"That maybe what is codified in UTAH's criminal code for 'Criminal Libel' but that is NOT what defines the common law tort of libel. I defined the common the tort of defamation and libel...I said nothing about it being what was defined in Utah's criminal code as 'Criminal Libel'"
The title of the Katz story is "Criminal Libel, Free Speech and the Net." The events take place in Milford, Utah. I would think that Utah's code for criminal liable is on point
"That being said Utah's code shows you an example of how some law makers used a tort concept to define something they wanted to make a criminal offense while totally changing the definition in the process"
Are you implying their is no common law history for criminal libel? Justice Douglas seems to feel otherwise, at least in regard to one (not the forum) states' tradition. See Findlaw, Ashton v. Kentuck, 384 U.S. 195 (1966) <http://caselaw.findlaw.com/scripts/getcase.pl?nav by=search&linkurl=<%LINKURL%>&graphurl=< %GRAPHURL%>&court=US&case=/us/384/195.html>.
"Still doesn't change the fact that no judge in his right mind would allow this case to go forward."
Is this a fact or your opinion? Perhaps I need clarification on "right mind"; is that any judge that doesn't think like you.
I would agree that its highly unlikely that anyone would sustain a criminal cause against the teen. As mentioned in the discussion with Mandrake, all "breach of the peace" statutes stand little chance in front of the SC. This does not mean that its entirely impossible.
I tried to dig up relevant statistics for criminal libel prosecution, but I'm nearing the end of my lunch hour. Here is what I have that needs to be confirmed.
-Utah has only had two successful prosecutions both in 1895. There was a cause brought in 1987 under the criminal defamation act:
"76-9-404. Criminal defamation. (1) A person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule. (2) Criminal defamation is a class B misdemeanor. "
I am unsure of its disposition. Information courtesy of converation with Libel Defense Resource Center, and reportedly available in their publication, LDRC 50-State Survey: Media Libel Law, p.410 (unverified)
I agree. I offer as much in the last line of my previous post. Perhaps even more on point than RAV is ASHTON v. KENTUCKY, 384 U.S. 195 (1966), and findlaw's excellent blurb on the case: .
<citation below> 1. Where an accused is convicted under a broad construction of a law which would make it unconstitutional, the conviction cannot be sustained on appeal by a limiting construction which eliminates the unconstitutional features of the law. Shuttlesworth v. Birmingham, 382 U.S. 87 . P. 198.
2. Because the offense was defined at trial as the publication of a writing calculated to disturb the peace, petitioner was judged by an unconstitutionally vague standard which required calculations as to the reaction of the audience to which the publication was addressed. Cantwell v. Connecticut, 310 U.S. 296 ; Terminiello v. Chicago, 337 U.S. 1 . Pp. 198-201.
3. Although vague laws in any setting are impermissible, laws which touch on First Amendment rights must be carefully and narrowly drawn. Pp. 200-201.
FindLaw, Ashton v. Kentucky (last visited June 6, 2000) <http://caselaw.findlaw.com/scripts/getcase.pl?nav by=search&linkurl=<%LINKURL%>&graphurl=< %GRAPHURL%>&court=US&case=/us/384/195.html>
In RAV, the protected speech, a burning cross, is not inherently false, and the prosecution was under a bias motivated crime ordinance. I agree that it would be on point b/c of its overbroad infringement of a constitutionally protected action; however, Ashton does deal directly with criminal libel.
As per my response to milamber, my post was not to justify the Utah action. I find myself agreeing with JK that the law is quick to react in an overbroad fashion on any issue dealing with teens and/or the internet. Moreover, its a slam dunk to defend the teen on any criminal libel action. It would be far more difficult to defend the person on a civil action, and harder still to maintain a cause against the state for fifth (takings) or fourteenth (equal protection) amendment violations. I would personally like to see the latter move forth. I do not think its an immediate dismissal. In fact, there are many posts that bring forward very good points that could be used in such an argument. You may want to view my latest reply to milamber on some interesting facts associated with criminal law libel history and prosecutions for the same.
Milamber, you may want to check out the reply to the AC post as it was probably yours. In Utah, its a crime against the state b/c Utah Code 76-9-407 says its a class B misdemenor.
Not in Utah. See earlier post on Utah classifying "knowing and intentional" provision of Utah Code 76-9-407. It may be a reach but it is a class b misdemeanor.
(1) "Libel" means a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule. Utah Code Section 45-2-2 <http://www.le.state.ut.us/~code/TITLE45/htm/45_02 004.htm>
AND
(1) The definitions in Section 45-3-2 apply to this section. (2) Any person is guilty of a class B misdemeanor who knowingly or intentionally causes the publication of an advertisement in which the personal identity of an individual is used in a manner which expresses or implies that the individual approves, endorses, has endorsed, or will endorse the specific subject matter of the advertisement without the consent for such use by the individual. Utah Code Section 76-9-501 <http://www.le.state.ut.us/~code/TITLE76/htm/76_0B 025.htm>.
It is codifed as a class B misdemeanor. Whether or not this is constitutional is an entirely different argument
I absolutely agree, but the FTC did go after Double Click. I believe it has occurred to governments, but it takes them some time to react. Wiretapping was done by the government and everyone else, before the SC decided it was an invasion of privacy, the penumbra right. Cellular phone receivers were once widely used. The EU was quick to react with their guidelines, the US government has left a great deal to the private sector and limited legislation to financial companies and the reporting of information for credit. The latter provision being abused even before recent technological advancements.
