I just checked google (mcdonald's coffee scalding) and saw lots more written about this case and others like it. Here is a sober analysis of the case. Very important is McDonald's detailed knowledge of the hazard -- versus consumer unawareness -- and its lack of intention to do anything about it after 700 unnecessary injuries.
Note also that these were really nasty burns, sometimes with no culpability of the victim.
Beware the words "tort reform" accompanied by deliberately distorted stories, as has happened here. The reform proponents have to be able to come up with at least a few good anecdotes without corrupting stories that actually contradict their position. And even if they do come up with worthwhile anecdotes, remember that anecdotes are unreliable (!) and that statistics or a broad sampling is a better foundation for changing the law.
in fact it was the standard temperature which this article goes to great lengths to prove for me
Not any more! It was an unacceptably dangerous practice, the case tells us. To turn your argument around "just because everyone does it" -- serves scalding coffee -- hardly makes it a "bright idea." The industry, esp. McDonald's, changed its rules once they realized, golly, we can get in trouble for this; it can cost us money and good will (perhaps less damage if maybe we're involved in a smear campaign against that old lady plaintiff... hmm). When I researched this I read an article in a restaurant trade magazine discussing recommended procedures in light of the decision.
The thing with the coffee is that (1) the dangerousness is (reasonably) unexpected by most consumers, who appreciate that hot coffee is painful but not disfiguring; and (2) it is inevitable that coffee will be spilled on people, with or without contributory negligence. Although the woman here lost 20% of her compensation because of her partial culpability, there are other examples. If I recall the evidence, most of the other scalding victims were small children who either pulled the cups down or were doused by a stumbling grown-up. Sure, the 4 y.o. or their parent was arguably "at fault," but McDonald's put the hand grenade on the table.
You can usually blame someone, and a line has to be drawn between your culpability and the other party's. It's a judgment call; there are many many examples of tort cases that sank because even though the manufacturer could have theoretically made the product safer, the plaintiff's conduct was so ridiculous it didn't matter. My favorite example is the guy who tried to trim his hedge by picking up his lawnmower -- he lost fingers and his lawsuit.
If nothing else persuades you, consider the dispassionate economic analysis. Which increases the wealth of society more: protecting undrinkably hot coffee or reducing scalding injuries? When asked, a lot of the public said, yeah, that coffee is too darn hot.
:) It's a good question. The "phenomenally stupid law" question is an old one.
There's a reason the Supreme Court is called Supreme. It's the end of the road. There is definitely no way to force them to review a case, and imagine how cranky they'd be if you did. Even if there were oversight, that could be corrupt, and so on in a sort of Zeno's Paradox. Alternatively, the corrupt Court could grant cert. and uphold the law, same result as refusing to hear it but yielding precedent controlling all of the nation's inferior courts.
The Senate can impeach Justices for certain reasons, but being stupid is not one of them. (On that topic, if the Senate abuses the impeachment power, who reviews that? Another example of unreviewability. Don't worry, the President gets a few absolute powers, too.) Also, if the Congress was corrupt enough to pass the law, they're not going to attack the Court for supporting them... unless it helps them in the polls.
Hang on, there is one last super-supreme court -- the public. The bedrock of democracy. For better or worse. They get Congress to repeal the law by replacing all of them if necessary by voting. Unless they all hate blondes, too, or like most Americans don't show up to vote.
Humor aside, we have a Constitution, the supreme law, as a check on discriminatory laws by Congress. No matter how popular, certain kinds of laws can not be enforced, protecting minorities from overreaching by the majority assuming a sane Supreme Court. For example of wackiness, the majority can't sentence the minority to death; that would break a couple of amendments. If you think that's a goofy example, recall that Nazi Germany had a valid court system applying the Nuremberg laws -- with a Constitution the judges could have struck the laws down and gone to concentration camps. Most countries do not have this judicial review, where the courts get the last word.
But wait! There's even trump card on the Constitution: the amendment. That requires a supermajority 3/4 vote of the states, which is hard to get.
Dizzy yet? It's called checks and balances -- Schoolhouse Rock did a favorite number about it ("We the People."). Plus, you can see why lawyers use so many footnotes, they just can't stop worrying there's something they left out.
I haven't read enough of the facts to speak with confidence, but my impression was that the browser issue was very important. Basically IE was proof that not only were they a monopoly but they were misusing the monopoly to bootstrap/foist a new category-killer product.
They said, I did wonder how the IE strategy could ever work, unless they managed somehow to privatize HTML. I guess it was not clear until recently that small lightly-funded groups would produce excellent browsers. (I use Chimera for Mac OS X, Opera as second choice, IE if nothing else works.)
