Yes disclaimers are common. Look at your parking stub the next time you use a lot, and read all those EULA's (assuming they're enforceable) and other contracts which disclaim liability for negligence and consequential damages -- though of course "your rights may vary from state to state." Sound familiar?
As for the registrar, I think I read that the one who screwed up was actually the agent of the registrar, and I assume the agent is independent and in competition with others. You are right that the problem is different where the other guy is a monopoly, because there your consent to the terms is not freely given. This problem can lead to unenforceability of a disclaimer, and sometimes the local law bans the disclaimer outright.
Things like contract law are getting better -- more uniform, predictable, and even-handed, plus less Latin. The law dates back to Hammurabi and earlier; things are not so simplistic and harsh today. But because they're changing, the intermediate solutions are confusing and conflicting.
You have to remember to protect the innocent good faith purchaser, too, who did nothing wrong and shouldn't get cheated any more than the victim who did nothing wrong. Who deserves protection? In this case, both claimants lost money. I spun this out a bit after you posted.
Not always. The rule varies among the states, and there is sometimes a distinction between void (thief) and voidable (fraud) title. The UCC has its own version. It's never simple, it seems.
Maybe. I know it sounds harsh, but it's also unfair to the innocent GFP to have it taken from them and likely not get their money back.
A caution: I recited the "classic rule" which emphasizes the good title of the GFP. Naturally thw law, which is evolving, is not so simple. Lots of other rules exist, some favoring the victim outright by allowing demand and return at any time, others taking an intermediate course by setting a limitations period from the date of the purchase after which ownership is perfected. This topic gets really heated with topics like recovery of art looted by the Nazis.
A classic case is leaving your watch to be repaired, and the repairer turns around and sells it. Some cases distinguish between this case of "entrustment" where the "thief" has (temporary) title, or where the good are obtained by fraud or bad check, etc., from the outright theft, saying the purchaser from the thief can never get clear title. This seems pointlessly legalistic, because from the GFP's perspective all of these sellers are the same, and all have no real right to sell the goods. I guess the distinction is whether the victim voluntarily handed over title.
FWIW I favor the rule I stated, with careful evaluation whether the the purchaser is a GFP, and possibly with exceptions where the article is unique. Perhaps the GFP could be required to sell the item as a fair market price. I don't know.
As usual, and especially here, YMMV. I just thought the classic rule was a nice analogy, though the reality is messier and depends on what state or country you live in. ON TOPIC, I think the decision in this case was correct, looking at the justice and injustice to all parties involved at once. It's a pretty standard rule in commercial law that if you entrust a task to someone and they screw up, you sue them... unless of course they've disclaimed liability for negligence, in which case if it's important to you you should find one that doesn't. It appears here that the plaintiff was dealing with not the registrar but an independent agent, and so had a choice of agents. Etc., etc. Sometimes there's no completely happy ending, which is why people shouldn't make mistakes int he first place. So there.:)
This sounds like fairly standard law, like the law of what happens when a party in good faith purchases something that was stolen from you. Your recourse is against the thief not the purchaser. (Again, the purchase has to have been in good faith, without knowledge of the illegitimacy of the goods. Things like an excessively low price are a tip-off to bad tricks.)
So the loser's recourse should be against the registrar. They may not have that opportunity, for if the registrar was smart it would have disclaimed liability for negligence in the contract to do the job in the first place. That provision could carry the day. Also, the would-be registrant should be expected to exercise due care to verify the proper registration.
Earlier the RIAA focus appeared to be on impeding the transmission of illegitimate files. Although that might be legal, they wanted immunity from prosecution for screwing up or crossing the line. Obviously (?) they should not get it; if they want aggressive means they'll have to persuade the gov't to do the intrusion. The more expansive idea of allowing them to install malware is nuts. We don't use the posse any more.
But also insane are the current punishments for hacking, equating the activity with terrorism. It's a serious offense, but the law is based on hysteria that robs the courts of the ability to make intelligent sentencing decisions. The RIAA is right to fear it.
* My Q is who was the idiot who thought putting executables in MP3 files was a good idea? Can this be defeated at least as the default? The same one who thought up scripts in email? Whatever stunts the RIAA can pull, anyone can, profiting from the relative anonymity of P2P.
MP3 files should be data, like a JPEG. Throw the clown who created the security hole in jail and fix the problem so the RIAA and everyone else can't touch a thing.
So, did it fail, or is Palladium merely Clipper 2.0?
At least Pd is about profit rather than the gov't snooping on its own citizens. A different THEM, and a differnt motive. Greed is more American then domestic spying, don't you think?:)
I respect the abstract principle of Palladium that has to do with enforcing licensing rights (the claim of preventing viruses and trojans is a PR joke). What I don't like is everything else about it.
I laughed yesterday when I saw father and son had the same name. There's a reason against Sr. and Jr.
Any idea what Jr. is up to today? I assume he landed on his feet.
And the press -- it's dePRESSing how bad they look once you get to know anything about anything. What sounded good turns out to be inaccurate, misleading, or copied from a press release. It's a mistake to dismiss the problem as stupidity, because I think laziness plays a much larger role in the failure to fact-check (yeah, they're on deadline, but the freelancers and magazine writers do the same thing). There are exceptions, whom I treasure, a disproportionate number being with the best newspapers.
I wouldn't just blame Hollywood. Australia is as active a member of copyright conventions as most of the world (Berne, WIPO, etc.), and while it may not go as far as American law it is clear that much the same activity violates Australian law. Hollywood needn't rely on American law at all. It can sue under Australia's, assuming the ISP's activity is not protected there. Is it? If they are aware that a user is misusing their account, they are obligated to terminate it lest they share in the liability under principles going back a hundred years or more. It's not yellow-bellied, it's not new, it's business.
Australia is no rebel on copyright, and I doubt it is eager for other nations to disregard its IP. I would be pissed at the strong-arming (though this letter looks relatively mild to me) but not dispute the underlying rights violations, assuming for the moment they are true.
It's not automatically thuggish to stick up for your rights. It's thuggish to abuse those rights, or try to overextend them. But it's also thuggish to ignore the rights of others.
