If your intended meaning matched the stance I reiterated we are on the same page so why continue to beat a dead horse? Ohhhh... I get it, you just wanted to vent your frustration about being wrong with a petty verbal slight.
If you are going to be that blatant you could at least try for something with more teeth. You just called me "intellect impaired" and then clarified with a sentence that means something entirely different than what you actually wrote.
To use your own words. I leave determining whether the individual who read the sentence as written or the individual who can't construct a sentence is "intellect impaired."
"I never said anything about practicality. I said that it could be possible to construct a license that fit the open source definition, yet still did not allow indiscriminate redistribution. (That one can restrict it to only aggregate redistributions means not indiscriminate.)"
Perhaps you need to look up the definition of discriminate. There is nothing about tossing a library or changing a source comment that forces one to be discriminate in their distribution.
In any case, it doesn't really matter what YOU intended because you were replying to me and therefore your comment inherits its context from mine.
"would prevent you from modifying and distributing your modified version. That is the core of open source and without that ability a license isn't open source."
Which is exactly the requirement set forth in sec 3 of the OSI requirements.
When did I deny section 1? I just said it isn't the relevant section.
Change the title and you'd fall under section 3, package it alongside the source to any of the required libraries and you'd fall under section 1.
Any way you slice it, there is no license that could in any practical manner prevent free redistribution and still be open source let alone free software.
If there were it wouldn't be open source. Anything that would prevent this would prevent you from modifying and distributing your modified version. That is the core of open source and without that ability a license isn't open source.
"This is different from a statement saying that Tenenbaum is responsible for what other people have already done."
Agreed.
"According to the opinion the law says that it is a legitimate interest of the state that the award should be great enough to deter future infringement by both Tenenbaum"
If you remove the "both" and end that with "by Tenenbaum", then agreed.
"and anyone who learns of the case"
False. You can not levy an excessive punishment. This is effectively punishing Tenenbaum for the actions others would have committed without the deterrent.
You are right about precedent for treble damages that is well established precedent in many areas.
"That doesn't mean it is constitutional, but there is a heavier onus on the judge to respect the edicts of congress than the edict of a jury."
I disagree. The jury is the direct voice of the people, congress is a body empowered by the people. Jury trumps congress.
"she cited a previous case where the argument was that if the amount of damages was very low, the ratio of damages to award could be high due to the state's legitimate interest in deterrence of breaking the law"
Be that as it may that isn't constitutional. The state may have an interest in deterrence but the state does not have the authority to use an excessive punishment to achieve it. Tenenbaum can only be punished for his own action actions in isolation and any punishment which is excessive for those actions is unconstitutional.
The constitution is more vague so that it can be interpreted broadly in the interest of limiting government and reserving power to the people. Throughout the document this intention is made clear and great effort is taken to express this. Not only the word but also the intention of the law must be considered when interpreting it.
The bottom line is, based on her ruling it is doubtful this judge would even disagree with me. She simply didn't have the moxie to issue the ruling.
In criminal cases juries might recommend penalties but judges make the decision. Ultimately juries are for deciding two things, A if application of the law is just and B if the burden of proof was met. Judges should not (be able to) overturn juries on these points.
However nobody, judges, jury, or congress should be allowed to enforce excessive punishment that is not appropriate to the crime or act. So yes, if an appellate court sees a punishment that is excessive it should be struck down no matter who ordered it.
Your implied point is that if it is at all possible to interpret the constitution to allow what congress did (the statute in this case) the judge should interpret it that way.
But the ideal is the opposite. The benefit of the doubt should go to the people not to lawmakers. Whatever interpretation places the greatest constraint on congress should always be the preference or else liberty is lost.
Government may be a necessary evil but it is still an evil and should be suffered rather than encouraged.
OK, so the sake of simplicity lets take the exchange rates out of the equation it just confuses the issue.
The actual damages were determined to be $1 per song. The award wasn't $1 per song though, it was $2250 per song.
This wasn't a fine. A fine is like when you go too fast and you get a ticket and have to pay a fine for breaking the rules.
This is a judgement saying he owes the music company money. Lets say I break your window and it costs $100 to fix. You take me to court because I won't pay you. The court might then order me to pay for the window. It is custom to pay 3x the cost if it was willful in the US so if I meant to break the window I might have to pay $300. (I also might have to pay legal fees of course).
In this case it was determined he willfully hurt them financially and so should pay 3x. Since the actual damage was $1 that should have been $3 per song. Instead they charged him $2250 per song.
Now you might argue that $3 wouldn't be enough to deter someone. The point isn't to deter them you don't have the right to make me suffer to deter others from breaking your windows only to recover your damages. Even the 3x thing is to deter me, specifically, individually not others who might break your windows.
I'll chime in. The statutory minimum is over 750x generously estimated actual damages. This is by any sane definition excessive and the constitution bars excessive punishment.
As for every judge in the country, this one wasn't willing to overturn the law but that doesn't mean it won't happen if it keeps getting appealed.
Judges throughout the nation also lie to juries about their duties and authority. What makes you think they overturn laws simply because they are illegal?
