"Zero-tolerance" is an american term invented to justify the lawyers actions. It's a shame that the US judiciary system allows itself to be abused that way, for so little and insignificant things.
You are confused. "Zero tolerance" was with respect to the theater, they alway file charges in other words. There is no "zero tolerance" with respect to sentencing in this regard, a judge has the discretion to take the context of the offense into consideration and just give her a slap on the wrist.
You also misrepresent "zero tolerance", under some circumstances it is reasonable. For example in some states if someone reports being assaulted in a domestic abuse situation the police must arrest the person who committed the assault.
The main difference here is that in the US sentences are added up upon one another, whereas in most of the rest of the world they run concurrently.
I believe concurrent sentences are by far the norm in the US as well. Sometimes it is even a statutory requirement that sentences be concurrent if the various offenses stem from the same instance of criminal conduct. Perhaps you are confused by various modifiers where years are added for possesion of a gun, selling drugs near a school, etc.
"The US constitution grants an exclusive right for a limited amount of time."
Yes it does. And it does that to encourage the development and sale of the patented item for the improvement of society overall...
However the manufacture and sale of a product does not need to be by the inventor. The framers of the constitution understood that an inventor may not have the resources to bring something to market, this was probably more true in their day than ours, hence the licensing of rights to patented technology to someone who does have the necessary resources.
... People who don't use their patents in this manner should lose them, because they're holding up the benefits to society in an attempt to profit handsomely from it, rather than being out there selling it to benefit society.
You do realize that the company in question does ship products?
Yeah, I got the reference, but the joke was a poor fit. Hence the remarks about consoles not being outlawed, etc. Also, although it is a joke, it does reflect a knee jerk sentiment many have.
Really? If they win, would the law forbid Sony or other developers from creating games for the existing consoles?
If the PS/3 were pulled from the market developers would drop it. All their calculations that justify their current projects expect the PS/3 to be selling and increasing the number of potential customers for years.
It's bound to be worth something on eBay one day.....
Not really. The sentiment you express encourages people to keep junk so modern items will be far less scarce are therefore go for a lower price. Also consider net present value, http://en.wikipedia.org/wiki/Net_present_value. Imagine you could sell the PS3 for $1,000 in 10 years. Today a 10 year treasury bond is yielding about 4.8%. So that $1,000 10 years in the future is worth about $625 dollars today. However that is not a fair comparison, PS3 speculation is risky, a treasury bond is not. A better comparison might be the stock market, let assume a 7% annual yield. That future $1,000 is now worth around $508.
A company who has failed to do anything noteworthy with patented technology in 16 years doesn't deserve to have the patent... Has anyone ever even heard of this company, or anything they've done ?
You hearing about it would hardly be necessary for something to be noteworthy. Shall we check to see how nobel prize topics you have heard about?
If you had the same situation where you could point a finger and say "it was him" then I would agree with you but these businesses are super massive and no one is ever to blame.
Software is different. Revision control will indicate who introduced the offending code.
They can have my PS3 when they pry it from my cold, dead, hands!
Really? Consider that if they win there will never be another PS3 game, you would not accept Sony's refund and return it? It's not like the government is banning private ownership of games console. Or that most of the PS3 games under development would not get ported to some other system.
As far as I'm aware, there's no patent police to come kick down my door and take my PS3, so what exactly do they expect to happen if they win?
Do you really think people are going to volunteer to have their PS3 destroyed because you patented the computer processing version of the assembly line?
You will voluntarily accept Sony's refund. Why? Because that $500+ console will never see another new game. Development of PS3 games will stop if the PS3 is pulled from the market. Developers will probably be filing law suits to recoup their expenses to date.
... I assume this bill will only apply to people and not companies as it says..
criminalize some forms of "attempted infringement."
Say for example a company steals some GPL work they won't see any Jail time and/or penalties but a person who steals the companies work will get the full force of this bill. Not that the two are related but its the best analogy I could think of.
You are mistaken. A person is not shielded from criminal prosecution because they acted as an employee rather than an individual.
>"Also driving itself is not a right, it is a privelage."
