They can argue prior restraint all they feel like, and in some cases, it may be true. However, they completely miss the fact that child pornography is entitled to exactly 0 Constitutional protection. None. Also, prior restraint necessarially implies that the government is trying to stop the speech before it happens - here the site is already up and running!
danoatvulaw
note that I have not read their report, but based on your summation, they dont have a leg to stand on.
Even assuming this article to be true, and not an april fools joke, this sort of wrangling would not help the government get around the Constitution. Just because they go to a private individual does not preclude the court from holding those private individuals as "state actors", and therefore subject to the same restrictions, ie 4th Amendment, as the federal government. On its face it would seem plausible enough, but when you get down to it, it's not going to work.
Your comment about life in prison is scary, yes, but not factually accurate. It is impossible to get life in prison as you suggested as copyright infringement prosecutions are all FEDERAL jurisdiction, not STATE. Therefore, California three strikes laws would not apply, and neither would any other state laws for that matter (except those not preempted.)
The reason that you incorporate in delaware are their "pro management" laws. Basically delaware saw an oportunity to make a killing by having the most lenient, pro board of directors (and anti shareholder) statutes in the country.
Yes, Lexmark got an injunction... a PRELIMINARY one. That only means that those which they are suing, Static Control, cannot make/sell/whatever is in the injunction, pending the outcome of the case. It DOES NOT mean that NO ONE can manufacture replacement cartridges. It is only a temporary measure to halt production in the meantime until there is a judgment. While not good for Static Control, it does NOT signal the death knell for cartridge replacement.
Sue them for diffamation. In some moment they should learn that accussing someone for things nobody did have a cost (at least a generous salary for the one that had to check their affirmation, administrative costs, etc).
Would be a nice idea, wouldn't it? However, you can't. A defamation action requires a false statement of fact, published to a third party. It's a tort based around your loss of reputation in the community.
Cease and Desist letters are perfectly legal, and are used all the time. Now, please don't think that I condone the BSA's strongarm tactics, but sending out a letter "asking" someone to comply if they are already not is a cheap way to say "hey, we know, or truly think you are doing x, so please dont do it anymore or we'll be forced to take additional action." If you're not doing what they say you are, ignore it. Let them try and bring an action. No reasonable organization would bring suit without any evidence of wrongdoing.
Yes, you have the right to self defense, but it must be "proportional" to the harm faced. If you truly believe that your attacker was going to kill you, with whatever weapon or not, then you are justified in using deadly force in response. However, simply because someone decides they want to beat on you, or even take a swing at you does not give you the right to shoot them.
The point you make about the guy carrying the gun legally getting in trouble is flawed. Carrying a gun on your person implies that you have a greater responsibility in exercising that privilege. Getting a DUI necessarily means that you were under the influence - does it make sense for a drunk/high/whatever person to be packing?! Likewise with the fist fight example you give - you have not committed a crime just by fighting back. You are the victim if they are the aggressor initially, but you pulling out your glock once they crowd around then makes you the aggressor. So, no, charges are not getting "trumped up" as you say - they are merely escalating in proportion to that person's utter lack of responsibility when carrying a deadly weapon.
And seriously, I would love to know what case you are referring to with the four drunks.. if you could provide me with a name or a cite that would be great.
While your thought is admirable, I have to go ahead and disagree with you. I understand that the home user is the one who typically downloads more then the office user, and that they pose more of an infringer. But from a cost/benefit analysis standpoint alone, they would never start filing suit against more then a handful of home users. Litigation is expensive as hell, and they would have to sue millions of people to make it worth while. Not to mention that they'd be suing a bunch of judgment proof individuals. The real money they hope to get is from the corps for contributory/vicarious copyright infringement - they have the deep pockets. If they are just doing this as a scare tactic, then it might be an effective way to get the average person to stop trading mp3's for fear of liability, but to actually follow it through on a large scale would be completely cost ineffective in the long run....
Because you need to know a lot more then just what forms to bring to court. You need to know the rules of procedure, federal or state depending, and the rules of evidence, among other things. You need to know the rules of the game before attempting to play. Unprepared litigants hold up the system and detract from the issue at hand.
And I'll be damned if that poster above me is a lawyer.
