It violates property laws, search & seizure laws, as well as laws against extortion, to name a few)
Actually, audits neither violate search and seizure laws, nor are they extortion. Your 4th Amendment right only applies when the government is the actor, not a private individual. As to extortion, they are presumably threatening to enforce something in their licensing agreement, therefore not extorting you of anything. And as to property laws, if you let them do it, then you have granted them access to your private property, thus no trespass unless they act outside the authority you allow them. They can tell you that the agreement you signed with them permits inspection at any time, or an audit, but you still have the choice of not allowing them access. I will save the contract issues that would follow for a later time. You are right though.. the odds that this is enforced are 0.
This would be a civil proceeding, not criminal. So you're not a) innocent until proven guilty, and b) allowed a trial by jury.
Actually, you are innocent until your liability is proven by a preponderance of the evidence, and yes, you are allowed a trial by jury in a civil proceeding. Such is the law of the United States.
That is an excellent statement. They have absolutely no legal authority to force you to let them inspect your system, EULA or not. EULA's are at best a murky subject currently, and at worse for denying them access you could face a breach of contract action. The chances of that, however, are very little. Let them try and bring the action and attempt to prove that you have pirated software. Simply saying "you have software that our people make, and if you dont have documentation for it, it must be pirated" wont fly with the court. The burden of proof is on them, remember.
Imagine the billions and billions we wouldn't have to piss away on insurance if we clamped down on the trial lawyers.
When a medical malpractice suit can cost $100M, a doctor can't afford to diagnose a common cold without malpractice insurance.
This is complete garbage. There is no need to crack down on anyone but bad doctors, not the lawyers. People who have injuries should be compensated for the wrongdoings of the actor who caused it, plain and simple. All this talk about capping "non-economic" damages at 250k is likewise garbage. Do me a favor - think about how much your legs are worth to you. Now think about if the doctor mistakenly diagnosed something, say an infection, causing you to lose both of them. Or if that infection caused you to go into cardiac arrest, go blind, or become paralyized on 50% of your body. That and similar things happen more frequently then you would like to believe.
Tell me again why that doctor should not pay for his mistake? We take medicine as an exact science in today's world, and there's absolutly nothing wrong with that. Doctors hold themselves out as trained professionals, able to diagnose your health related issues and make judgments that will directly affect your well being. Doctors can and should be made to compensate those that they undertake to care for. If your skills are not up to par, dont become a doctor.
Now I will concede that there are frivolous lawsuits, and those attorneys should be reprimanded themselves. And it is also true that jury awards will be excessive sometimes. However, everyone tends to lose sight of the fact that awards are made by juries, composed of regular people. THEY decide how much to award in pain and suffering, not the attorneys. And more often then not, when you see a verdict for 10 Mil, that is significantly reduced on appeal, because juries cannot make grossly excessive awards, nor can the award based on emotion.
I guess this means I can use the DMCA to force ISPs to give me the IDs of people whose machines have sent me spam. Since there's no due process involved, nor (seemingly) any right to appeal (at least by the ISP, and there doesn't seem to be a provision for user to appeal), I should be able to find out who they are, where they live, and their phone number.
Yeah, uh, no. For starters, you have to actually file a civil complaint to issue a subpoena. So, to get any information out of the ISP, or anyone, you have to file suit and then demand production of documents or that they appear for testimony. Simply saying to verizon "here is my piece of paper that says subpoena on it, now give me my information" is not going to get you anywhere.
Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.
Your cite is true, but not applicable here however. In a civil action, one could possibly be held liable for negligently lending their property to someone (here the car), and having it cause injury. However, when it comes to criminal actions, and even traffic tickets (as they are held to be quasi-criminal procedures), due process factors into the equation on a much greater scale. Simply charging the registered owner of the vehicle with speeding, of which they were not driving, would not hold up. Your personal commission of the act is what's needed. For example - If I allow you to borrow my car, and you hit a car and flee the scene, you will be charged with the crime, as you are the only one who comitted the act. The same holds true for moving violations, as they are personal charges. However, in a civil action, I can be sued as well because I am the owner of the vehicle, and but for my supossed negligence in lending you the car you would not have hit and run.
That means your little EULA can be balled up and chucked in the trash by NY, CA, VA, etc.
This makes no sense. You are confusing contract and copyright. States have no place in the copyright forum. EULA is contract.
They can make it a class 6 felony punishable by 20 years in a state prison for knowingly distributing "copy-restricted" CDs and what can the copyright holder do? Abide by the law or go to prison, that's what.
Again, I think the 8th Amendment may play into that statement. There's so many legal issues with that statement, I'm not even going to begin.
In general, and in most jurisdictions, the force used in self defense must be reasonable as compared to the force faced. If someone simply breaks into your house at night, and I am not discounting that that is a scary event, you can still be liable for blowing them away. Asinine as it is I know, but that's the rule.
When it comes to your other question, I would have to say probably not - you probably cant fight back. It seems like a great idea, to be able to disable the attacker, but I'd bet that a court would find that response not reasonable in light of the force faced.
the problem with that is that those kinds of agreements are not necessarily enforceable, or of any consequence. since they are only creatures of contract, you are still the provider when it comes down to a criminal matter. even in a civil matter, if your so called "click through" is not a reasonable precaution in the eyes of the court, a negligence suit could be awaiting.
