You are 100% correct in cases that include software that is needed to run hardware. However, one requirement for the EULA to be valid is if that you must have clicked on "I Agree" to use the product. (They don't have to prove you actually clicked on it. Just that in the normal operation, you would have had to click on it.)
This would be a tough sell on a piece of furnature since you can use the furnature without ever reading or opening the software.
The typical knee-jerk libertarian response to any critisism of a company's practices. Why must I blaisely accept any company's practices. If I feel they are outrageous, I have the right to kick and scream and try to get others to be so outraged that they not only boycott the product; but, they also write to the publisher and bitch and moan to them directly in the hopes that they drop the practice.
Or, have libertarians modified the first amendment so that it doesn't apply to critisim of companies?
What legal or moral rights of yours is the author infringing on?
How about misrepresentation of the product? Was it clearly stated before he paid for the book that an essential part of it was on CD? Was it made known before purchase that normal product law was not applicable. What if resellers refuse to honor refunds like they do with opened software? Can a contract be binding if you had to pay to see it and had no chance of recoverying your money if you disagreed with the license?
Your choices are
You forgot
d: bitch and moan in public forums in the hopes that the publisher will stop the practice.
We all agree that an author has a right to keep his work totally to himself, unpublished.
No, we do not agree on your interpetation of copy rights. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries. (Article I, Section 8, US Consittution)
In other words, copyright is a government enforced monopoly granted to authors in exchange for certain obligations. It is not a nautral right. Until recently, one of those duties was to publish. If he didn't publish, he had no rights under copyright law. Unfortunately, Congress has recently removed the obligation of publication and extended the right longer than a "limited time".
First, on your question of UCITA; it depends on which state the "contract" of the EULA is written to apply in, not what state you live. Hence, when it becomes law in Maryland (which will happen first), even though I may be in say New York, and the company selling me something is in say Colorodo, they can still construe their EULA to be under "Maryland law"
It is a little more complicated than that. Under the Maryland version, Maryland law applies. However, the enforcebility of the choice of venue clause was punted to the courts. In other words, a Maryland resident may be able to sue under the MUCITA; but, he may have to go to Washington state to do it.
Another state, Indiana-I think, said that any UCITA provisions is not applicable to residents of their state.
So the question of enforcability depends on the actual terms of the EULA, where you bought it, and the state you reside in.
Certainly the intend of this is to strip you of your right of first sale and redistribution of the book.
Depends on the actual terms of the EULA. The article doesn't make that clear. It appears that the major effect is to limit the number of returns.
Of course, I wonder what is to stop even a physical book from having a taped "seal" with a EULA that must be broken to open and read it?
Has already been litigated and found wanting. I don't remember the exact cite. The facts were that a publisher did put a clause on the front page that a book could not be sold below a certain cost. I store ignored it and sold below the stated cost. This was the case that articulated the first sale principle: the right to control distribution is limited to the first sale. After that, the holder of the copyright has no more control over that particular copy.
This was a big issue when TNT started to colorize old movies. Many directors, producers, etc felt that this was 'defacing' the work of art. However, there was nothing they could do legally since Turner bought the copyright to the movies and had the right to do with them what he wanted. There was a bill introduced in Congress that would give the artist control over the art even after he sold the rights to that piece of art.
Expect more of this type of tomfoolory in the future. UCITA only applies to computer information transfers e.g. hardware is not explictly covered. However, there was a cluase in MUCITA that allowed sellers of hardware/software to opt to have the EULA also apply to the hardware. For example, a DVD disk with player software.
If more states pass some version of UCITA and the definition of "hardware" can be extended, everything will have some portion as software with a click-wrap license.
I don't think you accurately depicted the two camps. ProCD is the case most cited upholding "shrinkwrap" licenses. However, the holding was based on the premiss that you could return the software for a refund if you did not agree with the license.
Actually, the term shrinkwrap is nowdays amibiguous. Initially, it meant those little stickers on the outside of the box telling you that there was a licnese inside the box and you agreed to it by opening the shrinkwrap. These types of licenses have never been upheld in court since they violate the "knowing consent" principle of contract law.
Later, the companies change the practice to either having the license printed on the seal saying that if you break the seal you agree to the license. Or they use "click-wrap". Those little license screens that make you click "I agree".
