I can certainly understand how you might look at it that way, but that simply isn't how to read a statute. This is a list of disjunctive elements, any of which can suffice to fulfill the statute. It would be constructed very differently if it meant "a and b or c." You need only look a little farther down to (3) see an example of this. If you still aren't convinced, you might look at the history of the statute. 2005 Amendments. Subsec. (a). Pub.L. 109-9, 103(a), rewrote subsec. (a), which formerly read:
"(a) Criminal Infringement.--Any person who infringes a copyright willfully either--
"(1) for purposes of commercial advantage or private financial gain, or
"(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement."
This makes it clear that meeting any of the conditions is enough. When you see a list like this, the word joining the final two items shows the relationship of all. This makes sense, since it's the same way in ordinary speech and writing. Another illustration from Title 17:
For purposes of section 411, a work is a "United States work" only if--
(1) in the case of a published work, the work is first published-- (A) in the United States; (B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States; (C) simultaneously in the United States and a foreign nation that is not a treaty party; or (D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States;
If we follow your principle here, something is only a "United States work" if it is either "a, b, and c," or "d". Clearly, this would be wrong.
Well that is interesting, but you seem to have some problem with the fact that ALL the criteria have to be met, and not just the one that suits you (Section 1, Clause B).
I'm as opposed to modern copyright law as the next slashdotter, but I'm disappointed in the repeated reading comprehension failures in this discussion. You and those replying above you have all failed to grasp that the statute reads a, b, OR c, not a, b, AND c. Only one of those elements needs to be satisfied. Of course, the copying being done must still be outside of fair use to meet the definition.
This whole argument is internally inconsistent. If humans are not different from other animals in any significant way, and therefore are no more important, then why should they be held to some special code of conduct? Animals regularly kill other animals for their own gain. Why shouldn't we? Because we are different in some key way? That makes the whole argument fail. Not that I don't support humane treatment of animals and the conservation of the environment.
I'm trying to figure out your point. The GP is pointing out that it's important to distinguish between drunks and people in a medical crisis. You responded by saying that people in medical crisis can be dangerous behind the wheel. I fail to see where you could possibly be heading with this.
Sorry if I wasn't clear. My point is not that one can never obtain a DUI conviction without a breath test, as I plainly said. Rather, I was saying that your assessment of what it takes to convict isn't quite right. You said that any of the things you listed (odor, fst results, behavior) were proof beyond a reasonable doubt, and enough to secure a conviction, thus making breath results unnecessary. While in certain cases a combination of those things might be enough evidence, the way you portray the situation is not accurate. Without physical evidence of any kind, the chances of a successful conviction drop severely. This is especially true given a competent defense attorney who would introduce evidence of the extreme unreliability of the various field sobriety tests, attack officer reliability and memory, etc. If one has a breath test, at least in my state, nothing else is needed (barring any problems with the results, of course). My point was that breath testing is important to successful prosecution, and ignoring that fact is silly. As you correctly point out, all the prosecution needs to do is prove the case. In many cases, however, breath tests are an important part of that proof. Were that not the case, there would be no discussion about the issue. If you read my post, I think you'll understand what I mean.
I want to assure you that I'm not targeting you in any way- I didn't even realize it was you that I had replied to before. I do find it interesting that on both occasions you've failed to respond substantively to what I posted. I looked back at my reply to you in the EFF discussion, and I really don't think you can begin to call that abuse. I abused the idiot of an AC that replied to me a little, but he was pretty belligerent and abusive himself. (I assume that wasn't you trying to dodge a karma hit) In either case, my arguments never rested in any way on ad hominems. Also, if you want to get picky about logic, I don't need a citation from every state supreme court showing that your assertion is incorrect. The burden lies with you to show evidence supporting your argument. Further, you asked me to disprove points stronger than those you were originally making.
Blood tests, failing FSTs, officer observations of your behavior and smell... any of these things are sufficient to convict beyond a reasonable doubt.
