No, it's about solving more problems, full stop. The worry over making solutions resource-efficient only happens when the market begins to perceive them as scarce. Of course, by the time that happens, we may already be five miles up the creek, with a paddle the size of a tablespoon. There are a couple of problems with this comment. First, it assumes that all impact on resources are externalities. Externalities, like pollution, are a problem and legal solutions may be the only way to get companies to correctly account for the impact on resources. Other resources, are inputs to products. These resources are accounted for by the market forces of supply and demand. Therefore, the drive for resource efficiency is created long before companies "perceive them as scarce," but rather occur as soon as an innovation can effect the bottom line. A company will pursue efficiency when the benefits outweigh the costs. That said, the short sightedness you have complained of may enter into the cost-benefit analysis, companies may be focused on the short-term rather than the long-term.
Second, your comment assumes that the market is the cold collection of line graphs you see in text books. However, the market/society is made of people that are not solely driven by market forces. Society, as a collective, may be slow to recognize the need for change. But engineers and other leaders can be a force for change long before society get the message. However, ultimately, finding "best solutions" must be a societal goal.
It should also be mentioned that many of the "problems" technology has to solve today are byproducts of the last few iterations of technological solutions. Such is the painful reality of human learning. Each generation has faith in their understanding of science only to leave the next generation to discover their deficiencies and the problematic results.
Please leave our country, and take your Green Card with you.
You're not welcome here anymore.
Thank you. Let me get this straight through an example:
Efficiency is something to fear because it destroys jobs and those that disagree with that proposition must be foreign. Therefore, the use of a backhoe (an efficient technology) is a job killer and should be feared. Rather than one person driving a backhoe, 20 people with shovels could be employed.
Thats ridiculous logic (I hope its not a strawman). Sounds like you don't even need a green card to benefit.
Are we becoming a society where we just need less people? Except, of course, as consumers... Objectification of humanity is not a recent development. Name a period in history where the mass of humanity wasn't viewed as a collective to be manipulated and used. I believe our society has at least improved somewhat over monarchies and dictatorships.
Technology (technology might be better defined broader to include economic, legal, and other types of technology) is about solving more problems with less resources. The only reason solving problems with less resources could ever be a problem is if we ran out of problems.
A common source of pain from new technologies is exhaustion of problems in a niche (rather than the entire set of available problems). For example, the problem of how to make a better horse drawn carriage has been solved. Those who have invested in education in their niche are faced with the pain of trying to find a new niche. Solutions to problems can devastate entire industries.
Solutions to problems can also bring tremendous prosperity. Improving electronic production processes has made computers etc. accessible to even the poorest of our citizens.
Your newsroom example does not appear to be caused by use of technology but rather poor management or a failing business model (if technology is defined to include management techniques, perhaps the newsroom is suffering from not using technology). However, journalism is not an area where there is any lack of problems to solve and the industry trend of scaling back on journalists is disconcerting (especially in Iraq where journalist levels have declined in proportion to the decline in violence). Eventually, society will demand more reliability in journalism afforded by better coverage of issues.
Oh to find a Luddite article on the front page of Slashdot.
Lets explore some other tragic job stealing moments in history:
the invention of the wheel - stole jobs from the carriers ...
the invention of the computer - stole jobs from the abacus users ...
the invention of Web 2.0 - stole jobs from IT
Seriously, our job as technologists is to make things more efficient. Efficiency inevitably means less resources are used. Using less resources inevitably leads to less need for manpower.
Efficiency is not to be feared. If you think about it, your life is better because of efficiency, think of what your life would be like without job killing efficient technology.
For everyone making the "advertising/ information" "non-story" distinction. Think it through. What if [insert your favorite cause/politician] couldn't advertise on the only network television station in town because one of the opponent's names was trademarked? "Go to this web site to find out why a certain someone sucks" just doesn't cut it. Especially when your opponent is running ads 24/7 naming you as the worst candidate ever. As a hypothetical, what if Hillary Clinton couldn't use any of her opponent's names in a primary ad because they were trademarked. Would she say "that black guy is wrong, vote Hillary?" Or, "that guy that is [x] tall with [y] hair color is wrong on health care?" Now mix in the twist that all Hillary's opponents could name her because her name wasn't trademarked.
