We the people need the right of fair dealing. We can't have weird contractual conditions imposed. I am not a lawyer so don't know how to put it.
My understanding is: while the buyer placed an order and paid: the retailer never delivered their order. Therefore, the order was unfulfilled, AND, there was not completion of the "contract" as agreed; therefore, if true, then there was no contract, or the retailer was in breach, because:
Certain elements must be met for a contract to exist:
An offer
Acceptance by competent persons having the legal capacity who exchange consideration to create mutuality of obligation
Proof of some or all of these things may be done in writing --- although contracts can be made entirely orally, or by other conduct.
Remedy for breach can be compensatory damages or specific performance. Only the party at loss of the benefit of the bargain; or expectancy damges ("injured party's interest in realizing value to be gained from the expectance of the other party fulfilling their promises")
However..... If the buyer never received the gear from KlearGear --- then Consideration was not exchanged; therefore, the terms of the sale weren't fulfilled.
The other word is contract of adhesion, or standard form contract or ("shrink wrap agreement") ----- terms and conditions are set by one of the parties. The other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position.
While these types of contracts are not illegal per se, there exists a very real possibility for unconscionability. In addition, in the event of an ambiguity, such ambiguity will be resolved contra proferentem against the party drafting the contract language.
The doctrine of unconscionability is a fact-specific doctrine arising from equitable
principles. Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." (Fanning v. Fritz's Pontiac-Cadillac-Buick Inc.)
[...]
Courts in the United States have faced the issue of shrink wrap contracts in two ways. One line of cases follows ProCD v. Zeidenberg which held such contracts enforceable (e.g. Brower v Gateway), and the other follows Klocek v. Gateway, Inc, which found them unenforceable. These decisions are split on the question of assent, with the former holding that only objective manifestation of assent is required while the latter require at least the possibility of subjective assent.
About people with mental illnesses; when in doubt, you can make the argument "better safe than sorry".
It's enough to show the correlation: to justify a precautionary, prudent response, even if there is uncertainty, that prevents you from logically inducing the conclusion that mental illness was the cause..
The additional caution or restriction of known mentally ill people, may be prudent, given the uncertainty as to whether or not they pose a danger.
At the very least: the risk of attempted suicide, or possible attempt to elude local authorities, are some possible worries.
While I think we all agree that flying like many activities is something of a privilege. But at the same time, who really thinks it's a good idea to let some preening, unaccountable bureaucrat decide whether or not you should be granted that privilege with no justification needed?
They shouldn't, but someone should have the power to exercise the "for no reason or any reason" bit.
The "not allowed to enter" on medical grounds; can come in handy, if the disease is communicable, highly contagious, highly deadly, and likely to become a pandemic.
Apptricity later estimated that 9,000 users were accessing the program, in addition to the 500 that had been paid for.
This is equivalent to Microsoft claiming you pirated windows server, because you only bought 500 CALs, but your organization has 9000 employees.
Through some bit of magic, they say you get this license thingie, that you have to permanently assign to a specific piece of flesh and blood ---- no matter how many computers you have running the software; or how many employees you have on the job at a particular moment -- you don't count those: you count the total number of people your organization hired.
50 million divided by 8500 is close to $6000 per employee.
I would call that predatory + difficult to comply with licensing, not "piracy" ---
the folks making out like bandits here is the software company.
I'm sure a fraction of the 50 million could have funded a contractor to build the product, and provide the military the rights to the software --- and unlimited, perpetual licenses.
"Hey guys! We're thinking of moving the menubar to the top status bar, and making that unremovable. We'll have to move the close buttons though, vote on this strawpol.me and let us know what you think of the new changes
The problem with that; is you (1) will get a lot of opinions --- most of them opposed to any change, because humans are naturally resistant to change: especially user-interface redesigns, when users are accustomed through habit to a certain UI appearance.
People are resistant to innovations, until they have spent time learning to accept the changes --- before they can begin to see the advantages and are no longer blinded by their stubbornness.
