No. Entrapment requires that the entrapping party enticed you to such a degree that you would not have committed the act but for their influence upon you.
Even if they were the ones that made the download available, simply making it available and providing the link on a website would not be entrapment.
In some states, to claim entrapment, you even have to prove that you were not predisposed to commit the crime. That would be pretty hard to prove, since you are the one surfing for bittorrent links.
OTOH, if they were the ones making it available, I would think that that would be an implicit permission to download the movie, and therefore no copyright infringement.
- They are under attack from the competition, who want to cut off their r&d funding which they see as unfair.
I wonder what it is that they see as unfair. If the BBC uses other people's money to create technology that it licenses under the GPL, why should NewsCorp want to stop that?
Especially since NewsCorp can now use this technology and it didn't have to pay a dime for it.
This is Congress we are talking about. Do you really expect them to come up with a law that tells people what kind of software they can distribute, without doing something INCREDIBLY stupid???
My apologies to the few (such as Al Gore) who though they may not have invented the internet, have been well-informed about technology. However, most of them are incapable of NOT screwing up this type of legislation.
You really want the government to tell you what kind of software you can write?
Maybe they should have a law that says you can't put bugs in your software either.
Maybe they should have a law that makes invalidates any waiver of the implied warranty of merchantability in software. How do you think that would affect open source projects? Not well. Not well at all.
The problem is that the ACLU selectively defends the constitution. They don't defend the rights of gun owners for one.
True. But you have to choose your battles. The meaning of the 2nd Amendment is fairly well-settled at this point.
You are entitled to believe that the Supreme Court got it wrong. But the fact remains that there is a clear interpretation of it, which the ACLU (or NRA for that matter) would find rather difficult to overturn.
The Supreme Court usually prefers to follow its own precedent, although it does on occasion reverse itself.
It is true that the ACLU has a statement on its website regarding their opinion of the 2nd Amendment. They essentially say that they agree with the Supreme Court.
That would be aproppriate, considering that they will find themselves in front of the court on many occasions.
Probably it is true that most members of the ACLU feel differently about gun ownership than you do. But that is no reason to poo-poo the whole organization.
After all, there is another organization handling that fight already... and they appear well-equipped to hold their own.
Copying, by its very nature, happens in two places... the source and the destination.
Unless you deliver the physical medium itself, you must be making a copy.
It is not possible to copy something over the postal service, because you are sending a physical object, not mere information.
But when you transmit something over the internet, you are ALWAYS making a copy. You are not delivering a physical object. You are delivering information, which is then stored in some form at the recipient's end.
Sure a copy is being made, that's why you're paying them but.... the copy is being made in Russia, by the people you are paying to do so, and is being done legally under Russian law. If this is illegal, buying a hardcopy of a CD from Russia is illegal as well.
The parent is saying that this is legally NOT the same as buying a cd and carrying it with you on the airplane home.
If the copy is made in Russia, how does it appear on your harddrive in the US? They don't mail it to you. They don't hand-deliver it to you.
The parent is saying that you aren't "importing" a copy, because the copy is produced on your harddrive. He says that it is not "copied in Russia" and then delivered to you.
I think that is a reasonable argument. OTOH, it also seems reasonable to argue that the bits and bytes ARE copied in Russia and that you are importing them and placing them on your harddrive via the internet.
It seems that it would depend on how the law defines "physical medium" in the internet age. Now that information flows across physical mediums in a transitory nature, the concept of what is a "copy is much less clear".
Are the packets a "copy" as they travel over the internet? Do they not become a copy until they arrive on your harddrive?
Would it make a difference if allofmp3.com uploaded it to you on the fly, without saving the reencoded copy on their server?
If this becomes widely used, it won't matter.
RIAA will lobbying and/or litigation to make sure that this becomes illegal.
Neither the submission, nor the linked press release state that Torbolinux "licensed Windows Media 9".
All they say is that it is capable of playing Windows Media files, by using its own "Turbo Media Player" which works with xine.
My guess is that "Turbo Media Player" is nothing more than a front-end for xine (ala Totem), with xine doing all the work.
It's already possible to play Windows Media files in Linux... this is nothing new at all.
The thing about Cyberlink ProDVD is kind of interesting, but definitely not on the same newsworthiness scale as a Linux distro licensing MS technology would be.
Shame on you Slashdot editors... shame shame shame !
Certainly as individuals with interest in open source we are as entitled to be vocally critical of Sun's decision to distance itself from open source philosophy as Sun is entitled act the way it has.
If I had mod points, yadda yadda yadda...
People seem to think that either they have no obligation to acknowledge Linux/Open Source at all, or they are total scumbags for not doing so.
Of course there is no advertising clause in the GPL. But it is in bad taste to ignore the people who helped create what you are selling.
