Thus, even while there is no immediate apprehension of being sued by N2H2, Edelman could have argued, by referring to the feds' treatment of the Elcomsoft case, that he has significant apprehension of being arrested and tried for crimes under the DMCA.
Three problems with that:
He could not show a reasonable apprehension of being ARRESTED - vague apprehension that you MIGHT be charged is not enough - you have to show a specific threat of enforcement of a criminal statute, not merely that you are afraid of being arrested for what you want to do in the future.
It is not the best legal move to actually get yourself arrested or proclaim that you have broken a law just so you can challenge a law -- you might lose.
If he wanted to use that tactic, he would have had to have sued the Government -- not the software mfg.
Spelling is always an issue -- especially when you communicate in writing. I won't bother pointing out your spelling mistakes in your last post.
I never professed to know your "legal status" -- whatever that means, I take it to mean whether you are an attorney -- I DID say that I doubted that you are truly an attorney. I still do, but I really don't care either way. For the record, it was your statements, which demonstrated basic misunderstanding about the law, that caused my doubt.
If you are truly an "intellectual property specialist" I'd be curious to know who certified you in that specialty and even more curious to know how that specialty makes you "very familiar" with the burden of proof in criminal cases. Most practitioners who deal with the criminal provisions of copyright law call themselves criminal defense attorneys, not IP specialists.
The "evolving nature of digital copyright law" has little to do with standing to sue for a declaratory judgment. The focus is on the activity and threat of suit.
Maybe you should be asking me for help with the bar exam -- I've passed three of them on the first try every time.
You are a lawyer? Why do I doubt that? Probably because:
You can't spell ("highly debatable legal tacit");
You have no command of the English language (anything can be debated -- I take it you meant "questionable," in which case, you would be wrong -- declaratory judgment actions are well established); and
You refer to a standard of proof (beyond a reasonable doubt) that is only applied in criminal cases when writing about a civil lawsuit.
The last item is a mistake that I would not expect even a first year law student to make. If you are indeed a lawyer, whatever law school produced you needs to have its accreditation reviewed and some state really needs to increase the difficulty of its bar exam.
In spite of Sega? The HARD question is whether the DMCA legislatively overruled Sega. That question was at the core of the recent Lexmark ink cartridge litigation.
Huh? I have no idea where you got this idea from. Don't give legal opinions unless you are a lawyer. If you are a lawyer, do some research and give some citations to authority for what you say.
"Iminent threat of suit" is a requirement under the Declaratory Judgment Act. For details, see my full post above. Basically it means that no one threatened him with a lawsuit and he couldn't show that his activities combined with other factors (such as his dealings with the software company) were be expected to result in the software company suing him.
This story is completely misleading about the actual ruling. The fact that the quote "there is no plausibly protected constitutional interest that Edelman can assert that outweighs N2H2's right to protect its copyrighted material from an invasive and destructive trespass" is taken out of context makes it worse.
This ruling does not even reach the merits of the DMCA or reverse engineering. It is concerned with a legal doctrine called standing. The law of standing in Federal Courts means that you must be a proper person to bring a claim. Article III of the US Constitution requires that there be an ACTUAL "case or controversy" for a court to hear. The US federal courts decide cases. The courts do NOT give advisory opinions - e.g., if you do this you will (not) be breaking the law.
The plaintiff here was a Harvard Law Student who asked the court to declare that IF he reverse-engineered the software THEN he would not be breaking the law - essentially asking for advice that the federal courts will not give.
The federal Declaratory Judgment Act allows federal courts to "declare" the rights of the parties, but that is different from giving advice. There still must be an actual case or controversy. To show that, the plaintiff must show that he has a "reasonable apprehension" of being sued. Usually that is done by showing the court some communication between the parties in which one party has either explicitly threatened a lawsuit or because of the relationship between the parties it is obvious that a suit is coming. Here, the law student could not show that, so he lacks standing to bring this suit.
If you doubt the correctness of my statements, look to the key part of Judge Stearns's quote: "there is no plausibly protected constitutional interest that Edelman [the plaintiff law student] can assert that outweighs N2H2's right to protect its copyrighted material...." He can't assert the rights he is trying to assert. In other words, you aren't the right person to bring this claim, you have no reasonable apprehension of actually being sued by these guys, you are merely asking for advice, we don't do that here, get out of my court but feel free to come back if you actually go ahead and reverse-engineer and you are threatened with a lawsuit.