I am still not clear on why the Bush Administration immediately abandoned a tying claim on which they had been successful, other than it is the Bush Administration. [partisan jab in velvet glove]
Her injuries were extraordinary -- 2nd and 3rd degree burns. The coffee burned her skin off. I like to think I'm reasonably educated, yet I had no idea that a cup of hot coffee could cause damage requiring skin grafts. I've certainly tucked a cup of coffee (or, from McD's, a hand grenade) between by legs, more so in older cars that did not have the godsend of cup holders. For people too lazy to read the article, The McD's coffee was roughly 50 degrees hotter (190F) than the coffee people brew at home. Water at 120 is hot enough to scald in 30 seconds, and the higher you go the faster it is.
There is no real need for the coffee to be that hot, except to convenience McD's which doesn't want coffee to cool too quickly sitting out, and doesn't want annoyed customers coming back. So they consciously made a business decision to scortch the occasional patron -- and got the ire of the jury for this. The food service industry responded to the decision by lowering coffee service temps.
She initially offered to settle for slightly more than her medical bills. This was not a gold-digger.
The punitive award WAS excessive. The jury was evidently pissed and exceeded its power, but in its defense consider that a punitive damage is supposed to hurt -- hence punistive or punish -- and how much does it take for a behemoth like McD's to even notice? The judge properly intervened to reduce it radically, by over 2/3 (my memory of the numbers differs from what the linked article says). The plaintiff then had a choice whether to retry the case or take the remittitur. The point is that the system worked.
I used to laugh at this case, too. Until I got a real accounting of the facts halfway through law school, not the bullshit blindered version reported by the media and trumpeted by the conservative critics who would like to gut tort law. The only thing good about them is that most did not know the truth either, and negligently parroted what they had heard somewhere, an urban legend. With the internet it is more difficult to get away with this sort of propagandizing.
Hmm, isn't THAT special? Thank you for your research.
Frank Rich, an NYT columnist, has railed repeatedly against the risk of corporate monsters, esp. Disney, buying media outlets. This could be an example of subtle influence -- I mean, which is the better journalistic headline? Report of the has-beens or the still-be's? At least MSNBC is upfront about its potential conflict of interest, if anyone stops to wonder what those letters stand for.
No offense, but I can't believe you guys finally elected that bozo (IMHO). Or maybe I have him confused with another bozo, er, Mass politician... Where have the greats gone (there are still a couple).
If you have a Dem AG -- are they screaming at each other yet? Is Romney even in office?
-- ex-Mass resident, depressed at state's drift rightward
The atty general (AG) is the attorney for the state, The district attys (DA's) prosecute criminal cases in the various counties or cities of the state.
Cost? Not much compared to what has already been spent -- what's another 1%? Plus state attys are salaried and cheap compared to private practice; those who pursue gov't work take a major pay ct of 50% or more, in exchange for saner hours and that warm fuzzy feeling. I assume they did not contract this out.
This is not piecemeal. If the state has a basis for appeal it should do so, and should not be bossed around by the federal gov't which may have worse or politically clouded judgment.
IBM was a 13-year federal investigation that was abandoned when IBM itself sank in market relevance, and is generally regarded as a disaster. But tech antitrust has proved a whole new animal.
One more hop. DC trial ct --> DC Circuit Ct of Appeals --> SC
The Supreme Court has discretionary review (by granting a writ of certiorari) and decides fewer than a hundred cases a year from thousands submitted. As this case is mostly about facts and a judgment call on the engineering of the settlement, I suppose they'd be unlikely to take it.
For that matter, I doubt the Court of Appeals will want to reopen the wound. But there could be this great issue I don't know about. I doubt it, given that the other states jumped ship.
I'm not sure how things are handled when one litigant splits off to appeal. It depends on the design of the litigation and the settlement, which the district court merely approved. Obviously MA do anything to bind the other states; if the circuit court were to vacate and remand, I assume everyone would get together for a reunion in DC.
Ah, to do civil procedure justice I should throw in the civil principles called "res judicata" (thing decided) and "collateral estoppel" (collateral bar) which do prevent reopening matters settled in an earlier lawsuits. These serve interests of fairness, efficiency, and finality, and naturally have their own stack of special rules.
These principles can be analogized to double jeopardy, but this is not a new lawsuit but an appeal from the judge's recent ruling. The earlier appeal was from Judge Jackson's order; the circuit partially vacated and sent the case back down for a new judge to evaluate the merits; then the parties settled and the court accepted the federal version with some tweaks, to Massachusetts's consternation.
There, a complete answer. I know, no one cares, but I love this stuff.
