You probably agree with them much more often than you think, particularly when the SCOTUS passes down a unanimous or close to unanimous decision. The 5-4 split doesn't happen in every single case -- in fact, that's a result in a minority of decisions. (Take a look at On the Docket at Northwestern, which I think is part of the Oyez Project.)
It's true, there's a lot of money out there. The easiest way to connect to VCs is through networking. If you don't have personal contacts, the easiest way to network is by retaining a law firm that represents a lot of VCs and venture-backed companies. I'm constantly reminded by our VC clients to send them potential investments. (I like my anonymity here, so I'm not going to name my firm.)
Mandriva is a combination of MandrakeSoft and Conectiva. The two companies merged not too long ago. MandrakeSoft doesn't seem like too strange of a name, certainly not a nonsense name. Conectiva was a Brazilian company, so the latin-ized word (is it Portuguese?) makes sense.
No matter what, keep in mind that from a trademark perspective, nonsense words are the easiest to protect. Makes better financial sense to pick nonsense words for trademarks. Imagine how much money was probably spent trying to protect Microsoft "Word"; I'm not sure it's even protected now.
You mean 8 *strictly* enforce it, but that's neither here nor there -- the point is that there's nothing in there that says that people in any of these countries "hate" being forced to vote. (Which is why I said I don't know if people in these countries "hate" being forced to vote.)
So, back to my original point: all I was asking for was your thoughts on why you think people would hate being forced to vote. There are principled objections (I don't know why you put that term in quotes) to being forced to vote -- it's undemocratic, it's not freedom, etc., etc. -- but that doesn't automatically translate into hating being forced to vote. For example, in some cases, the law may just be a reflection of civic norms; citizens generally believe they should vote, and so the laws enshrine the norm.
Look at Australia, for example. Voter turnout is above 90%, even though the fine is nominal, only AU$20 (AU$50 + court costs for prosecution if you don't pay the AU$20 in time). I would find it hard to argue just based on that that Australians "hate" to be forced to vote. If they did, the voting percentages would probably be lower since the punishment is so nominal.
I'm sure there are plenty of counter-examples. I'm just wondering why you think that people hate being forced to vote, notwithstanding other objections. How would you explain Australia, where you could reasonably say that people believe so strongly that citizens should vote that they passed laws reflecting that norm?
This exact language was in their 10-K filed last month. There have no other filings recently that would normally have a "Risk Factors" section, so that's why you wouldn't have seen this sort of language elsewhere. I don't think this is really news.
30 countries or so have mandatory voting. Principled objections to mandatory voting aside, why do you think people would hate being forced to vote? I don't get the impression that the voters in compulsory voting countries hate their countries' systems, though of course I don't know for sure and the strength of a country's enforcement varies from country to country.
26 states have no-excuse mail-in absentee voting. All other states allow either early voting or mail-in absentee voting under certain circumstances.
I'm sure there's some correlation between voting turnout and availability of no-excuse absentee voting. At least for the last presidential election, though, I'm not sure the correlation is clear or significant. But I really don't know. I assume someone has done some research...
I don't know about Canada, but here in the U.S., at least in California and Delaware, business names do have to be unique. It's mostly out of an administrative concern, though, nothing really to do with trademark or other protections.
In general, they are. They would have to be authenticated just like any other photo (or generally like any other piece of evidence); for example, testimony from the photographer that yeah, she took that picture, and that's the picture she took. If authenticity is in question, then the parties have to provide evidence to prove/disprove the photos' authenticity, but there's nothing inherent to the digital format that should change the basic rules of evidence admissibility.
If there's not enough evidence to disprove digital photos' authenticity for purposes of admissibility, then the evidence that casts doubt on the authenticity of the photos could go to its weight (i.e., whether we should put much faith in the photos that they prove what they're supposed to prove). So if a lawyer can convince a jury not to trust digital photos because they're easily alterable, so be it.
There can be an issue with perhaps the best evidence rule, but that rule doesn't have as much to do with authenticity as the desire to look at an original instead of a copy. But I think most courts have specific subrules to the best evidence rule that apply to computer files, so there's no reason that those rules wouldn't also apply to digital pictures.
A literal reading of this would say that some music files that I and a few friends made and put online are going to become illegal.
You might want to try literally reading the actual bill, rather than the writeup in either news.com or the story submission.
Why would you or your friends' distribution of your own works be illegal? Even under the writeup's language, that doesn't make sense. The bill appears to amend the criminal infringement provisions to provide for up to 3 years of jail for distributing even one copy of a pre-release work that the person knew or should have known is intended for release. But that has to do with the penalty for a specific method of infringement, not the definition of infringement. Obviously in your situation there's no infringement to begin with.
I suppose this wouldn't be surprising, coming from the Bush administration.
