There are some poor or utterly wrong explanations below, so let me clear it up. The rock isn't really "defendant" in the case; it's just the way they write the title. What's happening is the government is trying get a declaration of the disposition of the property as against 1) Rosen, the guy from whom they took the rock, and 2) against the world (probably, although there are some legal technical stuff that might preclude this one). If this is the only point of the case -- which it is here (I suspect because Rosen is unavailable, as in out of the US so unable to be served with process) -- then plaintiff can bring suit "against" the property itself, not as if the property did something wrong, but in order to get the court to say "yes, we declare that this property belongs to you, plaintiff" or, sometimes, "this property does not belong to anyone (because no one is allowed to have it)". The "defendant" doesn't need due process or a way to defend itself because it doesn't NEED to defend itself. Property is property; a bundle of rights plus (sometimes) some tangible thing. The collection of rights may change -- they're legal constructions, after all -- and the court with the right power can change it.
A court can only do this if it has power over the property. For real property, which is what is most often litigated in this way, the court in the state where the property is located can do it. For personal property, the court has to have it within its power. (Since the US took the rock, they would have given it to the court for it to hold for purposes of jurisdiction.)
When a court has power over property, they can hear the case: this is called "in rem" jurisdiction. ALL THIS MEANS is that the court -- as the arm of government that decides legal dispositions of everything -- may declare who really owns the property. "in rem" is not weird, or new -- it has been around for many, many years (definitely since the beginning of our nation, developed in English common law at some point). The main reason there are "in rem" suits is that sometimes it's hard or impossible to sue the proper defendant, because she is unavailable (as in no one can find her) or because the court that has power over the property does not have jurisdiction over the person (the proper defendant) involved. Rather than let this person dispossess others with legit interests in the disposition of property, the courts long ago exercised their power as part of the sovereign state to make the decision themselves.
"In rem" jurisdiction is very limited, nowadays, because of the Supreme Court's interpretation of constitutional due process and the effect on the unavailable defendant. It has NOTHING to do with crimes (although a crime may be involved); it's only about who owns the property. And no, this is not illegal search and seizure, and this is not NECESSARILY forfeiture. If there's a dispute as to ownership of property, the court with power should theoretically be able to adjudicate it (think about it: courts really do it all the time, e.g., in contract disputes).
I suppose whether you think this is right really comes down to what you think property is. But look at it this (admittedly theoretical) way: Sure, you think you own that piece of land. But really, who says you do? Why doesn't the next door neighbor do, or some native American, or the first person to say "this property is hereby mine" and plant a flag? The government, of course, say it's yours: this is the legal construct of property ownership. This construct gives a lot of power to the owner, but when there is a real, good faith, significant dispute as to who owns the property, well, what else will decide ownership but the legal system?
At any rate, this is the legal explanation, along with some legal theory...
It depends on what you mean by "not much money" -- $3.2 billion sounds like a lot (although I have no idea what the book value of Hynix is). At any rate, it's unclear whether Micron will buy them because the Hynix shareholders are deadset against letting Micron have their company. I can't for the life of me figure out why. Hynix has $5 billion in debt, and all their creditors and even their former CEO wanted the Micron deal to go through. Otherwise, Hynix will just disappear into bankruptcy.
You have a valid point; why do you hide behind anonymity?
Think about it this way. You had one book. You scan it in to make a copy. You now have two books, one of which you didn't pay for. This is a very, very simple case of copyright infringement.
Problem is,/.'ers only have a lot of experience with dealing with software and music, both of which have statutory exemptions. Section 117 lets you make a backup copy of software, and the Audio Home Recordings Act lets you do the same for, well, audio recordings. But there's no such exemption for books.
Look, I'm not saying there should or shouldn't be a copyright violation. I am saying, though, that it's important to know what the laws say. It's also important to be able to think about why we have exemptions for audio recordings and software. To start off your thinking, think about this: fair use DOES allow you to make partial copies of a copyrighted work (assuming some other factors). This you and everyone else have probably been doing for years. How often do you ever need to copy an entire book? Really, if you did that, given the nature of what you're doing, it should be (rebuttably) presumed that you're infringing. But with music and software, you almost always *have* to copy the entire work, if you're going to have some sort of fair use. (If you only copy a bit of a piece of music, then that, given other factors, is then a pretty simple case of fair use.) Since people who were trying to fairly use software and audio recordings kept running into the copyright infringement problem, Congress passed exemptions for those two cases.
That would be the backdrop. What do you think? Do the laws "need" to be rewritten? Should books have a statutory ban? (Realize, though, that would pretty much gut our meaning of "fair use" and a lot of copyright jurisprudence. Which may or may not be a bad thing, of course.)
Fair use policy on this dictates that I can do whatever the hell I please with my books for my own personal enjoyment.
Except that this isn't a fair use. It's definitely copyright infringement. First of all, fair use doesn't at all say what you think it says. You're thinking of first sale doctrine. First sale doctrine doesn't help because he's making a copy. Neither does the statutory exemption for backups of software. And although this copying (or derivative work, same result either way) isn't for commercial purposes (arguable, of course), and the copied work is factual and informational, the other factors actually considered for fair use weigh against it (i.e., the copying) being fair use.
But this is/., and even the most obvious cases of copyright infringement aren't considered copyright infringement.
Your first rule is silly. This is like saying "the 1st rule is never, ever ask a lawyer for legal help [in, say, drawing a will]; he will just try to sell you more legal advice." Or "never ever ask a mechanic to check out your car engine; he will just try to sell you some service." This will just get you into trouble, *even if you're a lawyer or mechanic yourself.* While you could feasibly do your own will or fix your own engine, you just don't have the perspective of an outsider who's seen hundreds of different situations. Sure, it's really important to hire someone who knows a lot and cares a lot about security, but 1) this person -- who's by definition is not a security expert, but a generalist -- will absolutely not have as much experience as someone who does nothing but security all day, all year, *for hundreds of (usually very) different clients.*
Your advice, Security is an ongoing issue and can't be solved by a one of check is very good. But it needs to be clarified: security audits should not be used as a cure-all. It is only what it is: an "audit", a (hopefully precise) description of the problem. Hire someone who's good at security, do the audit with that person fully involved, well-informed, and well-prepared, and security problems should mostly go away.
No rights are granted to US citizens by the Constitution and the Bill of Rights. Zero. Zip. Not a one. Nada.
