Cheating is going on, and I know it cannot be stopped... but it is even obvious to the layman by the quantity of isk farmer posts on the official forums. There are two types of cheating at hand. One, cheating to produce (farmers). Two, cheating to consume (buyers). I believe both types of cheating reflect fundamental faults in the economy.
Canada's got way more land mass than the U.S. Only country with more land mass than Canada is Russia. Canada Area Total: 9,984,670 km (2nd) Water (%): 8.92 (891,163 km)... 9984670 - 891163 = 9 093 507 Thus, Canada has 9,093,507 sq km of land mass.
United States Area
- Total 9,826,630 km [1](3rd2) 3,793,079 sq mi
- Water (%) 6.76... 9826630 - (9826630 * 0.0676 = ) = 9826630 - 664280 = 9 162 350 Thus, the United States has 9,162,350 sq km of land mass.
9 093 506 sq km (Canada's land mass) is less than 9,162,350 sq km (the US land mass), therefore your statement seems incorrect. Canada does have more total area, but more of that area is water.
I don't know the rules of civil procedure in California, but most jurisdictions have rules of civil procedure with a couple options for service instead of personal service.
Big companies often have no problem accepting alternatives to personal service. Call them and ask how they would accept service of originating process. Ask if they would accept it by fax, mail or email, and whether they would confirm it's receipt.
I think it's fair to say that the present system of binding without consent is inadequate, and opting out of the class being a class member's only option (so they may pursue legal remedy as an individual).
One problem with having two law firms working on the same action is that the lawyers cannot guarantee an outcome. One cannot say guarantee $80, the other $100, until a settlement has been reached. In fact, you have to agree to be part of the class of one firm or the other before you know how much you'd get. As well, a defendant would never agree to a certain settlement until they know the number of people they are settling with.
The way the plaintiffs make decisions in the class action for the class members is unfair. Typically there is a class representative (or a couple reps) who tell the lawyers what to do. As you may imagine, these reps are often "guided" into making certain decisions, based on the lawyers' assessment, and these decisions are binding on the whole class. What I think would be better is if the individuals in the settlement each had a choice to agree with a particular settlement proposal.
Contrast bankruptcy. There is generally a sophisticated mechanism for determining the rights of creditors when an entity goes bankrupt. Typically, creditors are divided up into groups, and a majority of each group must agree to the settlement. This provides every individual with the opportunity to provide input, and reject the settlement if it is unfair.
I see little reason why this shouldn't apply to class actions. It would allow class members to decide whether they think the settlement is fair to them. It would also give class members the opportunity to assess the lawyer fees. All to say, I think it would be better than the present class representative-as-dictator.
I figure class actions have three predominant purposes.
First, judicial efficiency: encourage binding settlement of disputes between large numbers of people (having lawyers profit from such settlements encourages lawyers to do this; it's capitalism);
Second, access to justice: provide remedy to those who would have no access to justice (even if that remedy is itself quite small);
Three, feedback: modify corporate behaviour.
While $80.00 per person appears minor, one would hope that a multi-million dollar settlement is relevant to modifying corporate behaviour (which is often dependent on the tax implications to the company of such a settlement). So while the individual remedy is meager, there is other value provided: resolving a large number of outstanding disputes (which would be prohibitively expensive to remedy individually, for the company or for those individuals), and it establishes boundaries for corporate behaviour.
So while the lawyers do profit, it is my belief that profit is both incidental and necessary to the predominant purpose of effective class action regimes. Mind you, profiteering (night champerty) is poor form, and while the lawyers ought to be entitled to a respectable profit for their efforts (as in all capitalistic efforts), the fees taken ought to be scrutinized based on the work done (difficulty, expertise, time, etc.) and the actual value provided to the class. While I've presented value in class actions above, you've highlighted one of the cornerstones of principle conflict in the regime: the conflict of interest between class members and their legal representation when it comes time to pay the lawyers. I believe the courts ought to approve the fees after the settlement, with the input of an appointed amicus curae who would represent the interests of the class as against their own lawyers.
Only a lawyer could say that with a straight face. Only a lawyer could say what?
