as i understand it, sovereign immunity only applies to actions taken by the government.
Exactly.
however, we are not talking about the actions of employees of the US government or people acting under their auspices/guidance/direction. we're talking about actions of individuals working for a private organization.
My understanding is that you were posting about the gub'ment getting sued for having a bureaucrat approve a launch/license.
are you suggesting that the licensing body (presumably, an arm of the US govt, as mentioned in the article) responsible for approving the design for commercial use wouldn't get raked over the coals by witnesses called for expert testimony who suggest that the guidelines for design approval is somehow inadequate?
I am suggesting that the gub'ment cannot be sued successfully. I am not suggesting that someone wouldn't get "raked over the coals" in some political context (Congressional hearings). But as for a court of law, no, I do not see any liability for the government if their role is simply licensing parties to shoot off rockets.
It doubt it makes the trip up any easier since you still need to hit the same escape velocity (25,000 MPH / Mach 34) regardless of where you launch from. The challenge lies in achieving that speed as cheaply as possible, not an easy task.
Equatorial launch from, say, Ecuador (high elevation which reduces weight and air resistance at launch. Rotation of the earth has to be a benefit, too, as compared to regions closer to the poles. Same deal with the shape of the earth (slight equatorial bulge).
While these may all be very minor, in the aggregate, if you can increase lifting capacity by even ten or twenty pounds, it is not insignificant.
Given the layoff of the 50 programmers at AOL, I think that the newly-formed Mozilla Foundation (the "MF"...heh) should hold a bake sale and use the proceeds to hire 50 programmers from New Dehli to replace them. the MF will need to raise at least $50 or $60 bucks to get started...
who's thinking that the families of the deceased* won't slap the mother of all class-action suits against, among others, the licensing body?
Two words: sovereign immunity. You can't sue the king except under certain limited circumstances where the king agrees to let you sue him.
Also, do you have any idea what a "class action" is? It's a lawsuit brought by members of a "class" that usually cannot be individually identified. In almost any case I can possibly imagine, any harm resulting from the destruction of a plane or of property on the ground would result in specifically identifiable and ascertainable victims. A mass tort would not be an appropriate remedy in such a situation.
In the event that there is a pollution release-type event that causes some minimal level of harm to a large number of people, a class action may be a realistic possibility.
In any case, I don't see why the government would be involved in any of this. Giving someone a license hardly subjects you to liability when a third party is harmed by the licensee. For instance, do you see victims in auto accident cases suing states when they are hit by careless drivers? Do you see victims suing state licensing authorities (successfully) when doctors commit malpractice?
If you're going to bitch about lawyers and some nebulous fear of lawsuits, at least understand what you are bitching about./. is a great place for reading about clueless tech users. Let me be the first to inform you: you are equally clueless about the legal system. So are the people who modded your clueless post up to +5, so you need not feel as though you are alone here.
If there's one thing tech people do not understand, it is tort law.
"the machines used humans as components in a sort of huge neural network, and the point of the matrix was to keep the conscious parts of the brain occupied "
yada yada yada...
you know, its sad that people think there's something important and worth analzying in the Matrix. "Dumbed down"!! Yeah, right. It was just too hard to deal with before.
Its just a film with nice special effects. The idea was used in the formulaic `Red Dwarf` "comedy" sci-fi on BBC tv over 10 years ago.
Remember, there are only 1, 3, 7, 20, 36 (or 37) plots:
They will blame everyone and everything, except the two causes:
1) the people who teased them to death for years. 2) the boys themselves for choosing to plan the crime and carry it out.
I think that this is an over-simplification. Clearly, you left out other important causes, such as the Matrix, Ozzy Osbourne records (showing my age here), the Basketball Diaries, MacBeth, and the King James Bible.
GF.
Complexity of the law
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· Score: 2, Interesting
I think you make some excellent points. IAAL, and I find that areas I do not have familiarity with are incomprehensible at first. When I start to dig into them, there is usually a fair amount of good sense behind them. There are, of course, exceptions, but these are generally far and few between.
Trial procedures in my state, for instance, are governed by the state Rules of Civil Procedure with some local rules in effect county by county. They seem like water to a fish to me now -- I barely notice them. Before, I was drowning in them.
I suspect that programmers find new languages to be similar -- there are some familiar general principles, but certain ways of doing things seem alien at first. After some experience is gained with them, the libraries and syntax seem to make much more sense.
Similarly, you tend to learn languages that you need to know (or, in the context of networking, you learn about the platforms you need to use/support).
Sometimes it sounds to me as though people who whine about the complexity of the law are making criticisms that are just as legitimate as those made by a lawyer would make if he complained to a group of programmers about how GCC sucks and is hard to use as compared to other compilers. Admittedly, everyone is affected by the law (in different ways), but I think it is extremely unrealistic to expect that it is possible in the complex society in which we live for "the law" to be familiar and accessible to everyone.
We don't expect complex applications or medical technology to be understandable by everyone, and I think it is silly to expect that things as disparate as tax law, securities regulation, civil procedure, and insurance law to be reduced to such simple terms that the average person who reads nothing more challenging that Time can put his arms around everything encompassed by the statutory and regulatory laws we live under.
GF.
The parent poster = retard; point by point below
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Open Source Law
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· Score: 1
When Thomas Jefferson put the idea of intellectual property into the Constitution of the United States
Hmmm...unless TJ had access to email, he would have had a difficult time participating in the Constitutional Convention. He was in Europe at the time, not Phil(th)adelphia. See here for TJ's bio. The CC was convened in May of 1787 and the list of delegates shows that TJ was not one of them.
once people learn something, they can reuse that knowledge
I suggest that you reuse the knowledge that I have imparted to you.
Inventions then cannot, in nature, be a subject of property.
and
Congress shall have the power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
The former you attribute, correctly, to TJ (from a letter dated 8/13/1813 to one Isaac McPherson). The second attribution, from the United States Constitution, which, as pointed out above, Jefferson had nothing to do with writing, seems, shall we say, a little contradictory. (sorry about all the commas -- surely none were necessary) Have you even read what you posted?
We need to remind people that copyright, like most laws in the US, is a balance between two forces, and the scale should not be tipped too far to one side.
Your coup de grace suggests that the two passages you quote are capable of reconciliation. That is somewhat akin to saying "Fish need bicycles" and "Fish don't need bicycles" are capable of reconciliation. While the point is perhaps reasonable, the way you attempted to make it was a giant mogolian clusterfuck.