Cheap shot that makes no sense. Congress writes and then agrees to legislation. The president signs the agreed-to legislation into law. This legislation (1) doesn't "come" from the Bush administration, and (2) in any case it was passed unanimously by the Senate and overwhelmingly by the House. Note that you can't tell what the vote was in the House because they approved it by voice vote -- that's when the presiding officer listens to the representatives yell "yea" or "nay" and judges who wins by which is louder. I am not making that up. The fact that the voice vote was enough (I believe roll call vote is automatic if even one person objects to using voice vote)tells you how easily this passed the House. Like it or not, this was a fully bipartisan bill.
It's a fair enough argument to make, but like my original point, it's not a slam dunk, and it's a fact that needs to be proven. Also, I'd bet that a similar situation has come up in the past, and I suspect that the copyright holder has won, depending on the nature of the copying. For just one example, if you're really only sampling ambient sounds for a Sounds of Central Park cd (which is another thing you'd have to prove), why do you have to be allowed to distribute the sounds that happened to capture an otherwise copyright-protected performance? Why can't you distribute samples of another day's sounds, without the performance, or sounds with performances that you were authorized to record?
Certainly it all depends on how much of the performance is recorded and distributed in the sample cd, whether you're doing it for commercial purposes, etc. Recognize this? it's an argument for fair use, which is an affirmative defense to copyright violations. In other words, in the situation you describe, the copyright holder would have the right to sue you, and you'd have to proffer the defense.
If P2P networks, are, as they claim, only used to transfer illegal files anyway, the moment they "set up shop" on a P2P network, there's implied consent. They are advertising the presence of their files.
This is the same as the RIAA having links to their audio files on a website, for the public to see, saying "click here to download!" (With not so much as an click-through license.)
They are offering the files in what amounts to an opt-in, free-for-all network. When a file is requested, they give it. This isn't cybercrime, and it isn't misusing the offer of the file.
The "opt-in, free-for-all network" is exactly the nightmare that the RIAA is trying to paint for the public and for the courts. This is exactly WHY the RIAA has a leg to stand on. They would say, "even if there are theoretical noninfringing uses, for practical purposes, the current p2p systems are set up for infringing uses -- see, it's a free-for-all with users assuming they can download whatever they want. We put those files up for authorized users to download -- Tom, Dick and Harry are the authorized users -- but Sally the defendant here downloaded them too. And now she's saying that you, the court, should assume that we gave her permission! The systems don't give any control to the copyright holder. Perhaps they'd be OK if there was a sort of DRM mechanism that would allow a rights holder to more finely control the copying, but in its current state, the systems have to be stopped before any more damage is done."
I don't think that would be helpful to keeping p2p systems viable. It would also make DRM a lot worse than it already is.
Your agurment though isn't cute. Its just plain stupid. Its the same as saying as a defence "I just put the files on the internet. Told everyone where to get them. And allowed them to download from my server. I never actually gave them permission to download the files. So I didn't do anything wrong"
This doesn't even begin to address the primary issue: whether the download was authorized or not. No matter what, the downloader did the copying, and the copyright holder has the right to control the copying. It's up to the downloader to argue that the download was in fact authorized, since certainly a holder like the RIAA would argue it wasn't. And it's really a factual issue, so it's not a "defense" for the RIAA to say "I just put the files on the internet. etc etc", it's just another piece of evidence a jury or judge would have to consider. If the downloader says it was in fact authorized because of the nature of the p2p system, etc. etc., then fine. But they'd have to argue that and provide evidence to support the argument, and like I said, it's not a slam dunk.
Another way to look at it is this: if you want to encourage people like Jack Valenti to support p2p systems and convince them that p2p systems have substantially non-infringing uses, you shouldn't say that these uses are automatically solely completely free -- essentially, that copyright holders who voluntarily put their works on p2p systems do so at their risk because they put their works up in the public domain. Copyright holders must be able to control their rights regardless of the medium. In other words, just because a copyright holder puts his stuff on a p2p system shouldn't mean that the holder automatically authorizes willy-nilly copying, and that courts should assume or infer this simply from the fact that the holder put the file on a p2p system. The worst-case result of such a ruling might be that the only successful (i.e., widely adopted) legal p2p systems would have onerous DRM-type restrictions that would make everything a lot worse than it already is.
If she downloaded them from an RIAA agent, the agent, by making them available to her, also gave permission on behalf of the RIAA to download them... so they are legal copies. (estoppel prevents the RIAA from suddenly deciding they are now illegal copies)
But did the RIAA agent really give permission to download the files? That's a pretty big jump to make. Certainly the RIAA agent never gave explicit authorization to make such a copy, and making the files "available" on a p2p system doesn't implicitly give authorization to anybody and everybody to copy the files.