Firstly, you could probably get around something like this by refusing to distribute the program to anyone in any location where the program is illegal, and denying permission for the program to be distributed by others in those places too.
The problem with that solution is however, how do you know what is illegal where? Noone is an expert on the laws of every country, and in my opinion, you shouldnt have to be. I'm not saying that your solution is a bad one, it would just be very hard to implement from a practical standpoint.
Secondly, youre only liable for the travel if you actually want to go defend yourself. You could just skip it. Would be safe if your country's extradition treaty with the USA (if it even has one) didnt include copyright type offenses.
You are absolutely right on that point. From a legal standpoint, if you dont have attachable assets in that jurisdiction, then you're ok. Just let them try and collect in a foreign country!
That's a perfectly true statement. Kazaa, as far as I can tell, has no attachable assets anywhere in the US - therefore a judgment for money damages against them wouldnt work. Injunctive relief I would also think would be impossible here because of the architecture of the technology... the court could order Kazaa to cease, but how really could they shut down P2P?
actually,you need what's called purposeful availment... simply putting up a website that can be viewed anywhere will not inandof itself create minimum contacts.
Uh.. yeah.. no. There are plenty of SCT cases on jurisdictional issues, as well as minimum contacts. Pick up a book on civil procedure, it'll show you.
Actually, even assuming that libel is still a prosecutable "crime", the US extradition treaty (27 UST 957) with Australia only covers specifically enumerated felonies, (libel is not one of them... therefore enforcing a judgment against you would be next to impossible):
1. Murder or willful murder; assault with intent to commit murder.
2. Manslaughter.
3. Aggravated or willful wounding or injuring; assault occasioning actual bodily harm.
4. Unlawful throwing or application of any corrosive or injurious substances upon the person of another.
5. Rape; indecent assault, including unlawful sexual acts with or upon children.
6. Illegal abortion.
7. Procuring, or trafficking in, women or young persons for immoral purposes; living on the earnings of prostitution.
8. Abandoning or exposing a child when the life of that child is or is likely to be injured or endangered.
12. Burglary; housebreaking or any similar offense.
13. Larceny.
14. Embezzlement.
15. Obtaining any property, money or valuable securities by false pretenses or other form of deception.
16. An offense against the law relating to bribery.
17. Extortion.
18. Receiving any property, money or valuable securities knowing the same to have been unlawfully obtained.
19. Fraud by an agent, bailee, banker, factor or trustee, by a director or officer of a company or by a promoter of a company, whether existing or not.
20. An offense relating to counterfeiting or forgery.
21. Perjury; subornation of perjury; conspiring to defeat the course of justice.
22. Arson.
23. An act done with the intention of endangering the safety of any person traveling upon a railway or in any aircraft or vessel or other means of transportation.
24. Any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, of an aircraft.
25. Piracy, by statute or by law of nations; revolt on board a vessel against the authority of the master of the vessel.
26. Malicious injury to property.
27. An offense against the bankruptcy laws.
28. An offense against the laws relating to narcotics, dangerous drugs or psychotropic substances.
Slashdot Mirror
It violates property laws, search & seizure laws, as well as laws against extortion, to name a few)
Actually, audits neither violate search and seizure laws, nor are they extortion. Your 4th Amendment right only applies when the government is the actor, not a private individual. As to extortion, they are presumably threatening to enforce something in their licensing agreement, therefore not extorting you of anything. And as to property laws, if you let them do it, then you have granted them access to your private property, thus no trespass unless they act outside the authority you allow them. They can tell you that the agreement you signed with them permits inspection at any time, or an audit, but you still have the choice of not allowing them access. I will save the contract issues that would follow for a later time. You are right though.. the odds that this is enforced are 0.
Actually, you are innocent until your liability is proven by a preponderance of the evidence, and yes, you are allowed a trial by jury in a civil proceeding. Such is the law of the United States.
That is an excellent statement. They have absolutely no legal authority to force you to let them inspect your system, EULA or not. EULA's are at best a murky subject currently, and at worse for denying them access you could face a breach of contract action. The chances of that, however, are very little. Let them try and bring the action and attempt to prove that you have pirated software. Simply saying "you have software that our people make, and if you dont have documentation for it, it must be pirated" wont fly with the court. The burden of proof is on them, remember.
This is complete garbage. There is no need to crack down on anyone but bad doctors, not the lawyers. People who have injuries should be compensated for the wrongdoings of the actor who caused it, plain and simple. All this talk about capping "non-economic" damages at 250k is likewise garbage. Do me a favor - think about how much your legs are worth to you. Now think about if the doctor mistakenly diagnosed something, say an infection, causing you to lose both of them. Or if that infection caused you to go into cardiac arrest, go blind, or become paralyized on 50% of your body. That and similar things happen more frequently then you would like to believe.