In short, user956, despite the attribution of "Insightful" comments to you by Slashtard moderators, you qualify for the "Fucktard Asshat Award" for July 8, 2003. Congratulations.
Mark this as "Flamebait" if you will. I have karma to burn.
Thanks for the thoughtful and detailed post. I think you are right about the distinction between clearly defined impermissible objects and those which may be used for a variety of purposes.
The question that raises, and this is what I think you were after though you didn't come out and say it, is whether software can ever be anything but a general purpose tool (a "screwdriver" in your example). In other words, can possession of software constitute a strict-liability offense?
I think that the answer to that is yes. Clearly, this is not determinative in all cases, however. If a strict liability statute is set up for certain types of software, I think that there will still have to be questions about what is on that list and why, and the courts will get involved.
Let's use (as an example) DeCSS. I think that a legislature could very easily enact a statute that authorizes an Attorney General, for instance, to regulate certain types of programs. The delegation of the oversight of permissible/impermissible would allow the fluctuating world of software to be met by a flexible oversight framework, or at least moreso than a strictly legislative oversight (e.g. "Unauthorized programs that decode DVDs are illegal, see regulations" vs. "DeCSS is illegal").
Nevertheless, such a framework would not prevent the courts from having to make inquiries along more general lines. For instance, if a "possession of software" statute did exist, and a new virus emerged and the writer used GCC to compile it, is GCC an illegal software tool? It would depend on the interpretation by the courts, more likely than not. Even the OS could be implicated, potentially.
All these questions and hypotheticals have ignored the free speech issues that would need to be addressed. Code does not equal speech all the time, but might it equal speech under the facts and circumstances of a case? Sure. Vagueness/overbreadth would likewise be an issue.
I think in the end, there will likely be two areas that legislatures will take. The first is the absolute outlawing of certain "known to be harmful" applications, and there will be firestorms everytime someone tries to add a new application or type of program to the verboten list. There will also be generalized statutes where use of software may heighten the offense.
I suspect that software is ultimately going to receive very similar treatment compared to guns. "Virus" or "virus writing" programs might be machine guns, available only to those with licenses. Encryption or portscanning tools might be available (officially) on limited bases. Monster Truck Madness XIV, fortunately, will be available to everyone (provided that they can pay, of course).
Software will present more difficulties than guns in the context of regulation -- software is easier and easier to conceal (try finding my USB keychain drive) and replicate, unlike a gun. On the other hand, possession and/or use of certain types of software to commit a crime may end up "aggravating" crimes for purposes of sentencing.
I am not happy that this is the future I see, but I can see how it could happen. I also do not see any protections in place constiutionally that guarantee that it cannot happen. Freenet, PGP, DeCSS, etc. Software is going to be a target more and more. "Free" hardware could end up being a target (region free DVD players, chipped game consoles, non-DRM computers, etc.).
Keep your outrage white-hot,/.ers, there will be plenty of challenges in the future.
The difference is that software can be written and spoken at the code level if necessary. And, if you want to restrict speech, you have a lot more work to do due to the First Ammendment. It's easier to outlaw bombs than it is to outlaw instructions on how to make bombs.
I don't disagree with you. In fact, I think I saw something a while back that purported to be an archive of DeCSS that was reduced to a number by an encryption program. There was a fairly funny webpage devoted to the notion that this number was being banned.
I was simply trying to point out the fact that "tool" or "not tool" is a worthless distinction legally.
To me, a tool is a tool, and I'll use if it's appropriate, regardless of how someone else might use it. People are good and bad, tools are not.
I have no beef with your assertion, but the courts do. Certain "tools" or property do create a presumption of criminal activity. An easy one is cocaine -- possession of it (under almost any circumstances) is itself a crime, whether your goal is nefarious (pleasure use) or "good" (pain relief). Possession of a bomb (which you might simply use to blow out stumps) is another example.
Thieves tools (and not just in Neverwinter Nights) create a presumption that you are engaged in criminal activity. Possession of certain "smart cards" (such as those used by Directv) also puts you at risk, even though you may have a perfectly legitimate use (which you will have to document in order to avoid prosecution).
Again, your view is not an illegitimate one, but the fact is that, from a legal standpoint, it is an incorrect and potentially dangerous one. Software is not unlike these other items I mentioned above, and there is no reason that I can see that would prevent legislation from making possession of a software (or hardware) tool illegal. DeCSS, or BackOrifice, or snort could all be made illegal.
Wise policy? I think not. Is there some rule preventing this from being an actual enforceable law (that possession of these items, without actual use, would be a crime)? No.
I don't think its too far of a stretch to say that the right of privacy is all but spelled out in the 4th amendment. Other amendments support this as well.
Except that spelling it out is required under most standard forms of statutory interpretation. From a legal persective, the Griswold court essentially manufactured a "right to privacy" out of thin air/from whole cloth.
Obviously, a majority of justices disagreed with my viewpoint and Griswold is still law, so WTF do I know, anyway? Just goes to show that the Constitution is not what is says, but what majority of justices say it is, which is a conclusion Robert Woodside reached in his seminal book on Pennsylvania constitutional law.
Whatever legal theory you use to interpret a constitution is pretty much subject to failure in the real world where the number of votes at a given point in time is the only thing that really matters.
Well that's still not a perfect analogy. For example, if the company added a feature to the ski mask that made it harder to pull off, and advertised this feature for use in bank robberies, they'd probably be held liable for its use in a robbery. Or if they didn't advertise it, but did know that the new feature's overwhelming use would be in bank robberies, then they might also be liable.
I doubt it. An anlagous case involving the Tec-9 gun (hard to get fingerprints from and some other features which were allegedly used to promote sales to questionable people) was tossed:
Oh, I don't judge Griswold, I'm merely pointing out it's one of the primary bases the court used to state homosexuals (and others) are entitled to engage in sodomy or other bedroom activities, in the Lawrence decision.
Your statement here is correct, but your earlier comment left me with the impression that you thought that Griswold was a sodomy case. That is in fact erroneous. It was a condoms case.
Interestingly, there are parallels between Griswold and Lawrence: both involved set-ups by activist groups to challenge laws that were not enforced so as to create test cases on privacy issues.
