I'm pretty sure, then, the book you might like to read is "The Wealth and Poverty of Nations: Why some are so rich and some so poor", by David S. Landes. David has an opinionated style, but his assessment is meticulously researched, and he's quite a senior fellow in world history and economics.
You've a good counter-argument on the absence of implementation details in patents, as it goes to undermine their raison d'etre. The Copyright problem is a whole different kettle of fish, as they say.
Make no mistake, the Chinese are famous for having invented many of the greatest inventions in history. Problem is, they often did it multiple times, independently. In the Western universe, I seem to recall that intellectual property was kept as trade secrets, to the exclusion of the public and similarly lost to antiquity.
The reason for the prior (retention) is often equated to their lack of proprietary interest in intellectual property, and the reason for the latter (publicity) is adjoined by the consequences of divulging your technological advantages. While the incentive exists to invent gunpowder (for its usefulness), the incentive and mechanism to publicly retain a collective body of knowledge for such inventions in Chinese society did not exist. Thus, I believe the secret to gunpowder was lost to the Chinese on more than one occasion, only to be re-invented later. (Or perhaps that wasn't gunpowder, but some other set of inventions).
Patents help alleviate this loss of intellectual achievements to both antiquity and secrecy. However, in our society they have gone to an extreme, whereby we can rightly complain that they stifle innovation, undermine competition, and they may even be unnecessary in light of modern mechanisms for keeping tabs on new IP, notably the internet, and public collaborative projects like open source.
Nonetheless, patents are predictable, and having arisen out of hundreds of years of jurisprudence over the need to retain and publicize useful inventions. They appear to be econommically over-bearing nowadays, and may even be superfluous in light of modern technology for retention and dissemination of intellectual property (i.e. the internet), but they are integrated into our economy in ways that make it superbly difficult (not to mention prohibitively expensive, as in the USA the government may have to compensate patent holders by weakening their rights) to completely do away with the system. They also still serve the purpose for which they were intended, publishing and retaining useful innovations, but they have side effects which now make us question their value.
While we can and should criticize the patent system for its failures, we should also bear in mind the consequences of going too far in the opposite direction. Too few discussions of patent reform have an intelligent, informed and balanced basis in the purpose and benefits of the current patent system, with suggestions for either balanced reform across all arenas where patent law is applied (drugs, software, hardware, automobiles, etc.), or any sound alternative that is not subject to the same criticisms that are inherent to what we have now.
(That being said, I think the idea of patenting software strikes me as wholly inappropriate, the problems of publicity and retention long having been solved by the internet and open source projects, and the value software patents provide to the public is virtually nil in almost every way.)
Your discussion of "ex parte" is incorrect. It has a specific legal meaning in the U.S., which is "without notice".
I argued a motion Thursday that was ex parte. We gave technical notice, but counsel for the opposing side did not appear. I inquired, and the Master confirmed that it was indeed ex parte, per se.
This is in line with Black's Law Dictionary: "Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested."
Thus, I think my statement "Ex parte... means that the motion is effectively unopposed" stands, as ex parte is not limited to without notice. There might be exceptions, but this would seem to be the definition in NY, and throughout the common law.
[People contributing to open source] do what they do because they're bored and have nothing better to spend their time on
In a lot of cases, people are contributing to something really meaningful and valuable, and to imply that they have nothing better to do is flat out condescending. If one CAN make the Linux kernel (or whichever project) better, there are very few things to be involved in that would go to benefit the public.
The implication that people contributing their valuable time to something like open source is only out of boredom and lack of alternatives is absurd and insulting. That may indeed be the reason why some people contribute, to be sure, but to imply that it is of no value to them, or the world, is utterly lunatic. (On the same continuum and with the same absurdity, the opposing exaggeration is that people contributing to open source are doing it for the betterment of mankind, as against the unrelenting corporate machine.)
I'm fairly certain that the truth lies in the middle, and that for an individual contributing to open source is a valuable way to spend your time because it gives you experience, exposes you to new ideas and people and challenges. As a bonus to the world, these contributions generally improve the publicly accessible wealth of knowledge, ideas and software functionality.
Any implication that these people are doing something of no value to them or the world is disgusting.
"Just to clarify, ex parte means that the application was secret, no one else -- neither the ISP nor the subscribers -- were given notice that this was going on."
Ex parte is latin for 'one party', which means that the motion is effectively unopposed.
It says nothing about notice nor secrecy. In fact, it is my understanding that the only secret trials in the US are military tribunals (and maybe some cases where judges question children who might feel vulnerable and lie in the presence of, for example, a formerly abusive parent, but even then there's probably a court reporter).
As for notice, that's a whole different story. If you serve notice and the other side just doesn't show up, that's still ex parte. It happens all the time. It makes judges reluctant to make an order, because we're in an adversarial system that grants the court enormous powers in the right situations.
I wouldn't describe an ex parte motion as secret, since it's on the public record in an open court room that anyone can walk into, but the manner is clandestine. The first question the judge should be asking is where the affected parties are and why they aren't at the court.
Again, a little tip: Bush was elected. Twice. You may not like it, but that's how it is, under the rules set out in the Constitution. Indignation, righteous or otherwise, is completely irrelevant. And come January 2009, he is gone.
Not to belabour the same-old, but I think it's funny (and true, though please, anyone, feel free to clarify). Technically, George W. Bush became the President based on a ruling by the members of the Supreme Court of the United States on a disputed vote count in the State of Florida, which State was being run by George W. Bush's brother, and which members of the Supreme Court were appointed by the previous Presidents (including one or more by president George Bush Sr.?), and due to the uncertainty in the US Constitution arising around voting disputes, George Bush Jr. was permitted, with less overall votes than the next candidate (Mr. Gore), to become President by way of winning a majority of college-electoral districts, which districts are (spoken cynically, I admit) fabricated by the Executive branch of government to preserve predictability and the marginalization of the regional voting trends(*). Phew.
So, while technically George Bush Jr. was elected, it was an awful shady thing, and where the rules of the US Constitution were silent the interpretation by the SCOTUS went against the popular vote of the United States citizens. Given that the federal voting power parity of the average US citizen is nearly always zero (i.e. meaningless), except in swing states, thanks to the college-electoral system, I find myself melancholic when I try to think of it as a righteous preservation of freedoms and fair representation.
