"Is there no way that companies could sue Microsoft due to loss of business / bandwidth charges, caused indirectly by poorly written software?"
"Nope, look at your EULA"
"
Microsoft's EULA prohibits me from suing them for bandwith charges for the stuff their crap throws at my Linux/Apache setup?"
"
Well, the EULA still applies:) You couldn't sue Microsoft, but you could sue the companies whos servers are infected(and hence spamming your box)."
The statement that the "EULA still applies" is incorrect. The EULA is not binding on anyone who is not a party to the contract (i.e., the End User License Agreement). There is no privity of contract.
Whether Microsoft could be sued under these circumstances raises an interesting, and to my knowledge unprecedented legal issue. It may be possible. One could assert a civil action for negligence. The plaintiffs would argue that but for Microsoft's negligence, they would not have incurred the bandwidth costs.
Microsoft would, undoubtedly among other things, deny that it was negligent, and raise issues regarding proximate / legal cause, as well as intervening cause.
Let me give you a *possibly* analogous example from the world of torts. You leave your keys in your car, and the doors unlocked. Perpetrator steels your car, is chased by the police, and runs over and kills a child. Perpetrator has no assets. The child's parents sue you for negligence for the wrongful death of their child. Result?
If you say you are not liable, then add these facts. The evidence shows that: (a) you left your car in a horrible neighborhood where cars are routinely stolen; and (b) you knew this fact. Result?
If you still say you are not liable, then add the fact that your car had itself been previously stolen on four occasions within the past year. Result?
I wouldn't be surprised if a well-funded law firm filed a class action lawsuit against MS for negligence and other causes of action. It would be a reach, and very expensive, but the publicity and potential pay off might make it worth it.
AOL-TW doesn't have to power to do something like that to harm Microsoft.
I wonder if that is really true. My question is not rhetorical. I honestly don't know.
Please consider this possibility -- a full press (pun intended:) critical TW media blitz against MS. Critical news stories. Investigative reports. Editorials. Might not that have an effect?
Then again, perhaps NBC would retaliate because of MSNBC.
My brother in law is a contractor, and he has a workshop in his house. That part of the house stays locked when he isn't there. The kids don't have a key. Could you imagine your argument here? The 10 year old knows how to use a jigsaw, and I don't, so I'll just leave him unsupervised with it. It's time to start looking at the computer for what it is, a tool. A computer is not a one way entertainment device, like a television is. Just like any sane parent wouldn't set a 10 year old down in a workshop with power tools, kids shouldn't be abandoned at a computer to entertain themselves.
Is a computer connected to the Internet more like a television set, or like a jigsaw? Which is the better analogy?
Please consider the following thought experiment. Somebody creates a new TV channel, perhaps cable, better yet broadcast. It will be the S&M channel. Not mere porn, that is so passe. The real deal. Men and women who look (and are meant to look) like minors being whipped, caned to blood, fucked, anally fisted, etc.
Children are bored watching TV, randomly "click" on remote, and find the channel. [Better yet, if this is web tv, allow (in the name of free speech) advertisers to send the kids links to the channel in email.] Of course, forbidding the broadcast of such material would be wrong. It would infringe on your rights as an adult to see it. Any parent who complains is bad parent, either lazy or a moron. Said parent should lock the TV in the room when the parent is away. And perhaps explain to his child at the earliest possible age that caning somebody to blood is bad, and anal fisting is dangerous. The only ethically sound solution is for the parent to monitor his child's TV usage 24/7/365.
And of course requiring TV sets to include client side controls -- the dreaded V chip -- is also morally wrong, just like all client side computer censorware is wrong. There might be mistakes in the list! There might be errors!
It is far better that the S&M channel be broadcast, uncensored and unregulated, into all homes. Any parent who can't calmly and adequately deal with such a situation is obviously a bad parent.
and stop depending on the government, the schools and anyone else you can find to do it for you. Sit with your child and talk about it, or do not allow them on the computer unsupervised, seems real simple to me. I have a logon and KIDS DESK running which prevents net access. My son DOES NOT have access to P2P software, he's not old enough to handle it yet. I can understand your concern as a parent, but IN NO WAY DO I AGREE WITH YOU...
Let me address this on two levels. First, the way thing are, and will be, legislatively and legally. Secondly, morally and ethically -- the way things ought to be. (You may, or may not, want to see my sig for the distinction.:)
First, legislatively and legally, the simple truth is, the vast majority of parents -- and thus parents who vote -- are not like you. They have no idea what "P2P" stands for. They have no idea how to install "Kids Desk," and if they do, their kids have a far better idea of how to uninstall and/or circumvent it. They are either members of single-parent households, or have both parents working, and are busy, stressed and always tired. They really don't need to have a new worry -- i.e., that Johnny can now easily download SM videos. You might not like it, and maybe that is not the way "ought" to be, but it is the way things are. Legislation and regulations will be passed, eventually, to serve their needs, not yours. I suspect you are on one end of the bell-shaped curve -- the good end re: intelligence, education, self-discipine, belief in deferred gratification, work ethic, etc. -- but unfortunately that puts you in the minority, and destines you to a large degree of frustration.
Secondly, morally and ethically, I suspect you are a Libertarian and/or a believer in "natural rights" or "natural law." Nothing wrong with that. I have enormous respect for the position. But I tire of people who assume that is the only possible basis for ethics. People who dismiss anything done in democratic society that they don't like as taking away their "rights." The vast majority of people now believe they have a "right" -- if they are in the majority -- to have their will enforced by the governement, with certain constitutional restrictions. Their view is certainly no more ethically sound than yours, but it is also no less.
And if the raise your own kids and be responsible argument is "NOT COMPELLING ENOUGH" then you should be sterilized and your kids given to an "ADULT" who can handle the responsibility.
People make these types of statements all of the time without a response. I almost didn't comment myself. I decided not to let this one go.
Let me undertand this -- because somebody does not satisfy your requirements for a Libertarian uber-parent they should have their kids taken away? Be sterilized? Disgusting. Pathetic.
As many on Slashdot would be the first to recognize, the Internet and peer-to-peer networking really do make a difference. They make easily, and almost instantly, available in the home an enormous amount of information. They also remove gatekeepers. We can recognize this is, on balance, a wonderful thing while also recognizing that it makes parenting a lot more difficult.
It used to be the case that once your kids were past a certain age (i.e., the age where they might set the house on fire, etc.) they were generally fairly safe home -- even home alone. They didn't need constant supervision. Indeed, given that, compared to say 50 years ago, there is greater percentage of two-earner households and one-parent families, society has come to rely on that assumption. Very few families have someone who "stays home and raises the kids" anymore. Those things that were (and are) beemed directly into the home -- i.e., TV, radio -- were censored to at least some extent for the benefit of children. A parent didn't have to worry that his kid would turn on TV, change channels randomly out of boredom, and wind up seeing a small, apparently 14 year old looking girl whipped to blood before being anally fisted. With the Internet, that is a legitmate concern.
Am I suggesting that all of the Internet, and all peer-to-peer networking, must be censored to the level appropriate for 9 year olds? Of course not. What I am saying is that it is a legitimate concern, and one that Slashdot defenders of free speach ignore at the peril.
I've never done this before, and I hope it is not counter-productive, but could a moderator please mod up post #69? It raises many of the concerns parents (and thus legislators) reasonably have, and which many on Slashdot either don't think of or, worse, conveniently ignore.
