. . . there are extensive mechanisms to protect against abuses here.
1) Despite child pornography being outside the protected classes of speech, any mechanism capable of being arbitrarily extended beyond that scope will be subject to strict scrutiny under the First Amendment. It is a dead lock certainty that Pennsylvania's program would be shut down upon the first hint of abuse, and the first guy to get shut down therefor who isn't actually stepping over the line to criminal conduct will have a hell of a lawsuit.
2) This is what public records requests are for. It is probably impossible for him to withhold it -- and the newspapers have probably already made their formal demands. This is an area where the fourth estate has still been vigilant -- and this is the type of case that newspapers love to press in court.
Look, guys -- file-swapping of RIAA content is, in fact, copyright infringement except in certain VERY NARROW circumstances. Napster lost big, and didn't contest the 9th Circuit decision, so here we are: it is contributing to such infringement to run a Napster-like network.
Why would we revile RIAA for asserting these rights now. This isn't some technology regulation, like DMCA -- it is enforcement of entirely legitimate intellectual property rights against actual infringers.
I would rather they went after the students actually doing the swapping, but we lost the server battle, at least for now.
... apart from a subtle tax on products purchased from abroad?
While it is controversial whether Smoot-Hawley actually caused or worsened the Great Depression, it is clear that it didn't help -- the Depression deepened, more people lost work, and we as a nation suffered for years.
If knowledge workers abroad are doing as well for less, then let's face it -- they are kicking our butts. We won't get better or more competitive by taxing them -- we'll just divert the fruits of their good labors to others, and ultimately hurt ourselves. We will invite retaliative taxation on our products, which will decrease demand and therefore reduce jobs here as well.
Rather than letting governments duke this out with artificial numbers, why not let the market decide? If they can produce smart people working with good tools and equipment for less, we had better either reduce our expectation of our own worth, or get smarter or use better tools. Otherwise, we will simply lose out in the end.
Exaggerating the scope of a patent makes for some nice press and fans the flames of Slashdot anti-patent demagoguery, no doubt. But this patent neither claims nor reaches into the scope of cookies generally.
Rather, it is far more narrowly drawn to a particular use of cookies (acknowledged as prior art) for a particular load-balancing scheme in a particular manner.
This is not just self-regulation. The FTC regulates false advertising with teeth as deceptive and unfair trade practices, so this is just the first stage (if continued) to an FTC inquiry.
If you will carefully read my posting, you will note that I quoted directly from the Department of Justices NET page. I'll stand by my remarks, which address the copyright act, as presently amended.
This demagogue ought to actually read the copyright Act before he starts making false accusations of criminal conduct against his fellow citizens. (He also better make sure his kids are clean.)
1) Even where infringement is present, it isn't necessarily criminal:
It isn't criminal unless willful, and it isn't willful merely because it was copied. Evidence of infringement doesn't suffice under the Copyright Act.
2) Even where willful infringement is present, it isn't necessarily criminal:
If not for commercial purposes or by taking a retail value exceeding $1,000 in a six-month period.
3) Even where willful infringement is criminal, it isn't necessarily a felony:
If not for commercial purposes, it is merely a midemeanor, in the sense that the maximum criminal sentence is limited to not more than a year. (Not sure if that is the relevant standard -- I'm not a criminal lawyer).
Start with this, the company has urned $N-1, where N is its threshold. I have a choice, I can spend a dollar to get the software now, or wait a little while until the next fool pays it, and then I get it for free.
By a reverse induction, it would seem that few people would pay anyhing for such software, preferring to obtain it for free after the others have paid. Unless, of course, the software is obsolete by the time the threshold is met, in which case, the open source benefit is next to nil.
I don't see this as much of a credible business model either -- the software isn't opened up until much later on in the development cycle, at a time where the marketplace's contributions are less beneficial. Accordingly, we get very little of the Bazaar effect, its just free beer later on.
There are no copyright issues here -- this is an injunction given in a state district court, which has no jurisdiction on copyright questions. The only legal basis cited in the order is the suggestion that use of American's computer in violation of its terms and conditions "may" constitute some form of computer crime.