(*) The only example I remember was in Ohio, where 9 Republican districts won, each with something around 52% of the vote being Republican. One Democrat district, which was right in the center, won with 95% of the vote being Democratic. I'm not really sure how that works or where it was (or even how true or why it is), and even though my wallowing in ignorance generally preserves me from shock, it was somewhat jaw-dropping.
Say your lawyer is busy. You are entitled to your choice of legal representative.
Serving a notice for a sworn deposition on one day's notice is contrary to the rules of professional conduct, and can (and should) result in penalties against the lawyers' clients in court, as well as with with the lawyer regulatory disciplinary authority.
There are a couple avenues of consumer remedy for buying one of these non-standard discs. First, warranties. When you purchase a CD or something purporting to be a CD, then its failure is a breach of general warranty for fitness. Second, if "CD" is a trademark, then selling a CD-like device as-if it were a CD can violate the trademark, and the trademark holder can pursue a remedy against the misrepresenter. Finally, there are statutory consumer protection acts which entitled consumers to remedies for violations of standards in product quality.
You're right to say that, colloquially, a CD with copy protection is still a CD. It serves the same purpose, looks the same, and often functions in the exact same way as a "true" CD. However, a CD-like disc with copy protection is legally distinct from a CD as "Compact Disc" in terms of the warranty for fitness, trademark holder rights, and consumer protection laws.
Does a project maintainer have an ethical obligation to notify his or her community of a license change? What about a legal obligation?
Ethical obligation: certainly, I would argue.
Legally, it's in the ballpark of something like this:
You cannot change the license on contributions to your project without permission of every contributor.
The enforceability of a license often depends in no small part on the notice of the change. For example, a quiet change of the license obligating you to make retroactive payments for usage, where you would never have predicted this, will likely be unenforceable. On the other hand, a small change in the license that requires redistributers to redistribute source code in an open format such as tarballs is probably enforceable.
An author can be prevented from suing you for breach of license if the author changed the license without telling you, and you reasonably relied upon the prior license not changing to do something reasonable under the prior license. This is the legal concept of estoppel - colloquially, the author is estopped from enforcing the license.
Another concept, unjust enrichment, may also apply. In this case, the author changed the license, and intentionally didn't tell his contributors who kept making valuable contributions, the author may be deprived of his enrichment, because it was unjust, and the contributors may have a right to withdraw their contributions, or have project remain under the old license insofar as those contributions apply (for example).
Mind you, these are common law concepts, and no doubt modified by statutory schemes (e.g. the UCC).
Fact with logic may justify dismissal of an idea, but hand-waving is a sure sign of insecurity that behooves only the intellectually unfit. Might you care to explain why you believe it to be laughable?
Your opinion is hand-waving without justification. It would be less pejorative if you could back up your otherwise unsupported dismissal. Justifying waiving aside an idea requires that one examine the benefit, as well as the detriment, of that idea. Short of that, dismissing the idea is premature and, by definition, ignorant.
I've seen plausible studies suggesting that changes in the solar cycle may be causing what is often blindly and unquestioningly attributed to a carbon dioxide greenhouse-effect. Carbon dioxide in the atmosphere no doubt contributes to global warming as a greenhouse gas, but it may not be the actual cause of global warming (rather, a symptom of it), and limiting carbon dioxide emissions may not help us 'cure' global warming.
Besides, if we're going to reduce carbon dioxide emissions, I think we should do it for the right reasons- our health and intrinsic responsibility to each other and the planet. Responding to the adverse effects of uncontrolled energy going into our ecosystem by reducing the solar energy we receive could be a more effective response in the short term, and require less political will and money, than the carbon schemes now proposed.
That being said, a "pill" solution like a Lagrange mirror would allow us to continue abusing our ecosystem without consequences.
It's food for thought--- in reply to all the comments to my great-grandparent post.
You're tagging the concept commonly known as willful blindness. It's a legal construction, where the law creates a fictional truth to satisfy the strict prerequisites of the word of the law, as if to say: because you had an obligation to realize the consequence of your actions, even though you lacked the intent to commit a crime, turning-a-blind-eye to the consequences is just the same as intending that consequence. It's a common criminal concept.
Oops - this is incorrect.
Willful blindness is a legal fiction substituting for knowledge.
Recklessness is a legal fiction substituting for intention.
Thus, where one is willfully blind to the consequences, thereby wishing not to know something, it is imputed that they actually did know it (because they ought to have).
Similarly, where one is reckless, thereby endangering others, it is imputed that they intended it. For example driving a car down a residential-street at 200km/h and running over a child. There was no intention to kill the child, but the harm is foreseeable, and so the consequences are much higher. (This is a legal fiction inventing intention to satisfy the mens rea part of the criminal test; don't mistake this for causation--- the factual actus reus part, for which recklessness is not a substitute.)
Ask someone who lives in a cancer cluster if they think that there are worse alternatives.
The best answer for them may not be the best answer for everyone. The best answer for everyone may leave these poor people screwed. That's a macrocosm problem--- how to solve everyone's problems?
Is it, or is it not, a crime to fire a gun in public? You don't have to deliberately point it at people to be guilty of a very serious crime. Likewise, Mercury is a deadly poison, as are many other chemicals. We're not talking about industry just MAKING deadly chemicals -- we're talking about industry deliberately dumping those chemicals into the atmosphere or into rivers. They COULD process those emissions, they COULD process their toxic waste. They CHOOSE not to, they CHOOSE to dump it into rivers, they CHOOSE to pump it up a smokestack without any filtration.
They could choose to move to China and take all their techno-economic-social benefits with them. It's an inherent problem with national borders dropping (though there are many benefits to it, too). The cost of preventing that pollution may be huge, and yet the cost to the company of moving abroad is probably quite cheap. It's a powerful bargaining power of these corporations whenever the government threatens regulation. A thousand jobs moving overseas is a lot of votes. I think a lot of people see through that, but not when it's your job.
