If you say so. I've defended a bit of Microsoft piracy litigation, and can tell you that every little bit helps in these tricks of the trade. Not all of them can fit into the package you describe.
But as I noted, the commercial impression is the significant factor in package size. Ecological packages aren't perceived as being as cool as the boxes in the relevant markets. That's just how it is, however regrettable that may be. Unless and until customers en masse start feeling as you do, and reacting negatively, rather than positively (look, that's what the focus groups say) to big packages, the big packages will be here to stay.
It is one thing to state reasons why you don't feel there was a likelihood of confusion, but a lot of effort was spent by an impartial judge and staff to make a legal determination whether it was so. Because of the peculiar (i.e. unique) properties of a domain name, the first place I would look to find peta would be peta.org, which creates a particular presumption.
Now, I don't know the facts of this case, but the mere unsubstantiated statement that a judicial determination is a "crappy precedent" because there was no "likelihood of confusion," just doesn't make it so. Clearly, at least one jurist felt there was a credible case for the other side.
The vast majority of trademark parody cases where a defendant upheld were cases where the parody was biting, directly targeted to the subject matter, and didn't use the exact trademark name, to wit: the Lardache parody of Jordache; the Off-the-Wall-Street Journal and the like. Further, not a one of the parody uses actually deprived the owner of the ability to use that name.
Now, I disagree strongly with the rights-in-gross proposition that the International Trademark Association and its membership have taken, and the regrettable position Congress took under the Cybersquatter's act. But to say this isn't presently the law, and that a judge did wrong by enforcing it is to miss the point.
We might reasonably argue (and I might join, depending upon the particular facts) that the law should not create a cause of action in this case. But where it does, leave the judge alone -- its not for him to make the law -- its for him to apply the law to the facts.
Your co-worker is correct -- if you are building Windows apps, most tools are readily available under both systems (albeit much less expensive and more malleable under a free U*ix). I probably would agree that the IDE's available under Windows are somewhat better, particularly for developing Windows apps.
But if we want to compare pound for pound, the bottom line for me is the command line.
The real difference is that you have a serious, real, command line and shell that was made for doing serious, real, complicated things. The Dos-like approximation under Windows is virtually useless in comparison. Windows are simply a nice means to have plural consoles on the screen at the same time.
Its hard to explain why this is so to someone who hasn't done it, really and seriously, both ways. The command line places massive power at your hands -- and the capacity to manipulate text, therefore manipulate programs, appears to have been highly underestimated by your colleague.
Everything else is a wash, or in some cases only slightly favors one system over the other. At the end of the day, its the command line, silly.
During the early 80-s, when there was a trend to flat, 4-1/4 by 8 shrink wrapped manuals bound around a disk (perhaps with a flat "cover" wrapped around those). Then competitors started getting attention with prettier packaging, so everyone followed suit. We never went back.
(Only one of my Wizardry Series, Knight of Diamonds, was packaged in flat form, and even that was reissued in a box).
Microsoft packages the way it does for other reasons as well, to fight against privacy. There are zilions of clever "anti-piracy" tricks in the Microsoft packaging, designed to capture the unwary. It is, perhaps, a necessary evil when you are selling about $5-$25 in paper and plastic for prices in excess of $250.00
The primary consideration of the Courts, however, will not be effiiciency of time, but rather the judge-made notion of "efficiency of judicial resources." The most likely theory to be considered by the Court is this: (1) If the Court is of the view that it is possible that a decision of the COA would finally dispose of the issue, they will probably remand. (2) If the Court is of the view that they would take the appeal regardless of what the COA decides, they will probably take it directly.
Time will tell how they articulate their decision (or even if they will say why), but I betcha' that's how they make the call. And you will hear the mantra "judicial efficiency and interests of justice" somewhere therein.
Article III provides that the Congress can determine (except for cases in which the Supreme Court has original jurisdiction), the jurisdiction of the Court. It is probably the case that everyone is entitled to at least one appeal (except in the original jurisdiction case).
The text of Title 15, Section 29, United States Code, follows below, there are two sections, one, section a, providing for review by the court of appeals, but "except as otherwise expressly provided," and another, section b, providing that direct jurisdiction "shall lie" (not may lie) with the Supreme Court. Inded, it appears that the Congress expressly considered the possibility of conflict by having a notice of appeal timely filed while a district court certifies direct jurisdiction.
I bet that the Supes get it if they want it. I'm also betting that they think the language of the statute is plain beyond cavil in this regard.
Sec. 29. Appeals
(a) Court of appeals; review by Supreme Court
Except as otherwise expressly provided by this section, in every civil action brought in any district court of the United States under the Act entitled ''An Act to protect trade and commerce against unlawful restraints and monopolies'', approved July 2, 1890, or any other Acts having like purpose that have been or hereafter may be enacted, in which the United States is the complainant and equitable relief is sought, any appeal from a final judgement entered in any such action shall be taken to the court of appeals pursuant to sections 1291 and 2107 of title 28. Any appeal from an interlocutory order entered in any such action shall be taken to the court of appeals pursuant to sections 1292(a)(1) and 2107 of title 28 but not otherwise. Any judgment entered by the court of appeals in any such action shall be subject to review by the Supreme Court upon a writ of certiorari as divided in section 1254(1) of title 28.