Alas, the federal courts appear to have take the lead in the screen-scraping arena. The First Circuit Court recently upheld a similar claim arising under the Copyright Act.
This is a bad sign -- manifesting profound ignorance as to how these technologies work. Hopefully, better lawyering will develop these cases more credibly in the future.
Squeak is an interpreted language similar to Smalltalk. Could be ssslooooww.
Judge for yourself, but I found Squeak to be an astonishingly swift, and absolutely compelling, programming environment. Squeak isn't "similar to" Smalltalk, it is a direct, but quite modern, decendant (including bits from the image) of Smalltalk-80. It runs swiftly enough, and far faster than some well-regarded programming systems, with all of the virtues of a full GC, purely dynamic late-binding OO programming.
To each their own as programming goes, but I simply never "got it" about OO programming until I did it in pure Smalltalk -- Squeak is worth a careful and detailed look by anyone who considers themselves a programmer.
Sure, lawyers make a living by lawyering. Guilty as charged, but to suggest that they affirmatively promote or provoke patent litigation is ludicrous. While there are certainly a share of contingency fee lawyers out there, and perhaps some of them may well be provoking litigation that would not otherwise hold, the vast majority of lawyers sue for a fee.
Blame --at least in part-- the clients who decide that the upside of the litigation (or its favorable resolution) outweighs those fees, and the lawmakers who decided that the bases for that litigation do serve the policy interests of our nation, notwisthanding the minority opinion of these economists.
Some people just like to blame lawyers for their problems. Not that the profession doesn't have its share of embarassments, but this is not the best argument for the position you assert. Neither lawyers nor the USPTO "lobbied" to "institutionalize" software patents. You simply have it wrong.
Indeed, the USPTO for years opposed software patents, and regularly rejected blatant claims to algorithms as a matter of course. It was the Supreme Court in Diamond v. Diehr, reversing a USPTO ruling, and then later the Federal Circuit, reversing USPTO decisions in cases like In re Alapatt, and then later in State Street Bank and the AT&T cases, that determined the present state of software patents.
Some people will just blame the lawyers as a matter of ideological course -- and nothing will stop that. But here the "blame" (or praise) is not due to lawyers or the PTO -- blame this one entirely on the Congress and the courts.
It's interesting to note that a recently filed law suit would have been prohibited if UCITA were endorsed and adopted as a common law.
In what world?
That lawsuit alleges that the plaintiff was forced to stomach a license she could not have been reviewed, with respect to which she was not permitted to return the goods after deciding she didn't like the license.
Had California been a UCITA state, she could sue under UCITA for failure to accept the return, since UCITA expressly provides that a shrink-wrap for a mass-market product is not enforceable unless the person has an opportunity to review, or:
(3) If a record or term is available for review only after a person becomes obligated to pay or begins its performance, the person has an opportunity to review only if it has a right to a return if it rejects the record.
At least at first view, UCITA would have provided her an express cause of action, unlike the present and uncertain state of common law and UCC in which her lawsuit presently festers. She will not know the answer until the judge and jury had decided, and at least one or two levels of appeal had passed (assuming she doesn't give up first) -- Under UCITA, she would have a right to return or rescind given to her by statute.
you are mistaken... most litigation to date involving spammers involves ISPs who have been able to prove broadcast of mail, and seizure of records demonstrating that the e-mail had been broadcast. Proving broadcast is essential to damages anyway -- even with statutory damages, you need to show a degree of harm to get the judge to throw the book at a defendant.
moreover, i didn't criticize punishing false headers, just making "unsolicited" the punishable element, which makes spammers out of all of us, and makes a complicated litigable issue out of every spam case -- almost all of my incoming and outgoing e-mail is "unsolicited" in some sense.
The conclusion drawn may be oversimplified but nonetheless pragmatic: 1) forged headers should be illegal 2) a specific header entry should identify the email as unsolicited.
I don't know what is meant by unsolicited -- and I doubt that there are good definitions that are practical. Nor do I want any single e-mail ever to be treated as spam because some unsophisticate forgot to (or didn't have the software) to make the e-mail unsolicited.
