As even McCain once put it: winning a war isn't about defeating your enemy, but rather ensuring that you do not become your enemy. We cannot defeat a foe who has no respect for human rights if we ourselves don't respect human rights. If we stoop to their level, we are no better than they.
If you're willing to live as someone no better than the foe you hope to defeat, I am simply baffled by your sense of ethics. It is better to die a good man than to live as a wicked one.
Not to be glib, but I think you're confusing the way litigation/prosecutions are depicted on TV/news with the way they actually occur.
It's difficult for the public to keep the proper understanding, because they typically don't see the entire case. They hear an article about the indictment, or the conviction or acquittal, but rarely follow all the goings-on. The burdens of proof in civil and criminal matters have, if anything, shifted in favor of defendants in the last decade or two. However, on the other hand, class-action settlements have increased (wherein plaintiffs get money without evidence) because of the cost-benefit ratio of "full litigation" to "early settlement": sometimes it's cheaper to buy silence than prove innocence.
This is a case of "a little knowledge is dangerous": without having a better, more robust sense of how cases actually progress, you've developed a sense that they no longer require the plaintiff/prosecutor to prove their case. The reality is very much the opposite, as anyone who actually is a part of the legal system would agree.
"BTW: Tea and Cookies don't yield very good intel from Terrorists willing to blow up little children!"
Neither does torture. While several CIA propaganda pieces have alleged that actionable intel was gathered, there has yet to be a single documented example provided to the public. Instead, all we have are "we promise, we promise!" which doesn't mean much when said by an agency with a well-documented recent history of deception.
Regardless of anything the CIA does, TorrentSpy deserves to be punished for having destroyed evidence (regardless further of whether they initially did anything wrong). It is also true that the CIA should be punished accordingly, but the failure of the courts to deal with that yet is simply irrelevant in the discussion of this case.
If you're sued, DON'T DESTROY EVIDENCE! It eliminates any credibility, and exposes you to situations like this.
To be clear: I'm not arguing the RIAA's point here from an ethical standpoint, but rather explaining the legal issue. However I feel about a given law, I am nonetheless bound by it (and thus face consequences when I break it) unless I can show the law itself to have been unconstitutional. Here, however we all feel about these laws, this woman violated them and committed torts against the plaintiffs. She's liable, to the degree the law allows. Don' t like it? Change the laws.
Now, as to your specific point: your argument is valid, and I'm sorry to tell you that there isn't an easy answer.
First, all lines are arbitrary, when we decide that only Amount X of something is legal/non-tortious but all amounts above X are illegal/tortious. It doesn't matter whether we're talking about drugs ("personal possession" vs. "intent to distribute"), illegal funds, or copyright violations. So, something you've just got to accept is that the legislature (and to a lesser extent, the judiciary) are always forced to pick a line somewhere. The alternative is the absence of any line, i.e. complete legality. While we may argue for that sometimes, it doesn't change the responsibilities of the courts today.
Second, I agree with you entirely that file-sharing may, in fact, lead to greater sales in some situations for the RIAA. In fact, I think it's undeniable, in the same way that mix-tapes helped propel bands in the previous era of music (i.e. 70s-80s-early 90s). It is a simple fact that plenty of people are exposed to artists they would never encounter, in this fashion. However, it is entirely difficult (if not impossible) to determine the ratio of these sharing-generated sales to the sharing-lost sales.
Specifically, consider this: suppose I'm wishy-washy about a new Interpol album, and I download a track illicitly. I may or may not like the track, and thus may or may not buy the album as a result. How do you - in any reliable fashion - correlate the two in a manner that would enable the RIAA to know whether my sharing cost them a sale, or earned them one?
Now, you asked another question, which is pretty clever: what if the Defendant could prove conclusively that 100% of the people who downloaded data from her deleted it immediately, without either playing the data back (remember, a single playback is definitely a violation) or sharing it with others? Your question is clever because it proposes a situation where actual damages appears to be calculable (which would preclude the court from considering conjectural damages, generally). However, the issue is that it only appears so: in reality, the mere act of being visible as sharing is destructive to the trademark and copyright of the rights-owner. Think about it this way: if I see you on the street, offering to sell bootlegs of a movie in theaters, you're already damaging their rights. True, you may never sell a single bootleg, but the act of telling people that the copyrighted material is accessible in that way degrades the value of an exclusive copyright.
This is the issue many people have a hard time understanding: the value of a copyright/trademark is not just the right to exploit the intellectual property, but also the right to prevent others from exploiting it. By asserting your ability to exploit it regardless of the rights-owner's desire, you're actually diminishing the rights-owner's very rights! Damage is immediate.