(b) Direct appeals to Supreme Court
An appeal from a final judgment pursuant to subsection (a) of this section shall lie directly to the Supreme Court, if, upon application of a party filed within fifteen days of the filing of a notice of appeal, the district judge who adjudicated the case enters an order stating that immediate consideration of the appeal by the Supreme Court is of general public importance in the administration of justice. Such order shall be filed within thirty days after the filing of a notice of appeal. When such an order is filed, the appeal and any cross appeal shall be docketed in the time and manner prescribed by the rules of the Supreme Court. The Supreme Court shall thereupon either (1) dispose of the appeal and any cross appeal in the same manner as any other direct appeal authorized by law, or (2) in its discretion, deny the direct appeal and remand the case to the court of appeals, which shall then have jurisdiction to hear and determine the same as if the appeal and any cross appeal therein had been docketed in the court of appeals in the first instance pursuant to subsection (a) of this section.
First of all, understand that a 3-judge panel found 2-1 in favor of Microsoft on an unrelated antitrust issue having to do with a court order related to the original settlement. The relevance of the dicta in that case remains to be seen, but we are talking about only 2 judges in seven, and one who has already dissented.
That was, for those who missed it, the point of last week's order from the Circuit court -- not that they would "take the appeal," (they had to), but they would consider it as a complete panel of seven judges (a few recused themselves, or it would have been more).
Actually, the thing about an automatic en-banc hearing is that the seven judge panel can even reverse the prior three judge panel ruling, something a new three-judge panel could not.
Its just you. Or your notion of "newsworthy" is sufficiently unfocused. In fact, Judge Jackson bent over wildly at many junctures to the benefit of Microsoft throughout the pretrial, trial and interim motion practice. Microsoft was given liberal leave to introduce whatever evidence they wanted, including falsified video tapes, and then afterwards an opportunity to substitute the "real ones."
Of course, after the final verdict, it is routine for the judge to grant the victor the relief they sought. Perhaps that's what you forgot.
The long and short of this is that Microsoft lost, the judge decided the case and, in the end, thinks he is right about that decision and doesn't intend to reconsider. That galls some folks who thought he might give back with one hand what he took with the other, but who cares?
I think the fact findings are probably incontestable as a matter of law, and the findings of law raise close and difficult legal questions. In view of that, a bright judge made some tough calls, and didn't equivocate in the face of tough personal crticiism
This is called judicature. Its a good thing, not a bad thing.
When a business decides to take chances, it is doing what business is in the business of doing. This is how profits are made, educated risks. Risk an unenforceable (or more likely, a pragmatically unenforceable) agreement on the ground that you can afford to lose a bunch of deals, in view of the profits to be made on the ones that work, that's good business.
It's probably also bad government.
Government documents are fundamentally different. They grant rights and powers well beyond the scope of executing agreements. Fraud in a contract may make a contract unenforceable, fraud before the government is a crime which can yield the loss of life and liberty for an extended period of time.
Sure, voting encrypted and authenticated via digital signature seems attractive -- it is also an invitation for all forms of fraud, even presuming the technology is unbreakable. It is for this reason and others that government does many things in person -- even if only to assure jurisdiction over the body of the actor.
For all the reasons traditionally crowed about by technoanarachists on slashdot as to why the net is a fundamentally non-terrestrial zone beyond the jurisdiction of all -- it seems to me a terrible idea to start getting fluffy with these other things.
Oh, and by the way. A vast amount of real-world authentication is predicated on the pain-in-the-but (whether real or fictitious) process needed to get "official" documents. If driver's licenses could be obtained by web pages and web-cams, no one else would rely on the same.
The trust process that derives from these "seminal" sources of identification is, of course, a fiction. But it is also one that tends to keep honest people honest -- so businesses and banks tend to rely on driver's licenses, birth certificates and passports. Imagine how the loss of fundamental authentication would deprive other, more informal forms of authentication of their (pseudo)legitimacy.
Nah, make me wait in line. Bust me if you catch me lying on the government document. Some things just need to be done the hard way.
the claims granted on the application are limited to claims supported by the subject matter disclosed at the time of filing. The applicant is not permitted to add new matter to the specification by amendment. The specification must be fully enabling of the claims, which is to say, it must state the subject matter of the invention in terms sufficient to enable a person of only ordinary skill to practice the claimed invention.
For these reasons, a claim derived from an enabling disclosure is invalidated only by prior art antedating the date of filing.
any longer. Patents applied for in the US, and almost anywhere else in the world, are subject to a term beginning the date the PATENT HAS ISSUED, and ending twenty years after the APPLICATION HAD BEEN FILED.
Pushing back so-called submarine patents was the primary focus of recent patent reform legislation.
Patent applications provide no exclusive rights whatsoever. Thus, until the patent has issued, the applicant owns nothing.
Ridiculous Review/Hopeless Comparison with Shaft
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Review: 'Titan A.E.'
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· Score: 3
The proposition is this: Titan is poor because it is derivative and predictable in that it is a science fiction movie with a young protagonist hero, unlike Shaft which does not.
In fact, every genre film can be criticized in that regard, whoring old scenes a faire (without which the film would be criticized for being off-genre, by the way). Criticizing a genre film for being what it is is to condemn all such films, including the corpus of Westerns, Star Wars, Disney Films, Star Trek and the like.
