Section 512(b) (part of the DMCA) specifically exempts system caching on the part of certain service providers, as long as the provider complies with certain requirements. It's not entirely clear that Google's cache falls under the exemption in section 512(b) -- e.g., Google might not be the kind of provider that's contemplated in section 512(b), and also it goes out and caches content before someone asks for the content -- but I would guess the exemption is what Google principally relies on. Otherwise, it might be fair use, though that's not clear either.
Sure there were color scanners available for Macs and PCs in 1992. I was in highschool at the time; we were using Aldus Pagemaker to lay out the school newspaper, and we would scan pictures to place in the layout. The editor in chief had one of those handheld scanners, and the school had a flatbed, as did Kinko's.
If potential plaintiffs don't have the prospect of getting punitive damages in addition to actual damages, then fewer plaintiffs would bring suit, it's just that simple. While punitive damages are supposed to function as a disincentive to behaving badly, there's no denying that some plaintiffs are incentivized by them, and there's no way to say that all such plaintiffs have frivolous suits; such plaintiffs will have a mix of frivolous and meritorious suits.
Thus, if you simply remove the extra incentive in an attempt to reduce the frivolous suits, you'll end up reducing meritorious suits too, and that would be bad. The question is what is the right balance? That's the biggest reason, I think, that all states that have split-award statutes do it only partially -- they want to optimize the balance at the margin.
Some states have this system, sort of, where the plaintiff gets a portion of the punitive award and the state gets the rest -- laws implementing this are called "split award" statutes.
There has been some interesting work done on whether this system is, overall, welfare-improving. It may be intuitive that such a system cuts down on frivolous lawsuits, but it wouldn't be good if it cut down on justifiable lawsuits, too. Not only would potential plaintiffs not be compensated for wrongs, it could lessen the incentive of a defendant to avoid doing the wrongs. (Avoiding these problems -- in addition to possible constitutional problems -- is probably why no state has a 100% "split" award statute.)
And it's not clear that lawyers might be less likely to push the more questionable cases -- in fact, they might be more likely to push them, because under such a system all plaintiffs have an increased incentive to settle cases, which costs plaintiffs' attorneys (working on a contingency fee basis) less money and time (so in aggregate they can bring more).
I see what you're saying. It's true -- we really need to work on improving the recidivism rate. I don't know enough about implementations of the three strikes rule to know whether the rule even addresses it -- at least, before the third strike is made.
And it's not uncommon that those on their 3rd chance will go to drastic measures (up to and including murder) to prevent themselves from being caught again.
Seems kind of irrelevant when you're talking about the propriety of the three strikes rule. If a person is capable of murder or resorting to some other violence because the person, having willingly committed yet another crime, doesn't want to get caught, then that's the kind of person we want to lock up for the rest of his life. Getting rid of the three strikes rule wouldn't do anything to prevent that kind of person from committing another crime and possibly resorting to murder/violence to cover his tracks. I'm not willing to be easier on someone who wouldn't have killed or hurt a victim or a witness if it weren't for that damn three strikes rule.
Why would a board approve a purchase for less money than a competing offer?
Depends on several things. You're alluding to "Revlon duties", which are imposed by Delaware law and require the board of a company that's on the auction block to get the highest possible short-term shareholder value in the sale.
For one, it depends on the governing law and the structure of the deal. Revlon duties are part of Delaware corporate law; many states have "constituency" laws that affirmatively do not impose Revlon-type duties on the board (requiring a board to look at *non-shareholder* interests as well as shareholder interests in reviewing a merger deal).
Also, not all mergers will trigger Revlon duties; e.g., an all stock merger of equals between widely owned public companies would probably not trigger Revlon. With those kinds of mergers, boards are free to and should look at the long-term value (strategic or otherwise) of a merger, as well as its short-term impact. This could include the acquirer's growth prospects, stability, etc. (Dunno what the MCI/Qwest deal is; I know, RTFA...)
Also, if there are Revlon duties, shareholder value isn't *necessarily* all about the amount of money involved, though you have the right intuition that the amount of money is the dominant factor. It's pretty risky for board with Revlon duties to take a deal when there are competing higher dollar value offers, but other significant short-term factors could justify taking the smaller deal.
Your friend may have been a bit hyperbolic.:) First of all, IP issues in general come up very often in a non-IP lawyer's work: it comes up when a company is trying to hire somebody, when a company wants to purchase or license a product from someone, when a company wants to merge or acquire another company, etc. etc. These things happen all the time. Though we non-IP attorneys would never give anyone IP advice of the sort that addresses whether something is protectable or infringing, we do deal with IP issues a lot without having to punt to a patent attorney.
