do not doubt that Congress has ample authority to enact such a policy for the entire Nation." They note that "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Is there argument that Tenenbaum thought that his conduct was lawful? There is not. There is, in fact, his sworn testimony that he knew that the time that it was illegal.
Finally, the case that *defendant* cites states, ""While petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one considers the potential loss to respondents, in terms of reduced or eliminated royalties payments." What is the potential loss from granting a license for unlimited uncompensated distribution of all of those works? Tennenbaum got tagged for $675K and the courts routinely award 4:1 damages, so the relevant question here is whether the potential loss was more or less than $675K / 30 songs / 4:1 damage ratio = $5625/song and the answer is that such a license would clearly cost more. A helluva lot more. A whole helluva lot more. And it wouldn't matter that others also had licenses, it would still cost a helluva lot more. Tennenbaum is getting off dirt cheap.
Despite defendant's repeated claims that compensatory and punitive damages have similar jurisprudence, defendant's own brief cites State Farm v. Campbell which states, "We recognized... that in our judicial system compensatory and punitive damages... serve different purposes." In case you're not a lawyer, let me help you out: it never, ever gets clearer than that for any reason. Defendant's claims that the court should conflate compensatory and punitive damages are totally and unconditionally wrong at best.
Defeendant argues that even if $5625 is dirt cheap for a license for unlimited distribution of a song worth at least
>The parties involved in a contract will always be material. duh.
The parties are almost never material. When I buy lunch from a restaurant, I enter into a contract to give the restaurant money in exchange for food. As long as I get food and they get cash, it is basically true that no other information is material to the transaction. I can tell them that I'm the Sultan of Brunei and as long as the "Sultan of Brunei" pays in full for his Supersized Fries, it's all good.
>False clearly implies intentional. Incorrect can be accidental.
No, false implies wrong. Intentional versus accidental goes to state of mind (mens rea, if you want to sound like a lawyer). In any event, intent is not in play here. In the example that I gave in the previous post of promising to cut taxes in exchange for your vote, I may be deliberately lying because I actually plan to raise your taxes. Despite my deliberate deception to get something of value, that valuable item being your vote, there is no crime. Your earlier statement to the effect that giving false information to get something of value is always a crime is incorrect.
>Contracts are entered by two parties in agreement If one party is falsifying its identity there is no agreement.
Incorrect. As noted in the Sultan of Brunei example above, identity of the parties need not be material.
If identify is material then giving a false identity may affect the contract. However, even in that case, it need not void the contract. For example, in a contract involving exchange of cash for goods, if I give counterfeit cash then I have violated a material term just as I would violate a material term by misstating my identify where identity is material. However, that need not void the contract. The contract may still be valid and enforceable, and it may be that I am forced to come up with real money.
Finally, in answer to your original question of how accessing the system without authorization is not unauthorized access, it actually comes down to the penalty, not the conduct. As the judge explained on page 21 of the opinion, what Drew did could well constitute unauthorized access. However, for reasons that he went on to explain, although she might be civilly liable in some other context, she could not be held criminally liable for the conduct alleged in this particular court case.
It is possible that you are not a skilled lawyer. Starting with the easy stuff first...
>Giving false info to obtain something of value is a crime. PERIOD.
Incorrect. First, I may mistakenly give false information by, for example, accidentally transposing digits in a phone number on a form. Not a crime.
Second, I may give false information that is not material to the transaction. For example, when dealing with someone who has the discretion to complete a transaction with me or someone else but not both (i.e., has a single item for sale and two potential buyers) and who is wearing an ugly hat, I may tell that person that the hat is attractive in an attempt to get the person to deal with me. Not a crime.
Third, the thing of value may not be something that the court feels like adjudicating. I man tell you that I will lower your taxes if you give me your vote, which is something of value. Not a crime.
Numerous other examples suggest themselves. Not crimes.
>She never violated the TOS. The TOS is a contract which she never agreed to (the nonexistent user she created did).
If you enter into a contract, say to buy a house, and sign the name of a non-existent person at the bottom, your imaginary friend did not just enter into a contract - you did. The signature element of a contract is satisfied by the parties giving objectively reasonable indications that they intend to enter a contract. Nodding ones head, stating agreement orally, or making a mark of whatever sort (a signature, a big red X, whatever) are all acceptable indications. Crossing your fingers behind your back, mentally adding certain reservations of which the other party is unaware, and using someone else's name are all things that do not negate the agreement to be bound by the contract.
Do points 1, 3, and 4 need arguments spelled out? Is there some basis for disagreement on, for example, point 4 as to whether the US government routinely demonstrates courage in the face of demands that it spend other people's money on unsustainable but politically popular projects? If there were some thread of support for such an argument then I guess I could go back and spell out the obvious, but it hardly seems necessary, does it?
The question about how private insurance stacks up is an interesting one, although not relevant to this discussion. Even if a particular incumbent is incompetent for a job, that does not mandate that an untested incompetent be hired for life to replace him. And never lose sight of that fact - once the government gets power, it never gives that power back. When you hire government, you're making a hire for life. Has the US government really demonstrated that level of competence and trustworthiness?
The case for private insurance essentially boils down to two elements of choice. First, there are ~1300 private insurance companies, each offering a plurality of plans. Further, the 1300 companies are regulated by the states, so the plans that they offer are influenced by state regulatory boards to serve the specific needs of people in each state. There is no possibility that the fed plan will include either that many choices or that level of individual targeting of essential features, so the fed plan will necessarily be inferior in the degree of choice and the suitability of coverage. It's possible, I suppose, that a monolithic federal bureaucracy will also have advantages over the present system, but it will necessarily have those disadvantages.
The second element of choice is whether to have coverage at all. Insurance is a negative expected-value instrument, mathematically speaking. It means that you expect to put more in than you take out. In simplest terms, it only works when most people lose money on the deal. Most readers have paid more into car insurance, home owners insurance, etc. than they'll ever get out because that's how insurance is supposed to work.
Contrast that with things that are properly within the scope of government such as building roads, bridges, and schools. Those are positive expected-value instruments because we expect to get more value from a road or a bridge than the cost to build it. There is at least an economic justification for allowing government to confiscate my money to do those things.
There are some people for whom negative expected-value instruments like insurance are worth it. They value the peace of mind, certainty, and other things more highly than they value the money they lose. That's fine. They are free to make that choice and we wouldn't want it any other way.
The way to offer those elements of choice without locking in an incompetent incumbent for life is to use private insurance.
The other thing to consider is that the roads, bridges, schools, and other things that are properly within the scope of government control (but even then not exclusive government control) is that they generally neutral in that they tend to accrue to the benefit of all and, taken as a whole, tend to spread the benefits more-or-less uniformly. Forcing all to participate in an insurance scheme that is designed to lose money would be a bad idea anyway, but here it is worse because it is not neutral. It forces me to lose money to subsidize people who make poor choices.
