It's like saying that murder is unethical regardless of the circumstances.
If you go kill someone for the hell of it, of course it's unethical, but if you kill someone through unavoidable accident, there's not really any unethical aspect to consider
Murder is the intentional killing of a human being with malice aforethought.
An unavoidable accident lacks the malice aforethought (``premeditation'') element. It is therefore not murder.
The ``just for the hell of it'' case is harder. If the killer formed the intent in advance of the act, even a small time in advance, but had the opportunity to reconsider, you probably have murder. There is no minimum amount of premeditation required, though some amount of time, enough to allow reflection and reconsideration, is required.
For the unavoidable accident, there may be ethical considerations if you acted in such a manner as to unnecessarily and unreasonably increase the danger.
Both the negligent killing and the intentional killing do produce identifiable harm to an identifiable victim, and are generally denounced as punishable evils. The injury done by the downloader of music is, in contrast, purely speculative. The case for punishing it is correspondingly weaker than the case for punishing murder or manslaughter.
Presumption of innocence is a feature of the criminal law system. I don't think it applies to civil proceedings.
Not as such, no. You also have the lower standard, preponderance of the evidence, rather than reasonable doubt.
That said, you do have a certain presumption inherent in the civil system. The party seeking to change the status quo, e.g. seeking relief, has to produce the preponderance. If the evidence is even on both sides, the party not seeking affirmative relief prevails.
Applied in the usual way, then, plaintiff has to prove his case by a preponderance of the evidence. The starting presumption is that he shall have no relief; it is his job to produce enough evidence to be a preponderance, and should not do so then he has no relief.
the reason electronic machines were pushed, was that the paper ballot's in florida were, apparently, too complex for everyone to figure out
Actually, the visible problem in Florida was from electronic voting systems, wherein the voters were supposed to perforate punched cards.
There were some problems with the punched cards, including instructions that seemed to invite voters to spoil their ballots, as well as the assignment of older, less reliable perforating devices to precincts which tended to vote for the party that did not match the governor's party.
The one place that used a purely paper system produced a reliable result, and they were home by midnight. Here in Volusia, on the other hand, we used an optical scanning system with enough associated controversy that there was a circus tent in the yard of the county building. Every hour or so an official would come out and give an uninformative update. And that was in place the week-end after the election.
There are plenty of examples of human counted paper ballot systems which do give a result within 24 hours.
That's right. Even in Florida, which was widely and correctly vilified for the electronic voting problems in 2000, had one county that got it right.
Union County used pieces of paper deposited in boxes; after the polls closed, people at each precinct took out the papers, sorted them into stacks, and announced the numbers of ballots in each stack. They had to reshuffle and recount for each election on the ballot (e.g. count for county commissioner, count for school board, count for president, &c.).
They were done counting and home by midnight. No one doubted the correctness of their count. I understand that they have since switched to modern electronic voting systems.
So, again I ask - what about cops who are working (on duty) undercover?
Again, no objection to the principle that he operates in a fish bowl. If I record his activities, though they be undercover, since he is working for the public he has a diminished expectation of privacy.
The right to watch my public servants does not reasonably diminish when they disguise themselves, whether to catch people committing victimless crimes or merely to fabricate evidence. If they are out catching actual criminals, though the ``granny squads'' do tend to be abusive, I say if they are catching actual criminals then a recording of their activity may prove to be valuable evidence.
they must be balanced by the courts. Explain, in your expansive legal expertise, why I am wrong.
Balancing is rather limited in such a case. The U.S. Constitution provides that both treaties and statute law shall be supreme law of the land, meaning that they will over-ride state law.
The U.S. Constitution limits what Congress can effectively pass. Marbury v. Madison, 5 U.S. 137. The courts get to say what the law is. Id.
Beyond that, the courts typically presume that a later-enacted thing supercedes any previosly-enacted thing, unless it provides otherwise. Therefore a later-enacted treaty would over-ride any previous statute law. It could not, however, over-ride the U.S. Constitution.