For my own part, I thought Titan was a cheeseburger, albeit a tasty one. The animation was pretty, and it was fun. My 9-year old son loved it, and my daughter, though not captivated, enjoyed the film. I would see it again, if Wiliam wanted, but probably wouldn't go again on my own behalf. Agreed that it hits all fours on the traditional post-apocalyptic save the word cliches. I would happily rent it again -- it hit the cliches nicely, and it was pretty to watch.
Shaft, on the other hand, is an attempt to transplant a twenty year old cliche into modern times -- the very ultimate in derivative movie-making. I am not down on Shaft -- it is fine on its own merits. However, it suffers from the same flaws Mr. Katz finds here.
The proposition that an individual can describe the film scene-by-scene based upon the description is ludicrous. Sure, we know the broad strokes -- that's why we watch the genre film, not for the overall story (which everyone knows), but for the details.
Indeed, consider whether or not Jon Katz' review wasn't itself a derivative and wooden remake of all negative reviews of genre films. Haven't we seen all of these criticisms before, written in almost the same old way? I far preferred Canby's review of Titanic.
David Boies is one of the finest trial lawyers now living -- a lawyer who has prosecuted and defended some of the most complex. most difficult cases in History (U.S. v. Microsoft, U.S. v. IBM). His capacity for calling bullshit bullshit, and for making the other side bleed from the eyes for overreaching and missteps will bring RIAA back "down to earth" on the merits, or bring them down entirely.
This is the single best way to expose the emptiness of the RIAA arguments on the merits there is. Few lawyers have as instant credibility walking into a courtroom as Mr. Boies.
His patient, incisive capacity to expose a bad or mediocre argument, has a way of keeping opponents honest -- they quickly realize that a single misstep can destroy the opponent's credibility irreparably.
While the cost of this kind of representation will be enormous, it is money well spent. I know of no one with a greater capacity for making hard cases simple. (And simple cases hard!)
He is one of my personal heroes, and I would work with him on this (or any) case for free.
Unlike the BetaMax, which is a recording medium, Napster is a distribution medium, which provides no inherent capacity for recording. Hence, there is a built-in substantial purpose -- distribution of subject matter with the consent of the author.
Not all MP3's comprise illicit or unauthorized content. Hence there is a substantial noninfringing use -- distribution of noninfringing content in accordance with the wishes of the author.
How else does a non-name musician compete with the record companies for access to means of distribution? (Perhaps it is the record companies that are trumping up their excuses against Napster, and not vice versa?)
The only difference between Napster and Sony is that Sony is a big, establishment company, and that the BetaMax technology was MORE likely to be used for infringing purposes than napster, because it can record.
Indeed, Napster in many respects is an easier case than Sony -- no trumped up rationale need be constructed to justify its existence.
The Supreme Court has already considered this question in the Sony Betamax case, and sent the plaintiff's home without their supper.
In that case, it didn't matter that Sony manufacturered an instrument that COULD be used for piracy, even if they knew such piracy existed, provided that the same instrument could substantially be used for a legitimate purpose: in that case, for time-shifting network television.
There are myriad non-infringing uses for Napster, and Napster doesn't itself infringe anything.
So why doesn't the Betamax case resolve these questions once and for all?
Kraken137 asks: "A friend of mine recently got a new job, and as a routine part of the hire process, a background check was done. At 5pm on the Friday before she was to start work, she was notified that the background check had turned up a felony on her record, and as a result, she could not be hired. My friend has never done anything worse than a speeding ticket, so she was suitably confused. If the incorrect results of a background check led to someone not being hired, or being fired, etc... would the person have a legal recourse against the security company?" In this, the age of information, where the numbering, collating, indexing and cross-referencing of millions of identities happens in a single second, the fact that mixups like this still occur disturbs me. What kind protections are in place when the accidental twiddling of a bit can change your entire history?
I'm a lawyer, but this isn't legal advice. It can't be -- there aren't enough facts. To make a plausible decision, you'd have to have someone carefully study your particular facts, determine the applicable state's (or federal) laws and apply the same to reach a conclusion.
That being said, on the facts given, the answer is clear. The answer is, "it depends."
Assuming that the statement was false, and that you hadn't signed any waivers of rights to sue, you might be able to proceed on grounds of defamation (libel and/or slander). Given that the question is professional reputation, it might well be defamation per se, so after consulting Constitutional issues, you might well have a cause of action for provable damages. There are several related legal theories as well.
Another line of cases, assuming that the company unreasonably reached its conclusion, and owed you a duty of due care -- both interesting legal questions that might well vary from case to case and state to state, would be to proceed on grounds of straight negligence. The so-called Economic Loss Rule might protect the search agent in this case, but in many states, the ELR is becoming quite weak in its scope.
In short, the question is rather an interesting one. You might well want to consult a lawyer if you are still out of work, or feel that your professional reputation has been seriously compromised.
It is true that the appeal has to go on the Appeals Court's docket. Tho' as of this point in time MS has simply filed a notice that it will appeal, the appeal hasn't actually been filed. So no one, not the Government or even for that matter MS's attorney actually know what the grounds of the appeal will be. Judging from the quotes attributed to MS's attorneys, they plan to challenge everything they can think of.
The Notice of Appeal creates the appellate jurisdiction, and fixes the dates for everything else to happen. There isn't really a "filing of appeal" process, although there are various documents that must be promptly filed with the appeallate court after the Notice of Appeal is filed with the District Court. The NOA is THE jurisdictional filing.
