I know Wired isn't running this little Anti-Reality script/proggie/whatever the hell it's supposed to be, but I think they might be doing something similar since they redesigned the layout of their site. I have Tweak-XP, which makes use of an ad blocker. I keep updating my list of blocked sites regularly (pretty much anytime I notice an ad getting through). Some sites (like MSNBC and, to some extent, Wired) have taken to hosting some of their regular graphics on ad servers. The result is that you won't get access to their pictures unless you don't block their ads. Of course, this makes for a rather unusual view for MSNBC, as nearly the entire page has little "Blocked By Tweak-XP" graphics.
The interesting thing that I noticed is that since the layout change, if I surfed to Wired with the server for their ads blocked it would redirect me to their "Less Cool-Looking" page. Same news, just all the swank graphics gone with a message about how my browser doesn't support basic web standards. I'm wondering if Wired isn't running some sort of similar deal to what this story is talking about. You know, if you're blocking their ads then they send you to their much more lame page instead of getting the good one. You still get the news, it just doesn't look as pretty. I realize this could just be a side effect of something else they were doing with the layout change, but it still seems curious.
Her bill that she introduced near the end of this legislative session (the companion bill to Boucher's) would formally extend the doctrine of first sale to cover this sort of situation (i.e. once you've purchased a license, you can transfer your rights to another person or entity without the permission of the copyright owner). Then we wouldn't even be talking about all this.
Just line the outside of your camera lens with Post-It notes and you'll be fine...Wait a minute! Did I just violate the DMCA??? Please disregard the previous statement.
No one's "being a dick." Loser argument does not mean "only a loser would make it," it means "it would lose in court." He asked a question, I answered it with a legal analysis.
You already addressed the first problem: who is the government taking the property from? The public domain is an abstract concept, and it's highly doubtful a majority of the court (or even a few justices) would choose to extend the reach of the takings clause to include things that "belong" to the public generally. If anything, that would be more akin to something like a park (as public land, also "belonging" to the people) and re-zoning it for use by a corporation. The government isn't really "taking" anything away from an identifiable person or group, and the public generally has never been seen to have collective rights under the takings clause.
Furthermore, even if one could successfully argue that the takings clause would apply, the government's actions would easily pass the required test. An action will not be considered a taking if it "substantially advances a legitimate state interest." See Lucas v. South Carolina Coastal Council. Here, the state is advancing a legitimate interest (protection of copyrights, trust me the courts would accept that as legitimate). It is "substantially advanced" because Congress's actions have a direct impact on the value of copyrights.
Bottom line, the argument is a total loser and I couldn't see it ever working in a court. We're much better off challenging on First Amendment (where the standards are much more strict) and Copyright Clause grounds.
Boucher and Lofgren are well aware of the fact that these bills will not pass this year. That isn't why they introduced them. They're trying to stake out their position, line up their supporters, and show that this is a major issue. If they had just waited until next year and introduced them cold, they might not get much reception. As it stands now, when the bills (or maybe it'll be down to one by then, I'm not really sure) get brought up again next session, people will be expecting them and the fight will be on.
Furthermore, they are limiting this to just music for two reasons. First of all, these sorts of fair use rights don't have the same force when applied to your standard computer software that they do when applied to music and movies. Yes, I'm aware (are so are Boucher/Lofgren) that many people want to make backup copies of software. However, most people (especially those in Congress) see less of a coorelation between copying software and fair use than they do between copying software and piracy. Music is different. With music, I can rip my music from a CD and keep it as an MP3 (or Ogg, if you will) on my computer and listen to it there, transfer it to my MP3 player, mix and burn my own CD's (like the tape compilations we all made before CD burners became widely available), etc. These are rights that have a waiting market to exploit them, and the markets have been working for years. Boucher/Lofgren can cast their arguments in terms of simply keeping consumers with the same rights they've always had. These uses don't really exist in the same way with software because no one needs to be able to rip a program from a CD in order to install it to their Palm Pilot. However, they do need to be able to copy it do distribute it online. By limiting the operation of the bill to only music (I think Lofgren's also includes movies and other media), it's easier to keep the focus where it should be: on consumers and off of pirates.