Advertising is information, there is not a valid distinction based on the fact that people pay to have their information disseminated. Advertising, especially political, is protected by the First Amendment. Google is not a state actor and the First Amendment doesn't apply. But when Google is essentially the only game in town, what good is free speech when it can't be exercised?
These ads use the name MoveOn, not to criticise it, but to get attention from people who already hate MoveOn. Criticism, in its etymological sense, depends on analysis. There's not such thing in these ads. In its wider sense, "criticism" means expressing disapproval, but these ads don't even do that: they take disapproval for granted. It's no more critical than an ad that says: "Does MoveOn piss you off? Relax, have a Budweiser." Even if your distinction were valid, Google does not even attempt to make it. Even valid discourse (by your standard) is swept up in the Google policy's wake.
Physical invention may still deserve patent protection (but I doubt it), but software is far too advanced to need it and in fact is hampered by such outmoded ways of treating the economy. I agree that there should not be software patents, but I still think the distinction is the pace of change and the ease to market. The software market is very fast paced because software is so dynamic and flexible. Further, it is not hard to capitalize on software. A physical invention is distinguishable. Development may take years and getting to market may take longer because of distribution chains etc. Finally, it should be noted that some software may be deserving of patent protection under my observations. If capitalization on the software invention is somehow burdened by the development and distribution difficulties suffered by physical inventions, I would argue it should be patentable. However, software patents should be a very narrow exception to the general rule that software inventions are not patentable.
Remember, the reason for patents is to spur invention and I think it does. Take the pharmaceutical industry for example, generic drug makers don't do R&D. Generics don't have to do R&D, patent law has required that the brands release the secrets behind their drugs. Do you seriously think the brands would have the sizable R&D programs they do without patent protection? Progress would be impeded in a vital area of technology without patents.
Basically, a ad had a trademark on it, and the trademark owner asked for the ad to be removed? Not really big news...
It'll be news if they submitted an ad WITHOUT infringing on a trademark, and that was rejected. You've really missed a huge issue here. In this case, trademark law is being invoked to stifle criticism of a political organization. Further, it turns out that Google's policy is being employed to stifle criticism of big corporations ranging from Wallmart to Exxon.
As pointed out elsewhere using a corporation's name is not infringement. Google's policy is obviously a shield against frivolous infringement litigation, but it is stifling criticism of those hiding behind baseless trademark claims. This is a demonstration of just how dangerous Google's position of monopolistic power over information has become.
I would have hoped that a Slashdotter would be more astute in protecting his rights.
It's good to see that the original inventors and holders of this patent will finally be compensated for their innovation.
Oh wait... the company that holds the patent now (IP Innovation) has nothing to do with the original inventors? Well, I hope any damages they are awarded will encourage them to innovate. The ability to enforce was part of the bargain with the inventor, it was priced in to the deal. The deal is, the inventor gets money right away and doesn't have to mess with enforcement. Therefore, innovation is furthered even with patent trolls. Its the same formula as any other investment transaction, an investor pays a sum upfront to the seller in the hopes that the investment will mature into a profit. Both sides are happy.
Our patent system is broken. It is broken but not because a third party is doing the enforcement of the patent. Under your theory, individual inventors are responsible for enforcement, which will seldom be profitable for any inventor without their own legal department.
Rather, the system is broken because of the length of the monopoly (maybe not monopoly after the E-Bay case) granted to the holder. Technology advances at a fast pace and patents definitely impede that pace. The length of a patent is designed to give inventors time to capitalize on their investment. Inventors as individuals obviously need more time to capitalize. However, where, as here, the inventor sells the patent to a larger organization or it is a large company that does the inventing, there is less concern over their ability to capitalize. I believe the length granted should take account of the modern reality of patent generation and investment.
Jury Nullification refers to a rendering of a not guilty verdict by a trial jury
This is not a criminal case, the appropriate terminology is "not liable." To the best of my knowledge, jury nullification is exclusively for criminal cases.
With that said, I think the biggest argument against copyright law in its current form is that it has become a criminal law enforced by a private organization. Copyright law was designed with infringement by companies in mind, e.g. a publisher making money reprinting an artist's work. The fines, when applied to individuals with no pecuniary gain, becomes grossly excessive under the circumstances. The size of a fine is usually a factor in a court's determination of whether a law is a criminal one (I believe there are securities cases to this effect but I don't have time to dig out the casebook). What if copyright law is a criminal law enforced by a private actor? Viewed in this light, copyright law may be unconstitutional
DISCLAIMER: I haven't researched this theory AT ALL.