This is at least arguable, and definitely not true in a bunch of cases. It's a time-old argument about natural rights v. positive rights, yadda yadda yadda. In any event, you're right that the first amendment doesn't "give" rights, and you're technically right about the 9th amendment, but you're certainly not right about, let's pick one, oh, the fifth amendment. The fifth amendment gives a civilian the right to a grand jury hearing for major felonies -- that's certainly not a natural right in any sense. It also provides the Double Jeopardy right -- that is, it gives a person the right to be free from being tried twice for the same crime. I suppose you could distill a natural right principle from it, but by its text and by how it has been handled in the past by many courts, it doesn't sound like a natural right to me. It also gives a defendant the right not to incriminate himself -- it also doesn't sound like a natural right (if a defendant takes the stand, he loses a large part of the right. Does that sound "natural" to you?). Due process and the takings clause -- well, those are definitely arguable, but in no way is it obvious that these two are natural rights, either.
You're right that the framers believed in natural rights. But certain rights; not every right was natural.
Nope, not usually. (The necessaries thing munges up the analysis and can give you a different result, but of course we're not talking about necessaries.) When I learned this in law school, I was aghast: I could have voided that those contracts from Columbia House that required me to buy x CDs within y years after getting the 10 free ones, and kept the CDs! What's more, if the minor voids the contract, he's entitled to restitution -- that is, the adult has to give back whatever he took from the minor within the bounds of the contract!
Another funny thing is that if the minor contracts with an adult, the adult cannot void the contract if the minor doesn't want to.
Of course, these rules can vary jurisdiction from jurisdiction, but in general, that's the law. In essence, it's what's called the infancy doctrine: Minors don't have the capacity to enter binding contracts.
Corporations, unfortunately, have been endowed with all the rights of a citizen... They are not boun by the limitations of the constitution.
Where in the world do you get these two ideas?? I'm not going to bother posting a whole lot, for fear this is a troll, but corporations certainly don't have "all the rights of a citizen" -- for pete's sake, they're fictional entities; for example, they can't vote -- and they certainly are bound by the limitations of the constitution -- everything within (and sometimes outside) the boundaries of this country is. What the hell kind of FUD are you trying to spread?
Couching it as a community-service-based educational project for law students (who by definition are not practicing law yet) might help the site avoid such attacks.
Except that law students -- and doctors and mechanics and farmers and everyone else -- are just as susceptible to unauthorized practice of law (UPL) rules as lawyers practicing in jurisdictions where they haven't passed the bar. Couching it as an "educational project" (i.e., legal clinic) is a step in the right direction, but the test will be whether the posters to the site think that they're getting legal advice, and relying on it as such. (Well, it's probably a "reasonable person" standard; I don't remember.)
The main problem is that they're accepting these letters from anyone, anywhere. The multijurisdictional issues that you bring up definitely rear their ugly heads, but even if it's in their state, it still might possibly be a UPL problem.
My point is really that no one should treat this website as giving legal advice. Sure, this will teach you some good stuff, but if you get a C&D you should touch base with your lawyer, unless it's just obviously wacko. If you do treat it as legal advice, the site could be ended or materially changed should a suit come up! That wouldn't be good for anyone except the C&D senders.
This whole discussion reminds me of the numerous copyright discussions that take place here. It's interesting that so many people are not willing to pay for content: "the net started out free, and I'm sure as hell not gonna pay for it now." Makes sense. Much of the content now, though, that's going to a pay-for-use system was never available on the early net anyway. It's a commercial web, now, and most of the added content was added by these commercial entities who expected they would make some money off it by improving efficiency, brand equity, revenues, etc.
Which brings me to the copyright issue. People don't seem to understand that -- at least from the law and economics view -- copyright (and IP in general) is meant to promote MARGINAL creation, not absolute creation. That is, everyone knows that there will be ideas even if there's no IP. But we recognize that there could be MORE ideas if we can provide the right incentive, so we have IP to provide incentive at the margin, hopefully reaching some optimal equilibrium (increasing social welfare).
Same with the free net, it seems to me. There was plenty of good, rich content before profit-seeking corps found it. Now we have much more content, but corps only came because they thought they could improve either the top line (the total revenues) or the bottom line (the net profits). So what's the deal? Do you think there was enough content in the early internet? Or do we need to have pay-for-use in order to reach an optimal level of content?
certainly not! The Sonny Bono Act is a law passed by Congress. The Copyright Clause of the Constitution only talks about a "limited Time"; it's the statute that defines what a limited time is. Congress can change this whenever it wants; that is, it can change it just as easily to less as it can to more.
It's funny -- as a law review article editor, I'd get tons of article submissions from many authors. Often, they've posted their articles on SSRN (the site to which the post is linked). Those authors always cite how many times their article has been viewed, in order to convince us of their publication-worthiness. I think this/. posting will launch Prof. Castronova onto the top ten downloads list of all time! We're probably helping his career.:)
yahoo's plan is to provide document search for documents you can't get for free/can't normally get online, so google will have no effect.
As for its attempt to get into Lexis's turf, it's got some catching up to do. Yahoo will offer 25 million docs? Lexis, in *1998*, offered 1.3 *billion* docs.
Cost-wise, though, Yahoo will be much, much, much cheaper. Lexis (and its competitor, Westlaw) are extremely expensive. Both have cheaper services, aimed at individuals and small law firms or other entities, but those services don't have nearly the same scope of search.
Lawyers use both Westlaw and Lexis, probably equally (it really, honestly, depends on which service you were "hooked" on in law school. For me, it was Lexis). We have to -- while they both have lots of the same content, they both have exclusive content that's very useful.
Summary judgment can happen when both sides agree to the facts of the case, and so the court only has to decide the suit as a matter of law applied to the facts.
This is certainly not unconstitutional. Juries are triers of facts, not the law. Obviously, then, if there's no dispute as to the facts, there's no need for a jury. Also, remember that a motion for summary judgment won't be granted if the other side (or the judge) believes that there is a dispute as to the facts, or that there's a reasonable chance that the facts will be in dispute.
BTW, remanding is not that big of a deal. The court below is constrained to decide "consistent with" the SCOTUS's opinion. Not much wiggle room, there.
Hm, I don't remember what the rest of the post is. I think it was an edit left over...
