I love Bryant Park, too! You know, this wireless access has been around for a while, actually -- I got my wireless card in May, and was surfing at the park all summer long.
BTW, Bryant Park is much closer to Times Square (a couple blocks) than to the Empire State Building (maybe 10 or 11 blocks). Just FYI.
No, the issue is whether discrimination occurs regarding "full and equal enjoyment of... services... of any place of public accomodation".
I certainly didn't say that whether the SW website is a public accommodation is THE issue, but still -- it is a significant issue, if not the most important issue. It's not peripheral as you seem to think.
In order to state a valid cause of action it is sufficient to identify (1) a place of accomodation and (2) a service "of" the place of accomodation, and (3) a discrimination that prevents the full and equal enjoyment of that service. I have done so.
Um, it's not that simple. You "sufficiently" verbally or grammatically stated it, I suppose, but that's not quite the threshold for a 12(b)(6) motion. The threshold is low, but it's factually low, not legally low. If there's no way one can use "place of accomodation" the way you do, then the judge has to dismiss the suit. Here, the judge looked at the argument, decided that, and accordingly dismissed the suit.
The ticket booking service provided via the web site is "given" AT the place of accommodation. It is "received" somewhere else. But more fundamentally, there is no statutory support for your contention. On the contrary, the "full and equal enjoyment" of the ticket booking service includes the ability to receive it via the web.
What language in the statute can you point to to support your contention that enjoyment of services offered by the place of accomodation must occur at the place of accomodation?
First of all, my reading *is the plain reading of the statute.* Please understand that your reading is NOT. It is a novel one, one that has/had to be argued because it's not stupid, but it just is NOT the plain reading of the statute. There's plenty of textual support -- look at the entire definition of "public accommodation." These are all physical places that provide some sort of service. Look at 12182(b), which provides help in interpreting the 12182(a), and especially look at 12183, which further clarifies 12182(a). While there's room for wiggling in 12182(b), much of the text, when you consider the physical nature of all the places enumerated in 12181, implies services or other things that are provided AT a physical place. 12183 is OBVIOUSLY targetted at physical places. Another principle of statutory interpretation (forgot the latin) tells us that to the furthest extent possible, construe meanings in one section of a statute so that it will be consistent with other sections. Jeez, just look at the entire ADA and its many references to physical locations. Thus, the PLAIN MEANING is that public accommodation is a physical place and that the ADA includes any services or benefits that are given at the physical place. Furthermore, look at the federal regulations that support this section, 28 CFR 36.104. While these are not controlling, they are persuasive (persuasive in the legal sense). A public accommodation is a facility, which is a physical place.
*Your* interpretation is arguable, sure. I'm not saying that it's not; the whole point of my posts is that it's not the plain meaning that you think it is. At any rate, the 11th circuit heard that sort of argument in Rendon, as it says in the opinion, and agreed to it -- but only because there was a sufficient nexus between the public accommodation and the service -- that is, ultimately, it's the service that serves as a "door" (pretty much the only door) to getting into the public accommodation. Here, there are a number of ways to distinguish Rendon. At any rate, the best way to argue your point to a judge would not be that "this is the plain meaning, you fool" but rather that "websites are subsumed under the plain meaning of the statute, but even if you find they are not, the intent of the drafters and the clear purpose of the statute supports inclusion of websites under its purview." OTOH, IMHO, the best way to argue that websites are included in the ADA is probably the way the plaintiffs in the above case argued it.
As a final comment, I note that a different judge did in fact find that web sites are covered by the ADA [sedbtac.org].
Perhaps you should actually read the case. The judge did not "find that websites are covered by the ADA". It was an aside; it was in *dicta.* The case wasn't even about websites -- it was about general accessibility. Information was one of the problems; the website was just another way to deliver the info, and since ALL the ways of delivering the info were lacking in accessibility, the judge included it. But there was absolutely no "finding" such that it would control as legal precedent.
Wow, okay, clearly you're not a lawyer. Of course it's enough to dismiss the claim. Whether the Southwest website is a public accommodation is at the crux of the matter. If the plaintiff cannot show that the website is a public accommodation, then the judge HAS to dismiss the case. You even cite the statute:
"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."
I am a lawyer. I am trained, among other things, to interpret statutes. And your interpretation just isn't tenable. You keep harping that the place of accommodation is Southwest, or in the above post, its office buildings. Yes, it is a public accommodation, but not in the way you argue. If the plaintiff were a disabled employee who needed a ramp to get into the building, that would be a claim under the black letter law of 12182 -- again, principles of statutory interpretation rule. Any "services" are services given AT the place of accommodation. You really can't interpret the statutes the way you do, and call it "undeniable fact."
That said, one CAN argue your point -- it's just not an "undeniable fact," but rather a novel stretch. *In fact,* from the opinion, it seems that it *was* argued -- and the judge refused to believe it, because she could not find a good enough nexus between the website and the airline's "place." This is an interesting result, but not unexpected; you can access the website anywhere, not just at the building. Again, it goes back to the "place" being a physical location where the potential plaintiffs or beneficiaries of the ADA are being accommodated.
If neither of these were proved, then the judge MUST dismiss the case on its merits because not all the elements were proved. Hence the dismissal with prejudice.
I'm not sure where you're getting your reading of the statute. Section 12181(7)(F)'s listing is, like you say, of "public accomodations." These are all places/things that people go to/use. If you look at the rest of the ADA, this is the implicit meaning of "accomodation." Southwest Airlines as a corporate entity does not fall under this definition. What DOES fall under the definition is Southwest's building(s) and their ticket booth at the airport. The only thing that the plaintiff could argue wrt "public accommodation" is that the *website* is a public accommodation because 1) people "go to" it or more generically, use it, and 2) it is public. The argument that "public accommodation" in the ADA is a generic idea, subsuming "things" like the corporate entity of Southwest, goes against simple (well, for a lawyer) statutory interpretation. (Seitz mentions ejusdem generis -- while that principle of statutory interpretation doesn't actually directly apply, its essence still applies. If all the terms in an enumeration are similar in some way, that similarity will restrict the scope of the defined term.) Hence, the argument that a website is a public accommodation, which is what the plaintiff argued.
