From the point of view of mp3tunes, this decision is not a huge victory because it's liable for at least hundreds, if not thousands, of separate acts of copyright infringement (the decision is surprisingly imprecise as to exactly how many acts of infringement mp3tunes is liable for). If EMI chooses to have statutory (as opposed to actual) damages awarded, then mp3tunes is on the hook for between $750 to $150,000 per infringement (to be decided by the judge or a jury if EMI demands it). If somehow EMI is awarded the max statutory damages (unlikely but possible), that's 15 million dollars for every 100 songs infringed; EMI is claiming 3189 songs are at issue - if that's right, then mp3tunes max liability is $478,350,000 - half a billion dollars.
It's also not a huge victory for mp3tunes because there are a number of unresolved issues - including whether it's founder Michael Robertson is personally liable for songs he personally added to the mp3tunes service. Unreolved issues will go through more litigation, including possibly an actual trial. That, of course, is expensive and sucks for mp3tunes.
From the point of view of the public, google, and amazon, this is great, for all the reasons you mentioned.
"Qualified immunity shields government officials from liability for the violation of an individual's federal constitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate "clearly established law."
The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster."
The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.
What you're citing is a quote from "The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law." The current copyright law was enacted in 1976. The 1961 report was written by the copyright office as part of a recommendation to Congress on how to revise copyright law. The report does not reflect current law and wasn't a conclusive statement of then-existing law.
As countless others have said in this thread, fair use is a minefield and its not possible for anyone other than a court to authoritatively state "this is fair use" and "this is not fair use." The law on fair use is extremely flexible and depends on the context of the use. Copying a CD to one's harddrive for personal use is generally considered fair use. Copying a CD to a friend's harddrive for their personal use is generally not considered fair use. A prof copying an academic article for his or her academic research is generally considered fair use; copying the article and handing it out to students for classroom use is generally considered fair use. A business that copies articles for students for classroom use is generally not considered classroom use.
A major 2006 study compared the effects of tobacco and Cannabis smoke on the lungs. The outcome of the study showed that even very heavy cannabis smokers "do not appear to be at increased risk of developing lung cancer," while the same study showed a twenty-fold increase in lung cancer risk for tobacco smokers who smoked two or more packs of tobacco cigarettes a day. It is known that Cannabis smoke, like all smoke, contains carcinogens and thus has a probability of triggering lung cancer, but THC, unlike nicotine, is thought to "encourage aging cells to die earlier and therefore be less likely to undergo cancerous transformation." Cannabidiol (CBD), an isomer of THC and another major cannabinoid that is also present in cannabis, has been reported elsewhere to have anti-tumor properties as well.
Unfortunately, judge posner, and most appeals court judges, rarely ever see patent cases. Nearly all patent cases go to a special appellate court, and so most patent law & policy is set by the small group of perhaps myopic judges on the federal circuit. The fed. cir. doesn't benefit from the diversity of opinions that other appeals court enjoy.
Following your logic, a fixed definite copyright term makes more sense than one based on the author's span. If all works got a 30, 50, 70, whatever year copyright term, then some copyrights wouldn't be worth less due to a shorter duration. And determining whether a work is still under protection would be easy, as all you need to know is the publication date of the work.
What about ASCAP and BMI who do regularly sue bars and other venues that play music without paying royalties?
ASCAP and BMI are a completely different of entity than the RIAA, or Righthaven.
The RIAA is a trade group for record companies. It performs certain functions for the record companies that would be inefficient for them to do individually - namely, lobby congress & the US trade representative, and public education campaigns about copyright law. ASCAP and BMI are not trade associations for music publishers - that's the NMPA (National Music Publishers Association).
Righthaven, apparently, is a shell company that only acquired a "right" to sue for infringement - no other rights were acquired/licensed at all. As TFA and others have stated, this is so obviously legally invalid that its surprising they actually thought it would work.
