It's just another tax on something that shouldn't be taxed... We already get taxed on ramen noodles, water, gasoline, cheeseburgers, cable television, telephones, and almost everything else.
If you're worried about a slippery slope, please glance downward at the icy incline and the skates on your feet.
It is kinda stupid to justify as way to pay for fighting "online crime". Why don't they levy an additional tax on retail sales and call it the "shoplifter arrest and incarceration tax".
If you don't want it, don't factor it into your decision of who to buy internet access from. Conversely, if you DO want it, then DO factor it into your decision. If it's not available from any of the ISPs in your area, that's a cross you may have to bear.
Some ISPs provide free usenet access that a lot of people don't use.
Some ISPs provide free antivirus software that a lot of people don't use.
Some ISPs provide 24 hour tech support for home networks that a lot of people don't use.
I don't need any of things, but I'm not bitching about the fact that my ISP provides them to the customers who do find these things useful.
Undoubtedly, the things they want to ask Oppenheim about have nothing to do with his work as a lawyer, they have to do with his work as a "principal" of the record companies, which he has himself represented himself to be.
How is that likely to reveal any relevant information in a lawsuit that alleges a copyright violation?
I know it's a pretty loose standard for what is discoverable, but I don't see what they're getting at.
You can't go online and lie about someone falsifying billing records any more than you can put a full-page ad in the newspaper about it. It's called libel, and that's what the guy is being sued for.
I'm not saying the guy is lying or that the suit is justified. I don't know. Neither does anyone else here. Answering that question is what trials are for. Whether he's a quack or not, the chiropractor has a right to clear his name of these accusations if they are not true.
Freedom of Speech doesn't allow you to run out into the street and scream that your pharmacist is a child molester, unless he is.
I do, however, take great pains to be accurate. Unlike the RIAA's lawyers, being truthful is important to me.
Note that "the RIAA's lawyers" is such a large group that it's not likely any of them could have a defamation claim against NYCL based on the above statement.
"Lori Drew is guilty of causing the death of an impressionable child who was not quite old enough to understand life and responsibility and consequence. She abused her position as a parent and an adult, and maliciously manipulated a child into killing herself. Just because the prosecution could not convict her of this, does not mean she did not do this. You can't use the Jersey Defense here, that Everything is legal as long as you don't get caught."
Of course they couldn't convict her of that. It's not a crime to do what she did, but for the fact that she used a pseudonym. If you want to make it a crime, pass a law and prosecute people who break it after the law takes effect.
Your Al Capone and "Jersey defense" comparisons are misplaced, and they have nothing to do with this case or this discussion.
"Yes, it is, if you use that pseudonym to chat with teenage girls and you encourage them to kill themselves and they follow through. Be very afraid."
That's not relevant to the crime she was charged with. If none of that had happened, she could still have been convicted.
This is an example of government using a bad law to reach a popular result. In this case, we tend to like the result, because it was used against a person who well and truly sucks.
If you trust that the government will never use these charges against people who don't well and truly suck, then you have more faith in the government than I do.
"Clinton FCC" and "Bush FCC" are sort of misnomers. The FCC is an independent Federal agency that does not fall under the Executive branch.
Commissioners are appointed to five year terms by the President, with approval of the Senate. Once appointed, they are similar to Federal judges in that they may only be removed by impeachment (or the expiration of a term). The President has influence over who gets onto the Commission, but he cannot fire them or tell them what policy to make.
There is an additional check on the influence of the President in that no more than 3 of the 5 commissioners may be of the same political party. So the President can have some influence in who he appoints over time, but even if he gets two terms, he cannot completely alter the partisan make-up of the Commission.
The submitter complains about factual issues, but appellate courts do not determine factual issues. Trial courts do. Before the case reached the VA Supreme Court (an appellate court), the trial court already made its findings of fact. The appellate court can only address the factual conclusions of the lower court if the lower court made a clear error in its analysis of the factual evidence presented. As the VA Supreme Court makes clear, it is analyising what is "shown by the record," not making its own declaration of how the internet works.