Diesel and in particular biodiesel in the research I have seen have a much higher rate of particulates in its exhaust as well as other poisonous gasses. The studies I have seen are an almost 50% reduction in particulates with biodiesel, and almost complete reduction in sulfer.
The only long term solution is electric/hydrogen powered cars combined with proper public transport and good infrastructure for bikers. unfortunately the electric cars are a long way off. In the US, electricity comes from coal and biking infrastructure and public transport has only limited value due to climate and population dispersion. There has to be more than one long term solution, a long term solution will be a mixture of many solutions.
In response to California's threat to shut this project down, I need to comment on my experiences with the so-called "eco" state.
I was doing the Orange County to Encino commute daily for a summer clerkship and wanted a good mileage car. As a farm state kid fascinated with the idea of biodiesel, the car I settled on was the diesel Jetta. However, to my great amazement the diesels couldn't be purchased in California. This in spite of the fact that the diesels get better mileage than hybrids. I had to go to Vegas to buy my Jetta and my first tank was biodiesel. The hybrids were awarded with car pool lane status while my better mileage, (potentially) less polluting diesel was relegated to 2nd class status.
Good work. Except you missed the bit where Australian corporations doing business in Australia come under the jurisdiction of their relevant state and federal laws, and precedents from judgments in New Mexico, a state of the United States of America, are barely likely to be considered, let alone binding.
Texas adopts the Restatement Second Conflict of Laws Most Significant Relationship test. Therefore, it is conceivable that the interest of the forum (Texas) would be strong enough to warrant application of forum law rather than foreign. See Hughes Wood Products, Inc. v. Wagner 18 S.W.3d 202 Tex.,2000 (stating "Texas courts use the "most significant relationship" test to decide choice of law issues.") and RESTATEMENT 2d CONFL 6. A "pierce of the corporate veil" could conceivably be used to impute the contacts of the parent corp to the sibling thus giving the Texas courts jurisdiction through their long arm statute.
I forgot to mention that for some reason Due Process has been interpreted to apply to aliens (not from this country not little green men) as well. So yes the precedent is inconsistent.
Creative Commons website asks the user questions about what he or she wants in a license as surely as I would were that person sitting in my office. Then, Creative Commons generates a license to fit the person's apparent need.
also brings up the issue of whether CC is engaging in unauthorized practice of law.
You get an "A" on your issue spotting. Nice.
I guess the argument goes that the girl was an intended beneficiary of the drafted license. (e.g. Lebya v. Whitley 907 P.2d 172 (N.M. 1995)(proceeds of wrongful death suit belonged to decedant's son but was distributed to the decedent's mother by the attorneys)).
I think we've figured out why CC was sued. Thanks, that was cool (but I should be studying my UCC).
Seriously, did you even read what you quoted? Damn!
I whole heartedly agree with you that the word person is used. However, the reason the Fourteenth Amendment defines the word "citizen" is because of the historical interpretation of the pre-Civil War courts that the word "person" meant only white American males were entitled to the protections of the Fifth Amendment. See Citizenship and Civil Rights; Citizenship Clause. The text is not the end of Constitutional analysis. There are four catagories of analysis text, history, precedent, and policy. Even Judge Bork thought that history should be included in the analysis. Bork was actually rejected in confirmation hearings partly because of his rejection of precedent and policy in the constitutional analysis. Advocates of the "historical gloss" or "living constitution" theories would claim that your text centric analysis disallows the flexibility that our constitution was designed to provide. The "historical gloss" crowd sees the Constitution as a mere outline to be reworked by the judiciary of subsequent generations as needed.
I am now working for a Los Angeles firm but I grew up in South Dakota. Your approach to Constitutional analysis is similar to the South Dakota Supreme Court's "plain meaning" rule of construction. That court sees the text as the end of the analysis, the underlying reasoning being if the legislature ment something different, they should have stated it clearer. Further, if the court's interpretation is wrong the political (democratic) process can fix it through amendment/ new legislation.
Perhaps because the license only ensures that the photographer - but not the person on the photo - has given his permission?
Right and wrong. The photographer gave permission that was not his to give. She did not consent to her picture being licensed in this way. Even if she had, the girl is a minor and therefore not legally capable of consent (her contracts are voidable).
