At least, until we change our tort laws so that the maximum payout is the maximum input.
So if you get sick from a hamburger, fine, you get your money back, but thats all, not 40 million dollars. Otherwise, corporate limited liability MUST stay.
That is the stupidest, most unjust thing I've seen today.
The idea of tort law is to make the victims of a tort whole, and to discourage tortfeasors and other potential tortfeasors from harming anyone else similarly.
If you get sick from a hamburger, then yes, I suppose you'd have a warranty claim for the burger having been defective, in which case the appropriate remedy would be the price of the burger.
But that's totally beside the point that the burger made you sick, causing you to rack up medical bills, lose income because you can't work, caused you pain and suffering, etc. To even suggest that the price of the burger would be just compensation for what could be quite significant injuries, is simply cruel of you.
In any event, limited liability merely refers to the liability of investors (who cannot lose more money than they invested -- i.e. if you buy $50 of stock in WidgetCo, and they go out of business, you only lose that $50) and that's it. The corporation itself is not shielded from liability, nor should it be. And its officers and management, in their capacities as such, are not particularly shielded either, though their concerns are less about tort liability and more about liability to the investors, to whom they owe a duty.
"No, the federal Constitution is supreme over treaties."
You said that
"I never said that treaties supersede the Constitution."
And you also said that.
Those are consistent statements. I don't mind so much being accused of something I didn't say (though I'll defend myself), but you could at least do a competent job of it. Is that so much to ask?
In any case, they are also correct statements; The federal Constitution is supreme over federal laws and treaties, and all three are supreme over state Constitutions, which are supreme over state laws.
Hm? I never said that treaties supersede the Constitution. In fact, I said the opposite, and I'm right about it, based on both caselaw that I've read (which places treaties no higher than the same level as ordinary federal legislation) and the language in the Constitution itself.
No, it likely counts. But only for the original author. If someone else comes along and makes the same basic illustration, based upon the earlier one, then they haven't contributed anything new. And only the new contribution would be copyrightable.
Actually, that's backwards. The law doesn't care if you use the software, it cares if you copy it, or make a modified copy of it. (And also if you do some other things, but those are what's relevant) Of course, due to how computers work, you have to copy it to use it. There's an exception that allows that, provided that you own the underlying copy to begin with, but of course, the idea of EULAs is to prevent users from owning a copy. It's worth noting though that few are convinced that ordinary EULAs prevent ownership under 17 USC 117, since it otherwise quacks like a duck.
Meh. I think we ought to just do a really thorough job of hiding it, with warnings inside the perimeter. Obvious warnings will just draw attention to the site.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Let's go through it line by line.
The supreme law of the land shall be: 1) this constitution, 2) the laws of the US made in pursuance thereof, and 3) treaties made under the authority of the US. State judges shall be bound by these three groups of laws. Nothing in state constitutions or state laws can change this.
Frankly, that's the only way that it makes any sense. The framers were not stupid, and would not have said that the federal Constitution is supreme, and then said that it's not.
But more importantly, you aren't even understanding what they said at all. When they say "the Constitution or Laws of any State" they mean just that: the state's constitution or the state's laws. In the federal constitution itself, the framers never used the term 'the Constitution' to refer to that document. Instead they always said either 'this Constitution' or 'the Constitution of the United States.' So if they meant what you think they meant, they would have kept the same style. They didn't, and that is a big clue. Also, it is not grammatical to say 'the Constitution' meaning the federal constitution, followed by 'or Laws of any State' without an article. If it were like you think, it would be 'the Constitution or the Laws of any State' and again, it is not, and this also indicates that you are wrong.
It's pretty sad that even when corrected by someone who'd know, you're still sticking to your wrong and uninformed opinion.
Except that, of course, many treaties are not self-executing, and so do not carry the force of law, but only obligate the legislatures of the treaty parties to make laws to meet those obligations.
No, the federal Constitution is supreme over treaties. However, the federal Constitution, federal laws, and treaties, are supreme over state Constitutions and state laws.
Privacy is generally considered to be in the penumbras of the 1st, 3d, 4th, and 5th amendments, bolstered by the 9th, and also supported by the 5th (a different clause) and 14th.
