Different laws were involved. This suit would have succeeded under a contracts theory; but at best, he'd have gotten nominal damages for trespass or an injunction preventing them from continuing to access the site. The SCA has broad civil remedies available. (And would have established, on the record, that these guys had broken a law...)
The "make my day" laws are more about avoiding proceedings and are broadly written; they only cover burglars when danger is reasonable. For example, the OK Law is:
A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes.
B. Any occupant of a dwelling is justified in using any degree of physical force, including but not limited to deadly force, against another person who has made an unlawful entry into that dwelling, and when the occupant has a reasonable belief that such other person might use any physical force, no matter how slight, against any occupant of the dwelling.
C. Any occupant of a dwelling using physical force, including but not limited to deadly force, pursuant to the provisions of subsection B of this section, shall have an affirmative defense in any criminal prosecution for an offense arising from the reasonable use of such force and shall be immune from any civil liability for injuries or death resulting from the reasonable use of such force.
D. The provisions of this section and the provisions of the Oklahoma Self-Defense Act, Sections 1 through 25 of this act, shall not be construed to require any person using a pistol pursuant to the provisions of this section to be licensed in any manner.
All this does is LOWER THE STANDARD from "Reasonable fear of your life" to "reasonable fear of violence." If someone is running away and you shoot him in the back, you lose every time. To allow other wise would raise some serious problems.
You just interpreted "barrier to entry" to a "private club" to mean an "armed guard at the door."
You're either a) baiting me, b) trolling, c) incredibly stupid, d) lacking in any understanding whatsoever of what public accomodations law is.
I'm going to assume either A or B, since my default assumption is that most people on slashdot are intelligent assholes rather than stupid. If this is not the case, feel free to reply with a slightly less leading response. Your "question" makes it obvious you've already drawn a conclusion that runs counter to oh, at least a hundred years of case law (I.e. things that predate the "civil rights" movement) off the top of my head, and certainly more if I look.
As a short response, "barrier to entry" refers to selectivity criteria in determining membership. Not physical entry.
I never said that a sign was required -- I said that in jurisdictions that use a subjective intent test, you'd need some form of manifestation to prove your occupation was open, notorious and hostile. Without hostility, you could not succeed on your claim. (Although you might succeed in getting a permanent easement by prescription.)
I thought i made it pretty clear, but I'll reiterate: Adverse possession is a matter of local (most likely state) law -- and there are differing jurisdictions with differing rules. The last part of your story doesn't seem to add up -- if the checks had been sent to the heirs over the years, someone would have had to have been mining/drilling -- and so someone should have noticed the use of land. Furthermore, it would not have been a stretch to see a court equitably severing the profit (this is a legal term for a mineral/timber/etc right) from the land. How many years is a "number of years" -- did this guy have colour of title? It sounds very interesting and I'd like to read about it...
What jurisdictions can you think of that allow you to shoot trespassers? I believe you may be mistaken. Shooting another person (intentionally) is assault (best case scenario) to murder (or attempted murder). Period. "Reasonable fear for your life" is an affirmative *defense*. If you can provide something to back up these mysterious jurisdictions in which you can shoot people for civil trespass in which you have no fear of bodily harm, I'd really love to see them. [Again: The general rule is that a reasonable fear of bodily harm constitutes an affirmative defense; not carte blanche.]
Please do not compare local judges with those that sit on the eleventh circuit, having been appointed by the president and vetted by the senate, they have little in common with local elected judges in the grander sense. [Three of the active judges are graduates of Harvard Law, two are graduates of UVA, I believe one is from Notre Dame, and I'm fairly sure another is is from Duke. (And I think two are from Tulane, Barkett went to like UF, but she's a special case.) ] Such shenanigans as you've outlined do not happen in a Federal Circuit Court of Appeal.
You've been modded insightful??
From the GP: "If they come to pick berries, I can kick them out for trespassing."
And he can. They're on his property without permission. They've ignored the sign. Even if they didn't make it to the berries.
He didn't say "If they pick berries, I can kick them out for trespassing."
How about reading AND thinking before posting.
You seem like a pretty intelligent person -- if you get a chance ever, pick up a first year property law "hornbook" -- you'll be quite surprised. (Short answer: you're not entirely correct...in fact, you're very far from correct, but you seem to be using logic and reason, which I can assure you, have very little bearing in some areas of property law. not that I agree with property law as it stands in many states, but the law is what the law is....)
be still my heart. [actual knowledge in a slashdot legal discussion.] and at one point, albeit briefly, we had a sort of federal contract law -- Tyson v Swift!...and then erie came along.