As to the grounds for appeal, that depends upon the definition of the term, the NOA as filed limits the scope in theory, to appeals "from the Final Judgment entered in this action on June 7, 2000, as well as from the Order entered in this action on April 3, 2000 (save from the portion of the Order dismissing the plaintiff's first claim for relief)." Similarly broad language was used for the NOA in the states cases.
You correctly write that we don't know what are the details until briefs are filed, which won't be due for months, and the time for that will probably be extended as well.
Once MS does file its actual appeal, then the Government responds.
Furthermore, the appeal must deal strictly with matters of law and court procedure. Questions of fact have been decided by the trial court and are only subject to review if the findings are so out of accord with the record that no rational connection can be made between the record and the conclusion. As a practical matter, the appeal will focus entirely on the process the court used in the trial and whether or not it accorded with published Federal procedural guidelines, and with interpretation of the law.
You are generally correct that appellate courts review of facts are narrowly circumscribed, although the statement of the standard is not entirely correct in particular. This doesn't work so much for Microsoft as again it, since the fact findings are where things went the worst for them. In particular, the particular sentence selected for Microsoft's crime falls in the realm of "fact-finding" to the extent it depends on those fact-findings.
But it seems likely that the Circuit Court will find in favor of the Government on at least some of the issues and thus limit the issues that will actually be argued before the court.
It is a big leap from observing that the case has yet to be fully briefed to concluding that Microsoft will win. Only time will tell.
When a court issues a final judgment, it typically divests itself of jurisdiction except to the extent necessary to enforce that judgment. In a case such as this, things get pretty complicated.
There is a process for post-judgment motions and appeals, with respect to which Microsoft has pending motions. I don't recall my appellate procedure, but the filing of the Notice of Appeal may have the effect of waiving the post-judgment motions, or might not.
However, the Supreme Court direct route is subject to a special statute creating S.Ct. disretionary jurisdiction on direct appeal after a District Court certification, under which the District Court may retain jurisdiction to certify even after a Notice of Appeal is filed. Again, the particulars would depend on the particular statute -- and this is probably itself an interesting litigable question.
-- hey, this thing doesn't happen everyday. Most statutes are regularly tested, even after they are recently passed, so there is ususally clear understanding what they mean and how they work. This case will raise lots of questions of first impression, including, most likely, the questions of appellate procedure raised under these never-tested statutes.
In addition to the other 13 states, U.S. dropping the case wouldn't avoid the preclusive effect of the final judgment against Microsoft. In particular, imagine all of the private lawsuits in the wings, from Netscape, Sun, Apple, etc. Given all the judgments in the criminal case, those cases will be a cake-walk for the plaintiffs unless MS can wipe the slate clean.
A post-judgment settlement won't have that effect.
The 9th Circuit has nothing to do with this case (I just mentioned it above as an example of a LARGE Circuit court).
Of this much I am certain, a Circuit Court judge has probably NO INTEREST WHATSOEVER in the public perception of his or her decisions. There are few positions in the world as powerful as that of a Circuit Court judge and few positions as desirable. Moreso even than the Supreme Court, these guys get to practice "pure law" i n the highest.
They pride themselves on their ability to follow the "law" rather than their instincts, and are far more concerned about their colleagues' viewing their work as pandering or anti-intellectual, than by writing a popular opinion. They tend to be more "by the book" than the Supes (who are not final because they are infallible, but vice-versa), precisely because they are subject to review.
In short, Circuit courts, particularly EN BANC circuit courts, tend to do a really, really good job on the merits. What Microsoft misses by the en banc review is that their best chances for a win (getting both of their two judges from the earlier case on the panel) is mooted entirely.
Moreover, there is one other thing. A 3-judge panel is BOUND by a prior 3-judge panel's decision as precedent. However, an en-banc panel can REVERSE the previous 3-judge panel. This adds a very interesting new possibility to the mix:
1) The Court can find the earlier opinion controls and reverse the District Court (or just reverse on some new grounds).
2) The Court can find the earlier opinion does not control, and decide to affirm the conviction on that basis.
OR, the new possibility
3) The Court can find the earlier opinion does control, OVERTURN the earlier opinion, and still decide to affirm the conviction.
In short, the briefing allows the government no only to argue why the earlier case isn't relevant, but can also argue that the earlier case WAS WRONG!!!!!
This is a big deal -- particularly because the third result can really slam the number of Microsoft chances on a subsequent appeal to the Supreme Court.
For a real discussion of sub-pizel rendering
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Cleartype In Depth
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· Score: 2
look here. This will better help to understand of what we are speaking, what is interesting about it (and what is old news).
OK, guys, here's the drill. In a federal case, the Circuit Court of competent jurisdiction has NO DISCRETION AT ALL whether or not to take up an appeal after a final order from the District Court.
Thus, it misses the point to say that they "took up the appeal." They had no choice. After a Notice of Appeal is filed by Microsoft, the case automagically appears on the Circuit Court's Docket. Period.
What is interesting is what they *DID* do, which is to order the review of the District Court case en banc (that means ALL the judges who don't recuse themselves will hear the appeal, not just a panel of three). The order can be found on-line here
This actually isn't so great for Microsoft, because it means that, while they can be assured that two of the three judges who found for them in their first 2-1 victory (on different issues), those two judges will be a MINORITY of the panel that hears this case.