ASCAP and BMI acquire actual rights from copyright owners - namely, the public performance right. Owners of musical works (typically either a publisher or a composer/songwriter) assign to ASCAP or BMI the nonexclusive right to perform their work publicly. ASCAP and BMI gather up a whole bunch of such public performance rights, then sublicense all of those rights (a "blanket license", i.e., permission to perform any musical work in ASCAP or BMI's repertoire) to places where music might be performed - bars, restuarants, radio and tv stations, etc. Those places pay a single annual fee; all such fees are pooled by ASCAP/BMI and then distributed to the owners of musical works in proportion to how often the musical works were performed (this is usually an estimate).
ASCAP is a nonprofit, member-owned collective rights group for music publishers and writers (so, it's maybe a little bit like a trade group); BMI is a for profit collective rights group owned by NAB (National Association of Broadcasters) - so it's actually owned by a trade group of musical work *users*, rather than authors/owners.
Under copyright law, you do not have to negotiate an agreement for royalties in order to use a work in a "public performance". Instead, the law specifies a "statutory royalty" that is due whenever a work is used in a public performance, with the rate of this royalty being set by the government (the Copyright Royalty Board).
This is inaccurate.* Public performance of a musical work is an exclusive right awarded to the owners of the musical work's copyright. ASCAP and BMI are collective rights organizations, to whom the musical work copyright owners assign licenses. ASCAP and BMI get royalties from bars and any other place where music is performed (radio, tv, concert halls, restaurants, etc.) and then distribute that money to the owners of the musical works copyright.
What you're describing is the digital performance right, which is completely different. First of all, it only applies to sound recordings, which have a completely different copyright than musical works. The "authors" of a musical work are songwriters or composers; the "author" of a sound recording is a musician or "recording artist." Second, it only applies to performances of the sound recording over the internet (or other ways of digitally sending/performing a sound recording), not all public performances of sound recordings. A bar that has a sound system can play any sound recording it wants without paying the copyright owner of that sound recording - but it would have to pay for a blanket license from ASCAP and/or BMI for the public performance of the musical work.
*I do understand your confusion, though - musical works do have a compulsory license - however, it's for the mechanical reproduction of the musical work. See 17 USC 115. The limits on sound recording rights (i.e., no public performance right) and the compulsory license for digital performance rights are in 17 USC 114.
But the Internet was always "in the hands of policymakers". They funded its creation and have regulated its development.
Not really. Before the mid 1990s, "policymakers" was mostly Jon Postel...
Apparently you never heard of NSFNET, which had an acceptable use policy; commercial networks had to sign usage agreements in order to connect to the internet. In those days, one couldn't freely connect a private network to the internet just by getting an address from Jon Postel; you had to sign up with NSFNET and agree to its terms.
I have ten bucks that says, when I am my roomate's dad's age, you'll need a license to upload most, if not all, content that you want to the internet.
Technically, if the content wasn't actually created by you (i.e., you are the author), and if the content is not public domain,* then you *do* need a license - from the owner of the copyright over that content - in order to upload it.
But, I imagine that you're not railing against private ownership and control of resources. Just the conflict between government stewardship of resources and individual liberty.
* I mean "public domain" in the expansive sense - e.g., ideas are public domain, fair uses of content is public domain, etc.
This paper seems to cover some of that ground: "The Eros of Achilles: Homoerotic Bonding Among Combat Soldiers" by J Laskaris - Transnational Law & Contemporary Problems, 2000 - vol 10 p139 onwards.
Wow, awesome find.
First of all, there's a section titled "Mantaming Sparta."
Second, there is this very interesting passage:
Jonathan Shay calls attention to our culture's homophobia as inhibiting or preventing combat soldiers from expressing their full grief at the loss of close comrades - a process that he considers essential in preventing post-traumatic stress disorder and states that, ''Veterans need to voice their grief and love for their dead comrades if they are to heal. However, many have learned to keep quiet because of their culture's discomfort with love between men that is so deeply felt."