Of course, the calculation of damages to be granted by the court is complicated, and I don't think I could do it full justice here without a series of legal citations, etc. Suffice to say, federal courts generally have a very significant discretion regarding damages (both juries and judges). There are limits - here, imposed by statute, if I recall correctly - but our nation's laws require the court to be able to make some plastic decisions about the particular issues in a specific case. This woman, as an example, blatantly lied to the court (as far as the fact-finders determined) about what happened, and for most courts that means greater fines. Perhaps if she'd come in contrite and penitent, they'd have given her a lighter fine. That's the vaguenesses of civil suits.
The irony of your statement may not be readily apparent, but it's quite severe:
1. Until this century, no one suggested any methodological connection between diet/exercise and health or weight. All people knew was that generally eating more meant you probably would be heavier. After all, in post-Rome Western cultures, "exercise" didn't exist until scientists and doctors finally revealed to society the consequences of their actions. In other words, this "simple" advice is based on a great deal of science which is only recently common knowledge. Ironically, most people still ignore it, indicating that the acceptance of that science is quite low.
2. The concept of sunscreen, in much the same way, is only a few decades old and represents an even greater example of how the "simple" nature of the advice only exists once you understand the causal relationship between sunburns and cancer (plus age lines, etc.).
3. Condoms are an even greater example: today, most people in the third world are completely ignorant of why condoms are a good idea. The catholic church still calls the use of condoms a sin, and their official scientist has claimed that the AIDS virus can be communicated through condoms (not just through a tear).
If people took the time to understand the law the way they understand things like sunscreen (and the related medicine/science), then this wouldn't be an issue. The problem is that people think that they are educated enough to make statements about the law when they lack such education. It simply isn't the same thing.
That's just not how the law works: when you commit a tort that is a necessary step in the commission of someone else's tort, you're almost always culpable for their tort. In criminal matters, it's even more so (in fact, the USA unlike other western countries still has the full version of the felony murder law, which here includes criminal liability for anyone who contributes to a murder basically).
Not only is her tort necessary for her friends' torts, it encourages it (if not outright soliciting).
So, what, you didn't understand the very sentence you quoted? The impossibility of proving actual damages - either their existence or the lack thereof - means that the inquiry into actual damages stops. If it is impossible to determine whether her actions did or did not damage the plaintiffs, they don't have to try. The burden of proof shifts, then, because the courts have different rules regarding proving conjectural damages.
Why is it that people without medical degrees are chastised for acting as if they understand a specific, complicated medical issue and giving bad advice to a doctor, but other people without legal degrees are praised for acting as if they understand an equally specific and complicated legal issue and giving bad advice to lawyers/lawmakers/judges?
If you do not understand an issue in any field - law, medicine, engineering, etc. - the correct stance is not "Well, I'm entitled to my opinion!", but rather "I should learn more about this before shooting my mouth off and looking the fool."
This represents a fundamental failure to understand the damages issue here: each upload she contributed to is not the end of her violation. Instead, each upload triggers a downstream ripple effect of more uploads. It's simple math: if I share with two friends, and each of them share with two friends, etc. etc. etc.
Thus, the issue is not merely how many people she uploaded to, but rather the total amount of damages she inflicted upon the plaintiffs. The calculation of those damages has to include the collateral effects of her uploading, such as the ability (and proclivity) of those people to upload as well. This simply is not as straight-forward to calculate as you are suggesting.
Because we all know, no courts ever consider the DOJ a good source of argument...
Realistically, this is expected but not necessarily a big deal; had the DOJ presented some new argument here - one which was more powerful than the existing arguments - that would have been problematic. Here, they've done little more than endorse the existing arguments.
Ironically, I now must apologize to the AC I was replying to: I somehow misread his tone, and thought he was directly criticizing jargon, when in fact he was guessing that jargon is valuable. My mistake.
You're extremely mistaken: some "lawyer speak", i.e. jargon, is utterly required for the same reason that it's required in engineering, in medicine, etc.
Jargon allows for a specificity that colloquial language simply cannot possess: for example, by having specific meanings of words like "pleadings" or "plausibility", the Courts possess a uniformity across the nation that would be lost if each individual court were permitted to say "well, to me, 'plausible' means X".
