As far as I'm aware patents should only be given to *processes*; a DNA sequence is just data, isn't it?
You're right about not being able to patent data, but it's the process used to isolate each gene (remember, isolated genes don't exist in nature, they're trapped in unrefined genetic material) that makes them patentable. The test for patentability under US law is, IIRC, "anything under the sun made by man".
Hmmm. Where I come from, unconscionable reliance is backing out of a real property agreement containing all relevant details and lacking only in proper form. The actions of the vendor create an equitable estate in the property in the name of the purchaser. The only defence a third party holding a legal estate in the property can raise, IIRC, is lack of (constructive) knowledge of the dealings. The wife surely ought to have known about her husband's plans to sell the property, given the nature of their relationship.
At any rate, it would be fruitless to speculate without access to the ruling.
Contracts never need to be in writing. However, enforcing contracts is another matter. Real esate contracts are unenforceable unless they are in writing and signed. This is called the Statute of Frauds (i.e. certain kinds of contracts, including real estate, must be in writing if you want to be able to force the other party to abide by the terms of the contract in court).
You're right, but as I posted in another comment, the statute of frauds can be overriden in situations where the court would regard its enforcement to be unconscionable. Since the defendants are relying on the statute of frauds to try and gazump the plaintiffs, the judge has evidently decided that would be unconscionable.
The part of the article that is odd is that the court appears to think that the email between the husband-owner and the buyer was sufficient to bind the wife-owner because she is referred to. That goes against the Statute of Frauds because the entire point of it is to make the agreement explicit rather than implicit.
The doctrine of unconscionable reliance on the statute of frauds is part of the branch of general law called equity. Equity developed as a fuzzy, morality-based system of jurisprudence that sought to ameliorate the sometimes harsh consequences of the common law's desire to uphold strict legal rights. As such, equity sometimes plays fast and loose with the law, binding people where no legal obligation exists. There is a maxim of equity that states, "equity looks to intent rather than to form". Although there is no form (i.e. evidence of a legally-binding agreement) to indicate the wife's consent, the judge has decided that there is evidence of intent on the wife's part, and as far as equity is concerned, that is sufficient to bind her.
According to the UCC, a "signature" is any tangible mark indicating consent. Nowhere does it say it has to be a cursive representation of your own name in your own hand.
I don't agree. Other people have already said that the UCC definition may not apply, and I'm not sure that a mere typewritten name is sufficient to meet the requirements of the statute of frauds (the property law of my jurisdiction does require tat the contract be marked 'by the hand' of both parties, IIRC).
Instead, the ruling can be explained by the doctrine of unconscionable reliance on the statute of frauds. Basically, although the courts recognize the requirement for a signed, written agreement for the sale or transfer of real property, they don't allow people to abuse the statute of frauds to engage in unconscionable behaviour, such as gazumping, which is exactly what happened in this case.
Of course, I haven't read the ruling, so I can't be sure;).
You don't need to damage goods to be liable for trespass. Simply mucking around with goods or changing them against the owner's wishes (known in non-US common law jurisdictions as conversion, or trover) is a no-no. The theory is: it's your stuff, and your right to use it how you please, nobody else's, so cluttering your e-mail box (and by implication, your physical storage) with spam is a wrong.
Tort law is okay when you're dealing with actual computers, since computers are physical things, and tort law deals well with physical things. When all you're dealing with is information that is stored on a variety of different systems with a variety of different owners, tort law tends to fall down, since it doesn't deal very well with the abuse or misuse of information.
Firstly, we need to clarify terms. Although the tort is referred to as trespass, that doesn't mean it is wholly a part of the law that relates to trespass to land. In reality, there are several types of trespass: trespass to land, trespass to the person and trespass to goods. Trespass to the person is also known as battery (i.e. what is commonly referred to as assault).
These three kinds of trespass do share a lot of basic principles, but are still distinct areas of law. The rules regarding permission in trespass to land differ from those in the other trespasses. For example, trespass to the person has to deal with the issue of unintentional physical contact, e.g. being jostled on a bus, which trespass to land does not need to concern itself with.
You do have a valid point, in that what does constitute consent is a tricky issue to determine. In the case of trespass to land, you have to put yourself in the shoes of the defendant and ask yourself, "would the reasonable person infer permission to enter onto the plaintiff's land given all the existing circumstances". Since this is a question of fact rather than law, it goes to the jury, but the jury can consider anything that might be relevant. For instance, if a landowner erects a fence around the property and seals it with a gate, it would be unreasonable to infer permission to enter, and vaulting the fence would be trespass. But for most cases, where there is an open driveway leading up to the front door, it is reasonable to infer permission to enter until that permission is explicitly withdrawn by the landowner.
Note also that permission doesn't have to be total and unconditional. In the example of an open driveway, the permission really only extends to the area of the property that is open. Breaking the lock on the front door and going in would be going beyond the bounds of the licence to enter, and would be trespass. In addition, an implied licence to enter may only be extended to certain classes of people. In Lincoln Hunt Australia Pty Ltd v Willessee (1986) 4 NSWLR 457, it was held that the implied invitation for potential clients to enter a shop did not extend to journalists who intended to harrass or robbers. (That's important, because when you withdraw a previously extant invitation or licence, you have to give the person a reasonable amount of time to leave before a trespass could be considered). In other words, you can give permission for people to e-mail you whom you don't know, but still exclude spammers as a class.