The original version of shrinkwrap licenses have never been upheld. The later ones are the ones currently being debated in the courtrooms.
The robots.txt file contains instructions to the webcrawlers on what pages should be indexed and which should not. Well-behaved robots follow the instructions. Apperently, the site complaining about its ranking was telling google not to index the entire site.
What we have here is a prime example of some depressed hayseed jurisdiction trying to become an "e-commerce" centre to provide a substitute for dope growing, by futzing about with legal principles.
Nothing like starting a message with flamebait!
Home truth time, boys: technical questions are not difficult.
I agree
Read Kaplan's summary of the technical issues in the DeCSS trial (I said read it, not skim a slashdot article about it).
I read the entire transcripts, the entire opinion, and the order. But, it is a bad example to prove your point since the case turns more on legal issues like copyright law than technical issues. The technical issues are not very complicated.
A trained legal brain can master any subject in its salient details.
And a trained technical brain can master any subject in its salient details. The law isn't any more complicated than technical issues.
Two Examples:
The Open DVD shows that non-lawyers can grasp the intricacies of legal concepts of copyright law.
Second, is the fact that I was involved in a pro se case. That case went to the Maryland Court of Special Appeals (we won the appeal) and also had a motion ruled in our favor that depended on the whether collateral estoppal applied to the case. The opposing lawyer was from Maryland's Attorney General Office.
Lawyers are the highest paid employees in the country
Money == Brains ???
Of course, the fact that your profession has a government enforced monopoly doesn't hurt your income.
You are forgetting the minor problem of copyright.
Dejanews may own the site and offer a free service; but, the postes of the messages own the copyright on the message. Does Dejanews have the right to alter the message without the copyright owners permission?
In my opinion, the only valid use for keeping logs is to help troubleshoot any problems that may occur in the network. The details recorded and length of time the logs are kept should be consistent with this purpose.
Those who argue that ISPs should not keep any logs are not being realistic.
Without logs, the ISP can only shrug its shoulders when a customer calls about email being dropped. With logs, the ISP has a chance to narrow the problem and fix it.
The "moralizing" was obviously in reference to the original post, which is exactly what he was doing.
I didn't interpet the reference in the original to be "moralizing". (Maybe it is because I neither carpool or recycle.) I viewed it as an observation that people use a different criteria when the look at issues that effect them directly then when they are looking at abstract issues. Maybe a better way to phrase it is that they fully understand their position.
However, they can't or don't try to understand the opposing position.
The example I always used to illustrate the point is an incidient that occured with a former co-worker. She and I would get in long arguements that got nowhere over zoning laws. She was for them, I was against them. She came to work very agitated one day. She was upset that the housing authority (or whatever their correct name is) in the development she lived objected to the color of the new door she put on her house.
I had to laugh after five minutes. She ws basically repeating all the arguements I used against zoning laws to complain about the housing authority. Even when I pointed it out to her, she mainted it was somehow different.
ironically, the only contrary example that springs to mind is that of Microsoft
I don't think Microsoft as a counter-example. True, he was a college dropout who ended up being a billionare with a large amount of control over the computing industry. But, he was also the son a a lawyer that played the corpertate contract and marketing game as well as IBM.
I don't think Microsoft would be were it is today if it wasn't for IBM. They couldn't have pulled that trick if they wrote the OS for Apple or Atari.
Remember, IBM was late to the Personal Computer game. (It is left to the reader to decide if this was due to their lack of foresight or the fact the had just gotten done with a 10 year battle with the DOJ.) To get a product out the door quickly, they used standard off-the-self OEM parts rather then specing and building their own custom designs like Apple and Atari. Because of this open archticture, the only thing the clones had to reverse engineer was the BIOS.
Before IBM getting in the market, PCs were not getting into corperations, except when engineers "bootlegged" their own computers into companies. Managers considered the PC a toy. IBM's entry into the PC business legitimized PCs. It was IBM's marketing power with large corperations, couple with the spread sheet (anyone know which OS Visicalc was first written for?) that got the PCsinto corperations.
At this point, IBM owned the corperate market, Apple owned the small business market, and the home market was up for grabs.
