Speaking as a law student here in the U.S. (not to get into a battle of credentials here, but, then again, you started it), I can tell you that an officer's investigation in a Terry Stop isn't an open-ended investigation - the law enforcement has to have reasonable suspicion, which means he has to be able to articulate the facts present which lead him to believe there was a crime committed (or a crime will be committed in the near future, etc). The law enforcement officer had no such reasonable suspicion when he demanded identification.
When he arrived on the scene, the law enforcement officer was responding to a false-imprisonment complaint (essentially, holding a person against their will without some legal right to do so). Ohio grants a narrow right to shopkeepers to detain shoplifters: R.C. 2935.041
(A) A merchant, or an employee or agent of a merchant, who has probable cause to believe that items offered for sale by a mercantile establishment have been unlawfully taken by a person, may, for the purposes set forth in division (C) of this section, detain the person in a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity.
Thus, whether or not Righi's detention was rightful depends on whether or not Atha had probable cause to believe that Righi had unlawfully taken items. The proper action for Officer Arroyo to take in this circumstance would be to question Atha and determine what evidence he had for his belief that Righi had unlawfully taken items. Upon hearing that the sole evidence was Righi's failure to authorize a search, Arroyo should have demanded that Atha release Righi, as he had no lawful right to detain Righi.
If Atha did have probable cause, Arroyo would have probable cause, and been allowed to search Righi's possessions to determine that he had not shoplifted anything. As part of this search, Arroyo would be authorized to demand that Righi identify himself. However, this identification does not have to be via a driver's license. Ohio law is clear on what is required when a law enforcement officer requests identification: R.C. 2921.29
(A) No person who is in a public place shall refuse to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following: (1) The person is committing, has committed, or is about to commit a criminal offense.... (C) Nothing in this section requires a person to answer any questions beyond that person's name, address, or date of birth. Nothing in this section authorizes a law enforcement officer to arrest a person for not providing any information beyond that person's name, address, or date of birth or for refusing to describe the offense observed.
According to Ohio law, Righi had complied with the officer's demand to identify himself. Arroyo had no probable cause for a search of Righi's driver's license. It is clear that the charge of "Obstructing Official Business" is not going to stick; it requires that the accused resist an "authorized" action, and his failure to yield his driver's license did not obstruct an action that Arroyo had the authority to perform.
Was Righi acting in an inefficient manner by standing up for his rights, rather than simply yielding to the illegal search? Certainly. It's generally quicker to comply with law enforcement officials and give them whatever they want, in much the same sense as it's quicker to give anyone what they want rather than arguing about it. However, "efficiency" is a particularly poor justification for illegal acts.
Your name-calling seems inappropriate; you should know as a former law-enforcement officer that you do not have the power to do whatever you like, and it's not "behaving like an ass" to resist those who would over-extend their power. Further, it seems particularly off-putting to hear such an opinion from someone with a military background. We frequently are told that the
Incorrect. The law enforcement may demand that someone they have a "reasonable suspicion" has or is committing a crime to identify themselves. Stating your name is sufficient. Further, as the summary of the Court's holding clearly states, the demand for identification may not merely be an attempt to arrest for failure to identify after the stop-and-frisk has yielded insufficient evidence for an arrest. When the officer asked for Righi's identification, he had already determined that no crime had taken place.
The DMCA has little-used put-back procedures for fighting false claims of copyright infringement. It's kind of like saying, "Put up or shut up" to the alleged infringee. They either have to sue you within two weeks, or the material has to be returned to the network.
[quote]I personally believe that it is ridiculous to hold GooTube responsible for absolutely every video that passes through, especially when they do so much filtering/removal already, but it IS wrong to profit on copyrighted works that you don't hold the rights to.
It is also my belief that it is unreasonable to place the burden upon copyright holders to monitor and notify GooTube for every single infringing video they may have.[/quote]
Thing is, that's the law as it stands right now. A content provider has the DMCA safe-harbor. So long as they qualify (which YouTube does, since they respond appropriately to DMCA takedowns), they aren't liable for infringement.