In order to know whether the VA Supreme Court should have overturned the lower court's findings, you would have to review the record on file with the court and read the testimony of the various expert witnesses that the parties called to testify. If there was no testimony at all to support the court's factual findings, then the VA Supreme Court could have overturned those factual findings, but only if there was no evidence or testimony to support the finding. If there is any evidence to support the trial court's factual findings, the appellate court has no choice but to go with them.
Courts make factual findings based on the evidence presented to them. Anything that is not obvious to pretty much everybody (I am paraphrasing the law here.) must be proven through evidence (including testimony of expert witnesses).
The 'property' inherent in both copyright and patent grants is not the piece of paper that you still possess after the government has infringed on the rights, but rather the underlying right to keep other people, including those in the government, from using your ideas without your consent or profit. Those rights ARE potentially being infringed, even though you still have the piece of paper that grants you the copyright/patent, and even if you can still assert those rights against other parties.
So, the government has taken away your ability to control the use of the copyright/patent, and that is the property they must pay for. You then apply established commercial criteria for valuing the infringement (FMV/reasonable rates for copyright licenses and royalties), in order to calculate damages the government would have to pay. Who said anything about a piece of paper? As you said, we're talking about the right to restrict other people's use. When the government copies something, it isn't preventing you from suing OTHER people who copy it. The fact that you can't sue the government for it does not make it a taking. It's the same as any other situation where the government steps on your toe. It is a violation of your rights, but that doesn't mean there will be a remedy for it.
Your example with patents is quite different. In that case, the government issues a license to someone else so that that third party may violate your patent. The government is acting as a licensor for the violation of someone else's patent. That takes away your right to sue a THIRD PARTY for violating your patent. That's the core right involved with patents and copyrights. It goes beyond a mere reliance on sovereign immunity for the government's own violations.
It's still arguable, but it's a much better case to call that a taking of property, because the property itself has been taken away, at least with respect to one other party. The right in copyright is not the right to copy. It is the right to sue people who copy without your consent, and to issue licenses.
Every law passed by Congress must be authorized by some language in the Constitution. Most of the Copyright Act is authorized by the Copyright Clause, which allows Congress...
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The doctrine of Sovereign Immunity does not come from the original text of the Constitution. It comes from an amendment. The 11th Amendment prevents states from being sued for anything that they do not consent to be sued for. If you get hit by a truck driven by a state worker, your state probably allows itself to be sued for that sort of thing. But your state probably does not allow itself to be sued for copyright infringement.
The Eleventh Amendment gives the states sovereign immunity in absolute terms, and it controls over any Constitutional text that preceded it. Thus, any Congressional power to limit sovereign immunity must come from an amendment that was passed AFTER the Eleventh Amendment. It cannot come from the Copyright Clause.
Arguably, the only place to look for a Congressional power to limit sovereign immunity is the 14th Amendment, section 5. This text gives Congress the power to enforce the first 4 sections of the 14th Amendment through "appropriate legislation." But any Congressional action that relies on Section 5 must be geared towards enforcing Due Process, Privileges and Immunities, Equal Protection, or some other clause of the 14th Amendment.
Essentially, the court in this case says that the purpose of the Copyright Act is not to enforce the 14th Amendment. That seems pretty obvious to me. The purpose of the Copyright Act is to enforce the Copyright Clause of the Constitution, not the rights enshrined in the 14th Amendment!
The only argument that I can think of for the other side would look to the Due Process clause of the 14th Amendment. The 14th requires that states not take a person's life, liberty, or property without due process of law. So the argument would go like this: 1) The state is taking a person's property when it violates someone's copyright. 2) The Copyright Act creates a due process right, in that it requires that the state allow itself to be sued for such a taking. 3) The 14th Amendment authorizes the Copyright Act's limitation on sovereign immunity, because it is an attempt to enforce a Due Process right.
But there is a fatal flaw in that argument. A violation of copyright is not a taking of property. If you violate someone's copyright, they are still the copyright holder. A copyright violation is NOT a taking of property. Without a taking of life, liberty, or property, Due Process is not required, and the 14th Amendment is not implicated.
