Sucks to be those aliens... since they have no way to learn about Jesus (except, of course, the Gray aliens that visit earth all the time) all those extraterrestrials will burn in hell since they never accepted Jesus Christ as their lord and savior. Brings up an interesting question - what percentage of hell is human? With all those alien species being sent to hell by default, I bet humans make up an extremely small percentage of hell's population. Even the Greys that visit earth have likely not become Catholics. Though in that one episode of South Park there was one alien species that actually was Catholic. But that's just one species, and south park is just a cartoon anyway. Make believe TV shows have no place in a discussion about magical human beings and aliens.
The Supreme Court held in State Farm Mutual Automobile Insurance Co v. Campbell et al. 538 U.S. 408 (2003) that a punitive damage award that is more than 10 times higher than the actual damages is presumably a violation of due process. Thus, it logically follows that statutory damages ($750) that are more than 1,100 times higher than actual damages are an even greater violation of due process for two reasons: First, the ratio is significantly higher, and second, the goal of statutory damages is compensatory rather than punative, so there is less of a reason to make the damages a high number; it should bear a relation to the actual damages.
The sole purpose of statutory damages in copyright law is due to the fact that actual damages are often hard if not impossible to prove. But if actual harm can be quantified in any reasonable manner, then a statutory damage award must still bear a reasonable ratio to that amount or else it would violate due process. More than 10 to 1 is improper for punative damages, I'd say more than 2-3 to 1 is improper for statutory damages (since the purpose is not to punish, but merely to compensate the copyright holder). The copyright holder can seek punative damages at trial and if they can prove their case and entitlement thereto, they can get punative damages up to 10 times higher than actual damages.
But for congress to mandate a statutory damage amount over 1,100 times higher than the actual harm/loss (per infringement!) simply must be an unconstitutional violation of due process to be consistent with existing Supreme Court precedent. This is particularly true if one argues that a portion of statutory damages include punative damages.
I'm as big a privacy advocate as anyone I know, but I don't see what the fuss is. If you don't want people to see something, don't have it out in broad daylight. There is absolutely no privacy interest in anything which is in plain view of the public. If you don't want pictures of your naked body taken through your window, don't walk around naked in your house or close your window. Google is not using any thermal imaging (I'd certainly be against it if they were) to see through walls. Your cat is seen in your window? Big deal. How is that going to get you raped or robbed? Please take me down that slippery slope, I'd like to understand, and if the logic makes sense I'm willing to change my mind. But as far as I can tell, it does not even IMPLICATE privacy for google to take a picture of the front of your house and put it on the internet (with a trillion other pictures). Anyone who drives down the street can see it and that's no different, let alone more intrusive, than riding down the virtual street on Google Maps and seeing it there. I don't understand what people are complaining of. And if it were the government doing it, all else equal, that wouldn't change my opinion (but I'd like to think the gov't has better uses of taxpayer money and manpower).
I'm not a lover of MS, but I'll give them credit, Vista is a damn good OS, much better than that POS XP, which was by far the worst iteration of windows ever made. Of course, it took MS an extra 5 years to get Vista out, so they have no excuses for buggy crapware. In the 6 weeks or so that I've had Vista running, it has not crashed once. Every now and then I have rebooted because a program required it. But no crashes. It runs fast (with 3.6 gigs of ram), clean, smooth, and does what it's supposed to. My old XP couldn't even delete files without crashing. I'm sure other people are having good experiences with Vista, too. Sure some software is not compatable, but that will be fixed soon, and everything you truly need works just fine (except Peerguardian2). So, I'm glad it is selling. When society has an OS that doesn't crash every few minutes, it stimulates the economy and lubricates the mechanics of commerce. Hell vista might even pay for itself out of an increase in GDP if enough people replace their XP with it.
I can't believe nobody has pointed out yet that a valid takedown notice must, pursuant to 17 U.S.C. 512(c)(3)(A) include, among other things:
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
This makes it a CRIME for me to send a takedown letter to someone demanding they take down something I don't like in which I do not own the copyright. In addition it makes the takedown notice invalid on its face.
Either the takedown notice in question was facially invalid, or subject to prosecution for perjury. If they are in England then they could be prosecuted by the british gov't or extradited to the US for prosecution.
Simple solution, if you can't patent the actual drug, patent the "business model" of curing cancer. We all know the PTO would grant such a patent without a second look. If "curing cancer" is too broad, then patent the business model of curing cancer with a pharmaceutical sold at a profit. That'll be more than enough to pass the rubber stamp test.
