That's not entirely clear from the facts. He has at least a decent claim that Viacom's use was not fair -- it's not particularly transformative (minimum commentary), it was a creative original work, and the entire thing was taken. To me, that sounds like infringement.
But, here's where it gets more interesting: if you create an unauthorized derivative work (which, if I'm right, Viacom did), you hit 17 USC 103(a):
". . . protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."
In other words, the portion of Viacom's work that includes the original video IS NOT COPYRIGHTABLE.
As a result, his posting of that portion was perfectly legal.
It's best if you can find a number that will nearly always go up, rarely go down, does not approach a limit and justifies ignoring requests like that in the future. Try: number of hours since last asked to develop a metric.
Under that logic, if he can't tell somebody how to bypass the security at the bank he works at without fear of government agents kicking in his door while he sleeps, his freedom is already gone.
There is a huge difference between talking to somebody in Iran and showing that person how to build a weapon.
Oy vey. I'm also a lawyer and get a couple of deals like this a month. There are generally a handful of well-used licenses -- the GPL, the LGPL, Apache 2.0, occasionally the Mozilla license. And then there are times when the client makes a choice -- with mySQL, for example, you choose either the GPL or the commercial license. These are generally well understood, and helping a client through that stuff is pretty easy.
The harder parts is often that the client doesn't understand exactly what they use -- there are a LOT of cross tie-ins in the Open Source world: you're using X, which is licensed under one open source license, but it uses Y, which is licensed under a different one, and both of them run in this operating environment licensed under Z. Often, they may know about X and Y, but don't know about Z, or know about X and Z, but not Y, etc.....
I agree with you that the first sale doctrine is settled law. But, the question is whether there was actually a purchase of a copyright work, or just a purchase of a LICENSE to a copyright work. The difference is huge.
"To be convicted of violating copyright, the accused has to actually make a copy." That's just plain wrong. You can violate copyright by violation any of the 17 U.S.C. 106 rights, not just the duplication right. Secondly, you can also be found liable for secondary (i.e. contributory or vicarious) infringement, in which somebody else does the actual infringing and you either help, or know about it and profit from the infringement. Thirdly, once you RUN that software, you are making a copy, into your computer's memory (there have been several cases where that's enough.)
As far as your last paragraph, I know you're right. Sometimes, the software license allows transfer as long as the next owner agrees to the license. But, if the license does not allow transfer and the next person runs the software for a sufficiently long time (I suspect that a short run could be fair use if you use it, say, to wipe the hard drive), then that's infringement.
You're right that it can be hard to enforce a shrink-wrap license, often because you're never made aware when somebody violates it. But, that doesn't mean that the license isn't legally enforceable.
BTW... most copyright cases are civil, not criminal. In civil cases, you're 'found liable', not 'convicted.'
That's exactly the point -- the first sale doctrine *is not* in effect, since there was no original sale of a copyrighted work, only a license to the work. If it's not sold, then the original owner may not have had the right to transfer his rights to you. And, if you don't have the rights, then when you make a copy of the work (as you do when you run it -- the program is loaded into memory), you're committing copyright infringement.
I will completely agree that all this hinges on the original license being enforceable, and there is still some legal uncertainty to that. However, the most cited case on point (see http://en.wikipedia.org/wiki/ProCD_v._Zeidenberg ) seems to think that it is.
Contracts do not have to be witnessed -- their existence can be proved circumstantially. Heck, people don't even need to meet: I could put a sign in my yard that says "$20 to the first person who cuts my grass" and, when somebody started cutting, there would be a contract. And, a fairly easy one to prove.
Even in my example, if the kid can convince a jury that it's more likely than not that I agreed to pay him the $20 for cutting the grass, he'll win. And, you can prove that by extrinsic evidence: Did he actually cut it? Was I looking for somebody to cut my lawn? Did he excitedly tell his parents that he needed to borrow the lawnmower because he just got hired to cut my lawn? Did I tell anybody not to cut my lawn because I had already hired somebody? Have I paid him for cutting my lawn before? Etc....
