"The Company will be the sole and final arbiter as to Websites or usages of resources that constitute violation or intent to violate our policies. Those Customers found in violation of these policies are subject to a $300.00 service charge for each instance of violation, exclusive of charges for the bandwidth and/or other resources utilized."
Legally that may or may not be ok....I guess it depends on how good a lawyer you get if you want fight it.....This is a Liquidated Damages Clause.....They will be inforced when they seem to be a good approximation of actual damages suffered in the case of a breach.....But this clause seems to take a nature of a punitive damage to me......And that's exactly what I would argue to attack it......Punitive Damages aren't allowed in contract actions and clauses that seem to punish a person for breaking a provision in a contract would normally be invalid. So anyway while I agree with the basic premise of this post (IE that they should be able to conduct buisness in anyway they like), I even said essentially the same thing in another post, this one clause stood out to me as a law student as being suspect. I'm pretty confident a court would invalidate it in an actual lawsuit......Just for your info.
What a load of crap!!! ANYBODY offering a service or selling a product should be allowed to do it in any manner they want (in a non-fraudulent way that is). This is a free market society....NOT a communist one....If you don't like they conditions you are free to go somewhere else. There is plenty of ISPs to choose from.....And sure let's blame it on the lawyers.....IT'S THE ISP THAT DECIDES WHAT THEY WANT, just like with any other company.....They just tell this to their lawyers and leave it up to them to make their desires a reality (and legal). And yes I agree many contracts companies try to use today are abusive, in that they are standard form types and leave no room for negotiation.....But as a law student I still say it is up to you whether to do buisness with them.....If nobody accepted their terms then they would be forced to change their terms.....So you alone are responsible for who you contract with.
I went to the website, but that doesn't have anything to do with copyright law.....It does say something about how the music industry conducts buisness and computes profits.....but ALL those provisions are in the contract the artist signed. If the artist had enough clout or a good enough lawyer, those terms can be changed....I am a law student and am even taking a class in entertainment law where we discuss these very issues. Point is there is nothing in the law that takes these artists rights away from them....They are the ones signing it away by agreeing to the provisions in the contract. Yes, of course many don't have the clout to negotiate the terms, but once they make a name for themselves they will have more power to make deals on their terms. In any case it is up to the artists to learn about the contracts they are signing and ALL the terms contained within. Our prof was telling us about artists who think that they get advances, perks and promotion from the record companies for free....They don't....ALL that money comes out of the artist's share of the profits....IE THEY THEMSELVES are paying for it....The hotels....the limos.....etc....They pay for it....NOT the record companies. And if the record doesn't make money they may even find themselves in the position of owing the record companies money. That's why they need to make damn sure they know what is in the contracts they sign, and how their share of profits is computed....They should also make clear what venues the record company has the rights to....Everywhere else outside of that should be extra royalties....So in other words.....THEY SHOULD HAVE A LAWYER!!!