IF THE COURT HEARS THE CASE . . . the Supreme Court can still take up the case directly, or they might wait until after the En banc review is complete.
By way of explanation, Circuit Courts are big courts, typically with at least a dozen, and sometimes way more (the 9th Circuit, e.g.) judges. By random assignment, three of the judges are heard to review each case. After the three judge court has ruled, there is the possibility (before Supreme Court review) of the Court AS A WHOLE (en banc) to review the work of the three-judge panel, which is rarely done except for a really, really important case, or to resolve conflicts of precedent among prior three-judge opinions.
What is interesting is, not that the Court took up the case -- they had to. What is interesting is that the Court has decided to bypass the three-judge review, and go straight to review en banc. (Some Circuits call it "in banc.")
Slashdot Mirror
If you say so. I've defended a bit of Microsoft piracy litigation, and can tell you that every little bit helps in these tricks of the trade. Not all of them can fit into the package you describe.
But as I noted, the commercial impression is the significant factor in package size. Ecological packages aren't perceived as being as cool as the boxes in the relevant markets. That's just how it is, however regrettable that may be. Unless and until customers en masse start feeling as you do, and reacting negatively, rather than positively (look, that's what the focus groups say) to big packages, the big packages will be here to stay.
It is one thing to state reasons why you don't feel there was a likelihood of confusion, but a lot of effort was spent by an impartial judge and staff to make a legal determination whether it was so. Because of the peculiar (i.e. unique) properties of a domain name, the first place I would look to find peta would be peta.org, which creates a particular presumption.
Now, I don't know the facts of this case, but the mere unsubstantiated statement that a judicial determination is a "crappy precedent" because there was no "likelihood of confusion," just doesn't make it so. Clearly, at least one jurist felt there was a credible case for the other side.
The vast majority of trademark parody cases where a defendant upheld were cases where the parody was biting, directly targeted to the subject matter, and didn't use the exact trademark name, to wit: the Lardache parody of Jordache; the Off-the-Wall-Street Journal and the like. Further, not a one of the parody uses actually deprived the owner of the ability to use that name.
Now, I disagree strongly with the rights-in-gross proposition that the International Trademark Association and its membership have taken, and the regrettable position Congress took under the Cybersquatter's act. But to say this isn't presently the law, and that a judge did wrong by enforcing it is to miss the point.
We might reasonably argue (and I might join, depending upon the particular facts) that the law should not create a cause of action in this case. But where it does, leave the judge alone -- its not for him to make the law -- its for him to apply the law to the facts.
Your co-worker is correct -- if you are building Windows apps, most tools are readily available under both systems (albeit much less expensive and more malleable under a free U*ix). I probably would agree that the IDE's available under Windows are somewhat better, particularly for developing Windows apps.
But if we want to compare pound for pound, the bottom line for me is the command line.
The real difference is that you have a serious, real, command line and shell that was made for doing serious, real, complicated things. The Dos-like approximation under Windows is virtually useless in comparison. Windows are simply a nice means to have plural consoles on the screen at the same time.
Its hard to explain why this is so to someone who hasn't done it, really and seriously, both ways. The command line places massive power at your hands -- and the capacity to manipulate text, therefore manipulate programs, appears to have been highly underestimated by your colleague.
Everything else is a wash, or in some cases only slightly favors one system over the other. At the end of the day, its the command line, silly.
we have a pair of them here at the mucow residence -- very happy with them indeed. They are fine tools for many purposes.
I would be even happier to see the Bondi blue iMac souped up, and probably will cough up $500.
I meant, of course, to write, "fight against piracy." Sorry, MS.
During the early 80-s, when there was a trend to flat, 4-1/4 by 8 shrink wrapped manuals bound around a disk (perhaps with a flat "cover" wrapped around those). Then competitors started getting attention with prettier packaging, so everyone followed suit. We never went back.
(Only one of my Wizardry Series, Knight of Diamonds, was packaged in flat form, and even that was reissued in a box).
Microsoft packages the way it does for other reasons as well, to fight against privacy. There are zilions of clever "anti-piracy" tricks in the Microsoft packaging, designed to capture the unwary. It is, perhaps, a necessary evil when you are selling about $5-$25 in paper and plastic for prices in excess of $250.00
The primary consideration of the Courts, however, will not be effiiciency of time, but rather the judge-made notion of "efficiency of judicial resources." The most likely theory to be considered by the Court is this: (1) If the Court is of the view that it is possible that a decision of the COA would finally dispose of the issue, they will probably remand. (2) If the Court is of the view that they would take the appeal regardless of what the COA decides, they will probably take it directly.
Time will tell how they articulate their decision (or even if they will say why), but I betcha' that's how they make the call. And you will hear the mantra "judicial efficiency and interests of justice" somewhere therein.
The text of Title 15, Section 29, United States Code, follows below, there are two sections, one, section a, providing for review by the court of appeals, but "except as otherwise expressly provided," and another, section b, providing that direct jurisdiction "shall lie" (not may lie) with the Supreme Court. Inded, it appears that the Congress expressly considered the possibility of conflict by having a notice of appeal timely filed while a district court certifies direct jurisdiction.
I bet that the Supes get it if they want it. I'm also betting that they think the language of the statute is plain beyond cavil in this regard.
