The last paragraph, however, is the greatest laugh-inducer:
If any provision of this Agreement is found to be invalid or unenforceable, then the invalid or unenforceable provision will be stricken from this Agreement without affecting the validity or enforceability of any other provision.
It's a common CYA clause, without it any void clause can void an entire contract. In many cases no-one actually writes these things from scratch, they simply glue pre-existing pieces of boiler plate together, with alterations to make them fit. There's probably a fair bit of mixing in clauses they know full well are void, on the basis that no-one is going to call their bluff on them.
Similarly, for a long time cable companies would not let you split their signal and have multiple TVs without paying them to do it. Now that has become a major selling point for them against digital satelites. Today when your cable company comes out for whatever reason, they'll happily split your signal for free, replace your low quality splitters with their high quality ones, and leave all your TVs connected no questions asked.
I think this situation SHOULD fall under the same rule. You pay for the cable to come into your house, If you own your cable modem, you should be able to do anything you want to it. If they REALLY want to cap you, they'll have to do it on their end, because you cannot tell me what I can and cannot do with my property.
This argument makes more sense when applied to TOS which forbid connecting a "network" to the service. Uncapping a cable modem is more like altering a cable box to get extra channels.
I really don't understand why the feds are so eager to expand their jurisdiction so much. Why take on additional work when the states can handle it on their own?
Because it expands their power and influence. Including in cases where their only legitimate role would be advising local authorities, e.g. at the WTC.
The ISP can and should put a stop to "excessive" bandwidth use in their own office. That is, by the time the user's packets reach the cable company's routers, the provider can tell who each packet belongs to. They can detect someone sending more packets than he should be, and can drop them there.
That would fix 95% of their problems from someone uncapping. Doesn't use any more of their upstream bandwidth, and the sneaky users aren't getting any additional throughput, so they'll probable give up on it.
Quite possibly they will be getting a worst throughput than before they uncapped. Also if the ISP supplied the cable modem they can attempt to automatically recap it.
I agree with the above poster. If you are an ISP expecting people to observe bandwidth restrictions, you'd darn well be limiting it at the head-end, and not expecting the client end to be secure.
Most likely they are using the same idea as for a cable TV system. Where all the channels are present on the cable, but the converter box allows or disallows acess to specific channels. Difference is that cable TV boxes are generally considerably more difficult for a customer to reconfigure than cable modems.
Criminally charging and arresting people for modifying a piece of hardware in their house that they own is stupid. If it's leased, it's a slightly different story, and they should be prosecuted for destroying property owned by someone else.
Except that they are not destroying it, simply changing it from mode A to mode B.
Or hunting down and executing civilians who ignore their authority (Ruby Ridge), dousing
with flammable gas and igniting, then denying photographic evidence of shooting civilians
as they attempted to flee (Waco), or ignoring evidence of Islamic terrorism in the
prosecution of a major case preferring to stick with the politically pleasing but incorrect
"angry white male" prosecution (OKC), yes, the FBI does seem to have some priority
problems.
Remember that this is the same FBI that was too busy chasing "communists" to worry about mobsters a while back.
I don't mean to sound like a conspiracy theorist
That's only likely to be a problem if you attempt to advocate a politically incorrect conspiracy theory. If you go with a PC conspiracy theory, e.g. anything involving Al Queda, then no-one will question you.
If the ISP is not responsible for their screw-up, who is? Oh, I see... You're one of those right-wingers who thinks that all corporations should get a free pass. Now matter how badly they screw over the consumer, they should be immune from lawsuits.
If we are going to insist of the legal fiction of pretending that corporations are "people". Then they certainly should be held liable for the consequences of their own actions.
Many ISPs today are LLC's (Limited Liability Corporation). Assuming these are, it would mean that they are ONLY required to refund her monthly bill during this period, nothing more.
Now, if they're not an LLC, I guess this will be up to a judge or jury, but personally, I don't see how they could be forced to cough up this $65.000.
Except that it dosn't (or at least didn't originally) mean this. What it ment was limited liability for investors if the corporation went bankrupt then the creditors could not demand that the stockholders made good their debts. Nothing about protecting the corporation from the consequences of it's own actions or protecting it's executives (even if they held stock) from their actions. They may have a contractual agreement with their customers that they would only pay X amount, but a court judgment can easily rule such a clause not applicable. The contract dosn't apply anyway, the supplier has failed to uphold their part of the agreement.
