To respond to your post: actually depending on your jurisdiction, it may be a binding contract. One of the keys is that acceptance of an offer to contract may be manifested by conduct. Some courts have recognized that conduct as running the software and/or failing to return it. However, the EULA is still vulnerable to the doctrine of unconscionability, among other reasons for a court refusing to enforce a contract.
Perhaps the seminal case on the subject of EULAs is the 7th Circuit Court of Appeals decision ProCD v. Zeidenberg, from 1996. I dissect that case (and my strong opposition to it), in this episode of my podcast.
Courts have not been consistent with their treatment of EULAs, so what the law is will vary based upon where a case is brought. At the tail end of the ProCD episode I outline some of the ways we can legally fix the damage caused by EULAs.
I remember reading about this case a few weeks ago in the Wall Street Journal. The article was entitled "Patent litigants pose growing threat to business."
The first paragraph brought to light one of Freedom Wireless' founder's criminal past (it involved stolen cars) as well as the fact that the founders had previously gone after GTE for similar issues (alleging stolen trade secret). GTE ended up getting paid $90,000 in legal fees, a statement that GTE had never stolen a trade secret, and a promise never to sue GTE again.
Fast forward a few years. Freedom Wireless currently does nothing but patent ligitation. These men are patent trolls.
The Wall Street Journal charges for their archives, but the full text of the same article is available here.
You are right in that actual damages have not been shown, and that there is a good probability that these actual damages don't even exist in many of these cases.
However, copyright law is special in that the copyright holder has the option of pursuing statutory damages. As the name implies, these are damages assigned by statute (statute = law created by legislature). The relevant section of the law is pasted below, but these numbers are significant and are per work infringed.
Statutory damages are often elected because you don't have to go through the hassle of proving them; they are assumed for you by law.
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.
Back in July of 2004 I wrote up an analysis of Apple's DMCA claim against Real. The full article is available here. Here's the last part of it (after I give definitions and background).
*****
As mentioned above, Real has claimed that, with their Harmony software, downloads from the Real music store will now be usable by the iPod. Real accomplished this by reverse-engineering FairPlay, so that Real can now create a level of DRM that is indistinguishable from FairPlay by the iPod. Until a few days ago, only music purchased from iTMS could have any form of DRM on it and be playable on the iPod. With the creation of Harmony, the iPod will no longer be able to lock out Real's DRM'd music, creating (something resembling) a true competitor to iTMS in the form of Real's store.
Realizing this, Apple has quickly and angrily accused Real of using the "tactics and ethics of a hacker" in creating Harmony.
Apple's statement should be summarily ignored. They are using ad hominem attacks with terms that carry misleading connotations. It could be argued that Real "cracked" the FairPlay DRM, but even that is misleading. The right to reverse-engineer is protected by law, and as such what Real did is legal.
Or rather, would have been definitively legal several years ago, before the passage of the DMCA. In fact, "Apple said it is investigating the implications of Real's software strategy under the Digital Millennium Copyright Act" (news.com article).
Now that statement by Apple is worth investigating. What does the DMCA say as to Real's reverse-engineering of FairPlay?
The sections that pertain to this case are Sec. 1201 (a)(1)(A), Sec. 1201 (a)(2)(A), and Sec. 1201 (f)(1). These sections are somewhat long and legal, but I will quote only what is necessary and break the verbage down into "normal english." Their relevant parts are, respectively
No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
and
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.
and
Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
The first excerpt says that if there is some "technological measure that effectively controls access to a work", it is now illegal to circumvent that measure. To borrow from the Fair Use example above, if someone purchased a music compact disc that had some technological measure on it that kept them from copying it to their hard drive as mp3s, it would now be illegal for them to circumvent that technological measure.
The second excerpt says that you cannot create or distribute tools or software that allows circumvention of technological anti-copying measures. To continue the Fair Use example, it is illegal for someone else to create a method to turn a protected purchased disc into mp3s, or to give that method to others.
Two of my law school profs used these (although it was before I arrived). They co-wrote a paper on it called "Taking Back the Law School Classroom: Using Technology to Foster Active Student Learning".