While you're not quite right about what it takes to convict in a DUI case, you are right in saying that you don't necessarily need breathalyzer results. Hence the ruling: no source code unless it is going to bear on the outcome of the case. If the test results aren't vital to determining guilt, then there is no issue. In many cases, however, they are. In such cases, it's important to know how the test works, and if there is some fundamental problem with its reliability. It's absurd to say that you don't need to know if the test is good or not, since there's other evidence. If that were true, there would be no need for the test in the first place.
Sorry, but you're wrong. (see what I did there?) According to many style manuals, the use of a comma is appropriate before "and." A quick example is here.
Sorry for the ambiguity. By "outside our current understanding of nature," I mean outside of what we currently understand to be nature. I was just trying to clarify that we almost certainly don't have a true understanding of nature or its boundaries, and that what appears "supernatural" today, could quite possibly be understood as natural in the future. (Please don't take this as support for ID, I'm just saying that supernatural != religious)
You're conflating "supernatural" with "religious." Why? The existence of a supernatural designer doesn't imply anything about its nature, or whether it should be worshipped. Merely being outside of our current scientific understanding of nature is not sufficient to make a thing religious.
Hmmm... I wonder why you posted AC? Your superfluous use of Latin leads me to the (hopefully mistaken) conclusion that you are employed in the legal field. The weakness of your reading and reasoning skills, however, lends me some hope that it is not in the capacity of attorney or, heaven forbid, judge. I'm guessing paralegal, maybe with the 2-year degree. Anyway, Your post adds nothing of value. You give the personal bloggings of Zimmerman a higher level of "statement by the EFF" status than their official press release and the motion. If you bother to read those, which you pretty clearly didn't, you'll get a feel for their actual position. Even if you use only the blog you referenced, however, you and the GP are still wrong. While the statement about terminal commands figures more prominently in the post you cite, he is very clear that there is a much larger legal issue:
Aside from the remarkable overreach by campus and state police in trying to paint a student as suspicious in part because he can navigate a non-Windows computer environment, nothing cited in the warrant application could possibly constitute the cited criminal offenses. There are no assertions that a commercial (i.e. for pay) commercial service was defrauded, a necessary element of any "Obtaining computer services by Fraud or Misrepresentation" allegation. Similarly, the investigating officer doesn't explain how sending an e-mail to a campus mailing list might constitute "unauthorized access to a computer system."
That is their characterization, even if you choose to narrowly consider only this particular source and not the total content of their statements. The mistake you both make is in taking one piece of the argument and presenting it as if there is nothing more. Seriously, did they not teach critical thinking at whatever school you bought your diploma from? As for your feeble attempt to support the probable cause for the warrant, you've ignored the fact that the witness was not established as reliable. I won't try to convince you, since you clearly aren't interested in finding the truth. Rather, for the sake of those reading this exchange, I'll point to the fact that your reference to the TOC requirement is a red herring. As you point out, it's totally irrelevant to this case. Why you brought it up is still a mystery to me, unless you just wanted to cite the one case with which you're familiar. What matters is that the witness clearly fails the two-prong test required by Spinelli. There is no valid basis for reliability established, beyond "he helped us in another unspecified case with an unspecified outcome." The police simply stating "he's reliable" is obviously insufficient, and even much stronger showings have been found wanting. As for your assertion that it doesn't matter if the crimes are listed properly in the affidavit, you've constructed a straw man. The issue isn't improper citing of the statutes, but whether any of the actions alleged to be criminal are, in fact, criminal. Additionally, there must be some connection between the crime and the location searched/evidence seized. The only potentially criminal act (under any relevant statute) alleged in the warrant application is the grade-changing. There is no information, however, linking the grade-changing to the items seized or the area searched. In fact, the witness doesn't even provide the approximate date or even year when it supposedly took place. If you can read probable cause into the facts of this case, I sincerely hope you are never in a position where your legal opinions matter.
Your arrogance is evident, as is your inability to reason.