What's particularly priceless is the point you made that (paraphrasing) "No, its not a monopoly, all you need to do is spend 5 years of your life, thousands of dollars, and pass a difficult test" in order to argue in a court of law.
I doubt lawyers 100 years ago had 1/10 the education todays lawyers had, and they didn't need it because the laws were shorter and simpler. Law is much more accessible now than it ever has been in history, particularly with the advent of the internet. Concurrently, while laws are complicated now, only recently have they been geared towards accessibility. Once law was the purview of the aristocracy. If I recall correctly, Lord Denning was the first commoner to be appointed to the House of Lords appeals (the highest court in England), and that only happened in the mid-1900's. Further, the use of Latin in the law has dissolved significantly compared to how much it was used a hundred years ago. Finally, educational resources are commonly accessible in the first world, be they through subsidized education, scholarships, or need-based bursaries.
So the artificial barriers to entry maintained by the aristocracy are diminishing, there are oodles of resources on the internet that provide easy-to-read information, convoluted language and Latin is no longer predominant, and education is relatively accessible compared to a hundred years ago. I would say we are much better off today than a hundred years ago.
I'm a computer programmer. The difference between the laws I write and the rules/laws you write and interpret are: Mine are tested thoroughly before application to a live system. Mine are designed with the mantra that smaller is better. Large laws/code has more bugs. I'm a professional programmer and a lawyer, so I can speak with some satisfaction on both topics. I agree that the benefit of simplicity applies to law as equally as to code. However, imagine if that code was over 1,000 years old, could not be redesigned or replaced (because of uncertainty), and every new system had to integrate with those old (and horrid) systems.
The inability to test the law in advance has lead to innumerable problems, but the law does adapt. Laws change slowly because of resistance to unpredictability - which is a political/economic problem. Legal interpretation is principle based, constraining the outcome of any given dispute to within a certain set of possibilities. Further the common law, by definition, evolves with time with judge-made law. Judges have the power and duty to adapt those things that do not fit, strike out those things that contradict our principles, and read into the law those things that need to be read. Consequently, the law is tested, it is resistant to change, it is focused and constrained by governing principles, and it evolves over time.
I have an inkling that had software been subject to the same problems as the law, it would not be so different (vis-à-vis the ancient mainframe systems; computers have only been around for a few decades and look at the ungodly mess they managed to create with that --- i.e. JCL). Though with luck, perhaps software design and development will avoid some of these issues that are the bane of the law, and perhaps those lawyering can learn something from how we avoid those issues when we code.
I read that webpage about the lawyer joke being positive towards lawyers and I disagree. Basically Ss is making a joke about killing all the lawyers in order to get a utopia. Although it was the bad guys making the joke, the joke would have fallen flat if the audience hadn't wanted it. That's what makes the whole joke funny. In other cases Shakespeare does poke fun at lawyers. Shakespeare's commentary on lawyers was satirical. It is an ironic juxtaposition of contradictory views - the popular conception of lawyer greed and selfishness, in contrast with the idea that their eradication is the quickest way to anarchy. I am under the impression that this is the commonly accepted view by those educated in such matters.
For interfering with interstate communications/commerce, it may even be a federal crime.
Further, it very could be a breach of contract. They are holding themselves out to be "internet providers", accepting pay for the provision of the service "the internet", and providing actual network connections that are seemingly "internet" connections. However, the service they are providing is decidedly not an "internet connection" in that it violates standards, interferes with communications, and undermines natural expectations from both a technological and layman's perspective.
Rights cease when common people can't understand what rights they have because lawyers obfuscate the English language with legalese and thereby try to cement their own overpriced job security. Also by way of insisting on self regulating their own (hah!) legal monopoly on administering and representing the legal system. Too bad we don't have a justice system any more or the modern lawyer would likely be tarred and feathered. You're absolutely right. In broader terms, economic rights (the right to afford legal representation) is central to all fundamental human rights, and that economic right arises in two ways: 1. Economic redistribution of wealth to the masses so everyone can afford legal representation, and 2. Affordable legal services relative to that economic redistribution.