The phone company screws up, and disconnects your phone, during which time your phone number is pulled from a hat on some radio show and you win a brand new toaster. According to the competition rules, if they can't reach you on the phone, they pull another number from the hat, so they do and that person answers and wins. Now, would you have a case against the phone company? In my opinion, absolutely not. They are only responsible for the SERVICE you subscribe to. They are not responsible for any outside problems you might incur if they fail to provide that service for some reason.
The term involved is "consequential loss" or "consequential damage".
Somewhere in the AUP, or some other disclaimer, ISPs have a blurb where they state they cannot be held accountable for financial loss due to system downtime and misconfiguration.
Plenty of case law to establish that such clauses do not have unlimited scope. Most likely they would be considered null and void where negligence was demonstratable.
So, the judge got it wrong. This isn't about legality, its about "looking good". What does it
take to get rid of a federal judge? Can we get her name on a check box on the November
ballot "Do you want to keep the Judge who bent over to Microsoft?" She played the
political game and now she can advance to the next level.
Judges are not elected. In theory this keeps them outside of the politics affecting legislature and executive. The practice appears to be another matter...
Judges should not be lawyers. There is no reason they need to be. A judge is there to
make sane judgements. The other defense and prosecution are there to tell the judge
about the law.
If the judge isn't a lawyers then any lawyers working for any party to the case had better be able to explain things in plain language.
The judge doen't need to have a legal background and most of the better
judges in the rural part of the mid west never took a class at a law school. More of them
need to make it higher up in the legal food chain.
Maybe there is some kind of "glass ceiling" for non lawyer judges.
You're right. The other person who responded to you and the moderator who modded
you down may prefer not to admit it, but it's pretty well known that the Bush/Ashcroft DoJ
were embarrassed by the Appeal Court ruling (which upheld Jackson's verdict) and
negotiated something that wouldn't cause much harm to Microsoft.
It also indicates that the much trumpeted separation of powers within the US government is more an illusion than actual.
This is a depressing resolution. Someone is convicted of harming competition and told
that they will barely get punished because the judge doesn't want to risk aiding
Microsoft's "competition" (or rather, potential competition - there is no sodding
competition right now.)
Also this trial resulted because Microsoft didn't abide by a previous court case. Usually if someone is dragged back to court because the first case didn't work they are apt to get the book thrown at them.
Yup. It's all for the bottom line. They won't give up ONE...RED...CENT*... unless it increases their profits.
Microsoft have put themselves in a position where they have to make profit which increases at an increasing rate in order to retain their stock market valuation.
Pretty abominable, really, but the stockholders pretty much force this on them.
It's probably at least as much the fault of stock traders, compounded by Microsoft paying employees in stock options. Most likely the price quoted on Nasdaq has nothing at all to do with the amount a stock certificate says the holder has invested in Microsoft Corporation.
Interesting that you mention this, because i was thinking the same thing. Seems as though public image
isn't worth much to Microsoft (albeit this story isn't on the eleven o'clock news).
Image matters a lot when your business is in competition or there is a market which can reasonably expand. Having a good image can attract customers, having a bad image can drive customers to your competitors. Microsoft is however it the situation of being a monopoly in a market which is close to saturation in quite a few parts of the world.
I work at a chain of bookstores that is in similar standing with Barnes and Noble, and we'll do just about
anything for the image of the company, even if that means taking a loss on some transactions to give
customers a good impression of the company (in turn keeping them loyal to us)
Your business is a competitive one, where your customers could easily go elsewhere in order to get exactly the same products they get from you.
Bill Gates lies to judges, and you think he is not an evil man? He had more than enough opportunity to
plead the fifth, but instead chose to repeatedly commit perjury even after being warned. He deserves to rot
in a federal pound-me-in-the-ass penetentary for a week for that alone.
The difference is that if a regular person gets caught lying in court they are likely to wind up in jail. It's called being in "Contempt of Court". Since he was appearing on behalf of Microsoft Corporation he probably couldn't have self incriminated William H. Gates the Third anyway.