In short, yes, the issue of when and when there is not consent is fairly uncertain, but that doesn't translate into an automatic right of action against anyone who 'trespasses'. Unfortunately, I'm not really up on trespass as to goods, so I can't really tell exactly what would be considered in this case:(, but you get the general idea.
Disgorgement (aka an account of profits) is a kind of remedy that requires the defendant to give something to the plaintiff, but which goes beyond mere damages. In law, there are two basic ways in which a plaintiff can be compensated:
Restitution, where the court works out what the plaintiff lost or suffered by the defendant's wrongdoing, and makes a monetary award to try and neutralize that loss (i.e. to put the plaintiff in the position s/he would have been in had the wrong not taken place). This is basically always available at civil law. It can be quite limited in its usefulness, particularly where the plaintiff has lost a limb or suffered some other kind of irreparable harm.
Disgorgement, where the defendant is required to surrender the benefit s/he gained from committing the wrong. This extends beyond damages to requiring the defendant to, e.g., surrender title in specific property or an interest in a business, or whatever is necessary to satisfy the justice of the case. Disgorgement is only available in a limited set of circumstances.
But you're right, it usually is quite painful. The good thing is, you (as plaintiff) can select whichever method of relief will get you the most money or the greatest benefit.;)
They were spying on phone conversations to a ship which was boarded by SAS troops!
So the SAS troops in and of themseleves weren't sufficient to neutralizae any security threate posed by the Tampa?
This story at The Age shows that the Defence Signals Directorate listens to just about every bit of communications in Australia.
Funny, when I read the story, I didn't see that stated. I read a number of statements saying that the DSD's intelligence gathering was within Australian laws and supervised by the Inspector-General of Intelligence and Security.
Not everything printed in the newspaper is true. Conversely, not everything that isn't printed isn't true. The DSD can and does intercept anything and everything it can, but according to whatever rule book it follows: any intercepted communication where one or more parties to the communicationa are Australian and the communication is not related to a serious criminal matter or one of national security is supposed to be deleted. Of course, we trust them to do this implicitly.
What was said is the following: Transcripts of phone conversations between the International Transport Federation, Maritime Union of Australia and the crew of the MV Tampa were used by the government to formulate a political response... One wonders why the phone conversations were useful.
In addition, conversations between the captain of the Tampa and both the compnay that owned her and the Norwegian government (under whose flag the Tampa is registered) were passed on, all while the government was trying to negotiate a solution that served its own best interest. Needless to say, the edge this would have given the government in such negotiations could have been considerable.
The main point is that intelligence is not supposed to be used for the advantage of any Australian political party (under section 2A of the Intelligence Services Act, IIRC). The idea of spooks interfering in the political process by giving one side an advantage over another (either by the simple supply of information or by engineering a certain outcome to a politically sensitive situation through the supply of information) is quite frightening.
And giving credit where credit's due is a bad thing why, exactly? One of the key motivations for doing Open Source/Free software is the kudos you get, so I really have no problem with authors requiring that licensees not pass the work off as their own.
IANAL, but as far as I'm concerned, having already purchased the software, whatever buttons I do or do not click on are of no legal significance whatsoever. If a software publisher wants we to agree to ludicrous licensing terms, they are free to present me with a contract before selling me their product.
You may have purchased a copy of the software, but you have not purchased the right to use that copy. See, to use it, you generally have to copy it to your hard disk, and copyright gives exclusive rights over reproduction (not just distribution to a third party) to the copyright holder. In exchange for them granting the right to install, you have to submit to the licence conditions.
Insane? Absolutely. What we need is copyright that only grants exclusive rights to distribute copies, not to make copies generally. It's a lot more sensible, since it protects only what copyright was originally intended to protect, and it would render these stupid EULAs void for a failure of consideration (i.e. the copyright holder isn't giving you any rights you don't already have, so they can't demand that you submit to draconian licence terms in exchange for nothing in return).
It means, I think, make the share-holder liable for damages. Not the corperation, the shareholders.
Since a damages award against a corporate defendant comes out of that corporation's assets, therefore increasing the corporation's operating costs for that year and decreasing the potential dividend shareholders would receive, the shareholders are already liable, in a way.
The main problem is that even when a court finds against a corporation and awards damages the corporation doesn't pay, its liability insurer does. In our current capitalist system, profit is privatized, but loss is socialized wherever possible.
The Australian Constitution is quite hard to change. A constitutional referendum requires more than a simple majority across the country to succeed. In addition, it requires a simple majority in a simple majority of the states. Achieving both these criteria is quite hard (out of 44 proposed amendments, only 8 have been successful).
And the English constitution, although unwritten, is more than the common law (if one could rightly say that the common law forms part of the constitution). It incorporates the Magna Carta, the Bill of Rights of 1669, and various royal decrees about such things as the sovereignty of parliament, the independence of the judiciary, etc.
Why should Mum and Dad Inc. have any protections at all when both Mum and Dad have the same protections afforded a rich and powerful individual like Kerry Packer?
Because an attack on Mum and Dad Inc. (or Pty. Ltd., or plc, or whatever) isn't necessarily an attack on Mum and Dad, if the company has other employees. If the defamatory statement damages only the reputation of the company, and not that of its owners, the owners don't have a cause of action.
To put it another way: if you're a shareholder in a compnay, your reputation is not damaged simply because somebody makes a defamatory statement about the company (particularly if you're only one shareholder among hundreds or thousands). Therefore, you would not have a cause of action for defamation. However, you may still suffer economic loss in the form of the loss of share value as a result of the company losing business due to a loss of good will.