That said, however, the rights actually protected by the U.S. Constitution are rather limited. If it isn't named there, you just don't have it. U.S. Cruikshank, 92 U.S. 542. There is no express right not to be sent off to a foreign land for something that is not a crime here, such as criticizing the butchers of Beijing or sounding off against Red China generally, just as there was no right to not be killed for trying to vote in Cruikshank.
You hope for good sense from your judges. But you do get decisions like Cruikshank and Kelo; there is sometimes a gap between what we hope for and what we get.
Why, yes, I am a lawyer. But I am not your lawyer. Disregard above material.
Could an argument be made that the boxes are property of FedEx? This reminds me of the dairy companies who put legal notices all over the sturdy plastic milkcrates
Two differences, though they may be so minor that you'll consider me to be quibbling.
First, those milk crates really are the property of the dairies. They don't alien them; they use them only for the delivery of their product, and that only to companies who we will presume to have agreed to return the empties. Compare fed ex, who alien the boxes; fed ex does not retain a possessory interest in those shipping boxes.
Second, the dairies have bought legislation to make it a crime to even possess those milk crates. In Florida, it's Fla. Stat. 506.509; violation is punishable by up to a year in jail. Compare fed ex, where possession of the shipping boxes is not considered a crime.
I hope they achieve their deterrent effect by making the financial incentives to spam more dubious. I'm afraid, though, that they will only succeed in driving hardcore spammers deeper underground,
I'd be happy to drive them all to Red China. It is relatively easy to find netblocks that belong to Red China, and I just block them by reflex whenever a new one shows up.
A worse outcome would be for these people to not be driven to Red China/Brazil/Russia, but instead to be scattered in 172849 different little spam-havens (ev1/uunet/whatever) that are hard to find and detect, and which keep moving around.
It doesn't scale unless you also scale the staff,
which isn't going to happen.
That's exactly what has to happen. If you are
going to have similar numbers of voters per
precinct, which was the case for Volusia and
Union, then you have to scale the staff in order
to man all the precincts.
That's what we do. We have many times the
voters of the small county, and many times the
precincts. If we were to try to get all of our
voters through 11 precincts as in the small
county, the queue would probably stretch from
DeLand to Flagler Beach.
If California (or Dade County) insists on using a
ballot the size of a bed sheet, then it seems likely
that it'll take longer to count. Even if you have 20
issues on the ballot in California, and it takes all
night to count, I don't see a real problem. I'm going
to go to sleep, and I can check the Supervisor's web
site in the morning to see who won.
Compare the high-tech debacle we saw in S Florida
in 2000, where it took over a week to get a count that
no one other than five black-robed folks up in
Washington believe. Compare, as well, the fun
in Dade during the next local election; the new
electronic machines would not boot timely. Or
the results in Broward, where the electronic wonders
reported fewer votes than voters in a race with
exactly one issue on the ballot.
Why should staffing not scale, when it will give
us an answer we consider reasonably reliable?
I can pay a lot of poll workers $8/hour or less for
the cost of a single $2000 electronic voting
marvel.
Paper ballots work. The results are available in a
reasonable amount of time. Poll workers are much
cheaper than electronic wonders.
At present, the only charity with my
current address is the local NPR
affiliate, and they haven't abused it
to my knowledge.
They're not all so reliable. I don't
know how much they sell it, but the
Orlando
station at least sends out
rather a lot of its own junk mail.
Between the solicitations to ``give
more'' or ``additional gifts'' and
the ``trips and treasures sweepstakes''
adverts, they must spend a noticable
portion of my contribution on mailing
more adverts.
I have a P.O. box, and the adverts do
not make it out the post office door.
At least not under my power; I am sure
that someone empties the trash.
It's a real shame, too. They could
spend the effort on improving the
programming. They could, e.g.,
sack the person who
selects Marketplace or the one
who hasn't promoted Mr. Duggins to a
bigger (and out-of-state) market.
They could even use it to buy some
rope, and tie the person who puts
on all that ``space music'' in the
evenings in a chair, and make him
listen to it.
