Everything you say is true: most email is inane, and hard drive space is limited. But email is so small, and hard drive space is comparatively so dirt cheap that there's really no reason not to save at least the email text if not the attachments. The only reason companies have automatic deletion policies is to destroy evidence before any charges are filed or complaints served. Some data retention policies are so strict that employees will regularly lose important email when they fail to copy or print it; at that level of inconvenience, you can't honestly believe that hard drive space is the only consideration in play.
Firewire?? Jog wheel? Smooth, quick updating via slick software?
These aren't "features" like this thread was talking about, these are interface niceties. Other music players did everything that an iPod did -- they took mp3 files and played them. When the iPod came out, the prevailing notion on this site and among people with mentalities like yours was -- remember? -- "No wireless. Less space than a nomad. Lame."
Oops.
Soon we will have a smart phone that can navigate contacts smoothly, negotiate voicemail easily, read real web pages painlessly and in their original format, interface with a digital photo collection painlessly, map a route through Google Maps beautifully, and play music and videos without fuss. The scrolling is better. The touchscreen is better. The aesthetics are better. It's all easy. And it all works together.
This is like the iPod release all over again, and I'm convinced that in a few years, your comment will look as foolish as the iPod comment.
One case that came out precisely opposite to your prediction is Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997) (holding enforceable a contract on the side of a Gateway computer box purchased by mail order and therefore visible to the purchaser only after the purchase).
If you want to go through the individual elements here, they're pretty straightforward. As you put them:
"to have a contract, you need an offer,"
Present: the software vendor offered the software conditioned on payment and acceptance of the terms of the EULA.
"an acceptance of the offer,"
Present: clicking "I accept" or attempting to use the software certainly qualifies.
"a promise to perform,"
That's actually part of offer and acceptance.
"a valuable consideration,"
Present: granting the consumer the right to use the software is consideration.
"terms and conditions of performance,"
Present: these are presumably spelled out in the EULA itself.
"and the performance itself"
Unnecessary to the existence of a contract. This goes only to whether the contract (if it exists) was performed or breached.
"Since you're in no position to negotiate,"
You're in no position to negotiate the terms of your insurance policies with the insurance companies, but they are still enforceable.
"can't see the terms of the agreement,"
Huh? Generally they pop up in a box before you click "I accept." Was that not the case here?
"no money changes hands,"
Consideration takes a lot of forms that are not money, including a promise to pay and the ability to use software.
"no papers are signed,"
Irrelevant except under the statute of frauds, which doesn't apply here. All you need is offer and acceptance; the actual signature is only useful as evidence of the acceptance, which doesn't seem to be at issue here.
"and licenses supposedly apply to individuals who are not in a position to enter into legal contracts (e.g., minors)"
There's no evidence that this WAS a minor, though, so it shouldn't be an issue.
Destroying a user's data is an intentional tort. You cannot waive intentional torts by contract in any jurisdiction of which I am aware.
Patently false. Hitting you in the face is an intentional tort: battery. But sign a waiver, put on boxing gloves, and enter into a boxing ring with me, and you'd be completely without legal recourse when the fight begins. Consent, if properly expressed by contract, is a very effective defense to an intentional tort.
Now you might argue that there's no valid consent here, that the contract is ambiguous or non-binding for a number of reasons, but that's a different argument entirely.
however, can't we come up with some GPL-ish license to free any product based on this data?
I doubt it. The GPL works because individual programmers receive some sort of personal, non-monetary benefit from contributing to a GPL project -- the reputation, the joy of coding, etc. No similar incentive exists for drug companies to engage in costly research without the proceeds that come from patents. The GPL also works because for-profit players have an incentive to give back their own coding: so that it can be incorporated into the code tree and not require them to reimplement it every time a new version comes out. Again, there is no analogous market force to compel drug companies to give back changes, or even to make the changes in the first place. Finally, the GPL is largely enforceable because it is usually very straightforward to ascertain whether GPL'ed code is in fact being used in violation of the GPL: the software company cannot destroy the evidence or allow it to decay because they need to keep the source code to continue development. I imagine that it is not so easy to determine whether a particular medical advance was inspired by pseudo-GPL'ed samples.
It seems to me that that country's approach is fair and effective. Alternatively they might consider contractually binding recipients of their samples to offer them the resulting patented medication at cost.
Not the policy, the decision. They've already gotten the bad press, and the amount of good press they receive from reversing course will not make up for it.
Say you pick between two lines at the grocery store. By the time you're two-thirds of the way through the line, you realize it's moving more slowly than the other. Your decision was a net negative, but that doesn't mean you leave your line and join the other. Sometimes we make mistakes but have to stick with them.