Libraries make books available to library users, but the copyright holders don't necessarily authorize the users to make full copies of the books. Musicians may give free concerts in Central Park, but they don't necessarily authorize anybody's recording of their performance. People who leave files in poorly protected or unprotected parts of their servers don't necessarily authorize crackers to come into the server and grab the files.
It may be based on them, but I guarantee you you didn't represent them accurately. I will make the bold assertion that anyone who has ever gone bankrupt due to AMT taxation of stock options did not have his taxes calculated correctly.
The original poster is most certainly correct that the AMT caused many, many problems for option holders, especially during the dot-com boom. I think you're forgetting that for AMT purposes, ISO exercises are taxable events, unlike for regular tax purposes (where taxes aren't assessed on ISO exercises, but rather on the sale of the underlying stock). The spread of the exercise price and the fair market value of the underlying stock at the time of exercise becomes an AMT adjustment, and during the boom, this spread was often huge, kicking people into AMT land.
These people, then, had huge AMT liabilities, which, as long as the stock prices kept going up, were okay, since sales of the underlying stock could cover the AMT. But the bust happened very quickly; many of the people who exercised options at near the top of stock prices but watched the prices tumble over the course of the year were still stuck with the large AMT liabilities, but had practically worthless stock that couldn't start to cover the tax.
In theory, over time, they could use the AMT credits they'd get in order to reclaim much of the amounts they'd paid to satisfy the huge AMT liability. But no matter what, they had to pay the AMT the year it arose, which is why you hear about people declaring bankruptcy because of their huge AMT liability -- they just didn't have the cash or the assets to sell to cover.
It's hard not to blame the AMT for forcing such a big disparity in effect on the taxpayer. Without the AMT, the optionholders would have exercised and sat on the stock until the ISO holding periods ran and they felt comfortable selling; then, they'd be assessed capital gains rates on their gain. If they rode out the bust and sold at the bottom, it wouldn't have been so bad. With the AMT, they're assessed AMT taxes on the "income" from the spread of the option exercise price and the fair market value of the stock at the time of exercise; THEN, after selling the stock, they're assessed regular taxes on the gain, and the basis isn't even stepped up to the AMT basis (i.e., fair market value at time of exercise).
It's a good question. I'm not up on the latest law for this kind of stuff, but I know that after it became clear under Lotus v. Borland that you can't protect GUIs under copyright, people thought that perhaps you can use trade dress to protect GUIs. My sense is that courts have not been particularly friendly to this argument. I'm not aware of the Apple OS X protection you're talking about, but I can see how in some situations, like the OS X one, a trade dress argument could possibly work.
How long before app makers defend their trained installed base from competitors coaxing them to switch with "lookalike" skins, by claiming trademark/copyright infringement?
You answered your own question in your next two sentences.:)
Apple and Microsoft fought this out in the 1980s, with major "look & feel" lawsuits. And I believe that Lotus was prohibited from using the same familiar "hotkeys" mapped to menu items as in Excel.
Apple lost its look and feel suit against Microsoft. With Lotus, you're probably talking about Lotus v. Borland. Lotus lost that suit -- but it was Borland that had copied Lotus's menus.
IIRC the term "activist judge" first appeared when the gay marriage debate sprung its head, and the Bush administration and its shills started bitching about how judges weren't "representing the will of the people."
The term "judicial activism" has been around for a long, long time. I would say that it first appeared around the time of Earl Warren's Supreme Court in the 1950s-1960s, since that's the earliest I can remember the term being used, but I know that I would be making the same mistake as you did -- that the term is much older than that. In fact, I suspect that John Marshall, the early 1800s chief justice of the SCOTUS who essentially invented the concept of judicial review, was called "activist judge" by the press and general public back then.
If all you need to do is spend a couple hundo to start your own business and purchase one of these lists then it doesn't matter if Seisint runs Windows or LexisNexis runs Linux when some individual is going to give you the data...
Exactly. My point was only to moderate kneejerk responses of "oh, their servers are XXX boxen, so that's why they have this problem". Sometimes it's the software, but more often the problem is social engineering or a non-server related chink in the security.
With BOTH choices, my frustration would be towards the government(s).
50 years ago, there was no Lexis -- you HAD to "Skitter about to the courthouse, City Hall, local Federal building, law library, and a dozen other places and pore through huge dead-tree tomes which might be checked out, missing or out of date." Certainly people were frustrated for the same issues back then. Who do you think they were frustrated with? Obviously, the government. Lexis appeared because they developed technology to reduce the frustration, so why would the frustration suddenly move to Lexis? Don't you think the same people must have thought, "now why can't the government do this?"