That's an aspect of homophobia / "don't ask don't tell" that few think about.
Keen was great, but his son, Duke Nukem, was funner and funny...
Keen came out on 14 December, 1990; Duke Nukem came out on July 1, 1991. Thats 7 months later. Furthermore; Keen is 8 years old in his first adventure; whereas Duke is fully grown (can't say he's "mature" though).
Lets face facts and admit that Duke Nukem is Keen's late-blossoming older brother.
what Times vs. U.S. decided was that it might or might not be illegal to publish certain classified documents. But the U.S. government couldn't practice prior restraint, couldn't bar the press from publishing any classified documents, solely on the grounds of national security. They would have to be published, then the courts could decide case-by-case whether such publication was illegal.
Reaching back into my First Amendment notes, I find that the issue is quite a bit more complicated than that.
Although the court's decision was a unanimous, unambiguous per curiam opinion... every single member of the court wrote their own opinion, and the opinions cannot be read in such a way that a there is an agreement on the rationale behind the decision.
2 justices, Black and Douglas (the good guys, in my opinion), argued that there must never be prior restraints on publishing the news.
4 justices, Brennan, Stewart, White, and Marshall, argued that prior restraints could be permissible, but only when it is certain to result in severe harm to the country (per Stewart: "direct, immediate, and irreparable damage to our nation or its people").
3 justices, Stewart, White, and Marshall, thought it was very important that no statute authorized injunctions against news publications for cases of national security.
3 justices, Harlan, Burger, and Blackmun, thought that injunctions on news publication could be constitutional. Harlan proposed a test for when injunctions could be issued: A) when the authority to prevent publication of the news would be within the President's constitutional foreign relations power (I would guess diplomatic cables would count), and B) if the decision that the publication would irreparably harm national security was made by the senior most executive official, such as the secretary of defense or state (as would also be the case for the wikileaks leak).
So, there you have it. No prior restraints, unless there's a really really good reason.
we're out of the prior restraint realm because this material has already been published.
That's right. In my haste for karmawhoring, I screwed that up - I should have said: "designating documents as secret and preventing anyone from publishing them is a 'prior restraint' and presumed unconstitutional.
They only ruled that IN THIS CASE it was Unconstitutional
Right. And I said:
presumed unconstitutional
The government has a "heavy burden" to justify prior restraints. The person who wants to publish secret documents doesn't have to justify anything. Therefore, the presumption is that the government may not prevent the publication. Of course, that presumption, like any presumption, may be overcome.
The unanimous opinion itself is very short; essentially, designating documents as secret and punishing anyone who publishes them is a 'prior restraint' and presumed unconstitutional.
We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U. S. Decision-Making Process on Viet Nam Policy." Post, pp. 942, 943.
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963); see also Near v. Minnesota, 283 U. S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.
What precedent? Settling a privacy class action suit by promising to pay millions to fund some kind of privacy foundation, and no payment to individual users?
Genuine question then- can services such as Twitter and Facebook (which to not have any direct input into what their users send via their services) qualify as common carriers?
Being designated as a common carrier is both a blessing and a curse. Common carriers are highly regulated, and can't, for example, block their competitors access to their services. ISPs and cable companies have lobbied hard over the years to avoid being designated as common carriers by the FCC. I would presume that Twitter and Facebook would also want to avoid common carriage regulation.
Slashdot isn't liable for comments again because they're Common Carrier - they're not selecting who can post and everyone plays by the same rules...
No.
Slashdot isn't liable for certain kinds of "illegal" material (namely, defamation - i.e., libel) because of section 230 of the Telecom Act of '96. Basically, because it is a "provider of an interactive computer service," and because comments and even stories are provided by "another information content provider" (i.e., users like you and me), Slashdot is immune from any liability it would normally have for being the publisher or speaker of "illegal speech" (like defamation, but potentially also intrusions on privacy and the like).