That seems a bit unjustified considering that the case is still under heavy appeal and that the government still has a long, long, long way to go before they can call this one "done".
Late last month, the Court of Appeals for the D.C. Circuit unanimously found that Microsoft had violated America's antitrust laws. In an unsigned opinion, the court held unequivocally that Microsoft was a monopolist that used its power to protect itself against nascent competition. Yet that's not the way Microsoft--and, in turn, the press--spun it. "Microsoft spared: appeals court overturns breakup order, assails trial judge," proclaimed The San Francisco Chronicle in a typical headline. "Gates wins a round in court," blared a follow-up piece in the Houston Chronicle. That spin isn't just wrong; it signals something dangerous. Much as he did after settling the government's first antitrust case with a consent decree in 1994, Bill Gates has been arguing that this latest ruling permits Microsoft to go on as if nothing had happened. That's not true. And now the Bush administration and the states need to deliver that message very clearly to Chairman Gates.
Prof. Lessig concludes:
In the fall, Microsoft will launch the first versions of its vision of the future--.Net, Hailstorm, and a new version of its operating system, Windows XP. The bundling of disparate software elements into these new products makes the bundling of Windows and Internet Explorer look like child's play. This week, Microsoft freed computer manufacturers to bundle a different browser with Windows XP. But this concession does not begin to address the questions about bundling raised by the court's opinion. Microsoft has bet the company on a strategy of tying together a vast range of products into a single Microsoft platform. From authentication to instant messaging, Windows-flavored code will do it all. No doubt some of this bundling is perfectly OK under the appellate court's test. And it is possible that the bunch together could be developed consistently with the law. But, given the vast range of functions being tied to the operating system, it is impossible to believe that a fair reading of the court's opinion would not raise questions about some--perhaps much--of it. Microsoft's refusal, however, even to acknowledge the principle in the court's opinion--or to acknowledge that this principle is different from the "freedom" it has consistently espoused--forces the government's hand. Were Microsoft willing to talk honestly about the rule the court has set, then relatively simple remedies, perhaps even a fine, would be enough. But when the company insists that black is white--that its "freedom to innovate" has been unaffected by this loss--then it is hard for a government charged with enforcing the law to ask for anything less than the strongest remedy possible--including a breakup. If the company with the greatest power over the Internet's future won't even acknowledge the law, then the government must make sure it can't use its power illegally to direct that future anymore.
(emphasis added) Your entire argument depends upon the accuracy of the above quoted statement. Said statement is incorrect. As a result, your argument fails.
The statement regarding the shotgun was not "clearly" a quote from a book. Because of the perl error, none of the rotating statements were "clearly" quotes from books or other works.
As the article states:
Last week, the administrators at his school just happened to take a look at his webpage when fortune pulled up this quote:
I put the shotgun in an Adidas bag and padded
it out with four pairs of tennis socks, not my style at all, but that was what I was aiming for: If they think you're crude, go technical; if they think you're technical, go crude. I'm a very technical boy. So I decided to get as crude as possible. These days, though, you have to be pretty technical before you can even aspire to crudeness.
- Johnny Mnemonic, by William Gibson
Because only the first line about the shotgun was stored in $f and shown on the webpage, it wasn't immediately obvious that this was a quote.
Given the perl error, it would not only not be "immediately obvious" that the "shotgun" quote was not a quotation from a book or other work, it would not be "immediately obvious" that any of the rotating statements were quotes at all. This is true because, in each case, only the first line was shown and, perhaps more importantly, the attribution line was not displayed. Thus even assuming, as the article asserts, "the staff... had reloaded the page dozens of times," they would not know that any of the rotating statements were quotations from literary works. All they would see were rotating one liners, one of which stated "I put the shotgun in an Adidas bag and padded."
Under these circumstances, contacting the police was reasonable.
The author of the Slashdot article only "assume[s] the staff knew better... because apparently they had reloaded the page dozens of times." As shown above, this assumption is unjustified.
The problem is that they called the police _after_ a staff member confirmed their story.
I am not sure this is true. From the story:
I assume the staff knew better and was just trying to find holes in the kids' stories, because apparently they had reloaded the page dozens of times and, of course, had gotten a new quote each time. After being released, G. got in touch with their Advanced Placement Computer Science teacher, who is, it sounds like, one of the few authority figures working for the Light Side of the Force. Her explanation of fortune was, finally, believed.
But the police
had been called anyway, just to be on the safe side.
The statement "the police had been called anyway" may imply the police had previously been contacted. The writer did not say "the police were called anyway."
The whole document writing process has to be as transparent as selecting fonts, size, justification, etc. with a simple mouse clic on an icon or scrolling menu.
No. First, we start with unlearning past mistakes. It is often handly to have nice, solid piece of wood in your hands at this point, as we teach "You do not want to change fonts and sizes. You want to think about your document's structure and mark it up accordingly."
Yes, we don't have to beat that into "the average John and Jane Doe" or "the average secretary" who just wants to type up a one page letter, but when people are creating real documents structure should be in the front of their minds. Otherwise they're fscked from the start, regardless of technology choices.
I respectfully disagree with you. I believe you may be expressing an attitude that is common on Slashdot. That didactic, paternalistic, "academic" attitude can be summarized as:
Don't give people what they want.
Don't give people what they think they need.
Instead, give people what you think they need.
Instead, give people what you think they ought to have or use.
In a market place, it doesn't work. You do not, in fact, have a "solid piece of wood in your hands" -- if you don't give people what they want and what they believe to be most useful, they will go elsewhere. It is not up to you to "teach" them anything if, as I suspect, they do not want to be taught.
If you want to displace.doc as a standard, you have to be willing to give people the tools they want to use, and not the tools you think they should use.
You might want to look at the following provisions of the United States Code.
17 U.S.C. Sec. 106. Exclusive rights in copyrighted works, provides:
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
17 U.S.C. Sec. 107. Limitations on exclusive rights: Fair use, provides:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Can't happen. Genotype does not define, by itself, adult phenotype; you also need the environment...
Interesting point. However, they covered this in the movie.:)
The effect of the enviroment on a particular individual is just information, largely stored in the brain. The movie dealt with this, by providing a means for duplicating onto disk all of the information in any given person's brain for later download into the clone. Not surprisingly, the bad guy billionaire is quite careful to maintain a good back-up schedule.:)
I say largely stored in the brain become some "enviromental" information might be stored elsehwere -- i.e., such as in the case where a man has had had a leg amputated due to a childhood accident. (An injury that wasn't, of course, repaired by growing a new leg.) The movie even dealt with such "information" in a scene where the clone was provided with the same wound as the original who had cut himself shaving that morning.
Couple of problems. Since the original developers licensed the program that had cddb code in it under a fairly free license, doesn't that mean, that they can't later revert it?
I'm not sure what you are saying here. I think you may be confusing copyright and patent law. Or you may be raising a very interesting question regarding the operaton of the doctrines of waiver, estoppel, and/or an implied in fact or implied in law patent license.
Assume you invent something. The invention is embodied in software. First, you have a copyright on the writing -- i.e., the code. You then -- as and only as a matter of copyright law -- grant a license to others to copy and modify the code. It could be the GPL, BDS license, whatever.
Further assume that -- perhaps unknown to everyone -- you apply for a patent on your invention. The patent is awarded. Does the fact that -- again as and only as a matter of copyright law -- you licnesed others to copy and modify your code effect the validity of your patent? No.