First of all, understand that a 3-judge panel found 2-1 in favor of Microsoft on an unrelated antitrust issue having to do with a court order related to the original settlement. The relevance of the dicta in that case remains to be seen, but we are talking about only 2 judges in seven, and one who has already dissented.
That was, for those who missed it, the point of last week's order from the Circuit court -- not that they would "take the appeal," (they had to), but they would consider it as a complete panel of seven judges (a few recused themselves, or it would have been more).
Actually, the thing about an automatic en-banc hearing is that the seven judge panel can even reverse the prior three judge panel ruling, something a new three-judge panel could not.
Its just you. Or your notion of "newsworthy" is sufficiently unfocused. In fact, Judge Jackson bent over wildly at many junctures to the benefit of Microsoft throughout the pretrial, trial and interim motion practice. Microsoft was given liberal leave to introduce whatever evidence they wanted, including falsified video tapes, and then afterwards an opportunity to substitute the "real ones."
Of course, after the final verdict, it is routine for the judge to grant the victor the relief they sought. Perhaps that's what you forgot.
The long and short of this is that Microsoft lost, the judge decided the case and, in the end, thinks he is right about that decision and doesn't intend to reconsider. That galls some folks who thought he might give back with one hand what he took with the other, but who cares?
I think the fact findings are probably incontestable as a matter of law, and the findings of law raise close and difficult legal questions. In view of that, a bright judge made some tough calls, and didn't equivocate in the face of tough personal crticiism
This is called judicature. Its a good thing, not a bad thing.
When a business decides to take chances, it is doing what business is in the business of doing. This is how profits are made, educated risks. Risk an unenforceable (or more likely, a pragmatically unenforceable) agreement on the ground that you can afford to lose a bunch of deals, in view of the profits to be made on the ones that work, that's good business.
It's probably also bad government.
Government documents are fundamentally different. They grant rights and powers well beyond the scope of executing agreements. Fraud in a contract may make a contract unenforceable, fraud before the government is a crime which can yield the loss of life and liberty for an extended period of time.
Sure, voting encrypted and authenticated via digital signature seems attractive -- it is also an invitation for all forms of fraud, even presuming the technology is unbreakable. It is for this reason and others that government does many things in person -- even if only to assure jurisdiction over the body of the actor.
For all the reasons traditionally crowed about by technoanarachists on slashdot as to why the net is a fundamentally non-terrestrial zone beyond the jurisdiction of all -- it seems to me a terrible idea to start getting fluffy with these other things.
Oh, and by the way. A vast amount of real-world authentication is predicated on the pain-in-the-but (whether real or fictitious) process needed to get "official" documents. If driver's licenses could be obtained by web pages and web-cams, no one else would rely on the same.
The trust process that derives from these "seminal" sources of identification is, of course, a fiction. But it is also one that tends to keep honest people honest -- so businesses and banks tend to rely on driver's licenses, birth certificates and passports. Imagine how the loss of fundamental authentication would deprive other, more informal forms of authentication of their (pseudo)legitimacy.
Nah, make me wait in line. Bust me if you catch me lying on the government document. Some things just need to be done the hard way.
the claims granted on the application are limited to claims supported by the subject matter disclosed at the time of filing. The applicant is not permitted to add new matter to the specification by amendment. The specification must be fully enabling of the claims, which is to say, it must state the subject matter of the invention in terms sufficient to enable a person of only ordinary skill to practice the claimed invention.
For these reasons, a claim derived from an enabling disclosure is invalidated only by prior art antedating the date of filing.
any longer. Patents applied for in the US, and almost anywhere else in the world, are subject to a term beginning the date the PATENT HAS ISSUED, and ending twenty years after the APPLICATION HAD BEEN FILED.
Pushing back so-called submarine patents was the primary focus of recent patent reform legislation.
Patent applications provide no exclusive rights whatsoever. Thus, until the patent has issued, the applicant owns nothing.
The proposition is this: Titan is poor because it is derivative and predictable in that it is a science fiction movie with a young protagonist hero, unlike Shaft which does not.
In fact, every genre film can be criticized in that regard, whoring old scenes a faire (without which the film would be criticized for being off-genre, by the way). Criticizing a genre film for being what it is is to condemn all such films, including the corpus of Westerns, Star Wars, Disney Films, Star Trek and the like.
For my own part, I thought Titan was a cheeseburger, albeit a tasty one. The animation was pretty, and it was fun. My 9-year old son loved it, and my daughter, though not captivated, enjoyed the film. I would see it again, if Wiliam wanted, but probably wouldn't go again on my own behalf. Agreed that it hits all fours on the traditional post-apocalyptic save the word cliches. I would happily rent it again -- it hit the cliches nicely, and it was pretty to watch.
Shaft, on the other hand, is an attempt to transplant a twenty year old cliche into modern times -- the very ultimate in derivative movie-making. I am not down on Shaft -- it is fine on its own merits. However, it suffers from the same flaws Mr. Katz finds here.
The proposition that an individual can describe the film scene-by-scene based upon the description is ludicrous. Sure, we know the broad strokes -- that's why we watch the genre film, not for the overall story (which everyone knows), but for the details.
Indeed, consider whether or not Jon Katz' review wasn't itself a derivative and wooden remake of all negative reviews of genre films. Haven't we seen all of these criticisms before, written in almost the same old way? I far preferred Canby's review of Titanic.