Once the BIOS was reverse engineered, hardware manufactorers competiton drove the price down on the desktop where it could compete in the home market.
To summarize, I don't think he is a counter example, because his attitude/focus is closer to the coporate borad room than the hacker-college kid. Second, while he is a tough negotiator, I don't think he could have achieved what he did without his partnership with IBM.
We will have to agree to disagree on this issue since I don't want to get into a debate whether tobacco or guns should be outlawed. You believe, apparently, that the ends justifies the means. Since you dislike the tobacco and gun companies, anything that hurts them is justified. I am a firm believer in the constitutional checks and balances.
If you want the tobacco companies to stop selling cigarettes, you should change the law. Congress has addressed this issue several times and failed to pass legislation.
The guns are even a thornier question since there is a constitutional amendment that limits the types of laws congress can't pass. Don't like the amendment? Change it! There are procedures in place for changing it.
The reason people should be appalled is that you have started down the slippery slope. What happens when the trial lawyers focus on an "unfavorable" industry that you support? There are already some trial lawyers talking about going after the fast food industry on the same legal theories used against this two suits.
Where is the line drawn? Where does it end? Do lawyers and unelected government officials get to determine law even if the majority of people oppose it?
Would this also apply to the MS case? (unpopular industry)
Actually, they are an unpopular company, not an industry. And, I don't think that Microsoft is going to settle because of the cost of litigation since they have $21 billion in cash and no debts. Microsoft has the resources to drag this thing out for decades.
In case you haven't noticed, it is Microsoft that is trying to drag out the case, not the DOJ.
The tabobacco and gun suits are being brought under state laws. And, Florida changed their laws so that they could join the suit.
The lawyers suing the gun makers have made it their startegy to try as many 'novel' arguements as possible in the theory that if you throw enough things against the wall, some will stick.
And the startegy isn't to win the case, it is to get a settlement. And, one of the ways to achieve this is to drive up the cost regardless of the states or cities chances of winning on legal merits.
The Smith & Weston incident was interesting. S&W settled and agreed to impose some restrictions on their dealers. The dealers upset about the restrictions told S&W that they will stop selling S&W guns before they agree to the terms. The states and cities, hoping that the S&W settlement would open the floodgates for other settlements, are thinking of filing 'conspiriacy' charges against the dealers.
The only check on this abuse is how deep the pockets are of the industry they are going against.
Didn't something similar happen with one of the NFL teams? I think it was the colts who let something expire (I don't follow football so the details are hazy) and someone else scarffed up on Colts. A judge ruled that they had to give it back to the NFL team.
If anyone remembers the details, please refresh my memory.
They have to show that they would probably be charged with a violation. I am not sure what the standard for that would be, whether it is that the actually are "harmful to minors" or the DOJ would consider them "harmful to childern". In either case, the DOJ is going to be arguing that these particular websites are NOT "harmful to children".
It would be interesting if DOJ wins. Can they then turn around and prosecute these same sites for violating the law? Or, are these particular sites immune from prosecution?
Unfortuantely, Clinton's administration has come with a new way to skirt both the congress and the constitution: legistation through litigation.
Take an unpopular industry (currently tabbacco and gun makers), sue the shit out of them, rack up expensive legal bills for them, and hope they settle before a ruling. Settlements can not be challenged on consitutinal grounds and no congressional votes are needed.
Whatever a person's views on guns and smoking are, they should be appalled by this tactic since there is no checks and balances to prevent abuses.
IANAL either, but I will take a stab at explaining why they have the different options.
The day after COPA became law, the ACLU and several website owners filed in District Court, a challange COPA. (A lawyer will have to explain how they could do this. I thought that someone had to be actually charged with violating the law in order to question the constitionality of a law.) The ACLU immmediately applied for a preliminary injuction that would stop the government from enforcing COPA until after the trial. The judge held a 5 day hearing on the preliminary injunction and then granted it.
The government appealed that ruling. Since the circuit court, the government has the option to appeal the circuit court's ruling to the Supreme Court.
Remember that this is a preliminary injunciton. That meens that no trial has been held to determine the facts of the case. The court uses some guidelines in deciding to grant a preliminary injuction. Some of them include the likelyhood of the party winning at the actual trial and the damage done to both parties if the injuction is granted or not granted.