Well, now we're arguing about the argument. This is a sure sign that time is being wasted.
How many cases did he work free of charge? None that I am aware of and nobody has suggested it to be any different. His motivations to protect civil rights was money. To take a Harvard Law Degree and apply it to a Civil Rights law practice indicates that money is NOT the primary motivation. There are far more lucrative opportunities available for someone in that position. And furthermore, your reasoning implies that anything you do that is paid is only for money. If you are in IT, it must be because of the money, not because of any interest in computers. After all, the computers are only a means for you to make money. You would also conclude the same about everyone else. I would feel sorry for anyone whose only motivation is money, and I certainly wouldn't assume that to be a person's only motivator without some other indication (like maybe the number of Prozac pills they have to take each day).
The reference to clinton was only a recent example at how meaningless being a lawyer is when considering how a person will behave on civil rights once in office. Well you conveniently evade the point. I wasn't making a point that Obama was a lawyer, and thus should be good on civil rights (and I sure as hell wasn't making a point about monetary gain, which is completely irrelevant and I'm not sure where in the hell you got it from). I was making the point that he was a civil rights lawyer, fighting specifically for... civil rights. Which might... just might... maybe... possibly... indicate that he has some interest in... civil rights.
And Bill Clinton is a lawyer no more. Your right. His actions as president of the US got his legal credentials revoked. But this isn't about clinton though. No, this isn't about Bill Clinton. So why did you bring up Bill Clinton?
Now tell the truth. You're pretending to be a douchebag who doesn't think anyone else will ever notice his complete lack of intellectual honesty. Come on now. The jig is up.
I repeat. Obama has _done_ nothing to _show_ he is any different from anyone else on the stage. He has been in office enough that his record should be known by now if he did. Because you didn't heard about it on television.
Read a book or something. Try wikipedia, or google it.
His record IS known. He was a civil rights attorney before he got into politics. Just because you are ignorant, doesn't mean that ignorance is the reality. Think outside the box.
I don't understand what this irrational fear of religious or spiritual people is about, but I can tell you that it is unfounded. I can tell you that the sky is green, but it doesn't mean you should take my word for it.
You realize you are placing an awful lot of faith in the unknown with that statement right? Not really.
The other two options are clearly not in my best interest.
Obama has done enough in life to make it clear that he's a competent person who doesn't necessarily want to turn the country into a theocracy or a fascist state. That's pretty much all I'm looking for this election year.
It is at least a talking point of the Democrats. But one which I wouldn't trust Hillary to follow. And there is no question that McCain couldn't give a rat's ass about your privacy as to the FBI.
So yes, Obama is a better pick on individual rights than either of the alternatives.
Whether it will be a huge difference, or whether he will remain true to this, noone can be sure. As in life, there are no guarantees in politics.
Lawyers will not use these services much, they will continue to use annotated and commented editions. This is more a victory for the common man who wants to better understand the machinery of U.S. law and justice. This is very true. In my solo practice, I tried so hard to make use of the free materials that my state bar makes available online. The system is called Casemaker, and it's actually quite good. But as good as it is, it doesn't come close to what Westlaw provides.
With Westlaw (and Lexis as well), every case has a little symbol in the top left corner. If it is green, it is probably good law. If it is red, then the case is no longer good for at least one point of law. Considering the amount of time that this feature saves, it is well worth the $120 a month that I pay to another law firm to use one of their Westlaw passwords. In fact, if I were to deal directly with West, I would pay at least $200 a month and they would lock me in to a 12 month contract. Other lawyers gladly sign up.
When you think about how much energy it takes to categorize and flag every single case that comes out and cross-reference it with a semi-subjective interpretation of how it treats all the cases that it cites, and to categorize every single paragraph in a case for the specific legal question that it covers, these services are well worth the cost.
If it were just the text of the cases and statutes, then it would be a rip-off. But the text of the cases and statutes are almost always available for free from other sources. Every state government should provide its statutes and caselaw online for free. As far as I know, most of them do. The same is true of the Federal system. But it's hard to make significant use of that if you don't have any of the tools that are available in a good law library. Westlaw and Lexis are like a law library at your fingertips.