Your analysis is legally flawed. Note that I do not like restrictive EULA's such as the ones that accompany *most* software these days, but they are nonetheless enforceable. Your house sale example is an outright sale of the residence, title passes and all. You can create a license agreement all you want after that, but you have no ownership of anything on which to license! Conversely, when software companies sell software, they are not truly selling the software. They are selling you a license to use that software, and retaining all copyrights and other related interests. The lack of a timeframe for your license to expire is meaningless in the analysis. You are not renting the software per se - you have exclusive right to use is subject to following the conditions of the license.
Here here! It's amazing how many people cry that their minority party gets nowhere, but they fail to realize that if the majority of the citizens of the US actually subscribed to their ideals, then they would have influence. It's their sheer lack of appeal to voters that ensures their downfall.
Gore did NOT win.. he may have *appeared* to have more popular votes in florida, but the plain fact remains that the standards that were used to count so called "undervotes" was flawed and entirely subjective. They were using different standards from county to county as to what constituted "voter intent". See Bush v Gore, 531 U.S. 98 (2000). That, my friend, is an attempt to steal an election - by looking at a piece of paper and saying "well, this person obviously wanted to vote for gore because his chad is dimpled."
Ok.. just to clarify a couple of your points. For starters, the UCC is the Uniform Commercial Code, not Universal. Secondly, the UCC is generally only applied as between two merchants, not merchant and general public consumer. Third, that title to said goods passes to you is not a concern of the UCC (which by the way is not law until it is adopted by a particular jurisdiction), it really comes from property law.
As to point 2 you make... your statement is completely and utterly factually incorrect. The US constitution only applies as against governmental intrusion, not private parties. The correct remedy here for someone searching your person without due cause is a tort action for false arrest, false imprisonment, and if they touch you, battery. Store security guards MAY detain you LAWFULLY if they have reasonable belief that you have comitted an unlawful act, and yes, that extends even outside the store into the parking lot. Bonkowski v Arlan's Department Store, 162 N.W.2d 347 (Mich.App. 1968)
Lastly, you are correct in that you cannot completely sign away your rights... However, your last paragraph makes no sense whatsoever.
Have you read your license lately? By using the software, you give them the right...
... subject to you ALLOWING it. Yes, in the agreement you allowed them whatever "rights" under the contract.. but, what you fail to understand, is that you can deny them those purported rights. Contracts and EULA's are not the be all end all. You will be in breach of your agreement, but so what? The chances a court would order specific performance are zippo... they may get some form of damages, but proof is again another matter.
They show up at your door with a warrant and several federal marshals. They then force your employees to stand away from their computers while they perform a system audit. Then they check on the licenses and reciepts that you have, and match those to their audit. If things don't match they negotiate a settlement. If you don't feel like negotiating, they take you to federal court for copyright infringement.
Oh, and they make you pay for the audit too.
That is one of the most misguided statements of the law I have ever heard. First of all, they will never, ever get a warrant. They are not the police, they are private individuals. At most, they might get a subpoena, after a civil action has been filed. And they will NEVER be able to FORCE you to stand aside from your computer simply by walking in and demanding access. They can waive the EULA in your face all that want... but the plain fact is is that EULA's are contracts, and you can breach them any time you want. OR you can defend them and try and have any "audit" clause declared unconscionable and that clause voided. The MIGHT be able to get access to your computer during discovery in a civil action, but for them to go through all that trouble, do you reall think it's worth their time?
4th Amendment search and seizure protection is only triggered when the action comes from the government, hence why police need warrants. You are correct though, in that, you would have to grant them consent to search your property, else you have a tort action for trespass, and you may be able to press criminal charges successfully. The BSA will be coming at you saying that you allowed them the "right" to audit you in the EULA. However, dont forget that an EULA is just a contract, which is susceptable to challenge on the basis of adhesion, as well as many others (unconscionability as another.)
Landlord/tenant law permits the landlord entry to your dwelling only under a very specific set of circumstances. Property and contracts are distinctly different - right of reentry comes from a statute passed by the legislature, not from your lease agreement per se.