You seem to be talking more about evidence of contract formation than whether the contract is legally binding. Depending on the circumstances, this may be easy: is it your computer? Has it been in your possession? Did you use the software once it was installed? The other side only needs to convince a jury that it's more likely than not. In other words, it may come down to how believable you are with the "Dude, somebody broke into my house and installed it on my computer while I wasn't home" excuse.
There is an intersting side note: If you're talking about getting the computer from somebody else, with software preinstalled on it, that may be copyright infringement -- since the original owner licensed the software, he may not have had the right to transfer it to you.
(1) Legal Age: this is untrue -- a minor can enter into a contract, but the contract is voidable at the minor's option. One he/she reaches adulthood, that ability goes away. Bob Dylan, for example, signed his first recording deal before turning 18, and was unable to drop it after reaching majority. (Details are a little more covoluted than that....)
(2) "be identifiable" -- what on earth does that mean? Here's a great example: I go to a parking garage, insert $5 into the machine and get a parking voucher. That's a binding agreement -- in exchange for my $5, I get the right to park. Was I "identifiable"?
You do not need a signature to make a contract binding -- if, for example, a kid comes to my house and says "I'll mow your lawn for $20," and I agree, we have a contract, even though there's no signature. Putting a contract in writing is often useful only to prove the terms of the agreement.
Now, some contracts have to be in writing -- you generally can't transfer land or agree to be liable on another person's debt unless you've reduced the contract to writing. But, for most day-to-day things, no writing is needed.
You don't even need a click-through agreement to be bound by a license agreement -- you just need to have been presented with it and been given the opportunity to reject it. (This is where many software licenses break down -- you never see the license until after you buy, when the retailer won't refund your money. There's a legal grey area HERE, but not around click-though licenses in general.)
They'll find ways to remove it, but the large majority of people won't actually remove it unless the watermarks start to get annoying. Copying music is a "crime" of convenience -- it's so easy that many people don't even think twice about it. For most people, going through the trouble of stripping the watermarks isn't going to be worth the effort.
By analogy, when college students copy other people's work on papers or other assignments (another "crime" of convenience), they nearly always copy verbatim, maybe making minor changes here and there. That's why they're so easy to catch.
I think we disagree on who would win the battle if MS said "We aren't doing DRM, period."
The content industry always said "If there's no DRM, we won't use it." I suggest that this is not, at all, believable, because the entire content industry recognizes high-definition home video as the next huge thing that will increase their sales and profits. If the consumer electronics industry, led by MS, had come up with a DRM-free delivery mechanism, instead of two DRM-encumbered mechanisms, the movie industry would have had to make a choice: Either (a) release without DRM, or (b) forgo the profits they would have made. Executives who do (b) don't tend to stay in business very long.
The media industry is pulling the strings, but that does not mean that it has to -- "if you don't include DRM, we won't release hi-def movies" was always an empty threat. The consumer electronics industry (Microsoft included) could have called their bluff.
Well, if you'd like to go back and live with the Neanderthals, go ahead. Remember, though, that their life expectancy was somewhere around 20 years.
In any case, I'm not suggesting that we not look after the "crippled and infirm" -- how did you even get that from a discussion about risk pooling? In fact, American society has a lot of ways of doing that: charitable hospitals, community clinics, public service healthcare (Heck, a Florida hospital announced that it would provide several antibiotics FREE to children) and that doesn't even touch Medicare or Medicaid. But, far more importantly, we have a society where the enormous majority of people are able to receive good medical care -- care that is much better than their parents received.
The suggestion was that somehow insurance companies should pick up the health care costs of those they didn't want to insure. The only possible justification for that is "Well, they have money," which is hardly sufficient.
I see nothing wrong with such screening. Why should a risk pool be able to keep out somebody who, because they smoke heavily, has a 50% chance of dying in the next 50 years, but not somebody who has the same chance of dying, but because they have a congenital heart defect?
Nobody is entitled to have somebody else pay for their health care. If you can convince other people to let you pool your risk with theirs, go ahead and do it. But, don't force them to do it. Apart from the obvious reason, that would also has the effect of pushing low-risk people out of the pool.
I don't see anything wrong with your urine cup example, with the possible exception of the privacy implications (big nameless bureaucracy knowing the exact contents of your bowels, etc....)