While I totally agree with your analogies, the duty of care in spamming is not as obvious. Look at it this way -- concentrate on the word "negligent." When you're negligent about doing something, and hurt somebody, that person needs to show that you had a responsibility to avoid doing what you were doing (or to do what you were doing more carefully). In legal tort terms, a reasonable person would have known to take better care.
It's not at all obvious that spamming someone is a negligent kind of act. What kind of better care should the spammer have followed? What does it mean to spam "right"? Identification of the desire of the plaintiff to get the mail? That's too much of a burden on free speech, I think. It happens all the time from a generalized point of view -- think along the lines of the soapbox speaker in the town square, or more directly snail mail junk mail. Sending these types of messages unrequested isn't per se illegal because of the free speech implications. Identification of the plaintiff's geographic location? I don't know, but a reasonable person standard (i.e., a negligence standard) probably isn't going to give rise to liability. You could go on. The upshot is that it's hard to say whether there is a general duty of care in the first place. The text of the statute doesn't necessarily impose a duty of care, either. Not every law gives rise to a civil negligence claim when it's been broken. What in spamming would give a person reason to believe they were doing something wrong, as per the CA statute? Hard to say.
That being said, if there is a duty of care arising from the statute, then breaking it naturally shows breach of the duty.
A proper claim for a negligence suit requires sufficient allegations of an existing duty of care, a breach of the duty, that defendant caused the harm, and damages arising from the harm. If the plaintiff doesn't sufficiently allege these elements (the "prima facie case"), then the court doesn't have to consider the claim at all, and they dismiss it. This is what happened in this case. The judge didn't think Ferguson alleged enough to satisfy his prima facie case, even after appeal. It was perfectly right for him to dismiss it if he thought this.
As for me, I think that when it comes to speech, courts have to tread very carefully in designing liability for unwanted speech. A negligence standard is not that high of a hurdle. Next thing you know, minorities will sue white people for being negligent in saying things that are offensive. No matter how offensive, it's their right to say it, even to someone's face. Finding a duty of care in this case, I'm sure, you wouldn't agree. It's not too far of a step, and doctrinally, courts shouldn't even tread near the line.
What allegations are you talking about? I'm sick and tired of/.'s thinking that judges have no clue about technology. They may not be programmers, but they sure as hell are smart enough to understand the technical problems when someone explains it to them. I doubt the same percentage of/.'s would understand the legal issues even if explained to them.
If you're talking about the trespass to chattel and negligence issues, the court said Ferguson didn't state enough facts for a prima facie case for both claims. So? That has nothing to do with their knowledge of the technology. That's a purely legal hurdle that everyone needs to get over. Furthermore, the court WANTED to give Ferguson a chance to amend his complaint, WRT the trespass claim. As for the negligence claim, their explanation was rather simple and perfectly the right legal outcome.
Engaging in interstate commerce (even if it's black-market stuff)
Often selling physical goods (or claiming to, anyway) which have to be delivered
which means they have to be aware of and follow laws on interstate commerce anyway. I don't see a big difference here.
What the poster is getting it -- although I doubt the poster is a lawyer -- is whether the law violates the dormant commerce clause. The court says it doesn't; of course, it's arguable. Anyway, this issue involves the idea that Congress has the right to regulate interstate commerce. The "dormant" commerce clause implies the *exclusive* right of Congress to regulate interstate commerce; that is, no individual state can regulate interstate commerce. What you say ("they have to be aware of and follow laws on interstate commerce anyway") involves interstate commerce FEDERAL laws, WRT spammers, as well as state laws when spammers are doing business with specific people in a specific state. The poster's problem is the now-classic commerce clause argument about regulation of the internet -- if the internet can be regulated at all, only the federal government can because of the distributed nature of the network (that is, no one really knows where others are physically on the Internet).
Of course, we know that spammers rarely actually know where their spam-victims are, so CA's anti-spam law arguably affects spammers who aren't actively trying to do business with persons in CA. This sort of issue has been litigated plenty before in other states, mainly WRT child pornography or access by minors to pornography. A lot of these laws were initially struck down as violating the dormant commerce clause.
Without reading the court's opinion, my instinct is that it validated the constitutionality of the CA law because the law was narrow enough to make it possible to pick out true violators. For example, if the law said that "all UCE received by CA residents is illegal," it would have been struck down, probably, as violating the dormant commerce clause and possibly as a prior restraint on speech. But if the law said "all UCE sent using servers within the CA borders" (and probably " . . . and received by CA residents"), it wouldn't seem to be regulating commerce outside CA, and so would be okay constitutionally.
As for "compelled speech," I have no idea what that could be. There's no law, constitution or otherwise, that prevents "compelled speech." The only thing that's bad is "prior *restraint*".
This is one of the stupider things I've ever heard. First: the ridiculous and uninformed assertion that corporations have had and are gaining more "personhood" rights. What kinds of rights do you think they have? People hear that corporations are legally considered "persons" and think that means they're actually afforded people's rights -- like those enumerated in the BIll of Rights, or if you subscribe to the theory, natural rights that every person enjoys. This is wrong. That a corporation is considered a legal person is a legal fiction for convenience -- ownership of property, liability for debt, etc. It's somewhat, but not really, related to that other phrase IANAL-type people repeat, "Corporations are limited liability entities." This ONLY means that WRT civil liability suits against the corporation's actions, corporate executives and board members are not personally liable for whatever compensation and damages might be owed by the company. Criminal liability is a totally different animal. Corporate execs can't hide behind the corporate veil for criminal acts they've committed.
What other "personhood" rights do you think a corporation has? Free speech? Cases that have challenged corporations' ability to say things in public about their views on non-corporate issues have centered on freedom of the PRESS. Yes, Speech and Press are related, even blurred (especially because of the Internet), but there's still legally a difference. Courts generally have an aversion to determining who's a member of the press and who isn't. Do you think you know any better?
I can't think of any other "personhood" rights that corporations have, or of any other "rights" that aren't reasonable for the purpose of the entity. A lot of rights people have can't even feasibly be enjoyed by a corporation, by it's fictional (i.e., collective) nature. What a load of anti-corporate hippie uninformed BS, this "personhood rights" idea.