On the other hand, if lots of people are middle-class, seemingly well educated, and conscious of these environmental problems, you always get a handful of people who press for positive reform, and because they make sense the government responds.
The government could regulate industry more sternly, and you're right in saying they have, or should have, an obligation to do so (though it's not a constitutional obligation, more of something inherent to democratically elected representatives), insofar as that regulation prevents absolutely obvious environmental poisoning.
But, if you're more comfortable letting corporations kill people, comfort yourself with the knowledge that it's no different than letting someone with HIV go around infecting other people -- after all the virus wont actually be what kills them, and he doesn't INTEND for his victim to get sick and die. You can go and join one of those groups that defends people with HIV+ who go to the bath-houses and to orgies, spreading the virus as far and wide as they can.
You're tagging the concept commonly known as willful blindness. It's a legal construction, where the law creates a fictional truth to satisfy the strict prerequisites of the word of the law, as if to say: because you had an obligation to realize the consequence of your actions, even though you lacked the intent to commit a crime, turning-a-blind-eye to the consequences is just the same as intending that consequence. It's a common criminal concept.
It applies to the HIV case moreso than the pollution case. In the HIV case you have an individual who must be mentally incompetent in order to not realize the consequences of their actions, and they have no good-faith sort of obligation to escape their choice to expose others to HIV. Sex when HIV positive is ludicrously dangerous for others. It's different for pollution. First, you don't know what pollution causes what damage. Admittedly, some polluters know, or they ought to- mercury for example, as you say. But most pollution is more ignorance of the consequences, which would require a very, very solid knowledge of biochemical interactions in order to predict. A great number of people running companies would have trouble spreading HIV, much less contemplating the consequences of using a potassium de-acidification process as opposed to a sodium one. Further, they're going to choose the cheaper solution (in the absence of alternative incentives, for example the carbon-trading scheme), because they have an obligation to profit, which is a good-fai
Let's take this sentence-by-sentence. If this was meant as a satirical hyperbole, it'd actually be quite brilliant and I apologize for being pedantic. It displays meteoric inaccuracy. In any event, a reply.
The constitution grants every American the right to life.
The Constitution of the United States grants every human being in America the right to life. It is not limited to "Americans". However, it is limited to American jurisdiction (notwithstanding extraterritorial jurisdiction or comity et. al., vis-a-vis extra territorium jus dicenti impune non paretur).
Pollution robs people of life, and is therefore a violation of a constitutionally guaranteed right.
Pollution in capitalism is typically an 'externality', arising out of the commercial incentive to profit. Pollution has been known to contribute to illness, which may in turn cause or contribute to the cause of death or debilitation. There are practical considerations for causation. For some illumination into the difficulty in enforcing civil penalties arising from pollution-related harm, I suggest reading A Civil Action by Jonathan Harr. It's quite accessible.
The biggest polluter of toxic waste, as I understand it, is the pharmaceutical industry. The pollution they create, which may go to contribute to death, arises from the drugs they make, which may go to save more lives than they contribute to the death of.
Further, bullets also rob people of life. As do automobiles. And fast food. And cancer drugs. But not all of them, all the time. There is a factual and provable causation missing. The right to life is grandly subservient to common sense, practicality and the need for commerce.
The federal government exists to enforce the constitution.
The federal government of the US exists as a result of the constitution, and generally its members swear to uphold the constitution. The US Congress has a number of specific powers to enforce the constitution, as does the Executive, I understand, and as those powers are implied in the function of the judiciary. The federal government exists to govern the country, but in doing so it must uphold the constitution, which balances the powers of each branch of the federal government.
Thefore(sic) the federal government has the right to stop industry from poisoning people to death, from violating people's constitutionally guaranteed right to life.
The constitution does not protect you from industry by threatening to punish that industry. The constitution protects you from your government. It similarly protects industry from punishment by the government without due process. Due process includes a burden of proof by the claimant, notably in criminal and civil situations, that typically includes proof of causation. Consequently, the constitution protects industry from civil and criminal penalties which would punish them for poisoning people to death.
The federal government is precisely deprived, by way of the constitution, of the right to arbitrarily threaten industry for polluting.
No lawsuits are supposed to be required, anymore than lawsuits are required to prevent your neighbour from bursting into your house and putting three rounds of buckshot into your chest.
Criminal law doesn't prevent any actions of individuals. Criminal law generally deters certain actions by virtue of the threat of punishment such as imprisonment (or, in despotic parts of the world, death). Criminal law in the United States is the prerogative of the individual sovereign states, and is completely unrelated to the constitution except where the constitution serves to (1) grant states the right to create and enforce criminal laws; and (2) protect the rights of individuals from unfair deprivation of an enumerated list of constitutionally guaranteed individual rights.
The government will try to deal with the guy that goes around raping and murdering children; you don't have to sue that pedophile, it's just not a necessa
Because just like the GPL is the only thing that gives people the right to copy GPL software, the EPA and Clean Air Act and the like is the only thing that gives companies and people the right to poison each other with impunity.
The problem with the CAA and EPA is not their end, but their means. A positive result does not justify abuse of process. If the CAA and EPA have powers beyond what is legitimate, and they are nevertheless recognized, what stops the same branches of power (be it Congress or the Executive or the judiciary) from abusing this same extension of authority for malicious purposes? The division and separation of powers exists for the purpose of preventing this abuse so that process is democratic and representative, and it does so reasonably well when respected.
Respect for the environment is a totally separate issue from respect for the mechanisms that prevent abuse. If people are poisoning each other, there are valid non-abusive mechanisms to prevent that. If no such mechanism exists then, and only then, should the system be reformed. Thankfully the system in the US is sufficiently flexible that no such reform appears to be necessary, in the long run.
An animal does not adapt. It is born with a certain set of DNA, which it cannot change or control, and it lives or dies as a result what DNA it has (along with other factors like chance).
Interestingly, the theory of evolution popularized before natural selection had precisely this concept, known as Lamarckism. Thus, the theory of evolution has at some point encapsulated this idea, even though it is obviously not the predominant mechanism we recognize today. Further, it highlights the difference between the theory of evolution, and the theory that evolution is attributed to natural selection (and, in my humble view, from an open-minded scientific perspective this difference should not be forgotten).
