You miss one important point: There is no federal common law. So the only way federal law will follow California law is with a statute. Even then, it would have to involve interstate commerce. Since non-compete agreements usually have to be limited in geographic scope to be enforceable, the law would basically have application only near interstate borders.
Why would a matter of California state law with no constitutional implications go to the U.S. Supreme Court? The California Supreme Court is the ultimate authority on California law, not the U.S. Supreme Court.
but if he had said the same on a matter of federal law his reputation would not make him right.
Quite true. But I promise you, Hugo Black would not have said this about federal law. He was adamant about prohibiting the federal government from doing things the Constitution didn't expressly permit it to do.
I love it. Only on Slashdot can J. Random Poster (who in all probability has never even read the Constitution) call the great legal scholar and civil libertarian Hugo Black "uncommonly misinformed" on matters of civil liberties.
I've already explained this in response to another poster, but to make it easy on you: The Constitution gives the FEDERAL government only the limited powers expressly granted it. It does not, for the most part, tell the States what they can and can't do (or at least it didn't when it was ratified; with the 14th Amendment, it does that more than it used to). Since the law at issue in Griswold was a STATE law, the only justifiable way to strike it down would be if there were some express prohibition in the Constitution. It's basically the exact reverse of the Federal situation. Federal: You can't do it unless we say you can. State: You can do it unless we say you can't.
I was in a similar situation so if I were you I would hire an intellectual property rights attorney. This person would also probably have helpful advice.
Ooh! Pick me! Pick me! That would be great to be able to tell the firm "I have to post on Slashdot. It's where my clients come from."
The Constitution told the Federal government what it could do and said it couldn't do anything else. It had very few limitations on what the States could do. In fact, it was always intended that the states would be the primary guardians of civil rights, and that they would be primarily responsible for making and enforcing laws. One of the big fears of the Anti-Federalists was that the federal government would get too powerful, and start telling the states what to do, thus infringing on their rights to govern themselves (investing the power, instead, in a large, centralized body where the people of the states would have very attenuated influence).
You're right, the government serves the people. It doesn't serve the whims of dictatorial judges. That means that the people get to make rules that govern how they live. That means they get to make rules that shape their society. Invariably, there will be those who do not like those rules. Invariably, some of those laws will be stupid and/or unfair. Unfortunately, that is the cost of government. The beauty, especially in a republican government, is that over time, those things tend to correct themselves because people get tired of unfair, unjust, and stupid laws. All without judges sticking their noses in things.
Also invariably, there will be times when the government will step outside those bounds. That is why the states passed their own bills of rights in their own constitutions---to limit the power of the state government. That's why we placed a Bill of Rights in the Constitution (which did not apply to the states at all until the 14th Amendment was ratified). But even today, the Bill of Rights does not wholesale apply to the states. In fact, one of the reasons I like Hugo Black was he advocated "complete incorporation," meaning that the entire Bill of Rights should apply to the states. But he also recognized that the Bill of Rights was not license for judges to substitute their own judgment for legislatures'. It had very specific limits. When governments crossed the line, Hugo Black was the first to stand up and tell them "No." But he also respected the right of the people to govern themselves within those limits. That is what is lost on most of the Court today.
As you correctly noted, the word "privacy" does not appear anywhere in the Constitution. What you are talking about is what is sometimes called a "reasonable expectation of privacy," and is largely non-controversial (at least it's not controversial that it exists; the extent to which it exists sometimes is). It means that the government can't do certain things without sufficient cause.
The controversial "right to privacy" (which I'll tell you up front I'm not a fan of) is something the Court found in the "penumbras" of the fourth, ninth and fourteenth amendments in Griswold v. Connecticut. And it has nothing to do with the government searching your home. It has to do with whether, and to what extent, the Supreme Court can import into the Constitution, via the 14th Amendment due process clause, certain rights that existed in English and American common law (including a vague, ill-defined "right to privacy") in order to overturn state and federal statutes. The current jurisprudence has basically devolved into "if you can convince 5 judges that the law is not fair, it violates the common law right to privacy, and is therefore unconstitutional." This has led to very inconsistent, unprincipled jurisprudence that depends more on the judges' personal whims than what the Constitution actually says.