Second, the idea that a corporate death penalty (let's call it a CDP) is an appropriate measure. I won't even go into much detail the effect it would have on the poor shareholders that had nothing to do with the corporate board's decisions in running the business. Note the very important fact that non-board shareholders can't EVEN LEGALLY MAKE business decisions for the company (this comes from a legal doctrine called the business judgment rule). So the poor schmucks who invested money into a company should have much of their investment interest liquidated and -- maybe, after compensation for victims -- distributed back to them, eh? People who had no idea what the company was doing on the sly, and furthermore had no legal say in it? Nice. But really, the important concept I see is the expansion of criminal law doctrine. A death penalty -- since you analogize it to and justify it by its real life counterpart -- is by nature a criminal punishment. This fits nicely when you throw around words like "kill" (e.g., Monsanto has killed thousands of people), but from a legal point of view, this is hard. You're saying that the corporation ITSELF should be criminally prosecuted for a capital crime, i.e., murder. But for murder, our society, over many years, has decided that the accused needs to have intended the specific act and done it, actually or constructively. This is because the crime is horrible and the punishment terrible. It's IMPOSSIBLE to show SUFFICIENTLY, according to our current notions of what murder IS, that a corporation -- remember, a legal FICTION! -- COMMITTED murder. Rather, for murder, the law has and will, unless idiotic concepts like the CDP prevail -- and it won't, I doubt a court in its right mind would accept such a ridiculous notion -- hold individuals liable. If the government in a murder trial can show, beyond a reasonable doubt, that Monsanto's CEO INTENDED to kill certain people and by his actions actually or constructively did it, then he'd be held liable, corporate form or not. But if you think about it, this is very hard hurdle to jump. Not many people -- read, a jury properly informed -- would say that the CEO committed murder. THIS IS WHY WE DON'T SEE MURDER PROSECUTIONS FOR ENVIRONMENTAL ISSUES. THIS IS WHY THERE ARE ENVIRONMENTAL LAWS. THIS IS WHY THERE IS CIVIL LIABILITY FOR NEGATIVE EXTERNALITIES.
Board members ARE liable for ANY criminal acts, depending on the legal requirements for particular criminal offenses. You have to make a distinction between civil liability and criminal "liability." (I'd prefer to use the word "liable" for civil liability and something else for criminal acts, but I can't think of a better term.) Corporate board members can't, for an extreme illustrative example, order the murder of the CEO of a rival company and enjoy limited liability because it was a corporate action. Murder is murder. For less extreme examples, board members (or any executives) can't steal money or commit securities fraud and hide behind the corporate veil.
"Limited liability" refers to civil liability. Civil liability means MONETARY compensation for damages, and maybe some punitive damages on top. Corporate board members generally can't have their personal assets taken when their companies are civilly liable for something. This is ALL limited liability means. It's not a miracle shield against all wrongdoing by the corporate leaders. That would be insane.
Jeez, why do people think that corporations are these magical evil entities that can do anything they want? A little bit of knowledge is definitely a dangerous thing. People hear "corporations are legally 'persons'" and "corporations have limited liability" without knowing more and understanding what the hell is going on.
Also, this BS about granting corporations "personhood" rights is ridiculous. Corporations certainly don't have "personhood" rights. They're legal entities, legal fictions WRT their "person" status, for pete's sake!
What the hell are personhood rights, anyway? Free speech? Corporations weren't "granted" free speech rights recently. They've always had it. In fact, the cases that first challenged corporation free speech rights were more about freedom of the PRESS. Of COURSE courts are going to say corporations have this right. There has been a rather long-standing aversion to categorizing who is a member of the press and who isn't. Courts in general don't want to make this distinction. What other "personhood" "rights" do corporations have that aren't really reasonable rights to give to that type of legal entity?
That's very interesting. So maybe not invincibility, or not only invincibility, but utter helplessness. I can buy that. Very interesting. Both attitudes can result in the same exact behavior. When I was younger, I certainly thought bad things would never happen to me; this was an attitude shared by many of my peers, and it got them into some trouble. But yeah, there were many others who felt helpless against, say, the degradation of the environment, the corruption of government, and relentless overpopulation. And some of them got into the same kind of trouble as those that thought they were invincible.
Now, among my peers, I definitely detect a sea-change in the way they thought we'd never be attacked. But I'm sure there are many who feel like you. Interesting...
No, probably not. In fact, that wasn't my point, and your conclusion is circular. My point is that charging more for business service subsidizes possible future expensive suits. If you've had economics in your schooling (well, preferably economics of public policy, or better yet a law background), you can characterize the charging extra as an expected value decision. Take the probability of getting sued, multiply it by the cost of the suit -- that's the expected value. Charge more for your business service, you can mitigate the difference in expected values between residential and business service liability lawsuits.
Everyone seems to be concentrating on how bad or dumb Comcast and Cox are being, or how it's a simple free market decision on their part. But think about it this way. These Terms of Service are as much a way to *cover a company's butt* than they are a way to tell people what they're getting; probably even more so. (This is the case with almost every mass consumer boilerplate contract.) Now, here's the deal:
Business-related activities are far more valuable (economic-wise) than other kinds of activity. Businesses have much more stake in the reliability of internet connections for telecommuters; they risk a lot, not having the person in the office. Thus, if there's a problem with the connection, resulting in lost/missed communication or just general loss of productivity, businesses have enough reason and resources to sue the provider of the connection. (This would be a simple breach of contract, except that Comcast/Cox/etc. have deep pockets, so litigation will end up being more expensive for them.)
By explicitly stating that VPNs are not allowed, they completely disclaim any responsibility for screwed up business-related stuff or communications. If they had said "we don't support VPNs", they're still sticking their neck out in terms of liability -- they would just be saying they don't have tech support for that kind of activity, and could still feasibly be sued.
Jeez, desensitization to violence is not the issue. It's precisely that such kind of violence happened *on our soil*. For all the biggest international conflicts in the past 100 years, for all the advancements in ways to destroy things and people, none affected the way we felt safe about our home. 9/11 woke us all up to that threat. Oklahoma City didn't -- like the Civil War, that was done by our own. The earlier bombing of the WTC didn't -- because it didn't work (in a sense, it strengthened our feeling of superiority and virtual invincibility).
You're lucky that you grew up without the slightest fear that you have to do something personally to defend your country; that when you go to school, you don't have the slightest fear that your bus will blow up or you'll be kidnapped and sold to the highest bidder. It's great, that safety, and it still pretty much exists. It's what every parent and older person is thankful for when they watch the international news. But that implies the key: they don't have reactions to the violence because it doesn't threaten them, not because they're desensitized to violence in general.