We cast votes for many things on a single ballot.
We can't just manually count slips of paper.
Disregarding the fact that, before computers, we
did that very thing, and disregarding the total lack
of evidentiary or other support offered with your
statement, I should like to know why we cannot
just manually count slips of paper.
It is by now well known that Union County, which
used paper ballots, had a reasonably correct vote
count by midnight. Perhaps less well known, but
important to get past the notion that paper ballots
are impracticable, are some details of how it was
done.
There were about 500 votes per precinct, perhaps
a few more. Counting was done at each precinct
after the polls were closed. This is important,
because we are concerned with whether such a
system can handle large numbers of ballots.
The system does in fact scale. In Volusia County,
we had many times the number of votes, but also
many times the number of precincts. So long as
you have a ``reasonable'' number of voters at each
polling place, the system scales because you have
inherent parallel processing: the poll workers at each
precinct count at the same time.
Union had several choices on single ballot forms.
Voters would indicate presidential, congressional,
and local choices. Also, I think, there were a couple
of constitutional amendments. Oh, the complexity!
Advanced ballot counting technology to the rescue!
First, they sorted the ballots into stacks based on
the first (presidential) race, and counted the papers
in each stack. Following which, the papers were
sorted into stacks based on the second race, and
again the stacks were counted.
Having seen an existence proof that it is possible
to just manually count slips of paper in the face of
multiple issues on a single ballot, I find myself
convinced that it is possible to do so.
... in Texas[,] where the PDs have a nice habit of
showing up drunk and passing out in the middle
of your capital murder case.
Certainly regrettable, if it happened. Have you a
cite, other than one from Burdine v. Johnson,
262 F.3d 336 (US 5 Cir, 2001)? In that case, it does
appear that counsel slept through the trial, but the
record as referenced in the opinion does not tell
us that the lawyer was a PD, and I get the impression that he was appointed private counsel. It also does not mention that he was drunk, as opposed to simply sleepy.
Assuming this trial is going to be
a Jury trial...
Not a particularly shrewd assumption.
A demand for jury trial must indeed
be made early on (generally, with the
complaint or answer).
That does not, however, imply that the
matter will go to trial, or if it does
that the jury will decide.
Assuming that the case survives summary
judgment, which does not appear entirely
certain, there is still the opportunity
to have a directed verdict: the J. tells
the jury that they will return a particular
result.
And, even if the jury does decide,
assuming compliance with the prerequisites,
the party against whom the verdict was
given can still request judgment not
withstanding the verdict.
In short: it is not wise to assume that
the matter will be decided by jury.
The odds do not favor it; if my memory
serves (and you would do well not to
trust me here) fewer than 10% of cases
make it to trial, and necessarily some
of those will not be governed by a jury
verdict.
<disclaimer>
I am not a lawyer.
If I were, you're not my client.
Legal advice should be had only
from persons who are members in
good standing of the [your state]
bar ass'n.
</disclaimer>
THe registered agent of a company
is [usually] a law firm.
The registered agent is often the
Florida Registered Agent Corporation,
whose purpose in life is to provide
an address at which and a person on
whom process may be served.
They'll forward the papers to counsel
or as otherwise directed. Pay him
the cost of postage.
If the registered agent is an attorney,
he's usually house counsel, paid a
salary. The salary does not vary based on
how many times he is greeted by
deputies bearing papers.
Perhaps SCO has a case on a derivative works theory.
That would say, in essence, that IBM agreed by contract
that their labors would be considered derivative of the
UNIX code base. It seems unlikely that such would be
the case; IBM surely had and has competent lawyers.
Actual derivation, as opposed to contractually agreed-to
derivation, would be of the same order as claiming that
anyone writing to the unix API [open/read/write/close, &c.]
was preparing, in their application, a derivative work.
I am not a lawyer (though I play one in court). I should
prefer to be making the argument that SCO does not have
a case, rather than otherwise, if my paycheck depended
on prevailing.