Proposition for learning the TRUTH about UFOs
on
UFOs In the News
·
· Score: 1
I have a simple proposition which, if adopted (and there is no reason not to adopt it) would allow the world to learn the truth about UFOs/extraterrestrials, presuming they actually exist and the government has made contact (Roswell, etc.).
Congress should pass a law granting absolute immunity from prosecution/retaliation/termination for anyone working for the government with security clearance who comes forward with evidence about UFOs/ETs. If the government really doesn't have UFO/ET secret knowledge, then there should be no problem with passing such a law, and nobody should be opposed to it. It kinda surprises me that nobody has thought of this before. Yes, I realize that people with such knowledge would still be afraid of being shot in the back my the MIB posse, regardless of immunity from criminal prosecution for revealing classified information. But SOMEONE would come forward. We have similar laws for immunity for employees who file workers comp claims. Merely by having such a law debated and voted on would be very informative as to who would oppose it and what their arguments would be. Bill Clinton always said he wanted to know the truth about UFOs, but he never made the logical step and proposed a law like I've just described. That means he must know UFOs are real, heh.
So, what about it? Write a letter to your congressperson. Let's get the Extraterrestrial Revelation Act of 2007 passed.
As follows is the court's opinion in this case, cut and pasted from a.PDF file off of the Federal Court's PACER website (not free, we lawyers pay for it). I don't know how to upload a.PDF file to Slashdot, so this is the best I could do.
1Defendant Robert Davis is a pro se litigant. He did not file responses to Plaintiff's Mot. for Prelim.
Inj. or Plaintiff's Motion for Partial Summary Judgment; however, he did file his Mot. to Quash within the
deadline permitted for responses to both of those motions. The court, therefore, treats Davis's Mot. to Quash
and the arguments contained therein as his response, as well as a motion seeking affirmative relief.
Memorandum Opinion and Order - Page 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LIVE NATION MOTOR SPORTS, INC.
f/k/a SFX MOTOR SPORTS, INC.,
Plaintiff,
v. Civil Action No. 3:06-CV-276-L
ROBERT DAVIS, d/b/a
TRIPLECLAMPS and
www.supercrosslive.com,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the court are several pending motions, including: Plaintiff's Motion for Preliminary
Injunction ("Plaintiff's Mot. for Prelim. Inj."), filed June 23, 2006; Defendants and Counter
Claimant's Motion to Quash Plaintiff's Motion for Partial Summary Judgment and to Quash
Plaintiff's Motion for Preliminary Injunction and to Quash Plaintiff's Proposed Findings of Fact and
Conclusions of Law in Support of Motion for Preliminary Injunction ("Mot. to Quash")1, filed July
12, 2006; Defendants [sic] and Counter Claimant's Motion for Preliminary Injunction ("Defendant's
Mot. for Prelim. Inj."), filed August 2, 2006; and Plaintiff's First Supplement to Plaintiff's Motion
for Preliminary Injunction ("Plaintiff's Suppl. Mot. for Prelim. Inj."), filed October 24, 2006. After
careful consideration of the motions, related briefs and applicable law, the court grants Plaintiff's
Motion for Preliminary Injunction; denies in part Defendant's Motion to Quash; denies Defendant
2Plaintiff filed a notice with the court on November 6, 2006, that it had changed its name from SFX
Motor Sports, Inc. to Live Nation Motor Sports, Inc. Since all of the motions, responses and accompanying
briefs addressed by this motion were filed prior to the name change, this order will refer to Plaintiff as "SFX"
for consistency and clarity.
Memorandum Opinion and Order - Page 2
and Counter Claimant's Motion for Preliminary Injunction; and denies as moot Plaintiff's First
Supplement to Plaintiff's Motion for Preliminary Injunction.