Legal services seem costly compared to the present redistribution of wealth, and that is in no small part due to the convolution of the statutes and common law. However, the state of these statutes is a direct result of the elected officials who implement them (or corporations with generous donations who write them), not legal practitioners. Further, the obfuscated English tends to arise less intentionally (though sometimes), and more historically with words and phrases that have common meaning (much as in the medical field).
The legal monopoly is hardly exclusive. The barrier to entry being entrance to one of numerous law schools and payment for law school and passing a bar exam.
That's not to disagree with your point that legal services are too expensive. I agree with that, but I think that is an economic and political problem just as much as a problem with the legal system.
Now, I'm all for defending the lawyers and sophisters - I hope to become one, soon enough - but I had to laugh when I realized that debrain's argument of a misquote was "supported" by a misquote of its own. Ironic isn't it?;)
Substantively, you may find this interesting (with a context-sensitive quote), mind:
Shakespeare's character has a quote from the correct page of the instruction manual for this kind of lawyerly behavior: "First thing we do, let's kill all the lawyers." This is a common misconception of what Shakespeare said...
Contrary to popular belief, the proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution -- thus underscoring the important role that lawyers can play in society."
As the famous remark by the plotter of treachery in Shakespeare's King Henry VI shows - "The first thing we must do is kill all the lawyers," - the surest way to chaos and tyranny even then was to remove the guardians of independent thinking. - "The first thing we do, let's kill all the lawyers" - it's a lawyer joke
The same is true today. The common perception of lawyers, vis-à-vis this Shakespearean misquote, has arisen concurrent with the corporate oligarchy which views civil rights and independent thought as a threat to consumerism and profits.
That sounds more cynical than I intended it to, but I don't think it's terribly exaggerated. Rights cease to exist where legal representation falters.
Kind of takes the fun out of the quote though, doesn't it?
There are a couple distinct concepts I glean from what you have stated.
1) By being the distributor, the RIAA has enabled and encouraged the recipient to commit infringement. By enabling and encouraging it, the proof of infringement is invalid.
2) By being the distributor, the RIAA has entrapped downloaders.
3) By being the distributor, the RIAA is precluded from suing downloaders.
Thus, there is an evidentiary issue (is the evidence admissable), a criminal issue (is there a defence to criminal infringement) and a civil issue (is there a defence to civil liability).
Evidence is the real issue at hand, in my opinion. Evidentiary issues often depend on the purpose of the evidence, it varies on jurisdiction, and it varies depending on if it is a criminal or civil suit. Since these are civil suits, the standard is presumably that, on a balance of probabilities the defendant intended and successfully downloaded the song. That the song was provided by the RIAA is likely to be irrelevant given that proving (insofar as it is "proof") infringement by downloading over the internet necessitates being a distributor. For that reason, I find it unlikely that this would be the reason a Court would bar this evidence. Note that even then, mind you, it is very unlikely that this would be sufficient evidence of who intended and actually downloaded the works infringed upon.
I will skip the entrapment issue, because it is not applicable to the RIAA civil suits.
As regards the defence that the RIAA is precluded from suing downloaders because they were the ones offering the song, this is an issue of standing. However, in law the standing arises from the purported infringement of the RIAA's clients' works, and this standing survives their . There is an argument that the doctrine of unclean hands ought to apply, however this is an equitable doctrine and need not apply in cases of statutory infringement. Downloading a song contrary to another's proprietary interest is legal infringement, period (notwithstanding legal defences, such as permission, mistake, etc). I struggle for an adequate analogy, so I'll spare you any attempt.
In summary, there are arguments that evidence so contrived is inadmissible, but I am not convinced. Further, the standing of the RIAA is probably not undermined by them being the facilitator of infringement or having unclean hands.
Presumably the recording industry labels give the RIAA explicit or implicit authority to copy certain works for the purpose of combating piracy. This authority ought to extend to agents (employees, third party contractors, etc.) of the RIAA. The label ought not to be able to sue the RIAA because the RIAA did what the label asked of them.
On the other hand, if the RIAA acted outside its authority by doing something other than what a label asked of them, and caused harm to that label's goodwill, then that label may have a cause of action against the RIAA independently in each of breach of contract, copyright infringement, and various torts (passing-off, deceit, negligent misrepresentation, etc).