So what the District Court judge and the Circuit Court said was basically: Although no trial has been held yet, we think that this party is likely to win at the actual trial and more damage would be done to that party if we don't grant the injuction than done to the opposing party if we do grant the injunction.
This explains the second option. If the government doesn't want to appeal the preliminary injunction to the Supreme Court, they have to go back to the District Court for a full trial to see who wins at the actual trial. (Of course, there is a third option, which is that the government just drops the case.)
The irony of the case is that the ACLU and the websites will be trying to prove that their web sites ARE harmful to minors, while the DOJ and the anti-porn people are going to be trying to prove that these websites are NOT harmful to minors.
Why? Because if the websites are not harmful to minors, then the websites have no "standing" to challenge the law. The District Court would rule that they are in no danger of being charged under COPA so the case is dismissed, the preliminary injuction is lifted, and the government can go back to enforcing COPA without having to worry about the Supreme Court throwing out the law.
He found that MS didn't foreclose Netscape from the market, yet at the same time was guilty of predation. How? He didn't say.
and
Trial evidence clearly indicates that MS made NO headway in taking market share from Netscape until AFTER they had a better product. (IE4).
I seem to recall an email from a Microsoft executive that said they wouldn't be able to make any headway against Netscape until they started to leverage the desktop. And wasn't IE4 the first version that you couldn't uninstall without hosing your computer?
Most of the Justices were appointed during the Reagan era.
The press keeps pointing to this to indicate that they would lean towards Microsoft. However, it should be pointed out that Jackson was also appointed by Reagan. Didn't help Microsoft during the trial.
There is also another reason to think that they might not back Microsoft on its third appearance.
A couple of days ago, the New York Times ran an article describing some of the background stuff that occured during the trial. In it, they described how Boise read the appealate court's opinion on a plane trip to LA. He read it and reread it. By the time he arrived in LA, he was estatic.
When he called the other DOJ lawyers, they couldn't figure out why he was so happy about a ruling in which they lost. He explained to them that the appealate court had given them a road map to show them what the DOJ has to prove in court in order to have the case hold up on appeal.
Also, Jackson specifically addressed the appealte court ruling in his findings. He included Supreme Court rulings backing his position. He has also apparently studied the ruling and tailored his opinion to meet their previous objections.
I can't understand why the press portrayed yesterday's appelate court ruling as a major victory for Microsoft. True, they ignored the DOJ's request to summarily dismiss Microsoft's motion and put the appeal on the fast track. However, they also explicitly said that they would suspend the schedule if Jackson sent it to the Supreme Court (as if there was any doubt that he would).
At the moment, the government does not have anything against Napster. Napster is a civil trial between Napster and the RIAA and some recording artists.
Also, Boise is not a government attorney. The DOJ hired him to present the case. He also took a hell of a cut in pay to represent the government. According to the law, he was classified as a GS-13 (I think) and was only paid $25 an hour.
I agree with what you said except for one clairification. Judge Jackson can not, on his own, decide to jump the circuit court and go to the Supreme Court. The DOJ must specifically ask for that. And, they can't ask for it until Microsoft officially files a Notice of Appeal. (As if there was any doubt that Microsoft would appeal or that the DOJ would ask to skip the appealate court.)
RE UCITA: At least Maryland modified their version although we do put it into effect in October while VA waits until next year.
Millions will have been wasted by the government (and, indirectly, the American people) to produce something irrelivent and useless. Nothing significant will be changed at microsoft and all the years of high-profile MS bashing will have accomplished is to set the american tax payer back a few million.
If they DOJ's goal was to increase competition in the software business, they have already succeeded. Three years ago, linux was never mentioned in the mainstream press. Three years ago, no major OEM would have sold computers with other operating systems preinstalled. Three years ago, no venture captilist would have funded anyone who said they were going to go head-to-head against Microsoft.
Today, Linux is mentioned in all the media. Yesterday, the Washington Post had a large, favoarable article on it. More OEMs are offering Linux preinstalled. And, money poured into the IPOs of Red Hat, VA Linux, etc., whose primary competitor is Microsoft.
Personally, I think Microsoft s making a mistake by dragging it out. Even if they win a total victory on appeal, they will have suffered a setback in the market. They longer they drag it out, the bigger the setback.