I. BACKGROUND
This is a trademark, copyright and unfair competition action filed by Plaintiff SFX Motor
Sports, Inc. ("SFX")2, on Feb. 13, 2006, against Defendant Robert Davis, d/b/a TripleClamps and
www.supercrosslive.com ("Davis"). Davis filed counterclaims against SFX alleging trademark
infringement on March 6, 2006. SFX promotes and produces motorcycle racing events known as
Supercross. The racing events take place at various venues across the country in a "season"
running from December through the following May and are broadcast live via the radio, television
and internet (referred to as "audio webcasts"). SFX contends that Davis performs and displays audio
webcasts of the racing events through his website, www.supercross.com, in violation of SFX's
copyright in and to the audio webcasts. Specifically, SFX asserts that Davis "streams" the live
webcast of the races on his website in "real time," which causes SFX irreparable harm by limiting
its right to sell sponsorships or advertisement on its own website as the "exclusive source" of the
webcasts. Plaintiff's Mot. for Prelim. Inj. at 5-6. Davis admits to providing an audio webcast "link"
to the racing events on his website, and asserts an affirmative defense. Mot. to Quash at 1. Davis's
Motion for Preliminary Injunction seeks to prohibit SFX from using the name "SupercrossLIVE,"
which Davis contends has been registered under the Trademark Act by his company, TripleClamps.
SFX responds that Davis has presented no evidence that SFX has ever used "SupercrossLIVE" as
Patents and copyright always act as a force to IMPEDE innovation. The problem is that this fact is very counterintuitive. Intellectual property exists for the sole reason of fostering innovation, and on paper it seems like it should do that. Monopoly as motive to create. Sounds logical. But communism looks good on paper too. Unfortunately both communism and IP are total and complete failures, as well as oppressive regimes which crush individual freedom. You can't publish that 30 year old email. You can have a website with a one-click purchase button. You can't market that life-saving pill. You can't cover that song. Unless you pay me a government-sanctioned extortion fee.
Patents don't just hurt innovation with new drugs. They hurt innovation accross the board. But we'll never get rid of them.
Under what authority does the Treasury Department claim to be able to pass a regulation which is a penal statute? I am not saying agencies/departments of the executive branch cannot promulgate regulations. For example, the DEA can, with approval of the attorney general, decide to make a substance a controlled substance, which would then be illegall to possess, etc. But I do not see any statute that lets the Treasury Department (in which the Mint resides) decide that doing something with coins will be punishable by up to 5 years in prison. Where is the enabling statute? Such a broad declaration sure seems like a separation of powers issue; it is for Congress to decide that people can't melt down coins.
In addition, I cannot find this proposed regulation anywhere. Not in the federal register http://www.gpoaccess.gov/fr/index.html or at regulations.gov. Can anyone find the text of this proposal? It will say under what authority the TD claims to ban melting.
As long as the RIAA remains successfull in convincing the masses that downloading a copyrighted work is the same as "stealing" that copyrighted work from a store (downloading Brittney = pocketing Brittney and walking out of the store) they will retain their power. Their entire business model is based on social acceptance of this meme, which of course is simply not true. Downloading is not stealing, as the essence of stealing/theft is the deprivation of a rightful owner of his/her property without the owner's consent. Nobody is depriving anyone of any property by downloading a copyrighted work. Loss of a potential sale is not the same thing as theft; if it were, any business who successfully competes with another business, taking away its customers, would be guilty of theft. Note that I'm not necessarily commenting on the morality of downloading copyrighted works. I'm just saying that, whatever it is, it is not a form of theft.
I think most people on slashdot are educated enough to know this subtle difference (although somoene will reply and argue with me that downloading a $5,000 CAD program is, in fact, theft). Unfortunately most people are simply not intelligent enough to understand this very subtle but hugely important difference and therefore get sucked in to believing and virally spreading the theft meme. And as long as this continues the RIAA, MPAA, etc will retain their power and lobbying ability. They spend billions advertising this meme. We've even let them into our schools to brainwash kids, who certainly are not sophisticated enough to see why this is not actually theft.
Want to crush them? Educate people about why downloading is NOT theft.
If you think "terrorism" is the problem, it's due to Bush scaring you about terrorism for the past 5 years, mentioning it every time he talks, and justifying the recission of all of our rights on protecting us from terrorism.
You will die from clogged arteries and an exploding heart. Not terrorists. Isn't it interesting that the one apparent danger (out of billions) about which Bush scares us is the one that, to remedy, involves taking away our rights and liberties? Coincidental, eh?
Simple legal solution to this problem
on
Utube Sues YouTube
·
· Score: 1
Here is a very simple solution to the problem. Make domain names presumably exempt from all trademark laws UNLESS the plaintiff can show, with clear and convincing evidence (a higher burden of proof than the usual preponderance of the evidence standard), that the owner of the domain name registered the domain in question:
(1) with the intent, at the time of the registration, to cause confusion between two products, services, entities, or existing trademarks; and
(2) the use of the domain is NOT to exercise free speech in a noncommercial way (e.g. walmartsucks.com is protected).
