But, if you're in the car, the driver is drunker than you, then you get a ticket. Same goes for everyone else in the car.
that is crap, and you know it. what would they cite you for? last i checked, riding in a car while intoxicated is not a violation of ANY kind (unless you are underage). if they do indeed cite you for something, please tell me what it is, I would be eager to know what exact law they rely on.
I believe you're right about being guilty for not reporting it.
as for reporting a crime, you're under no affirmative obligation to report, unless you have a legal duty to do so, such as if you're a police officer... a private citizen has no reponsibility to report a murder even if they saw it happen right in front of them. Now, if the police wish to question you about it, obstructing their investigation is one thing, but simply failing to report it... again, what charge?
you dont even need to depose them, interrogatories are cheaper and can be more effective under the circumstances... bury them in paperwork like they bury you in spam.
Basically, unauthorized access should fall into a similar domain as trespassing,
well, there is already an action for trespass to your computer - trespass to chattels. you can file a civil action against the person who trespassed, provided you can show that they had notice they were not wanted, that they trespassed, and that damages were caused. some courts (here in teh US) have adopted this approach, and have done away with the actual damages requirement, in favor of any damage.
also, the remainder of your post is 100% correct - just because you have an awful password or protection scheme doesnt mean that anyone has authorization to do whatever they feel like
Anyone that has *anything* on a public web server that isn't protected with a username and password (and that isn't very difficult, now, is it?) and they want it kept private is some kind moron.
I mean, I could easily spider his site using wget ignoring his robots.txt.. (For the record, his robots.txt is disalow everyone).
And this would get you sued if they didnt like what you were doing anymore, as you would be a trespasser. While cases such as Bidders edge v. eBay didnt explicitly hold that robots.txt constituted notice that robots were not allowed, I think that's going to be the next wave of cases to be litigated. The bottom line is that a site doesn't have to provide the best protection out there, they only have to put you on notice that certain conduct is not wanted, and once you overstep that, you turn from licensee/invitee to trespasser and become liable. weak latch or not, the conduct still gives a cause of action. (please note that my background is CS and although I dont necessarially agree with allowing suits of this kind to be filed, since there should be a more adequate self help remedy taken beforehand other then robots.txt, but this is the current state of things. dont blame the person who takes advantage of the architecture unless they are clearly upn to no good.)
not to lose all credibilty here, but i must know - how much of the Laos population has a) a computer, b) the knowledge to use said computer, and c) the will/$$ to use that computer. I freely admit I dont know much about that country at all, but if its anything like I think of it, this is gonna be a waste. thoughts people?
Microsoft's dislcaimer of warranty is ineffective on several levels. First, under the UCC, a purchaser has a right to a "perfect tender" - that is that the purchase perfectly conforms to what whatever was purchased purports to be. For example - you could not sell a vcr that only worked 50% of the time when it felt like it, or only on a wednesday, (unless you disclosed that up front) and the purchaser agreed in a definite and seasonable expression of assent. Some legislation has proposed so scale this back in the terms of software (UCITA).
Second, products come with an implied warranty of merchantability and fitness for purpose. It essentially means that they are manufactured correctly and that they will be able to do what it is claimed they do.
Bottom line is that anyone can claim that there is no warranty that goes along with their product, but some warranties the court will imply and refuse to not enforce, or will enforece other law tantamount to a warranty. The implied warranties above are examples of those that rise above that of contract, that they can be enforced regardless of what is put in the agreement. The agreement may create a presumption that you have waived these rights, but the court could also find that agreement void as unconscionable.
see section 230(c) for their defense raised. It basically immunizes a "content provider" (slashdot included) against defamation that might occur on their board. as for the kiddie porn, see section (e)(1).
the same way you pick anyone to sue.. figure out against whom you have the most evidence, and then name everyone under the sun connected with them. find every claim you can make and make it.
in defense of the legal system however, there is usually a settlement conference ahead of time, to prevent the uncessary expense of going to trial for both parties. i have not followed this case, but if i had to guess when this was settled, it happened there. of course, if you havent done anything wrong, settling would *seem* like extortion - but if you have a strong enough defense, you might get attorney's fees or a possible rule 11 violation and additional $$ if their suit has no merit.
yeah, sec 1030 would work very well in this case, for both a civil and criminal action. (suit would be filed in federal court, no small claims action here as it is a federal statute)You would need the feds to get involved to prosecute, and there could be jail time for said attack on your machine under section (a)(2)(C), (a)(4), (a)(5)(A) thru (C). (your suit would be filed after the criminal trial, for damage or loss over 5k). For that reason, I dont think you'll see this plan implemented any time soon. You would also have a valid trespass to chattels claim, as they are intermeddling with your legally protected interest.. your computer.