Re money, if it seems unreasonable to spend MORE money on the litigation, consider how much has already been spent, and that an appeal will cost pennies in comparison. In for a pound, in for an extra penny. (Well, OK, thousands, but again that's nothing; and the state's lawyers are probably salaried.) Massachusetts has already worked up all its arguments for what it wants; and the trial judge rejected them. I do not know whether MA has good arguments, and hope it is not being a sore loser. The DC appeals court is not going to be disposed to disturb the trial judge's ruling unless she got the law wrong, and it's a fairly conservative court anyway.
As a last note re money, recall the many millions of dollars at stake in the dispute between the parties. From the structure of the settlement, one hopes there will be no need for a new lawsuit on the monopoly Q. However, I seriously doubt this is Microsoft's last time in court.
THIS IS A CIVIL CASE. Double jeopardy applies to criminal cases.
Also, an appeal is of course part of the same action; jeopardy remains "attached." I could explain about acquittals and such... but it's irrelevant. (There are also more exceptions to double jeopardy that you might expect, for example the Rodney King beaters could rightfully be retried for civil rights violations following their acquittal.)
Free speech cheerleaders that Americans are, I'm pretty sure this bare argument would get skewered in court, at least on public indecency grounds. Certainly you have the right to give a cop the finger, though I really really recommend you don't.
There was a classic SC case (Cohen) during the Vietnam War a man was observed in a couthouse corridor wearing a jacket emblazoned "Fuck the draft" on the back. He went into a courtroom, first taking the jacket off, and was arrested.
His conviction was overturned because the Court felt he had not crossed the line between his right of expression and the court's need for decorum (you couldn't break into song during a trial, for example, unless maybe you were a defendant pleading insanity:).
So there is a time, manner, place for different kinds of expression, even uncivil ones. I'm just not picturing the place for expressive mooning... besides a nude beach. I remember a football coach at my high school getting canned for mooning a female math teacher, but that was private school -- no First Amendment.
I don't understand why these smaller companies don't just stand up to Microsoft and take them to court. I mean, I think the Department of Justice and various states demonstrated pretty clearly that all you need to go up against Microsoft is millions of dollars and a small army of lawyers. If you don't believe me, or squeak something about DOJ not really being successful, consider "little guy" Sun Microsystems, who sued over Java.
More seriously, this is getting ridiculous. I can understand Microsoft wanted to protect its branding -- names like Lindows are meant to draw people away from MS Windows -- but they're just bullies.
You know, a real solution would be for someone to come up with a new metaphor, or paradigm.
But I'll never cave to this intimidation! See, I've bared a Window® into my soul. This is our Window® of opportunity to take a stand against this Window® dressing. It's our Window®
Damn, it's getting stuffy in here, excuse me while I go open the f*cking Window®.
An hour ago I was driving by the Pentagon on one of the smaller highways and saw a sign saying, "Entering Pentagon Reservation / Unauthorized Photography Prohibited." For the unfamiliar (I'm trying not to be U.S.-centric!), the Pentagon is a five-sided military HQ hit last year by a hijacked airplane -- hence their heightened concern for security. However, it seemed like a weird rule, that you could not take pictures even on the no-man's-land of the highway or adjacent grassy areas. But given the armed presence here and there around the perimeter these days, I won't be yanking their chains, thank you.
America: Home of the (surveilled) free and land of the (cowed) brave
nobody with the slightest grain of intelligence wants to be a politician
Hey, Abraham Lincoln was pretty cool! (grin)
Trust me, people though politicians were tools back then, too. It's an American vice to think that you can rag on a profession like politicking or teaching and expect it to magically improve. Then again, the criticism liberates us from responsibility for our political apathy.
#2 Q is a yes, that's part of the point of fair use, to facilitate criticism or parody or news reporting. You can only reproduce the amount necessary to the task. It is hard to imagine permitting copyright greater scope, in a country committed to free speech. Of course, that doesn't prevent "them" from trying!
In Campbell v. Acuff-Rose, the Supreme Court applied fair use to 2 Live Crew's parody of "Oh, Pretty Woman!" Among other things, the Court said that even a parody for profit does not necessarily violate copyright. (Another debate is: does the parody have to be funny?)
Oh, I know. This is just quid pro quo. (And by "in [the] public" I meant as opposed to "in your home.")
In some cases, taping you without your consent, private property or not, can be problematic as an invasion of privacy -- e.g., in the dressing room, in the bathroom. Your entry on the property doesn't mean all privacy bets are off.
Not being allowed to reproduce the work in an archive doesn't limit speech about the work in any meaningful way
Oh, I disagree. It is critically important. For example, it would be impossible to do a parody without reproducing some, not necessarily all, of the work. But statutory fair use apparently makes it unnecessary to reach free speech Q's. As I mention below, I think it's nonetheless important to be mindful of the influence of free speech doctrine.