I *DO* want the anti-spam laws to have teeth and very few exceptions -- for that, the criteria for spam should be sufficient to permit adequate filtering (to be useful), not be content-based (to be constitutional), and should be relatively objective (to be practically enforeceable).
Thus, in lieu of forcing headers to identify whether an e-mail is solicited, i would punish falsely identifying an e-mail as non-broadcast. That is to say, an e-mail is not broadcast if it was sent to, say, fewer than 200 different addresses that had not specifically opted-in by affirmative request to receive it.*
Then, we simply get most e-mails clients to flag routine e-mails as non-broadcast, and you have a decent result.
*the only tricks here are (1) subtle and non-substantive changes in each e-mail making them different and (2) sending e-mails on behalf of many different sources (from 1000's of different e-mail accounts). The solutions can be readily addressed by (1) referring to the e-mail and "substantially similar" e-mails (the copyright standard); and (2) referring to e-mails sent by or on behalf of a particular individual. Thus, the person commissioning the spam is always liable for the crime -- regardless how many different persons send the spam on her behalf.
Almost clearly a hoax. If not, one of the most pea-brained foolish things a corporaton (or conspiracy comprised of plural corporations acting in concert) could do. Worming another machine without consent violates, at least one or more of the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, or the Computer Crimes Act of the several States.
Aside from criminal responsibility, most of these laws provide tough, nasty civil remedies and, when combined with punitives for torts relating thereto (like civil conspiracy), could cost the companies their tickets to exist as corporations. This would be a plaintiff lawyer's dream.
And these companies know that.
They, themselves, while lobbying for the technology regulation bills last year explained how they would need special legislation to engage in this kind of self-help. The mere fact that they paid high-powered lobbyists to make that case to the Congress would probably be enough to satisfy the willfulness and intent elements of the civil actions.
In short, if RIAA is doing this, be thankful -- it will be a very fun year. For precisely that reason, it is a dead nuts lock that they aren't pulling such a boneheaded stunt!
Both alternatives are bad, but the first is in general only taken up by "bad" people (in the sense of anti-social) and hence is generally frowned upon and hence is somewhat self-limiting.
All meaningful experience to the contrary. Having dealt with businesses working in less law-centric nations, I can assure you that anti-social commercial conduct, at least, is not at all self-limiting. To the contrary, graft and worse simply becomes part of the culture. Moreover, modern products are, and have become, far safer in a world of negligence and products liability.
The whole thing is inherently questionable (and often questioned), yet it continues to gain ground despite the distortions it creates in so many areas --- we tend to discuss mainly how the disease affects "intellectual property", patents and trademarks here on Slashdot, but of course the effect is vastly wider than that.
This is probably because redress for meaningful harm is more important to society than the "questions" you raise. Commerce depends upon the enforceability of contracts, and if damages were not available, no meaningfully enforceable promises would exist. Likewise with real damages caused due to negligence -- the idea is to give incentive to do the right thing, and discincentive to fail. Your trust in avoiding public scrutiny for loss of face isn't terribly reliable -- even in nations where social face is considered tremendously important.
And with that sledgehammer argument (which is valid) you justify seeking 65 million in damages for stealing a domain? There's the problem displayed in glowing neon lights.
If you say so. It does seem like a lot of money to me, but I have several clients who would suffer millions of dollars of actual damage a day in lost revenues if they were torn from the internet. I don't know the facts of the case, but I do know that two fairly well-monied entities litigated (in this case a far bigger defendant than plaintiff) the question of damages, and that the verdict was also subject to post-trial review, which did not reduce the verdict. It might be more reasonable than you think.
It's this issue of damages that so utterly distorts the fabric of modern life in countless ways, away from productive endeavours that actually create things and into litigation for profit.
Open your eyes people to the motivating forces behind patents, trademarks and other restraints on progress in the modern world, and see beyond the dollar signs. Beneath a shallow surface veneer in which it delivers useful and commonsense justice, there lurks a legal monster that creates and carefully encourages most of our daily problems in the first world.