That said, the practice of drafting and prosecuting patent or trademark applications and challenging validity/claiming infringement of granted patents or trademarks does involve specialized knowledge, and in fact there is a special "bar" exam that is required to be taken in order to practice before the US Patent and Trademark Office (which handles all that stuff). However, the "patent bar" doesn't make you a lawyer; you still have to take a state bar exam in order to be licensed as a lawyer. In other words, you can't be a patent attorney practicing in front of the USPTO without having passed BOTH the patent bar and your state's bar exam.
Note though that you don't need a law degree to do IP stuff in front of the PTO -- registered patent agents, as far as I know, only need a bachelor's degree (with sufficient science background). In order to be registered, they must take the same patent bar as aspiring patent attorneys, and if they pass they can draft and file patent applications, just like a patent attorney would be able to. They can't go to court, of course, and so can't litigate patent validity, but a lot of law firms that specialize in IP (an ever-thinning population, nowadays) have lots of patent agents to file and prosecute patent applications.
Also, not all IP litigation is before the USPTO, so not all "IP attorneys" need to have passed the patent bar. I have some friends doing IP litigation who aren't patent attorneys.
Good commenting is, of course, very helpful. Irrelevant or inappropriate commenting ("// this code sucks", "// fuck the product manager", etc.) is not really helpful. Stripping out ALL comments is obviously unhelpful.
Giving them the benefit of the doubt, I'd think that they would not want to release completely uncommented code, and would prefer to retain the good, helpful comments and remove "inappropriate" (i.e., not helpful) ones. How could they do that without going through all the comments by hand? Grepping isn't going to be perfect.
The problem with nuclear power isn't the threat of meltdowns. It's the waste that's produced. No, Yucca Mountain won't solve the problem permanently. If you think that you're just ignorant.
First of all we're not sure how safe it is. There's a moderate seismic activity in the area. There's also more water seepage than previously thought. Have some goddamn responsibility and think of this in the long-term; the casks have to maintain integrity for 10,000 years.
MIT's Technology Review had a good article about this recently. The article's main point is that we DON'T need to think about storage in the long-term -- at least, not in terms of 10,000 years. Why should we? 100 years from now, heck, 50 years from now, we'll undoubtedly have far better technology for storing nuclear waste than we do currently. Why not design storage to work extremely well for, say, 100 years, and then revisit the problem in 50 years? Our ability to design a storage system that will work almost perfectly for 100 years is certainly vastly better than our ability to design such a system that will last for 10,000 years. Plus, in 100 years the nuclear waste will be cooler and easier to handle and store, AND we might have better technology to reuse or reprocess the waste, both of which would address your fears about running out of waste storage space.
Our focus on such long-lasting solutions is really preventing us from moving forward on nuclear power in the nearest-term and wasting time and money in the process.
Even if you think Dell is not being forthcoming, I don't think anyone would say they are lying to anyone about their prices, so I'm not sure if I'd call them slimy. If they're not lying, whose responsibility is it to educate the consumers?
Look at the situation another way. Say you are a web page designer with two clients. In negotiating the price, you told client A you usually charge $1000 for a whole site, which is in the middle of the average range of prices people charge for your type of work. (Say it costs about $500 to design a site.) Client A balks at this price; they're a small company and have a limited budget for advertising, and in any case a couple of the quotes they had gotten from other designers were lower. Still, you want this client, and you know you have leeway in the margin you're willing to take, so you tell them you'll only charge them $800, which the client agrees to. Client B, on the other hand, didn't even blink when you gave the $1000 quote -- in fact, Client B thought it was a decent deal, because all of the quotes they had gotten were higher (then again, they hadn't done nearly as much research as Client A).
Are there any ethical problems with this scenario? Should you tell Client B that actually you can do their site for only $800, since you had agreed to do it for that price with Client A? Should you not have agreed with Client A that you could do it for $800, since you are charging Client B $1000? What if Client B's staff had just sucked at using Google and were lazy to boot, and that's why it didn't have any quotes lower than yours -- if you knew that, did you have a responsibility to educate Client B's staff? What if you didn't know the sophistication of Client B's staff? What if Client B actually had an even smaller budget for a new website than Client A (but still could afford you)?