Let's go back to what insurance is: it's a way of pooling risk. A bunch of people get together and agree that they will pay each other's catastrophic expenses. What's wrong with saying "you're a bigger risk, so we won't pay for your catastrophic expenses unless you pay for a larger share of ours"? There are natural bounds to how intrusive things will be -- at some point, the marginal cost (in time, money and irritation) isn't worth the increased benefit.
The big problem is the question of what happens to people who are 100% certain (or approaching 100%) of having some very expensive disease. It doesn't make any sense for them to be insured, except at rates that equal the cost of treating their disease. After all, why would the other people in that insurance group want to pick up the cost of that very sick person?
In previous generations, such people would have generally gone untreated, unable to pay for their own care. Nowadays, we let them spend their life savings, after which they go on medicaid or something similar.
So what? If I can't discriminate against ALL indications, I shouldn't be able to discriminate against any? Shouldn't car insurance be more expensive if you have a high-theft car, even if they don't raise your rates because you tend to drive at busy times of the day?
Ignoring the whole "BMI is a crappy indicator," this sort of thing does help diminish some of the moral hazard involved in insurance -- the idea that since somebody else will bear the cost of my activity, I'm more likely to engage in it. By increasing fees for smokers, that gives the smokers an additional incentive to quit. (And, yes, smokers do react to price, despite the addictive nature of cigarettes.)
Insurance still pools risk -- it's not like the smoker's premium is equal to the cost of treating lung cancer. But, presumably, the total premium for 1000 smokers will cover expected number of them who will get lung cancer. And, even though they have to pay more than non-smokers, they still benefit from the insurance.
Neither books nor audio CDs are protected by a "technological measure that effectively protects . .." A mod-chip is different because it bypasses the technological protections in the console. Photocopiers and CD-burners do not bypass technological protections.
Are you talking about copies of software that are unprotected by any copy-protection scheme? If so, that's probably OK. If, however, you're talking about copies of copy-protected games, that's a different story. Their creation, at minimum, is an infringement of the DMCA (17 USC 1201(a)(1)), and your possessing them is evidence that you created them. It's vaguely conceivable that the "backup" copies are fair uses even though you had to break the law to make them, but I wouldn't bet on it.
The mod chips themselves are a pretty violation under the DMCA:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that . . . is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
Whether the law is constitutional is really a question of law, not a question of fact. Normally, when we talk about the "Burden of Proof," we are concerned with questions of fact. So, for example, "Did the suspect kill the victim" is a factual question that goes to the jury. "Is murder illegal?" is a legal question, and stays with the judge.
This is a question of law: both sides will say why it is/isn't constitutional, and the judge will have to pick which side is correct (or come up with his own alternate explanation). In general, judges don't want to throw out well-settled law, so it's a bit of an uphill battle for the defendant. But, it's really more of who can present the best argument.
You put a coin into the machine, pull the handle, win and then cash out. Now, you have a bin full of $1 coins. How reasonable is it for you to be aware that you have 9 more coins than you should?
You're wrong on this one. The democratic appointees (Breyer & Ginsburg) were on one side. The republican appointees (Souter, Stevens, Roberts, Alito, Kennedy, Thomas and Scalia) were split across both sides.
In any case, all the Supreme Court said is that retail price maintenance isn't "per se" illegal. That doesn't make it legal; it just means that courts are now going to have to figure out when it's legal and when it's illegal.
Neither of these cases is going to turn on what the Supreme Court said -- their lawyers are just adding it in hopes it bolsters their cases.
The law isn't facially unconstitutional, since there are pretty clearly cases where it can be exercised constitutionally. For example, I don't think anybody would complain about the feds investigating violations of constitutional federal statues. Since the commerce clause (at least under current jurisprudence) gives the feds broad power over things in, or affecting, interstate commerce, this makes the police power pretty wide.
First of all, high fructose corn syrup is hidden in nearly everything, including many places where you wouldn't expect it to be. For example, I used to drink a lot of Welch's juice in paper containers, until I discovered that it was sweetened with HFCS. I expect the sugar from the fruit; I don't expect MORE to be added. HFCS is in many things that you just don't anticipate. Heck, it's injected (or infused) into some meats and fruits. So, you can't really blame the consumer for the poor choices they make, when some important facts are hidden.