You know who else tends to lie constantly and through their teeth in court? A Mobster.
There appears to be a legal loophole. Where things are handled differently if a mobster sets up a business (even an entirely legitimate one) and if something starts out as a legitimate business then starts behaving like one run by mobsters.
I still think that in practice a fully Open Source world will create a lack of jobs for myself and other
programmers. Seriously, what other profession (Engineers, Architects, Lawyers, etc.) works for FREE,
effectively lowering the value of their profession?
Actually all your examples work better as proof that a fully open source world would have plenty of work for computer professionals. These are all examples of tertiary (service) industries. Where people are paid for their time and expertise. Whilst engineering principles, architectural principles and laws might be obscure and often described in jargon they are not secret.
I have to contest that - 500ish watts for a 'standard' desktop? I don't think so. My desktop (before I got my
mac) uses a 350W power supply (enermax).
You omitted the monitor. Remember that a lot of this power winds up being pumped out as heat, the last thing you need in a tropical country is heating. Namibia's capital has a similar lattitude to Havana.
Namibia: I need a vehicle I could drive from home to work. Micorosft: I'll give you free floormats but you
have to buy 6 cars.
To get the floormats you'll have to buy the cars from Microsoft too. Since Microsoft dosn't do off-road vehicles you'd better think about building some roads:)
If I were in business I might jump at at the 18% off, but when you have very little money to begin with, well,
would you rather get the MS software, or use linux and gice computers to a few more villages?
Also in the latter case no need to learn American or get your feet wet if things don't work.
THe other thing people have said that sounds fair to me is priorities. With the problems in most of africa,
what good is Net access?
Namibia is the size of the western United States, but with a considerably lower population density
They wanted to turn this into a sales opportunity as well and grab a chance to
lock even some of the world's poorest into their exploitative upgrade cycles. Make no mistake, if these
people had taken this deal, all that money would be pure profit for MS.
Namibia is in considerably better shape than many other African countries. The thing is that to poor countries even the lowest rung on Microsoft's upgrade ladder is out of reach so they never get started in the first place. Unlike in richer counties where people might have spent a lot getting used to Microsoft before they get hit by an upgrade they can't really afford.
Microsoft wants it's foot in the door by donating Office. These people are working on a small budget, and
absolutely cannot afford the infrastructure needed to even USE that software. It's hardly a "gift".
It's where the term "white elephant" comes from. Someone would be offered a gift of an elephant by someone rich and powerful, but would be faced with either losing face by refusing or going bankrupt trying to feed the animal.
DNS is flawed. When designed, it no doubt made sense to limit the system to a fixed set of TLD's and root
servers. Technology wasn't available at the time to allow for much else. Creating an artificially limited
namespace was a necessity driven by the cost of implementation. And as a balance to that, there was no
fee to register a domain.
The problem isn't with with the DNS, it's with misusing the DNS as though it is a flat namespace. Thus you get www.someadvertisingsloganwhichwillonlybeusedfor3mo nths.com and the like. DNS names are the equivalent of addresses or telephone numbers. There is no one demonstrating outside the UN for more countries so they can get a postal address or banging on the ITU's door that more country codes are needed so they can get a phone. Country names and country codes are the equivalent of TLDs
Yes, the election was poorly done. It was close, and many mistakes were made. It may have been stolen.
That doesn't change the fact that we do have elections, and we can replace them every 4 years.
Just having elections dosn't mean that much. Few people would have claimed that Soviet Russia was democratic or that Robert Mugabe was fairly elected as the leader of Zimbabwe. What you need are free and fair elections. With procedures for counting which are open and transparent. It soon became clear in 2000 that this was not the case with the disputed ballots (indeed it would be very hard to make a mechanised system which was) and that procedures for handling recounts simply didn't exist.
We have
a system of checks and balances that attempts to keep any one group from gaining too much power.
Which apparently don't take into account political parties and can be more imagined than real.
Slashdot Mirror
The last paragraph, however, is the greatest laugh-inducer:
If any provision of this Agreement is found to be invalid or unenforceable, then the invalid or unenforceable provision will be stricken from this Agreement without affecting the validity or enforceability of any other provision.
It's a common CYA clause, without it any void clause can void an entire contract.