That's why in movies the producers put "Thank You" credits at the end. They usually aren't required, but it's good for business.
In 100 years, when every computer is run on GPLed software, noone will care whether you acknowledge the open source community or Linux itself. But right now, at this stage in its development, it really is crass to refuse to do so.
With regard to New York Times v US, I would not be so eager to hold out a 5-4 decision as conclusive authority for a given point, especially given the more relaxed attitude higher courts have towards stare decisis in modern times. And although the First Amendment supercedes state and Federal law, the Sixth Amendment guarantees the right to the assistance of counsel in a criminal trial. As I would consider privilege an important adjunct to that right, and given the equal status the Sixth Amendment enjoys with the First, is it certain that professional privilege doesn't also enjoy an elevated status, at least in criminal matters?
It does enjoy an elevated status, but when your lawyer waives the privilege... you've got a malpractice claim. Privilege is very important. But it's easy to waive.
The general rule is that disclosure to any third party destroys the privilege. The attorney can maintain the privilege while allowing nonattorneys to handle documents if those nonattorneys are necessary to get the work done. But those nonattorneys carry the same duty as the attorney. If they release the information, the privilege is gone.
I didn't mean to imply that the Pentagon Papers case is conclusive at all. On the contrary, the nature of that case is that it provides no standard for the lower courts to follow, since the majority could not agree on one.
Yes, the First and Sixth Amendments are coequal, but when they conflict, they must be balanced. Rather than prevent the press from publishing information that it has legally acquired, the Supreme Court usually looks at alternative methods of preserving the defendant's rights, such as voir dire. According to the Supreme Court, it's good enough if you get 12 jurors to say that they will examine the case with an open mind.
Nebraska Press Ass'n v. Stuart is a good case that deals with the balancing of a criminal defendant's rights and the freedom of the press. It doesn't deal specifically with attorney-client privilege.
Since I haven't read the order, I don't know on what basis the judge in this case made her decision. But I suppose another way of looking at it could be as an assertion of a property right. Jones Day might be arguing that since they own the documents, the newspaper has no right to do anything with them, and must simply return them. It seems to me that that sort of reasoning would not run afoul of the First Amendment.
Bush refused to sign the treaty for the International Criminal Court, because he can't stand the hypothetical possibility of our soldiers being prosecuted for war crimes.
But when it comes to the privacy and free speech rights of American civilians, he could give a shit. Say, why do we have soldiers again?
Funny me, I always thought it was to protect our Freedoms(tm).
It's true that they committed no breach of the law in receiving the information, but the law says they shouldn't have received that information, and sometimes the law imposes an obligation not to take advantage of things that shouldn't have happened. Receipt of confidential information is such a case.
Not in the United States it isn't. If your lawyer even inadvertently releases privileged information, you lose the privilege. That is a basic rule of evidence here.
In other words, you cannot even have a judge exclude the evidence from your trial... much less have him issue an injunction against someone who isn't even a party in the case.
In any event, there is no automatic right for the press to publish whatever they happen to find. You should read the decision in the Pentagon Papers case to get a feel for some of the considerations that have to be taken into account.
New York Times v. United States (aka the Pentagon Papers case) held that the New York Times and Washington Post could not be enjoined from publishing confidential information. That's all it held, since the majority could not agree on a standard.
I quote from Justice Black's opinion, as he was one of the majority, "The history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints."
Justice Douglas, "[The First Amendment] leaves no room for governmental restraint on the press."
Justice Brennan, "[T]here is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. . . [S]uch cases may arise only when the nation 'is at war.'"
Justice Stewart, "I cannot say that disclosure of any of [the documents] will surely result in direct, immediate and irreparable damage to our Nation or its people. . . I join the judgments of the Court."
Justice White placed emphasis on the fact that the case involved a prior restraint, against which the First Amendment provides especially strong protections. He stated that had it been a case of subsequent criminal punishment, he might have gone the other way, depending on the gravity of the national security interests involved.
Those are the five justices who made up the majority for that decision. Nothing in their opinions indicates that a prior judicial restraint could be validly applied against the press in anything but the most dangerous of circumstances, if ever.
Now, Justice Harlan does give a nice long list of factors that he would have prefered the court to have addressed. But Justice Harlan was one of the dissenters, NOT part of the majority, and his opinion is therefore not the law.
I recently briefed this case for one of my classes, but it's really not even applicable to the situation, as it deals with national security. An area where the government has MORE, not less power to abridge First Amendment rights.
Whatever rights the state of California provides (regarding attorney-client privilege), those rights are superceded by the First Amendment of the United States. Federal law--especially Federal constitutional law--is supreme over state law.
I'm not an American, but IMNSHO what Novak did by publishing was wrong and quite possibly treasonous, especially since it appears he was acting as a tool of oppression rather than an independent journalist.
