I agree with him to a point. If you invent something you should be able to profit from it.
If, however, you WANT to give it away (and tell everyone how it works, and how you made it)... I don't really get why that's a problem.
The GPL is voluntary. If you don't want to give back your changes in the open source, then it's just like a commercial license -- the code within is off-limits.
Fair enough all around. MS can keep their code under wraps. Others can GPL it.
You are right. IP is a government-created concept. So is land-ownership and ownership over chattels. If such protections are so unimportant, then I suppose you won't mind when I move into your house.
I'm not convinced that you couldn't invalidate 28 U.S.C. 1338(a) though. If this suit reached the SCOTUS they might be determining whether Congress can exclude state courts from hearing claims brought under Federal laws.
>Yes, but the minute you do something illegal, you're outside your official capacity.
Not necessarily. It all gets right at whether or not the state has vicarious liability. Except, unlike in private vicarious liability suits, you can't sue the employee unless the employer (the state) is not able to be reached by vicarious liability.
You can definitely commit an illegal act in the course of your official duties. Think about a bouncer kicking someone out of a bar... if his boss says, "rough him up a little," the boss is responsible for the battery claim just as much as the bouncer.
although, apparently not for a federal copyright claim.
Nonetheless, that is based on jurisdiction, not sovereign immunity. Sovereign immunity is when the government says, "sorry, you can't sue me because I'm the government." A lack of jurisdiction is when the court is not allowed to hear a case.
It seems similar, but the reasoning behind it is different.
Eh... ignore most of that... apparently state courts don't have subject matter jurisdiction to hear federal copyright claims (unless it arises as a counterclaim, which would be unlikely).
Still, the law wouldn't be unconstitutional, per se, just entirely unenforceable.
I admit I didn't read the decision... however, I disagree with your opinion that the SCOTUS would not grant cert. They most certainly would want to resolve this issue.
After reading through the material a little more, I agree that it's not a slam dunk reversal at that level, BUT, I don't think it's a slam dunk to uphold the decision either.
The 11th Amendment essentially says that Federal courts do not have jurisdiction over claims against a state.
The necessary and proper clause, however would apply to Congress' power to "promote the progress of science and useful arts," and potentially allow this law to apply to states, regardless of their sovereign immunity. I suppose you could also make a claim involving the commerce clause there...
Furthermore, the subdivisions of a state do not have universal sovereign immunity. In this case, a State University might have difficulty asserting that immunity in any case.
The federal court would be right to dismiss this case for lack of jurisdiction, but the law itself could very well be upheld, so long as the case is brought in a state court. (Of course, this would just make forum selection for practicing lawyers and students taking civil procedure more of a pain).
Don't pop the cork on that bubbly yet. This may not survive an appeal. Even if the nutty 9th upheld this one, the SCOTUS would definitely want to take a stab at it as well (and they would almost certainly reverse this).
Why would you want this anyway? Do you really want the government to have the right to steal your work?
Go ahead... flame me. I think that Intellectual Property rights are important.
Economics is not a science. It is a "social science" like sociology. There is a quantitative dimension to economics, but the premises that said quantitative means are used to measure are entirely subjective.
Basically, you are an idiot if you think that any one school of economics can be right or wrong in an entirely objective scientific way. Because, on paper, the USSR should've been an economic dynamo, the problem of course was that people didn't act in the way their number's predicted...
Generally how it works is that for a case to proceed you must prove that you have a cause of action. Which means that you need to show BRIEFLY that the case isn't frivolous. Once you get beyond those initial pleading phases, however, the defendant needs to be actually involved in the case.
I don't see how that CAN be done anonymously.
I suppose you COULD sue "John Doe," but that seems a little silly.
...because business method patents are pointless and unnecessary. Why are we issuing a patent to a company that spent about 15 minutes in a board meeting, and 0 dollars on an entirely obvious business plan?
"In fact, I would say that a free-marketeer who favours positive law, and doesn't believe in natural law is unusual. Natural law theory is the moral basis of free-marketry; without it slanders against socialism have no moral depth."
Tell Ron Paul that... He may not specifically speak of it, but the manner in which it seems that he intends to use the constitution is far more compatible with a positive law theory. The MORAL basis of the free-market is built upon the GOOD that it can do for the world. Adam Smith claimed that the free-market alone can lead to socially beneficial results, ultimately the same goal as other systems like Socialism (although, someone who believes in the Free-Market would most likely believe that Socialism does not achieve those benefits).
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I agree with him to a point. If you invent something you should be able to profit from it.
If, however, you WANT to give it away (and tell everyone how it works, and how you made it)... I don't really get why that's a problem.
The GPL is voluntary. If you don't want to give back your changes in the open source, then it's just like a commercial license -- the code within is off-limits.
Fair enough all around. MS can keep their code under wraps. Others can GPL it.
I've actually read law review articles that dispute that.
You are right. IP is a government-created concept. So is land-ownership and ownership over chattels. If such protections are so unimportant, then I suppose you won't mind when I move into your house.
Without the legal PROTECTION, you have NO RIGHTS.