Value of the work -- what damages could the spammer seriously claim? This judgment affects the decision whether to take the threat seriously, whether to roll the dice telling them to go to hell, etc. Strategic stuff.
Doctrinal relationship of 1st A. and fair use -- I supposed that they were interrelated, and others have argued the same. Fair use is not in the Copyright Clause, it was read into it, originally by the judiciary. Congress later wrote it into the statute. I think fair use is clearly informed by 1st A. values, but of course the two are not interchangeable.
Here's more and more (note ditto.com cite). I haven't vetted these docs; use at your own risk (as if my approval would guarantee anything!). This area of law, with regard to the Internet, is not fully formed. I'm reminded of the deep-linking Q, too.
However, this is all far too abstract. A trial judge is going to want cites to statutes and precedent, not dreamy academic stuff. It's just useful to consider the underlying values to keep your arguments focused. Now that I've belatedly read the actual "C&D letter" I realize the writer is full of crap -- good enough for a dismissal IMHO.:)
My apologies, I did not first look at the "letter" you received from the "lawyer," attached below in complete defiance of any applicable copyright. Nyahhh.
This person is not a lawyer. The lack of a name -- for either lawyer or client -- and staggering number of typographical errors and lack of even verb agreement (owner/have -- plus it's)... well, let's not dignify this. The legal Q raised is pretty interesting, but will wait for another day.
Write back to these people if you must, and ask if they'd be interesting in buying your new line of nitric acid suppositories. Maybe let AOL know the account is being used to send anonymous harassing emails by someone impersonating a lawyer.
****
From: Legalservicesdp@aol.com Date: Wed, 27 Nov 2002 14:02:52 EST Subject: Copyright Infringement To: Rich
Dear Mr. Rich:
You have stored on your web site, and published without permission, the enclosed copyright protected documents, at
http://www.annexia.org/spam/messages/Junk0/037.h tm l
The owner of these documents have requested that you remove them immediately, as it's publication is Copyright Infringement Please respond within 10 days to inform us you have removed the documents.
The more I think about it, the more all paths lead to fair use. I think the 1st A. values, even if the amendment is not cited, would appeal to most courts. And the examples of fair use such as news reporting, parody, and criticism do sound a suspiciously like the 1st A. It's a wastebasket for avoiding a lot of these case-by-case public policy considerations.
Throw in the debatable value of the spam itself, and I don't think the spammer has a chance. The only sticky point is showing the neccessity of quoting the spam in full, and the standard defamation charges that may be brought. I bet there's a nice prepackaged discussion of this out there somewhere, I just haven't brought it up.
What a waste of time this discussion. And spammers claim spam don't waste others' time, money, sanity?
I agree with you this is no obvious answer -- at least none obvious to me!
As I explain elsewhere, if the message is an intimate part of a criminal violation (and I don't mean using a dictionary to beat someone to death) then I would not be surprised to see a public policy exception of copyright, or most probably fair use It's cutting things fine, and I'm curious what a court would say. But it's hard to discuss spam without presenting the offending message, and I think it's only fair to present it in full. Copyright here is being used not to protect profitability but to suppress public discussion.
I disagree on the lattermost point, as to reducing the value of the work. Usually that point is oriented more towards whether the defendant's "fair use" undermines demand for the original in the marketplace. If posting the spam in an unfortunate context tends to tarnish the reputation of the spammer, that suggests a defamation problem. If the librarian states that he thinks the spam is bad or illegal or whatever, he must be careful to identify his statement as mere opinions. (Better to say nothing.)
Besides, the librarian here is expressly posting the spam as an exercise of criticism, a free speech interest that fair use is meant to address. It's OK to use a work to make the author look bad. And here, it really is necessary for the librarian to reproduce the spam in whole. Excerpts would likely not convey enough information for others to identify which spam is being discussed. Indeed, to publish an excerpt might render the criticism of the entire spam unfair but taking that portion out of context.
I agree that copyright remains intact, and the librarian can't declare it public domain. Indeed it would be better to remind the viewer that the copyright status is unknown. The possible exception I wonder about is where the claim of copyright violates public policy, as where the work is used as part of a crime. For example, it's hard to imagine a kidnapper suing the newspaper for publishing his ransom note, written in iambic pentameter.
These are just some thoughts; again, I suspect this problem has been explored before. I'm not attempting to practice law here.
Slashdot Mirror
I just checked google (mcdonald's coffee scalding) and saw lots more written about this case and others like it. Here is a sober analysis of the case. Very important is McDonald's detailed knowledge of the hazard -- versus consumer unawareness -- and its lack of intention to do anything about it after 700 unnecessary injuries.