Secondly, I'm not sure where the Federal interest is in regulating businesses -- that the internet as a whole is international? Internet access is a facility of interstate commerce comparable to your telephone line. It is possible to have a single-state communication over the internet, but it's very unlikely. Even if you send an email to your neighbor, it will probably end up going through servers in other states.
This is really a contract issue. If their TOS promise "unlimited bandwidth" then they should provide that. If the TOS say "we connect you to the internet" they should not be able to block random ports. And sending fake packets is already a computer crime (at least, if I sent fake packets to Comcast servers I would probably be charged with attempted DOS or something). So I would support a "contact terms mean what they mean" law -- not giving the FCC more discretion to help the industry to screw the customers. In most places, broadband providers have either a monopoly or a duopoly. The nature of the service is that they use easements over public and private property (telephone and cable lines) to provide a service where there is little if any competition. And don't forget, the internet is an interstate/international system that relies on standards. If the Federal government can't enforce standards, who will? The states? The UN? No. As much as we rightfully fear Congress-critters writing legislation to govern the internet, the fact is that it affects all of us now (even them), to the point that things like sending false connection reset signals is something that Congress (or with its authorization, the FCC) should be allowed to regulate.
If you just say that it has to be in the contract, then Comcast will change the contract in the next billing cycle. Because they have a monopoly/duopoly, the market cannot correct it.
If the FCC does the wrong thing, Congress can overrule them. But if you leave it to Comcast to change its contract, that's exactly what it will do, and we will be screwed.
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It's just another tax on something that shouldn't be taxed... We already get taxed on ramen noodles, water, gasoline, cheeseburgers, cable television, telephones, and almost everything else.
If you're worried about a slippery slope, please glance downward at the icy incline and the skates on your feet.
It is kinda stupid to justify as way to pay for fighting "online crime". Why don't they levy an additional tax on retail sales and call it the "shoplifter arrest and incarceration tax".
is whether a handwriting expert can tell the difference.
If you don't want it, don't factor it into your decision of who to buy internet access from. Conversely, if you DO want it, then DO factor it into your decision. If it's not available from any of the ISPs in your area, that's a cross you may have to bear.
Some ISPs provide free usenet access that a lot of people don't use.
Some ISPs provide free antivirus software that a lot of people don't use.
Some ISPs provide 24 hour tech support for home networks that a lot of people don't use.
I don't need any of things, but I'm not bitching about the fact that my ISP provides them to the customers who do find these things useful.
Undoubtedly, the things they want to ask Oppenheim about have nothing to do with his work as a lawyer, they have to do with his work as a "principal" of the record companies, which he has himself represented himself to be.
How is that likely to reveal any relevant information in a lawsuit that alleges a copyright violation?
I know it's a pretty loose standard for what is discoverable, but I don't see what they're getting at.
'. . . has acted as attorney of record for the record companies in several proceedings in Washington, D.C.'
So, if he represents the interests of the artists, (ahem), why is he - or his legal team, taking such extraordinary steps to avoid testifying?
If he is their attorney, one might wonder what it is that they intend to ask which would not be covered by the attorney-client privilege.
Before I switched to Dvorak two years ago, my wrists and knuckles would hurt after extended writing sessions. Doesn't happen anymore.
I'm not concerned about the speed. Why would you care about that, unless you are doing data entry for a living?
You can't go online and lie about someone falsifying billing records any more than you can put a full-page ad in the newspaper about it. It's called libel, and that's what the guy is being sued for.
I'm not saying the guy is lying or that the suit is justified. I don't know. Neither does anyone else here. Answering that question is what trials are for. Whether he's a quack or not, the chiropractor has a right to clear his name of these accusations if they are not true.
Freedom of Speech doesn't allow you to run out into the street and scream that your pharmacist is a child molester, unless he is.
I do, however, take great pains to be accurate. Unlike the RIAA's lawyers, being truthful is important to me.
Note that "the RIAA's lawyers" is such a large group that it's not likely any of them could have a defamation claim against NYCL based on the above statement.