Section 230 *does not* provide immunity for copyright infringement - instead, the DMCA's notice and take-down system gives Slashdot immunity so long as it promptly takes down infringing material after being served notice by the copyright owner. A common carrier, however, would (I think) be immune to liability for copyright infringement even with notice that a user was using its service to infringe copyrights.
Both of those safe harbors (230 and the DMCA notice and take-down) look a lot like the protections normally given to common carriers - so it's understandable that you might think that that's what they are. But its not the case. Slashdot cannot be a common carrier because it does more than "carry." It chooses what stories to publish on its website, and that kind of discretion means that it doesn't provide "common" access to its service. Further, as another poster points out, common carrier status has to be provided by law; one doesn't qualify for common carrier protections just by adhering to a certain kind of business practice.
I'm sorry. I should have just said "she's being a normal young adult."
All kids/teenagers hate it when their parents criticize their choice of how to spend their time, all kids/teenager hate it when their interests are seemingly ignored by their family, and all kids/teenagers rebel against their family. If her condition magnifies these typical reactions, then, I'm sorry, but "youth rebellion disorder" is an age-old problem that exists even without ipods and even without cerebral palsy.
Her grandmother tells her that she "plugs in" or has "plugged in", whenever she puts her headphones in and becomes dead to the physical world. She hates when her Nan tells her this, and is very impatient with her Mom, brother, and others.
This is a normal young adult being a normal young adult.
Slashdot Mirror
How is this NOT a huge victory?
From the point of view of mp3tunes, this decision is not a huge victory because it's liable for at least hundreds, if not thousands, of separate acts of copyright infringement (the decision is surprisingly imprecise as to exactly how many acts of infringement mp3tunes is liable for). If EMI chooses to have statutory (as opposed to actual) damages awarded, then mp3tunes is on the hook for between $750 to $150,000 per infringement (to be decided by the judge or a jury if EMI demands it). If somehow EMI is awarded the max statutory damages (unlikely but possible), that's 15 million dollars for every 100 songs infringed; EMI is claiming 3189 songs are at issue - if that's right, then mp3tunes max liability is $478,350,000 - half a billion dollars.
It's also not a huge victory for mp3tunes because there are a number of unresolved issues - including whether it's founder Michael Robertson is personally liable for songs he personally added to the mp3tunes service. Unreolved issues will go through more litigation, including possibly an actual trial. That, of course, is expensive and sucks for mp3tunes.
From the point of view of the public, google, and amazon, this is great, for all the reasons you mentioned.
Qualified immunity is a legal term. Look it up on wikipedia:
"Qualified immunity shields government officials from liability for the violation of an individual's federal constitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate "clearly established law."
I see you your 1914 district court opinion and raise you one 1994 Supreme Court opinion, Campbell v. Acuff-Rose Music, Inc., 510 US 569, 577 (1994)
The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster."
The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.
(citations omitted) (emphasis added).
What you're citing is a quote from "The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law." The current copyright law was enacted in 1976. The 1961 report was written by the copyright office as part of a recommendation to Congress on how to revise copyright law. The report does not reflect current law and wasn't a conclusive statement of then-existing law.
As countless others have said in this thread, fair use is a minefield and its not possible for anyone other than a court to authoritatively state "this is fair use" and "this is not fair use." The law on fair use is extremely flexible and depends on the context of the use. Copying a CD to one's harddrive for personal use is generally considered fair use. Copying a CD to a friend's harddrive for their personal use is generally not considered fair use. A prof copying an academic article for his or her academic research is generally considered fair use; copying the article and handing it out to students for classroom use is generally considered fair use. A business that copies articles for students for classroom use is generally not considered classroom use.
Marijuana apparently mitigates lung cancer risks.