Actually under our federal income tax code, gifts are tax-free if they're under $12,000 (with some provisos which are satisfied here). So the rich guy wouldn't get a tax break (and thus you're correct that he only receives about $600,000 after tax) but the gift recipients would not be taxed on the gifts. See sec. 102.
Do they really believe their Google stock prediction? The market thinks it's pretty unlikely. If you agree with Wired, put your money where your mouth is. Here's the link to GOOG call options with a $750 strike price, a 1/18/08 expiration, and a price of only around $5.60:
Stock options are contracts you buy that let you purchase a share of the stock at the strike price on the expiration date. In practice, this means that you are making a bet that the stock will pass the strike price by the expiration date; if you are correct, you win the difference.
So if Wired's prediction comes true, you'd earn $250 ($1000-750) for every $5.60 you spend on the option -- a 4364% return on investment. Not bad for a year's investment.
Yeah, good luck with that. Personal items -- cars, refrigerators, washing machines, and presumably phat online lewt -- will stick you with capital gains tax if they appreciate between when you buy them and sell them, but (with a couple of rare exceptions) will not allow you to declare a loss if they depreciate. With the government, things don't always cut both ways:)
Yes, but Polonium-210 will kill you if inhaled in quantities as small as a single dust mote, and there's no antidote. Crushing it into a fine powder and dispersing it in a crowded area would probably be more devastating than even bombing the area, and far more horrifying. It would take days to recognize the pattern and probably further days to diagnose, all the while the cloud lingers and kills more and more people. So I don't think it's entirely fair to say "there are far easier ways to [poison people] than with polonium-210," since I'm not aware of any poison this deadly or easily dispersed.
In that case, why have books of laws at all? We'll just have one law: "all that is immoral is illegal," and then we can punish people whenever we see them doing something that just don't seem right. You just have to hope that your definition of morality coincides exactly with the mob's; it would be a pretty rude surprise to you, I think, if you got arrested for premarital sex or for having impure thoughts or something that you and I would probably agree is pretty innocuous.
"This is the problem with lawyers, they try to make obvious things complicated."
I don't think that's right. The problem with any civil or criminal justice system is that reality is complicated. No code will ever account for all of its vagaries. There will always be ambiguities, we will always need a process to sort them out, and there will always be professionals who specialize in operating that process. Lawyers are merely an emergent phenomenon of the complexities of reality.
If anything, making the laws more vague will only vest judges -- and hence lawyers as well -- with more discretion than they have now. "Murder is illegal" leaves it up to the judicial process to define murder, and with even less guidance from the legislature, they will rely instead on caselaw and further pedantry.
One goal of the modern election regime is to prevent vote-buying and similar kinds of fraud. One of the best safeguards to prevent it is by making it impossible to prove to anyone which way you voted after you leave the poll; that way, if someone tries to buy your vote, you can take his money and, vote your conscience, and he'll never know the difference. With this method, the vote-buyer could collect cryptographic stubs for verification before disbursing payment. That's why so many states have restrictions on who can cast absentee ballots: so you can't prove to the vote-buyer which way your vote was cast.
I do something similar with LaunchBar and Safari, and I really recommend you set this one up:
L for Google I'm Feeling Lucky.
Skip the google page entirely and go straight to what you're looking for. You quickly get the hang of when to use it and when you might need to go a few search results down. Sometimes I even use it when I know the web address but don't feel like typing "www.....com." It's really fast and effective.
What's the problem with the chinese shining their lasers at space that nobody owns anyway?
So there'd be nothing wrong with a U.S. submarine torpedoing a Chinese cruise ship in open oceans, right? After all, what's the problem with the U.S. firing their torpedos at international waters that nobody owns anyway?
But one reason the government taxes gasoline so heavily is that the cost of stabilizing oil-rich countries should be internalized into the price of gasoline so that consumers make efficient consumption decisions. Electricity from the grid does not require nearly the same kind of international exertion, so there is every reason to suspect that its tax will be lower.
No, obviously not, because the government has a clear incentive to deploy strategically defective voting machines, while no analogously perverse incentive exists for them to deploy defective gunboats.
"If the other states sue to enforce the contract, would it prove valid?"
No; the other states wouldn't have standing. But a citizen of the state could probably sue to hold the state accountable to its own laws.
In any case, the statutory enactment of the scheme would have to contain some sort of enforcement mechanism to be credible. The mechanism would presumably forbid the state legislature from changing the rules in the middle of the game. And if the state chose to ignore the plain meaning of its own statute, there would likely be a colorable constitutional claim against it in federal court under the Guaranty Clause, Equal Protection Clause, or Ex Post Facto Clause.