However, the fact you licensed others to copy and use your code may effect the enforceability of your patent -- at least against your copright licensees. A court may say that you have waived any right to obtain damages against such copyright licensee. A court may find you are estopped from obtaining any damges from them for past use. (I would certainly hope, and expect so.) Whether it would prevent you from obtaining injuctive relief regarding future use is an interesting question. A court may find that you have waived such relief, are estopped from seeking such relief, and/or that you granted an implied in law or implied in fact patent license when you granted the copyright license. Again, an interesting issue.
Second, the actual database itself is composed of submissions. Unless, I explicitly disclaim ownership of the submitted data, how can cddb claim to own it? As far as I know, you need to explicitly give away rights.
They don't claim to own the information. They don't claim to have a copyright on the information. They don't, as far as I know, even claim to have a copyright on any particular database. They are claiming a patent on a method of operating, utilizing or making a database. Again, it is important not to confuse patent law with copyrhight law.
In both cases, I'm receiving an electromagnetic signal that my equipment decodes to a sequence of bits, which can be interpreted as an imperfect copy of the original work. People can and do record songs off the radio, and anyone who can't plug their receiver's "Line Out" into their computer's "Line In" should't be operating appliances without adult supervision.
I think the difference is as follows.
First, the "technical" difference, or the legal distinction I suspecct Congress and the courts will make. Assume you turn on an old fashioned "on-air" radio and listen to a song. You do nothing else. Then you turn the radio off. Is the information -- a copy of the information -- still in the radio? No.
Can you listen to the broadcast again (i.e., without it being re-broadcast)? No.
Now assume you listen to an internet radio broadcast. You do nothing else. Then you turn your computer off. Is the information -- a copy of the information -- still on your hard drive? Most likely, yes. Could you listen to it again? Most likely, yes.
Secondly, and what I find interesting, is that everyone who disagrees with what I have to say simply ignores my statistical and economic argument. The simple truth is that very, very few people do, in fact: (a) record songs off of the radio to listen to repeatedly at their convenience; and, most importantly (b) as a result decide not to buy the cd.
In contrast, I strongly suspect that the concern of Congress, as expressed in the DMCA, and the Courts will be that many more people who listen to internet radio broadcasts will retain a copy of the music to listen to at their convenience without paying the copyright holder. Why? Because the copy, even if lossy and not perfect, is much better, and it is easier to do.
The only possible justification is the greater utility of Nth-generation digital copies, but then the onus is upon the government to declare just how crappy a medium must be before it can be used.
Hogwash. The on-air broadcasters are streaming you a perfectly good, analog copy of the music that you can retain and play back at your leisure. You could even make an MP3 of it.
I see your point. However, I'm very confident both Congress and the courts will say you are wrong. While probably not most important (see below), the technical distinction would probably be as follows. With on-air radio, you do not get or have or, most importantly, retain a copy -- i.e., something that is distributable and replayable -- unless you make one. With on-air radio, unless you make the effort to record the broadcast, you retain no copy; you have nothing you can either replay or distribute. Without your independent decision and effort, you retain no physical, electromagnetic or other copy of the work.
In contrast, with internet radio, the radio station makes the copy -- the retainable, distributable electromagnetic manifestation -- and gives it to you. You have to make no effort. Hell, if you want to listen to the internet radio broadcast, you get a copy -- a copy that remains on your computer -- of the song (or other copyrighted work) whether you want one or not.
What's the difference? Careful here... don't say the digital version is a perfect copy. MP3 compression is lossy. It is not a perfect copy. Neither is the analog broadcast.
The difference is in the practical economic impact. Sure, you could record off of on-air radio. You can make MP3s from it. However, how easy, economical and efficient is it to do so? More importantly, how many people (other than those on Slashdot) would be capable of doing so? Most importantly, how many people do it?
Both Congress and the Courts are perfectly willing and able to make distinctions of this kind. The bottom line is that copying off of broadcast radio has negligible adverse impact on the sale of copyrighted works, or on the income to the copyright holders. In contrast, internet radio may have a significant adverse impact. As I say above, the potential adverse impact grows as more and more people get portable, auto and home MP3 players.
It ultimately comes down to money. The RIAA sees a chance to make a few dollars, and jumps on it. Too bad most people in power don't understand the technology. They just believe whatever is spoonfed to them.
No. What I suspect is too bad, at least from your viewpoint, is that they do understand the technology.:) They understand that, unlike on-air radio, internet radio allows the recipient to easily, economically, and efficiently retain a copy of the copyrighted work, without paying the copyright holder.
It doesn't seem clear why these broadcasters should pay a premium over the normal on-air fees. The only reason I can think of is that, theoretically at least, they could have a much larger audience than your average crappy radio station.
Any thoughts? (Apart from the standard capitalist running dogs milking the pennies from the poorest, etc etc).
On-air radio stations don't have to pay the the copyright holders (almost always the record companies) anything because they do not copy the copyrighted work. The fees on-air radio stations pay to ASCAP and BMI are for performance of the copyrighted works.
Unfortunately, the only way internet radio stations can perform a copyrighted work is to transmit a copy to every computer "listening" to the work. A perfect, digital copy that you can retain and play as many times as you want, at your leisure. It is the copying done by internet radio stations, which is not done by on-air radio stations, that make internet radio stations liable to record companies.
That's not the problem. The problem is that on-air radio stations are exempt from paying the record companies for anything more than buying the album (and sometimes the albums or singles are given to them as radio promos and don't cost the station a dime). Radio stations only have to pay the publishers (ASCAP, BMI, etc). Record companies get the boost in promotionals with the idea that radio airplay eventually boosts record sales.
The DMCA unfortunately changed the rules. Because 'net broadcasting using a Digital version of the source (even if weakened by mp3 encoding down to a 22/11 mono file), the DMCA allows the owner of the copyright on the work itself (e.g., the record label in 99.99% of all contracts, exceptions being labels like DGM) is due a royalty. This is a royalty they would NOT pay if they were broadcasting over the air only.
THAT's what radio stations are protesting (and lost) in this case -- having to pay a royalty in one medium (internet) they don't have to pay in another (FM/AM frequencies).
I'm not sure the DMCA so much changes the rules, as it applies the old rules to the new, digital, age.
On-air radio stations are not technically "exempt" from paying the record companies for anything more than buying the album. On-air radio stations don't have to pay the the copyright holders (almost always the record companies) anything because they do not copy the copyrighted work. The fees on-air radio stations pay to ASCAP and BMI are for performance of the copyrighted works.
Unfortunately, the only way internet radio stations can perform a copyrighted work is to transmit a copy to every computer "listening" to the work. A perfect, digital copy that you can retain and play as many times as you want, at your leisure. It is the copying done by internet radio stations, which is not done by on-air radio stations, that make internet radio stations liable to record companies.
Further, from the viewpoint of the record companies, play of a record by an on-air radio station serves only to stimulate album sales. Very, very few people record songs off of the radio instead of buying the album.
The relationship between internet radio and album sales is much more complex. Some people will listen to an internet radio broadcast and then purchase the album. However, others will simply retain the mp3 (or other digital format) file to play at their leisure. This relationship will be come much more problematic as portable, auto, and home MP3 players become more common.
You'll see soon that getting around the US Supreme Court's problems with the details of the decision won't be as easy as you're claiming.
I didn't say it would be easy. I said it probably could be done. Certainly, my use of the term "probably" does not imply "easy."
I still think it probably could be done (i.e., probably meaning > 51% chance of succeeding) for the reasons stated below.