There is also the issue of what happens to the employees of the company if it finds itself in such a bad situation that it has to lay off staff as a result of the defamation.
Also, the Commonwealth may not even have the Constitutional power to legislate Civil Rights (granted, the treaties power may make it possible)
There is some argument about the usefulness of a purely statutory (as opposed to a constitutional) Bill of Rights, since Parliament can always undo what it has done. The moral force of such a piece of legislation is all well and good, but it doesn't count for much if you're actually in the dock facing a criminal conviction, especially if you're a member of a reviled minority and public opinion is against you. (Dare I mention the name Tampa?)
Absolute free speech is not realistic, even the US Supreme Court has invented exceptions to it (defamation law for instance).
True, but AFAIK, SCOTUS has still ruled hate speech acceptable, along with speech that may be interpreted as an exhortation to commit violence is allowable under certain circumstances (a "Most Wanted" list of abortion doctors published by an anti-abortion group was legal; I forget the citation, I'm sorry). We need to be very careful before we label certain speech as 'dangerous'.
I'd also suggest that if you take the advantages of incorporation (the creation of a new legal "person"), it's not unfair for there to be some kind of allowance for greater accountability.
Why should a corporation going about its lawful business be accountable to you? The "we've done you a favour, and we can take that back" argument is certainly valid when it comes to anti-trust and competition matters, but I don't see why we should have the right to peer into the confidential affairs of a company any more than we have the right to peer into the confidential affairs of an individual. Remember that a corporation represents the collective work of an entire group of people, as well as the investment hopes of another (possibly overlapping) group, many of whom may have worked hard for their investment funds. To suggest that you and I have the right to put those jobs and that fairly-won capital at risk without exercising due care in the allegations we make does not have much basis in ethics (depending on your definition of ethics).
As far as shareholders are concerned, they are already owed a fairly comprehensive set of duties (both a fiduciary duty in equity and directors' duties under corporations law). Uncovering a breach of those duties (i.e. a breach of the law) will not attract the attention of the law of defamation.
...the legal bills for doing so are a very effective way of shutting people up.
This is a specific instance of a more general problem, "how do we stop the big guys screwing over the little guys in court?" I think we should concentrate on solving the general problem rather than patching it over in this instance, otherwise we run the risk of overlooking other, perhaps greater, injustices. What is more immoral, allowing a corporation to shut someone up, or allowing a corporation that has commited gross negligence (causing serious injury or even death) to get off scot-free because the plaintiff didn't possess sufficient legal resources?
We also need a national uniform standard online, rather than have to worry about the laws of each state.
AFAIK, the law of defamation has its basis solely in the common law, which is uniform throughout the country. There is a hypothetical scenario where a state legislates a statutory override of the common law, but shouldn't we be worried first and foremost about the general abrogation of that state's residents' freedom of speech, rather than potential long-arm jurisdiction issues that may arise in cases concerning online material?
If Victoria's defamation law applies in the USA, then it's definitely a national issue.
The jurisdiction issues here are rather complex. Regardless, seeing that defamation is a civil matter, an Australian court can only enforce a ruling against a defendant outside its jurisdiction if that defendant has assets within its jurisdiction that the court can seize and flog to pay the damages award. Australian stormtroopers aren't going to the US to shut down sites we don't like, legally. At least, not anytime soon;).
The inclusion of items in the Bill which are not really enforceable is a way of getting Parliament to acknowledge the issues, and then take some concrete action.
There may be some problems with including non-binding statements of general principle alongside enforceable provisions, but that's a drafting problem, and no doubt one that can be overcome.
Various State and Commonwealth Crimes Acts can be read as saying that it is a crime to use a computer for a purpose your employer has not sanctioned (like calling a stop-work meeting), since the onus for proving you had "authority" is on you, not the prosecution.
Ouch. I would still maintain that such a right be strictly limited, and may be derogated (barring activities related to industrial/workplace issues) by a clear statement of policy by the employer (i.e. "here are the rules, you know exactly what they are, don't break them").
Yes, burning a book (like burning a flag, a pastime the US has toyed with legislating against) is an act of free speech, but I was making an (admittedly unclear) statement about the prevailing attitudes in some parts of the US body politic. I think you'll find that the people who are burning the book are also petitioning their local public library to take it off the shelf, and are often in danger of succeeding.
I've proposed a Bill of Digital Rights to affirm rights at a national level, and pre-empt these stupid laws.
First things first, we should get a general Bill of Rights of universal application protecting the whole panoply of civil rights. Gotta walk before you can run.
Moving on to the proposed framework:
Such a Bill would include:...A recognition that when communicating online there is the responsibility to not racially vilify or otherwise contravene the Commonwealth Racial Hatred Act or other Commonwealth Anti-Discrimination legislation.
Already, you're weakening the definition of free speech protection to exclude "that which the majority has found offensive". That's exactly the problem we're trying to deal with. The laws that arise (deemed stupid because porn and other offensive material is in and of itself harmless) are merely symptoms.
A less restrictive national definition of defamation, overriding laws of the states and territories. The defamation laws would provide:...1. Freedom for non-malicious speech acts concerning corporations.
This may come as a shock, and I'll probably be modded off the face of the earth, but not all corporations are big and evil. Why should a Mum and Dad family business be refused the same protections afforded a rich and powerful individual like Kerry Packer, simply because the family business is a corporation and Packer is a flesh-and-blood natural person? It'll probably get a lot of support, because it's good populist anti-big-business sentiment, but it doesn't have much basis in logic or justice.