Not disputed. Just trying to show the lay of the land, in particular the philosophical sort-of heading under which copyright might land. (So to speak). Hard to fit into a slashdot post.;-) Thanks for the reply.
What the Judge is telling the RIAA here is that, having completed discovery, they can either go to a jury trial and pursue a guilty verdict, or have the case dismissed with prejudice.
This is a civil suit (it's a poor reference, sorry). It is not 'guilt' in the criminal sense so much as factual and legal causation, on a "balance of probabilities" (i.e. 50%+1 chance), and unlike criminal law its purpose is not punishment. Rather, as I understand it, common law civil suits (less punitive damages for what's known as first-party breach of fiduciary duties) are compensatory, designed to put the person suing in one of three positions
1. as good a position as they were in before the wrong, had the wrong had not happened; 2. as good a position as they would have been in now, had the wrong had not happened; 3. the position of receiving the unjust benefit that has gone to the person who committed the wrong. (i.e. unjustly enriched)
I believe these are the three forms of damages generally arising in common law.
In the case of the RIAA, #1 means undoing the infringement and the intangible benefits arising from those having listened to it. This is hard, nigh impossible, to calculate and undo. Had the lady sold the songs, it'd be different.
Under #2, they can claim they lost income from the loss of sale, and demand that it be paid, now.
Under #3, they can claim that that the woman's benefits from the claim were unjust, but this is more an economic argument. (i.e. if she stole the song and re-sold it for $1 million- if it is not a sale the RIAA would ever have made then the RIAA cannot claim the $1 million under #1 or #2, but can under #3)
However, this is all modified by the copyright legislation, which essentially provides a statutory value to #2, and effectively at punitive rates (thus, in effect constructing the legal inference that an individual has a duty of utmost good faith to the copyright holder). Thus, when the RIAA sues under #1, they can sue at exorbitant, punitive rates, way beyond any actual loss. This is designed as a deterrent to copyright infringement (like criminal law's punitive damages), except it doesn't have the checks and balances of criminal law (insofar as they exist) because a private individual can bring a copyright infringement claim and the standard of proof is only 50%+1 (i.e. 'balance of probabilities'- best highlighted by OJ Simpson being not guilty of murder beyond a reasonable doubt, but guilty on a balance of probabilities, making him not-liable in punitive criminal law, but guilty in civil compensation).
However, in the end, this case isn't about damages. The issue in this case seems to have been the lack of evidence brought by the RIAA. In many (virtually all) jurisdictions, this results in an adverse 'cost' award, where you have to pay the fees of the defendant (a compensatory deterrent to frivolous actions, precisely like the RIAA barratry). Hope that's food for thought.
Ahh... mens rea, actualization of culpability that is imbued upon us by that good old presumption of non-determinism commonly referred to as free will.
To wit, if all was predetermined, there could be no criminal responsibility at law, because there could be no choice from which we could recognize an individual's guilt. That person had no choice, it was predetermined, and so they never made a choice to do something wrong, rather they are a product of their environment (however complex that may be).
However, that wouldn't stop us from recognizing pleasure and harm, recognizing that certain individuals in society have caused harm and are likely to enter into a pattern of causing harm, and that removing them from general population is deemed to be to the benefit of society in general. This is an alternative justification for the prison system, devoid of the philosophical hurdles of presuming free will, culpability, and reform.
Make no mistake, I'm just describing the arguments here... it makes for a great philosophical discussion over a pint or several of Wellingtons.
I don't care what he did. Winston Churchill did great things when he lead Britain to defeat the Nazis, yet I can call him a fat drunken slob without fear of recrimination if I so desire.
You can also call him an alcoholic, but he might tell you you're ugly, and that he'll be sober in the morning.
I assume the relevant rule is (for the same of completeness, less caselaw):
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The evidence in this case doesn't even make it to the standard of "hearsay" not to mention the fact that the plaintiff lawyer appears to be highly inexperienced with Turets syndrome and keeps blurting "Objection to form."
It's late, and it's been a while since I've done this stuff, so I imagine someone else can do this better, but there's no post up yet.
Rules of evidence (no reference to policy, just rules). Law often works in layers, for example, something likeso: - General rule: Everything relevant is admissible.
- Exception to the general rule: Hearsay: Oral statements by a person other than the one giving the testimony is inadmissible.
- Exception to the Hearsay rule: (obviously not applicable, here, but for example) Statements of a murder victim identifying their murderer can be admitted by someone who overheard them prior to the victim's death.
There are more exceptions, and exceptions to the exceptions (esp. in evidentiary rules). But the logic is generally like that.
So, to wit: The statements of the expert are admissible, as to his/her expert opinion, and their awareness in information and belief, if they are relevant. Oral statements by the expert about what someone else said are inadmissible under the hearsay exception to the general rule, even if they are relevant. Unless such oral statements were (per the rule-example above) made by the victim of a murder, and identify the murderer (in which case they are de facto relevant).
In this case, much of the evidence is documentary, and admissible under the general rule. Only the oral statements of others would be inadmissible under the hearsay rule in this expert's testimony. (As I understand the rules of evidence as they probably apply here)
Not that the meaning of your statement was in any way wrong in the lay-sense. But just thought it might be interesting to lay out, as it pertains to this case, in the legal sense (as far as I might grasp such a critter and be halfway able to portray it).
I don't have a good reference, but there's a really interesting story about killer whales near Eden, Australia helping whalers. I found a brief reference, here:
A century later, Eden became famous for its killer whale pod. Led by a whale known as "Old Tom", the pod would alert local whalers when other whales were in the vicinity, and whalers and killer whales would unite to herd their victims into the shallow waters of Twofold Bay.
Sounds like a lot of animals are pretty darn bright. Lord knows, these killer whales sound a hell of a lot smarter than the person I had on the tech support line for Bell the other day, and certainly they're a boatload more useful.
Slashdot Mirror
I'm pretty sure, then, the book you might like to read is "The Wealth and Poverty of Nations: Why some are so rich and some so poor", by David S. Landes. David has an opinionated style, but his assessment is meticulously researched, and he's quite a senior fellow in world history and economics.