Additionally: note the lack of advertisements on video pages. There are ads on other pages, but there are none on watch.
The mere possibility of a claim is sufficient consideration for a contract. In other words, if you think there's a possibility that you have a claim against someone, you can offer to waive that claim in exchange for some sort of payment, and that contract will be upheld.
How the hell do you "sell" currency? The only entity that can do that is the Federal Reserve, selling notes that cost five or ten cents to make for face value. For everything else in the US, it's just an exchange. Hooray for pedantry. The exchange of virtual-world currency for real-world currency is frequently called a "sale" because the virtual-world currency is treated as a good rather than as currency. Dwelling on this fact is inconsequential, because whether it's called a sale or an exchange doesn't matter at all for the purpose of this discussion.
Person A gives a $5 bill to Person B in exchange for five $1 bills. Who has profitted? Nobody...it's a "like kind exchange" and obvious to anyone older than five. And yet, the IRS wants to be the sole agent for determining what is a "like kind exchange". Trading a large swamp for a small forest of equal "value"? Exchange. Trading a male cow for a female cow? Taxable. I pay $250/mo for my own medical insurance and my employer pays me $250/mo to reimburse me. Is that taxable income or a tax-free exchange? In order to know, I would have to slog through something like this:
http://www.irs.gov/irb/2005-16_IRB/ar08.html Yes, the law is complicated. Otherwise, there would be loopholes that would make the ones that exist look tiny by comparison. Deal with it: either figure it out yourself or hire more adept than yourself to do it for you.
What about trading $5 for 2.5 British pounds? Income or like-kind exchange? And now finally...trading $5 for 500 virtual coins. You make the statement unlike Monopoly money, you can sell virtual currency for real money"...wrong. If I'm playing a hotly contested game and the other player offers me $5 for 500 Monopoly bucks, then I'm doing just that. I've personally never played such a competitive Monopoly but then I probably wouldn't be paying real money to advance in WoW either. If the other player pays you $5 for your Monopoly money, that's income, and theoretically should be reported to the IRS. Of course, it's only $5, so no one cares. However, if you were paid $5,000 for that Monopoly money, you would unquestionably need to report it as income. Similarly, if you sell a WoW account on eBay for $5,000, that's income that you need to report.
That's my point...trading "real world" value for "virtual world" value is still just an exchange. If anything, it should be handled like any other currency exchange. And that raises the completely legitimate question of how I can trade $5 for $5 but not a hour for $5. According to the IRS, that's not an exchange and that's why it should be taxed...but there are a lot of people who disagree. After all, my time is a lot more finite than virtual gold, so if I trade my time (labor) for its equivalent value, that's an exchange. Ah, the whining of a tax protester. The 16th Amendment was ratified, and your "time to money" exchange is income. Grow up and accept the fact that you need to pay taxes on wages.
The problem is that in all exchanges, the IRS will recognize any gain, but will never recognise a loss. Which means that if I trade property worth $10000 for property worth $20000, then I've "gained" $10000 and am taxed on that amount but the poor unlucky sap who agreed to that trade doesn't get to deduct his $10000 "loss". And that's why it's completely bogus. Someone has invented a new form of currency, and the IRS wants to recognize that any time someone trades it for US bank notes they have "gained" income and owe tax...BUT they refuse to equally recognize that any time someone provides the new form of currency (or the labor behind creating it) they have "lost" an equal or equivalent income. Flat out untrue... not that I'm surprised that a tax protester doesn't understand how the system works. There are plenty of ways that the IRS recognizes loss. They're called "deductions." If your business loses money, you can deduct that from your taxable income. If you report gambling income and have gambling losses, you can deduct those. You can deduct the debt that you accrue on loans.
This post is more indicative of your ignorance than the ignorance of policy-makers. Then again, your subject line pretty much demonstrates that you have no idea what you're talking about.