These things said, then, we ought to consider whether
coding to an interface creates derivative works. In some
cases, surely. When you fill in ``mad libs'', you are coding
to a specified interface, but the result is surely a work
derived from the original ``mad libs'' form.
On the other hand, it is hard to say that preparing a program
that uses open/read/write/close/creat/unlink is really, in any
meaningful way, preparing a derivative work of Unix. I
have, for instance, prepared such programs under CP/M;
it was truly some years ago, and I had prepared a support
library in that environment which used those names. Yet,
though I wrote to the API, it would be hard to claim that
my CP/M data reporting programs were derived from the
unix whose code I had never seen.
Likewise, many parts of the kernel, including file system
drivers, are written to an interface. This is true for linux,
and also for SCO products. I do not see the claim for
real derivation as being stronger in the case of something
written to a kernel programming interface than for
something written to an application programming interface.
The distinction between writing to a kernel programming
interface and writing to an application programming
interface is, then, a distinction without a difference.
Few courts are likely to be prepared to understand,
much less care, about the difference between the two.
This is as it should be: the programmer's labor is the
same in both cases, and should be considered to be
the same.
Of course, a contract would usually trump the factual
determination discussed above. That is, IBM could
agree that all their work actually belonged to AT&T or
successor in interest. It is also possible that IBM
could agree that all of their work was to be considered
as derivative, even though a normal factual determination
might be otherwise. Such an agreement would be what
we call a legal fiction: it would have the force of law,
even though it is contrary to plainly discernable fact.
If IBM did agree either that their work belonged to AT&T
and successors, or that their work was derivative, then
of course SCO is still obliged to show that the work in
the linux kernel is indeed that same work covered by the
contract.
Not Sufficient
However, that isn't enough. Remember that their claim
in the suit (you did read the suit) is founded
upon a theory of direct copyright violation: that SCO
intellectual property was used, not that a contractually
protected derivative work was used. That is, SCO claimed
that certain features present in linux were lifted from their
work.
It is generally understood that you must plead your cause
of action in order to recover. If you plead thing `A', you
shall not recover for thing `B'. This is not fatal: if IBM has
not responded, or upon permission if IBM has, SCO may
amend its lawsuit to assert claims based on derivative
works rather than on direct lifting.
On the whole, if I were a lawyer, which I am not,
I should still prefer to be IBM's rather than SCO's. From
where I sit, the IBM case looks stronger just from having
seen SCO's complaint.
Might I suggest that you have too many dollars
and too little sense?
Surely beer can be had there on more equable
terms; it is more healthful, and generally a more
desirable beverage to boot.
Might I also suggest that they have there too
many [local monetary units] and not enough
competition in telecommunications? Much
of Europe is said to meter even local calls,
and international calling rates are mind numbing.
It appears here that you can buy international
calling for a remarkably small price. I attribute
some of this to the fact that there are multiple
vendors.
A similar result was seen a few years
ago in long-distance costs. In 1988, it cost
more to call across the county (DeLand to NSB)
than it did to call across the country (DeLand to SF).
And both prices are much lower than in 1988,
even without adjusting for inflation.
Florida, being one of the most backward
states in the union, probably doesn't have
[anti-SLAPP statutes]
Written as though you had not checked the
statutes, and particularly had omitted
consideration of 769.295, F.S.
You might better say that this is not a
SLAPP suit, because it is not aimed at
public participation in a public process.
Thus, it is unlikely that it would be
covered by the anti-SLAPP statute.
The Florida anti-SLAPP statute does,
unfortunately, prohibit only government
entities from filing SLAPP suits. The
corporate lobbyists are very strong here.
The cost for UNDERESTIMATING manufacturing
requirements is death for your company.
No, the cost for underestimating the manufacturing requirements is in fact having less product to sell, and therefore having to sell it at a higher price. That's a problem most widget makers would love to have.
For example, I'm sure that some of the South American nations wouldn't mind adding Spam to their list of exports.
Too late. Brazil has been doing it steadily. I'm not sure what they're selling, since my Portuguese is a little weak, but they're selling a lot of it. It's a rare day that I don't get spam from at least one telesp.net.br source; lots of stuff advertising www.*.kit.net (globo.com) arrives.