Here's an analogy. You live in a remote Alaska village where the US postal service only comes to collect and deliver mail twice a week. That is actually adequate for your purposes, but it would be easier if you had daily service. Thus, you use FedEx, which can come every day if need be, but they will charge three times their normal rates for pickup and delivery. Are you saying you would be angry at FedEx instead of the USPS? Talk about misplaced...
I'd think that the government would be better off spending a few billions on digitizing documents (and, in many (most?) cases, simply indexing the copies they already have digitized) and creating a Lexis-Nexis equivalent for free than, say, starting some expensive foreign wars (or insert your favorite "thing I don't like the gummint spending lots of money on" here).
You speak as if there's only one government, one source/simple bureaucracy that controls all these documents. There are dozens of governments and thousands of sources, all with not-so-simple bureaucracies, for the public documents that are on Lexis. Each source on its own can handle publishing the documents it generates; perhaps smaller groups of the sources can, too. But who in "the government" exactly is supposed to coordinate the construction of a vast central indexed high-availability repository for *all* the documents of *all* these sources? Do you really think "the government" can do this as cheaply, as thoroughly/accurately, and with as good availability as a private entity can?
Lexis-Nexis isn't evil because it's huge, fast or efficient. It's evil because it's huge, fast, efficient-- and the only huge, fast and efficient repository of such public data-- and run by a private company.
I still don't understand why it's evil. Who cares that Lexis is a private company? If "public data should be most efficiently available from the original source/collector-- the government", but it's not, how does that have anything to do with Lexis being evil? If "the government"'s budget is 2.156 trillion dollars, but it's wasting it on expensive wars instead of building a huge, fast and efficient database, why does that make Lexis evil? Lexis steps in and does the government's job for them, and Lexis is evil?
LexisNexis must die anyhow. They're flippin' evil. I'm sure I'm not the only one out there who's revolted by the fact that private corporations are the only effective sources of legal (read: public domain) data and other such public information. Shouldn't the government offer a LexisNexis-type service for free?
You make no sense. Why is LexisNexis evil for providing one-stop access to all that information? You say yourself "Shouldn't the government offer a LexisNexis-type service for free?" Doesn't that make the *government* "evil"? If LexisNexis went away, you WOULDN'T have one-stop access to all that info. That would be WORSE.
At any rate, the government DOES make all that information available. Each court makes its opinions available for free, each government (city, state, the federal one) makes its statutes available for free, every government agency makes its for-public-consumption documents available for free. These are documents that are MEANT to be freely available to the public. You just have to ask each relevant party, and they may only have ancient printed materials available, and they may only be available at the courthouse/city hall/government building/library. But they are freely available.
Lexis is so valuable (and thus so expensive) because it makes it easy to *full-text* search ALL of these documents in ONE PLACE, not to mention the additional annotations and other metadata that Lexis adds to case opinions and other documents that make searching for relevant materials easier. The cost of making all these documents full-text searchable, annotated and metadata-enhanced in a robust, Google-fast, always-available database is, frankly, astronomical. Just think about Google's estimated data center costs (~250MM). A couple years ago, Lexis had more than 4 billion *documents* (as opposed to Google's current index and cache of 8 billion web *pages*) in its database -- It would be an easy bet that Lexis stores and indexes more searchable data than Google, and that their costs are comparable, if not more. (And that doesn't count the human work of adding the annotations and certain metadata -- yes, they are clearly not done by software -- to the opinions.) I wouldn't want the government to be wasting its time and money to do what Lexis has done/is doing.
The main reason why I'm going on and on about this is because, as a fairly young lawyer, I couldn't possibly imagine the amount of work and time it would take to do the research I have done on Lexis if I had no Lexis and only the printed sources available. I know I could do that, but I wouldn't want to.
The article says that the data stolen was collected by Seisent, which is a company that LexisNexis/Reed Elsevier acquired recently. Because of this, I doubt that looking up the netcraft report for www.lexisnexis.com will tell you much about where that data is stored.
Interesting. But FERPA doesn't appear to ake it illegal, though, to deny access to educational records; only that no school that has a policy of denying access can get federal money.
Also, the admitted applicants are not students of the school until they accept admission and actually matriculate, so it would seem that the law is inapplicable to them anyway.
As for the second part of your post, I think the argument for applicability of that section (a) is that the communication of acceptance was not yet intended for that user at the time of the "hack." (Otherwise, would you allowed to hack into my computer even as I write this post because, when I'm done, it's intended for you?) The point at which the communication would be "intended" is when Harvard tells everyone that the results are available. Seems to me that the exception in (c)(2) is meant to apply to a situation where the user is using a service to access a communication already intended for him, but the user doesn't have the requisite authorization from the *facility* that provides the communication service.
