This is so completely wrong I don't even know where to start.
First: even if this were right, it's totally irrelevant. The government can't violate the constitution through its regulations, either. The government can't, for instance, pass a regulation saying that no blacks can be hired at federally regulated airports. Nor could it forbid people from saying bad things about President Bush on an airline.
Of course (persistent error #1 in above analysis), constitutional rights are rarely absolutes -- they can be violated if there's a compelling governmental interest. Hence, I don't have the right to falsely yell fire in a crowded theater. And you don't have the right to pretend to hijack a plane for fun.
Despite this constitutional requirement, federal mandates can discriminate against people (error #2). This is because there is nothing in the constitution that outlaws discrimination. What the constitution says (or at least, how it has been interpreted) is that the federal government can't discriminate against people who are members of a protected class unless they're protecting a compelling government interest. Gun ownership is not a protected class; they only need some rational reason to discriminate against you.
While I'm at it, I'll clear up the commerce clause/gun thing for you:
The federal government is a government of enumerated powers. That means, Congress can only pass laws that are on a particular list in the Constitution, and the Supreme Court will overturn federal rules as outside the power of the government if they don't flow from one of the items on the list. There is no power that says "you can regulate guns" but there is a power that says they can regulate commerce, and arguably, the movement of guns and people is commerce.
However, the presence of something on the list of enumerated powers doesn't mean that they can automatically do it. For instance, interstate commerce would be effected if I said very bad things about beef; the government cannot forbid negative speech about beef. So the Bill of Rights says, "even if you have the enumerated power to do something, you may not do it if it violates one of these rights."
So, in order to be constitutional, federal gun control legislation must both fall under an enumerated power and not violate the constitution. Commerce clause explains the first; the second, of course, stems from the fact that (a) the second amendment has been emasculated, and (b) remember, constitutional rights aren't absolutes, and so security issues may trump the second amendment.
Some regulations have only civil penalties, as you point out. But others have criminal penalties, as you will discover if you try to bring a gun onto a plane. See here for instance.
Furthermore, it's horribly wrong to analogize to OSHA -- OSHA is part of a whole scheme of workman's compensation, which preempts a whole bunch of civil claims. In the case of OSHA, the regulations are tightly linked to liability.
But not all regulations preempt civil suits. Note that people who had loved ones die in 9/11 still sued airlines who had complied with FAA regulations of that time. It is often true that someone who violates a regulation opens themselves up to liability. The inverse -- that following the regulation saves you from liability -- is often false.
Take, for instance, drugs that get FDA approval. Fine, according to regulation, but drug manufacturers get sued all the time.
Gosh, this would be a swell argument if it had even an inkling of truth to it.
If security measures were privately determined, we would have airlines where you stripped naked for all you risk-averse people, and airlines where you could bring your Uzi on board for others. You could choose your airline based on your preference of privacy versus security.
But you may have heard of these strange things called "federal regulations" which mandate uniform security. Federal rules mean uniformity. And federal rules mean that the U.S. Constitution applies. Airlines don't choose their security rules.
You have the right to enter into contracts as you see fit, as an adult, but not into contracts that violate any of your rights... you can't sell yourself into slavery.
This is, um, how to say this....? I think the words "totally false" come into mind. Some rights are waivable. For instance, I have the right to a jury trial if I am accused of a crime. I can, however, plea bargain with the prosecutor and give up my right to a jury trial in exchange for a charge of a lesser offense. This happens all the time.
I have the right for police officers not to search me without probable cause. I can, of course, consent to a search for which there is probable cause.
I have the right to a jury trial in certain courts and certain jurisdictions for many civil actions; I can waive those rights (in many states) by signing a contract that requires that disputes be arbitrated.
Now, some things -- like your status as a free person -- are not waivable. Those rights are very few and far between.
Most personal rights, however, are very waivable. Including the one about people looking at your buttocks. Yes, folks, you heard it here first: a porn star's employment contract is enforceable, despite the U.S. Constitution!
The real reason the contract argument is drop-dead stupid is that there is no contract that requires me to subject myself to an invasive search. Take a look at the conditions of carriage -- see anything there saying they can see me naked? I didn't think so.
It's a federal regulation, not a contract. And that's why the privacy argument matters.
This doesn't make any sense. A license to software doesn't give you the right to do whatever they wanted. It gives you limited rights, carefully chosen by the copyright holder.
For instance, a license for Windows (ugh) does not give you the right to make multiple copies and give them away to everyone you meet on a street corner.
A license for GNU/emacs does not give you the right to give away emacs to someone else but tell them they can't give it away.