No, it is actually a right, not a privilege. It's even an enumerated right: See the Fifth Amendment of the US Constitution.
Actually, I think you should see it:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Also, you should look at the 10th since it is the most relevant to states declaring that driving an automobile on public roads is a privilege:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
ah, so I have the right to obfuscate my license plate if no human police officer is looking at it at the moment?...
No, your department of motor vehicle regulations probably prohibit obscuring your license plate at any time. Also driving itself is not a right, it is a privelage. Your car would be an "effect" in the 4th ammendment context so searching the interior of your car would involve a right.
... or my appearance to any surveillance camera so long as I'm not committing a crime?
Most likely. However wearing a mask in certain contexts may create probable cause that would justify a search, and people and merchants would certainly be within their rights to refuse service in many contexts. So the mask may be counterproductive.
If the idea is "innocent until guilty", then the innocent ought to be given the *rights* of an innocent man, not just have lip-service paid to it. One of those rights is not to be constantly under surveillance by police...
No one is under surveilance since the are not being followed nor is their private space being violated. Random encounters in public is not surveillance.
... in that respect it's very similar to having to produce "papers" at checkpoints...
No, it is very different. You are not stopped or otherwise interfered with.
... and having the checkpoint-cop record your movement for later use. The 4th amendment may be what they're thinking is being infringed...
The 4th is about search and seizure, neither of which is occuring here , the 4th says nothing about the right not to be noticed in public:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..."
... is it reasonable for the cops to be constantly checking your details, or should there be some level of expected result before they are allowed to do so ?
I understand your sentiment and it is a creepy thing for the police to do, but your misrepresentations and exaggeration are hurting your otherwise legitimate question.
What possible objection could anybody have to be told "by the way, this is what we changed"?
Such a statement is meaningless and encourages bad habits. Unsophisticated consumers will falsely rely on such statements while the contract says that such statements are irrelevant. How does an irrelevant unenforcible statement help?
The legal system is far and away too complex for the majority of the country. Lawyers have an average IQ around 130. The general population has an average IQ of 100. Lawyers write and interpret laws for other lawyers. What possible chance does your average person off the street have to understand even a significant portion?
You do realize that when judges are deciding whether to enforce a contract or not they take such things into consideration? Different "rules" apply when the contract involves major corp vs major corp or merchant or indivual consumer; the power imbalance you describe is considered. Obfuscating language does get contracts invalidated.
All through the cold war, when the USSR truly wanted to destroy the US, AND the USSR had backpack nukes, the US/Canada border was open. If the border could be open then, when one or 2 individuals could have walked into the US with a nuke, very realistically, why do I need a passport now? It's bullshit.
Overall I appreciate your post, but this one point is terribly superficial. The USSR was not suicidal, it's leaders loved their children and wanted them to live and prosper, they did not view a WW3'ish scenario as a prophesized day of judgement where those fighting in the jihad get a free ticket to paradise.
I'm old enough to remember the first ATMs that had 20s, 10s and 5s and to have read stories about the occasional misloading of the 5s or 10s magazine with 20s. ATMs quickly evolved to 20s only. Years later I was in Las Vegas and asked an ATM for 240. I saw 4 bills come out and my initial reaction was "Sh*t, they are never going to believe me". Then I noticed two of the bills were 100s.
FWIW, ATMs in Europe dispense assorted denominations. However Euro denominations come in different sizes, so misloading magazines is not an issue there.
Breaking a machine, or in this case taking advantage as a broken machine is criminal activity. But unless I can prosecute the CEO of bank for criminal negligence when I have no money for week due to the firms mistake, then I don't see how the bank should charge me for criminal activity when their machines give me $400 instead of $100.
The first time is an accident and you should not go to jail. However, if you continue asking for $100 then you are knowingly comitting a crime and should go to jail. I expect that the people to be prosecuted are those who engaged in the latter.
They can bankrupt me with no significant repercussion...
You can sue them. And if the CEO knowingly repeatedly "improperly credits a bad check" he can go to jail to. Things seem perfectly symetrical to me. Either compare one accident to one accident or repeated abuse to repeated abuse, not one accident to repeated abuse.