And (2) A major GUI / user interface design overhaul involves a multitude of changes ----- it does not make sense to just amalgamate or synthesize a list of "user base approved" user interface tweaks into a GUI overhaul; for example, in light of change X and Y; well scrapping Y and going with Z and Q turns out to be better.
A good UI is not merely a synthesis of behaviors people have approved of --- good UI design is a cohesive whole, with good continuity, context, and consistency; it is more than the sum of its parts.
You'd do really well in the Stasi or a similar police state.
What makes you think that's not what we have behind the scenes?
Perhaps you'd also like the people you disagree with tortured as well? If you're going to start disappearing people, why don't you just advocate killing them instead.
Please stop assuming that I would approve of the probable actions of intelligence agencies.
Just because I have indicated what I believe they will probably do, does not mean that I would be in favor of it.
I'm not denying the government can do some pretty underhanded stuff. But they can't shut people up the way you're suggesting and they can't just make people disappear without other people noticing.
Well... reporter Judith Miller went to jail, for refusing to reveal her source.
I think, perhaps, you underestimate the government's capabilities.
They can spy on people --- they can also potentially react in real-time, to squelch, what people have to say.
And social networks aren't really an end-run around it, either.
And if they don't swear and sign the doc what then? Disappear to Guantanamo?
I believe the standard line, is to persuade the person under interrogation, at the threat of being charged with obstruction of justice, or as an accomplice: if they aren't fully cooperative.
they walk out of the cell and into a TV station and say "the government arrested and interrogated me because I'm a friend of Snowden's
That would be lousy surveillance. Agents would be tailing them.
If they even approached a TV station, they would be cuffed on the street, and taken back, for further questioning.
If you don't use those things, you can turn off standby sync somewhere, and the "off" usage drops to 0.5 W or so. I don't recall the exact details because I did this like six years ago just after I bought the thing, but it's entirely possible.
I did turn that off..... even so, I occassionally notice the Wii seems to "come alive" when it's supposedly powered off ---- by come alive, I mean blue LEDs start lighting up, and there is network activity of some sort;
even though all the features that would supposedly let the unit connect to the network when in standby were shut off in the UI.
Apparently, if you want it to be foolproof, you DO need to disconnect the power.
Then the battery will discharge, about 5% of a full charge per day. Not leaving it on the charger just means more charge/discharge cycles for the battery.
Hmm.... setting up a solar panel on the roof of the car during the day, and hooking it up to the battery, to use as a drip-charger or help maintain a float voltage, in order to compensate for the 5%; comes to mind.
Can you imagine if Snowden's friends and associates started receiving threatening visits with government agents? If anyone is going to go after Snowden they're either going to be very very quiet, or very very anonymous.
"Threatening visits" would indeed cause problems. By detain; I meant detain, as in "make quietly disappear", at least for a while.
After some polygraphs, and a few interrogation sessions cleared them, they should be free to go, after swearing an oath, and signing a document, agreeing to cooperate, promising not to discuss their interrogation with anyone, etc.
And the people who do want it to go off, well you might be bluffing, and no one wants to get caught having assassinated someone over a bluff.
There is another approach.... start detaining or "making disappear"; everyone Snowden had contact with;
all his potential friends or accomplices / other people he is known to have dealt with --- and interrogate them all deeply, until someone reveals information about this doomesday system.
If indeed the password is only valid during limited times each day ---- that suggests some online computer systems to be taken down in a mysterious outage.
That's the problem. The engineers at Tesla have the really expensive multimeters and pen registers.
Naw.... their Oscilloscopes and Multimeters have been replaced with digital logic analysers.
I heard from a recent Slashdot thread, about how test equipment for analog details is dead, and Logic analysers are all you need to troubleshoot modern digital circuits.
Musicians don't introduce noise or random silences in the MP3s they share.
No... but the free MP3s they are sharing will probably be sharing low bitrate MP3s, and they might insert an Ad/blurb in there. They don't need to post the high-BR/lossless MP3s; for buying the product, you get certain privileges.
Writers don't include random gibberish in the middle of their online pieces*.
Writers often make the 'online' version an excerpt, of what you get if you buy the full book.