The income in question isn't your virtual income, it's your real-world income that comes as a consequence of that virtual income. Unlike Monopoly money, you can sell your virtual currency for real money... that means that it has a real-world value. Even if you don't plan on selling your currency, it still has value because there's a market for it. If you did know what you were talking about, you would know that virtual currencies aren't a new thing... the IRS has dealt with the issue in the past when people created private bartering notes and exchanged those instead of U.S. currency. Despite being "funny money," those notes were nonetheless taxable income and needed to be declared.
A better comparison would be two poker websites. One is completely for fun; while you play for "Bucks," that money is completely fake and cannot be cashed out in any way. Another uses "PokerChips," which you can exchange for money at a fixed rate. It's clear that the first shouldn't be taxed... the "Bucks" have no real-world value. On the other hand, the second should certainly be taxed as income, as the "PokerChips" are simply a form of private currency. MMORPGs like WoW much more closely resemble the latter than the former, and there's really no question when it comes to SOE StationExchange-enabled games, where the selling of virtual property is explicitly allowed.
With that said, rather than directly taxing in-game income, it would make far more sense to only reinforce the necessity of paying income tax on the proceeds from sale of virtual goods (perhaps working with eBay and other common points of sale to catch tax cheats); to do otherwise would not only punish people who play the game for fun rather than for profit. It would also make for some rather odd tax deductions - if virtual currency is "income," every time one has to repair their equipment, they could write it off as a loss, and perhaps even use the game as a tax shelter.
U.S. Copyright law is about a utilitarian bargain between content creators and content consumers - in exchange for creating the content, the creators are given a limited monopoly on certain actions. Moral rights don't really have a foundation in American law.
Driving at an average speed rather than peaking and stopping doesn't create traffic jams, it eliminates them. By traveling at an average speed, the people behind you don't have to stop, and you can eliminate the compression wave causing the stop-and-go.
I'm saying that I *really* doubt that the people working on this contract work were declared employees for tax purposes (I really doubt that the hiring company payed FICA taxes, for instance); I *really* doubt that they received benefits from the hiring company; I *really* doubt that they were paid as the hiring company paid its employees. I'm not saying that the parties did this intentionally, I'm saying that this is most likely to be the case.
For the record:
A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. "Compilation" is defined as including "collective works," which in turn are defined as works such as periodicals, anthologies, or encyclopedias, in which a number of contributions, constituting separate and independent works in themselves are assembled into a collective whole. Yes, the contract could have been written in such a way as to assign the copyright to the hiring company. My point was quite specific: it's not going to be a work-for-hire.
How likely do you think it is that this would be held to be employer / employee relationship? The OP gives us little in the way of details, but I'd say it's really bloody unlikely, because the general practices of "development houses" wouldn't qualify. If there's a single contract with another company for development, that cuts *against* it being an employer / employee relationship, because that's how one hires a contractor, not an employee. It seems really unlikely that the programmers working on the project were considered employees for tax purposes, benefits, or pay. In short, there is not an agency relationship between the hiring party and the "development house."
No agency means no employment, which means that clause doesn't apply.
Bruce, this is particularly bad advice, because there's no way for software to be a work-for-hire in the United States, unless there's some soft of judicially-created addition to the Copyright Act that I'm not aware of. In order to be a work-for-hire, in addition to the requirement that there be an express written agreement designating the work as a work-for-hire, it must fall into one of the statutory categories:
a contribution to a collective work
part of a motion picture or other audiovisual work
a translation
a supplementary work
a compilation
an instructional text
a test
answer material for a test
an atlas
I do agree that transactional lawyers are a good thing.
You might want to read the law you're citing.
(1) In general
This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto. If you were to research the issue further, you would find:
Washington State's Commercial Electronic Mail Act, to extent it prohibits misrepresentation in transmission path of commercial email as well as false or misleading information in its subject line, falls within exception for state laws prohibiting falsity and deception to preemption under the federal Controlling the Assault of Non-Solicited Pornography and Marketings Act of 2003 (CAN-SPAM Act), which limits and penalizes transmission of unsolicited commercial email, commonly known as spam. Gordon v. Impulse Marketing Group, Inc., E.D.Wash.2005, 375 F.Supp.2d 1040.