You further state:
In particular, the FSC's argument that they were simply resolving an ambiguity in the Florida statutes is very weak, and the USSC justices' questions in this regard were quite direct in a few instances. They pointed out that:
if a deadline seems rather short, then it's incumbent upon the canvassing board to obtain the resources necessary to meet that deadline. Large counties should be able to just bring in more vote counters if they intend to recount all their votes.
the Florida SC's moving of the deadline wasn't actually a solution to the problem, since there were still counties that didn't complete their counts before the new deadline.
moving the deadline for the protest period actually caused a new conflict with the time allotted for the contest period.
Because of all of this, the Florida SC's decision rather arbitrarily altered a whole scheme that had been set up by the legislators - a body that has the ultimate constitutional authority in determing the rules for an election. The USSC reiterated that ultimate authority in their decision, in effect saying, "If you mess with rules set up by the legislature, you'd better have a *damned* good reason."
You raise good points. However, there are some problems with your argument:
You do not quote anything from the U.S. Supreme Court's slip opinion, you instead quote from questions presented at oral argument. I addressed the specific Federal constitutional and statutory points raised in the slip opinion. This brings us to the second point --
You rely on questions presented by individual Justices at oral argument. Who, and more importantly, how many? Rhenquist, Scalia, Thomas (well, Thomas almost never says anything, but he also almost always does whatever Scalia does), but who else? Do you get to five? Maybe, but I don't think so.
This brings me back to the point I raised in my post above regarding the U.S. Supreme Court's interest in protecting and preserving its own right and power regarding judicial review and statutory interpretation. If the Florida Supreme Court did what I said, would a majority of the U.S. Supreme Court really hold that the Florida Supreme Court went too far? That the interpretation of Florida state law by the highest court in the state of Florida was incorrect? That said interpretation amounted to improper legislation? If the U.S. Supreme Court did this, it would be, to my knowledge (which while not unlimited is also not all that limited), unprecedented, indeed revolutionary. Would the same U.S. Supreme Court do this that has consistently refused to overturn Roe v. Wade? If ever there was a piece of judicial "legislation," it is Roe v. Wade.
Could the U.S. Supreme Court do what you say? Yes, it could. If it did, I think that it would try to limit the scope and effect of its decision by saying that it only applied in the rare (if not this unique) situation where a state legislature is exercising a power delegated by the U.S. Constitution or Congress.
However, I also think many of the Justices -- probably the majority -- would realize that the reasoning and rational of any such decision would
serve to undermine the U.S. Supreme Court's own precedents and power. Certainly, Rhenquist, Thomas and Scalia wouldn't be bothered by this. I think the majority would.
It is a close and interesting question. You may be right. I think you are probably wrong.
The U.S. Supreme Court could then review the new decision by the Florida Supreme Court.
Right, but the USSC isn't going to just let the FSC move a few words around in some disingenuous attempt at keeping their same conclusions without seriously reworking their arguments.
The USSC was obviously trying to both give the FSC a chance to save face while also enforcing conformance with the US Constitution and Federal Statutes. If the FSC doesn't back track a bit and try to avoid the appearance of changing Florida statutory law after the election, their decision will be vacated again or maybe even permanently reversed.
Your analysis is probably incorrect. The Florida Supreme Court could probably, upon reconsideration, clarify its opinion, satisfy the concerns of the U.S. Supreme Court, and reach the same result. I will explain why and how below.
The key passage of the U.S. Supreme Court's slip opinion is where it states:
Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature' s authority under Art. II, 1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U. S. C. 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
First, the Florida Supreme Court would have to rule, "after careful reconsideration":), that the authority delegated to the Florida legislature by Art. II, 1, cl. 2 of the U.S. Constitution is in no way adversely effected by, subject to, or circumscribed by the Florida Constitution.
Secondly, the Florida Supreme Court would have to make sure, as indicated above, that its new ruling complies with the Federal Statute 3 U.S.C. 5. As the U.S. Supreme Court's slip opinion states:
3 U. S. C. 5 provides in pertinent part: "If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
In order to comply with this section, the Florida Supreme Court need only make it clear that the state "laws enacted prior to the day fixed for the appointment of the electors," include two components: (a) the "hard" deadline the Republicans are relying upon; and (b) the statutory provisions for both machine and hand recounts. Next, the Florida Supreme Court states that there is: (1) statutory ambiguity not in the "hard" deadline alone, but when the statutes [(a) and (b)] are construed together; and/or (2) a conflict in the statutes [(a) and (b)] in that it is not possible to comply with the "hard" deadline and still have a recount, and particularly a hand recount, as provided by statute. A basic and frequently used principle of statutory construction is that when there is either an apparent ambiguity or conflict in a statutory scheme, the court should do its best interpret all of the statutes in the scheme in such a way that none of them is rendered meaningless, superfluous, or impotent. The Florida Supreme Court would then conclude that, as the highest Court in the state of Florida, and exercising its duty and power to interpret Florida law, that the "hard" certification deadline is subject to the right to machine or hand recount. In other words, there can be a machine or hand recount after the certification, if the requirements for a recount are satisfied. The Florida Supreme Court could point out that such a result is not at all dissimilar from the analogous result that nobody has challenged -- i.e., that there can be a challenge after certification. The Florida Supreme Court could also argue that to rule otherwise would nullify and vitiate the statutory right to recount.
This result would satisfy both Art. II, 1, cl. 2 of the U.S. Constitution, and the Federal Statute 3 U.S.C. 5. In other words, it would satisfy the federal questions raised by the U.S. Supreme Court. The U.S. Supreme Court does not have any power to challenge the Florida Supreme Court's interpretation of state law.
You might complain that the Florida Supreme Court would not be interpreting the law, but instead "making it." If you read the U.S. Supreme Court's slip opinion (which I posted below) that was not precisely its concern. (The U.S. Supreme Court's federal question concerns are specified and addressed above.) Further, courts "make law" all of the time when they interpret statutes. The U.S. Supreme Court knows it because it does it all of the time. For the U.S. Supreme Court to call into question the right and power of the Florida Supreme Court to interpret state law would only serve to undermine the doctrines of statutory interpretation and judicial review, and, most importantly, undermine the U.S. Supreme Court's right and power to interpret federal statutes and constitutional provisions.
The Bush campaign did not ask for the decision to be overturned, they specifically asked for it to be set aside. The Supreme Court decided in favor of Bush, so as requested the Florida decision was set aside.
I don't want to be rude, but you are simply wrong regarding the effect of the U.S. Supreme Court's decision.
The U.S. Supreme Court's slip opinion, which I posted below, does not reverse the opinion of the Florida Supreme Court, it instead vacates and remands the decision in order to obtain clarification. The U.S. Supreme Court specifically states:
It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases." Id., at 557.
Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature' s authority under Art. II, 1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U. S. C. 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Thus, even this specific matter is far from over. The Florida Supreme Court could clarify its decision, make it clear that it knows that the Florida Constitution does not circumscribe the legislature' s authority under Art. II, 1, cl. 2 of the U.S. Constitution, and reach the same result. The U.S. Supreme Court could then review the new decision by the Florida Supreme Court.
They've ruled against the Florida Supreme Court, meaning that Bush is the winner, insofar that hand-counted ballots won't count. What's interesting here is that inadverently, GWB's case has transferred a significant amount of power from the States to the Federal Government
Perhaps I shouldn't say this, but the editorial staff of Slashdot have as much business commenting on complex Supreme Court decisions concerning federalism, constitutional and statutory construction as I have commenting on the Linux kernel -- i.e., not much.
