Only one court in the nation has the ability to declare a federal law unconstitutional, and that is the 9 boys and girls in WashDC.
The U.S. Supreme Court is the final authority as to whether any law is constitutional, but until it rules, any lower court can decide the issue one way or another. The situation you hypothesize -- a conflict between the decisions of courts in different jurisdictions -- arises all the time. The Supreme Court considers conflicts of this sort particularly important in deciding which cases it will hear. SeeSup. Ct. R. 10.
The MPAA members are illegally using their copyrights to acquire and keep a monopoly on DVD players. The traditional remedy, as I have heard, is to invalidate the copyrights being used in this manner until such a time as they are no longer being used for illegal activities.
I don't think the defendants made this argument. In any event, I don't think there's any evidence that there's a monopoly on the manufacture of DVD players: they are inexpensive and dropping in price all the time.
While the Southern District's decisions are technically precedent only for future cases within that District -- which includes Manhattan, the Bronx, Westchester County and a couple other counties -- its decisions are enormously influential. Judges in other federal and state courts take opinions from the Southern District very seriously.
Then learn. It's not that hard. I read the opinion in about an hour, and to the extent it uses legal terminology, it is either in common usage or is defined elsewhere in the opinion. If you can read a man page, you can read a judicial opinion.
Oh, please. As if this possibly could matter. This sounds like something the dorky scientist on "The Simpsons" would say: "J-j-j-judge Kaplan, I must object! According to my calculations, your opinion is in error by a factor of 2.4%!"
Now, IANAL, and haven't followed this case that closely, but reading the judge's statement about the defendants, I agree that he is definitely showing bias.
The judge's opinion at the end of a case is not the right place to look for bias. The entire point of the trial (in non-jury cases such as this one) is to help the judge make up his mind about the facts. If at the end of the case, he has a view about one side's motives or conduct, that's to be expected, though perhaps he could have been a bit more restrained in his comments.
In any event, I don't really see any fault in the judge's factual rulings on this matter, which is where bias really matters (e.g., "I believe X's testimony; I don't believe Y's testimony."). Most of this case was decided on the law. If the judge is right on the law, it doesn't matter whether he's biased or not; if he's wrong on the law, it likewise doesn't matter.
Common sense, really. The other items you mention may be put to hundreds or thousands of other potential uses. DeCSS has a handful of uses, one of which is piracy.
There are some good French alt-rock groups, Autour de Lucie to name one. Also, hip-hop works pretty well in French. I concede that I have not heard the French equivalent of Zeppelin or the Sabbath.
Idea: Split the monitor cable and run one out to a duplicate monitor above the user's head, high up enough so that no one passing by can read its text but so that anyone can see if the user is accessing pr0n.
As Kaplan's opinion notes, it is questionable whether his former partner actually began giving the advice in 1993 -- the witness who told Garbus about the advice said "'93, '94" -- and in any event there's no suggestion the advice had anything at all to do with the present DeCSS litigation.
That Garbus' former partner alleges that Kaplan may have passed along a nasty story about Garbus in 1981, almost twenty years ago, hardly suggests that Kaplan has some sort of vendetta against Garbus.
Sadly, the judge in the NY DVD case refuses to recognize these arguments, but, as he admits, his former law firm was responsible for advising Time Warner on DVD antitrust matters while the Judge practiced there. Despite this, Judge Kaplan refuses to recuse himself. No reasonable person could believe that such a judge would repudiate the prophylactic antitrust work of his own firm, and any hope of a fair judgement must be abandoned.
Judge Kaplan has been on the bench since late 1994. It is questionable whether the lawyer at Kaplan's former firm who gave Time Warner advice on DVD antitrust matters did so while Kaplan practiced there, and in any event there is no antitrust issue in the DeCSS litigation. The idea that Kaplan would throw this case simply because his partner possibly gave some advice to one of the parties on fundamentally unrelated questions six years ago is not only absurd but is also gratuitously insulting to Judge Kaplan.
Welfare is horribly inefficient, when compared to comparable private charities (that is comparing the amount they take in and the amount that actually makes it to those in need).
This is not true. There are other difficulties with welfare -- largely having to do with due process limitations on the government's ability to condition welfare on certain behaviors, limitations which charities do not face -- but the knock on welfare cannot be that there's more overhead than charities.
(I believe this is a political urban legend which originated with a poll of the general public which asked whether government or charity had more overhead; the majority chose charity, even though that is demonstrably untrue. This poll result has been repeated ad infinitum until it has assumed the status of a "fact." Michael Kinsley discussed the issue in a column reprinted in his collection Curse of the Giant Muffins.)
