The problem with this whole debate is that everyone keeps talking in terms of "per capita GDP" and equate that with a measure of individual wealth. GDP (Gross Domestic Product) per capita measured an individual's contribution to the economy. A better measure of wealth would be looking at income per capita or even better, disposable income per capita.
I am not a doctor. Please don't pay attention to my post, but consider it before you write off this as being anything else.
Are you sure that these are sulfer lung granules? There are similar yellow, nasty smelling granules that are formed as a result of food getting stuck behind your tonsil. These things are pretty small (as described), and if they are not expelled they continue to grow and can cause a sore throat. Clearing your throat can help expel them (as described), or if you say ahh into a mirror you can usually see them. When you say ahh, try to bring your Adam's Apple all the way forward so that your tonsils come as close together as possible. Look where the little flap of skin covers over the tonsil, you should be able to see two little holes. You can then remove them with a dull toothpick or something like that if they are bothering you.
I get these pretty regularly. I just want to make sure that you do not get diagnosed based on a red herring.
I agree with a lot of what you are saying. The thing is that a lot of your points center around a party acting in bad faith. As you have pointed out, contracts made in bad faith are voidable. But assuming the contract is written in good faith, like the Apple contract or whatever, then you cannot claim ignorance of the terms of the contract as a defense unless you are mentally incapable of entering into a contract. Like I stated before, the problem with click-through licenses is not that the users do not read them, it is modification of a contract without consideration.
But even this doesn't always stand up...
Mortenson v. Timberline Software Corporation, et al
A contract requires some meeting of the minds. The fact that most people click through "read this and agree" proves that doesn't happen as a rule, and does only as an exception.
Although I am not arguing your point that clickable licenses are invalid (more due to a lack of consideration, but thats a whole other topic) but this is not a valid argument. The law does not reward ignorance. This would be the same thing as saying you signed your signiture to a contract without reading it. The law expects you to know what you are getting in to.
When he attached the files, he also encrypted them didn't he (with the passphrase). In the article he made a point to showing off all of the encryption standards supported by the utility.
software seems to be excluded(kind of. But I don't understand why)
This is due to the fact that as the consumer you hold the right to waive any implied warranties, including those contained in the First Sale Doctrine. So when you click on "I Agree" in that EULA, you are agreeing to that expressed warranty which then can negate any implied warranty that previously existed for that contract (except for Fitness for Human Consumption). So as long as it's spelled out in the contract, and you used the item therefore agreeing to the terms, it can be upheld in court.
It could be that they were not seeing this lawsuit as being fruitful but instead providing them with an opportunity. During this time, SCO has been throwing alot of money out there to try to back up their lawsuit. This added to an already horrible financial position made them a target. Although SCO sucks, and they have horrible finances, they do own rights to the Unix system which in itself is very valuable. And this investment is convertable to about 17% total ownership in the company.
So maybe they were thinking that this could work out to a good deal for them. In investment, speculation is everything and you have to weigh all possible outcomes. IF things go sour for IBM and the case looks bad against them, either they settle or they attempt a buy out. In either of these situations they (the investors) win. If things get bad for SCO (hopefully) and they lose their case against IBM and nobody in their right mind thinks about licensing their crap from them, then the company with 17% voting rights should have some weight in forcing SCO into liquidation. I would bet that the property rights to Unix would fetch a pretty penny.
In the end, I too would like to know what they were thinking dealing with these people. I would like to think that they saw the opportunity here to take advantage of a dying seal instead of having belief in what SCO is doing.
Good point! Maybe what they are looking to sue for is flawed, but they still might have a case.
Depending on the law, some statutes allow for default claims for damages (such as claims per se) where they do not have to prove that damages occured to get compensation. I have no idea in this case though.
Also, I get credit cards that are pre-approved in the mail all the time. They would not have a case if they used the public information they had to send them a pre-approved credit card. To have this they would have had to include the necessary contract with the credit card.
Is it possible to sue strictly on the basis of punative damages?
They cant sue over getting the spam. But getting the visa is a whole different matter (sorry I missed that first time through). By getting the visa that company fulfilled the contract with the customer without consent and thus should be liable for forgary charges or something similar. Seek professional legal advice immediately.