Your intuition - that law is complicated - is correct, but you're firmly wrong in light of hundreds of years of debate in philosophy of language. It is firmly settled - with literally no dispute by any philosopher any more - that the specificity of a term is inversely related to the ease of understanding, because the more specific a term is the more collateral information is necessary in order to understand that term's definition. Put simpler, the more narrowly you define a term (e.g. "plausibility" here), the more information any reader must possess in order to understand what is meant by that term.
The side effect of this is that in fields that require a great deal of specificity - e.g. the professions (medicine, law) or the trade fields (engineering, masonry, etc.) - then there is a great deal of collateral information that readers need to understand in order to comprehend what is going on.
Here's a basic legal summary of why Twombly is the active issue here:
Before Twombly, a case called Conley was the dominant SCOTUS case explaining exactly what standards a Plaintiff's court pleadings must satisfy in order to, in our parlance, "state a claim". In truth, Conley was extremely ambiguous, and for years the courts had decried it as a waste of time and money.
Twombly has now established that pleadings must, as a bare minimum, describe enough alleged facts so that - when the court assumes all of them to be true for the sake of a Motion to Dismiss - the pleadings allege a "plausible" claim. This means it has to be slightly more than "possible": for example, it's possible that I am in fact Bill Gates, but it's simply not plausible
Now, the most practical effect of Twombly in district courts around the country so far (it's an August 2007 decision) has been that it is no longer sufficient to simply say "The defendant did X to me", and then simply list the alleged components of X as defined by law. Instead, plaintiffs now have to allege sufficient facts that move it across that fine line.
Here, the Judge has simply stated that the Plaintiff has filed to properly allege his complaint; this is no different than if the Plaintiff had alleged rape but failed to allege forceful sexual assault.
Well, I haven't read the congressional history so I don't know for sure what damages are alleged. However, the State has a vested interest in, among other things, the property rights of its citizenry, not to mention the economy. Presumably - though this is a guess - that's the source of damages.
Standing is an artificial object: it is created by law, and needn't correspond with anyone's intuitions about who has the right to complain. While standing exists in a highly limited capacity for non-statutory claims, almost 100% of claims which can be filed in court (criminal or civil) have their issues of standing defined by statute.
If the Legislature passes a law creating standing for the DOJ in civil cases such as this, then standing exists. Of course, like all laws, such a law could be challenged (and depending on the merits, be overturned), but that's all standing is.
Prior restraint issues, among others, would appear. If companies were preemptively prevented from calling people, that amounts to a prior restraint without sufficient justification. However, with an opt-out list, companies are only prevented from calling those people who have explicitly requested such treatment. This way, the government hasn't restrained the companies a priori.
It is never torture to warn you of the legal consequences of your actions, where all of those consequences are themselves legal.
This is a simple, and well-codified legal principle: you are always permitted to tell people what the consequences of their actions are, so long as you do not threaten anything illegal. If you say you're going to do something, and I warn you that I'll sue you if you do so, that's not torture. If I'm the DA, and I warn you that if you don't plea out I'm going to aggressively pursue your guilty verdict, that's not torture. Moreover, even though this is running afield of the original topic here, it's not compulsion either.
I cannot be spoken of as "compelling" you to do something, merely by informing you of the legitimate consequences of your actions. There, your own choices compel you. If I were threatening you with illegal actions - e.g. violence - then I'm compelling you.
Your ignorance of law here is astounding, given the authority you seem to think you have.
As two others have already pointed out, Booker rendered all guidelines discretionary.
As for appeal structure: it is not as simple as "go through all the state courts, then the federal courts, then file habeas." Most states do not have mandatory appeals after the trial level, and most of the time you will be unable to move to federal court.
As for common law claims: they don't, except for a few stragglers, exist anymore. Moreover, as already posted in this thread the American move to statutory law instead of common law was explicitly designed to prevent the courts from engaging in capricious and arbitrary decision-making. The actual tradition of the American legal system is a move towards increasing codification of the law, period.
Finally, you do nothing to address my actual point: if you're going to espouse the claim that only the judiciary has jurisdiction over the sentencing for a particular crime, then you are going to have to accept the idea that this judiciary may one day have a very different view on sentencing than the legislature. If the legislature thinks IP violation is a crime, but the judiciary refuses to impose any criminal sentence (while nonetheless not finding the conjectural IP law unconstitutional), then the legislature has no power over criminal law at all.
The checks-and-balance system works - when it works - because each branch literally needs the other two branches in order to actually have any power at all: the judiciary is meaningless without the legislature creating and the executive enforcing laws, etc.