2. Freedom for non-malicious speech acts concerning matters of public interest.
Public interest (a special case of relevance) is already a defence under the law of defamation, AFAIK.
3. That in the absence of malice no general damages be awarded.
What's the big deal with malice? What about recklessness?
Some guarantee of the opportunity for each Australian not just to access digital information, but to publish it. The information super-highway must not be one-way; barriers to entry must be lowered as much as possible for the Australian with an idea and a small budget.
How would that be enforced? There is a problem with such 'second-generation' social and economic rights (other examples include public health care and education) in that the bodies traditionally responsible for safeguarding legal guarantees (i.e. the courts) would have to step outside their boundaries of competence to enforce these rights. If you were denied your right to public health care, what could the High Court do? Order that funds be allocated from the Federal Budget to cover your situation? That kind of policy decision is exclusively the domain of Parliament in our system.
A right to use communications technology provided by an employer or educational institution for non-work or non-study purposes to a limited extent.
I would disagree to a certain extent here. Your employer's box is his or hers to use (or allocate usage of) as s/he wishes. I would still afford a right to privacy for data stored on work PCs, though, to prevent employer witch-hunts.
I don't know much about Australia's style of government and whether or not the people have very much power, but I would be leaving Australia if there was nothing I could do about it.
Basic summary: Westminster-style bicameral parliament with modifications (US-style Senate w/ 12 senators/state and 2 senators/territory instead of a House of Lords for the upper house) governing a Federal Commonwealth similar in structure to the US. Constitution may only be amended by referendum, unlike the US, where the people don't get a direct say in constitutional matters (how undemocratic is that). Parliamentary elections every three years (may be sooner under certain circumstances), with the full House of Representatives elected through preferential voting and half the Senate elected through proportional representation.
Until Australia starts respecting it's citizens rights, I don't have much faith in whether or not they would respect a tourist.
Well, that's a matter of opinion, isn't it? Australia respects the rights of its citizens in other ways, e.g. by refusing to endorse capital punishment as a civilized method of dealing with criminals. But, sticking to free speech, didn't I hear something about a Harry Potter book burning in the Mid West the other day? You simply don't have that kind of thing in Australia (not for decades, anyway). Australians seem to have a far better innate respect for free speech than USians, partly because pro-free-speech groups have had to convince the populace of the worth of free speech rather than simply rely on a constitutional provision.
As for whether you think Oz wouldn't respect the rights of a tourist, well, since George W signed the order condemning foreigners (not citizens) accused of terrorism to trial by a military tribunal, I know that the US wouldn't respect the rights of a tourist.
Most politicians are lawyers because law is a qualification that is 'recognized' for entrance into politics, i.e. you need to be a lawyer for your peers to treat you seriously. For these people, law is usually just a means to an end, that end being a career in politics. If, for example, male prostitution were similarly recognized, we'd see a lot of sleazy ex-male prostitutes in the halls of our democratic fora, bending over to accommodate corporate lobb--, oh wait...
Please remember that the "legal system" (as opposed to individual pieces of legislation) isn't entirely at fault here. The lawyers acting for the RIAA, MPAA, etc are only able to do what they do because a certain supposedly democratic institution that sits in the Capitol building in Washington DC has passed suitably bletcherous legislation that allows them to do it. Like it or not, courts follow Congress, and that's the way it's supposed to be.
I see a lot of posts on/. when a 'bad' decision comes down to the effect that the judge was evil. Well, the judge (who is usually unelected) is constrained to follow the law (which is usually formulated by democratically elected representatives), even if it's a bad law. Reform will only start in the legislature, not in the courtroom. Some people here may wish to abandon their democracy in favour of the benevolent dictatorship of the judiciary, but (barring violation of constitutional provisions) I don't. Not yet.
the early days when [the Internet] was a place for researchers at universities and governments to talk about their professions, hobbies and other interests with little interference from lawyers or corporate executives...disputes are often over gray areas...that courts rarely get to resolve because fans back down first.
You have to wonder how much of the problem revolves around the migration of a large group of people onto the Net who don't appreciate the free, communitarian culture they were entering.
While reading the article, I was reminded of the big bust-up that occured when Paramount went after all the unofficial Star Trek fansites prior to establishing its own official site. The community of Trek fansites had a lot in common with the early community of the Net as a whole (probably because a lot of our founding non-gender-biased parental figures were Trekkies themselves), it was cohesive, well-connected and had a sense of the common ideal of the free flow of information. These qualities allowed it to collectively "take offense" at what Paramount was doing, with the result that Paramount did permanent damage to the Star Trek franchise.
These days, it seems that the various communities online are a lot more internally isolated and aren't aware of the proud heritage they inherit, with the effect that whenever there's a corporate crackdown on a single fansite, there's no way for the community to which that site belongs to find out and react as a whole.
Perhaps we should start establishing community ISPs that provide cheap, high-quality access (on the back of inexpensive or volunteer labour) to the masses and distribute with each new account some material about the early history and ideals of the Internet, a sort of "online civics" course to indoctrinate the masses. I'd work for one.
I've seen a lot of people post about how this is perfectly legitimate network management, and I can accept that, although it must be asked where heavy use ends and abuse begins (do compulsive downloading of the latest ISO of your favourite dozen distros and constant apt-gets count).
I've also seen a lot of posts saying, in effect, "Why care? It's their network, they can do what they like." But remember, people, cable access in Australia is a monopoly (or rather, an oligopoly) where the only players are the two big telcos, Telstra and Optus. It's not as if you can go somewhere else if you feel you're being screwed; they can do what they damn well like and we just have to put up with it. So it is quite important keeping an eye on them and screaming bloody murder if it even looks as if they're trying to shaft someone.