Slashdot Mirror
They can argue prior restraint all they feel like, and in some cases, it may be true. However, they completely miss the fact that child pornography is entitled to exactly 0 Constitutional protection. None. Also, prior restraint necessarially implies that the government is trying to stop the speech before it happens - here the site is already up and running! danoatvulaw note that I have not read their report, but based on your summation, they dont have a leg to stand on.
Even assuming this article to be true, and not an april fools joke, this sort of wrangling would not help the government get around the Constitution. Just because they go to a private individual does not preclude the court from holding those private individuals as "state actors", and therefore subject to the same restrictions, ie 4th Amendment, as the federal government. On its face it would seem plausible enough, but when you get down to it, it's not going to work.
danoatvulaw
Your comment about life in prison is scary, yes, but not factually accurate. It is impossible to get life in prison as you suggested as copyright infringement prosecutions are all FEDERAL jurisdiction, not STATE. Therefore, California three strikes laws would not apply, and neither would any other state laws for that matter (except those not preempted.)
The reason that you incorporate in delaware are their "pro management" laws. Basically delaware saw an oportunity to make a killing by having the most lenient, pro board of directors (and anti shareholder) statutes in the country.
Yes, Lexmark got an injunction... a PRELIMINARY one. That only means that those which they are suing, Static Control, cannot make/sell/whatever is in the injunction, pending the outcome of the case. It DOES NOT mean that NO ONE can manufacture replacement cartridges. It is only a temporary measure to halt production in the meantime until there is a judgment. While not good for Static Control, it does NOT signal the death knell for cartridge replacement.
Would be a nice idea, wouldn't it? However, you can't. A defamation action requires a false statement of fact, published to a third party. It's a tort based around your loss of reputation in the community.
Cease and Desist letters are perfectly legal, and are used all the time. Now, please don't think that I condone the BSA's strongarm tactics, but sending out a letter "asking" someone to comply if they are already not is a cheap way to say "hey, we know, or truly think you are doing x, so please dont do it anymore or we'll be forced to take additional action." If you're not doing what they say you are, ignore it. Let them try and bring an action. No reasonable organization would bring suit without any evidence of wrongdoing.
you can almost see the lawsuit filing itself...
Yes, you have the right to self defense, but it must be "proportional" to the harm faced. If you truly believe that your attacker was going to kill you, with whatever weapon or not, then you are justified in using deadly force in response. However, simply because someone decides they want to beat on you, or even take a swing at you does not give you the right to shoot them.
The point you make about the guy carrying the gun legally getting in trouble is flawed. Carrying a gun on your person implies that you have a greater responsibility in exercising that privilege. Getting a DUI necessarily means that you were under the influence - does it make sense for a drunk/high/whatever person to be packing?! Likewise with the fist fight example you give - you have not committed a crime just by fighting back. You are the victim if they are the aggressor initially, but you pulling out your glock once they crowd around then makes you the aggressor. So, no, charges are not getting "trumped up" as you say - they are merely escalating in proportion to that person's utter lack of responsibility when carrying a deadly weapon.
And seriously, I would love to know what case you are referring to with the four drunks.. if you could provide me with a name or a cite that would be great.
since when is drug dealing a "minor" crime?
... the first post!
While your thought is admirable, I have to go ahead and disagree with you. I understand that the home user is the one who typically downloads more then the office user, and that they pose more of an infringer. But from a cost/benefit analysis standpoint alone, they would never start filing suit against more then a handful of home users. Litigation is expensive as hell, and they would have to sue millions of people to make it worth while. Not to mention that they'd be suing a bunch of judgment proof individuals. The real money they hope to get is from the corps for contributory/vicarious copyright infringement - they have the deep pockets. If they are just doing this as a scare tactic, then it might be an effective way to get the average person to stop trading mp3's for fear of liability, but to actually follow it through on a large scale would be completely cost ineffective in the long run....
Because you need to know a lot more then just what forms to bring to court. You need to know the rules of procedure, federal or state depending, and the rules of evidence, among other things. You need to know the rules of the game before attempting to play. Unprepared litigants hold up the system and detract from the issue at hand.
And I'll be damned if that poster above me is a lawyer.