The mistake you're making - and it is one many people make - is assuming that "value" and "price" are synonymous. They are not: price is merely one aspect of value.
Think about it this way: in any economic exchange (e.g. buying a product at a store), both parties believe they receive the benefit of the bargain. This is in fact the basis of the market, that both parties to a bargain believe they are benefited by it. Yet, both parties know that the other person disagrees with their assessment of value. After all, if I'm paying you $5 for an apple, I value the apple over the $5 while you value the $5 over the apple. This means that we agree on the price of the bargained goods, but we disagree about their value.
We might conceptualize this more clearly by rephrasing "price" as "economic value", i.e. a sub-set of the various "values" that can be attached to an object. Other values might include "practical value" (i.e. how usable a good is, in your context), "emotional value" (i.e. personal and non-economic significance), etc.
Thus, two crimes may have different total values - for example, the collateral effects of crack dealing are very different from the collateral effects of rape, and thus their negative-values will vary - and yet have the same punitive price (i.e. prison sentence). The problem is that there is no singular means to fully compare the impact of two ontologically different crimes. To use the same example, crack dealing creates collateral crime because it encourages the addicts to engage in petty theft and robbery to fund their habit. This pattern of low-level crime depreciates the value of a neighborhood in countless ways (discouraging visitors, reducing rent, etc). Crack dealing, then, has a diffuse and broadly-aimed but shallow collateral impact. Rape, on the other hand, does very little to the neighborhood but creates a tremendous impact upon the victim. To keep the same terms, rape has a narrow, specific and extremely deep collateral impact. There is no doubt that, given any sentencing scheme, you could deal enough crack to earn exactly the same sentence as rape. Suppose (and these numbers are fake, obviously) dealing 5 grams of crack were 1 year, while rape was 10 years. If you deal 50 grams of crack, you get the same sentence as if you raped someone.
Now, no one thinks that dealing 50 grams of crack has the same negative-value as the single rape, yet they have the same jail-price. This doesn't mean they're equivalent, but rather that they cost the criminal the same.
The plural, as Slashdotters often note, of "anecdote" is not "data". Yet still, let's consider Nifong (the prosecutor of the Duke lacrosse players). He did none - I mean zero - of the alleged offenses. He investigated thoroughly, and only charged the boys with a few offenses (specifically nothing more than what the lying alleged-victim claimed). His mistakes - and they were horrible and grievous, and deserving of disbarment) were in HIDING evidence he discovered of their innocence, based on his political goals.
There are many flavors of incompetence and criminality, and it would be wise to keep them distinct.
Punishment in a criminal system may exist to rehabilitate, to extract vengeance, to directly deter (i.e. prevent that criminal from committing new offenses), or indirectly deter (i.e. to dissuade others from committing new offenses, out of fear of punishment).
To my knowledge, no western nation has ever announced that one and one alone of these goals was now "the" objective of their penal system. Far from it, pragmatics (i.e. how much money is available, per prisoner) has almost always set this issue. When you have a lot of money, you look to rehabilitate and directly deter. When you have almost no money, you look to extract vengeance and deter indirectly and directly. Along the spectrum in between, we see a continuum of functionality in punishment.
If we were primarily concerned with rehabilitation, we would never imprison a non-violent offender with one who was violent; we would never confine prisoners of one level of offense (e.g. petty theft) with their superiors in the field (e.g. grand theft); etc. Rehabilitation is the hardest and most expensive of punishments, because it demands a comprehensive program of reeducation, training and all the analysis that goes along. In today's world, few nations (western or otherwise) have the resources to do much more than deterrence.
1. Show me any statistics on this alleged proclivity of prosecutors;
2. Show me the definition of "torture" that includes a prosecutor saying "I have enough evidence to get past a grand jury for these counts against you.";
3. Show me a D.A. who has a documented record of having done any of the above as a means of avoiding their actual work;
You may find it strange, yet I don't hear you complaining that multiple drug-offenses might result in the same sentence, despite a similar lack of violence.
Just because all criminal justice is meted out with only a few currencies of punishment - fines, imprisonment, community service, public shaming - does not mean that offenses with identical sentences are somehow equal. It simply means they have the same "price" for the perpetrator.
Consider a $50 video game, and $50 worth of food. No one would say that the food is the same as the video game, or that it is "strange" to charge as much for a single video game as you would charge for two meals. This is because while the two have the same price to the consumer, they are never suggested to be equivalent.
Slashdot Mirror
As even McCain once put it: winning a war isn't about defeating your enemy, but rather ensuring that you do not become your enemy. We cannot defeat a foe who has no respect for human rights if we ourselves don't respect human rights. If we stoop to their level, we are no better than they.
