It is worth mentioning that a statement has to be credible to be actionable as a defamation. Incredible statements ("Bill Clinton had sex with my dog!") are not actionable because no reasonable person would believe them.
This has actually been used as a defense in defamation cases: certain defendants have argued that their public reputation is so poor that no reasonable person would believe anything they say anyway. Reportedly, this has actually worked from time to time.
There's a rising market in what is being called "employement slander" or "employment libel" where a supervisor who is requested to write a letter of reference for an employee makes a material false statement damaging to the employee such that the employee is not hired for another job. This is actionable as defamation even though the letter is not "published".
My understanding (without checking the Restatement, which I'm too lazy to do righ tnow) is that all you need for a defamation action is proof that the alleged tortfeasor shared the defamatory statement with at least one third party, and then proof of damages resulting therefrom.
I cannot think of a case where defamation would be criminal.
The Supreme Court held (albeit in dicta) in New York Times v. Sullivan that criminal defamation laws are irreconcilably in conflict with the First Amendment and are per se unconstitutional. Thus, there is no circumstance where one could possibly face a criminal penalty for defamatory speech in the United States (unless that speech act also violated some other law, such as those against criminal fraud, incitement to riot, or breach of national security, for reasons not related to its defamatory content).
So far, defamation has only been alleged. Is an allegation of harm sufficient grounds to compell a service provider to turn over the identity of an anonymous user? What level of proof should be required?
Here begins the "discovery dance." The ISP is a third party to the action, so what ends up happening is the plaintiff (assuming federal practice) sends a subpoena to the ISP under Rule 45 commanding the ISP to produce for inspection certain documents in its possession (called a subpoena duces tecum). The ISP then can either submit to the subpoena and provide the documents, object to the subpoena under Rule 45(c)(2)(B) or move to quash the subpoena under Rule 45(c)(3). If the ISP objects, the plaintiff can seek an order compelling production under Rule 37. If the objection under Rule 45(c)(2)(B) or motion to quash under Rule 45(c)(3) is well-founded, the plaintiff can only have the requested documents if he can show that he has a substantial need for the materials sought and the materials cannot be had in any other way without substantial hardship. Rule 45 requires that every nonparty subpoena include language advising the recipient of the subpoena of their rights to object and to move to quash.
Note that if you object to production, you cannot be forced to produce anything within the bounds of the objection unless the requesting party moves for an order to compel, and unless the court then rules as a consequence of that motion that production should be required. The law generally does NOT require production without a clear showing of substantial need and undue hardship. I would imagine that the instant case being discussed is exactly such a situation.
This is not an attack on anonymity. It's a recognition of the long-established law that defamatory speech is not protected by the First Amendment. It doesn't matter whether the defamatory speech was anonymous or not.
There is a very long history of the courts defending the right to anonymous speech; laws which have sought to require people identify themselves in conjunction with otherwise protectable speech (other than commercial speech) have been consistently struck down.
Copyrights apply to creative works and (primarily) allow the creator to restrict the ability of others to make copies of the work, subject to certain limitations, primarily fair use.
Patents apply to inventions and allow the inventor to restrict the ability of others to make use of the invention for commercial purposes (including "free" commerce). The term "invention" is restricted to devices, processes, or techniques.
Trademarks apply to names, logos, or symbols and allow the owner to prohibit the use of the name, logo, or symbol by others in a manner which tends to create confusion or which diminishes the value of the name, logo, or symbol as an identifier for the product being sold by the owner (or licensee) of the trademark.
You cannot copyright a word, but you can copyright a calligraphic representation of the word. You cannot trademark a concept, but you can trademark a name used to refer to that concept, or at least your brand of it. Your trademark doesn't stop anyone from using the concept; all it does is prevent them from calling it (or anything else) by your trade name without your permission.
The FBI warning on the front of a videocassette is NOT equivalent to a shrinkwrap license. When you buy a videocassette you don't get any license at all. You can only use the videocassette as permitted by fair use. The FBI warning is reminding people that their fair use rights do not include commercial reduplication. The presence or absence of that warning has NO effect on your actual rights.
In contrast, a shrink wrap license offered as part of a commercial transaction is NOT effective unless the purchaser cannot possibly use the product without being put on notice of the license. This is why they're called "shrink wrap": they force you to open an envelope which is imprinted with a license warning so you can't help but know there's a license. This is because the license seeks to limit your rights and the only way they can do that is to be able to show that you accepted their licensure offer. Completely different situation legally.
