Actually, a long time ago, pi was equal to quonk, an integer which used to fall between 3 and 4. Quonk fell out of use in 258 A.D. when Valerian, then emperor of Rome, promulgated the Lex Reformationis Integrorum revising the number line. Quonk is still in use in some parts of the Ukraine, however.
Yes, the defense will move to quash the indictment on the ground that the statute under which the indictment issued (here, the DMCA) is unconstitutional.
I agree you can't "eliminat[e]" jury nullification ("JN") without removing the double jeopardy protection. Assuming that the possibility of JN is a permanent part of the American legal system, then, the question is really whether you are going to make jurors swear they will follow the law, and whether you are going to let defense lawyers argue to the jury that they should ignore the law.
There are at least three good arguments here:
(1) JN is antidemocratic. The elected representatives of the people, after holding hearings on the issues involved, make the law. Because 12 jurors feel differently doesn't entitle them to overrule the majority. There are other constitutional protections against majoritarian overreaching.
(2) JN violates the principle of equality before the law. The law should apply equally to everyone. Jurors shouldn't be encouraged to set aside the law just because they feel a particular defendant is sympathetic (== white, well-spoken, member of the dominant religious group).
(3) To the extent it's needed, you get JN anyway. In cases where the law is really heinously unfair, jurors will decide on their own that they can't follow their oaths. You shouldn't encourage people to do so in other cases.
A juror who's fucked enough in the head to think that lynching is good clean fun is also fucked in the head enough to have no problem in breaking the law to accquit. It's the good citizen who want to respect the law, but finds this particular law not capable of respect, who finds himself in the bind that a Fully Informed Jury Act could resolve.
If there is a obvious way of distinguishing these cases ab initio, I'm all ears. The jury that can avert application of an unjust law might also be the jury that ratifies the acts of a mob. I don't really know where I come out on jury nullification, but the possibility that juries might bring about the result I'd prefer in some cases is not enough to make me enthusiastic.
Whether some set of proven facts constitutes a crime under the law is a question of law, not a question of fact. Whether the law criminalizing the conduct is a good one is not an element of the prosecution's case. I agree that a jury can acquit notwithstanding the facts and the law, if they choose to ignore their oaths to follow the facts and the law. Whether a jury should ever do this is another question.
Most of the laws' authority derive from a Rube Goldbergian argument based on regulating interstate trade (which purpose was to allow Congress to prevent states from passing laws to interfere with things passing through them to other states.)
You are welcome to hold such a narrow view of the Commerce Clause, but this view has been squarely rejected by the Supreme Court for 177 years. SeeGibbons v. Ogden, 22 U.S. 1, 189-90 (1824).
In particular, this quote from Chief Justice Marshall's opinion might be enlightening:
What is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. [ . . . ] If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States.
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.
Id. at 196-97 (emphasis added). (In other words: the Constitution doesn't mean you can ignore what your Congressman does.)
You're correct. The judge can overrule a jury's verdict of "guilty" but not a jury's verdict of "not guilty."
(Technically, the judge enters a "judgment notwithstanding the verdict," more commonly known by its Latin initials "j.n.o.v.")
The rationale is that a criminal defendant is entitled to a trial by jury so the benefit of a jury's "not guilty" verdict can't be taken away from him, but presumably a defendant won't object to having the jury's verdict of "guilty" reversed in the interest of justice.
"Jury nullification" refers to the situation where a jury returns a "not guilty" verdict where the facts and law dictate otherwise (thereby violating their oaths as jurors). It is not so much a legal doctrine as a recognition that where a jury refuses to convict the double jeopardy clause makes any further prosecution impossible.
Some people think jury nullification is the last bastion of freedom, etc.; other people note that jury nullification was basically how the practice of lynching was legitimized in the South. ("Gentlemen of the jury, I think we all know these boys were only having a little fun...", etc.) I don't know where I come out, but I am suspicious of those who defend the practice too enthusiastically.
You might want to READ the Constitution, because slavery was NOT abolished.
"Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United States, or
any place subject to their jurisdiction."
U.S. Const. am. 13, sec. 1.
Just remember, Nintendo did make a few mistakes with a couple of systems, namely the Virtual Boy 32 and the N64.
How dare you suggest the Virtual Boy 32 was a mistake? It was a brilliant piece of technology, far ahead of its time, and I had thousands of hours of fun playing it until my neurologist... Oh, crap, I feel a seizure coming on. Better sit down until it passes. Unnngghh... urrkghh... whew. That's better.