There may be no gibberish, but it's not the same as the FPP, either.
Rough draft suggestion: the maximum wage ratio that applies to a given company shall include the lowest-paid employee of any other company for which the given company is the other company's primary revenue source.
Hm... insert a second degree of outsourcing, then, and let the company actually hiring the low-wage employee sign a Non-Disclosure Agreement with the parent outsourcing company, to prohibit disclosing anything that reveals any wage information to the two-levels-up outsourcing company.
There's a reason the "founding fathers" intended that your voice carried no weight at the national level -- or even largely at the state level.
They also intended that the national government's voice carried no weight in your day to day life.
They specifically created a national government of enumerated powers; with very limited authority,
that would have no power to intrude on people's daily life, or regulate the affairs of individual citizens ---- for example, regulating what kind of medical devices could be sold would be well outside their power,
except congress could pass some laws regulating the commerce, or trading in interestate commerce
(trades across state lines, exclusively).
They're well ahead of you. The cost of making the movie will soar. They'll pay $1000 each for sandwiches served on location (to the catering service owned by studio exec A) and rent personal vehicles for $10,000/day (from the rental company owned by studio exec B). etc.
Add a clause to the contract promising not to engage in self-dealing: the movie production company will not count any unreasonable expenses used solely to generate revenue for a related entity, for the purposes of calculating revenue share, AND requiring that the taxable portion of any expense that incurs a present or deferred tax liability for the studio or any associated company, is "disallowed" as an expense for the purpose of calculating revenue share.
For example: items such as sandwiches purchased, cannot be at a price disproportionately large compared to the fair market value of the product, as a means of defrauding the signee.
How about this then... instead of negotiating for percent of gross; negotiate for Greater of a percentage of the gross, and percentage paid out to the studio and investors.
Without copyright, anybody with more time than money could disassemble, document, and distribute any proprietary fork of a program and turn binaries back into (assembly language) source code useful for cloning the added functionality in the Free branch.
While it would be technically possible; it would be expensive in the sense that it would be labor-intensive. The work would have to be repeated for new releases; which are likely to have very large changes to the assembly code.
Also, as software evolves then --- new releases of future software would likely intentionally amplify the complexity of the machine language, with the express purpose of thwarting such attempts at disassembly.
Combined with encryption, DRM, and debugger blocking techniques designed to limit, deter, and block access to dissassemblable code and underlying details as much as possible.
Locked-down platforms such as iPhone would be immensely popular among vendors; without copyright.
Yeah, use a browser other than IE and/or some sort of flashblock.
Ahah! Check-mate! Flash-based / JavaScript-based image viewer; that renders the image, without your browser having access to a JPEG formatted file ---- complete with DRM; so if you use screencast / screenshot software to snap a picture of the display; your screen capture will show a little black box, instead of the image.
Well, speaking as a photographer, the thing about selling photographs on the internet is that you generally have to show people what they're about to buy. So right click and save image is always a possibility.
It doesn't work so well; if you use a small image size for sample purposes, and calculate the lowest resolution that is transparent for the size and sample medium selected, and then, you watermark your image samples. You can look at the sample, but not easily reuse it for publication --- as soon as you need to push it to a new medium, and expand the size; there will be quality issues.
any more than you'd take photos of paintings in a gallery and then sell prints of art you didn't own.
Makes sense that the curators don't allow cameras in art galleries, anyways
is going to get interesting if they use a copyright work from a pro. IANAL, but I don't think a TOS will help them there.
If the photographer uploaded the photo to facebook, then the TOS will allow the social network company to use the photo, for sure.
Otherwise, they may use the TOS to try to transfer responsibility to a user that uploaded the photo.
I'm pretty darn sure, some Facebook or Google user, will eventually scan a print they had purchased of a photo of themselves as their profile image that was taken by some portrait photographer, or their school photo, without the right permission, it's probably already happened many of times;
and judging by the apparent attitude of some photographers, one of the user's will probably wind up getting sued over uploading their own portrait, eventually.