I know. The nerve of them interfering with legitimate piracy.
I actually like the decoys, and am surprised those here who profess to respect copyright don't also. Points:
self-help -- no courts, no Congress -- a libertarian's dream;
door-to-door service without "jackbooted thugs";
injury to would-be pirates is self-inflicted;
injury is pretty slight, a tweak of the nose (I'd put maniacal laughter, or 3:30 of flatulence in place of the music... perhaps it would make the whole thing more fun while respecting copyright);
it has a civil disobedience feel to it, though not protesting any law.
It's not entrapment; the "victim" goes in with a predisposition to pilfer copyrighted music, and the gov't isn't involved anyway. Perhaps the victim could say they weren't aware the material was copyrighted, but really, they were saved from committing an offense. Wasted bandwidth? Direct consequence of the pirate's misdeed. Deception? Yes, and entirely legal, even just. The best argument against it is merely ethical, that the decoys are (maybe) interfering with fair use, if fair use can be stretched that far. Perhaps also the bogus files clog up the P2P network by spilling into legitimate searches, but I'd like to see evidence of it first.
It's a shame, really, that piracy has to break up things like Napster, and perhaps soon Kazaa et al. It ruins the fun for the rest of us and hobbles a promising technology. The pirates should be recognized as partners with industry in bringing these down. Without the infringement the industry would have nothing to take to court, eh?
Women are capable. Period. If we say they need some sort of special protection or encouragement in society, we are also indirectly saying that they are not as capable.
I'm not so sure. The thing is, failure to do the positive influence in the face of historic discrimination is pretty much like doing the negative. The overwhelming predominant presence of males in the classes and in the field already is an unspoken encouragement for the boys, and deterrent for the girls. To make the extra effort to focus on girls is not because of their defect, but ours. Certainly they can do it, but with the current gender gap fewer as a matter of statistics will.
"You should have just shot him and saved us all a lot of trouble."
That meay not have ben a legal opinion; depends where you live.:)
I think you should take into account whether you live on the Ponderosa. Here, we can have cops in under five minutes even if they walked here (oh wait, the donut shop closed). Actually, a cop lives a few doors down.
You will hear these bizarre tales of lawsuits by bad guys, but you to remember (1) the facts are probably garbled and (2) they're just individual cases, not statistics. Anyway, if you're seriously scared for your safety, and you're not just paranoid, do what seems necessary.
The main reason I mentioned it all, not that anyone but you will read this, is the astonishing number of otherwise intelligent people who think if you catch someone in your house you get to kill them for free. As in life, there are not many legal rules so mechanical.
Re gov't intervention, do you remember the Clipper chip? That was something the gov't really wanted bad, and that caught extreme heat for it. Its death is one of the things that reassures me of the political impossibility of a gov't mandate.
Pd is funny because it's all or nothing -- if they don't achieve a critical mass, it's dead in the water. They did it with Windows, I don't think they can do it again. As someone pointed out, if Pd docs are permitted to be readable on non-Pd machines, that's a huge security hole; if they're not, that's a huge pain in the ass..NET -- I could swear there was a darker edge to that.:)
It's funny, when the worm story broke we got a call in my college dorm room because my roommate knew Morris. According to everyone I talked to who knew him, he was a sweet, decent person who was maybe a little too smart for his own good (he was nicknamed "The Hacker"). He caused himself and his family acute embarassment -- his dad was an official affiliated with the NSA. I was inclined to believe his assertion the whole thing got away from his accidentally, and that it was a bug in the worm that caused much of the problem. Part of our difficulty in fighting the problem was our relative naivite at the time -- and Morris's, too -- which is important in gauging whether he knew what kind of fire he was playing with.
I'm not saying he should get off scot-free, but in my mind he is a world aprat from the recidivist and remorseless former fugitive and multiple felon Kevin Mitnick who, whatever his mistreatment by the feds, I believe may not be at all rehabilitated. Morris screwed up once; Mitnick made a career of it. Mitnick had been busted twice and gone to prison for exactly the same sort of nonsense.
I mentioned these particular two for contrast. The Mitnick crowd instead sees a parallel between their cases. (One thing that blows my mind is Mitnick's stubborn inability to understand why that, even if he had had the bail hearing that he should have had, his chances of getting out were zero after he broke supervised release, fled, and commited more offenses on the run to avoid detection. Courts rightly look very dimly on these things -- fool me once, fool me twice.)
So... the court has to look at the Sorcerer Apprentice's intent and awareness of risk.
Just as is is not legal to yell "FIRE" in a crowded theatre because of the harm that could result, it should also be illegal to say "Cigarettes make your lungs more healthy and contribute to long life!" because of the harm that can result.
Both are illegal no matter who says them (usually; few rules in the law are universal, like life). Consciously false assertions of fact or careless sloppiness with the facts that lead to foreseeable reliance and consequential harm are actionable under theories such as defamation (to put the law of torts in really brief form).
I think statements regarding product usage and statements on policy debates simply need to be handled differently. The CA court imposed one very strict standard for all.
Most salient here, this particular debate is not about corporate speech; it's about commercial speech. That's everyone from GE down to the guy selling wristwatches on the corner (legally, I hope). There are many more sole proprietorships and parnerships, which really are just individuals or small groups of people unshielded by the corporate form, than corporations. So even if corporations were abolished tomorrow this problem would remain. Frankly, I -would- like to hear what Nike has to say about its sweatshops, er, factories, unfettered by truth-in-labeling laws. I also want its executives to give on-record interviews of their views of policy debates. With political speech, unlike a product label, there is time for the other side to scream liar! and balance their speech out without bringing a lawsuit. Now, if Nike drifts into fraud and misrepresentation, they'll be as liable as anybody all the way down to you and me.
So long as it is clear from context what kind of statements are being made, I think it will be OK, and I feel that businesses should be held to high standards of accountability.