I read it and I didn't see anything that would make the $750 minimum constitutional in the first place. Only quotes that she was bound to enforce it if it was not unconstitutional.
I don't know even 5 or 10 cents sounds pretty high aggregate across downloads. I mean for every song you'd otherwise buy you download what maybe 200-2000. So at the bottom figure of 200 free songs for one you'd buy that is $0.005 per song.
Some would try to claim an upload is more dangerous but your upload is someone elses download so it is included in their own $0.005 per song calculation.
To the idiot above. So called idiot #2 wasn't equated copyright infringement with stealing. He was pointing at that stealing is dramatically worse and stealing this material would result at most (realistically not maximum legal penalties) in a $100 fine.
"It's about punishing Tenenbaum and giving other people an incentive to refrain from file sharing. "
Which is illegal. It is illegal to punish one for the actions of others. Tenenbaum is only liable for the damage and consequences of his personal actions in isolation.
"Obviously that can be much more than an amount that might be reasonable."
No it wouldn't. The constitution forbids "excessive" anything beyond "reasonable" would be "excessive" so constitutional would limit the damages to "reasonable".
She could have declared the statutory minimum unconstitutional since congress doesn't trump the constitution but she opt'd not to.
$750 per song is the statutory minimum. Treble damages is normal for willful infringement so she trebled the minimum and stated outright in her judgement that this is the constitutional maximum that could be allowed for this type of infringement. She determined the maximum should be awarded to keep with the spirit of the jury verdict and said she would have issued a smaller fine.
The only way to reduce damages to a reasonable level would be to declare the damages in the statute unconstitutional and overturn that part of the law. Apparently she wasn't willing to go that far.
$67k is a months takehome pay for an average US family? I'm curious where you get these numbers, that is about triple the average annual salary of a family.
She also redefined the maximum fine for willful infringement of this type to $2250. Her judgement didn't say it was a reasonable fine, it said it was the most a jury could constitutionally impose.
generally you can't force a wage garnishment for a civil judgement anymore. Some types of federal debts (taxes, student loans, etc) and child support are exceptions.
Slashdot Mirror
"Ok, I'll clarify for the intellect impaired"
If your intended meaning matched the stance I reiterated we are on the same page so why continue to beat a dead horse? Ohhhh... I get it, you just wanted to vent your frustration about being wrong with a petty verbal slight.
If you are going to be that blatant you could at least try for something with more teeth. You just called me "intellect impaired" and then clarified with a sentence that means something entirely different than what you actually wrote.
To use your own words. I leave determining whether the individual who read the sentence as written or the individual who can't construct a sentence is "intellect impaired."
"I never said anything about practicality. I said that it could be possible to construct a license that fit the open source definition, yet still did not allow indiscriminate redistribution. (That one can restrict it to only aggregate redistributions means not indiscriminate.)"
Perhaps you need to look up the definition of discriminate. There is nothing about tossing a library or changing a source comment that forces one to be discriminate in their distribution.
In any case, it doesn't really matter what YOU intended because you were replying to me and therefore your comment inherits its context from mine.
"would prevent you from modifying and distributing your modified version. That is the core of open source and without that ability a license isn't open source."
Which is exactly the requirement set forth in sec 3 of the OSI requirements.
I think Microsoft came up with one, shared source.
When did I deny section 1? I just said it isn't the relevant section.
Change the title and you'd fall under section 3, package it alongside the source to any of the required libraries and you'd fall under section 1.
Any way you slice it, there is no license that could in any practical manner prevent free redistribution and still be open source let alone free software.
Someone else already pointed to http://opensource.org/docs/osd but he pointed to requirement 1. It's actually 3.
If there were it wouldn't be open source. Anything that would prevent this would prevent you from modifying and distributing your modified version. That is the core of open source and without that ability a license isn't open source.
Hell I live in DOWNTOWN Albuquerque and qwest only runs 1.5Mbps links here.
"This is different from a statement saying that Tenenbaum is responsible for what other people have already done."
Agreed.
"According to the opinion the law says that it is a legitimate interest of the state that the award should be great enough to deter future infringement by both Tenenbaum"
If you remove the "both" and end that with "by Tenenbaum", then agreed.
"and anyone who learns of the case"
False. You can not levy an excessive punishment. This is effectively punishing Tenenbaum for the actions others would have committed without the deterrent.
You are right about precedent for treble damages that is well established precedent in many areas.
"That doesn't mean it is constitutional, but there is a heavier onus on the judge to respect the edicts of congress than the edict of a jury."
I disagree. The jury is the direct voice of the people, congress is a body empowered by the people. Jury trumps congress.
"she cited a previous case where the argument was that if the amount of damages was very low, the ratio of damages to award could be high due to the state's legitimate interest in deterrence of breaking the law"
Be that as it may that isn't constitutional. The state may have an interest in deterrence but the state does not have the authority to use an excessive punishment to achieve it. Tenenbaum can only be punished for his own action actions in isolation and any punishment which is excessive for those actions is unconstitutional.