No, telesp.net.br is no more effective than UUNET or Verio in blocking spam. Which is to say, as nearly as can be determined, they do nothing except cash the checks from the spammer.
...no better than a bunch of worthless spammers, and I'm glad that Verio cut them off.
If Verio cut someone off for spamming, that alone ought to be considered newsworthy here on slashdot. Normally, Verio seems to be a spam support network.
...they are suing the protesters, and not all the survivors, for what sounds like an irresponsible protest rather than a peaceful one. If someone showed up at my company's door with deadly chemicals, we'd have to shut the place down for security reasons, at a cost to the business.
Well said.!
If I dump poison in your back yard, and you bring some of the contaminated soil back to my office, I am certainly damaged in that my business is disrupted. I would reasonably expect my legal staff to attempt to recover from you. It's what the legal staff does, after all.
However, there may be a problem in quantifying the damage. Since the business did not shut down, and only one employee even came out to see the protest, and that only for a short time, it is going to be rather a stretch to show damages in of $10,000.
Slashdot Mirror
Murder is the intentional killing of a human being with malice aforethought.
An unavoidable accident lacks the malice aforethought (``premeditation'') element. It is therefore not murder.
The ``just for the hell of it'' case is harder. If the killer formed the intent in advance of the act, even a small time in advance, but had the opportunity to reconsider, you probably have murder. There is no minimum amount of premeditation required, though some amount of time, enough to allow reflection and reconsideration, is required.
For the unavoidable accident, there may be ethical considerations if you acted in such a manner as to unnecessarily and unreasonably increase the danger.
Both the negligent killing and the intentional killing do produce identifiable harm to an identifiable victim, and are generally denounced as punishable evils. The injury done by the downloader of music is, in contrast, purely speculative. The case for punishing it is correspondingly weaker than the case for punishing murder or manslaughter.
The practice of referring to "Armonk" is certainly not without its adherents, especially among old-school IBM users.
Not as such, no. You also have the lower standard, preponderance of the evidence, rather than reasonable doubt.
That said, you do have a certain presumption inherent in the civil system. The party seeking to change the status quo, e.g. seeking relief, has to produce the preponderance. If the evidence is even on both sides, the party not seeking affirmative relief prevails.
Applied in the usual way, then, plaintiff has to prove his case by a preponderance of the evidence. The starting presumption is that he shall have no relief; it is his job to produce enough evidence to be a preponderance, and should not do so then he has no relief.
Actually, the visible problem in Florida was from electronic voting systems, wherein the voters were supposed to perforate punched cards.
There were some problems with the punched cards, including instructions that seemed to invite voters to spoil their ballots, as well as the assignment of older, less reliable perforating devices to precincts which tended to vote for the party that did not match the governor's party.
The one place that used a purely paper system produced a reliable result, and they were home by midnight. Here in Volusia, on the other hand, we used an optical scanning system with enough associated controversy that there was a circus tent in the yard of the county building. Every hour or so an official would come out and give an uninformative update. And that was in place the week-end after the election.
That's right. Even in Florida, which was widely and correctly vilified for the electronic voting problems in 2000, had one county that got it right.
Union County used pieces of paper deposited in boxes; after the polls closed, people at each precinct took out the papers, sorted them into stacks, and announced the numbers of ballots in each stack. They had to reshuffle and recount for each election on the ballot (e.g. count for county commissioner, count for school board, count for president, &c.).
They were done counting and home by midnight. No one doubted the correctness of their count. I understand that they have since switched to modern electronic voting systems.
Again, no objection to the principle that he operates in a fish bowl. If I record his activities, though they be undercover, since he is working for the public he has a diminished expectation of privacy.
The right to watch my public servants does not reasonably diminish when they disguise themselves, whether to catch people committing victimless crimes or merely to fabricate evidence. If they are out catching actual criminals, though the ``granny squads'' do tend to be abusive, I say if they are catching actual criminals then a recording of their activity may prove to be valuable evidence.