In many cases no-one actually writes these things from scratch, they simply glue pre-existing pieces of boiler plate together, with alterations to make them fit.
There's probably a fair bit of mixing in clauses they know full well are void, on the basis that no-one is going to call their bluff on them.
Similarly, for a long time cable companies would not let you split their signal and have multiple TVs without paying them to do it. Now that has become a major selling point for them against digital satelites. Today when your cable company comes out for whatever reason, they'll happily split your signal for free, replace your low quality splitters with their high quality ones, and leave all your TVs connected no questions asked.
I think this situation SHOULD fall under the same rule. You pay for the cable to come into your house, If you own your cable modem, you should be able to do anything you want to it. If they REALLY want to cap you, they'll have to do it on their end, because you cannot tell me what I can and cannot do with my property.
This argument makes more sense when applied to TOS which forbid connecting a "network" to the service.
Uncapping a cable modem is more like altering a cable box to get extra channels.
I really don't understand why the feds are so eager to expand their jurisdiction so much. Why take on additional work when the states can handle it on their own?
Because it expands their power and influence. Including in cases where their only legitimate role would be advising local authorities, e.g. at the WTC.
The ISP can and should put a stop to "excessive" bandwidth use in their own office. That is, by the time the user's packets reach the cable company's routers, the provider can tell who each packet belongs to. They can detect someone sending more packets than he should be, and can drop them there.
That would fix 95% of their problems from someone uncapping. Doesn't use any more of their upstream bandwidth, and the sneaky users aren't getting any additional throughput, so they'll probable give up on it.
Quite possibly they will be getting a worst throughput than before they uncapped. Also if the ISP supplied the cable modem they can attempt to automatically recap it.
I agree with the above poster. If you are an ISP expecting people to observe bandwidth restrictions, you'd darn well be limiting it at the head-end, and not expecting the client end to be secure.
Most likely they are using the same idea as for a cable TV system. Where all the channels are present on the cable, but the converter box allows or disallows acess to specific channels. Difference is that cable TV boxes are generally considerably more difficult for a customer to reconfigure than cable modems.
Criminally charging and arresting people for modifying a piece of hardware in their house that they own is stupid. If it's leased, it's a slightly different story, and they should be prosecuted for destroying property owned by someone else.
Except that they are not destroying it, simply changing it from mode A to mode B.
Or hunting down and executing civilians who ignore their authority (Ruby Ridge), dousing with flammable gas and igniting, then denying photographic evidence of shooting civilians as they attempted to flee (Waco), or ignoring evidence of Islamic terrorism in the prosecution of a major case preferring to stick with the politically pleasing but incorrect "angry white male" prosecution (OKC), yes, the FBI does seem to have some priority problems.
Remember that this is the same FBI that was too busy chasing "communists" to worry about mobsters a while back.
I don't mean to sound like a conspiracy theorist
That's only likely to be a problem if you attempt to advocate a politically incorrect conspiracy theory. If you go with a PC conspiracy theory, e.g. anything involving Al Queda, then no-one will question you.
IANAL, but this seems to me to be a violation of a CONTRACT, not a criminal act!
IIRC the cable industry in the US lobbied hard to get "theft" of cable services redefined as a criminal act.
But remember, corporations are "people" too, indeed, apparently more important than any mere flesh and blood person.
But how often do you see a corporation being hauled away by cops when it is accused of breaking the law?
If the ISP is not responsible for their screw-up, who is? Oh, I see... You're one of those right-wingers who thinks that all corporations should get a free pass. Now matter how badly they screw over the consumer, they should be immune from lawsuits.
If we are going to insist of the legal fiction of pretending that corporations are "people". Then they certainly should be held liable for the consequences of their own actions.
Many ISPs today are LLC's (Limited Liability Corporation). Assuming these are, it would mean that they are ONLY required to refund her monthly bill during this period, nothing more. Now, if they're not an LLC, I guess this will be up to a judge or jury, but personally, I don't see how they could be forced to cough up this $65.000.
Except that it dosn't (or at least didn't originally) mean this. What it ment was limited liability for investors if the corporation went bankrupt then the creditors could not demand that the stockholders made good their debts. Nothing about protecting the corporation from the consequences of it's own actions or protecting it's executives (even if they held stock) from their actions.
