If there is a cloud of GPL-related potential litigation seen surrounding Novell, all its done is traded one potential source of litigation for many potential sources of litigation. There is an essential difference between a threat of litigation from Microsoft, and a similar threat from any grassroots community. MS has the cash on hand to fund litigation until they've emptied the pockets of nearly any opponent - they can file motion after motion which you must reply to or face the very real possibility that the judge will summarily rule in MS's favor (since you failed to respond). The resulting legal bills are extremely cost-prohibitive.
An honest litigant dosen't need to use these tactics, they are the techniques of the abuser and the oppressor company, but they work, and there are lawyers who will do this for Microsoft, RIAA, and other sources of pain and suffering.
Microsoft would be willing to bear these costs, because they see a need to confront the open source movment NOW before Google shows the world how to get run everything through a web browser, and open office winds up sitting in front of technical evaluators at middle sized companies. Putting the stink of this kind of litigation - branding open source software as an illegal movment which steals and cheats the system, will drive buisiness back towards main stream solutions. As of right now, MS is the only show in town that qualifies.
This is another in a long chain of life altering moments that you should probably write about in your diary - today I saw MS launch the second stage of its war on linux.
I don't know why this guy is leaving. This is a good thing all the way around for the Linux community. I have large customers (people who spend money on software AND use Open Source) who run Windows and Linux side by side. Their NUMBER ONE complaint has been lack of interoperability. They say that they will definitely continue to run Linux in their environment and will probably switch to SUSE Linux because of this agreement. Here's the problem 1) MS has only made this deal with Novell - with whom it has a long history of competitive co-operation to Novell's detriment. 2) Ballmer has already started struting about how this is "only fair" and using it as a club to suggest to linux users that not running SuSe leaves them liable for patent infringment - attempting to beat them away from the much more popular Red Hat, a company which also happens to be far more comitted to the open source development format.
This is a bribe to one company, intended to set a precedent which MS will then use on the others. I predict based on my reading of the documents and MS's past behaviour that MS is preparing suits now, to file against Red Hat's customers, and the company itself.
Eliminating the party who is stubbornly opposed to you makes conquering the rest so much easier.
You don't think that MS and Novell have had teams of lawyers going over everything for this deal, including the GPL. When it comes down to it, it's the letter of the contract that matters, not the intent that was in the minds of the writers. You are about 170 degrees off true (mostly wrong, but not all wrong). A written contract is always subject to interpretation of meaning, definition of words, etc. The more complex the terms used in a contract the more likely it is to be open to interpretation. In American Jurisprudence, the normal goal in interpreting a contract is to reach a true understanding of the intent of the parties to the contract. Here, the parties are the GPL community and Novell/MS. The GPL includes several clear statments of intent - to create freely available open source software, to encourage contribution, and to prevent abuse by parties who would seek to seize that software and claim it for their own.
I'm not going to take the time to teach class in contracts, but the long and short is that judges (usually) interpret for intent, punish those who seek to abuse ambiguity, and interpret toward a useable contract (if an interpretation makes the contract void, they go with a different interpretation).
If I write a contract to deliver a dozen roses, but for some reason I think that carnation is called a rose and instead deliver a dozen carnations, I will be held in breach of contract. It doesn't matter what my intent was if I framed the contract improperly to ensure my intent. That's actually not true. If the mistake is unilateral (only the other party made a mistake and you were not aware of it) then they are probably in breach - however, if any element of the contract suggests that the mistake was apparent at the time of contract (the price is far too low, there is evidence that you were show a picture of the final product, etc) you're boned. Judges will tend take a narrow view of parties who attempt to abuse contract language to enforce and unfair deal. If it is clear that the given interpretation is decidedly one sided, or that an interpretation requires ignoring common use of language and interpreted meaning of the contract - they will see it for what it is, abuse of the legal system, and rule accordingly.
The assertion is that Novell is in violation of the GPL. You can't assert or rather, can't prove that something isn't. I didn't ask you to prove it, just to argue it. Arguments (as used in court) discuss questions of intent, meaning of text, possible conflicts, and proposed remedies.
To the above ACs who feel that delcaring that Novell is not technically breaching the letter of the contract means that the contract is not breached, do some reading up on contracts. The words are open to interpretation - with the goal of divining the intent of the parties. Knowingly misconstruing the meaning of a contract to evade its obvious intent is a breach of contract - according to Englo-American juris prudence.