Tell me again why that doctor should not pay for his mistake? We take medicine as an exact science in today's world, and there's absolutly nothing wrong with that. Doctors hold themselves out as trained professionals, able to diagnose your health related issues and make judgments that will directly affect your well being. Doctors can and should be made to compensate those that they undertake to care for. If your skills are not up to par, dont become a doctor.
Now I will concede that there are frivolous lawsuits, and those attorneys should be reprimanded themselves. And it is also true that jury awards will be excessive sometimes. However, everyone tends to lose sight of the fact that awards are made by juries, composed of regular people. THEY decide how much to award in pain and suffering, not the attorneys. And more often then not, when you see a verdict for 10 Mil, that is significantly reduced on appeal, because juries cannot make grossly excessive awards, nor can the award based on emotion.
Now that i've ranted enough, i'm done.
This makes no sense. You are confusing contract and copyright. States have no place in the copyright forum. EULA is contract.
Again, I think the 8th Amendment may play into that statement. There's so many legal issues with that statement, I'm not even going to begin.
In general, and in most jurisdictions, the force used in self defense must be reasonable as compared to the force faced. If someone simply breaks into your house at night, and I am not discounting that that is a scary event, you can still be liable for blowing them away. Asinine as it is I know, but that's the rule.
When it comes to your other question, I would have to say probably not - you probably cant fight back. It seems like a great idea, to be able to disable the attacker, but I'd bet that a court would find that response not reasonable in light of the force faced.
Dan
Right, that i know. But can you ever see it coming to that? For me, i cant.
the problem with that is that those kinds of agreements are not necessarily enforceable, or of any consequence. since they are only creatures of contract, you are still the provider when it comes down to a criminal matter. even in a civil matter, if your so called "click through" is not a reasonable precaution in the eyes of the court, a negligence suit could be awaiting.
The problem with that solution is however, how do you know what is illegal where? Noone is an expert on the laws of every country, and in my opinion, you shouldnt have to be. I'm not saying that your solution is a bad one, it would just be very hard to implement from a practical standpoint.
You are absolutely right on that point. From a legal standpoint, if you dont have attachable assets in that jurisdiction, then you're ok. Just let them try and collect in a foreign country!
That's a perfectly true statement. Kazaa, as far as I can tell, has no attachable assets anywhere in the US - therefore a judgment for money damages against them wouldnt work. Injunctive relief I would also think would be impossible here because of the architecture of the technology... the court could order Kazaa to cease, but how really could they shut down P2P?
actually,you need what's called purposeful availment... simply putting up a website that can be viewed anywhere will not inandof itself create minimum contacts.
you can't sue the lawmakers.. they're immune from suit based on their official actions.
choice of law provisions aren't necessarially dispositive. Just because their TOS mentions california doesnt mean that the suit must be brought there.
anyone else just getting a straight up directory listing instead of any html? me thinks the site has problems since it got listed.
Uh.. yeah.. no. There are plenty of SCT cases on jurisdictional issues, as well as minimum contacts. Pick up a book on civil procedure, it'll show you.
ummm, no. that's trademarks - they are renewable ad infinitum. Copyrights only last from the life of the author plus 70 years.
danoatvulaw
1. Murder or willful murder; assault with intent to commit murder.
2. Manslaughter.
3. Aggravated or willful wounding or injuring; assault occasioning actual bodily harm.
4. Unlawful throwing or application of any corrosive or injurious substances upon the person of another.
5. Rape; indecent assault, including unlawful sexual acts with or upon children.
6. Illegal abortion.
7. Procuring, or trafficking in, women or young persons for immoral purposes; living on the earnings of prostitution.
8. Abandoning or exposing a child when the life of that child is or is likely to be injured or endangered.
9. Bigamy.
10. Kidnapping; child stealing; abduction; false imprisonment.
11. Robbery.
12. Burglary; housebreaking or any similar offense.
13. Larceny.
14. Embezzlement.
15. Obtaining any property, money or valuable securities by false pretenses or other form of deception.
16. An offense against the law relating to bribery.
17. Extortion.
18. Receiving any property, money or valuable securities knowing the same to have been unlawfully obtained.
19. Fraud by an agent, bailee, banker, factor or trustee, by a director or officer of a company or by a promoter of a company, whether existing or not.
20. An offense relating to counterfeiting or forgery.
21. Perjury; subornation of perjury; conspiring to defeat the course of justice.
22. Arson.
23. An act done with the intention of endangering the safety of any person traveling upon a railway or in any aircraft or vessel or other means of transportation.
24. Any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, of an aircraft.
25. Piracy, by statute or by law of nations; revolt on board a vessel against the authority of the master of the vessel.
26. Malicious injury to property.
27. An offense against the bankruptcy laws.
28. An offense against the laws relating to narcotics, dangerous drugs or psychotropic substances.
29. Dealing in slaves.
yeah me neither... its getting about that time though, finals and shit. thanks for the cites. Dan
you are completely correct... there cannot be clauses in contracts that would penalize the potential defendant. That is a basic of contract law.
You might be able to get away with an estimate of your lost profits, or your expectancy from the agreement.
Dan Roberts
Villanova School of Law
yeah, i would really like to read that case. what is the citation? Dan roberts Villanova Law