The Internet may not be "print media" in the classical sense, but the courts have already ruled that "publication" includes both posting something in a newsgroup and putting something up on the web, at least in the context of the Copyright Act.
I would call a defamatory comment on Slashdot a libel; a defamatory comment on IRC I would consider a slander.
By the way, neither slander nor libel is a crime in the United States; both are torts.
The entire point of a long-arm statute is to set forth the circumstances under which a non-resident of Virginia is subject to the jurisdiction of a Virginia court. You may not be aware of it, understand it, or agree with it, but it has been the law in the United States for quite a long time now that a state may exercise jurisdiction over nonresidents who purposefully avail themselves of the benefits of that state's laws, either by physically entering the state, or by otherwise having "minimal contacts" within the state. The Constitution's requirement of due process places certain limits on this, which have been spelled out over the years by a series of Supreme Court decisions.
You appear to be unable to distinguish a crime and a tort, as well (a common problem amongst uneducated American citizens).
Finally, the United States in fact claims extraterritorial jurisdiction on certain criminal offenses: if you attempt genocide anywhere in the world, and in doing harm an American citizen, the United States reserves the right to hale you into its courts and prosecute you for the offense. The United States is not unique in this regard; many countries (including the UK and Germany) reserve the right to prosecute their own citizens for certain acts committed outside the country's borders (UK: sexual misconduct with a child; Germany: abortion).
If someone wrote to your favorite magazine, and libeled or slandered you in that magazine, you would need to sue them in the state they reside in, or in the state the magazine is published in.
No, the ruling has nothing to do with the issues of the case, only the jurisdiction. The consequences of the ruling reach far beyond this particular suit.
Not really, since this case does not make new law. Despite all the uneducated noise, there's really nothing interesting about this case.
In inter-state civil cases isn't there a procedure to argue/rule on which state the case is tried in? Doesn't the defendant get to appeal for the case being heard in his own state?
A lawsuit can be brought by any plaintiff who has standing to do so in any court which has subject matter jurisdiction over the dispute and personal jurisdiction over the defendant.
Since there is complete diversity of citizenship in this case (no plaintiff shares state citizenship with any defendant) the federal courts have subject matter jurisdiction.
Personal jurisdiction for the federal courts is defined to follow the rules for personal jurisdiction of the state courts of state in which the federal court sits (with various amusing exceptions). In some cases, there will be more than one court with personal jurisdiction. The question here is whether a state court in Virginia has personal jurisdiction over the Texas and New Mexico defendants. This question is decided by whatever court the plaintiff chooses to file his or her complaint in.
The final issue is venue, which is only vaguely related to personal jurisdiction. Venue only makes a difference when there is more than one court with personal jurisdiction.
The defendants in this case could request the federal court in Virginia to change the venue of the case to New Mexico or Texas (or even, say, Oregon or Guam, if they were so inclined). The judge is not required to grant this request, but is supposed to do so when doing so furthers justice.
Finally, note that the objection to personal jurisdiction can, at least in federal practice, be done by mail.
no one libeled AOL. someone committed libel USING their AOL account. I'm all for enforcing libel laws, but in this case there's some doubt as to which juristiction to try the case in.
There may be some doubt, but the existing law is quite clear: a Virginia court has personal jurisdiction over anyone who commits an intentional tort against a Virginia resident, if the tortfeasor is or should have been aware that the injured party was a resident of Virginia and that the injury would take place in Virginia. This is well-established law.
I have accounts overseas (or I did at some point). If I, as an American citizen, libel a German, while in France, with a Swiss account, on a server in Belgium, where are you going to try it?
You could clearly be sued in the United States. I don't know anything about German, French, or Swiss law, so I won't offer an opinion.
personally, I'm not a lawyer, but I always understood that legal advice was to be given dispassionately and objectively. (according the my grandfather, who is a practicing lawyer, at any rate)
If I was a lawyer, and you were my client, perhaps that would be true. Since neither is the case....
if you're not, you're unlikely as I am to have a perfect understanding of the issues that cause real contraversy (sp) in our legal system today and so should not be pointing fingers and calling names.
I am not a lawyer. However, I am probably more likely to have an accurate understanding of legal issues than you are. Check my home page to find out why.
Jurisdiction is defintely an issue. And currently there is little legal precedent set where jurisdiction should lie in cases like this. The VA courts are simply applying their laws to the case, as there is a dearth of authorities currently available to seek redress of matters like this in the cyber sphere.