Actually, not per se. If you grant them an easement to cross your land and the berry bushes are on the strip of land in the easement, then the answer is "it depends." If you use real covenants, then the question would be one of "hardship to the servient estate." Since covenants in gross can only be enforced by charitable organizations, homeowners associations and government entities, it would have to be appurtenant -- which would require they be a nearby landower. It *SOUNDS* like what you want to grant them is a conditional license; which has its own can of worms. (Because it can become irrevocable; easements by estoppel.)
In short: Your analogy fails because a) property law is more complex than you make it out to be, and b) the application of traditional property law to the internet is not as clearcut as you make it out to be.
It's too bad they dont have the luxury of pulling a Newdow "oh gee you dont have standing" to make the case go away. The luxury provided by certiorari!
Register.com v Verio is in the same vein as AP v INS and ebay v bidder's edge. It's more about right to exclude a COMPETITOR than the general public. (i.e. quasi property right.) Richard Dinon's case is just crappy lawyering and poor framing of the issue.
When in college [I went to a...liberal arts school in New Haven, Connecticut] I always commented that I felt like it was always precipitating in New Haven. Always. Raining in the spring/fall, and snowing in the winter. And then the freezing rain, hail, etc etc made life miserable. So junior year I proposed we form the:
Step-Saver and Gateway hold otherwise. You can't EULA around the warantee of merchantability (or fitness for purpose) but otherwise, you're golden. I'm sure Todd Rakoff would agree with you, but not everyone else would. (In Easterbrook's court, you'd be laughed at....) Modern contracts doctrine has done away with many instances of consideration, one of the few places where it is required is to form binding (i.e. non-revocable) option contracts. There are plenty of places where "consideration" isn't really needed.... [Unilateral contracts, promissory estoppel, the UCC....]
This holding and EULAs can both stand. This holding has nothing to do with contract law at all. Few, if any of the posters in this thread have any real legal knowledge whatsoever. Unilateral contracts barely require consideration; most nominal considerations are held valid, and under the UCC the only thing that requires non-nominal consideration is a binding option contract. Please, don't believe what you read on slashdot from IANALs.
Property owners that shoot trespassers will end up going to jail for attempted murder in virtually any US jurisdiction, unless you're talking "breaking and entering my home in the middle of the night." I can't tell if you're trying to bait me or asking a serious question. If the latter, post some contact info and I'll explain the state of the law to your heart's content. I was merely discussing adverse posession. I can assure you, the use of force to combat civil conversion of property is a crime anywhere in the united states, no matter what you have posted. [If someone trespasses on your SHOOTING RANGE and you have a sign posted that says "trespassers will be shot" and they get shot, you're probably screwed. If you have a sign up that says "THIS IS A SHOOTING RANGE, YOU MAY BE IN DANGER" and you tell the cops that you intentionally shot him, you're also screwed. You cannot post a sign that says "trespassers may be shot." Signs that say "beware of dog" are akin to the signs that say "this is a shooting range." If you *intentionally* "release the hounds" (i.e. an attack dog) on a trespasser you will go to jail.)
thank you for having a clue. this is one of the more frustrating stories on/. since long before I started law school. The american populace in general has a fundamental misunderstanding of how our court system works; it seems slashdot especially so, despite the seemingly high level of intelligence of many of the posters, they just seem to blatatly mouth off with no idea that they're missing the mark. Your post was a breath of fresh air.
If you are a private entity you must have selectivity criteria. If you do not have actual selectivity criteria, you are open to the public, and therefore a public accomodation. Basically this ruling is that a nominal selectivity criteria (i.e. voluntary self selection) is NOT one. This is nothing new at all.
See e.g. Desnick v ABC 44 F.3d 1345; Food Lion v Capital Cities, 194 F3d 505, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966), Uston v Resorts Internation 445 A2d 370; Dale v BSA 734 A2d 1196 rev sub nom BSA v Dale 530 US 640.
But see/but CF National Organization of Women v Little League Basketball, 338 A2d 198; and ESPECIALLY see Kiwanis Int'l v. Ridegewood Kiwanis Club, 806 F2d 468.
SCOTUSBLOG is one good one. . If you'd like the other blogs typically read by the law school community, I will hook you up if you provide an email address. As the most recent posts to this article (on the ACSblog) have shown, slashdotters are not adding anything constructive to the debate, as by and large they all start with IANAL and then say something that is not only wrong, but generally laughably so. *sigh*
...the problem is Snow sued under the SCA rather than traditional contract theory. Of course, they violated their "contract" -- so the court would award him WHAT at best? An injunction? Because he couldn't have set up an IP blacklist to get that already? Seriously, the difference here is between contract law and a form of "public access" (public accomodations) law. If you are a private club with no serious barriers to entry, you cannot claim to be a private club, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966).
Because he wanted to nail them with an SCA violation. At law? Nominal damages at best. At equity would have been....an injunction?! Yeah, because he wouldn't have been able to get that with with an IP blacklist. No court is going to award any serious damages under contract law...