I understand that it also forces me to subsidize the unlucky, which is fine, but most of the money that the government will confiscate from me will go to support the obese and smokers. 70% of our health care costs are spent on five diseases, four of which are caused or substantially aggravated by lifestyle choices. I haven't made any of those choices the wrong way, so I do not favor a system of confiscating my money to support those who have. I favor a system in which people who make choices intelligently keep our money so that we may invest it in positive expected-value instruments like education.
The short answer is that settlement offers are not admissible at trial. Actually, that's the long answer too. The $500 is irrelevant for purposes of trial.
The bar to successfully arguing ineffective assistance of counsel is very high. The short answer is: forget it. Proving that your lawyer slept through the trial AND that he called no witnesses AND that he did not cross-examine the witnesses put on by the other side is so grossly insufficient to show ineffective assistance of counsel that you may well be sanctioned for making the claim on such weak evidence. Believe it or not, there is not the slightest possibility that anyone would even file such an appeal in this case and less chance that it would be granted.
I'm not a politician, so I don't try to solve every problem with a new government program. I'm a businessman so I try to solve every problem by hiring or contracting with someone to fix it for me. On occasion, I hire the government, but only when I'm ready to hire someone for life because the government will never give back power.
The first step in hiring is to list the requirements for the position. For the health care problem, that seems to be pretty straightforward:
1. Demonstrated ability to effectively administer large medical programs.
2. Demonstrated ability to manage costs in large and complex programs.
3. World-class expert in managing new technology and the myriad changes arising therefrom.
4. Courage to do the right thing in the face of heartbreaking demands by people who need exceptions.
Now we compare that list to the qualifications of the applicants. Let's start with the first applicant, the US government.
As to point #1, I think that Medicare and Medicaid speak for themselves. If you disagree, any of the doctors fleeing the programs will be pleased to speak for them.
As to point #2, they continuously conflate the idea of prices and costs. They force prices of some products down at gunpoint, often to levels unsustainably close to or below costs, without regard to the effect on the rest of the system. It works as well as it does, which it pitifully, for exactly one reason: there are parts of the system that they do not control, hence parts of the system to which they can still push costs without constraint. If they own the whole system, there's no place left to relieve the pressure that they create with misguided policies and the system explodes.
Point #3 hardly needs analysis.
Point #4 needs even less.
Thank you for your application, Uncle Sam. We'll contact you when we find an opening for someone of your skills. In the meantime, we'll keep your application on file. The circular file.
If he's current on his taxes then he's paid up in full so there's no need to leave a check. He's probably going to have to abandon his Social Security, but there's no way to get a check for that. Check exchange problems solved. Please proceed to the airport.
I think it's a good brief and makes the best arguments available to the defendant's side. I don't think that the jurisprudence on statutory and punitive damages is as closely linked as the defense would like. However, I certainly agree that it seems to be the strongest argument available, so that's what you go with. The facts on this one are pretty ugly; we're not going to enjoy the precedent that comes out of a case with such an unsympathetic defendant.
Some courts have signaled that they don't like the immense damages imposed, so they may accept the argument whether they actually believe it or not just to get to a "just result". That's certainly far from unheard-of. Your brief quotes one court imploring Congress to take another look at the liability and damages that arise from this statute. Maybe this court will seize upon the chance to conflate statutory and punitive damages to apply the 14th amendment to achieve a result that levies lower damages.
There are some who believe that the Supreme Court took In re Bilski because the Court is tired of waiting for Congress to do sensible things with IP law and now the Court is ready to make its own policy. If true, they could also be ready to take a look at this area of IP law.
As a matter of existing law, I think Thomas is doomed, but if the Supreme Court really is ready to rework IP policy and if they choose to use the Thomas case as part of that then this could be the argument that gets Thomas before them. They are generally more likely to take a Constitutional question than than one of the civ pro questions about multiple unrelated John Does in a single filing (not sure whether that played a role here, but it's a typical RIAA tactic so I presume that it did).
It looks like our discussion here may be winding down. In case we don't get a chance to chat again, I'll take this chance to thank you for writing lucidly on tricky legal topics for a non-legal audience. Separating procedural and substantive issues and helping people understand what's important at the trial court versus appeals court levels is not easy to do well and the subtleties can easily be lost on the layman. Also, the Slashdot crowd is pretty quick to stone government in general and lawyers in particular so I can't imagine that it's always highly rewarding work, but I think that it's important and that you do it well.
It's pretty clear. I understand all of it. Why do you ask?
The idea behind deference to statutory damages is that Congress specifically authorized an award beyond actual damages, perhaps far beyond actual damages, do accomplish various public policy goals such as deterrence, judicial economy, and justice to the plaintiff in cases where proving actual damages is difficult or impossible. It is well settled that where the intent of Congress is clearly expressed in the language of a statute, the inquiry by the court is at an end. In Parker, the court worried that the interplay of two statutes created a situation that Congress did not intend. Interesting case, but unrelated to the instant case.
Likewise, Napster, Lindor, and Brennan are interesting cases, but are district court cases from other districts. They are therefore not binding precedent in this case. I'm sure that they were given due consideration, but consideration is all that they are due; deference is not required.
If district courts receive no deference, the law review articles have less claim. Interesting reading, no doubt, but hardly determinative.
Gore notes early on that one of the factors that made the 500x multiplier unreasonable is "there is no suggestion that he or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure". Here, of course, the whole idea is that she made the songs available for download, which threatened substantial harm to plaintiff. The key is the reference in Gore to the threat of additional harm. By making the songs available, she created the threat of additional damages to plaintiff. Whether that threat was realized is another question, and an irrelevant question here because Gore specifically focuses on the threat created by the activity, not by the actual outcome.
Note also the portion of your brief in which you state that one of the key tests is "the disparity between... the potential harm... and the punitive damages award." Setting aside the punitive versus statutory damages part of the argument, the potential harm to plaintiff of requiring him to compete for sales with a free source of the same product is obviously very high.
State Farm is pretty clear. First, it's a straight-up punitive damages case as opposed to a statutory damages case. However, assuming that it was relevant, which it is not, we review a few selections from the case: "We decline again to impose a bright-line ratio which a punitive damages award cannot exceed." A "higher ratio might be necessary where 'the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine'". In other words, the Supreme Court declined to set a hard limit on punitive damages, much less statutory damages, and acknowledged that a fact-specific inquiry may well find good reason to impose very high multipliers.
Indeed, you note in your brief that a district court may have implicitly acknowledged exactly this point. After citing a handful of nonbinding precedent and a book by Nimmer, you quote a court "implor[ing] Congress to amend the Copyright Act to address liability and damages" in cases like this. In other words, the statute binds the court to do things it does not want to do and the court implores Congress to change the statute because the statute binds.
In summary, and in response to your remark, I disagree with some of what you say but I do think that it's fair to say that I understand it.
Respectfully yours,
Mike
PS - It is the practice of lawyers to overstate their own cases and trivialize those of their opponents. Ray is a lawyer, so I've followed that practice here. However, one particular application of that rule in the foregoing troubles my conscience. I note for the non-lawyers present that the "book by Nimmer" that I so casually dismissed above, while not being even close to precedent or binding on any court, is regarded by many as the most authoritative work on copyright available anywhere. If I was in the shoes of either plaintiff or defendant, I'd quote Nimmer at least once just to be on the safe side. Ray knows this well, of course; I note that here only for the benefit of those without legal training.