The doctrine of derivative title says you can only give away the rights you have, nothing more.
Before there can be malpractice there has to be an attorney client relationship (or intended beneficiary). An attorney client relationship is measured by a "reasonable belief" standard. First, the only one that could possibly claim such a relationship is the person that took the photo and licensed it. However, any belief that there was an attorney client relationship is patently unreasonable. Creative Commons makes it explicitly clear by putting at the very top of the license (conspicuously):
CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.
The fact that someone uses some form contract/license they found on the web does not raise the specter of malpractice.
Civil Procedure geeks will ask whether Virgin Mobile Australia had the requisite "minimum contacts" with the state of Texas to satisfy the due process clause of the Fourteenth Amendment. See http://en.wikipedia.org/wiki/International_Shoe.
Good call.
I wonder if they are going to try to leverage the US arm of Virgin to pierce the corporate veil. Empire Steel of Texas v. Superior Court (CA 1961), TACA Int'l. Airlines Inc. v. Rolls Royce Ltd. (NJ 1964), and Frazier v. Alabama Motor Club, Inc. (5th Cir 1965) have all held that the contacts of a subsidiary can be good against a parent. While I haven't seen a sibling corp's contacts used against another sibling, cases have allowed "piercing" through a sibling to access a sibling with deeper pockets.
But it's not the counselor being sued (although it should be). In fact, it sounds like he is claiming damages as well.
The counselor should be sued? Thats bad precedent. By this reasoning I deserve to get sued every time I post a picture with people who haven't signed a release to me. I had better go take my shared picture album off the web.
Similar exceptions may apply in reverse, as this photo was used in an ad in **Australia** not the the US.
Maybe not. We haven't covered this in my conflict of laws class yet, but it looks like Texas uses a "Most Significant Relationship" test in deciding whether to apply Texas law or foreign law. Hughes Wood Products, Inc. v. Wagner 18 S.W.3d 202 Tex.,2000 (stating "Texas courts use the "most significant relationship" test to decide choice of law issues."). Again, I have not studied this yet, but the factors considered in deciding whether to apply forum or foreign law are:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of the other interested states and the relative interests of those states in determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
RESTATEMENT 2d CONFL 6. The Restatement 2d rules are relatively modern. Under the older choice of law rules Australian law would have automatically been applied by the Texas court. For an example of a US court applying a foreign country's law see McDermott Inc. v. Lewis 531 A.2d 206 (Del. 1987).
Without a model release signed by the girl (and her parents if under 18) the counselor will lose the case. Use of someone's image in a commercial context requires a model release from any identifiable people in the image.
You make a good point about the necesity of a release but the counselor is in the clear. From TFA the counselor wasn't named in the suit. Further, the lawsuit is seeking damages for libel (written defamation). One of the elements of that cause of action is some sort of false or damaging statement. The counselor did not make such a statement and therefore couldn't be held liable for libel (law student joke).
The TFA did say the Plaintiffs named Creative Commons which is a big mystery. Creative Commons holds no rights in the license and makes clear it is not providing legal services. The closest analogy to this situation is a third party suing the attorney that drafted a legal document. The only way people win in these suits is if they were the intended beneficiaries of the contract/instrument (easiest case is the will case where an attorney error screws someone out of money from the will).
And whenever a right is not granted to a person who is not a citizen of the united states, those conditions are explicitly enumerated:
Article I: No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.
Article II: No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
And more importantly, article III says:
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
http://www.law.cornell.edu/constitution/constitution.articleiii.html
Text, History, Precedent, and policy says your wrong. I'll just do text and history because I don't have time to dig out the casebook.
The first two provisions exempted specific citizens, those not born here.
The third made "foreign states, citizens or subjects" subject to Article III judiciary (foreigners can be sued in US Federal Court)
The Fourteenth Amendment is more relevant to the question at hand:
Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Only citizens get rights. The reason that the Fourteenth Amendment uses the word "citizen" is because it was originally assumed that "persons" were white landed Americans. After the Civil-War changed all that the Fourteenth Amendment used the word "Citizen" explicitly because the courts were interpreting person to exclude African-Americans from the rights afforded by the Constitution. Women were later found to be "Persons" under the Constitutional language.
If you make a purely textual argument it is important to recognize the history behind it. Try the The Congressional Record
Or, perhaps, like how some neighborhoods dislike black people, and thus have homeowner agreements that require that black people never be allowed to purchase the property?