Well, you're right that it doesn't reflect Hardin's classic example, but I think they're talking about an *implication* of the tragedy of the commons: the free-rider problem. If what amounts to a public good (non-excludable, nonrivalrous) is being provided by private entities, the free-rider problem will arise, wherein the good is under-provided because of its public good nature. That is, more people will take without paying or giving some sort of compensation (for example, producing some of the good themselves, giving back, etc.). If that happens, the producers will slowly pull back production or even exit the market, resulting in underprovision.
The classic case is national defense. Say, for example, a private company provided defense for a small country, and that no matter who pays for it, the defense is national (i.e., there's no protecting just individual citizens of the country; if it has to protect one, it ends up protecting all). Also assume that defense is necessary. The defense costs D, and there are P citizens. Surely, there are a few people who find it extremely necessary to have national defense, so they'll go ahead and pay D/P. If this is enough to get going, the company might go ahead and provide defense -- after all, the people are paying. But once this happens, the nonpayers see that they are getting defended too, and then rationally (for an individual) reason that they don't have to pay after all. Of course, if each individual non-payer reasons this way, the company will not get D, and thus not be able to continue providing defense. Therefore, it will stop, and defense is underprovided.
This is a classic problem of a public good like national defense, and the result is the same as for goods like a blade of grass on the commons: government has to step in. For the commons, the government ends up enforcing a property law system, else it gets ruined and no one can enjoy; for national defense, the government ends up providing it, else it gets underprovided and no one can enjoy.
That is why you're right that it's not the tragedy of the commons per se, but you're wrong in the bigger sense, because the free-rider problem is implied in the tragedy.
MOST, if not all full-time working Americans, work at least 50 years a week, from factory workers to bankers, most of them with 2 weeks of vacation a year. ALL my European friends complain that Americans work too much, that in Europe, they generally have 35 (France) to 40 hour work weeks, with at LEAST 4 weeks of vacation. You tell me why Europe is closed all of August and why banks are open from 9-11 am and 1-2 pm, Monday through Friday. American culture is decried by Western Europeans as work-work-work, all the time. Is it not? What is the perception of American people? Perhaps my experience is a bit biased -- most of my European friends are well-off people, so their experience is probably a bit skewed, but from everything I've read, that perception prevails.
But even the "productivity" statistics that are put out put the US at the top. I'm sorry, but Americans do have the best work ethic of any Western country. Europeans and less stick-in-the-mud Americans often point out how Americans are so bent on working; that they can't takea break, enjoy life; that the American attitude towards achievement at their jobs replaces much of what's truly valuable in life. Now, you're telling me that Americans aren't productive? They don't work hard? So what's the truth? Do Americans work too hard and hate their lives, unlike Europeans, or are they lazy bums who spend most of their time lolling around, not being productive, unlike Europeans? You can't have it both ways.
Um, yes, there's criminal copyright infringement, but that doesn't make copyright a criminal law. A lot of civil laws have criminal aspects to them, usually when the offender does the act with criminal intent, but that doesn't make them criminal laws. Many torts have criminal law counterparts. Does that make "trespass" a criminal law? No, of course not -- it depends on what a person did, how he did it, and what the government wants to do.
WRT copyright, same thing. More specifically, the criminal element is only in one section of the copyright statutes -- 17 USC 506. That section defines in a very specific way what constitutes criminal copyright infringement. The penalty is outlined in Title 18, where most of the federal criminal laws are. But the rest of the copyright statutes -- all of Title 17, with its 13 chapters and dozens and dozens of sections -- is civil, including all of the remedies but for section 506's and, of course, the DMCA's section 1204's criminal offense.
Anyway, even without the above note, my point still stands -- copyright isn't a "criminal law." Very, very simply: Criminal laws go to the root of basic societal behavior; punishment is for justice. Civil laws go more to getting society running smoothly; suing somebody is for compensation. Often the laws reflect each other, but we need the differentiation because sometimes a wrongful act, while mechanically the same, doesn't rise to the level of a crime. Thus, copyright isn't a criminal law. It has a criminal aspect, but it's not a criminal law.
Simplest explanation: the constitutional prohibition against ex post facto laws apply really only to criminal, penal laws. Copyright isn't a criminal law; it's of a civil nature. Also, even though it has prohibitions, etc., copyright really is more of an enumeration of rights, not a penal code.
I wouldn't normally respond to AC's, but I'll bite.
Unfortunately, copying is the only implication to a right to use.
Irrelevant. How does that make it a moral right?
If the first math book committed "2+2=4" to a tangible, forever copywritten, media -- you would be unable to express similar today.
Wrong. You obviously don't understand copyright. First of all, 2+2=4 isn't copyrightable -- it's an idea, a scientific fact. Second of all, even if it were copyrightable, fair use (yes, even now) would allow me to use the equation. You need to understand the system and its workings in order to criticize it properly, AC.
You are close on this point...
> Copyright should be limited at the point where the costs of copyright exceed the marginal benefit
However, I'd change "should" to MUST.
I agree completely. Sorry for the poor diction.
Alas, we're left defining "costs" and "marginal benefit".
Under economic copyright theory, "marginal benefit" is the additional work that have been created as a result of additional incentives created through a change in the legal framework. "Costs" are the negative impact on the public's enjoyment of all copyrighted works in general. Sorry -- it's pretty easy; people have already thought about it.
BTW, Britney Spears or "corporate" work sucks and isn't original. And, that is for me to decide.
It's for you to decide not to listen to it, sure. It's not for you to decide that it's not something that's worth being created and/or protected by law. Look at it in this analogous way: who's to decide that Jackson Pollock's art is art? Surely, it's in the eye of the beholder, and no court is going to say it's not art, no matter what they might think the utility of paint splotches on canvas is. That's the prudent and FAIR way to approach it. Any other way is elitist and fascistic, something that the Soviets or the Nazis would have done.
We have to balance quantity of production against the utility of what is produced.
Who exactly determines the utility of what is produced? Just throwing that out, because a lot of people seem to think we can do this. We can't, of course; in fact, it goes to the heart of the First Amendment that we can't.