Our civil litigation system is the worst in the world -- until you compare it to the consequences. It is certainly reasonable to suggest that legal systems cause problems, perhaps even "most of our daily problems in the first world," but this is naive. I think it is far more responsible and likely that it is the daily problems in the first world that have led to our legal system. It is litigants, not lawyers, who bring the lawsuits, and they bring them, for the most part, because they have been wronged.
Adopt this poster's variaation, and reduce the cost of engaging in piracy of a domain name through fraud is to zero (the worst thing happening to you being that you don't get to keep the domain name you stole through fraud), and NSI has zero incentive to actually check and assure a responsible effort (which historically has meant that NSI does NOTHING to improve a bad situation), and what you have is no free market at all, just a have and have nots world where things are taken at will by those who abuse the system -- often with no downside at all.
Without compensatory damages, there would be no downside to enagage in wrongdoing and no downside to try to keep wrongdoing from occurring, indeed, all the incentives would be to the contrary.
The letter was ludicrous -- it purported to be from an internet services vendor explaining that they wanted the third party to tell NSI, since they didn't have internet access. Hmmmmmm....
Yet NSI, through their unreaonable conduct, transferred the domain name anyway. Breach of contract? Sure. Conversion? That's the issue.
the reason why NSI was a defendant is that they were there. The plaintiff will NEVER collect a cent against the judgment proof individual, who is a big sleaze. NSI, or varisign, on the other hand is quite collectible.
Second, this is not an issue of whether domain names are property, but whether they're tangible property - the kind to which "traditional property conversion laws should apply".
Not quite, the question here is whether the contract rights to the domain name -- which are undoubtedly personal property rights -- are subject to a tort of conversion under California law when interfered with by another person.
the question isn't nearly so interesting -- it isn't so much about domain names and property as it is about how california law treats intangibles.
Reading the opinion, the question presented is quite different from the suggestion in the heading. The California Supreme Court is being asked by the 9th Circuit whether, under California law, the tort of conversion applies to intangible personal property.
Conversion is a theft-tort related to the taking and use of personal property of another, even if the property is later returned. An example might be joyriding your car, returning it in perfect condition to the place you were.
It is an old tort, steeped in common law. At common law, it did not apply to anything but physical, tangible personal property. Then came the bank note cases, and the bond cases and the stock cases -- here, where only paper was converted, the argument is that the damages were the value of the paper (the personal property that was tangible) rather than the value of the instrument (the intangible obligation represented by the property).
Under the old rules, conversion didn't give a remedy for the conversion of a contract right or other intangible. Most states have poked holes in that, primarily in negotiable instrument cases. The question is whether California permits an action for conversion for the imposition on the contract rights of another, in this case, a domain name.
The facts entailed the obviously fraudulent taking of a domain name and Varisign's failure to make a single phone call, taking a ridiculous (laughable) forgery instead. The jury found conversion, among other things, and a massive judgment -- and now the case is on appeal.
Of course it is a massive judgment -- the domain is sex.com!
Here's the deal. It is just fine to have a VCR, because VCR's are capable of substantial noninfringing use and don't get sold primarily for swapping. It is not fine to have a centrally managed PTP file sharing system like Napster for reasons only the 9th Circuit can fathom, and Napster couldn't afford to bring to the Supreme Court (which reversed the 9th Circuit's opinion in the Betamax case). Now, there is also the claim of DMCA, which I agree is not an effective circumvention method, particularly when used just like a VCR -- the content that was broadcast was in the clear, and not encrypted.
But this does not mean that a mechanism for sharing TIVO files digitally would be lawful, or that any particular sharing would be lawful -- any more than it means that a VCR tape copy made of a movie may be freely shared (it can't be). If someone contributes to the infringement of another, and there is no substantial noninfringing use, there may be liabliity in the contributor as well -- in most every case, the TiVo user who swaps files is very likely an infringer of Copyright.
In short, the devil is in the details, and there is no meaningful TiVo exception to the Copyright Act. That the DMCA might not apply (and it probably does not unless the original content were encoded in some manner) is beside the point, they might get you the same way they got Napster -- straightforward and good old-fashioned claims of copyright infringement.
