Please post the text of the OEM version of the EULA (ie. the one that Lenovo sells) where it says you can return the software. The version I have seen says:
By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit.
"Contact the manufacturer to determine their policy" in no way equates to "you are entitled to get a refund for a portion of your purchase price". Is that really so hard to understand?
No, the EULA states to you must ask the manufacturer what the return or credit policy is. Lenovo says the policy is return the laptop. That fulfills the EULA, and makes the guy whole (he is not out anything). If Lenovo said the policy was 'too bad, you bought it, no refunds' then the guy would have a claim. What the guy wants to do is unilaterally redefine the terms of the sale, from hardware+OS to hardware only, and Lenovo is under no obligation to honor a one-sided deal like that.
No, he isn't. Nowhere have I seen it claimed that Lenovo wouldn't live up to the obligation. The obligation says if you don't agree to the terms, return the software. If he returns what Lenovo sold him (the laptop), they will refund his money, and the obligation is satisfied. What he wants to do is unilaterally redefine the terms of the sale (to say it was hardware only, not hardware+OS), which Lenovo is under no obligation to honor.
That is true, and I did not say anything contrary to that. What I am objecting to is the notion that somehow you have a right to FORCE a manufacturer to make a product by suing him. If you don't want the product as offered, don't buy it. If you want to make a point, buy it and return it saying 'I don't agree with the EULA, so you lost a sale'. Suing someone for not offering a product you want to buy is just asinine.
And since he bought 'the software' in the form of an image on a disk in a laptop, that is how he should return it to the retailer, and they will refund his money.
And if he doesn't like the product he purchased, he can return it for a full refund. But that is not what he is doing - he is trying to force the manufacturer to change the product to his liking, which they have no obligation to do.
A protected computer is defined very precisely in the law:
(2) the term "protected computer" means a computer-
(A) exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; or
(B) which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;
In other words, your home computer is definitely NOT a 'protected computer'. Similarly, the computer that hosts/. is not protected.
The computers he was convicted of accessing without authorization were the computers at the banks, etc where he opened accounts. If he did ANY online transactions on those computers, he accessed without authorization, because any authorization he had was based on fraud.
"Protected computer" means protected by the law, not technical measures. The computers that are protected by the law are mostly government and financial institution computers. Therefore the computers he was convicted of accessing without authorization are the ones at the banks, etc where he committed the fraud, not the computers he used to get the information from. Even if he had valid account numbers, password, etc he still did not have authorization, because any authorization was based on fraud.
I don't see how a prompt replacement with no NDA would be no skin off their noses. Sure, that ONE instance may not cost them much. But can you imagine how many idiots are out there who would then look at their scratched, barely-charging iPods and think 'all I have to do is make it explode and I get a new one FREE'? Then there would be an article about how Apple was being irresponsible by forcing these idiots to perform a dangerous stunt just to get a new iPod, so why don't they just give anyone a free one anytime they ask for it.
In a perfectly competitive market where the only competition is price, which is clearly not the case here (or anywhere else in real life). Once you add in all the other stuff that they are using to compete (coverage, phones, plans, rollover, marketing, etc) that neat little formula goes right out the window.
There has been no evidence of cartels or collusion in the wireless industry. What there is evidence of is that all the carriers have decided, for themselves, that $0.20 per text message is the price (currently) where they maximize their profit. In order to say that there is some sort of collusion, you must show that at least one of the carriers could increase their profits (at the expense of the other carriers) by dropping the price of a text message, that the carrier knows this, and that the carrier has not done it. IF that were the case, then there may be an argument that they had colluded or formed a cartel, and made an agreement that no-one would drop the price.
If we assume for a moment that there is no collusion, what would cause a carrier to drop to price of a text message? How would that benefit them?
Finally, what do you think the wireless landscape would look like if in fact there were really no competition? What would the price of a text message be? Would there be any 'one price' plans? Would there be any rollover minutes? Would there be any same carrier free calls?