Umm, out of curiousity, how many farmers do you know? Having spent over half my life in "farm country," most farmers are pretty damn good shepherds on the land. ..why, 'cause once it's fucked up it's not useful to them any longer?
Plenty; I grew up in farm country. By and large, they are short-term thinkers who do not give a good goddamn about what effect their practices have on the environment. (This does not make them unusual; it makes them human.) I agree that a farmer would probably not use chemicals so aggressively as to make his/her land unfarmable, but there is considerable room for damage before that point is reached.
And when the majority decide to enslave a class of people, will you peacefully comply?
That's why there are a few substantive safeguards in the Constitution, the Thirteenth Amendment among them. The equation of ordinary regulation with totalitarian disaster without supplying any suggestion of what the intermediate steps might be ("They're making us use low flow toilets? It's like Auschwitz!") is the sine qua non of libertarian thinking.
I hate to break it to you, but when people's acts do harm others, there are a multitude of ways to remedy that before needing to call in government. But when it is necessary, government can be useful. Libertarians do not deny this.
Of course you do. If you don't, then your political philosophy reduces to "no unnecessary governmental action," which is meaningless (is anyone really for unnecessary governmental action)?
Yawn, lemme guess, you want to choose for me right. I'll bet you know what's good for me . . . fuckin' authoritarian prick.
No, I want to discuss the issue and resolve it according to agreed-upon procedural rules (election of representatives, etc.), and subject to a few substantive ground rules (no outright taking of property without compensation, etc.). If my view prevails, I want you to comply peacefully; if yours does, I'll do the same. That's called democratic self-governance, you preadolescent moron.
Who knows better what to do with a particular plot of land . ..a family that's farmed it for 20 years or the EPA?
No contest, the EPA. If it were up to the farmers, we'd all have enough DDT in our fatty tissues to grow tumors on a rock.
It may come as a shock to the libertarians, but people do engage in acts affecting others that cannot be conveniently regulated or remedied after the fact. Air and water pollution are convenient examples, and there are many others. That doesn't mean that all regulation is presumptively good. It simply means that democratic self-governance is a hard, sometimes complex, sometimes messy problem. Anyone who doesn't accept this plain fact is, at least politically, not an adult.
Why can't I have a cell phone which I can simply yank out the xcvr part and pop in another for, say, europe? Better still, have both standards built in?
And remember that one invalid statement within a paper must of necessity invalidate the _entire paper_. That is academic procedure.
While there is no doubt that a paper is worthless if it misstates key facts, there is no "academic procedure" which provides that any incorrect statement in a paper "invalidate[s]" the paper. That having been said, your point about AT&T/radio is well taken.
To get an injunction, you generally must show that there is a threat of irreparable harm which could be prevented by the injunction (here, incalculable and unrecoverable damages due to infringement), and that the "balance of equities" favors issuance of an injunction (i.e., issuing the injunction won't cause some other catastrophe to occur).
In the hypothetical you propose, it's hard to imagine that the balance of equities would ever favor shutting Microsoft down.
On July 19, Franklin Fisher -- the DOJ's expert in DOJ v. Microsoft -- testified as an expert for the MPAA. The MPAA's counsel asked:
Q. Do you have any knowledge about the markets for computer operating systems?
A. Oh, more than you want to know.
(Tr. 571.) After Fisher testified that copying of DVDs(*) would likely harm studio revenues, the judge commented:
Look, I don't know why we have the witness in the first place. You [MPAA's counsel] have basically called the equivalent of the world's leading expert on physical chemistry to testify that under the laws of physics and chemistry if you drive an ice pick into an inflated automobile tire the air will come out, and the cross-examination [by 2600's counsel Mr. Garbus] is designed to prove that that opinion did not involve looking at anybody driving an ice pick into the tire.
I understand that. This is all wonderful. I mean I don't know that we needed an expert witness to say that all things being equal if you give the stuff away for free some number of people who previously paid for it maybe won't pay for it in the future.
[ . . . ] You are both doing what you think you have to do. If either one of you thinks it is moving me in either direction, I invite you to think about the car tire and the ice pick.
(Tr. 583-84.)
(* Not bit-for-bit, but from DVD via DeCSS to a smaller file with lower quality.)
The track record of the government, legislative, judicial and executive, had seemed pretty bleak until now. DMCA, COPA, the meth proliferation act, internet taxation. Success and failure.
Actually, I think that the judiciary has ruled in favor of the side supported by the majority of/.-ers pretty consistently. (The only exception is the trademark area -- e.g., the PETA case -- and even there I think there's beginning to be some recognition among/.-ers that there is something to be said for the pro-trademark positions.) And there hasn't been any movement that I'm aware of toward "internet taxation," unless you count those persons suggesting that transactions facilitated through the 'net should be taxed like any other transaction.