And how the heck did you reach that conclusion?!!! Authors DO OWN THEIR OWN COPYRIGHTS, unless they happened to sign it away in the recording contract.....But usual practice is to sign licenses, NOT copyrights. BUT there is such a thing as freedom of contract, so you can contract anyway you wish (within limits). But that statute doesn't take away a musician's copyrights, only a contract can do that. AND Copyrights DO expire......Life+70 years for individuals and 90 years for corporations
Actually copyright has been extended 20 years.....It is now life+70 years for individuals and 90 years for corporations......This was passed in response to heavy lobbying from corporations such as Disney
Yes your quoting of Utah's code was on-point to the original article but not in regards to my posting....My original reply was to a discussion of civil defamation...Many were defining it incorrectly and I just replied telling what the correct definition for civil defamation is...Then you come in saying I need to brush up on my legal research....What was that about??? I never maintained that my definition had ANYTHING to do with Utah's criminal code. I don't need to brush up on my legal research...I didn't research Utah's code at all....Why would I want to? I have better things to do than to reseach some backwards state that takes a matter which belongs in the civil courts and clogs up it's criminal justice system with it. My point was and still is that regardless of what the law-makers in Utah put in their code, defamation doesn't belong in the criminal justice system. Even beyond the 1st Amendment issues, it's a frivoulous charge and serves no social purpose beyond clogging up the criminal courts. But then again maybe Utah's criminal courts are pretty clear and they need this to give the DAs something to prosecute:)
Well in your first example you are just stating an opinion...Being labled as lazy is hard to clasify as being a statement of fact...And even if you would classify it as fact...is it defamatory? And is it untrue?....But the biggest hurdle there is no reasonable person would interpret that as a statement of a factual matter and therefore it's just opinion and not actionable...But for libel you do not need to prove damages, general damage to your reputation is presumed and the court can award you acordingly, same is true for narrow cases of slander which would be called "slander per se". Unless you are dealing with a media defendant and prove less than Actual Malice (ie Negligence for a private plaintiff), in which case you have to prove "Actual Damage" which is the general damage to your reputation preseumed above. Of course if the defamation is just plain ol' slander, then you must prove special damages. But if this teen's words are statements of a factual matter, which some of them appear to be, then what he said is actionable in civil court and damages would not have to be proven because it's libel....Even if it was just spoken, some of what he said could be considered "slander per se", and would have general damages presumed...Ie calling the girls sluts...Because allegations of serious sexual misconduct by a 'WOMAN' is one of the categories of "slander per se" (notice the emphasis on woman which means that allegations of serious sexual misconduct by a man is NOT "slander per se")
That maybe what is codified in UTAH's criminal code for 'Criminal Libel' but that is NOT what defines the common law tort of libel. I defined the common the tort of defamation and libel...I said nothing about it being what was defined in Utah's criminal code as 'Criminal Libel'....That being said Utah's code shows you an example of how some law makers used a tort concept to define something they wanted to make a criminal offense while totally changing the definition in the process....Still doesn't change the fact that no judge in his right mind would allow this case to go forward.
Well yes there is obviously a code section in UTAH making this a crime...otherwise the DA couldn't charge him now could he? The article even states he was charged with 'Criminal Libel' which is obviously on the books....MY point was that defamation doesn't belong in the criminal code...The law of defamation evolved to protect one's interest in one's own reputation....Just where ss the crime against the state to defame someone? Regardless what is in the criminal code...no judge in his right mind would allow such a charge to go forth. It's about as bad as the law against anal or oral sex that is also still in the criminal code of many states.
Slander is spoken defamation...Libel is written defamation....That's the only difference...Both can be a cause of action in civil courts....what this particular instance is about is that UTAH somehow pased a law making it a crime against the state to libel someone...And then this particular DA sees some notoriety in actually charging somebody with this crime...This is ludicrous and should be laughed out of court...Just where is the crime against the state here? It's all about the harm to somebody's reputation...that's it.
Nope....Slander and libel do NOT require malice...The communicator's intentions do NOT matter...what matters is whether or not he knew it was false in the case of a public figure (Actual Malice) or whether he negligently assumed it was true in the case of a private person. The speaker doesn't have to have had ill will towards the person defamed in order to be accountable......And just by saying something is your opinion does NOT get you off the hook...It truly must be a statement of opinion...IE it can't be shown to be either true or false...X is an asshole is an opinion....X is a drunk is a statement of fact and is actionable regardless of whether you state that it's just your opinion.