Sounds good. I'll be stopping by to copy your hard drive later.
I'm not convinced that you couldn't invalidate 28 U.S.C. 1338(a) though. If this suit reached the SCOTUS they might be determining whether Congress can exclude state courts from hearing claims brought under Federal laws.
>Yes, but the minute you do something illegal, you're outside your official capacity.
Not necessarily. It all gets right at whether or not the state has vicarious liability. Except, unlike in private vicarious liability suits, you can't sue the employee unless the employer (the state) is not able to be reached by vicarious liability.
You can definitely commit an illegal act in the course of your official duties. Think about a bouncer kicking someone out of a bar... if his boss says, "rough him up a little," the boss is responsible for the battery claim just as much as the bouncer.
although, apparently not for a federal copyright claim.
Nonetheless, that is based on jurisdiction, not sovereign immunity. Sovereign immunity is when the government says, "sorry, you can't sue me because I'm the government." A lack of jurisdiction is when the court is not allowed to hear a case.
It seems similar, but the reasoning behind it is different.
no, because you can still sue them in a state court.
They can only sue the individual state employee under this decision IF that employee was not acting in an official capacity.
Actually, according to the Constitution, copyrights and patents exist to, "promote the progress of science and useful arts."
The benefit to the public being that those things are created, not that they pass into the public domain.
Here is a question for you though... is there constitutional authority for Congress to revoke jurisdiction of state courts?
Eh... ignore most of that... apparently state courts don't have subject matter jurisdiction to hear federal copyright claims (unless it arises as a counterclaim, which would be unlikely).
Still, the law wouldn't be unconstitutional, per se, just entirely unenforceable.
The 11th Amendment just says that you can't sue a State in Federal court.
There is nothing in there saying that states have sovereign immunity over a copyright claim.
I admit I didn't read the decision... however, I disagree with your opinion that the SCOTUS would not grant cert. They most certainly would want to resolve this issue.
After reading through the material a little more, I agree that it's not a slam dunk reversal at that level, BUT, I don't think it's a slam dunk to uphold the decision either.
The 11th Amendment essentially says that Federal courts do not have jurisdiction over claims against a state.
The necessary and proper clause, however would apply to Congress' power to "promote the progress of science and useful arts," and potentially allow this law to apply to states, regardless of their sovereign immunity. I suppose you could also make a claim involving the commerce clause there...
Furthermore, the subdivisions of a state do not have universal sovereign immunity. In this case, a State University might have difficulty asserting that immunity in any case.
The federal court would be right to dismiss this case for lack of jurisdiction, but the law itself could very well be upheld, so long as the case is brought in a state court. (Of course, this would just make forum selection for practicing lawyers and students taking civil procedure more of a pain).
So instead of fixing the inequities of the law as it is enforced, you'd rather not have IP rights at all.
Don't pop the cork on that bubbly yet. This may not survive an appeal. Even if the nutty 9th upheld this one, the SCOTUS would definitely want to take a stab at it as well (and they would almost certainly reverse this).
Why would you want this anyway? Do you really want the government to have the right to steal your work?
Go ahead... flame me. I think that Intellectual Property rights are important.
NCAA Division IV is pretty awful. I agree.
He ran for the senate in the late 80's or early 90s, I believe.
check out vietnamveteransagainstmccain.com
Lew Rockwell is not the founder of the Austrian School. He is the founder of a think-tank that advocates that particular school of thought.
The Austrian School was founded by Ludwig von Mises and (Nobel Prize Winner) F.A. Hayek, among others.
Economics is not a science. It is a "social science" like sociology. There is a quantitative dimension to economics, but the premises that said quantitative means are used to measure are entirely subjective.
Basically, you are an idiot if you think that any one school of economics can be right or wrong in an entirely objective scientific way. Because, on paper, the USSR should've been an economic dynamo, the problem of course was that people didn't act in the way their number's predicted...
You can still be sued...
There is a case involving anonymous posters on Autoadmit/xoxohth.com...
I AM a Law Student...
Generally how it works is that for a case to proceed you must prove that you have a cause of action. Which means that you need to show BRIEFLY that the case isn't frivolous. Once you get beyond those initial pleading phases, however, the defendant needs to be actually involved in the case.
I don't see how that CAN be done anonymously.
I suppose you COULD sue "John Doe," but that seems a little silly.
...because business method patents are pointless and unnecessary. Why are we issuing a patent to a company that spent about 15 minutes in a board meeting, and 0 dollars on an entirely obvious business plan?
"In fact, I would say that a free-marketeer who favours positive law, and doesn't believe in natural law is unusual. Natural law theory is the moral basis of free-marketry; without it slanders against socialism have no moral depth."
Tell Ron Paul that... He may not specifically speak of it, but the manner in which it seems that he intends to use the constitution is far more compatible with a positive law theory. The MORAL basis of the free-market is built upon the GOOD that it can do for the world. Adam Smith claimed that the free-market alone can lead to socially beneficial results, ultimately the same goal as other systems like Socialism (although, someone who believes in the Free-Market would most likely believe that Socialism does not achieve those benefits).