The way it should be is the Court should leave states alone to make laws---even stupid ones---regardless of whether they personally agree with them. For example, the law in Griswold was a law passed by the Roman Catholic majority nearly 100 years earlier that forbade use of contraceptives. In his dissent, Justice Potter Steward (correctly) called it an "uncommonly silly" law, but (correctly) concluded that it was nevertheless constitutional. Justice Hugo Black, my favorite judge of all time, in his dissent commented, "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional."
As for your panic-stricken rant about warrantless wiretapping and abuse of executive power, that is absolutely irrelevant to this issue. No government entity, state or federal, is immune from suit for violating the Constitution. You usually can't get any money from them, but you can sue them to stop violating your rights.
You mind telling them that?
Dear State and Federal Governments:
You are not entitled, privileged, allowed, or in any way permitted to violate the constitutionally-guaranteed rights of your citizens. If you do, courts might tell you to cut it out.
Sincerely,
A patent attorney who posts under the alias "Zordak" on slashdot and has no authority to tell you what to do because he's not a federal judge (yet).
Given this "development"? This is not a "development." The concept of Sovereign Immunity is older than the Constitution, and was so far assumed that nobody even bothered to put it in. OF COURSE you can't sue the Government. In fact, the early Americans were shocked when there was some question raised about how it applied to the states, and passed the Eleventh Amendment to ensure that the states had sovereign immunity too.
As for your panic-stricken rant about warrantless wiretapping and abuse of executive power, that is absolutely irrelevant to this issue. No government entity, state or federal, is immune from suit for violating the Constitution. You usually can't get any money from them, but you can sue them to stop violating your rights.
This is absolutely a non-story. It is not news that the US has sovereign immunity.
This hardly even warrants detailed analysis, but first, that string of digits is probably too short to copyright. Second, since it is apparently a core requirement to the GIF format, it is merely functional, and therefore probably lacks the creativity necessary to be a copyrightable work. Third, even if it were copyrightable, the fact that it appears in every single GIF ever made is wholly irrelevant to your copyright unless the authors of those GIFS copied it from your copyrighted work. If they wrote it themselves, it is not a problem. For example, at least in theory, I could be living on a cave in Mars, and write a book called "Harry Potter and the Sorcerer's Stone," and it could contain the exact same words in the exact same order as J.K. Rowling's book, and it would not infringe Rowling's copyright (in reality, if you're planning on making this argument, good luck getting past the summary judgment stage on infringement).
It does have something to do with our government in concert with the 9th amendment (the constitution's red-headed step child).
If by that you mean "James Madison must be rolling over in his grave to see the United States Supreme Court use the 9th Amendment as rationale to overturn a law duly passed by a State legislature because certain jurists find it personally offensive, when he thought he was limiting the tyranny of the federal government over the states" then I whole-heartedly agree with you.
The Constitution of course instructs the government to protect us from robbery, murder and all kinds of other deprivations of our rights.
What Constitution? Certainly not the United States Constitution. The United States Constitution gives the federal government very limited powers, and we even added a 10th Amendment to tell them explicitly, "If we don't say you can do it here, you can't do it." Now, I'll grant you that FDR used the Constitution as a butt wipe (and threatened to stack the Court when they rightly pointed out that he was doing so), so that hardly means anything anymore, but it is there. I'm not aware of any language that tells the federal government to protect me from murder and robbery or any deprivation of rights. Those are traditionally reserved to the states.
In fact, even the 14th Amendment, which deals with racism, only works for governments. It doesn't apply to individuals. Federal civil rights legislation that affects individuals is based on the commerce clause (on the strained reasoning that ANYTHING you do affects interstate commerce, so the federal government can tell you what to do; there's even a case that upheld an FDR New Deal farm subsidy because a farmer who grew wheat on his own farm and used it himself on his own farm was engaging in interstate commerce).
Our rights are inalienable. Not just inalienable by the government, but by anyone. We create governments to protect us from that alienation, even while the governments we create are themselves not empowered, and often explicitly prohibited to be sure there's no confusion, to deprive us of those rights. But are created with the power to protect our rights.
I'm not aware that the word "inalienable" appears anywhere in the Constitution (if you know of an instance, please point me to it). That word does appear in the Declaration of Independence, which is often confused with the Constitution (often by people who have read neither). But the Declaration of Independence has nothing to do with our system of government. It was a brilliant document, but its purpose was to declare a break with England. The Constitution is a far more conservative document.