They may have a contractual agreement with their customers that they would only pay X amount, but a court judgment can easily rule such a clause not applicable. The contract dosn't apply anyway, the supplier has failed to uphold their part of the agreement.
The phone company screws up, and disconnects your phone, during which time your phone number is pulled from a hat on some radio show and you win a brand new toaster. According to the competition rules, if they can't reach you on the phone, they pull another number from the hat, so they do and that person answers and wins. Now, would you have a case against the phone company? In my opinion, absolutely not. They are only responsible for the SERVICE you subscribe to. They are not responsible for any outside problems you might incur if they fail to provide that service for some reason.
The term involved is "consequential loss" or "consequential damage".
Somewhere in the AUP, or some other disclaimer, ISPs have a blurb where they state they cannot be held accountable for financial loss due to system downtime and misconfiguration.
Plenty of case law to establish that such clauses do not have unlimited scope. Most likely they would be considered null and void where negligence was demonstratable.
Hmm...doesn't "reasonable and non-descriminatory" prohibit them from prohibiting use in GPL products?
Microsoft provided the dictionary used to understand the judgment.
So, the judge got it wrong. This isn't about legality, its about "looking good". What does it take to get rid of a federal judge? Can we get her name on a check box on the November ballot "Do you want to keep the Judge who bent over to Microsoft?" She played the political game and now she can advance to the next level.
Judges are not elected. In theory this keeps them outside of the politics affecting legislature and executive. The practice appears to be another matter...
Judges should not be lawyers. There is no reason they need to be. A judge is there to make sane judgements. The other defense and prosecution are there to tell the judge about the law.
If the judge isn't a lawyers then any lawyers working for any party to the case had better be able to explain things in plain language.
The judge doen't need to have a legal background and most of the better judges in the rural part of the mid west never took a class at a law school. More of them need to make it higher up in the legal food chain.
Maybe there is some kind of "glass ceiling" for non lawyer judges.
You're right. The other person who responded to you and the moderator who modded you down may prefer not to admit it, but it's pretty well known that the Bush/Ashcroft DoJ were embarrassed by the Appeal Court ruling (which upheld Jackson's verdict) and negotiated something that wouldn't cause much harm to Microsoft.
It also indicates that the much trumpeted separation of powers within the US government is more an illusion than actual.
This is a depressing resolution. Someone is convicted of harming competition and told that they will barely get punished because the judge doesn't want to risk aiding Microsoft's "competition" (or rather, potential competition - there is no sodding competition right now.)
Also this trial resulted because Microsoft didn't abide by a previous court case. Usually if someone is dragged back to court because the first case didn't work they are apt to get the book thrown at them.
So they make it all cutesy, make it maybe 10% easier to do 20% of things and about 50% more difficutl to do the other 80%.
Is it even 10%, one problem with all the cutesy animation is that it can make a 1G machine feel like it's runing at about 10M.
Yup. It's all for the bottom line. They won't give up ONE...RED...CENT*... unless it increases their profits.
Microsoft have put themselves in a position where they have to make profit which increases at an increasing rate in order to retain their stock market valuation.
Pretty abominable, really, but the stockholders pretty much force this on them.
It's probably at least as much the fault of stock traders, compounded by Microsoft paying employees in stock options. Most likely the price quoted on Nasdaq has nothing at all to do with the amount a stock certificate says the holder has invested in Microsoft Corporation.
Interesting that you mention this, because i was thinking the same thing. Seems as though public image isn't worth much to Microsoft (albeit this story isn't on the eleven o'clock news).
Image matters a lot when your business is in competition or there is a market which can reasonably expand. Having a good image can attract customers, having a bad image can drive customers to your competitors.
Microsoft is however it the situation of being a monopoly in a market which is close to saturation in quite a few parts of the world.
I work at a chain of bookstores that is in similar standing with Barnes and Noble, and we'll do just about anything for the image of the company, even if that means taking a loss on some transactions to give customers a good impression of the company (in turn keeping them loyal to us)
Your business is a competitive one, where your customers could easily go elsewhere in order to get exactly the same products they get from you.
Bill Gates lies to judges, and you think he is not an evil man? He had more than enough opportunity to plead the fifth, but instead chose to repeatedly commit perjury even after being warned. He deserves to rot in a federal pound-me-in-the-ass penetentary for a week for that alone.