There are a lot of variables involved. Are you being slimy if you accept client A's $800 and B's $1000? Even though both are satisfied with the price they're paying? Even though 99% of market transactions in this world -- from selling fruit in a market in Marrakesh to selling a used Ford Mustang in Albany to designing websites in Mumbai -- work just like this? How is what Dell is doing different? (In fact, it's a better situation for the consumer -- at least the consumer is able to find out the other prices DELL is willing to take; you won't hear the Moroccan fruit seller telling customers what other prices he's willing to sell his dates for.)
hopefully, customers will be smart and avoid vendors who pull this unethical crap.
Why is it unethical to do what Dell is doing? They are not preventing anyone from buying at the lower price, and they're not hiding the other prices. And, as you say, "customers are free to choose whether or not they buy" -- there are a billion other PC resellers out there, plus you can build your own if you want.
Companies doing mergers over a certain deal value must notify the federal government of the deal under the Hart-Scott-Rodino Act. Unless I missed it, we don't know yet whether the government is going to challenge the merger, so it's premature to say we don't ever enforce the antitrust law. (It's interesting to note, though, that the DOJ/FTC have challenged several large, high-profile mergers over the past few years but have been shot down in the courts.) In any case, the antitrust enforcement in the US is highly sophisticated; decisions of whether or not to challenge a merger are not taken lightly and not without strong economic analysis to back them up.
Freedom of speech is not absolute. There are many instances when the government can restrict your freedom of speech. In this case, courthouses are public places, but they are not meant to be public forums. The government can restrict speech in "nonpublic forums" like this if the restriction is "narrowly tailored to serve a significant government interest" and viewpoint-neutral. That's why courts can throw hecklers out of the courtroom and even prevent people from protesting too close to the building.
So the question isn't whether one's right to a fair trial supersedes your freedom of speech. The question is whether a restriction on your freedom of speech is justified by the circumstances and whether the restriction itself strikes an acceptable balance.
Other replies are good about addressing burdens of proof and the concept of "beyond a reasonable doubt", so the only thing I'll add is that you seem to misunderstand the difference between FACTS and EVIDENCE. Parties in a court case are trying to prove facts *with* evidence. Evidence may be used to prove one fact or 100 facts, and each fact may be proved by one piece of evidence or 100 pieces.
So for your example: a log of the message w/ your IP is certainly *evidence* to be used to prove the fact that you sent the message (which would probably be offered with some testimony from the detective or whoever can authenticate it). But you're right, it's not absolute proof, and of course you could say many things: the IP was forged; someone else used my computer to send the message, etc. But that by itself doesn't DISPROVE the fact asserted. You have to offer evidence. So you offer more evidence to help disprove the fact asserted -- in other words, to help prove a DIFFERENT fact. The other side then offers more evidence; say, a copy of the message from your computer's hard disk, testimony from your roommate that you were using the computer, etc. And so it goes back and forth, with more evidence offered from both sides, and it's up to the jury to 1) decide how much to trust each piece of evidence, and 2) decide what facts have been proven beyond a reasonable doubt considering all the pieces of evidence.
There was an article about him and his camera in the most recent Esquire magazine. He built the camera himself by modifying an WWII-era extra-large format camera that was used from spy planes and made incredibly detailed images in its day. He's an artist, not an engineer, which is interesting.
As far as I know (and I'm certainly not an expert), negative items stay on your credit report for a MAXIMUM of seven years. See section 605(a)(4) and (5) of the Fair Credit Reporting Act. (There are some exceptions to this rule in subsection (b) and another that extends the ten-year period for info regarding certain student loans.) Maybe you can ask to have that delinquency removed?
Also, I've heard that positive items stay for a minimum of 10 years, but I'm not sure about that.
I hate egotists who assume that everyone in disagreement with them must be doing so out of ignorance. If I was to do the same, I would have to call you ignorant for not knowing about the existence of the DMCA, which renders those previous changes you speak of entirely defunct if enforced literally and uniformly.
Of course I know about the existence of the DMCA. In fact, I was thinking about giving the DMCA as an example after the ellipsis ending my last sentence. In other words, I agree with you when you say
But instead, I'll just assume you are aware of the DMCA, and just don't agree with me that this is the effect it would have if interpreted literally.
The mere fact of the promulgation of the DMCA, however, doesn't "prove" that Congress didn't understand the technology and the impact of the DMCA.
The fatal flaw in your thinking is that you seem to think that if lawmakers "understood" the technology, they *wouldn't* pass laws like the DMCA and otherwise would try to address technology issues directly, which is certainly unfounded without more knowledge of what happened before and during the process of passing these laws.