Everyone who mentions this senerio semms to forget that the DOJ is not the only plaintiff in the case.
Let's assume that you are 100% correct: Bush wins and he orders DOJ to drop the case. That still leaves the states to appeal an unfavorable ruling from the Circuit Court.
They ARE guilty. They had a trial and have been found guilty. The only thing that will change this is IF the circuit court throws out the Findings of Fact and Law.
Slashdot Mirror
You are 100% correct in cases that include software that is needed to run hardware. However, one requirement for the EULA to be valid is if that you must have clicked on "I Agree" to use the product. (They don't have to prove you actually clicked on it. Just that in the normal operation, you would have had to click on it.)
This would be a tough sell on a piece of furnature since you can use the furnature without ever reading or opening the software.
The typical knee-jerk libertarian response to any critisism of a company's practices. Why must I blaisely accept any company's practices. If I feel they are outrageous, I have the right to kick and scream and try to get others to be so outraged that they not only boycott the product; but, they also write to the publisher and bitch and moan to them directly in the hopes that they drop the practice.
Or, have libertarians modified the first amendment so that it doesn't apply to critisim of companies?
What legal or moral rights of yours is the author infringing on?
How about misrepresentation of the product? Was it clearly stated before he paid for the book that an essential part of it was on CD? Was it made known before purchase that normal product law was not applicable. What if resellers refuse to honor refunds like they do with opened software? Can a contract be binding if you had to pay to see it and had no chance of recoverying your money if you disagreed with the license?
Your choices are
You forgot
d: bitch and moan in public forums in the hopes that the publisher will stop the practice.
We all agree that an author has a right to keep his work totally to himself, unpublished.
No, we do not agree on your interpetation of copy rights. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (Article I, Section 8, US Consittution)
In other words, copyright is a government enforced monopoly granted to authors in exchange for certain obligations. It is not a nautral right. Until recently, one of those duties was to publish. If he didn't publish, he had no rights under copyright law. Unfortunately, Congress has recently removed the obligation of publication and extended the right longer than a "limited time".
It is a little more complicated than that. Under the Maryland version, Maryland law applies. However, the enforcebility of the choice of venue clause was punted to the courts. In other words, a Maryland resident may be able to sue under the MUCITA; but, he may have to go to Washington state to do it.
Another state, Indiana-I think, said that any UCITA provisions is not applicable to residents of their state.
So the question of enforcability depends on the actual terms of the EULA, where you bought it, and the state you reside in.
Certainly the intend of this is to strip you of your right of first sale and redistribution of the book.
Depends on the actual terms of the EULA. The article doesn't make that clear. It appears that the major effect is to limit the number of returns.
Of course, I wonder what is to stop even a physical book from having a taped "seal" with a EULA that must be broken to open and read it?
Has already been litigated and found wanting. I don't remember the exact cite. The facts were that a publisher did put a clause on the front page that a book could not be sold below a certain cost. I store ignored it and sold below the stated cost. This was the case that articulated the first sale principle: the right to control distribution is limited to the first sale. After that, the holder of the copyright has no more control over that particular copy.
This was a big issue when TNT started to colorize old movies. Many directors, producers, etc felt that this was 'defacing' the work of art. However, there was nothing they could do legally since Turner bought the copyright to the movies and had the right to do with them what he wanted. There was a bill introduced in Congress that would give the artist control over the art even after he sold the rights to that piece of art.
Expect more of this type of tomfoolory in the future. UCITA only applies to computer information transfers e.g. hardware is not explictly covered. However, there was a cluase in MUCITA that allowed sellers of hardware/software to opt to have the EULA also apply to the hardware. For example, a DVD disk with player software.
If more states pass some version of UCITA and the definition of "hardware" can be extended, everything will have some portion as software with a click-wrap license.
I don't think you accurately depicted the two camps. ProCD is the case most cited upholding "shrinkwrap" licenses. However, the holding was based on the premiss that you could return the software for a refund if you did not agree with the license.
Actually, the term shrinkwrap is nowdays amibiguous. Initially, it meant those little stickers on the outside of the box telling you that there was a licnese inside the box and you agreed to it by opening the shrinkwrap. These types of licenses have never been upheld in court since they violate the "knowing consent" principle of contract law.