"This makes it effectively impossible to get to all 50 agreeing"
You don't need all fifty states to sign up, though; you only need enough states to get more than half of the electoral votes. In reality, you need even less than this, since most presidential elections are won by a relatively tight electoral race; tipping one or two big states should be enough to turn the tide the vast majority of the time.
"The benefits of cheating are too large once half or so of the electoral votes are in the agreement."
A state couldn't realistically cheat. Once it passed a statutory commitment to the scheme, it only takes a single citizen who disagrees with the defection to sue the state in its own court system. If the state's own court system fails, I am nearly certain the federal courts would require the state to enforce its own laws under the Equal Protection clause or the Guaranty Clause or something of the like. A state can't pass a law and then violate it, at least not so blatantly and when the stakes are so high and the scrutiny so close.
"Finally, to use the previous election for concrete names, do you really thing California is going to stand for seeing its electoral votes go to Bush? Or Texas for Gore? Unlikely."
This I agree with. This is why states will not implement the plan; or if they do, will repeal it after the first election in which it makes a difference.
I hope I'm wrong, but I don't think this plan will ever succeed.
The problem is, in order for the plan to make any difference in a given election, some states will have to cast their electoral votes against the will of their own electorate. If that happens even once, the people of the state will be pretty pissed, and that will translate into a lot of pressure on the state legislature to repeal the state's adherence to the plan. Moreover, an expectation that this would happen should be enough to dissuade states from signing up in the first place.
As an example, I am a liberal who lives in Connecticut. Of course I would be thrilled if Wyoming, Utah, and Texas signed up for this plan, but that's only because they would otherwise be voting for the republican candidate 100% of the time. On the other hand, I would oppose Conneticut signing up, since it ALREADY goes blue 100% of the time.
I also wonder if there would be constitutional problems with a state assignings its electoral votes without regard to its people's wishes. This is not a question of expertise or law, I think, so much as a political question of what the Supreme Court would consider to be the more judicially modest option: contravene the will of a few states, or permit the few states to overturn an institution that was very clearly within the intent of the Framers.
Slashdot Mirror
Everything you say is true: most email is inane, and hard drive space is limited. But email is so small, and hard drive space is comparatively so dirt cheap that there's really no reason not to save at least the email text if not the attachments. The only reason companies have automatic deletion policies is to destroy evidence before any charges are filed or complaints served. Some data retention policies are so strict that employees will regularly lose important email when they fail to copy or print it; at that level of inconvenience, you can't honestly believe that hard drive space is the only consideration in play.
These aren't "features" like this thread was talking about, these are interface niceties. Other music players did everything that an iPod did -- they took mp3 files and played them. When the iPod came out, the prevailing notion on this site and among people with mentalities like yours was -- remember? -- "No wireless. Less space than a nomad. Lame."
Oops.
Soon we will have a smart phone that can navigate contacts smoothly, negotiate voicemail easily, read real web pages painlessly and in their original format, interface with a digital photo collection painlessly, map a route through Google Maps beautifully, and play music and videos without fuss. The scrolling is better. The touchscreen is better. The aesthetics are better. It's all easy. And it all works together.
This is like the iPod release all over again, and I'm convinced that in a few years, your comment will look as foolish as the iPod comment.
One case that came out precisely opposite to your prediction is Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997) (holding enforceable a contract on the side of a Gateway computer box purchased by mail order and therefore visible to the purchaser only after the purchase).
If you want to go through the individual elements here, they're pretty straightforward. As you put them:
"to have a contract, you need an offer,"
Present: the software vendor offered the software conditioned on payment and acceptance of the terms of the EULA.
"an acceptance of the offer,"
Present: clicking "I accept" or attempting to use the software certainly qualifies.
"a promise to perform,"
That's actually part of offer and acceptance.
"a valuable consideration,"
Present: granting the consumer the right to use the software is consideration.
"terms and conditions of performance,"
Present: these are presumably spelled out in the EULA itself.
"and the performance itself"
Unnecessary to the existence of a contract. This goes only to whether the contract (if it exists) was performed or breached.
"Since you're in no position to negotiate,"
You're in no position to negotiate the terms of your insurance policies with the insurance companies, but they are still enforceable.
"can't see the terms of the agreement,"
Huh? Generally they pop up in a box before you click "I accept." Was that not the case here?
"no money changes hands,"
Consideration takes a lot of forms that are not money, including a promise to pay and the ability to use software.