Balancing is rather limited in such a case. The U.S. Constitution provides that both treaties and statute law shall be supreme law of the land, meaning that they will over-ride state law.
The U.S. Constitution limits what Congress can effectively pass. Marbury v. Madison, 5 U.S. 137. The courts get to say what the law is. Id.
Beyond that, the courts typically presume that a later-enacted thing supercedes any previosly-enacted thing, unless it provides otherwise. Therefore a later-enacted treaty would over-ride any previous statute law. It could not, however, over-ride the U.S. Constitution.
That said, however, the rights actually protected by the U.S. Constitution are rather limited. If it isn't named there, you just don't have it. U.S. Cruikshank, 92 U.S. 542. There is no express right not to be sent off to a foreign land for something that is not a crime here, such as criticizing the butchers of Beijing or sounding off against Red China generally, just as there was no right to not be killed for trying to vote in Cruikshank.
You hope for good sense from your judges. But you do get decisions like Cruikshank and Kelo; there is sometimes a gap between what we hope for and what we get.
Why, yes, I am a lawyer. But I am not your lawyer. Disregard above material.
Two differences, though they may be so minor that you'll consider me to be quibbling.
First, those milk crates really are the property of the dairies. They don't alien them; they use them only for the delivery of their product, and that only to companies who we will presume to have agreed to return the empties. Compare fed ex, who alien the boxes; fed ex does not retain a possessory interest in those shipping boxes.
Second, the dairies have bought legislation to make it a crime to even possess those milk crates. In Florida, it's Fla. Stat. 506.509; violation is punishable by up to a year in jail. Compare fed ex, where possession of the shipping boxes is not considered a crime.
I'd be happy to drive them all to Red China. It is relatively easy to find netblocks that belong to Red China, and I just block them by reflex whenever a new one shows up.
A worse outcome would be for these people to not be driven to Red China/Brazil/Russia, but instead to be scattered in 172849 different little spam-havens (ev1/uunet/whatever) that are hard to find and detect, and which keep moving around.
The texture is discernably different between the different denominations. This surely helps.
Probably true. I was in a wal-mart a few years ago and noticed the ``buy american'' signs. They were printed in Red China.
That's exactly what has to happen. If you are going to have similar numbers of voters per precinct, which was the case for Volusia and Union, then you have to scale the staff in order to man all the precincts.
That's what we do. We have many times the voters of the small county, and many times the precincts. If we were to try to get all of our voters through 11 precincts as in the small county, the queue would probably stretch from DeLand to Flagler Beach.
If California (or Dade County) insists on using a ballot the size of a bed sheet, then it seems likely that it'll take longer to count. Even if you have 20 issues on the ballot in California, and it takes all night to count, I don't see a real problem. I'm going to go to sleep, and I can check the Supervisor's web site in the morning to see who won.
Compare the high-tech debacle we saw in S Florida in 2000, where it took over a week to get a count that no one other than five black-robed folks up in Washington believe. Compare, as well, the fun in Dade during the next local election; the new electronic machines would not boot timely. Or the results in Broward, where the electronic wonders reported fewer votes than voters in a race with exactly one issue on the ballot.Why should staffing not scale, when it will give us an answer we consider reasonably reliable? I can pay a lot of poll workers $8/hour or less for the cost of a single $2000 electronic voting marvel.
Paper ballots work. The results are available in a reasonable amount of time. Poll workers are much cheaper than electronic wonders.
They're not all so reliable. I don't know how much they sell it, but the Orlando station at least sends out rather a lot of its own junk mail. Between the solicitations to ``give more'' or ``additional gifts'' and the ``trips and treasures sweepstakes'' adverts, they must spend a noticable portion of my contribution on mailing more adverts.
I have a P.O. box, and the adverts do not make it out the post office door. At least not under my power; I am sure that someone empties the trash.