Arresting Sklyarov in USA for something he did in Russia, just because it violates US laws, is like arresting an Englishman for driving on the left side of the road (in his home country).
There is such a thing as extraterritorial jurisdiction, and every country recognizes it. If I make lots of counterfeit copies of BigNameSoftwareProduct in some obscure jurisdiction and market them via WWW to US (or UK, or Japanese) users, you better believe I'll be arrested the moment I step off the plane in New York (or London, or Osaka).
Whether the US should have exercised its extraterritorial jurisdiction here is surely a fair question, but it's not obvious the answer is "No."
If the contract provides that Bob will exercise "reasonable care" to keep information confidential, negligence will be the standard, but Bob might just flat out promise to keep it confidential and to be held responsible for any leaks. It depends on the contract language.
That would indeed be insider information, but it's not clear to me that it would be illegal to trade on it, because you're not an insider, and you didn't misappropriate the information. See Justice Ginsburg's opinion in U.S. v. O'Hagan (1997) (describing theory of insider trading liability).
Demanding money to keep quiet, however, is almost certainly a bad idea. See, for example, N.Y. Penal Law sec. 130.60 ("coercion in the second degree").
I don't necessarily agree with what happened here, but the idea that a country can punish acts committed outside its own territory is not at all new. It's called "extraterritorial jurisdiction."
If (by way of example only, he stressed) I Ilive in New York and by making a telephone call hire a hit man to kill someone in London, you won't be surprised if on my next visit to the UK I am charged with murder and put in shackles the moment I step off the plane at Heathrow. That I never did any wrongful act while physically present in the UK won't make any difference because the UK would (rightly) claim extraterritorial jurisdiction over my criminal act.
Different countries recognize different limits to extraterritorial jurisidiction but the principle is recognized everywhere. In the US, the recognized authority is the Restatement (Third) Of The Foreign Relations Law Of The United States, sections 401 through 403.
American courts have held that the Bill Of Rights states rights of all "persons," whether they are citizens or aliens. See, e.g.,Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903) (construing U.S. Const. Am. V ("nor shall any person... be deprived of life, liberty, or property, without due process of law"); holding that aliens may not be deported arbitrarily without "due process of law").
It's true that some precedents are binding and others non-binding. Binding precedents are those rendered by a higher court; for example, all U.S. District Courts have to follow U.S. Supreme Court opinions. But any case can be a non-binding precedent: if you were a Michigan judge ruling on an issue new to Michigan courts but which had been ruled on identically by Ohio, Wisconsin and Illinois courts, you'd very likely rule in accordance with those other courts, even though those opinions aren't binding. There is "trickling sideways" in this sense.
(Note that it is a quirk of the American federal system that state supreme courts are final authority on state law, not federal courts. Suppose the U.S. Supreme Court decides a case on the basis of some issue of New York law never before decided by a New York state court. That precedent wouldn't be binding on a small claims court judge in New York who confronted some later case raising the same issue! For this and other reasons, the U.S. Supreme Court rarely takes appeals that have any chance of being decided under state law.)
It might prevent you from calling it "KWord" for the same reason you couldn't call it "Word for XWindows" -- it suggests that the product is a Microsoft product. Whereas by contrast software consumers are used to the appellation "Word[blank]" for non-Microsoft word processing software.
Query: Do businesses which adopt a word in extremely common usage rather than some unique designation like "Mxyzptlk" find it harder to show a competing trademark is confusingly similar? (That is to say, is "KWord" sufficiently distinguishable to avoid infringing whereas "KMxyzptlk" definitely isn't?) I strongly suspect that's the case, but don't know for sure.
(Comment: When the law takes into account common sense distinctions like this, people say the law is inconsistent; when it doesn't, people say the law is irrational.)
1. "Illustrator" is a generic term to describe a profession, not a generic term to describe computer graphics software. (Likewise if Adobe sold architects a program to analyze their blueprints to make buildings more fire-resistant and called it "Firefighter.") It is extremely common to find that a trademark is an ordinary word used to designate a product -- which itself is something other than the meaning of the word -- in order to suggest the positive associations of the word. ("Apple" computers, "Sunbeam" bread, etc., etc. ad infinitum.)
2. Microsoft's designation of its flagship word processing program as "Word" does in fact receive trademark protection. "Word" is a generic term to describe units of speech and text, not a generic term to describe word processing software.