At any rate... Actually, I think what you mean is exactly what I was saying. I apologize if I'm beating a dead horse, but what I read you as saying is that the current copyright system does not optimally promote creative works. That is, the marginal benefit we might be receiving from the copyright system as it is does not justify the marginal costs, i.e., the impact on the right of the public to use the works. If that is what you're saying, yes, of course -- that's what I was saying, and I'd agree completely.
The problem with you is that you (and, to be fair, most of the posters here) don't understand the true justification for copyright. The assumption (not yours) seems to be that copyrights are necessary to provide incentive for authors to create works. This is wrong in a very important sense: copyrights are necessary to provide incentive for the creation of works that would not have been made without the incentive. It is a subtle but very significant distinction. It recognizes that a certain amount of works will be created regardless of the copyright incentive. Naturally, people like to create, even if they don't get paid for it -- hence the free and open software movements. But everyone should recognize that there are plenty of factors preventing people from creating more works -- overhead costs, the cost of day-to-day living, the desire to get something valuable in return for the labor expended, etc. This is why we have copyright -- to get the marginal increase in creation (marginal in the economic, cost-benefit sense). Copyright should be limited at the point where the costs of copyright exceed the marginal benefit (the amount of work incented by copyright).
Where YOU specifically get it wrong is your response to others' posts about why we need copyright. Since creative work is assumed to be a benefit to society, obviously maximizing benefit to society involves, at least, maximizing the amount of creative work produced. Given the above justification, we NEED copyright to maximize the benefit to society.
You also seem to think that copying is somehow a moral right. Well, you're entitled to that opinion, but our society definitely sees copying as less beneficial to society as the creation of original work (please don't use the elitist argument that Britney Spears or "corporate" work sucks and isn't original -- it's not for you to decide, even if you were Mozart, which you're not). One could imagine a society, though, in which we promoted copying as more important than original creation. But the fact is that our society doesn't believe that (and I don't mean just the lawmakers -- I mean society), and that seems to me proof enough that copying isn't even close to being a basic moral human right.
First of all, American lawyers cannot do what you claim. More importantly, Arent Fox is a pretty big law firm; I'm not sure what you mean by "sleazy law firm," but it's a well-known, successful Washington DC-based firm, one of the top 20 there. It represents AOL in some IP matters. I think you misunderstand the "they will inform AOL of their action" phrase -- it simply means that Arent Fox will tell AOL that they decided not to cease and desist. Bad wording, yes.
You are a goddamn idiot. What do you possibly think e-mailing (or/.'ing or DDOS'ing like the posters below) the LAW FIRM is going to do? Stop the law firm from SERVING their CLIENT? DROP the cease and desist? WHO DO YOU THINK IS "MAKING" THEM DO IT? Honestly, I can't believe people actually think that the law firm behind the company is at "fault" for serving their client to the best of their ability. If Arent Fox for some reason refused to send the C&D letter on behalf of AOL, besides its being unethical, AOL would go fire Arent Fox and get another firm. See the point? It's AOL that's doing it, not the firm.
Kids, this is what happens when you have a society that lets people become so self-centered that the thought of actually being a responsible productive resident is considered a joke. And here I thought only the US was so encumbered. Apparently we're contagious.
I'm sorry, but your attack on American culture is mindbogglingly stupid. Your "witty" comment ignores the fact that Americans work more than citizens of any other Western country, and of most other countries -- therefore seeming MORE productive. There's this thing called the work ethic that we have here, which means we don't have standard 6 weeks of vacation a year and 35 hour work weeks. I really, really hate stupid attacks on American culture, like yours. I certainly can criticize it like anyone else, but I don't make throwaway attacks that are purely for rhetoric (er, mod points) but have no substantive basis whatsoever.
Just wondering: why is a piece of ENIAC at UofM when it was invented at the University of Pennsylvania? I'm just curious. Did Mauchly[interesting exhibit on Mauchly] go to UofM?
The explosion in law and litigation occurred relatively recently; somehow our society had been able to get along without it--what happened?
This has absolutely nothing to do with the complexity of the legal code. I don't see how you can connect an increase in complexity with an increase in litigation. In fact, one would think that a simpler legal code would make it much easier to litigate, thus INCREASING litigation. Aside from that, you're right that the legal system has gotten more complex recently. The reason for this is a trend already taken by other countries towards enumerated "codes" (many other countries have civil law systems, which enumerate most if not all laws) and away from plain old English common law. This increase in complexity does not seem to have increased litigation in civil law countries, has it? Thus, the reason for an increase in litigation does NOT stem from an increase in complexity of our legal system. I could go on about why litigation is so common here in the US, but in fact that book that you post talks a lot about these reasons. Still, the book's points aren't attacking COMPLEXITY, but certain POLICY decisions made when the rules for civil procedure were enacted.
I would disagree with that assertion (ignoring the silly Ten Commandments reference, and assuming that you mean "a relatively simple code"). With a little imagination you should be able to think of some alternative reasons why our legal system has become so complex, e.g. that Congress in the last several decades has been unchained to legislate in areas that had been denied it by the Constitution. Here is some food for thought:
http://www.overlawyered.com
Um, looking at the link, again, nothing to do at all with the complexity of the legal system. If you knew anything about the rules in civil procedure and criminal procedure, you'd know that these rules make it easier for people to sue and make it easier for people to defend themselves in a criminal court. This has NOTHING to do with the complexity of the legal system, and everything to do with the preservation of rights, substantive laws notwithstanding. In NO OTHER COUNTRY on this earth are there such strong procedural safeguards put in place to protect people. This is why people in jail can still get out -- that's the beauty of habeas corpus. This is why we have an adversarial system, with the judge having fewer powers -- why entrust all the investigatory and interrogatory powers in one person, like in civil law countries? etc. etc. You're attacking abuses of procedural laws, which even though protect the vast majority of people admittedly allow others to file frivolous lawsuits and other bad things. But that has nothing to do with complexity.
Well, maybe with fewer laws Germany wouldn't have the lowest rate of economic growth in Europe.