So a "license" in and of itself makes no sense; you have to have a license to do something. Thus, there are licenses to use software on a certain number of machines, licenses to make a certain number of copies of the software, and licenses to redistribute.
Now, Microsoft may have had a license to use Sound Forge. But that is not a license to distribute to the world at large. Microsoft can own any number of licenses to use Sound Forge, but that still gives them no rights to redistribute the code.
Really, only the top students out of the top national schools get the opportunity to earn 125K with no experience.
No--the average students out of the top national schools get the opportunity to earn 125 K. Don't take me out of context. I didn't say all lawyers. I said "standard garden variety law student fresh out of one of the top national schools." I'm not talking about people who go to their local law school and get a job with their local firm or the DA's office. But $125K is both the 25th and 75th percentile salary for just about every "top 10" law school. If you want to go work for a large law firm in NYC or Chicago, and you're in the middle of the grade curve at a top national school, you're golden unless you have serious personality defects. Even in this market.
I don't know what "people" really think, but as a student at a top national school, I know the numbers. See for instance
Michigan.
Same entry level salary in six large legal markets.
The top students at the top national schools often end up making less than the average students--because it's the top students that have the opportunity to get the few meaningful, prestigious paid jobs there are.
Law firms are pretty expensive, you know. Your standard garden variety law student fresh out of one of the top national schools, with no experience under her belt, gets 125K a year. A couple tens of millions makes a bonus that a partner yawns at.
Doing one search on the most limited database in Lexis costs $10. One search on something pretty complex--like searching all federal cases--costs around a hundred bucks. And you need to do a lot of searches to do a case like this....
It's my right to refuse to take the offer on your terms, if I don't like them or think they're wrong; however, it's not within my rights at all to substitute my own terms for your product instead.
Actually, there's a section of the UCC that's supposed to deal with exactly this question: what happens when two parties contract, but each side claims different terms? Typically this applies in cases where someone sends a purchase order with preprinted terms and the seller responds with a sales order with preprinted terms on it. There's no reason, on the grounds of fairness, why you should pick one set of terms over another. So there's rules about how you pick things.
So it's not generally true that the terms that goods are offered under must be the terms that the manufacturer provides. If I tell you that I will buy goods under X terms and you send me back something saying that you're selling me goods under Y terms, there are rules to determine whose terms win.
If SCO had engaged in the above situation, where you had a simple contract with combatting terms, you'd simply cross off the combatting terms and supply default terms--which would, in fact, invalidate the GPL, since any default copyright terms are not very GPL friendly. But this presupposes that SCO had a contract with someone who supplied them code, made only by the contracting party, under the GPL, and SCO hadn't assented to those terms by any means.
The problem with SCO's strategy is not that they're trying to impose their own terms on another party they contracted with--they're trying to impose their terms on parties they have no contract with at all. Additionally, we don't have a situation where the parties initially disagreed on the terms. SCO distributed code under the GPL--if that ain't assent to the terms of the GPL, I'm not sure what is.
So you have the right answer. But the wrong reason.
I hereby make this post, which is entirely off-topic, for the point of sacrificing karma to the Gods of Preliminary Examinations, with the not-serious prayer that Lucas passes his prelims today.
Good luck. Take away karma by modding me down!
Oh, and by the way, BSD is dead.
The defendant (SCO) made a motion to dismiss RedHat's case. But then they asked for more time to file a brief which would explain the reasons they think the case should be dismissed. The judge gave them until today to file that brief.
If they tried that sort of thing, and it got mentioned, the person they settled with could probably recover... a great deal, possibly more than they settled for. They don't even have a colorable legal argument. They'd essentially be using duress (threat of an imaginary lawsuit) to make you give up money. And that won't hold up.
If SCO is selling you a license they do not own, they cannot deliver what they owe you. Breach of contract. You get your money back.
If SCO is selling you the right to be free from a lawsuit from them, you may not be able to get your money back. Why? Depends. If you--and they--believe they have a colorable legal argument that they could sue you, there's consideration, and you made a contract with them. It was a raw deal, but unfortunately, you can't collect on raw deals.
If SCO did the above, you'd have to prove economic duress to get your money back--and that's usually really really hard to prove.
I wasn't the one that was claiming, without merit, that taxation, for something other than defense, was unconstitutional. Any position you take which attempts to defend that line or argument must come into logical conflict with the executive branch having the power that they've been given, regardless of who authorized it.
My point wasn't that the war was unconstitutional, but any reader of the constitution who believes that we should abide strictly by What the Words Say and ignore two centuries of interpretation should recognize that the executive branch is far stronger here than a strict reading of the Constitution also prevents Bush from doing what he's done--destroying the balance between the executive and the legislative branch.