If you're willing to live as someone no better than the foe you hope to defeat, I am simply baffled by your sense of ethics. It is better to die a good man than to live as a wicked one.
Not to be glib, but I think you're confusing the way litigation/prosecutions are depicted on TV/news with the way they actually occur.
It's difficult for the public to keep the proper understanding, because they typically don't see the entire case. They hear an article about the indictment, or the conviction or acquittal, but rarely follow all the goings-on. The burdens of proof in civil and criminal matters have, if anything, shifted in favor of defendants in the last decade or two. However, on the other hand, class-action settlements have increased (wherein plaintiffs get money without evidence) because of the cost-benefit ratio of "full litigation" to "early settlement": sometimes it's cheaper to buy silence than prove innocence.
This is a case of "a little knowledge is dangerous": without having a better, more robust sense of how cases actually progress, you've developed a sense that they no longer require the plaintiff/prosecutor to prove their case. The reality is very much the opposite, as anyone who actually is a part of the legal system would agree.
"BTW: Tea and Cookies don't yield very good intel from Terrorists willing to blow up little children!"
Neither does torture. While several CIA propaganda pieces have alleged that actionable intel was gathered, there has yet to be a single documented example provided to the public. Instead, all we have are "we promise, we promise!" which doesn't mean much when said by an agency with a well-documented recent history of deception.
The one doesn't invalid the other.
Regardless of anything the CIA does, TorrentSpy deserves to be punished for having destroyed evidence (regardless further of whether they initially did anything wrong). It is also true that the CIA should be punished accordingly, but the failure of the courts to deal with that yet is simply irrelevant in the discussion of this case.
If you're sued, DON'T DESTROY EVIDENCE! It eliminates any credibility, and exposes you to situations like this.
To be clear: I'm not arguing the RIAA's point here from an ethical standpoint, but rather explaining the legal issue. However I feel about a given law, I am nonetheless bound by it (and thus face consequences when I break it) unless I can show the law itself to have been unconstitutional. Here, however we all feel about these laws, this woman violated them and committed torts against the plaintiffs. She's liable, to the degree the law allows. Don' t like it? Change the laws.
Now, as to your specific point: your argument is valid, and I'm sorry to tell you that there isn't an easy answer.
First, all lines are arbitrary, when we decide that only Amount X of something is legal/non-tortious but all amounts above X are illegal/tortious. It doesn't matter whether we're talking about drugs ("personal possession" vs. "intent to distribute"), illegal funds, or copyright violations. So, something you've just got to accept is that the legislature (and to a lesser extent, the judiciary) are always forced to pick a line somewhere. The alternative is the absence of any line, i.e. complete legality. While we may argue for that sometimes, it doesn't change the responsibilities of the courts today.
Second, I agree with you entirely that file-sharing may, in fact, lead to greater sales in some situations for the RIAA. In fact, I think it's undeniable, in the same way that mix-tapes helped propel bands in the previous era of music (i.e. 70s-80s-early 90s). It is a simple fact that plenty of people are exposed to artists they would never encounter, in this fashion. However, it is entirely difficult (if not impossible) to determine the ratio of these sharing-generated sales to the sharing-lost sales.
Specifically, consider this: suppose I'm wishy-washy about a new Interpol album, and I download a track illicitly. I may or may not like the track, and thus may or may not buy the album as a result. How do you - in any reliable fashion - correlate the two in a manner that would enable the RIAA to know whether my sharing cost them a sale, or earned them one?
Now, you asked another question, which is pretty clever: what if the Defendant could prove conclusively that 100% of the people who downloaded data from her deleted it immediately, without either playing the data back (remember, a single playback is definitely a violation) or sharing it with others? Your question is clever because it proposes a situation where actual damages appears to be calculable (which would preclude the court from considering conjectural damages, generally). However, the issue is that it only appears so: in reality, the mere act of being visible as sharing is destructive to the trademark and copyright of the rights-owner. Think about it this way: if I see you on the street, offering to sell bootlegs of a movie in theaters, you're already damaging their rights. True, you may never sell a single bootleg, but the act of telling people that the copyrighted material is accessible in that way degrades the value of an exclusive copyright.
This is the issue many people have a hard time understanding: the value of a copyright/trademark is not just the right to exploit the intellectual property, but also the right to prevent others from exploiting it. By asserting your ability to exploit it regardless of the rights-owner's desire, you're actually diminishing the rights-owner's very rights! Damage is immediate.