I hope this makes sense! Free speech is not a favorite topic of mine. There are significant resources on this on the web, like so much else. But be careful -- some of them may not be telling the truth.;-)
There is an interesting and unanswered question what precisely the Framers and the people who voted for the Constitution thought "crual and unusual punishment" meant. At the time, the British "bloody code" had something like 600 capital offenses, and the colonists were pissed. But what was too much, if (accoridng to the Supreme Court) death by hanging, electrocution, gas, firing squad are not? Stuff like branding, disembowelment, breaking on the wheel, draw-and-quarter? Wow.
And why do we execute but never amputate? Surely amputation is a related but lesser punishment that many condemned would prefer as such (depending possibly on the extremity). Well, I do know why, that was a rhetorical Q.:)
I think Microsoft is taking a wrong turn. I only hope they blow a lot of money over it. Notice how they're backing off on.NET, their plan to take over the Web?
TiVo -- I thought of that after I hit "submit." That is very, very promising, especially coupled to a DVD burner for long-term. Unless they get these copy-protection flags they want as a DMCA thing. I doubt it would work though. But these DMCA ideas I think are much more threatening and provides far less time to act than Palladium -- via DMCA "they" do have an opportunity to ram things down our throats, as with the CD's that suddenly won't play in computers. There, too, consumer pressure is helpful, because MP3 players are getting enough market share in advance that people will protest... and, better yet, refuse to buy the stuff, out of practicality if not principle. Again, the market's invisible hand.
(Disclaimer: I am a liberal fascinated with market breakdowns like monopoly, so though I like the market I realize it is not always self-executing. And I still have a lot to learn about economics. But then, so do most economists.:)
that someone that criticizes the government is "anti-American"
Yeah. "Americans had better watch what they say, watch what they do...." "Ammunition for the enemy..." and so on.
You forgot liberals. They all hate America, too. Which is why I started flying a flag as soon as 9/11 gave me the opportunity not to look jingoistic. Ha-ha, right-wing, we got the flag back.
A minor law point, it is illegal (since Watergate?) for corporations to make direct political contributions. This doesn't mean there aren't workarounds or complications, of course, but we do have *some* sensible federal campaign finance laws.
It will be very interesting to watch the legal challenges to the lastest round of campaign finance reform. I do believe some provisions are unconstitutional (1st A. grounds), but hope it succeeds in cutting back soft money. The unconstitutional parts can be rewritten, also -- if Congress ever gets back to the Q. I am grateful to Sen. McCain for being such a noodge over this issue, for little apparent political benefit in the near term. I don't know if he'll run again for president, but most of the presidential contenders in Congress don't have the same backbone.
I still think direct democracy would be fickle and emotion-driven. After I started to learn a little more about the country I realized I could hardly answer poll questions any more -- I'd be like, could you give me some more details? Couldn't we consider a third option? What's the history on this problem? Etc. Only a few Q's are slam-dunk for me, not out of wishy-washiness but out of inability to research them properly, as a congressperson staff can do. (I live next to DC and plan to be one of those researchers.) The devil is in the details.
On wealth, there's actually an argument that the less well off could all get together and rape the rich. Of course that's what the rich say is already happening with taxation, the top 1% do pay roughly 1/4 of the personal income taxes (which are in turn just part of federazl revenues, along with Medicare & SS taxes, corporate taxes, etc.). The curve of incomes shows 90% of the people below the $100k mark. What is particularly surprising is that the middle class puts up with the disproportionate benefits going to the wealthy.
You can kill if you are in reasonable fear of serious physical injury to you or another, usually true of a burglary. (I'm not sure what serious injury means. You don't have to have a Hollywood-style bar fight.) Don't get carried away: If you see that the burglar is an enterprising Stephen J. Hawking, you can't just plug him in righteous indignation without expecting a murder charge. Your home is your castle, not dungeon. DOn't forget the cops are good at these things, and the risk you'll end up worse off for fighting.
It's a question of proportionality. Tread lightly.
Of course, YMMV, check your local laws. Certain states are MUCH more liberal than others. If you want some amusing research on the use of deadly force, look for the classic cases on "spring guns" -- unattended booby traps for burglars in unoccupied property (typically illegal).
This is all a tad off-topic, but I'll throw in 2...
America is a representative democracy, where we elect representatives as our proxies, as opposed to direct democracy such as favored in Switzerland where (I was just reading) people vote 5-6 times a year on a variety of issues. California is more of a direct democracy than most states, in that it relies heavily on statewide propositions to decide major policy issues such as medical use of marijuana, affirmative action, etc. rather than leaving them to the legislature. None of the states I've lived in has used "direct" initiatives as much, and in the federal system there are none.
Oddly enough there is not even one aspect of federal government that is majoritarian. Not the Presidency (electoral college), not the Senate (2 per state regardless of size), not the Supreme Court or high officials (appt by the President, confirmed by the Senate), not the House (the most closely majoritarian by cutting the population into 435 pieces, but party and committee rules dominate its function). Once elected, a politician or Justice can only be removed by impeachment, which is neither controlled by the people nor majoritarian. And, of course, no national propositions.
Well, OK, maybe that's all boring civics. Personally, I think the result is fine in many or most cases for the specialists whose full-time jobs are national welfare and security, to take the initiative. I do want veto power and I think we've already seen this in the proposed war -- the people, not to mention the President's military advisers, made clear they did not want a unilateral war, and the President changed his mind. Carried too far, however, as with Perot's proposed "electronic town hall" I think the results could be unstable and capricious. The sluggishness of government often benefits us; one of the only things it can do impulsively is start a war, fundamentally for reasons of national security but of course possible to abuse. Also, I try to be very policy-aware but would resent the burden of researching every single issue, wouldn't do a very good job of it, and wonder how well other people would do.
Not that he needs my advice, but I think Bush has a fair chance of losing the next election for exactly the same reason his father did -- preoccupation with international affairs and disregard for the really tough problems like the economy. "It's the economy, stupid" -- remember that one. The problem is having to wait for the next election to express our preferences. And when we do, it will be on broad themes, not specifics like how long a given drug sentence should be or how many infantry should be stationed in the Gulf.
I'm not quite endorsing are system and certainly not rubberstamping everything the gov't does; much of it is horrifying, for example the unjust and racist 100:1 crack:cocaine sentencing ratio that Clinton tried to repeal but has now been forgotten. But direct democracy could be pretty scary, too, as we saw some of in President Clinton's waffling thanks to his obsession with polls.