'Personal Computer' is not anyone's brand name in the field of computers. It's a generic term. Maybe if you tried to sell bars of soap under that name, you'd be able to use it as a mark, but in the context here, no.
using the defacto standard "ctrl-c & ctrl-v" type shortcut keys
They invented those shortcuts. They just use the Command key instead of the Control key (which appears to have largely been retained for legacy purposes anyway, way back in the early 80's). And I have to say, the Mac has always had better keyboard shortcuts and support for entering more characters from the ordinary keyboard layout.
Copyright is more limited than you seem to think. If you buy a CD, then copyright would be relevant if you were making copies of it, or distributing copies, or publicly (as opposed to privately) performing it, etc.
But copyright doesn't prohibit people from owning copies of works, nor does it prohibit doing anything with those works except for a few things such as the examples above. A license is permission to do something you're otherwise not permitted to do. Since the law permits you to buy and own the CD, and to listen to the CD, what would a license possibly cover?
Furthermore, where is this license? A license can be implied or express, but the conduct of selling CDs seems to be no different, really, than selling lumber or canned goods. So what would give rise to an implicit license? And as for an express license, you'd have noticed it. A EULA is at least an attempt at an express license, and they're much more prominent than anything I've ever seen on an ordinary CD. Sometimes there are licensed CDs, but they wouldn't be the ordinary, mass-market ones; maybe pre-release copies sent to reviewers, with clear language on them that they're for reviewing only, and aren't meant to be sold, etc.
No, buying CDs is just that -- buying CDs. There is no license, ordinarily. You aren't allowed to do illegal things with it, but that's just like how people aren't allowed to kill people with the kitchen knives they own, or drive over the speed limit with the cars they own. The fact that the prohibitions expire after a period of time doesn't change this.
And of course, I've never noticed the music industry even claiming that ordinary sales are actually licenses. It's basically just clods that are too used to the highly unusual practices in the software field that ever seem to think this. Online sales are something else (and would require at least an implicit license), but in the CD context, that's not really relevant.
As for software licenses, at least there is some kind of credible argument in favor of licenses, though any number of authorities disagree as to whether the licenses really exist (i.e. maybe you're really just buying a copy of Windows at the store, regardless of what the EULA claims) or whether they are a good idea and should be allowed to exist.
Personally, I'd like to get rid of 99.44% of software licensing. I don't see that it helps any, and it seems to be abused quite a lot. Just making it non-adhesive, save for a few tolerable licenses such as the GPL, would probably work well.
Also, the ships they sent to attack Earth were really quite large, right? So why is it that the one sent to New York City got lost? IIRC, as they show it approaching the city, cutting back and forth with the other ships in the first wave, it keeps approaching from different directions!
Well, until the 70's the secret code for launching a missile was 00000000. The Air Force apparently wasn't concerned about accidental launches so much as they were about making sure that they could launch everything quickly.
There have been known to be copyright issues with this sort of thing, but generally it's not a huge deal. Usually it is simply that the people making the movie prefer to be paid for noticable product placement, and will make fake props to avoid giving it away for free.
There's a guy who is attempting this. Of course, novelty, nonobviousness, and utility are serious hurdles, but the big one is subject matter. It's difficult to see how a plot falls within the realm of the useful arts.
Why cannot I distribute a book with an EULA that restricts resale, and disallows any copying, even for fair use?
Who said you can't? Remember, the first sale and fair use doctrines merely say that the copyright holder lacks authority over copies and works under certain circumstances on the grounds of copyright. They don't bar the establishment of independent authority over copies by means of contracts. And if someone agrees not to engage in a fair use, why would a court let them get out of it?
To me, the medium in which a work is published, should not change the copyright protection afforded to the work.
It generally doesn't, though neither of the things you talked about are elements of copyright.
Of course, I don't really care for where copyright law is, or where it's going, so I would not be averse to the law barring certain things, such as software patents (until such time as they seem to be useful) or EULAs (though not bespoke licensing agreements, waivers of rights, or the odd desirable adhesive contract such as the GPL).
As to EULAs though, they would indeed have to be contracts to be binding, but they fail so many tests of a contract they can't be that.