Odd that you say this. You complain that the US has such a complex legal system, yet the US has had the highest rate of economic growth in recent years. There's simply no rational connection.
The US recently overtook Russia as the nation with the highest per-capita prison population in the world. Imagine the "injustice!" and "unfairness!" of that. That so many people are defined as criminals suggests that maybe we should re-examine some of the laws.
This, ONCE MORE, has nothing to do with the complexity of laws. The fact that we have many laws defining what a criminal is does not imply that it's too COMPLEX, but that we think there are many things that people shouldn't do. You argue instead about moral issues, not complexity issues. The SINGULAR difference, I'm sure, between the prison population in Russia and the one in the US is that 99.99999% of the Americans KNOW EXACTLY WHY they are in jail. That's the beauty of our criminal justice system, in the sense of PROCEDURE. You can argue the merits of having particular laws, but you can't say that all these people were thrown into jail arbitrarily, without knowing that they were doing something wrong. The increase in prison population is due to stringent drug laws and three strikes laws. NO MATTER WHAT YOU THINK ABOUT THESE LAWS, EVERYONE KNOWS THEM. It's ridiculous, IMHO, that a pot smoker caught three times will be jailed forever, and I'm sure that's what you think too. But you can't argue that the system was "too complex" and that the pot smoker didn't know EVEN THE FIRST TIME that what he was doing was illegal.
In the end, your arguments show a sad misunderstanding of the problems in the legal system. While the argument "legal systems could use some clarification and simplification" is a perfectly valid one, it doesn't solve the problems you seem to think it causes. What it does do is maintain consistency -- always a good thing -- and reduce certain societal costs.
rules are more likely to be read, understood, remembered, followed, and enforced, and at a lower cost.
Right... because we could operate our society only on the Ten Commandments, no? You're right in some utopian kind of way, but the reason that our legal system (not to mention pretty much ANY legal system in the world) is so complex is because we CAN'T operate our society only on the Ten Commandments. Imagine the "injustice!", the "unfairness!" of a society like that. Humans being naturally sympathetic, we would almost immediately write exceptions to the rules ("Thou shalt not kill... unless in self defense"), and subrules to the main ones ("Thou shalt not steal... But if the value if that which has been stolen is less than $50, thou is guilty of a misdemeanor; otherwise, a felony"). And don't get me started on the difficulty of an entire society deciding on a set of SIMPLE rules. This is the way a complex society MUST form its legal system, lest we live in a tyrannical, fascist world.
This is just a really, really stupid notion that so many people here believe. As if lawyers are NOT smart people? As if there are no law geeks? Ridiculous. Most lawyers whose practices involve a lot of technology companies or tech-related people certainly understand the issues, and most lawyers in general can pick up the issues fairly easily. Just because they might be arguing on the side that you disagree with doesn't change that fact. I hate to say it, but a 16 year old kid can be a great programmer without having had any formal training; a 16 year old kid wouldn't be able to effectively practice law without 3 years of rigorous training (not to mention the 4 years' undergrad degree that helps refine basic argumentation and writing skills).
Anyway, those four points you pose are extremely simplistic. Sure, you may believe wholeheartedly in it. But there are always two or more sides to ANY issue, and if it involves rights, then shit, lawyers will be involved. Do you think that the RIAA's lawyers are just going to throw up their hands and say, "we can't argue your side"? That's dumb. It's a lawyer's JOB to argue their clients' sides, even if the best argument is not that strong. Likewise, it's a lawyer's JOB to be able to understand issues like those you think only computer geeks can understand -- otherwise, they shouldn't be lawyers, because they'd suck.
First: it's absolutely NOT entrapment. Only the government can entrap people, and even then, it has to be by practically forcing someone to do something illegal (it's entrapment when the person entrapped would not have otherwise done the act without the prodding of the government official).
Second of all, of course you would have a case if you left a few cases of beer on the sidewalk, except for the fact that sidewalks are generally public areas. The problem is that wireless signals are not tangible, so that one can make some (weak) argument that standing on a sidewalk is OK because it's public property. But the more applicable analogy is leaving your cases of beer on your lawn in front of your house. It's still your beer, even if you were stupid and left it out. If, for example, the person taking the beer were caught, they'd be criminally liable for theft and civilly liable for conversion, regardless of whether the beer was secure or not. (They'd also be liable for trespass, but that's a different story.) The duty will almost always be on the person doing the wrongful act. Our society has to work this way -- for better or for worse, we don't punish stupidity, we punish wrongfulness.
Wrong -- it's not that expensive credentialed employees that get laid off in favor of cheaper non-credentialed employees. It's that expensive, experienced credentialed employees get laid off in favor of cheaper, right-out-of-college-credentialed employees.
Ahh, so the deaths in India were caused by the direct action of God or Allah... and the WTC tragedy was caused by religious zealots. So, what's the difference? Oh ya, that same factor of four.
If you can't see the difference (besides the number of deaths) between "God" and religious zealots, you're an utter moron. And a remarkably bad (or good, depending on one's point of view) troll.
Directional microphone? If the mike was pointed straight towards the mouth (and close too it), you would barely hear anything aside from the the voice. And surely all the mikes that the astronauts spoke into were directional, because otherwise mission control might not be able to hear everything they said.
Oh, please. This is because you're *looking* for pro-MS statements. There's MUCH, MUCH more anti-MS sentiment on Slashdot than pro-MS. I'm a big proponent of open-source software because it tends to do exactly what I want, and it's fun to look at and try to edit the source code -- although I use windows and other MS products because they're useful for certain things. But my job (I'm an attorney) doesn't require me to spend a whole lot of time working with technology (it's a hobby for me), and I certainly can't say that I eat, breath, drink technology, so I think I can safely say that I read slashdot in a pretty unbiased way. Thus: anti-MS posts are far more prevalent than pro-MS posts. Personally, I don't care for either posts -- they're not very informative.
It's called OS 9. Well, reverting back to OS 9. There's no way almost 25% of Mac users use Yellow Dog, but it's very, very likely that 1 in 4 Mac users are scared off by OS X's *nix underpinnings and generally altogether different GUI.