As for them suing you.. good luck. "well your honor, yes, I did break the law, but only to show you that they were breaking it too!" It would tantamount to an admission on their part of criminal liability. To win their case (the riaa), they would have to provide sufficient information as to how they got to the files on your computer, and in the process they would be admitting liability under 1030. With regard to trespass to chattels, their only defense to this would be that their trespass did not legally constitute a trespass, that they had a privilege or a valid necessity, but that burden is on them, and it is a weighty one.
would the riaa shoot themselves in the foot to get at some downloaders? maybe.. if they themselves were prosecuted and jailed, or if they thought it was a real possibility, then doubtful. just my thoughts on the matter.
danoatvulaw '04
Nonsense. It is well-settled law that time-place-and-manner restrictions on speech are acceptable when they are directed to some compelling interest (in this case, protecting the private property rights of the spam targets) and when they leave alternate avenues open to the speaker's message (in this case, spammers can buy banner ads and get listed in search engines like honest folk).
Yes, you can have time place and manner restrictions on speech. However, a law that forbids spam online would be a content based restriction, not content neutral, since it only targets those messages that are deemed to be spam. Therefore time/place/manner restrictions do not apply. Legislators could not pass a law that simply says commercial un/solicited email is outlawed because that law targets the content of the email (even though commercial speech is entitled to lesser First Amendment protection then personal speech). For more see Ward v. Rock Against Racism 491 U.S. 781 (1989).
So apparently we can use our 'common sense' to figure out what's 'the worst, most egregious and fraudulent kinds of spam'. I'm not sure I feel safe in a system where such a statute can be passed. The definition is too open for interpretation.
Today it's porn spam with forged headers, tomorrow it's legitimate advertising getting outlawed.
If the state representatives don't have the balls to outlaw all spam outright, perhaps the residents of Virginia could grow some balls and vote these jokers out of office.
You raise an interesting point about the lack of standards. A law based on community standards as to what is egregious may just prove Constitutionally facially invalid. That remains to be seen. At very least, it presents an issue to be dealt with, and most likely (note - i have not read the actual text of the bill) will be challenged in court. The prospect of changing standards based on conduct does not sit well with me either.
Please dont construe what I am about to say next as supporting spammers, cause I hate 'em just like everyone else, but you cannot just ban spam outright... not without tossing the 1st Amendment in the process. Both commercial and noncommercial speech is protected (like it or not), and here, a prior restraint banning spam will likewise not pass consitutional muster. Forcing truth in advertising, true header information, true return addresses == fine, but not banning spam entirely.
Ok here goes.. a little background to start.
copyright owners have exclusive rights to their works, and those rights are found under section 106 of the copyright act. The exclusive right to digital transmission of audio is covered under the copyright act, section 106(6), and is different from a public performance under 106(4), which would cover the radio or anywhere else for that matter.
For the sake of not boring you to death with a long legal explaination , let's just say that there is a provision of the copyright act, 114(d) that allows people to broadcast digitally (webcast) and not infringe. Special rules apply under 114 to "[nonexempt] subscription digital transmission services", (those pay webcast services) of which there appear to only be the three listed in the proposal.
In return for this right to broadcast, the broadcaster has to pay a "compulsory license" fee, which basically just means that those who want to broadcast can, they just have to pay the fee. The fee is negotiated from time to time.
Now, what the article said was that essentially the RIAA was complaining about the compulsory license fee they were awarded through arbitration with the librarian of congress(The RIAA, through SoundExchange, collects the royalty and gives it to the musicians et al that they represent). The Librarian of Congress, through their panel, established the new license fee. The RIAA was unhappy, and appealed. The court of appeals upheld the fee, but sent the case back down to consider other issues. Some legal wrangling occured (omitted for brevity), and the RIAA and the copyright office came to an agreement on rules that would govern SoundExchange. The proposal was published for comment, and two groups objected to the terms.