Now, do you want to give one reason why it's unconstitutional for the government to tax for education?
[N]ational defense is one of those things that the Constitution explicitly allows (and, in fact, obligates) the federal government to do.
Gives Congress the right. Not the executive branch.
If you're going to quibble constitutionality, get the Constitution right, dammit. The Constitution gives George Bush even less right to declare war than it gives Congress the ability to tax and spend on education.
I'd much rather have a president who obeyed his oath to protect and defend the Constitution, and stopped enforcing unconstitutional laws providing for confiscation and redistribution of my wealth to those who didn't earn it.
So you're voting against the people who brought you the Patriot Act and who are asking for more money so that they can keep handing contracts in Iraq to their cronies in closed processes without bids? Good to have another Dean supporter on board.
Telemarketing is an inherently inefficient form of selling though. If you were really buying things that had Actual Utility for you, you wouldn't have to have it crammed down your throat. It's much better to have people spend their hard-earned money on things they want--like books, eating out, and new laptops--than to have it wasted propping up a portion of the economy that provides no actual benefit.
It does the economy more good for people to spend there money where they deem it appropriate than to allow people to push profligate spending on things that really should just die.
Not necessarily. Parent's aren't generally responsible for the debts of their children. There's cases of kids putting out other kids' eyes with toys where the parents weren't held responsible.
This interpretation also eviscerates the book publishing industry. After all, how can an author own copyright on a book, and then allow a publisher to go and violate that copyright by tossing off hundreds, thousands, even millions of unwarranted copies? Why has nobody stopped this outrage before?
Because authors and publishers make a contract?
The GPL is, in a sense, also a contract. It says, "We're giving these rights to you. You don't have to agree to our terms, but if you want the rights we give to you, you have to agree to our other terms." The GPL doesn't modify copyright laws, any more than a contract an author makes with a publishing house does.
I've never met a woman drawn to a man's intellectual abilities.
and
Get yourself into reasonable shape, and grab hold of the first woman who lets you put your dick in her.
A note on self-selection bias. Women who are drawn to men's intellectual abilities will tend to hide from guys who just want something to put their dick in.
Ha! Someone else above recommended The Big U. as a "good read" and I nearly fell out of my chair, laughing. That has got to be one of the most phenomenally terrible books, ever.
But this isn't how things work. When a case comes up, and people ask "is this authorized?" the judge isn't going to sit there and decide on his or her own with no input at all from legal scholars. What's going to happen is that the judge (or, more likely, the judge's clerks) will query Lexis or Westlaw or something like that, and see what else has been written. The judgement that sets the precedent will most likely cite an immense body of legal work, possibly including this article.
Thinking about how to deal with hairy situations before they go to the court room is not a bad idea.
What is pre-law? Pretty much it's bullshit. There isn't even a pre-law curriculum like there is for pre-med. There isn't a single required course. I'm a Lessig-loving Linux-running slashchick who hasn't taken a course that could be remotely related to the law in six years, and I'm going to law school next year. In the US at least, the only requirement to get into law school is an undergraduate degree.
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First: even if this were right, it's totally irrelevant. The government can't violate the constitution through its regulations, either. The government can't, for instance, pass a regulation saying that no blacks can be hired at federally regulated airports. Nor could it forbid people from saying bad things about President Bush on an airline.
Of course (persistent error #1 in above analysis), constitutional rights are rarely absolutes -- they can be violated if there's a compelling governmental interest. Hence, I don't have the right to falsely yell fire in a crowded theater. And you don't have the right to pretend to hijack a plane for fun.
Despite this constitutional requirement, federal mandates can discriminate against people (error #2). This is because there is nothing in the constitution that outlaws discrimination. What the constitution says (or at least, how it has been interpreted) is that the federal government can't discriminate against people who are members of a protected class unless they're protecting a compelling government interest. Gun ownership is not a protected class; they only need some rational reason to discriminate against you.
While I'm at it, I'll clear up the commerce clause/gun thing for you:
The federal government is a government of enumerated powers. That means, Congress can only pass laws that are on a particular list in the Constitution, and the Supreme Court will overturn federal rules as outside the power of the government if they don't flow from one of the items on the list. There is no power that says "you can regulate guns" but there is a power that says they can regulate commerce, and arguably, the movement of guns and people is commerce.
However, the presence of something on the list of enumerated powers doesn't mean that they can automatically do it. For instance, interstate commerce would be effected if I said very bad things about beef; the government cannot forbid negative speech about beef. So the Bill of Rights says, "even if you have the enumerated power to do something, you may not do it if it violates one of these rights."