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You probably agree with them much more often than you think, particularly when the SCOTUS passes down a unanimous or close to unanimous decision. The 5-4 split doesn't happen in every single case -- in fact, that's a result in a minority of decisions. (Take a look at On the Docket at Northwestern, which I think is part of the Oyez Project.)
It's true, there's a lot of money out there. The easiest way to connect to VCs is through networking. If you don't have personal contacts, the easiest way to network is by retaining a law firm that represents a lot of VCs and venture-backed companies. I'm constantly reminded by our VC clients to send them potential investments. (I like my anonymity here, so I'm not going to name my firm.)
Mandriva is a combination of MandrakeSoft and Conectiva. The two companies merged not too long ago. MandrakeSoft doesn't seem like too strange of a name, certainly not a nonsense name. Conectiva was a Brazilian company, so the latin-ized word (is it Portuguese?) makes sense.
No matter what, keep in mind that from a trademark perspective, nonsense words are the easiest to protect. Makes better financial sense to pick nonsense words for trademarks. Imagine how much money was probably spent trying to protect Microsoft "Word"; I'm not sure it's even protected now.
You mean 8 *strictly* enforce it, but that's neither here nor there -- the point is that there's nothing in there that says that people in any of these countries "hate" being forced to vote. (Which is why I said I don't know if people in these countries "hate" being forced to vote.)
So, back to my original point: all I was asking for was your thoughts on why you think people would hate being forced to vote. There are principled objections (I don't know why you put that term in quotes) to being forced to vote -- it's undemocratic, it's not freedom, etc., etc. -- but that doesn't automatically translate into hating being forced to vote. For example, in some cases, the law may just be a reflection of civic norms; citizens generally believe they should vote, and so the laws enshrine the norm.
Look at Australia, for example. Voter turnout is above 90%, even though the fine is nominal, only AU$20 (AU$50 + court costs for prosecution if you don't pay the AU$20 in time). I would find it hard to argue just based on that that Australians "hate" to be forced to vote. If they did, the voting percentages would probably be lower since the punishment is so nominal.
I'm sure there are plenty of counter-examples. I'm just wondering why you think that people hate being forced to vote, notwithstanding other objections. How would you explain Australia, where you could reasonably say that people believe so strongly that citizens should vote that they passed laws reflecting that norm?
This exact language was in their 10-K filed last month. There have no other filings recently that would normally have a "Risk Factors" section, so that's why you wouldn't have seen this sort of language elsewhere. I don't think this is really news.
30 countries or so have mandatory voting. Principled objections to mandatory voting aside, why do you think people would hate being forced to vote? I don't get the impression that the voters in compulsory voting countries hate their countries' systems, though of course I don't know for sure and the strength of a country's enforcement varies from country to country.
26 states have no-excuse mail-in absentee voting. All other states allow either early voting or mail-in absentee voting under certain circumstances.
I'm sure there's some correlation between voting turnout and availability of no-excuse absentee voting. At least for the last presidential election, though, I'm not sure the correlation is clear or significant. But I really don't know. I assume someone has done some research...
I don't know about Canada, but here in the U.S., at least in California and Delaware, business names do have to be unique. It's mostly out of an administrative concern, though, nothing really to do with trademark or other protections.
In general, they are. They would have to be authenticated just like any other photo (or generally like any other piece of evidence); for example, testimony from the photographer that yeah, she took that picture, and that's the picture she took. If authenticity is in question, then the parties have to provide evidence to prove/disprove the photos' authenticity, but there's nothing inherent to the digital format that should change the basic rules of evidence admissibility.
If there's not enough evidence to disprove digital photos' authenticity for purposes of admissibility, then the evidence that casts doubt on the authenticity of the photos could go to its weight (i.e., whether we should put much faith in the photos that they prove what they're supposed to prove). So if a lawyer can convince a jury not to trust digital photos because they're easily alterable, so be it.
There can be an issue with perhaps the best evidence rule, but that rule doesn't have as much to do with authenticity as the desire to look at an original instead of a copy. But I think most courts have specific subrules to the best evidence rule that apply to computer files, so there's no reason that those rules wouldn't also apply to digital pictures.
A literal reading of this would say that some music files that I and a few friends made and put online are going to become illegal.
You might want to try literally reading the actual bill, rather than the writeup in either news.com or the story submission.
Why would you or your friends' distribution of your own works be illegal? Even under the writeup's language, that doesn't make sense. The bill appears to amend the criminal infringement provisions to provide for up to 3 years of jail for distributing even one copy of a pre-release work that the person knew or should have known is intended for release. But that has to do with the penalty for a specific method of infringement, not the definition of infringement. Obviously in your situation there's no infringement to begin with.
I suppose this wouldn't be surprising, coming from the Bush administration.