First, the U.S. Supreme Court's slip opinion, which I posted above, does not reverse the opinion of the Florida Supreme Court, it instead vacates and remands the decision in order to obtain clarification. The U.S. Supreme Court specifically states:
Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature' s authority under Art. II, 1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U. S. C. 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Thus, even this specific matter is far from over. The Florida Supreme Court could clarify its decision, make it clear that the Florida Supreme Court saw the Florida Constitution does not circumscribe the legislature' s authority under Art. II, 1, cl. 2 of the U.S. Constitution, and reach the same result, which the U.S. Supreme Court could then review.
Secondly, that statement that the "case has transferred a significant amount of power from the States to the Federal Government," is simply wrong. The Supreme Court's decision is extremely narrow, and deals with the rare (and perhaps unique) situation where the U.S. Constitution delegates federal power to a state legislature. The U.S. Supreme Court took great pains to make sure that this case does not effect other federalism issues and Supreme Court precedents.
A copy of the Supreme Court's slip opinion is quoted below:
"(Slip Opinion) Cite as: 531 U. S. ____ (2000) 1
Per Curiam
NOTICE:
This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 00- 836
GEORGE W. BUSH, PETITIONER v. PALM BEACH COUNTY CANVASSING BOARD ET AL.
ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT [December 4, 2000]
PER CURIAM. The Supreme Court of the State of Florida interpreted its elections statutes in proceedings brought to require manual recounts of ballots, and the certification of the recount results, for votes cast in the quadrennial Presidential election held on November 7, 2000. Governor George W. Bush, Republican candidate for the Presidency, filed a petition for certiorari to review the Florida Supreme Court decision. We granted certiorari on two of the questions presented by petitioner: whether the decision of the Florida Supreme Court, by effectively changing the State' s elector appointment procedures after election day, violated the Due Process Clause or 3 U. S. C. 5, and whether the decision of that court changed the manner in which the State' s electors are to be selected, in violation of the legislature' s power to designate the manner for selection under Art. II, 1, cl. 2 of the United States Constitution. 531 U. S. ____ (2000).
On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that Governor Bush had received 2,909,135 votes, and respondent Democrat Vice President Albert Gore, Jr., had received 2,907,351, a margin of 1,784 in Governor Bush' s favor. Under Fla. Stat. 102.141( 4) (2000), because the margin of victory was equal to or less than one-half of one percent of the votes cast, an automatic machine recount occurred. The recount resulted in a much smaller margin of victory for Governor Bush. Vice President Gore then exercised his statutory right to submit written requests for manual recounts to the canvassing board of any county. See 102.166. He requested recounts in four counties: Volusia, Palm Beach, Broward, and Miami- Dade.
The parties urged conflicting interpretations of the Florida Election Code respecting the authority of the canvassing boards, the Secretary of State (hereinafter Secretary), and the Elections Canvassing Commission. On November 14, in an action brought by Volusia County, and joined by the Palm Beach County Canvassing Board, Vice President Gore, and the Florida Democratic Party, the Florida Circuit Court ruled that the statutory 7- day deadline was mandatory, but that the Volusia board could amend its returns at a later date. The court further ruled that the Secretary, after "considering all attendant facts and circumstances," App. to Pet. for Cert. 49a, could exercise her discretion in deciding whether to include the late amended returns in the statewide certification.
The Secretary responded by issuing a set of criteria by which she would decide whether to allow a late filing. The Secretary ordered that, by 2 p. m. the following day, November 15, any county desiring to forward late returns submit a written statement of the facts and circumstances justifying a later filing. Four counties submitted statements and, after reviewing the submissions, the Secretary determined that none justified an extension of the filing deadline. On November 16, the Florida Democratic Party and Vice President Gore filed an emergency motion in the state court, arguing that the Secretary had acted arbitrarily and in contempt of the court' s earlier ruling. The following day, the court denied the motion, ruling that the Secretary had not acted arbitrarily and had exercised her discretion in a reasonable manner consistent with the court' s earlier ruling. The Democratic Party and Vice President Gore appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court. That court accepted jurisdiction and sua sponte entered an order enjoining the Secretary and the Elections Canvassing Commission from finally certifying the results of the election and declaring a winner until further order of that court.
The Supreme Court, with the expedition requisite for the controversy, issued its decision on November 21. Palm Beach County Canvassing Bd. v. Harris, Nos. SC00- 2346, SC00- 2348, and SC00- 2349 (Nov. 21, 2000), App. to Pet. for Cert. 1a. As the court saw the matter, there were two principal questions: whether a discrepancy between an original machine return and a sample manual recount resulting from the way a ballot has been marked or punched is an "error in vote tabulation" justifying a full manual recount; and how to reconcile what it spoke of as two conflicts in Florida' s election laws: (a) between the time frame for conducting a manual recount under Fla. Stat. 102.166 (2000) and the time frame for submitting county returns under 102.111 and 102.112, and (b) between 102.111, which provides that the Secretary "shall . . . ignor[ e]" late election returns, and 102.112, which provides that she "may . . . ignor[ e]" such returns.
With regard to the first issue, the court held that, under the plain text of the statute, a discrepancy between a sample manual recount and machine returns due to the way in which a ballot was punched or marked did constitute an "error in vote tabulation" sufficient to trigger the statutory provisions for a full manual recount.
With regard to the second issue, the court held that the "shall . . . ignor[ e]" provision of 102.111 conflicts with the "may . . . ignor[ e]" provision of 102.112, and that the "may . . . ignor[ e]" provision controlled. The court turned to the questions whether and when the Secretary may ignore late manual recounts. The court relied in part upon the right to vote set forth in the Declaration of Rights of the Florida Constitution in concluding that late manual recounts could be rejected only under limited circumstances. The court then stated: "[ B] ecause of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy . . .." App. to Pet. for Cert. 37a. The court thus imposed a deadline of November 26, at 5 p. m., for a return of ballot counts. The 7- day deadline of 102.111, assuming it would have applied, was effectively extended by 12 days. The court further directed the Secretary to accept manual counts submitted prior to that deadline.
As a general rule, this Court defers to a state court' s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, 1, cl. 2, of the United States Constitution. That provision reads:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . .."
Although we did not address the same question petitioner raises here, in McPherson v. Blacker, 146 U. S. 1, 25 (1892), we said: [ Art. II, 1, cl. 2] does not read that the people or the citizens shall appoint, but that 'each State shall' ; and if the words ' in such manner as the legislature thereof may direct,' had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself."
There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, 1, cl. 2, "circumscribe the legislative power." The opinion states, for example, that "[ t] o the extent that the Legislature may enact laws regulating the electoral process, those laws are valid only if they impose no ' unreasonable or unnecessary' restraints on the right of suffrage" guaranteed by the state constitution. App. to Pet. for Cert. 30a. The opinion also states that "[ b] ecause election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens' right to vote . . .." Ibid.
In addition, 3 U. S. C. 5 provides in pertinent part: "If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the
6 BUSH v. PALM BEACH COUNTY CANVASSING BD. Per Curiam
counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned."
The parties before us agree that whatever else may be the effect of this section, it creates a "safe harbor" for a State insofar as congressional consideration of its electoral votes is concerned. If the state legislature has provided for final determination of contests or controversies by a law made prior to election day, that determination shall be conclusive if made at least six days prior to said time of meeting of the electors. The Florida Supreme Court cited 3 U. S. C. 1- 10 in a footnote of its opinion, App. to Pet. for Cert. 32a, n. 55, but did not discuss 5. Since 5 contains a principle of federal law that would assure finality of the State' s determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the "safe harbor" would counsel against any construction of the Election Code that Congress might deem to be a change in the law.