Claim under section of Washington's Consumer Protection Act, which prohibits conspiracy to transmit commercial electronic mail message that contains false or misleading information on its subject line, was excepted from preemption under the federal Controlling the Assault of Non-Solicited Pornography and Marketings Act of 2003 (CAN-SPAM Act) under exception for state laws prohibiting falsity and deception. Gordon v. Impulse Marketing Group, Inc., E.D.Wash.2005, 375 F.Supp.2d 1040.
Maybe in Canada, but in America children do not surrender their First Amendment rights at the schoolhouse gate. Tinker v. Des Moines, 393 U.S. 503 (1969).
None of those things you cite are constitutional rights. You may think voting is a constitutional right, but the right to vote is phrased in the negative: you cannot deny the right to vote on the basis of race, sex, ability to pay a poll tax, or age *over 18*.
Perhaps you can help someone who's trying to learn it now.
We just finished covering copyright in my IP survey course, and while we covered misuse as it applied to patent law, we didn't for copyright. Is there an existing doctrine that my professor didn't get to, or is this extending the idea of patent misuse into the copyright sphere?
What are you talking about? The Gamecube controller was certainly better than the PS2 or Xbox controllers, and far and away superior to the controllers of preceding consoles.
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). This case, and the subsequent amendment of the US Code, has prompted a whole bunch of linguistic and legal fun regarding whether software users are purchasers or licensees, and what constitutes an "intended use." Regardless, a copy in RAM is considered sufficiently "fixed" to constitute a "copy" under the meaning of the term in federal law.
Slashdot Mirror
When he arrived on the scene, the law enforcement officer was responding to a false-imprisonment complaint (essentially, holding a person against their will without some legal right to do so). Ohio grants a narrow right to shopkeepers to detain shoplifters:
R.C. 2935.041
(A) A merchant, or an employee or agent of a merchant, who has probable cause to believe that items offered for sale by a mercantile establishment have been unlawfully taken by a person, may, for the purposes set forth in division (C) of this section, detain the person in a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity.
Thus, whether or not Righi's detention was rightful depends on whether or not Atha had probable cause to believe that Righi had unlawfully taken items. The proper action for Officer Arroyo to take in this circumstance would be to question Atha and determine what evidence he had for his belief that Righi had unlawfully taken items. Upon hearing that the sole evidence was Righi's failure to authorize a search, Arroyo should have demanded that Atha release Righi, as he had no lawful right to detain Righi.
If Atha did have probable cause, Arroyo would have probable cause, and been allowed to search Righi's possessions to determine that he had not shoplifted anything. As part of this search, Arroyo would be authorized to demand that Righi identify himself. However, this identification does not have to be via a driver's license. Ohio law is clear on what is required when a law enforcement officer requests identification:
R.C. 2921.29
(A) No person who is in a public place shall refuse to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following: ...
(1) The person is committing, has committed, or is about to commit a criminal offense.
(C) Nothing in this section requires a person to answer any questions beyond that person's name, address, or date of birth. Nothing in this section authorizes a law enforcement officer to arrest a person for not providing any information beyond that person's name, address, or date of birth or for refusing to describe the offense observed.
According to Ohio law, Righi had complied with the officer's demand to identify himself. Arroyo had no probable cause for a search of Righi's driver's license. It is clear that the charge of "Obstructing Official Business" is not going to stick; it requires that the accused resist an "authorized" action, and his failure to yield his driver's license did not obstruct an action that Arroyo had the authority to perform.
Was Righi acting in an inefficient manner by standing up for his rights, rather than simply yielding to the illegal search? Certainly. It's generally quicker to comply with law enforcement officials and give them whatever they want, in much the same sense as it's quicker to give anyone what they want rather than arguing about it. However, "efficiency" is a particularly poor justification for illegal acts.