3. McDonalds, to my knowledge, does not purport to have trademarked "Hamburger" (perhaps they have the phrase "McDonalds Hamburger" trademarked, but that's a different story). Perhaps you are thinking of the Hamburglar, that rascal.
4. I believe this is the case under the legal regimes of most economically developed nations. It is true that American and German law are different, but they are not so different that in Germany murder is legal and everyone is required by law to eat a pound of bacon a day. (That would be West Virginia.) Basic IP law, like basic contract law, is pretty much the same wherever you go.
A gag order is pretty common in court proceedings, it keeps the trial in the legal courts rather than in the court of public opinion.
I don't think gag orders on nonparty witnesses are at all common in the US. (Consider the O.J. trial, for instance, where witnesses were regularly popping up on television.)
Interesting. Maybe it's just a French thing, then. (I note that French isn't among the languages on your version of the Matrix; perhaps the French have their own edition.)
Incidentally, for the amount of complaining the French do about how the world ignores French film, you would think they'd see to it that there would be subtitles in other languages on their DVDs.
"Houston... fzzzp... we have landed on Mars... fzzp... in the name of the United States, I step forth as the first human ever to walk on Martian... hey, wait a minute, where did all these maple trees come from?"
In other news: "Face On Mars" determined to have been modified to resemble Wayne Gretzky.
Slashdot Mirror
Actually, a long time ago, pi was equal to quonk, an integer which used to fall between 3 and 4. Quonk fell out of use in 258 A.D. when Valerian, then emperor of Rome, promulgated the Lex Reformationis Integrorum revising the number line. Quonk is still in use in some parts of the Ukraine, however.
Yes, the defense will move to quash the indictment on the ground that the statute under which the indictment issued (here, the DMCA) is unconstitutional.
And any state court, too. The Supreme Court's decision on that subject -- if there is one -- is of course binding, however.
There are at least three good arguments here:
(1) JN is antidemocratic. The elected representatives of the people, after holding hearings on the issues involved, make the law. Because 12 jurors feel differently doesn't entitle them to overrule the majority. There are other constitutional protections against majoritarian overreaching.
(2) JN violates the principle of equality before the law. The law should apply equally to everyone. Jurors shouldn't be encouraged to set aside the law just because they feel a particular defendant is sympathetic (== white, well-spoken, member of the dominant religious group).
(3) To the extent it's needed, you get JN anyway. In cases where the law is really heinously unfair, jurors will decide on their own that they can't follow their oaths. You shouldn't encourage people to do so in other cases.
If there is a obvious way of distinguishing these cases ab initio, I'm all ears. The jury that can avert application of an unjust law might also be the jury that ratifies the acts of a mob. I don't really know where I come out on jury nullification, but the possibility that juries might bring about the result I'd prefer in some cases is not enough to make me enthusiastic.
Whether some set of proven facts constitutes a crime under the law is a question of law, not a question of fact. Whether the law criminalizing the conduct is a good one is not an element of the prosecution's case. I agree that a jury can acquit notwithstanding the facts and the law, if they choose to ignore their oaths to follow the facts and the law. Whether a jury should ever do this is another question.
You are welcome to hold such a narrow view of the Commerce Clause, but this view has been squarely rejected by the Supreme Court for 177 years. See Gibbons v. Ogden, 22 U.S. 1, 189-90 (1824).
In particular, this quote from Chief Justice Marshall's opinion might be enlightening:
Id. at 196-97 (emphasis added). (In other words: the Constitution doesn't mean you can ignore what your Congressman does.)
(Technically, the judge enters a "judgment notwithstanding the verdict," more commonly known by its Latin initials "j.n.o.v.")
The rationale is that a criminal defendant is entitled to a trial by jury so the benefit of a jury's "not guilty" verdict can't be taken away from him, but presumably a defendant won't object to having the jury's verdict of "guilty" reversed in the interest of justice.
"Jury nullification" refers to the situation where a jury returns a "not guilty" verdict where the facts and law dictate otherwise (thereby violating their oaths as jurors). It is not so much a legal doctrine as a recognition that where a jury refuses to convict the double jeopardy clause makes any further prosecution impossible.