I guess you could say the system's not perfect but has a lot of promise.:)
Your sentiment is pleasantly honest and common to most people, though maybe not consciously or quite as extreme (for example, to be drawn and quartered after hanging is unnecessary:).
"The punishment should fit the crime." Equally important, someone neutral (not indifferent) should pick the punishment.
*
However, few are aware that the federal judge actually has extremely little discretion in sentencing. In a nonviolent crime against strangers such as destructive hacking, setting aside criminal history, the amount of the losses essentially determines the sentence. Said damages are notoriously difficult to estimate and easy to inflate, as in the cases of Kevin Mitnick or Robert Morris, who were clearly culpable, but for what? State courts remain more flexible, but with the growth of federal law and the wire fraud aspect of computer crime, more cases are swept into federal court where the sentences are typically heavier.
Current federal sentencing guidelines, dating from Reagan era reforms designed to crack down on crime by constraining "soft" judges, and created by the Sentencing Commission, are purposefully wooden and mathematical in their determination of sentences. You literally add and subtract points based on different factors, then consult a chart to find the mandatory sentencing range. (In some cases, I think a minority, defendants do benefit from protection from excessively harsh sentences.) In certain drug cases, mere grams of a substance such as crack can add years to your sentence
At sentencing, the judge is given a presentencing report recommending a sentence plus or minus, say, 5% of a given fine or imprisonment or probation, a range from which it is very difficult to depart without breaking the law. What effectively happens -- and I hope this was foreseen -- is that sentencing authority is passed to prosecutor, whose decisions as to which offenses to charge or to drop, and amenability to plea agreements, set the outcome. If you believe the sentence unfair, it is the prosecutor or Congress, author of the ill-conceived guidelines, that needs influencing. The Guidelines long ago survived constitutional challenege.
I can tell you firsthand that many federal judges don't like the Guidelines, but if they depart from the prescribed sentences they are reversed on appeal.
I still have a VCR that records, for time-shifting -- don't you?:) The VCR won't go away (until there's affordable recordable DVD) so long as there's demand and profit -- plain old boring market forces.
The analogy to software is weak. For one thing, the software markets are easier to break into than hardware (this is a reason to fear Pd). On the other hand, Explorer and Messenger prosper because they are free and easy and work with everything else (a reason Pd is doomed). MS's repeated efforts to co-opt public standards -- far more modest moves than Pd -- have met with absolute failure, and any attempt to leverage their monopoly will be met with lawsuits, such as the ones it has fought against Justice and now Sun. The chances of the market again falling for monopolistic proprietary standard like Windows are dim indeed, esp. large buyers who don't want to put oup with this crap or figuring out how to integrate all their legacy machines.
You will just get it with Windows Longhorn or your next update to Media Player or your next service pack to Office (or together with that patch that fixes the recent 37 buffer overflows in MS' TCP/IP stack), and you may not even notice that the MP3s you save won't be playable on Linux and the MS Office Documents you save won't be readable by OpenOffice anymore.
Not on my Mac I won't.:)
Practically speaking, counterculture Jobs would not go with Pd, just as he has rejected encumbering copying with iTunes; and if he did his loyal customer base ("the market") would murder him. Don't tell me we'll just go extinct. If we were going to do that, we would have done it by now. Or to be more precise, the market would have killed us by now.
I was among the legendary "consumers of computer software at [that] time" and believe me, we weren't all that sophisticated. What we rejected was crap like paying $500 for a software package and then not being able to use it after misplaced the &@^%&! thingamabob required to use OUR OWN software. Resentment, especially among commercial buyers, was great, giving the companies that didn't worry about these things a competitive advantage.
Even now -- and just one example -- the difference between "activating" OS X (press "install") and activating Windows XP is noticed, and this is traded on at my neighborhood Apple Store (more than half their walk-ins are PC users, and they like this stuff). The most restricted product I have is Photoshop, which quite mildly use serial numbers to make sure another copy isn't running elsewhere on the network. Pretty convenient, although easy to hack (post serial #'s on the internet). They are the premier product, yet they do just fine without Palladium.
In my original note, I should have emphasized that huge fraction of "consumers" that are savvy institutional and corporate buyers. They are going to look at Palladium long and hard, and say forget it -- this benefits you far more than us.
What happens down at Best Buy with the newbies won't decide the outcome. For Pd to succeed, everyone needs to sign on, and any holdouts such as Macintosh, not to mention the many millions of legacy machines of all types, will destroy the interoperability the market segments require.
Sure it could happen, but I think it's implausible that it will, and will stake money on that ($50?:).
For their version of the story, here is Microsoft's description of Palladium in plain English.
As for Palladium, I don't see the advantage to me in buying it... so I won't. When even ordinary consumers hear that a Pd computer is eunuched, I doubt they'll buy it any more than they would a VCR that couldn't record. Remeber the days when software vendors attempted "strong" copy protection with key disks and dongles and bizarre installation gymnastics? Consumers rejected these schemes, and they disappeared.
Microsoft has a long history of failures of nanny products (Bob anyone?). This will be another.
Also, MS could not possibly get away with monopoly control of new content on PC's. That would make their last round of monopoly litigation with the gov't look like climbing Mount Everest compared to a quick trip up the bunny slope. It's not that being a monopoly is necessarily wrong or illegal -- it isn't -- but that it would be impossible to manage such a monopoly without anticompetitive, anticonsumer effects.
So... I see no problem with letting Pd go its merry way. You can not be forced to buy it, no matter how convinced you may be of the evil powers of government and microsoft. Let it die a pleasant market-driven death.
I know some will say this is somehow naive, but even as a pro-regulation liberal I firmly believe in the wisdom and power of the free market to deal wil 99.9% of situations such as this. If not, there will be plenty of time to kill it when it comes out; we don't owe Microsoft the favor of delivering a prelease death. I do not believe that Palladium will prosper, and even if it does that content providers will be able to resist catering to the market segment that rejects it. Look how many have "miraculously" continued to serve the "fringe" 5% Macintosh market -- for which I have heard of no Palladium plans. We welcome converts, BTW.:)
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Yes disclaimers are common. Look at your parking stub the next time you use a lot, and read all those EULA's (assuming they're enforceable) and other contracts which disclaim liability for negligence and consequential damages -- though of course "your rights may vary from state to state." Sound familiar?