The truth is that most of your rights are alienable, and some of those that are not may at least be contractually abridged to some degree. Slavery is probably inalienable, but I can contractually bind myself to work for an unfair wage as long as it meets the statutory minimum wage. Off the top of my head and without looking up any cases, the ones I would suspect that are the closest to truly inalienable are free exercise of religion, cruel and unusual punishment, and the right to vote if over 18 (if you can think of more, good for you).
But other than that, people contract away rights all the time. For example, the Seventh Amendment gives you a right to a jury trial in federal courts, but binding arbitration is very, very common (and in fact, often encouraged by courts for purposes of efficiency). You can contractually agree to not own a gun. You can permit a government to take your property without just compensation. You can voluntarily permit a search and seizure without probable cause. You can voluntarily testify at your own criminal trial. You can even voluntarily permit troops to be quartered in your home in times of peace. And so on...
Well, since the article points out that the women were, in fact, specifically named, and there were calls to rape and sodomize them, and at least one was specifically accused of having herpes, and the posts got so much attention that they were at the top of Google results for the women's names, I'd say this pretty much qualifies as direct. There's no slippery slope to worry about here. These guys should be prosecuted and should never be permitted to practice law.
Since Sprint operates in Canada, I wonder whether this can be taken as precedent in Canada as well. I'd be glad if it did.
No, my bet is that Canadian courts prefer to follow Canadian law (this isn't even U.S. law; it's California law). But with Justice Anthony Kennedy still on the bench, you can bet the U.S. Supreme Court will use Canadian law to interpret the U.S. Constitution.
Happens all the time. The judge has already decided her interpretation of the law (or even that there's insufficient evidence), but she sends it to the jury because a jury verdict is harder to overturn on appeal than a summary judgment. She was probably hoping that the jury would rule in favor of the customers, because it's less of a headache for her. They didn't, so she says, "Sorry, as a matter of law, this contract is not enforceable. So the jury's finding is moot, because it was based on the faulty assumption that the contract was enforceable." And since this is a state court, 7th Amendment doesn't apply, even if she had overturned the jury's finding. Like it or not, this is a very, very common occurrence.
It is expected for them to be ideologues in the same mold as their boss. It is an illegal and unacceptable criteria for career civil servants who, once they enter the ranks of civil service, are nearly impossible to get rid of unless they leave of their on accord.
Or the next President decides to fire him because he doesn't like the way he clips his toe nails, which he is perfectly free to do.
Wait a minute---you just told all the frothing, ill-informed Bush haters who have wholesale bought the Democrats' line about "politicizing" the DoJ (an agency of the highly-political Executive branch) that they don't understand Article II? And you got modded "Insightful"? On Slashdot? This must be some bizarre alternate universe.
But bravo anyway! I'm so tired of hearing this "politicization" line. There are plenty of legitimate complaints to lodge against Bush and the cut-taxes-and-still-spend Republicans in Congress, and plenty of issues open to serious, intelligent debate. This is not one of them.
My hope is that this gentleman wins. If he loses, he might be looking at several years of being treated like those folks at GITMO! And that's not something to look forward to.
I see you were going for the karma boost with the U.S. bashing, but looks like it didn't pay off this time. Please try again later.
And Gitmo? Seriously? If you're going to be a U.S. hater, at least say something credible. There is some legitimate debate to be had about whether it's fair to detain enemies captured on fields of battle in a place like Gitmo without due process, but that is wholly irrelevant to somebody who is going to be extradited according to treaty and tried in the courts with all of the constitutional due process protections that a citizen has. This guy will not end up in Gitmo. He'll spend a couple of years in Club Fed after he pleads out, then he'll be deported back to England.
The point of the patent system is not to benefit the inventor, but to benefit society. Often these activities are functionally equivalent, as rewarding inventors for genuinely innovative and clever inventions encourages similar activity in the future. Unfortunately, and the point you seem to be missing, is that under the current this is increasingly not the case. Granting a long term monopoly on a basic application of existing technology or processes in a newly developed field, or applied to a newly developed technology, (read: software patents) provides absolutely no benefit to society as a whole and as such is in direct opposition to the spirit, if not the letter, that the patent system was founded on.
I think what bothers you is obviousness (section 103) more than what is statutory subject matter (section 101). I could be wrong. Maybe you really think that there is no way that a software method, no matter how clever or innovative, could ever be proper subject matter for a patent. But at least recognize that there is a difference.
As for the purpose of patents, you are absolutely right that the purpose is to benefit society (you're wrong that I miss this point; IP is my bread and butter, so I'm pretty well tuned in to what it's all about). The point of my post, which you seemed to miss, is that a system that grants useful monopolies only to big players does not, in my opinion, truly promote the progress of science and useful arts.