This changes absolutely nothing. This has nothing to do with contracts, but "public" vs "private." Basically, in order for something NOT to be considered "public" you must have meaningful screening. Consider a "private club" that allows anyone to join -- it is no longer a private club according to the LEGAL definition of such. Step-Saver, Gateway and the traditional e-Commerce contracts cases (Box-top and clickwrap EULAs) are completely untouched by this.
Slashdot Mirror
Different laws were involved. This suit would have succeeded under a contracts theory; but at best, he'd have gotten nominal damages for trespass or an injunction preventing them from continuing to access the site. The SCA has broad civil remedies available. (And would have established, on the record, that these guys had broken a law...)
I love the MGL notices on the T. You don't, per chance, practice within spitting distance of Cambridge or have any ties to a certain law school there?
I should also note one thing, my "shoot in the back" examples ONLY apply during the daytime. Home burglaries at night seem to be per-se assumed violent. See e.g. Texas Penal Code, http://www.capitol.state.tx.us/statutes/docs/PE/co ntent/htm/pe.002.00.000009.00.htm#9.41.00 and 9.42
You just interpreted "barrier to entry" to a "private club" to mean an "armed guard at the door."
You're either a) baiting me, b) trolling, c) incredibly stupid, d) lacking in any understanding whatsoever of what public accomodations law is.
I'm going to assume either A or B, since my default assumption is that most people on slashdot are intelligent assholes rather than stupid. If this is not the case, feel free to reply with a slightly less leading response. Your "question" makes it obvious you've already drawn a conclusion that runs counter to oh, at least a hundred years of case law (I.e. things that predate the "civil rights" movement) off the top of my head, and certainly more if I look.
As a short response, "barrier to entry" refers to selectivity criteria in determining membership. Not physical entry.
I never said that a sign was required -- I said that in jurisdictions that use a subjective intent test, you'd need some form of manifestation to prove your occupation was open, notorious and hostile. Without hostility, you could not succeed on your claim. (Although you might succeed in getting a permanent easement by prescription.)
I thought i made it pretty clear, but I'll reiterate: Adverse possession is a matter of local (most likely state) law -- and there are differing jurisdictions with differing rules. The last part of your story doesn't seem to add up -- if the checks had been sent to the heirs over the years, someone would have had to have been mining/drilling -- and so someone should have noticed the use of land. Furthermore, it would not have been a stretch to see a court equitably severing the profit (this is a legal term for a mineral/timber/etc right) from the land. How many years is a "number of years" -- did this guy have colour of title? It sounds very interesting and I'd like to read about it...
What jurisdictions can you think of that allow you to shoot trespassers? I believe you may be mistaken. Shooting another person (intentionally) is assault (best case scenario) to murder (or attempted murder). Period. "Reasonable fear for your life" is an affirmative *defense*. If you can provide something to back up these mysterious jurisdictions in which you can shoot people for civil trespass in which you have no fear of bodily harm, I'd really love to see them. [Again: The general rule is that a reasonable fear of bodily harm constitutes an affirmative defense; not carte blanche.]
s ession.htm or http://www.lectlaw.com/files/lat06.htm
Re: AP, check out http://real-estate-law.freeadvice.com/adverse_pos
Please do not compare local judges with those that sit on the eleventh circuit, having been appointed by the president and vetted by the senate, they have little in common with local elected judges in the grander sense. [Three of the active judges are graduates of Harvard Law, two are graduates of UVA, I believe one is from Notre Dame, and I'm fairly sure another is is from Duke. (And I think two are from Tulane, Barkett went to like UF, but she's a special case.) ] Such shenanigans as you've outlined do not happen in a Federal Circuit Court of Appeal.
be still my heart. [actual knowledge in a slashdot legal discussion.] and at one point, albeit briefly, we had a sort of federal contract law -- Tyson v Swift! ...and then erie came along.
Technically it's "conversion" -- and there are causes of action in tort for it.
Actually, not per se. If you grant them an easement to cross your land and the berry bushes are on the strip of land in the easement, then the answer is "it depends." If you use real covenants, then the question would be one of "hardship to the servient estate." Since covenants in gross can only be enforced by charitable organizations, homeowners associations and government entities, it would have to be appurtenant -- which would require they be a nearby landower. It *SOUNDS* like what you want to grant them is a conditional license; which has its own can of worms. (Because it can become irrevocable; easements by estoppel.)
In short: Your analogy fails because a) property law is more complex than you make it out to be, and b) the application of traditional property law to the internet is not as clearcut as you make it out to be.
It's too bad they dont have the luxury of pulling a Newdow "oh gee you dont have standing" to make the case go away. The luxury provided by certiorari!