Cheap shot that makes no sense. Congress writes and then agrees to legislation. The president signs the agreed-to legislation into law. This legislation (1) doesn't "come" from the Bush administration, and (2) in any case it was passed unanimously by the Senate and overwhelmingly by the House. Note that you can't tell what the vote was in the House because they approved it by voice vote -- that's when the presiding officer listens to the representatives yell "yea" or "nay" and judges who wins by which is louder. I am not making that up. The fact that the voice vote was enough (I believe roll call vote is automatic if even one person objects to using voice vote)tells you how easily this passed the House. Like it or not, this was a fully bipartisan bill.
It's a fair enough argument to make, but like my original point, it's not a slam dunk, and it's a fact that needs to be proven. Also, I'd bet that a similar situation has come up in the past, and I suspect that the copyright holder has won, depending on the nature of the copying. For just one example, if you're really only sampling ambient sounds for a Sounds of Central Park cd (which is another thing you'd have to prove), why do you have to be allowed to distribute the sounds that happened to capture an otherwise copyright-protected performance? Why can't you distribute samples of another day's sounds, without the performance, or sounds with performances that you were authorized to record?
Certainly it all depends on how much of the performance is recorded and distributed in the sample cd, whether you're doing it for commercial purposes, etc. Recognize this? it's an argument for fair use, which is an affirmative defense to copyright violations. In other words, in the situation you describe, the copyright holder would have the right to sue you, and you'd have to proffer the defense.
If P2P networks, are, as they claim, only used to transfer illegal files anyway, the moment they "set up shop" on a P2P network, there's implied consent. They are advertising the presence of their files.
This is the same as the RIAA having links to their audio files on a website, for the public to see, saying "click here to download!" (With not so much as an click-through license.)
They are offering the files in what amounts to an opt-in, free-for-all network. When a file is requested, they give it. This isn't cybercrime, and it isn't misusing the offer of the file.
The "opt-in, free-for-all network" is exactly the nightmare that the RIAA is trying to paint for the public and for the courts. This is exactly WHY the RIAA has a leg to stand on. They would say, "even if there are theoretical noninfringing uses, for practical purposes, the current p2p systems are set up for infringing uses -- see, it's a free-for-all with users assuming they can download whatever they want. We put those files up for authorized users to download -- Tom, Dick and Harry are the authorized users -- but Sally the defendant here downloaded them too. And now she's saying that you, the court, should assume that we gave her permission! The systems don't give any control to the copyright holder. Perhaps they'd be OK if there was a sort of DRM mechanism that would allow a rights holder to more finely control the copying, but in its current state, the systems have to be stopped before any more damage is done."
I don't think that would be helpful to keeping p2p systems viable. It would also make DRM a lot worse than it already is.
Your agurment though isn't cute. Its just plain stupid. Its the same as saying as a defence "I just put the files on the internet. Told everyone where to get them. And allowed them to download from my server. I never actually gave them permission to download the files. So I didn't do anything wrong"
This doesn't even begin to address the primary issue: whether the download was authorized or not. No matter what, the downloader did the copying, and the copyright holder has the right to control the copying. It's up to the downloader to argue that the download was in fact authorized, since certainly a holder like the RIAA would argue it wasn't. And it's really a factual issue, so it's not a "defense" for the RIAA to say "I just put the files on the internet. etc etc", it's just another piece of evidence a jury or judge would have to consider. If the downloader says it was in fact authorized because of the nature of the p2p system, etc. etc., then fine. But they'd have to argue that and provide evidence to support the argument, and like I said, it's not a slam dunk.
Another way to look at it is this: if you want to encourage people like Jack Valenti to support p2p systems and convince them that p2p systems have substantially non-infringing uses, you shouldn't say that these uses are automatically solely completely free -- essentially, that copyright holders who voluntarily put their works on p2p systems do so at their risk because they put their works up in the public domain. Copyright holders must be able to control their rights regardless of the medium. In other words, just because a copyright holder puts his stuff on a p2p system shouldn't mean that the holder automatically authorizes willy-nilly copying, and that courts should assume or infer this simply from the fact that the holder put the file on a p2p system. The worst-case result of such a ruling might be that the only successful (i.e., widely adopted) legal p2p systems would have onerous DRM-type restrictions that would make everything a lot worse than it already is.
If she downloaded them from an RIAA agent, the agent, by making them available to her, also gave permission on behalf of the RIAA to download them... so they are legal copies. (estoppel prevents the RIAA from suddenly deciding they are now illegal copies)
But did the RIAA agent really give permission to download the files? That's a pretty big jump to make. Certainly the RIAA agent never gave explicit authorization to make such a copy, and making the files "available" on a p2p system doesn't implicitly give authorization to anybody and everybody to copy the files.