Patents are just a generic tool, a tool that can be used by both small players and big business, mainly in proportion to their financial power. Patents in no way change the balance of power, except by adding huge overheads to everyone in society.
From your.sig, it appears that you either fundamentally misunderstand the theory of intellectual property (which is intentionally geared toward creating artificial scarcity by granting a limited monopoly), or you have a fundamentally socialist view of property. Either way, there is a major gap between us in one or both of understanding and philosophy, and I won't try to bridge it. But for the benefit of anybody else, I would like to point out a couple of issues with this.
Yes, patents are just a generic tool. I didn't say that they couldn't be used by both big guys and little guys. I said that what the USPTO is trying to do will ensure that the little guys lose their share. And no, it's not in proportion to their financial power. Very big companies have had to pay out hundreds of millions to little guys for patent infringement. If your patent is valuable enough, you'll be able to find an attorney to take it on contingency. Even my firm, which has a long-standing policy that we just don't take stuff on contingency, is starting to look at taking patent infringement cases on contingency because they're worth a lot.
For every small entrepreneur helped there are any number of industry monopolies and cartels locking out new players. It is disingenuous to claim that patents protect the little guy from big business. On average they do not, and to claim otherwise is dishonest.
That's not a bug, that's a feature. Patents are and always have been limited monopolies. The system doesn't ask how big you are. It just asks whether your invention is new, non-obvious and useful. And I never said patents only protect little guys from big guys. I said that proposed reforms would ensure that they no longer do.
Particularly when you consider how broken patents are on everything from simultaneous invention to inventions whose time has come, from crazy time limits to government bureaucracies acting as gatekeepers on all of technology, from guilty till proven innocent to even what an invention or new idea is.
Now you betray the real disconnect in your reasoning. Think about all the "patent trolls" you hear about; the ones that have you up in arms. What is the real problem? Is it that a little guy got a big judgment from a big guy? Is it that Microsoft or IBM lost a case? No, of course not. But you and many others on Slashdot conflate the issues. The real issue that most people have is that some troll hit up Big Blue or RIM or whoever for hundreds of millions of dollars on a patent that seems really obvious to you. I won't try to evaluate every single "troll" and determine whether their inventions are really obvious, or just obvious in hindsight. But change up the facts a little. Joe Inventor builds a working quantum computer. He takes it to Big Blue and says, "I have this working quantum computer. Can you help me manufacture it?" Big Blue analyzes the computer, tells Joe, "Sorry, we're not interested," sends him packing, and immediately starts building quantum computers on his design. Are you going to scream "TROLL" the minute he sues (I guarantee you, IBM will)? The real problem is not the tactics used by patent trolls. It's the fact that many of the inventions look obvious.
Fix obviousness, and I say let the NPEs be as aggressive as they please. Let them sue in the Eastern District of Texas. Let them ask for permanent injunctions. Let them collect hundreds of millions of dollars. If they have given the world technology we would not otherwise have, they deserve it.
But if we dilute patent protection across the board, the only way they have any value is if you have a
You must think our USPTO registration certificates also invest us with dark powers or something if you think we have that much power. Bush's cronies at the patent office have been working very hard to totally destroy the patent system, and we've been powerless to stop them. Last year, they passed a rule package that was retroactive and so draconian, every single patent attorney who commented on it said, "No, this is a bad idea." They passed it anyway, despite that fact that it was so far reaching that it was clearly statutorily invalid, and even constitutionally suspect. It cost our clients thousands of dollars to amend their already-filed applications to conform to the new rules. Then the rules were enjoined by a court at the eleventh hour (thankfully), and then we had to explain to our clients that all that work was for nothing.
If you never plan to invent anything, and want to ensure those who do invent have no recourse when their inventions are blatantly stolen by Big Business, then just lap up whatever those goons at the paten office dish out. But if you think there is any value to having a strong patent system to protect legitimate inventions (like the Framers of the Constitution did), take everything that comes down from the USPTO with a grain of salt---even seemingly "good" stuff like this.
Note that this post does not represent the opinion of my employer or anybody else except me.
Slashdot Mirror
You miss one important point: There is no federal common law. So the only way federal law will follow California law is with a statute. Even then, it would have to involve interstate commerce. Since non-compete agreements usually have to be limited in geographic scope to be enforceable, the law would basically have application only near interstate borders.