Poppycock. There is ample authority available on the issue. The court, in this case, was merely applying clearly established case law in a straightforward manner. There's nothing about this opinion that is particularly interesting or exciting. Even the holding that using an instrumentality in another state by remote command to effect an intentional tort subjects one to jurisdiction in the state where the instrumentality is emplaced is not particularily unexpected; it makes perfect sense to me.
The problem is all the nuts on the net who think that there is something qualitatively different about the Internet. They haven't figured out that the Internet is just a really big and really fast phone network. The courts suffer no such problem; they recognize that the Internet is just a way to pass messages quickly and efficiently.
The Virginia court has effectively decided that the Texan was 'electronically' located within Virginia when the defamation took place.
This is clearly not the case. The court ruled that the Texas and New Mexico defendants acted in a manner which created "minimal contacts" with the state of Virginia. They remain residents of Texas and New Mexico (as is evidenced by the fact that the case was tried in federal district court under diversity jurisdiction).
If Canada passed a law that you cannot smoke bacon in Canada and a Floridian visited Canada, smoked baken, then he can be prosecuted.
Because by traveling to Canada you have purposefully availed yourself of Canadian jurisdiction. Not because you reside in Canada (you don't; you're a visitor).
You must obey the laws of the place you currently reside in.
You must obey the laws of the place in which you reside, the laws of your principal place of business (if a corporation), and the laws of any jurisdiction with which you have "minimal contacts" sufficient to justify specific jurisdiction. It's not simply based on residence.
Of course if this becomes a standard ruling, the Texan could not be prosecuted in Texas for defamation because at the time he was not 'electronically' located within Texas.
This would be akin to Canada passing a law that makes it illegal to smoke bacon in Florida. And as soon as someone fires up the smokehouse trying to prosecute him for it. This is a joke.
No, it's not. It's akin to Canada passing a law making it illegal to fire missiles across the border into Canada from Michigan and then prosecuting someone in Michigan who does so.
This is a state court in VA. The "long arm" statute is only enforceable within VA.
You clearly do not know what a long arm statute is. Long arm statutes, in conjunction with the Due Process clause of the Fourteenth Amendment, define when a state's courts may seek to enforce that state's laws outside of the state.
Even if they want you, all you have to do is refuse to appear. The judge will issue a bench warrant and as long as you don't have to go to VA you're fine.
Again, wrong. You'll get a default judgment, which can then be executed in the courts of YOUR state under the Full Faith and Credit Clause.
One state's bench warrant doesn't have to be honored by any other.
Again, wrong. States must honor other state's legal processes, again, because of the Full Faith and Credit Clause.
I don't understand why the judge went off on the messages being on AOL's server when the jurisdiction issue could be decided solely on the basis of the residency of the plaintiff. The plaintiff lives in Virginia. He was injured in Virginia by the commission of an intentional tort in interstate commerce, and the tortfeasor should reasonably have believed that his actions would cause injury in Virginia. Under existing law, jurisdiction in a court of the state of Virginia is proper. No need to even talk about the the messages having been stored on AOL's servers. I'm going to try to get the court's opinion, see if I can figure out what really was said. BTW, congratulations on surviving your first year.:)
This ruling is nothing new. It's just the straightforward application of an _existing_ legal rule relating to intentional torts committed in interstate commerce. Some years ago, a Florida publisher published defamatory statements about a California resident in a magazine distributed in interstate commerce. The Californian haled the Florida company into a California court on the defamation suit. This case goes back at least twenty years (1972, if I am not mistaken).
Nor is this the first time it's happened on the Internet. I personally know of a woman from Minnesota who was sued by someone in Alabama (in Alabama state court) over something defamatory she put on the web. She failed to appear in Alabama and lost a default judgment and is now fighting (and losing) to keep the plaintiff from executing the judgment against her in Minnesota.
This has nothing to do with "freedom of speech" or anything like that. It's not even news (except perhaps to the woefully uneducated American public that pays no attention to legal matters 98% of the time anyway). This is a well-established legal rule, the application of which in this situation is completely unsurprising.
Now, let's correct some misconceptions:
* In theory this means that anyone who libels AOL can be sued in Virginia -- even if the libellant is without the United States. There may be problems with service of process, of course.
* "Internet Culture" (assuming there was such a thing) is utterly irrelevant.
* The theorem that the law doesn't apply to the Internet is COMPLETE AND UTTER BULLSHIT.