A major 2006 study compared the effects of tobacco and Cannabis smoke on the lungs. The outcome of the study showed that even very heavy cannabis smokers "do not appear to be at increased risk of developing lung cancer," while the same study showed a twenty-fold increase in lung cancer risk for tobacco smokers who smoked two or more packs of tobacco cigarettes a day. It is known that Cannabis smoke, like all smoke, contains carcinogens and thus has a probability of triggering lung cancer, but THC, unlike nicotine, is thought to "encourage aging cells to die earlier and therefore be less likely to undergo cancerous transformation." Cannabidiol (CBD), an isomer of THC and another major cannabinoid that is also present in cannabis, has been reported elsewhere to have anti-tumor properties as well.
Unfortunately, judge posner, and most appeals court judges, rarely ever see patent cases. Nearly all patent cases go to a special appellate court, and so most patent law & policy is set by the small group of perhaps myopic judges on the federal circuit. The fed. cir. doesn't benefit from the diversity of opinions that other appeals court enjoy.
Following your logic, a fixed definite copyright term makes more sense than one based on the author's span. If all works got a 30, 50, 70, whatever year copyright term, then some copyrights wouldn't be worth less due to a shorter duration. And determining whether a work is still under protection would be easy, as all you need to know is the publication date of the work.
Actually Vouchers can not be used at religious schools.
You need to read Zelman v. Simmons-Harris, 536 US 639 (2002).
Here's the wikipedia article if you're lazy
Short answer: using vouchers at religious schools is constitutional and is actually practiced in Ohio.
What about ASCAP and BMI who do regularly sue bars and other venues that play music without paying royalties?
ASCAP and BMI are a completely different of entity than the RIAA, or Righthaven.
The RIAA is a trade group for record companies. It performs certain functions for the record companies that would be inefficient for them to do individually - namely, lobby congress & the US trade representative, and public education campaigns about copyright law. ASCAP and BMI are not trade associations for music publishers - that's the NMPA (National Music Publishers Association).
Righthaven, apparently, is a shell company that only acquired a "right" to sue for infringement - no other rights were acquired/licensed at all. As TFA and others have stated, this is so obviously legally invalid that its surprising they actually thought it would work.
ASCAP and BMI acquire actual rights from copyright owners - namely, the public performance right. Owners of musical works (typically either a publisher or a composer/songwriter) assign to ASCAP or BMI the nonexclusive right to perform their work publicly. ASCAP and BMI gather up a whole bunch of such public performance rights, then sublicense all of those rights (a "blanket license", i.e., permission to perform any musical work in ASCAP or BMI's repertoire) to places where music might be performed - bars, restuarants, radio and tv stations, etc. Those places pay a single annual fee; all such fees are pooled by ASCAP/BMI and then distributed to the owners of musical works in proportion to how often the musical works were performed (this is usually an estimate).
ASCAP is a nonprofit, member-owned collective rights group for music publishers and writers (so, it's maybe a little bit like a trade group); BMI is a for profit collective rights group owned by NAB (National Association of Broadcasters) - so it's actually owned by a trade group of musical work *users*, rather than authors/owners.
Under copyright law, you do not have to negotiate an agreement for royalties in order to use a work in a "public performance". Instead, the law specifies a "statutory royalty" that is due whenever a work is used in a public performance, with the rate of this royalty being set by the government (the Copyright Royalty Board).
This is inaccurate.* Public performance of a musical work is an exclusive right awarded to the owners of the musical work's copyright. ASCAP and BMI are collective rights organizations, to whom the musical work copyright owners assign licenses. ASCAP and BMI get royalties from bars and any other place where music is performed (radio, tv, concert halls, restaurants, etc.) and then distribute that money to the owners of the musical works copyright.
What you're describing is the digital performance right, which is completely different. First of all, it only applies to sound recordings, which have a completely different copyright than musical works. The "authors" of a musical work are songwriters or composers; the "author" of a sound recording is a musician or "recording artist." Second, it only applies to performances of the sound recording over the internet (or other ways of digitally sending/performing a sound recording), not all public performances of sound recordings. A bar that has a sound system can play any sound recording it wants without paying the copyright owner of that sound recording - but it would have to pay for a blanket license from ASCAP and/or BMI for the public performance of the musical work.