I don't know if Congress understood the technology or not when it passed the DMCA, but I haven't really investigated it or thought about it since my opposition to it isn't based on the idea that Congress didn't understand the technology -- it's based on the idea that Congress shouldn't be taking away rights that we had before without a better reason than "because the RIAA wants us to." The DMCA is poorly written and overbroad -- its literal application outlaws acts that we used to think are probably fair use. Issues with the technology are implicated, sure, but I don't think you have to be a techie to understand why the DMCA sucks.
And citing changes from 1970 and 1980 in no way refutes the claim that the copyright law was not written with this technology in mind.
I don't understand what you're saying. I cite the changes to show that Congress DOES think about technology and the interplay between tech and the law. The process of the amendments to section 117 in 1980 was a direct result of Congress's Commission on New Technological Uses of Copyrighted Works, which was commissioned in 1976 -- while Congress was working on the last major change to the Copyright Act -- because of concern about how to treat computer programs and databases. One of the major issues was the automatic making of a copy of a program in RAM. This led to the 1980 amendment. Obviously Congress was concerned about technology when it wrote the amendment!
Let me repeat that I do think Congress has dropped the ball sometimes when it comes to passing tech-oriented laws. One law I do believe was passed without understanding the technology is the Anticybersquatting Consumer Protection Act. The problem there is that law treats domain names like real property. On the shallowest levels, that makes sense, but IMHO a stronger understanding of the technology doesn't support the way the law is drafted.
The problem is that the original law was not written with this technology in mind, and the attempts to update it are written by people who just don't understand what they're doing....
Just because you're not aware of the legal history of copyright law doesn't mean the issues you raise haven't been considered.
We can analogize, for example, to the issue you mention above with copyright law-making from almost 30 years ago. It's been long realized that using a computer program almost always requires making a copy of the program (or non-trivial parts of it) in RAM. That's simply just how computers work. Section 117 of the copyright act was amended in *1980* to make an exception for this kind of copying. And that was as a result of people considering this issue in the *1970s.* Your "insight" about the necessity of making local copies of online material is an obvious extension of this idea. It's not like lawmakers/judges just missed the boat on the analogy wrt works posted for public free consumption in the online world -- I think it's just that everyone assumes that making a copy of the work is necessary to using the internet and a license for that particular act is implied.
Hence we get laws that if interpreted literally would outlaw the entire world wide web, but then get enforced selectively.
People who say this usually are not aware of all of the applicable law and how it interacts with the facts. Though of course I'm not saying that this sort of thing doesn't happen sometimes...
And you sir should read (c)(4)(B), which provides an exception for "Noncommercial use of a mark." Read the US Supreme Court's ruling on Mattel Inc. vs. MCA Records for an explaination as to what constitutes noncommercial use.
Um... okay. Are you saying that the news reporting/commentary exception is not the applicable exception in the parent's post about commercial newspapers? That would be odd.
If you mean that (c)(4)(B) should apply to SG's use, well duh, that's one of the things SG would argue, and it's a good argument. Like I said in my original post, "certainly there are arguments to be made on the other side (e.g.,... not a commercial use)". I never said Nintendo would win. My point is that Nintendo's letter is not without a legal basis.
By the way, as far as I know, the Supreme Court denied cert on Mattel Inc. v. MCA Records. The ruling you are probably talking about is the 9th Circuit's opinion. Well, at least you knew about the case.
Fair enough; like I said, I didn't visit the website, and I made some assumptions. That said, it certainly doesn't mean that SG is automatically in the clear and that the cease and desist letter is therefore frivolous. There are arguments to be made on both sides, and other facts to be determined.
Read section 1125, which I linked to in the parent. Specifically, see (c)(4) for the exceptions, one of which (sub (C)) is for "all forms of news reporting and news commentary."
First of all, there are 3 exceptions under the trademark dilution statute:
"(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary."
Now, I have no idea what the context of the use is on the website (I'm not about to go check it out while at work). But I assume that suicidegirls is a commercial adult-oriented community website, and that the use of the mark was in a member profile. Given that, it isn't difficult to imagine an argument that the use of the trademarks is commercial (the whole site is commercial; publishing members' profiles is meant to entice other people to join, which would be a commercial use), that the use isn't "news reporting/commentary" (it sounds like it was used in a member profile, not news reporting or commentary), and that it's not fair use per the description in subsection (A) (that sounds pretty clear).
It's certainly not a slam dunk, but it's definitely not meritless.