David Boies is one of the finest trial lawyers now living -- a lawyer who has prosecuted and defended some of the most complex. most difficult cases in History (U.S. v. Microsoft, U.S. v. IBM). His capacity for calling bullshit bullshit, and for making the other side bleed from the eyes for overreaching and missteps will bring RIAA back "down to earth" on the merits, or bring them down entirely.
This is the single best way to expose the emptiness of the RIAA arguments on the merits there is. Few lawyers have as instant credibility walking into a courtroom as Mr. Boies.
His patient, incisive capacity to expose a bad or mediocre argument, has a way of keeping opponents honest -- they quickly realize that a single misstep can destroy the opponent's credibility irreparably.
While the cost of this kind of representation will be enormous, it is money well spent. I know of no one with a greater capacity for making hard cases simple. (And simple cases hard!)
He is one of my personal heroes, and I would work with him on this (or any) case for free.
Unlike the BetaMax, which is a recording medium, Napster is a distribution medium, which provides no inherent capacity for recording. Hence, there is a built-in substantial purpose -- distribution of subject matter with the consent of the author.
Not all MP3's comprise illicit or unauthorized content. Hence there is a substantial noninfringing use -- distribution of noninfringing content in accordance with the wishes of the author.
How else does a non-name musician compete with the record companies for access to means of distribution? (Perhaps it is the record companies that are trumping up their excuses against Napster, and not vice versa?)
The only difference between Napster and Sony is that Sony is a big, establishment company, and that the BetaMax technology was MORE likely to be used for infringing purposes than napster, because it can record.
Indeed, Napster in many respects is an easier case than Sony -- no trumped up rationale need be constructed to justify its existence.
The Supreme Court has already considered this question in the Sony Betamax case, and sent the plaintiff's home without their supper.
In that case, it didn't matter that Sony manufacturered an instrument that COULD be used for piracy, even if they knew such piracy existed, provided that the same instrument could substantially be used for a legitimate purpose: in that case, for time-shifting network television.
There are myriad non-infringing uses for Napster, and Napster doesn't itself infringe anything.
So why doesn't the Betamax case resolve these questions once and for all?
Kraken137 asks: "A friend of mine recently got a new job, and as a routine part of the hire process, a background check was done. At 5pm on the Friday before
she was to start work, she was notified that the background check had turned up a felony on her record, and as a result, she could not be hired. My friend has
never done anything worse than a speeding ticket, so she was suitably confused. If the incorrect results of a background check led to someone not being hired, or
being fired, etc... would the person have a legal recourse against the security company?" In this, the age of information, where the numbering, collating, indexing and
cross-referencing of millions of identities happens in a single second, the fact that mixups like this still occur disturbs me. What kind protections are in place when the
accidental twiddling of a bit can change your entire history?
I'm a lawyer, but this isn't legal advice. It can't be -- there aren't enough facts. To make a plausible decision, you'd have to have someone carefully study your particular facts, determine the applicable state's (or federal) laws and apply the same to reach a conclusion.
That being said, on the facts given, the answer is clear. The answer is, "it depends."
Assuming that the statement was false, and that you hadn't signed any waivers of rights to sue, you might be able to proceed on grounds of defamation (libel and/or slander). Given that the question is professional reputation, it might well be defamation per se, so after consulting Constitutional issues, you might well have a cause of action for provable damages. There are several related legal theories as well.
Another line of cases, assuming that the company unreasonably reached its conclusion, and owed you a duty of due care -- both interesting legal questions that might well vary from case to case and state to state, would be to proceed on grounds of straight negligence. The so-called Economic Loss Rule might protect the search agent in this case, but in many states, the ELR is becoming quite weak in its scope.
In short, the question is rather an interesting one. You might well want to consult a lawyer if you are still out of work, or feel that your professional reputation has been seriously compromised.
It is true that the appeal has to go on the Appeals Court's docket. Tho' as of this point in time MS has simply filed a notice that it will appeal, the appeal hasn't actually been filed. So no one, not the
Government or even for that matter MS's attorney actually know what the grounds of the appeal will be. Judging from the quotes attributed to MS's attorneys, they plan to challenge everything they can
think of.
The Notice of Appeal creates the appellate jurisdiction, and fixes the dates for everything else to happen. There isn't really a "filing of appeal" process, although there are various documents that must be promptly filed with the appeallate court after the Notice of Appeal is filed with the District Court. The NOA is THE jurisdictional filing.
As to the grounds for appeal, that depends upon the definition of the term, the NOA as filed limits the scope in theory, to appeals "from the Final Judgment entered in this action on June 7, 2000, as well as from the Order entered in this action on April 3, 2000 (save from the portion of the Order dismissing the plaintiff's first claim for relief)." Similarly broad language was used for the NOA in the states cases.
You correctly write that we don't know what are the details until briefs are filed, which won't be due for months, and the time for that will probably be extended as well.
Once MS does file its actual appeal, then the Government responds.
Agaain, you seem to be confusing the lodging of an appeal with the process of filing briefs. The process has already begun, and jurisdication has already vested with the Circuit Court. Motions, indeed, have already been filed in that case! (See, e.g., the motion to file a brief for a stay pending appeal in case the District Court denies the motion.)