Some people think jury nullification is the last bastion of freedom, etc.; other people note that jury nullification was basically how the practice of lynching was legitimized in the South. ("Gentlemen of the jury, I think we all know these boys were only having a little fun ...", etc.) I don't know where I come out, but I am suspicious of those who defend the practice too enthusiastically.
Query whether Microsoft is cutting them a deal.
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. Const. am. 13, sec. 1.
???
How dare you suggest the Virtual Boy 32 was a mistake? It was a brilliant piece of technology, far ahead of its time, and I had thousands of hours of fun playing it until my neurologist ... Oh, crap, I feel a seizure coming on. Better sit down until it passes. Unnngghh ... urrkghh ... whew. That's better.
There is such a thing as extraterritorial jurisdiction, and every country recognizes it. If I make lots of counterfeit copies of BigNameSoftwareProduct in some obscure jurisdiction and market them via WWW to US (or UK, or Japanese) users, you better believe I'll be arrested the moment I step off the plane in New York (or London, or Osaka).
Whether the US should have exercised its extraterritorial jurisdiction here is surely a fair question, but it's not obvious the answer is "No."
If the contract provides that Bob will exercise "reasonable care" to keep information confidential, negligence will be the standard, but Bob might just flat out promise to keep it confidential and to be held responsible for any leaks. It depends on the contract language.
Demanding money to keep quiet, however, is almost certainly a bad idea. See, for example, N.Y. Penal Law sec. 130.60 ("coercion in the second degree").
I'm guessing your DSL is priced based on the assumption that you don't use it 80% (or more) of the day. Can someone confirm?
If (by way of example only, he stressed) I Ilive in New York and by making a telephone call hire a hit man to kill someone in London, you won't be surprised if on my next visit to the UK I am charged with murder and put in shackles the moment I step off the plane at Heathrow. That I never did any wrongful act while physically present in the UK won't make any difference because the UK would (rightly) claim extraterritorial jurisdiction over my criminal act.
Different countries recognize different limits to extraterritorial jurisidiction but the principle is recognized everywhere. In the US, the recognized authority is the Restatement (Third) Of The Foreign Relations Law Of The United States, sections 401 through 403.
American courts have held that the Bill Of Rights states rights of all "persons," whether they are citizens or aliens. See, e.g., Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903) (construing U.S. Const. Am. V ("nor shall any person ... be deprived of life, liberty, or property, without due process of law"); holding that aliens may not be deported arbitrarily without "due process of law").
(Note that it is a quirk of the American federal system that state supreme courts are final authority on state law, not federal courts. Suppose the U.S. Supreme Court decides a case on the basis of some issue of New York law never before decided by a New York state court. That precedent wouldn't be binding on a small claims court judge in New York who confronted some later case raising the same issue! For this and other reasons, the U.S. Supreme Court rarely takes appeals that have any chance of being decided under state law.)
Query: Do businesses which adopt a word in extremely common usage rather than some unique designation like "Mxyzptlk" find it harder to show a competing trademark is confusingly similar? (That is to say, is "KWord" sufficiently distinguishable to avoid infringing whereas "KMxyzptlk" definitely isn't?) I strongly suspect that's the case, but don't know for sure.
(Comment: When the law takes into account common sense distinctions like this, people say the law is inconsistent; when it doesn't, people say the law is irrational.)
2. Microsoft's designation of its flagship word processing program as "Word" does in fact receive trademark protection. "Word" is a generic term to describe units of speech and text, not a generic term to describe word processing software.
3. McDonalds, to my knowledge, does not purport to have trademarked "Hamburger" (perhaps they have the phrase "McDonalds Hamburger" trademarked, but that's a different story). Perhaps you are thinking of the Hamburglar, that rascal.
4. I believe this is the case under the legal regimes of most economically developed nations. It is true that American and German law are different, but they are not so different that in Germany murder is legal and everyone is required by law to eat a pound of bacon a day. (That would be West Virginia.) Basic IP law, like basic contract law, is pretty much the same wherever you go.
I don't think gag orders on nonparty witnesses are at all common in the US. (Consider the O.J. trial, for instance, where witnesses were regularly popping up on television.)
Incidentally, for the amount of complaining the French do about how the world ignores French film, you would think they'd see to it that there would be subtitles in other languages on their DVDs.
Really? I get a lot of French DVDs, and quite often there aren't even French subtitles, much less dubs and subtitles in other languages.
In other news: "Face On Mars" determined to have been modified to resemble Wayne Gretzky.
MARS NEEDS CHUTNEY