I'm rehashing the facts as presented in the discussion above this. You don't have to take my word for it, there are plenty of resources available on the net - in journals - and in the court documents. (I can't link to the latter two because they are locked inside subscription systems, but there should be alternate methods of access if you're interested enough to look. I didn't use them as direct reference here).
I did perform the test - and it did burn the heck out of my finger (I had expected it not to, since I used to be on your side of the fence about this case). About 15 minutes later it was cool enough to drink.. if still uncomfortable. I think most people that drink McDonalds coffee regularly will be familar with the sensation of burning your tounge when you don't wait long enough... it takes a day or two to go away - but dosen't cause real harm if you sip only a little bit and don't let it sit on your tounge... which reflex action handles for you.
The only concise reference to starbucks tempatures indicates that if you order your drink "extra hot" it comes at 180 degrees
Late Update: Starbucks does indeed make "extra-hot" lattes for those who request one, according to a company spokesman. "[T]hey will receive a beverage at approximately 180 degrees. Starbucks milk-based beverages are normally prepared at temperatures between 150-170 degrees," Alan Hilowitz told me in an email. Here
I'm sure I could dig up their official specs with enough effort, but.. work calls.
I suspect you're going to disagree with this post as well - so let me head you off: of course you have the right to disagree what is reasonable - but try to remember that there were 12-14 citizens who listend to the testimony from both sides in this case and came to the determination that McDonalds willfully and knowingly created a danger to the public. You may find this site more to your likeing, which indicates that the NCSA does recomend serving coffee that hot, but the linked sites go on to mention that most restaurants don't do this because it's dangerous when you're using a styrofoam cup that retains heat.
I disagree - but them I'm a firm democrat partisan.. so maybe that's why.
Both parties are still composed of individuals - currently both are trying to find an identity. The individuals that compose the parties are acting foolishly in a time of crisis and falling into line where that is not what is best for the country. It's an unfortunate human trait to conform when afraid. Many of those individuals got a good scare in the primary races this time around, which will hopefully scare them back into action.
I'd rather be right here for the good of the country - but I'll admit I see your point. I'm waiting to see what happens in january / february.
A law was passed which grants federal agents free access to e-mail storred on ISP servers. They are thus "In the open" as in, stored where they can be accesed with a sheet of government parchment.
Please don't shoot the messenger, I'm just trying to break the argument at hand (plausible under the law as it stands) from the straw man presented.
We've obviously been doing better than Russia and most or all of the other former Soviet republics, and capitalism clearly triumphed over communism, but when it comes to personal freedoms, we're doing to ourselves what we feared the Soviets would do to us. Did we really come out on top? Try to remember that for the McCarthy era Americans, the USSR was Stalanist ("I killed more innocents than Hitler by a factor greater than ten") Russia. During the height of the cold war these rights were often shelved (J. Edgar hoover anyone?) in favor of protecting the cornerstone rights of liberty, and life. Looking back we judge them harshly. I have no doubt my children will likewise look back at us and wonder what was wrong in our heads.
We may have adopted the Gulag, the night police and the shadow government, but at least we retain the power to remove the party from office - that's how you can judge our success or failure. When one party claims dominance and owns the system so thoroughly that they become entrenched, then we'll have lost.
Sorry, your right I took off in the direction of the case presented in the article. Under the facts you present you're right. But if your friend willingly handed over the files, such a use would fall back into the hands of the goverment's argument.
This is similar to the way in which a government agent cannot record your speech without a warrant or permission (if not spoken in public, etc, usual caveats) but if a private person does so in a way that is not counter to state law, the feds can use that evidence and it is not hearsay - it becomes material evidence in its own right.
The government's argument is that no warrant is necessary since your documents are stored in the open. The ISPs hand over the data willingly.
Thus, all that is necessary is to maintain the chain of evidence such that it is clear who wrote it, who recieved it, and who touched it between sending and its appearance in court.
Use according to custom of "open and obvious" dangers is generally not recoverable. In this case, McDonalds served coffee well in excess of expected or normal tempature. They admitted at trial that the product could not be safely used as a customer would expect to use coffee from another vendor. McDonalds corporate HQ mandated that coffee be served at 180-190F, that is 50-60 degrees hotter than the industry average. Third degree burns would occour within seconds of contact, 2-6 to be specific.
It is also a common myth that the lady in question was driving, or in a moving vehicle (both hazardous activities) she was the passenger (her grandson was driving) and they had parked so she could add cream and sugar to her coffee.