Of course, the calculation of damages to be granted by the court is complicated, and I don't think I could do it full justice here without a series of legal citations, etc. Suffice to say, federal courts generally have a very significant discretion regarding damages (both juries and judges). There are limits - here, imposed by statute, if I recall correctly - but our nation's laws require the court to be able to make some plastic decisions about the particular issues in a specific case. This woman, as an example, blatantly lied to the court (as far as the fact-finders determined) about what happened, and for most courts that means greater fines. Perhaps if she'd come in contrite and penitent, they'd have given her a lighter fine. That's the vaguenesses of civil suits.
The irony of your statement may not be readily apparent, but it's quite severe:
1. Until this century, no one suggested any methodological connection between diet/exercise and health or weight. All people knew was that generally eating more meant you probably would be heavier. After all, in post-Rome Western cultures, "exercise" didn't exist until scientists and doctors finally revealed to society the consequences of their actions. In other words, this "simple" advice is based on a great deal of science which is only recently common knowledge. Ironically, most people still ignore it, indicating that the acceptance of that science is quite low.
2. The concept of sunscreen, in much the same way, is only a few decades old and represents an even greater example of how the "simple" nature of the advice only exists once you understand the causal relationship between sunburns and cancer (plus age lines, etc.).
3. Condoms are an even greater example: today, most people in the third world are completely ignorant of why condoms are a good idea. The catholic church still calls the use of condoms a sin, and their official scientist has claimed that the AIDS virus can be communicated through condoms (not just through a tear).
If people took the time to understand the law the way they understand things like sunscreen (and the related medicine/science), then this wouldn't be an issue. The problem is that people think that they are educated enough to make statements about the law when they lack such education. It simply isn't the same thing.
That's just not how the law works: when you commit a tort that is a necessary step in the commission of someone else's tort, you're almost always culpable for their tort. In criminal matters, it's even more so (in fact, the USA unlike other western countries still has the full version of the felony murder law, which here includes criminal liability for anyone who contributes to a murder basically).
Not only is her tort necessary for her friends' torts, it encourages it (if not outright soliciting).
So, what, you didn't understand the very sentence you quoted? The impossibility of proving actual damages - either their existence or the lack thereof - means that the inquiry into actual damages stops. If it is impossible to determine whether her actions did or did not damage the plaintiffs, they don't have to try. The burden of proof shifts, then, because the courts have different rules regarding proving conjectural damages.
Why is it that people without medical degrees are chastised for acting as if they understand a specific, complicated medical issue and giving bad advice to a doctor, but other people without legal degrees are praised for acting as if they understand an equally specific and complicated legal issue and giving bad advice to lawyers/lawmakers/judges?
If you do not understand an issue in any field - law, medicine, engineering, etc. - the correct stance is not "Well, I'm entitled to my opinion!", but rather "I should learn more about this before shooting my mouth off and looking the fool."
This represents a fundamental failure to understand the damages issue here: each upload she contributed to is not the end of her violation. Instead, each upload triggers a downstream ripple effect of more uploads. It's simple math: if I share with two friends, and each of them share with two friends, etc. etc. etc.
Thus, the issue is not merely how many people she uploaded to, but rather the total amount of damages she inflicted upon the plaintiffs. The calculation of those damages has to include the collateral effects of her uploading, such as the ability (and proclivity) of those people to upload as well. This simply is not as straight-forward to calculate as you are suggesting.
Because we all know, no courts ever consider the DOJ a good source of argument...
Realistically, this is expected but not necessarily a big deal; had the DOJ presented some new argument here - one which was more powerful than the existing arguments - that would have been problematic. Here, they've done little more than endorse the existing arguments.
Ironically, I now must apologize to the AC I was replying to: I somehow misread his tone, and thought he was directly criticizing jargon, when in fact he was guessing that jargon is valuable. My mistake.
You're extremely mistaken: some "lawyer speak", i.e. jargon, is utterly required for the same reason that it's required in engineering, in medicine, etc.
Jargon allows for a specificity that colloquial language simply cannot possess: for example, by having specific meanings of words like "pleadings" or "plausibility", the Courts possess a uniformity across the nation that would be lost if each individual court were permitted to say "well, to me, 'plausible' means X".