As for the registrar, I think I read that the one who screwed up was actually the agent of the registrar, and I assume the agent is independent and in competition with others. You are right that the problem is different where the other guy is a monopoly, because there your consent to the terms is not freely given. This problem can lead to unenforceability of a disclaimer, and sometimes the local law bans the disclaimer outright.
Things like contract law are getting better -- more uniform, predictable, and even-handed, plus less Latin. The law dates back to Hammurabi and earlier; things are not so simplistic and harsh today. But because they're changing, the intermediate solutions are confusing and conflicting.
You have to remember to protect the innocent good faith purchaser, too, who did nothing wrong and shouldn't get cheated any more than the victim who did nothing wrong. Who deserves protection? In this case, both claimants lost money. I spun this out a bit after you posted.
Not always. The rule varies among the states, and there is sometimes a distinction between void (thief) and voidable (fraud) title. The UCC has its own version. It's never simple, it seems.
Maybe. I know it sounds harsh, but it's also unfair to the innocent GFP to have it taken from them and likely not get their money back.
... unless of course they've disclaimed liability for negligence, in which case if it's important to you you should find one that doesn't. It appears here that the plaintiff was dealing with not the registrar but an independent agent, and so had a choice of agents. Etc., etc. Sometimes there's no completely happy ending, which is why people shouldn't make mistakes int he first place. So there. :)
A caution: I recited the "classic rule" which emphasizes the good title of the GFP. Naturally thw law, which is evolving, is not so simple. Lots of other rules exist, some favoring the victim outright by allowing demand and return at any time, others taking an intermediate course by setting a limitations period from the date of the purchase after which ownership is perfected. This topic gets really heated with topics like recovery of art looted by the Nazis.
A classic case is leaving your watch to be repaired, and the repairer turns around and sells it. Some cases distinguish between this case of "entrustment" where the "thief" has (temporary) title, or where the good are obtained by fraud or bad check, etc., from the outright theft, saying the purchaser from the thief can never get clear title. This seems pointlessly legalistic, because from the GFP's perspective all of these sellers are the same, and all have no real right to sell the goods. I guess the distinction is whether the victim voluntarily handed over title.
FWIW I favor the rule I stated, with careful evaluation whether the the purchaser is a GFP, and possibly with exceptions where the article is unique. Perhaps the GFP could be required to sell the item as a fair market price. I don't know.
As usual, and especially here, YMMV. I just thought the classic rule was a nice analogy, though the reality is messier and depends on what state or country you live in. ON TOPIC, I think the decision in this case was correct, looking at the justice and injustice to all parties involved at once. It's a pretty standard rule in commercial law that if you entrust a task to someone and they screw up, you sue them
This sounds like fairly standard law, like the law of what happens when a party in good faith purchases something that was stolen from you. Your recourse is against the thief not the purchaser. (Again, the purchase has to have been in good faith, without knowledge of the illegitimacy of the goods. Things like an excessively low price are a tip-off to bad tricks.)
:)
So the loser's recourse should be against the registrar. They may not have that opportunity, for if the registrar was smart it would have disclaimed liability for negligence in the contract to do the job in the first place. That provision could carry the day. Also, the would-be registrant should be expected to exercise due care to verify the proper registration.
Then again, I could be totally mistaken. YMMV.
Earlier the RIAA focus appeared to be on impeding the transmission of illegitimate files. Although that might be legal, they wanted immunity from prosecution for screwing up or crossing the line. Obviously (?) they should not get it; if they want aggressive means they'll have to persuade the gov't to do the intrusion. The more expansive idea of allowing them to install malware is nuts. We don't use the posse any more.
But also insane are the current punishments for hacking, equating the activity with terrorism. It's a serious offense, but the law is based on hysteria that robs the courts of the ability to make intelligent sentencing decisions. The RIAA is right to fear it.
*
My Q is who was the idiot who thought putting executables in MP3 files was a good idea? Can this be defeated at least as the default? The same one who thought up scripts in email? Whatever stunts the RIAA can pull, anyone can, profiting from the relative anonymity of P2P.
MP3 files should be data, like a JPEG. Throw the clown who created the security hole in jail and fix the problem so the RIAA and everyone else can't touch a thing.
So, did it fail, or is Palladium merely Clipper 2.0?
:)
At least Pd is about profit rather than the gov't snooping on its own citizens. A different THEM, and a differnt motive. Greed is more American then domestic spying, don't you think?
I respect the abstract principle of Palladium that has to do with enforcing licensing rights (the claim of preventing viruses and trojans is a PR joke). What I don't like is everything else about it.
Good stories. :)
I laughed yesterday when I saw father and son had the same name. There's a reason against Sr. and Jr.
Any idea what Jr. is up to today? I assume he landed on his feet.
And the press -- it's dePRESSing how bad they look once you get to know anything about anything. What sounded good turns out to be inaccurate, misleading, or copied from a press release. It's a mistake to dismiss the problem as stupidity, because I think laziness plays a much larger role in the failure to fact-check (yeah, they're on deadline, but the freelancers and magazine writers do the same thing). There are exceptions, whom I treasure, a disproportionate number being with the best newspapers.
I wouldn't just blame Hollywood. Australia is as active a member of copyright conventions as most of the world (Berne, WIPO, etc.), and while it may not go as far as American law it is clear that much the same activity violates Australian law. Hollywood needn't rely on American law at all. It can sue under Australia's, assuming the ISP's activity is not protected there. Is it? If they are aware that a user is misusing their account, they are obligated to terminate it lest they share in the liability under principles going back a hundred years or more. It's not yellow-bellied, it's not new, it's business.
Australia is no rebel on copyright, and I doubt it is eager for other nations to disregard its IP. I would be pissed at the strong-arming (though this letter looks relatively mild to me) but not dispute the underlying rights violations, assuming for the moment they are true.