Second of all, it's a question of economics and public policy. If corn subsidies are keeping HFCS prices artificially low, then people will consume more of it.
I agree that the government shouldn't be forcing people to do healthy things. However, here government policies are actually encouraging people to do things that aren't healthy.
Not what I said. I was replying to the comment that millions of people would be forced to buy new TVs or converters. Personally, I think the converters are a huge boondoggle.
I don't see anything wrong with auctioning off spectrum, especially when you compare it to the way that the government used to do it, by holding individual licensing hearings for each broadcaster, trying (and failing abysmally) to make sure that the broadcasters were using the spectrum for the public good. By treating the spectrum as property, they've allowed the free market to work.
They could have just given rights to the spectrum away and achieved the same end. The difference, though, is that by auctioning it off, the wad of cash goes to the government and not to the people they initially give the spectrum to.
What is your alternative choice for deciding who gets the spectrum?
The most compelling reason to ditch NTSC is that the spectrum it occupies is very valuable, in part because it is not as impeded by obstructions as other frequencies. The switch to HDTV is a catalyst that provides an alternative. A portion of the money gained from the auction of the previous UHF/VFH space will be used for vouchers for consumers to buy conversion devices for their TVs. I suspect, though, that these will be mainly unused, as the large majority of TV viewers are on either cable or satellite, neither one of which will be directly affected.
Totally with you on the state-experiment thing. I'm all in favor of what Massachusetts is doing here -- if it work well, it might be a good model for other states; if it fails, it will be a good warning for other states.
One interesting statistic is that people in the U.S. have greater satisfaction with the results of the health care they do receive than do their peers in other countries. The trick is to keep this statistic up, while pushing the cost down.
One potential reform would be to allow individuals to deduct the cost of their self-purchased health insurance. Right now, businesses can deduct the cost of their employee's health insurance, but employees can't. This skews the insurance system towards plans employers like, and away from plans patients like. It also means that fewer people who are not covered by an employer's health plan will buy one one their own.
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That's not entirely clear from the facts. He has at least a decent claim that Viacom's use was not fair -- it's not particularly transformative (minimum commentary), it was a creative original work, and the entire thing was taken. To me, that sounds like infringement.
But, here's where it gets more interesting: if you create an unauthorized derivative work (which, if I'm right, Viacom did), you hit 17 USC 103(a):
". . . protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."
In other words, the portion of Viacom's work that includes the original video IS NOT COPYRIGHTABLE.
As a result, his posting of that portion was perfectly legal.
It's best if you can find a number that will nearly always go up, rarely go down, does not approach a limit and justifies ignoring requests like that in the future. Try: number of hours since last asked to develop a metric.
Under that logic, if he can't tell somebody how to bypass the security at the bank he works at without fear of government agents kicking in his door while he sleeps, his freedom is already gone.
There is a huge difference between talking to somebody in Iran and showing that person how to build a weapon.
Oy vey. I'm also a lawyer and get a couple of deals like this a month. There are generally a handful of well-used licenses -- the GPL, the LGPL, Apache 2.0, occasionally the Mozilla license. And then there are times when the client makes a choice -- with mySQL, for example, you choose either the GPL or the commercial license. These are generally well understood, and helping a client through that stuff is pretty easy.
The harder parts is often that the client doesn't understand exactly what they use -- there are a LOT of cross tie-ins in the Open Source world: you're using X, which is licensed under one open source license, but it uses Y, which is licensed under a different one, and both of them run in this operating environment licensed under Z. Often, they may know about X and Y, but don't know about Z, or know about X and Z, but not Y, etc.....
I agree with you that the first sale doctrine is settled law. But, the question is whether there was actually a purchase of a copyright work, or just a purchase of a LICENSE to a copyright work. The difference is huge.