If you bothered to read the warrant application, I can only assume you also read the Press Release. This would be the only valid basis for your accusation, since it's the only representation of what the EFF said. You seem, however, to be saying that the EFF is stating, like TFS, that the use of the "black with white font (zOMG!)" OS was the reason for the warrant. Were that the case, you would be right, and they would be liars. You're wrong, and they aren't. In fact, in the lengthy press release, they only once mention the use of a CLI, and it is only a very minor part of a larger argument relating to the reliability of the witness. You're ignoring the rest of the legal arguments, and the 15 page motion, which clearly show the invalid nature of the warrant. Your assertion that they're lying, and that there is probable cause, is "Just. Plain. Wrong."
Not to nitpick, but it wasn't an arrest. Rather it was a search for evidence of criminal activity. Taking a sticky note detailing the search is obviously not part of the investigation of the crime. Clearly the only motive would be to prevent documentation of their activities, or mere spite. Either is unprofessional and somewhat disturbing, since it is not functionally (note I didn't say legally) different from theft or destruction of property. I say that, since it wasn't listed on his receipt, which means he'll never get it back and it won't be used for anything. When you stop to consider the actual circumstances, your comment seems less witty, and more ignorant.
Again, don't take this as a defense of the idea of mandatory universal DNA testing... it isn't. I feel it's a violation of privacy, and that it's another step along our path to a very liberty-free existence. It just isn't affected by the fifth amendment.
That's the whole point. Collection of information such as fingerprints, photos, DNA, etc. isn't a choice or an action on your part. They can and do take it by physical force if necessary.
The information within your brain may be encoded in a physical state, but the information in your brain isn't testimony. Testimony is making statements. The the privilege protects you from being compelled to make a choice that is against your own interest. It doesn't protect the information, but rather your liberty to not act against your own interest. For example, the information in your brain regarding a crime can be sought by interrogating others who have the same knowledge. The difference is important. Giving testimony is an act, and that is what is protected. The goal is to preserve your freedom to not take actions that go against your own interest. Consider further the nature of privilege. You do not simply have a right to keep private any incriminating facts- your right extends to your action only. You have the right to not speak. That is all. The right is not purely against divulging damaging facts. The right preserves your freedom to remain totally silent. If you give that up, you give it up completely. You cannot, for example, give testimony in your defense, and then refuse to answer questions that are incriminating. At that point, you would be compelled to answer them, even if you didn't want to. It's the action itself that is protected, not the information. Keep in mind, however that testimonial privilege is not one's sole protection against intrusion on privacy. The right to privacy is rooted in the fourth, not fifth amendment.
Actually, it isn't. Testimony is different from biological facts about a person's body. Logically, under that interpretation, one could not be placed in a lineup, photographed, etc., even with a court order or a warrant. Like it or not, in the eyes of the law, there is a balance between our individual rights and the interests of justice. Under this definition of testimony, there would be virtually no possibility of convicting anyone of any crime. No fingerprints, no blood, no DNA- even cameras and eyewitnesses couldn't be used, since the appearance of the suspect for identification purposes could not be compelled under any circumstances. The issue is one of whether the evidence is testimonial or physical, and DNA and fingerprints are physical. That is not to say I support the idea of mandatory DNA gathering for those arrested, however. I think that it should be treated like any other search, and that a judge should decide in each case whether or not it is proper to compel the test.
Going with the "checking the bags when you leave" analogy, it's not the fact that the bags are being checked that annoys me, it's the act of having to queue at this final gatekeeper and wait for their OK before I can walk past.
If it really bothers you to wait, then don't. The store employee has no arrest powers, especially given that he has no knowledge that you have committed any crime. They cannot detain you without opening themselves to lawsuits and criminal prosecution. You have every right to put your receipt in your wallet, tie your bag, and head out the door. They can't stop you or force you to show them anything before you can leave. On the other hand, they can tell you not to come back, and have you arrested the moment you step back inside the door. Note that this is not legal advice, and I base this solely upon knowledge of the laws in my own state. Things might be different where you live, but I doubt it.
Its only scary if not cheating would have improved his surgical skills
Or if not cheating would have revealed his poor surgical skills and thus prevented a career in medicine. The fear results, quite naturally, from a lack of any level of certainty that the surgeon is competent.