Later, the companies change the practice to either having the license printed on the seal saying that if you break the seal you agree to the license. Or they use "click-wrap". Those little license screens that make you click "I agree".
The original version of shrinkwrap licenses have never been upheld. The later ones are the ones currently being debated in the courtrooms.
The robots.txt file contains instructions to the webcrawlers on what pages should be indexed and which should not. Well-behaved robots follow the instructions. Apperently, the site complaining about its ranking was telling google not to index the entire site.
Nothing like starting a message with flamebait!
Home truth time, boys: technical questions are not difficult.
I agree
Read Kaplan's summary of the technical issues in the DeCSS trial (I said read it, not skim a slashdot article about it).
I read the entire transcripts, the entire opinion, and the order. But, it is a bad example to prove your point since the case turns more on legal issues like copyright law than technical issues. The technical issues are not very complicated.
A trained legal brain can master any subject in its salient details.
And a trained technical brain can master any subject in its salient details. The law isn't any more complicated than technical issues.
Two Examples:
The Open DVD shows that non-lawyers can grasp the intricacies of legal concepts of copyright law.
Second, is the fact that I was involved in a pro se case. That case went to the Maryland Court of Special Appeals (we won the appeal) and also had a motion ruled in our favor that depended on the whether collateral estoppal applied to the case. The opposing lawyer was from Maryland's Attorney General Office.
Lawyers are the highest paid employees in the country
Money == Brains ???
Of course, the fact that your profession has a government enforced monopoly doesn't hurt your income.
You are forgetting the minor problem of copyright.
Dejanews may own the site and offer a free service; but, the postes of the messages own the copyright on the message. Does Dejanews have the right to alter the message without the copyright owners permission?
In my opinion, the only valid use for keeping logs is to help troubleshoot any problems that may occur in the network. The details recorded and length of time the logs are kept should be consistent with this purpose.
Those who argue that ISPs should not keep any logs are not being realistic.
Without logs, the ISP can only shrug its shoulders when a customer calls about email being dropped. With logs, the ISP has a chance to narrow the problem and fix it.
I didn't interpet the reference in the original to be "moralizing". (Maybe it is because I neither carpool or recycle.) I viewed it as an observation that people use a different criteria when the look at issues that effect them directly then when they are looking at abstract issues. Maybe a better way to phrase it is that they fully understand their position.
However, they can't or don't try to understand the opposing position.
The example I always used to illustrate the point is an incidient that occured with a former co-worker. She and I would get in long arguements that got nowhere over zoning laws. She was for them, I was against them. She came to work very agitated one day. She was upset that the housing authority (or whatever their correct name is) in the development she lived objected to the color of the new door she put on her house.
I had to laugh after five minutes. She ws basically repeating all the arguements I used against zoning laws to complain about the housing authority. Even when I pointed it out to her, she mainted it was somehow different.
I don't think Microsoft as a counter-example. True, he was a college dropout who ended up being a billionare with a large amount of control over the computing industry. But, he was also the son a a lawyer that played the corpertate contract and marketing game as well as IBM.
I don't think Microsoft would be were it is today if it wasn't for IBM. They couldn't have pulled that trick if they wrote the OS for Apple or Atari.
Remember, IBM was late to the Personal Computer game. (It is left to the reader to decide if this was due to their lack of foresight or the fact the had just gotten done with a 10 year battle with the DOJ.) To get a product out the door quickly, they used standard off-the-self OEM parts rather then specing and building their own custom designs like Apple and Atari. Because of this open archticture, the only thing the clones had to reverse engineer was the BIOS.
Before IBM getting in the market, PCs were not getting into corperations, except when engineers "bootlegged" their own computers into companies. Managers considered the PC a toy. IBM's entry into the PC business legitimized PCs. It was IBM's marketing power with large corperations, couple with the spread sheet (anyone know which OS Visicalc was first written for?) that got the PCsinto corperations.
At this point, IBM owned the corperate market, Apple owned the small business market, and the home market was up for grabs.
Once the BIOS was reverse engineered, hardware manufactorers competiton drove the price down on the desktop where it could compete in the home market.