So, in order to be constitutional, federal gun control legislation must both fall under an enumerated power and not violate the constitution. Commerce clause explains the first; the second, of course, stems from the fact that (a) the second amendment has been emasculated, and (b) remember, constitutional rights aren't absolutes, and so security issues may trump the second amendment.
Some regulations have only civil penalties, as you point out. But others have criminal penalties, as you will discover if you try to bring a gun onto a plane. See here for instance.
Furthermore, it's horribly wrong to analogize to OSHA -- OSHA is part of a whole scheme of workman's compensation, which preempts a whole bunch of civil claims. In the case of OSHA, the regulations are tightly linked to liability.
But not all regulations preempt civil suits. Note that people who had loved ones die in 9/11 still sued airlines who had complied with FAA regulations of that time. It is often true that someone who violates a regulation opens themselves up to liability. The inverse -- that following the regulation saves you from liability -- is often false.
Take, for instance, drugs that get FDA approval. Fine, according to regulation, but drug manufacturers get sued all the time.
If security measures were privately determined, we would have airlines where you stripped naked for all you risk-averse people, and airlines where you could bring your Uzi on board for others. You could choose your airline based on your preference of privacy versus security.
But you may have heard of these strange things called "federal regulations" which mandate uniform security. Federal rules mean uniformity. And federal rules mean that the U.S. Constitution applies. Airlines don't choose their security rules.
You have the right to enter into contracts as you see fit, as an adult, but not into contracts that violate any of your rights... you can't sell yourself into slavery. This is, um, how to say this ....? I think the words "totally false" come into mind. Some rights are waivable. For instance, I have the right to a jury trial if I am accused of a crime. I can, however, plea bargain with the prosecutor and give up my right to a jury trial in exchange for a charge of a lesser offense. This happens all the time.
I have the right for police officers not to search me without probable cause. I can, of course, consent to a search for which there is probable cause.
I have the right to a jury trial in certain courts and certain jurisdictions for many civil actions; I can waive those rights (in many states) by signing a contract that requires that disputes be arbitrated.
Now, some things -- like your status as a free person -- are not waivable. Those rights are very few and far between.
Most personal rights, however, are very waivable. Including the one about people looking at your buttocks. Yes, folks, you heard it here first: a porn star's employment contract is enforceable, despite the U.S. Constitution!
The real reason the contract argument is drop-dead stupid is that there is no contract that requires me to subject myself to an invasive search. Take a look at the conditions of carriage -- see anything there saying they can see me naked? I didn't think so.
It's a federal regulation, not a contract. And that's why the privacy argument matters.
This doesn't make any sense. A license to software doesn't give you the right to do whatever they wanted. It gives you limited rights, carefully chosen by the copyright holder. For instance, a license for Windows (ugh) does not give you the right to make multiple copies and give them away to everyone you meet on a street corner. A license for GNU/emacs does not give you the right to give away emacs to someone else but tell them they can't give it away. So a "license" in and of itself makes no sense; you have to have a license to do something. Thus, there are licenses to use software on a certain number of machines, licenses to make a certain number of copies of the software, and licenses to redistribute. Now, Microsoft may have had a license to use Sound Forge. But that is not a license to distribute to the world at large. Microsoft can own any number of licenses to use Sound Forge, but that still gives them no rights to redistribute the code.
No--the average students out of the top national schools get the opportunity to earn 125 K. Don't take me out of context. I didn't say all lawyers. I said "standard garden variety law student fresh out of one of the top national schools." I'm not talking about people who go to their local law school and get a job with their local firm or the DA's office. But $125K is both the 25th and 75th percentile salary for just about every "top 10" law school. If you want to go work for a large law firm in NYC or Chicago, and you're in the middle of the grade curve at a top national school, you're golden unless you have serious personality defects. Even in this market.
I don't know what "people" really think, but as a student at a top national school, I know the numbers. See for instance Michigan. Same entry level salary in six large legal markets.
The top students at the top national schools often end up making less than the average students--because it's the top students that have the opportunity to get the few meaningful, prestigious paid jobs there are.
Doing one search on the most limited database in Lexis costs $10. One search on something pretty complex--like searching all federal cases--costs around a hundred bucks. And you need to do a lot of searches to do a case like this....
Even bad lawyers cost a shitload of money.