If the contamination were external, it would have had a signifigant (measurable) effect on the momentum of the spacecraft...That leaves one plausible possibility: Cassini is leaking something that is condensing on the cold (*very* cold) bits.
Call me stupid, but wouldn't a leak also cause a significant change in momentum? Maybe you're just used to using some method of inertialess propulsion to get around, in which case we'd all be really interested to hear about it.:)
Of course it is. The US Constitition makes it so. If you want to change that, petition a representative for an amendment.
Okay, for a start, you seem to suffer the delusion that the US Constitution has authority in Australia. I realize that a lot of Americans seem to think they have the God-given right to enforce their own values on the rest of the world (at least, that's the pretext used when using military force to protect essentially economic interests), but this is going just a tad too far.
Secondly, your implied assertion that the US Constitution Is Always Right is just plain absurd. The US Constitution is a document drafted by human beings over two centures ago. It suffers the same drawbacks as any other document drafted by human beings: it may contain mistakes and go out of date. That's why there exists (as you point out) a mechanism to change it. Please don't make blind appeals to authority, it impresses no-one.
Slashdot Mirror
As far as I'm aware patents should only be given to *processes*; a DNA sequence is just data, isn't it?
You're right about not being able to patent data, but it's the process used to isolate each gene (remember, isolated genes don't exist in nature, they're trapped in unrefined genetic material) that makes them patentable. The test for patentability under US law is, IIRC, "anything under the sun made by man".
Hmmm. Where I come from, unconscionable reliance is backing out of a real property agreement containing all relevant details and lacking only in proper form. The actions of the vendor create an equitable estate in the property in the name of the purchaser. The only defence a third party holding a legal estate in the property can raise, IIRC, is lack of (constructive) knowledge of the dealings. The wife surely ought to have known about her husband's plans to sell the property, given the nature of their relationship.
At any rate, it would be fruitless to speculate without access to the ruling.
You're right, but as I posted in another comment, the statute of frauds can be overriden in situations where the court would regard its enforcement to be unconscionable. Since the defendants are relying on the statute of frauds to try and gazump the plaintiffs, the judge has evidently decided that would be unconscionable.
The doctrine of unconscionable reliance on the statute of frauds is part of the branch of general law called equity. Equity developed as a fuzzy, morality-based system of jurisprudence that sought to ameliorate the sometimes harsh consequences of the common law's desire to uphold strict legal rights. As such, equity sometimes plays fast and loose with the law, binding people where no legal obligation exists. There is a maxim of equity that states, "equity looks to intent rather than to form". Although there is no form (i.e. evidence of a legally-binding agreement) to indicate the wife's consent, the judge has decided that there is evidence of intent on the wife's part, and as far as equity is concerned, that is sufficient to bind her.
According to the UCC, a "signature" is any tangible mark indicating consent. Nowhere does it say it has to be a cursive representation of your own name in your own hand.
I don't agree. Other people have already said that the UCC definition may not apply, and I'm not sure that a mere typewritten name is sufficient to meet the requirements of the statute of frauds (the property law of my jurisdiction does require tat the contract be marked 'by the hand' of both parties, IIRC).
Instead, the ruling can be explained by the doctrine of unconscionable reliance on the statute of frauds. Basically, although the courts recognize the requirement for a signed, written agreement for the sale or transfer of real property, they don't allow people to abuse the statute of frauds to engage in unconscionable behaviour, such as gazumping, which is exactly what happened in this case.
Of course, I haven't read the ruling, so I can't be sure ;).
You don't need to damage goods to be liable for trespass. Simply mucking around with goods or changing them against the owner's wishes (known in non-US common law jurisdictions as conversion, or trover) is a no-no. The theory is: it's your stuff, and your right to use it how you please, nobody else's, so cluttering your e-mail box (and by implication, your physical storage) with spam is a wrong.
Tort law is okay when you're dealing with actual computers, since computers are physical things, and tort law deals well with physical things. When all you're dealing with is information that is stored on a variety of different systems with a variety of different owners, tort law tends to fall down, since it doesn't deal very well with the abuse or misuse of information.
Firstly, we need to clarify terms. Although the tort is referred to as trespass, that doesn't mean it is wholly a part of the law that relates to trespass to land. In reality, there are several types of trespass: trespass to land, trespass to the person and trespass to goods. Trespass to the person is also known as battery (i.e. what is commonly referred to as assault).
These three kinds of trespass do share a lot of basic principles, but are still distinct areas of law. The rules regarding permission in trespass to land differ from those in the other trespasses. For example, trespass to the person has to deal with the issue of unintentional physical contact, e.g. being jostled on a bus, which trespass to land does not need to concern itself with.
You do have a valid point, in that what does constitute consent is a tricky issue to determine. In the case of trespass to land, you have to put yourself in the shoes of the defendant and ask yourself, "would the reasonable person infer permission to enter onto the plaintiff's land given all the existing circumstances". Since this is a question of fact rather than law, it goes to the jury, but the jury can consider anything that might be relevant. For instance, if a landowner erects a fence around the property and seals it with a gate, it would be unreasonable to infer permission to enter, and vaulting the fence would be trespass. But for most cases, where there is an open driveway leading up to the front door, it is reasonable to infer permission to enter until that permission is explicitly withdrawn by the landowner.