What makes you think so? Generally courts uphold EULAs. Some courts don't, but the pro-EULA side is winning. I would suggest looking at the ProCD case, which is the leading pro-EULA case.
Several attempts have been made to pass special legislation to make them binding, and I'm vague on this but I think a few states have?
You're probably thinking of UCITA, which was enacted by Virginia and Maryland, and which several other states opposed with anti-UCITA laws. But when EULAs are upheld, it's usually been under the traditional UCC, and not UCITA.
The two can agree that this is to be a work-for-hire but they need not, and it is not the default arrangment.
Well, really it's a bit more complicated than that. Sometimes you can agree that a work is a work made for hire, and sometimes you can't. I would suggest looking carefully at the definition of what is and isn't a work made for hire in 17 USC 101.
but by that point, you probably owe a label a bunch of money (for all they "invested" in you).
Well, the way it works is, they recoup their investment off the top. So the artist doesn't owe money. But until the album turns a profit, he doesn't make money. (Except for his advance, which was an advance on profits. If the album doesn't make money, the advance is all the artist ever gets)
Nice try. One of the top rules in contract negotiations is to keep control of drafting the contract.
You don't just give the other side a copy like that. You ask why they want it. If they want to add terms, offer to put in the terms for them, if they provide you a list. If they do want a copy, then that's fine, but you request a copy back. And if they send you something back (as opposed to just wanting something to review), you redline the hell out of it so that no change goes unnoticed. It's not that the sides don't trust one another, it's just that they don't trust each other so much as to throw caution to the wind.
Hell, the lawyer for the label is going to get paid no matter what, so he can afford to take the time to be careful. The band, OTOH, probably has less money for a lawyer, or worse yet, might be trying to negotiate on their own.
And you can always add a belt to your suspenders by putting in clauses in the contract that require changes to have been clearly identified through negotiations in order to be valid in the end.
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At least, until we change our tort laws so that the maximum payout is the maximum input.
So if you get sick from a hamburger, fine, you get your money back, but thats all, not 40 million dollars. Otherwise, corporate limited liability MUST stay.
That is the stupidest, most unjust thing I've seen today.
The idea of tort law is to make the victims of a tort whole, and to discourage tortfeasors and other potential tortfeasors from harming anyone else similarly.
If you get sick from a hamburger, then yes, I suppose you'd have a warranty claim for the burger having been defective, in which case the appropriate remedy would be the price of the burger.
But that's totally beside the point that the burger made you sick, causing you to rack up medical bills, lose income because you can't work, caused you pain and suffering, etc. To even suggest that the price of the burger would be just compensation for what could be quite significant injuries, is simply cruel of you.
In any event, limited liability merely refers to the liability of investors (who cannot lose more money than they invested -- i.e. if you buy $50 of stock in WidgetCo, and they go out of business, you only lose that $50) and that's it. The corporation itself is not shielded from liability, nor should it be. And its officers and management, in their capacities as such, are not particularly shielded either, though their concerns are less about tort liability and more about liability to the investors, to whom they owe a duty.
"No, the federal Constitution is supreme over treaties."
You said that
"I never said that treaties supersede the Constitution."
And you also said that.
Those are consistent statements. I don't mind so much being accused of something I didn't say (though I'll defend myself), but you could at least do a competent job of it. Is that so much to ask?
In any case, they are also correct statements; The federal Constitution is supreme over federal laws and treaties, and all three are supreme over state Constitutions, which are supreme over state laws.
Hm? I never said that treaties supersede the Constitution. In fact, I said the opposite, and I'm right about it, based on both caselaw that I've read (which places treaties no higher than the same level as ordinary federal legislation) and the language in the Constitution itself.
No, it likely counts. But only for the original author. If someone else comes along and makes the same basic illustration, based upon the earlier one, then they haven't contributed anything new. And only the new contribution would be copyrightable.
Actually, that's backwards. The law doesn't care if you use the software, it cares if you copy it, or make a modified copy of it. (And also if you do some other things, but those are what's relevant) Of course, due to how computers work, you have to copy it to use it. There's an exception that allows that, provided that you own the underlying copy to begin with, but of course, the idea of EULAs is to prevent users from owning a copy. It's worth noting though that few are convinced that ordinary EULAs prevent ownership under 17 USC 117, since it otherwise quacks like a duck.