Where the $#@! did you get that definition??!!! I don't mean to flame here but I just find it sooo funny when lay people try to define legal concepts. Nowhere in the definition of defamation is the requirement that it must be told to '3 or more' people. ONE person is sufficient as long as he is a 3rd party....that means he is neither the communicator, nor the person who was defamed. Here are the elements for defamation...1) Defamatory Communication...ie either Obliguy(defamatory on it's face) or Inducement(extrinsic facts) + Inuendo(defamatory meaning) must be shown...2)Falsity...3)Publication to a 3rd party...4)Basis of fault (Actual Malice or Negligence)...and 5) Damages (General Damages presumed for libel and slander-per-se...unless private P and media D where only negligence is shown, then Actual Damages must be proven[General Damages presumed above] Although not a lawyer yet, I am a law student:) Don't take it too hard...must non-law people posting on this topic have got it wrong too:)
Again your still a little bit wrong here although you are on the right track....Opinions are NOT actionable...TRUE...But what is an opinion? X is an asshole....that's opinion...It's neither true or false...X is a slut...or X is sleeping with students...or X is a drunk...all are statements of fact...they can be proven either true or false...It doesn't matter that the person meant these as his opinion, if it's a false statement of a factual matter...it's actionable. BUT again...this is meant for the civil courts and doesn't belong in the criminal justice system
NOPE...NOT TRUE!! Truth is an ABSOLUTE defense to libel and slander...If the statements are true they can't be defamatory....What you are talking about is a separate tort you may try to bring...Public Disclosure of Private Facts...In that tort, falsity is not a requirement...But in Defamation it is. And this isn't opinion...It's current law as learned by a B+ law student in Torts:)
No your a little wrong there...The legal defination of publishing has nothing to do with the intent of the communicator...It means the statements were conveyed and understood in their defamatory meaning by a 3rd party....So in your example of yelling offensive statements in a crowded room...You CAN be held accountable IF the statements were defamatory and untrue and not just statements of opinion...(the statements must have an element of fact to them..ie they are either true or false)...Same would go to a website...BUT a website would change the defamtion to Libel instead of slander because the statements are in written form. Again though it has nothing to do with the intent of the writter...It's all about whether a 3rd party received and understood the communication in it's defamatory meaning...AND again it should be a civil matter NOT a criminal one. AND I am a law student
See my reply down below...I posted as an anonymous coward because I didn't notice that you could set up a user name:) I'm the law student and I posted the legal definition of Defamation.... To your point....Yes people should be held accountable for their defamtory statements even when it's on a webpage instead of a newspaper...BUT defamation should be a civil action...Just WHERE is the crime against the state here??? The DA has no business getting involved...AND I will be extremely surprised if this goes very far within the criminal justice system. Criminal courts are not there to settle the name calling disputes between kids! No judge in his right mind would allow this case to go forward.
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"The Company will be the sole and final arbiter as to Websites or usages of resources that constitute violation or intent to violate our policies. Those Customers found in violation of these policies are subject to a $300.00 service charge for each instance of violation, exclusive of charges for the bandwidth and/or other resources utilized." Legally that may or may not be ok....I guess it depends on how good a lawyer you get if you want fight it.....This is a Liquidated Damages Clause.....They will be inforced when they seem to be a good approximation of actual damages suffered in the case of a breach.....But this clause seems to take a nature of a punitive damage to me......And that's exactly what I would argue to attack it......Punitive Damages aren't allowed in contract actions and clauses that seem to punish a person for breaking a provision in a contract would normally be invalid. So anyway while I agree with the basic premise of this post (IE that they should be able to conduct buisness in anyway they like), I even said essentially the same thing in another post, this one clause stood out to me as a law student as being suspect. I'm pretty confident a court would invalidate it in an actual lawsuit......Just for your info.
What a load of crap!!! ANYBODY offering a service or selling a product should be allowed to do it in any manner they want (in a non-fraudulent way that is). This is a free market society....NOT a communist one....If you don't like they conditions you are free to go somewhere else. There is plenty of ISPs to choose from.....And sure let's blame it on the lawyers.....IT'S THE ISP THAT DECIDES WHAT THEY WANT, just like with any other company.....They just tell this to their lawyers and leave it up to them to make their desires a reality (and legal). And yes I agree many contracts companies try to use today are abusive, in that they are standard form types and leave no room for negotiation.....But as a law student I still say it is up to you whether to do buisness with them.....If nobody accepted their terms then they would be forced to change their terms.....So you alone are responsible for who you contract with.