This protects everyone's interest, is a very clear, bright-line standard, and won't result in business owners with legitimate arguments as to why they should have a domain name fighting with someone else who legitimately, without bad intent, registered it first (like this case).
Very simple.
I'd sure like him to scan the affidavit of the FBI agent which was made in support of establishing probable cause for the search warrant. He should have it.
No you're exactly right. That's why I'm saying this case, even more than most, deserves prosecutorial discretion. I'm not saying it will GET prosecutorial discretion. I'm only saying it is highly warranted based on these facts. I expect massive frog marches, a 200 page indictment, a forfeiture claim of over 50 million dollars, and threats of life in federal prison. I also expect a guilty verdict, regardless of the statute(s) under which they indict him, and regardless of how the charged crimes do not apply to the circumstances of this case, thus requiring acquittal.
Even if he did break a law, and I'm a lawyer and I'm far from convinced that he did, this is a prime example of when the US Attorney should use some prosecutorial discretion and, after investigating the matter and being content with the subject's explanation as to what happened and why he did what he did, decide not to prosecute. The worst thing this guy did was act imprudently. No terrorists got on airplanes, nor could they have. The best thing this guy did, and I don't think there is any question about his intentions, is to bring attention to a security flaw. He took down the website when asked (maybe even prior to that) and nothing bad resulted from his actions. He had no intent to hurt anyone, no intent to steal or deprive anyone of property, and no intent to help anyone actually break the law.
So, even if he could be prosecuted, he shouldn't be. Not everyone who breaks the law should be charged with a crime.
All they are ever shown, and all they see, are fallacious reports and charts showing how much money they "have lost" and "will continue to lose" due to copyright infringement. Just like the RIAA and MPAA, they guestimate how many times people download their movies, and multiply that number (which itself is probably twice the actual amount) by the price at which they sell or plan to sell their movies. This figure is presented to management as their losses. Obviously these figures are bullshit as it is based on two false assumptions. First, that nobody buys a product after downloading it. Second, that every download is an actual lost sale (that is, the downloader would have purchased the product had he/she not downloaded it). Both of these assumptions are false, particularly when dealing with a movie/tv show with a very dedicated cult following.
But if you were a wrinkly, fat, 97 year-old white billionaire with liver spots all over your face and severe prostate issues, and you were told your company was losing 75 billion dollars every month due to product "theft" you'd react the exact same way these Universal execs did. You can't be out of touch if you're misinformed ab initio.
Wrong. Right-wingers and left-wingers both want big government. The only difference is how they justify it. Right-wingers focus on preventing crime, left-wingers focus on wealth redistribution and social programs. Neither republicans nor democrats believe there is anything the government should not be allowed to do. Their only differences lie in what they believe the government should be doing.
"By the end of the year, the surveillance had generated 4,506 arrests and 634 convictions based on wiretap evidence."
That alone tells you just how wrong those applications usually are. If they had a 100% accuracy rate, every arrest that stemmed from the wiretap would result in a conviction. OUt of 4,506 wiretap-related arrests, only 634 convictions? I'll give them the fact that some arrests are dropped in exchange for use immunity and the promise to testify against someone else, but that's not as common as it is in the movies. Rather, the deal is plead guilty to one count (still a "conviction"), tell us everything you know, and serve only 1 year or so if you tell the truth."
I expect the FISC to rubber stamp everything, hell it's in the same building as the justice department. But i'd reasonably expect 10 to 15 percent, at least, of applications to be denied. Not even one? Unreal.
As I always say, people get the government that they deserve. We don't deserve any better than bush, in fact, he is too good for us. When all that matters to a nation is beer, jesus, and football, great leaders are neither earned nor expected. I just feel bad that the rest of the world will have to suffer from our mistake.
You mean we'll see Hillary Clinton lose to Jeb Bush in '08. We have 12 more years of the Bush Dynasty, at minimum, to endure. One day thousands of years from now, archaeologists will wonder about the Dark Age experienced at the turn of the millennium.
The one good piece of news is that from now on, the crap about the winner of the Washington Redskin's game right before the election predicting the winner of the election will be citing an urban legend, rather than a coincidence.
Within 10 years there will be no more actors... just voiceover artists. It's just a matter of time before all movies are 100% CGI. I give it a decade. There were 3 100% CGI movies previewed in the coming attractions for sky captain last night alone.
liberals are just as pro-IP laws as are conservatives. clinton signed the DMCA into law... keep that in mind. Fucking american citizens over through IP laws is a bipartisan affair.