You're a few years off (59), it is unconstitutional for courts to enforce these agreements. Shelley v. Kraemer (USSCT 1948) IAA3YLS (sitting in Trusts and Wills class)
I'm surprised that the environmentalists here haven't cried foul about the cultivation of a non-native super weed. The potential for genetically modified plants to "take over" is one of the main arguments against GMOs. This plant sounds like it achieves that result with a plant that was genetically modified by nature.
Slashdot Mirror
Second, your comment assumes that the market is the cold collection of line graphs you see in text books. However, the market/society is made of people that are not solely driven by market forces. Society, as a collective, may be slow to recognize the need for change. But engineers and other leaders can be a force for change long before society get the message. However, ultimately, finding "best solutions" must be a societal goal. It should also be mentioned that many of the "problems" technology has to solve today are byproducts of the last few iterations of technological solutions. Such is the painful reality of human learning. Each generation has faith in their understanding of science only to leave the next generation to discover their deficiencies and the problematic results.
Efficiency is something to fear because it destroys jobs and those that disagree with that proposition must be foreign. Therefore, the use of a backhoe (an efficient technology) is a job killer and should be feared. Rather than one person driving a backhoe, 20 people with shovels could be employed.
Thats ridiculous logic (I hope its not a strawman). Sounds like you don't even need a green card to benefit.
Technology (technology might be better defined broader to include economic, legal, and other types of technology) is about solving more problems with less resources. The only reason solving problems with less resources could ever be a problem is if we ran out of problems.
A common source of pain from new technologies is exhaustion of problems in a niche (rather than the entire set of available problems). For example, the problem of how to make a better horse drawn carriage has been solved. Those who have invested in education in their niche are faced with the pain of trying to find a new niche. Solutions to problems can devastate entire industries.
Solutions to problems can also bring tremendous prosperity. Improving electronic production processes has made computers etc. accessible to even the poorest of our citizens.
Your newsroom example does not appear to be caused by use of technology but rather poor management or a failing business model (if technology is defined to include management techniques, perhaps the newsroom is suffering from not using technology). However, journalism is not an area where there is any lack of problems to solve and the industry trend of scaling back on journalists is disconcerting (especially in Iraq where journalist levels have declined in proportion to the decline in violence). Eventually, society will demand more reliability in journalism afforded by better coverage of issues.
Oh to find a Luddite article on the front page of Slashdot.
...
...
Lets explore some other tragic job stealing moments in history:
the invention of the wheel - stole jobs from the carriers
the invention of the computer - stole jobs from the abacus users
the invention of Web 2.0 - stole jobs from IT
Seriously, our job as technologists is to make things more efficient. Efficiency inevitably means less resources are used. Using less resources inevitably leads to less need for manpower.
Efficiency is not to be feared. If you think about it, your life is better because of efficiency, think of what your life would be like without job killing efficient technology.
For everyone making the "advertising/ information" "non-story" distinction. Think it through. What if [insert your favorite cause/politician] couldn't advertise on the only network television station in town because one of the opponent's names was trademarked? "Go to this web site to find out why a certain someone sucks" just doesn't cut it. Especially when your opponent is running ads 24/7 naming you as the worst candidate ever. As a hypothetical, what if Hillary Clinton couldn't use any of her opponent's names in a primary ad because they were trademarked. Would she say "that black guy is wrong, vote Hillary?" Or, "that guy that is [x] tall with [y] hair color is wrong on health care?" Now mix in the twist that all Hillary's opponents could name her because her name wasn't trademarked.
Advertising is information, there is not a valid distinction based on the fact that people pay to have their information disseminated. Advertising, especially political, is protected by the First Amendment. Google is not a state actor and the First Amendment doesn't apply. But when Google is essentially the only game in town, what good is free speech when it can't be exercised?
Remember, the reason for patents is to spur invention and I think it does. Take the pharmaceutical industry for example, generic drug makers don't do R&D. Generics don't have to do R&D, patent law has required that the brands release the secrets behind their drugs. Do you seriously think the brands would have the sizable R&D programs they do without patent protection? Progress would be impeded in a vital area of technology without patents.
As pointed out elsewhere using a corporation's name is not infringement. Google's policy is obviously a shield against frivolous infringement litigation, but it is stifling criticism of those hiding behind baseless trademark claims. This is a demonstration of just how dangerous Google's position of monopolistic power over information has become.