There is no need for contract. They did not use the contract to fulfil the contractual relationship, they farmed information out of the trash. As badly as this sucks, information is considered public wants it enters the trash. So by throwing that piece of paper away that had her contact information on it they have every right to pull it back out and use the information written on it as it is public.
That being said, I think they would have a hard time proving that this was the cause of her spam. Saying that after they got this information that you started getting spam is purely circumstancial. Now if you used incorrect information and started getting direct marketing to that incorrect information then you would have a better chance.
My advice to the original poster... get a new e-mail address. It wouldn't be worth the law suit.
Had they submitted her application contract she would have gotten the credit card (since that is what the application was for). All they did was take a piece of paper from the trash that had full contact information on it, and sell this to marketers. The piece of paper just happened to be a contract but the end result would have been the same as if she had written it on a legal pad and thrown it away. Into trash = abandoned property and as such is claimable by the first to retain possesion. Sorry...
It is true that technically, the FCC can only regulate those companies who engage in interstate commerce. This would exclude those companies who solely target members of a particular state and are themselves a member of that state. This would then not fall under the jurisdiction of the FCC and would instead fall to the state legislature. But...
That phone has to be connected to the rest of the nationwide network. So by picking up that phone, they are joining the national network which is sold by a company engaging in interstate commerce. As such, this means that the telemarketing company would then be engaging in interstate commerce and as such would be subject to regulation by the FCC.
There are many reasons that non-profit and political organizations are exempt from this rule. For one as 100's of other people have already said is the constitutional protection toward this type of speech. These are covered by "freedom of speech" where as commercial speech is subject to limitations.
[Now IANAL so go easy on me...] Also... the FTC was created as an act of congress. The constitution clearly outlines congresses right to control interstate commerce (under the commerce clause). This is because if it were up to the states to regulate commerce between states it would be total chaos with interstate tarrifs and such. So using this power, congress was able to create the FTC, which is able to regulate interstate commerce. Since non-profit and political organizations (technically) do not represent commercial interests they cannot be subject to laws regulating commerce.
What I dont get, is since the FTC is again created by a body with the power only over interstate commerce, how can this regulate intrastate telemarketing? Where the telemarketing company and the target are both contained in one state, how can these laws apply? Can anybody answer this for me?
Re:Intel is dying..
on
Athlon 64 Debuts
·
· Score: 2, Informative
Check Pricegrabber, PCSuperDeals.com is showing 83 units in stock at a price of $454.28 for the Athlon64 3200+
grade school blackboard drawing of humping stick figures labeled "principal" and "teacher". Anybody who finds that "funny" needs to see a lawyer themselves
I bet they would too. If I am not mistaken, a similar technology is what the winner of the Google programming contest won. A way of sorting results by distance from the requester.
Not only in tv but look at our movies. It's sick that I pay $7.50 to watch the movie and then on top of that, the whole damn movie is a running commercial. This weekend I watched Austin Powers: Goldmember. Throughout the entire movie, the blatent product placement for Pepsi(tm) was awful. I expected it to be a joke like in Wayne's World 2, but the only people laughing were the marketing execs whom are laughing that I paid $7.50 to watch a giant commercial. And it wasnt only Pepsi that was getting in on the marketing whoring. In one scene they put a Taco Bell(tm) (a Pepsi(tm) owned company) bag in there for the hell of it. There was no joke about it, they didnt even acknowledge it's existence. It was just there and that's what made me sick about it. All day every day all I see are ads. Banners on web pages, billboards along the side of the road, commercials on the radio and television, magazines, stores, the list goes on and on. And the sick thing is that it works and it will only get worse. Because of their earlier full market saturation, how people now order their soda's as a Coke(tm)?
Besides, if the company you are so in love with was off by 50% in salary, then they were screwing you anyway
It's not a matter that they were screwing you, it's a matter that they were doing what was best for the company in their eyes. The goal of buisness is to run as light as you can, if you can keep your current employees at an unreasonably low rate then why should you pay them more? To be nice? It is a sad fact but there are few morals in good buisness.
Is it such a bad thing for your employer to wonder if you are always looking at new job possibilities? As long as you are a valuable member of their workforce, I would imagine that the concept of you entertaining other job opportunities would make them re-evaluate your wage more frequently in fear of losing you.
Although my work experience has been limited thus far, this is how I look at the situation.