The difference is that if a regular person gets caught lying in court they are likely to wind up in jail. It's called being in "Contempt of Court". Since he was appearing on behalf of Microsoft Corporation he probably couldn't have self incriminated William H. Gates the Third anyway.
You know who else tends to lie constantly and through their teeth in court? A Mobster.
There appears to be a legal loophole. Where things are handled differently if a mobster sets up a business (even an entirely legitimate one) and if something starts out as a legitimate business then starts behaving like one run by mobsters.
I still think that in practice a fully Open Source world will create a lack of jobs for myself and other programmers. Seriously, what other profession (Engineers, Architects, Lawyers, etc.) works for FREE, effectively lowering the value of their profession?
Actually all your examples work better as proof that a fully open source world would have plenty of work for computer professionals. These are all examples of tertiary (service) industries. Where people are paid for their time and expertise. Whilst engineering principles, architectural principles and laws might be obscure and often described in jargon they are not secret.
I have to contest that - 500ish watts for a 'standard' desktop? I don't think so. My desktop (before I got my mac) uses a 350W power supply (enermax).
You omitted the monitor. Remember that a lot of this power winds up being pumped out as heat, the last thing you need in a tropical country is heating. Namibia's capital has a similar lattitude to Havana.
Namibia: I need a vehicle I could drive from home to work. Micorosft: I'll give you free floormats but you have to buy 6 cars.
:)
To get the floormats you'll have to buy the cars from Microsoft too. Since Microsoft dosn't do off-road vehicles you'd better think about building some roads
If I were in business I might jump at at the 18% off, but when you have very little money to begin with, well, would you rather get the MS software, or use linux and gice computers to a few more villages?
Also in the latter case no need to learn American or get your feet wet if things don't work.
THe other thing people have said that sounds fair to me is priorities. With the problems in most of africa, what good is Net access?
Namibia is the size of the western United States, but with a considerably lower population density
They wanted to turn this into a sales opportunity as well and grab a chance to lock even some of the world's poorest into their exploitative upgrade cycles. Make no mistake, if these people had taken this deal, all that money would be pure profit for MS.
Namibia is in considerably better shape than many other African countries.
The thing is that to poor countries even the lowest rung on Microsoft's upgrade ladder is out of reach so they never get started in the first place. Unlike in richer counties where people might have spent a lot getting used to Microsoft before they get hit by an upgrade they can't really afford.
Microsoft wants it's foot in the door by donating Office. These people are working on a small budget, and absolutely cannot afford the infrastructure needed to even USE that software. It's hardly a "gift".
It's where the term "white elephant" comes from. Someone would be offered a gift of an elephant by someone rich and powerful, but would be faced with either losing face by refusing or going bankrupt trying to feed the animal.
DNS is flawed. When designed, it no doubt made sense to limit the system to a fixed set of TLD's and root servers. Technology wasn't available at the time to allow for much else. Creating an artificially limited namespace was a necessity driven by the cost of implementation. And as a balance to that, there was no fee to register a domain.
o nths.com and the like. DNS names are the equivalent of addresses or telephone numbers. There is no one demonstrating outside the UN for more countries so they can get a postal address or banging on the ITU's door that more country codes are needed so they can get a phone. Country names and country codes are the equivalent of TLDs
The problem isn't with with the DNS, it's with misusing the DNS as though it is a flat namespace. Thus you get www.someadvertisingsloganwhichwillonlybeusedfor3m
Yes, the election was poorly done. It was close, and many mistakes were made. It may have been stolen. That doesn't change the fact that we do have elections, and we can replace them every 4 years.
Just having elections dosn't mean that much. Few people would have claimed that Soviet Russia was democratic or that Robert Mugabe was fairly elected as the leader of Zimbabwe.
What you need are free and fair elections. With procedures for counting which are open and transparent. It soon became clear in 2000 that this was not the case with the disputed ballots (indeed it would be very hard to make a mechanised system which was) and that procedures for handling recounts simply didn't exist.
We have a system of checks and balances that attempts to keep any one group from gaining too much power.
Which apparently don't take into account political parties and can be more imagined than real.