Meh. I think we ought to just do a really thorough job of hiding it, with warnings inside the perimeter. Obvious warnings will just draw attention to the site.
Basically, you're parsing the thing incorrectly.
Here's the clause:
Let's go through it line by line.
The supreme law of the land shall be: 1) this constitution, 2) the laws of the US made in pursuance thereof, and 3) treaties made under the authority of the US. State judges shall be bound by these three groups of laws. Nothing in state constitutions or state laws can change this.
Frankly, that's the only way that it makes any sense. The framers were not stupid, and would not have said that the federal Constitution is supreme, and then said that it's not.
But more importantly, you aren't even understanding what they said at all. When they say "the Constitution or Laws of any State" they mean just that: the state's constitution or the state's laws. In the federal constitution itself, the framers never used the term 'the Constitution' to refer to that document. Instead they always said either 'this Constitution' or 'the Constitution of the United States.' So if they meant what you think they meant, they would have kept the same style. They didn't, and that is a big clue. Also, it is not grammatical to say 'the Constitution' meaning the federal constitution, followed by 'or Laws of any State' without an article. If it were like you think, it would be 'the Constitution or the Laws of any State' and again, it is not, and this also indicates that you are wrong.
It's pretty sad that even when corrected by someone who'd know, you're still sticking to your wrong and uninformed opinion.
Except that, of course, many treaties are not self-executing, and so do not carry the force of law, but only obligate the legislatures of the treaty parties to make laws to meet those obligations.
No, the federal Constitution is supreme over treaties. However, the federal Constitution, federal laws, and treaties, are supreme over state Constitutions and state laws.
Quartering soldiers is the 3d, not the 4th.
Privacy is generally considered to be in the penumbras of the 1st, 3d, 4th, and 5th amendments, bolstered by the 9th, and also supported by the 5th (a different clause) and 14th.
'Personal Computer' is not anyone's brand name in the field of computers. It's a generic term. Maybe if you tried to sell bars of soap under that name, you'd be able to use it as a mark, but in the context here, no.
using the defacto standard "ctrl-c & ctrl-v" type shortcut keys
They invented those shortcuts. They just use the Command key instead of the Control key (which appears to have largely been retained for legacy purposes anyway, way back in the early 80's). And I have to say, the Mac has always had better keyboard shortcuts and support for entering more characters from the ordinary keyboard layout.
No, you're wrong.
Copyright is more limited than you seem to think. If you buy a CD, then copyright would be relevant if you were making copies of it, or distributing copies, or publicly (as opposed to privately) performing it, etc.
But copyright doesn't prohibit people from owning copies of works, nor does it prohibit doing anything with those works except for a few things such as the examples above. A license is permission to do something you're otherwise not permitted to do. Since the law permits you to buy and own the CD, and to listen to the CD, what would a license possibly cover?
Furthermore, where is this license? A license can be implied or express, but the conduct of selling CDs seems to be no different, really, than selling lumber or canned goods. So what would give rise to an implicit license? And as for an express license, you'd have noticed it. A EULA is at least an attempt at an express license, and they're much more prominent than anything I've ever seen on an ordinary CD. Sometimes there are licensed CDs, but they wouldn't be the ordinary, mass-market ones; maybe pre-release copies sent to reviewers, with clear language on them that they're for reviewing only, and aren't meant to be sold, etc.
No, buying CDs is just that -- buying CDs. There is no license, ordinarily. You aren't allowed to do illegal things with it, but that's just like how people aren't allowed to kill people with the kitchen knives they own, or drive over the speed limit with the cars they own. The fact that the prohibitions expire after a period of time doesn't change this.
And of course, I've never noticed the music industry even claiming that ordinary sales are actually licenses. It's basically just clods that are too used to the highly unusual practices in the software field that ever seem to think this. Online sales are something else (and would require at least an implicit license), but in the CD context, that's not really relevant.