Slashdot Mirror
I love Bryant Park, too! You know, this wireless access has been around for a while, actually -- I got my wireless card in May, and was surfing at the park all summer long.
BTW, Bryant Park is much closer to Times Square (a couple blocks) than to the Empire State Building (maybe 10 or 11 blocks). Just FYI.
No, the issue is whether discrimination occurs regarding "full and equal enjoyment of ... services ... of any place of public accomodation".
I certainly didn't say that whether the SW website is a public accommodation is THE issue, but still -- it is a significant issue, if not the most important issue. It's not peripheral as you seem to think.
In order to state a valid cause of action it is sufficient to identify (1) a place of accomodation and (2) a service "of" the place of accomodation, and (3) a discrimination that prevents the full and equal enjoyment of that service. I have done so.
Um, it's not that simple. You "sufficiently" verbally or grammatically stated it, I suppose, but that's not quite the threshold for a 12(b)(6) motion. The threshold is low, but it's factually low, not legally low. If there's no way one can use "place of accomodation" the way you do, then the judge has to dismiss the suit. Here, the judge looked at the argument, decided that, and accordingly dismissed the suit.
The ticket booking service provided via the web site is "given" AT the place of accommodation. It is "received" somewhere else. But more fundamentally, there is no statutory support for your contention. On the contrary, the "full and equal enjoyment" of the ticket booking service includes the ability to receive it via the web.
What language in the statute can you point to to support your contention that enjoyment of services offered by the place of accomodation must occur at the place of accomodation?
First of all, my reading *is the plain reading of the statute.* Please understand that your reading is NOT. It is a novel one, one that has/had to be argued because it's not stupid, but it just is NOT the plain reading of the statute. There's plenty of textual support -- look at the entire definition of "public accommodation." These are all physical places that provide some sort of service. Look at 12182(b), which provides help in interpreting the 12182(a), and especially look at 12183, which further clarifies 12182(a). While there's room for wiggling in 12182(b), much of the text, when you consider the physical nature of all the places enumerated in 12181, implies services or other things that are provided AT a physical place. 12183 is OBVIOUSLY targetted at physical places. Another principle of statutory interpretation (forgot the latin) tells us that to the furthest extent possible, construe meanings in one section of a statute so that it will be consistent with other sections. Jeez, just look at the entire ADA and its many references to physical locations. Thus, the PLAIN MEANING is that public accommodation is a physical place and that the ADA includes any services or benefits that are given at the physical place. Furthermore, look at the federal regulations that support this section, 28 CFR 36.104. While these are not controlling, they are persuasive (persuasive in the legal sense). A public accommodation is a facility, which is a physical place.
*Your* interpretation is arguable, sure. I'm not saying that it's not; the whole point of my posts is that it's not the plain meaning that you think it is. At any rate, the 11th circuit heard that sort of argument in Rendon, as it says in the opinion, and agreed to it -- but only because there was a sufficient nexus between the public accommodation and the service -- that is, ultimately, it's the service that serves as a "door" (pretty much the only door) to getting into the public accommodation. Here, there are a number of ways to distinguish Rendon. At any rate, the best way to argue your point to a judge would not be that "this is the plain meaning, you fool" but rather that "websites are subsumed under the plain meaning of the statute, but even if you find they are not, the intent of the drafters and the clear purpose of the statute supports inclusion of websites under its purview." OTOH, IMHO, the best way to argue that websites are included in the ADA is probably the way the plaintiffs in the above case argued it.
As a final comment, I note that a different judge did in fact find that web sites are covered by the ADA [sedbtac.org].
Perhaps you should actually read the case. The judge did not "find that websites are covered by the ADA". It was an aside; it was in *dicta.* The case wasn't even about websites -- it was about general accessibility. Information was one of the problems; the website was just another way to deliver the info, and since ALL the ways of delivering the info were lacking in accessibility, the judge included it. But there was absolutely no "finding" such that it would control as legal precedent.
Wow, okay, clearly you're not a lawyer. Of course it's enough to dismiss the claim. Whether the Southwest website is a public accommodation is at the crux of the matter. If the plaintiff cannot show that the website is a public accommodation, then the judge HAS to dismiss the case. You even cite the statute:
"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."
I am a lawyer. I am trained, among other things, to interpret statutes. And your interpretation just isn't tenable. You keep harping that the place of accommodation is Southwest, or in the above post, its office buildings. Yes, it is a public accommodation, but not in the way you argue. If the plaintiff were a disabled employee who needed a ramp to get into the building, that would be a claim under the black letter law of 12182 -- again, principles of statutory interpretation rule. Any "services" are services given AT the place of accommodation. You really can't interpret the statutes the way you do, and call it "undeniable fact."
That said, one CAN argue your point -- it's just not an "undeniable fact," but rather a novel stretch. *In fact,* from the opinion, it seems that it *was* argued -- and the judge refused to believe it, because she could not find a good enough nexus between the website and the airline's "place." This is an interesting result, but not unexpected; you can access the website anywhere, not just at the building. Again, it goes back to the "place" being a physical location where the potential plaintiffs or beneficiaries of the ADA are being accommodated.
If neither of these were proved, then the judge MUST dismiss the case on its merits because not all the elements were proved. Hence the dismissal with prejudice.
I'm not sure where you're getting your reading of the statute. Section 12181(7)(F)'s listing is, like you say, of "public accomodations." These are all places/things that people go to/use. If you look at the rest of the ADA, this is the implicit meaning of "accomodation." Southwest Airlines as a corporate entity does not fall under this definition. What DOES fall under the definition is Southwest's building(s) and their ticket booth at the airport. The only thing that the plaintiff could argue wrt "public accommodation" is that the *website* is a public accommodation because 1) people "go to" it or more generically, use it, and 2) it is public. The argument that "public accommodation" in the ADA is a generic idea, subsuming "things" like the corporate entity of Southwest, goes against simple (well, for a lawyer) statutory interpretation. (Seitz mentions ejusdem generis -- while that principle of statutory interpretation doesn't actually directly apply, its essence still applies. If all the terms in an enumeration are similar in some way, that similarity will restrict the scope of the defined term.) Hence, the argument that a website is a public accommodation, which is what the plaintiff argued.