I would have hoped that a Slashdotter would be more astute in protecting his rights.
Rather, the system is broken because of the length of the monopoly (maybe not monopoly after the E-Bay case) granted to the holder. Technology advances at a fast pace and patents definitely impede that pace. The length of a patent is designed to give inventors time to capitalize on their investment. Inventors as individuals obviously need more time to capitalize. However, where, as here, the inventor sells the patent to a larger organization or it is a large company that does the inventing, there is less concern over their ability to capitalize. I believe the length granted should take account of the modern reality of patent generation and investment.
This is not a criminal case, the appropriate terminology is "not liable." To the best of my knowledge, jury nullification is exclusively for criminal cases.
With that said, I think the biggest argument against copyright law in its current form is that it has become a criminal law enforced by a private organization. Copyright law was designed with infringement by companies in mind, e.g. a publisher making money reprinting an artist's work. The fines, when applied to individuals with no pecuniary gain, becomes grossly excessive under the circumstances. The size of a fine is usually a factor in a court's determination of whether a law is a criminal one (I believe there are securities cases to this effect but I don't have time to dig out the casebook). What if copyright law is a criminal law enforced by a private actor? Viewed in this light, copyright law may be unconstitutional
DISCLAIMER: I haven't researched this theory AT ALL.
In response to California's threat to shut this project down, I need to comment on my experiences with the so-called "eco" state.
I was doing the Orange County to Encino commute daily for a summer clerkship and wanted a good mileage car. As a farm state kid fascinated with the idea of biodiesel, the car I settled on was the diesel Jetta. However, to my great amazement the diesels couldn't be purchased in California. This in spite of the fact that the diesels get better mileage than hybrids. I had to go to Vegas to buy my Jetta and my first tank was biodiesel. The hybrids were awarded with car pool lane status while my better mileage, (potentially) less polluting diesel was relegated to 2nd class status.
Texas adopts the Restatement Second Conflict of Laws Most Significant Relationship test. Therefore, it is conceivable that the interest of the forum (Texas) would be strong enough to warrant application of forum law rather than foreign. See Hughes Wood Products, Inc. v. Wagner 18 S.W.3d 202 Tex.,2000 (stating "Texas courts use the "most significant relationship" test to decide choice of law issues.") and RESTATEMENT 2d CONFL 6. A "pierce of the corporate veil" could conceivably be used to impute the contacts of the parent corp to the sibling thus giving the Texas courts jurisdiction through their long arm statute.
I forgot to mention that for some reason Due Process has been interpreted to apply to aliens (not from this country not little green men) as well. So yes the precedent is inconsistent.
also brings up the issue of whether CC is engaging in unauthorized practice of law.
You get an "A" on your issue spotting. Nice.
I guess the argument goes that the girl was an intended beneficiary of the drafted license. (e.g. Lebya v. Whitley 907 P.2d 172 (N.M. 1995)(proceeds of wrongful death suit belonged to decedant's son but was distributed to the decedent's mother by the attorneys)).
I think we've figured out why CC was sued. Thanks, that was cool (but I should be studying my UCC).
I whole heartedly agree with you that the word person is used. However, the reason the Fourteenth Amendment defines the word "citizen" is because of the historical interpretation of the pre-Civil War courts that the word "person" meant only white American males were entitled to the protections of the Fifth Amendment. See Citizenship and Civil Rights; Citizenship Clause. The text is not the end of Constitutional analysis. There are four catagories of analysis text, history, precedent, and policy. Even Judge Bork thought that history should be included in the analysis. Bork was actually rejected in confirmation hearings partly because of his rejection of precedent and policy in the constitutional analysis. Advocates of the "historical gloss" or "living constitution" theories would claim that your text centric analysis disallows the flexibility that our constitution was designed to provide. The "historical gloss" crowd sees the Constitution as a mere outline to be reworked by the judiciary of subsequent generations as needed.
I am now working for a Los Angeles firm but I grew up in South Dakota. Your approach to Constitutional analysis is similar to the South Dakota Supreme Court's "plain meaning" rule of construction. That court sees the text as the end of the analysis, the underlying reasoning being if the legislature ment something different, they should have stated it clearer. Further, if the court's interpretation is wrong the political (democratic) process can fix it through amendment/ new legislation.