Congress then decided to pass the SWSA, which changed things a little. The SWSA changed the way that SoundExhange collects the royalty from people - the webcaster. It also looks like it rendered a lot of the compromise the RIAA had worked out with the copyright office moot, as well as some of the problems they had with AFM and AFTRA. The RIAA proposed a change to the rules of how SoundExchange would be regulated, satisfied the copyright office, AFM and AFTRA, and the copyright office is now publishing this record as a call for comments on the matter.
I wouldnt go into court with that argument.. From a philosophical perspective it makes sense, but as far as the copyright act goes, not so. Fair use is your response to a claim of infringement. It's a completely defensive posture. Do I think that fair use should be applied in a broader manner? Sure. But is it your affirmative right? No.
Fair use is not a right, as much as many of us tend to think it is.. it is a defense to infringement that says "yes we are technically infringing, but for legal purposes we do not count our use as infringing because it is necessary/critical commentary/not affecting the market, etc"
That's not a half bad idea actually, if the prices are reasonable. The main reason I wont buy cds it because who wants to spend $20 and get one good song, 16 crappy ones? As soon as the recording/whatever industry realizes that this is the problem (at least to me), and either changes its pricing structure or allows this kind of downloading for a monthly fee, they're just going to bang their heads against the wall trying to stop online music piracy.
The story, sir, has obviously been corrected. It did in fact say that the government "ruled." If I offended you in some way(how, I do not know, as you did not submit the story yourself), then I am sorry. I was merely pointing out, albeit in quite a strong manner, that the story was grossly inaccurate and was inviting a vehement discussion on an issue that was not present. So if I offended you, I am sorry. However, I stand by my original comment with regard to the story as originally posted.
This is not a ruling, it is an amicus brief filed by the justice department. Essentially it says that they support the DMCA and the powers given under it - it just shows their position on the issue. The DoJ can "rule" all they want on this, but it wont be any more effective then me going outside and "ruling" that my neighbor has to give me his car.
Amicus briefs are filed every day by the DoJ.. so this is nothing extraordinary. Move along, nothing to see here except utter confusion generated by the poster of this topic.
Trespass to chattels is a good for suits of this kind, however, it requires proof of "actual" damages. theoretical damages will not suffice. Simply calculating the clock cycles you lost will not help either, nor will the extra bandwidth you had used. If you can come up with actual $'s that you spent either investigating the trespass or some other pseudo-tangible damage, then you have a case. Spam filling up your inbox, by itself, will not yield actual damages. Adding a hard drive to account for this extra traffic, actual expenses.
An excellent point - where is the middle ground? The answer I think to that is a solid I don't know. It's a real tough problem. Anyone reading this who has an idea how to restrict regulations only to spam and not encompass protected speech, get ahold of your congressman!
That's what i was saying. However, time place and manner restrictions are allowable if the speech regulated is neutrally regulated, not content based. Clearly any law regulating spam is going to be based on the content of the message - that's what makes spam spam.
The hurdle the have to overcome is not strict scrutiny, else they would need to prove a compelling interest. That would be harder but do-able. However, as for narrowly tailoring a statute, very hard. As long as the defendant could come up with a couple of suggestions how to make the statute more narrow or show that it is too overbroad, the statute is dead. Because this is commerical speech the test is intermediate, but the tailoring is still going to be an issue.
An anti-spam bill would not necessarially infringe on first amendment rights, provided the government could show enough of a substantial interest in regulating the speech. That I don't think will be much of a problem. Tailoring it sufficiently so as to only encompass spam.. thats another matter. There the goverment might just well run into an overbreadth problem, but if they can show that their way is the only way to accomplish their goal, then it will be upheld. Commercial speech is protected under the First Amendment just like personal speech is, except to a lesser degree.
The RIAA action, at least to me, doesn't implicate first amendment protection in the slightest. The constitution only applies to state actors, and the RIAA isn't one of them. The RIAA is attempting to enforce their rights through the copyright clause, to which the first amendment really isn't going to provide a defense to piracy. Fair use yes, First Amendment No. Trust me, I hate the RIAA just like the rest of us, and I don't think that downloading mp3's is that big a loss to them, but it is violating the law, and is punishable.