The State brings the charges, because the state is the "victim." That's why the individual doesn't get to decide whether or not charges are filed, or have the final say in punishment. As far as I know, that is only true for commonwealths because the commonwealth is supposed to take over those kinds of decisions for the greater good for all...or something like that.
I hope that's not the case, or else I've wasted the last few years of my life, and a lot of money...:) (IANAL yet, but hopefully very soon!)
Slashdot Mirror
Not so; see my reply below.
"(a) Criminal Infringement.--Any person who infringes a copyright willfully either--
"(1) for purposes of commercial advantage or private financial gain, or
"(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement."
This makes it clear that meeting any of the conditions is enough. When you see a list like this, the word joining the final two items shows the relationship of all. This makes sense, since it's the same way in ordinary speech and writing. Another illustration from Title 17:
For purposes of section 411, a work is a "United States work" only if--
(1) in the case of a published work, the work is first published--
(A) in the United States;
(B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;
(C) simultaneously in the United States and a foreign nation that is not a treaty party; or
(D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States;
If we follow your principle here, something is only a "United States work" if it is either "a, b, and c," or "d". Clearly, this would be wrong.
Well that is interesting, but you seem to have some problem with the fact that ALL the criteria have to be met, and not just the one that suits you (Section 1, Clause B). I'm as opposed to modern copyright law as the next slashdotter, but I'm disappointed in the repeated reading comprehension failures in this discussion. You and those replying above you have all failed to grasp that the statute reads a, b, OR c, not a, b, AND c. Only one of those elements needs to be satisfied. Of course, the copying being done must still be outside of fair use to meet the definition.
This whole argument is internally inconsistent. If humans are not different from other animals in any significant way, and therefore are no more important, then why should they be held to some special code of conduct? Animals regularly kill other animals for their own gain. Why shouldn't we? Because we are different in some key way? That makes the whole argument fail. Not that I don't support humane treatment of animals and the conservation of the environment.
Your power runs 110Hz.
Hz != V... Pretty sure you're off by 50ish there.
I'm trying to figure out your point. The GP is pointing out that it's important to distinguish between drunks and people in a medical crisis. You responded by saying that people in medical crisis can be dangerous behind the wheel. I fail to see where you could possibly be heading with this.
Sorry if I wasn't clear. My point is not that one can never obtain a DUI conviction without a breath test, as I plainly said. Rather, I was saying that your assessment of what it takes to convict isn't quite right. You said that any of the things you listed (odor, fst results, behavior) were proof beyond a reasonable doubt, and enough to secure a conviction, thus making breath results unnecessary. While in certain cases a combination of those things might be enough evidence, the way you portray the situation is not accurate. Without physical evidence of any kind, the chances of a successful conviction drop severely. This is especially true given a competent defense attorney who would introduce evidence of the extreme unreliability of the various field sobriety tests, attack officer reliability and memory, etc. If one has a breath test, at least in my state, nothing else is needed (barring any problems with the results, of course). My point was that breath testing is important to successful prosecution, and ignoring that fact is silly. As you correctly point out, all the prosecution needs to do is prove the case. In many cases, however, breath tests are an important part of that proof. Were that not the case, there would be no discussion about the issue. If you read my post, I think you'll understand what I mean.
I want to assure you that I'm not targeting you in any way- I didn't even realize it was you that I had replied to before. I do find it interesting that on both occasions you've failed to respond substantively to what I posted. I looked back at my reply to you in the EFF discussion, and I really don't think you can begin to call that abuse. I abused the idiot of an AC that replied to me a little, but he was pretty belligerent and abusive himself. (I assume that wasn't you trying to dodge a karma hit) In either case, my arguments never rested in any way on ad hominems. Also, if you want to get picky about logic, I don't need a citation from every state supreme court showing that your assertion is incorrect. The burden lies with you to show evidence supporting your argument. Further, you asked me to disprove points stronger than those you were originally making.
Blood tests, failing FSTs, officer observations of your behavior and smell... any of these things are sufficient to convict beyond a reasonable doubt.