"To be convicted of violating copyright, the accused has to actually make a copy." That's just plain wrong. You can violate copyright by violation any of the 17 U.S.C. 106 rights, not just the duplication right. Secondly, you can also be found liable for secondary (i.e. contributory or vicarious) infringement, in which somebody else does the actual infringing and you either help, or know about it and profit from the infringement. Thirdly, once you RUN that software, you are making a copy, into your computer's memory (there have been several cases where that's enough.)
As far as your last paragraph, I know you're right. Sometimes, the software license allows transfer as long as the next owner agrees to the license. But, if the license does not allow transfer and the next person runs the software for a sufficiently long time (I suspect that a short run could be fair use if you use it, say, to wipe the hard drive), then that's infringement.
You're right that it can be hard to enforce a shrink-wrap license, often because you're never made aware when somebody violates it. But, that doesn't mean that the license isn't legally enforceable.
BTW... most copyright cases are civil, not criminal. In civil cases, you're 'found liable', not 'convicted.'
That's exactly the point -- the first sale doctrine *is not* in effect, since there was no original sale of a copyrighted work, only a license to the work. If it's not sold, then the original owner may not have had the right to transfer his rights to you. And, if you don't have the rights, then when you make a copy of the work (as you do when you run it -- the program is loaded into memory), you're committing copyright infringement.
I will completely agree that all this hinges on the original license being enforceable, and there is still some legal uncertainty to that. However, the most cited case on point (see http://en.wikipedia.org/wiki/ProCD_v._Zeidenberg ) seems to think that it is.
Contracts do not have to be witnessed -- their existence can be proved circumstantially. Heck, people don't even need to meet: I could put a sign in my yard that says "$20 to the first person who cuts my grass" and, when somebody started cutting, there would be a contract. And, a fairly easy one to prove.
Even in my example, if the kid can convince a jury that it's more likely than not that I agreed to pay him the $20 for cutting the grass, he'll win. And, you can prove that by extrinsic evidence: Did he actually cut it? Was I looking for somebody to cut my lawn? Did he excitedly tell his parents that he needed to borrow the lawnmower because he just got hired to cut my lawn? Did I tell anybody not to cut my lawn because I had already hired somebody? Have I paid him for cutting my lawn before? Etc....
You seem to be talking more about evidence of contract formation than whether the contract is legally binding. Depending on the circumstances, this may be easy: is it your computer? Has it been in your possession? Did you use the software once it was installed? The other side only needs to convince a jury that it's more likely than not. In other words, it may come down to how believable you are with the "Dude, somebody broke into my house and installed it on my computer while I wasn't home" excuse.
There is an intersting side note: If you're talking about getting the computer from somebody else, with software preinstalled on it, that may be copyright infringement -- since the original owner licensed the software, he may not have had the right to transfer it to you.
(1) Legal Age: this is untrue -- a minor can enter into a contract, but the contract is voidable at the minor's option. One he/she reaches adulthood, that ability goes away. Bob Dylan, for example, signed his first recording deal before turning 18, and was unable to drop it after reaching majority. (Details are a little more covoluted than that....)
(2) "be identifiable" -- what on earth does that mean? Here's a great example: I go to a parking garage, insert $5 into the machine and get a parking voucher. That's a binding agreement -- in exchange for my $5, I get the right to park. Was I "identifiable"?
You do not need a signature to make a contract binding -- if, for example, a kid comes to my house and says "I'll mow your lawn for $20," and I agree, we have a contract, even though there's no signature. Putting a contract in writing is often useful only to prove the terms of the agreement.
Now, some contracts have to be in writing -- you generally can't transfer land or agree to be liable on another person's debt unless you've reduced the contract to writing. But, for most day-to-day things, no writing is needed.
You don't even need a click-through agreement to be bound by a license agreement -- you just need to have been presented with it and been given the opportunity to reject it. (This is where many software licenses break down -- you never see the license until after you buy, when the retailer won't refund your money. There's a legal grey area HERE, but not around click-though licenses in general.)
They'll find ways to remove it, but the large majority of people won't actually remove it unless the watermarks start to get annoying. Copying music is a "crime" of convenience -- it's so easy that many people don't even think twice about it. For most people, going through the trouble of stripping the watermarks isn't going to be worth the effort.