Following up my own post, I note that the trial transcript for Tuesday is now up, with Dr. Touretzky's testimony at pp. 1061-93. (Note that the pages of the transcript are consecutively numbered; i.e., Tuesday's transcript starts on page 986, not page 1, and is less than 200 pages.)
Touretzky's testimony closely follows his declaration (for which Griff helpfully provided this link), so if you've read one, you can skip the other.
Judge Kaplan remarks at the conclusion of Touretzky's testimony:
"Well, Dr. Teretsky, let me just tell you that this was illuminating and important. I was hoping we were going to hear something like this through the whole trial. I appreciate your having come."
Not available yet at 2600's site, which has trial transcripts through last Friday (or on Dr. Touretzky's home page, which I thought would be a logical next place to look). If anyone has any pointers to articles, etc., setting forth the substance of that testimony, I'd appreciate the same.
One unspoken assumption here is that 'authorized' wiretaps are appropriate, and just.
Do you mean to suggest that no wiretaps are ever appropriate, regardless of cause shown? If you so hold, I assume you feel the same way about physical searches of property, which are far more intrusive. Once you've ruled out these two categories of investigation, I would be interested to know how you expect laws might be enforced.
Ward Churchill has written at great length about the activities of the FBI in the 1960s and 1970s under Hoover. Everyone agrees Hoover's use of the FBI to investigate and harass the political left was illegal and unjust. That does not tell us much if anything about whether, 25 years later, the inappropriate use of wiretaps by the FBI is still common.
Slashdot Mirror
The U.S. Supreme Court is the final authority as to whether any law is constitutional, but until it rules, any lower court can decide the issue one way or another. The situation you hypothesize -- a conflict between the decisions of courts in different jurisdictions -- arises all the time. The Supreme Court considers conflicts of this sort particularly important in deciding which cases it will hear. See Sup. Ct. R. 10.
I don't think the defendants made this argument. In any event, I don't think there's any evidence that there's a monopoly on the manufacture of DVD players: they are inexpensive and dropping in price all the time.
(Other contenders: Supreme Court of New York for the County of New York (the state trial court in Manhattan), Delaware Chancery Court (where many major corporate disputes are heard), U.S. District Court for the Central District of California (the federal court for Silly Valley).)
While the Southern District's decisions are technically precedent only for future cases within that District -- which includes Manhattan, the Bronx, Westchester County and a couple other counties -- its decisions are enormously influential. Judges in other federal and state courts take opinions from the Southern District very seriously.
Then learn. It's not that hard. I read the opinion in about an hour, and to the extent it uses legal terminology, it is either in common usage or is defined elsewhere in the opinion. If you can read a man page, you can read a judicial opinion.
Well, they are, aren't they? Whether they're in the right is another question, of course.
Oh, please. As if this possibly could matter. This sounds like something the dorky scientist on "The Simpsons" would say: "J-j-j-judge Kaplan, I must object! According to my calculations, your opinion is in error by a factor of 2.4%!"
The judge's opinion at the end of a case is not the right place to look for bias. The entire point of the trial (in non-jury cases such as this one) is to help the judge make up his mind about the facts. If at the end of the case, he has a view about one side's motives or conduct, that's to be expected, though perhaps he could have been a bit more restrained in his comments.
In any event, I don't really see any fault in the judge's factual rulings on this matter, which is where bias really matters (e.g., "I believe X's testimony; I don't believe Y's testimony."). Most of this case was decided on the law. If the judge is right on the law, it doesn't matter whether he's biased or not; if he's wrong on the law, it likewise doesn't matter.
Common sense, really. The other items you mention may be put to hundreds or thousands of other potential uses. DeCSS has a handful of uses, one of which is piracy.
There are some good French alt-rock groups, Autour de Lucie to name one. Also, hip-hop works pretty well in French. I concede that I have not heard the French equivalent of Zeppelin or the Sabbath.
Idea: Split the monitor cable and run one out to a duplicate monitor above the user's head, high up enough so that no one passing by can read its text but so that anyone can see if the user is accessing pr0n.
That Garbus' former partner alleges that Kaplan may have passed along a nasty story about Garbus in 1981, almost twenty years ago, hardly suggests that Kaplan has some sort of vendetta against Garbus.
Judge Kaplan has been on the bench since late 1994. It is questionable whether the lawyer at Kaplan's former firm who gave Time Warner advice on DVD antitrust matters did so while Kaplan practiced there, and in any event there is no antitrust issue in the DeCSS litigation. The idea that Kaplan would throw this case simply because his partner possibly gave some advice to one of the parties on fundamentally unrelated questions six years ago is not only absurd but is also gratuitously insulting to Judge Kaplan.