*I do understand your confusion, though - musical works do have a compulsory license - however, it's for the mechanical reproduction of the musical work. See 17 USC 115. The limits on sound recording rights (i.e., no public performance right) and the compulsory license for digital performance rights are in 17 USC 114.
But the Internet was always "in the hands of policymakers". They funded its creation and have regulated its development.
Not really. Before the mid 1990s, "policymakers" was mostly Jon Postel...
Apparently you never heard of NSFNET, which had an acceptable use policy; commercial networks had to sign usage agreements in order to connect to the internet. In those days, one couldn't freely connect a private network to the internet just by getting an address from Jon Postel; you had to sign up with NSFNET and agree to its terms.
I have ten bucks that says, when I am my roomate's dad's age, you'll need a license to upload most, if not all, content that you want to the internet.
Technically, if the content wasn't actually created by you (i.e., you are the author), and if the content is not public domain,* then you *do* need a license - from the owner of the copyright over that content - in order to upload it.
But, I imagine that you're not railing against private ownership and control of resources. Just the conflict between government stewardship of resources and individual liberty.
* I mean "public domain" in the expansive sense - e.g., ideas are public domain, fair uses of content is public domain, etc.
This paper seems to cover some of that ground: "The Eros of Achilles: Homoerotic Bonding Among Combat Soldiers" by J Laskaris - Transnational Law & Contemporary Problems, 2000 - vol 10 p139 onwards.
Wow, awesome find.
First of all, there's a section titled "Mantaming Sparta."
Second, there is this very interesting passage:
Jonathan Shay calls attention to our culture's homophobia as inhibiting or preventing combat soldiers from expressing their full grief at the loss of close comrades - a process that he considers essential in preventing post-traumatic stress disorder and states that, ''Veterans need to voice their grief and love for their dead comrades if they are to heal. However, many have learned to keep quiet because of their culture's discomfort with love between men that is so deeply felt."
That's an aspect of homophobia / "don't ask don't tell" that few think about.
Keen was great, but his son, Duke Nukem, was funner and funny...
Keen came out on 14 December, 1990; Duke Nukem came out on July 1, 1991. Thats 7 months later. Furthermore; Keen is 8 years old in his first adventure; whereas Duke is fully grown (can't say he's "mature" though).
Lets face facts and admit that Duke Nukem is Keen's late-blossoming older brother.
what Times vs. U.S. decided was that it might or might not be illegal to publish certain classified documents. But the U.S. government couldn't practice prior restraint, couldn't bar the press from publishing any classified documents, solely on the grounds of national security. They would have to be published, then the courts could decide case-by-case whether such publication was illegal.
Reaching back into my First Amendment notes, I find that the issue is quite a bit more complicated than that.
Although the court's decision was a unanimous, unambiguous per curiam opinion... every single member of the court wrote their own opinion, and the opinions cannot be read in such a way that a there is an agreement on the rationale behind the decision.
2 justices, Black and Douglas (the good guys, in my opinion), argued that there must never be prior restraints on publishing the news.
4 justices, Brennan, Stewart, White, and Marshall, argued that prior restraints could be permissible, but only when it is certain to result in severe harm to the country (per Stewart: "direct, immediate, and irreparable damage to our nation or its people").
3 justices, Stewart, White, and Marshall, thought it was very important that no statute authorized injunctions against news publications for cases of national security.
3 justices, Harlan, Burger, and Blackmun, thought that injunctions on news publication could be constitutional. Harlan proposed a test for when injunctions could be issued: A) when the authority to prevent publication of the news would be within the President's constitutional foreign relations power (I would guess diplomatic cables would count), and B) if the decision that the publication would irreparably harm national security was made by the senior most executive official, such as the secretary of defense or state (as would also be the case for the wikileaks leak).