You've a good counter-argument on the absence of implementation details in patents, as it goes to undermine their raison d'etre. The Copyright problem is a whole different kettle of fish, as they say.
Make no mistake, the Chinese are famous for having invented many of the greatest inventions in history. Problem is, they often did it multiple times, independently. In the Western universe, I seem to recall that intellectual property was kept as trade secrets, to the exclusion of the public and similarly lost to antiquity.
The reason for the prior (retention) is often equated to their lack of proprietary interest in intellectual property, and the reason for the latter (publicity) is adjoined by the consequences of divulging your technological advantages. While the incentive exists to invent gunpowder (for its usefulness), the incentive and mechanism to publicly retain a collective body of knowledge for such inventions in Chinese society did not exist. Thus, I believe the secret to gunpowder was lost to the Chinese on more than one occasion, only to be re-invented later. (Or perhaps that wasn't gunpowder, but some other set of inventions).
Patents help alleviate this loss of intellectual achievements to both antiquity and secrecy. However, in our society they have gone to an extreme, whereby we can rightly complain that they stifle innovation, undermine competition, and they may even be unnecessary in light of modern mechanisms for keeping tabs on new IP, notably the internet, and public collaborative projects like open source.
Nonetheless, patents are predictable, and having arisen out of hundreds of years of jurisprudence over the need to retain and publicize useful inventions. They appear to be econommically over-bearing nowadays, and may even be superfluous in light of modern technology for retention and dissemination of intellectual property (i.e. the internet), but they are integrated into our economy in ways that make it superbly difficult (not to mention prohibitively expensive, as in the USA the government may have to compensate patent holders by weakening their rights) to completely do away with the system. They also still serve the purpose for which they were intended, publishing and retaining useful innovations, but they have side effects which now make us question their value.
While we can and should criticize the patent system for its failures, we should also bear in mind the consequences of going too far in the opposite direction. Too few discussions of patent reform have an intelligent, informed and balanced basis in the purpose and benefits of the current patent system, with suggestions for either balanced reform across all arenas where patent law is applied (drugs, software, hardware, automobiles, etc.), or any sound alternative that is not subject to the same criticisms that are inherent to what we have now.
(That being said, I think the idea of patenting software strikes me as wholly inappropriate, the problems of publicity and retention long having been solved by the internet and open source projects, and the value software patents provide to the public is virtually nil in almost every way.)
Your discussion of "ex parte" is incorrect. It has a specific legal meaning in the U.S., which is "without notice".
... means that the motion is effectively unopposed" stands, as ex parte is not limited to without notice. There might be exceptions, but this would seem to be the definition in NY, and throughout the common law.
I argued a motion Thursday that was ex parte. We gave technical notice, but counsel for the opposing side did not appear. I inquired, and the Master confirmed that it was indeed ex parte, per se.
This is in line with Black's Law Dictionary: "Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested."
Thus, I think my statement "Ex parte
[People contributing to open source] do what they do because they're bored and have nothing better to spend their time on
In a lot of cases, people are contributing to something really meaningful and valuable, and to imply that they have nothing better to do is flat out condescending. If one CAN make the Linux kernel (or whichever project) better, there are very few things to be involved in that would go to benefit the public.
The implication that people contributing their valuable time to something like open source is only out of boredom and lack of alternatives is absurd and insulting. That may indeed be the reason why some people contribute, to be sure, but to imply that it is of no value to them, or the world, is utterly lunatic. (On the same continuum and with the same absurdity, the opposing exaggeration is that people contributing to open source are doing it for the betterment of mankind, as against the unrelenting corporate machine.)
I'm fairly certain that the truth lies in the middle, and that for an individual contributing to open source is a valuable way to spend your time because it gives you experience, exposes you to new ideas and people and challenges. As a bonus to the world, these contributions generally improve the publicly accessible wealth of knowledge, ideas and software functionality.
Any implication that these people are doing something of no value to them or the world is disgusting.
"Just to clarify, ex parte means that the application was secret, no one else -- neither the ISP nor the subscribers -- were given notice that this was going on."
Ex parte is latin for 'one party', which means that the motion is effectively unopposed.
It says nothing about notice nor secrecy. In fact, it is my understanding that the only secret trials in the US are military tribunals (and maybe some cases where judges question children who might feel vulnerable and lie in the presence of, for example, a formerly abusive parent, but even then there's probably a court reporter).
As for notice, that's a whole different story. If you serve notice and the other side just doesn't show up, that's still ex parte. It happens all the time. It makes judges reluctant to make an order, because we're in an adversarial system that grants the court enormous powers in the right situations.
I wouldn't describe an ex parte motion as secret, since it's on the public record in an open court room that anyone can walk into, but the manner is clandestine. The first question the judge should be asking is where the affected parties are and why they aren't at the court.
Again, a little tip: Bush was elected. Twice. You may not like it, but that's how it is, under the rules set out in the Constitution. Indignation, righteous or otherwise, is completely irrelevant. And come January 2009, he is gone.
Not to belabour the same-old, but I think it's funny (and true, though please, anyone, feel free to clarify). Technically, George W. Bush became the President based on a ruling by the members of the Supreme Court of the United States on a disputed vote count in the State of Florida, which State was being run by George W. Bush's brother, and which members of the Supreme Court were appointed by the previous Presidents (including one or more by president George Bush Sr.?), and due to the uncertainty in the US Constitution arising around voting disputes, George Bush Jr. was permitted, with less overall votes than the next candidate (Mr. Gore), to become President by way of winning a majority of college-electoral districts, which districts are (spoken cynically, I admit) fabricated by the Executive branch of government to preserve predictability and the marginalization of the regional voting trends(*). Phew.
So, while technically George Bush Jr. was elected, it was an awful shady thing, and where the rules of the US Constitution were silent the interpretation by the SCOTUS went against the popular vote of the United States citizens. Given that the federal voting power parity of the average US citizen is nearly always zero (i.e. meaningless), except in swing states, thanks to the college-electoral system, I find myself melancholic when I try to think of it as a righteous preservation of freedoms and fair representation.