I went to the website, but that doesn't have anything to do with copyright law.....It does say something about how the music industry conducts buisness and computes profits.....but ALL those provisions are in the contract the artist signed. If the artist had enough clout or a good enough lawyer, those terms can be changed....I am a law student and am even taking a class in entertainment law where we discuss these very issues. Point is there is nothing in the law that takes these artists rights away from them....They are the ones signing it away by agreeing to the provisions in the contract. Yes, of course many don't have the clout to negotiate the terms, but once they make a name for themselves they will have more power to make deals on their terms. In any case it is up to the artists to learn about the contracts they are signing and ALL the terms contained within. Our prof was telling us about artists who think that they get advances, perks and promotion from the record companies for free....They don't....ALL that money comes out of the artist's share of the profits....IE THEY THEMSELVES are paying for it....The hotels....the limos.....etc....They pay for it....NOT the record companies. And if the record doesn't make money they may even find themselves in the position of owing the record companies money. That's why they need to make damn sure they know what is in the contracts they sign, and how their share of profits is computed....They should also make clear what venues the record company has the rights to....Everywhere else outside of that should be extra royalties....So in other words.....THEY SHOULD HAVE A LAWYER!!!
And how the heck did you reach that conclusion?!!! Authors DO OWN THEIR OWN COPYRIGHTS, unless they happened to sign it away in the recording contract.....But usual practice is to sign licenses, NOT copyrights. BUT there is such a thing as freedom of contract, so you can contract anyway you wish (within limits). But that statute doesn't take away a musician's copyrights, only a contract can do that. AND Copyrights DO expire......Life+70 years for individuals and 90 years for corporations
Actually copyright has been extended 20 years.....It is now life+70 years for individuals and 90 years for corporations......This was passed in response to heavy lobbying from corporations such as Disney
Yes your quoting of Utah's code was on-point to the original article but not in regards to my posting....My original reply was to a discussion of civil defamation...Many were defining it incorrectly and I just replied telling what the correct definition for civil defamation is...Then you come in saying I need to brush up on my legal research....What was that about??? I never maintained that my definition had ANYTHING to do with Utah's criminal code. I don't need to brush up on my legal research...I didn't research Utah's code at all....Why would I want to? I have better things to do than to reseach some backwards state that takes a matter which belongs in the civil courts and clogs up it's criminal justice system with it. My point was and still is that regardless of what the law-makers in Utah put in their code, defamation doesn't belong in the criminal justice system. Even beyond the 1st Amendment issues, it's a frivoulous charge and serves no social purpose beyond clogging up the criminal courts. But then again maybe Utah's criminal courts are pretty clear and they need this to give the DAs something to prosecute :)
Well in your first example you are just stating an opinion...Being labled as lazy is hard to clasify as being a statement of fact...And even if you would classify it as fact...is it defamatory? And is it untrue?....But the biggest hurdle there is no reasonable person would interpret that as a statement of a factual matter and therefore it's just opinion and not actionable...But for libel you do not need to prove damages, general damage to your reputation is presumed and the court can award you acordingly, same is true for narrow cases of slander which would be called "slander per se". Unless you are dealing with a media defendant and prove less than Actual Malice (ie Negligence for a private plaintiff), in which case you have to prove "Actual Damage" which is the general damage to your reputation preseumed above. Of course if the defamation is just plain ol' slander, then you must prove special damages. But if this teen's words are statements of a factual matter, which some of them appear to be, then what he said is actionable in civil court and damages would not have to be proven because it's libel....Even if it was just spoken, some of what he said could be considered "slander per se", and would have general damages presumed...Ie calling the girls sluts...Because allegations of serious sexual misconduct by a 'WOMAN' is one of the categories of "slander per se" (notice the emphasis on woman which means that allegations of serious sexual misconduct by a man is NOT "slander per se")
That maybe what is codified in UTAH's criminal code for 'Criminal Libel' but that is NOT what defines the common law tort of libel. I defined the common the tort of defamation and libel...I said nothing about it being what was defined in Utah's criminal code as 'Criminal Libel'....That being said Utah's code shows you an example of how some law makers used a tort concept to define something they wanted to make a criminal offense while totally changing the definition in the process....Still doesn't change the fact that no judge in his right mind would allow this case to go forward.