If that is the truth, then could you please point me to the portion of the act that allows it? As a law student, this goes against everything I have been taught up to this point. Note that I'm not trying to start an argument here, just find out the truth of the matter. It seems unconscionable to me that a US citizen can just be taken constitutionally.. so until I see it, I don't buy it.
You can be detained, without being charged, indefinitely, having been investigated under a sealed warrant, an unsigned warrant, or no warrant at all, and then be denied access to a lawyer.
Please tell me where in the patriot act they did away with the ENTIRE CONSTITUTION? I found nothing in my reading of it that says persons may be detained indefinately without charge. I noticed that there is an increase in wiretap ability of the government, but anything that says you can be held without charge indefinately is not only ludicrous (sp?), but facially unconstitutional.
Yes, it is clear that the powers of the government to spy via this law are greatly expanded, and may not be constitutional. However, I simply do not buy into the FUD that so many have that the US can just whisk you away in the middle of the night on secret charges, and do it legally. This is not communist russia.
Slashdot Mirror
But, if you're in the car, the driver is drunker than you, then you get a ticket. Same goes for everyone else in the car.
... again, what charge?
that is crap, and you know it. what would they cite you for? last i checked, riding in a car while intoxicated is not a violation of ANY kind (unless you are underage). if they do indeed cite you for something, please tell me what it is, I would be eager to know what exact law they rely on.
I believe you're right about being guilty for not reporting it.
as for reporting a crime, you're under no affirmative obligation to report, unless you have a legal duty to do so, such as if you're a police officer... a private citizen has no reponsibility to report a murder even if they saw it happen right in front of them. Now, if the police wish to question you about it, obstructing their investigation is one thing, but simply failing to report it
you dont even need to depose them, interrogatories are cheaper and can be more effective under the circumstances... bury them in paperwork like they bury you in spam.
Basically, unauthorized access should fall into a similar domain as trespassing,
well, there is already an action for trespass to your computer - trespass to chattels. you can file a civil action against the person who trespassed, provided you can show that they had notice they were not wanted, that they trespassed, and that damages were caused. some courts (here in teh US) have adopted this approach, and have done away with the actual damages requirement, in favor of any damage.
also, the remainder of your post is 100% correct - just because you have an awful password or protection scheme doesnt mean that anyone has authorization to do whatever they feel like
not to lose all credibilty here, but i must know - how much of the Laos population has a) a computer, b) the knowledge to use said computer, and c) the will/$$ to use that computer. I freely admit I dont know much about that country at all, but if its anything like I think of it, this is gonna be a waste. thoughts people?
Microsoft's dislcaimer of warranty is ineffective on several levels. First, under the UCC, a purchaser has a right to a "perfect tender" - that is that the purchase perfectly conforms to what whatever was purchased purports to be. For example - you could not sell a vcr that only worked 50% of the time when it felt like it, or only on a wednesday, (unless you disclosed that up front) and the purchaser agreed in a definite and seasonable expression of assent. Some legislation has proposed so scale this back in the terms of software (UCITA).
Second, products come with an implied warranty of merchantability and fitness for purpose. It essentially means that they are manufactured correctly and that they will be able to do what it is claimed they do.
Bottom line is that anyone can claim that there is no warranty that goes along with their product, but some warranties the court will imply and refuse to not enforce, or will enforece other law tantamount to a warranty. The implied warranties above are examples of those that rise above that of contract, that they can be enforced regardless of what is put in the agreement. The agreement may create a presumption that you have waived these rights, but the court could also find that agreement void as unconscionable.
see section 230(c) for their defense raised. It basically immunizes a "content provider" (slashdot included) against defamation that might occur on their board. as for the kiddie porn, see section (e)(1).
the same way you pick anyone to sue.. figure out against whom you have the most evidence, and then name everyone under the sun connected with them. find every claim you can make and make it.
in defense of the legal system however, there is usually a settlement conference ahead of time, to prevent the uncessary expense of going to trial for both parties. i have not followed this case, but if i had to guess when this was settled, it happened there. of course, if you havent done anything wrong, settling would *seem* like extortion - but if you have a strong enough defense, you might get attorney's fees or a possible rule 11 violation and additional $$ if their suit has no merit.
danoatvulaw
yeah, sec 1030 would work very well in this case, for both a civil and criminal action. (suit would be filed in federal court, no small claims action here as it is a federal statute)You would need the feds to get involved to prosecute, and there could be jail time for said attack on your machine under section (a)(2)(C), (a)(4), (a)(5)(A) thru (C). (your suit would be filed after the criminal trial, for damage or loss over 5k). For that reason, I dont think you'll see this plan implemented any time soon. You would also have a valid trespass to chattels claim, as they are intermeddling with your legally protected interest.. your computer.