And since it was an act of terrorism, by definition the act was meant to terrify people because they don't know where or when it will happen next. This is why it was scary. I'm honestly astounded that you weren't affected much by this. It's sad that younger people actually seem to be desensitized to a lot of the outside world; it seems like they actually do feel invincible, even when something like 9/11 threatens the comfort and safety that arguably makes up a large part of their concept of where they stand in the world.
Slashdot Mirror
There are some poor or utterly wrong explanations below, so let me clear it up. The rock isn't really "defendant" in the case; it's just the way they write the title. What's happening is the government is trying get a declaration of the disposition of the property as against 1) Rosen, the guy from whom they took the rock, and 2) against the world (probably, although there are some legal technical stuff that might preclude this one). If this is the only point of the case -- which it is here (I suspect because Rosen is unavailable, as in out of the US so unable to be served with process) -- then plaintiff can bring suit "against" the property itself, not as if the property did something wrong, but in order to get the court to say "yes, we declare that this property belongs to you, plaintiff" or, sometimes, "this property does not belong to anyone (because no one is allowed to have it)". The "defendant" doesn't need due process or a way to defend itself because it doesn't NEED to defend itself. Property is property; a bundle of rights plus (sometimes) some tangible thing. The collection of rights may change -- they're legal constructions, after all -- and the court with the right power can change it.
A court can only do this if it has power over the property. For real property, which is what is most often litigated in this way, the court in the state where the property is located can do it. For personal property, the court has to have it within its power. (Since the US took the rock, they would have given it to the court for it to hold for purposes of jurisdiction.)
When a court has power over property, they can hear the case: this is called "in rem" jurisdiction. ALL THIS MEANS is that the court -- as the arm of government that decides legal dispositions of everything -- may declare who really owns the property. "in rem" is not weird, or new -- it has been around for many, many years (definitely since the beginning of our nation, developed in English common law at some point). The main reason there are "in rem" suits is that sometimes it's hard or impossible to sue the proper defendant, because she is unavailable (as in no one can find her) or because the court that has power over the property does not have jurisdiction over the person (the proper defendant) involved. Rather than let this person dispossess others with legit interests in the disposition of property, the courts long ago exercised their power as part of the sovereign state to make the decision themselves.
"In rem" jurisdiction is very limited, nowadays, because of the Supreme Court's interpretation of constitutional due process and the effect on the unavailable defendant. It has NOTHING to do with crimes (although a crime may be involved); it's only about who owns the property. And no, this is not illegal search and seizure, and this is not NECESSARILY forfeiture. If there's a dispute as to ownership of property, the court with power should theoretically be able to adjudicate it (think about it: courts really do it all the time, e.g., in contract disputes).
I suppose whether you think this is right really comes down to what you think property is. But look at it this (admittedly theoretical) way: Sure, you think you own that piece of land. But really, who says you do? Why doesn't the next door neighbor do, or some native American, or the first person to say "this property is hereby mine" and plant a flag? The government, of course, say it's yours: this is the legal construct of property ownership. This construct gives a lot of power to the owner, but when there is a real, good faith, significant dispute as to who owns the property, well, what else will decide ownership but the legal system?
At any rate, this is the legal explanation, along with some legal theory...
It depends on what you mean by "not much money" -- $3.2 billion sounds like a lot (although I have no idea what the book value of Hynix is). At any rate, it's unclear whether Micron will buy them because the Hynix shareholders are deadset against letting Micron have their company. I can't for the life of me figure out why. Hynix has $5 billion in debt, and all their creditors and even their former CEO wanted the Micron deal to go through. Otherwise, Hynix will just disappear into bankruptcy.
You have a valid point; why do you hide behind anonymity?
/.'ers only have a lot of experience with dealing with software and music, both of which have statutory exemptions. Section 117 lets you make a backup copy of software, and the Audio Home Recordings Act lets you do the same for, well, audio recordings. But there's no such exemption for books.
Think about it this way. You had one book. You scan it in to make a copy. You now have two books, one of which you didn't pay for. This is a very, very simple case of copyright infringement.
Problem is,
Look, I'm not saying there should or shouldn't be a copyright violation. I am saying, though, that it's important to know what the laws say. It's also important to be able to think about why we have exemptions for audio recordings and software. To start off your thinking, think about this: fair use DOES allow you to make partial copies of a copyrighted work (assuming some other factors). This you and everyone else have probably been doing for years. How often do you ever need to copy an entire book? Really, if you did that, given the nature of what you're doing, it should be (rebuttably) presumed that you're infringing. But with music and software, you almost always *have* to copy the entire work, if you're going to have some sort of fair use. (If you only copy a bit of a piece of music, then that, given other factors, is then a pretty simple case of fair use.) Since people who were trying to fairly use software and audio recordings kept running into the copyright infringement problem, Congress passed exemptions for those two cases.
That would be the backdrop. What do you think? Do the laws "need" to be rewritten? Should books have a statutory ban? (Realize, though, that would pretty much gut our meaning of "fair use" and a lot of copyright jurisprudence. Which may or may not be a bad thing, of course.)
Fair use policy on this dictates that I can do whatever the hell I please with my books for my own personal enjoyment.
/., and even the most obvious cases of copyright infringement aren't considered copyright infringement.
Except that this isn't a fair use. It's definitely copyright infringement. First of all, fair use doesn't at all say what you think it says. You're thinking of first sale doctrine. First sale doctrine doesn't help because he's making a copy. Neither does the statutory exemption for backups of software. And although this copying (or derivative work, same result either way) isn't for commercial purposes (arguable, of course), and the copied work is factual and informational, the other factors actually considered for fair use weigh against it (i.e., the copying) being fair use.
But this is
Your first rule is silly. This is like saying "the 1st rule is never, ever ask a lawyer for legal help [in, say, drawing a will]; he will just try to sell you more legal advice." Or "never ever ask a mechanic to check out your car engine; he will just try to sell you some service." This will just get you into trouble, *even if you're a lawyer or mechanic yourself.* While you could feasibly do your own will or fix your own engine, you just don't have the perspective of an outsider who's seen hundreds of different situations. Sure, it's really important to hire someone who knows a lot and cares a lot about security, but 1) this person -- who's by definition is not a security expert, but a generalist -- will absolutely not have as much experience as someone who does nothing but security all day, all year, *for hundreds of (usually very) different clients.*
Your advice, Security is an ongoing issue and can't be solved by a one of check is very good. But it needs to be clarified: security audits should not be used as a cure-all. It is only what it is: an "audit", a (hopefully precise) description of the problem. Hire someone who's good at security, do the audit with that person fully involved, well-informed, and well-prepared, and security problems should mostly go away.