Another thing to consider is that Boucher/Lofgren need the backing of tech companies right now. There has to be a powerful lobby behind this thing, because I can guarantee you that unless some big money makers get into the fight these bills will die a cold, hard death. You are never going to get big tech companies (at least not tech companies that put out any kind of computer software) to support a bill that specifically tells consumers they can break the tech companies' copy protection. We can keep the tech companies happy for the moment by leaving them out, and then make the argument after the bill passes that software should be included as well. After all, what's good for the goose is good for the gander. Hell, Valenti and Rosen might even back something like that as a retaliation for tech companies backing the Boucher/Lofgren bills. The more we do to keep them fighting against each other, the more we win.
I was wondering if a properly written clause would protect me from anti defamation lawsuits?
For example, a statement that says everything I said was just my personal opinion? I think I've seen these before but I would like to know how much legal weight they carry?
Something Like:The views and opinions, if any, expressed (or implied) by any, all, or part of are strictly opinions and not stating fact. You cannot sue me now ha ha ha.
Or something like that.
Unfortunately, that's not going to cut it, for two reasons:
1. Whether your post contains "facts" (which could potentially be actionable) or "opinions" (which aren't) is something determined by the content of the post itself, not the text of your disclaimer. So, if you said, "Bill Gates was Hilter's right hand man and last week molested four school children and raped a goat. But that's just my opinion, so he can't sue me," you won't be protected. The statement is clearly factual in nature.
2. Even if you could, it wouldn't matter anyway. The point of what's going on here is not on the merits of any one defamation case. What's happening is these ultra-sensitive CEO's are filing lawsuits against people that probably have no basis whatsoever to them. Then, one of two things happens: either 1.) they try to "notify" them in such a way that they never actually find out they're being sued (which gives the CEO a default judgment for whatever he's asking for regardless of the merits of the case), or 2.) they do what they did to the lady mentioned in the story. They have their lawyers call you up and basically let you know that you'll have to defend a long, drawn-out, out of state court battle that will suck out all your money and they'll win anyway, or you could just play nice and retract your statements. Either way, they get around having to deal with the First Amendment by never actually having to try the case in the first place. If one of these suits was actually litigated, it would be thrown out of court immediately.
The First Amendment standards for advocating overthrow/violent action are much higher than your statement lets on. Yes, Justice Holmes' "crowded theater" comment is frequently cited, but it has never been used as any sort of standard or test. The test (refined over the course of many years) is whether or not the speech in question created a "clear and present danger" that such violent action would occur. The clear and present danger test, after Brandenburg v. Ohio, is an extremely diffucult test for the government to pass. Basically, you have to have a massive crowd in front of you, have everyone in the crowd armed with weapons, as essentially control the crowd to the point where you could just yell, "Kill!" and they all would attack before you can be prosecuted. This extremely high bar was/is used because when the test was less stringent, the government was basically trampling all over the rights of alleged Communists/Communist sympathizers (see "McCarthyism"), as well as any other group they didn't particularly like at the time.
Oh, and the Constitution does not provide for abolishing or changing the government. Arguably this can be done through amending the constitution, but I don't think that's what you were getting at. The stuff about casting off an existing government when it fails the people comes from the Declaration of Independence (where it was stolen from John Locke), which is not actually a part of the laws of the USA.
Since it seems as though you missed the point on all three of my points, I will reiterate them.
1. You actually made my point here by acknowledging that some usages of the word are non-vulgar. Don't make me some poster child for relaxation of politeness rules. It's not being impolite for me to tell you that something else is not quite my cup of tea. Nor is it so to tell you that something sucks. If I told you that you suck, your company sucks, your car sucks, etc., that would probably be impolite. Not because I'm using the word "sucks", but because I would be insulting you. I'm not insulting you, and neither is anyone else. They are, however, insulting Microsoft, Universal, etc.
BTW, you don't have to be rude to telemarketers. You don't have to slam the phone down either. Tell them as soon as they call to put your name on their "Do Not Call" list. They are all required by federal regulations to maintain one. And they are required to not remove names from it. Don't ask to be "taken off their list", that just removes you from the DO CALL list, which is renewed every few days and you'll be back on again. However, once you get on the "Do Not Call" list, you probably won't get anymore calls. I just got one last week, and it's the first telemarketer in two years to call me.