Slashdot Mirror
Sucks to be those aliens... since they have no way to learn about Jesus (except, of course, the Gray aliens that visit earth all the time) all those extraterrestrials will burn in hell since they never accepted Jesus Christ as their lord and savior. Brings up an interesting question - what percentage of hell is human? With all those alien species being sent to hell by default, I bet humans make up an extremely small percentage of hell's population. Even the Greys that visit earth have likely not become Catholics. Though in that one episode of South Park there was one alien species that actually was Catholic. But that's just one species, and south park is just a cartoon anyway. Make believe TV shows have no place in a discussion about magical human beings and aliens.
The Supreme Court held in State Farm Mutual Automobile Insurance Co v. Campbell et al. 538 U.S. 408 (2003) that a punitive damage award that is more than 10 times higher than the actual damages is presumably a violation of due process. Thus, it logically follows that statutory damages ($750) that are more than 1,100 times higher than actual damages are an even greater violation of due process for two reasons: First, the ratio is significantly higher, and second, the goal of statutory damages is compensatory rather than punative, so there is less of a reason to make the damages a high number; it should bear a relation to the actual damages. The sole purpose of statutory damages in copyright law is due to the fact that actual damages are often hard if not impossible to prove. But if actual harm can be quantified in any reasonable manner, then a statutory damage award must still bear a reasonable ratio to that amount or else it would violate due process. More than 10 to 1 is improper for punative damages, I'd say more than 2-3 to 1 is improper for statutory damages (since the purpose is not to punish, but merely to compensate the copyright holder). The copyright holder can seek punative damages at trial and if they can prove their case and entitlement thereto, they can get punative damages up to 10 times higher than actual damages. But for congress to mandate a statutory damage amount over 1,100 times higher than the actual harm/loss (per infringement!) simply must be an unconstitutional violation of due process to be consistent with existing Supreme Court precedent. This is particularly true if one argues that a portion of statutory damages include punative damages.
I'm as big a privacy advocate as anyone I know, but I don't see what the fuss is. If you don't want people to see something, don't have it out in broad daylight. There is absolutely no privacy interest in anything which is in plain view of the public. If you don't want pictures of your naked body taken through your window, don't walk around naked in your house or close your window. Google is not using any thermal imaging (I'd certainly be against it if they were) to see through walls. Your cat is seen in your window? Big deal. How is that going to get you raped or robbed? Please take me down that slippery slope, I'd like to understand, and if the logic makes sense I'm willing to change my mind. But as far as I can tell, it does not even IMPLICATE privacy for google to take a picture of the front of your house and put it on the internet (with a trillion other pictures). Anyone who drives down the street can see it and that's no different, let alone more intrusive, than riding down the virtual street on Google Maps and seeing it there. I don't understand what people are complaining of. And if it were the government doing it, all else equal, that wouldn't change my opinion (but I'd like to think the gov't has better uses of taxpayer money and manpower).
I'm not a lover of MS, but I'll give them credit, Vista is a damn good OS, much better than that POS XP, which was by far the worst iteration of windows ever made. Of course, it took MS an extra 5 years to get Vista out, so they have no excuses for buggy crapware. In the 6 weeks or so that I've had Vista running, it has not crashed once. Every now and then I have rebooted because a program required it. But no crashes. It runs fast (with 3.6 gigs of ram), clean, smooth, and does what it's supposed to. My old XP couldn't even delete files without crashing. I'm sure other people are having good experiences with Vista, too. Sure some software is not compatable, but that will be fixed soon, and everything you truly need works just fine (except Peerguardian2). So, I'm glad it is selling. When society has an OS that doesn't crash every few minutes, it stimulates the economy and lubricates the mechanics of commerce. Hell vista might even pay for itself out of an increase in GDP if enough people replace their XP with it.
I can't believe nobody has pointed out yet that a valid takedown notice must, pursuant to 17 U.S.C. 512(c)(3)(A) include, among other things: (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. This makes it a CRIME for me to send a takedown letter to someone demanding they take down something I don't like in which I do not own the copyright. In addition it makes the takedown notice invalid on its face. Either the takedown notice in question was facially invalid, or subject to prosecution for perjury. If they are in England then they could be prosecuted by the british gov't or extradited to the US for prosecution.