He's not golfing - he is searching for the "real" killers. They allegedly follow the beer cart around the course. O.J. just always seems to be just one hole behind them no matter how hard he tries.
Perhaps, if those were the only premises in the argument. The "presumption of innocence" is a legal presumption that has a legal purpose for the operation of a trial. It serves only to ploace the burden of proof on the government to introduce evidence that the defendant committed every element of the crime charged beyond a reasonable doubt. It does not mean that you are actually innocent or that a court judgment says you are innocent.
There is nothing legally wrong with what happened in the Simpson case. In fact, you WANT that to happen in appropriate cases. That result actually shows that the system is working properly.
Simpson was NOT found "innocent." No one in a US court is EVER found "innocent." He was found "not guilty" - meaning that the jury stated there was not enough evidence to prove guilt beyond a reasonable doubt. That DOES NOT mean he did not do the crime, merely that the state did not bring enough evidence of his guilt to convince the jury.
(I won't get into whether the jury was correct.)
Civil cases, because they do not involve the loss of the accused's life or liberty, are determined by a lesser standard of proof - preponderance of the evidence. That means that the evidence must show that it was more likely than not that the defendant did what he or she is accused of doing. Because there are 2 standards of proof, there is the possibilty that someone can escape criminal liability, but not civil liability.
I don't know about anyone else, but when I read stories about retrials after acquittals, it makes me REALLY glad the U.S. Constitution prohibits Double Jeopardy (and not the round in the television show either).
Bah. I hate being wrong. Even more, I hate not remembering enough Shakespeare to be able to evaluate whether the web site you linked to is full of it or not. If I had more time I'd dig deeper - or I'd just chalk this one up and play my guitar.
A slight clarification -- the law may still apply to out of staters, but the minimum contacts test I mentioned may mean that you cannot force the spammer to come into an Ohio court. You would then have to go to the spammer's home state and sue him (or her or it) there and argue to that court that it should apply the Ohio statute.
Sound confusing? It is. First year law students struggle with these concepts for months during their Civil Procedure class. Lawyers struggle with them for the rest of their careers.
Congratulations! You are the 1 BILLIONTH person to misquote Shakespeare! When looked at in context, this quote actually PROVES THE NECESSITY of lawyers in civilization. The characters were trying to create anarchy - killing the lawyers would remove the rule of law and cause just that.
I can't give you specific legal advice, but I can tell you this: The law applies to out of state residents who have "minimum contacts" with the state of Ohio such that they can fairly be compelled to show up in an Ohio Court. This is a Constitutional test. It is VERY fact dependent but generally if someone directs an email to you knowing that you are an Ohio resident, then I would say the test is satisfied. Yes, this is the easy case. I can't go any further out on a limb with analysis without specific facts and I can't do that without making you a client.
Bottom line: just because they are out-of-state doesn't mean they are unreachable. Look at other posts above: a phone call can sometimes do wonders.
P.S. - you must be one of the other 6 or 7 people besides me (according to another post) who is online in Ohio...
Yes, that is the best part. It is a 5th degree felony, but a felony nonetheless. It is the same concept of having a relatively low penalty for robbery and an extreme penalty for robbery while masked. The enhancement is appropriate because of the increased enforcement costs and difficulty.
The statute does not make spamming totally illegal but it does ensure that Ohioans are able to stop it (to the extent that any law can) and places reasonable restrictions on advenrtising to ensure things are legit.
What is being referred to as a "boomerang effect" I am interpreting as concepts known as either "estoppel" or "res judicata." Estoppel is a principle applied that prevents a party to a lawsuit from advancing arguments that are inconsistent with positions it took earlier and which the opposing party relied. Res judicata loosely translated means "it has been decided" - that is, the court already decided the issue in the suit between the parties and its prior decision bars relitigation.
The caveat "between the parties" is important -- res judicata does nothing to prevent another party from relitigating the same issue against someone. For example, assume that Apple as part of a court-approved settlement agreed that it would not contest "Windows" as a trademark. That only means that Apple can no longer contest it - anyone else is free to challenge the validity of M$'s claimed trademark in "Windows."