Your intuition - that law is complicated - is correct, but you're firmly wrong in light of hundreds of years of debate in philosophy of language. It is firmly settled - with literally no dispute by any philosopher any more - that the specificity of a term is inversely related to the ease of understanding, because the more specific a term is the more collateral information is necessary in order to understand that term's definition. Put simpler, the more narrowly you define a term (e.g. "plausibility" here), the more information any reader must possess in order to understand what is meant by that term.
The side effect of this is that in fields that require a great deal of specificity - e.g. the professions (medicine, law) or the trade fields (engineering, masonry, etc.) - then there is a great deal of collateral information that readers need to understand in order to comprehend what is going on.
Here's a basic legal summary of why Twombly is the active issue here:
Before Twombly, a case called Conley was the dominant SCOTUS case explaining exactly what standards a Plaintiff's court pleadings must satisfy in order to, in our parlance, "state a claim". In truth, Conley was extremely ambiguous, and for years the courts had decried it as a waste of time and money.
Twombly has now established that pleadings must, as a bare minimum, describe enough alleged facts so that - when the court assumes all of them to be true for the sake of a Motion to Dismiss - the pleadings allege a "plausible" claim. This means it has to be slightly more than "possible": for example, it's possible that I am in fact Bill Gates, but it's simply not plausible
Now, the most practical effect of Twombly in district courts around the country so far (it's an August 2007 decision) has been that it is no longer sufficient to simply say "The defendant did X to me", and then simply list the alleged components of X as defined by law. Instead, plaintiffs now have to allege sufficient facts that move it across that fine line.
Here, the Judge has simply stated that the Plaintiff has filed to properly allege his complaint; this is no different than if the Plaintiff had alleged rape but failed to allege forceful sexual assault.
I would posit that you've never heard of tub-girl.
Well, I haven't read the congressional history so I don't know for sure what damages are alleged. However, the State has a vested interest in, among other things, the property rights of its citizenry, not to mention the economy. Presumably - though this is a guess - that's the source of damages.
Standing is an artificial object: it is created by law, and needn't correspond with anyone's intuitions about who has the right to complain. While standing exists in a highly limited capacity for non-statutory claims, almost 100% of claims which can be filed in court (criminal or civil) have their issues of standing defined by statute.
If the Legislature passes a law creating standing for the DOJ in civil cases such as this, then standing exists. Of course, like all laws, such a law could be challenged (and depending on the merits, be overturned), but that's all standing is.
(a) It is the company's line; what are you talking about?
(b) It's prior restraint because that's the term we use when the government restrains speech before it occurs.
Prior restraint issues, among others, would appear. If companies were preemptively prevented from calling people, that amounts to a prior restraint without sufficient justification. However, with an opt-out list, companies are only prevented from calling those people who have explicitly requested such treatment. This way, the government hasn't restrained the companies a priori.
It is never torture to warn you of the legal consequences of your actions, where all of those consequences are themselves legal.
This is a simple, and well-codified legal principle: you are always permitted to tell people what the consequences of their actions are, so long as you do not threaten anything illegal. If you say you're going to do something, and I warn you that I'll sue you if you do so, that's not torture. If I'm the DA, and I warn you that if you don't plea out I'm going to aggressively pursue your guilty verdict, that's not torture. Moreover, even though this is running afield of the original topic here, it's not compulsion either.
I cannot be spoken of as "compelling" you to do something, merely by informing you of the legitimate consequences of your actions. There, your own choices compel you. If I were threatening you with illegal actions - e.g. violence - then I'm compelling you.
Your ignorance of law here is astounding, given the authority you seem to think you have.
As two others have already pointed out, Booker rendered all guidelines discretionary.
As for appeal structure: it is not as simple as "go through all the state courts, then the federal courts, then file habeas." Most states do not have mandatory appeals after the trial level, and most of the time you will be unable to move to federal court.
As for common law claims: they don't, except for a few stragglers, exist anymore. Moreover, as already posted in this thread the American move to statutory law instead of common law was explicitly designed to prevent the courts from engaging in capricious and arbitrary decision-making. The actual tradition of the American legal system is a move towards increasing codification of the law, period.
Finally, you do nothing to address my actual point: if you're going to espouse the claim that only the judiciary has jurisdiction over the sentencing for a particular crime, then you are going to have to accept the idea that this judiciary may one day have a very different view on sentencing than the legislature. If the legislature thinks IP violation is a crime, but the judiciary refuses to impose any criminal sentence (while nonetheless not finding the conjectural IP law unconstitutional), then the legislature has no power over criminal law at all.
The checks-and-balance system works - when it works - because each branch literally needs the other two branches in order to actually have any power at all: the judiciary is meaningless without the legislature creating and the executive enforcing laws, etc.