It's my right to refuse to take the offer on your terms, if I don't like them or think they're wrong; however, it's not within my rights at all to substitute my own terms for your product instead. Actually, there's a section of the UCC that's supposed to deal with exactly this question: what happens when two parties contract, but each side claims different terms? Typically this applies in cases where someone sends a purchase order with preprinted terms and the seller responds with a sales order with preprinted terms on it. There's no reason, on the grounds of fairness, why you should pick one set of terms over another. So there's rules about how you pick things. So it's not generally true that the terms that goods are offered under must be the terms that the manufacturer provides. If I tell you that I will buy goods under X terms and you send me back something saying that you're selling me goods under Y terms, there are rules to determine whose terms win. If SCO had engaged in the above situation, where you had a simple contract with combatting terms, you'd simply cross off the combatting terms and supply default terms--which would, in fact, invalidate the GPL, since any default copyright terms are not very GPL friendly. But this presupposes that SCO had a contract with someone who supplied them code, made only by the contracting party, under the GPL, and SCO hadn't assented to those terms by any means. The problem with SCO's strategy is not that they're trying to impose their own terms on another party they contracted with--they're trying to impose their terms on parties they have no contract with at all. Additionally, we don't have a situation where the parties initially disagreed on the terms. SCO distributed code under the GPL--if that ain't assent to the terms of the GPL, I'm not sure what is. So you have the right answer. But the wrong reason.
I hereby make this post, which is entirely off-topic, for the point of sacrificing karma to the Gods of Preliminary Examinations, with the not-serious prayer that Lucas passes his prelims today. Good luck. Take away karma by modding me down! Oh, and by the way, BSD is dead.
The defendant (SCO) made a motion to dismiss RedHat's case. But then they asked for more time to file a brief which would explain the reasons they think the case should be dismissed. The judge gave them until today to file that brief.
If they tried that sort of thing, and it got mentioned, the person they settled with could probably recover ... a great deal, possibly more than they settled for. They don't even have a colorable legal argument. They'd essentially be using duress (threat of an imaginary lawsuit) to make you give up money. And that won't hold up.
If SCO is selling you a license they do not own, they cannot deliver what they owe you. Breach of contract. You get your money back.
If SCO is selling you the right to be free from a lawsuit from them, you may not be able to get your money back. Why? Depends. If you--and they--believe they have a colorable legal argument that they could sue you, there's consideration, and you made a contract with them. It was a raw deal, but unfortunately, you can't collect on raw deals.
If SCO did the above, you'd have to prove economic duress to get your money back--and that's usually really really hard to prove.
My point wasn't that the war was unconstitutional, but any reader of the constitution who believes that we should abide strictly by What the Words Say and ignore two centuries of interpretation should recognize that the executive branch is far stronger here than a strict reading of the Constitution also prevents Bush from doing what he's done--destroying the balance between the executive and the legislative branch.
Now, do you want to give one reason why it's unconstitutional for the government to tax for education?
Gives Congress the right. Not the executive branch.
If you're going to quibble constitutionality, get the Constitution right, dammit. The Constitution gives George Bush even less right to declare war than it gives Congress the ability to tax and spend on education.
So you're voting against the people who brought you the Patriot Act and who are asking for more money so that they can keep handing contracts in Iraq to their cronies in closed processes without bids? Good to have another Dean supporter on board.
uGnited states, actually.
You mean like health care, the ballooning federal deficit, the environment, and equal rights for all?
It does the economy more good for people to spend there money where they deem it appropriate than to allow people to push profligate spending on things that really should just die.
Not necessarily. Parent's aren't generally responsible for the debts of their children. There's cases of kids putting out other kids' eyes with toys where the parents weren't held responsible.
What, everyone doesn't have a laptop? Next you'll tell me that they don't bring it with them everywhere, too.
Because authors and publishers make a contract?
The GPL is, in a sense, also a contract. It says, "We're giving these rights to you. You don't have to agree to our terms, but if you want the rights we give to you, you have to agree to our other terms." The GPL doesn't modify copyright laws, any more than a contract an author makes with a publishing house does.
Sheesh.
and
Get yourself into reasonable shape, and grab hold of the first woman who lets you put your dick in her. A note on self-selection bias. Women who are drawn to men's intellectual abilities will tend to hide from guys who just want something to put their dick in.
Ha! Someone else above recommended The Big U. as a "good read" and I nearly fell out of my chair, laughing. That has got to be one of the most phenomenally terrible books, ever.
Thinking about how to deal with hairy situations before they go to the court room is not a bad idea.
No, neither party had anything stolen from them. Both had their copyrights infringed, and are looking to protect their intellectual property.
What is pre-law? Pretty much it's bullshit. There isn't even a pre-law curriculum like there is for pre-med. There isn't a single required course. I'm a Lessig-loving Linux-running slashchick who hasn't taken a course that could be remotely related to the law in six years, and I'm going to law school next year. In the US at least, the only requirement to get into law school is an undergraduate degree.