Their experience was part of a NY Times story in early 2004. (Story text from law school to avoid registration.)
If anyone wants more information on Prof. Caron and Dr. Gely's experience with these you can read the aforementioned paper.
Enderle has (or rather, should have) no credibility whatsoever. About a year ago he gave a keynote at SCO Forum entitled "Free Software and the Idiots Who Buy It."
It took logical and rhetorical fallacies to a whole new level. I picked it apart line-by-line, and for a little while it was on the first page of the Google search for "enderle".
Here it is again, in case anyone needs convincing that this man should not be taken seriously.
All of my creative writing (such as a novel and a screenplay) is CC, as well as my legal writing. I also have some more blog-type entries on my site, which also happen to be CC.
</on-topic reply and semi-shameless plug>
If you don't want blog entries in your results perhaps you could use "-blog" or similar to try to filter? Alternately, add "short story" or "poem" to try to find the style of content you are looking for.
There is a not insignificant amount of non-blog content out there, and other replies have linked to some directories thereof. You are right in that the overwhelming majority of CC material are blog entries, and finding ways of filtering that out when desired is / would be very useful.
Remember, the more the industry self-regulates and (supposedly) empowers parents to make informed decisions, the weaker the argument for government decency regulation.
Your post reminds me of what I tell my female friends.
I am at a negative risk of contracting STDs. As in, not only is my likelihood non-existent, but the more time you spend around me, the more your likelihood of contracting anything goes down.
Yes, I realize I am posting this with on Valentine's Day. I believe anyone who can't laugh at themselves needs to lighten up:).
You are right in that donative promises are generally not enforceable in court. However, there is a legal doctrine called "reliance."
Specifically, if I make an unenforcable donative promise to you, and you reasonably and foreseeably rely on that promise, the courts will step in and enforce that promise.
The textbook example of reliance is a company that promises a worker a pension in return "for the consideration of his many years of previous service." The problem is that prior consideration (in this case the previous years of service) can not be bargained for, and we fail to have a binding contract here since consideration is offered by the company (the pension) in exchange for no consideration by the worker.
However, due to the equitable principle of reliance, if the worker retires (which would be reasonable and foreseeable) the courts will enforce the promised pension.
So, if Sun publicly promised to not sue open / free software projects for using their patents, you reasonably and foreseeably rely upon that promise to use their patents in a open / free software project, and Sun sued you or others for patent infringement, the courts could be reasonably expected to enforce Sun's earlier promise.
Remember though, that Sun has not promised to not sue you for using their patents outside the CDDL, and even if they did you might have to pay a lawyer to get a court to enforce said promise.
I never brought the Bible into this. I really don't even think that I need to.
I am concerned with secular manifestations of harm, which I specifically delineated in this comment.
You do make some excellent points about costs of regulating what many consider to be "moral issues". Those costs must enter into the balancing of how we regulate porn, if at all.
This is from a late 2004 Canadian study entitled "THE HARMFUL EFFECTS ON CHILDREN OF EXPOSURE TO PORNOGRAPHY". The paper is available here, with citations at the end.
Quoting from the paper, specific costs referenced are...
* A 1987 study found that women who were battered, or subject to sexual aggression or humiliation, had partners who viewed significantly more pornography than those of a control group drawn from a mature university population. (3)
* A 1995 meta-analysis found that violent pornography might reinforce aggressive behavior and negative attitudes toward women. (4)
* A US study of teenagers exposed to "Hard core" pornography, "Two-thirds of the males and 40% of the females reported wanting to try out some of the behaviors they had witnessed. And, 31% of males and 18% of the females admitted doing some of the things sexually they had seen in the pornography within a few days after exposure." (5)
* A 1987 "panel of clinicians and researchers concluded that pornography does stimulate attitudes and behavior that lead to gravely negative consequences for individuals and for society, and that these outcomes impair the mental, emotional, and physical health of children and adults." (6)
* A 1993 study found, "Exposure to sexually stimulating materials may elicit aggressive behavior in youth who are predisposed to aggression. Sexually violent and degrading material elicits greater rates of aggression and may negatively affect male attitudes toward women." (7)
* A 1984 evaluation of the increase in rape rates in various countries bears close correlation to liberalizing of restrictions on pornography. (8)
* Three separate studies demonstrate that exposure to violent pornography may increase males' laboratory aggression toward women. (9,10,11)
Again, I am not advocating a ban on porn. I am advocating various means of regulation (ie checking ID before selling a copy of Hustler) commiserate with the secular manifestation of harm created by the porn.