For those of you who have heard that third parties can indeed use res judicata against a party, that is partially correct. Res judicata can be applied offensively, but only AGAINST a party who has had a full and fair opportunity to litigate the issue and LOST ON THAT ISSUE. To the best of my knowledge, M$ has never lost a determination that "windows" is a generic term and not entitled to trademark protection.
That being said, maybe the Lindows litigation team will find a smoking gun in these addional 300 boxes of documents that M$ now has to provide. M$ fought to not have to hand those documents over for SOME reason...
...is the fact that the BSA is logging into an FTP server that requires a (valid?) email address as the password for anonymous logins with an apparently false email address (guest@nowhere.com). So far as I can tell from a WHOIS lookup and visiting the home page for nowhere.com, the owner of that domain has nothing at all to do with the BSA. Seems like nowhere.com's owner may have a legal claim against the BSA, but how am I supposed to know, I'm only a lawyer....
It is not the concept of switching from Mac to PC that is being ridiculed. I agree that people should use the right tool for the job. I have used numerous OSes over the years, but I prefer Mac OS X at the time.
What is being ridiculed is Microsoft's efforts which seem to all copy Apple's. It is widely known that MS has copied Apple features over the years and has even been embroiled in litigation with Apple because of that copying. Apple's Switch campaign was notable (not groundbreaking - you'll see why in a second) not because of the core message that you should use a Mac instead of a Windows system, but because it returned to an advertising concept that had largely been abandoned by major companies - customer testimonials.
Think about it. Before Apple's Switch campaign, when is the last time you saw someone on your TV saying, "Hello, I'm a real person and I use this product because it works for me." ?
When the first company returns to a tried and true method that was largely abandoned, the concept is seen as fresh. The second one to try it had better have a radical spin on the concept to truly make it unique else they will be accused of copying. So -- MS looking for real people who have switched from Mac to Windows to tell their stories? I don't see anything unique - I see Apple's campaign in reverse. After one faux pas with a reverse switch campaign, I would think that MS would at least try to come up with something a little original.
P.S. - why did I post this? Because I wanted to point out that this is just the beginning of the battle - not the end. I hit the "submit" button too soon. Sorry - sue me.
...for all the non-lawyers (and non- "Law & Order" watchers) out there. In New York, the "Supreme Court" is the trial court - the lowest level in the system. The next step is the Appellate Division and finally the Court of Appeals. NY's C of A is analogous to other states' Supreme Courts. And no, I have no idea why they did it like that.
We have heard - AND read the opinions. Many of us don't like it any more than you do.
As for IBM lobbying Congress, the US's patent laws were extended to 20 years from 17 to harmonize the term with what goes on in other countries. US copyright law isn't nearly so entangled with the laws of other countries as is patent law. Therefore, I doubt any term changes will be made in the US without similar changes going on internationally.
Any company (or individual, for that matter) that/who agrees to pay for a license without looking at what patents (more specifically, what claims of those patents) are going to be asserted and whether it/they actually infringe those claims is foolish.
On a related point, if you agree to a license and later find out that your system does not infringe, there is nothing you can do. You can't sue because you agreed to take a license. You can't even sue to invalidate the patent because of a principle called licensee estoppel - it means that once you take a license, you are foreclosed from claiming that there is nothing to license (i.e., the patent is invalid so there is no property right to license).
The moral of the story is to spend some time in advance doing your homework. Threats of "you can pay a little for a license now or pay a lot for one later, if I decide to license it to you at all" are designed to do one thing - keep you from doing your homework.
Slashdot Mirror
Three problems with that:
- Spelling is always an issue -- especially when you communicate in writing. I won't bother pointing out your spelling mistakes in your last post.
- I never professed to know your "legal status" -- whatever that means, I take it to mean whether you are an attorney -- I DID say that I doubted that you are truly an attorney. I still do, but I really don't care either way. For the record, it was your statements, which demonstrated basic misunderstanding about the law, that caused my doubt.
- If you are truly an "intellectual property specialist" I'd be curious to know who certified you in that specialty and even more curious to know how that specialty makes you "very familiar" with the burden of proof in criminal cases. Most practitioners who deal with the criminal provisions of copyright law call themselves criminal defense attorneys, not IP specialists.
- The "evolving nature of digital copyright law" has little to do with standing to sue for a declaratory judgment. The focus is on the activity and threat of suit.
