Nah, they're fueling up their silent black helicopters, repacking their parachutes and checking the rappelling equipment so they can drop in with cease and desist orders in hand.
Also, the Apple Legal Death Squad (ALDS) has ferociously awesome business cards. Or so I've been told.
This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.
That being said, I just looked at my own Leopard box and couldn't find any system requirements listed on the box. IIRC, they were on a sticker attached to the shrink wrap, though.
I don't mean to get nit-picky, but this isn't very good legal analysis:
There has to be benifit [sic] to both parties for a contract to be valid. I can't just throw $200 at apple and get software that I they say I can't use without having the option to return it. Since the parties involved refuse to accept returned software the return policy is unconscionable and the license [sic] may be void.
A working definition for a contract, at least for lawyers and courts in the US, is that it is a bargained-for agreement with consideration. In a case where a plaintiff is suing for breach of contract, these are the bare minimum elements that must be proved by the plaintiff in order to make out a prima facie case.
Unconscionability, on the other hand, is most typically used as an affirmative defense to the enforcement of an otherwise valid contract. While a consumer could certainly raise this defense if sued for violating an EULA, it's not typically a claim one raises as a plaintiff.
In theory, at least, if a box of software says clearly and unequivocally that you agree to the EULA if you use the software, and that EULA is available in some form (including online on the company's website), then it is enforceable.
That being said, there is a potential for (some, at least) EULA's to be considered contracts of adhesion. In particular, because EULA's on consumer software involve boiler-plate agreements that are non-negotiable by the consumer and sometimes permit the developer to change those terms after acceptance by the consumer, it's possible that future rulings may reverse the existent doctrine developed by Step Saver v. Wyse or distinguish between business dealings and consumer dealings.
This is a rapidly developing area of law. Anyone who speaks in absolutes, saying either that EULA's are or are not enforceable, is either ignorant of the law or advocating their position. These types of enforceability issues are ripe for review and any given ruling may, in large part, turn on the provisions of a given EULA and who the parties are (i.e. is purchaser of the software a business or a consumer?).
To what extent licensing law varies from traditional contract law, I can't say, having not studied licensing law in depth (yet). Also, if you buy software from an actual retailer, get it home, open the box and then disagree with the EULA, you can often seek and receive a return from the developer/publisher if the retailer won't accept a return.
I welcome any corrections, comments or flames of my analysis.
I'll go out on a limb and suggest that most Slashdotters don't file baseless lawsuits against random people who are unprepared to defend themselves from the full force of a massive corporation's legal department...
"[M]ost Slashdotters" are "massive corporation[s]"?
And yes, I know what you actually meant. Sometimes, funny is funny.
Are you for real or just spoiling for a nerd fight?
Successful refutation of the opposition's premise isn't fallacious, it's how one wins an argument.
Your original comment was predicated upon the inferred premise that Fair Use rights aren't codified. I successfully refuted your premise. I never gave an opinion on the costs or risks of asserting Fair Use as an affirmative defense. I know it is the height of Slashdot fashion to dismiss counter-arguments by claiming they are fallacious, but you are being unreasonable (literally).
The problem with Fair Use is that it's an affirmative defense without being well-defined. This means it can still be expensive and risky to defend oneself rather than being able to rely on definitions clearer than parody, commentary and criticism.
I (mostly) agree with this sentiment. But it doesn't change the fact that Fair Use rights are, not withstanding their origin as a judicially created affirmative defense later incorporated into written law by Congress, now codified law.
Modernization would be nice, but clarifying existing (potential) uses is where I'm coming from. What type of clarification? Judicial or Legislative? Personally, I think legislative is the way to go. The best way to fix the high cost and risk of asserting fair use rights would be to shift the burden of proof back onto the plaintiff (affirmative defenses place the burden of proof on the defendant).
If someone knowingly pays someone for something they obtained by committing a crime, that is and should be illegal.
It's a good thing, then, that receipt of stolen goods is typically a specific intent crime.