Simple solution, if you can't patent the actual drug, patent the "business model" of curing cancer. We all know the PTO would grant such a patent without a second look. If "curing cancer" is too broad, then patent the business model of curing cancer with a pharmaceutical sold at a profit. That'll be more than enough to pass the rubber stamp test.
I have a simple proposition which, if adopted (and there is no reason not to adopt it) would allow the world to learn the truth about UFOs/extraterrestrials, presuming they actually exist and the government has made contact (Roswell, etc.). Congress should pass a law granting absolute immunity from prosecution/retaliation/termination for anyone working for the government with security clearance who comes forward with evidence about UFOs/ETs. If the government really doesn't have UFO/ET secret knowledge, then there should be no problem with passing such a law, and nobody should be opposed to it. It kinda surprises me that nobody has thought of this before. Yes, I realize that people with such knowledge would still be afraid of being shot in the back my the MIB posse, regardless of immunity from criminal prosecution for revealing classified information. But SOMEONE would come forward. We have similar laws for immunity for employees who file workers comp claims. Merely by having such a law debated and voted on would be very informative as to who would oppose it and what their arguments would be. Bill Clinton always said he wanted to know the truth about UFOs, but he never made the logical step and proposed a law like I've just described. That means he must know UFOs are real, heh. So, what about it? Write a letter to your congressperson. Let's get the Extraterrestrial Revelation Act of 2007 passed.
As follows is the court's opinion in this case, cut and pasted from a .PDF file off of the Federal Court's PACER website (not free, we lawyers pay for it). I don't know how to upload a .PDF file to Slashdot, so this is the best I could do.
1Defendant Robert Davis is a pro se litigant. He did not file responses to Plaintiff's Mot. for Prelim.
Inj. or Plaintiff's Motion for Partial Summary Judgment; however, he did file his Mot. to Quash within the
deadline permitted for responses to both of those motions. The court, therefore, treats Davis's Mot. to Quash
and the arguments contained therein as his response, as well as a motion seeking affirmative relief.
Memorandum Opinion and Order - Page 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LIVE NATION MOTOR SPORTS, INC.
f/k/a SFX MOTOR SPORTS, INC.,
Plaintiff,
v. Civil Action No. 3:06-CV-276-L
ROBERT DAVIS, d/b/a
TRIPLECLAMPS and
www.supercrosslive.com,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the court are several pending motions, including: Plaintiff's Motion for Preliminary
Injunction ("Plaintiff's Mot. for Prelim. Inj."), filed June 23, 2006; Defendants and Counter
Claimant's Motion to Quash Plaintiff's Motion for Partial Summary Judgment and to Quash
Plaintiff's Motion for Preliminary Injunction and to Quash Plaintiff's Proposed Findings of Fact and
Conclusions of Law in Support of Motion for Preliminary Injunction ("Mot. to Quash")1, filed July
12, 2006; Defendants [sic] and Counter Claimant's Motion for Preliminary Injunction ("Defendant's
Mot. for Prelim. Inj."), filed August 2, 2006; and Plaintiff's First Supplement to Plaintiff's Motion
for Preliminary Injunction ("Plaintiff's Suppl. Mot. for Prelim. Inj."), filed October 24, 2006. After
careful consideration of the motions, related briefs and applicable law, the court grants Plaintiff's
Motion for Preliminary Injunction; denies in part Defendant's Motion to Quash; denies Defendant
2Plaintiff filed a notice with the court on November 6, 2006, that it had changed its name from SFX
Motor Sports, Inc. to Live Nation Motor Sports, Inc. Since all of the motions, responses and accompanying
briefs addressed by this motion were filed prior to the name change, this order will refer to Plaintiff as "SFX"
for consistency and clarity.
Memorandum Opinion and Order - Page 2
and Counter Claimant's Motion for Preliminary Injunction; and denies as moot Plaintiff's First
Supplement to Plaintiff's Motion for Preliminary Injunction.