Slashdot Mirror
. . . there are extensive mechanisms to protect against abuses here.
1) Despite child pornography being outside the protected classes of speech, any mechanism capable of being arbitrarily extended beyond that scope will be subject to strict scrutiny under the First Amendment. It is a dead lock certainty that Pennsylvania's program would be shut down upon the first hint of abuse, and the first guy to get shut down therefor who isn't actually stepping over the line to criminal conduct will have a hell of a lawsuit.
2) This is what public records requests are for. It is probably impossible for him to withhold it -- and the newspapers have probably already made their formal demands. This is an area where the fourth estate has still been vigilant -- and this is the type of case that newspapers love to press in court.
Look, guys -- file-swapping of RIAA content is, in fact, copyright infringement except in certain VERY NARROW circumstances. Napster lost big, and didn't contest the 9th Circuit decision, so here we are: it is contributing to such infringement to run a Napster-like network.
Why would we revile RIAA for asserting these rights now. This isn't some technology regulation, like DMCA -- it is enforcement of entirely legitimate intellectual property rights against actual infringers.
I would rather they went after the students actually doing the swapping, but we lost the server battle, at least for now.
... apart from a subtle tax on products purchased from abroad?
While it is controversial whether Smoot-Hawley actually caused or worsened the Great Depression, it is clear that it didn't help -- the Depression deepened, more people lost work, and we as a nation suffered for years.
If knowledge workers abroad are doing as well for less, then let's face it -- they are kicking our butts. We won't get better or more competitive by taxing them -- we'll just divert the fruits of their good labors to others, and ultimately hurt ourselves. We will invite retaliative taxation on our products, which will decrease demand and therefore reduce jobs here as well.
Rather than letting governments duke this out with artificial numbers, why not let the market decide? If they can produce smart people working with good tools and equipment for less, we had better either reduce our expectation of our own worth, or get smarter or use better tools. Otherwise, we will simply lose out in the end.
Exaggerating the scope of a patent makes for some nice press and fans the flames of Slashdot anti-patent demagoguery, no doubt. But this patent neither claims nor reaches into the scope of cookies generally.
Rather, it is far more narrowly drawn to a particular use of cookies (acknowledged as prior art) for a particular load-balancing scheme in a particular manner.
This is not just self-regulation. The FTC regulates false advertising with teeth as deceptive and unfair trade practices, so this is just the first stage (if continued) to an FTC inquiry.
If you will carefully read my posting, you will note that I quoted directly from the Department of Justices NET page. I'll stand by my remarks, which address the copyright act, as presently amended.
My comments derived from reading from the law as amended under NET.
This demagogue ought to actually read the copyright Act before he starts making false accusations of criminal conduct against his fellow citizens. (He also better make sure his kids are clean.)
1) Even where infringement is present, it isn't necessarily criminal:
It isn't criminal unless willful, and it isn't willful merely because it was copied. Evidence of infringement doesn't suffice under the Copyright Act.
2) Even where willful infringement is present, it isn't necessarily criminal:
If not for commercial purposes or by taking a retail value exceeding $1,000 in a six-month period.
3) Even where willful infringement is criminal, it isn't necessarily a felony:
If not for commercial purposes, it is merely a midemeanor, in the sense that the maximum criminal sentence is limited to not more than a year. (Not sure if that is the relevant standard -- I'm not a criminal lawyer).
... and unlicensed software. Let's see if his children or spouse should be jailed. (Hey, 3 or more counts -- maybe for life!).
Something about glass houses.
Start with this, the company has urned $N-1, where N is its threshold. I have a choice, I can spend a dollar to get the software now, or wait a little while until the next fool pays it, and then I get it for free.
By a reverse induction, it would seem that few people would pay anyhing for such software, preferring to obtain it for free after the others have paid. Unless, of course, the software is obsolete by the time the threshold is met, in which case, the open source benefit is next to nil.
I don't see this as much of a credible business model either -- the software isn't opened up until much later on in the development cycle, at a time where the marketplace's contributions are less beneficial. Accordingly, we get very little of the Bazaar effect, its just free beer later on.