To summarize, I don't think he is a counter example, because his attitude/focus is closer to the coporate borad room than the hacker-college kid. Second, while he is a tough negotiator, I don't think he could have achieved what he did without his partnership with IBM.
Gives new meaning to the phrase: nothing but net.
We will have to agree to disagree on this issue since I don't want to get into a debate whether tobacco or guns should be outlawed. You believe, apparently, that the ends justifies the means. Since you dislike the tobacco and gun companies, anything that hurts them is justified. I am a firm believer in the constitutional checks and balances.
If you want the tobacco companies to stop selling cigarettes, you should change the law. Congress has addressed this issue several times and failed to pass legislation.
The guns are even a thornier question since there is a constitutional amendment that limits the types of laws congress can't pass. Don't like the amendment? Change it! There are procedures in place for changing it.
The reason people should be appalled is that you have started down the slippery slope. What happens when the trial lawyers focus on an "unfavorable" industry that you support? There are already some trial lawyers talking about going after the fast food industry on the same legal theories used against this two suits.
Where is the line drawn? Where does it end? Do lawyers and unelected government officials get to determine law even if the majority of people oppose it?
Actually, they are an unpopular company, not an industry. And, I don't think that Microsoft is going to settle because of the cost of litigation since they have $21 billion in cash and no debts. Microsoft has the resources to drag this thing out for decades.
In case you haven't noticed, it is Microsoft that is trying to drag out the case, not the DOJ.
The tabobacco and gun suits are being brought under state laws. And, Florida changed their laws so that they could join the suit.
The lawyers suing the gun makers have made it their startegy to try as many 'novel' arguements as possible in the theory that if you throw enough things against the wall, some will stick.
And the startegy isn't to win the case, it is to get a settlement. And, one of the ways to achieve this is to drive up the cost regardless of the states or cities chances of winning on legal merits.
The Smith & Weston incident was interesting. S&W settled and agreed to impose some restrictions on their dealers. The dealers upset about the restrictions told S&W that they will stop selling S&W guns before they agree to the terms. The states and cities, hoping that the S&W settlement would open the floodgates for other settlements, are thinking of filing 'conspiriacy' charges against the dealers.
The only check on this abuse is how deep the pockets are of the industry they are going against.
Didn't something similar happen with one of the NFL teams? I think it was the colts who let something expire (I don't follow football so the details are hazy) and someone else scarffed up on Colts. A judge ruled that they had to give it back to the NFL team.
If anyone remembers the details, please refresh my memory.
They have to show that they would probably be charged with a violation. I am not sure what the standard for that would be, whether it is that the actually are "harmful to minors" or the DOJ would consider them "harmful to childern". In either case, the DOJ is going to be arguing that these particular websites are NOT "harmful to children".
It would be interesting if DOJ wins. Can they then turn around and prosecute these same sites for violating the law? Or, are these particular sites immune from prosecution?
Unfortuantely, Clinton's administration has come with a new way to skirt both the congress and the constitution: legistation through litigation.
Take an unpopular industry (currently tabbacco and gun makers), sue the shit out of them, rack up expensive legal bills for them, and hope they settle before a ruling. Settlements can not be challenged on consitutinal grounds and no congressional votes are needed.
Whatever a person's views on guns and smoking are, they should be appalled by this tactic since there is no checks and balances to prevent abuses.
IANAL either, but I will take a stab at explaining why they have the different options.
The day after COPA became law, the ACLU and several website owners filed in District Court, a challange COPA. (A lawyer will have to explain how they could do this. I thought that someone had to be actually charged with violating the law in order to question the constitionality of a law.) The ACLU immmediately applied for a preliminary injuction that would stop the government from enforcing COPA until after the trial. The judge held a 5 day hearing on the preliminary injunction and then granted it.
The government appealed that ruling. Since the circuit court, the government has the option to appeal the circuit court's ruling to the Supreme Court.
Remember that this is a preliminary injunciton. That meens that no trial has been held to determine the facts of the case. The court uses some guidelines in deciding to grant a preliminary injuction. Some of them include the likelyhood of the party winning at the actual trial and the damage done to both parties if the injuction is granted or not granted.