Griswold was the brainchild of the planned parenthood group local to Yale. Like the Lawrence case, the anti-sale of contraceptives law was on the books in CT, but not enforced. They essentially compelled the local DA to press the issue in order to get a decision from a court so that they could appeal it. Same thing happened in Texas in Lawrence. It wasn't like cops were running around beating down doors to try to find men buggering each other.
If nothing else, that provides an interesting insight into how some of these cases are generated.
The Bowers case, on the other hand, came up when someone at an apartment let the cops in when they knocked on the door to find someone on a probation violation, I think. They were directed in to the back room where the couple was coupling, hence the arrest. Again, they weren't exactly out trolling for homosexuals.
Amen to both your post and the parent. Frye is still used in some state courts, but there is a desire to match the federal rule (Daubert) to the state rule, which (in PA at least) is still Frye, although everyone sort of looks at both Frye and Daubert right now, expecting the PA Supremes to adopt Daubert.
In any case, the real basis under both rules is really that there should be consensus and scientific method behind something before a court will give it credibility. There is always a mad scientist out there ready to say anything to finance his next project, and Frye and Daubert just give a court the option to toss it if it is beyond the pale.
I am really baffled at the notion that Daubert is a "bad thing". It actually reduces the chances that dueling experts will cancel one another and that the lawyers will really win or lose the case.
For what it is worth, Frye and Daubert mostly come up in cases of expert testimony. In that case, there are a thousand things _besides_ the actual science behind the testimony that can matter. For instance, I was recently at a cell tower zoning hearing in which the engineer for the cell tower company was fantastic, but he was of Indian (subcontinent) descent and nobody could understand a fucking word he said. The protestors had a guy with less sparkling credentials, but his presentation was much, much better. From a practical standpoint, this matters, right or wrong. It's all about advocacy.
Should there be a special "science" court? This has been discussed for a long time, and I have mixed feelings about it. Having attorneys who have backgrounds in engineering or science sit as judges still doesn't guarantee that they will be expert in the matter before them. Likewise, simply finding candidates who understand the subject matter who would also be good judges and willing to take the piss-poor salary a federal judge makes would be difficult as well.
In any case, I think/. is up in arms because the average/. reader has as much understanding of the legal system as the average judge does of BGP.
Griswold dealt with the sale of contraceptives, not sodomy. It is a predecessor in this idiotic "right to privacy" battle, however, in that it was in Griswold that the Supremes basically stated that they did not need to rely on actual constitutional text, but rather they found a right to privacy in the "emanations and penumbras". Regardless of your political or legal views, it should frighten you that either Scalia or Breyer would be allowed to search the "emanations and penumbras" of the Constitution to come up with grounds to support an opinion.
Nothing against the result in Griswold, but the "emanations and penumbras" part was just fucking unbelievable horseshit. That was a pure and simple powergrab by an intellectually lazy court.
It's sad that good science is gettign trounced in this way.
Daubert was written to keep crap out of the courtroom rather than to "trounce" what you characterize as "good science". I wrote an outline on Daubert for a CLE recently (in the context of direct examinations of expert witnesses) and the portion of that related to Daubert is reproduced below as an FYI.
Rather than bowing to fads, Daubert simply requires the following things:
The "Daubert Five" Requirements for Expert Testimony
Expert is qualified Expert's opinion is supported by scientific reasoning, methodology Expert's opinion is supported by reliable data Expert's opinion "fits" the facts of the case, to assist the Jury in understanding evidence or resolving a factual dispute Expert's opinion is clear, directional, and unbiased enough to qualify for inclusion under Federal Rule of Evidence 403.
The Daubert Standard also calls upon the trial court to scrutinize an Expert's reasoning and methodology to assure that "relevant or reliable" scientific evidence supports the admissibility of Expert testimony. The following non-inclusive factors are to be considered:
Daubert's Admissibility Test for Expert Testimony
Reliability: Whether a scientific theory or technique can be and has been tested; Peer Review and Publication: Whether the scientific or technical theory or technique has been subjected to peer review and publication. Submission to peer review and publication is not dispositive, but is viewed by the Court as a component of "good science," as distinguished from "junk science." Error Rate, Standards Controlling Technique's Operation: The known or potential rate of error and the existence and maintenance of standards controlling technique's operation. Generally Acceptance Factors: Whether the scientific technique or methodology is generally accepted in the scientific community involved. [This is still a factor to be considered despite the abolition of "The Frye Test," of "general acceptance," but it is not dispositive.] Fitness: Whether the Expert testimony or scientific evidence "fits" the facts of the case so as to "assist" the Jury's understanding of the evidence or to determine a fact in issue."
None of that sounds unreasonable, and in practice it usually works well. I really don't understand why there is all this bitching about the ruling. Perhaps it is simply a generalized ignorance of how the courts work. I honestly don't know.
The "fast food" cases have largely been thrown out. The "McDonalds coffee lady" was reduced to $300,000 on appeal (and the actual evidence in that case was pretty incriminating, plus the plaintiff offered to settle for $15,000 before trial -- McDonald's fucked themselves in that case in about twenty different ways).
Blah, blah, blah...I hate lawyers...blah, blah, blah. Typical/. day.
Also, I'm pretty sure DirectTV didn't need to fight tens of millions of people, making it a poor comparison.
The Directv case is actually instructive -- the company went after the suppliers of smart cards and then extended the litigation to include the actual end-users of the cards. They have, in fact, sued hundreds of people in my state, and probably thousands across the US. I think that the RIAA's strategy will likely be the same.
There was a piece on NPR this week (Thursday on All Things Considered, I think) in which an RIAA mouthpiece indicated that the strategy is to pursue "significant" sharers of files in contributory infringement cases. I think that they have a pretty good case. YMMV. I'm a chickenshit scaredy-cat myself.
Remember, more people used Napster than voted for Bush.
So what? First, election 2000 talk is just flamebait, but I will address your premise. Second, more people speed than voted for anyone. More people have consumed alcohol underage at some point in their lives than voted for all candidates combined in the last presidential election.
It's irrelevant what "more people" do. The fact that many people break the law does not mean that a court will allow a law-breaker to skate when a case is brought.
Regarding the quotes you cite, here are my thoughts:
Adam Cohen, a partner in the litigation department of Weil, Gotshal & Manges LLP, said the music industry in its battle shows "a lack of concern with alienating the consumer... It's hard to imagine that this would really spur people to buy more records."