Note also that these were really nasty burns, sometimes with no culpability of the victim.
Beware the words "tort reform" accompanied by deliberately distorted stories, as has happened here. The reform proponents have to be able to come up with at least a few good anecdotes without corrupting stories that actually contradict their position. And even if they do come up with worthwhile anecdotes, remember that anecdotes are unreliable (!) and that statistics or a broad sampling is a better foundation for changing the law.
in fact it was the standard temperature which this article goes to great lengths to prove for me
... hmm). When I researched this I read an article in a restaurant trade magazine discussing recommended procedures in light of the decision.
Not any more! It was an unacceptably dangerous practice, the case tells us. To turn your argument around "just because everyone does it" -- serves scalding coffee -- hardly makes it a "bright idea." The industry, esp. McDonald's, changed its rules once they realized, golly, we can get in trouble for this; it can cost us money and good will (perhaps less damage if maybe we're involved in a smear campaign against that old lady plaintiff
The thing with the coffee is that (1) the dangerousness is (reasonably) unexpected by most consumers, who appreciate that hot coffee is painful but not disfiguring; and (2) it is inevitable that coffee will be spilled on people, with or without contributory negligence. Although the woman here lost 20% of her compensation because of her partial culpability, there are other examples. If I recall the evidence, most of the other scalding victims were small children who either pulled the cups down or were doused by a stumbling grown-up. Sure, the 4 y.o. or their parent was arguably "at fault," but McDonald's put the hand grenade on the table.
You can usually blame someone, and a line has to be drawn between your culpability and the other party's. It's a judgment call; there are many many examples of tort cases that sank because even though the manufacturer could have theoretically made the product safer, the plaintiff's conduct was so ridiculous it didn't matter. My favorite example is the guy who tried to trim his hedge by picking up his lawnmower -- he lost fingers and his lawsuit.
If nothing else persuades you, consider the dispassionate economic analysis. Which increases the wealth of society more: protecting undrinkably hot coffee or reducing scalding injuries? When asked, a lot of the public said, yeah, that coffee is too darn hot.
:) It's a good question. The "phenomenally stupid law" question is an old one.
... unless it helps them in the polls.
There's a reason the Supreme Court is called Supreme. It's the end of the road. There is definitely no way to force them to review a case, and imagine how cranky they'd be if you did. Even if there were oversight, that could be corrupt, and so on in a sort of Zeno's Paradox. Alternatively, the corrupt Court could grant cert. and uphold the law, same result as refusing to hear it but yielding precedent controlling all of the nation's inferior courts.
The Senate can impeach Justices for certain reasons, but being stupid is not one of them. (On that topic, if the Senate abuses the impeachment power, who reviews that? Another example of unreviewability. Don't worry, the President gets a few absolute powers, too.) Also, if the Congress was corrupt enough to pass the law, they're not going to attack the Court for supporting them
Hang on, there is one last super-supreme court -- the public. The bedrock of democracy. For better or worse. They get Congress to repeal the law by replacing all of them if necessary by voting. Unless they all hate blondes, too, or like most Americans don't show up to vote.
Humor aside, we have a Constitution, the supreme law, as a check on discriminatory laws by Congress. No matter how popular, certain kinds of laws can not be enforced, protecting minorities from overreaching by the majority assuming a sane Supreme Court. For example of wackiness, the majority can't sentence the minority to death; that would break a couple of amendments. If you think that's a goofy example, recall that Nazi Germany had a valid court system applying the Nuremberg laws -- with a Constitution the judges could have struck the laws down and gone to concentration camps. Most countries do not have this judicial review, where the courts get the last word.
But wait! There's even trump card on the Constitution: the amendment. That requires a supermajority 3/4 vote of the states, which is hard to get.
Dizzy yet? It's called checks and balances -- Schoolhouse Rock did a favorite number about it ("We the People."). Plus, you can see why lawyers use so many footnotes, they just can't stop worrying there's something they left out.
I haven't read enough of the facts to speak with confidence, but my impression was that the browser issue was very important. Basically IE was proof that not only were they a monopoly but they were misusing the monopoly to bootstrap/foist a new category-killer product.
They said, I did wonder how the IE strategy could ever work, unless they managed somehow to privatize HTML. I guess it was not clear until recently that small lightly-funded groups would produce excellent browsers. (I use Chimera for Mac OS X, Opera as second choice, IE if nothing else works.)