(*) The only example I remember was in Ohio, where 9 Republican districts won, each with something around 52% of the vote being Republican. One Democrat district, which was right in the center, won with 95% of the vote being Democratic. I'm not really sure how that works or where it was (or even how true or why it is), and even though my wallowing in ignorance generally preserves me from shock, it was somewhat jaw-dropping.
Say your lawyer is busy. You are entitled to your choice of legal representative.
Serving a notice for a sworn deposition on one day's notice is contrary to the rules of professional conduct, and can (and should) result in penalties against the lawyers' clients in court, as well as with with the lawyer regulatory disciplinary authority.
Perhaps the DVD-Video logo, but it's still a DVD. You can get software on DVDs. You can't play them in your video player, but they are still DVDs.
Actually, it's the same thing with CDs. CDs with copy protection are still CDs; they just can't carry the CDDA (CD Digital Audio) logo.
Not according to the Red Book standard.
There are a couple avenues of consumer remedy for buying one of these non-standard discs. First, warranties. When you purchase a CD or something purporting to be a CD, then its failure is a breach of general warranty for fitness. Second, if "CD" is a trademark, then selling a CD-like device as-if it were a CD can violate the trademark, and the trademark holder can pursue a remedy against the misrepresenter. Finally, there are statutory consumer protection acts which entitled consumers to remedies for violations of standards in product quality.
You're right to say that, colloquially, a CD with copy protection is still a CD. It serves the same purpose, looks the same, and often functions in the exact same way as a "true" CD. However, a CD-like disc with copy protection is legally distinct from a CD as "Compact Disc" in terms of the warranty for fitness, trademark holder rights, and consumer protection laws.
YMMV.
Does a project maintainer have an ethical obligation to notify his or her community of a license change? What about a legal obligation?
Ethical obligation: certainly, I would argue.
Legally, it's in the ballpark of something like this:
You cannot change the license on contributions to your project without permission of every contributor.
The enforceability of a license often depends in no small part on the notice of the change. For example, a quiet change of the license obligating you to make retroactive payments for usage, where you would never have predicted this, will likely be unenforceable. On the other hand, a small change in the license that requires redistributers to redistribute source code in an open format such as tarballs is probably enforceable.
An author can be prevented from suing you for breach of license if the author changed the license without telling you, and you reasonably relied upon the prior license not changing to do something reasonable under the prior license. This is the legal concept of estoppel - colloquially, the author is estopped from enforcing the license.
Another concept, unjust enrichment, may also apply. In this case, the author changed the license, and intentionally didn't tell his contributors who kept making valuable contributions, the author may be deprived of his enrichment, because it was unjust, and the contributors may have a right to withdraw their contributions, or have project remain under the old license insofar as those contributions apply (for example).
Mind you, these are common law concepts, and no doubt modified by statutory schemes (e.g. the UCC).
Fact with logic may justify dismissal of an idea, but hand-waving is a sure sign of insecurity that behooves only the intellectually unfit. Might you care to explain why you believe it to be laughable?
Your opinion is hand-waving without justification. It would be less pejorative if you could back up your otherwise unsupported dismissal. Justifying waiving aside an idea requires that one examine the benefit, as well as the detriment, of that idea. Short of that, dismissing the idea is premature and, by definition, ignorant.
I couldn't have said it better myself.
Thankfully the people making life-impacting decisions are smarter than the average moderator of slashdot.
Indeed.
I've seen plausible studies suggesting that changes in the solar cycle may be causing what is often blindly and unquestioningly attributed to a carbon dioxide greenhouse-effect. Carbon dioxide in the atmosphere no doubt contributes to global warming as a greenhouse gas, but it may not be the actual cause of global warming (rather, a symptom of it), and limiting carbon dioxide emissions may not help us 'cure' global warming.
Besides, if we're going to reduce carbon dioxide emissions, I think we should do it for the right reasons- our health and intrinsic responsibility to each other and the planet. Responding to the adverse effects of uncontrolled energy going into our ecosystem by reducing the solar energy we receive could be a more effective response in the short term, and require less political will and money, than the carbon schemes now proposed.
That being said, a "pill" solution like a Lagrange mirror would allow us to continue abusing our ecosystem without consequences.
It's food for thought--- in reply to all the comments to my great-grandparent post.
To cut down on the solar energy we receive, and counter global warming, could we put a big mirror at the Lagrange point between here and the sun?
Oops - this is incorrect.
Willful blindness is a legal fiction substituting for knowledge.
Recklessness is a legal fiction substituting for intention.
Thus, where one is willfully blind to the consequences, thereby wishing not to know something, it is imputed that they actually did know it (because they ought to have).
Similarly, where one is reckless, thereby endangering others, it is imputed that they intended it. For example driving a car down a residential-street at 200km/h and running over a child. There was no intention to kill the child, but the harm is foreseeable, and so the consequences are much higher. (This is a legal fiction inventing intention to satisfy the mens rea part of the criminal test; don't mistake this for causation--- the factual actus reus part, for which recklessness is not a substitute.)
I suppose you're inviting a reply, so why not.
Ask someone who lives in a cancer cluster if they think that there are worse alternatives.
The best answer for them may not be the best answer for everyone. The best answer for everyone may leave these poor people screwed. That's a macrocosm problem--- how to solve everyone's problems?
Is it, or is it not, a crime to fire a gun in public? You don't have to deliberately point it at people to be guilty of a very serious crime. Likewise, Mercury is a deadly poison, as are many other chemicals. We're not talking about industry just MAKING deadly chemicals -- we're talking about industry deliberately dumping those chemicals into the atmosphere or into rivers. They COULD process those emissions, they COULD process their toxic waste. They CHOOSE not to, they CHOOSE to dump it into rivers, they CHOOSE to pump it up a smokestack without any filtration.
They could choose to move to China and take all their techno-economic-social benefits with them. It's an inherent problem with national borders dropping (though there are many benefits to it, too). The cost of preventing that pollution may be huge, and yet the cost to the company of moving abroad is probably quite cheap. It's a powerful bargaining power of these corporations whenever the government threatens regulation. A thousand jobs moving overseas is a lot of votes. I think a lot of people see through that, but not when it's your job.