As long as you like what you are currently doing, then you should accept the counter-offer. There is comfort in the normal, and although it may seem your duties at the other company will be similar it could be 10x the stress. Maybe the new company will expect mandatory over-time (for a salary position) without giving you any reward for your sacrifice. Sure maybe the company will fear your loyalty a bit, but at the same time as long as you are valuable to them they will also fight that much harder to be sure you dont have to go out and find another job.
Slashdot Mirror
The problem with this whole debate is that everyone keeps talking in terms of "per capita GDP" and equate that with a measure of individual wealth. GDP (Gross Domestic Product) per capita measured an individual's contribution to the economy. A better measure of wealth would be looking at income per capita or even better, disposable income per capita.
I am not a doctor. Please don't pay attention to my post, but consider it before you write off this as being anything else.
Are you sure that these are sulfer lung granules? There are similar yellow, nasty smelling granules that are formed as a result of food getting stuck behind your tonsil. These things are pretty small (as described), and if they are not expelled they continue to grow and can cause a sore throat. Clearing your throat can help expel them (as described), or if you say ahh into a mirror you can usually see them. When you say ahh, try to bring your Adam's Apple all the way forward so that your tonsils come as close together as possible. Look where the little flap of skin covers over the tonsil, you should be able to see two little holes. You can then remove them with a dull toothpick or something like that if they are bothering you.
I get these pretty regularly. I just want to make sure that you do not get diagnosed based on a red herring.
Good Luck!
Phigs
I agree with a lot of what you are saying. The thing is that a lot of your points center around a party acting in bad faith. As you have pointed out, contracts made in bad faith are voidable. But assuming the contract is written in good faith, like the Apple contract or whatever, then you cannot claim ignorance of the terms of the contract as a defense unless you are mentally incapable of entering into a contract. Like I stated before, the problem with click-through licenses is not that the users do not read them, it is modification of a contract without consideration. But even this doesn't always stand up... Mortenson v. Timberline Software Corporation, et al
When he attached the files, he also encrypted them didn't he (with the passphrase). In the article he made a point to showing off all of the encryption standards supported by the utility.
It could be that they were not seeing this lawsuit as being fruitful but instead providing them with an opportunity. During this time, SCO has been throwing alot of money out there to try to back up their lawsuit. This added to an already horrible financial position made them a target. Although SCO sucks, and they have horrible finances, they do own rights to the Unix system which in itself is very valuable. And this investment is convertable to about 17% total ownership in the company.
So maybe they were thinking that this could work out to a good deal for them. In investment, speculation is everything and you have to weigh all possible outcomes. IF things go sour for IBM and the case looks bad against them, either they settle or they attempt a buy out. In either of these situations they (the investors) win. If things get bad for SCO (hopefully) and they lose their case against IBM and nobody in their right mind thinks about licensing their crap from them, then the company with 17% voting rights should have some weight in forcing SCO into liquidation. I would bet that the property rights to Unix would fetch a pretty penny.
In the end, I too would like to know what they were thinking dealing with these people. I would like to think that they saw the opportunity here to take advantage of a dying seal instead of having belief in what SCO is doing.
Good point! Maybe what they are looking to sue for is flawed, but they still might have a case. Depending on the law, some statutes allow for default claims for damages (such as claims per se) where they do not have to prove that damages occured to get compensation. I have no idea in this case though. Also, I get credit cards that are pre-approved in the mail all the time. They would not have a case if they used the public information they had to send them a pre-approved credit card. To have this they would have had to include the necessary contract with the credit card. Is it possible to sue strictly on the basis of punative damages?
They cant sue over getting the spam. But getting the visa is a whole different matter (sorry I missed that first time through). By getting the visa that company fulfilled the contract with the customer without consent and thus should be liable for forgary charges or something similar. Seek professional legal advice immediately.
Sorry, I read the whole article but missed that. Then ya, they have full standing to sue. I am sorry I missed that.
There is no need for contract. They did not use the contract to fulfil the contractual relationship, they farmed information out of the trash. As badly as this sucks, information is considered public wants it enters the trash. So by throwing that piece of paper away that had her contact information on it they have every right to pull it back out and use the information written on it as it is public. That being said, I think they would have a hard time proving that this was the cause of her spam. Saying that after they got this information that you started getting spam is purely circumstancial. Now if you used incorrect information and started getting direct marketing to that incorrect information then you would have a better chance. My advice to the original poster... get a new e-mail address. It wouldn't be worth the law suit.