>>>If a US company does not become a member of this 'Safe Harbor' then it is vulnerable to litigation in Europe by almost anyone
I'm not sure that I totally agree. You could use a third-party to process the data. The third-party could maintain the "safe-harbor" status as its certain to evolve and create about the same type (although maybe not magnitude) of cost as maintaining banking regulations. The third-party could disclose the information it would reveal to the US company, and mask all other data. The US company could be insulated from direct action under certain circumstances. If they didn't have privity of contract with the person whose data was being released, and they were not negligent in choosing the company/processor any claim against them would be tenuous. They wouldn't be liable under respondeant superior, and they have not breached any contract with the consumer. If their actions were deplorable, they might get "third-party" contract status, but this would be an exception rather than a "deep pockets" rule. I am interested if you have alternative thoughts. I am trying to explore this further for professtional and academic reasons.
Actually, I don't think this is off topic. I have been reading a lot of arguments that places privacy in this commodity barrier; however, I think that honesty and oversight are the primary concerns in the EU "Safe Harbor".
If Company A offers me a $##load of money to track my spending habits, explains to me that they will use this information to develop an XYZ profile, will not use this data for any other purpose, and will destroy the data at X period of time, then it becomes my choice as to whether I want to enter into a contract. This is not very different than what Nielsen does to compile ratings, and is how most market research companies operate.
Consumers major fears are that Company A will breach their agreement, or worse yet, assume that they have this right implicitly without disclosure. Consumers lack an oversight mechanism, and it would be very costly and timely to pursue a claim. IMHO, the mechanism that protects the consumers will be one of the major policy questions of the next few years. The EU clearly codifies that the later right does not exist, and demands disclosure. The "safe harbor" debate mainly was EU protecting their consumers against businesses gaining this right through common law. (Per other post, the US has codified the rights and responsibilities for financial institutions and using information for credit reporting; however, all other businesses could claim that it was the other parties duty to create limitations/rights in the contracting language). Privacy will be/is a commodity, much the same as speech is a commodity. You can freely negotiate "gag" provisions. I doubt the US government will ever restrict the freedom to disallow a user from being able to contract away this priveledge. Selling your Pokemon purchase may never be as dangerous as selling a kidney. IMHO, it would be more advantageous to have more Gramm-Leach-Bliley/FCRA style legislation that require disclosure, or prohibit businesses from seeking this right as a mandatory contract provision.
Loyalty Marketing does have some drawbacks for protecting privacy, but industry/government has come up with a few controls. First, many companies will use "trusted" processors to filter information to the smallest amount needed to running the program according to terms. Many will specifically contract with the consumer to limit the use of the information to implementing the program, and promise not to use the information for any other purpose. If you do not trust the programs to abide by their bargain, their are safe guards that you can seek. First, are third party seals that guarentee privacy policies. You can investigate into the seal programs as well: - Some only collect complaints - Some only seek a promise of compliance - Some perform periodic audits and report either: (1) Transgressions from promise AND/OR (2) Potential security violations
Their are some regulatory standards as well. Programs that are tied to a financial instrument or involve banking institutions are going to be affected by Gramm-Leach-Bliley, and some provisions of the Fair Credit Reporting Act (particularly regulation E). The FTC has recently tried to position itself to do oversight, but that has met with "big brother" style flames. As for the mini-disclaimer, I do have two clients that participate in this space. I do not think nor intend to market their services. I have spent some time collecting information for online privacy, particularly consumer rights. This has been both for business and academic purposes.
I appreciate your response. I cannot argue your critique, they are well founded points. I would like to clarify my statement on "aesthetic relation". I am guilty of beginning to overuse the term "tell a story". Where I work its a postitive term of art that can cover narration, explaining, planning, and backpeddling. I didn't mean to employ that I was focusing only on the lyrics or on any linear progression of theme. (Although both techniques can be used to hit someone.) I was more referring to the relational aspect that music (or all art) has against someone's experience base. And its the relationship the listener gives to the overall piece that bonds their affection to the music. I do not think I am unconciously implying any element of programmatic compostion. In fact, I think its this element that will always be difficult for computers even assuming some omniscient AI. Most would agree that music is expressive. If the aesthetic relation is built based on the expression of the artist, it must be close to a theme that can be perceived by the listener. The listner may transform the expression into a pattern that they are better able to relate too; however, the transmission and the receiption must be similar. Thus, even assuming computers achieve a comparable or greater level of sentience, its doubtful they will have similar enough experiences to ever express (transmit) a message that is as aesthetically appealing to humans as it would be to other sentient computers. If I have misunderstood your critique of programmatic and voice, please let me know.
The landmark case is Midler v. Ford Motor Co., 849 F.2d 460. Shepardize this case and you can get all subsequent precedent. A good law review article which studies the subject of whether the right to property right survives the actor is in SHARING THE SPOTLIGHT: EQUITABLE DISTRIBUTION OF THE RIGHT OF PUBLICITY , 13 Cardozo Arts & Ent LJ 917
You are correct. Midler won a suit against Ford on a tort action for voice impersonation. You also picked up one of the more subtle points of the case that many of the other posters that use this case (or Waits and Frito Lay). A person has property rights in their right to publicity. If their style is distinctive enough to be identified with the person, they can protect it under tort/property law. Copyright/patent etc. have nothing to do with it. Your probably right about a dead person's estate being SOL. I don't think anyone has challenged this.