By analogy, when college students copy other people's work on papers or other assignments (another "crime" of convenience), they nearly always copy verbatim, maybe making minor changes here and there. That's why they're so easy to catch.
I think we disagree on who would win the battle if MS said "We aren't doing DRM, period."
The content industry always said "If there's no DRM, we won't use it." I suggest that this is not, at all, believable, because the entire content industry recognizes high-definition home video as the next huge thing that will increase their sales and profits. If the consumer electronics industry, led by MS, had come up with a DRM-free delivery mechanism, instead of two DRM-encumbered mechanisms, the movie industry would have had to make a choice: Either (a) release without DRM, or (b) forgo the profits they would have made. Executives who do (b) don't tend to stay in business very long.
The media industry is pulling the strings, but that does not mean that it has to -- "if you don't include DRM, we won't release hi-def movies" was always an empty threat. The consumer electronics industry (Microsoft included) could have called their bluff.
Well, if you'd like to go back and live with the Neanderthals, go ahead. Remember, though, that their life expectancy was somewhere around 20 years.
In any case, I'm not suggesting that we not look after the "crippled and infirm" -- how did you even get that from a discussion about risk pooling? In fact, American society has a lot of ways of doing that: charitable hospitals, community clinics, public service healthcare (Heck, a Florida hospital announced that it would provide several antibiotics FREE to children) and that doesn't even touch Medicare or Medicaid. But, far more importantly, we have a society where the enormous majority of people are able to receive good medical care -- care that is much better than their parents received.
The suggestion was that somehow insurance companies should pick up the health care costs of those they didn't want to insure. The only possible justification for that is "Well, they have money," which is hardly sufficient.
I see nothing wrong with such screening. Why should a risk pool be able to keep out somebody who, because they smoke heavily, has a 50% chance of dying in the next 50 years, but not somebody who has the same chance of dying, but because they have a congenital heart defect?
Nobody is entitled to have somebody else pay for their health care. If you can convince other people to let you pool your risk with theirs, go ahead and do it. But, don't force them to do it. Apart from the obvious reason, that would also has the effect of pushing low-risk people out of the pool.
I don't see anything wrong with your urine cup example, with the possible exception of the privacy implications (big nameless bureaucracy knowing the exact contents of your bowels, etc....)
Let's go back to what insurance is: it's a way of pooling risk. A bunch of people get together and agree that they will pay each other's catastrophic expenses. What's wrong with saying "you're a bigger risk, so we won't pay for your catastrophic expenses unless you pay for a larger share of ours"? There are natural bounds to how intrusive things will be -- at some point, the marginal cost (in time, money and irritation) isn't worth the increased benefit.
The big problem is the question of what happens to people who are 100% certain (or approaching 100%) of having some very expensive disease. It doesn't make any sense for them to be insured, except at rates that equal the cost of treating their disease. After all, why would the other people in that insurance group want to pick up the cost of that very sick person?
In previous generations, such people would have generally gone untreated, unable to pay for their own care. Nowadays, we let them spend their life savings, after which they go on medicaid or something similar.
So what? If I can't discriminate against ALL indications, I shouldn't be able to discriminate against any? Shouldn't car insurance be more expensive if you have a high-theft car, even if they don't raise your rates because you tend to drive at busy times of the day?
Ignoring the whole "BMI is a crappy indicator," this sort of thing does help diminish some of the moral hazard involved in insurance -- the idea that since somebody else will bear the cost of my activity, I'm more likely to engage in it. By increasing fees for smokers, that gives the smokers an additional incentive to quit. (And, yes, smokers do react to price, despite the addictive nature of cigarettes.)
Insurance still pools risk -- it's not like the smoker's premium is equal to the cost of treating lung cancer. But, presumably, the total premium for 1000 smokers will cover expected number of them who will get lung cancer. And, even though they have to pay more than non-smokers, they still benefit from the insurance.
Neither books nor audio CDs are protected by a "technological measure that effectively protects . . ." A mod-chip is different because it bypasses the technological protections in the console. Photocopiers and CD-burners do not bypass technological protections.