If someone buys child porn from someone who's abusing children to produce it, the purchaser is just as responsible for the abuse as the actual abuser, and in my opinion should be punished accordingly (i.e. severely). But the current laws don't make any distinction - they criminalize the image itself, not the act of child abuse or material support of the act.
I prefer a pretty liberal reading of the first amendment myself. I am a big fan of John Stuart Mill's "On Liberty" and agree with him that minority voices should never be silenced. And I think I understand the point you're making, insomuch as it seems you want to criminalize the morally culpable state of engaging in or aiding others in the act of child molesting without criminalizing the possession of an image. I guess what I don't understand is how you can disentangle the image from the underlying crime it evidences. If your complaint is that most child porn laws hold no intent element (a.k.a. strict liability), then I'm down with that sort of criticism (I don't like strict liability in nearly any criminal statutes). But I have no problem with a blanket prohibition of child pornography that contains an intent element that acts to shield the few legitimate uses of such images (research, law enforcement, etc).
Now, I'd even go so far as to say that possession of child porn constitutes probable cause to launch an investigation into someone's activities and contacts, in order to uncover evidence that they or someone they're connected with is involved in abusing children. But if they're not abusing children or providing material support to those who do, they're not hurting anybody. As distasteful and reprehensible as we find it, we can't give in to the puritan mindset of banning things that make us uncomfortable.
The problem I have with this is that is encourages the courts to allow probable cause determinations upon the possession of otherwise legal documents, which might do more harm to ideas of justice and civil rights than the criminalization of child pornography might. I remain unconvinced that anyone who possesses child pornography, given a very narrow field of exceptions, has any intent other than to derive some form of pleasure from the exploitation of children. This intent is the very moral state the law seeks to criminalize.
I would recommend assuming very little about my views on the use of free speech and my views on the SAFE Act. You'll note that I didn't condemn opposition to the bill, but merely pointed out that grandparent failed to make much of an argument. In my experience, a bad argument for a good cause typically damages the cause more than if the bad arguer had just left well enough alone.
It is mind-boggling that I have to point this out.
I assume nothing about comments on Slashdot. If grandparent had a more expansive argument to make, perhaps grandparent should have taken the time to make it.
[T]he child pornography laws are morally bankrupt...Outlawing talking about or depicting something horrible doesn't prevent the thing itself, it just allows us to more easily convince ourselves it isn't happening. It's a band-aid solution to keep us from having to think or deal with the problem. And band-aid solutions to child sexual assault are absolutely unacceptable.
Yeah! Also, fences shouldn't be prosecuted for receipt of stolen goods. And people convicted of sensational and well-publicized murders should definitely be able to sell their story and profit from their actions. Yeah!
Next, there are some very valid reasons for there to be open WiFi access points. All coffee joints and hip restaurants in any given town have them, and they should. It is "a good thing"(tm). Unfounded fear of pron should not take away one of the best sociological innovations of our era, and you should not be advocating that it does.
So, ummm... the "very valid reasons for there to be open WiFi access points" are:
All coffee joints and hip restaurants can and should have them;
They are good things; and
Unfounded fear of pron should not take them away, nor should anyone advocate that it should.
I honestly can't tell if parent was a satirization of arguments made against the bill or an actual bona-fide, yet completely ineffectual, argument.
Why not start placing entire nations behind NAT routers?
"The GNAT Router of China" "National SOHO Router" (installed next to the Washington Monument; uses classical architecture, like UNIX) "Institute for Internet Openness" (This was is found in Oceania)
I should probably add that I think that three days is far too short a time to respond, but that really comes down to what the Israeli courts consider to be fair. I was mainly pointing out that, in broad strokes, this doesn't seem all that unjust. By way of comparison, U.S courts continue to allow service of complaints by publication (meaning in the newspaper) when defendants can't be found, albeit upon a much longer timeframe.
Seriously, since when do people feel the need to stick up for a corporation? They don't care about you at all. Why should you defend them?