On the other hand, if lots of people are middle-class, seemingly well educated, and conscious of these environmental problems, you always get a handful of people who press for positive reform, and because they make sense the government responds.
The government could regulate industry more sternly, and you're right in saying they have, or should have, an obligation to do so (though it's not a constitutional obligation, more of something inherent to democratically elected representatives), insofar as that regulation prevents absolutely obvious environmental poisoning.
But, if you're more comfortable letting corporations kill people, comfort yourself with the knowledge that it's no different than letting someone with HIV go around infecting other people -- after all the virus wont actually be what kills them, and he doesn't INTEND for his victim to get sick and die. You can go and join one of those groups that defends people with HIV+ who go to the bath-houses and to orgies, spreading the virus as far and wide as they can.
You're tagging the concept commonly known as willful blindness. It's a legal construction, where the law creates a fictional truth to satisfy the strict prerequisites of the word of the law, as if to say: because you had an obligation to realize the consequence of your actions, even though you lacked the intent to commit a crime, turning-a-blind-eye to the consequences is just the same as intending that consequence. It's a common criminal concept.
It applies to the HIV case moreso than the pollution case. In the HIV case you have an individual who must be mentally incompetent in order to not realize the consequences of their actions, and they have no good-faith sort of obligation to escape their choice to expose others to HIV. Sex when HIV positive is ludicrously dangerous for others. It's different for pollution. First, you don't know what pollution causes what damage. Admittedly, some polluters know, or they ought to- mercury for example, as you say. But most pollution is more ignorance of the consequences, which would require a very, very solid knowledge of biochemical interactions in order to predict. A great number of people running companies would have trouble spreading HIV, much less contemplating the consequences of using a potassium de-acidification process as opposed to a sodium one. Further, they're going to choose the cheaper solution (in the absence of alternative incentives, for example the carbon-trading scheme), because they have an obligation to profit, which is a good-fai
Let's take this sentence-by-sentence. If this was meant as a satirical hyperbole, it'd actually be quite brilliant and I apologize for being pedantic. It displays meteoric inaccuracy. In any event, a reply.
The constitution grants every American the right to life.
The Constitution of the United States grants every human being in America the right to life. It is not limited to "Americans". However, it is limited to American jurisdiction (notwithstanding extraterritorial jurisdiction or comity et. al., vis-a-vis extra territorium jus dicenti impune non paretur).
Pollution robs people of life, and is therefore a violation of a constitutionally guaranteed right.
Pollution in capitalism is typically an 'externality', arising out of the commercial incentive to profit. Pollution has been known to contribute to illness, which may in turn cause or contribute to the cause of death or debilitation. There are practical considerations for causation. For some illumination into the difficulty in enforcing civil penalties arising from pollution-related harm, I suggest reading A Civil Action by Jonathan Harr. It's quite accessible.
The biggest polluter of toxic waste, as I understand it, is the pharmaceutical industry. The pollution they create, which may go to contribute to death, arises from the drugs they make, which may go to save more lives than they contribute to the death of.
Further, bullets also rob people of life. As do automobiles. And fast food. And cancer drugs. But not all of them, all the time. There is a factual and provable causation missing. The right to life is grandly subservient to common sense, practicality and the need for commerce.
The federal government exists to enforce the constitution.
The federal government of the US exists as a result of the constitution, and generally its members swear to uphold the constitution. The US Congress has a number of specific powers to enforce the constitution, as does the Executive, I understand, and as those powers are implied in the function of the judiciary. The federal government exists to govern the country, but in doing so it must uphold the constitution, which balances the powers of each branch of the federal government.
Thefore(sic) the federal government has the right to stop industry from poisoning people to death, from violating people's constitutionally guaranteed right to life.
The constitution does not protect you from industry by threatening to punish that industry. The constitution protects you from your government. It similarly protects industry from punishment by the government without due process. Due process includes a burden of proof by the claimant, notably in criminal and civil situations, that typically includes proof of causation. Consequently, the constitution protects industry from civil and criminal penalties which would punish them for poisoning people to death.
The federal government is precisely deprived, by way of the constitution, of the right to arbitrarily threaten industry for polluting.
No lawsuits are supposed to be required, anymore than lawsuits are required to prevent your neighbour from bursting into your house and putting three rounds of buckshot into your chest.
Criminal law doesn't prevent any actions of individuals. Criminal law generally deters certain actions by virtue of the threat of punishment such as imprisonment (or, in despotic parts of the world, death). Criminal law in the United States is the prerogative of the individual sovereign states, and is completely unrelated to the constitution except where the constitution serves to (1) grant states the right to create and enforce criminal laws; and (2) protect the rights of individuals from unfair deprivation of an enumerated list of constitutionally guaranteed individual rights.
The government will try to deal with the guy that goes around raping and murdering children; you don't have to sue that pedophile, it's just not a necessa
Because just like the GPL is the only thing that gives people the right to copy GPL software, the EPA and Clean Air Act and the like is the only thing that gives companies and people the right to poison each other with impunity.
The problem with the CAA and EPA is not their end, but their means. A positive result does not justify abuse of process. If the CAA and EPA have powers beyond what is legitimate, and they are nevertheless recognized, what stops the same branches of power (be it Congress or the Executive or the judiciary) from abusing this same extension of authority for malicious purposes? The division and separation of powers exists for the purpose of preventing this abuse so that process is democratic and representative, and it does so reasonably well when respected.
Respect for the environment is a totally separate issue from respect for the mechanisms that prevent abuse. If people are poisoning each other, there are valid non-abusive mechanisms to prevent that. If no such mechanism exists then, and only then, should the system be reformed. Thankfully the system in the US is sufficiently flexible that no such reform appears to be necessary, in the long run.
An animal does not adapt. It is born with a certain set of DNA, which it cannot change or control, and it lives or dies as a result what DNA it has (along with other factors like chance).