It isn't that contracts can't be changed, but that contracts shouldn't be changed without clearly highlighting and specifying the specific changes. Make all the changes you like, but make sure that all parties have at least a fighting chance to know what is different.
That wouldn't work. Many contracts have an integration clause that means everything said or written in the past is now irrelevant and that the current contract represents a complete and final expression of the agreement. Also, there is the general principle that people should read the new contract in its entirety, highlights and other shortcuts should not be employed to avoid such a reading. I understand your sentiment but like many well meaning politicians I think your proposed solution will have many unintended negative consequences.
"In the U.S. I believe it is called an adhesion contract and they are generally valid as long as the terms are reasonable, reasonable to a judge not slashdot readers.:-) To be unreasonable, or more accurately legally unconscionable, oppression or surprise is usually involved."
Or something that wouldn't have been agreed to, had any reasonable person actually read the contract. Another way of looking at it is that if the offerror of the contract had reason to believe it wouldn't have been agreed to had the terms been known, the terms are definitionally "unconcionable."
These "contracts" are mostly invalid in the first place.
You are mistaken. Terms that require arbitration may be perfectly binding. Terms that are considered unconscionable and void would be those that are one sided. I believe one of the classic rulings on this matter was a situation where a company required arbitration but then retained the right to appeal. The right to appeal was what the judge considered one sided, not requiring arbitration in the first place.
It should be illegal to impose unilateral changes to a contract without clearly highlighting and specifying the specific changes.
No, replacing one reasonable adhesion contract with a second reasonable adhesion contract should remain legal. The law prohibits unconscionable contracts and protects the consumer in this regard in both the first and the second contract.
Slashdot Mirror
"Zero-tolerance" is an american term invented to justify the lawyers actions. It's a shame that the US judiciary system allows itself to be abused that way, for so little and insignificant things.
You are confused. "Zero tolerance" was with respect to the theater, they alway file charges in other words. There is no "zero tolerance" with respect to sentencing in this regard, a judge has the discretion to take the context of the offense into consideration and just give her a slap on the wrist.
You also misrepresent "zero tolerance", under some circumstances it is reasonable. For example in some states if someone reports being assaulted in a domestic abuse situation the police must arrest the person who committed the assault.
The main difference here is that in the US sentences are added up upon one another, whereas in most of the rest of the world they run concurrently.
I believe concurrent sentences are by far the norm in the US as well. Sometimes it is even a statutory requirement that sentences be concurrent if the various offenses stem from the same instance of criminal conduct. Perhaps you are confused by various modifiers where years are added for possesion of a gun, selling drugs near a school, etc.
"The US constitution grants an exclusive right for a limited amount of time."
...
... People who don't use their patents in this manner should lose them, because they're holding up the benefits to society in an attempt to profit handsomely from it, rather than being out there selling it to benefit society.
Yes it does. And it does that to encourage the development and sale of the patented item for the improvement of society overall
However the manufacture and sale of a product does not need to be by the inventor. The framers of the constitution understood that an inventor may not have the resources to bring something to market, this was probably more true in their day than ours, hence the licensing of rights to patented technology to someone who does have the necessary resources.
You do realize that the company in question does ship products?
Yeah, I got the reference, but the joke was a poor fit. Hence the remarks about consoles not being outlawed, etc. Also, although it is a joke, it does reflect a knee jerk sentiment many have.
Really? If they win, would the law forbid Sony or other developers from creating games for the existing consoles?
If the PS/3 were pulled from the market developers would drop it. All their calculations that justify their current projects expect the PS/3 to be selling and increasing the number of potential customers for years.
It's bound to be worth something on eBay one day .....
Not really. The sentiment you express encourages people to keep junk so modern items will be far less scarce are therefore go for a lower price. Also consider net present value, http://en.wikipedia.org/wiki/Net_present_value. Imagine you could sell the PS3 for $1,000 in 10 years. Today a 10 year treasury bond is yielding about 4.8%. So that $1,000 10 years in the future is worth about $625 dollars today. However that is not a fair comparison, PS3 speculation is risky, a treasury bond is not. A better comparison might be the stock market, let assume a 7% annual yield. That future $1,000 is now worth around $508.