Remember, the Supreme Court has consistently held that obscene (ie hardcore) porn is not Speech. But I don't view that as giving us carte blanche to regulate it without good reason.
I believe in an inalienable "right to revolution" when the available legal channels fail to provide adaquete remedies. I believe it is that right that the 2nd Amendment was designed to defend.
I believe gun registration, means of uniquely identifying weapons and munitions, and similar "light regulation" is warranted and justified. I have not sufficiently investigated the question of heavier arms (such as automatic rifles) to hold a strong opinion in that regard.
The difficulty is maintaining the ability to remove a government by force of arms while not creating a breeding ground for violent crime.
I agree that "some level of regulation" would be a vague standard, and I would not urge any court to adopt that language. What I had in mind with thtat phrase was more along the lines of requiring ID before selling Playboys and not allowing minors to directly purchase the same.
I don't know how to best word a standard dlineating what was obscene and what was not. The Miller court recognized the difficulty of wording, and I believe admitted that they did not believe their test to be the final word.
In regards to my previous post, I was more concerned in that post with showing that "secular manifestations of harm" should be the requirement when deciding whether moral issues should be considered by the law.
First, my background. I am an Evangelical Christian, as well as a future law student. I vote Republican more often than Democrat (not particularly liking either party), but am also a financial supporter of the EFF.
Now that we've gotten that out of the way, I fully expect this decision to be appealled. Remember, this decision is coming out of a district court, which is subject to review by Appeals and the Supremes. Specifically, I would argue that this case interprets Lawrence v. Texas too broadly, that Lawrence dealt with liberty concerns of regulating homosexual behavior vs. heterosexual behavior, and that this instant case incorrectly applies those liberty concerns to regulation of sexual obscenity regardless of "actor" orientation.
When it comes to sexual obscenity in general, there is more to consider than simply individual liberty. There is a undeniable cost to society from the dissemination of sexually obscene material, although I will be the first to admit the difficulty of quantifying that cost.
It is that cost that must be balanced against the demands of personal liberty.
I think it also important to bring up the still-binding 1973 case Miller v. California. That Supreme Court case held that sexually obscene material was NOT Speech, and as thus could be regulated by the several States.
The Miller Test for obscenity was that something is obscene if it "[A] appeals to the prurient [lustful] interest in sex; [B] portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, [C] taken as a whole, does not have serious literary, artistic, political, or scientific value [the SLAPS test]." (Bracketed text is my own.)
It should be noted that Miller applied to regulation by the several States, whereas this instant case deals with federal regulation. How and why different rules apply to the federal vs. the state government is beyond my current level of skill to discuss adaquetely and in-depth.
Personally, do I believe pornography should be banned? No. But I do believe that some level of regulation is warranted, and that the benefits of that regulation must be balanced against the cost to personal liberty.
- Neil Wehneman
P.S. I have previously posted additional thoughts on how pornography regulation is and is not justified based on specific secular criteria in an older Slashdot story.
Quote: According to English common law, your ownership of your law extends to the center of the Earth and upwards infinitely.
You are factually wrong.
That was the test used by the English common law (as well as in the U.S. because, with the exception of Louisiana, we adopted their common law). However, I know that test has since been abandoned as absurd.
The English case that I found was Bernstein v Skyviews & General.
Specifically, Bernstein said that a land-owner's rights extended to as high as they would reasonably and ordinarily use. You can find a little bit about the case from this Australian law school professor's page. (Scroll down the table a little ways.)
I know the corresponding U.S. case came to a similar conclusion, although I don't have the time this morning to find that case.