No rights are granted to US citizens by the Constitution and the Bill of Rights. Zero. Zip. Not a one. Nada.
This is at least arguable, and definitely not true in a bunch of cases. It's a time-old argument about natural rights v. positive rights, yadda yadda yadda. In any event, you're right that the first amendment doesn't "give" rights, and you're technically right about the 9th amendment, but you're certainly not right about, let's pick one, oh, the fifth amendment. The fifth amendment gives a civilian the right to a grand jury hearing for major felonies -- that's certainly not a natural right in any sense.
It also provides the Double Jeopardy right -- that is, it gives a person the right to be free from being tried twice for the same crime. I suppose you could distill a natural right principle from it, but by its text and by how it has been handled in the past by many courts, it doesn't sound like a natural right to me. It also gives a defendant the right not to incriminate himself -- it also doesn't sound like a natural right (if a defendant takes the stand, he loses a large part of the right. Does that sound "natural" to you?). Due process and the takings clause -- well, those are definitely arguable, but in no way is it obvious that these two are natural rights, either.
You're right that the framers believed in natural rights. But certain rights; not every right was natural.
oh, and this is not legal advice, yadda yadda yadda...
Another funny thing is that if the minor contracts with an adult, the adult cannot void the contract if the minor doesn't want to.
Of course, these rules can vary jurisdiction from jurisdiction, but in general, that's the law. In essence, it's what's called the infancy doctrine: Minors don't have the capacity to enter binding contracts.
Where in the world do you get these two ideas?? I'm not going to bother posting a whole lot, for fear this is a troll, but corporations certainly don't have "all the rights of a citizen" -- for pete's sake, they're fictional entities; for example, they can't vote -- and they certainly are bound by the limitations of the constitution -- everything within (and sometimes outside) the boundaries of this country is. What the hell kind of FUD are you trying to spread?
Except that law students -- and doctors and mechanics and farmers and everyone else -- are just as susceptible to unauthorized practice of law (UPL) rules as lawyers practicing in jurisdictions where they haven't passed the bar. Couching it as an "educational project" (i.e., legal clinic) is a step in the right direction, but the test will be whether the posters to the site think that they're getting legal advice, and relying on it as such. (Well, it's probably a "reasonable person" standard; I don't remember.)
The main problem is that they're accepting these letters from anyone, anywhere. The multijurisdictional issues that you bring up definitely rear their ugly heads, but even if it's in their state, it still might possibly be a UPL problem.
My point is really that no one should treat this website as giving legal advice. Sure, this will teach you some good stuff, but if you get a C&D you should touch base with your lawyer, unless it's just obviously wacko. If you do treat it as legal advice, the site could be ended or materially changed should a suit come up! That wouldn't be good for anyone except the C&D senders.
This whole discussion reminds me of the numerous copyright discussions that take place here. It's interesting that so many people are not willing to pay for content: "the net started out free, and I'm sure as hell not gonna pay for it now." Makes sense. Much of the content now, though, that's going to a pay-for-use system was never available on the early net anyway. It's a commercial web, now, and most of the added content was added by these commercial entities who expected they would make some money off it by improving efficiency, brand equity, revenues, etc.
Which brings me to the copyright issue. People don't seem to understand that -- at least from the law and economics view -- copyright (and IP in general) is meant to promote MARGINAL creation, not absolute creation. That is, everyone knows that there will be ideas even if there's no IP. But we recognize that there could be MORE ideas if we can provide the right incentive, so we have IP to provide incentive at the margin, hopefully reaching some optimal equilibrium (increasing social welfare).
Same with the free net, it seems to me. There was plenty of good, rich content before profit-seeking corps found it. Now we have much more content, but corps only came because they thought they could improve either the top line (the total revenues) or the bottom line (the net profits). So what's the deal? Do you think there was enough content in the early internet? Or do we need to have pay-for-use in order to reach an optimal level of content?
certainly not! The Sonny Bono Act is a law passed by Congress. The Copyright Clause of the Constitution only talks about a "limited Time"; it's the statute that defines what a limited time is. Congress can change this whenever it wants; that is, it can change it just as easily to less as it can to more.
It's funny -- as a law review article editor, I'd get tons of article submissions from many authors. Often, they've posted their articles on SSRN (the site to which the post is linked). Those authors always cite how many times their article has been viewed, in order to convince us of their publication-worthiness. I think this /. posting will launch Prof. Castronova onto the top ten downloads list of all time! We're probably helping his career. :)
yahoo's plan is to provide document search for documents you can't get for free/can't normally get online, so google will have no effect.
As for its attempt to get into Lexis's turf, it's got some catching up to do. Yahoo will offer 25 million docs? Lexis, in *1998*, offered 1.3 *billion* docs.
Cost-wise, though, Yahoo will be much, much, much cheaper. Lexis (and its competitor, Westlaw) are extremely expensive. Both have cheaper services, aimed at individuals and small law firms or other entities, but those services don't have nearly the same scope of search.
Lawyers use both Westlaw and Lexis, probably equally (it really, honestly, depends on which service you were "hooked" on in law school. For me, it was Lexis). We have to -- while they both have lots of the same content, they both have exclusive content that's very useful.
Summary judgment can happen when both sides agree to the facts of the case, and so the court only has to decide the suit as a matter of law applied to the facts.
This is certainly not unconstitutional. Juries are triers of facts, not the law. Obviously, then, if there's no dispute as to the facts, there's no need for a jury. Also, remember that a motion for summary judgment won't be granted if the other side (or the judge) believes that there is a dispute as to the facts, or that there's a reasonable chance that the facts will be in dispute.
BTW, remanding is not that big of a deal. The court below is constrained to decide "consistent with" the SCOTUS's opinion. Not much wiggle room, there.
Hm, I don't remember what the rest of the post is. I think it was an edit left over...
While I totally agree with your analogies, the duty of care in spamming is not as obvious. Look at it this way -- concentrate on the word "negligent." When you're negligent about doing something, and hurt somebody, that person needs to show that you had a responsibility to avoid doing what you were doing (or to do what you were doing more carefully). In legal tort terms, a reasonable person would have known to take better care.