I defend corporations because I like plenty of food in my belly, my desk job that pays better than being a hunter-gatherer and the ability to engage in many leisure activities in the evening rather than cowering in a cave, stoking my fire and fearing wild animals.
I am not a lawyer in the U.S., Israel, or anywhere else.
That being said, I would point out that the norm for due process is typically some form of notice of the proceedings and the subsequent right to respond. The blogger (presumably) had notice and chose not to avail himself of his right to contest his "unmasking."
Additionally, courts typically prefer to adjudicate cases on their merits and not on procedural gotchas (I know most Slashdotters won't believe me but this is actually true). Thus, if the blogger doesn't respond to the challenge to strip away his anonymity, the court is likely more than happy to name him and proceed to trial on the merits of the libel claim.
The above, of course, is entirely conjecture. As parent noted, anyone with any knowledge of the Israeli legal system would be able to speak to this case in a far more competent manner than the rest of us.
Actually, I meant boycotting RIAA members. Although I used Napster back in the day, I have made a point of obtaining all of my music legally since then. I either buy used CD's (such that my own money doesn't flow into the RIAA coffers) or buy independent music. That being said, I agree with you that most people provide rationalizations for the free taking that goes on and that the WMG and Bronfmans of the world will have to learn with a little loss on the margins, because the alternative is a "war on consumers."
It makes absolute sense if you think about from his perspective. Of course, when I try and place myself in his shoes, my nose starts bleeding and my brain hurts. Does that mean anything?
I like to give people the benefit of the doubt (enough rope to hang themselves with). But, given the paucity of Mr. Bronfman's concessions, it seems premature to alter my own behavior. I would be much more receptive to his statements (and therefore inclined to reconsider my current boycott of Warner (as part of the RIAA)) if his statement had included the following sentiments: Based upon this conclusion, Warner Music Group (WMG):
Is either currently withdrawing from all lawsuits against alleged P2P users, or is investigating doing so;
Has officially communicated its displeasure with the current lawsuit regime to the RIAA; and
Will work with leading copyright scholars to draft a consumer's bill of rights that will, at the very least, clarify fair use in the context of sharing and sampling.
While I don't believe that the recording industry has engaged in a criminal conspiracy, I do note that when such a conspiracy exists, the law demands more than mere withdrawal from the conspiracy in order to shield a participant from further liability from the acts of their co-conspirators. By analogy, then, WMG's participation in lawsuits against P2P users has sullied WMG's reputation and mere renunciation of the "war on consumers" is inadequate to rectify the harm done. They are going to need to take some affirmative steps to atone for what they have done, at least in my eyes. I'm not counting on any of this happening, mind you, just thinking out loud.
Perhaps each precinct could be equipped with a single computer and printer to print out the paper ballots for voters to fill out. They could start the day with a good supply of English and Spanish ballots and a lessor supply of the others. During the day, if any of these supplies run low, they just need to print more.
That being said, I don't think hand-marked paper ballots are a good solution either, but your criticism seemed a bit superficial.
It's more complicated than that. What type of printing system are you going to use? Will it print to a non-accessible role of paper or to a paper ballot that may then be deposited in the ballot box? Will it use thermal paper (which degrades quickly, but is inexpensive) or some other solution? I've pointed out the complexities involved before.
It should suffice to say that a system that only accounts for security or verifiability of the votes would actually be unacceptable.
P.S. To the hand-written paper-ballot (Australian ballot) wing nuts out there: your proposed solution is completely unworkable because it fails to account for reality. P.P.S. To the Diebold wing nuts out there: People like the idea of paper trails because they want to know that there vote is being counted without having to trust you.
I applaud you on what I infer to be your near perfect attendance in World History 101. You seem, however, to have missed the day where they discussed objectivity and detachment from the subject matter, including the prohibition against imposing modern values on historical figures.
Slashdot Mirror
Nah, they're fueling up their silent black helicopters, repacking their parachutes and checking the rappelling equipment so they can drop in with cease and desist orders in hand.
Also, the Apple Legal Death Squad (ALDS) has ferociously awesome business cards. Or so I've been told.