Right and wrong. The photographer gave permission that was not his to give. She did not consent to her picture being licensed in this way. Even if she had, the girl is a minor and therefore not legally capable of consent (her contracts are void able ).
The doctrine of derivative title says you can only give away the rights you have, nothing more.
Before there can be malpractice there has to be an attorney client relationship (or intended beneficiary). An attorney client relationship is measured by a "reasonable belief" standard. First, the only one that could possibly claim such a relationship is the person that took the photo and licensed it. However, any belief that there was an attorney client relationship is patently unreasonable. Creative Commons makes it explicitly clear by putting at the very top of the license (conspicuously):
CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.
The fact that someone uses some form contract/license they found on the web does not raise the specter of malpractice.
Good call.
I wonder if they are going to try to leverage the US arm of Virgin to pierce the corporate veil. Empire Steel of Texas v. Superior Court (CA 1961), TACA Int'l. Airlines Inc. v. Rolls Royce Ltd. (NJ 1964), and Frazier v. Alabama Motor Club, Inc. (5th Cir 1965) have all held that the contacts of a subsidiary can be good against a parent. While I haven't seen a sibling corp's contacts used against another sibling, cases have allowed "piercing" through a sibling to access a sibling with deeper pockets.
The counselor should be sued? Thats bad precedent. By this reasoning I deserve to get sued every time I post a picture with people who haven't signed a release to me. I had better go take my shared picture album off the web.
Maybe not. We haven't covered this in my conflict of laws class yet, but it looks like Texas uses a "Most Significant Relationship" test in deciding whether to apply Texas law or foreign law. Hughes Wood Products, Inc. v. Wagner 18 S.W.3d 202 Tex.,2000 (stating "Texas courts use the "most significant relationship" test to decide choice of law issues."). Again, I have not studied this yet, but the factors considered in deciding whether to apply forum or foreign law are:
(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of the other interested states and the relative interests of those states in determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability, and uniformity of result, and (g) ease in the determination and application of the law to be applied. RESTATEMENT 2d CONFL 6. The Restatement 2d rules are relatively modern. Under the older choice of law rules Australian law would have automatically been applied by the Texas court. For an example of a US court applying a foreign country's law see McDermott Inc. v. Lewis 531 A.2d 206 (Del. 1987).
You make a good point about the necesity of a release but the counselor is in the clear. From TFA the counselor wasn't named in the suit. Further, the lawsuit is seeking damages for libel (written defamation). One of the elements of that cause of action is some sort of false or damaging statement. The counselor did not make such a statement and therefore couldn't be held liable for libel (law student joke).
The TFA did say the Plaintiffs named Creative Commons which is a big mystery. Creative Commons holds no rights in the license and makes clear it is not providing legal services. The closest analogy to this situation is a third party suing the attorney that drafted a legal document. The only way people win in these suits is if they were the intended beneficiaries of the contract/instrument (easiest case is the will case where an attorney error screws someone out of money from the will).
Article I: No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. Article II: No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
And more importantly, article III says: Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. http://www.law.cornell.edu/constitution/constitution.articleiii.html
Text, History, Precedent, and policy says your wrong. I'll just do text and history because I don't have time to dig out the casebook.
The first two provisions exempted specific citizens, those not born here.
The third made "foreign states, citizens or subjects" subject to Article III judiciary (foreigners can be sued in US Federal Court)
The Fourteenth Amendment is more relevant to the question at hand:
Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Only citizens get rights. The reason that the Fourteenth Amendment uses the word "citizen" is because it was originally assumed that "persons" were white landed Americans. After the Civil-War changed all that the Fourteenth Amendment used the word "Citizen" explicitly because the courts were interpreting person to exclude African-Americans from the rights afforded by the Constitution. Women were later found to be "Persons" under the Constitutional language.
If you make a purely textual argument it is important to recognize the history behind it. Try the The Congressional Record
IAA3YLS
You're a few years off (59), it is unconstitutional for courts to enforce these agreements. Shelley v. Kraemer (USSCT 1948)
IAA3YLS (sitting in Trusts and Wills class)
I'm surprised that the environmentalists here haven't cried foul about the cultivation of a non-native super weed. The potential for genetically modified plants to "take over" is one of the main arguments against GMOs. This plant sounds like it achieves that result with a plant that was genetically modified by nature.