The above is just a business case argument, and is not really a statement of legal issues. Someone in this subject posted a fictitious Jack Valenti quote along the lines of "What do you mean? We sued the fuckers and they still don't want to buy our products?" I agree. It sounds stupid. On the other hand, they can't compete with free. They are forced to pick their poison here -- the NPR story had a quote from the RIAA guy saying something to the effect of "we have a whole generation of kids that we have to train to buy music." They are right to a point. Whether their strategy will work is certainly open to debate, but they don't exactly have a "lady and tiger" choice -- it's more like a "tiger and lion" choice.
Cohen, who has represented online radio and Webcasting services on copyright issues, noted the Napster case ended with a bankruptcy but left open the legal debate on targeting individuals who copy music for non-commercial purposes.
Well, all I can say is that he has his bias -- look at who he represents. On the other hand, he does have a point on Napster. I do think that the warez-type of cases are pretty good evidence that he's wrong, however. I don't see a court ruling that putting thousands of valuable pieces of IP on the internet and then looking the other way when people download them is innocent conduct. Again, YMMV and proceed at your own risk. I won't be sharing files anytime soon. Especially not when I can buy used CDs at amazon for a buck (just got an Everclear disk for a buck plus shipping -- I own it and the RIAA got nothing on the resale -- I call that a "win-win").
Don't get me wrong -- I think the RIAA is a bunch of stinking cunts. On the other hand, I do not think that they are entirely wrong from a legal perspective. That distinction (what is and what should be) is important legally.
Ultimately, what we really need to see is a significant rethinking of intellectual property law. That may seem like a pipe dream, but technology may force it to happen, and I am not totally pessimistic on the prospect. Either way (changed IP law or no), there will continue to be huge disruptions in the static media business as their business models and organizations come under a continued and increasing assault in the digital age.
They simply don't have the resources in lawyers and the like to take this to a widespread level.
You have no idea what you are talking about. I saw Directv do this to a bunch of people in federal court over access cards.
What they do is hire an el-cheapo lawyer with some federal court skills and they file a complaint against 50 or so people. Then they use the logs that they have generated to convince a judge that the case should be decided at summary judgment.
Half the plaintiffs ignore the pleadings and get hit with default judgments and the other half talk to a lawyer and find out that, yeah, they broke the law and there is no reasonable defense. Then they negotiate a deal on the order of several to ten thousand dollars (which is what Directv was doing in my area).
The lawyer gets a percentage of what he collects for the big company, and the consumers get slammed for stealing.
I'm sorry that the/. mindset is generally opposed to the idea that sharing copyrighted music files is breaking the law, but I think that you will find that the courts will disagree.
That being said, I think copyright needs some revision, but I think you seriously underestimate the exposure that real people have here and how it can fuck up their lives. I have actually seen it happen to others and I know several attorneys (who are good attorneys) who could do nothing to stop it in the Directv cases. I expect that the RIAA stuff will be almost verbatim in how it works.
Other industries have successfully used litigation against individuals in similar sorts of cases. Directv has sued hundreds of people who simply bought access cards, for instance. Every case that I saw settled for significant damages.
The RIAA is going to have beaucoup proof that people broke the law, and some people are going to pay extremely heavy prices. Those cases will buy big publicity in newspapers, etc. Publicity that the RIAA cannot get elsewhere. This will come home to roost, and if you have been swapping files, I would not just laugh this off. I know people that had to pay Directv significant amounts of money for buying access cards. The same thing will happen to file swappers, and it will have a significant impact on their financial well-being.
Mostly the latin I hear around the courthouse is along the lines of "ets-lay eek-snay outay or-fay a-ay inrk-dray ith-way at-thay ot-hay enographer-stay"
Either that, or "Judge X is a fucking horse's ass", although maybe the root on tat is a little more anglo-saxon in origin.
Yoiks. They sure did. I did read the complaint already, but I could have sworn it was filed in federal court, partly because of the basic nature of the complaint. I obviously need some gingko or something.
As far as whether Utah is fact or notice pleading, can't help there. In my state you see the distinction and it looked like the difference between fact and notice pleading to me, hence my thought that it was a federal case.
either SCO did very poor legal preparation, or they intentionally filed in the wrong court
Not the wrong court. Just one from which IBM is entitled to ask for removal to federal court. See below for more on this.
IBM is probably smart to try to yank it into federal court -- the judges tend to be better than state court judges, plus IBM assuredly has a bang-up federal court team. They surely looked into the inclinations of the judges likely to get the case as well. The Utah lineup of state court judges may well be less than exemplary. Also, who the heck knows what Utah law is like as interpreted by state courts? Federal court interpretations can vary somewhat, although they are dealing with the same precedents and statutes, divergence does occur from time to time.
So, SCO may have filed in Utah just because it was closer and cheaper. They did nothing wrong by doing it, and they probably expected a push by IBM for removal to federal court. IBM assuredly has a presence in Utah, and can be hailed into state court there. They surely have a corporate agent or office in Utah. It's not as though it is inapropriate to file suit in state court D against large company X which is headquartered in state B and incorporated in state C when you live and do business with them in State D.
As far as IBM filing a "snarky "Notice of Removal" which basically says "yo, morons, unlike you we are NOT a Delaware corporation, so try suing us in the right court, mmmkay? Diversity of jurisdiction and all that."-type response instead of a detailed pleading, well, if you are going to be in federal court anyway, why show any cards now?
IMHO, and IIAL, both parties have done the right thing the right way and smartly for themselves.
The filing is an almost comically terse list denying all but the most indisputable claims that SCO makes.
Federal court uses what is called "notice" pleading. Basically, a plaintiff lays out its theories in the complaint, and the defendant denies them. The actual facts are fleshed out in discovery. Other jurisdictions require "fact" pleading, which mandates that you set forth the facts you will attempt to prove at trial in order to satisfy the elements of each count contained in your complaint.
Of course IBM will deny everything that SCO puts in a "notice" pleading complaint. An SCO complaint in a "fact" pleading jurisdiction would likely have been much more involved and likely IBM would have had a different response.
In federal court, you really can't look at the pleadings and make much of a judgment about what is going on. You need to have the inside scoop in discovery, such as viewing deposition transcripts.
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as i understand it, sovereign immunity only applies to actions taken by the government.
Exactly.
however, we are not talking about the actions of employees of the US government or people acting under their auspices/guidance/direction. we're talking about actions of individuals working for a private organization.