What you ascribe to greed and collusion is really nothing more than free market capitalism. It is the obligation of every business to try to maximize it's profits (that is why the shareholders invested in it). So let's say you are a carrier, and you have your text messages priced at $0.10, and you are making a certain profit on that. Now, you want to increase your profit - how do you do it? You could drop your price to $0.05, and hope to sell more than twice as many messages, but that would actually lower your profit, because you would need more infrastructure. Or, you could raise the price to $0.20, and not care if you lose some customers, as long as you still sell at least half as many messages. The next problem of course, is that if you drop your price to $0.05, your competitors are free to do the same (competition and all that), so your chances of actually increasing your sales by 2x are vanishingly small. Now, here is where the free market comes into play: if you raise your price, and you still have customers, your competitors can look at that and say 'damn! the market will bear a price at least 2x what I am now charging - I will raise my price too, and increase my profit'. If your competitor does NOT raise his price, he is not fulfilling his obligation to his shareholders. There is no collusion involved.
People on/. always act as if free markets and competition will drive prices down. Actually, they will drive prices to what the market will bear.
And remember, we are not talking something required for life (like bread and water), or even something crucial like oil, we are talking about the price of a freaking text message! There is no need for government regulation (unless you are saying you want to government to regulate the price of everything).
The states are completely free to do whatever they want (with regards to texting). All they need to do is say 'we don't want your money'. Is it a terrible abuse of your power to decide who to donate money to based on some criteria you set up?
OK, but the original court and 14 appeals have all found that he DOES have the ability to comply, and that his claims otherwise are 'completely not credible'.
Juries only make decisions of fact when there is a reasonable dispute as to what the facts are. In this case (contempt), there are only two facts: he was ordered to pay $2.5M, and he did not pay $2.5M. The only possible dispute he could present to those facts are: I was not ordered to pay it, or I did pay it. Neither could reasonably be found to be true, so there is no need for a jury.
And no, "I can't pay it" is not a dispute of those facts. That is a dispute of the original trial, not the contempt. And he has tried 14 appeals, at both the state and federal levels, and every one failed, so you can't really say that the legal process broke down somewhere.
Scientists, engineers, and software developers WHO WORK FOR A COMPANY don't have that luxury. Instead, they have the luxury of getting paid (at least for a time) whether or not they produce anything of value. For that exchange, the company gets the 'luxury' of retaining the rights. In almost no cases do the end customers get the rights to whatever they purchase.
Scientists, engineers, and software developers who 'freelance' do indeed get to keep the rights to their works.
Photographers who work for a company (eg Sears, Owen Mills, etc) do not keep the copyrights to their works - the company does.
Photographers who freelance get to keep their rights
There is no double-standard here. Quit trying to create one.
In every field, it is the people who are funding the entire creative process (salaries, equipment, etc), even when they are unsure whether the final result will be salable, who get to keep the rights. People who only wish to pay after they see the final product do not get the rights. If you want to get the rights to a photographers work, contract with him for a specified period of time and provide him with the equipment, staff, etc he needs, and negotiate a price (paid up-front). You may get lucky and there is a fantastic shot you now own. You may be unlucky and there is not one good shot in the bunch.
Where does copyright guarantee you to get paid? It does not. All copyright does is say that, as the legal owner of a copyright, you, and no-one else, gets to control how that work is distributed. So if I create a work, I can say 'here is what I have to offer. If you want it, here are my terms'. If you don't like the terms, you can ask me if I am willing to negotiate different terms. If you still don't like the terms, you can't use the work.
What legal principle, or even general concept of fairness, gives you the right to usurp my rights? It can easily be shown how I am harmed by losing my right. Can you possibly show any harm to anyone by me retaining my right?
Now for the dreaded analogy: is it OK with you if I wait until you leave for work, then go in and use your house for the day? If not, why? You haven't lost anything except your property rights, which is apparently acceptable. Wouldn't it be beneficial to society if we 'weakened' property rights to say anyone who wants somewhere to stay can use anyones house. If they are feeling generous, maybe they will make a donation to you. If not, too bad.