Note also that permission doesn't have to be total and unconditional. In the example of an open driveway, the permission really only extends to the area of the property that is open. Breaking the lock on the front door and going in would be going beyond the bounds of the licence to enter, and would be trespass. In addition, an implied licence to enter may only be extended to certain classes of people. In Lincoln Hunt Australia Pty Ltd v Willessee (1986) 4 NSWLR 457, it was held that the implied invitation for potential clients to enter a shop did not extend to journalists who intended to harrass or robbers. (That's important, because when you withdraw a previously extant invitation or licence, you have to give the person a reasonable amount of time to leave before a trespass could be considered). In other words, you can give permission for people to e-mail you whom you don't know, but still exclude spammers as a class.
In short, yes, the issue of when and when there is not consent is fairly uncertain, but that doesn't translate into an automatic right of action against anyone who 'trespasses'. Unfortunately, I'm not really up on trespass as to goods, so I can't really tell exactly what would be considered in this case :(, but you get the general idea.
Disgorgement (aka an account of profits) is a kind of remedy that requires the defendant to give something to the plaintiff, but which goes beyond mere damages. In law, there are two basic ways in which a plaintiff can be compensated:
But you're right, it usually is quite painful. The good thing is, you (as plaintiff) can select whichever method of relief will get you the most money or the greatest benefit. ;)
The government's interests and the national interest aren't necessarily the same thing, especially in an election campaign.
They were spying on phone conversations to a ship which was boarded by SAS troops!
So the SAS troops in and of themseleves weren't sufficient to neutralizae any security threate posed by the Tampa?
Funny, when I read the story, I didn't see that stated. I read a number of statements saying that the DSD's intelligence gathering was within Australian laws and supervised by the Inspector-General of Intelligence and Security.
Not everything printed in the newspaper is true. Conversely, not everything that isn't printed isn't true. The DSD can and does intercept anything and everything it can, but according to whatever rule book it follows: any intercepted communication where one or more parties to the communicationa are Australian and the communication is not related to a serious criminal matter or one of national security is supposed to be deleted. Of course, we trust them to do this implicitly.
In addition, conversations between the captain of the Tampa and both the compnay that owned her and the Norwegian government (under whose flag the Tampa is registered) were passed on, all while the government was trying to negotiate a solution that served its own best interest. Needless to say, the edge this would have given the government in such negotiations could have been considerable.
The main point is that intelligence is not supposed to be used for the advantage of any Australian political party (under section 2A of the Intelligence Services Act, IIRC). The idea of spooks interfering in the political process by giving one side an advantage over another (either by the simple supply of information or by engineering a certain outcome to a politically sensitive situation through the supply of information) is quite frightening.
And giving credit where credit's due is a bad thing why, exactly? One of the key motivations for doing Open Source/Free software is the kudos you get, so I really have no problem with authors requiring that licensees not pass the work off as their own.
You may have purchased a copy of the software, but you have not purchased the right to use that copy. See, to use it, you generally have to copy it to your hard disk, and copyright gives exclusive rights over reproduction (not just distribution to a third party) to the copyright holder. In exchange for them granting the right to install, you have to submit to the licence conditions.
Insane? Absolutely. What we need is copyright that only grants exclusive rights to distribute copies, not to make copies generally. It's a lot more sensible, since it protects only what copyright was originally intended to protect, and it would render these stupid EULAs void for a failure of consideration (i.e. the copyright holder isn't giving you any rights you don't already have, so they can't demand that you submit to draconian licence terms in exchange for nothing in return).
It means, I think, make the share-holder liable for damages. Not the corperation, the shareholders.
Since a damages award against a corporate defendant comes out of that corporation's assets, therefore increasing the corporation's operating costs for that year and decreasing the potential dividend shareholders would receive, the shareholders are already liable, in a way.
The main problem is that even when a court finds against a corporation and awards damages the corporation doesn't pay, its liability insurer does. In our current capitalist system, profit is privatized, but loss is socialized wherever possible.
The Australian Constitution is quite hard to change. A constitutional referendum requires more than a simple majority across the country to succeed. In addition, it requires a simple majority in a simple majority of the states. Achieving both these criteria is quite hard (out of 44 proposed amendments, only 8 have been successful).
And the English constitution, although unwritten, is more than the common law (if one could rightly say that the common law forms part of the constitution). It incorporates the Magna Carta, the Bill of Rights of 1669, and various royal decrees about such things as the sovereignty of parliament, the independence of the judiciary, etc.
Why should Mum and Dad Inc. have any protections at all when both Mum and Dad have the same protections afforded a rich and powerful individual like Kerry Packer?
Because an attack on Mum and Dad Inc. (or Pty. Ltd., or plc, or whatever) isn't necessarily an attack on Mum and Dad, if the company has other employees. If the defamatory statement damages only the reputation of the company, and not that of its owners, the owners don't have a cause of action.
To put it another way: if you're a shareholder in a compnay, your reputation is not damaged simply because somebody makes a defamatory statement about the company (particularly if you're only one shareholder among hundreds or thousands). Therefore, you would not have a cause of action for defamation. However, you may still suffer economic loss in the form of the loss of share value as a result of the company losing business due to a loss of good will.
There is also the issue of what happens to the employees of the company if it finds itself in such a bad situation that it has to lay off staff as a result of the defamation.
Also, the Commonwealth may not even have the Constitutional power to legislate Civil Rights (granted, the treaties power may make it possible)
There is some argument about the usefulness of a purely statutory (as opposed to a constitutional) Bill of Rights, since Parliament can always undo what it has done. The moral force of such a piece of legislation is all well and good, but it doesn't count for much if you're actually in the dock facing a criminal conviction, especially if you're a member of a reviled minority and public opinion is against you. (Dare I mention the name Tampa?)