There are no copyright issues here -- this is an injunction given in a state district court, which has no jurisdiction on copyright questions. The only legal basis cited in the order is the suggestion that use of American's computer in violation of its terms and conditions "may" constitute some form of computer crime.
Alas, the federal courts appear to have take the lead in the screen-scraping arena. The First Circuit Court recently upheld a similar claim arising under the Copyright Act.
This is a bad sign -- manifesting profound ignorance as to how these technologies work. Hopefully, better lawyering will develop these cases more credibly in the future.
Squeak is an interpreted language similar to Smalltalk. Could be ssslooooww.
Judge for yourself, but I found Squeak to be an astonishingly swift, and absolutely compelling, programming environment. Squeak isn't "similar to" Smalltalk, it is a direct, but quite modern, decendant (including bits from the image) of Smalltalk-80. It runs swiftly enough, and far faster than some well-regarded programming systems, with all of the virtues of a full GC, purely dynamic late-binding OO programming.
To each their own as programming goes, but I simply never "got it" about OO programming until I did it in pure Smalltalk -- Squeak is worth a careful and detailed look by anyone who considers themselves a programmer.
Sure, lawyers make a living by lawyering. Guilty as charged, but to suggest that they affirmatively promote or provoke patent litigation is ludicrous. While there are certainly a share of contingency fee lawyers out there, and perhaps some of them may well be provoking litigation that would not otherwise hold, the vast majority of lawyers sue for a fee.
Blame --at least in part-- the clients who decide that the upside of the litigation (or its favorable resolution) outweighs those fees, and the lawmakers who decided that the bases for that litigation do serve the policy interests of our nation, notwisthanding the minority opinion of these economists.
Some people just like to blame lawyers for their problems. Not that the profession doesn't have its share of embarassments, but this is not the best argument for the position you assert. Neither lawyers nor the USPTO "lobbied" to "institutionalize" software patents. You simply have it wrong.
Indeed, the USPTO for years opposed software patents, and regularly rejected blatant claims to algorithms as a matter of course. It was the Supreme Court in Diamond v. Diehr, reversing a USPTO ruling, and then later the Federal Circuit, reversing USPTO decisions in cases like In re Alapatt, and then later in State Street Bank and the AT&T cases, that determined the present state of software patents.
Some people will just blame the lawyers as a matter of ideological course -- and nothing will stop that. But here the "blame" (or praise) is not due to lawyers or the PTO -- blame this one entirely on the Congress and the courts.
Seems like an ideological shift to me, more closely related to C++ than to Smalltalk
In what world?
That lawsuit alleges that the plaintiff was forced to stomach a license she could not have been reviewed, with respect to which she was not permitted to return the goods after deciding she didn't like the license.
Had California been a UCITA state, she could sue under UCITA for failure to accept the return, since UCITA expressly provides that a shrink-wrap for a mass-market product is not enforceable unless the person has an opportunity to review, or:
At least at first view, UCITA would have provided her an express cause of action, unlike the present and uncertain state of common law and UCC in which her lawsuit presently festers. She will not know the answer until the judge and jury had decided, and at least one or two levels of appeal had passed (assuming she doesn't give up first) -- Under UCITA, she would have a right to return or rescind given to her by statute.
you are mistaken... most litigation to date involving spammers involves ISPs who have been able to prove broadcast of mail, and seizure of records demonstrating that the e-mail had been broadcast. Proving broadcast is essential to damages anyway -- even with statutory damages, you need to show a degree of harm to get the judge to throw the book at a defendant.
moreover, i didn't criticize punishing false headers, just making "unsolicited" the punishable element, which makes spammers out of all of us, and makes a complicated litigable issue out of every spam case -- almost all of my incoming and outgoing e-mail is "unsolicited" in some sense.
The conclusion drawn may be oversimplified but nonetheless pragmatic: 1) forged headers should be illegal 2) a specific header entry should identify the email as unsolicited.
I don't know what is meant by unsolicited -- and I doubt that there are good definitions that are practical. Nor do I want any single e-mail ever to be treated as spam because some unsophisticate forgot to (or didn't have the software) to make the e-mail unsolicited.