Well, you're right that it doesn't reflect Hardin's classic example, but I think they're talking about an *implication* of the tragedy of the commons: the free-rider problem. If what amounts to a public good (non-excludable, nonrivalrous) is being provided by private entities, the free-rider problem will arise, wherein the good is under-provided because of its public good nature. That is, more people will take without paying or giving some sort of compensation (for example, producing some of the good themselves, giving back, etc.). If that happens, the producers will slowly pull back production or even exit the market, resulting in underprovision.
The classic case is national defense. Say, for example, a private company provided defense for a small country, and that no matter who pays for it, the defense is national (i.e., there's no protecting just individual citizens of the country; if it has to protect one, it ends up protecting all). Also assume that defense is necessary. The defense costs D, and there are P citizens. Surely, there are a few people who find it extremely necessary to have national defense, so they'll go ahead and pay D/P. If this is enough to get going, the company might go ahead and provide defense -- after all, the people are paying. But once this happens, the nonpayers see that they are getting defended too, and then rationally (for an individual) reason that they don't have to pay after all. Of course, if each individual non-payer reasons this way, the company will not get D, and thus not be able to continue providing defense. Therefore, it will stop, and defense is underprovided.
This is a classic problem of a public good like national defense, and the result is the same as for goods like a blade of grass on the commons: government has to step in. For the commons, the government ends up enforcing a property law system, else it gets ruined and no one can enjoy; for national defense, the government ends up providing it, else it gets underprovided and no one can enjoy.
That is why you're right that it's not the tragedy of the commons per se, but you're wrong in the bigger sense, because the free-rider problem is implied in the tragedy.
MOST, if not all full-time working Americans, work at least 50 years a week, from factory workers to bankers, most of them with 2 weeks of vacation a year. ALL my European friends complain that Americans work too much, that in Europe, they generally have 35 (France) to 40 hour work weeks, with at LEAST 4 weeks of vacation. You tell me why Europe is closed all of August and why banks are open from 9-11 am and 1-2 pm, Monday through Friday. American culture is decried by Western Europeans as work-work-work, all the time. Is it not? What is the perception of American people? Perhaps my experience is a bit biased -- most of my European friends are well-off people, so their experience is probably a bit skewed, but from everything I've read, that perception prevails.
But even the "productivity" statistics that are put out put the US at the top. I'm sorry, but Americans do have the best work ethic of any Western country. Europeans and less stick-in-the-mud Americans often point out how Americans are so bent on working; that they can't takea break, enjoy life; that the American attitude towards achievement at their jobs replaces much of what's truly valuable in life. Now, you're telling me that Americans aren't productive? They don't work hard? So what's the truth? Do Americans work too hard and hate their lives, unlike Europeans, or are they lazy bums who spend most of their time lolling around, not being productive, unlike Europeans? You can't have it both ways.
Um, yes, there's criminal copyright infringement, but that doesn't make copyright a criminal law. A lot of civil laws have criminal aspects to them, usually when the offender does the act with criminal intent, but that doesn't make them criminal laws. Many torts have criminal law counterparts. Does that make "trespass" a criminal law? No, of course not -- it depends on what a person did, how he did it, and what the government wants to do.
WRT copyright, same thing. More specifically, the criminal element is only in one section of the copyright statutes -- 17 USC 506. That section defines in a very specific way what constitutes criminal copyright infringement. The penalty is outlined in Title 18, where most of the federal criminal laws are. But the rest of the copyright statutes -- all of Title 17, with its 13 chapters and dozens and dozens of sections -- is civil, including all of the remedies but for section 506's and, of course, the DMCA's section 1204's criminal offense.
Anyway, even without the above note, my point still stands -- copyright isn't a "criminal law." Very, very simply: Criminal laws go to the root of basic societal behavior; punishment is for justice. Civil laws go more to getting society running smoothly; suing somebody is for compensation. Often the laws reflect each other, but we need the differentiation because sometimes a wrongful act, while mechanically the same, doesn't rise to the level of a crime. Thus, copyright isn't a criminal law. It has a criminal aspect, but it's not a criminal law.
And yes, IAAL.
Simplest explanation: the constitutional prohibition against ex post facto laws apply really only to criminal, penal laws. Copyright isn't a criminal law; it's of a civil nature. Also, even though it has prohibitions, etc., copyright really is more of an enumeration of rights, not a penal code.
I wouldn't normally respond to AC's, but I'll bite.
Unfortunately, copying is the only implication to a right to use.
Irrelevant. How does that make it a moral right?
If the first math book committed "2+2=4" to a tangible, forever copywritten, media -- you would be unable to express similar today.
Wrong. You obviously don't understand copyright. First of all, 2+2=4 isn't copyrightable -- it's an idea, a scientific fact. Second of all, even if it were copyrightable, fair use (yes, even now) would allow me to use the equation. You need to understand the system and its workings in order to criticize it properly, AC.
You are close on this point...
> Copyright should be limited at the point where the costs of copyright exceed the marginal benefit
However, I'd change "should" to MUST.
I agree completely. Sorry for the poor diction.
Alas, we're left defining "costs" and "marginal benefit".
Under economic copyright theory, "marginal benefit" is the additional work that have been created as a result of additional incentives created through a change in the legal framework. "Costs" are the negative impact on the public's enjoyment of all copyrighted works in general. Sorry -- it's pretty easy; people have already thought about it.
BTW, Britney Spears or "corporate" work sucks and isn't original. And, that is for me to decide.
It's for you to decide not to listen to it, sure. It's not for you to decide that it's not something that's worth being created and/or protected by law. Look at it in this analogous way: who's to decide that Jackson Pollock's art is art? Surely, it's in the eye of the beholder, and no court is going to say it's not art, no matter what they might think the utility of paint splotches on canvas is. That's the prudent and FAIR way to approach it. Any other way is elitist and fascistic, something that the Soviets or the Nazis would have done.
We have to balance quantity of production against the utility of what is produced.
Who exactly determines the utility of what is produced? Just throwing that out, because a lot of people seem to think we can do this. We can't, of course; in fact, it goes to the heart of the First Amendment that we can't.