No, what we need is a "stupid pays" system. Where an omniscient overlord assigns legal costs to the party that acted stupid or maliciously. Many jurisdictions have this in the form of costs. As the loser is likely to have to pay the costs of opposing counsel's litigation, it discourages frivolous or vexatious litigation, and encourages more efficient, non-judicial resolution.
Is there no common law or statutory cause of action in barratry (or otherwise, e.g. RICO Act) that could be brought against the RIAA in a class action? While not a defence, and certainly adventurous, barratry et. al. ought to be available as a counterclaim.
I imagine it would be more judicially efficient to resolve all these cases as a class action. It would also give access to justice to those who would otherwise be unable to properly defend (or counterclaim in) their action.
Finally, and less adventurous, do the relevant statutes address classes of defendants? This would seem to be, if the boilerplate accusation is correct, a quintessential case for judicial efficiency by way of a defendants' class.
I believe that the USA is the only 'first to invent' nation left in the world except for Somalia (which, incidentally, has no government, and is coincidentally the only other country to not have signed the UN Declaration on the Rights of the Child). All the others discovered decades, if not centuries, ago the serious problems with a first-to-invent system, the reasons for which are widely known and the benefits broadly realized.
There's a problem here. Novell's money is Novell's, SCO is just holding it for them.
This concept is a trust, and in particular in this case, a constructive trust. Good eye and intuition, if I may say so.
The key point in this is: Under Chapter 7 (liquidation; should they get there) debts are prioritized, and trust priority is different than a general judgment award priority. Assets deemed to have been held in trust may (though not necessarily in this case) be considered a secured debt (which may have, I vaguely recall, a super-priority over everything except debt-administration and counsel fees), and consequently Novell may be entitled to full reimbursement of the assets SCO held in trust, ahead of payouts to any other creditors. Novell may even have priority over employees.
You're also right that SCO couldn't legitimately use funds deemed to have been held in trust for Novell to pay SCO's own debts. This would fall under the the cliché nomenclature breach of trust (vis-à-vis the tort of breach of fiduciary duty).
The fines will increase (exponentially I believe) until they pay. The court can freeze and seize their European assets and they have much of their money within the EU in Ireland as a US tax dodge. Also, the EU is by far MS's largest market. Not complying would be a BAD idea.
Typically there is pre-judgment interest (say, around 4%), and post-judgment interest (say, around 8%) on the judgment.
The court can seize assets as well, but typically in extreme circumstances, for example if there is a risk of flight. It is unlikely here, even if Microsoft flaunts the order. In that case the company could be held in contempt and risk an entirely new judgment. Court-ordered seizure is unlikely given the size and apparent permanence of the Microsoft company, and that it is publicly traded on a stock exchange which would almost certainly recognize foreign judgments of the EU.
Furthermore, the plantiff lacks standing. In the state of California, to sue for fraud, party A must alledge that party B defrauded party A. If A claims that the money comes from C, then he has no standing to sue, even if his statements are correct. Vis-à-vis jus tertii?
There is a simple solution to this problem: punitive damages. If someone can show that there is a pattern where they are either neglecting their duties to pay damages (including attourneys fees) or outright acting in bad faith, they should be punished and *more* money should go to the person they are harrassing. Maybe 3 times more?
Off the top of my head, there are a few notes that may be relevant to the discussion.
To get a punitive award there must be a reprehensible conduct (generally speaking). For example, acting in bad faith where they had a duty to act in the utmost good faith (i.e. uberimma fides). Acting in bad faith alone is often not sufficient for punitive damages where there is no duty to act in good faith.
Treble damages is more commonly a statutory punishment, for example patent infringement, and unrelated to punitive damages (or rather is a general deterrent in lieu of punitive damages). For example, in situations where a defendant incurs treble damages in patent infringement, the plaintiff is generally not entitled to punitive damages. Nevertheless the treble damages act as a general deterrence against infringement.
What is the cost of half a decade of fear, uncertainty and doubt that overshadowed Linux until this day? How long will an image of uncertainty persist?