As a note to the fairness of the system, the jury applied a theory of contributory negligence to divide the cost of actual damages (around $150,000) between the lady and McDonalds (20/80 split). The large reward came from punitive damages after evidence was produced that McDonalds knew that several other accidents had occoured, that people had been hospitalized and recieved major and permanent scarring as a result of their conduct, and that their conduct was outside of the normal behavior for a restaurant of their type and scale. The judge reduced the penalty to within the scale generally approved of by the supreme court, somewhere between 2 and 4 times the actual damages. Again, to impose a sense of scale, McDonalds began by refusing the woman's offer of a $20,000 payment to recover for her hospital bills, which McDonalds refused. Records of buisiness at that time showed that McDonalds made over 1.3 Million dollars per day from coffee sales alone.
The message and intent of the court (theoretically the Jury) was to tell McDonalds to lower the tempature of their coffee and put up a warning stating that the beverage could not be consumed as sold (again, above and beyond "normal" coffee). McDonalds briefly lowered the tempature of their coffee - but it is now served at those high tempatures again with several warnings - and importantly - coffee cups that have been designed not to fracture as easily - in keeping with the unusual heat of the product they contain.
If you want a sampling, go down to McDonalds, get a fresh cup of coffee, and stick your finger in (just the tip). You can do that with starbucks for a few seconds without getting burned. My torts prof challenged us to do this to prove the same point I'm trying to make.. you may be suprised how badly it hurts, and how quickly it burns.
death of Aeris in Final Fantasy VII. Man, I wish people would stop flogging that dead horse. Was I really the only one who wanted her to die? Well.. you and Tifa.:D
Sony, stop letting Phil Harrison talk! He takes something based in some truth (PS3 launch titles don't use the systems full potential), then states it in a way that makes him look ignorant. When your represenative looks like an idiot, so do you!
I have 2 hammers and a chain saw in my tool shed. When I need to cut down a tree I don't bring out the hammers just so I can say I used 100% of the features of my tool shed. Likewise for hardware.
Maybe you cried when ET died. The only way you could feel the same way in a game is if you had nothing to do. Perhaps there will be hybrid entertainment forms in the future having emotionally immersive and task immersive components. Hold on.. I'm having a flash of insight!
Perhaps there can be a break in the action.. a cut away from control.. in which you would passively watch the action like in a play or movie.. hmm.. but what shall we call my mad idea?
McDonald's heated their coffee to obscene heats (used preasure to keep it from flashing to steam) while pressing it through the grounds in order to save money on grounds. We do something similar with espresso - but espresso runs through open air for a few inches in a tiny trickle - this allows it to cool. Any home coffee maker or espresso machine produces coffee that is safe (if uncomfortable) to drink straight from the pot. This would kill you.
Again, the whole reason that case succeeded (remember, this was a jury trial) was that McDonalds was producing a product that was abnormally dangerous for a product of its type. We expect coffee to be hot, not lethal. If you can't grasp that distinction, then imagine the following little play - your mother stops to order coffee from Starbucks - on the way out of the store (after adding milk and sugar, all that) she sips her coffee.. the heat of the liquid sears her lips, causing them to bubble and begin to fill with puss immediately. Her tounge and the back of her throat are also burned. Her airway is closed off and she has trouble speaking with her tounge which hurts to move. As she tries to ask for help the coffee slips and splashes over the person next to her - this coffee is so hot that through his clothes this man is burned baddly enough to be hospitalized.
McDonald's settled several suits involving injuries to the mouth and stomach out of court. This particular suit caught so much attention because the woman was hospitalized.
Here's a quick summary:
Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson's car having purchased a cup of McDonald's coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald's for $20,000. However, McDonald's refused to settle. The jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald's callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. See this site for some detail. Highlights include:
Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds;
McDonald's admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years -- the risk was brought to its attention through numerous other claims and suits, to no avail; and,
In refusing to grant a new trial in the case, Judge Robert Scott called McDonald's behavior "callous." Moreover, "the day after the verdict, the news media documented that coffee at the McDonald's in Albuquerque [where Liebeck was burned] is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that], the margin of safety has been increased as a direct consequence of this verdict." Id. You don't have to care for the welfare of others. I choose to.
Slashdot Mirror
An honest litigant dosen't need to use these tactics, they are the techniques of the abuser and the oppressor company, but they work, and there are lawyers who will do this for Microsoft, RIAA, and other sources of pain and suffering.
Microsoft would be willing to bear these costs, because they see a need to confront the open source movment NOW before Google shows the world how to get run everything through a web browser, and open office winds up sitting in front of technical evaluators at middle sized companies. Putting the stink of this kind of litigation - branding open source software as an illegal movment which steals and cheats the system, will drive buisiness back towards main stream solutions. As of right now, MS is the only show in town that qualifies.