Libraries make books available to library users, but the copyright holders don't necessarily authorize the users to make full copies of the books. Musicians may give free concerts in Central Park, but they don't necessarily authorize anybody's recording of their performance. People who leave files in poorly protected or unprotected parts of their servers don't necessarily authorize crackers to come into the server and grab the files.
Cute argument, but far from a slam dunk.
It may be based on them, but I guarantee you you didn't represent them accurately. I will make the bold assertion that anyone who has ever gone bankrupt due to AMT taxation of stock options did not have his taxes calculated correctly.
The original poster is most certainly correct that the AMT caused many, many problems for option holders, especially during the dot-com boom. I think you're forgetting that for AMT purposes, ISO exercises are taxable events, unlike for regular tax purposes (where taxes aren't assessed on ISO exercises, but rather on the sale of the underlying stock). The spread of the exercise price and the fair market value of the underlying stock at the time of exercise becomes an AMT adjustment, and during the boom, this spread was often huge, kicking people into AMT land.
These people, then, had huge AMT liabilities, which, as long as the stock prices kept going up, were okay, since sales of the underlying stock could cover the AMT. But the bust happened very quickly; many of the people who exercised options at near the top of stock prices but watched the prices tumble over the course of the year were still stuck with the large AMT liabilities, but had practically worthless stock that couldn't start to cover the tax.
In theory, over time, they could use the AMT credits they'd get in order to reclaim much of the amounts they'd paid to satisfy the huge AMT liability. But no matter what, they had to pay the AMT the year it arose, which is why you hear about people declaring bankruptcy because of their huge AMT liability -- they just didn't have the cash or the assets to sell to cover.
It's hard not to blame the AMT for forcing such a big disparity in effect on the taxpayer. Without the AMT, the optionholders would have exercised and sat on the stock until the ISO holding periods ran and they felt comfortable selling; then, they'd be assessed capital gains rates on their gain. If they rode out the bust and sold at the bottom, it wouldn't have been so bad. With the AMT, they're assessed AMT taxes on the "income" from the spread of the option exercise price and the fair market value of the stock at the time of exercise; THEN, after selling the stock, they're assessed regular taxes on the gain, and the basis isn't even stepped up to the AMT basis (i.e., fair market value at time of exercise).
It's a good question. I'm not up on the latest law for this kind of stuff, but I know that after it became clear under Lotus v. Borland that you can't protect GUIs under copyright, people thought that perhaps you can use trade dress to protect GUIs. My sense is that courts have not been particularly friendly to this argument. I'm not aware of the Apple OS X protection you're talking about, but I can see how in some situations, like the OS X one, a trade dress argument could possibly work.
How long before app makers defend their trained installed base from competitors coaxing them to switch with "lookalike" skins, by claiming trademark/copyright infringement?
:)
You answered your own question in your next two sentences.
Apple and Microsoft fought this out in the 1980s, with major "look & feel" lawsuits. And I believe that Lotus was prohibited from using the same familiar "hotkeys" mapped to menu items as in Excel.
Apple lost its look and feel suit against Microsoft. With Lotus, you're probably talking about Lotus v. Borland. Lotus lost that suit -- but it was Borland that had copied Lotus's menus.
IIRC the term "activist judge" first appeared when the gay marriage debate sprung its head, and the Bush administration and its shills started bitching about how judges weren't "representing the will of the people."
The term "judicial activism" has been around for a long, long time. I would say that it first appeared around the time of Earl Warren's Supreme Court in the 1950s-1960s, since that's the earliest I can remember the term being used, but I know that I would be making the same mistake as you did -- that the term is much older than that. In fact, I suspect that John Marshall, the early 1800s chief justice of the SCOTUS who essentially invented the concept of judicial review, was called "activist judge" by the press and general public back then.
If all you need to do is spend a couple hundo to start your own business and purchase one of these lists then it doesn't matter if Seisint runs Windows or LexisNexis runs Linux when some individual is going to give you the data...
Exactly. My point was only to moderate kneejerk responses of "oh, their servers are XXX boxen, so that's why they have this problem". Sometimes it's the software, but more often the problem is social engineering or a non-server related chink in the security.
With BOTH choices, my frustration would be towards the government(s).
50 years ago, there was no Lexis -- you HAD to "Skitter about to the courthouse, City Hall, local Federal building, law library, and a dozen other places and pore through huge dead-tree tomes which might be checked out, missing or out of date." Certainly people were frustrated for the same issues back then. Who do you think they were frustrated with? Obviously, the government. Lexis appeared because they developed technology to reduce the frustration, so why would the frustration suddenly move to Lexis? Don't you think the same people must have thought, "now why can't the government do this?"