It's not automatically thuggish to stick up for your rights. It's thuggish to abuse those rights, or try to overextend them. But it's also thuggish to ignore the rights of others.
I actually like the decoys, and am surprised those here who profess to respect copyright don't also. Points:
It's not entrapment; the "victim" goes in with a predisposition to pilfer copyrighted music, and the gov't isn't involved anyway. Perhaps the victim could say they weren't aware the material was copyrighted, but really, they were saved from committing an offense. Wasted bandwidth? Direct consequence of the pirate's misdeed. Deception? Yes, and entirely legal, even just. The best argument against it is merely ethical, that the decoys are (maybe) interfering with fair use, if fair use can be stretched that far. Perhaps also the bogus files clog up the P2P network by spilling into legitimate searches, but I'd like to see evidence of it first.
It's a shame, really, that piracy has to break up things like Napster, and perhaps soon Kazaa et al. It ruins the fun for the rest of us and hobbles a promising technology. The pirates should be recognized as partners with industry in bringing these down. Without the infringement the industry would have nothing to take to court, eh?
So, load 'em up.
Women are capable. Period. If we say they need some sort of special protection or encouragement in society, we are also indirectly saying that they are not as capable.
I'm not so sure. The thing is, failure to do the positive influence in the face of historic discrimination is pretty much like doing the negative. The overwhelming predominant presence of males in the classes and in the field already is an unspoken encouragement for the boys, and deterrent for the girls. To make the extra effort to focus on girls is not because of their defect, but ours. Certainly they can do it, but with the current gender gap fewer as a matter of statistics will.
"You should have just shot him and saved us all a lot of trouble."
:)
That meay not have ben a legal opinion; depends where you live.
I think you should take into account whether you live on the Ponderosa. Here, we can have cops in under five minutes even if they walked here (oh wait, the donut shop closed). Actually, a cop lives a few doors down.
You will hear these bizarre tales of lawsuits by bad guys, but you to remember (1) the facts are probably garbled and (2) they're just individual cases, not statistics. Anyway, if you're seriously scared for your safety, and you're not just paranoid, do what seems necessary.
The main reason I mentioned it all, not that anyone but you will read this, is the astonishing number of otherwise intelligent people who think if you catch someone in your house you get to kill them for free. As in life, there are not many legal rules so mechanical.
Re gov't intervention, do you remember the Clipper chip? That was something the gov't really wanted bad, and that caught extreme heat for it. Its death is one of the things that reassures me of the political impossibility of a gov't mandate.
.NET -- I could swear there was a darker edge to that. :)
Pd is funny because it's all or nothing -- if they don't achieve a critical mass, it's dead in the water. They did it with Windows, I don't think they can do it again. As someone pointed out, if Pd docs are permitted to be readable on non-Pd machines, that's a huge security hole; if they're not, that's a huge pain in the ass.
It's funny, when the worm story broke we got a call in my college dorm room because my roommate knew Morris. According to everyone I talked to who knew him, he was a sweet, decent person who was maybe a little too smart for his own good (he was nicknamed "The Hacker"). He caused himself and his family acute embarassment -- his dad was an official affiliated with the NSA. I was inclined to believe his assertion the whole thing got away from his accidentally, and that it was a bug in the worm that caused much of the problem. Part of our difficulty in fighting the problem was our relative naivite at the time -- and Morris's, too -- which is important in gauging whether he knew what kind of fire he was playing with.
... the court has to look at the Sorcerer Apprentice's intent and awareness of risk.
I'm not saying he should get off scot-free, but in my mind he is a world aprat from the recidivist and remorseless former fugitive and multiple felon Kevin Mitnick who, whatever his mistreatment by the feds, I believe may not be at all rehabilitated. Morris screwed up once; Mitnick made a career of it. Mitnick had been busted twice and gone to prison for exactly the same sort of nonsense.
I mentioned these particular two for contrast. The Mitnick crowd instead sees a parallel between their cases. (One thing that blows my mind is Mitnick's stubborn inability to understand why that, even if he had had the bail hearing that he should have had, his chances of getting out were zero after he broke supervised release, fled, and commited more offenses on the run to avoid detection. Courts rightly look very dimly on these things -- fool me once, fool me twice.)
So
Just as is is not legal to yell "FIRE" in a crowded theatre because of the harm that could result, it should also be illegal to say "Cigarettes make your lungs more healthy and contribute to long life!" because of the harm that can result.
;-)
Both are illegal no matter who says them (usually; few rules in the law are universal, like life). Consciously false assertions of fact or careless sloppiness with the facts that lead to foreseeable reliance and consequential harm are actionable under theories such as defamation (to put the law of torts in really brief form).
I think statements regarding product usage and statements on policy debates simply need to be handled differently. The CA court imposed one very strict standard for all.
Most salient here, this particular debate is not about corporate speech; it's about commercial speech. That's everyone from GE down to the guy selling wristwatches on the corner (legally, I hope). There are many more sole proprietorships and parnerships, which really are just individuals or small groups of people unshielded by the corporate form, than corporations. So even if corporations were abolished tomorrow this problem would remain. Frankly, I -would- like to hear what Nike has to say about its sweatshops, er, factories, unfettered by truth-in-labeling laws. I also want its executives to give on-record interviews of their views of policy debates. With political speech, unlike a product label, there is time for the other side to scream liar! and balance their speech out without bringing a lawsuit. Now, if Nike drifts into fraud and misrepresentation, they'll be as liable as anybody all the way down to you and me.
So long as it is clear from context what kind of statements are being made, I think it will be OK, and I feel that businesses should be held to high standards of accountability.
I hope this makes sense! Free speech is not a favorite topic of mine. There are significant resources on this on the web, like so much else. But be careful -- some of them may not be telling the truth.
I've been waiting for the .ANNOUNCEMENT, but .MAYBE I'm .HOPING for too .MUCH.
"Yuck."