:)
Interestingly, the theory of evolution popularized before natural selection had precisely this concept, known as Lamarckism. Thus, the theory of evolution has at some point encapsulated this idea, even though it is obviously not the predominant mechanism we recognize today. Further, it highlights the difference between the theory of evolution, and the theory that evolution is attributed to natural selection (and, in my humble view, from an open-minded scientific perspective this difference should not be forgotten).
Food for thought.
Not disputed. Just trying to show the lay of the land, in particular the philosophical sort-of heading under which copyright might land. (So to speak). Hard to fit into a slashdot post. ;-) Thanks for the reply.
What the Judge is telling the RIAA here is that, having completed discovery, they can either go to a jury trial and pursue a guilty verdict, or have the case dismissed with prejudice.
This is a civil suit (it's a poor reference, sorry). It is not 'guilt' in the criminal sense so much as factual and legal causation, on a "balance of probabilities" (i.e. 50%+1 chance), and unlike criminal law its purpose is not punishment. Rather, as I understand it, common law civil suits (less punitive damages for what's known as first-party breach of fiduciary duties) are compensatory, designed to put the person suing in one of three positions
1. as good a position as they were in before the wrong, had the wrong had not happened;
2. as good a position as they would have been in now, had the wrong had not happened;
3. the position of receiving the unjust benefit that has gone to the person who committed the wrong. (i.e. unjustly enriched)
I believe these are the three forms of damages generally arising in common law.
In the case of the RIAA, #1 means undoing the infringement and the intangible benefits arising from those having listened to it. This is hard, nigh impossible, to calculate and undo. Had the lady sold the songs, it'd be different.
Under #2, they can claim they lost income from the loss of sale, and demand that it be paid, now.
Under #3, they can claim that that the woman's benefits from the claim were unjust, but this is more an economic argument. (i.e. if she stole the song and re-sold it for $1 million- if it is not a sale the RIAA would ever have made then the RIAA cannot claim the $1 million under #1 or #2, but can under #3)
However, this is all modified by the copyright legislation, which essentially provides a statutory value to #2, and effectively at punitive rates (thus, in effect constructing the legal inference that an individual has a duty of utmost good faith to the copyright holder). Thus, when the RIAA sues under #1, they can sue at exorbitant, punitive rates, way beyond any actual loss. This is designed as a deterrent to copyright infringement (like criminal law's punitive damages), except it doesn't have the checks and balances of criminal law (insofar as they exist) because a private individual can bring a copyright infringement claim and the standard of proof is only 50%+1 (i.e. 'balance of probabilities'- best highlighted by OJ Simpson being not guilty of murder beyond a reasonable doubt, but guilty on a balance of probabilities, making him not-liable in punitive criminal law, but guilty in civil compensation).
However, in the end, this case isn't about damages. The issue in this case seems to have been the lack of evidence brought by the RIAA. In many (virtually all) jurisdictions, this results in an adverse 'cost' award, where you have to pay the fees of the defendant (a compensatory deterrent to frivolous actions, precisely like the RIAA barratry).
Hope that's food for thought.
Ahh ... mens rea, actualization of culpability that is imbued upon us by that good old presumption of non-determinism commonly referred to as free will.
... it makes for a great philosophical discussion over a pint or several of Wellingtons.
To wit, if all was predetermined, there could be no criminal responsibility at law, because there could be no choice from which we could recognize an individual's guilt. That person had no choice, it was predetermined, and so they never made a choice to do something wrong, rather they are a product of their environment (however complex that may be).
However, that wouldn't stop us from recognizing pleasure and harm, recognizing that certain individuals in society have caused harm and are likely to enter into a pattern of causing harm, and that removing them from general population is deemed to be to the benefit of society in general. This is an alternative justification for the prison system, devoid of the philosophical hurdles of presuming free will, culpability, and reform.
Make no mistake, I'm just describing the arguments here
I don't care what he did. Winston Churchill did great things when he lead Britain to defeat the Nazis, yet I can call him a fat drunken slob without fear of recrimination if I so desire.
You can also call him an alcoholic, but he might tell you you're ugly, and that he'll be sober in the morning.
The evidence in this case doesn't even make it to the standard of "hearsay" not to mention the fact that the plaintiff lawyer appears to be highly inexperienced with Turets syndrome and keeps blurting "Objection to form."
It's late, and it's been a while since I've done this stuff, so I imagine someone else can do this better, but there's no post up yet.
Rules of evidence (no reference to policy, just rules). Law often works in layers, for example, something likeso:
- General rule: Everything relevant is admissible.
- Exception to the general rule: Hearsay: Oral statements by a person other than the one giving the testimony is inadmissible.
- Exception to the Hearsay rule: (obviously not applicable, here, but for example) Statements of a murder victim identifying their murderer can be admitted by someone who overheard them prior to the victim's death.
There are more exceptions, and exceptions to the exceptions (esp. in evidentiary rules). But the logic is generally like that.
So, to wit:
The statements of the expert are admissible, as to his/her expert opinion, and their awareness in information and belief, if they are relevant.
Oral statements by the expert about what someone else said are inadmissible under the hearsay exception to the general rule, even if they are relevant.
Unless such oral statements were (per the rule-example above) made by the victim of a murder, and identify the murderer (in which case they are de facto relevant).
In this case, much of the evidence is documentary, and admissible under the general rule. Only the oral statements of others would be inadmissible under the hearsay rule in this expert's testimony. (As I understand the rules of evidence as they probably apply here)
Not that the meaning of your statement was in any way wrong in the lay-sense. But just thought it might be interesting to lay out, as it pertains to this case, in the legal sense (as far as I might grasp such a critter and be halfway able to portray it).
I don't have a good reference, but there's a really interesting story about killer whales near Eden, Australia helping whalers. I found a brief reference, here:
u ctID=9002250
http://www.visitnsw.com.au/Destination.aspx?DProd
A century later, Eden became famous for its killer whale pod. Led by a whale known as "Old Tom", the pod would alert local whalers when other whales were in the vicinity, and whalers and killer whales would unite to herd their victims into the shallow waters of Twofold Bay.
Sounds like a lot of animals are pretty darn bright. Lord knows, these killer whales sound a hell of a lot smarter than the person I had on the tech support line for Bell the other day, and certainly they're a boatload more useful.