"Lori Drew is guilty of causing the death of an impressionable child who was not quite old enough to understand life and responsibility and consequence. She abused her position as a parent and an adult, and maliciously manipulated a child into killing herself. Just because the prosecution could not convict her of this, does not mean she did not do this. You can't use the Jersey Defense here, that Everything is legal as long as you don't get caught."
Of course they couldn't convict her of that. It's not a crime to do what she did, but for the fact that she used a pseudonym. If you want to make it a crime, pass a law and prosecute people who break it after the law takes effect.
Your Al Capone and "Jersey defense" comparisons are misplaced, and they have nothing to do with this case or this discussion.
Get a hold of yourself.
"Yes, it is, if you use that pseudonym to chat with teenage girls and you encourage them to kill themselves and they follow through. Be very afraid."
That's not relevant to the crime she was charged with. If none of that had happened, she could still have been convicted.
This is an example of government using a bad law to reach a popular result. In this case, we tend to like the result, because it was used against a person who well and truly sucks.
If you trust that the government will never use these charges against people who don't well and truly suck, then you have more faith in the government than I do.
"Clinton FCC" and "Bush FCC" are sort of misnomers. The FCC is an independent Federal agency that does not fall under the Executive branch.
Commissioners are appointed to five year terms by the President, with approval of the Senate. Once appointed, they are similar to Federal judges in that they may only be removed by impeachment (or the expiration of a term). The President has influence over who gets onto the Commission, but he cannot fire them or tell them what policy to make.
There is an additional check on the influence of the President in that no more than 3 of the 5 commissioners may be of the same political party. So the President can have some influence in who he appoints over time, but even if he gets two terms, he cannot completely alter the partisan make-up of the Commission.
The submitter complains about factual issues, but appellate courts do not determine factual issues. Trial courts do. Before the case reached the VA Supreme Court (an appellate court), the trial court already made its findings of fact. The appellate court can only address the factual conclusions of the lower court if the lower court made a clear error in its analysis of the factual evidence presented. As the VA Supreme Court makes clear, it is analyising what is "shown by the record," not making its own declaration of how the internet works.
In order to know whether the VA Supreme Court should have overturned the lower court's findings, you would have to review the record on file with the court and read the testimony of the various expert witnesses that the parties called to testify. If there was no testimony at all to support the court's factual findings, then the VA Supreme Court could have overturned those factual findings, but only if there was no evidence or testimony to support the finding. If there is any evidence to support the trial court's factual findings, the appellate court has no choice but to go with them.
Courts make factual findings based on the evidence presented to them. Anything that is not obvious to pretty much everybody (I am paraphrasing the law here.) must be proven through evidence (including testimony of expert witnesses).
See here for more info.
The First Amendment of the United States Const...
oh wait...
Never mind.
So, the government has taken away your ability to control the use of the copyright/patent, and that is the property they must pay for. You then apply established commercial criteria for valuing the infringement (FMV/reasonable rates for copyright licenses and royalties), in order to calculate damages the government would have to pay. Who said anything about a piece of paper? As you said, we're talking about the right to restrict other people's use. When the government copies something, it isn't preventing you from suing OTHER people who copy it. The fact that you can't sue the government for it does not make it a taking. It's the same as any other situation where the government steps on your toe. It is a violation of your rights, but that doesn't mean there will be a remedy for it.
Your example with patents is quite different. In that case, the government issues a license to someone else so that that third party may violate your patent. The government is acting as a licensor for the violation of someone else's patent. That takes away your right to sue a THIRD PARTY for violating your patent. That's the core right involved with patents and copyrights. It goes beyond a mere reliance on sovereign immunity for the government's own violations.
It's still arguable, but it's a much better case to call that a taking of property, because the property itself has been taken away, at least with respect to one other party. The right in copyright is not the right to copy. It is the right to sue people who copy without your consent, and to issue licenses.
The Eleventh Amendment gives the states sovereign immunity in absolute terms, and it controls over any Constitutional text that preceded it. Thus, any Congressional power to limit sovereign immunity must come from an amendment that was passed AFTER the Eleventh Amendment. It cannot come from the Copyright Clause.