Slashdot Mirror
Section 512(b) (part of the DMCA) specifically exempts system caching on the part of certain service providers, as long as the provider complies with certain requirements. It's not entirely clear that Google's cache falls under the exemption in section 512(b) -- e.g., Google might not be the kind of provider that's contemplated in section 512(b), and also it goes out and caches content before someone asks for the content -- but I would guess the exemption is what Google principally relies on. Otherwise, it might be fair use, though that's not clear either.
Sure there were color scanners available for Macs and PCs in 1992. I was in highschool at the time; we were using Aldus Pagemaker to lay out the school newspaper, and we would scan pictures to place in the layout. The editor in chief had one of those handheld scanners, and the school had a flatbed, as did Kinko's.
If potential plaintiffs don't have the prospect of getting punitive damages in addition to actual damages, then fewer plaintiffs would bring suit, it's just that simple. While punitive damages are supposed to function as a disincentive to behaving badly, there's no denying that some plaintiffs are incentivized by them, and there's no way to say that all such plaintiffs have frivolous suits; such plaintiffs will have a mix of frivolous and meritorious suits.
Thus, if you simply remove the extra incentive in an attempt to reduce the frivolous suits, you'll end up reducing meritorious suits too, and that would be bad. The question is what is the right balance? That's the biggest reason, I think, that all states that have split-award statutes do it only partially -- they want to optimize the balance at the margin.
Some states have this system, sort of, where the plaintiff gets a portion of the punitive award and the state gets the rest -- laws implementing this are called "split award" statutes.
There has been some interesting work done on whether this system is, overall, welfare-improving. It may be intuitive that such a system cuts down on frivolous lawsuits, but it wouldn't be good if it cut down on justifiable lawsuits, too. Not only would potential plaintiffs not be compensated for wrongs, it could lessen the incentive of a defendant to avoid doing the wrongs. (Avoiding these problems -- in addition to possible constitutional problems -- is probably why no state has a 100% "split" award statute.)
And it's not clear that lawyers might be less likely to push the more questionable cases -- in fact, they might be more likely to push them, because under such a system all plaintiffs have an increased incentive to settle cases, which costs plaintiffs' attorneys (working on a contingency fee basis) less money and time (so in aggregate they can bring more).
I've never heard anyone say that MSFT bought Apple for $150 million, but certainly MSFT did invest $150 million in Apple several years ago.
I see what you're saying. It's true -- we really need to work on improving the recidivism rate. I don't know enough about implementations of the three strikes rule to know whether the rule even addresses it -- at least, before the third strike is made.
And it's not uncommon that those on their 3rd chance will go to drastic measures (up to and including murder) to prevent themselves from being caught again.
Seems kind of irrelevant when you're talking about the propriety of the three strikes rule. If a person is capable of murder or resorting to some other violence because the person, having willingly committed yet another crime, doesn't want to get caught, then that's the kind of person we want to lock up for the rest of his life. Getting rid of the three strikes rule wouldn't do anything to prevent that kind of person from committing another crime and possibly resorting to murder/violence to cover his tracks. I'm not willing to be easier on someone who wouldn't have killed or hurt a victim or a witness if it weren't for that damn three strikes rule.
Why would a board approve a purchase for less money than a competing offer?
Depends on several things. You're alluding to "Revlon duties", which are imposed by Delaware law and require the board of a company that's on the auction block to get the highest possible short-term shareholder value in the sale.
For one, it depends on the governing law and the structure of the deal. Revlon duties are part of Delaware corporate law; many states have "constituency" laws that affirmatively do not impose Revlon-type duties on the board (requiring a board to look at *non-shareholder* interests as well as shareholder interests in reviewing a merger deal).
Also, not all mergers will trigger Revlon duties; e.g., an all stock merger of equals between widely owned public companies would probably not trigger Revlon. With those kinds of mergers, boards are free to and should look at the long-term value (strategic or otherwise) of a merger, as well as its short-term impact. This could include the acquirer's growth prospects, stability, etc. (Dunno what the MCI/Qwest deal is; I know, RTFA...)
Also, if there are Revlon duties, shareholder value isn't *necessarily* all about the amount of money involved, though you have the right intuition that the amount of money is the dominant factor. It's pretty risky for board with Revlon duties to take a deal when there are competing higher dollar value offers, but other significant short-term factors could justify taking the smaller deal.
Your friend may have been a bit hyperbolic. :) First of all, IP issues in general come up very often in a non-IP lawyer's work: it comes up when a company is trying to hire somebody, when a company wants to purchase or license a product from someone, when a company wants to merge or acquire another company, etc. etc. These things happen all the time. Though we non-IP attorneys would never give anyone IP advice of the sort that addresses whether something is protectable or infringing, we do deal with IP issues a lot without having to punt to a patent attorney.