"Monopoly" has a specific legal meaning. One of the key elements is pricing power, which means that the monopolist can raise his price above what he would be able to charge in a competitive market. As the RIAA is organized, it does not have pricing power over any records, CDs, etc., so it cannot be a monopoly. It can be a cartel that illegally exercises market power; that's more of an anti-trust issue. However, that would require a court to define the set of people who infringe music copyrights as a market and there are good reasons not to do that. However, I've heard it discussed and it may happen. I'm not here with an opinion, just a definition.
As to the extortion charge, the situation you describe is merely the quid pro quo on which all of commerce is based. Wal-Mart does the same thing: "Give us $0.75 or you're never gettin' outta here alive with that candy bar!" Real property works the same way: "Give me the rights to quiet enjoyment of the house, garage, AND the yard or I'm not buying the property!" So you trade the copyright and the text of a paper or a book for something that you want more. If you don't like it, don't publish, self-publish, or go with a less reputable publisher, but then feel the pain when you come up for tenure and promotion. Having seen the (utter and total lack of) success of at least one applicant apply for a job in the Mathematics Department on the basis of his "publications" in the editorial column of his local newspaper, I'd say you're doing the right thing for your career in trading away the copyright.
Punitive awards come from the jury. Juries do not hold hearings, have access to experts, or otherwise have the ability of a legislature to make the best decisions. Juries are also not elected by the public to carry out public policy. For those reasons, excessive punitive damages are subject to challenge. Exxon Val is one of many examples. End of discussion of punitive damages, wholly irelevant to this case because no punitive damages have been awarded.
Beginning of discussion that is actually on point, which is a discussion of statutory damages:
Statutory damages are damages whose amount is prescribed and proscribed by the legislature. Legislatures can hold hearings, can hire experts, can consider a wide range of facts and circumstances that may not be present in any single particular case, and have been elected by the public to define public policy. The fact that they can do those things does not mean that they do, or that they do them competently, however, the fact that they can is what gives statutory damages a status different from the status of punitive damages.
Fairness to a defendant is one of the things that the legislature considers. However, it also considers fairness to the plaintiff, deterrent, and judicial economy, to name but a few. (It also considers who has paid into the re-election kitty and in what amount. If you want to be the first person to point out that the system is imperfect and contains elements of corruption, you're too late.) In order to legally do what she did, which is make the songs available to anyone with access to an internet connection, Thomas would have had to negotiate and pay for a fixed-price perpetual license for unlimited worldwide distribution of those songs. What price would the record companies have negotiated for that? Congress thought it over and came up with the wide range of $750-$150K and left it to the jury to fix a specific price in specific cases.
There are demonstrably songs for which such a license would be worth more than $150K, and songs for which $750 would be ludicrously high. However, Congress established that range to achieve a range of policy goals. Because those are statutory, meaning that they are specified in the statute, they are not subject to the challenges that a punitive damages award might draw. Comparisons to Exxon are misplaced. Because the money is not paid to the government, references to the 8th Amendment's prohibition against "excessive fines" is likewise unavailing.
If you want the Supremes, or any other court, to overturn an award of *statutory damages*, you must prevail on one of two points. First, you could successfully argue that there was abuse of discretion. For various technical reasons, this will not work. Second, you could argue that Congress erred in setting the bounds on damages. In that case, you must argue for having judges rewrite the law or do what postings in other/. forums would decry as "legislating from the bench." Those are the choices.
When you say "own", people may assume that this is a copyright thing. It's not. In Feist v. Rural, the US Supreme Court ruled 9-0 that facts cannot be copyrighted (owned). This database is just a collection of facts, hence not subject to copyright. It's basically exactly like the case in Feist v. Rural in which the parties were fighting over the list of names in the white pages of a phone book. For those who like legalese, try http://www.law.cornell.edu/copyright/cases/499_US_340.htm.
That's why these guys are coming at it with contract law instead of copyright. They're telling libraries that the contract they signed to get the data controls what the libraries can do with the data. The contract apparently says, or the data provider wants people to believe that it says, that libs can use the data themselves, but cannot transfer it.
Patents can be held by entities besides individuals because awful things happen otherwise.
Assume that I'm a small businessman and I have an idea for something that some lawyer may some day figure out how to portray as dangerous. Your idea forces me to choose between getting a patent to protect myself from corporate predators who would otherwise steal my idea and incorporating to protect myself from lawsuits arising from the use of my idea. If I get the patent, I can't hold it as a corporation. If I incorporate, I can't hold the patent.
As a small businessman, I go to a bank and ask for a loan and offer my patent as part of the collateral. The bank then asks itself what will happen if I default on the loan. The bank will not be able to hold the patent. The bank can sell the patent only to another individual, which is a pretty small and funds-constrained market. The bank will severely discount the value of my patent and my business will suffer greatly as a result if I can find the capital to form the business at all.
Under this scheme, can a corporation license a patent? Can it exclusively license a patent? If not, who's going to come up with the cash necessary to bring an idea to commercialization? In most cases, nobody. What if they can? What is the practical difference between a corporation owning a patent versus a corporation getting an exclusive perpetual lease on the rights conferred by the patent? No difference. There is no difference between XYZ Corp. holding a patent compared with XYZ Corp. buying sole rights to practice the patent and litigate against others who do likewise.
So limiting patent ownership to individuals hurts those individuals and their businesses while doing nothing to constrain corporations.
I was at Control Data Corporation when Our Glorious Leader (Bill Norris) announced that our new mission statement (though this was well before it became trendy to have mission statements) was "Profitably solving society's problems." It made us all proud to be associated with that company.
(For the younger people reading this who may not remember CDC, Control Data Corporation used to be a viable computer company, but then it split the attention of its execs between running a business, which they knew how to do, and solving society's problems, which apparently they did not. Then it died.)
Although the poster referred directly to trademark, the sorts of things he discussed are typically covered under copyright law. Trademark exists to prevent confusion among consumers about the source or quality of goods. In the cases he discussed, the use of the material would not have caused confusion. In fact, those uses would have reinforced the correct notion of the origin of the goods discussed.
Copyright law, on the other hand, exists to give the author or creator of a creative work the right to control its use and dissemination. The portion of the original post on which I commented seemed to be primarily concerned with those things and so I gave the poster the benefit of the doubt and presumed that he meant to switch the topic to copyright but did not explicitly say so. If I was wrong then please treat my post as if I had first told the poster that he was wrong to ascribe those things to trademark law and then gone on to tell him that he was also wrong under copyright.;-)
>Even magazines doing reviews of vehicles need the permission of the maker
That is incorrect. Chapter 17, section 107 of the United States code clearly states that "the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
Here, your example is perfectly on point with 17 USC 107. The review would be criticism, comment, and news reporting at a minimum, and arguably teaching.
>they CAN prevent an organization (in this case a car club) from printing, selling, (and thus profiting) from those images without their permission.