So what the District Court judge and the Circuit Court said was basically: Although no trial has been held yet, we think that this party is likely to win at the actual trial and more damage would be done to that party if we don't grant the injuction than done to the opposing party if we do grant the injunction.
This explains the second option. If the government doesn't want to appeal the preliminary injunction to the Supreme Court, they have to go back to the District Court for a full trial to see who wins at the actual trial. (Of course, there is a third option, which is that the government just drops the case.)
The irony of the case is that the ACLU and the websites will be trying to prove that their web sites ARE harmful to minors, while the DOJ and the anti-porn people are going to be trying to prove that these websites are NOT harmful to minors.
Why? Because if the websites are not harmful to minors, then the websites have no "standing" to challenge the law. The District Court would rule that they are in no danger of being charged under COPA so the case is dismissed, the preliminary injuction is lifted, and the government can go back to enforcing COPA without having to worry about the Supreme Court throwing out the law.
and
Trial evidence clearly indicates that MS made NO headway in taking market share from Netscape until AFTER they had a better product. (IE4).
I seem to recall an email from a Microsoft executive that said they wouldn't be able to make any headway against Netscape until they started to leverage the desktop. And wasn't IE4 the first version that you couldn't uninstall without hosing your computer?
The press keeps pointing to this to indicate that they would lean towards Microsoft. However, it should be pointed out that Jackson was also appointed by Reagan. Didn't help Microsoft during the trial.
There is also another reason to think that they might not back Microsoft on its third appearance.
A couple of days ago, the New York Times ran an article describing some of the background stuff that occured during the trial. In it, they described how Boise read the appealate court's opinion on a plane trip to LA. He read it and reread it. By the time he arrived in LA, he was estatic.
When he called the other DOJ lawyers, they couldn't figure out why he was so happy about a ruling in which they lost. He explained to them that the appealate court had given them a road map to show them what the DOJ has to prove in court in order to have the case hold up on appeal.
Also, Jackson specifically addressed the appealte court ruling in his findings. He included Supreme Court rulings backing his position. He has also apparently studied the ruling and tailored his opinion to meet their previous objections.
I can't understand why the press portrayed yesterday's appelate court ruling as a major victory for Microsoft. True, they ignored the DOJ's request to summarily dismiss Microsoft's motion and put the appeal on the fast track. However, they also explicitly said that they would suspend the schedule if Jackson sent it to the Supreme Court (as if there was any doubt that he would).
At the moment, the government does not have anything against Napster. Napster is a civil trial between Napster and the RIAA and some recording artists.
Also, Boise is not a government attorney. The DOJ hired him to present the case. He also took a hell of a cut in pay to represent the government. According to the law, he was classified as a GS-13 (I think) and was only paid $25 an hour.
I agree with what you said except for one clairification. Judge Jackson can not, on his own, decide to jump the circuit court and go to the Supreme Court. The DOJ must specifically ask for that. And, they can't ask for it until Microsoft officially files a Notice of Appeal. (As if there was any doubt that Microsoft would appeal or that the DOJ would ask to skip the appealate court.)
RE UCITA: At least Maryland modified their version although we do put it into effect in October while VA waits until next year.
If they DOJ's goal was to increase competition in the software business, they have already succeeded. Three years ago, linux was never mentioned in the mainstream press. Three years ago, no major OEM would have sold computers with other operating systems preinstalled. Three years ago, no venture captilist would have funded anyone who said they were going to go head-to-head against Microsoft.
Today, Linux is mentioned in all the media. Yesterday, the Washington Post had a large, favoarable article on it. More OEMs are offering Linux preinstalled. And, money poured into the IPOs of Red Hat, VA Linux, etc., whose primary competitor is Microsoft.
Personally, I think Microsoft s making a mistake by dragging it out. Even if they win a total victory on appeal, they will have suffered a setback in the market. They longer they drag it out, the bigger the setback.
Everyone who mentions this senerio semms to forget that the DOJ is not the only plaintiff in the case.
Let's assume that you are 100% correct: Bush wins and he orders DOJ to drop the case. That still leaves the states to appeal an unfavorable ruling from the Circuit Court.
They ARE guilty. They had a trial and have been found guilty. The only thing that will change this is IF the circuit court throws out the Findings of Fact and Law.