I. BACKGROUND
This is a trademark, copyright and unfair competition action filed by Plaintiff SFX Motor
Sports, Inc. ("SFX")2, on Feb. 13, 2006, against Defendant Robert Davis, d/b/a TripleClamps and
www.supercrosslive.com ("Davis"). Davis filed counterclaims against SFX alleging trademark
infringement on March 6, 2006. SFX promotes and produces motorcycle racing events known as
Supercross. The racing events take place at various venues across the country in a "season"
running from December through the following May and are broadcast live via the radio, television
and internet (referred to as "audio webcasts"). SFX contends that Davis performs and displays audio
webcasts of the racing events through his website, www.supercross.com, in violation of SFX's
copyright in and to the audio webcasts. Specifically, SFX asserts that Davis "streams" the live
webcast of the races on his website in "real time," which causes SFX irreparable harm by limiting
its right to sell sponsorships or advertisement on its own website as the "exclusive source" of the
webcasts. Plaintiff's Mot. for Prelim. Inj. at 5-6. Davis admits to providing an audio webcast "link"
to the racing events on his website, and asserts an affirmative defense. Mot. to Quash at 1. Davis's
Motion for Preliminary Injunction seeks to prohibit SFX from using the name "SupercrossLIVE,"
which Davis contends has been registered under the Trademark Act by his company, TripleClamps.
SFX responds that Davis has presented no evidence that SFX has ever used "SupercrossLIVE" as
Patents and copyright always act as a force to IMPEDE innovation. The problem is that this fact is very counterintuitive. Intellectual property exists for the sole reason of fostering innovation, and on paper it seems like it should do that. Monopoly as motive to create. Sounds logical. But communism looks good on paper too. Unfortunately both communism and IP are total and complete failures, as well as oppressive regimes which crush individual freedom. You can't publish that 30 year old email. You can have a website with a one-click purchase button. You can't market that life-saving pill. You can't cover that song. Unless you pay me a government-sanctioned extortion fee. Patents don't just hurt innovation with new drugs. They hurt innovation accross the board. But we'll never get rid of them.
Under what authority does the Treasury Department claim to be able to pass a regulation which is a penal statute? I am not saying agencies/departments of the executive branch cannot promulgate regulations. For example, the DEA can, with approval of the attorney general, decide to make a substance a controlled substance, which would then be illegall to possess, etc. But I do not see any statute that lets the Treasury Department (in which the Mint resides) decide that doing something with coins will be punishable by up to 5 years in prison. Where is the enabling statute? Such a broad declaration sure seems like a separation of powers issue; it is for Congress to decide that people can't melt down coins. In addition, I cannot find this proposed regulation anywhere. Not in the federal register http://www.gpoaccess.gov/fr/index.html or at regulations.gov. Can anyone find the text of this proposal? It will say under what authority the TD claims to ban melting.
As long as the RIAA remains successfull in convincing the masses that downloading a copyrighted work is the same as "stealing" that copyrighted work from a store (downloading Brittney = pocketing Brittney and walking out of the store) they will retain their power. Their entire business model is based on social acceptance of this meme, which of course is simply not true. Downloading is not stealing, as the essence of stealing/theft is the deprivation of a rightful owner of his/her property without the owner's consent. Nobody is depriving anyone of any property by downloading a copyrighted work. Loss of a potential sale is not the same thing as theft; if it were, any business who successfully competes with another business, taking away its customers, would be guilty of theft. Note that I'm not necessarily commenting on the morality of downloading copyrighted works. I'm just saying that, whatever it is, it is not a form of theft. I think most people on slashdot are educated enough to know this subtle difference (although somoene will reply and argue with me that downloading a $5,000 CAD program is, in fact, theft). Unfortunately most people are simply not intelligent enough to understand this very subtle but hugely important difference and therefore get sucked in to believing and virally spreading the theft meme. And as long as this continues the RIAA, MPAA, etc will retain their power and lobbying ability. They spend billions advertising this meme. We've even let them into our schools to brainwash kids, who certainly are not sophisticated enough to see why this is not actually theft. Want to crush them? Educate people about why downloading is NOT theft.
If you think "terrorism" is the problem, it's due to Bush scaring you about terrorism for the past 5 years, mentioning it every time he talks, and justifying the recission of all of our rights on protecting us from terrorism. You will die from clogged arteries and an exploding heart. Not terrorists. Isn't it interesting that the one apparent danger (out of billions) about which Bush scares us is the one that, to remedy, involves taking away our rights and liberties? Coincidental, eh?
Here is a very simple solution to the problem. Make domain names presumably exempt from all trademark laws UNLESS the plaintiff can show, with clear and convincing evidence (a higher burden of proof than the usual preponderance of the evidence standard), that the owner of the domain name registered the domain in question: (1) with the intent, at the time of the registration, to cause confusion between two products, services, entities, or existing trademarks; and (2) the use of the domain is NOT to exercise free speech in a noncommercial way (e.g. walmartsucks.com is protected). This protects everyone's interest, is a very clear, bright-line standard, and won't result in business owners with legitimate arguments as to why they should have a domain name fighting with someone else who legitimately, without bad intent, registered it first (like this case). Very simple.