That being said, I just looked at my own Leopard box and couldn't find any system requirements listed on the box. IIRC, they were on a sticker attached to the shrink wrap, though.
A working definition for a contract, at least for lawyers and courts in the US, is that it is a bargained-for agreement with consideration. In a case where a plaintiff is suing for breach of contract, these are the bare minimum elements that must be proved by the plaintiff in order to make out a prima facie case.
Unconscionability, on the other hand, is most typically used as an affirmative defense to the enforcement of an otherwise valid contract. While a consumer could certainly raise this defense if sued for violating an EULA, it's not typically a claim one raises as a plaintiff.
In theory, at least, if a box of software says clearly and unequivocally that you agree to the EULA if you use the software, and that EULA is available in some form (including online on the company's website), then it is enforceable.
That being said, there is a potential for (some, at least) EULA's to be considered contracts of adhesion. In particular, because EULA's on consumer software involve boiler-plate agreements that are non-negotiable by the consumer and sometimes permit the developer to change those terms after acceptance by the consumer, it's possible that future rulings may reverse the existent doctrine developed by Step Saver v. Wyse or distinguish between business dealings and consumer dealings.
This is a rapidly developing area of law. Anyone who speaks in absolutes, saying either that EULA's are or are not enforceable, is either ignorant of the law or advocating their position. These types of enforceability issues are ripe for review and any given ruling may, in large part, turn on the provisions of a given EULA and who the parties are (i.e. is purchaser of the software a business or a consumer?).
To what extent licensing law varies from traditional contract law, I can't say, having not studied licensing law in depth (yet). Also, if you buy software from an actual retailer, get it home, open the box and then disagree with the EULA, you can often seek and receive a return from the developer/publisher if the retailer won't accept a return.
I welcome any corrections, comments or flames of my analysis.
Are you sure you're not an economist?
"[M]ost Slashdotters" are "massive corporation[s]"?
And yes, I know what you actually meant. Sometimes, funny is funny.
Thanks for the strawman with red herring sauce.
Are you for real or just spoiling for a nerd fight?
Successful refutation of the opposition's premise isn't fallacious, it's how one wins an argument.
Your original comment was predicated upon the inferred premise that Fair Use rights aren't codified. I successfully refuted your premise. I never gave an opinion on the costs or risks of asserting Fair Use as an affirmative defense. I know it is the height of Slashdot fashion to dismiss counter-arguments by claiming they are fallacious, but you are being unreasonable (literally).
The problem with Fair Use is that it's an affirmative defense without being well-defined. This means it can still be expensive and risky to defend oneself rather than being able to rely on definitions clearer than parody, commentary and criticism.
I (mostly) agree with this sentiment. But it doesn't change the fact that Fair Use rights are, not withstanding their origin as a judicially created affirmative defense later incorporated into written law by Congress, now codified law.
Modernization would be nice, but clarifying existing (potential) uses is where I'm coming from.
What type of clarification? Judicial or Legislative? Personally, I think legislative is the way to go. The best way to fix the high cost and risk of asserting fair use rights would be to shift the burden of proof back onto the plaintiff (affirmative defenses place the burden of proof on the defendant).
Is he willing to codify Fair Use into law instead of letting it remain a nebulous "defense?"
Fair Use is codified in current U.S. law and has been since the passage of the Copyright Act of 1976. See U.S. Code, Title 17, section 107.
Did you perhaps mean that you'd like to see a new copyright statute that modernizes and/or widens the applicability of statutory fair use provisions?
See, now this is a reasonable, plausible argument. I ask so little...
I would recommend assuming very little about my views on the use of free speech and my views on the SAFE Act. You'll note that I didn't condemn opposition to the bill, but merely pointed out that grandparent failed to make much of an argument. In my experience, a bad argument for a good cause typically damages the cause more than if the bad arguer had just left well enough alone.
It is mind-boggling that I have to point this out.