This is also incorrect, but not as egregiously. 17 USC 107 distinguishes commercial and noncommercial ventures as one of the factors in determining whether a particular use is fair use. However, in this case even the Red Cross (a nonprofit) could run afoul of the law by printing the calendar because of "the amount and substantiality of the portion used in relation to the copyrighted work as a whole". That means that if they print a pic of the entire car, that fact counts against them. Speaking of factors that count against them, 17 USC 107(4) raises the consideration of "the effect of the use upon the potential market for or value of the copyrighted work." Here, that means that Black Mustang Club is reducing the value of the design because nobody is going to buy a Black Mustang Club calendar and also buy a calendar from Ford. (Black Mustang Club would counter that they are raising the value of the Mustang by printing the calendar, but their claim is speculative whereas Ford's claim of reduction in the sale of Ford calendars is pretty solid. Judges don't like speculation.)
The law is not particularly unclear on this one. Ford is right, Black Mustang Club is wrong. You can read on for details if you want, but that's how this one comes down.
We start with 17 USC 101 (chapter 17, section 101 of the United States Code): A "derivative work" is a work based upon one or more preexisting works, such as a... art reproduction... or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
Here, the Black Mustang Club (BMC) intends to make what is legally an art reproduction of Ford's artistic design.
OK, but, no, really? Yes, really. 17 USC 101 goes on to state: "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art... diagrams, models, and technical drawings.
Here, the Mustang is a 3D word of applied art. It is also derived from Ford's diagrams, models, and technical drawings, so it is itself a derivative work. There are other ways to go at it, but the net-net is that Mustang is covered by 17 USC.
But it's a car! 17 USC cares nothing about that: Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
That's legalese for "if you can separate the art from the function, say by taking an artistic pic of it and putting it on a calendar, it's covered."
OK, fine, but this is fair use, right? Wrong. 17 USC 107 is clear on this point: the fair use of a copyrighted work, including such use by reproduction in copies... for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research, is not an infringement of copyright.
This is a pure commercial venture, end of story.
Ford is within its rights. As to whether it's out of its mind... that's not covered by 17 USC.
You sell OSS the same way you sell to anyone else: you sell to people who want to buy because they value what you offer.
There's not necessarily a lot of overlap between people who need financial software and people who know how to build and validate software that they downloaded from the net. Those people value software that works out-of-the-box. Give it to them and charge them for it. There's also not a lot of overlap between people who treat their money as if it were important and people who entrust their financial data to an unknown app from a provider they can't identify. So be the known, trusted source for a known, documented app and charge people for it.
Be sure to make it possible for people to do what you want them to do. If you're going to make it open source with the idea that others will pick it up and make improvements, thoroughly document what's there, how to build it, how to give changes back, how those changes will be moderated, what you'll do when two people submit conflicting changes, and all of the other stuff that's required for an ongoing open source project to which people will contribute.
By the way, there's a lot of open source out there, but not nearly as many open source developers. If you've got an app in which you yourself are no longer interested, you don't necessarily have the next million-developer piece of software sitting on your disk. No disrespect intended; I'm just saying that you may want to do a reality check before you get too far into this.
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The General Assembly resolutions do not create binding law. The Security Counsel can create binding international law, but not the GA.
>2. The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.
"National appropriation" refers to appropriation by nations. These guys are not nations.
>3. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person.
In simplest terms, so what? It's not allowed to become property and nobody is allowed to assert sovereignty. That does not mean that its resources cannot be exploited. The center of the Pacific Ocean is also nobody's sovereign territory. That does not mean that nobody can fly over it, sail across it, fish in it, or otherwise derive economic benefit. It just means that it is nobody's property.
All law is imposed at gunpoint. In light of that, your basic argument boils down to this: it is impermissible for the guns that impose law in space to be controlled by governments.
This seems to be the place in the replies for calm and cogent responses, so I will pick up the thread from where debrain's thoughtful analysis leaves off.
>"And such information is not necessarily confidential; accident reports and police records may also identify the driver." True, but what does this have to do with anything?
There are a couple of angles here, but judicial economy is one. The idea is that there are certain rules that are in place to make the judicial process more efficient. Here, the judge could be arguing that the name of the actual driver will inevitably come out anyway, either from police reports or the rental car agency giving the driver up so that liability shifts to him. Given that the disclosure of this nonconfidential information is inevitable, let's get on with it and save everyone a lot of time and money.
By contrast, disclosure of confidential customer information is not inevitable so it is appropriate to observe the details of process.
>The question is: given a certain probability that a company's customer is guilty
That is not a given. The factors that would let one estimate the probability that there was even wrongdoing in the first place, let alone that a specific person committed the specific wrong, come out during discovery and trial. The subpoena in question is coming before any of that.
>If some customers in similar situations have had their identities made public by other circumstances, the judge's ruling gives no reason why that should be relevant at all, in a situation where the customer's identity is not public
Their identities became public through the same judicial process being invoked here. Because we live in a system of precedent in which persons similarly situated are supposed to be similarly treated, the judge's statement is directly relevant.
>For a court to take a plaintiff's case against a given defendant seriously, they [sic] just have to believe that there is a reasonable probability of the plaintiff winning.
That is often necessary but never sufficient. A predicate inquiry in every legal question is jurisdiction. Doe the court have jurisdiction over the people involved? Here, the judge is saying that he has no reason to believe that his court has jurisdiction over the Doe defendants.
>But there is no reason to think that in the case of these entities, there would be any more "disconnect" between the actual infringer and the user on the network that the IP address had been assigned to.
A recurring theme in law is burden of proof. Your statement boils down to "defendant cannot prove that there is a greater disconnect in one instance than in the other." Even if the defendant cannot prove it, that is immaterial. At this stage of the proceeding, the burden of proof is on the plaintiff to state an argument and support it. We're not at the beyond-a-reasonable-doubt stage yet, but plaintiffs cannot just haul anyone into court with mere conclusory statements. Plaintiff did not produce evidence about the level of disconnect, and it is not the court's job either to find that proof or to put the resources of the ISP at plaintiff's disposal just because such proof is not available. The plaintiff must carry the burden of proof beyond mere conclusory statements.
>I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either
Ummm.... well... actually, there is something called presumption of innocence. How it works is, we presume that people are innocent until... well, anyway.
>Plaintiff started with a list of 100 defendants, and then expanded it to 1,000. What does this have to do with the legitimacy, generally, of suing John Doe defendants and subpoenaing their identities?
The Federal Rules of Civil Procedure require that defendants in a lawsuit to be joined by the same kernel of operative facts. In other words, they all have to be in on the deal together. If
>Fortunately, Sandia National Laboratories is heading an effort to develop a new set of benchmarks...
Bummer for you, Sandia. NASA already did that with the NAS Parallel Benchmarks. Here's a hint: you're funded by the US Government (just like NASA), and NPB died when the Japanese started kick US butt on NPB.
"Fingerprinting has a history of 100 years showing that it works."
Fingerprinting has a history of well over 100 years, but what we see is that it works as long as it is not seriously challenged. In its only major rigorous challenge, the 50Kx50k text, substantial problems emerged.