After reviewing the opinion of the Florida Supreme Court, we find "that there is considerable uncertainty as to the precise grounds for the decision." Minnesota v. National Tea Co., 309 U. S. 551, 555 (1940). This is sufficient reason for us to decline at this time to review the federal questions asserted to be present. See ibid.
"It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases." Id., at 557.
Cite as: 531 U. S. ____ (2000) 7 Per Curiam
Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature' s authority under Art. II, 1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U. S. C. 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It would seem that old-fashioned face-to-face contact is somehow becoming unfashionable. The Internet does not provide an adequate replacement for physical socialising.
Slashdot Mirror
"Is there no way that companies could sue Microsoft due to loss of business / bandwidth charges, caused indirectly by poorly written software?"
"Nope, look at your EULA" The statement that the "EULA still applies" is incorrect. The EULA is not binding on anyone who is not a party to the contract (i.e., the End User License Agreement). There is no privity of contract.
Whether Microsoft could be sued under these circumstances raises an interesting, and to my knowledge unprecedented legal issue. It may be possible. One could assert a civil action for negligence. The plaintiffs would argue that but for Microsoft's negligence, they would not have incurred the bandwidth costs.
Microsoft would, undoubtedly among other things, deny that it was negligent, and raise issues regarding proximate / legal cause, as well as intervening cause.
Let me give you a *possibly* analogous example from the world of torts. You leave your keys in your car, and the doors unlocked. Perpetrator steels your car, is chased by the police, and runs over and kills a child. Perpetrator has no assets. The child's parents sue you for negligence for the wrongful death of their child. Result?
If you say you are not liable, then add these facts. The evidence shows that: (a) you left your car in a horrible neighborhood where cars are routinely stolen; and (b) you knew this fact. Result?
If you still say you are not liable, then add the fact that your car had itself been previously stolen on four occasions within the past year. Result?
I wouldn't be surprised if a well-funded law firm filed a class action lawsuit against MS for negligence and other causes of action. It would be a reach, and very expensive, but the publicity and potential pay off might make it worth it.
I wonder if that is really true. My question is not rhetorical. I honestly don't know.
Please consider this possibility -- a full press (pun intended
Then again, perhaps NBC would retaliate because of MSNBC.
Is a computer connected to the Internet more like a television set, or like a jigsaw? Which is the better analogy?
Please consider the following thought experiment. Somebody creates a new TV channel, perhaps cable, better yet broadcast. It will be the S&M channel. Not mere porn, that is so passe. The real deal. Men and women who look (and are meant to look) like minors being whipped, caned to blood, fucked, anally fisted, etc.
Children are bored watching TV, randomly "click" on remote, and find the channel. [Better yet, if this is web tv, allow (in the name of free speech) advertisers to send the kids links to the channel in email.] Of course, forbidding the broadcast of such material would be wrong. It would infringe on your rights as an adult to see it. Any parent who complains is bad parent, either lazy or a moron. Said parent should lock the TV in the room when the parent is away. And perhaps explain to his child at the earliest possible age that caning somebody to blood is bad, and anal fisting is dangerous. The only ethically sound solution is for the parent to monitor his child's TV usage 24/7/365.
And of course requiring TV sets to include client side controls -- the dreaded V chip -- is also morally wrong, just like all client side computer censorware is wrong. There might be mistakes in the list! There might be errors!
It is far better that the S&M channel be broadcast, uncensored and unregulated, into all homes. Any parent who can't calmly and adequately deal with such a situation is obviously a bad parent.
Let me address this on two levels. First, the way thing are, and will be, legislatively and legally. Secondly, morally and ethically -- the way things ought to be. (You may, or may not, want to see my sig for the distinction.
First, legislatively and legally, the simple truth is, the vast majority of parents -- and thus parents who vote -- are not like you. They have no idea what "P2P" stands for. They have no idea how to install "Kids Desk," and if they do, their kids have a far better idea of how to uninstall and/or circumvent it. They are either members of single-parent households, or have both parents working, and are busy, stressed and always tired. They really don't need to have a new worry -- i.e., that Johnny can now easily download SM videos. You might not like it, and maybe that is not the way "ought" to be, but it is the way things are. Legislation and regulations will be passed, eventually, to serve their needs, not yours. I suspect you are on one end of the bell-shaped curve -- the good end re: intelligence, education, self-discipine, belief in deferred gratification, work ethic, etc. -- but unfortunately that puts you in the minority, and destines you to a large degree of frustration.
Secondly, morally and ethically, I suspect you are a Libertarian and/or a believer in "natural rights" or "natural law." Nothing wrong with that. I have enormous respect for the position. But I tire of people who assume that is the only possible basis for ethics. People who dismiss anything done in democratic society that they don't like as taking away their "rights." The vast majority of people now believe they have a "right" -- if they are in the majority -- to have their will enforced by the governement, with certain constitutional restrictions. Their view is certainly no more ethically sound than yours, but it is also no less. People make these types of statements all of the time without a response. I almost didn't comment myself. I decided not to let this one go.
Let me undertand this -- because somebody does not satisfy your requirements for a Libertarian uber-parent they should have their kids taken away? Be sterilized? Disgusting. Pathetic.
As many on Slashdot would be the first to recognize, the Internet and peer-to-peer networking really do make a difference. They make easily, and almost instantly, available in the home an enormous amount of information. They also remove gatekeepers. We can recognize this is, on balance, a wonderful thing while also recognizing that it makes parenting a lot more difficult.
It used to be the case that once your kids were past a certain age (i.e., the age where they might set the house on fire, etc.) they were generally fairly safe home -- even home alone. They didn't need constant supervision. Indeed, given that, compared to say 50 years ago, there is greater percentage of two-earner households and one-parent families, society has come to rely on that assumption. Very few families have someone who "stays home and raises the kids" anymore. Those things that were (and are) beemed directly into the home -- i.e., TV, radio -- were censored to at least some extent for the benefit of children. A parent didn't have to worry that his kid would turn on TV, change channels randomly out of boredom, and wind up seeing a small, apparently 14 year old looking girl whipped to blood before being anally fisted. With the Internet, that is a legitmate concern.
Am I suggesting that all of the Internet, and all peer-to-peer networking, must be censored to the level appropriate for 9 year olds? Of course not. What I am saying is that it is a legitimate concern, and one that Slashdot defenders of free speach ignore at the peril.
I've never done this before, and I hope it is not counter-productive, but could a moderator please mod up post #69? It raises many of the concerns parents (and thus legislators) reasonably have, and which many on Slashdot either don't think of or, worse, conveniently ignore.
Thank you.
Candidates are like operating systems -- they all suck. However, some suck less.
You might want to read an article by Lawrence Lessig, a professor at Stanford Law School, on the The New Republic website entitled "WILL MICROSOFT ADMIT IT HAS LOST? Antitrust and Verify".
In the article, Prof. Lessig initially notes: Prof. Lessig concludes:
(emphasis added) Your entire argument depends upon the accuracy of the above quoted statement. Said statement is incorrect. As a result, your argument fails.
The statement regarding the shotgun was not "clearly" a quote from a book. Because of the perl error, none of the rotating statements were "clearly" quotes from books or other works.