I *DO* want the anti-spam laws to have teeth and very few exceptions -- for that, the criteria for spam should be sufficient to permit adequate filtering (to be useful), not be content-based (to be constitutional), and should be relatively objective (to be practically enforeceable).
Thus, in lieu of forcing headers to identify whether an e-mail is solicited, i would punish falsely identifying an e-mail as non-broadcast. That is to say, an e-mail is not broadcast if it was sent to, say, fewer than 200 different addresses that had not specifically opted-in by affirmative request to receive it.*
Then, we simply get most e-mails clients to flag routine e-mails as non-broadcast, and you have a decent result.
*the only tricks here are (1) subtle and non-substantive changes in each e-mail making them different and (2) sending e-mails on behalf of many different sources (from 1000's of different e-mail accounts). The solutions can be readily addressed by (1) referring to the e-mail and "substantially similar" e-mails (the copyright standard); and (2) referring to e-mails sent by or on behalf of a particular individual. Thus, the person commissioning the spam is always liable for the crime -- regardless how many different persons send the spam on her behalf.
Almost clearly a hoax. If not, one of the most pea-brained foolish things a corporaton (or conspiracy comprised of plural corporations acting in concert) could do. Worming another machine without consent violates, at least one or more of the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, or the Computer Crimes Act of the several States.
Aside from criminal responsibility, most of these laws provide tough, nasty civil remedies and, when combined with punitives for torts relating thereto (like civil conspiracy), could cost the companies their tickets to exist as corporations. This would be a plaintiff lawyer's dream.
And these companies know that.
They, themselves, while lobbying for the technology regulation bills last year explained how they would need special legislation to engage in this kind of self-help. The mere fact that they paid high-powered lobbyists to make that case to the Congress would probably be enough to satisfy the willfulness and intent elements of the civil actions.
In short, if RIAA is doing this, be thankful -- it will be a very fun year. For precisely that reason, it is a dead nuts lock that they aren't pulling such a boneheaded stunt!
Both alternatives are bad, but the first is in general only taken up by "bad" people (in the sense of anti-social) and hence is generally frowned upon and hence is somewhat self-limiting.
All meaningful experience to the contrary. Having dealt with businesses working in less law-centric nations, I can assure you that anti-social commercial conduct, at least, is not at all self-limiting. To the contrary, graft and worse simply becomes part of the culture. Moreover, modern products are, and have become, far safer in a world of negligence and products liability.
The whole thing is inherently questionable (and often questioned), yet it continues to gain ground despite the distortions it creates in so many areas --- we tend to discuss mainly how the disease affects "intellectual property", patents and trademarks here on Slashdot, but of course the effect is vastly wider than that.
This is probably because redress for meaningful harm is more important to society than the "questions" you raise. Commerce depends upon the enforceability of contracts, and if damages were not available, no meaningfully enforceable promises would exist. Likewise with real damages caused due to negligence -- the idea is to give incentive to do the right thing, and discincentive to fail. Your trust in avoiding public scrutiny for loss of face isn't terribly reliable -- even in nations where social face is considered tremendously important.
And with that sledgehammer argument (which is valid) you justify seeking 65 million in damages for stealing a domain? There's the problem displayed in glowing neon lights.
If you say so. It does seem like a lot of money to me, but I have several clients who would suffer millions of dollars of actual damage a day in lost revenues if they were torn from the internet. I don't know the facts of the case, but I do know that two fairly well-monied entities litigated (in this case a far bigger defendant than plaintiff) the question of damages, and that the verdict was also subject to post-trial review, which did not reduce the verdict. It might be more reasonable than you think.
It's this issue of damages that so utterly distorts the fabric of modern life in countless ways, away from productive endeavours that actually create things and into litigation for profit.
Open your eyes people to the motivating forces behind patents, trademarks and other restraints on progress in the modern world, and see beyond the dollar signs. Beneath a shallow surface veneer in which it delivers useful and commonsense justice, there lurks a legal monster that creates and carefully encourages most of our daily problems in the first world.