That said, the practice of drafting and prosecuting patent or trademark applications and challenging validity/claiming infringement of granted patents or trademarks does involve specialized knowledge, and in fact there is a special "bar" exam that is required to be taken in order to practice before the US Patent and Trademark Office (which handles all that stuff). However, the "patent bar" doesn't make you a lawyer; you still have to take a state bar exam in order to be licensed as a lawyer. In other words, you can't be a patent attorney practicing in front of the USPTO without having passed BOTH the patent bar and your state's bar exam.
Note though that you don't need a law degree to do IP stuff in front of the PTO -- registered patent agents, as far as I know, only need a bachelor's degree (with sufficient science background). In order to be registered, they must take the same patent bar as aspiring patent attorneys, and if they pass they can draft and file patent applications, just like a patent attorney would be able to. They can't go to court, of course, and so can't litigate patent validity, but a lot of law firms that specialize in IP (an ever-thinning population, nowadays) have lots of patent agents to file and prosecute patent applications.
Also, not all IP litigation is before the USPTO, so not all "IP attorneys" need to have passed the patent bar. I have some friends doing IP litigation who aren't patent attorneys.
Good commenting is, of course, very helpful. Irrelevant or inappropriate commenting ("// this code sucks", "// fuck the product manager", etc.) is not really helpful. Stripping out ALL comments is obviously unhelpful.
Giving them the benefit of the doubt, I'd think that they would not want to release completely uncommented code, and would prefer to retain the good, helpful comments and remove "inappropriate" (i.e., not helpful) ones. How could they do that without going through all the comments by hand? Grepping isn't going to be perfect.
The problem with nuclear power isn't the threat of meltdowns. It's the waste that's produced. No, Yucca Mountain won't solve the problem permanently. If you think that you're just ignorant.
First of all we're not sure how safe it is. There's a moderate seismic activity in the area. There's also more water seepage than previously thought. Have some goddamn responsibility and think of this in the long-term; the casks have to maintain integrity for 10,000 years.
MIT's Technology Review had a good article about this recently. The article's main point is that we DON'T need to think about storage in the long-term -- at least, not in terms of 10,000 years. Why should we? 100 years from now, heck, 50 years from now, we'll undoubtedly have far better technology for storing nuclear waste than we do currently. Why not design storage to work extremely well for, say, 100 years, and then revisit the problem in 50 years? Our ability to design a storage system that will work almost perfectly for 100 years is certainly vastly better than our ability to design such a system that will last for 10,000 years. Plus, in 100 years the nuclear waste will be cooler and easier to handle and store, AND we might have better technology to reuse or reprocess the waste, both of which would address your fears about running out of waste storage space.
Our focus on such long-lasting solutions is really preventing us from moving forward on nuclear power in the nearest-term and wasting time and money in the process.
Even if you think Dell is not being forthcoming, I don't think anyone would say they are lying to anyone about their prices, so I'm not sure if I'd call them slimy. If they're not lying, whose responsibility is it to educate the consumers?
Look at the situation another way. Say you are a web page designer with two clients. In negotiating the price, you told client A you usually charge $1000 for a whole site, which is in the middle of the average range of prices people charge for your type of work. (Say it costs about $500 to design a site.) Client A balks at this price; they're a small company and have a limited budget for advertising, and in any case a couple of the quotes they had gotten from other designers were lower. Still, you want this client, and you know you have leeway in the margin you're willing to take, so you tell them you'll only charge them $800, which the client agrees to. Client B, on the other hand, didn't even blink when you gave the $1000 quote -- in fact, Client B thought it was a decent deal, because all of the quotes they had gotten were higher (then again, they hadn't done nearly as much research as Client A).
Are there any ethical problems with this scenario? Should you tell Client B that actually you can do their site for only $800, since you had agreed to do it for that price with Client A? Should you not have agreed with Client A that you could do it for $800, since you are charging Client B $1000? What if Client B's staff had just sucked at using Google and were lazy to boot, and that's why it didn't have any quotes lower than yours -- if you knew that, did you have a responsibility to educate Client B's staff? What if you didn't know the sophistication of Client B's staff? What if Client B actually had an even smaller budget for a new website than Client A (but still could afford you)?