I can't argue with your definition of understanding music. There is a distinction between having an aesthetic reaction and grasping the technique or desired objective of the musician. However, their is the common argument used against critics of any artist, that the critic, "just doesn't get it." This may be more of the definitional aspect that is being sought. IMHO, people react positively to music for one of three ways: (1) Psychoacoustics - This is generally the primary reason for appeal in non-music lover adult audiences and contributes to the success of the jingle, most pop music, most dance music, and muzak. The rhythm (primarily) and melody (secondarily) evoke a particular biochemical (emotional) and mechanical response when the brain resonates with these waveforms. Even the most ardent music lover seeks a psychoacoustical response from the music they enjoy. (2) Aesthetic relation - This primarily occurs through the musics progression. The score actually tells a story, and if the listener chooses to probe deeper upon the story, they relate to its message based upon their own experience. In effect, they take the music as their own and develop a symbiotic relationship that moves them close to an uncharacterizable state of fulfillment. Its this character which most music lovers seek. An opiate that causes higher levels of counsciousness. Ironically, pop music has this affect on younger audiences. The themes and movements are generally basic and transcendent. A person with less experience base will generally get the message and relate to its context. (3) Technical admiration - The listener actually admires the prowess of the musician for the acoustic result they are able to affect. This may be for the precise interpretation of the composition or the range, speed, etc. that a musician is able to overcome with a given instrument. Music scholars generally are fond of technical admiration, but music lovers generally rank music based on whether it falls in this or other categories. The word mechanical generally given to music that is admired for this quality, but lacks the aesthetic relation.
Each of these are very important, and overemphasizing any one can lead to deterimental effects in the analysis. For instance, the psychoacoustical appeal is reasonable grounds for copyright protection. While the motives may not be pure this is were the majority of economic benefit occurs b/c it necessarily can reach across any categorization of people. If you listed to 200 bpm music, you feel a need to move. You may not desire to move, so you listen to something else, but you feel an autonomous need to move. Unfortunately this is exploited by the free market to sublimate action; however, it could be reasonable used for homeopathic affect. A modern computer and sibelus could reasonable model and effect this result. Technical superiority is also important b/c without the innovations, new styles rarely emerge. Its this area where patent law generally rears its head. If it takes significant effort to advance the industry by developing "twelve fingered piano playing" or other supposedly impossible feat, they may deserve some protection for their effort. The problem occurs with the lackluster efforts by the Patent office in allowing obvious innovations to be patented, and in the length of time that the patent is valid. Sibelus The aesthetic relation is the part that would be difficult to generate with a computer, even a complex AI (RE: see other posts about artists experience vs. Computers experience). Its this that we cling onto, but the other elements are necessary to tell the story. Consider that at least some machine, whether a computer, trumpet, or the human voice box, is used in by the musician. Technical advancement is needed to have these elements. Psychoacoustics set the tone, much as lighting does in performance art. Its the aesthetic relation that ultimately causes the holy wars about understaning in the "they don't get it context." For instance, I can listen to Coltrane's "A Love Supreme" for obnoxiously long periods of time. The same is true for Mingus' "The Black Saint and the Sinner lady." My wife will leave the room quite disgusted. There is something in the story that reaches me that doesn't quite reach her. She on the other hand can listen to Schoenberg compositions with a gleam of enlightement. I enjoy and admire the works, but don't quite hit her level of experience.
I don't think your spouting crap; however, I think there is a distinction between musicality and accoustics that is missed in the mathematically perfect song. There are quite expensive technologies that will sonically alter a recorded performance for architectural accoustic perfection. Meridian makes some remarkable room correction software/firmware but its rather $$$. As for the arrangement, this could be done by a computer, but algorithmically it might lack some of the subtle elements of inspired arrangers and producers. Try listening to anything produced by David Chesky. However, I'm not sure how you would measure perfection in terms of musicality. For the equation to be solvable even by numerical analysis techniques, it would have to have a desired goal or solution. While this may be possible, such as "how does one achieve the maximum amount of sadness" or "2 parts sadness, one part despair", because cognitive science and psychoaccoustics are advancing far enough to wear these could be mathematically modelled. Generally, music (and for that matter) all art is successful in that it conveys some expressiveness of the author. Thus, for computers to create perfect music, it must display something of the computer that composed it. Even if we grant the ability of artificial intelligence advancement to allow for this type of expressiveness, wouldn't the perfect music only be meaningful to other computers? How could a human ever relate to the trials and tribulations of an AI. It may evoke universal themes, but its story would be missing the je nais se qua of art.
It was Tom Waits who wonthe suit in WAITS v. FRITO-LAY, INC., 1992 U.S. App. LEXIS 17675, and it was based on the landmark case Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), cert. denied, 112 S.Ct. 1513, 1514 (1992) of voice misappropriation and person's property right of publicity. (Similar circumstances with Bette Midler).