As the article states: Given the perl error, it would not only not be "immediately obvious" that the "shotgun" quote was not a quotation from a book or other work, it would not be "immediately obvious" that any of the rotating statements were quotes at all. This is true because, in each case, only the first line was shown and, perhaps more importantly, the attribution line was not displayed. Thus even assuming, as the article asserts, "the staff... had reloaded the page dozens of times," they would not know that any of the rotating statements were quotations from literary works. All they would see were rotating one liners, one of which stated "I put the shotgun in an Adidas bag and padded."
Under these circumstances, contacting the police was reasonable.
The author of the Slashdot article only "assume[s] the staff knew better... because apparently they had reloaded the page dozens of times." As shown above, this assumption is unjustified.
I am not sure this is true. From the story: The statement "the police had been called anyway" may imply the police had previously been contacted. The writer did not say "the police were called anyway."
I respectfully disagree with you. I believe you may be expressing an attitude that is common on Slashdot. That didactic, paternalistic, "academic" attitude can be summarized as:
Don't give people what they want.
Don't give people what they think they need.
Instead, give people what you think they need.
Instead, give people what you think they ought to have or use.
In a market place, it doesn't work. You do not, in fact, have a "solid piece of wood in your hands" -- if you don't give people what they want and what they believe to be most useful, they will go elsewhere. It is not up to you to "teach" them anything if, as I suspect, they do not want to be taught.
If you want to displace
You might want to look at the following provisions of the United States Code.
17 U.S.C. Sec. 106. Exclusive rights in copyrighted works, provides: See: 17 U.S.C. Sec. 106.
17 U.S.C. Sec. 107. Limitations on exclusive rights: Fair use, provides: See: 17 U.S.C. Sec. 107.
You also have to look at trademark and unfair competition law.
Interesting point. However, they covered this in the movie.
The effect of the enviroment on a particular individual is just information, largely stored in the brain. The movie dealt with this, by providing a means for duplicating onto disk all of the information in any given person's brain for later download into the clone. Not surprisingly, the bad guy billionaire is quite careful to maintain a good back-up schedule.
I say largely stored in the brain become some "enviromental" information might be stored elsehwere -- i.e., such as in the case where a man has had had a leg amputated due to a childhood accident. (An injury that wasn't, of course, repaired by growing a new leg.) The movie even dealt with such "information" in a scene where the clone was provided with the same wound as the original who had cut himself shaving that morning.
I'm not sure what you are saying here. I think you may be confusing copyright and patent law. Or you may be raising a very interesting question regarding the operaton of the doctrines of waiver, estoppel, and/or an implied in fact or implied in law patent license.
Assume you invent something. The invention is embodied in software. First, you have a copyright on the writing -- i.e., the code. You then -- as and only as a matter of copyright law -- grant a license to others to copy and modify the code. It could be the GPL, BDS license, whatever.
Further assume that -- perhaps unknown to everyone -- you apply for a patent on your invention. The patent is awarded. Does the fact that -- again as and only as a matter of copyright law -- you licnesed others to copy and modify your code effect the validity of your patent? No.
However, the fact you licensed others to copy and use your code may effect the enforceability of your patent -- at least against your copright licensees. A court may say that you have waived any right to obtain damages against such copyright licensee. A court may find you are estopped from obtaining any damges from them for past use. (I would certainly hope, and expect so.) Whether it would prevent you from obtaining injuctive relief regarding future use is an interesting question. A court may find that you have waived such relief, are estopped from seeking such relief, and/or that you granted an implied in law or implied in fact patent license when you granted the copyright license. Again, an interesting issue.
They don't claim to own the information. They don't claim to have a copyright on the information. They don't, as far as I know, even claim to have a copyright on any particular database. They are claiming a patent on a method of operating, utilizing or making a database. Again, it is important not to confuse patent law with copyrhight law.
I think the difference is as follows.
First, the "technical" difference, or the legal distinction I suspecct Congress and the courts will make. Assume you turn on an old fashioned "on-air" radio and listen to a song. You do nothing else. Then you turn the radio off. Is the information -- a copy of the information -- still in the radio? No. Can you listen to the broadcast again (i.e., without it being re-broadcast)? No.
Now assume you listen to an internet radio broadcast. You do nothing else. Then you turn your computer off. Is the information -- a copy of the information -- still on your hard drive? Most likely, yes. Could you listen to it again? Most likely, yes.
Secondly, and what I find interesting, is that everyone who disagrees with what I have to say simply ignores my statistical and economic argument. The simple truth is that very, very few people do, in fact: (a) record songs off of the radio to listen to repeatedly at their convenience; and, most importantly (b) as a result decide not to buy the cd.
In contrast, I strongly suspect that the concern of Congress, as expressed in the DMCA, and the Courts will be that many more people who listen to internet radio broadcasts will retain a copy of the music to listen to at their convenience without paying the copyright holder. Why? Because the copy, even if lossy and not perfect, is much better, and it is easier to do. They just did.
I see your point. However, I'm very confident both Congress and the courts will say you are wrong. While probably not most important (see below), the technical distinction would probably be as follows. With on-air radio, you do not get or have or, most importantly, retain a copy -- i.e., something that is distributable and replayable -- unless you make one. With on-air radio, unless you make the effort to record the broadcast, you retain no copy; you have nothing you can either replay or distribute. Without your independent decision and effort, you retain no physical, electromagnetic or other copy of the work.
In contrast, with internet radio, the radio station makes the copy -- the retainable, distributable electromagnetic manifestation -- and gives it to you. You have to make no effort. Hell, if you want to listen to the internet radio broadcast, you get a copy -- a copy that remains on your computer -- of the song (or other copyrighted work) whether you want one or not.
The difference is in the practical economic impact. Sure, you could record off of on-air radio. You can make MP3s from it. However, how easy, economical and efficient is it to do so? More importantly, how many people (other than those on Slashdot) would be capable of doing so? Most importantly, how many people do it?
Both Congress and the Courts are perfectly willing and able to make distinctions of this kind. The bottom line is that copying off of broadcast radio has negligible adverse impact on the sale of copyrighted works, or on the income to the copyright holders. In contrast, internet radio may have a significant adverse impact. As I say above, the potential adverse impact grows as more and more people get portable, auto and home MP3 players.
No. What I suspect is too bad, at least from your viewpoint, is that they do understand the technology.
On-air radio stations don't have to pay the the copyright holders (almost always the record companies) anything because they do not copy the copyrighted work. The fees on-air radio stations pay to ASCAP and BMI are for performance of the copyrighted works.
Unfortunately, the only way internet radio stations can perform a copyrighted work is to transmit a copy to every computer "listening" to the work. A perfect, digital copy that you can retain and play as many times as you want, at your leisure. It is the copying done by internet radio stations, which is not done by on-air radio stations, that make internet radio stations liable to record companies.
I'm not sure the DMCA so much changes the rules, as it applies the old rules to the new, digital, age.
On-air radio stations are not technically "exempt" from paying the record companies for anything more than buying the album. On-air radio stations don't have to pay the the copyright holders (almost always the record companies) anything because they do not copy the copyrighted work. The fees on-air radio stations pay to ASCAP and BMI are for performance of the copyrighted works.
Unfortunately, the only way internet radio stations can perform a copyrighted work is to transmit a copy to every computer "listening" to the work. A perfect, digital copy that you can retain and play as many times as you want, at your leisure. It is the copying done by internet radio stations, which is not done by on-air radio stations, that make internet radio stations liable to record companies.