Slashdot Mirror
We the people need the right of fair dealing. We can't have weird contractual conditions imposed. I am not a lawyer so don't know how to put it.
My understanding is: while the buyer placed an order and paid: the retailer never delivered their order. Therefore, the order was unfulfilled, AND, there was not completion of the "contract" as agreed; therefore, if true, then there was no contract, or the retailer was in breach, because:
Certain elements must be met for a contract to exist:
However..... If the buyer never received the gear from KlearGear --- then Consideration was not exchanged; therefore, the terms of the sale weren't fulfilled.
The other word is contract of adhesion, or standard form contract or ("shrink wrap agreement") ----- terms and conditions are set by one of the parties. The other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position.
This is a combination of several logical fallacies.
And your fallacy is the fallacy fallacy.
About people with mental illnesses; when in doubt, you can make the argument "better safe than sorry". It's enough to show the correlation: to justify a precautionary, prudent response, even if there is uncertainty, that prevents you from logically inducing the conclusion that mental illness was the cause..
The additional caution or restriction of known mentally ill people, may be prudent, given the uncertainty as to whether or not they pose a danger.
At the very least: the risk of attempted suicide, or possible attempt to elude local authorities, are some possible worries.
While I think we all agree that flying like many activities is something of a privilege. But at the same time, who really thinks it's a good idea to let some preening, unaccountable bureaucrat decide whether or not you should be granted that privilege with no justification needed?
They shouldn't, but someone should have the power to exercise the "for no reason or any reason" bit.
The "not allowed to enter" on medical grounds; can come in handy, if the disease is communicable, highly contagious, highly deadly, and likely to become a pandemic.
Apptricity later estimated that 9,000 users were accessing the program, in addition to the 500 that had been paid for.
This is equivalent to Microsoft claiming you pirated windows server, because you only bought 500 CALs, but your organization has 9000 employees.
Through some bit of magic, they say you get this license thingie, that you have to permanently assign to a specific piece of flesh and blood ---- no matter how many computers you have running the software; or how many employees you have on the job at a particular moment -- you don't count those: you count the total number of people your organization hired.
50 million divided by 8500 is close to $6000 per employee.
I would call that predatory + difficult to comply with licensing, not "piracy" --- the folks making out like bandits here is the software company.
I'm sure a fraction of the 50 million could have funded a contractor to build the product, and provide the military the rights to the software --- and unlimited, perpetual licenses.
"Hey guys! We're thinking of moving the menubar to the top status bar, and making that unremovable. We'll have to move the close buttons though, vote on this strawpol.me and let us know what you think of the new changes
The problem with that; is you (1) will get a lot of opinions --- most of them opposed to any change, because humans are naturally resistant to change: especially user-interface redesigns, when users are accustomed through habit to a certain UI appearance.
People are resistant to innovations, until they have spent time learning to accept the changes --- before they can begin to see the advantages and are no longer blinded by their stubbornness.
And (2) A major GUI / user interface design overhaul involves a multitude of changes ----- it does not make sense to just amalgamate or synthesize a list of "user base approved" user interface tweaks into a GUI overhaul; for example, in light of change X and Y; well scrapping Y and going with Z and Q turns out to be better. A good UI is not merely a synthesis of behaviors people have approved of --- good UI design is a cohesive whole, with good continuity, context, and consistency; it is more than the sum of its parts.
Cannonical is another failing company with Steve Jobs/Apple's attitude of "We will tell you what you like, and will like it."
The attitude can be highly effective ---- but there is one minor important detail: You have to actually be right, for things to work out.
If your UI turns out to be a turd, then you will go down.
Seeking innovation is a high-reward, high-risk thing.
You'd do really well in the Stasi or a similar police state.
What makes you think that's not what we have behind the scenes?
Perhaps you'd also like the people you disagree with tortured as well? If you're going to start disappearing people, why don't you just advocate killing them instead.
Please stop assuming that I would approve of the probable actions of intelligence agencies.
Just because I have indicated what I believe they will probably do, does not mean that I would be in favor of it.
This doesn't work so well anymore...