Unfortunately the original post was mostly right. You cannot develop a tort claim if its covered in copyright (which covers most music); you would have to bring a suit under copyright law. Also, style is fair use, the decision on the relevant cause was force fit due to voice misappropriation b/c voice is not subject to copyright. In fact, during the appeal, Frito Lay argued improper jury instructions b/c they alleged the judge blurred the distinction between style and voice. If someone imitated Jimi Hendrix style, you may be able to argue that its an infringement of his personal right to identity and his style is distinctive enough to be synomous with his identity. However, it would be quite interesting b/c since he's dead, the estate would have to prove harm. Nothing in this post should be taken as legal advice.
There is nothing wrong with competing by producing a better product. It is against the law AND contrary to a free market to establish a monopoly and engage in anti-competitive conduct. If Intel's goal is to drive AMD out of business, it is both a civil and criminal violation of the law.
It could/would be a big issue for the DOJ for two reasons. First, their is a big difference in a market leader making a statement and a market underdog making a statement. For Sherman antitrust violation: a company must be a monopoly and engage in anti-competitive behavior. Adobe does not have a monopoly in the relevant market, but Intel likely does. While their is no bright line distinction, companies have been found to be a monopoly with 60% market share. Calling the chip an "Athlon Killer" may not be per se anticompetitive; however, it would make convincing evidence that Intel's intent was to ddestroy competition. Amercican Aluminunen was found to violate Sherman anti-trust law merely for increasing their production facilities. Also, if Intel is under a specific consent decree to not use such language, violation of that decree could have legal reprecussions. The Register refers to an agreement that Intel has with the DOJ; however, I do not know the specifics.
I'm not knee jerking. This particular EO has not done anything bad; it only has the potential to do bad. However, the poster is correct on a couple of notes.
The constitution does not enumerate the power of executive order. Its not one of the Presidents duties per se. The executive order is a fairly recent construct. Admittantly, all presidents used this authority in executing their duties; however, the scary part is the current power of that executive order can extend a president's authority into that reserved for the legislature.
Law is not limited to only legislative acts. Administrative law is a form of law that must also be closely watched. If the result of this EO is a subsequent "war on the Internet [blank]" than we will feel in an impact on what we are able to do, how much effort it takes to do things, and subsequently the cost for doing said things. Hypothetically, if they were to crack down on Internet kiddie porn not only would their be the feared reaction of less privacy and more red tape for using the Inet, a source of funding would be needed to pay for the investigations. That would likely mean a slew of Internet taxes. 20cents per digital stamp verified using government encryption.
"If I post a website on how to rob a convienence store am I breaking a law? What if I do it "as a joke"? "
Words in themselves are never crimes; however, if your words are intended to assist someone or culminate in an action, you can be an accessory. If you plan the action with another it can be conspiracy. If you try to motivate someone to take an action, it can be solicitation.
Solicitation, conspiracy, and accessory are the weirdest bunch in criminal law. On one hand, its almost too easy to get an indictment; thus, it can lead to indiscriminate prosecution. Conversely, its difficult to prove. Per your example, you can claim its just a joke, and the burden of proof on your state of mind is with the prosecution. This means long cases, and (IMHO) convictions come done to who has the most money to spend to put on the most persuasive battery of state of mind and general purpose witnesses. Even if you get off on the criminal charge, an aggrieved party can still bring a civil suit claiming that your joke was negligent and prone to cause the intended action. Negligence is much easier to prove than willfulness. The bottom line is while you theoretically have complete freedom of speech, our current legal system does not make it prudent to make jokes about criminal activity. To me that is sad.
I am not aware of any age requirement for buying a car. Anyone can contract with a minor, they do so at their own peril since contracts with minors are not enforcable. The only property restrictions that I am aware of involving age are for alcohol, tobacco, and firearms.
the webowner did not back down. If it goes to court, the trial judge rules against Universal, and the appellate judges agree with the ruling, we can prevent a lot of cease and desist letters. Maybe we can even remove the term "deep linking" from our bloated vocabulary.
I think this is better news than M$ settling their dispute.
I do not think the US (not sure about others) has any full faith and credit agreements with the government of Holland. Their courts may be able to rightfully claim jurisdiction under their law, but their judgement would affect me in no way. I certainly would not consent to it.
I think framing content is rude, but in some instances I do not object to it. For instance, consider a web site (profit or non-profit) which provided an authorative collection of materials on widgets. Lets say they went through the trouble of procuring and producing 100s of documents on widgets and cataloguing 1000 more that existed on the Internet. Lets also say that they developed useful navigation frames that indexed the widget documents in a highly ergonomic fashion. I hit there site to do widget research in a number of categories. The first document I need is at State Univerisity. I click the link, and get the document inside of widget.com's frame. The document has a couple of references that I check out. When I'm done I use the frame to hop to the next category. While I could have gotten back to the original page with my back button, retyped the URL, etc. It was useful to hit the link in the frame, it saved me some navigation trouble. Furthermore, since it was there indexing service that brought me to State University's document, I have no objection to them glorifying themselves. If they started serving a lot of advertisements or made overt claims that they owned the document its a different story.