In regards to the article topic, these land-use tests would probably not give someone carte blanche to engage in private space flight over their property. After all, private space flight is not "reasonable and ordinary" (or whatever the exact legal phrase would be).
In regards to that particular paragraph, the first part of it is resolved by realizing that you're using the wrong frame of reference. By human measurements there is no question that Ghandi was orders of magnitude better than Stalin.
But when compared next to perfection, those two (and anyone else on the planet) are pretty much the same. And the lack of sin is what is required to be in an eternal relationship with God.
God didn't create sin, but He did create the potential for sin so that we could freely choose to love Him. We've all chosen poorly in that regard, but it was Christ who was blameless and able to cover it over for us.
In regards to the question of a second-chance Hell, I don't have an answer to that because I haven't examined that issue before.
The key to my position is the Resurrection: if the Resurrection occured then God exists because Christ was God. And what Christ said (as well as the teachings of those given direct authority by Christ) is Truth.
I have examined the evidence for and against the Resurrection and believe it took place. My changed life is additional evidence for me above and beyond that.
I hope this was useful for you, or at the least entertaining. Take care of yourself.
I have three finals in the next two days. I don't know when Slashdot will archive this discussion (thus keeping me from adding comments), but if you'll send a copy of your post to my email address I promise to respond by email late Tuesday.
Slashdot Mirror
IANAL. However, I am a law student.
To respond to your post: actually depending on your jurisdiction, it may be a binding contract. One of the keys is that acceptance of an offer to contract may be manifested by conduct. Some courts have recognized that conduct as running the software and/or failing to return it. However, the EULA is still vulnerable to the doctrine of unconscionability, among other reasons for a court refusing to enforce a contract.
Perhaps the seminal case on the subject of EULAs is the 7th Circuit Court of Appeals decision ProCD v. Zeidenberg , from 1996. I dissect that case (and my strong opposition to it), in this episode of my podcast.
Courts have not been consistent with their treatment of EULAs, so what the law is will vary based upon where a case is brought. At the tail end of the ProCD episode I outline some of the ways we can legally fix the damage caused by EULAs.
- Neil Wehneman
I remember reading about this case a few weeks ago in the Wall Street Journal. The article was entitled "Patent litigants pose growing threat to business."
The first paragraph brought to light one of Freedom Wireless' founder's criminal past (it involved stolen cars) as well as the fact that the founders had previously gone after GTE for similar issues (alleging stolen trade secret). GTE ended up getting paid $90,000 in legal fees, a statement that GTE had never stolen a trade secret, and a promise never to sue GTE again.
Fast forward a few years. Freedom Wireless currently does nothing but patent ligitation. These men are patent trolls.
The Wall Street Journal charges for their archives, but the full text of the same article is available here.
- Neil Wehneman
IANAL. Yet. This is not legal advice.
You are right in that actual damages have not been shown, and that there is a good probability that these actual damages don't even exist in many of these cases.
However, copyright law is special in that the copyright holder has the option of pursuing statutory damages. As the name implies, these are damages assigned by statute (statute = law created by legislature). The relevant section of the law is pasted below, but these numbers are significant and are per work infringed.
Statutory damages are often elected because you don't have to go through the hassle of proving them; they are assumed for you by law.
- Neil Wehneman
*******
From Section 504 of http://www.copyright.gov/title17/92chap5.html
(c) Statutory Damages. -
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.
*****
As mentioned above, Real has claimed that, with their Harmony software, downloads from the Real music store will now be usable by the iPod. Real accomplished this by reverse-engineering FairPlay, so that Real can now create a level of DRM that is indistinguishable from FairPlay by the iPod. Until a few days ago, only music purchased from iTMS could have any form of DRM on it and be playable on the iPod. With the creation of Harmony, the iPod will no longer be able to lock out Real's DRM'd music, creating (something resembling) a true competitor to iTMS in the form of Real's store.
Realizing this, Apple has quickly and angrily accused Real of using the "tactics and ethics of a hacker" in creating Harmony.