Your name-calling seems inappropriate; you should know as a former law-enforcement officer that you do not have the power to do whatever you like, and it's not "behaving like an ass" to resist those who would over-extend their power. Further, it seems particularly off-putting to hear such an opinion from someone with a military background. We frequently are told that the
Incorrect. The law enforcement may demand that someone they have a "reasonable suspicion" has or is committing a crime to identify themselves. Stating your name is sufficient. Further, as the summary of the Court's holding clearly states, the demand for identification may not merely be an attempt to arrest for failure to identify after the stop-and-frisk has yielded insufficient evidence for an arrest. When the officer asked for Righi's identification, he had already determined that no crime had taken place.
The DMCA has little-used put-back procedures for fighting false claims of copyright infringement. It's kind of like saying, "Put up or shut up" to the alleged infringee. They either have to sue you within two weeks, or the material has to be returned to the network.
D 132
See: http://www.chillingeffects.org/dmca512/faq.cgi#QI
(I'm not a lawyer yet. This isn't legal advice.)
I fail at hitting preview. Dammit.
[quote]I personally believe that it is ridiculous to hold GooTube responsible for absolutely every video that passes through, especially when they do so much filtering/removal already, but it IS wrong to profit on copyrighted works that you don't hold the rights to.
It is also my belief that it is unreasonable to place the burden upon copyright holders to monitor and notify GooTube for every single infringing video they may have.[/quote]
Thing is, that's the law as it stands right now. A content provider has the DMCA safe-harbor. So long as they qualify (which YouTube does, since they respond appropriately to DMCA takedowns), they aren't liable for infringement.
Additionally: note the lack of advertisements on video pages. There are ads on other pages, but there are none on watch.
The mere possibility of a claim is sufficient consideration for a contract. In other words, if you think there's a possibility that you have a claim against someone, you can offer to waive that claim in exchange for some sort of payment, and that contract will be upheld.
Well, they did choose the most predatory monopolist of the cell phone industry, but Verizon said no.
http://www.irs.gov/irb/2005-16_IRB/ar08.html Yes, the law is complicated. Otherwise, there would be loopholes that would make the ones that exist look tiny by comparison. Deal with it: either figure it out yourself or hire more adept than yourself to do it for you. What about trading $5 for 2.5 British pounds? Income or like-kind exchange? And now finally...trading $5 for 500 virtual coins. You make the statement unlike Monopoly money, you can sell virtual currency for real money"
This post is more indicative of your ignorance than the ignorance of policy-makers. Then again, your subject line pretty much demonstrates that you have no idea what you're talking about.
The income in question isn't your virtual income, it's your real-world income that comes as a consequence of that virtual income. Unlike Monopoly money, you can sell your virtual currency for real money... that means that it has a real-world value. Even if you don't plan on selling your currency, it still has value because there's a market for it. If you did know what you were talking about, you would know that virtual currencies aren't a new thing... the IRS has dealt with the issue in the past when people created private bartering notes and exchanged those instead of U.S. currency. Despite being "funny money," those notes were nonetheless taxable income and needed to be declared.
A better comparison would be two poker websites. One is completely for fun; while you play for "Bucks," that money is completely fake and cannot be cashed out in any way. Another uses "PokerChips," which you can exchange for money at a fixed rate. It's clear that the first shouldn't be taxed... the "Bucks" have no real-world value. On the other hand, the second should certainly be taxed as income, as the "PokerChips" are simply a form of private currency. MMORPGs like WoW much more closely resemble the latter than the former, and there's really no question when it comes to SOE StationExchange-enabled games, where the selling of virtual property is explicitly allowed.
With that said, rather than directly taxing in-game income, it would make far more sense to only reinforce the necessity of paying income tax on the proceeds from sale of virtual goods (perhaps working with eBay and other common points of sale to catch tax cheats); to do otherwise would not only punish people who play the game for fun rather than for profit. It would also make for some rather odd tax deductions - if virtual currency is "income," every time one has to repair their equipment, they could write it off as a loss, and perhaps even use the game as a tax shelter.
U.S. Copyright law is about a utilitarian bargain between content creators and content consumers - in exchange for creating the content, the creators are given a limited monopoly on certain actions. Moral rights don't really have a foundation in American law.
Driving at an average speed rather than peaking and stopping doesn't create traffic jams, it eliminates them. By traveling at an average speed, the people behind you don't have to stop, and you can eliminate the compression wave causing the stop-and-go.