It's not at all obvious that spamming someone is a negligent kind of act. What kind of better care should the spammer have followed? What does it mean to spam "right"? Identification of the desire of the plaintiff to get the mail? That's too much of a burden on free speech, I think. It happens all the time from a generalized point of view -- think along the lines of the soapbox speaker in the town square, or more directly snail mail junk mail. Sending these types of messages unrequested isn't per se illegal because of the free speech implications. Identification of the plaintiff's geographic location? I don't know, but a reasonable person standard (i.e., a negligence standard) probably isn't going to give rise to liability. You could go on. The upshot is that it's hard to say whether there is a general duty of care in the first place. The text of the statute doesn't necessarily impose a duty of care, either. Not every law gives rise to a civil negligence claim when it's been broken. What in spamming would give a person reason to believe they were doing something wrong, as per the CA statute? Hard to say.
That being said, if there is a duty of care arising from the statute, then breaking it naturally shows breach of the duty.
A proper claim for a negligence suit requires sufficient allegations of an existing duty of care, a breach of the duty, that defendant caused the harm, and damages arising from the harm. If the plaintiff doesn't sufficiently allege these elements (the "prima facie case"), then the court doesn't have to consider the claim at all, and they dismiss it. This is what happened in this case. The judge didn't think Ferguson alleged enough to satisfy his prima facie case, even after appeal. It was perfectly right for him to dismiss it if he thought this.
As for me, I think that when it comes to speech, courts have to tread very carefully in designing liability for unwanted speech. A negligence standard is not that high of a hurdle. Next thing you know, minorities will sue white people for being negligent in saying things that are offensive. No matter how offensive, it's their right to say it, even to someone's face. Finding a duty of care in this case, I'm sure, you wouldn't agree. It's not too far of a step, and doctrinally, courts shouldn't even tread near the line.
What allegations are you talking about? I'm sick and tired of /.'s thinking that judges have no clue about technology. They may not be programmers, but they sure as hell are smart enough to understand the technical problems when someone explains it to them. I doubt the same percentage of /.'s would understand the legal issues even if explained to them.
If you're talking about the trespass to chattel and negligence issues, the court said Ferguson didn't state enough facts for a prima facie case for both claims. So? That has nothing to do with their knowledge of the technology. That's a purely legal hurdle that everyone needs to get over. Furthermore, the court WANTED to give Ferguson a chance to amend his complaint, WRT the trespass claim. As for the negligence claim, their explanation was rather simple and perfectly the right legal outcome.
Other than
which means they have to be aware of and follow laws on interstate commerce anyway. I don't see a big difference here.
What the poster is getting it -- although I doubt the poster is a lawyer -- is whether the law violates the dormant commerce clause. The court says it doesn't; of course, it's arguable. Anyway, this issue involves the idea that Congress has the right to regulate interstate commerce. The "dormant" commerce clause implies the *exclusive* right of Congress to regulate interstate commerce; that is, no individual state can regulate interstate commerce. What you say ("they have to be aware of and follow laws on interstate commerce anyway") involves interstate commerce FEDERAL laws, WRT spammers, as well as state laws when spammers are doing business with specific people in a specific state. The poster's problem is the now-classic commerce clause argument about regulation of the internet -- if the internet can be regulated at all, only the federal government can because of the distributed nature of the network (that is, no one really knows where others are physically on the Internet).
Of course, we know that spammers rarely actually know where their spam-victims are, so CA's anti-spam law arguably affects spammers who aren't actively trying to do business with persons in CA. This sort of issue has been litigated plenty before in other states, mainly WRT child pornography or access by minors to pornography. A lot of these laws were initially struck down as violating the dormant commerce clause.
Without reading the court's opinion, my instinct is that it validated the constitutionality of the CA law because the law was narrow enough to make it possible to pick out true violators. For example, if the law said that "all UCE received by CA residents is illegal," it would have been struck down, probably, as violating the dormant commerce clause and possibly as a prior restraint on speech. But if the law said "all UCE sent using servers within the CA borders" (and probably " . . . and received by CA residents"), it wouldn't seem to be regulating commerce outside CA, and so would be okay constitutionally.
As for "compelled speech," I have no idea what that could be. There's no law, constitution or otherwise, that prevents "compelled speech." The only thing that's bad is "prior *restraint*".
This is one of the stupider things I've ever heard. First: the ridiculous and uninformed assertion that corporations have had and are gaining more "personhood" rights. What kinds of rights do you think they have? People hear that corporations are legally considered "persons" and think that means they're actually afforded people's rights -- like those enumerated in the BIll of Rights, or if you subscribe to the theory, natural rights that every person enjoys. This is wrong. That a corporation is considered a legal person is a legal fiction for convenience -- ownership of property, liability for debt, etc. It's somewhat, but not really, related to that other phrase IANAL-type people repeat, "Corporations are limited liability entities." This ONLY means that WRT civil liability suits against the corporation's actions, corporate executives and board members are not personally liable for whatever compensation and damages might be owed by the company. Criminal liability is a totally different animal. Corporate execs can't hide behind the corporate veil for criminal acts they've committed.
What other "personhood" rights do you think a corporation has? Free speech? Cases that have challenged corporations' ability to say things in public about their views on non-corporate issues have centered on freedom of the PRESS. Yes, Speech and Press are related, even blurred (especially because of the Internet), but there's still legally a difference. Courts generally have an aversion to determining who's a member of the press and who isn't. Do you think you know any better?
I can't think of any other "personhood" rights that corporations have, or of any other "rights" that aren't reasonable for the purpose of the entity. A lot of rights people have can't even feasibly be enjoyed by a corporation, by it's fictional (i.e., collective) nature. What a load of anti-corporate hippie uninformed BS, this "personhood rights" idea.