I am still not clear on why the Bush Administration immediately abandoned a tying claim on which they had been successful, other than it is the Bush Administration. [partisan jab in velvet glove]
Her injuries were extraordinary -- 2nd and 3rd degree burns. The coffee burned her skin off. I like to think I'm reasonably educated, yet I had no idea that a cup of hot coffee could cause damage requiring skin grafts. I've certainly tucked a cup of coffee (or, from McD's, a hand grenade) between by legs, more so in older cars that did not have the godsend of cup holders. For people too lazy to read the article, The McD's coffee was roughly 50 degrees hotter (190F) than the coffee people brew at home. Water at 120 is hot enough to scald in 30 seconds, and the higher you go the faster it is.
There is no real need for the coffee to be that hot, except to convenience McD's which doesn't want coffee to cool too quickly sitting out, and doesn't want annoyed customers coming back. So they consciously made a business decision to scortch the occasional patron -- and got the ire of the jury for this. The food service industry responded to the decision by lowering coffee service temps.
She initially offered to settle for slightly more than her medical bills. This was not a gold-digger.
The punitive award WAS excessive. The jury was evidently pissed and exceeded its power, but in its defense consider that a punitive damage is supposed to hurt -- hence punistive or punish -- and how much does it take for a behemoth like McD's to even notice? The judge properly intervened to reduce it radically, by over 2/3 (my memory of the numbers differs from what the linked article says). The plaintiff then had a choice whether to retry the case or take the remittitur. The point is that the system worked.
I used to laugh at this case, too. Until I got a real accounting of the facts halfway through law school, not the bullshit blindered version reported by the media and trumpeted by the conservative critics who would like to gut tort law. The only thing good about them is that most did not know the truth either, and negligently parroted what they had heard somewhere, an urban legend. With the internet it is more difficult to get away with this sort of propagandizing.
Hmm, isn't THAT special? Thank you for your research.
Frank Rich, an NYT columnist, has railed repeatedly against the risk of corporate monsters, esp. Disney, buying media outlets. This could be an example of subtle influence -- I mean, which is the better journalistic headline? Report of the has-beens or the still-be's? At least MSNBC is upfront about its potential conflict of interest, if anyone stops to wonder what those letters stand for.
No offense, but I can't believe you guys finally elected that bozo (IMHO). Or maybe I have him confused with another bozo, er, Mass politician... Where have the greats gone (there are still a couple).
If you have a Dem AG -- are they screaming at each other yet? Is Romney even in office?
-- ex-Mass resident, depressed at state's drift rightward
The atty general (AG) is the attorney for the state, The district attys (DA's) prosecute criminal cases in the various counties or cities of the state.
Cost? Not much compared to what has already been spent -- what's another 1%? Plus state attys are salaried and cheap compared to private practice; those who pursue gov't work take a major pay ct of 50% or more, in exchange for saner hours and that warm fuzzy feeling. I assume they did not contract this out.
This is not piecemeal. If the state has a basis for appeal it should do so, and should not be bossed around by the federal gov't which may have worse or politically clouded judgment.
IBM was a 13-year federal investigation that was abandoned when IBM itself sank in market relevance, and is generally regarded as a disaster. But tech antitrust has proved a whole new animal.
How many hops til they hit the supreme court?
One more hop. DC trial ct --> DC Circuit Ct of Appeals --> SC
The Supreme Court has discretionary review (by granting a writ of certiorari) and decides fewer than a hundred cases a year from thousands submitted. As this case is mostly about facts and a judgment call on the engineering of the settlement, I suppose they'd be unlikely to take it.
For that matter, I doubt the Court of Appeals will want to reopen the wound. But there could be this great issue I don't know about. I doubt it, given that the other states jumped ship.
I'm not sure how things are handled when one litigant splits off to appeal. It depends on the design of the litigation and the settlement, which the district court merely approved. Obviously MA do anything to bind the other states; if the circuit court were to vacate and remand, I assume everyone would get together for a reunion in DC.
Ah, to do civil procedure justice I should throw in the civil principles called "res judicata" (thing decided) and "collateral estoppel" (collateral bar) which do prevent reopening matters settled in an earlier lawsuits. These serve interests of fairness, efficiency, and finality, and naturally have their own stack of special rules.
These principles can be analogized to double jeopardy, but this is not a new lawsuit but an appeal from the judge's recent ruling. The earlier appeal was from Judge Jackson's order; the circuit partially vacated and sent the case back down for a new judge to evaluate the merits; then the parties settled and the court accepted the federal version with some tweaks, to Massachusetts's consternation.
There, a complete answer. I know, no one cares, but I love this stuff.
Re money, if it seems unreasonable to spend MORE money on the litigation, consider how much has already been spent, and that an appeal will cost pennies in comparison. In for a pound, in for an extra penny. (Well, OK, thousands, but again that's nothing; and the state's lawyers are probably salaried.) Massachusetts has already worked up all its arguments for what it wants; and the trial judge rejected them. I do not know whether MA has good arguments, and hope it is not being a sore loser. The DC appeals court is not going to be disposed to disturb the trial judge's ruling unless she got the law wrong, and it's a fairly conservative court anyway.