There are a lot of variables involved. Are you being slimy if you accept client A's $800 and B's $1000? Even though both are satisfied with the price they're paying? Even though 99% of market transactions in this world -- from selling fruit in a market in Marrakesh to selling a used Ford Mustang in Albany to designing websites in Mumbai -- work just like this? How is what Dell is doing different? (In fact, it's a better situation for the consumer -- at least the consumer is able to find out the other prices DELL is willing to take; you won't hear the Moroccan fruit seller telling customers what other prices he's willing to sell his dates for.)
hopefully, customers will be smart and avoid vendors who pull this unethical crap.
Why is it unethical to do what Dell is doing? They are not preventing anyone from buying at the lower price, and they're not hiding the other prices. And, as you say, "customers are free to choose whether or not they buy" -- there are a billion other PC resellers out there, plus you can build your own if you want.
Companies doing mergers over a certain deal value must notify the federal government of the deal under the Hart-Scott-Rodino Act. Unless I missed it, we don't know yet whether the government is going to challenge the merger, so it's premature to say we don't ever enforce the antitrust law. (It's interesting to note, though, that the DOJ/FTC have challenged several large, high-profile mergers over the past few years but have been shot down in the courts.) In any case, the antitrust enforcement in the US is highly sophisticated; decisions of whether or not to challenge a merger are not taken lightly and not without strong economic analysis to back them up.
Definitely possible -- it just takes practice. FWIW, sitting closer to the TV helps me!
Freedom of speech is not absolute. There are many instances when the government can restrict your freedom of speech. In this case, courthouses are public places, but they are not meant to be public forums. The government can restrict speech in "nonpublic forums" like this if the restriction is "narrowly tailored to serve a significant government interest" and viewpoint-neutral. That's why courts can throw hecklers out of the courtroom and even prevent people from protesting too close to the building.
So the question isn't whether one's right to a fair trial supersedes your freedom of speech. The question is whether a restriction on your freedom of speech is justified by the circumstances and whether the restriction itself strikes an acceptable balance.
Other replies are good about addressing burdens of proof and the concept of "beyond a reasonable doubt", so the only thing I'll add is that you seem to misunderstand the difference between FACTS and EVIDENCE. Parties in a court case are trying to prove facts *with* evidence. Evidence may be used to prove one fact or 100 facts, and each fact may be proved by one piece of evidence or 100 pieces.
So for your example: a log of the message w/ your IP is certainly *evidence* to be used to prove the fact that you sent the message (which would probably be offered with some testimony from the detective or whoever can authenticate it). But you're right, it's not absolute proof, and of course you could say many things: the IP was forged; someone else used my computer to send the message, etc. But that by itself doesn't DISPROVE the fact asserted. You have to offer evidence. So you offer more evidence to help disprove the fact asserted -- in other words, to help prove a DIFFERENT fact. The other side then offers more evidence; say, a copy of the message from your computer's hard disk, testimony from your roommate that you were using the computer, etc. And so it goes back and forth, with more evidence offered from both sides, and it's up to the jury to 1) decide how much to trust each piece of evidence, and 2) decide what facts have been proven beyond a reasonable doubt considering all the pieces of evidence.
There was an article about him and his camera in the most recent Esquire magazine. He built the camera himself by modifying an WWII-era extra-large format camera that was used from spy planes and made incredibly detailed images in its day. He's an artist, not an engineer, which is interesting.
As far as I know (and I'm certainly not an expert), negative items stay on your credit report for a MAXIMUM of seven years. See section 605(a)(4) and (5) of the Fair Credit Reporting Act. (There are some exceptions to this rule in subsection (b) and another that extends the ten-year period for info regarding certain student loans.) Maybe you can ask to have that delinquency removed?
Also, I've heard that positive items stay for a minimum of 10 years, but I'm not sure about that.
I hate egotists who assume that everyone in disagreement with them must be doing so out of ignorance. If I was to do the same, I would have to call you ignorant for not knowing about the existence of the DMCA, which renders those previous changes you speak of entirely defunct if enforced literally and uniformly.
Of course I know about the existence of the DMCA. In fact, I was thinking about giving the DMCA as an example after the ellipsis ending my last sentence. In other words, I agree with you when you say
But instead, I'll just assume you are aware of the DMCA, and just don't agree with me that this is the effect it would have if interpreted literally.
The mere fact of the promulgation of the DMCA, however, doesn't "prove" that Congress didn't understand the technology and the impact of the DMCA.
The fatal flaw in your thinking is that you seem to think that if lawmakers "understood" the technology, they *wouldn't* pass laws like the DMCA and otherwise would try to address technology issues directly, which is certainly unfounded without more knowledge of what happened before and during the process of passing these laws.