2. Perhaps I didn't make my second point sufficiently clear. I wasn't saying that sucks is easy to type. I was saying that it's something that's easy to think of and easy to find. Like I said before, if you want to find a page that's anti-Microsoft, you could type in as a starting point "Microsoftsucks.com". This is easy for someone to think of and it would probably be the first thing they think of. So, having the word is great for the webmaster of the site (since, after all, he/she probably would want people to find the page) and probably increases the unique hits on the site. It's an easy draw for webmasters. Not because the word is somehow "evil", but because it's something easy to think of for someone seeking that kind of page. That's why "bad" and "evil" don't quit work. Microsoftbad.com? Not quite the first thing that comes to my mind if I was looking for something like that.
3. Some people call these things jokes. A few of them also laugh at them from time to time. Since you apparently didn't get it, I'll explain it to you. You requested flaming from all the "ACLU-ers" out there. The manner in which you did it seemed to imply that you felt as though we are all illiterate trolls that have to be "l33t" whenever we post. So, in order to satisfy your request, I decided to comply. Next time, I will signal the joke before I post it.
I think the important thing to keep in mind here (for First Amendment purposes) is not what the domain name is, but rather what is one the site itself. I doubt most of these sites take you to a page that simply says, "Micro$oft $ux$, d00dz!!!!!!!" To be sure, there are certainly a bunch of illiterate trolls out there that do just that. However, with the vast majority of these sites, they are operated by people with an IQ higher than 4 that just want a place to vent. Or in the case of the Universalsucks.com guy who has all the *sucks.com sites, you get to go to a message board to vent about them yourself. It's this type of public debate about public issues (both political and commercial) that, if nothing else, the First Amendment certainly protects.
As to your argument that "sucks" is a vulgarity, I have three responses.
1.) Get over it. There are no bad words. Bad thoughts? Yes. Bad intentions? Certainly. But bad words? Words are simply what you make of them. Suck can be used in a bad way. "Hey baby, why don't you suck my ****???" Certainly would be considered, at the very least, crude and insensitive. However, saying, "Microsoft sucks, and here's why..." is neither crude nor insensitive. It is a spark for intelligent public debate. Plus, the word has force.
"Microsoft is not a good company."
"Microsoft sucks."
Which of those two sentences more accurately portrays my utter lack of respect for their worthless institution? Obviously the second one, and it's a hell of a lot more concise than the explanation sentence following it.
2. *sucks.com domains use the word sucks because it's easy. You want to find out what people who hate M$ have to say? Try going to "Microsoftsucks.com" How about AOL? Maybe AOLsucks.com. It is simply an easy way to make your gripe site found. What's the alternative? "Microsoftisabadanevilbunchofwussies.com"? Is that something that people are honestly going to think of to type in? We need to keep this simple; there's a lot of stupid people out there.
3. UR just j3@lou$ th@t uz W@R3Z d00dz i$ c0013r than U!!!!!!!!!!!!!!!!!!!!!! M1CR0$OF7 $UCK$!!!!!!!
Actually, the second amendment isn't interpreted in either of the two ways you mentioned. The second one is close to the NRA's interpretation, although they typically use language that is quite broader (Something like, "Absolute right of individuals to keep/carry a gun free from any governmental interference.").
The Supreme Court's interpretation, however, is quite different. Under the Court's view, the second amendment is not seen as granting (or "recognizing", however you want to look at it) any individual rights at all. Rather, it is seen as a check on the power of the federal government to control the states. As sovereign entities, they need to be able to maintain an armed militia to keep the federal government from being able to use the army to just roll over them (so the interpretation goes). Thus, Congress is unable to pass any laws that impinge upon the states' ability to maintain such a militia.
Some might say that, under this view, Congress should not be allowed to pass any gun regulations at all because the second amendment leaves that power to the states. However, the Supreme Court basically says that these regulations are only unconstitutional if they significantly interfere with situations having a "reasonable relationship" to the preservation or efficiancy of a well armed militia. So, licensing schemes, banning certain types of guns from the public (i.e. assault rifles), etc., are okay because the states can still maintain an armed militia if they so desire. The weapons banned are not necessary for a militia, and typically police and National Guard forces are excluded from regulations of these kinds.