While you're not quite right about what it takes to convict in a DUI case, you are right in saying that you don't necessarily need breathalyzer results. Hence the ruling: no source code unless it is going to bear on the outcome of the case. If the test results aren't vital to determining guilt, then there is no issue. In many cases, however, they are. In such cases, it's important to know how the test works, and if there is some fundamental problem with its reliability. It's absurd to say that you don't need to know if the test is good or not, since there's other evidence. If that were true, there would be no need for the test in the first place.
Sorry, but you're wrong. (see what I did there?)
According to many style manuals, the use of a comma is appropriate before "and." A quick example is here.
Sorry for the ambiguity. By "outside our current understanding of nature," I mean outside of what we currently understand to be nature. I was just trying to clarify that we almost certainly don't have a true understanding of nature or its boundaries, and that what appears "supernatural" today, could quite possibly be understood as natural in the future. (Please don't take this as support for ID, I'm just saying that supernatural != religious)
You're conflating "supernatural" with "religious." Why? The existence of a supernatural designer doesn't imply anything about its nature, or whether it should be worshipped. Merely being outside of our current scientific understanding of nature is not sufficient to make a thing religious.
Aside from the remarkable overreach by campus and state police in trying to paint a student as suspicious in part because he can navigate a non-Windows computer environment, nothing cited in the warrant application could possibly constitute the cited criminal offenses. There are no assertions that a commercial (i.e. for pay) commercial service was defrauded, a necessary element of any "Obtaining computer services by Fraud or Misrepresentation" allegation. Similarly, the investigating officer doesn't explain how sending an e-mail to a campus mailing list might constitute "unauthorized access to a computer system."
That is their characterization, even if you choose to narrowly consider only this particular source and not the total content of their statements. The mistake you both make is in taking one piece of the argument and presenting it as if there is nothing more. Seriously, did they not teach critical thinking at whatever school you bought your diploma from? As for your feeble attempt to support the probable cause for the warrant, you've ignored the fact that the witness was not established as reliable. I won't try to convince you, since you clearly aren't interested in finding the truth. Rather, for the sake of those reading this exchange, I'll point to the fact that your reference to the TOC requirement is a red herring. As you point out, it's totally irrelevant to this case. Why you brought it up is still a mystery to me, unless you just wanted to cite the one case with which you're familiar. What matters is that the witness clearly fails the two-prong test required by Spinelli. There is no valid basis for reliability established, beyond "he helped us in another unspecified case with an unspecified outcome." The police simply stating "he's reliable" is obviously insufficient, and even much stronger showings have been found wanting. As for your assertion that it doesn't matter if the crimes are listed properly in the affidavit, you've constructed a straw man. The issue isn't improper citing of the statutes, but whether any of the actions alleged to be criminal are, in fact, criminal. Additionally, there must be some connection between the crime and the location searched/evidence seized. The only potentially criminal act (under any relevant statute) alleged in the warrant application is the grade-changing. There is no information, however, linking the grade-changing to the items seized or the area searched. In fact, the witness doesn't even provide the approximate date or even year when it supposedly took place. If you can read probable cause into the facts of this case, I sincerely hope you are never in a position where your legal opinions matter.
Your arrogance is evident, as is your inability to reason.
If you bothered to read the warrant application, I can only assume you also read the Press Release. This would be the only valid basis for your accusation, since it's the only representation of what the EFF said. You seem, however, to be saying that the EFF is stating, like TFS, that the use of the "black with white font (zOMG!)" OS was the reason for the warrant. Were that the case, you would be right, and they would be liars. You're wrong, and they aren't. In fact, in the lengthy press release, they only once mention the use of a CLI, and it is only a very minor part of a larger argument relating to the reliability of the witness. You're ignoring the rest of the legal arguments, and the 15 page motion, which clearly show the invalid nature of the warrant. Your assertion that they're lying, and that there is probable cause, is "Just. Plain. Wrong."