Slashdot Mirror
"That maybe what is codified in UTAH's criminal code for 'Criminal Libel' but that is NOT what defines the common law tort of libel. I defined the common the tort of defamation and libel...I said nothing about it being what was defined in Utah's criminal code as 'Criminal Libel'"
v by=search&linkurl=<%LINKURL%>&graphurl=< %GRAPHURL%>&court=US&case=/us/384/195.html>.
The title of the Katz story is "Criminal Libel, Free Speech and the Net." The events take place in Milford, Utah. I would think that Utah's code for criminal liable is on point
"That being said Utah's code shows you an example of how some law makers used a tort concept to define something they wanted to make a criminal offense while totally changing the definition in the process"
Are you implying their is no common law history for criminal libel? Justice Douglas seems to feel otherwise, at least in regard to one (not the forum) states' tradition. See Findlaw, Ashton v. Kentuck, 384 U.S. 195 (1966) <http://caselaw.findlaw.com/scripts/getcase.pl?na
"Still doesn't change the fact that no judge in his right mind would allow this case to go forward."
Is this a fact or your opinion? Perhaps I need clarification on "right mind"; is that any judge that doesn't think like you.
I would agree that its highly unlikely that anyone would sustain a criminal cause against the teen. As mentioned in the discussion with Mandrake, all "breach of the peace" statutes stand little chance in front of the SC. This does not mean that its entirely impossible.
I tried to dig up relevant statistics for criminal libel prosecution, but I'm nearing the end of my lunch hour. Here is what I have that needs to be confirmed.
-Utah has only had two successful prosecutions both in 1895. There was a cause brought in 1987 under the criminal defamation act:
"76-9-404. Criminal defamation. (1) A person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule.
(2) Criminal defamation is a class B misdemeanor. "
I am unsure of its disposition. Information courtesy of converation with Libel Defense Resource Center, and reportedly available in their publication, LDRC 50-State Survey: Media Libel Law, p.410 (unverified)
I agree. I offer as much in the last line of my previous post. Perhaps even more on point than RAV is ASHTON v. KENTUCKY, 384 U.S. 195 (1966), and findlaw's excellent blurb on the case: .
v by=search&linkurl=<%LINKURL%>&graphurl=< %GRAPHURL%>&court=US&case=/us/384/195.html>
<citation below>
1. Where an accused is convicted under a broad construction of a law which would make it unconstitutional, the conviction cannot be sustained on appeal by a limiting construction which eliminates the unconstitutional features of the law. Shuttlesworth v. Birmingham, 382 U.S. 87 . P. 198.
2. Because the offense was defined at trial as the publication of a writing calculated to disturb the peace, petitioner was judged by an unconstitutionally vague standard which required calculations as to the reaction of the audience to which the publication was addressed. Cantwell v. Connecticut, 310 U.S. 296 ; Terminiello v. Chicago, 337 U.S. 1 . Pp. 198-201.
3. Although vague laws in any setting are impermissible, laws which touch on First Amendment rights must be carefully and narrowly drawn. Pp. 200-201.
FindLaw, Ashton v. Kentucky (last visited June 6, 2000) <http://caselaw.findlaw.com/scripts/getcase.pl?na
In RAV, the protected speech, a burning cross, is not inherently false, and the prosecution was under a bias motivated crime ordinance. I agree that it would be on point b/c of its overbroad infringement of a constitutionally protected action; however, Ashton does deal directly with criminal libel.
As per my response to milamber, my post was not to justify the Utah action. I find myself agreeing with JK that the law is quick to react in an overbroad fashion on any issue dealing with teens and/or the internet. Moreover, its a slam dunk to defend the teen on any criminal libel action. It would be far more difficult to defend the person on a civil action, and harder still to maintain a cause against the state for fifth (takings) or fourteenth (equal protection) amendment violations.
I would personally like to see the latter move forth. I do not think its an immediate dismissal. In fact, there are many posts that bring forward very good points that could be used in such an argument.
You may want to view my latest reply to milamber on some interesting facts associated with criminal law libel history and prosecutions for the same.
Utah says its a class B misdemeanor. Utah Code 76-9-407.
Milamber, you may want to check out the reply to the AC post as it was probably yours. In Utah, its a crime against the state b/c Utah Code 76-9-407 says its a class B misdemenor.
Not in Utah. See earlier post on Utah classifying "knowing and intentional" provision of Utah Code 76-9-407. It may be a reach but it is a class b misdemeanor.
Might want to look at your legal research class.
2 004.htm>
B 025.htm>.
(1) "Libel" means a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule. Utah Code Section 45-2-2 <http://www.le.state.ut.us/~code/TITLE45/htm/45_0
AND
(1) The definitions in Section 45-3-2 apply to this section.
(2) Any person is guilty of a class B misdemeanor who knowingly or intentionally causes the publication of an advertisement in which the personal identity of an individual is used in a manner which expresses or implies that the individual approves, endorses, has endorsed, or will endorse the specific subject matter of the advertisement without the consent for such use by the individual. Utah Code Section 76-9-501 <http://www.le.state.ut.us/~code/TITLE76/htm/76_0
It is codifed as a class B misdemeanor. Whether or not this is constitutional is an entirely different argument
I absolutely agree, but the FTC did go after Double Click. I believe it has occurred to governments, but it takes them some time to react. Wiretapping was done by the government and everyone else, before the SC decided it was an invasion of privacy, the penumbra right. Cellular phone receivers were once widely used. The EU was quick to react with their guidelines, the US government has left a great deal to the private sector and limited legislation to financial companies and the reporting of information for credit. The latter provision being abused even before recent technological advancements.