As for them suing you.. good luck. "well your honor, yes, I did break the law, but only to show you that they were breaking it too!" It would tantamount to an admission on their part of criminal liability. To win their case (the riaa), they would have to provide sufficient information as to how they got to the files on your computer, and in the process they would be admitting liability under 1030. With regard to trespass to chattels, their only defense to this would be that their trespass did not legally constitute a trespass, that they had a privilege or a valid necessity, but that burden is on them, and it is a weighty one.
would the riaa shoot themselves in the foot to get at some downloaders? maybe.. if they themselves were prosecuted and jailed, or if they thought it was a real possibility, then doubtful. just my thoughts on the matter.
danoatvulaw '04
Yes, you can have time place and manner restrictions on speech. However, a law that forbids spam online would be a content based restriction, not content neutral, since it only targets those messages that are deemed to be spam. Therefore time/place/manner restrictions do not apply. Legislators could not pass a law that simply says commercial un/solicited email is outlawed because that law targets the content of the email (even though commercial speech is entitled to lesser First Amendment protection then personal speech). For more see Ward v. Rock Against Racism 491 U.S. 781 (1989).
Please dont construe what I am about to say next as supporting spammers, cause I hate 'em just like everyone else, but you cannot just ban spam outright... not without tossing the 1st Amendment in the process. Both commercial and noncommercial speech is protected (like it or not), and here, a prior restraint banning spam will likewise not pass consitutional muster. Forcing truth in advertising, true header information, true return addresses == fine, but not banning spam entirely.
Ok here goes.. a little background to start.
copyright owners have exclusive rights to their works, and those rights are found under section 106 of the copyright act. The exclusive right to digital transmission of audio is covered under the copyright act, section 106(6), and is different from a public performance under 106(4), which would cover the radio or anywhere else for that matter.
For the sake of not boring you to death with a long legal explaination , let's just say that there is a provision of the copyright act, 114(d) that allows people to broadcast digitally (webcast) and not infringe. Special rules apply under 114 to "[nonexempt] subscription digital transmission services", (those pay webcast services) of which there appear to only be the three listed in the proposal. In return for this right to broadcast, the broadcaster has to pay a "compulsory license" fee, which basically just means that those who want to broadcast can, they just have to pay the fee. The fee is negotiated from time to time.
Now, what the article said was that essentially the RIAA was complaining about the compulsory license fee they were awarded through arbitration with the librarian of congress(The RIAA, through SoundExchange, collects the royalty and gives it to the musicians et al that they represent). The Librarian of Congress, through their panel, established the new license fee. The RIAA was unhappy, and appealed. The court of appeals upheld the fee, but sent the case back down to consider other issues. Some legal wrangling occured (omitted for brevity), and the RIAA and the copyright office came to an agreement on rules that would govern SoundExchange. The proposal was published for comment, and two groups objected to the terms.
Congress then decided to pass the SWSA, which changed things a little. The SWSA changed the way that SoundExhange collects the royalty from people - the webcaster. It also looks like it rendered a lot of the compromise the RIAA had worked out with the copyright office moot, as well as some of the problems they had with AFM and AFTRA. The RIAA proposed a change to the rules of how SoundExchange would be regulated, satisfied the copyright office, AFM and AFTRA, and the copyright office is now publishing this record as a call for comments on the matter.
I wouldnt go into court with that argument.. From a philosophical perspective it makes sense, but as far as the copyright act goes, not so. Fair use is your response to a claim of infringement. It's a completely defensive posture. Do I think that fair use should be applied in a broader manner? Sure. But is it your affirmative right? No.