No...
Had they submitted her application contract she would have gotten the credit card (since that is what the application was for). All they did was take a piece of paper from the trash that had full contact information on it, and sell this to marketers. The piece of paper just happened to be a contract but the end result would have been the same as if she had written it on a legal pad and thrown it away. Into trash = abandoned property and as such is claimable by the first to retain possesion. Sorry...
For anybody that cares...
IANALBIAO (I am not a lawyer but I asked one)
It is true that technically, the FCC can only regulate those companies who engage in interstate commerce. This would exclude those companies who solely target members of a particular state and are themselves a member of that state. This would then not fall under the jurisdiction of the FCC and would instead fall to the state legislature. But...
That phone has to be connected to the rest of the nationwide network. So by picking up that phone, they are joining the national network which is sold by a company engaging in interstate commerce. As such, this means that the telemarketing company would then be engaging in interstate commerce and as such would be subject to regulation by the FCC.
There are many reasons that non-profit and political organizations are exempt from this rule. For one as 100's of other people have already said is the constitutional protection toward this type of speech. These are covered by "freedom of speech" where as commercial speech is subject to limitations.
[Now IANAL so go easy on me...]
Also... the FTC was created as an act of congress. The constitution clearly outlines congresses right to control interstate commerce (under the commerce clause). This is because if it were up to the states to regulate commerce between states it would be total chaos with interstate tarrifs and such. So using this power, congress was able to create the FTC, which is able to regulate interstate commerce. Since non-profit and political organizations (technically) do not represent commercial interests they cannot be subject to laws regulating commerce.
What I dont get, is since the FTC is again created by a body with the power only over interstate commerce, how can this regulate intrastate telemarketing? Where the telemarketing company and the target are both contained in one state, how can these laws apply? Can anybody answer this for me?
Check Pricegrabber, PCSuperDeals.com is showing 83 units in stock at a price of $454.28 for the Athlon64 3200+
grade school blackboard drawing of humping stick figures labeled "principal" and "teacher". Anybody who finds that "funny" needs to see a lawyer themselves
HAHAHAHAHAHAHAHA... oh wait
I bet they would too. If I am not mistaken, a similar technology is what the winner of the Google programming contest won. A way of sorting results by distance from the requester.
You forgot the part about signing away for first born son in the EULA.
Not only in tv but look at our movies. It's sick that I pay $7.50 to watch the movie and then on top of that, the whole damn movie is a running commercial. This weekend I watched Austin Powers: Goldmember. Throughout the entire movie, the blatent product placement for Pepsi(tm) was awful. I expected it to be a joke like in Wayne's World 2, but the only people laughing were the marketing execs whom are laughing that I paid $7.50 to watch a giant commercial. And it wasnt only Pepsi that was getting in on the marketing whoring. In one scene they put a Taco Bell(tm) (a Pepsi(tm) owned company) bag in there for the hell of it. There was no joke about it, they didnt even acknowledge it's existence. It was just there and that's what made me sick about it. All day every day all I see are ads. Banners on web pages, billboards along the side of the road, commercials on the radio and television, magazines, stores, the list goes on and on. And the sick thing is that it works and it will only get worse. Because of their earlier full market saturation, how people now order their soda's as a Coke(tm)?
It's not a matter that they were screwing you, it's a matter that they were doing what was best for the company in their eyes. The goal of buisness is to run as light as you can, if you can keep your current employees at an unreasonably low rate then why should you pay them more? To be nice? It is a sad fact but there are few morals in good buisness.
Is it such a bad thing for your employer to wonder if you are always looking at new job possibilities? As long as you are a valuable member of their workforce, I would imagine that the concept of you entertaining other job opportunities would make them re-evaluate your wage more frequently in fear of losing you.
Although my work experience has been limited thus far, this is how I look at the situation.
As long as you like what you are currently doing, then you should accept the counter-offer. There is comfort in the normal, and although it may seem your duties at the other company will be similar it could be 10x the stress. Maybe the new company will expect mandatory over-time (for a salary position) without giving you any reward for your sacrifice. Sure maybe the company will fear your loyalty a bit, but at the same time as long as you are valuable to them they will also fight that much harder to be sure you dont have to go out and find another job.