Keep in mind that fingerprints are never admitted into evidence, never used for identification, never even examined. Never. A finger touches a surface and it leaves a partial copy. An investigator finds it and puts powder (matrix) on it, which creates a visible picture of the copy. It is often not possible to get a good photo of the copy, so someone uses tape or other gear to get an image of the picture of the copy. Then someone photographs the tape containing the image of the picture of the copy. Then a print of the photograph of the tape of the image of the picture of the copy is created. If there are no more steps, which would be unusual, that print is what is actually used for evidence or analysis. Scientifically-minded readers will have already tallied up at least a partial list of the errors introduced at each step of the process.
And what sort of analysis is done? The best lab in the country, the FBI, uses an analysis process taught by a high school grad who washed out of college after two years. Obviously, other labs do not enjoy such high standards. What standards do they use, you may ask? None. There are no required national standards for fingerprint analysts. There are guidelines that suggest that a high school diploma should be required, but the advisory guidelines bind no one.
But at least they use a rigorous process with well-defined standards?
"The International Association for Identification assembled in its 58th annual conference... based on a three-year study by its Standardization Committee, hereby states that no valid basis exists at this time for requiring that a predetermined minimum of friction ridge [fingerprint] characteristcs must be present in two impressions in order to establish positive identification."
So no, there are no standards, which is a good thing because the relevant international body has determined that there is "no valid basis" for establishing one.
So now they say that they can get better results by looking at someone's ears? Hm... Well, the good news is that they're probably right. The bad news is that they've got a long way to go before they can say that it's any great accomplishment.
Although one does not patent code, one can patent an invention and use that patent to preclude someone from writing software that practices the invention. There are people who have released code that practices patented inventions, but that does not mean that it is not possible for a patent to cover something implemented in software. It just means that a patent grants the holder a license to sue an infringer. There are various reasons for which a patent holder may not sue an infringer, but the infringer is still infringing that patent and it makes no difference that the infringer does so with software or hardware.
Having said that, it is possible to copyright code. In fact, copyright attaches automatically. So there is a means of protecting a specific piece of code. However, one can work around copyright by writing code that does the same thing differently.
Patents aren't really concerned with censorship or speech. One way to use a patent to censor speech in a particular medium is to exercise a patent that you hold to prevents use of that medium. You won't beat that with a free speech argument.
Contributing to infringing a US patent elsewhere in the world is a peculiar idea because a US patent is exactly that - US. Once you are outside of US territory (with the interesting but inapplicable exception of space), the US patent effectively does not exist.
Internal arithmetic always includes the exact solution, but only the rarest circumstances does it actually give the exact solution. For example, an acceptable interval answer for 1/3 would be [0.33,0.34]. That interval includes the exact answer, but does not express it.
This post is long because the brief is long.
First, keep in mind that RIAA doesn't write the law. Don't hate RIAA for using laws that Disney and others bought Congresscritters to enact into law. Hate the Congresscritters.
The first basic argument is that the companies lost nothing because even if Tenenbaum had not shared the music then someone else would have. However, the companies lose sales to illegal downloading. There's a question of how many sales, but no question that there are lost sales. So they suffer loss from one person making downloads available. If only one person made the files available, they could recover their losses by suing that person. Defendant's argument is that because many people do it, the companies cannot recover. That's like saying that if you get beaten up then you can sue your attacker, but if you get lynched by a mob then you have no recourse. The fact that many people are doing it... you know, if you have to read that here to learn it, you can't learn it. Let's move on to the next point.
From the brief: “[N]umerous courts have held that assessed statutory damages should bear some relation to the actual damages suffered.” When the Supreme Court has spoken, it makes no difference what other courts have said or how numerous they are. The Supremes get the last word. And here's the word: The "excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve." Here, the interest is in deterring people from granting themselves licenses to engage in unlimited and uncompensated distribution of very valuable copyrighted works. Such distribution not only costs the original copyright owner money but the availability of such goods depresses or destroys secondary markets and harms, for example, used CD stores. For these and countless other reasons, the state obviously has a very large interest in deterring the conduct.
They go on to say that "we do not doubt that Congress has ample authority to enact such a policy for the entire Nation." They note that "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Is there argument that Tenenbaum thought that his conduct was lawful? There is not. There is, in fact, his sworn testimony that he knew that the time that it was illegal.
Finally, the case that *defendant* cites states, ""While petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one considers the potential loss to respondents, in terms of reduced or eliminated royalties payments." What is the potential loss from granting a license for unlimited uncompensated distribution of all of those works? Tennenbaum got tagged for $675K and the courts routinely award 4:1 damages, so the relevant question here is whether the potential loss was more or less than $675K / 30 songs / 4:1 damage ratio = $5625/song and the answer is that such a license would clearly cost more. A helluva lot more. A whole helluva lot more. And it wouldn't matter that others also had licenses, it would still cost a helluva lot more. Tennenbaum is getting off dirt cheap.
Despite defendant's repeated claims that compensatory and punitive damages have similar jurisprudence, defendant's own brief cites State Farm v. Campbell which states, "We recognized ... that in our judicial system compensatory and punitive damages ... serve different purposes." In case you're not a lawyer, let me help you out: it never, ever gets clearer than that for any reason. Defendant's claims that the court should conflate compensatory and punitive damages are totally and unconditionally wrong at best.
Defeendant argues that even if $5625 is dirt cheap for a license for unlimited distribution of a song worth at least
>The parties involved in a contract will always be material. duh.
The parties are almost never material. When I buy lunch from a restaurant, I enter into a contract to give the restaurant money in exchange for food. As long as I get food and they get cash, it is basically true that no other information is material to the transaction. I can tell them that I'm the Sultan of Brunei and as long as the "Sultan of Brunei" pays in full for his Supersized Fries, it's all good.
>False clearly implies intentional. Incorrect can be accidental.
No, false implies wrong. Intentional versus accidental goes to state of mind (mens rea, if you want to sound like a lawyer). In any event, intent is not in play here. In the example that I gave in the previous post of promising to cut taxes in exchange for your vote, I may be deliberately lying because I actually plan to raise your taxes. Despite my deliberate deception to get something of value, that valuable item being your vote, there is no crime. Your earlier statement to the effect that giving false information to get something of value is always a crime is incorrect.
>Contracts are entered by two parties in agreement If one party is falsifying its identity there is no agreement.
Incorrect. As noted in the Sultan of Brunei example above, identity of the parties need not be material.
If identify is material then giving a false identity may affect the contract. However, even in that case, it need not void the contract. For example, in a contract involving exchange of cash for goods, if I give counterfeit cash then I have violated a material term just as I would violate a material term by misstating my identify where identity is material. However, that need not void the contract. The contract may still be valid and enforceable, and it may be that I am forced to come up with real money.
Finally, in answer to your original question of how accessing the system without authorization is not unauthorized access, it actually comes down to the penalty, not the conduct. As the judge explained on page 21 of the opinion, what Drew did could well constitute unauthorized access. However, for reasons that he went on to explain, although she might be civilly liable in some other context, she could not be held criminally liable for the conduct alleged in this particular court case.