My understanding is that you were posting about the gub'ment getting sued for having a bureaucrat approve a launch/license.
are you suggesting that the licensing body (presumably, an arm of the US govt, as mentioned in the article) responsible for approving the design for commercial use wouldn't get raked over the coals by witnesses called for expert testimony who suggest that the guidelines for design approval is somehow inadequate?
I am suggesting that the gub'ment cannot be sued successfully. I am not suggesting that someone wouldn't get "raked over the coals" in some political context (Congressional hearings). But as for a court of law, no, I do not see any liability for the government if their role is simply licensing parties to shoot off rockets.
GF.
It doubt it makes the trip up any easier since you still need to hit the same escape velocity (25,000 MPH / Mach 34) regardless of where you launch from. The challenge lies in achieving that speed as cheaply as possible, not an easy task.
Equatorial launch from, say, Ecuador (high elevation which reduces weight and air resistance at launch. Rotation of the earth has to be a benefit, too, as compared to regions closer to the poles. Same deal with the shape of the earth (slight equatorial bulge).
While these may all be very minor, in the aggregate, if you can increase lifting capacity by even ten or twenty pounds, it is not insignificant.
GF.
Given the layoff of the 50 programmers at AOL, I think that the newly-formed Mozilla Foundation (the "MF"...heh) should hold a bake sale and use the proceeds to hire 50 programmers from New Dehli to replace them. the MF will need to raise at least $50 or $60 bucks to get started...
GF.
who's thinking that the families of the deceased* won't slap the mother of all class-action suits against, among others, the licensing body?
/. is a great place for reading about clueless tech users. Let me be the first to inform you: you are equally clueless about the legal system. So are the people who modded your clueless post up to +5, so you need not feel as though you are alone here.
Two words: sovereign immunity. You can't sue the king except under certain limited circumstances where the king agrees to let you sue him.
Also, do you have any idea what a "class action" is? It's a lawsuit brought by members of a "class" that usually cannot be individually identified. In almost any case I can possibly imagine, any harm resulting from the destruction of a plane or of property on the ground would result in specifically identifiable and ascertainable victims. A mass tort would not be an appropriate remedy in such a situation.
In the event that there is a pollution release-type event that causes some minimal level of harm to a large number of people, a class action may be a realistic possibility.
In any case, I don't see why the government would be involved in any of this. Giving someone a license hardly subjects you to liability when a third party is harmed by the licensee. For instance, do you see victims in auto accident cases suing states when they are hit by careless drivers? Do you see victims suing state licensing authorities (successfully) when doctors commit malpractice?
If you're going to bitch about lawyers and some nebulous fear of lawsuits, at least understand what you are bitching about.
If there's one thing tech people do not understand, it is tort law.
GF.
"the machines used humans as components in a sort of huge neural network, and the point of the matrix was to keep the conscious parts of the brain occupied "
yada yada yada...
you know, its sad that people think there's something important and worth analzying in the Matrix. "Dumbed down"!! Yeah, right. It was just too hard to deal with before.
Its just a film with nice special effects. The idea was used in the formulaic `Red Dwarf` "comedy" sci-fi on BBC tv over 10 years ago.
Remember, there are only 1, 3, 7, 20, 36 (or 37) plots:
http://www.ipl.org/div/farq/plotFARQ.html
GF.
And does it export to PDF on Win32?
Yes. It has for a while now in the beta versions.
GF.
They will blame everyone and everything, except the two causes:
1) the people who teased them to death for years.
2) the boys themselves for choosing to plan the crime and carry it out.
I think that this is an over-simplification. Clearly, you left out other important causes, such as the Matrix, Ozzy Osbourne records (showing my age here), the Basketball Diaries, MacBeth, and the King James Bible.
GF.
I think you make some excellent points. IAAL, and I find that areas I do not have familiarity with are incomprehensible at first. When I start to dig into them, there is usually a fair amount of good sense behind them. There are, of course, exceptions, but these are generally far and few between.
Trial procedures in my state, for instance, are governed by the state Rules of Civil Procedure with some local rules in effect county by county. They seem like water to a fish to me now -- I barely notice them. Before, I was drowning in them.
I suspect that programmers find new languages to be similar -- there are some familiar general principles, but certain ways of doing things seem alien at first. After some experience is gained with them, the libraries and syntax seem to make much more sense.
Similarly, you tend to learn languages that you need to know (or, in the context of networking, you learn about the platforms you need to use/support).
Sometimes it sounds to me as though people who whine about the complexity of the law are making criticisms that are just as legitimate as those made by a lawyer would make if he complained to a group of programmers about how GCC sucks and is hard to use as compared to other compilers. Admittedly, everyone is affected by the law (in different ways), but I think it is extremely unrealistic to expect that it is possible in the complex society in which we live for "the law" to be familiar and accessible to everyone.
We don't expect complex applications or medical technology to be understandable by everyone, and I think it is silly to expect that things as disparate as tax law, securities regulation, civil procedure, and insurance law to be reduced to such simple terms that the average person who reads nothing more challenging that Time can put his arms around everything encompassed by the statutory and regulatory laws we live under.
GF.
When Thomas Jefferson put the idea of intellectual property into the Constitution of the United States
Hmmm...unless TJ had access to email, he would have had a difficult time participating in the Constitutional Convention. He was in Europe at the time, not Phil(th)adelphia. See here for TJ's bio. The CC was convened in May of 1787 and the list of delegates shows that TJ was not one of them.
once people learn something, they can reuse that knowledge
I suggest that you reuse the knowledge that I have imparted to you.
Inventions then cannot, in nature, be a subject of property.
and
Congress shall have the power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
The former you attribute, correctly, to TJ (from a letter dated 8/13/1813 to one Isaac McPherson). The second attribution, from the United States Constitution, which, as pointed out above, Jefferson had nothing to do with writing, seems, shall we say, a little contradictory. (sorry about all the commas -- surely none were necessary) Have you even read what you posted?
We need to remind people that copyright, like most laws in the US, is a balance between two forces, and the scale should not be tipped too far to one side.
Your coup de grace suggests that the two passages you quote are capable of reconciliation. That is somewhat akin to saying "Fish need bicycles" and "Fish don't need bicycles" are capable of reconciliation. While the point is perhaps reasonable, the way you attempted to make it was a giant mogolian clusterfuck.
In short, user956, despite the attribution of "Insightful" comments to you by Slashtard moderators, you qualify for the "Fucktard Asshat Award" for July 8, 2003. Congratulations.