:)
There is an interesting and unanswered question what precisely the Framers and the people who voted for the Constitution thought "crual and unusual punishment" meant. At the time, the British "bloody code" had something like 600 capital offenses, and the colonists were pissed. But what was too much, if (accoridng to the Supreme Court) death by hanging, electrocution, gas, firing squad are not? Stuff like branding, disembowelment, breaking on the wheel, draw-and-quarter? Wow.
And why do we execute but never amputate? Surely amputation is a related but lesser punishment that many condemned would prefer as such (depending possibly on the extremity). Well, I do know why, that was a rhetorical Q.
I think Microsoft is taking a wrong turn. I only hope they blow a lot of money over it. Notice how they're backing off on .NET, their plan to take over the Web?
... and, better yet, refuse to buy the stuff, out of practicality if not principle. Again, the market's invisible hand.
:)
TiVo -- I thought of that after I hit "submit." That is very, very promising, especially coupled to a DVD burner for long-term. Unless they get these copy-protection flags they want as a DMCA thing. I doubt it would work though. But these DMCA ideas I think are much more threatening and provides far less time to act than Palladium -- via DMCA "they" do have an opportunity to ram things down our throats, as with the CD's that suddenly won't play in computers. There, too, consumer pressure is helpful, because MP3 players are getting enough market share in advance that people will protest
(Disclaimer: I am a liberal fascinated with market breakdowns like monopoly, so though I like the market I realize it is not always self-executing. And I still have a lot to learn about economics. But then, so do most economists.
that someone that criticizes the government is "anti-American"
Yeah. "Americans had better watch what they say, watch what they do...." "Ammunition for the enemy..." and so on.
You forgot liberals. They all hate America, too. Which is why I started flying a flag as soon as 9/11 gave me the opportunity not to look jingoistic. Ha-ha, right-wing, we got the flag back.
A minor law point, it is illegal (since Watergate?) for corporations to make direct political contributions. This doesn't mean there aren't workarounds or complications, of course, but we do have *some* sensible federal campaign finance laws.
It will be very interesting to watch the legal challenges to the lastest round of campaign finance reform. I do believe some provisions are unconstitutional (1st A. grounds), but hope it succeeds in cutting back soft money. The unconstitutional parts can be rewritten, also -- if Congress ever gets back to the Q. I am grateful to Sen. McCain for being such a noodge over this issue, for little apparent political benefit in the near term. I don't know if he'll run again for president, but most of the presidential contenders in Congress don't have the same backbone.
I still think direct democracy would be fickle and emotion-driven. After I started to learn a little more about the country I realized I could hardly answer poll questions any more -- I'd be like, could you give me some more details? Couldn't we consider a third option? What's the history on this problem? Etc. Only a few Q's are slam-dunk for me, not out of wishy-washiness but out of inability to research them properly, as a congressperson staff can do. (I live next to DC and plan to be one of those researchers.) The devil is in the details.
On wealth, there's actually an argument that the less well off could all get together and rape the rich. Of course that's what the rich say is already happening with taxation, the top 1% do pay roughly 1/4 of the personal income taxes (which are in turn just part of federazl revenues, along with Medicare & SS taxes, corporate taxes, etc.). The curve of incomes shows 90% of the people below the $100k mark. What is particularly surprising is that the middle class puts up with the disproportionate benefits going to the wealthy.
You can kill if you are in reasonable fear of serious physical injury to you or another, usually true of a burglary. (I'm not sure what serious injury means. You don't have to have a Hollywood-style bar fight.) Don't get carried away: If you see that the burglar is an enterprising Stephen J. Hawking, you can't just plug him in righteous indignation without expecting a murder charge. Your home is your castle, not dungeon. DOn't forget the cops are good at these things, and the risk you'll end up worse off for fighting.
It's a question of proportionality. Tread lightly.
Of course, YMMV, check your local laws. Certain states are MUCH more liberal than others. If you want some amusing research on the use of deadly force, look for the classic cases on "spring guns" -- unattended booby traps for burglars in unoccupied property (typically illegal).
This is all a tad off-topic, but I'll throw in 2...
:)
America is a representative democracy, where we elect representatives as our proxies, as opposed to direct democracy such as favored in Switzerland where (I was just reading) people vote 5-6 times a year on a variety of issues. California is more of a direct democracy than most states, in that it relies heavily on statewide propositions to decide major policy issues such as medical use of marijuana, affirmative action, etc. rather than leaving them to the legislature. None of the states I've lived in has used "direct" initiatives as much, and in the federal system there are none.
Oddly enough there is not even one aspect of federal government that is majoritarian. Not the Presidency (electoral college), not the Senate (2 per state regardless of size), not the Supreme Court or high officials (appt by the President, confirmed by the Senate), not the House (the most closely majoritarian by cutting the population into 435 pieces, but party and committee rules dominate its function). Once elected, a politician or Justice can only be removed by impeachment, which is neither controlled by the people nor majoritarian. And, of course, no national propositions.
Well, OK, maybe that's all boring civics. Personally, I think the result is fine in many or most cases for the specialists whose full-time jobs are national welfare and security, to take the initiative. I do want veto power and I think we've already seen this in the proposed war -- the people, not to mention the President's military advisers, made clear they did not want a unilateral war, and the President changed his mind. Carried too far, however, as with Perot's proposed "electronic town hall" I think the results could be unstable and capricious. The sluggishness of government often benefits us; one of the only things it can do impulsively is start a war, fundamentally for reasons of national security but of course possible to abuse. Also, I try to be very policy-aware but would resent the burden of researching every single issue, wouldn't do a very good job of it, and wonder how well other people would do.
Not that he needs my advice, but I think Bush has a fair chance of losing the next election for exactly the same reason his father did -- preoccupation with international affairs and disregard for the really tough problems like the economy. "It's the economy, stupid" -- remember that one. The problem is having to wait for the next election to express our preferences. And when we do, it will be on broad themes, not specifics like how long a given drug sentence should be or how many infantry should be stationed in the Gulf.
I'm not quite endorsing are system and certainly not rubberstamping everything the gov't does; much of it is horrifying, for example the unjust and racist 100:1 crack:cocaine sentencing ratio that Clinton tried to repeal but has now been forgotten. But direct democracy could be pretty scary, too, as we saw some of in President Clinton's waffling thanks to his obsession with polls.