I don't know that the 360 of PS3 can be marketed to the same crowd as the Wii. At the very least, there is the physical box itself. Everything about the 360 screams 'young male'. It is big, loud, hot, and has a design that yells look at me. It also takes a lot of energy (around 180 watts). The Wii, on the other hand, is barely larger than the disk slot, and takes 1/10th the power. We have had just about every console since the Atari 2600, and the Wii is the first one my wife wants in the living room, just for aesthetic reasons.
But how many times does someone take their car in for an 'engine problem' and the repair action comes back 'fixed brakes'? Now, how many times does a reported 'computer problem' have a repair action that mentions 'hard disk'? A very large percentage of computer problems are going to come back with some variation of 'wiped hard disk and reinstalled', 'formatted hard disk and installed OS', 'reimaged hard drive', etc. None of these problems have anything to do with the hard drive being broken, but the hard drive certainly seems to be the 'fix' to very many problems. So most of the time, when two friends are talking, and one is complaining about their computer getting slow, etc, the other one is going to say 'I had that problem - it was something with the hard disk'.
Then you're not developing free (gratis) software. You are developing paid-for software that has one paying customer (your boss) who decided others can also have it (gratis).
The purpose of Deep Blue was not to show an advance in AI. Deep Blue was to show that certain problems can be handled by parallel processing, and that IBM knew how to construct the devices and programming to support that environment. Want to see where the advance is now? Have a look at the Top 500 list.
Nowhere in this legislation does it say anything about proxy use by itself being a problem. In fact, nowhere does it even mention proxy. What it does say, is that IF YOU ARE CONVICTED of one of 12 specific crimes, they can use 'level of sophistication' to increase your sentence. Simple proxy use might show a little bit of sophistication. Setting up a botnet may show a whole lot of sophistication.
I think if you are behind a proxy you 'didn't know you were using' when you committed identity theft, bank fraud, or accessed a federal or financial computer without authorization, that comes under the category of 'too bad'.
It is not just 'a crime'. It is one of 12 specific crimes, all dealing with identity theft, bank fraud, and unauthorized access of federal or financial computers.
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Please post the text of the OEM version of the EULA (ie. the one that Lenovo sells) where it says you can return the software. The version I have seen says:
By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit.
"Contact the manufacturer to determine their policy" in no way equates to "you are entitled to get a refund for a portion of your purchase price". Is that really so hard to understand?
No, the EULA states to you must ask the manufacturer what the return or credit policy is. Lenovo says the policy is return the laptop. That fulfills the EULA, and makes the guy whole (he is not out anything). If Lenovo said the policy was 'too bad, you bought it, no refunds' then the guy would have a claim. What the guy wants to do is unilaterally redefine the terms of the sale, from hardware+OS to hardware only, and Lenovo is under no obligation to honor a one-sided deal like that.
No, he isn't. Nowhere have I seen it claimed that Lenovo wouldn't live up to the obligation. The obligation says if you don't agree to the terms, return the software. If he returns what Lenovo sold him (the laptop), they will refund his money, and the obligation is satisfied. What he wants to do is unilaterally redefine the terms of the sale (to say it was hardware only, not hardware+OS), which Lenovo is under no obligation to honor.
That is true, and I did not say anything contrary to that. What I am objecting to is the notion that somehow you have a right to FORCE a manufacturer to make a product by suing him. If you don't want the product as offered, don't buy it. If you want to make a point, buy it and return it saying 'I don't agree with the EULA, so you lost a sale'. Suing someone for not offering a product you want to buy is just asinine.
And since he bought 'the software' in the form of an image on a disk in a laptop, that is how he should return it to the retailer, and they will refund his money.
And if he doesn't like the product he purchased, he can return it for a full refund. But that is not what he is doing - he is trying to force the manufacturer to change the product to his liking, which they have no obligation to do.
Sure. The info about the definition of protected computer came from Fraud and related activity in connection with computers section e.2
A protected computer is defined very precisely in the law:
(2) the term "protected computer" means a computer-
(A) exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; or
(B) which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;
In other words, your home computer is definitely NOT a 'protected computer'. Similarly, the computer that hosts /. is not protected.