I assume nothing about comments on Slashdot. If grandparent had a more expansive argument to make, perhaps grandparent should have taken the time to make it.
I honestly can't tell if parent was a satirization of arguments made against the bill or an actual bona-fide, yet completely ineffectual, argument.
Why not start placing entire nations behind NAT routers?
"The GNAT Router of China"
"National SOHO Router" (installed next to the Washington Monument; uses classical architecture, like UNIX)
"Institute for Internet Openness" (This was is found in Oceania)
Any others I'm missing?
I should probably add that I think that three days is far too short a time to respond, but that really comes down to what the Israeli courts consider to be fair. I was mainly pointing out that, in broad strokes, this doesn't seem all that unjust. By way of comparison, U.S courts continue to allow service of complaints by publication (meaning in the newspaper) when defendants can't be found, albeit upon a much longer timeframe.
Hooray progress!
I am not a lawyer in the U.S., Israel, or anywhere else.
That being said, I would point out that the norm for due process is typically some form of notice of the proceedings and the subsequent right to respond. The blogger (presumably) had notice and chose not to avail himself of his right to contest his "unmasking."
Additionally, courts typically prefer to adjudicate cases on their merits and not on procedural gotchas (I know most Slashdotters won't believe me but this is actually true). Thus, if the blogger doesn't respond to the challenge to strip away his anonymity, the court is likely more than happy to name him and proceed to trial on the merits of the libel claim.
The above, of course, is entirely conjecture. As parent noted, anyone with any knowledge of the Israeli legal system would be able to speak to this case in a far more competent manner than the rest of us.
That's a Cosby sweater!
Actually, I meant boycotting RIAA members. Although I used Napster back in the day, I have made a point of obtaining all of my music legally since then. I either buy used CD's (such that my own money doesn't flow into the RIAA coffers) or buy independent music. That being said, I agree with you that most people provide rationalizations for the free taking that goes on and that the WMG and Bronfmans of the world will have to learn with a little loss on the margins, because the alternative is a "war on consumers."
It makes absolute sense if you think about from his perspective. Of course, when I try and place myself in his shoes, my nose starts bleeding and my brain hurts. Does that mean anything?
Based upon this conclusion, Warner Music Group (WMG):
While I don't believe that the recording industry has engaged in a criminal conspiracy, I do note that when such a conspiracy exists, the law demands more than mere withdrawal from the conspiracy in order to shield a participant from further liability from the acts of their co-conspirators. By analogy, then, WMG's participation in lawsuits against P2P users has sullied WMG's reputation and mere renunciation of the "war on consumers" is inadequate to rectify the harm done. They are going to need to take some affirmative steps to atone for what they have done, at least in my eyes. I'm not counting on any of this happening, mind you, just thinking out loud.
Are you listening, Warner?
Wrong! We're in Funky Town at the corner of Electric Avenue and Oh my god I can't believe I'm making this joke!
Perhaps each precinct could be equipped with a single computer and printer to print out the paper ballots for voters to fill out. They could start the day with a good supply of English and Spanish ballots and a lessor supply of the others. During the day, if any of these supplies run low, they just need to print more.
That being said, I don't think hand-marked paper ballots are a good solution either, but your criticism seemed a bit superficial.
It's more complicated than that. What type of printing system are you going to use? Will it print to a non-accessible role of paper or to a paper ballot that may then be deposited in the ballot box? Will it use thermal paper (which degrades quickly, but is inexpensive) or some other solution? I've pointed out the complexities involved before.
It should suffice to say that a system that only accounts for security or verifiability of the votes would actually be unacceptable.
P.S. To the hand-written paper-ballot (Australian ballot) wing nuts out there: your proposed solution is completely unworkable because it fails to account for reality.
P.P.S. To the Diebold wing nuts out there: People like the idea of paper trails because they want to know that there vote is being counted without having to trust you.
I applaud you on what I infer to be your near perfect attendance in World History 101. You seem, however, to have missed the day where they discussed objectivity and detachment from the subject matter, including the prohibition against imposing modern values on historical figures.