Why would a matter of California state law with no constitutional implications go to the U.S. Supreme Court? The California Supreme Court is the ultimate authority on California law, not the U.S. Supreme Court.
but if he had said the same on a matter of federal law his reputation would not make him right.
Quite true. But I promise you, Hugo Black would not have said this about federal law. He was adamant about prohibiting the federal government from doing things the Constitution didn't expressly permit it to do.
I love it. Only on Slashdot can J. Random Poster (who in all probability has never even read the Constitution) call the great legal scholar and civil libertarian Hugo Black "uncommonly misinformed" on matters of civil liberties.
I've already explained this in response to another poster, but to make it easy on you: The Constitution gives the FEDERAL government only the limited powers expressly granted it. It does not, for the most part, tell the States what they can and can't do (or at least it didn't when it was ratified; with the 14th Amendment, it does that more than it used to). Since the law at issue in Griswold was a STATE law, the only justifiable way to strike it down would be if there were some express prohibition in the Constitution. It's basically the exact reverse of the Federal situation. Federal: You can't do it unless we say you can. State: You can do it unless we say you can't.
I was in a similar situation so if I were you I would hire an intellectual property rights attorney. This person would also probably have helpful advice.
Ooh! Pick me! Pick me! That would be great to be able to tell the firm "I have to post on Slashdot. It's where my clients come from."
You better get busy if you're planning to go "live" 28 days before they turn on the LHC.
The Constitution told the Federal government what it could do and said it couldn't do anything else. It had very few limitations on what the States could do. In fact, it was always intended that the states would be the primary guardians of civil rights, and that they would be primarily responsible for making and enforcing laws. One of the big fears of the Anti-Federalists was that the federal government would get too powerful, and start telling the states what to do, thus infringing on their rights to govern themselves (investing the power, instead, in a large, centralized body where the people of the states would have very attenuated influence).
You're right, the government serves the people. It doesn't serve the whims of dictatorial judges. That means that the people get to make rules that govern how they live. That means they get to make rules that shape their society. Invariably, there will be those who do not like those rules. Invariably, some of those laws will be stupid and/or unfair. Unfortunately, that is the cost of government. The beauty, especially in a republican government, is that over time, those things tend to correct themselves because people get tired of unfair, unjust, and stupid laws. All without judges sticking their noses in things.
Also invariably, there will be times when the government will step outside those bounds. That is why the states passed their own bills of rights in their own constitutions---to limit the power of the state government. That's why we placed a Bill of Rights in the Constitution (which did not apply to the states at all until the 14th Amendment was ratified). But even today, the Bill of Rights does not wholesale apply to the states. In fact, one of the reasons I like Hugo Black was he advocated "complete incorporation," meaning that the entire Bill of Rights should apply to the states. But he also recognized that the Bill of Rights was not license for judges to substitute their own judgment for legislatures'. It had very specific limits. When governments crossed the line, Hugo Black was the first to stand up and tell them "No." But he also respected the right of the people to govern themselves within those limits. That is what is lost on most of the Court today.
They actually start smashing particles the next day. Which is Sept. 11. Oh, wait...
As you correctly noted, the word "privacy" does not appear anywhere in the Constitution. What you are talking about is what is sometimes called a "reasonable expectation of privacy," and is largely non-controversial (at least it's not controversial that it exists; the extent to which it exists sometimes is). It means that the government can't do certain things without sufficient cause.
The controversial "right to privacy" (which I'll tell you up front I'm not a fan of) is something the Court found in the "penumbras" of the fourth, ninth and fourteenth amendments in Griswold v. Connecticut. And it has nothing to do with the government searching your home. It has to do with whether, and to what extent, the Supreme Court can import into the Constitution, via the 14th Amendment due process clause, certain rights that existed in English and American common law (including a vague, ill-defined "right to privacy") in order to overturn state and federal statutes. The current jurisprudence has basically devolved into "if you can convince 5 judges that the law is not fair, it violates the common law right to privacy, and is therefore unconstitutional." This has led to very inconsistent, unprincipled jurisprudence that depends more on the judges' personal whims than what the Constitution actually says.
The way it should be is the Court should leave states alone to make laws---even stupid ones---regardless of whether they personally agree with them. For example, the law in Griswold was a law passed by the Roman Catholic majority nearly 100 years earlier that forbade use of contraceptives. In his dissent, Justice Potter Steward (correctly) called it an "uncommonly silly" law, but (correctly) concluded that it was nevertheless constitutional. Justice Hugo Black, my favorite judge of all time, in his dissent commented, "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional."