The mistake you're making - and it is one many people make - is assuming that "value" and "price" are synonymous. They are not: price is merely one aspect of value.
Think about it this way: in any economic exchange (e.g. buying a product at a store), both parties believe they receive the benefit of the bargain. This is in fact the basis of the market, that both parties to a bargain believe they are benefited by it. Yet, both parties know that the other person disagrees with their assessment of value. After all, if I'm paying you $5 for an apple, I value the apple over the $5 while you value the $5 over the apple. This means that we agree on the price of the bargained goods, but we disagree about their value.
We might conceptualize this more clearly by rephrasing "price" as "economic value", i.e. a sub-set of the various "values" that can be attached to an object. Other values might include "practical value" (i.e. how usable a good is, in your context), "emotional value" (i.e. personal and non-economic significance), etc.
Thus, two crimes may have different total values - for example, the collateral effects of crack dealing are very different from the collateral effects of rape, and thus their negative-values will vary - and yet have the same punitive price (i.e. prison sentence). The problem is that there is no singular means to fully compare the impact of two ontologically different crimes. To use the same example, crack dealing creates collateral crime because it encourages the addicts to engage in petty theft and robbery to fund their habit. This pattern of low-level crime depreciates the value of a neighborhood in countless ways (discouraging visitors, reducing rent, etc). Crack dealing, then, has a diffuse and broadly-aimed but shallow collateral impact. Rape, on the other hand, does very little to the neighborhood but creates a tremendous impact upon the victim. To keep the same terms, rape has a narrow, specific and extremely deep collateral impact. There is no doubt that, given any sentencing scheme, you could deal enough crack to earn exactly the same sentence as rape. Suppose (and these numbers are fake, obviously) dealing 5 grams of crack were 1 year, while rape was 10 years. If you deal 50 grams of crack, you get the same sentence as if you raped someone.
Now, no one thinks that dealing 50 grams of crack has the same negative-value as the single rape, yet they have the same jail-price. This doesn't mean they're equivalent, but rather that they cost the criminal the same.
The plural, as Slashdotters often note, of "anecdote" is not "data". Yet still, let's consider Nifong (the prosecutor of the Duke lacrosse players). He did none - I mean zero - of the alleged offenses. He investigated thoroughly, and only charged the boys with a few offenses (specifically nothing more than what the lying alleged-victim claimed). His mistakes - and they were horrible and grievous, and deserving of disbarment) were in HIDING evidence he discovered of their innocence, based on his political goals.
There are many flavors of incompetence and criminality, and it would be wise to keep them distinct.
Punishment in a criminal system may exist to rehabilitate, to extract vengeance, to directly deter (i.e. prevent that criminal from committing new offenses), or indirectly deter (i.e. to dissuade others from committing new offenses, out of fear of punishment).
To my knowledge, no western nation has ever announced that one and one alone of these goals was now "the" objective of their penal system. Far from it, pragmatics (i.e. how much money is available, per prisoner) has almost always set this issue. When you have a lot of money, you look to rehabilitate and directly deter. When you have almost no money, you look to extract vengeance and deter indirectly and directly. Along the spectrum in between, we see a continuum of functionality in punishment.
If we were primarily concerned with rehabilitation, we would never imprison a non-violent offender with one who was violent; we would never confine prisoners of one level of offense (e.g. petty theft) with their superiors in the field (e.g. grand theft); etc. Rehabilitation is the hardest and most expensive of punishments, because it demands a comprehensive program of reeducation, training and all the analysis that goes along. In today's world, few nations (western or otherwise) have the resources to do much more than deterrence.
Wow, generalize irrationally much?
1. Show me any statistics on this alleged proclivity of prosecutors;
2. Show me the definition of "torture" that includes a prosecutor saying "I have enough evidence to get past a grand jury for these counts against you.";
3. Show me a D.A. who has a documented record of having done any of the above as a means of avoiding their actual work;
You may find it strange, yet I don't hear you complaining that multiple drug-offenses might result in the same sentence, despite a similar lack of violence.
Just because all criminal justice is meted out with only a few currencies of punishment - fines, imprisonment, community service, public shaming - does not mean that offenses with identical sentences are somehow equal. It simply means they have the same "price" for the perpetrator.
Consider a $50 video game, and $50 worth of food. No one would say that the food is the same as the video game, or that it is "strange" to charge as much for a single video game as you would charge for two meals. This is because while the two have the same price to the consumer, they are never suggested to be equivalent.