"no papers are signed,"
Irrelevant except under the statute of frauds, which doesn't apply here. All you need is offer and acceptance; the actual signature is only useful as evidence of the acceptance, which doesn't seem to be at issue here.
"and licenses supposedly apply to individuals who are not in a position to enter into legal contracts (e.g., minors)"
There's no evidence that this WAS a minor, though, so it shouldn't be an issue.
That's an interesting legal assertion, and I'd like it to be right, but I doubt that you can back it up.
Patently false. Hitting you in the face is an intentional tort: battery. But sign a waiver, put on boxing gloves, and enter into a boxing ring with me, and you'd be completely without legal recourse when the fight begins. Consent, if properly expressed by contract, is a very effective defense to an intentional tort.
Now you might argue that there's no valid consent here, that the contract is ambiguous or non-binding for a number of reasons, but that's a different argument entirely.
I doubt it. The GPL works because individual programmers receive some sort of personal, non-monetary benefit from contributing to a GPL project -- the reputation, the joy of coding, etc. No similar incentive exists for drug companies to engage in costly research without the proceeds that come from patents. The GPL also works because for-profit players have an incentive to give back their own coding: so that it can be incorporated into the code tree and not require them to reimplement it every time a new version comes out. Again, there is no analogous market force to compel drug companies to give back changes, or even to make the changes in the first place. Finally, the GPL is largely enforceable because it is usually very straightforward to ascertain whether GPL'ed code is in fact being used in violation of the GPL: the software company cannot destroy the evidence or allow it to decay because they need to keep the source code to continue development. I imagine that it is not so easy to determine whether a particular medical advance was inspired by pseudo-GPL'ed samples.
It seems to me that that country's approach is fair and effective. Alternatively they might consider contractually binding recipients of their samples to offer them the resulting patented medication at cost.
In short: don't eat the pie.
I agree with you. Perhaps I should have said "sometimes we make profit-damaging mistakes, but can nevertheless maximize profit by sticking with them."
Not the policy, the decision. They've already gotten the bad press, and the amount of good press they receive from reversing course will not make up for it.
Say you pick between two lines at the grocery store. By the time you're two-thirds of the way through the line, you realize it's moving more slowly than the other. Your decision was a net negative, but that doesn't mean you leave your line and join the other. Sometimes we make mistakes but have to stick with them.
Actually under our federal income tax code, gifts are tax-free if they're under $12,000 (with some provisos which are satisfied here). So the rich guy wouldn't get a tax break (and thus you're correct that he only receives about $600,000 after tax) but the gift recipients would not be taxed on the gifts. See sec. 102.
"No wireless. Less space than a Nomad. Lame."
Does this sound familiar? Remember, the iPod debuted at $399 in an era of $20 Discmans. Feature lists do not a product make.
Do they really believe their Google stock prediction? The market thinks it's pretty unlikely. If you agree with Wired, put your money where your mouth is. Here's the link to GOOG call options with a $750 strike price, a 1/18/08 expiration, and a price of only around $5.60:
http://finance.yahoo.com/q/op?s=GOOG&m=2008-01
Stock options are contracts you buy that let you purchase a share of the stock at the strike price on the expiration date. In practice, this means that you are making a bet that the stock will pass the strike price by the expiration date; if you are correct, you win the difference.
So if Wired's prediction comes true, you'd earn $250 ($1000-750) for every $5.60 you spend on the option -- a 4364% return on investment. Not bad for a year's investment.
Yeah, good luck with that. Personal items -- cars, refrigerators, washing machines, and presumably phat online lewt -- will stick you with capital gains tax if they appreciate between when you buy them and sell them, but (with a couple of rare exceptions) will not allow you to declare a loss if they depreciate. With the government, things don't always cut both ways :)
http://plato.stanford.edu/entries/original-positio n/
Buffett didn't come up with that. John Rawls did.
Yes, but Polonium-210 will kill you if inhaled in quantities as small as a single dust mote, and there's no antidote. Crushing it into a fine powder and dispersing it in a crowded area would probably be more devastating than even bombing the area, and far more horrifying. It would take days to recognize the pattern and probably further days to diagnose, all the while the cloud lingers and kills more and more people. So I don't think it's entirely fair to say "there are far easier ways to [poison people] than with polonium-210," since I'm not aware of any poison this deadly or easily dispersed.
In that case, why have books of laws at all? We'll just have one law: "all that is immoral is illegal," and then we can punish people whenever we see them doing something that just don't seem right. You just have to hope that your definition of morality coincides exactly with the mob's; it would be a pretty rude surprise to you, I think, if you got arrested for premarital sex or for having impure thoughts or something that you and I would probably agree is pretty innocuous.