As for your panic-stricken rant about warrantless wiretapping and abuse of executive power, that is absolutely irrelevant to this issue. No government entity, state or federal, is immune from suit for violating the Constitution. You usually can't get any money from them, but you can sue them to stop violating your rights.
You mind telling them that?
Dear State and Federal Governments:
You are not entitled, privileged, allowed, or in any way permitted to violate the constitutionally-guaranteed rights of your citizens. If you do, courts might tell you to cut it out.
Sincerely,
A patent attorney who posts under the alias "Zordak" on slashdot and has no authority to tell you what to do because he's not a federal judge (yet).
There, how's that for you.
Given this "development"? This is not a "development." The concept of Sovereign Immunity is older than the Constitution, and was so far assumed that nobody even bothered to put it in. OF COURSE you can't sue the Government. In fact, the early Americans were shocked when there was some question raised about how it applied to the states, and passed the Eleventh Amendment to ensure that the states had sovereign immunity too.
As for your panic-stricken rant about warrantless wiretapping and abuse of executive power, that is absolutely irrelevant to this issue. No government entity, state or federal, is immune from suit for violating the Constitution. You usually can't get any money from them, but you can sue them to stop violating your rights.
This is absolutely a non-story. It is not news that the US has sovereign immunity.
This got modded insightful?
This hardly even warrants detailed analysis, but first, that string of digits is probably too short to copyright. Second, since it is apparently a core requirement to the GIF format, it is merely functional, and therefore probably lacks the creativity necessary to be a copyrightable work. Third, even if it were copyrightable, the fact that it appears in every single GIF ever made is wholly irrelevant to your copyright unless the authors of those GIFS copied it from your copyrighted work. If they wrote it themselves, it is not a problem. For example, at least in theory, I could be living on a cave in Mars, and write a book called "Harry Potter and the Sorcerer's Stone," and it could contain the exact same words in the exact same order as J.K. Rowling's book, and it would not infringe Rowling's copyright (in reality, if you're planning on making this argument, good luck getting past the summary judgment stage on infringement).
It does have something to do with our government in concert with the 9th amendment (the constitution's red-headed step child).
If by that you mean "James Madison must be rolling over in his grave to see the United States Supreme Court use the 9th Amendment as rationale to overturn a law duly passed by a State legislature because certain jurists find it personally offensive, when he thought he was limiting the tyranny of the federal government over the states" then I whole-heartedly agree with you.
The Constitution of course instructs the government to protect us from robbery, murder and all kinds of other deprivations of our rights.
What Constitution? Certainly not the United States Constitution. The United States Constitution gives the federal government very limited powers, and we even added a 10th Amendment to tell them explicitly, "If we don't say you can do it here, you can't do it." Now, I'll grant you that FDR used the Constitution as a butt wipe (and threatened to stack the Court when they rightly pointed out that he was doing so), so that hardly means anything anymore, but it is there. I'm not aware of any language that tells the federal government to protect me from murder and robbery or any deprivation of rights. Those are traditionally reserved to the states.
In fact, even the 14th Amendment, which deals with racism, only works for governments. It doesn't apply to individuals. Federal civil rights legislation that affects individuals is based on the commerce clause (on the strained reasoning that ANYTHING you do affects interstate commerce, so the federal government can tell you what to do; there's even a case that upheld an FDR New Deal farm subsidy because a farmer who grew wheat on his own farm and used it himself on his own farm was engaging in interstate commerce).
Our rights are inalienable. Not just inalienable by the government, but by anyone. We create governments to protect us from that alienation, even while the governments we create are themselves not empowered, and often explicitly prohibited to be sure there's no confusion, to deprive us of those rights. But are created with the power to protect our rights.
I'm not aware that the word "inalienable" appears anywhere in the Constitution (if you know of an instance, please point me to it). That word does appear in the Declaration of Independence, which is often confused with the Constitution (often by people who have read neither). But the Declaration of Independence has nothing to do with our system of government. It was a brilliant document, but its purpose was to declare a break with England. The Constitution is a far more conservative document.