The constitution is more vague so that it can be interpreted broadly in the interest of limiting government and reserving power to the people. Throughout the document this intention is made clear and great effort is taken to express this. Not only the word but also the intention of the law must be considered when interpreting it.
The bottom line is, based on her ruling it is doubtful this judge would even disagree with me. She simply didn't have the moxie to issue the ruling.
In criminal cases juries might recommend penalties but judges make the decision. Ultimately juries are for deciding two things, A if application of the law is just and B if the burden of proof was met. Judges should not (be able to) overturn juries on these points.
However nobody, judges, jury, or congress should be allowed to enforce excessive punishment that is not appropriate to the crime or act. So yes, if an appellate court sees a punishment that is excessive it should be struck down no matter who ordered it.
Your implied point is that if it is at all possible to interpret the constitution to allow what congress did (the statute in this case) the judge should interpret it that way.
But the ideal is the opposite. The benefit of the doubt should go to the people not to lawmakers. Whatever interpretation places the greatest constraint on congress should always be the preference or else liberty is lost.
Government may be a necessary evil but it is still an evil and should be suffered rather than encouraged.
Try reading that again, with comprehension this time.
OK, so the sake of simplicity lets take the exchange rates out of the equation it just confuses the issue.
The actual damages were determined to be $1 per song. The award wasn't $1 per song though, it was $2250 per song.
This wasn't a fine. A fine is like when you go too fast and you get a ticket and have to pay a fine for breaking the rules.
This is a judgement saying he owes the music company money. Lets say I break your window and it costs $100 to fix. You take me to court because I won't pay you. The court might then order me to pay for the window. It is custom to pay 3x the cost if it was willful in the US so if I meant to break the window I might have to pay $300. (I also might have to pay legal fees of course).
In this case it was determined he willfully hurt them financially and so should pay 3x. Since the actual damage was $1 that should have been $3 per song. Instead they charged him $2250 per song.
Now you might argue that $3 wouldn't be enough to deter someone. The point isn't to deter them you don't have the right to make me suffer to deter others from breaking your windows only to recover your damages. Even the 3x thing is to deter me, specifically, individually not others who might break your windows.
I'll chime in. The statutory minimum is over 750x generously estimated actual damages. This is by any sane definition excessive and the constitution bars excessive punishment.
As for every judge in the country, this one wasn't willing to overturn the law but that doesn't mean it won't happen if it keeps getting appealed.
Judges throughout the nation also lie to juries about their duties and authority. What makes you think they overturn laws simply because they are illegal?
I read it and I didn't see anything that would make the $750 minimum constitutional in the first place. Only quotes that she was bound to enforce it if it was not unconstitutional.
I don't know even 5 or 10 cents sounds pretty high aggregate across downloads. I mean for every song you'd otherwise buy you download what maybe 200-2000. So at the bottom figure of 200 free songs for one you'd buy that is $0.005 per song.
Some would try to claim an upload is more dangerous but your upload is someone elses download so it is included in their own $0.005 per song calculation.
To the idiot above. So called idiot #2 wasn't equated copyright infringement with stealing. He was pointing at that stealing is dramatically worse and stealing this material would result at most (realistically not maximum legal penalties) in a $100 fine.
"It's about punishing Tenenbaum and giving other people an incentive to refrain from file sharing. "
Which is illegal. It is illegal to punish one for the actions of others. Tenenbaum is only liable for the damage and consequences of his personal actions in isolation.
"Obviously that can be much more than an amount that might be reasonable."
No it wouldn't. The constitution forbids "excessive" anything beyond "reasonable" would be "excessive" so constitutional would limit the damages to "reasonable".
She could have declared the statutory minimum unconstitutional since congress doesn't trump the constitution but she opt'd not to.
She could have ruled the statutory minimum to be unconstitutional since it is 750x generously calculated actual damages per song.
$750 per song is the statutory minimum. Treble damages is normal for willful infringement so she trebled the minimum and stated outright in her judgement that this is the constitutional maximum that could be allowed for this type of infringement. She determined the maximum should be awarded to keep with the spirit of the jury verdict and said she would have issued a smaller fine.
The only way to reduce damages to a reasonable level would be to declare the damages in the statute unconstitutional and overturn that part of the law. Apparently she wasn't willing to go that far.
"At most they should want the amount equal to their real liability."
You seriously believe an oil company is properly valued at a sum greater than the gulf of mexico and the life in it?
$67k is a months takehome pay for an average US family? I'm curious where you get these numbers, that is about triple the average annual salary of a family.
She also redefined the maximum fine for willful infringement of this type to $2250. Her judgement didn't say it was a reasonable fine, it said it was the most a jury could constitutionally impose.
generally you can't force a wage garnishment for a civil judgement anymore. Some types of federal debts (taxes, student loans, etc) and child support are exceptions.
"The courts really should consider whether a particular verdict will strengthen society, and this one most emphatically does not."
That isn't the courts job it is the job of a jury. Too bad courts typically lie to them and tell them they aren't even allowed to consider the law.