So this "upgradeability" you speak of; seems to be limited to replacing broken or parts so warn, that they failed, or Hard drive capacity.
On most laptops: upgrading the Hard drive seems to be no issue.
Swapping broken parts, also doesn't seem to be an issue on any laptops ---- except the recent Macbook Pro retina ones.
I'm not denying the government can do some pretty underhanded stuff. But they can't shut people up the way you're suggesting and they can't just make people disappear without other people noticing.
Well... reporter Judith Miller went to jail, for refusing to reveal her source.
I think, perhaps, you underestimate the government's capabilities.
They can spy on people --- they can also potentially react in real-time, to squelch, what people have to say.
And social networks aren't really an end-run around it, either.
And if they don't swear and sign the doc what then? Disappear to Guantanamo?
I believe the standard line, is to persuade the person under interrogation, at the threat of being charged with obstruction of justice, or as an accomplice: if they aren't fully cooperative.
they walk out of the cell and into a TV station and say "the government arrested and interrogated me because I'm a friend of Snowden's
That would be lousy surveillance. Agents would be tailing them. If they even approached a TV station, they would be cuffed on the street, and taken back, for further questioning.
If you don't use those things, you can turn off standby sync somewhere, and the "off" usage drops to 0.5 W or so. I don't recall the exact details because I did this like six years ago just after I bought the thing, but it's entirely possible.
I did turn that off..... even so, I occassionally notice the Wii seems to "come alive" when it's supposedly powered off ---- by come alive, I mean blue LEDs start lighting up, and there is network activity of some sort; even though all the features that would supposedly let the unit connect to the network when in standby were shut off in the UI.
Apparently, if you want it to be foolproof, you DO need to disconnect the power.
Then the battery will discharge, about 5% of a full charge per day. Not leaving it on the charger just means more charge/discharge cycles for the battery.
Hmm.... setting up a solar panel on the roof of the car during the day, and hooking it up to the battery, to use as a drip-charger or help maintain a float voltage, in order to compensate for the 5%; comes to mind.
Can you imagine if Snowden's friends and associates started receiving threatening visits with government agents? If anyone is going to go after Snowden they're either going to be very very quiet, or very very anonymous.
"Threatening visits" would indeed cause problems. By detain; I meant detain, as in "make quietly disappear", at least for a while.
After some polygraphs, and a few interrogation sessions cleared them, they should be free to go, after swearing an oath, and signing a document, agreeing to cooperate, promising not to discuss their interrogation with anyone, etc.
And the people who do want it to go off, well you might be bluffing, and no one wants to get caught having assassinated someone over a bluff.
There is another approach.... start detaining or "making disappear"; everyone Snowden had contact with; all his potential friends or accomplices / other people he is known to have dealt with --- and interrogate them all deeply, until someone reveals information about this doomesday system.
If indeed the password is only valid during limited times each day ---- that suggests some online computer systems to be taken down in a mysterious outage.
That's the problem. The engineers at Tesla have the really expensive multimeters and pen registers.
Naw.... their Oscilloscopes and Multimeters have been replaced with digital logic analysers.
I heard from a recent Slashdot thread, about how test equipment for analog details is dead, and Logic analysers are all you need to troubleshoot modern digital circuits.
In America, you have a warning sticker for that. In Europe, we have common sense for that.
In Soviet Russia, warning stickers you.
Musicians don't introduce noise or random silences in the MP3s they share.
No... but the free MP3s they are sharing will probably be sharing low bitrate MP3s, and they might insert an Ad/blurb in there. They don't need to post the high-BR/lossless MP3s; for buying the product, you get certain privileges.
Writers don't include random gibberish in the middle of their online pieces*.
Writers often make the 'online' version an excerpt, of what you get if you buy the full book. There may be no gibberish, but it's not the same as the FPP, either.
good. youve illustrated a loophole. now we can close it.
You missed the point. There are an infinite number of such bypasses; is is absolutely impossible to even deal with all the obvious ones.
You have two parties that want to enter an agreement, and trade certain goods/services under certain conditions.