It is possible that you are not a skilled lawyer. Starting with the easy stuff first...
>Giving false info to obtain something of value is a crime. PERIOD.
Incorrect. First, I may mistakenly give false information by, for example, accidentally transposing digits in a phone number on a form. Not a crime.
Second, I may give false information that is not material to the transaction. For example, when dealing with someone who has the discretion to complete a transaction with me or someone else but not both (i.e., has a single item for sale and two potential buyers) and who is wearing an ugly hat, I may tell that person that the hat is attractive in an attempt to get the person to deal with me. Not a crime.
Third, the thing of value may not be something that the court feels like adjudicating. I man tell you that I will lower your taxes if you give me your vote, which is something of value. Not a crime.
Numerous other examples suggest themselves. Not crimes.
>She never violated the TOS. The TOS is a contract which she never agreed to (the nonexistent user she created did).
If you enter into a contract, say to buy a house, and sign the name of a non-existent person at the bottom, your imaginary friend did not just enter into a contract - you did. The signature element of a contract is satisfied by the parties giving objectively reasonable indications that they intend to enter a contract. Nodding ones head, stating agreement orally, or making a mark of whatever sort (a signature, a big red X, whatever) are all acceptable indications. Crossing your fingers behind your back, mentally adding certain reservations of which the other party is unaware, and using someone else's name are all things that do not negate the agreement to be bound by the contract.
Do points 1, 3, and 4 need arguments spelled out? Is there some basis for disagreement on, for example, point 4 as to whether the US government routinely demonstrates courage in the face of demands that it spend other people's money on unsustainable but politically popular projects? If there were some thread of support for such an argument then I guess I could go back and spell out the obvious, but it hardly seems necessary, does it?
The question about how private insurance stacks up is an interesting one, although not relevant to this discussion. Even if a particular incumbent is incompetent for a job, that does not mandate that an untested incompetent be hired for life to replace him. And never lose sight of that fact - once the government gets power, it never gives that power back. When you hire government, you're making a hire for life. Has the US government really demonstrated that level of competence and trustworthiness?
The case for private insurance essentially boils down to two elements of choice. First, there are ~1300 private insurance companies, each offering a plurality of plans. Further, the 1300 companies are regulated by the states, so the plans that they offer are influenced by state regulatory boards to serve the specific needs of people in each state. There is no possibility that the fed plan will include either that many choices or that level of individual targeting of essential features, so the fed plan will necessarily be inferior in the degree of choice and the suitability of coverage. It's possible, I suppose, that a monolithic federal bureaucracy will also have advantages over the present system, but it will necessarily have those disadvantages.
The second element of choice is whether to have coverage at all. Insurance is a negative expected-value instrument, mathematically speaking. It means that you expect to put more in than you take out. In simplest terms, it only works when most people lose money on the deal. Most readers have paid more into car insurance, home owners insurance, etc. than they'll ever get out because that's how insurance is supposed to work.
Contrast that with things that are properly within the scope of government such as building roads, bridges, and schools. Those are positive expected-value instruments because we expect to get more value from a road or a bridge than the cost to build it. There is at least an economic justification for allowing government to confiscate my money to do those things.
There are some people for whom negative expected-value instruments like insurance are worth it. They value the peace of mind, certainty, and other things more highly than they value the money they lose. That's fine. They are free to make that choice and we wouldn't want it any other way.
The way to offer those elements of choice without locking in an incompetent incumbent for life is to use private insurance.
The other thing to consider is that the roads, bridges, schools, and other things that are properly within the scope of government control (but even then not exclusive government control) is that they generally neutral in that they tend to accrue to the benefit of all and, taken as a whole, tend to spread the benefits more-or-less uniformly. Forcing all to participate in an insurance scheme that is designed to lose money would be a bad idea anyway, but here it is worse because it is not neutral. It forces me to lose money to subsidize people who make poor choices.
I understand that it also forces me to subsidize the unlucky, which is fine, but most of the money that the government will confiscate from me will go to support the obese and smokers. 70% of our health care costs are spent on five diseases, four of which are caused or substantially aggravated by lifestyle choices. I haven't made any of those choices the wrong way, so I do not favor a system of confiscating my money to support those who have. I favor a system in which people who make choices intelligently keep our money so that we may invest it in positive expected-value instruments like education.
The short answer is that settlement offers are not admissible at trial. Actually, that's the long answer too. The $500 is irrelevant for purposes of trial.
The bar to successfully arguing ineffective assistance of counsel is very high. The short answer is: forget it. Proving that your lawyer slept through the trial AND that he called no witnesses AND that he did not cross-examine the witnesses put on by the other side is so grossly insufficient to show ineffective assistance of counsel that you may well be sanctioned for making the claim on such weak evidence. Believe it or not, there is not the slightest possibility that anyone would even file such an appeal in this case and less chance that it would be granted.
I'm not a politician, so I don't try to solve every problem with a new government program. I'm a businessman so I try to solve every problem by hiring or contracting with someone to fix it for me. On occasion, I hire the government, but only when I'm ready to hire someone for life because the government will never give back power.
The first step in hiring is to list the requirements for the position. For the health care problem, that seems to be pretty straightforward:
1. Demonstrated ability to effectively administer large medical programs.
2. Demonstrated ability to manage costs in large and complex programs.
3. World-class expert in managing new technology and the myriad changes arising therefrom.
4. Courage to do the right thing in the face of heartbreaking demands by people who need exceptions.
Now we compare that list to the qualifications of the applicants. Let's start with the first applicant, the US government.
As to point #1, I think that Medicare and Medicaid speak for themselves. If you disagree, any of the doctors fleeing the programs will be pleased to speak for them.
As to point #2, they continuously conflate the idea of prices and costs. They force prices of some products down at gunpoint, often to levels unsustainably close to or below costs, without regard to the effect on the rest of the system. It works as well as it does, which it pitifully, for exactly one reason: there are parts of the system that they do not control, hence parts of the system to which they can still push costs without constraint. If they own the whole system, there's no place left to relieve the pressure that they create with misguided policies and the system explodes.
Point #3 hardly needs analysis.
Point #4 needs even less.
Thank you for your application, Uncle Sam. We'll contact you when we find an opening for someone of your skills. In the meantime, we'll keep your application on file. The circular file.
If he's current on his taxes then he's paid up in full so there's no need to leave a check. He's probably going to have to abandon his Social Security, but there's no way to get a check for that. Check exchange problems solved. Please proceed to the airport.
I think it's a good brief and makes the best arguments available to the defendant's side. I don't think that the jurisprudence on statutory and punitive damages is as closely linked as the defense would like. However, I certainly agree that it seems to be the strongest argument available, so that's what you go with. The facts on this one are pretty ugly; we're not going to enjoy the precedent that comes out of a case with such an unsympathetic defendant.
Some courts have signaled that they don't like the immense damages imposed, so they may accept the argument whether they actually believe it or not just to get to a "just result". That's certainly far from unheard-of. Your brief quotes one court imploring Congress to take another look at the liability and damages that arise from this statute. Maybe this court will seize upon the chance to conflate statutory and punitive damages to apply the 14th amendment to achieve a result that levies lower damages.