>>>If a US company does not become a member of this 'Safe Harbor' then it is vulnerable to litigation in Europe by almost anyone
I'm not sure that I totally agree. You could use a third-party to process the data. The third-party could maintain the "safe-harbor" status as its certain to evolve and create about the same type (although maybe not magnitude) of cost as maintaining banking regulations. The third-party could disclose the information it would reveal to the US company, and mask all other data.
The US company could be insulated from direct action under certain circumstances. If they didn't have privity of contract with the person whose data was being released, and they were not negligent in choosing the company/processor any claim against them would be tenuous. They wouldn't be liable under respondeant superior, and they have not breached any contract with the consumer. If their actions were deplorable, they might get "third-party" contract status, but this would be an exception rather than a "deep pockets" rule.
I am interested if you have alternative thoughts. I am trying to explore this further for professtional and academic reasons.
Actually, I don't think this is off topic. I have been reading a lot of arguments that places privacy in this commodity barrier; however, I think that honesty and oversight are the primary concerns in the EU "Safe Harbor".
If Company A offers me a $##load of money to track my spending habits, explains to me that they will use this information to develop an XYZ profile, will not use this data for any other purpose, and will destroy the data at X period of time, then it becomes my choice as to whether I want to enter into a contract. This is not very different than what Nielsen does to compile ratings, and is how most market research companies operate.
Consumers major fears are that Company A will breach their agreement, or worse yet, assume that they have this right implicitly without disclosure. Consumers lack an oversight mechanism, and it would be very costly and timely to pursue a claim. IMHO, the mechanism that protects the consumers will be one of the major policy questions of the next few years.
The EU clearly codifies that the later right does not exist, and demands disclosure. The "safe harbor" debate mainly was EU protecting their consumers against businesses gaining this right through common law. (Per other post, the US has codified the rights and responsibilities for financial institutions and using information for credit reporting; however, all other businesses could claim that it was the other parties duty to create limitations/rights in the contracting language).
Privacy will be/is a commodity, much the same as speech is a commodity. You can freely negotiate "gag" provisions. I doubt the US government will ever restrict the freedom to disallow a user from being able to contract away this priveledge. Selling your Pokemon purchase may never be as dangerous as selling a kidney. IMHO, it would be more advantageous to have more Gramm-Leach-Bliley/FCRA style legislation that require disclosure, or prohibit businesses from seeking this right as a mandatory contract provision.
Loyalty Marketing does have some drawbacks for protecting privacy, but industry/government has come up with a few controls. First, many companies will use "trusted" processors to filter information to the smallest amount needed to running the program according to terms. Many will specifically contract with the consumer to limit the use of the information to implementing the program, and promise not to use the information for any other purpose.
If you do not trust the programs to abide by their bargain, their are safe guards that you can seek. First, are third party seals that guarentee privacy policies. You can investigate into the seal programs as well:
- Some only collect complaints
- Some only seek a promise of compliance
- Some perform periodic audits and report either:
(1) Transgressions from promise
AND/OR
(2) Potential security violations
Their are some regulatory standards as well. Programs that are tied to a financial instrument or involve banking institutions are going to be affected by Gramm-Leach-Bliley, and some provisions of the Fair Credit Reporting Act (particularly regulation E).
The FTC has recently tried to position itself to do oversight, but that has met with "big brother" style flames.
As for the mini-disclaimer, I do have two clients that participate in this space. I do not think nor intend to market their services. I have spent some time collecting information for online privacy, particularly consumer rights. This has been both for business and academic purposes.
I appreciate your response. I cannot argue your critique, they are well founded points. I would like to clarify my statement on "aesthetic relation". I am guilty of beginning to overuse the term "tell a story". Where I work its a postitive term of art that can cover narration, explaining, planning, and backpeddling. I didn't mean to employ that I was focusing only on the lyrics or on any linear progression of theme. (Although both techniques can be used to hit someone.) I was more referring to the relational aspect that music (or all art) has against someone's experience base. And its the relationship the listener gives to the overall piece that bonds their affection to the music.
I do not think I am unconciously implying any element of programmatic compostion. In fact, I think its this element that will always be difficult for computers even assuming some omniscient AI. Most would agree that music is expressive. If the aesthetic relation is built based on the expression of the artist, it must be close to a theme that can be perceived by the listener. The listner may transform the expression into a pattern that they are better able to relate too; however, the transmission and the receiption must be similar.
Thus, even assuming computers achieve a comparable or greater level of sentience, its doubtful they will have similar enough experiences to ever express (transmit) a message that is as aesthetically appealing to humans as it would be to other sentient computers.
If I have misunderstood your critique of programmatic and voice, please let me know.
The landmark case is Midler v. Ford Motor Co., 849 F.2d 460. Shepardize this case and you can get all subsequent precedent. A good law review article which studies the subject of whether the right to property right survives the actor is in SHARING THE SPOTLIGHT: EQUITABLE DISTRIBUTION OF THE RIGHT OF PUBLICITY , 13 Cardozo Arts & Ent LJ 917
You are correct. Midler won a suit against Ford on a tort action for voice impersonation. You also picked up one of the more subtle points of the case that many of the other posters that use this case (or Waits and Frito Lay). A person has property rights in their right to publicity. If their style is distinctive enough to be identified with the person, they can protect it under tort/property law.