HAHAHAHAHAHAHAHAHAHAHA... thats one of the funniest goddamn things ive seen all day
Your analysis is legally flawed. Note that I do not like restrictive EULA's such as the ones that accompany *most* software these days, but they are nonetheless enforceable. Your house sale example is an outright sale of the residence, title passes and all. You can create a license agreement all you want after that, but you have no ownership of anything on which to license! Conversely, when software companies sell software, they are not truly selling the software. They are selling you a license to use that software, and retaining all copyrights and other related interests. The lack of a timeframe for your license to expire is meaningless in the analysis. You are not renting the software per se - you have exclusive right to use is subject to following the conditions of the license.
That is some of the worst english I think I have ever seen. "Interesting" only for the grammar issues....
it was a joke actually.... drudgereport is about as reliable as the STAR, or national enquirer.
say it with me now... extradition.
yeah... drudgereport.
Here here! It's amazing how many people cry that their minority party gets nowhere, but they fail to realize that if the majority of the citizens of the US actually subscribed to their ideals, then they would have influence. It's their sheer lack of appeal to voters that ensures their downfall.
Gore did NOT win.. he may have *appeared* to have more popular votes in florida, but the plain fact remains that the standards that were used to count so called "undervotes" was flawed and entirely subjective. They were using different standards from county to county as to what constituted "voter intent". See Bush v Gore, 531 U.S. 98 (2000). That, my friend, is an attempt to steal an election - by looking at a piece of paper and saying "well, this person obviously wanted to vote for gore because his chad is dimpled."
Ok.. just to clarify a couple of your points. For starters, the UCC is the Uniform Commercial Code, not Universal. Secondly, the UCC is generally only applied as between two merchants, not merchant and general public consumer. Third, that title to said goods passes to you is not a concern of the UCC (which by the way is not law until it is adopted by a particular jurisdiction), it really comes from property law.
As to point 2 you make... your statement is completely and utterly factually incorrect. The US constitution only applies as against governmental intrusion, not private parties. The correct remedy here for someone searching your person without due cause is a tort action for false arrest, false imprisonment, and if they touch you, battery. Store security guards MAY detain you LAWFULLY if they have reasonable belief that you have comitted an unlawful act, and yes, that extends even outside the store into the parking lot. Bonkowski v Arlan's Department Store, 162 N.W.2d 347 (Mich.App. 1968)
Lastly, you are correct in that you cannot completely sign away your rights... However, your last paragraph makes no sense whatsoever.
Have you read your license lately? By using the software, you give them the right...
... subject to you ALLOWING it. Yes, in the agreement you allowed them whatever "rights" under the contract.. but, what you fail to understand, is that you can deny them those purported rights. Contracts and EULA's are not the be all end all. You will be in breach of your agreement, but so what? The chances a court would order specific performance are zippo... they may get some form of damages, but proof is again another matter.
yeah.. that's what I said.
They show up at your door with a warrant and several federal marshals. They then force your employees to stand away from their computers while they perform a system audit. Then they check on the licenses and reciepts that you have, and match those to their audit. If things don't match they negotiate a settlement. If you don't feel like negotiating, they take you to federal court for copyright infringement. Oh, and they make you pay for the audit too.
That is one of the most misguided statements of the law I have ever heard. First of all, they will never, ever get a warrant. They are not the police, they are private individuals. At most, they might get a subpoena, after a civil action has been filed. And they will NEVER be able to FORCE you to stand aside from your computer simply by walking in and demanding access. They can waive the EULA in your face all that want... but the plain fact is is that EULA's are contracts, and you can breach them any time you want. OR you can defend them and try and have any "audit" clause declared unconscionable and that clause voided. The MIGHT be able to get access to your computer during discovery in a civil action, but for them to go through all that trouble, do you reall think it's worth their time?
4th Amendment search and seizure protection is only triggered when the action comes from the government, hence why police need warrants. You are correct though, in that, you would have to grant them consent to search your property, else you have a tort action for trespass, and you may be able to press criminal charges successfully. The BSA will be coming at you saying that you allowed them the "right" to audit you in the EULA. However, dont forget that an EULA is just a contract, which is susceptable to challenge on the basis of adhesion, as well as many others (unconscionability as another.)
Landlord/tenant law permits the landlord entry to your dwelling only under a very specific set of circumstances. Property and contracts are distinctly different - right of reentry comes from a statute passed by the legislature, not from your lease agreement per se.
2L, Villanova Law