I haven't read EBay's policies lately, but I think I recall that they say that auctions for cars are NOT binding contracts... I would probably expect the same to apply to airplanes, if that is still the case. Too busy to look it up now, maybe I will later or a friendly karma whore will reply:)
Cars are typically subject to a regulatory regime and so they are often outside the laws of chattels, goods and services. Cars are also not unique, rather they are really the opposite: fungible. As a fungible entity, if a buyer breaks a deal then the seller can find another buyer fairly readily (within reason, and subject to the lost profit for that car and interest). Similarly if a seller of a car breaks a deal, the buyer can find another seller (subject to foreseeable costs of having to wait to find the another seller).
The Court's opinion of the sale of this WWII airplane gave rise to the extraordinary remedy of 'specific enforcement' because it is a unique chattel. In other words, whereas the Court is generally inclined to award damages (fines) in lieu of the sale, in this case the seller is being subject to the government's monopoly on force in order to transfer ownership of the airplane to the buyer in exchange for the payment they had agreed upon.
Slashdot Mirror
Area
Total: 9,984,670 km (2nd)
Water (%): 8.92 (891,163 km)
Thus, Canada has 9,093,507 sq km of land mass.
United States
Area
- Total 9,826,630 km [1](3rd2)
3,793,079 sq mi
- Water (%) 6.76
Thus, the United States has 9,162,350 sq km of land mass.
9 093 506 sq km (Canada's land mass) is less than 9,162,350 sq km (the US land mass), therefore your statement seems incorrect. Canada does have more total area, but more of that area is water.
... the consumers would be correct.
I don't know the rules of civil procedure in California, but most jurisdictions have rules of civil procedure with a couple options for service instead of personal service.
Big companies often have no problem accepting alternatives to personal service. Call them and ask how they would accept service of originating process. Ask if they would accept it by fax, mail or email, and whether they would confirm it's receipt.
I think the rules are CODE OF CIVIL PROCEDURE SECTION 415.10-415.95 . It's convoluted, to be sure, but I think it covers personal service and alternatives to personal service.
I think it's fair to say that the present system of binding without consent is inadequate, and opting out of the class being a class member's only option (so they may pursue legal remedy as an individual).
One problem with having two law firms working on the same action is that the lawyers cannot guarantee an outcome. One cannot say guarantee $80, the other $100, until a settlement has been reached. In fact, you have to agree to be part of the class of one firm or the other before you know how much you'd get. As well, a defendant would never agree to a certain settlement until they know the number of people they are settling with.
The way the plaintiffs make decisions in the class action for the class members is unfair. Typically there is a class representative (or a couple reps) who tell the lawyers what to do. As you may imagine, these reps are often "guided" into making certain decisions, based on the lawyers' assessment, and these decisions are binding on the whole class. What I think would be better is if the individuals in the settlement each had a choice to agree with a particular settlement proposal.
Contrast bankruptcy. There is generally a sophisticated mechanism for determining the rights of creditors when an entity goes bankrupt. Typically, creditors are divided up into groups, and a majority of each group must agree to the settlement. This provides every individual with the opportunity to provide input, and reject the settlement if it is unfair.
I see little reason why this shouldn't apply to class actions. It would allow class members to decide whether they think the settlement is fair to them. It would also give class members the opportunity to assess the lawyer fees. All to say, I think it would be better than the present class representative-as-dictator.
I figure class actions have three predominant purposes.
First, judicial efficiency: encourage binding settlement of disputes between large numbers of people (having lawyers profit from such settlements encourages lawyers to do this; it's capitalism);
Second, access to justice: provide remedy to those who would have no access to justice (even if that remedy is itself quite small);
Three, feedback: modify corporate behaviour.
While $80.00 per person appears minor, one would hope that a multi-million dollar settlement is relevant to modifying corporate behaviour (which is often dependent on the tax implications to the company of such a settlement). So while the individual remedy is meager, there is other value provided: resolving a large number of outstanding disputes (which would be prohibitively expensive to remedy individually, for the company or for those individuals), and it establishes boundaries for corporate behaviour.