Mark this as "Flamebait" if you will. I have karma to burn.
GF.
Thanks for the thoughtful and detailed post. I think you are right about the distinction between clearly defined impermissible objects and those which may be used for a variety of purposes.
/.ers, there will be plenty of challenges in the future.
The question that raises, and this is what I think you were after though you didn't come out and say it, is whether software can ever be anything but a general purpose tool (a "screwdriver" in your example). In other words, can possession of software constitute a strict-liability offense?
I think that the answer to that is yes. Clearly, this is not determinative in all cases, however. If a strict liability statute is set up for certain types of software, I think that there will still have to be questions about what is on that list and why, and the courts will get involved.
Let's use (as an example) DeCSS. I think that a legislature could very easily enact a statute that authorizes an Attorney General, for instance, to regulate certain types of programs. The delegation of the oversight of permissible/impermissible would allow the fluctuating world of software to be met by a flexible oversight framework, or at least moreso than a strictly legislative oversight (e.g. "Unauthorized programs that decode DVDs are illegal, see regulations" vs. "DeCSS is illegal").
Nevertheless, such a framework would not prevent the courts from having to make inquiries along more general lines. For instance, if a "possession of software" statute did exist, and a new virus emerged and the writer used GCC to compile it, is GCC an illegal software tool? It would depend on the interpretation by the courts, more likely than not. Even the OS could be implicated, potentially.
All these questions and hypotheticals have ignored the free speech issues that would need to be addressed. Code does not equal speech all the time, but might it equal speech under the facts and circumstances of a case? Sure. Vagueness/overbreadth would likewise be an issue.
I think in the end, there will likely be two areas that legislatures will take. The first is the absolute outlawing of certain "known to be harmful" applications, and there will be firestorms everytime someone tries to add a new application or type of program to the verboten list. There will also be generalized statutes where use of software may heighten the offense.
I suspect that software is ultimately going to receive very similar treatment compared to guns. "Virus" or "virus writing" programs might be machine guns, available only to those with licenses. Encryption or portscanning tools might be available (officially) on limited bases. Monster Truck Madness XIV, fortunately, will be available to everyone (provided that they can pay, of course).
Software will present more difficulties than guns in the context of regulation -- software is easier and easier to conceal (try finding my USB keychain drive) and replicate, unlike a gun. On the other hand, possession and/or use of certain types of software to commit a crime may end up "aggravating" crimes for purposes of sentencing.
I am not happy that this is the future I see, but I can see how it could happen. I also do not see any protections in place constiutionally that guarantee that it cannot happen. Freenet, PGP, DeCSS, etc. Software is going to be a target more and more. "Free" hardware could end up being a target (region free DVD players, chipped game consoles, non-DRM computers, etc.).
Keep your outrage white-hot,
GF.
The difference is that software can be written and spoken at the code level if necessary. And, if you want to restrict speech, you have a lot more work to do due to the First Ammendment. It's easier to outlaw bombs than it is to outlaw instructions on how to make bombs.
I don't disagree with you. In fact, I think I saw something a while back that purported to be an archive of DeCSS that was reduced to a number by an encryption program. There was a fairly funny webpage devoted to the notion that this number was being banned.
I was simply trying to point out the fact that "tool" or "not tool" is a worthless distinction legally.
GF.
To me, a tool is a tool, and I'll use if it's appropriate, regardless of how someone else might use it. People are good and bad, tools are not.
I have no beef with your assertion, but the courts do. Certain "tools" or property do create a presumption of criminal activity. An easy one is cocaine -- possession of it (under almost any circumstances) is itself a crime, whether your goal is nefarious (pleasure use) or "good" (pain relief). Possession of a bomb (which you might simply use to blow out stumps) is another example.
Thieves tools (and not just in Neverwinter Nights) create a presumption that you are engaged in criminal activity. Possession of certain "smart cards" (such as those used by Directv) also puts you at risk, even though you may have a perfectly legitimate use (which you will have to document in order to avoid prosecution).
Again, your view is not an illegitimate one, but the fact is that, from a legal standpoint, it is an incorrect and potentially dangerous one. Software is not unlike these other items I mentioned above, and there is no reason that I can see that would prevent legislation from making possession of a software (or hardware) tool illegal. DeCSS, or BackOrifice, or snort could all be made illegal.
Wise policy? I think not. Is there some rule preventing this from being an actual enforceable law (that possession of these items, without actual use, would be a crime)? No.
GF.
I don't think its too far of a stretch to say that the right of privacy is all but spelled out in the 4th amendment. Other amendments support this as well.
Except that spelling it out is required under most standard forms of statutory interpretation. From a legal persective, the Griswold court essentially manufactured a "right to privacy" out of thin air/from whole cloth.
Obviously, a majority of justices disagreed with my viewpoint and Griswold is still law, so WTF do I know, anyway? Just goes to show that the Constitution is not what is says, but what majority of justices say it is, which is a conclusion Robert Woodside reached in his seminal book on Pennsylvania constitutional law.
Whatever legal theory you use to interpret a constitution is pretty much subject to failure in the real world where the number of votes at a given point in time is the only thing that really matters.
GF.
Well that's still not a perfect analogy. For example, if the company added a feature to the ski mask that made it harder to pull off, and advertised this feature for use in bank robberies, they'd probably be held liable for its use in a robbery. Or if they didn't advertise it, but did know that the new feature's overwhelming use would be in bank robberies, then they might also be liable.
I doubt it. An anlagous case involving the Tec-9 gun (hard to get fingerprints from and some other features which were allegedly used to promote sales to questionable people) was tossed:
CBS News - Gun Lawsuit Misses Target
GF.
Oh, I don't judge Griswold, I'm merely pointing out it's one of the primary bases the court used to state homosexuals (and others) are entitled to engage in sodomy or other bedroom activities, in the Lawrence decision.
Your statement here is correct, but your earlier comment left me with the impression that you thought that Griswold was a sodomy case. That is in fact erroneous. It was a condoms case.
Interestingly, there are parallels between Griswold and Lawrence: both involved set-ups by activist groups to challenge laws that were not enforced so as to create test cases on privacy issues.
Griswold was the brainchild of the planned parenthood group local to Yale. Like the Lawrence case, the anti-sale of contraceptives law was on the books in CT, but not enforced. They essentially compelled the local DA to press the issue in order to get a decision from a court so that they could appeal it. Same thing happened in Texas in Lawrence. It wasn't like cops were running around beating down doors to try to find men buggering each other.