Apple's statement should be summarily ignored. They are using ad hominem attacks with terms that carry misleading connotations. It could be argued that Real "cracked" the FairPlay DRM, but even that is misleading. The right to reverse-engineer is protected by law, and as such what Real did is legal.
Or rather, would have been definitively legal several years ago, before the passage of the DMCA. In fact, "Apple said it is investigating the implications of Real's software strategy under the Digital Millennium Copyright Act" (news.com article).
Now that statement by Apple is worth investigating. What does the DMCA say as to Real's reverse-engineering of FairPlay?
The sections that pertain to this case are Sec. 1201 (a)(1)(A), Sec. 1201 (a)(2)(A), and Sec. 1201 (f)(1). These sections are somewhat long and legal, but I will quote only what is necessary and break the verbage down into "normal english." Their relevant parts are, respectively
and
and
The first excerpt says that if there is some "technological measure that effectively controls access to a work", it is now illegal to circumvent that measure. To borrow from the Fair Use example above, if someone purchased a music compact disc that had some technological measure on it that kept them from copying it to their hard drive as mp3s, it would now be illegal for them to circumvent that technological measure.
The second excerpt says that you cannot create or distribute tools or software that allows circumvention of technological anti-copying measures. To continue the Fair Use example, it is illegal for someone else to create a method to turn a protected purchased disc into mp3s, or to give that method to others.
The third excerpt
Two of my law school profs used these (although it was before I arrived). They co-wrote a paper on it called "Taking Back the Law School Classroom: Using Technology to Foster Active Student Learning".
Their experience was part of a NY Times story in early 2004. (Story text from law school to avoid registration.)
If anyone wants more information on Prof. Caron and Dr. Gely's experience with these you can read the aforementioned paper.
- Neil Wehneman
Enderle has (or rather, should have) no credibility whatsoever. About a year ago he gave a keynote at SCO Forum entitled "Free Software and the Idiots Who Buy It."
It took logical and rhetorical fallacies to a whole new level. I picked it apart line-by-line, and for a little while it was on the first page of the Google search for "enderle".
Here it is again, in case anyone needs convincing that this man should not be taken seriously.
- Neil Wehneman
Yeah. In other news, I don't want to shoot you, I just want to fire a gun at you...
This is veering off topic, but what the heck.
<Stewey from Family Guy>
"It's not that I want to kill her... I just want her not to be alive anymore.
</Stewey from Family Guy>
All of my creative writing (such as a novel and a screenplay) is CC, as well as my legal writing. I also have some more blog-type entries on my site, which also happen to be CC.
</on-topic reply and semi-shameless plug>
If you don't want blog entries in your results perhaps you could use "-blog" or similar to try to filter? Alternately, add "short story" or "poem" to try to find the style of content you are looking for.
There is a not insignificant amount of non-blog content out there, and other replies have linked to some directories thereof. You are right in that the overwhelming majority of CC material are blog entries, and finding ways of filtering that out when desired is / would be very useful.
- Neil Wehneman
Remember, the more the industry self-regulates and (supposedly) empowers parents to make informed decisions, the weaker the argument for government decency regulation.
- Neil Wehneman
Your post reminds me of what I tell my female friends.
:).
I am at a negative risk of contracting STDs. As in, not only is my likelihood non-existent, but the more time you spend around me, the more your likelihood of contracting anything goes down.
Yes, I realize I am posting this with on Valentine's Day. I believe anyone who can't laugh at themselves needs to lighten up
IANAL (yet). This is not legal advice.
You are right in that donative promises are generally not enforceable in court. However, there is a legal doctrine called "reliance."
Specifically, if I make an unenforcable donative promise to you, and you reasonably and foreseeably rely on that promise, the courts will step in and enforce that promise.
The textbook example of reliance is a company that promises a worker a pension in return "for the consideration of his many years of previous service." The problem is that prior consideration (in this case the previous years of service) can not be bargained for, and we fail to have a binding contract here since consideration is offered by the company (the pension) in exchange for no consideration by the worker.
However, due to the equitable principle of reliance, if the worker retires (which would be reasonable and foreseeable) the courts will enforce the promised pension.