Maybe you should be asking me for help with the bar exam -- I've passed three of them on the first try every time.- You can't spell ("highly debatable legal tacit");
- You have no command of the English language (anything can be debated -- I take it you meant "questionable," in which case, you would be wrong -- declaratory judgment actions are well established); and
- You refer to a standard of proof (beyond a reasonable doubt) that is only applied in criminal cases when writing about a civil lawsuit.
The last item is a mistake that I would not expect even a first year law student to make. If you are indeed a lawyer, whatever law school produced you needs to have its accreditation reviewed and some state really needs to increase the difficulty of its bar exam.In spite of Sega? The HARD question is whether the DMCA legislatively overruled Sega. That question was at the core of the recent Lexmark ink cartridge litigation.
RTFO ... I like that! Can I use it in future posts?
Huh? I have no idea where you got this idea from. Don't give legal opinions unless you are a lawyer. If you are a lawyer, do some research and give some citations to authority for what you say.
"Iminent threat of suit" is a requirement under the Declaratory Judgment Act. For details, see my full post above. Basically it means that no one threatened him with a lawsuit and he couldn't show that his activities combined with other factors (such as his dealings with the software company) were be expected to result in the software company suing him.
This ruling does not even reach the merits of the DMCA or reverse engineering. It is concerned with a legal doctrine called standing. The law of standing in Federal Courts means that you must be a proper person to bring a claim. Article III of the US Constitution requires that there be an ACTUAL "case or controversy" for a court to hear. The US federal courts decide cases. The courts do NOT give advisory opinions - e.g., if you do this you will (not) be breaking the law.
The plaintiff here was a Harvard Law Student who asked the court to declare that IF he reverse-engineered the software THEN he would not be breaking the law - essentially asking for advice that the federal courts will not give.
The federal Declaratory Judgment Act allows federal courts to "declare" the rights of the parties, but that is different from giving advice. There still must be an actual case or controversy. To show that, the plaintiff must show that he has a "reasonable apprehension" of being sued. Usually that is done by showing the court some communication between the parties in which one party has either explicitly threatened a lawsuit or because of the relationship between the parties it is obvious that a suit is coming. Here, the law student could not show that, so he lacks standing to bring this suit.
If you doubt the correctness of my statements, look to the key part of Judge Stearns's quote: "there is no plausibly protected constitutional interest that Edelman [the plaintiff law student] can assert that outweighs N2H2's right to protect its copyrighted material...." He can't assert the rights he is trying to assert. In other words, you aren't the right person to bring this claim, you have no reasonable apprehension of actually being sued by these guys, you are merely asking for advice, we don't do that here, get out of my court but feel free to come back if you actually go ahead and reverse-engineer and you are threatened with a lawsuit.
He's not golfing - he is searching for the "real" killers. They allegedly follow the beer cart around the course. O.J. just always seems to be just one hole behind them no matter how hard he tries.
Perhaps, if those were the only premises in the argument. The "presumption of innocence" is a legal presumption that has a legal purpose for the operation of a trial. It serves only to ploace the burden of proof on the government to introduce evidence that the defendant committed every element of the crime charged beyond a reasonable doubt. It does not mean that you are actually innocent or that a court judgment says you are innocent.
Simpson was NOT found "innocent." No one in a US court is EVER found "innocent." He was found "not guilty" - meaning that the jury stated there was not enough evidence to prove guilt beyond a reasonable doubt. That DOES NOT mean he did not do the crime, merely that the state did not bring enough evidence of his guilt to convince the jury. (I won't get into whether the jury was correct.)
Civil cases, because they do not involve the loss of the accused's life or liberty, are determined by a lesser standard of proof - preponderance of the evidence. That means that the evidence must show that it was more likely than not that the defendant did what he or she is accused of doing. Because there are 2 standards of proof, there is the possibilty that someone can escape criminal liability, but not civil liability.
I don't know about anyone else, but when I read stories about retrials after acquittals, it makes me REALLY glad the U.S. Constitution prohibits Double Jeopardy (and not the round in the television show either).
Bah. I hate being wrong. Even more, I hate not remembering enough Shakespeare to be able to evaluate whether the web site you linked to is full of it or not. If I had more time I'd dig deeper - or I'd just chalk this one up and play my guitar.