Arguably, the only place to look for a Congressional power to limit sovereign immunity is the 14th Amendment, section 5. This text gives Congress the power to enforce the first 4 sections of the 14th Amendment through "appropriate legislation." But any Congressional action that relies on Section 5 must be geared towards enforcing Due Process, Privileges and Immunities, Equal Protection, or some other clause of the 14th Amendment.
Essentially, the court in this case says that the purpose of the Copyright Act is not to enforce the 14th Amendment. That seems pretty obvious to me. The purpose of the Copyright Act is to enforce the Copyright Clause of the Constitution, not the rights enshrined in the 14th Amendment!
The only argument that I can think of for the other side would look to the Due Process clause of the 14th Amendment. The 14th requires that states not take a person's life, liberty, or property without due process of law. So the argument would go like this: 1) The state is taking a person's property when it violates someone's copyright. 2) The Copyright Act creates a due process right, in that it requires that the state allow itself to be sued for such a taking. 3) The 14th Amendment authorizes the Copyright Act's limitation on sovereign immunity, because it is an attempt to enforce a Due Process right.
But there is a fatal flaw in that argument. A violation of copyright is not a taking of property. If you violate someone's copyright, they are still the copyright holder. A copyright violation is NOT a taking of property. Without a taking of life, liberty, or property, Due Process is not required, and the 14th Amendment is not implicated.
Now tell the truth. You're pretending to be a douchebag who doesn't think anyone else will ever notice his complete lack of intellectual honesty. Come on now. The jig is up.
It's good sporting fun.
Up until about 20 years ago the vast majority of politicians were lawyers.
To compare one politician to another by saying they are both lawyers is meaningless.
And Bill Clinton is a lawyer no more.
Read a book or something. Try wikipedia, or google it.
His record IS known. He was a civil rights attorney before he got into politics. Just because you are ignorant, doesn't mean that ignorance is the reality. Think outside the box.
The other two options are clearly not in my best interest.
Obama has done enough in life to make it clear that he's a competent person who doesn't necessarily want to turn the country into a theocracy or a fascist state. That's pretty much all I'm looking for this election year.
It is at least a talking point of the Democrats. But one which I wouldn't trust Hillary to follow. And there is no question that McCain couldn't give a rat's ass about your privacy as to the FBI.
So yes, Obama is a better pick on individual rights than either of the alternatives.
Whether it will be a huge difference, or whether he will remain true to this, noone can be sure. As in life, there are no guarantees in politics.
Anarchy exists nowhere but in the individual mind.
In any society of human individuals greater than one, there will always evolve some system of governance.
It is not a question of whether you will lose any freedom, but of how much you will lose.
With Westlaw (and Lexis as well), every case has a little symbol in the top left corner. If it is green, it is probably good law. If it is red, then the case is no longer good for at least one point of law. Considering the amount of time that this feature saves, it is well worth the $120 a month that I pay to another law firm to use one of their Westlaw passwords. In fact, if I were to deal directly with West, I would pay at least $200 a month and they would lock me in to a 12 month contract. Other lawyers gladly sign up.
When you think about how much energy it takes to categorize and flag every single case that comes out and cross-reference it with a semi-subjective interpretation of how it treats all the cases that it cites, and to categorize every single paragraph in a case for the specific legal question that it covers, these services are well worth the cost.
If it were just the text of the cases and statutes, then it would be a rip-off. But the text of the cases and statutes are almost always available for free from other sources. Every state government should provide its statutes and caselaw online for free. As far as I know, most of them do. The same is true of the Federal system. But it's hard to make significant use of that if you don't have any of the tools that are available in a good law library. Westlaw and Lexis are like a law library at your fingertips.
If you just say that it has to be in the contract, then Comcast will change the contract in the next billing cycle. Because they have a monopoly/duopoly, the market cannot correct it.
If the FCC does the wrong thing, Congress can overrule them. But if you leave it to Comcast to change its contract, that's exactly what it will do, and we will be screwed.