So, if Sun publicly promised to not sue open / free software projects for using their patents, you reasonably and foreseeably rely upon that promise to use their patents in a open / free software project, and Sun sued you or others for patent infringement, the courts could be reasonably expected to enforce Sun's earlier promise.
Remember though, that Sun has not promised to not sue you for using their patents outside the CDDL, and even if they did you might have to pay a lawyer to get a court to enforce said promise.
- Neil Wehneman
secular manifestation of harm: observable societal problems that are not spiritual in nature
I am not yet advocating any specific regulation, merely that we should be open to the consideration of said regulation based on harm.
Some specific harms are listed this comment.
- Neil Wehneman
It's a Sunday, I didn't bother spell-checking.
:).
Thanks for the heads-up though
- Neil Wehneman
I never brought the Bible into this. I really don't even think that I need to.
I am concerned with secular manifestations of harm, which I specifically delineated in this comment.
You do make some excellent points about costs of regulating what many consider to be "moral issues". Those costs must enter into the balancing of how we regulate porn, if at all.
- Neil Wehneman
Please see this comment I made elsewhere in this discussion.
- Neil Wehneman
This is from a late 2004 Canadian study entitled "THE HARMFUL EFFECTS ON CHILDREN OF EXPOSURE TO PORNOGRAPHY". The paper is available here, with citations at the end.
Quoting from the paper, specific costs referenced are...
* A 1987 study found that women who were battered, or subject to sexual aggression or humiliation, had partners who viewed significantly more pornography than those of a control group drawn from a mature university population. (3)
* A 1995 meta-analysis found that violent pornography might reinforce aggressive behavior and negative attitudes toward women. (4)
* A US study of teenagers exposed to "Hard core" pornography, "Two-thirds of the males and 40% of the females reported wanting to try out some of the behaviors they had witnessed. And, 31% of males and 18% of the females admitted doing some of the things sexually they had seen in the pornography within a few days after exposure." (5)
* A 1987 "panel of clinicians and researchers concluded that pornography does stimulate attitudes and behavior that lead to gravely negative consequences for individuals and for society, and that these outcomes impair the mental, emotional, and physical health of children and adults." (6)
* A 1993 study found, "Exposure to sexually stimulating materials may elicit aggressive behavior in youth who are predisposed to aggression. Sexually violent and degrading material elicits greater rates of aggression and may negatively affect male attitudes toward women." (7)
* A 1984 evaluation of the increase in rape rates in various countries bears close correlation to liberalizing of restrictions on pornography. (8)
* Three separate studies demonstrate that exposure to violent pornography may increase males' laboratory aggression toward women. (9,10,11)
Again, I am not advocating a ban on porn. I am advocating various means of regulation (ie checking ID before selling a copy of Hustler) commiserate with the secular manifestation of harm created by the porn.
Remember, the Supreme Court has consistently held that obscene (ie hardcore) porn is not Speech. But I don't view that as giving us carte blanche to regulate it without good reason.
- Neil Wehneman
I believe in an inalienable "right to revolution" when the available legal channels fail to provide adaquete remedies. I believe it is that right that the 2nd Amendment was designed to defend.
I believe gun registration, means of uniquely identifying weapons and munitions, and similar "light regulation" is warranted and justified. I have not sufficiently investigated the question of heavier arms (such as automatic rifles) to hold a strong opinion in that regard.
The difficulty is maintaining the ability to remove a government by force of arms while not creating a breeding ground for violent crime.
- Neil Wehneman
You bring up some excellent points.
I agree that "some level of regulation" would be a vague standard, and I would not urge any court to adopt that language. What I had in mind with thtat phrase was more along the lines of requiring ID before selling Playboys and not allowing minors to directly purchase the same.
I don't know how to best word a standard dlineating what was obscene and what was not. The Miller court recognized the difficulty of wording, and I believe admitted that they did not believe their test to be the final word.
In regards to my previous post, I was more concerned in that post with showing that "secular manifestations of harm" should be the requirement when deciding whether moral issues should be considered by the law.
- Neil Wehneman
I state my background so as to make whatever biases I may have be apparent and considered by others.