At any rate... Actually, I think what you mean is exactly what I was saying. I apologize if I'm beating a dead horse, but what I read you as saying is that the current copyright system does not optimally promote creative works. That is, the marginal benefit we might be receiving from the copyright system as it is does not justify the marginal costs, i.e., the impact on the right of the public to use the works. If that is what you're saying, yes, of course -- that's what I was saying, and I'd agree completely.
The problem with you is that you (and, to be fair, most of the posters here) don't understand the true justification for copyright. The assumption (not yours) seems to be that copyrights are necessary to provide incentive for authors to create works. This is wrong in a very important sense: copyrights are necessary to provide incentive for the creation of works that would not have been made without the incentive. It is a subtle but very significant distinction. It recognizes that a certain amount of works will be created regardless of the copyright incentive. Naturally, people like to create, even if they don't get paid for it -- hence the free and open software movements. But everyone should recognize that there are plenty of factors preventing people from creating more works -- overhead costs, the cost of day-to-day living, the desire to get something valuable in return for the labor expended, etc. This is why we have copyright -- to get the marginal increase in creation (marginal in the economic, cost-benefit sense). Copyright should be limited at the point where the costs of copyright exceed the marginal benefit (the amount of work incented by copyright).
Where YOU specifically get it wrong is your response to others' posts about why we need copyright. Since creative work is assumed to be a benefit to society, obviously maximizing benefit to society involves, at least, maximizing the amount of creative work produced. Given the above justification, we NEED copyright to maximize the benefit to society.
You also seem to think that copying is somehow a moral right. Well, you're entitled to that opinion, but our society definitely sees copying as less beneficial to society as the creation of original work (please don't use the elitist argument that Britney Spears or "corporate" work sucks and isn't original -- it's not for you to decide, even if you were Mozart, which you're not). One could imagine a society, though, in which we promoted copying as more important than original creation. But the fact is that our society doesn't believe that (and I don't mean just the lawmakers -- I mean society), and that seems to me proof enough that copying isn't even close to being a basic moral human right.
First of all, American lawyers cannot do what you claim. More importantly, Arent Fox is a pretty big law firm; I'm not sure what you mean by "sleazy law firm," but it's a well-known, successful Washington DC-based firm, one of the top 20 there. It represents AOL in some IP matters. I think you misunderstand the "they will inform AOL of their action" phrase -- it simply means that Arent Fox will tell AOL that they decided not to cease and desist. Bad wording, yes.
You are a goddamn idiot. What do you possibly think e-mailing (or /.'ing or DDOS'ing like the posters below) the LAW FIRM is going to do? Stop the law firm from SERVING their CLIENT? DROP the cease and desist? WHO DO YOU THINK IS "MAKING" THEM DO IT? Honestly, I can't believe people actually think that the law firm behind the company is at "fault" for serving their client to the best of their ability. If Arent Fox for some reason refused to send the C&D letter on behalf of AOL, besides its being unethical, AOL would go fire Arent Fox and get another firm. See the point? It's AOL that's doing it, not the firm.
Kids, this is what happens when you have a society that lets people become so self-centered that the thought of actually being a responsible productive resident is considered a joke. And here I thought only the US was so encumbered. Apparently we're contagious.
I'm sorry, but your attack on American culture is mindbogglingly stupid. Your "witty" comment ignores the fact that Americans work more than citizens of any other Western country, and of most other countries -- therefore seeming MORE productive. There's this thing called the work ethic that we have here, which means we don't have standard 6 weeks of vacation a year and 35 hour work weeks. I really, really hate stupid attacks on American culture, like yours. I certainly can criticize it like anyone else, but I don't make throwaway attacks that are purely for rhetoric (er, mod points) but have no substantive basis whatsoever.
Just wondering: why is a piece of ENIAC at UofM when it was invented at the University of Pennsylvania? I'm just curious. Did Mauchly[interesting exhibit on Mauchly] go to UofM?
The explosion in law and litigation occurred relatively recently; somehow our society had been able to get along without it--what happened?
This has absolutely nothing to do with the complexity of the legal code. I don't see how you can connect an increase in complexity with an increase in litigation. In fact, one would think that a simpler legal code would make it much easier to litigate, thus INCREASING litigation. Aside from that, you're right that the legal system has gotten more complex recently. The reason for this is a trend already taken by other countries towards enumerated "codes" (many other countries have civil law systems, which enumerate most if not all laws) and away from plain old English common law. This increase in complexity does not seem to have increased litigation in civil law countries, has it? Thus, the reason for an increase in litigation does NOT stem from an increase in complexity of our legal system. I could go on about why litigation is so common here in the US, but in fact that book that you post talks a lot about these reasons. Still, the book's points aren't attacking COMPLEXITY, but certain POLICY decisions made when the rules for civil procedure were enacted.
I would disagree with that assertion (ignoring the silly Ten Commandments reference, and assuming that you mean "a relatively simple code"). With a little imagination you should be able to think of some alternative reasons why our legal system has become so complex, e.g. that Congress in the last several decades has been unchained to legislate in areas that had been denied it by the Constitution. Here is some food for thought:
http://www.overlawyered.com
Um, looking at the link, again, nothing to do at all with the complexity of the legal system. If you knew anything about the rules in civil procedure and criminal procedure, you'd know that these rules make it easier for people to sue and make it easier for people to defend themselves in a criminal court. This has NOTHING to do with the complexity of the legal system, and everything to do with the preservation of rights, substantive laws notwithstanding. In NO OTHER COUNTRY on this earth are there such strong procedural safeguards put in place to protect people. This is why people in jail can still get out -- that's the beauty of habeas corpus. This is why we have an adversarial system, with the judge having fewer powers -- why entrust all the investigatory and interrogatory powers in one person, like in civil law countries? etc. etc. You're attacking abuses of procedural laws, which even though protect the vast majority of people admittedly allow others to file frivolous lawsuits and other bad things. But that has nothing to do with complexity.
Well, maybe with fewer laws Germany wouldn't have the lowest rate of economic growth in Europe.