If nothing else, that provides an interesting insight into how some of these cases are generated.
The Bowers case, on the other hand, came up when someone at an apartment let the cops in when they knocked on the door to find someone on a probation violation, I think. They were directed in to the back room where the couple was coupling, hence the arrest. Again, they weren't exactly out trolling for homosexuals.
GF.
Amen to both your post and the parent. Frye is still used in some state courts, but there is a desire to match the federal rule (Daubert) to the state rule, which (in PA at least) is still Frye, although everyone sort of looks at both Frye and Daubert right now, expecting the PA Supremes to adopt Daubert.
/. is up in arms because the average /. reader has as much understanding of the legal system as the average judge does of BGP.
In any case, the real basis under both rules is really that there should be consensus and scientific method behind something before a court will give it credibility. There is always a mad scientist out there ready to say anything to finance his next project, and Frye and Daubert just give a court the option to toss it if it is beyond the pale.
I am really baffled at the notion that Daubert is a "bad thing". It actually reduces the chances that dueling experts will cancel one another and that the lawyers will really win or lose the case.
For what it is worth, Frye and Daubert mostly come up in cases of expert testimony. In that case, there are a thousand things _besides_ the actual science behind the testimony that can matter. For instance, I was recently at a cell tower zoning hearing in which the engineer for the cell tower company was fantastic, but he was of Indian (subcontinent) descent and nobody could understand a fucking word he said. The protestors had a guy with less sparkling credentials, but his presentation was much, much better. From a practical standpoint, this matters, right or wrong. It's all about advocacy.
Should there be a special "science" court? This has been discussed for a long time, and I have mixed feelings about it. Having attorneys who have backgrounds in engineering or science sit as judges still doesn't guarantee that they will be expert in the matter before them. Likewise, simply finding candidates who understand the subject matter who would also be good judges and willing to take the piss-poor salary a federal judge makes would be difficult as well.
In any case, I think
GF.
I may sound bitter, but I work for a large legal company (not a firm) and have to deal with the mass-tort vampires all day.
So you work for manufacturers that kill people and just consider it to be a cost of doing business?
GF.
Griswold dealt with the sale of contraceptives, not sodomy. It is a predecessor in this idiotic "right to privacy" battle, however, in that it was in Griswold that the Supremes basically stated that they did not need to rely on actual constitutional text, but rather they found a right to privacy in the "emanations and penumbras". Regardless of your political or legal views, it should frighten you that either Scalia or Breyer would be allowed to search the "emanations and penumbras" of the Constitution to come up with grounds to support an opinion.
Nothing against the result in Griswold, but the "emanations and penumbras" part was just fucking unbelievable horseshit. That was a pure and simple powergrab by an intellectually lazy court.
GF.
It's sad that good science is gettign trounced in this way.
/. day.
Daubert was written to keep crap out of the courtroom rather than to "trounce" what you characterize as "good science". I wrote an outline on Daubert for a CLE recently (in the context of direct examinations of expert witnesses) and the portion of that related to Daubert is reproduced below as an FYI.
Rather than bowing to fads, Daubert simply requires the following things:
The "Daubert Five" Requirements for Expert Testimony
Expert is qualified
Expert's opinion is supported by scientific reasoning, methodology
Expert's opinion is supported by reliable data
Expert's opinion "fits" the facts of the case, to assist the Jury in understanding evidence or resolving a factual dispute
Expert's opinion is clear, directional, and unbiased enough to qualify for inclusion under Federal Rule of Evidence 403.
The Daubert Standard also calls upon the trial court to scrutinize an Expert's reasoning and methodology to assure that "relevant or reliable" scientific evidence supports the admissibility of Expert testimony. The following non-inclusive factors are to be considered:
Daubert's Admissibility Test for Expert Testimony
Reliability: Whether a scientific theory or technique can be and has been tested;
Peer Review and Publication: Whether the scientific or technical theory or technique has been subjected to peer review and publication. Submission to peer review and publication is not dispositive, but is viewed by the Court as a component of "good science," as distinguished from "junk science."
Error Rate, Standards Controlling Technique's Operation: The known or potential rate of error and the existence and maintenance of standards controlling technique's operation.
Generally Acceptance Factors: Whether the scientific technique or methodology is generally accepted in the scientific community involved. [This is still a factor to be considered despite the abolition of "The Frye Test," of "general acceptance," but it is not dispositive.]
Fitness: Whether the Expert testimony or scientific evidence "fits" the facts of the case so as to "assist" the Jury's understanding of the evidence or to determine a fact in issue."
None of that sounds unreasonable, and in practice it usually works well. I really don't understand why there is all this bitching about the ruling. Perhaps it is simply a generalized ignorance of how the courts work. I honestly don't know.
The "fast food" cases have largely been thrown out. The "McDonalds coffee lady" was reduced to $300,000 on appeal (and the actual evidence in that case was pretty incriminating, plus the plaintiff offered to settle for $15,000 before trial -- McDonald's fucked themselves in that case in about twenty different ways).
Blah, blah, blah...I hate lawyers...blah, blah, blah. Typical
GF.
Also, I'm pretty sure DirectTV didn't need to fight tens of millions of people, making it a poor comparison.
... It's hard to imagine that this would really spur people to buy more records."
The Directv case is actually instructive -- the company went after the suppliers of smart cards and then extended the litigation to include the actual end-users of the cards. They have, in fact, sued hundreds of people in my state, and probably thousands across the US. I think that the RIAA's strategy will likely be the same.
There was a piece on NPR this week (Thursday on All Things Considered, I think) in which an RIAA mouthpiece indicated that the strategy is to pursue "significant" sharers of files in contributory infringement cases. I think that they have a pretty good case. YMMV. I'm a chickenshit scaredy-cat myself.
Remember, more people used Napster than voted for Bush.
So what? First, election 2000 talk is just flamebait, but I will address your premise. Second, more people speed than voted for anyone. More people have consumed alcohol underage at some point in their lives than voted for all candidates combined in the last presidential election.
It's irrelevant what "more people" do. The fact that many people break the law does not mean that a court will allow a law-breaker to skate when a case is brought.