As for software licenses, at least there is some kind of credible argument in favor of licenses, though any number of authorities disagree as to whether the licenses really exist (i.e. maybe you're really just buying a copy of Windows at the store, regardless of what the EULA claims) or whether they are a good idea and should be allowed to exist.
Personally, I'd like to get rid of 99.44% of software licensing. I don't see that it helps any, and it seems to be abused quite a lot. Just making it non-adhesive, save for a few tolerable licenses such as the GPL, would probably work well.
Also, the ships they sent to attack Earth were really quite large, right? So why is it that the one sent to New York City got lost? IIRC, as they show it approaching the city, cutting back and forth with the other ships in the first wave, it keeps approaching from different directions!
Well, until the 70's the secret code for launching a missile was 00000000. The Air Force apparently wasn't concerned about accidental launches so much as they were about making sure that they could launch everything quickly.
There have been known to be copyright issues with this sort of thing, but generally it's not a huge deal. Usually it is simply that the people making the movie prefer to be paid for noticable product placement, and will make fake props to avoid giving it away for free.
I had not heard that about WarGames, but I know that they did basically the same thing for the keyboard in The Net.
Why is it that I cannot also patent a story?
There's a guy who is attempting this. Of course, novelty, nonobviousness, and utility are serious hurdles, but the big one is subject matter. It's difficult to see how a plot falls within the realm of the useful arts.
Why cannot I distribute a book with an EULA that restricts resale, and disallows any copying, even for fair use?
Who said you can't? Remember, the first sale and fair use doctrines merely say that the copyright holder lacks authority over copies and works under certain circumstances on the grounds of copyright. They don't bar the establishment of independent authority over copies by means of contracts. And if someone agrees not to engage in a fair use, why would a court let them get out of it?
To me, the medium in which a work is published, should not change the copyright protection afforded to the work.
It generally doesn't, though neither of the things you talked about are elements of copyright.
Of course, I don't really care for where copyright law is, or where it's going, so I would not be averse to the law barring certain things, such as software patents (until such time as they seem to be useful) or EULAs (though not bespoke licensing agreements, waivers of rights, or the odd desirable adhesive contract such as the GPL).
As to EULAs though, they would indeed have to be contracts to be binding, but they fail so many tests of a contract they can't be that.
What makes you think so? Generally courts uphold EULAs. Some courts don't, but the pro-EULA side is winning. I would suggest looking at the ProCD case, which is the leading pro-EULA case.
Several attempts have been made to pass special legislation to make them binding, and I'm vague on this but I think a few states have?
You're probably thinking of UCITA, which was enacted by Virginia and Maryland, and which several other states opposed with anti-UCITA laws. But when EULAs are upheld, it's usually been under the traditional UCC, and not UCITA.
The two can agree that this is to be a work-for-hire but they need not, and it is not the default arrangment.
Well, really it's a bit more complicated than that. Sometimes you can agree that a work is a work made for hire, and sometimes you can't. I would suggest looking carefully at the definition of what is and isn't a work made for hire in 17 USC 101.
I agree.
Outbound did this, and there was also the Dynamac.
Meh. It was founded by a bunch of already-successful actors (and a director), and it sold out very very quickly.
but by that point, you probably owe a label a bunch of money (for all they "invested" in you).
Well, the way it works is, they recoup their investment off the top. So the artist doesn't owe money. But until the album turns a profit, he doesn't make money. (Except for his advance, which was an advance on profits. If the album doesn't make money, the advance is all the artist ever gets)
Nice try. One of the top rules in contract negotiations is to keep control of drafting the contract.
You don't just give the other side a copy like that. You ask why they want it. If they want to add terms, offer to put in the terms for them, if they provide you a list. If they do want a copy, then that's fine, but you request a copy back. And if they send you something back (as opposed to just wanting something to review), you redline the hell out of it so that no change goes unnoticed. It's not that the sides don't trust one another, it's just that they don't trust each other so much as to throw caution to the wind.
Hell, the lawyer for the label is going to get paid no matter what, so he can afford to take the time to be careful. The band, OTOH, probably has less money for a lawyer, or worse yet, might be trying to negotiate on their own.
And you can always add a belt to your suspenders by putting in clauses in the contract that require changes to have been clearly identified through negotiations in order to be valid in the end.