Second, the idea that a corporate death penalty (let's call it a CDP) is an appropriate measure. I won't even go into much detail the effect it would have on the poor shareholders that had nothing to do with the corporate board's decisions in running the business. Note the very important fact that non-board shareholders can't EVEN LEGALLY MAKE business decisions for the company (this comes from a legal doctrine called the business judgment rule). So the poor schmucks who invested money into a company should have much of their investment interest liquidated and -- maybe, after compensation for victims -- distributed back to them, eh? People who had no idea what the company was doing on the sly, and furthermore had no legal say in it? Nice. But really, the important concept I see is the expansion of criminal law doctrine. A death penalty -- since you analogize it to and justify it by its real life counterpart -- is by nature a criminal punishment. This fits nicely when you throw around words like "kill" (e.g., Monsanto has killed thousands of people), but from a legal point of view, this is hard. You're saying that the corporation ITSELF should be criminally prosecuted for a capital crime, i.e., murder. But for murder, our society, over many years, has decided that the accused needs to have intended the specific act and done it, actually or constructively. This is because the crime is horrible and the punishment terrible. It's IMPOSSIBLE to show SUFFICIENTLY, according to our current notions of what murder IS, that a corporation -- remember, a legal FICTION! -- COMMITTED murder. Rather, for murder, the law has and will, unless idiotic concepts like the CDP prevail -- and it won't, I doubt a court in its right mind would accept such a ridiculous notion -- hold individuals liable. If the government in a murder trial can show, beyond a reasonable doubt, that Monsanto's CEO INTENDED to kill certain people and by his actions actually or constructively did it, then he'd be held liable, corporate form or not. But if you think about it, this is very hard hurdle to jump. Not many people -- read, a jury properly informed -- would say that the CEO committed murder. THIS IS WHY WE DON'T SEE MURDER PROSECUTIONS FOR ENVIRONMENTAL ISSUES. THIS IS WHY THERE ARE ENVIRONMENTAL LAWS. THIS IS WHY THERE IS CIVIL LIABILITY FOR NEGATIVE EXTERNALITIES.
Board members ARE liable for ANY criminal acts, depending on the legal requirements for particular criminal offenses. You have to make a distinction between civil liability and criminal "liability." (I'd prefer to use the word "liable" for civil liability and something else for criminal acts, but I can't think of a better term.) Corporate board members can't, for an extreme illustrative example, order the murder of the CEO of a rival company and enjoy limited liability because it was a corporate action. Murder is murder. For less extreme examples, board members (or any executives) can't steal money or commit securities fraud and hide behind the corporate veil.
"Limited liability" refers to civil liability. Civil liability means MONETARY compensation for damages, and maybe some punitive damages on top. Corporate board members generally can't have their personal assets taken when their companies are civilly liable for something. This is ALL limited liability means. It's not a miracle shield against all wrongdoing by the corporate leaders. That would be insane.
Jeez, why do people think that corporations are these magical evil entities that can do anything they want? A little bit of knowledge is definitely a dangerous thing. People hear "corporations are legally 'persons'" and "corporations have limited liability" without knowing more and understanding what the hell is going on.
Also, this BS about granting corporations "personhood" rights is ridiculous. Corporations certainly don't have "personhood" rights. They're legal entities, legal fictions WRT their "person" status, for pete's sake!
What the hell are personhood rights, anyway? Free speech? Corporations weren't "granted" free speech rights recently. They've always had it. In fact, the cases that first challenged corporation free speech rights were more about freedom of the PRESS. Of COURSE courts are going to say corporations have this right. There has been a rather long-standing aversion to categorizing who is a member of the press and who isn't. Courts in general don't want to make this distinction. What other "personhood" "rights" do corporations have that aren't really reasonable rights to give to that type of legal entity?
That's very interesting. So maybe not invincibility, or not only invincibility, but utter helplessness. I can buy that. Very interesting. Both attitudes can result in the same exact behavior. When I was younger, I certainly thought bad things would never happen to me; this was an attitude shared by many of my peers, and it got them into some trouble. But yeah, there were many others who felt helpless against, say, the degradation of the environment, the corruption of government, and relentless overpopulation. And some of them got into the same kind of trouble as those that thought they were invincible.
Now, among my peers, I definitely detect a sea-change in the way they thought we'd never be attacked. But I'm sure there are many who feel like you. Interesting...
No, probably not. In fact, that wasn't my point, and your conclusion is circular. My point is that charging more for business service subsidizes possible future expensive suits. If you've had economics in your schooling (well, preferably economics of public policy, or better yet a law background), you can characterize the charging extra as an expected value decision. Take the probability of getting sued, multiply it by the cost of the suit -- that's the expected value. Charge more for your business service, you can mitigate the difference in expected values between residential and business service liability lawsuits.
Everyone seems to be concentrating on how bad or dumb Comcast and Cox are being, or how it's a simple free market decision on their part. But think about it this way. These Terms of Service are as much a way to *cover a company's butt* than they are a way to tell people what they're getting; probably even more so. (This is the case with almost every mass consumer boilerplate contract.) Now, here's the deal:
Business-related activities are far more valuable (economic-wise) than other kinds of activity. Businesses have much more stake in the reliability of internet connections for telecommuters; they risk a lot, not having the person in the office. Thus, if there's a problem with the connection, resulting in lost/missed communication or just general loss of productivity, businesses have enough reason and resources to sue the provider of the connection. (This would be a simple breach of contract, except that Comcast/Cox/etc. have deep pockets, so litigation will end up being more expensive for them.)
By explicitly stating that VPNs are not allowed, they completely disclaim any responsibility for screwed up business-related stuff or communications. If they had said "we don't support VPNs", they're still sticking their neck out in terms of liability -- they would just be saying they don't have tech support for that kind of activity, and could still feasibly be sued.
Jeez, desensitization to violence is not the issue. It's precisely that such kind of violence happened *on our soil*. For all the biggest international conflicts in the past 100 years, for all the advancements in ways to destroy things and people, none affected the way we felt safe about our home. 9/11 woke us all up to that threat. Oklahoma City didn't -- like the Civil War, that was done by our own. The earlier bombing of the WTC didn't -- because it didn't work (in a sense, it strengthened our feeling of superiority and virtual invincibility).
You're lucky that you grew up without the slightest fear that you have to do something personally to defend your country; that when you go to school, you don't have the slightest fear that your bus will blow up or you'll be kidnapped and sold to the highest bidder. It's great, that safety, and it still pretty much exists. It's what every parent and older person is thankful for when they watch the international news. But that implies the key: they don't have reactions to the violence because it doesn't threaten them, not because they're desensitized to violence in general.
And since it was an act of terrorism, by definition the act was meant to terrify people because they don't know where or when it will happen next. This is why it was scary. I'm honestly astounded that you weren't affected much by this. It's sad that younger people actually seem to be desensitized to a lot of the outside world; it seems like they actually do feel invincible, even when something like 9/11 threatens the comfort and safety that arguably makes up a large part of their concept of where they stand in the world.