Regarding the quotes you cite, here are my thoughts:
Adam Cohen, a partner in the litigation department of Weil, Gotshal & Manges LLP, said the music industry in its battle shows "a lack of concern with alienating the consumer
The above is just a business case argument, and is not really a statement of legal issues. Someone in this subject posted a fictitious Jack Valenti quote along the lines of "What do you mean? We sued the fuckers and they still don't want to buy our products?" I agree. It sounds stupid. On the other hand, they can't compete with free. They are forced to pick their poison here -- the NPR story had a quote from the RIAA guy saying something to the effect of "we have a whole generation of kids that we have to train to buy music." They are right to a point. Whether their strategy will work is certainly open to debate, but they don't exactly have a "lady and tiger" choice -- it's more like a "tiger and lion" choice.
Cohen, who has represented online radio and Webcasting services on copyright issues, noted the Napster case ended with a bankruptcy but left open the legal debate on targeting individuals who copy music for non-commercial purposes.
Well, all I can say is that he has his bias -- look at who he represents. On the other hand, he does have a point on Napster. I do think that the warez-type of cases are pretty good evidence that he's wrong, however. I don't see a court ruling that putting thousands of valuable pieces of IP on the internet and then looking the other way when people download them is innocent conduct. Again, YMMV and proceed at your own risk. I won't be sharing files anytime soon. Especially not when I can buy used CDs at amazon for a buck (just got an Everclear disk for a buck plus shipping -- I own it and the RIAA got nothing on the resale -- I call that a "win-win").
Don't get me wrong -- I think the RIAA is a bunch of stinking cunts. On the other hand, I do not think that they are entirely wrong from a legal perspective. That distinction (what is and what should be) is important legally.
Ultimately, what we really need to see is a significant rethinking of intellectual property law. That may seem like a pipe dream, but technology may force it to happen, and I am not totally pessimistic on the prospect. Either way (changed IP law or no), there will continue to be huge disruptions in the static media business as their business models and organizations come under a continued and increasing assault in the digital age.
GF.
They simply don't have the resources in lawyers and the like to take this to a widespread level.
/. mindset is generally opposed to the idea that sharing copyrighted music files is breaking the law, but I think that you will find that the courts will disagree.
You have no idea what you are talking about. I saw Directv do this to a bunch of people in federal court over access cards.
What they do is hire an el-cheapo lawyer with some federal court skills and they file a complaint against 50 or so people. Then they use the logs that they have generated to convince a judge that the case should be decided at summary judgment.
Half the plaintiffs ignore the pleadings and get hit with default judgments and the other half talk to a lawyer and find out that, yeah, they broke the law and there is no reasonable defense. Then they negotiate a deal on the order of several to ten thousand dollars (which is what Directv was doing in my area).
The lawyer gets a percentage of what he collects for the big company, and the consumers get slammed for stealing.
I'm sorry that the
That being said, I think copyright needs some revision, but I think you seriously underestimate the exposure that real people have here and how it can fuck up their lives. I have actually seen it happen to others and I know several attorneys (who are good attorneys) who could do nothing to stop it in the Directv cases. I expect that the RIAA stuff will be almost verbatim in how it works.
GF.
Other industries have successfully used litigation against individuals in similar sorts of cases. Directv has sued hundreds of people who simply bought access cards, for instance. Every case that I saw settled for significant damages.
The RIAA is going to have beaucoup proof that people broke the law, and some people are going to pay extremely heavy prices. Those cases will buy big publicity in newspapers, etc. Publicity that the RIAA cannot get elsewhere. This will come home to roost, and if you have been swapping files, I would not just laugh this off. I know people that had to pay Directv significant amounts of money for buying access cards. The same thing will happen to file swappers, and it will have a significant impact on their financial well-being.
GF.
The legal system uses latin quite a bit.
Mostly the latin I hear around the courthouse is along the lines of "ets-lay eek-snay outay or-fay a-ay inrk-dray ith-way at-thay ot-hay enographer-stay"
Either that, or "Judge X is a fucking horse's ass", although maybe the root on tat is a little more anglo-saxon in origin.
GF.
That's right. SCO filed in state court.\
Yoiks. They sure did. I did read the complaint already, but I could have sworn it was filed in federal court, partly because of the basic nature of the complaint. I obviously need some gingko or something.
As far as whether Utah is fact or notice pleading, can't help there. In my state you see the distinction and it looked like the difference between fact and notice pleading to me, hence my thought that it was a federal case.
either SCO did very poor legal preparation, or they intentionally filed in the wrong court
Not the wrong court. Just one from which IBM is entitled to ask for removal to federal court. See below for more on this.
IBM is probably smart to try to yank it into federal court -- the judges tend to be better than state court judges, plus IBM assuredly has a bang-up federal court team. They surely looked into the inclinations of the judges likely to get the case as well. The Utah lineup of state court judges may well be less than exemplary. Also, who the heck knows what Utah law is like as interpreted by state courts? Federal court interpretations can vary somewhat, although they are dealing with the same precedents and statutes, divergence does occur from time to time.
So, SCO may have filed in Utah just because it was closer and cheaper. They did nothing wrong by doing it, and they probably expected a push by IBM for removal to federal court. IBM assuredly has a presence in Utah, and can be hailed into state court there. They surely have a corporate agent or office in Utah. It's not as though it is inapropriate to file suit in state court D against large company X which is headquartered in state B and incorporated in state C when you live and do business with them in State D.
As far as IBM filing a "snarky "Notice of Removal" which basically says "yo, morons, unlike you we are NOT a Delaware corporation, so try suing us in the right court, mmmkay? Diversity of jurisdiction and all that."-type response instead of a detailed pleading, well, if you are going to be in federal court anyway, why show any cards now?
IMHO, and IIAL, both parties have done the right thing the right way and smartly for themselves.
GF.
[from the salon.com article you referenced]
The filing is an almost comically terse list denying all but the most indisputable claims that SCO makes.
Federal court uses what is called "notice" pleading. Basically, a plaintiff lays out its theories in the complaint, and the defendant denies them. The actual facts are fleshed out in discovery. Other jurisdictions require "fact" pleading, which mandates that you set forth the facts you will attempt to prove at trial in order to satisfy the elements of each count contained in your complaint.
Of course IBM will deny everything that SCO puts in a "notice" pleading complaint. An SCO complaint in a "fact" pleading jurisdiction would likely have been much more involved and likely IBM would have had a different response.
In federal court, you really can't look at the pleadings and make much of a judgment about what is going on. You need to have the inside scoop in discovery, such as viewing deposition transcripts.
JNG