They're not being harmed competitively by it since they have no apparent product harmed by it.
The harm is that their patented technology was not licensed. The US constitution grants an exclusive right for a limited amount of time.
A company who has failed to do anything noteworthy with patented technology in 16 years doesn't deserve to have the patent ... Has anyone ever even heard of this company, or anything they've done ?
You hearing about it would hardly be necessary for something to be noteworthy. Shall we check to see how nobel prize topics you have heard about?
If you had the same situation where you could point a finger and say "it was him" then I would agree with you but these businesses are super massive and no one is ever to blame.
Software is different. Revision control will indicate who introduced the offending code.
They can have my PS3 when they pry it from my cold, dead, hands!
Really? Consider that if they win there will never be another PS3 game, you would not accept Sony's refund and return it? It's not like the government is banning private ownership of games console. Or that most of the PS3 games under development would not get ported to some other system.
As far as I'm aware, there's no patent police to come kick down my door and take my PS3, so what exactly do they expect to happen if they win? Do you really think people are going to volunteer to have their PS3 destroyed because you patented the computer processing version of the assembly line?
You will voluntarily accept Sony's refund. Why? Because that $500+ console will never see another new game. Development of PS3 games will stop if the PS3 is pulled from the market. Developers will probably be filing law suits to recoup their expenses to date.
... I assume this bill will only apply to people and not companies as it says..
criminalize some forms of "attempted infringement."
Say for example a company steals some GPL work they won't see any Jail time and/or penalties but a person who steals the companies work will get the full force of this bill. Not that the two are related but its the best analogy I could think of.
You are mistaken. A person is not shielded from criminal prosecution because they acted as an employee rather than an individual.
>"Also driving itself is not a right, it is a privelage."
No, it is actually a right, not a privilege. It's even an enumerated right: See the Fifth Amendment of the US Constitution.
Actually, I think you should see it:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Also, you should look at the 10th since it is the most relevant to states declaring that driving an automobile on public roads is a privilege:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
ah, so I have the right to obfuscate my license plate if no human police officer is looking at it at the moment? ...
... or my appearance to any surveillance camera so long as I'm not committing a crime?
No, your department of motor vehicle regulations probably prohibit obscuring your license plate at any time. Also driving itself is not a right, it is a privelage. Your car would be an "effect" in the 4th ammendment context so searching the interior of your car would involve a right.
Most likely. However wearing a mask in certain contexts may create probable cause that would justify a search, and people and merchants would certainly be within their rights to refuse service in many contexts. So the mask may be counterproductive.
If the idea is "innocent until guilty", then the innocent ought to be given the *rights* of an innocent man, not just have lip-service paid to it. One of those rights is not to be constantly under surveillance by police ...
... in that respect it's very similar to having to produce "papers" at checkpoints ...
... and having the checkpoint-cop record your movement for later use. The 4th amendment may be what they're thinking is being infringed ...
..."
... is it reasonable for the cops to be constantly checking your details, or should there be some level of expected result before they are allowed to do so ?
No one is under surveilance since the are not being followed nor is their private space being violated. Random encounters in public is not surveillance.
No, it is very different. You are not stopped or otherwise interfered with.
The 4th is about search and seizure, neither of which is occuring here , the 4th says nothing about the right not to be noticed in public:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures
I understand your sentiment and it is a creepy thing for the police to do, but your misrepresentations and exaggeration are hurting your otherwise legitimate question.
What possible objection could anybody have to be told "by the way, this is what we changed"?
Such a statement is meaningless and encourages bad habits. Unsophisticated consumers will falsely rely on such statements while the contract says that such statements are irrelevant. How does an irrelevant unenforcible statement help?
The legal system is far and away too complex for the majority of the country. Lawyers have an average IQ around 130. The general population has an average IQ of 100. Lawyers write and interpret laws for other lawyers. What possible chance does your average person off the street have to understand even a significant portion?