You can agree or disagree with this interpretation, I don't really care. I'm just here to report.:)
Slashdot Mirror
I know Wired isn't running this little Anti-Reality script/proggie/whatever the hell it's supposed to be, but I think they might be doing something similar since they redesigned the layout of their site. I have Tweak-XP, which makes use of an ad blocker. I keep updating my list of blocked sites regularly (pretty much anytime I notice an ad getting through). Some sites (like MSNBC and, to some extent, Wired) have taken to hosting some of their regular graphics on ad servers. The result is that you won't get access to their pictures unless you don't block their ads. Of course, this makes for a rather unusual view for MSNBC, as nearly the entire page has little "Blocked By Tweak-XP" graphics.
The interesting thing that I noticed is that since the layout change, if I surfed to Wired with the server for their ads blocked it would redirect me to their "Less Cool-Looking" page. Same news, just all the swank graphics gone with a message about how my browser doesn't support basic web standards. I'm wondering if Wired isn't running some sort of similar deal to what this story is talking about. You know, if you're blocking their ads then they send you to their much more lame page instead of getting the good one. You still get the news, it just doesn't look as pretty. I realize this could just be a side effect of something else they were doing with the layout change, but it still seems curious.
Any thoughts?
Her bill that she introduced near the end of this legislative session (the companion bill to Boucher's) would formally extend the doctrine of first sale to cover this sort of situation (i.e. once you've purchased a license, you can transfer your rights to another person or entity without the permission of the copyright owner). Then we wouldn't even be talking about all this.
Just line the outside of your camera lens with Post-It notes and you'll be fine...Wait a minute! Did I just violate the DMCA??? Please disregard the previous statement.
No one's "being a dick." Loser argument does not mean "only a loser would make it," it means "it would lose in court." He asked a question, I answered it with a legal analysis.
:)
And that's "3L wisdom", by the way.
You already addressed the first problem: who is the government taking the property from? The public domain is an abstract concept, and it's highly doubtful a majority of the court (or even a few justices) would choose to extend the reach of the takings clause to include things that "belong" to the public generally. If anything, that would be more akin to something like a park (as public land, also "belonging" to the people) and re-zoning it for use by a corporation. The government isn't really "taking" anything away from an identifiable person or group, and the public generally has never been seen to have collective rights under the takings clause.
Furthermore, even if one could successfully argue that the takings clause would apply, the government's actions would easily pass the required test. An action will not be considered a taking if it "substantially advances a legitimate state interest." See Lucas v. South Carolina Coastal Council. Here, the state is advancing a legitimate interest (protection of copyrights, trust me the courts would accept that as legitimate). It is "substantially advanced" because Congress's actions have a direct impact on the value of copyrights.
Bottom line, the argument is a total loser and I couldn't see it ever working in a court. We're much better off challenging on First Amendment (where the standards are much more strict) and Copyright Clause grounds.
Boucher and Lofgren are well aware of the fact that these bills will not pass this year. That isn't why they introduced them. They're trying to stake out their position, line up their supporters, and show that this is a major issue. If they had just waited until next year and introduced them cold, they might not get much reception. As it stands now, when the bills (or maybe it'll be down to one by then, I'm not really sure) get brought up again next session, people will be expecting them and the fight will be on.
Furthermore, they are limiting this to just music for two reasons. First of all, these sorts of fair use rights don't have the same force when applied to your standard computer software that they do when applied to music and movies. Yes, I'm aware (are so are Boucher/Lofgren) that many people want to make backup copies of software. However, most people (especially those in Congress) see less of a coorelation between copying software and fair use than they do between copying software and piracy. Music is different. With music, I can rip my music from a CD and keep it as an MP3 (or Ogg, if you will) on my computer and listen to it there, transfer it to my MP3 player, mix and burn my own CD's (like the tape compilations we all made before CD burners became widely available), etc. These are rights that have a waiting market to exploit them, and the markets have been working for years. Boucher/Lofgren can cast their arguments in terms of simply keeping consumers with the same rights they've always had. These uses don't really exist in the same way with software because no one needs to be able to rip a program from a CD in order to install it to their Palm Pilot. However, they do need to be able to copy it do distribute it online. By limiting the operation of the bill to only music (I think Lofgren's also includes movies and other media), it's easier to keep the focus where it should be: on consumers and off of pirates.