Furthermore, the appeal must deal strictly with matters of law and court procedure. Questions of fact have been decided by the trial court and are only subject to review if the findings are so out of accord
with the record that no rational connection can be made between the record and the conclusion. As a practical matter, the appeal will focus entirely on the process the court used in the trial and whether
or not it accorded with published Federal procedural guidelines, and with interpretation of the law.
You are generally correct that appellate courts review of facts are narrowly circumscribed, although the statement of the standard is not entirely correct in particular. This doesn't work so much for Microsoft as again it, since the fact findings are where things went the worst for them. In particular, the particular sentence selected for Microsoft's crime falls in the realm of "fact-finding" to the extent it depends on those fact-findings.
But it seems likely that the Circuit Court will find in favor of the Government on at least some of the issues and thus limit the issues that will actually be argued before the court.
It is a big leap from observing that the case has yet to be fully briefed to concluding that Microsoft will win. Only time will tell.
When a court issues a final judgment, it typically divests itself of jurisdiction except to the extent necessary to enforce that judgment. In a case such as this, things get pretty complicated.
There is a process for post-judgment motions and appeals, with respect to which Microsoft has pending motions. I don't recall my appellate procedure, but the filing of the Notice of Appeal may have the effect of waiving the post-judgment motions, or might not.
However, the Supreme Court direct route is subject to a special statute creating S.Ct. disretionary jurisdiction on direct appeal after a District Court certification, under which the District Court may retain jurisdiction to certify even after a Notice of Appeal is filed. Again, the particulars would depend on the particular statute -- and this is probably itself an interesting litigable question.
-- hey, this thing doesn't happen everyday. Most statutes are regularly tested, even after they are recently passed, so there is ususally clear understanding what they mean and how they work. This case will raise lots of questions of first impression, including, most likely, the questions of appellate procedure raised under these never-tested statutes.
In addition to the other 13 states, U.S. dropping the case wouldn't avoid the preclusive effect of the final judgment against Microsoft. In particular, imagine all of the private lawsuits in the wings, from Netscape, Sun, Apple, etc. Given all the judgments in the criminal case, those cases will be a cake-walk for the plaintiffs unless MS can wipe the slate clean.
A post-judgment settlement won't have that effect.
The 9th Circuit has nothing to do with this case (I just mentioned it above as an example of a LARGE Circuit court).
Of this much I am certain, a Circuit Court judge has probably NO INTEREST WHATSOEVER in the public perception of his or her decisions. There are few positions in the world as powerful as that of a Circuit Court judge and few positions as desirable. Moreso even than the Supreme Court, these guys get to practice "pure law" i n the highest.
They pride themselves on their ability to follow the "law" rather than their instincts, and are far more concerned about their colleagues' viewing their work as pandering or anti-intellectual, than by writing a popular opinion. They tend to be more "by the book" than the Supes (who are not final because they are infallible, but vice-versa), precisely because they are subject to review.
In short, Circuit courts, particularly EN BANC circuit courts, tend to do a really, really good job on the merits. What Microsoft misses by the en banc review is that their best chances for a win (getting both of their two judges from the earlier case on the panel) is mooted entirely.
Moreover, there is one other thing. A 3-judge panel is BOUND by a prior 3-judge panel's decision as precedent. However, an en-banc panel can REVERSE the previous 3-judge panel. This adds a very interesting new possibility to the mix:
1) The Court can find the earlier opinion controls and reverse the District Court (or just reverse on some new grounds).
2) The Court can find the earlier opinion does not control, and decide to affirm the conviction on that basis.
OR, the new possibility
3) The Court can find the earlier opinion does control, OVERTURN the earlier opinion, and still decide to affirm the conviction.
In short, the briefing allows the government no only to argue why the earlier case isn't relevant, but can also argue that the earlier case WAS WRONG!!!!!
This is a big deal -- particularly because the third result can really slam the number of Microsoft chances on a subsequent appeal to the Supreme Court.
look here. This will better help to understand of what we are speaking, what is interesting about it (and what is old news).
OK, guys, here's the drill. In a federal case, the Circuit Court of competent jurisdiction has NO DISCRETION AT ALL whether or not to take up an appeal after a final order from the District Court.
Thus, it misses the point to say that they "took up the appeal." They had no choice. After a Notice of Appeal is filed by Microsoft, the case automagically appears on the Circuit Court's Docket. Period.
What is interesting is what they *DID* do, which is to order the review of the District Court case en banc (that means ALL the judges who don't recuse themselves will hear the appeal, not just a panel of three). The order can be found on-line here
This actually isn't so great for Microsoft, because it means that, while they can be assured that two of the three judges who found for them in their first 2-1 victory (on different issues), those two judges will be a MINORITY of the panel that hears this case.
IF THE COURT HEARS THE CASE . . . the Supreme Court can still take up the case directly, or they might wait until after the En banc review is complete.
By way of explanation, Circuit Courts are big courts, typically with at least a dozen, and sometimes way more (the 9th Circuit, e.g.) judges. By random assignment, three of the judges are heard to review each case. After the three judge court has ruled, there is the possibility (before Supreme Court review) of the Court AS A WHOLE (en banc) to review the work of the three-judge panel, which is rarely done except for a really, really important case, or to resolve conflicts of precedent among prior three-judge opinions.
What is interesting is, not that the Court took up the case -- they had to. What is interesting is that the Court has decided to bypass the three-judge review, and go straight to review en banc. (Some Circuits call it "in banc.")