The truth is that most of your rights are alienable, and some of those that are not may at least be contractually abridged to some degree. Slavery is probably inalienable, but I can contractually bind myself to work for an unfair wage as long as it meets the statutory minimum wage. Off the top of my head and without looking up any cases, the ones I would suspect that are the closest to truly inalienable are free exercise of religion, cruel and unusual punishment, and the right to vote if over 18 (if you can think of more, good for you).
But other than that, people contract away rights all the time. For example, the Seventh Amendment gives you a right to a jury trial in federal courts, but binding arbitration is very, very common (and in fact, often encouraged by courts for purposes of efficiency). You can contractually agree to not own a gun. You can permit a government to take your property without just compensation. You can voluntarily permit a search and seizure without probable cause. You can voluntarily testify at your own criminal trial. You can even voluntarily permit troops to be quartered in your home in times of peace. And so on...
Well, since the article points out that the women were, in fact, specifically named, and there were calls to rape and sodomize them, and at least one was specifically accused of having herpes, and the posts got so much attention that they were at the top of Google results for the women's names, I'd say this pretty much qualifies as direct. There's no slippery slope to worry about here. These guys should be prosecuted and should never be permitted to practice law.
Since Sprint operates in Canada, I wonder whether this can be taken as precedent in Canada as well. I'd be glad if it did.
No, my bet is that Canadian courts prefer to follow Canadian law (this isn't even U.S. law; it's California law). But with Justice Anthony Kennedy still on the bench, you can bet the U.S. Supreme Court will use Canadian law to interpret the U.S. Constitution.
Happens all the time. The judge has already decided her interpretation of the law (or even that there's insufficient evidence), but she sends it to the jury because a jury verdict is harder to overturn on appeal than a summary judgment. She was probably hoping that the jury would rule in favor of the customers, because it's less of a headache for her. They didn't, so she says, "Sorry, as a matter of law, this contract is not enforceable. So the jury's finding is moot, because it was based on the faulty assumption that the contract was enforceable." And since this is a state court, 7th Amendment doesn't apply, even if she had overturned the jury's finding. Like it or not, this is a very, very common occurrence.
It is expected for them to be ideologues in the same mold as their boss. It is an illegal and unacceptable criteria for career civil servants who, once they enter the ranks of civil service, are nearly impossible to get rid of unless they leave of their on accord.
Or the next President decides to fire him because he doesn't like the way he clips his toe nails, which he is perfectly free to do.
Wait a minute---you just told all the frothing, ill-informed Bush haters who have wholesale bought the Democrats' line about "politicizing" the DoJ (an agency of the highly-political Executive branch) that they don't understand Article II? And you got modded "Insightful"? On Slashdot? This must be some bizarre alternate universe.
But bravo anyway! I'm so tired of hearing this "politicization" line. There are plenty of legitimate complaints to lodge against Bush and the cut-taxes-and-still-spend Republicans in Congress, and plenty of issues open to serious, intelligent debate. This is not one of them.
My hope is that this gentleman wins. If he loses, he might be looking at several years of being treated like those folks at GITMO! And that's not something to look forward to.
I see you were going for the karma boost with the U.S. bashing, but looks like it didn't pay off this time. Please try again later.
And Gitmo? Seriously? If you're going to be a U.S. hater, at least say something credible. There is some legitimate debate to be had about whether it's fair to detain enemies captured on fields of battle in a place like Gitmo without due process, but that is wholly irrelevant to somebody who is going to be extradited according to treaty and tried in the courts with all of the constitutional due process protections that a citizen has. This guy will not end up in Gitmo. He'll spend a couple of years in Club Fed after he pleads out, then he'll be deported back to England.
Even if he is sentenced to 60 years, he'll only actually serve something like 15 unless he really screws up.
The point of the patent system is not to benefit the inventor, but to benefit society. Often these activities are functionally equivalent, as rewarding inventors for genuinely innovative and clever inventions encourages similar activity in the future. Unfortunately, and the point you seem to be missing, is that under the current this is increasingly not the case. Granting a long term monopoly on a basic application of existing technology or processes in a newly developed field, or applied to a newly developed technology, (read: software patents) provides absolutely no benefit to society as a whole and as such is in direct opposition to the spirit, if not the letter, that the patent system was founded on.
I think what bothers you is obviousness (section 103) more than what is statutory subject matter (section 101). I could be wrong. Maybe you really think that there is no way that a software method, no matter how clever or innovative, could ever be proper subject matter for a patent. But at least recognize that there is a difference.