Copyright/patent etc. have nothing to do with it. Your probably right about a dead person's estate being SOL. I don't think anyone has challenged this.
I can't argue with your definition of understanding music. There is a distinction between having an aesthetic reaction and grasping the technique or desired objective of the musician. However, their is the common argument used against critics of any artist, that the critic, "just doesn't get it." This may be more of the definitional aspect that is being sought.
IMHO, people react positively to music for one of three ways:
(1) Psychoacoustics - This is generally the primary reason for appeal in non-music lover adult audiences and contributes to the success of the jingle, most pop music, most dance music, and muzak. The rhythm (primarily) and melody (secondarily) evoke a particular biochemical (emotional) and mechanical response when the brain resonates with these waveforms. Even the most ardent music lover seeks a psychoacoustical response from the music they enjoy.
(2) Aesthetic relation - This primarily occurs through the musics progression. The score actually tells a story, and if the listener chooses to probe deeper upon the story, they relate to its message based upon their own experience. In effect, they take the music as their own and develop a symbiotic relationship that moves them close to an uncharacterizable state of fulfillment.
Its this character which most music lovers seek. An opiate that causes higher levels of counsciousness. Ironically, pop music has this affect on younger audiences. The themes and movements are generally basic and transcendent. A person with less experience base will generally get the message and relate to its context.
(3) Technical admiration - The listener actually admires the prowess of the musician for the acoustic result they are able to affect. This may be for the precise interpretation of the composition or the range, speed, etc. that a musician is able to overcome with a given instrument.
Music scholars generally are fond of technical admiration, but music lovers generally rank music based on whether it falls in this or other categories. The word mechanical generally given to music that is admired for this quality, but lacks the aesthetic relation.
Each of these are very important, and overemphasizing any one can lead to deterimental effects in the analysis. For instance, the psychoacoustical appeal is reasonable grounds for copyright protection. While the motives may not be pure this is were the majority of economic benefit occurs b/c it necessarily can reach across any categorization of people. If you listed to 200 bpm music, you feel a need to move. You may not desire to move, so you listen to something else, but you feel an autonomous need to move. Unfortunately this is exploited by the free market to sublimate action; however, it could be reasonable used for homeopathic affect. A modern computer and sibelus could reasonable model and effect this result.
Technical superiority is also important b/c without the innovations, new styles rarely emerge. Its this area where patent law generally rears its head. If it takes significant effort to advance the industry by developing "twelve fingered piano playing" or other supposedly impossible feat, they may deserve some protection for their effort. The problem occurs with the lackluster efforts by the Patent office in allowing obvious innovations to be patented, and in the length of time that the patent is valid. Sibelus
The aesthetic relation is the part that would be difficult to generate with a computer, even a complex AI (RE: see other posts about artists experience vs. Computers experience). Its this that we cling onto, but the other elements are necessary to tell the story. Consider that at least some machine, whether a computer, trumpet, or the human voice box, is used in by the musician. Technical advancement is needed to have these elements. Psychoacoustics set the tone, much as lighting does in performance art.
Its the aesthetic relation that ultimately causes the holy wars about understaning in the "they don't get it context." For instance, I can listen to Coltrane's "A Love Supreme" for obnoxiously long periods of time. The same is true for Mingus' "The Black Saint and the Sinner lady." My wife will leave the room quite disgusted. There is something in the story that reaches me that doesn't quite reach her. She on the other hand can listen to Schoenberg compositions with a gleam of enlightement. I enjoy and admire the works, but don't quite hit her level of experience.
I don't think your spouting crap; however, I think there is a distinction between musicality and accoustics that is missed in the mathematically perfect song. There are quite expensive technologies that will sonically alter a recorded performance for architectural accoustic perfection. Meridian makes some remarkable room correction software/firmware but its rather $$$.
As for the arrangement, this could be done by a computer, but algorithmically it might lack some of the subtle elements of inspired arrangers and producers. Try listening to anything produced by David Chesky.
However, I'm not sure how you would measure perfection in terms of musicality. For the equation to be solvable even by numerical analysis techniques, it would have to have a desired goal or solution. While this may be possible, such as "how does one achieve the maximum amount of sadness" or "2 parts sadness, one part despair", because cognitive science and psychoaccoustics are advancing far enough to wear these could be mathematically modelled.
Generally, music (and for that matter) all art is successful in that it conveys some expressiveness of the author. Thus, for computers to create perfect music, it must display something of the computer that composed it. Even if we grant the ability of artificial intelligence advancement to allow for this type of expressiveness, wouldn't the perfect music only be meaningful to other computers? How could a human ever relate to the trials and tribulations of an AI. It may evoke universal themes, but its story would be missing the je nais se qua of art.
It was Tom Waits who wonthe suit in WAITS v. FRITO-LAY, INC., 1992 U.S. App. LEXIS 17675, and it was based on the landmark case Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), cert. denied, 112 S.Ct. 1513, 1514 (1992) of voice misappropriation and person's property right of publicity. (Similar circumstances with Bette Midler).