For the record: A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. "Compilation" is defined as including "collective works," which in turn are defined as works such as periodicals, anthologies, or encyclopedias, in which a number of contributions, constituting separate and independent works in themselves are assembled into a collective whole. Yes, the contract could have been written in such a way as to assign the copyright to the hiring company. My point was quite specific: it's not going to be a work-for-hire.
How likely do you think it is that this would be held to be employer / employee relationship? The OP gives us little in the way of details, but I'd say it's really bloody unlikely, because the general practices of "development houses" wouldn't qualify. If there's a single contract with another company for development, that cuts *against* it being an employer / employee relationship, because that's how one hires a contractor, not an employee. It seems really unlikely that the programmers working on the project were considered employees for tax purposes, benefits, or pay. In short, there is not an agency relationship between the hiring party and the "development house."
No agency means no employment, which means that clause doesn't apply.
Bruce, this is particularly bad advice, because there's no way for software to be a work-for-hire in the United States, unless there's some soft of judicially-created addition to the Copyright Act that I'm not aware of. In order to be a work-for-hire, in addition to the requirement that there be an express written agreement designating the work as a work-for-hire, it must fall into one of the statutory categories:
a contribution to a collective work
part of a motion picture or other audiovisual work
a translation
a supplementary work
a compilation
an instructional text
a test
answer material for a test
an atlas
I do agree that transactional lawyers are a good thing.
Laws are just codified rules. The question is, what rules would you want people to follow, and what penalties should exist for breaking those rules?
This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto. If you were to research the issue further, you would find: Washington State's Commercial Electronic Mail Act, to extent it prohibits misrepresentation in transmission path of commercial email as well as false or misleading information in its subject line, falls within exception for state laws prohibiting falsity and deception to preemption under the federal Controlling the Assault of Non-Solicited Pornography and Marketings Act of 2003 (CAN-SPAM Act), which limits and penalizes transmission of unsolicited commercial email, commonly known as spam. Gordon v. Impulse Marketing Group, Inc., E.D.Wash.2005, 375 F.Supp.2d 1040.
Claim under section of Washington's Consumer Protection Act, which prohibits conspiracy to transmit commercial electronic mail message that contains false or misleading information on its subject line, was excepted from preemption under the federal Controlling the Assault of Non-Solicited Pornography and Marketings Act of 2003 (CAN-SPAM Act) under exception for state laws prohibiting falsity and deception. Gordon v. Impulse Marketing Group, Inc., E.D.Wash.2005, 375 F.Supp.2d 1040.
Maybe in Canada, but in America children do not surrender their First Amendment rights at the schoolhouse gate. Tinker v. Des Moines, 393 U.S. 503 (1969).
None of those things you cite are constitutional rights. You may think voting is a constitutional right, but the right to vote is phrased in the negative: you cannot deny the right to vote on the basis of race, sex, ability to pay a poll tax, or age *over 18*.
I'm pretty sure a lawyer answering that question would run afoul of ethics rules.
Perhaps you can help someone who's trying to learn it now.
We just finished covering copyright in my IP survey course, and while we covered misuse as it applied to patent law, we didn't for copyright. Is there an existing doctrine that my professor didn't get to, or is this extending the idea of patent misuse into the copyright sphere?
What are you talking about? The Gamecube controller was certainly better than the PS2 or Xbox controllers, and far and away superior to the controllers of preceding consoles.
You're hilarious... intentionally or unintentionally.
Precedent is law. Yes, "actual law."
Check yours.
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). This case, and the subsequent amendment of the US Code, has prompted a whole bunch of linguistic and legal fun regarding whether software users are purchasers or licensees, and what constitutes an "intended use." Regardless, a copy in RAM is considered sufficiently "fixed" to constitute a "copy" under the meaning of the term in federal law.
Scalia making dumb arguments? Surely you jest... that never happens! It's not like he routinely makes arguments not supported by facts or reason.
It's actually even simpler than that. Where's the first caucus for the primaries? Iowa. Guess what grows there?