As a last note re money, recall the many millions of dollars at stake in the dispute between the parties. From the structure of the settlement, one hopes there will be no need for a new lawsuit on the monopoly Q. However, I seriously doubt this is Microsoft's last time in court.
THIS IS A CIVIL CASE. Double jeopardy applies to criminal cases.
... but it's irrelevant. (There are also more exceptions to double jeopardy that you might expect, for example the Rodney King beaters could rightfully be retried for civil rights violations following their acquittal.)
Also, an appeal is of course part of the same action; jeopardy remains "attached." I could explain about acquittals and such
Now that I have your attention...
:).
... besides a nude beach. I remember a football coach at my high school getting canned for mooning a female math teacher, but that was private school -- no First Amendment.
Free speech cheerleaders that Americans are, I'm pretty sure this bare argument would get skewered in court, at least on public indecency grounds. Certainly you have the right to give a cop the finger, though I really really recommend you don't.
There was a classic SC case ( Cohen ) during the Vietnam War a man was observed in a couthouse corridor wearing a jacket emblazoned "Fuck the draft" on the back. He went into a courtroom, first taking the jacket off, and was arrested.
His conviction was overturned because the Court felt he had not crossed the line between his right of expression and the court's need for decorum (you couldn't break into song during a trial, for example, unless maybe you were a defendant pleading insanity
So there is a time, manner, place for different kinds of expression, even uncivil ones. I'm just not picturing the place for expressive mooning
Window, huh?
I don't understand why these smaller companies don't just stand up to Microsoft and take them to court. I mean, I think the Department of Justice and various states demonstrated pretty clearly that all you need to go up against Microsoft is millions of dollars and a small army of lawyers. If you don't believe me, or squeak something about DOJ not really being successful, consider "little guy" Sun Microsystems, who sued over Java.
More seriously, this is getting ridiculous. I can understand Microsoft wanted to protect its branding -- names like Lindows are meant to draw people away from MS Windows -- but they're just bullies.
You know, a real solution would be for someone to come up with a new metaphor, or paradigm.
But I'll never cave to this intimidation! See, I've bared a Window® into my soul. This is our Window® of opportunity to take a stand against this Window® dressing. It's our Window®
Damn, it's getting stuffy in here, excuse me while I go open the f*cking Window®.
"monopoly"
An hour ago I was driving by the Pentagon on one of the smaller highways and saw a sign saying, "Entering Pentagon Reservation / Unauthorized Photography Prohibited." For the unfamiliar (I'm trying not to be U.S.-centric!), the Pentagon is a five-sided military HQ hit last year by a hijacked airplane -- hence their heightened concern for security. However, it seemed like a weird rule, that you could not take pictures even on the no-man's-land of the highway or adjacent grassy areas. But given the armed presence here and there around the perimeter these days, I won't be yanking their chains, thank you.
:)
America: Home of the (surveilled) free and land of the (cowed) brave
(Eat that, Carnivore.
nobody with the slightest grain of intelligence wants to be a politician
Hey, Abraham Lincoln was pretty cool! (grin)
Trust me, people though politicians were tools back then, too. It's an American vice to think that you can rag on a profession like politicking or teaching and expect it to magically improve. Then again, the criticism liberates us from responsibility for our political apathy.
#2 Q is a yes, that's part of the point of fair use, to facilitate criticism or parody or news reporting. You can only reproduce the amount necessary to the task. It is hard to imagine permitting copyright greater scope, in a country committed to free speech. Of course, that doesn't prevent "them" from trying!
In Campbell v. Acuff-Rose, the Supreme Court applied fair use to 2 Live Crew's parody of "Oh, Pretty Woman!" Among other things, the Court said that even a parody for profit does not necessarily violate copyright. (Another debate is: does the parody have to be funny?)
Maaaaybe ... but for these clowns isn't jail too nice? Bring back the pillory. (joking)
The Church is desperate or paranoid. But they haven't sent me any spam. :-)
;-)
But sure, in the sense of trying to squelch criticism, same idea.
Come to think of it, the Church proper is another example of "Why didn't I think of this?"
Oh, I know. This is just quid pro quo. (And by "in [the] public" I meant as opposed to "in your home.")
In some cases, taping you without your consent, private property or not, can be problematic as an invasion of privacy -- e.g., in the dressing room, in the bathroom. Your entry on the property doesn't mean all privacy bets are off.