The computers he was convicted of accessing without authorization were the computers at the banks, etc where he opened accounts. If he did ANY online transactions on those computers, he accessed without authorization, because any authorization he had was based on fraud.
"Protected computer" means protected by the law, not technical measures. The computers that are protected by the law are mostly government and financial institution computers. Therefore the computers he was convicted of accessing without authorization are the ones at the banks, etc where he committed the fraud, not the computers he used to get the information from. Even if he had valid account numbers, password, etc he still did not have authorization, because any authorization was based on fraud.
I don't see how a prompt replacement with no NDA would be no skin off their noses. Sure, that ONE instance may not cost them much. But can you imagine how many idiots are out there who would then look at their scratched, barely-charging iPods and think 'all I have to do is make it explode and I get a new one FREE'? Then there would be an article about how Apple was being irresponsible by forcing these idiots to perform a dangerous stunt just to get a new iPod, so why don't they just give anyone a free one anytime they ask for it.
In a perfectly competitive market where the only competition is price, which is clearly not the case here (or anywhere else in real life). Once you add in all the other stuff that they are using to compete (coverage, phones, plans, rollover, marketing, etc) that neat little formula goes right out the window.
There has been no evidence of cartels or collusion in the wireless industry. What there is evidence of is that all the carriers have decided, for themselves, that $0.20 per text message is the price (currently) where they maximize their profit. In order to say that there is some sort of collusion, you must show that at least one of the carriers could increase their profits (at the expense of the other carriers) by dropping the price of a text message, that the carrier knows this, and that the carrier has not done it. IF that were the case, then there may be an argument that they had colluded or formed a cartel, and made an agreement that no-one would drop the price.
If we assume for a moment that there is no collusion, what would cause a carrier to drop to price of a text message? How would that benefit them?
Finally, what do you think the wireless landscape would look like if in fact there were really no competition? What would the price of a text message be? Would there be any 'one price' plans? Would there be any rollover minutes? Would there be any same carrier free calls?
What you ascribe to greed and collusion is really nothing more than free market capitalism. It is the obligation of every business to try to maximize it's profits (that is why the shareholders invested in it). So let's say you are a carrier, and you have your text messages priced at $0.10, and you are making a certain profit on that. Now, you want to increase your profit - how do you do it? You could drop your price to $0.05, and hope to sell more than twice as many messages, but that would actually lower your profit, because you would need more infrastructure. Or, you could raise the price to $0.20, and not care if you lose some customers, as long as you still sell at least half as many messages. The next problem of course, is that if you drop your price to $0.05, your competitors are free to do the same (competition and all that), so your chances of actually increasing your sales by 2x are vanishingly small. Now, here is where the free market comes into play: if you raise your price, and you still have customers, your competitors can look at that and say 'damn! the market will bear a price at least 2x what I am now charging - I will raise my price too, and increase my profit'. If your competitor does NOT raise his price, he is not fulfilling his obligation to his shareholders. There is no collusion involved.
People on /. always act as if free markets and competition will drive prices down. Actually, they will drive prices to what the market will bear.
And remember, we are not talking something required for life (like bread and water), or even something crucial like oil, we are talking about the price of a freaking text message! There is no need for government regulation (unless you are saying you want to government to regulate the price of everything).
The states are completely free to do whatever they want (with regards to texting). All they need to do is say 'we don't want your money'. Is it a terrible abuse of your power to decide who to donate money to based on some criteria you set up?
OK, but the original court and 14 appeals have all found that he DOES have the ability to comply, and that his claims otherwise are 'completely not credible'.
Juries only make decisions of fact when there is a reasonable dispute as to what the facts are. In this case (contempt), there are only two facts: he was ordered to pay $2.5M, and he did not pay $2.5M. The only possible dispute he could present to those facts are: I was not ordered to pay it, or I did pay it. Neither could reasonably be found to be true, so there is no need for a jury.
And no, "I can't pay it" is not a dispute of those facts. That is a dispute of the original trial, not the contempt. And he has tried 14 appeals, at both the state and federal levels, and every one failed, so you can't really say that the legal process broke down somewhere.