Absolute free speech is not realistic, even the US Supreme Court has invented exceptions to it (defamation law for instance).
True, but AFAIK, SCOTUS has still ruled hate speech acceptable, along with speech that may be interpreted as an exhortation to commit violence is allowable under certain circumstances (a "Most Wanted" list of abortion doctors published by an anti-abortion group was legal; I forget the citation, I'm sorry). We need to be very careful before we label certain speech as 'dangerous'.
I'd also suggest that if you take the advantages of incorporation (the creation of a new legal "person"), it's not unfair for there to be some kind of allowance for greater accountability.
Why should a corporation going about its lawful business be accountable to you? The "we've done you a favour, and we can take that back" argument is certainly valid when it comes to anti-trust and competition matters, but I don't see why we should have the right to peer into the confidential affairs of a company any more than we have the right to peer into the confidential affairs of an individual. Remember that a corporation represents the collective work of an entire group of people, as well as the investment hopes of another (possibly overlapping) group, many of whom may have worked hard for their investment funds. To suggest that you and I have the right to put those jobs and that fairly-won capital at risk without exercising due care in the allegations we make does not have much basis in ethics (depending on your definition of ethics).
As far as shareholders are concerned, they are already owed a fairly comprehensive set of duties (both a fiduciary duty in equity and directors' duties under corporations law). Uncovering a breach of those duties (i.e. a breach of the law) will not attract the attention of the law of defamation.
This is a specific instance of a more general problem, "how do we stop the big guys screwing over the little guys in court?" I think we should concentrate on solving the general problem rather than patching it over in this instance, otherwise we run the risk of overlooking other, perhaps greater, injustices. What is more immoral, allowing a corporation to shut someone up, or allowing a corporation that has commited gross negligence (causing serious injury or even death) to get off scot-free because the plaintiff didn't possess sufficient legal resources?
We also need a national uniform standard online, rather than have to worry about the laws of each state.
AFAIK, the law of defamation has its basis solely in the common law, which is uniform throughout the country. There is a hypothetical scenario where a state legislates a statutory override of the common law, but shouldn't we be worried first and foremost about the general abrogation of that state's residents' freedom of speech, rather than potential long-arm jurisdiction issues that may arise in cases concerning online material?
If Victoria's defamation law applies in the USA, then it's definitely a national issue.
The jurisdiction issues here are rather complex. Regardless, seeing that defamation is a civil matter, an Australian court can only enforce a ruling against a defendant outside its jurisdiction if that defendant has assets within its jurisdiction that the court can seize and flog to pay the damages award. Australian stormtroopers aren't going to the US to shut down sites we don't like, legally. At least, not anytime soon ;).
The inclusion of items in the Bill which are not really enforceable is a way of getting Parliament to acknowledge the issues, and then take some concrete action.
There may be some problems with including non-binding statements of general principle alongside enforceable provisions, but that's a drafting problem, and no doubt one that can be overcome.
Various State and Commonwealth Crimes Acts can be read as saying that it is a crime to use a computer for a purpose your employer has not sanctioned (like calling a stop-work meeting), since the onus for proving you had "authority" is on you, not the prosecution.
Ouch. I would still maintain that such a right be strictly limited, and may be derogated (barring activities related to industrial/workplace issues) by a clear statement of policy by the employer (i.e. "here are the rules, you know exactly what they are, don't break them").
Yes, burning a book (like burning a flag, a pastime the US has toyed with legislating against) is an act of free speech, but I was making an (admittedly unclear) statement about the prevailing attitudes in some parts of the US body politic. I think you'll find that the people who are burning the book are also petitioning their local public library to take it off the shelf, and are often in danger of succeeding.
Sorry if I wasn't clear.
I've proposed a Bill of Digital Rights to affirm rights at a national level, and pre-empt these stupid laws.
First things first, we should get a general Bill of Rights of universal application protecting the whole panoply of civil rights. Gotta walk before you can run.
Moving on to the proposed framework:
Already, you're weakening the definition of free speech protection to exclude "that which the majority has found offensive". That's exactly the problem we're trying to deal with. The laws that arise (deemed stupid because porn and other offensive material is in and of itself harmless) are merely symptoms.
This may come as a shock, and I'll probably be modded off the face of the earth, but not all corporations are big and evil. Why should a Mum and Dad family business be refused the same protections afforded a rich and powerful individual like Kerry Packer, simply because the family business is a corporation and Packer is a flesh-and-blood natural person? It'll probably get a lot of support, because it's good populist anti-big-business sentiment, but it doesn't have much basis in logic or justice.
Public interest (a special case of relevance) is already a defence under the law of defamation, AFAIK.
What's the big deal with malice? What about recklessness?
How would that be enforced? There is a problem with such 'second-generation' social and economic rights (other examples include public health care and education) in that the bodies traditionally responsible for safeguarding legal guarantees (i.e. the courts) would have to step outside their boundaries of competence to enforce these rights. If you were denied your right to public health care, what could the High Court do? Order that funds be allocated from the Federal Budget to cover your situation? That kind of policy decision is exclusively the domain of Parliament in our system.
I would disagree to a certain extent here. Your employer's box is his or hers to use (or allocate usage of) as s/he wishes. I would still afford a right to privacy for data stored on work PCs, though, to prevent employer witch-hunts.