Well yes there is obviously a code section in UTAH making this a crime...otherwise the DA couldn't charge him now could he? The article even states he was charged with 'Criminal Libel' which is obviously on the books....MY point was that defamation doesn't belong in the criminal code...The law of defamation evolved to protect one's interest in one's own reputation....Just where ss the crime against the state to defame someone? Regardless what is in the criminal code...no judge in his right mind would allow such a charge to go forth. It's about as bad as the law against anal or oral sex that is also still in the criminal code of many states.
Slander is spoken defamation...Libel is written defamation....That's the only difference...Both can be a cause of action in civil courts....what this particular instance is about is that UTAH somehow pased a law making it a crime against the state to libel someone...And then this particular DA sees some notoriety in actually charging somebody with this crime...This is ludicrous and should be laughed out of court...Just where is the crime against the state here? It's all about the harm to somebody's reputation...that's it.
Nope....Slander and libel do NOT require malice...The communicator's intentions do NOT matter...what matters is whether or not he knew it was false in the case of a public figure (Actual Malice) or whether he negligently assumed it was true in the case of a private person. The speaker doesn't have to have had ill will towards the person defamed in order to be accountable......And just by saying something is your opinion does NOT get you off the hook...It truly must be a statement of opinion...IE it can't be shown to be either true or false...X is an asshole is an opinion....X is a drunk is a statement of fact and is actionable regardless of whether you state that it's just your opinion.
Where the $#@! did you get that definition??!!! I don't mean to flame here but I just find it sooo funny when lay people try to define legal concepts. Nowhere in the definition of defamation is the requirement that it must be told to '3 or more' people. ONE person is sufficient as long as he is a 3rd party....that means he is neither the communicator, nor the person who was defamed. Here are the elements for defamation...1) Defamatory Communication...ie either Obliguy(defamatory on it's face) or Inducement(extrinsic facts) + Inuendo(defamatory meaning) must be shown...2)Falsity...3)Publication to a 3rd party...4)Basis of fault (Actual Malice or Negligence)...and 5) Damages (General Damages presumed for libel and slander-per-se...unless private P and media D where only negligence is shown, then Actual Damages must be proven[General Damages presumed above] Although not a lawyer yet, I am a law student :) Don't take it too hard...must non-law people posting on this topic have got it wrong too :)
Again your still a little bit wrong here although you are on the right track....Opinions are NOT actionable...TRUE...But what is an opinion? X is an asshole....that's opinion...It's neither true or false...X is a slut...or X is sleeping with students...or X is a drunk...all are statements of fact...they can be proven either true or false...It doesn't matter that the person meant these as his opinion, if it's a false statement of a factual matter...it's actionable. BUT again...this is meant for the civil courts and doesn't belong in the criminal justice system
NOPE...NOT TRUE!! Truth is an ABSOLUTE defense to libel and slander...If the statements are true they can't be defamatory....What you are talking about is a separate tort you may try to bring...Public Disclosure of Private Facts...In that tort, falsity is not a requirement...But in Defamation it is. And this isn't opinion...It's current law as learned by a B+ law student in Torts :)
No your a little wrong there...The legal defination of publishing has nothing to do with the intent of the communicator...It means the statements were conveyed and understood in their defamatory meaning by a 3rd party....So in your example of yelling offensive statements in a crowded room...You CAN be held accountable IF the statements were defamatory and untrue and not just statements of opinion...(the statements must have an element of fact to them..ie they are either true or false)...Same would go to a website...BUT a website would change the defamtion to Libel instead of slander because the statements are in written form. Again though it has nothing to do with the intent of the writter...It's all about whether a 3rd party received and understood the communication in it's defamatory meaning...AND again it should be a civil matter NOT a criminal one. AND I am a law student
See my reply down below...I posted as an anonymous coward because I didn't notice that you could set up a user name :) I'm the law student and I posted the legal definition of Defamation.... To your point....Yes people should be held accountable for their defamtory statements even when it's on a webpage instead of a newspaper...BUT defamation should be a civil action...Just WHERE is the crime against the state here??? The DA has no business getting involved...AND I will be extremely surprised if this goes very far within the criminal justice system. Criminal courts are not there to settle the name calling disputes between kids! No judge in his right mind would allow this case to go forward.