Sound confusing? It is. First year law students struggle with these concepts for months during their Civil Procedure class. Lawyers struggle with them for the rest of their careers.
Congratulations! You are the 1 BILLIONTH person to misquote Shakespeare! When looked at in context, this quote actually PROVES THE NECESSITY of lawyers in civilization. The characters were trying to create anarchy - killing the lawyers would remove the rule of law and cause just that.
Bottom line: just because they are out-of-state doesn't mean they are unreachable. Look at other posts above: a phone call can sometimes do wonders.
P.S. - you must be one of the other 6 or 7 people besides me (according to another post) who is online in Ohio ...
The statute does not make spamming totally illegal but it does ensure that Ohioans are able to stop it (to the extent that any law can) and places reasonable restrictions on advenrtising to ensure things are legit.
The caveat "between the parties" is important -- res judicata does nothing to prevent another party from relitigating the same issue against someone. For example, assume that Apple as part of a court-approved settlement agreed that it would not contest "Windows" as a trademark. That only means that Apple can no longer contest it - anyone else is free to challenge the validity of M$'s claimed trademark in "Windows."
For those of you who have heard that third parties can indeed use res judicata against a party, that is partially correct. Res judicata can be applied offensively, but only AGAINST a party who has had a full and fair opportunity to litigate the issue and LOST ON THAT ISSUE. To the best of my knowledge, M$ has never lost a determination that "windows" is a generic term and not entitled to trademark protection.
That being said, maybe the Lindows litigation team will find a smoking gun in these addional 300 boxes of documents that M$ now has to provide. M$ fought to not have to hand those documents over for SOME reason ...
...is the fact that the BSA is logging into an FTP server that requires a (valid?) email address as the password for anonymous logins with an apparently false email address (guest@nowhere.com). So far as I can tell from a WHOIS lookup and visiting the home page for nowhere.com, the owner of that domain has nothing at all to do with the BSA. Seems like nowhere.com's owner may have a legal claim against the BSA, but how am I supposed to know, I'm only a lawyer ....
What is being ridiculed is Microsoft's efforts which seem to all copy Apple's. It is widely known that MS has copied Apple features over the years and has even been embroiled in litigation with Apple because of that copying. Apple's Switch campaign was notable (not groundbreaking - you'll see why in a second) not because of the core message that you should use a Mac instead of a Windows system, but because it returned to an advertising concept that had largely been abandoned by major companies - customer testimonials.
Think about it. Before Apple's Switch campaign, when is the last time you saw someone on your TV saying, "Hello, I'm a real person and I use this product because it works for me." ?
When the first company returns to a tried and true method that was largely abandoned, the concept is seen as fresh. The second one to try it had better have a radical spin on the concept to truly make it unique else they will be accused of copying. So -- MS looking for real people who have switched from Mac to Windows to tell their stories? I don't see anything unique - I see Apple's campaign in reverse. After one faux pas with a reverse switch campaign, I would think that MS would at least try to come up with something a little original.
Next, autonomous machines.
After that, humans as batteries for the autonomous machines.
Who said The Matrix wasn't real?
P.S. - why did I post this? Because I wanted to point out that this is just the beginning of the battle - not the end. I hit the "submit" button too soon. Sorry - sue me.
...for all the non-lawyers (and non- "Law & Order" watchers) out there. In New York, the "Supreme Court" is the trial court - the lowest level in the system. The next step is the Appellate Division and finally the Court of Appeals. NY's C of A is analogous to other states' Supreme Courts. And no, I have no idea why they did it like that.
As for IBM lobbying Congress, the US's patent laws were extended to 20 years from 17 to harmonize the term with what goes on in other countries. US copyright law isn't nearly so entangled with the laws of other countries as is patent law. Therefore, I doubt any term changes will be made in the US without similar changes going on internationally.
On a related point, if you agree to a license and later find out that your system does not infringe, there is nothing you can do. You can't sue because you agreed to take a license. You can't even sue to invalidate the patent because of a principle called licensee estoppel - it means that once you take a license, you are foreclosed from claiming that there is nothing to license (i.e., the patent is invalid so there is no property right to license).
The moral of the story is to spend some time in advance doing your homework. Threats of "you can pay a little for a license now or pay a lot for one later, if I decide to license it to you at all" are designed to do one thing - keep you from doing your homework.