Not to nitpick, but it wasn't an arrest. Rather it was a search for evidence of criminal activity. Taking a sticky note detailing the search is obviously not part of the investigation of the crime. Clearly the only motive would be to prevent documentation of their activities, or mere spite. Either is unprofessional and somewhat disturbing, since it is not functionally (note I didn't say legally) different from theft or destruction of property. I say that, since it wasn't listed on his receipt, which means he'll never get it back and it won't be used for anything. When you stop to consider the actual circumstances, your comment seems less witty, and more ignorant.
Again, don't take this as a defense of the idea of mandatory universal DNA testing... it isn't. I feel it's a violation of privacy, and that it's another step along our path to a very liberty-free existence. It just isn't affected by the fifth amendment.
That's the whole point. Collection of information such as fingerprints, photos, DNA, etc. isn't a choice or an action on your part. They can and do take it by physical force if necessary.
The information within your brain may be encoded in a physical state, but the information in your brain isn't testimony. Testimony is making statements. The the privilege protects you from being compelled to make a choice that is against your own interest. It doesn't protect the information, but rather your liberty to not act against your own interest. For example, the information in your brain regarding a crime can be sought by interrogating others who have the same knowledge. The difference is important. Giving testimony is an act, and that is what is protected. The goal is to preserve your freedom to not take actions that go against your own interest. Consider further the nature of privilege. You do not simply have a right to keep private any incriminating facts- your right extends to your action only. You have the right to not speak. That is all. The right is not purely against divulging damaging facts. The right preserves your freedom to remain totally silent. If you give that up, you give it up completely. You cannot, for example, give testimony in your defense, and then refuse to answer questions that are incriminating. At that point, you would be compelled to answer them, even if you didn't want to. It's the action itself that is protected, not the information. Keep in mind, however that testimonial privilege is not one's sole protection against intrusion on privacy. The right to privacy is rooted in the fourth, not fifth amendment.
Actually, it isn't. Testimony is different from biological facts about a person's body. Logically, under that interpretation, one could not be placed in a lineup, photographed, etc., even with a court order or a warrant. Like it or not, in the eyes of the law, there is a balance between our individual rights and the interests of justice. Under this definition of testimony, there would be virtually no possibility of convicting anyone of any crime. No fingerprints, no blood, no DNA- even cameras and eyewitnesses couldn't be used, since the appearance of the suspect for identification purposes could not be compelled under any circumstances. The issue is one of whether the evidence is testimonial or physical, and DNA and fingerprints are physical. That is not to say I support the idea of mandatory DNA gathering for those arrested, however. I think that it should be treated like any other search, and that a judge should decide in each case whether or not it is proper to compel the test.
Going with the "checking the bags when you leave" analogy, it's not the fact that the bags are being checked that annoys me, it's the act of having to queue at this final gatekeeper and wait for their OK before I can walk past.
If it really bothers you to wait, then don't. The store employee has no arrest powers, especially given that he has no knowledge that you have committed any crime. They cannot detain you without opening themselves to lawsuits and criminal prosecution. You have every right to put your receipt in your wallet, tie your bag, and head out the door. They can't stop you or force you to show them anything before you can leave. On the other hand, they can tell you not to come back, and have you arrested the moment you step back inside the door. Note that this is not legal advice, and I base this solely upon knowledge of the laws in my own state. Things might be different where you live, but I doubt it.
Much better! I particularly like Jumbled Jalopy.
that's OK, I'm sure the next version, Moronic Monicker, is going to be a LOT faster.
F, G, H, I,...M? Alphabet fail.
Judges are lawyers and that is forced by law.
No, it's not. In some systems, that's true. OTOH, it often isn't. There are a number of judges who are not lawyers. Try googling "nonlawyer judges."
Its only scary if not cheating would have improved his surgical skills
Or if not cheating would have revealed his poor surgical skills and thus prevented a career in medicine. The fear results, quite naturally, from a lack of any level of certainty that the surgeon is competent.
So its well within the concepts of Gorilla Marketing style behavior to work to manipulate popular forum discussions.
What we need is a new captcha to keep out those pesky lower primates... or did you mean Guerilla Marketing?
I hope that's not the case, or else I've wasted the last few years of my life, and a lot of money...
(IANAL yet, but hopefully very soon!)