There are some who believe that the Supreme Court took In re Bilski because the Court is tired of waiting for Congress to do sensible things with IP law and now the Court is ready to make its own policy. If true, they could also be ready to take a look at this area of IP law.
As a matter of existing law, I think Thomas is doomed, but if the Supreme Court really is ready to rework IP policy and if they choose to use the Thomas case as part of that then this could be the argument that gets Thomas before them. They are generally more likely to take a Constitutional question than than one of the civ pro questions about multiple unrelated John Does in a single filing (not sure whether that played a role here, but it's a typical RIAA tactic so I presume that it did).
It looks like our discussion here may be winding down. In case we don't get a chance to chat again, I'll take this chance to thank you for writing lucidly on tricky legal topics for a non-legal audience. Separating procedural and substantive issues and helping people understand what's important at the trial court versus appeals court levels is not easy to do well and the subtleties can easily be lost on the layman. Also, the Slashdot crowd is pretty quick to stone government in general and lawyers in particular so I can't imagine that it's always highly rewarding work, but I think that it's important and that you do it well.
Very best regards,
Mike
It's pretty clear. I understand all of it. Why do you ask?
The idea behind deference to statutory damages is that Congress specifically authorized an award beyond actual damages, perhaps far beyond actual damages, do accomplish various public policy goals such as deterrence, judicial economy, and justice to the plaintiff in cases where proving actual damages is difficult or impossible. It is well settled that where the intent of Congress is clearly expressed in the language of a statute, the inquiry by the court is at an end. In Parker, the court worried that the interplay of two statutes created a situation that Congress did not intend. Interesting case, but unrelated to the instant case.
Likewise, Napster, Lindor, and Brennan are interesting cases, but are district court cases from other districts. They are therefore not binding precedent in this case. I'm sure that they were given due consideration, but consideration is all that they are due; deference is not required.
If district courts receive no deference, the law review articles have less claim. Interesting reading, no doubt, but hardly determinative.
Gore notes early on that one of the factors that made the 500x multiplier unreasonable is "there is no suggestion that he or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure". Here, of course, the whole idea is that she made the songs available for download, which threatened substantial harm to plaintiff. The key is the reference in Gore to the threat of additional harm. By making the songs available, she created the threat of additional damages to plaintiff. Whether that threat was realized is another question, and an irrelevant question here because Gore specifically focuses on the threat created by the activity, not by the actual outcome.
Note also the portion of your brief in which you state that one of the key tests is "the disparity between... the potential harm... and the punitive damages award." Setting aside the punitive versus statutory damages part of the argument, the potential harm to plaintiff of requiring him to compete for sales with a free source of the same product is obviously very high.
State Farm is pretty clear. First, it's a straight-up punitive damages case as opposed to a statutory damages case. However, assuming that it was relevant, which it is not, we review a few selections from the case: "We decline again to impose a bright-line ratio which a punitive damages award cannot exceed." A "higher ratio might be necessary where 'the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine'". In other words, the Supreme Court declined to set a hard limit on punitive damages, much less statutory damages, and acknowledged that a fact-specific inquiry may well find good reason to impose very high multipliers.
Indeed, you note in your brief that a district court may have implicitly acknowledged exactly this point. After citing a handful of nonbinding precedent and a book by Nimmer, you quote a court "implor[ing] Congress to amend the Copyright Act to address liability and damages" in cases like this. In other words, the statute binds the court to do things it does not want to do and the court implores Congress to change the statute because the statute binds.
In summary, and in response to your remark, I disagree with some of what you say but I do think that it's fair to say that I understand it.
Respectfully yours,
Mike
PS - It is the practice of lawyers to overstate their own cases and trivialize those of their opponents. Ray is a lawyer, so I've followed that practice here. However, one particular application of that rule in the foregoing troubles my conscience. I note for the non-lawyers present that the "book by Nimmer" that I so casually dismissed above, while not being even close to precedent or binding on any court, is regarded by many as the most authoritative work on copyright available anywhere. If I was in the shoes of either plaintiff or defendant, I'd quote Nimmer at least once just to be on the safe side. Ray knows this well, of course; I note that here only for the benefit of those without legal training.
"Monopoly" has a specific legal meaning. One of the key elements is pricing power, which means that the monopolist can raise his price above what he would be able to charge in a competitive market. As the RIAA is organized, it does not have pricing power over any records, CDs, etc., so it cannot be a monopoly. It can be a cartel that illegally exercises market power; that's more of an anti-trust issue. However, that would require a court to define the set of people who infringe music copyrights as a market and there are good reasons not to do that. However, I've heard it discussed and it may happen. I'm not here with an opinion, just a definition.
As to the extortion charge, the situation you describe is merely the quid pro quo on which all of commerce is based. Wal-Mart does the same thing: "Give us $0.75 or you're never gettin' outta here alive with that candy bar!" Real property works the same way: "Give me the rights to quiet enjoyment of the house, garage, AND the yard or I'm not buying the property!" So you trade the copyright and the text of a paper or a book for something that you want more. If you don't like it, don't publish, self-publish, or go with a less reputable publisher, but then feel the pain when you come up for tenure and promotion. Having seen the (utter and total lack of) success of at least one applicant apply for a job in the Mathematics Department on the basis of his "publications" in the editorial column of his local newspaper, I'd say you're doing the right thing for your career in trading away the copyright.
Punitive awards come from the jury. Juries do not hold hearings, have access to experts, or otherwise have the ability of a legislature to make the best decisions. Juries are also not elected by the public to carry out public policy. For those reasons, excessive punitive damages are subject to challenge. Exxon Val is one of many examples. End of discussion of punitive damages, wholly irelevant to this case because no punitive damages have been awarded.
Beginning of discussion that is actually on point, which is a discussion of statutory damages:
Statutory damages are damages whose amount is prescribed and proscribed by the legislature. Legislatures can hold hearings, can hire experts, can consider a wide range of facts and circumstances that may not be present in any single particular case, and have been elected by the public to define public policy. The fact that they can do those things does not mean that they do, or that they do them competently, however, the fact that they can is what gives statutory damages a status different from the status of punitive damages.
Fairness to a defendant is one of the things that the legislature considers. However, it also considers fairness to the plaintiff, deterrent, and judicial economy, to name but a few. (It also considers who has paid into the re-election kitty and in what amount. If you want to be the first person to point out that the system is imperfect and contains elements of corruption, you're too late.) In order to legally do what she did, which is make the songs available to anyone with access to an internet connection, Thomas would have had to negotiate and pay for a fixed-price perpetual license for unlimited worldwide distribution of those songs. What price would the record companies have negotiated for that? Congress thought it over and came up with the wide range of $750-$150K and left it to the jury to fix a specific price in specific cases.
There are demonstrably songs for which such a license would be worth more than $150K, and songs for which $750 would be ludicrously high. However, Congress established that range to achieve a range of policy goals. Because those are statutory, meaning that they are specified in the statute, they are not subject to the challenges that a punitive damages award might draw. Comparisons to Exxon are misplaced. Because the money is not paid to the government, references to the 8th Amendment's prohibition against "excessive fines" is likewise unavailing.