This is not true. There are other difficulties with welfare -- largely having to do with due process limitations on the government's ability to condition welfare on certain behaviors, limitations which charities do not face -- but the knock on welfare cannot be that there's more overhead than charities.
(I believe this is a political urban legend which originated with a poll of the general public which asked whether government or charity had more overhead; the majority chose charity, even though that is demonstrably untrue. This poll result has been repeated ad infinitum until it has assumed the status of a "fact." Michael Kinsley discussed the issue in a column reprinted in his collection Curse of the Giant Muffins.)
Plenty; I grew up in farm country. By and large, they are short-term thinkers who do not give a good goddamn about what effect their practices have on the environment. (This does not make them unusual; it makes them human.) I agree that a farmer would probably not use chemicals so aggressively as to make his/her land unfarmable, but there is considerable room for damage before that point is reached.
That's why there are a few substantive safeguards in the Constitution, the Thirteenth Amendment among them. The equation of ordinary regulation with totalitarian disaster without supplying any suggestion of what the intermediate steps might be ("They're making us use low flow toilets? It's like Auschwitz!") is the sine qua non of libertarian thinking.
I hate to break it to you, but when people's acts do harm others, there are a multitude of ways to remedy that before needing to call in government. But when it is necessary, government can be useful. Libertarians do not deny this.
Of course you do. If you don't, then your political philosophy reduces to "no unnecessary governmental action," which is meaningless (is anyone really for unnecessary governmental action)?
No, I want to discuss the issue and resolve it according to agreed-upon procedural rules (election of representatives, etc.), and subject to a few substantive ground rules (no outright taking of property without compensation, etc.). If my view prevails, I want you to comply peacefully; if yours does, I'll do the same. That's called democratic self-governance, you preadolescent moron.
Who knows better what to do with a particular plot of land . . .a family that's farmed it for 20 years or the EPA?
No contest, the EPA. If it were up to the farmers, we'd all have enough DDT in our fatty tissues to grow tumors on a rock.
It may come as a shock to the libertarians, but people do engage in acts affecting others that cannot be conveniently regulated or remedied after the fact. Air and water pollution are convenient examples, and there are many others. That doesn't mean that all regulation is presumptively good. It simply means that democratic self-governance is a hard, sometimes complex, sometimes messy problem. Anyone who doesn't accept this plain fact is, at least politically, not an adult.
(Score:6, Poetic)
Voicestream sells two such phones in the Northeast, and more are coming. So does Pacif ic Bell.
While there is no doubt that a paper is worthless if it misstates key facts, there is no "academic procedure" which provides that any incorrect statement in a paper "invalidate[s]" the paper. That having been said, your point about AT&T/radio is well taken.
In the hypothetical you propose, it's hard to imagine that the balance of equities would ever favor shutting Microsoft down.
(Tr. 571.) After Fisher testified that copying of DVDs(*) would likely harm studio revenues, the judge commented:
(Tr. 583-84.)
(* Not bit-for-bit, but from DVD via DeCSS to a smaller file with lower quality.)
The track record of the government, legislative, judicial and executive, had seemed pretty bleak until now. DMCA, COPA, the meth proliferation act, internet taxation. Success and failure.
Actually, I think that the judiciary has ruled in favor of the side supported by the majority of /.-ers pretty consistently. (The only exception is the trademark area -- e.g., the PETA case -- and even there I think there's beginning to be some recognition among /.-ers that there is something to be said for the pro-trademark positions.) And there hasn't been any movement that I'm aware of toward "internet taxation," unless you count those persons suggesting that transactions facilitated through the 'net should be taxed like any other transaction.
Touretzky's testimony closely follows his declaration (for which Griff helpfully provided this link), so if you've read one, you can skip the other.
Judge Kaplan remarks at the conclusion of Touretzky's testimony:
(Tr. 1093.)Not available yet at 2600's site, which has trial transcripts through last Friday (or on Dr. Touretzky's home page, which I thought would be a logical next place to look). If anyone has any pointers to articles, etc., setting forth the substance of that testimony, I'd appreciate the same.
Do you mean to suggest that no wiretaps are ever appropriate, regardless of cause shown? If you so hold, I assume you feel the same way about physical searches of property, which are far more intrusive. Once you've ruled out these two categories of investigation, I would be interested to know how you expect laws might be enforced.
Ward Churchill has written at great length about the activities of the FBI in the 1960s and 1970s under Hoover. Everyone agrees Hoover's use of the FBI to investigate and harass the political left was illegal and unjust. That does not tell us much if anything about whether, 25 years later, the inappropriate use of wiretaps by the FBI is still common.