You do realize that when judges are deciding whether to enforce a contract or not they take such things into consideration? Different "rules" apply when the contract involves major corp vs major corp or merchant or indivual consumer; the power imbalance you describe is considered. Obfuscating language does get contracts invalidated.
All through the cold war, when the USSR truly wanted to destroy the US, AND the USSR had backpack nukes, the US/Canada border was open. If the border could be open then, when one or 2 individuals could have walked into the US with a nuke, very realistically, why do I need a passport now? It's bullshit.
Overall I appreciate your post, but this one point is terribly superficial. The USSR was not suicidal, it's leaders loved their children and wanted them to live and prosper, they did not view a WW3'ish scenario as a prophesized day of judgement where those fighting in the jihad get a free ticket to paradise.
That may be true, but according to his post it isn't Halvar's understanding of the situation.
;-)
Perhaps you should consider a different argument, don't the facts of this case already prove that his understanding of things is not very reliable?
I'm old enough to remember the first ATMs that had 20s, 10s and 5s and to have read stories about the occasional misloading of the 5s or 10s magazine with 20s. ATMs quickly evolved to 20s only. Years later I was in Las Vegas and asked an ATM for 240. I saw 4 bills come out and my initial reaction was "Sh*t, they are never going to believe me". Then I noticed two of the bills were 100s.
FWIW, ATMs in Europe dispense assorted denominations. However Euro denominations come in different sizes, so misloading magazines is not an issue there.
Breaking a machine, or in this case taking advantage as a broken machine is criminal activity. But unless I can prosecute the CEO of bank for criminal negligence when I have no money for week due to the firms mistake, then I don't see how the bank should charge me for criminal activity when their machines give me $400 instead of $100.
...
The first time is an accident and you should not go to jail. However, if you continue asking for $100 then you are knowingly comitting a crime and should go to jail. I expect that the people to be prosecuted are those who engaged in the latter.
They can bankrupt me with no significant repercussion
You can sue them. And if the CEO knowingly repeatedly "improperly credits a bad check" he can go to jail to. Things seem perfectly symetrical to me. Either compare one accident to one accident or repeated abuse to repeated abuse, not one accident to repeated abuse.
It isn't that contracts can't be changed, but that contracts shouldn't be changed without clearly highlighting and specifying the specific changes. Make all the changes you like, but make sure that all parties have at least a fighting chance to know what is different.
That wouldn't work. Many contracts have an integration clause that means everything said or written in the past is now irrelevant and that the current contract represents a complete and final expression of the agreement. Also, there is the general principle that people should read the new contract in its entirety, highlights and other shortcuts should not be employed to avoid such a reading. I understand your sentiment but like many well meaning politicians I think your proposed solution will have many unintended negative consequences.
"In the U.S. I believe it is called an adhesion contract and they are generally valid as long as the terms are reasonable, reasonable to a judge not slashdot readers. :-) To be unreasonable, or more accurately legally unconscionable, oppression or surprise is usually involved."
Or something that wouldn't have been agreed to, had any reasonable person actually read the contract. Another way of looking at it is that if the offerror of the contract had reason to believe it wouldn't have been agreed to had the terms been known, the terms are definitionally "unconcionable."
Is this "surprise"?
These "contracts" are mostly invalid in the first place.
You are mistaken. Terms that require arbitration may be perfectly binding. Terms that are considered unconscionable and void would be those that are one sided. I believe one of the classic rulings on this matter was a situation where a company required arbitration but then retained the right to appeal. The right to appeal was what the judge considered one sided, not requiring arbitration in the first place.
It should be illegal to impose unilateral changes to a contract without clearly highlighting and specifying the specific changes.
No, replacing one reasonable adhesion contract with a second reasonable adhesion contract should remain legal. The law prohibits unconscionable contracts and protects the consumer in this regard in both the first and the second contract.
Actually clickwrap contracts have often been ruled valid. See http://slashdot.org/comments.pl?sid=257287&cid=200 34401 to avoid a redundant thread.