Further, from the viewpoint of the record companies, play of a record by an on-air radio station serves only to stimulate album sales. Very, very few people record songs off of the radio instead of buying the album.
The relationship between internet radio and album sales is much more complex. Some people will listen to an internet radio broadcast and then purchase the album. However, others will simply retain the mp3 (or other digital format) file to play at their leisure. This relationship will be come much more problematic as portable, auto, and home MP3 players become more common.
I didn't say it would be easy. I said it probably could be done. Certainly, my use of the term "probably" does not imply "easy."
I still think it probably could be done (i.e., probably meaning > 51% chance of succeeding) for the reasons stated below.
You further state: You raise good points. However, there are some problems with your argument:
- You do not quote anything from the U.S. Supreme Court's slip opinion, you instead quote from questions presented at oral argument. I addressed the specific Federal constitutional and statutory points raised in the slip opinion. This brings us to the second point --
- You rely on questions presented by individual Justices at oral argument. Who, and more importantly, how many? Rhenquist, Scalia, Thomas (well, Thomas almost never says anything, but he also almost always does whatever Scalia does), but who else? Do you get to five? Maybe, but I don't think so.
This brings me back to the point I raised in my post above regarding the U.S. Supreme Court's interest in protecting and preserving its own right and power regarding judicial review and statutory interpretation. If the Florida Supreme Court did what I said, would a majority of the U.S. Supreme Court really hold that the Florida Supreme Court went too far? That the interpretation of Florida state law by the highest court in the state of Florida was incorrect? That said interpretation amounted to improper legislation? If the U.S. Supreme Court did this, it would be, to my knowledge (which while not unlimited is also not all that limited), unprecedented, indeed revolutionary. Would the same U.S. Supreme Court do this that has consistently refused to overturn Roe v. Wade? If ever there was a piece of judicial "legislation," it is Roe v. Wade.Could the U.S. Supreme Court do what you say? Yes, it could. If it did, I think that it would try to limit the scope and effect of its decision by saying that it only applied in the rare (if not this unique) situation where a state legislature is exercising a power delegated by the U.S. Constitution or Congress.
However, I also think many of the Justices -- probably the majority -- would realize that the reasoning and rational of any such decision would serve to undermine the U.S. Supreme Court's own precedents and power. Certainly, Rhenquist, Thomas and Scalia wouldn't be bothered by this. I think the majority would.
It is a close and interesting question. You may be right. I think you are probably wrong.
Your analysis is probably incorrect. The Florida Supreme Court could probably, upon reconsideration, clarify its opinion, satisfy the concerns of the U.S. Supreme Court, and reach the same result. I will explain why and how below.
The key passage of the U.S. Supreme Court's slip opinion is where it states: First, the Florida Supreme Court would have to rule, "after careful reconsideration"
Secondly, the Florida Supreme Court would have to make sure, as indicated above, that its new ruling complies with the Federal Statute 3 U.S.C. 5. As the U.S. Supreme Court's slip opinion states: In order to comply with this section, the Florida Supreme Court need only make it clear that the state "laws enacted prior to the day fixed for the appointment of the electors," include two components: (a) the "hard" deadline the Republicans are relying upon; and (b) the statutory provisions for both machine and hand recounts. Next, the Florida Supreme Court states that there is: (1) statutory ambiguity not in the "hard" deadline alone, but when the statutes [(a) and (b)] are construed together; and/or (2) a conflict in the statutes [(a) and (b)] in that it is not possible to comply with the "hard" deadline and still have a recount, and particularly a hand recount, as provided by statute. A basic and frequently used principle of statutory construction is that when there is either an apparent ambiguity or conflict in a statutory scheme, the court should do its best interpret all of the statutes in the scheme in such a way that none of them is rendered meaningless, superfluous, or impotent. The Florida Supreme Court would then conclude that, as the highest Court in the state of Florida, and exercising its duty and power to interpret Florida law, that the "hard" certification deadline is subject to the right to machine or hand recount. In other words, there can be a machine or hand recount after the certification, if the requirements for a recount are satisfied. The Florida Supreme Court could point out that such a result is not at all dissimilar from the analogous result that nobody has challenged -- i.e., that there can be a challenge after certification. The Florida Supreme Court could also argue that to rule otherwise would nullify and vitiate the statutory right to recount.
This result would satisfy both Art. II, 1, cl. 2 of the U.S. Constitution, and the Federal Statute 3 U.S.C. 5. In other words, it would satisfy the federal questions raised by the U.S. Supreme Court. The U.S. Supreme Court does not have any power to challenge the Florida Supreme Court's interpretation of state law.
You might complain that the Florida Supreme Court would not be interpreting the law, but instead "making it." If you read the U.S. Supreme Court's slip opinion (which I posted below) that was not precisely its concern. (The U.S. Supreme Court's federal question concerns are specified and addressed above.) Further, courts "make law" all of the time when they interpret statutes. The U.S. Supreme Court knows it because it does it all of the time. For the U.S. Supreme Court to call into question the right and power of the Florida Supreme Court to interpret state law would only serve to undermine the doctrines of statutory interpretation and judicial review, and, most importantly, undermine the U.S. Supreme Court's right and power to interpret federal statutes and constitutional provisions.
I don't want to be rude, but you are simply wrong regarding the effect of the U.S. Supreme Court's decision.
The U.S. Supreme Court's slip opinion, which I posted below, does not reverse the opinion of the Florida Supreme Court, it instead vacates and remands the decision in order to obtain clarification. The U.S. Supreme Court specifically states: Thus, even this specific matter is far from over. The Florida Supreme Court could clarify its decision, make it clear that it knows that the Florida Constitution does not circumscribe the legislature' s authority under Art. II, 1, cl. 2 of the U.S. Constitution, and reach the same result. The U.S. Supreme Court could then review the new decision by the Florida Supreme Court.
In his editorial comment, Hemos stated: Perhaps I shouldn't say this, but the editorial staff of Slashdot have as much business commenting on complex Supreme Court decisions concerning federalism, constitutional and statutory construction as I have commenting on the Linux kernel -- i.e., not much.
First, the U.S. Supreme Court's slip opinion, which I posted above, does not reverse the opinion of the Florida Supreme Court, it instead vacates and remands the decision in order to obtain clarification. The U.S. Supreme Court specifically states: Thus, even this specific matter is far from over. The Florida Supreme Court could clarify its decision, make it clear that the Florida Supreme Court saw the Florida Constitution does not circumscribe the legislature' s authority under Art. II, 1, cl. 2 of the U.S. Constitution, and reach the same result, which the U.S. Supreme Court could then review.
Secondly, that statement that the "case has transferred a significant amount of power from the States to the Federal Government," is simply wrong. The Supreme Court's decision is extremely narrow, and deals with the rare (and perhaps unique) situation where the U.S. Constitution delegates federal power to a state legislature. The U.S. Supreme Court took great pains to make sure that this case does not effect other federalism issues and Supreme Court precedents.
A copy of the Supreme Court's slip opinion is quoted below: Source: Dec. 4: High court ruling on recounts.
You might be interested in the book (and website) Bowling Alone: The Collapse and Revival of American Community, which addresses at least some of your concerns regarding the need for "physical socialising."
There is an article by the author of the book, Robert Putnam, here: Bowling Alone: America's Declining Social Capital.
There is an interview with the author here: An interview with Robert Putnam about America's collapsing civic life.
I didn't. Then again, I haven't seen the movie yet.
Thanks.