I guess you could say the system's not perfect but has a lot of promise.
Your sentiment is pleasantly honest and common to most people, though maybe not consciously or quite as extreme (for example, to be drawn and quartered after hanging is unnecessary :).
"The punishment should fit the crime." Equally important, someone neutral (not indifferent) should pick the punishment.
*
However, few are aware that the federal judge actually has extremely little discretion in sentencing. In a nonviolent crime against strangers such as destructive hacking, setting aside criminal history, the amount of the losses essentially determines the sentence. Said damages are notoriously difficult to estimate and easy to inflate, as in the cases of Kevin Mitnick or Robert Morris, who were clearly culpable, but for what? State courts remain more flexible, but with the growth of federal law and the wire fraud aspect of computer crime, more cases are swept into federal court where the sentences are typically heavier.
Current federal sentencing guidelines, dating from Reagan era reforms designed to crack down on crime by constraining "soft" judges, and created by the Sentencing Commission, are purposefully wooden and mathematical in their determination of sentences. You literally add and subtract points based on different factors, then consult a chart to find the mandatory sentencing range. (In some cases, I think a minority, defendants do benefit from protection from excessively harsh sentences.) In certain drug cases, mere grams of a substance such as crack can add years to your sentence
At sentencing, the judge is given a presentencing report recommending a sentence plus or minus, say, 5% of a given fine or imprisonment or probation, a range from which it is very difficult to depart without breaking the law. What effectively happens -- and I hope this was foreseen -- is that sentencing authority is passed to prosecutor, whose decisions as to which offenses to charge or to drop, and amenability to plea agreements, set the outcome. If you believe the sentence unfair, it is the prosecutor or Congress, author of the ill-conceived guidelines, that needs influencing. The Guidelines long ago survived constitutional challenege.
I can tell you firsthand that many federal judges don't like the Guidelines, but if they depart from the prescribed sentences they are reversed on appeal.
I still have a VCR that records, for time-shifting -- don't you? :) The VCR won't go away (until there's affordable recordable DVD) so long as there's demand and profit -- plain old boring market forces.
The analogy to software is weak. For one thing, the software markets are easier to break into than hardware (this is a reason to fear Pd). On the other hand, Explorer and Messenger prosper because they are free and easy and work with everything else (a reason Pd is doomed). MS's repeated efforts to co-opt public standards -- far more modest moves than Pd -- have met with absolute failure, and any attempt to leverage their monopoly will be met with lawsuits, such as the ones it has fought against Justice and now Sun. The chances of the market again falling for monopolistic proprietary standard like Windows are dim indeed, esp. large buyers who don't want to put oup with this crap or figuring out how to integrate all their legacy machines.
:)
You will just get it with Windows Longhorn or your next update to Media Player or your next service pack to Office (or together with that patch that fixes the recent 37 buffer overflows in MS' TCP/IP stack), and you may not even notice that the MP3s you save won't be playable on Linux and the MS Office Documents you save won't be readable by OpenOffice anymore.
Not on my Mac I won't.
Practically speaking, counterculture Jobs would not go with Pd, just as he has rejected encumbering copying with iTunes; and if he did his loyal customer base ("the market") would murder him. Don't tell me we'll just go extinct. If we were going to do that, we would have done it by now. Or to be more precise, the market would have killed us by now.
I was among the legendary "consumers of computer software at [that] time" and believe me, we weren't all that sophisticated. What we rejected was crap like paying $500 for a software package and then not being able to use it after misplaced the &@^%&! thingamabob required to use OUR OWN software. Resentment, especially among commercial buyers, was great, giving the companies that didn't worry about these things a competitive advantage.
:).
Even now -- and just one example -- the difference between "activating" OS X (press "install") and activating Windows XP is noticed, and this is traded on at my neighborhood Apple Store (more than half their walk-ins are PC users, and they like this stuff). The most restricted product I have is Photoshop, which quite mildly use serial numbers to make sure another copy isn't running elsewhere on the network. Pretty convenient, although easy to hack (post serial #'s on the internet). They are the premier product, yet they do just fine without Palladium.
In my original note, I should have emphasized that huge fraction of "consumers" that are savvy institutional and corporate buyers. They are going to look at Palladium long and hard, and say forget it -- this benefits you far more than us.
What happens down at Best Buy with the newbies won't decide the outcome. For Pd to succeed, everyone needs to sign on, and any holdouts such as Macintosh, not to mention the many millions of legacy machines of all types, will destroy the interoperability the market segments require.
Sure it could happen, but I think it's implausible that it will, and will stake money on that ($50?
For their version of the story, here is Microsoft's description of Palladium in plain English.
... so I won't. When even ordinary consumers hear that a Pd computer is eunuched, I doubt they'll buy it any more than they would a VCR that couldn't record. Remeber the days when software vendors attempted "strong" copy protection with key disks and dongles and bizarre installation gymnastics? Consumers rejected these schemes, and they disappeared.
... I see no problem with letting Pd go its merry way. You can not be forced to buy it, no matter how convinced you may be of the evil powers of government and microsoft. Let it die a pleasant market-driven death.
:)
As for Palladium, I don't see the advantage to me in buying it
Microsoft has a long history of failures of nanny products (Bob anyone?). This will be another.
Also, MS could not possibly get away with monopoly control of new content on PC's. That would make their last round of monopoly litigation with the gov't look like climbing Mount Everest compared to a quick trip up the bunny slope. It's not that being a monopoly is necessarily wrong or illegal -- it isn't -- but that it would be impossible to manage such a monopoly without anticompetitive, anticonsumer effects.
So
I know some will say this is somehow naive, but even as a pro-regulation liberal I firmly believe in the wisdom and power of the free market to deal wil 99.9% of situations such as this. If not, there will be plenty of time to kill it when it comes out; we don't owe Microsoft the favor of delivering a prelease death. I do not believe that Palladium will prosper, and even if it does that content providers will be able to resist catering to the market segment that rejects it. Look how many have "miraculously" continued to serve the "fringe" 5% Macintosh market -- for which I have heard of no Palladium plans. We welcome converts, BTW.