Our civil litigation system is the worst in the world -- until you compare it to the consequences. It is certainly reasonable to suggest that legal systems cause problems, perhaps even "most of our daily problems in the first world," but this is naive. I think it is far more responsible and likely that it is the daily problems in the first world that have led to our legal system. It is litigants, not lawyers, who bring the lawsuits, and they bring them, for the most part, because they have been wronged.
Adopt this poster's variaation, and reduce the cost of engaging in piracy of a domain name through fraud is to zero (the worst thing happening to you being that you don't get to keep the domain name you stole through fraud), and NSI has zero incentive to actually check and assure a responsible effort (which historically has meant that NSI does NOTHING to improve a bad situation), and what you have is no free market at all, just a have and have nots world where things are taken at will by those who abuse the system -- often with no downside at all.
Without compensatory damages, there would be no downside to enagage in wrongdoing and no downside to try to keep wrongdoing from occurring, indeed, all the incentives would be to the contrary.
The letter was ludicrous -- it purported to be from an internet services vendor explaining that they wanted the third party to tell NSI, since they didn't have internet access. Hmmmmmm....
Yet NSI, through their unreaonable conduct, transferred the domain name anyway. Breach of contract? Sure. Conversion? That's the issue.
the reason why NSI was a defendant is that they were there. The plaintiff will NEVER collect a cent against the judgment proof individual, who is a big sleaze. NSI, or varisign, on the other hand is quite collectible.
Second, this is not an issue of whether domain names are property, but whether they're tangible property - the kind to which "traditional property conversion laws should apply".
Not quite, the question here is whether the contract rights to the domain name -- which are undoubtedly personal property rights -- are subject to a tort of conversion under California law when interfered with by another person.
the question isn't nearly so interesting -- it isn't so much about domain names and property as it is about how california law treats intangibles.
Reading the opinion, the question presented is quite different from the suggestion in the heading. The California Supreme Court is being asked by the 9th Circuit whether, under California law, the tort of conversion applies to intangible personal property.
Conversion is a theft-tort related to the taking and use of personal property of another, even if the property is later returned. An example might be joyriding your car, returning it in perfect condition to the place you were.
It is an old tort, steeped in common law. At common law, it did not apply to anything but physical, tangible personal property. Then came the bank note cases, and the bond cases and the stock cases -- here, where only paper was converted, the argument is that the damages were the value of the paper (the personal property that was tangible) rather than the value of the instrument (the intangible obligation represented by the property).
Under the old rules, conversion didn't give a remedy for the conversion of a contract right or other intangible. Most states have poked holes in that, primarily in negotiable instrument cases. The question is whether California permits an action for conversion for the imposition on the contract rights of another, in this case, a domain name.
The facts entailed the obviously fraudulent taking of a domain name and Varisign's failure to make a single phone call, taking a ridiculous (laughable) forgery instead. The jury found conversion, among other things, and a massive judgment -- and now the case is on appeal.
Of course it is a massive judgment -- the domain is sex.com!
Here's the deal. It is just fine to have a VCR, because VCR's are capable of substantial noninfringing use and don't get sold primarily for swapping. It is not fine to have a centrally managed PTP file sharing system like Napster for reasons only the 9th Circuit can fathom, and Napster couldn't afford to bring to the Supreme Court (which reversed the 9th Circuit's opinion in the Betamax case). Now, there is also the claim of DMCA, which I agree is not an effective circumvention method, particularly when used just like a VCR -- the content that was broadcast was in the clear, and not encrypted.
But this does not mean that a mechanism for sharing TIVO files digitally would be lawful, or that any particular sharing would be lawful -- any more than it means that a VCR tape copy made of a movie may be freely shared (it can't be). If someone contributes to the infringement of another, and there is no substantial noninfringing use, there may be liabliity in the contributor as well -- in most every case, the TiVo user who swaps files is very likely an infringer of Copyright.
In short, the devil is in the details, and there is no meaningful TiVo exception to the Copyright Act. That the DMCA might not apply (and it probably does not unless the original content were encoded in some manner) is beside the point, they might get you the same way they got Napster -- straightforward and good old-fashioned claims of copyright infringement.