It's a real shame, too. They could spend the effort on improving the programming. They could, e.g., sack the person who selects Marketplace or the one who hasn't promoted Mr. Duggins to a bigger (and out-of-state) market. They could even use it to buy some rope, and tie the person who puts on all that ``space music'' in the evenings in a chair, and make him listen to it.
Oops, mod [-1:flame]. But it felt good.
Disregarding the fact that, before computers, we did that very thing, and disregarding the total lack of evidentiary or other support offered with your statement, I should like to know why we cannot just manually count slips of paper.
It is by now well known that Union County, which used paper ballots, had a reasonably correct vote count by midnight. Perhaps less well known, but important to get past the notion that paper ballots are impracticable, are some details of how it was done.
There were about 500 votes per precinct, perhaps a few more. Counting was done at each precinct after the polls were closed. This is important, because we are concerned with whether such a system can handle large numbers of ballots. The system does in fact scale. In Volusia County, we had many times the number of votes, but also many times the number of precincts. So long as you have a ``reasonable'' number of voters at each polling place, the system scales because you have inherent parallel processing: the poll workers at each precinct count at the same time.
Union had several choices on single ballot forms. Voters would indicate presidential, congressional, and local choices. Also, I think, there were a couple of constitutional amendments. Oh, the complexity!
Advanced ballot counting technology to the rescue! First, they sorted the ballots into stacks based on the first (presidential) race, and counted the papers in each stack. Following which, the papers were sorted into stacks based on the second race, and again the stacks were counted.
Having seen an existence proof that it is possible to just manually count slips of paper in the face of multiple issues on a single ballot, I find myself convinced that it is possible to do so.
Certainly regrettable, if it happened. Have you a cite, other than one from Burdine v. Johnson, 262 F.3d 336 (US 5 Cir, 2001)? In that case, it does appear that counsel slept through the trial, but the record as referenced in the opinion does not tell us that the lawyer was a PD, and I get the impression that he was appointed private counsel. It also does not mention that he was drunk, as opposed to simply sleepy.
Not a particularly shrewd assumption. A demand for jury trial must indeed be made early on (generally, with the complaint or answer).
That does not, however, imply that the matter will go to trial, or if it does that the jury will decide. Assuming that the case survives summary judgment, which does not appear entirely certain, there is still the opportunity to have a directed verdict: the J. tells the jury that they will return a particular result.
And, even if the jury does decide, assuming compliance with the prerequisites, the party against whom the verdict was given can still request judgment not withstanding the verdict.
In short: it is not wise to assume that the matter will be decided by jury. The odds do not favor it; if my memory serves (and you would do well not to trust me here) fewer than 10% of cases make it to trial, and necessarily some of those will not be governed by a jury verdict.
<disclaimer> I am not a lawyer. If I were, you're not my client. Legal advice should be had only from persons who are members in good standing of the [your state] bar ass'n. </disclaimer>
The registered agent is often the Florida Registered Agent Corporation, whose purpose in life is to provide an address at which and a person on whom process may be served. They'll forward the papers to counsel or as otherwise directed. Pay him the cost of postage.
If the registered agent is an attorney, he's usually house counsel, paid a salary. The salary does not vary based on how many times he is greeted by deputies bearing papers.
Perhaps SCO has a case on a derivative works theory. That would say, in essence, that IBM agreed by contract that their labors would be considered derivative of the UNIX code base. It seems unlikely that such would be the case; IBM surely had and has competent lawyers. Actual derivation, as opposed to contractually agreed-to derivation, would be of the same order as claiming that anyone writing to the unix API [open/read/write/close, &c.] was preparing, in their application, a derivative work.
I am not a lawyer (though I play one in court). I should prefer to be making the argument that SCO does not have a case, rather than otherwise, if my paycheck depended on prevailing.
These things said, then, we ought to consider whether coding to an interface creates derivative works. In some cases, surely. When you fill in ``mad libs'', you are coding to a specified interface, but the result is surely a work derived from the original ``mad libs'' form.