So while the lawyers do profit, it is my belief that profit is both incidental and necessary to the predominant purpose of effective class action regimes. Mind you, profiteering (night champerty) is poor form, and while the lawyers ought to be entitled to a respectable profit for their efforts (as in all capitalistic efforts), the fees taken ought to be scrutinized based on the work done (difficulty, expertise, time, etc.) and the actual value provided to the class. While I've presented value in class actions above, you've highlighted one of the cornerstones of principle conflict in the regime: the conflict of interest between class members and their legal representation when it comes time to pay the lawyers. I believe the courts ought to approve the fees after the settlement, with the input of an appointed amicus curae who would represent the interests of the class as against their own lawyers.
I doubt lawyers 100 years ago had 1/10 the education todays lawyers had, and they didn't need it because the laws were shorter and simpler. Law is much more accessible now than it ever has been in history, particularly with the advent of the internet. Concurrently, while laws are complicated now, only recently have they been geared towards accessibility. Once law was the purview of the aristocracy. If I recall correctly, Lord Denning was the first commoner to be appointed to the House of Lords appeals (the highest court in England), and that only happened in the mid-1900's. Further, the use of Latin in the law has dissolved significantly compared to how much it was used a hundred years ago. Finally, educational resources are commonly accessible in the first world, be they through subsidized education, scholarships, or need-based bursaries.
So the artificial barriers to entry maintained by the aristocracy are diminishing, there are oodles of resources on the internet that provide easy-to-read information, convoluted language and Latin is no longer predominant, and education is relatively accessible compared to a hundred years ago. I would say we are much better off today than a hundred years ago. I'm a computer programmer. The difference between the laws I write and the rules/laws you write and interpret are:
Mine are tested thoroughly before application to a live system.
Mine are designed with the mantra that smaller is better. Large laws/code has more bugs. I'm a professional programmer and a lawyer, so I can speak with some satisfaction on both topics. I agree that the benefit of simplicity applies to law as equally as to code. However, imagine if that code was over 1,000 years old, could not be redesigned or replaced (because of uncertainty), and every new system had to integrate with those old (and horrid) systems.
The inability to test the law in advance has lead to innumerable problems, but the law does adapt. Laws change slowly because of resistance to unpredictability - which is a political/economic problem. Legal interpretation is principle based, constraining the outcome of any given dispute to within a certain set of possibilities. Further the common law, by definition, evolves with time with judge-made law. Judges have the power and duty to adapt those things that do not fit, strike out those things that contradict our principles, and read into the law those things that need to be read. Consequently, the law is tested, it is resistant to change, it is focused and constrained by governing principles, and it evolves over time.
I have an inkling that had software been subject to the same problems as the law, it would not be so different (vis-à-vis the ancient mainframe systems; computers have only been around for a few decades and look at the ungodly mess they managed to create with that --- i.e. JCL). Though with luck, perhaps software design and development will avoid some of these issues that are the bane of the law, and perhaps those lawyering can learn something from how we avoid those issues when we code. I read that webpage about the lawyer joke being positive towards lawyers and I disagree. Basically Ss is making a joke about killing all the lawyers in order to get a utopia. Although it was the bad guys making the joke, the joke would have fallen flat if the audience hadn't wanted it. That's what makes the whole joke funny. In other cases Shakespeare does poke fun at lawyers. Shakespeare's commentary on lawyers was satirical. It is an ironic juxtaposition of contradictory views - the popular conception of lawyer greed and selfishness, in contrast with the idea that their eradication is the quickest way to anarchy. I am under the impression that this is the commonly accepted view by those educated in such matters.
It likely is illegal.
For interfering with interstate communications/commerce, it may even be a federal crime.
Further, it very could be a breach of contract. They are holding themselves out to be "internet providers", accepting pay for the provision of the service "the internet", and providing actual network connections that are seemingly "internet" connections. However, the service they are providing is decidedly not an "internet connection" in that it violates standards, interferes with communications, and undermines natural expectations from both a technological and layman's perspective.
Sounds prime for a class action.
To the editors:
Thanks for this. It's really very interesting.