This is another in a long chain of life altering moments that you should probably write about in your diary - today I saw MS launch the second stage of its war on linux.
-GiH
I'm not involved in coding for the project or in GPL litigation.. however others who are have posted below. Check it out.
Here's one argument on how Novell is breaching the GPL: sample
I'd do more linking.. but it's lunch time.. [runs off to meet fiance]
-GiH
This is a bribe to one company, intended to set a precedent which MS will then use on the others. I predict based on my reading of the documents and MS's past behaviour that MS is preparing suits now, to file against Red Hat's customers, and the company itself.
Eliminating the party who is stubbornly opposed to you makes conquering the rest so much easier.
-GiH
If I write a contract to deliver a dozen roses, but for some reason I think that carnation is called a rose and instead deliver a dozen carnations, I will be held in breach of contract. It doesn't matter what my intent was if I framed the contract improperly to ensure my intent. That's actually not true. If the mistake is unilateral (only the other party made a mistake and you were not aware of it) then they are probably in breach - however, if any element of the contract suggests that the mistake was apparent at the time of contract (the price is far too low, there is evidence that you were show a picture of the final product, etc) you're boned. Judges will tend take a narrow view of parties who attempt to abuse contract language to enforce and unfair deal. If it is clear that the given interpretation is decidedly one sided, or that an interpretation requires ignoring common use of language and interpreted meaning of the contract - they will see it for what it is, abuse of the legal system, and rule accordingly.I'm not going to take the time to teach class in contracts, but the long and short is that judges (usually) interpret for intent, punish those who seek to abuse ambiguity, and interpret toward a useable contract (if an interpretation makes the contract void, they go with a different interpretation).
Wikipedia has some information on mistake, and also interpretation: Mistake / Interpretation of Tems.
-GiH
To the above ACs who feel that delcaring that Novell is not technically breaching the letter of the contract means that the contract is not breached, do some reading up on contracts. The words are open to interpretation - with the goal of divining the intent of the parties. Knowingly misconstruing the meaning of a contract to evade its obvious intent is a breach of contract - according to Englo-American juris prudence.
-GiH
Not a lawyer, just a student.
Have any argument to back up your bald asertion?
-GiH
Google "wii available ship date" and similar - there are sites leaking the shipping manifests.
-GiH
I did perform the test - and it did burn the heck out of my finger (I had expected it not to, since I used to be on your side of the fence about this case). About 15 minutes later it was cool enough to drink.. if still uncomfortable. I think most people that drink McDonalds coffee regularly will be familar with the sensation of burning your tounge when you don't wait long enough... it takes a day or two to go away - but dosen't cause real harm if you sip only a little bit and don't let it sit on your tounge... which reflex action handles for you.
The only concise reference to starbucks tempatures indicates that if you order your drink "extra hot" it comes at 180 degrees
Late Update: Starbucks does indeed make "extra-hot" lattes for those who request one, according to a company spokesman. "[T]hey will receive a beverage at approximately 180 degrees. Starbucks milk-based beverages are normally prepared at temperatures between 150-170 degrees," Alan Hilowitz told me in an email. HereI'm sure I could dig up their official specs with enough effort, but.. work calls.
I suspect you're going to disagree with this post as well - so let me head you off: of course you have the right to disagree what is reasonable - but try to remember that there were 12-14 citizens who listend to the testimony from both sides in this case and came to the determination that McDonalds willfully and knowingly created a danger to the public. You may find this site more to your likeing, which indicates that the NCSA does recomend serving coffee that hot, but the linked sites go on to mention that most restaurants don't do this because it's dangerous when you're using a styrofoam cup that retains heat.
-GiH
I disagree - but them I'm a firm democrat partisan.. so maybe that's why.
Both parties are still composed of individuals - currently both are trying to find an identity. The individuals that compose the parties are acting foolishly in a time of crisis and falling into line where that is not what is best for the country. It's an unfortunate human trait to conform when afraid. Many of those individuals got a good scare in the primary races this time around, which will hopefully scare them back into action.
I'd rather be right here for the good of the country - but I'll admit I see your point. I'm waiting to see what happens in january / february.
-GiH
Two slashdotters reached agreement in a thread? Brace for armagedon!
:D
-GiH
No argument there. I was just stating the government's argument, no point in letting the water get muddy.