Another thing to consider is that Boucher/Lofgren need the backing of tech companies right now. There has to be a powerful lobby behind this thing, because I can guarantee you that unless some big money makers get into the fight these bills will die a cold, hard death. You are never going to get big tech companies (at least not tech companies that put out any kind of computer software) to support a bill that specifically tells consumers they can break the tech companies' copy protection. We can keep the tech companies happy for the moment by leaving them out, and then make the argument after the bill passes that software should be included as well. After all, what's good for the goose is good for the gander. Hell, Valenti and Rosen might even back something like that as a retaliation for tech companies backing the Boucher/Lofgren bills. The more we do to keep them fighting against each other, the more we win.
Just something to think about.
I was wondering if a properly written clause would protect me from anti defamation lawsuits? For example, a statement that says everything I said was just my personal opinion? I think I've seen these before but I would like to know how much legal weight they carry?
Something Like:The views and opinions, if any, expressed (or implied) by any, all, or part of are strictly opinions and not stating fact. You cannot sue me now ha ha ha.
Or something like that.
Unfortunately, that's not going to cut it, for two reasons:
1. Whether your post contains "facts" (which could potentially be actionable) or "opinions" (which aren't) is something determined by the content of the post itself, not the text of your disclaimer. So, if you said, "Bill Gates was Hilter's right hand man and last week molested four school children and raped a goat. But that's just my opinion, so he can't sue me," you won't be protected. The statement is clearly factual in nature.
2. Even if you could, it wouldn't matter anyway. The point of what's going on here is not on the merits of any one defamation case. What's happening is these ultra-sensitive CEO's are filing lawsuits against people that probably have no basis whatsoever to them. Then, one of two things happens: either 1.) they try to "notify" them in such a way that they never actually find out they're being sued (which gives the CEO a default judgment for whatever he's asking for regardless of the merits of the case), or 2.) they do what they did to the lady mentioned in the story. They have their lawyers call you up and basically let you know that you'll have to defend a long, drawn-out, out of state court battle that will suck out all your money and they'll win anyway, or you could just play nice and retract your statements. Either way, they get around having to deal with the First Amendment by never actually having to try the case in the first place. If one of these suits was actually litigated, it would be thrown out of court immediately.
The First Amendment standards for advocating overthrow/violent action are much higher than your statement lets on. Yes, Justice Holmes' "crowded theater" comment is frequently cited, but it has never been used as any sort of standard or test. The test (refined over the course of many years) is whether or not the speech in question created a "clear and present danger" that such violent action would occur. The clear and present danger test, after Brandenburg v. Ohio, is an extremely diffucult test for the government to pass. Basically, you have to have a massive crowd in front of you, have everyone in the crowd armed with weapons, as essentially control the crowd to the point where you could just yell, "Kill!" and they all would attack before you can be prosecuted. This extremely high bar was/is used because when the test was less stringent, the government was basically trampling all over the rights of alleged Communists/Communist sympathizers (see "McCarthyism"), as well as any other group they didn't particularly like at the time.
Oh, and the Constitution does not provide for abolishing or changing the government. Arguably this can be done through amending the constitution, but I don't think that's what you were getting at. The stuff about casting off an existing government when it fails the people comes from the Declaration of Independence (where it was stolen from John Locke), which is not actually a part of the laws of the USA.
Since it seems as though you missed the point on all three of my points, I will reiterate them.
1. You actually made my point here by acknowledging that some usages of the word are non-vulgar. Don't make me some poster child for relaxation of politeness rules. It's not being impolite for me to tell you that something else is not quite my cup of tea. Nor is it so to tell you that something sucks. If I told you that you suck, your company sucks, your car sucks, etc., that would probably be impolite. Not because I'm using the word "sucks", but because I would be insulting you. I'm not insulting you, and neither is anyone else. They are, however, insulting Microsoft, Universal, etc.
BTW, you don't have to be rude to telemarketers. You don't have to slam the phone down either. Tell them as soon as they call to put your name on their "Do Not Call" list. They are all required by federal regulations to maintain one. And they are required to not remove names from it. Don't ask to be "taken off their list", that just removes you from the DO CALL list, which is renewed every few days and you'll be back on again. However, once you get on the "Do Not Call" list, you probably won't get anymore calls. I just got one last week, and it's the first telemarketer in two years to call me.