The rest is pretty good, IMO.
I don't know much about Australia's style of government and whether or not the people have very much power, but I would be leaving Australia if there was nothing I could do about it.
Basic summary: Westminster-style bicameral parliament with modifications (US-style Senate w/ 12 senators/state and 2 senators/territory instead of a House of Lords for the upper house) governing a Federal Commonwealth similar in structure to the US. Constitution may only be amended by referendum, unlike the US, where the people don't get a direct say in constitutional matters (how undemocratic is that). Parliamentary elections every three years (may be sooner under certain circumstances), with the full House of Representatives elected through preferential voting and half the Senate elected through proportional representation.
Until Australia starts respecting it's citizens rights, I don't have much faith in whether or not they would respect a tourist.
Well, that's a matter of opinion, isn't it? Australia respects the rights of its citizens in other ways, e.g. by refusing to endorse capital punishment as a civilized method of dealing with criminals. But, sticking to free speech, didn't I hear something about a Harry Potter book burning in the Mid West the other day? You simply don't have that kind of thing in Australia (not for decades, anyway). Australians seem to have a far better innate respect for free speech than USians, partly because pro-free-speech groups have had to convince the populace of the worth of free speech rather than simply rely on a constitutional provision.
As for whether you think Oz wouldn't respect the rights of a tourist, well, since George W signed the order condemning foreigners (not citizens) accused of terrorism to trial by a military tribunal, I know that the US wouldn't respect the rights of a tourist.
Most politicians are lawyers because law is a qualification that is 'recognized' for entrance into politics, i.e. you need to be a lawyer for your peers to treat you seriously. For these people, law is usually just a means to an end, that end being a career in politics. If, for example, male prostitution were similarly recognized, we'd see a lot of sleazy ex-male prostitutes in the halls of our democratic fora, bending over to accommodate corporate lobb--, oh wait...
If the law is...then isn't something wrong?
Please remember that the "legal system" (as opposed to individual pieces of legislation) isn't entirely at fault here. The lawyers acting for the RIAA, MPAA, etc are only able to do what they do because a certain supposedly democratic institution that sits in the Capitol building in Washington DC has passed suitably bletcherous legislation that allows them to do it. Like it or not, courts follow Congress, and that's the way it's supposed to be.
I see a lot of posts on /. when a 'bad' decision comes down to the effect that the judge was evil. Well, the judge (who is usually unelected) is constrained to follow the law (which is usually formulated by democratically elected representatives), even if it's a bad law. Reform will only start in the legislature, not in the courtroom. Some people here may wish to abandon their democracy in favour of the benevolent dictatorship of the judiciary, but (barring violation of constitutional provisions) I don't. Not yet.
You have to wonder how much of the problem revolves around the migration of a large group of people onto the Net who don't appreciate the free, communitarian culture they were entering.
While reading the article, I was reminded of the big bust-up that occured when Paramount went after all the unofficial Star Trek fansites prior to establishing its own official site. The community of Trek fansites had a lot in common with the early community of the Net as a whole (probably because a lot of our founding non-gender-biased parental figures were Trekkies themselves), it was cohesive, well-connected and had a sense of the common ideal of the free flow of information. These qualities allowed it to collectively "take offense" at what Paramount was doing, with the result that Paramount did permanent damage to the Star Trek franchise.
These days, it seems that the various communities online are a lot more internally isolated and aren't aware of the proud heritage they inherit, with the effect that whenever there's a corporate crackdown on a single fansite, there's no way for the community to which that site belongs to find out and react as a whole.
Perhaps we should start establishing community ISPs that provide cheap, high-quality access (on the back of inexpensive or volunteer labour) to the masses and distribute with each new account some material about the early history and ideals of the Internet, a sort of "online civics" course to indoctrinate the masses. I'd work for one.
I've seen a lot of people post about how this is perfectly legitimate network management, and I can accept that, although it must be asked where heavy use ends and abuse begins (do compulsive downloading of the latest ISO of your favourite dozen distros and constant apt-gets count).
I've also seen a lot of posts saying, in effect, "Why care? It's their network, they can do what they like." But remember, people, cable access in Australia is a monopoly (or rather, an oligopoly) where the only players are the two big telcos, Telstra and Optus. It's not as if you can go somewhere else if you feel you're being screwed; they can do what they damn well like and we just have to put up with it. So it is quite important keeping an eye on them and screaming bloody murder if it even looks as if they're trying to shaft someone.
If the contamination were external, it would have had a signifigant (measurable) effect on the momentum of the spacecraft...That leaves one plausible possibility: Cassini is leaking something that is condensing on the cold (*very* cold) bits.
Call me stupid, but wouldn't a leak also cause a significant change in momentum? Maybe you're just used to using some method of inertialess propulsion to get around, in which case we'd all be really interested to hear about it. :)
The US Code can be found here.
Of course it is. The US Constitition makes it so. If you want to change that, petition a representative for an amendment.
Okay, for a start, you seem to suffer the delusion that the US Constitution has authority in Australia. I realize that a lot of Americans seem to think they have the God-given right to enforce their own values on the rest of the world (at least, that's the pretext used when using military force to protect essentially economic interests), but this is going just a tad too far.
Secondly, your implied assertion that the US Constitution Is Always Right is just plain absurd. The US Constitution is a document drafted by human beings over two centures ago. It suffers the same drawbacks as any other document drafted by human beings: it may contain mistakes and go out of date. That's why there exists (as you point out) a mechanism to change it. Please don't make blind appeals to authority, it impresses no-one.