"This is the problem with lawyers, they try to make obvious things complicated."
I don't think that's right. The problem with any civil or criminal justice system is that reality is complicated. No code will ever account for all of its vagaries. There will always be ambiguities, we will always need a process to sort them out, and there will always be professionals who specialize in operating that process. Lawyers are merely an emergent phenomenon of the complexities of reality.
If anything, making the laws more vague will only vest judges -- and hence lawyers as well -- with more discretion than they have now. "Murder is illegal" leaves it up to the judicial process to define murder, and with even less guidance from the legislature, they will rely instead on caselaw and further pedantry.
One goal of the modern election regime is to prevent vote-buying and similar kinds of fraud. One of the best safeguards to prevent it is by making it impossible to prove to anyone which way you voted after you leave the poll; that way, if someone tries to buy your vote, you can take his money and, vote your conscience, and he'll never know the difference. With this method, the vote-buyer could collect cryptographic stubs for verification before disbursing payment. That's why so many states have restrictions on who can cast absentee ballots: so you can't prove to the vote-buyer which way your vote was cast.
I do something similar with LaunchBar and Safari, and I really recommend you set this one up:
... .com." It's really fast and effective.
L for Google I'm Feeling Lucky.
Skip the google page entirely and go straight to what you're looking for. You quickly get the hang of when to use it and when you might need to go a few search results down. Sometimes I even use it when I know the web address but don't feel like typing "www.
But one reason the government taxes gasoline so heavily is that the cost of stabilizing oil-rich countries should be internalized into the price of gasoline so that consumers make efficient consumption decisions. Electricity from the grid does not require nearly the same kind of international exertion, so there is every reason to suspect that its tax will be lower.
No, obviously not, because the government has a clear incentive to deploy strategically defective voting machines, while no analogously perverse incentive exists for them to deploy defective gunboats.
"If the other states sue to enforce the contract, would it prove valid?"
No; the other states wouldn't have standing. But a citizen of the state could probably sue to hold the state accountable to its own laws.
In any case, the statutory enactment of the scheme would have to contain some sort of enforcement mechanism to be credible. The mechanism would presumably forbid the state legislature from changing the rules in the middle of the game. And if the state chose to ignore the plain meaning of its own statute, there would likely be a colorable constitutional claim against it in federal court under the Guaranty Clause, Equal Protection Clause, or Ex Post Facto Clause.
"This makes it effectively impossible to get to all 50 agreeing"
You don't need all fifty states to sign up, though; you only need enough states to get more than half of the electoral votes. In reality, you need even less than this, since most presidential elections are won by a relatively tight electoral race; tipping one or two big states should be enough to turn the tide the vast majority of the time.
"The benefits of cheating are too large once half or so of the electoral votes are in the agreement."
A state couldn't realistically cheat. Once it passed a statutory commitment to the scheme, it only takes a single citizen who disagrees with the defection to sue the state in its own court system. If the state's own court system fails, I am nearly certain the federal courts would require the state to enforce its own laws under the Equal Protection clause or the Guaranty Clause or something of the like. A state can't pass a law and then violate it, at least not so blatantly and when the stakes are so high and the scrutiny so close.
"Finally, to use the previous election for concrete names, do you really thing California is going to stand for seeing its electoral votes go to Bush? Or Texas for Gore? Unlikely."
This I agree with. This is why states will not implement the plan; or if they do, will repeal it after the first election in which it makes a difference.
I hope I'm wrong, but I don't think this plan will ever succeed.
The problem is, in order for the plan to make any difference in a given election, some states will have to cast their electoral votes against the will of their own electorate. If that happens even once, the people of the state will be pretty pissed, and that will translate into a lot of pressure on the state legislature to repeal the state's adherence to the plan. Moreover, an expectation that this would happen should be enough to dissuade states from signing up in the first place.
As an example, I am a liberal who lives in Connecticut. Of course I would be thrilled if Wyoming, Utah, and Texas signed up for this plan, but that's only because they would otherwise be voting for the republican candidate 100% of the time. On the other hand, I would oppose Conneticut signing up, since it ALREADY goes blue 100% of the time.
I also wonder if there would be constitutional problems with a state assignings its electoral votes without regard to its people's wishes. This is not a question of expertise or law, I think, so much as a political question of what the Supreme Court would consider to be the more judicially modest option: contravene the will of a few states, or permit the few states to overturn an institution that was very clearly within the intent of the Framers.