2. Perhaps I didn't make my second point sufficiently clear. I wasn't saying that sucks is easy to type. I was saying that it's something that's easy to think of and easy to find. Like I said before, if you want to find a page that's anti-Microsoft, you could type in as a starting point "Microsoftsucks.com". This is easy for someone to think of and it would probably be the first thing they think of. So, having the word is great for the webmaster of the site (since, after all, he/she probably would want people to find the page) and probably increases the unique hits on the site. It's an easy draw for webmasters. Not because the word is somehow "evil", but because it's something easy to think of for someone seeking that kind of page. That's why "bad" and "evil" don't quit work. Microsoftbad.com? Not quite the first thing that comes to my mind if I was looking for something like that.
3. Some people call these things jokes. A few of them also laugh at them from time to time. Since you apparently didn't get it, I'll explain it to you. You requested flaming from all the "ACLU-ers" out there. The manner in which you did it seemed to imply that you felt as though we are all illiterate trolls that have to be "l33t" whenever we post. So, in order to satisfy your request, I decided to comply. Next time, I will signal the joke before I post it.
I think the important thing to keep in mind here (for First Amendment purposes) is not what the domain name is, but rather what is one the site itself. I doubt most of these sites take you to a page that simply says, "Micro$oft $ux$, d00dz!!!!!!!" To be sure, there are certainly a bunch of illiterate trolls out there that do just that. However, with the vast majority of these sites, they are operated by people with an IQ higher than 4 that just want a place to vent. Or in the case of the Universalsucks.com guy who has all the *sucks.com sites, you get to go to a message board to vent about them yourself. It's this type of public debate about public issues (both political and commercial) that, if nothing else, the First Amendment certainly protects.
As to your argument that "sucks" is a vulgarity, I have three responses.
1.) Get over it. There are no bad words. Bad thoughts? Yes. Bad intentions? Certainly. But bad words? Words are simply what you make of them. Suck can be used in a bad way. "Hey baby, why don't you suck my ****???" Certainly would be considered, at the very least, crude and insensitive. However, saying, "Microsoft sucks, and here's why..." is neither crude nor insensitive. It is a spark for intelligent public debate. Plus, the word has force.
"Microsoft is not a good company."
"Microsoft sucks."
Which of those two sentences more accurately portrays my utter lack of respect for their worthless institution? Obviously the second one, and it's a hell of a lot more concise than the explanation sentence following it.
2. *sucks.com domains use the word sucks because it's easy. You want to find out what people who hate M$ have to say? Try going to "Microsoftsucks.com" How about AOL? Maybe AOLsucks.com. It is simply an easy way to make your gripe site found. What's the alternative? "Microsoftisabadanevilbunchofwussies.com"? Is that something that people are honestly going to think of to type in? We need to keep this simple; there's a lot of stupid people out there.
3. UR just j3@lou$ th@t uz W@R3Z d00dz i$ c0013r than U!!!!!!!!!!!!!!!!!!!!!! M1CR0$OF7 $UCK$!!!!!!!
Hope that cleared things up.
Actually, the second amendment isn't interpreted in either of the two ways you mentioned. The second one is close to the NRA's interpretation, although they typically use language that is quite broader (Something like, "Absolute right of individuals to keep/carry a gun free from any governmental interference.").
:)
The Supreme Court's interpretation, however, is quite different. Under the Court's view, the second amendment is not seen as granting (or "recognizing", however you want to look at it) any individual rights at all. Rather, it is seen as a check on the power of the federal government to control the states. As sovereign entities, they need to be able to maintain an armed militia to keep the federal government from being able to use the army to just roll over them (so the interpretation goes). Thus, Congress is unable to pass any laws that impinge upon the states' ability to maintain such a militia.
Some might say that, under this view, Congress should not be allowed to pass any gun regulations at all because the second amendment leaves that power to the states. However, the Supreme Court basically says that these regulations are only unconstitutional if they significantly interfere with situations having a "reasonable relationship" to the preservation or efficiancy of a well armed militia. So, licensing schemes, banning certain types of guns from the public (i.e. assault rifles), etc., are okay because the states can still maintain an armed militia if they so desire. The weapons banned are not necessary for a militia, and typically police and National Guard forces are excluded from regulations of these kinds.
You can agree or disagree with this interpretation, I don't really care. I'm just here to report.
Tuck
Tulane University Law School