The mod chips themselves are a pretty violation under the DMCA:
That's a little confused:
Whether the law is constitutional is really a question of law, not a question of fact. Normally, when we talk about the "Burden of Proof," we are concerned with questions of fact. So, for example, "Did the suspect kill the victim" is a factual question that goes to the jury. "Is murder illegal?" is a legal question, and stays with the judge.
This is a question of law: both sides will say why it is/isn't constitutional, and the judge will have to pick which side is correct (or come up with his own alternate explanation). In general, judges don't want to throw out well-settled law, so it's a bit of an uphill battle for the defendant. But, it's really more of who can present the best argument.
Some of them, maybe. But, consider this scenario:
You put a coin into the machine, pull the handle, win and then cash out. Now, you have a bin full of $1 coins. How reasonable is it for you to be aware that you have 9 more coins than you should?
It gets even harder if you do a lot of pulls.
You're wrong on this one. The democratic appointees (Breyer & Ginsburg) were on one side. The republican appointees (Souter, Stevens, Roberts, Alito, Kennedy, Thomas and Scalia) were split across both sides.
In any case, all the Supreme Court said is that retail price maintenance isn't "per se" illegal. That doesn't make it legal; it just means that courts are now going to have to figure out when it's legal and when it's illegal.
Neither of these cases is going to turn on what the Supreme Court said -- their lawyers are just adding it in hopes it bolsters their cases.
The law isn't facially unconstitutional, since there are pretty clearly cases where it can be exercised constitutionally. For example, I don't think anybody would complain about the feds investigating violations of constitutional federal statues. Since the commerce clause (at least under current jurisprudence) gives the feds broad power over things in, or affecting, interstate commerce, this makes the police power pretty wide.
There are two problems with your argument.
First of all, high fructose corn syrup is hidden in nearly everything, including many places where you wouldn't expect it to be. For example, I used to drink a lot of Welch's juice in paper containers, until I discovered that it was sweetened with HFCS. I expect the sugar from the fruit; I don't expect MORE to be added. HFCS is in many things that you just don't anticipate. Heck, it's injected (or infused) into some meats and fruits. So, you can't really blame the consumer for the poor choices they make, when some important facts are hidden.
Second of all, it's a question of economics and public policy. If corn subsidies are keeping HFCS prices artificially low, then people will consume more of it.
I agree that the government shouldn't be forcing people to do healthy things. However, here government policies are actually encouraging people to do things that aren't healthy.
Not what I said. I was replying to the comment that millions of people would be forced to buy new TVs or converters. Personally, I think the converters are a huge boondoggle.
I don't see anything wrong with auctioning off spectrum, especially when you compare it to the way that the government used to do it, by holding individual licensing hearings for each broadcaster, trying (and failing abysmally) to make sure that the broadcasters were using the spectrum for the public good. By treating the spectrum as property, they've allowed the free market to work.
They could have just given rights to the spectrum away and achieved the same end. The difference, though, is that by auctioning it off, the wad of cash goes to the government and not to the people they initially give the spectrum to.
What is your alternative choice for deciding who gets the spectrum?
The most compelling reason to ditch NTSC is that the spectrum it occupies is very valuable, in part because it is not as impeded by obstructions as other frequencies. The switch to HDTV is a catalyst that provides an alternative. A portion of the money gained from the auction of the previous UHF/VFH space will be used for vouchers for consumers to buy conversion devices for their TVs. I suspect, though, that these will be mainly unused, as the large majority of TV viewers are on either cable or satellite, neither one of which will be directly affected.
Totally with you on the state-experiment thing. I'm all in favor of what Massachusetts is doing here -- if it work well, it might be a good model for other states; if it fails, it will be a good warning for other states.
One interesting statistic is that people in the U.S. have greater satisfaction with the results of the health care they do receive than do their peers in other countries. The trick is to keep this statistic up, while pushing the cost down.
One potential reform would be to allow individuals to deduct the cost of their self-purchased health insurance. Right now, businesses can deduct the cost of their employee's health insurance, but employees can't. This skews the insurance system towards plans employers like, and away from plans patients like. It also means that fewer people who are not covered by an employer's health plan will buy one one their own.