Scientists, engineers, and software developers WHO WORK FOR A COMPANY don't have that luxury. Instead, they have the luxury of getting paid (at least for a time) whether or not they produce anything of value. For that exchange, the company gets the 'luxury' of retaining the rights. In almost no cases do the end customers get the rights to whatever they purchase.
Scientists, engineers, and software developers who 'freelance' do indeed get to keep the rights to their works.
Photographers who work for a company (eg Sears, Owen Mills, etc) do not keep the copyrights to their works - the company does.
Photographers who freelance get to keep their rights
There is no double-standard here. Quit trying to create one.
In every field, it is the people who are funding the entire creative process (salaries, equipment, etc), even when they are unsure whether the final result will be salable, who get to keep the rights. People who only wish to pay after they see the final product do not get the rights. If you want to get the rights to a photographers work, contract with him for a specified period of time and provide him with the equipment, staff, etc he needs, and negotiate a price (paid up-front). You may get lucky and there is a fantastic shot you now own. You may be unlucky and there is not one good shot in the bunch.
Where does copyright guarantee you to get paid? It does not. All copyright does is say that, as the legal owner of a copyright, you, and no-one else, gets to control how that work is distributed. So if I create a work, I can say 'here is what I have to offer. If you want it, here are my terms'. If you don't like the terms, you can ask me if I am willing to negotiate different terms. If you still don't like the terms, you can't use the work.
What legal principle, or even general concept of fairness, gives you the right to usurp my rights? It can easily be shown how I am harmed by losing my right. Can you possibly show any harm to anyone by me retaining my right?
Now for the dreaded analogy: is it OK with you if I wait until you leave for work, then go in and use your house for the day? If not, why? You haven't lost anything except your property rights, which is apparently acceptable. Wouldn't it be beneficial to society if we 'weakened' property rights to say anyone who wants somewhere to stay can use anyones house. If they are feeling generous, maybe they will make a donation to you. If not, too bad.
I don't know that the 360 of PS3 can be marketed to the same crowd as the Wii. At the very least, there is the physical box itself. Everything about the 360 screams 'young male'. It is big, loud, hot, and has a design that yells look at me. It also takes a lot of energy (around 180 watts). The Wii, on the other hand, is barely larger than the disk slot, and takes 1/10th the power. We have had just about every console since the Atari 2600, and the Wii is the first one my wife wants in the living room, just for aesthetic reasons.
But how many times does someone take their car in for an 'engine problem' and the repair action comes back 'fixed brakes'? Now, how many times does a reported 'computer problem' have a repair action that mentions 'hard disk'? A very large percentage of computer problems are going to come back with some variation of 'wiped hard disk and reinstalled', 'formatted hard disk and installed OS', 'reimaged hard drive', etc. None of these problems have anything to do with the hard drive being broken, but the hard drive certainly seems to be the 'fix' to very many problems. So most of the time, when two friends are talking, and one is complaining about their computer getting slow, etc, the other one is going to say 'I had that problem - it was something with the hard disk'.
Then you're not developing free (gratis) software. You are developing paid-for software that has one paying customer (your boss) who decided others can also have it (gratis).
The purpose of Deep Blue was not to show an advance in AI. Deep Blue was to show that certain problems can be handled by parallel processing, and that IBM knew how to construct the devices and programming to support that environment. Want to see where the advance is now? Have a look at the Top 500 list.
Nowhere in this legislation does it say anything about proxy use by itself being a problem. In fact, nowhere does it even mention proxy. What it does say, is that IF YOU ARE CONVICTED of one of 12 specific crimes, they can use 'level of sophistication' to increase your sentence. Simple proxy use might show a little bit of sophistication. Setting up a botnet may show a whole lot of sophistication.
I think if you are behind a proxy you 'didn't know you were using' when you committed identity theft, bank fraud, or accessed a federal or financial computer without authorization, that comes under the category of 'too bad'.
It is not just 'a crime'. It is one of 12 specific crimes, all dealing with identity theft, bank fraud, and unauthorized access of federal or financial computers.