If you want the Supremes, or any other court, to overturn an award of *statutory damages*, you must prevail on one of two points. First, you could successfully argue that there was abuse of discretion. For various technical reasons, this will not work. Second, you could argue that Congress erred in setting the bounds on damages. In that case, you must argue for having judges rewrite the law or do what postings in other /. forums would decry as "legislating from the bench." Those are the choices.
When you say "own", people may assume that this is a copyright thing. It's not. In Feist v. Rural, the US Supreme Court ruled 9-0 that facts cannot be copyrighted (owned). This database is just a collection of facts, hence not subject to copyright. It's basically exactly like the case in Feist v. Rural in which the parties were fighting over the list of names in the white pages of a phone book. For those who like legalese, try http://www.law.cornell.edu/copyright/cases/499_US_340.htm.
That's why these guys are coming at it with contract law instead of copyright. They're telling libraries that the contract they signed to get the data controls what the libraries can do with the data. The contract apparently says, or the data provider wants people to believe that it says, that libs can use the data themselves, but cannot transfer it.
Patents can be held by entities besides individuals because awful things happen otherwise.
Assume that I'm a small businessman and I have an idea for something that some lawyer may some day figure out how to portray as dangerous. Your idea forces me to choose between getting a patent to protect myself from corporate predators who would otherwise steal my idea and incorporating to protect myself from lawsuits arising from the use of my idea. If I get the patent, I can't hold it as a corporation. If I incorporate, I can't hold the patent.
As a small businessman, I go to a bank and ask for a loan and offer my patent as part of the collateral. The bank then asks itself what will happen if I default on the loan. The bank will not be able to hold the patent. The bank can sell the patent only to another individual, which is a pretty small and funds-constrained market. The bank will severely discount the value of my patent and my business will suffer greatly as a result if I can find the capital to form the business at all.
Under this scheme, can a corporation license a patent? Can it exclusively license a patent? If not, who's going to come up with the cash necessary to bring an idea to commercialization? In most cases, nobody. What if they can? What is the practical difference between a corporation owning a patent versus a corporation getting an exclusive perpetual lease on the rights conferred by the patent? No difference. There is no difference between XYZ Corp. holding a patent compared with XYZ Corp. buying sole rights to practice the patent and litigate against others who do likewise.
So limiting patent ownership to individuals hurts those individuals and their businesses while doing nothing to constrain corporations.
I was at Control Data Corporation when Our Glorious Leader (Bill Norris) announced that our new mission statement (though this was well before it became trendy to have mission statements) was "Profitably solving society's problems." It made us all proud to be associated with that company.
(For the younger people reading this who may not remember CDC, Control Data Corporation used to be a viable computer company, but then it split the attention of its execs between running a business, which they knew how to do, and solving society's problems, which apparently they did not. Then it died.)
Although the poster referred directly to trademark, the sorts of things he discussed are typically covered under copyright law. Trademark exists to prevent confusion among consumers about the source or quality of goods. In the cases he discussed, the use of the material would not have caused confusion. In fact, those uses would have reinforced the correct notion of the origin of the goods discussed.
;-)
Copyright law, on the other hand, exists to give the author or creator of a creative work the right to control its use and dissemination. The portion of the original post on which I commented seemed to be primarily concerned with those things and so I gave the poster the benefit of the doubt and presumed that he meant to switch the topic to copyright but did not explicitly say so. If I was wrong then please treat my post as if I had first told the poster that he was wrong to ascribe those things to trademark law and then gone on to tell him that he was also wrong under copyright.
>Even magazines doing reviews of vehicles need the permission of the maker
That is incorrect. Chapter 17, section 107 of the United States code clearly states that "the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
Here, your example is perfectly on point with 17 USC 107. The review would be criticism, comment, and news reporting at a minimum, and arguably teaching.
>they CAN prevent an organization (in this case a car club) from printing, selling, (and thus profiting) from those images without their permission.
This is also incorrect, but not as egregiously. 17 USC 107 distinguishes commercial and noncommercial ventures as one of the factors in determining whether a particular use is fair use. However, in this case even the Red Cross (a nonprofit) could run afoul of the law by printing the calendar because of "the amount and substantiality of the portion used in relation to the copyrighted work as a whole". That means that if they print a pic of the entire car, that fact counts against them. Speaking of factors that count against them, 17 USC 107(4) raises the consideration of "the effect of the use upon the potential market for or value of the copyrighted work." Here, that means that Black Mustang Club is reducing the value of the design because nobody is going to buy a Black Mustang Club calendar and also buy a calendar from Ford. (Black Mustang Club would counter that they are raising the value of the Mustang by printing the calendar, but their claim is speculative whereas Ford's claim of reduction in the sale of Ford calendars is pretty solid. Judges don't like speculation.)
The law is not particularly unclear on this one. Ford is right, Black Mustang Club is wrong. You can read on for details if you want, but that's how this one comes down.
... art reproduction ... or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
... diagrams, models, and technical drawings.
... for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research, is not an infringement of copyright.
We start with 17 USC 101 (chapter 17, section 101 of the United States Code): A "derivative work" is a work based upon one or more preexisting works, such as a
Here, the Black Mustang Club (BMC) intends to make what is legally an art reproduction of Ford's artistic design.
OK, but, no, really? Yes, really. 17 USC 101 goes on to state: "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art
Here, the Mustang is a 3D word of applied art. It is also derived from Ford's diagrams, models, and technical drawings, so it is itself a derivative work. There are other ways to go at it, but the net-net is that Mustang is covered by 17 USC.
But it's a car! 17 USC cares nothing about that: Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
That's legalese for "if you can separate the art from the function, say by taking an artistic pic of it and putting it on a calendar, it's covered."
OK, fine, but this is fair use, right? Wrong. 17 USC 107 is clear on this point: the fair use of a copyrighted work, including such use by reproduction in copies
This is a pure commercial venture, end of story.
Ford is within its rights. As to whether it's out of its mind... that's not covered by 17 USC.
You sell OSS the same way you sell to anyone else: you sell to people who want to buy because they value what you offer.
There's not necessarily a lot of overlap between people who need financial software and people who know how to build and validate software that they downloaded from the net. Those people value software that works out-of-the-box. Give it to them and charge them for it. There's also not a lot of overlap between people who treat their money as if it were important and people who entrust their financial data to an unknown app from a provider they can't identify. So be the known, trusted source for a known, documented app and charge people for it.
Be sure to make it possible for people to do what you want them to do. If you're going to make it open source with the idea that others will pick it up and make improvements, thoroughly document what's there, how to build it, how to give changes back, how those changes will be moderated, what you'll do when two people submit conflicting changes, and all of the other stuff that's required for an ongoing open source project to which people will contribute.
By the way, there's a lot of open source out there, but not nearly as many open source developers. If you've got an app in which you yourself are no longer interested, you don't necessarily have the next million-developer piece of software sitting on your disk. No disrespect intended; I'm just saying that you may want to do a reality check before you get too far into this.