* AOL Subscribers probably explicitly consent to jurisdiction in Virginia as part of their subscription agreement.
* Virginia is not overriding the federal courts. They're exercising long-arm jurisdiction consistent with the constitution over an intentional tort committed against a domiliciary of the state of Virginia, consistent with well-established law. Every state has a long-arm statute of some sort; most states have one identical in effect to Virginia's. The same thing would have happened if it was Netcom or Earthlink instead of AOL except we'd be talking about a California court.
The Internet is not a haven for lawlessness. It's high time you twits figured that out.
After there was tremendous interest shown in the new funky interface he had come up with, he presented the patch to the Gimp developers and was silently ignored.
Correction. What happened was several KDE bigshots demanded that the GIMP developers grant them an exception to GIMP's GPL licensure so kimp could be distributed. The GIMP developers refused, on the basis that they lacked legal capacity to do so. No patch was ever offered.
Shrink wraps are enforceable, despite people who claim otherwise. There are about 80 federal court opinions supporting the enforceability of shrink wrap licenses, and only one adverse to that proposition.
As far as whether crossing out the language on the renewal works: The offeror of a contract has the right to determine the means of acceptance of the contract; the offeree may not choose to accept in any way other than that offered by the offeror. When you cross out that provision, you are rejecting NSI's offer and making a counteroffer. However, if NSI cashes the check, they've accepted your counteroffer, which suggests that you have successfully exempted yourself from that provision. But don't count on it.
The legal jargon for offering a check endorsed as a "payment in full" is "accord and satisfaction"; if the payment is offered in full settlement of an unliquidated claim or a bona fide dispute, it will act to discharge the original contract. If you offer your check when there is no bona fide dispute or unliquidated claim (which would be the case if, for example, your mortgage is not in collection or foreclosure), the endorsement has no effect.
... is nothing new. Lawyers call it "intangible property" and have known about it for centuries. There's nothing new or interesting about property-like arrangements where the property interest exists by virtue of the obligations between people that it creates. ALL property interests exist only because of the obligations they create between people.
What's different between the right to play an Ultima Online character and the right to operate a McDonald's? Not much. In fact, almost nothing at all. Franchise rights have been considered intangible property for decades, if not centuries.
Slashdot Mirror
This has actually been used as a defense in defamation cases: certain defendants have argued that their public reputation is so poor that no reasonable person would believe anything they say anyway. Reportedly, this has actually worked from time to time.
My understanding (without checking the Restatement, which I'm too lazy to do righ tnow) is that all you need for a defamation action is proof that the alleged tortfeasor shared the defamatory statement with at least one third party, and then proof of damages resulting therefrom.
Note that if you object to production, you cannot be forced to produce anything within the bounds of the objection unless the requesting party moves for an order to compel, and unless the court then rules as a consequence of that motion that production should be required. The law generally does NOT require production without a clear showing of substantial need and undue hardship. I would imagine that the instant case being discussed is exactly such a situation.
There is a very long history of the courts defending the right to anonymous speech; laws which have sought to require people identify themselves in conjunction with otherwise protectable speech (other than commercial speech) have been consistently struck down.
Yet another case of Much Ado About Nothing.
Copyrights apply to creative works and (primarily) allow the creator to restrict the ability of others to make copies of the work, subject to certain limitations, primarily fair use.
Patents apply to inventions and allow the inventor to restrict the ability of others to make use of the invention for commercial purposes (including "free" commerce). The term "invention" is restricted to devices, processes, or techniques.
Trademarks apply to names, logos, or symbols and allow the owner to prohibit the use of the name, logo, or symbol by others in a manner which tends to create confusion or which diminishes the value of the name, logo, or symbol as an identifier for the product being sold by the owner (or licensee) of the trademark.
You cannot copyright a word, but you can copyright a calligraphic representation of the word. You cannot trademark a concept, but you can trademark a name used to refer to that concept, or at least your brand of it. Your trademark doesn't stop anyone from using the concept; all it does is prevent them from calling it (or anything else) by your trade name without your permission.
In contrast, a shrink wrap license offered as part of a commercial transaction is NOT effective unless the purchaser cannot possibly use the product without being put on notice of the license. This is why they're called "shrink wrap": they force you to open an envelope which is imprinted with a license warning so you can't help but know there's a license. This is because the license seeks to limit your rights and the only way they can do that is to be able to show that you accepted their licensure offer. Completely different situation legally.
The Supreme Court already has. The phrase "minimal contacts" comes from a Supreme Court opinion. Do you think I invented it from thin air?