On the other hand, it is hard to say that preparing a program that uses open/read/write/close/creat/unlink is really, in any meaningful way, preparing a derivative work of Unix. I have, for instance, prepared such programs under CP/M; it was truly some years ago, and I had prepared a support library in that environment which used those names. Yet, though I wrote to the API, it would be hard to claim that my CP/M data reporting programs were derived from the unix whose code I had never seen.
Likewise, many parts of the kernel, including file system drivers, are written to an interface. This is true for linux, and also for SCO products. I do not see the claim for real derivation as being stronger in the case of something written to a kernel programming interface than for something written to an application programming interface.
The distinction between writing to a kernel programming interface and writing to an application programming interface is, then, a distinction without a difference. Few courts are likely to be prepared to understand, much less care, about the difference between the two. This is as it should be: the programmer's labor is the same in both cases, and should be considered to be the same.
Of course, a contract would usually trump the factual determination discussed above. That is, IBM could agree that all their work actually belonged to AT&T or successor in interest. It is also possible that IBM could agree that all of their work was to be considered as derivative, even though a normal factual determination might be otherwise. Such an agreement would be what we call a legal fiction: it would have the force of law, even though it is contrary to plainly discernable fact.
If IBM did agree either that their work belonged to AT&T and successors, or that their work was derivative, then of course SCO is still obliged to show that the work in the linux kernel is indeed that same work covered by the contract.
Not Sufficient
However, that isn't enough. Remember that their claim in the suit (you did read the suit) is founded upon a theory of direct copyright violation: that SCO intellectual property was used, not that a contractually protected derivative work was used. That is, SCO claimed that certain features present in linux were lifted from their work.
It is generally understood that you must plead your cause of action in order to recover. If you plead thing `A', you shall not recover for thing `B'. This is not fatal: if IBM has not responded, or upon permission if IBM has, SCO may amend its lawsuit to assert claims based on derivative works rather than on direct lifting.
On the whole, if I were a lawyer, which I am not, I should still prefer to be IBM's rather than SCO's. From where I sit, the IBM case looks stronger just from having seen SCO's complaint.
[-1, offtopic]
Might I suggest that you have too many dollars and too little sense? Surely beer can be had there on more equable terms; it is more healthful, and generally a more desirable beverage to boot.
Might I also suggest that they have there too many [local monetary units] and not enough competition in telecommunications? Much of Europe is said to meter even local calls, and international calling rates are mind numbing.
It appears here that you can buy international calling for a remarkably small price. I attribute some of this to the fact that there are multiple vendors.
A similar result was seen a few years ago in long-distance costs. In 1988, it cost more to call across the county (DeLand to NSB) than it did to call across the country (DeLand to SF). And both prices are much lower than in 1988, even without adjusting for inflation.
Written as though you had not checked the statutes, and particularly had omitted consideration of 769.295, F.S.
You might better say that this is not a SLAPP suit, because it is not aimed at public participation in a public process. Thus, it is unlikely that it would be covered by the anti-SLAPP statute.
The Florida anti-SLAPP statute does, unfortunately, prohibit only government entities from filing SLAPP suits. The corporate lobbyists are very strong here.
SCO's material is a complaint, not a brief.
Too late. Brazil has been doing it steadily. I'm not sure what they're selling, since my Portuguese is a little weak, but they're selling a lot of it. It's a rare day that I don't get spam from at least one telesp.net.br source; lots of stuff advertising www.*.kit.net (globo.com) arrives.
No, telesp.net.br is no more effective than UUNET or Verio in blocking spam. Which is to say, as nearly as can be determined, they do nothing except cash the checks from the spammer.
If Verio cut someone off for spamming, that alone ought to be considered newsworthy here on slashdot. Normally, Verio seems to be a spam support network.
Well said.!
If I dump poison in your back yard, and you bring some of the contaminated soil back to my office, I am certainly damaged in that my business is disrupted. I would reasonably expect my legal staff to attempt to recover from you. It's what the legal staff does, after all.
However, there may be a problem in quantifying the damage. Since the business did not shut down, and only one employee even came out to see the protest, and that only for a short time, it is going to be rather a stretch to show damages in of $10,000.