So, there you have it. No prior restraints, unless there's a really really good reason.
First Amendment jurisprudence is a fucking mess.
we're out of the prior restraint realm because this material has already been published.
That's right. In my haste for karmawhoring, I screwed that up - I should have said: "designating documents as secret and preventing anyone from publishing them is a 'prior restraint' and presumed unconstitutional.
They only ruled that IN THIS CASE it was Unconstitutional
Right. And I said:
presumed unconstitutional
The government has a "heavy burden" to justify prior restraints. The person who wants to publish secret documents doesn't have to justify anything. Therefore, the presumption is that the government may not prevent the publication. Of course, that presumption, like any presumption, may be overcome.
Shameless karma whoring:
New York Times Co. v. United States, 403 U.S. 713 (1971)
The unanimous opinion itself is very short; essentially, designating documents as secret and punishing anyone who publishes them is a 'prior restraint' and presumed unconstitutional.
We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U. S. Decision-Making Process on Viet Nam Policy." Post, pp. 942, 943.
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963); see also Near v. Minnesota, 283 U. S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.
What precedent? Settling a privacy class action suit by promising to pay millions to fund some kind of privacy foundation, and no payment to individual users?
Facebook did that last year when it settled the class action suit over its "beacon" program.
Genuine question then- can services such as Twitter and Facebook (which to not have any direct input into what their users send via their services) qualify as common carriers?
Being designated as a common carrier is both a blessing and a curse. Common carriers are highly regulated, and can't, for example, block their competitors access to their services. ISPs and cable companies have lobbied hard over the years to avoid being designated as common carriers by the FCC. I would presume that Twitter and Facebook would also want to avoid common carriage regulation.
Except when it's about Scientology?
The incident you're referring to was a copyright "violation," and involved a DMCA notice and take down.
Slashdot isn't liable for comments again because they're Common Carrier - they're not selecting who can post and everyone plays by the same rules...
No.
Slashdot isn't liable for certain kinds of "illegal" material (namely, defamation - i.e., libel) because of section 230 of the Telecom Act of '96. Basically, because it is a "provider of an interactive computer service," and because comments and even stories are provided by "another information content provider" (i.e., users like you and me), Slashdot is immune from any liability it would normally have for being the publisher or speaker of "illegal speech" (like defamation, but potentially also intrusions on privacy and the like).
Section 230 *does not* provide immunity for copyright infringement - instead, the DMCA's notice and take-down system gives Slashdot immunity so long as it promptly takes down infringing material after being served notice by the copyright owner. A common carrier, however, would (I think) be immune to liability for copyright infringement even with notice that a user was using its service to infringe copyrights.
Both of those safe harbors (230 and the DMCA notice and take-down) look a lot like the protections normally given to common carriers - so it's understandable that you might think that that's what they are. But its not the case. Slashdot cannot be a common carrier because it does more than "carry." It chooses what stories to publish on its website, and that kind of discretion means that it doesn't provide "common" access to its service. Further, as another poster points out, common carrier status has to be provided by law; one doesn't qualify for common carrier protections just by adhering to a certain kind of business practice.
I'm sorry. I should have just said "she's being a normal young adult."
All kids/teenagers hate it when their parents criticize their choice of how to spend their time, all kids/teenager hate it when their interests are seemingly ignored by their family, and all kids/teenagers rebel against their family. If her condition magnifies these typical reactions, then, I'm sorry, but "youth rebellion disorder" is an age-old problem that exists even without ipods and even without cerebral palsy.
Her grandmother tells her that she "plugs in" or has "plugged in", whenever she puts her headphones in and becomes dead to the physical world. She hates when her Nan tells her this, and is very impatient with her Mom, brother, and others.
This is a normal young adult being a normal young adult.
It doesn't have to be science to be useful.