Here's an analogy. You live in a remote Alaska village where the US postal service only comes to collect and deliver mail twice a week. That is actually adequate for your purposes, but it would be easier if you had daily service. Thus, you use FedEx, which can come every day if need be, but they will charge three times their normal rates for pickup and delivery. Are you saying you would be angry at FedEx instead of the USPS? Talk about misplaced...
I'd think that the government would be better off spending a few billions on digitizing documents (and, in many (most?) cases, simply indexing the copies they already have digitized) and creating a Lexis-Nexis equivalent for free than, say, starting some expensive foreign wars (or insert your favorite "thing I don't like the gummint spending lots of money on" here).
You speak as if there's only one government, one source/simple bureaucracy that controls all these documents. There are dozens of governments and thousands of sources, all with not-so-simple bureaucracies, for the public documents that are on Lexis. Each source on its own can handle publishing the documents it generates; perhaps smaller groups of the sources can, too. But who in "the government" exactly is supposed to coordinate the construction of a vast central indexed high-availability repository for *all* the documents of *all* these sources? Do you really think "the government" can do this as cheaply, as thoroughly/accurately, and with as good availability as a private entity can?
Lexis-Nexis isn't evil because it's huge, fast or efficient. It's evil because it's huge, fast, efficient-- and the only huge, fast and efficient repository of such public data-- and run by a private company.
I still don't understand why it's evil. Who cares that Lexis is a private company? If "public data should be most efficiently available from the original source/collector-- the government", but it's not, how does that have anything to do with Lexis being evil? If "the government"'s budget is 2.156 trillion dollars, but it's wasting it on expensive wars instead of building a huge, fast and efficient database, why does that make Lexis evil? Lexis steps in and does the government's job for them, and Lexis is evil?
LexisNexis must die anyhow. They're flippin' evil. I'm sure I'm not the only one out there who's revolted by the fact that private corporations are the only effective sources of legal (read: public domain) data and other such public information. Shouldn't the government offer a LexisNexis-type service for free?
You make no sense. Why is LexisNexis evil for providing one-stop access to all that information? You say yourself "Shouldn't the government offer a LexisNexis-type service for free?" Doesn't that make the *government* "evil"? If LexisNexis went away, you WOULDN'T have one-stop access to all that info. That would be WORSE.
At any rate, the government DOES make all that information available. Each court makes its opinions available for free, each government (city, state, the federal one) makes its statutes available for free, every government agency makes its for-public-consumption documents available for free. These are documents that are MEANT to be freely available to the public. You just have to ask each relevant party, and they may only have ancient printed materials available, and they may only be available at the courthouse/city hall/government building/library. But they are freely available.
Lexis is so valuable (and thus so expensive) because it makes it easy to *full-text* search ALL of these documents in ONE PLACE, not to mention the additional annotations and other metadata that Lexis adds to case opinions and other documents that make searching for relevant materials easier. The cost of making all these documents full-text searchable, annotated and metadata-enhanced in a robust, Google-fast, always-available database is, frankly, astronomical. Just think about Google's estimated data center costs (~250MM). A couple years ago, Lexis had more than 4 billion *documents* (as opposed to Google's current index and cache of 8 billion web *pages*) in its database -- It would be an easy bet that Lexis stores and indexes more searchable data than Google, and that their costs are comparable, if not more. (And that doesn't count the human work of adding the annotations and certain metadata -- yes, they are clearly not done by software -- to the opinions.) I wouldn't want the government to be wasting its time and money to do what Lexis has done/is doing.
The main reason why I'm going on and on about this is because, as a fairly young lawyer, I couldn't possibly imagine the amount of work and time it would take to do the research I have done on Lexis if I had no Lexis and only the printed sources available. I know I could do that, but I wouldn't want to.
The article says that the data stolen was collected by Seisent, which is a company that LexisNexis/Reed Elsevier acquired recently. Because of this, I doubt that looking up the netcraft report for www.lexisnexis.com will tell you much about where that data is stored.
If you look up Seisint, you'll see Linux/Solaris servers.
Interesting. But FERPA doesn't appear to ake it illegal, though, to deny access to educational records; only that no school that has a policy of denying access can get federal money.
Also, the admitted applicants are not students of the school until they accept admission and actually matriculate, so it would seem that the law is inapplicable to them anyway.
As for the second part of your post, I think the argument for applicability of that section (a) is that the communication of acceptance was not yet intended for that user at the time of the "hack." (Otherwise, would you allowed to hack into my computer even as I write this post because, when I'm done, it's intended for you?) The point at which the communication would be "intended" is when Harvard tells everyone that the results are available. Seems to me that the exception in (c)(2) is meant to apply to a situation where the user is using a service to access a communication already intended for him, but the user doesn't have the requisite authorization from the *facility* that provides the communication service.
George W. Bush attended Yale undergrad and Harvard for his MBA.