Not being allowed to reproduce the work in an archive doesn't limit speech about the work in any meaningful way
:)
Oh, I disagree. It is critically important. For example, it would be impossible to do a parody without reproducing some, not necessarily all, of the work. But statutory fair use apparently makes it unnecessary to reach free speech Q's. As I mention below, I think it's nonetheless important to be mindful of the influence of free speech doctrine.
Value of the work -- what damages could the spammer seriously claim? This judgment affects the decision whether to take the threat seriously, whether to roll the dice telling them to go to hell, etc. Strategic stuff.
Doctrinal relationship of 1st A. and fair use -- I supposed that they were interrelated, and others have argued the same. Fair use is not in the Copyright Clause, it was read into it, originally by the judiciary. Congress later wrote it into the statute. I think fair use is clearly informed by 1st A. values, but of course the two are not interchangeable.
Here's more and more (note ditto.com cite). I haven't vetted these docs; use at your own risk (as if my approval would guarantee anything!). This area of law, with regard to the Internet, is not fully formed. I'm reminded of the deep-linking Q, too.
However, this is all far too abstract. A trial judge is going to want cites to statutes and precedent, not dreamy academic stuff. It's just useful to consider the underlying values to keep your arguments focused. Now that I've belatedly read the actual "C&D letter" I realize the writer is full of crap -- good enough for a dismissal IMHO.
My apologies, I did not first look at the "letter" you received from the "lawyer," attached below in complete defiance of any applicable copyright. Nyahhh.
... well, let's not dignify this. The legal Q raised is pretty interesting, but will wait for another day.
h tm l
This person is not a lawyer. The lack of a name -- for either lawyer or client -- and staggering number of typographical errors and lack of even verb agreement (owner/have -- plus it's)
Write back to these people if you must, and ask if they'd be interesting in buying your new line of nitric acid suppositories. Maybe let AOL know the account is being used to send anonymous harassing emails by someone impersonating a lawyer.
****
From: Legalservicesdp@aol.com
Date: Wed, 27 Nov 2002 14:02:52 EST
Subject: Copyright Infringement
To: Rich
Dear Mr. Rich:
You have stored on your web site, and published without permission, the
enclosed copyright protected documents, at
http://www.annexia.org/spam/messages/Junk0/037.
The owner of these documents have requested that you remove them
immediately, as it's publication is Copyright Infringement Please respond
within 10 days to inform us you have removed the documents.
Sincerely,
Legal Services
The more I think about it, the more all paths lead to fair use. I think the 1st A. values, even if the amendment is not cited, would appeal to most courts. And the examples of fair use such as news reporting, parody, and criticism do sound a suspiciously like the 1st A. It's a wastebasket for avoiding a lot of these case-by-case public policy considerations.
:)
Throw in the debatable value of the spam itself, and I don't think the spammer has a chance. The only sticky point is showing the neccessity of quoting the spam in full, and the standard defamation charges that may be brought. I bet there's a nice prepackaged discussion of this out there somewhere, I just haven't brought it up.
What a waste of time this discussion. And spammers claim spam don't waste others' time, money, sanity?
Oh duh -- thank you for your compliment.
I agree with you this is no obvious answer -- at least none obvious to me!
As I explain elsewhere, if the message is an intimate part of a criminal violation (and I don't mean using a dictionary to beat someone to death) then I would not be surprised to see a public policy exception of copyright, or most probably fair use It's cutting things fine, and I'm curious what a court would say. But it's hard to discuss spam without presenting the offending message, and I think it's only fair to present it in full. Copyright here is being used not to protect profitability but to suppress public discussion.
I disagree on the lattermost point, as to reducing the value of the work. Usually that point is oriented more towards whether the defendant's "fair use" undermines demand for the original in the marketplace. If posting the spam in an unfortunate context tends to tarnish the reputation of the spammer, that suggests a defamation problem. If the librarian states that he thinks the spam is bad or illegal or whatever, he must be careful to identify his statement as mere opinions. (Better to say nothing.)
Besides, the librarian here is expressly posting the spam as an exercise of criticism, a free speech interest that fair use is meant to address. It's OK to use a work to make the author look bad. And here, it really is necessary for the librarian to reproduce the spam in whole. Excerpts would likely not convey enough information for others to identify which spam is being discussed. Indeed, to publish an excerpt might render the criticism of the entire spam unfair but taking that portion out of context.
I agree that copyright remains intact, and the librarian can't declare it public domain. Indeed it would be better to remind the viewer that the copyright status is unknown. The possible exception I wonder about is where the claim of copyright violates public policy, as where the work is used as part of a crime. For example, it's hard to imagine a kidnapper suing the newspaper for publishing his ransom note, written in iambic pentameter.
These are just some thoughts; again, I suspect this problem has been explored before. I'm not attempting to practice law here.