Fair use is not a right, as much as many of us tend to think it is.. it is a defense to infringement that says "yes we are technically infringing, but for legal purposes we do not count our use as infringing because it is necessary/critical commentary/not affecting the market, etc"
That's not a half bad idea actually, if the prices are reasonable. The main reason I wont buy cds it because who wants to spend $20 and get one good song, 16 crappy ones? As soon as the recording/whatever industry realizes that this is the problem (at least to me), and either changes its pricing structure or allows this kind of downloading for a monthly fee, they're just going to bang their heads against the wall trying to stop online music piracy.
The story, sir, has obviously been corrected. It did in fact say that the government "ruled." If I offended you in some way(how, I do not know, as you did not submit the story yourself), then I am sorry. I was merely pointing out, albeit in quite a strong manner, that the story was grossly inaccurate and was inviting a vehement discussion on an issue that was not present. So if I offended you, I am sorry. However, I stand by my original comment with regard to the story as originally posted.
This is not a ruling, it is an amicus brief filed by the justice department. Essentially it says that they support the DMCA and the powers given under it - it just shows their position on the issue. The DoJ can "rule" all they want on this, but it wont be any more effective then me going outside and "ruling" that my neighbor has to give me his car.
Amicus briefs are filed every day by the DoJ.. so this is nothing extraordinary. Move along, nothing to see here except utter confusion generated by the poster of this topic.
See Marbury v. Madison, 5 U.S. 137 (1803) for the full explaination.
Trespass to chattels is a good for suits of this kind, however, it requires proof of "actual" damages. theoretical damages will not suffice. Simply calculating the clock cycles you lost will not help either, nor will the extra bandwidth you had used. If you can come up with actual $'s that you spent either investigating the trespass or some other pseudo-tangible damage, then you have a case. Spam filling up your inbox, by itself, will not yield actual damages. Adding a hard drive to account for this extra traffic, actual expenses.
danoatvulaw
An excellent point - where is the middle ground? The answer I think to that is a solid I don't know. It's a real tough problem. Anyone reading this who has an idea how to restrict regulations only to spam and not encompass protected speech, get ahold of your congressman!
danoatvulaw
That's what i was saying. However, time place and manner restrictions are allowable if the speech regulated is neutrally regulated, not content based. Clearly any law regulating spam is going to be based on the content of the message - that's what makes spam spam.
The hurdle the have to overcome is not strict scrutiny, else they would need to prove a compelling interest. That would be harder but do-able. However, as for narrowly tailoring a statute, very hard. As long as the defendant could come up with a couple of suggestions how to make the statute more narrow or show that it is too overbroad, the statute is dead. Because this is commerical speech the test is intermediate, but the tailoring is still going to be an issue.
danoatvulaw
An anti-spam bill would not necessarially infringe on first amendment rights, provided the government could show enough of a substantial interest in regulating the speech. That I don't think will be much of a problem. Tailoring it sufficiently so as to only encompass spam.. thats another matter. There the goverment might just well run into an overbreadth problem, but if they can show that their way is the only way to accomplish their goal, then it will be upheld. Commercial speech is protected under the First Amendment just like personal speech is, except to a lesser degree.
The RIAA action, at least to me, doesn't implicate first amendment protection in the slightest. The constitution only applies to state actors, and the RIAA isn't one of them. The RIAA is attempting to enforce their rights through the copyright clause, to which the first amendment really isn't going to provide a defense to piracy. Fair use yes, First Amendment No. Trust me, I hate the RIAA just like the rest of us, and I don't think that downloading mp3's is that big a loss to them, but it is violating the law, and is punishable.
danoatvulaw
Villanova Law School class of 04.
You are correct sir. The Constitution extends to all "persons", not just U.S. Citizens.
If that is the truth, then could you please point me to the portion of the act that allows it? As a law student, this goes against everything I have been taught up to this point. Note that I'm not trying to start an argument here, just find out the truth of the matter. It seems unconscionable to me that a US citizen can just be taken constitutionally.. so until I see it, I don't buy it.
Please tell me where in the patriot act they did away with the ENTIRE CONSTITUTION? I found nothing in my reading of it that says persons may be detained indefinately without charge. I noticed that there is an increase in wiretap ability of the government, but anything that says you can be held without charge indefinately is not only ludicrous (sp?), but facially unconstitutional.
Yes, it is clear that the powers of the government to spy via this law are greatly expanded, and may not be constitutional. However, I simply do not buy into the FUD that so many have that the US can just whisk you away in the middle of the night on secret charges, and do it legally. This is not communist russia.