Unfortunately the original post was mostly right. You cannot develop a tort claim if its covered in copyright (which covers most music); you would have to bring a suit under copyright law. Also, style is fair use, the decision on the relevant cause was force fit due to voice misappropriation b/c voice is not subject to copyright. In fact, during the appeal, Frito Lay argued improper jury instructions b/c they alleged the judge blurred the distinction between style and voice.
If someone imitated Jimi Hendrix style, you may be able to argue that its an infringement of his personal right to identity and his style is distinctive enough to be synomous with his identity. However, it would be quite interesting b/c since he's dead, the estate would have to prove harm. Nothing in this post should be taken as legal advice.
There is nothing wrong with competing by producing a better product. It is against the law AND contrary to a free market to establish a monopoly and engage in anti-competitive conduct. If Intel's goal is to drive AMD out of business, it is both a civil and criminal violation of the law.
It could/would be a big issue for the DOJ for two reasons.
First, their is a big difference in a market leader making a statement and a market underdog making a statement. For Sherman antitrust violation: a company must be a monopoly and engage in anti-competitive behavior. Adobe does not have a monopoly in the relevant market, but Intel likely does. While their is no bright line distinction, companies have been found to be a monopoly with 60% market share. Calling the chip an "Athlon Killer" may not be per se anticompetitive; however, it would make convincing evidence that Intel's intent was to ddestroy competition. Amercican Aluminunen was found to violate Sherman anti-trust law merely for increasing their production facilities.
Also, if Intel is under a specific consent decree to not use such language, violation of that decree could have legal reprecussions. The Register refers to an agreement that Intel has with the DOJ; however, I do not know the specifics.
I'm not knee jerking. This particular EO has not done anything bad; it only has the potential to do bad. However, the poster is correct on a couple of notes.
The constitution does not enumerate the power of executive order. Its not one of the Presidents duties per se. The executive order is a fairly recent construct. Admittantly, all presidents used this authority in executing their duties; however, the scary part is the current power of that executive order can extend a president's authority into that reserved for the legislature.
Law is not limited to only legislative acts. Administrative law is a form of law that must also be closely watched. If the result of this EO is a subsequent "war on the Internet [blank]" than we will feel in an impact on what we are able to do, how much effort it takes to do things, and subsequently the cost for doing said things. Hypothetically, if they were to crack down on Internet kiddie porn not only would their be the feared reaction of less privacy and more red tape for using the Inet, a source of funding would be needed to pay for the investigations. That would likely mean a slew of Internet taxes. 20cents per digital stamp verified using government encryption.
"If I post a website on how to rob a convienence store am I breaking a law? What if I do it "as a joke"? "
Words in themselves are never crimes; however, if your words are intended to assist someone or culminate in an action, you can be an accessory. If you plan the action with another it can be conspiracy. If you try to motivate someone to take an action, it can be solicitation.
Solicitation, conspiracy, and accessory are the weirdest bunch in criminal law. On one hand, its almost too easy to get an indictment; thus, it can lead to indiscriminate prosecution. Conversely, its difficult to prove. Per your example, you can claim its just a joke, and the burden of proof on your state of mind is with the prosecution. This means long cases, and (IMHO) convictions come done to who has the most money to spend to put on the most persuasive battery of state of mind and general purpose witnesses.
Even if you get off on the criminal charge, an aggrieved party can still bring a civil suit claiming that your joke was negligent and prone to cause the intended action. Negligence is much easier to prove than willfulness.
The bottom line is while you theoretically have complete freedom of speech, our current legal system does not make it prudent to make jokes about criminal activity. To me that is sad.
Not a lawyer, but in law school.
I am not aware of any age requirement for buying a car. Anyone can contract with a minor, they do so at their own peril since contracts with minors are not enforcable. The only property restrictions that I am aware of involving age are for alcohol, tobacco, and firearms.
the webowner did not back down. If it goes to court, the trial judge rules against Universal, and the appellate judges agree with the ruling, we can prevent a lot of cease and desist letters. Maybe we can even remove the term "deep linking" from our bloated vocabulary.
I think this is better news than M$ settling their dispute.
As for the last link, what do you expect based on his heros. I'm just suprised he didn't start his comment with EULA.
I do not think the US (not sure about others) has any full faith and credit agreements with the government of Holland. Their courts may be able to rightfully claim jurisdiction under their law, but their judgement would affect me in no way. I certainly would not consent to it.
I think framing content is rude, but in some instances I do not object to it. For instance, consider a web site (profit or non-profit) which provided an authorative collection of materials on widgets. Lets say they went through the trouble of procuring and producing 100s of documents on widgets and cataloguing 1000 more that existed on the Internet. Lets also say that they developed useful navigation frames that indexed the widget documents in a highly ergonomic fashion.
I hit there site to do widget research in a number of categories. The first document I need is at State Univerisity. I click the link, and get the document inside of widget.com's frame. The document has a couple of references that I check out. When I'm done I use the frame to hop to the next category. While I could have gotten back to the original page with my back button, retyped the URL, etc. It was useful to hit the link in the frame, it saved me some navigation trouble. Furthermore, since it was there indexing service that brought me to State University's document, I have no objection to them glorifying themselves.
If they started serving a lot of advertisements or made overt claims that they owned the document its a different story.