I would call a defamatory comment on Slashdot a libel; a defamatory comment on IRC I would consider a slander.
By the way, neither slander nor libel is a crime in the United States; both are torts.
The entire point of a long-arm statute is to set forth the circumstances under which a non-resident of Virginia is subject to the jurisdiction of a Virginia court. You may not be aware of it, understand it, or agree with it, but it has been the law in the United States for quite a long time now that a state may exercise jurisdiction over nonresidents who purposefully avail themselves of the benefits of that state's laws, either by physically entering the state, or by otherwise having "minimal contacts" within the state. The Constitution's requirement of due process places certain limits on this, which have been spelled out over the years by a series of Supreme Court decisions.
You appear to be unable to distinguish a crime and a tort, as well (a common problem amongst uneducated American citizens).
Finally, the United States in fact claims extraterritorial jurisdiction on certain criminal offenses: if you attempt genocide anywhere in the world, and in doing harm an American citizen, the United States reserves the right to hale you into its courts and prosecute you for the offense. The United States is not unique in this regard; many countries (including the UK and Germany) reserve the right to prosecute their own citizens for certain acts committed outside the country's borders (UK: sexual misconduct with a child; Germany: abortion).
Not really, since this case does not make new law. Despite all the uneducated noise, there's really nothing interesting about this case.
A lawsuit can be brought by any plaintiff who has standing to do so in any court which has subject matter jurisdiction over the dispute and personal jurisdiction over the defendant.
Since there is complete diversity of citizenship in this case (no plaintiff shares state citizenship with any defendant) the federal courts have subject matter jurisdiction.
Personal jurisdiction for the federal courts is defined to follow the rules for personal jurisdiction of the state courts of state in which the federal court sits (with various amusing exceptions). In some cases, there will be more than one court with personal jurisdiction. The question here is whether a state court in Virginia has personal jurisdiction over the Texas and New Mexico defendants. This question is decided by whatever court the plaintiff chooses to file his or her complaint in.
The final issue is venue, which is only vaguely related to personal jurisdiction. Venue only makes a difference when there is more than one court with personal jurisdiction.
The defendants in this case could request the federal court in Virginia to change the venue of the case to New Mexico or Texas (or even, say, Oregon or Guam, if they were so inclined). The judge is not required to grant this request, but is supposed to do so when doing so furthers justice.
Finally, note that the objection to personal jurisdiction can, at least in federal practice, be done by mail.
This case has nothing to do with spam. The entire lawsuit is over one JFK conspiracy nut calling another JFK conspiracy nut a child molestor.
There may be some doubt, but the existing law is quite clear: a Virginia court has personal jurisdiction over anyone who commits an intentional tort against a Virginia resident, if the tortfeasor is or should have been aware that the injured party was a resident of Virginia and that the injury would take place in Virginia. This is well-established law.
You could clearly be sued in the United States. I don't know anything about German, French, or Swiss law, so I won't offer an opinion.
If I was a lawyer, and you were my client, perhaps that would be true. Since neither is the case....
I am not a lawyer. However, I am probably more likely to have an accurate understanding of legal issues than you are. Check my home page to find out why.
Poppycock. There is ample authority available on the issue. The court, in this case, was merely applying clearly established case law in a straightforward manner. There's nothing about this opinion that is particularly interesting or exciting. Even the holding that using an instrumentality in another state by remote command to effect an intentional tort subjects one to jurisdiction in the state where the instrumentality is emplaced is not particularily unexpected; it makes perfect sense to me.
The problem is all the nuts on the net who think that there is something qualitatively different about the Internet. They haven't figured out that the Internet is just a really big and really fast phone network. The courts suffer no such problem; they recognize that the Internet is just a way to pass messages quickly and efficiently.
This is clearly not the case. The court ruled that the Texas and New Mexico defendants acted in a manner which created "minimal contacts" with the state of Virginia. They remain residents of Texas and New Mexico (as is evidenced by the fact that the case was tried in federal district court under diversity jurisdiction).
Because by traveling to Canada you have purposefully availed yourself of Canadian jurisdiction. Not because you reside in Canada (you don't; you're a visitor).
You must obey the laws of the place in which you reside, the laws of your principal place of business (if a corporation), and the laws of any jurisdiction with which you have "minimal contacts" sufficient to justify specific jurisdiction. It's not simply based on residence.
Plain and outright wrong.