If I was arguing this in court or in a more "professional" setting I would not necessarily have put my background out on the table.
- Neil Wehneman
First, my background. I am an Evangelical Christian, as well as a future law student. I vote Republican more often than Democrat (not particularly liking either party), but am also a financial supporter of the EFF.
Now that we've gotten that out of the way, I fully expect this decision to be appealled. Remember, this decision is coming out of a district court, which is subject to review by Appeals and the Supremes. Specifically, I would argue that this case interprets Lawrence v. Texas too broadly, that Lawrence dealt with liberty concerns of regulating homosexual behavior vs. heterosexual behavior, and that this instant case incorrectly applies those liberty concerns to regulation of sexual obscenity regardless of "actor" orientation.
When it comes to sexual obscenity in general, there is more to consider than simply individual liberty. There is a undeniable cost to society from the dissemination of sexually obscene material, although I will be the first to admit the difficulty of quantifying that cost.
It is that cost that must be balanced against the demands of personal liberty.
I think it also important to bring up the still-binding 1973 case Miller v. California . That Supreme Court case held that sexually obscene material was NOT Speech, and as thus could be regulated by the several States.
The Miller Test for obscenity was that something is obscene if it "[A] appeals to the prurient [lustful] interest in sex; [B] portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, [C] taken as a whole, does not have serious literary, artistic, political, or scientific value [the SLAPS test]." (Bracketed text is my own.)
It should be noted that Miller applied to regulation by the several States, whereas this instant case deals with federal regulation. How and why different rules apply to the federal vs. the state government is beyond my current level of skill to discuss adaquetely and in-depth.
Personally, do I believe pornography should be banned? No. But I do believe that some level of regulation is warranted, and that the benefits of that regulation must be balanced against the cost to personal liberty.
- Neil Wehneman
P.S. I have previously posted additional thoughts on how pornography regulation is and is not justified based on specific secular criteria in an older Slashdot story.
This multifunctional disc format
Am I the only one who misread that as malfunctional? Or perhaps I didn't misread...
- Neil Wehneman
Quote: According to English common law, your ownership of your law extends to the center of the Earth and upwards infinitely.
You are factually wrong.
That was the test used by the English common law (as well as in the U.S. because, with the exception of Louisiana, we adopted their common law). However, I know that test has since been abandoned as absurd.
The English case that I found was Bernstein v Skyviews & General.
Specifically, Bernstein said that a land-owner's rights extended to as high as they would reasonably and ordinarily use. You can find a little bit about the case from this Australian law school professor's page. (Scroll down the table a little ways.)
I know the corresponding U.S. case came to a similar conclusion, although I don't have the time this morning to find that case.
In regards to the article topic, these land-use tests would probably not give someone carte blanche to engage in private space flight over their property. After all, private space flight is not "reasonable and ordinary" (or whatever the exact legal phrase would be).
- Neil Wehneman
Note: See my sig for disclaimer.
In regards to that particular paragraph, the first part of it is resolved by realizing that you're using the wrong frame of reference. By human measurements there is no question that Ghandi was orders of magnitude better than Stalin.
But when compared next to perfection, those two (and anyone else on the planet) are pretty much the same. And the lack of sin is what is required to be in an eternal relationship with God.
God didn't create sin, but He did create the potential for sin so that we could freely choose to love Him. We've all chosen poorly in that regard, but it was Christ who was blameless and able to cover it over for us.
In regards to the question of a second-chance Hell, I don't have an answer to that because I haven't examined that issue before.
The key to my position is the Resurrection: if the Resurrection occured then God exists because Christ was God. And what Christ said (as well as the teachings of those given direct authority by Christ) is Truth.
I have examined the evidence for and against the Resurrection and believe it took place. My changed life is additional evidence for me above and beyond that.
I hope this was useful for you, or at the least entertaining. Take care of yourself.
- Neil Wehneman
I have three finals in the next two days. I don't know when Slashdot will archive this discussion (thus keeping me from adding comments), but if you'll send a copy of your post to my email address I promise to respond by email late Tuesday.
- Neil Wehneman