I don't know if Congress understood the technology or not when it passed the DMCA, but I haven't really investigated it or thought about it since my opposition to it isn't based on the idea that Congress didn't understand the technology -- it's based on the idea that Congress shouldn't be taking away rights that we had before without a better reason than "because the RIAA wants us to." The DMCA is poorly written and overbroad -- its literal application outlaws acts that we used to think are probably fair use. Issues with the technology are implicated, sure, but I don't think you have to be a techie to understand why the DMCA sucks.
And citing changes from 1970 and 1980 in no way refutes the claim that the copyright law was not written with this technology in mind.
I don't understand what you're saying. I cite the changes to show that Congress DOES think about technology and the interplay between tech and the law. The process of the amendments to section 117 in 1980 was a direct result of Congress's Commission on New Technological Uses of Copyrighted Works, which was commissioned in 1976 -- while Congress was working on the last major change to the Copyright Act -- because of concern about how to treat computer programs and databases. One of the major issues was the automatic making of a copy of a program in RAM. This led to the 1980 amendment. Obviously Congress was concerned about technology when it wrote the amendment!
Let me repeat that I do think Congress has dropped the ball sometimes when it comes to passing tech-oriented laws. One law I do believe was passed without understanding the technology is the Anticybersquatting Consumer Protection Act. The problem there is that law treats domain names like real property. On the shallowest levels, that makes sense, but IMHO a stronger understanding of the technology doesn't support the way the law is drafted.
The problem is that the original law was not written with this technology in mind, and the attempts to update it are written by people who just don't understand what they're doing....
Just because you're not aware of the legal history of copyright law doesn't mean the issues you raise haven't been considered.
We can analogize, for example, to the issue you mention above with copyright law-making from almost 30 years ago. It's been long realized that using a computer program almost always requires making a copy of the program (or non-trivial parts of it) in RAM. That's simply just how computers work. Section 117 of the copyright act was amended in *1980* to make an exception for this kind of copying. And that was as a result of people considering this issue in the *1970s.* Your "insight" about the necessity of making local copies of online material is an obvious extension of this idea. It's not like lawmakers/judges just missed the boat on the analogy wrt works posted for public free consumption in the online world -- I think it's just that everyone assumes that making a copy of the work is necessary to using the internet and a license for that particular act is implied.
Hence we get laws that if interpreted literally would outlaw the entire world wide web, but then get enforced selectively.
People who say this usually are not aware of all of the applicable law and how it interacts with the facts. Though of course I'm not saying that this sort of thing doesn't happen sometimes...
And you sir should read (c)(4)(B), which provides an exception for "Noncommercial use of a mark." Read the US Supreme Court's ruling on Mattel Inc. vs. MCA Records for an explaination as to what constitutes noncommercial use.
... not a commercial use)". I never said Nintendo would win. My point is that Nintendo's letter is not without a legal basis.
Um... okay. Are you saying that the news reporting/commentary exception is not the applicable exception in the parent's post about commercial newspapers? That would be odd.
If you mean that (c)(4)(B) should apply to SG's use, well duh, that's one of the things SG would argue, and it's a good argument. Like I said in my original post, "certainly there are arguments to be made on the other side (e.g.,
By the way, as far as I know, the Supreme Court denied cert on Mattel Inc. v. MCA Records. The ruling you are probably talking about is the 9th Circuit's opinion. Well, at least you knew about the case.
Fair enough; like I said, I didn't visit the website, and I made some assumptions. That said, it certainly doesn't mean that SG is automatically in the clear and that the cease and desist letter is therefore frivolous. There are arguments to be made on both sides, and other facts to be determined.
Read section 1125, which I linked to in the parent. Specifically, see (c)(4) for the exceptions, one of which (sub (C)) is for "all forms of news reporting and news commentary."
First of all, there are 3 exceptions under the trademark dilution statute:
"(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary."
Now, I have no idea what the context of the use is on the website (I'm not about to go check it out while at work). But I assume that suicidegirls is a commercial adult-oriented community website, and that the use of the mark was in a member profile. Given that, it isn't difficult to imagine an argument that the use of the trademarks is commercial (the whole site is commercial; publishing members' profiles is meant to entice other people to join, which would be a commercial use), that the use isn't "news reporting/commentary" (it sounds like it was used in a member profile, not news reporting or commentary), and that it's not fair use per the description in subsection (A) (that sounds pretty clear).
It's certainly not a slam dunk, but it's definitely not meritless.