-B
1. Economic redistribution of wealth to the masses so everyone can afford legal representation, and
2. Affordable legal services relative to that economic redistribution.
Legal services seem costly compared to the present redistribution of wealth, and that is in no small part due to the convolution of the statutes and common law. However, the state of these statutes is a direct result of the elected officials who implement them (or corporations with generous donations who write them), not legal practitioners. Further, the obfuscated English tends to arise less intentionally (though sometimes), and more historically with words and phrases that have common meaning (much as in the medical field).
The legal monopoly is hardly exclusive. The barrier to entry being entrance to one of numerous law schools and payment for law school and passing a bar exam.
That's not to disagree with your point that legal services are too expensive. I agree with that, but I think that is an economic and political problem just as much as a problem with the legal system.
Substantively, you may find this interesting (with a context-sensitive quote), mind:
President's Message, A Call to Arms: Federal Laws Are Marginalizing the Nation's Lawyers and Judges
July 2006
http://www.abajournal.com/magazine/a_call_to_arms/
Good luck on the bar.
The same is true today. The common perception of lawyers, vis-à-vis this Shakespearean misquote, has arisen concurrent with the corporate oligarchy which views civil rights and independent thought as a threat to consumerism and profits.
That sounds more cynical than I intended it to, but I don't think it's terribly exaggerated. Rights cease to exist where legal representation falters.
Kind of takes the fun out of the quote though, doesn't it?
There are a couple distinct concepts I glean from what you have stated.
1) By being the distributor, the RIAA has enabled and encouraged the recipient to commit infringement. By enabling and encouraging it, the proof of infringement is invalid.
2) By being the distributor, the RIAA has entrapped downloaders.
3) By being the distributor, the RIAA is precluded from suing downloaders.
Thus, there is an evidentiary issue (is the evidence admissable), a criminal issue (is there a defence to criminal infringement) and a civil issue (is there a defence to civil liability).
Evidence is the real issue at hand, in my opinion. Evidentiary issues often depend on the purpose of the evidence, it varies on jurisdiction, and it varies depending on if it is a criminal or civil suit. Since these are civil suits, the standard is presumably that, on a balance of probabilities the defendant intended and successfully downloaded the song. That the song was provided by the RIAA is likely to be irrelevant given that proving (insofar as it is "proof") infringement by downloading over the internet necessitates being a distributor. For that reason, I find it unlikely that this would be the reason a Court would bar this evidence. Note that even then, mind you, it is very unlikely that this would be sufficient evidence of who intended and actually downloaded the works infringed upon.
I will skip the entrapment issue, because it is not applicable to the RIAA civil suits.
As regards the defence that the RIAA is precluded from suing downloaders because they were the ones offering the song, this is an issue of standing. However, in law the standing arises from the purported infringement of the RIAA's clients' works, and this standing survives their . There is an argument that the doctrine of unclean hands ought to apply, however this is an equitable doctrine and need not apply in cases of statutory infringement. Downloading a song contrary to another's proprietary interest is legal infringement, period (notwithstanding legal defences, such as permission, mistake, etc). I struggle for an adequate analogy, so I'll spare you any attempt.
In summary, there are arguments that evidence so contrived is inadmissible, but I am not convinced. Further, the standing of the RIAA is probably not undermined by them being the facilitator of infringement or having unclean hands.
Presumably the recording industry labels give the RIAA explicit or implicit authority to copy certain works for the purpose of combating piracy. This authority ought to extend to agents (employees, third party contractors, etc.) of the RIAA. The label ought not to be able to sue the RIAA because the RIAA did what the label asked of them.
On the other hand, if the RIAA acted outside its authority by doing something other than what a label asked of them, and caused harm to that label's goodwill, then that label may have a cause of action against the RIAA independently in each of breach of contract, copyright infringement, and various torts (passing-off, deceit, negligent misrepresentation, etc).
Is there no common law or statutory cause of action in barratry (or otherwise, e.g. RICO Act) that could be brought against the RIAA in a class action? While not a defence, and certainly adventurous, barratry et. al. ought to be available as a counterclaim.
I imagine it would be more judicially efficient to resolve all these cases as a class action. It would also give access to justice to those who would otherwise be unable to properly defend (or counterclaim in) their action.