I'd sure like him to scan the affidavit of the FBI agent which was made in support of establishing probable cause for the search warrant. He should have it.
No you're exactly right. That's why I'm saying this case, even more than most, deserves prosecutorial discretion. I'm not saying it will GET prosecutorial discretion. I'm only saying it is highly warranted based on these facts. I expect massive frog marches, a 200 page indictment, a forfeiture claim of over 50 million dollars, and threats of life in federal prison. I also expect a guilty verdict, regardless of the statute(s) under which they indict him, and regardless of how the charged crimes do not apply to the circumstances of this case, thus requiring acquittal.
Even if he did break a law, and I'm a lawyer and I'm far from convinced that he did, this is a prime example of when the US Attorney should use some prosecutorial discretion and, after investigating the matter and being content with the subject's explanation as to what happened and why he did what he did, decide not to prosecute. The worst thing this guy did was act imprudently. No terrorists got on airplanes, nor could they have. The best thing this guy did, and I don't think there is any question about his intentions, is to bring attention to a security flaw. He took down the website when asked (maybe even prior to that) and nothing bad resulted from his actions. He had no intent to hurt anyone, no intent to steal or deprive anyone of property, and no intent to help anyone actually break the law. So, even if he could be prosecuted, he shouldn't be. Not everyone who breaks the law should be charged with a crime.
All they are ever shown, and all they see, are fallacious reports and charts showing how much money they "have lost" and "will continue to lose" due to copyright infringement. Just like the RIAA and MPAA, they guestimate how many times people download their movies, and multiply that number (which itself is probably twice the actual amount) by the price at which they sell or plan to sell their movies. This figure is presented to management as their losses. Obviously these figures are bullshit as it is based on two false assumptions. First, that nobody buys a product after downloading it. Second, that every download is an actual lost sale (that is, the downloader would have purchased the product had he/she not downloaded it). Both of these assumptions are false, particularly when dealing with a movie/tv show with a very dedicated cult following. But if you were a wrinkly, fat, 97 year-old white billionaire with liver spots all over your face and severe prostate issues, and you were told your company was losing 75 billion dollars every month due to product "theft" you'd react the exact same way these Universal execs did. You can't be out of touch if you're misinformed ab initio.
Wrong. Right-wingers and left-wingers both want big government. The only difference is how they justify it. Right-wingers focus on preventing crime, left-wingers focus on wealth redistribution and social programs. Neither republicans nor democrats believe there is anything the government should not be allowed to do. Their only differences lie in what they believe the government should be doing.
"By the end of the year, the surveillance had generated 4,506 arrests and 634 convictions based on wiretap evidence." That alone tells you just how wrong those applications usually are. If they had a 100% accuracy rate, every arrest that stemmed from the wiretap would result in a conviction. OUt of 4,506 wiretap-related arrests, only 634 convictions? I'll give them the fact that some arrests are dropped in exchange for use immunity and the promise to testify against someone else, but that's not as common as it is in the movies. Rather, the deal is plead guilty to one count (still a "conviction"), tell us everything you know, and serve only 1 year or so if you tell the truth."
I expect the FISC to rubber stamp everything, hell it's in the same building as the justice department. But i'd reasonably expect 10 to 15 percent, at least, of applications to be denied. Not even one? Unreal.
if green yoda farts are good enough for the movie then they're good enough for the video game.
As I always say, people get the government that they deserve. We don't deserve any better than bush, in fact, he is too good for us. When all that matters to a nation is beer, jesus, and football, great leaders are neither earned nor expected. I just feel bad that the rest of the world will have to suffer from our mistake.
You mean we'll see Hillary Clinton lose to Jeb Bush in '08. We have 12 more years of the Bush Dynasty, at minimum, to endure. One day thousands of years from now, archaeologists will wonder about the Dark Age experienced at the turn of the millennium.
The one good piece of news is that from now on, the crap about the winner of the Washington Redskin's game right before the election predicting the winner of the election will be citing an urban legend, rather than a coincidence.
Within 10 years there will be no more actors... just voiceover artists. It's just a matter of time before all movies are 100% CGI. I give it a decade. There were 3 100% CGI movies previewed in the coming attractions for sky captain last night alone.
liberals are just as pro-IP laws as are conservatives. clinton signed the DMCA into law... keep that in mind. Fucking american citizens over through IP laws is a bipartisan affair.