Register.com v Verio is in the same vein as AP v INS and ebay v bidder's edge. It's more about right to exclude a COMPETITOR than the general public. (i.e. quasi property right.) Richard Dinon's case is just crappy lawyering and poor framing of the issue.
When in college [I went to a...liberal arts school in New Haven, Connecticut] I always commented that I felt like it was always precipitating in New Haven. Always. Raining in the spring/fall, and snowing in the winter. And then the freezing rain, hail, etc etc made life miserable. So junior year I proposed we form the:
Connecticut League In Times Of Rain, Ice & Snow.
Unfortunately, it was doomed before it began.
Step-Saver and Gateway hold otherwise. You can't EULA around the warantee of merchantability (or fitness for purpose) but otherwise, you're golden. I'm sure Todd Rakoff would agree with you, but not everyone else would. (In Easterbrook's court, you'd be laughed at....) Modern contracts doctrine has done away with many instances of consideration, one of the few places where it is required is to form binding (i.e. non-revocable) option contracts. There are plenty of places where "consideration" isn't really needed.... [Unilateral contracts, promissory estoppel, the UCC....]
This holding and EULAs can both stand. This holding has nothing to do with contract law at all. Few, if any of the posters in this thread have any real legal knowledge whatsoever. Unilateral contracts barely require consideration; most nominal considerations are held valid, and under the UCC the only thing that requires non-nominal consideration is a binding option contract. Please, don't believe what you read on slashdot from IANALs.
Where do you practice? [Any friend of Kjella's is a friend of mine!]
Property owners that shoot trespassers will end up going to jail for attempted murder in virtually any US jurisdiction, unless you're talking "breaking and entering my home in the middle of the night." I can't tell if you're trying to bait me or asking a serious question. If the latter, post some contact info and I'll explain the state of the law to your heart's content. I was merely discussing adverse posession. I can assure you, the use of force to combat civil conversion of property is a crime anywhere in the united states, no matter what you have posted. [If someone trespasses on your SHOOTING RANGE and you have a sign posted that says "trespassers will be shot" and they get shot, you're probably screwed. If you have a sign up that says "THIS IS A SHOOTING RANGE, YOU MAY BE IN DANGER" and you tell the cops that you intentionally shot him, you're also screwed. You cannot post a sign that says "trespassers may be shot." Signs that say "beware of dog" are akin to the signs that say "this is a shooting range." If you *intentionally* "release the hounds" (i.e. an attack dog) on a trespasser you will go to jail.)
thank you for having a clue. this is one of the more frustrating stories on /. since long before I started law school. The american populace in general has a fundamental misunderstanding of how our court system works; it seems slashdot especially so, despite the seemingly high level of intelligence of many of the posters, they just seem to blatatly mouth off with no idea that they're missing the mark. Your post was a breath of fresh air.
If you are a private entity you must have selectivity criteria. If you do not have actual selectivity criteria, you are open to the public, and therefore a public accomodation. Basically this ruling is that a nominal selectivity criteria (i.e. voluntary self selection) is NOT one. This is nothing new at all.
See e.g. Desnick v ABC 44 F.3d 1345; Food Lion v Capital Cities, 194 F3d 505, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966), Uston v Resorts Internation 445 A2d 370; Dale v BSA 734 A2d 1196 rev sub nom BSA v Dale 530 US 640.
But see/but CF National Organization of Women v Little League Basketball, 338 A2d 198; and ESPECIALLY see Kiwanis Int'l v. Ridegewood Kiwanis Club, 806 F2d 468.
SCOTUSBLOG is one good one. . If you'd like the other blogs typically read by the law school community, I will hook you up if you provide an email address. As the most recent posts to this article (on the ACSblog) have shown, slashdotters are not adding anything constructive to the debate, as by and large they all start with IANAL and then say something that is not only wrong, but generally laughably so. *sigh*
...the problem is Snow sued under the SCA rather than traditional contract theory. Of course, they violated their "contract" -- so the court would award him WHAT at best? An injunction? Because he couldn't have set up an IP blacklist to get that already? Seriously, the difference here is between contract law and a form of "public access" (public accomodations) law. If you are a private club with no serious barriers to entry, you cannot claim to be a private club, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966).
Because he wanted to nail them with an SCA violation. At law? Nominal damages at best. At equity would have been....an injunction?! Yeah, because he wouldn't have been able to get that with with an IP blacklist. No court is going to award any serious damages under contract law...
This changes absolutely nothing. This has nothing to do with contracts, but "public" vs "private." Basically, in order for something NOT to be considered "public" you must have meaningful screening. Consider a "private club" that allows anyone to join -- it is no longer a private club according to the LEGAL definition of such. Step-Saver, Gateway and the traditional e-Commerce contracts cases (Box-top and clickwrap EULAs) are completely untouched by this.