Finally, and less adventurous, do the relevant statutes address classes of defendants? This would seem to be, if the boilerplate accusation is correct, a quintessential case for judicial efficiency by way of a defendants' class.
I believe that the USA is the only 'first to invent' nation left in the world except for Somalia (which, incidentally, has no government, and is coincidentally the only other country to not have signed the UN Declaration on the Rights of the Child). All the others discovered decades, if not centuries, ago the serious problems with a first-to-invent system, the reasons for which are widely known and the benefits broadly realized.
There's a problem here. Novell's money is Novell's, SCO is just holding it for them.
This concept is a trust, and in particular in this case, a constructive trust. Good eye and intuition, if I may say so.
The key point in this is: Under Chapter 7 (liquidation; should they get there) debts are prioritized, and trust priority is different than a general judgment award priority. Assets deemed to have been held in trust may (though not necessarily in this case) be considered a secured debt (which may have, I vaguely recall, a super-priority over everything except debt-administration and counsel fees), and consequently Novell may be entitled to full reimbursement of the assets SCO held in trust, ahead of payouts to any other creditors. Novell may even have priority over employees.
You're also right that SCO couldn't legitimately use funds deemed to have been held in trust for Novell to pay SCO's own debts. This would fall under the the cliché nomenclature breach of trust (vis-à-vis the tort of breach of fiduciary duty).
The fines will increase (exponentially I believe) until they pay. The court can freeze and seize their European assets and they have much of their money within the EU in Ireland as a US tax dodge. Also, the EU is by far MS's largest market. Not complying would be a BAD idea.
Typically there is pre-judgment interest (say, around 4%), and post-judgment interest (say, around 8%) on the judgment.
The court can seize assets as well, but typically in extreme circumstances, for example if there is a risk of flight. It is unlikely here, even if Microsoft flaunts the order. In that case the company could be held in contempt and risk an entirely new judgment. Court-ordered seizure is unlikely given the size and apparent permanence of the Microsoft company, and that it is publicly traded on a stock exchange which would almost certainly recognize foreign judgments of the EU.
A la Van Eck Phreaking
There is a simple solution to this problem: punitive damages. If someone can show that there is a pattern where they are either neglecting their duties to pay damages (including attourneys fees) or outright acting in bad faith, they should be punished and *more* money should go to the person they are harrassing. Maybe 3 times more?
Off the top of my head, there are a few notes that may be relevant to the discussion.
To get a punitive award there must be a reprehensible conduct (generally speaking). For example, acting in bad faith where they had a duty to act in the utmost good faith (i.e. uberimma fides). Acting in bad faith alone is often not sufficient for punitive damages where there is no duty to act in good faith.
Treble damages is more commonly a statutory punishment, for example patent infringement, and unrelated to punitive damages (or rather is a general deterrent in lieu of punitive damages). For example, in situations where a defendant incurs treble damages in patent infringement, the plaintiff is generally not entitled to punitive damages. Nevertheless the treble damages act as a general deterrence against infringement.
What is the cost of half a decade of fear, uncertainty and doubt that overshadowed Linux until this day? How long will an image of uncertainty persist?
I haven't read EBay's policies lately, but I think I recall that they say that auctions for cars are NOT binding contracts... I would probably expect the same to apply to airplanes, if that is still the case. Too busy to look it up now, maybe I will later or a friendly karma whore will reply :)
Cars are typically subject to a regulatory regime and so they are often outside the laws of chattels, goods and services. Cars are also not unique, rather they are really the opposite: fungible. As a fungible entity, if a buyer breaks a deal then the seller can find another buyer fairly readily (within reason, and subject to the lost profit for that car and interest). Similarly if a seller of a car breaks a deal, the buyer can find another seller (subject to foreseeable costs of having to wait to find the another seller).
The Court's opinion of the sale of this WWII airplane gave rise to the extraordinary remedy of 'specific enforcement' because it is a unique chattel. In other words, whereas the Court is generally inclined to award damages (fines) in lieu of the sale, in this case the seller is being subject to the government's monopoly on force in order to transfer ownership of the airplane to the buyer in exchange for the payment they had agreed upon.