Odd that you say this. You complain that the US has such a complex legal system, yet the US has had the highest rate of economic growth in recent years. There's simply no rational connection.
The US recently overtook Russia as the nation with the highest per-capita prison population in the world. Imagine the "injustice!" and "unfairness!" of that. That so many people are defined as criminals suggests that maybe we should re-examine some of the laws.
This, ONCE MORE, has nothing to do with the complexity of laws. The fact that we have many laws defining what a criminal is does not imply that it's too COMPLEX, but that we think there are many things that people shouldn't do. You argue instead about moral issues, not complexity issues. The SINGULAR difference, I'm sure, between the prison population in Russia and the one in the US is that 99.99999% of the Americans KNOW EXACTLY WHY they are in jail. That's the beauty of our criminal justice system, in the sense of PROCEDURE. You can argue the merits of having particular laws, but you can't say that all these people were thrown into jail arbitrarily, without knowing that they were doing something wrong. The increase in prison population is due to stringent drug laws and three strikes laws. NO MATTER WHAT YOU THINK ABOUT THESE LAWS, EVERYONE KNOWS THEM. It's ridiculous, IMHO, that a pot smoker caught three times will be jailed forever, and I'm sure that's what you think too. But you can't argue that the system was "too complex" and that the pot smoker didn't know EVEN THE FIRST TIME that what he was doing was illegal.
In the end, your arguments show a sad misunderstanding of the problems in the legal system. While the argument "legal systems could use some clarification and simplification" is a perfectly valid one, it doesn't solve the problems you seem to think it causes. What it does do is maintain consistency -- always a good thing -- and reduce certain societal costs.
rules are more likely to be read, understood, remembered, followed, and enforced, and at a lower cost.
Right... because we could operate our society only on the Ten Commandments, no? You're right in some utopian kind of way, but the reason that our legal system (not to mention pretty much ANY legal system in the world) is so complex is because we CAN'T operate our society only on the Ten Commandments. Imagine the "injustice!", the "unfairness!" of a society like that. Humans being naturally sympathetic, we would almost immediately write exceptions to the rules ("Thou shalt not kill... unless in self defense"), and subrules to the main ones ("Thou shalt not steal... But if the value if that which has been stolen is less than $50, thou is guilty of a misdemeanor; otherwise, a felony"). And don't get me started on the difficulty of an entire society deciding on a set of SIMPLE rules. This is the way a complex society MUST form its legal system, lest we live in a tyrannical, fascist world.
This is just a really, really stupid notion that so many people here believe. As if lawyers are NOT smart people? As if there are no law geeks? Ridiculous. Most lawyers whose practices involve a lot of technology companies or tech-related people certainly understand the issues, and most lawyers in general can pick up the issues fairly easily. Just because they might be arguing on the side that you disagree with doesn't change that fact. I hate to say it, but a 16 year old kid can be a great programmer without having had any formal training; a 16 year old kid wouldn't be able to effectively practice law without 3 years of rigorous training (not to mention the 4 years' undergrad degree that helps refine basic argumentation and writing skills).
Anyway, those four points you pose are extremely simplistic. Sure, you may believe wholeheartedly in it. But there are always two or more sides to ANY issue, and if it involves rights, then shit, lawyers will be involved. Do you think that the RIAA's lawyers are just going to throw up their hands and say, "we can't argue your side"? That's dumb. It's a lawyer's JOB to argue their clients' sides, even if the best argument is not that strong. Likewise, it's a lawyer's JOB to be able to understand issues like those you think only computer geeks can understand -- otherwise, they shouldn't be lawyers, because they'd suck.
First: it's absolutely NOT entrapment. Only the government can entrap people, and even then, it has to be by practically forcing someone to do something illegal (it's entrapment when the person entrapped would not have otherwise done the act without the prodding of the government official).
Second of all, of course you would have a case if you left a few cases of beer on the sidewalk, except for the fact that sidewalks are generally public areas. The problem is that wireless signals are not tangible, so that one can make some (weak) argument that standing on a sidewalk is OK because it's public property. But the more applicable analogy is leaving your cases of beer on your lawn in front of your house. It's still your beer, even if you were stupid and left it out. If, for example, the person taking the beer were caught, they'd be criminally liable for theft and civilly liable for conversion, regardless of whether the beer was secure or not. (They'd also be liable for trespass, but that's a different story.) The duty will almost always be on the person doing the wrongful act. Our society has to work this way -- for better or for worse, we don't punish stupidity, we punish wrongfulness.
Wrong -- it's not that expensive credentialed employees that get laid off in favor of cheaper non-credentialed employees. It's that expensive, experienced credentialed employees get laid off in favor of cheaper, right-out-of-college-credentialed employees.
Ahh, so the deaths in India were caused by the direct action of God or Allah... and the WTC tragedy was caused by religious zealots. So, what's the difference? Oh ya, that same factor of four.
If you can't see the difference (besides the number of deaths) between "God" and religious zealots, you're an utter moron. And a remarkably bad (or good, depending on one's point of view) troll.
Directional microphone? If the mike was pointed straight towards the mouth (and close too it), you would barely hear anything aside from the the voice. And surely all the mikes that the astronauts spoke into were directional, because otherwise mission control might not be able to hear everything they said.
Oh, please. This is because you're *looking* for pro-MS statements. There's MUCH, MUCH more anti-MS sentiment on Slashdot than pro-MS. I'm a big proponent of open-source software because it tends to do exactly what I want, and it's fun to look at and try to edit the source code -- although I use windows and other MS products because they're useful for certain things. But my job (I'm an attorney) doesn't require me to spend a whole lot of time working with technology (it's a hobby for me), and I certainly can't say that I eat, breath, drink technology, so I think I can safely say that I read slashdot in a pretty unbiased way. Thus: anti-MS posts are far more prevalent than pro-MS posts. Personally, I don't care for either posts -- they're not very informative.
It's called OS 9. Well, reverting back to OS 9. There's no way almost 25% of Mac users use Yellow Dog, but it's very, very likely that 1 in 4 Mac users are scared off by OS X's *nix underpinnings and generally altogether different GUI.