No, it's not. It's akin to Canada passing a law making it illegal to fire missiles across the border into Canada from Michigan and then prosecuting someone in Michigan who does so.
You clearly do not know what a long arm statute is. Long arm statutes, in conjunction with the Due Process clause of the Fourteenth Amendment, define when a state's courts may seek to enforce that state's laws outside of the state.
Again, wrong. You'll get a default judgment, which can then be executed in the courts of YOUR state under the Full Faith and Credit Clause.
Again, wrong. States must honor other state's legal processes, again, because of the Full Faith and Credit Clause.
I don't understand why the judge went off on the messages being on AOL's server when the jurisdiction issue could be decided solely on the basis of the residency of the plaintiff. The plaintiff lives in Virginia. He was injured in Virginia by the commission of an intentional tort in interstate commerce, and the tortfeasor should reasonably have believed that his actions would cause injury in Virginia. Under existing law, jurisdiction in a court of the state of Virginia is proper. No need to even talk about the the messages having been stored on AOL's servers. I'm going to try to get the court's opinion, see if I can figure out what really was said. BTW, congratulations on surviving your first year. :)
This ruling is nothing new. It's just the straightforward application of an _existing_ legal rule relating to intentional torts committed in interstate commerce. Some years ago, a Florida publisher published defamatory statements about a California resident in a magazine distributed in interstate commerce. The Californian haled the Florida company into a California court on the defamation suit. This case goes back at least twenty years (1972, if I am not mistaken).
Nor is this the first time it's happened on the Internet. I personally know of a woman from Minnesota who was sued by someone in Alabama (in Alabama state court) over something defamatory she put on the web. She failed to appear in Alabama and lost a default judgment and is now fighting (and losing) to keep the plaintiff from executing the judgment against her in Minnesota.
This has nothing to do with "freedom of speech" or anything like that. It's not even news (except perhaps to the woefully uneducated American public that pays no attention to legal matters 98% of the time anyway). This is a well-established legal rule, the application of which in this situation is completely unsurprising.
Now, let's correct some misconceptions:
* In theory this means that anyone who libels AOL can be sued in Virginia -- even if the libellant is without the United States. There may be problems with service of process, of course.
* "Internet Culture" (assuming there was such a thing) is utterly irrelevant.
* The theorem that the law doesn't apply to the Internet is COMPLETE AND UTTER BULLSHIT.
* AOL Subscribers probably explicitly consent to jurisdiction in Virginia as part of their subscription agreement.
* Virginia is not overriding the federal courts. They're exercising long-arm jurisdiction consistent with the constitution over an intentional tort committed against a domiliciary of the state of Virginia, consistent with well-established law. Every state has a long-arm statute of some sort; most states have one identical in effect to Virginia's. The same thing would have happened if it was Netcom or Earthlink instead of AOL except we'd be talking about a California court.
The Internet is not a haven for lawlessness. It's high time you twits figured that out.
Correction. What happened was several KDE bigshots demanded that the GIMP developers grant them an exception to GIMP's GPL licensure so kimp could be distributed. The GIMP developers refused, on the basis that they lacked legal capacity to do so. No patch was ever offered.
The GIMP team is only anti-Qt to the extent that Qt's license is incompatible with GIMPs.
KDE is free to burn resources rewriting GIMP; nobody (and I do mean nobody) on the GIMP team will care.
As far as whether crossing out the language on the renewal works: The offeror of a contract has the right to determine the means of acceptance of the contract; the offeree may not choose to accept in any way other than that offered by the offeror. When you cross out that provision, you are rejecting NSI's offer and making a counteroffer. However, if NSI cashes the check, they've accepted your counteroffer, which suggests that you have successfully exempted yourself from that provision. But don't count on it.
The legal jargon for offering a check endorsed as a "payment in full" is "accord and satisfaction"; if the payment is offered in full settlement of an unliquidated claim or a bona fide dispute, it will act to discharge the original contract. If you offer your check when there is no bona fide dispute or unliquidated claim (which would be the case if, for example, your mortgage is not in collection or foreclosure), the endorsement has no effect.
... is nothing new. Lawyers call it "intangible property" and have known about it for centuries. There's nothing new or interesting about property-like arrangements where the property interest exists by virtue of the obligations between people that it creates. ALL property interests exist only because of the obligations they create between people.
What's different between the right to play an Ultima Online character and the right to operate a McDonald's? Not much. In fact, almost nothing at all. Franchise rights have been considered intangible property for decades, if not centuries.
This is all much hype, little substance.