-GiH
Please don't shoot the messenger, I'm just trying to break the argument at hand (plausible under the law as it stands) from the straw man presented.
-GiH
We may have adopted the Gulag, the night police and the shadow government, but at least we retain the power to remove the party from office - that's how you can judge our success or failure. When one party claims dominance and owns the system so thoroughly that they become entrenched, then we'll have lost.
-GiH
This is similar to the way in which a government agent cannot record your speech without a warrant or permission (if not spoken in public, etc, usual caveats) but if a private person does so in a way that is not counter to state law, the feds can use that evidence and it is not hearsay - it becomes material evidence in its own right.
-GiH
The government's argument is that no warrant is necessary since your documents are stored in the open. The ISPs hand over the data willingly.
Thus, all that is necessary is to maintain the chain of evidence such that it is clear who wrote it, who recieved it, and who touched it between sending and its appearance in court.
-GiH
innovate?
No, too time consuming.. I got it, SHUT EM DOWN!
-GiH
It is also a common myth that the lady in question was driving, or in a moving vehicle (both hazardous activities) she was the passenger (her grandson was driving) and they had parked so she could add cream and sugar to her coffee.
As a note to the fairness of the system, the jury applied a theory of contributory negligence to divide the cost of actual damages (around $150,000) between the lady and McDonalds (20/80 split). The large reward came from punitive damages after evidence was produced that McDonalds knew that several other accidents had occoured, that people had been hospitalized and recieved major and permanent scarring as a result of their conduct, and that their conduct was outside of the normal behavior for a restaurant of their type and scale. The judge reduced the penalty to within the scale generally approved of by the supreme court, somewhere between 2 and 4 times the actual damages. Again, to impose a sense of scale, McDonalds began by refusing the woman's offer of a $20,000 payment to recover for her hospital bills, which McDonalds refused. Records of buisiness at that time showed that McDonalds made over 1.3 Million dollars per day from coffee sales alone.
The message and intent of the court (theoretically the Jury) was to tell McDonalds to lower the tempature of their coffee and put up a warning stating that the beverage could not be consumed as sold (again, above and beyond "normal" coffee). McDonalds briefly lowered the tempature of their coffee - but it is now served at those high tempatures again with several warnings - and importantly - coffee cups that have been designed not to fracture as easily - in keeping with the unusual heat of the product they contain.
If you want a sampling, go down to McDonalds, get a fresh cup of coffee, and stick your finger in (just the tip). You can do that with starbucks for a few seconds without getting burned. My torts prof challenged us to do this to prove the same point I'm trying to make.. you may be suprised how badly it hurts, and how quickly it burns.
-GiH
Look at me.. I've been playing for years and I'm bleeding out right now.
-GiH
-GiH
-GiH
Perhaps there can be a break in the action.. a cut away from control.. in which you would passively watch the action like in a play or movie.. hmm.. but what shall we call my mad idea?
:).
-GiH
Don't get angry, I'm just joshin ya
He was just describing a typical day on the job at Sony, begining with fear, and ending with death or drug use.
-GiH
-GiH
-GiH
Again, the whole reason that case succeeded (remember, this was a jury trial) was that McDonalds was producing a product that was abnormally dangerous for a product of its type. We expect coffee to be hot, not lethal. If you can't grasp that distinction, then imagine the following little play - your mother stops to order coffee from Starbucks - on the way out of the store (after adding milk and sugar, all that) she sips her coffee.. the heat of the liquid sears her lips, causing them to bubble and begin to fill with puss immediately. Her tounge and the back of her throat are also burned. Her airway is closed off and she has trouble speaking with her tounge which hurts to move. As she tries to ask for help the coffee slips and splashes over the person next to her - this coffee is so hot that through his clothes this man is burned baddly enough to be hospitalized.
McDonald's settled several suits involving injuries to the mouth and stomach out of court. This particular suit caught so much attention because the woman was hospitalized.
Here's a quick summary:
Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson's car having purchased a cup of McDonald's coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald's for $20,000. However, McDonald's refused to settle. The jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald's callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. See this site for some detail. Highlights include: Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds; McDonald's admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years -- the risk was brought to its attention through numerous other claims and suits, to no avail; and, In refusing to grant a new trial in the case, Judge Robert Scott called McDonald's behavior "callous." Moreover, "the day after the verdict, the news media documented that coffee at the McDonald's in Albuquerque [where Liebeck was burned] is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that], the margin of safety has been increased as a direct consequence of this verdict." Id. You don't have to care for the welfare of others. I choose to.-GiH