Unless you eliminate free trade, and replace capitalism with communism, there is absolutely no way to stop their trade.
Rough draft suggestion: the maximum wage ratio that applies to a given company shall include the lowest-paid employee of any other company for which the given company is the other company's primary revenue source.
Hm... insert a second degree of outsourcing, then, and let the company actually hiring the low-wage employee sign a Non-Disclosure Agreement with the parent outsourcing company, to prohibit disclosing anything that reveals any wage information to the two-levels-up outsourcing company.
There's a reason the "founding fathers" intended that your voice carried no weight at the national level -- or even largely at the state level.
They also intended that the national government's voice carried no weight in your day to day life.
They specifically created a national government of enumerated powers; with very limited authority, that would have no power to intrude on people's daily life, or regulate the affairs of individual citizens ---- for example, regulating what kind of medical devices could be sold would be well outside their power, except congress could pass some laws regulating the commerce, or trading in interestate commerce (trades across state lines, exclusively).
They're well ahead of you. The cost of making the movie will soar. They'll pay $1000 each for sandwiches served on location (to the catering service owned by studio exec A) and rent personal vehicles for $10,000/day (from the rental company owned by studio exec B). etc.
Add a clause to the contract promising not to engage in self-dealing: the movie production company will not count any unreasonable expenses used solely to generate revenue for a related entity, for the purposes of calculating revenue share, AND requiring that the taxable portion of any expense that incurs a present or deferred tax liability for the studio or any associated company, is "disallowed" as an expense for the purpose of calculating revenue share.
For example: items such as sandwiches purchased, cannot be at a price disproportionately large compared to the fair market value of the product, as a means of defrauding the signee.
How about this then... instead of negotiating for percent of gross; negotiate for Greater of a percentage of the gross, and percentage paid out to the studio and investors.
Not so fast.
Without copyright, anybody with more time than money could disassemble, document, and distribute any proprietary fork of a program and turn binaries back into (assembly language) source code useful for cloning the added functionality in the Free branch.
While it would be technically possible; it would be expensive in the sense that it would be labor-intensive. The work would have to be repeated for new releases; which are likely to have very large changes to the assembly code.
Also, as software evolves then --- new releases of future software would likely intentionally amplify the complexity of the machine language, with the express purpose of thwarting such attempts at disassembly.
Combined with encryption, DRM, and debugger blocking techniques designed to limit, deter, and block access to dissassemblable code and underlying details as much as possible.
Locked-down platforms such as iPhone would be immensely popular among vendors; without copyright.
Yeah, use a browser other than IE and/or some sort of flashblock.
Ahah! Check-mate! Flash-based / JavaScript-based image viewer; that renders the image, without your browser having access to a JPEG formatted file ---- complete with DRM; so if you use screencast / screenshot software to snap a picture of the display; your screen capture will show a little black box, instead of the image.
Well, speaking as a photographer, the thing about selling photographs on the internet is that you generally have to show people what they're about to buy. So right click and save image is always a possibility.
It doesn't work so well; if you use a small image size for sample purposes, and calculate the lowest resolution that is transparent for the size and sample medium selected, and then, you watermark your image samples. You can look at the sample, but not easily reuse it for publication --- as soon as you need to push it to a new medium, and expand the size; there will be quality issues.
any more than you'd take photos of paintings in a gallery and then sell prints of art you didn't own.
Makes sense that the curators don't allow cameras in art galleries, anyways
is going to get interesting if they use a copyright work from a pro. IANAL, but I don't think a TOS will help them there.
If the photographer uploaded the photo to facebook, then the TOS will allow the social network company to use the photo, for sure.
Otherwise, they may use the TOS to try to transfer responsibility to a user that uploaded the photo.
I'm pretty darn sure, some Facebook or Google user, will eventually scan a print they had purchased of a photo of themselves as their profile image that was taken by some portrait photographer, or their school photo, without the right permission, it's probably already happened many of times; and judging by the apparent attitude of some photographers, one of the user's will probably wind up getting sued over uploading their own portrait, eventually.