As for the purpose of patents, you are absolutely right that the purpose is to benefit society (you're wrong that I miss this point; IP is my bread and butter, so I'm pretty well tuned in to what it's all about). The point of my post, which you seemed to miss, is that a system that grants useful monopolies only to big players does not, in my opinion, truly promote the progress of science and useful arts.
Patents are just a generic tool, a tool that can be used by both small players and big business, mainly in proportion to their financial power. Patents in no way change the balance of power, except by adding huge overheads to everyone in society.
From your .sig, it appears that you either fundamentally misunderstand the theory of intellectual property (which is intentionally geared toward creating artificial scarcity by granting a limited monopoly), or you have a fundamentally socialist view of property. Either way, there is a major gap between us in one or both of understanding and philosophy, and I won't try to bridge it. But for the benefit of anybody else, I would like to point out a couple of issues with this.
Yes, patents are just a generic tool. I didn't say that they couldn't be used by both big guys and little guys. I said that what the USPTO is trying to do will ensure that the little guys lose their share. And no, it's not in proportion to their financial power. Very big companies have had to pay out hundreds of millions to little guys for patent infringement. If your patent is valuable enough, you'll be able to find an attorney to take it on contingency. Even my firm, which has a long-standing policy that we just don't take stuff on contingency, is starting to look at taking patent infringement cases on contingency because they're worth a lot.
For every small entrepreneur helped there are any number of industry monopolies and cartels locking out new players. It is disingenuous to claim that patents protect the little guy from big business. On average they do not, and to claim otherwise is dishonest.
That's not a bug, that's a feature. Patents are and always have been limited monopolies. The system doesn't ask how big you are. It just asks whether your invention is new, non-obvious and useful. And I never said patents only protect little guys from big guys. I said that proposed reforms would ensure that they no longer do.
Particularly when you consider how broken patents are on everything from simultaneous invention to inventions whose time has come, from crazy time limits to government bureaucracies acting as gatekeepers on all of technology, from guilty till proven innocent to even what an invention or new idea is.
Now you betray the real disconnect in your reasoning. Think about all the "patent trolls" you hear about; the ones that have you up in arms. What is the real problem? Is it that a little guy got a big judgment from a big guy? Is it that Microsoft or IBM lost a case? No, of course not. But you and many others on Slashdot conflate the issues. The real issue that most people have is that some troll hit up Big Blue or RIM or whoever for hundreds of millions of dollars on a patent that seems really obvious to you. I won't try to evaluate every single "troll" and determine whether their inventions are really obvious, or just obvious in hindsight. But change up the facts a little. Joe Inventor builds a working quantum computer. He takes it to Big Blue and says, "I have this working quantum computer. Can you help me manufacture it?" Big Blue analyzes the computer, tells Joe, "Sorry, we're not interested," sends him packing, and immediately starts building quantum computers on his design. Are you going to scream "TROLL" the minute he sues (I guarantee you, IBM will)? The real problem is not the tactics used by patent trolls. It's the fact that many of the inventions look obvious.
Fix obviousness, and I say let the NPEs be as aggressive as they please. Let them sue in the Eastern District of Texas. Let them ask for permanent injunctions. Let them collect hundreds of millions of dollars. If they have given the world technology we would not otherwise have, they deserve it.
But if we dilute patent protection across the board, the only way they have any value is if you have a
tinfoilhatmuch?
Registered patent attorney who has seen how things go.
You must think our USPTO registration certificates also invest us with dark powers or something if you think we have that much power. Bush's cronies at the patent office have been working very hard to totally destroy the patent system, and we've been powerless to stop them. Last year, they passed a rule package that was retroactive and so draconian, every single patent attorney who commented on it said, "No, this is a bad idea." They passed it anyway, despite that fact that it was so far reaching that it was clearly statutorily invalid, and even constitutionally suspect. It cost our clients thousands of dollars to amend their already-filed applications to conform to the new rules. Then the rules were enjoined by a court at the eleventh hour (thankfully), and then we had to explain to our clients that all that work was for nothing.
If you never plan to invent anything, and want to ensure those who do invent have no recourse when their inventions are blatantly stolen by Big Business, then just lap up whatever those goons at the paten office dish out. But if you think there is any value to having a strong patent system to protect legitimate inventions (like the Framers of the Constitution did), take everything that comes down from the USPTO with a grain of salt---even seemingly "good" stuff like this.
Note that this post does not represent the opinion of my employer or anybody else except me.