Novak is an example of what the press is allowed to get away with in this country... I didn't think it was right for him to do that either... but our opinions are not always consistent with the law.
The point of the question is what would they have to gain by going after the Gimp.
They have not explicitly stated that they are going after any open source projects yet.
They have bought some patents in order to make money by suing people... why would you sue someone who has no money?
It would be different if they actually had a product. If that were they case, open source would be their competition... but in this case, why should they care about the Gimp?
Actually, the Newsforge page looks more like this:
NF: Would a free software program that stores images in JPG format, like the GIMP, be violating your IP rights by using JPG?
Noonan: That's a difficult question, I don't have the answer to that. I have to defer that to our legal team.
Of course, just to be safe, it might be wise for the GIMP developers (as well as all other open source image processing projects which use JPG) to volunteer to donate a percentage of their revenues to Forgent Networks.
This was placed at the end of the interview.
My impression is that these were not Noonan's words, but the closing statement of the interviewer... a writer for an open source oriented web site, who obviously has a sense of humor about the issue...
It's a perfectly appropriate and applicable case.
The newspaper in this case DID receive the information lawfully.
Do a google for "bob novak" and "valerie plame" if you want some examples of a journalist receiving information that was provided to him illegally. The provider of the information broke the law (much like the leak at Jones Day). But Mr. Novak did not break the law in receiving the information... he merely listened. The press has no obligation to shut its eyes or hang up the phone merely because it knows that the person communicating with it has broken the law.
The fact that the informant broke the law does not follow the information in order to somehow make the newspaper guilty.
Now, who's rights should prevail here? Your right to skilled legal representation and the necessary adjunct right of lawyer-client confidentiality, or freedom of speech?
This is all the fault of the defendant and his lawyers.
The whole point of there being an attorney-client privilege is that both the attorney and the client have to keep the information private.
Apparently, someone at Jones Day has committed malpractice. That is not the newspaper's fault. It is Jones Day's fault, and it is Diebold's fault for hiring Jones Day.
Slashdot Mirror
No. Entrapment requires that the entrapping party enticed you to such a degree that you would not have committed the act but for their influence upon you.
Even if they were the ones that made the download available, simply making it available and providing the link on a website would not be entrapment.
In some states, to claim entrapment, you even have to prove that you were not predisposed to commit the crime. That would be pretty hard to prove, since you are the one surfing for bittorrent links.
OTOH, if they were the ones making it available, I would think that that would be an implicit permission to download the movie, and therefore no copyright infringement.
I wonder what it is that they see as unfair. If the BBC uses other people's money to create technology that it licenses under the GPL, why should NewsCorp want to stop that?
Especially since NewsCorp can now use this technology and it didn't have to pay a dime for it.
And if it has anything to do with the government, it must be eeeeeeeeeevil.
Of course, if it's run by corporate assholes who just want to sell you crap, then it's ok
My apologies to the few (such as Al Gore) who though they may not have invented the internet, have been well-informed about technology. However, most of them are incapable of NOT screwing up this type of legislation.
You really want the government to tell you what kind of software you can write?
Maybe they should have a law that says you can't put bugs in your software either.
Maybe they should have a law that makes invalidates any waiver of the implied warranty of merchantability in software. How do you think that would affect open source projects? Not well. Not well at all.
True. But you have to choose your battles. The meaning of the 2nd Amendment is fairly well-settled at this point.
You are entitled to believe that the Supreme Court got it wrong. But the fact remains that there is a clear interpretation of it, which the ACLU (or NRA for that matter) would find rather difficult to overturn.
The Supreme Court usually prefers to follow its own precedent, although it does on occasion reverse itself.
It is true that the ACLU has a statement on its website regarding their opinion of the 2nd Amendment. They essentially say that they agree with the Supreme Court.
That would be aproppriate, considering that they will find themselves in front of the court on many occasions.
Probably it is true that most members of the ACLU feel differently about gun ownership than you do. But that is no reason to poo-poo the whole organization.
After all, there is another organization handling that fight already... and they appear well-equipped to hold their own.
Unless you deliver the physical medium itself, you must be making a copy.
It is not possible to copy something over the postal service, because you are sending a physical object, not mere information.
But when you transmit something over the internet, you are ALWAYS making a copy. You are not delivering a physical object. You are delivering information, which is then stored in some form at the recipient's end.
The parent is saying that this is legally NOT the same as buying a cd and carrying it with you on the airplane home.
If the copy is made in Russia, how does it appear on your harddrive in the US? They don't mail it to you. They don't hand-deliver it to you.
The parent is saying that you aren't "importing" a copy, because the copy is produced on your harddrive. He says that it is not "copied in Russia" and then delivered to you.
I think that is a reasonable argument. OTOH, it also seems reasonable to argue that the bits and bytes ARE copied in Russia and that you are importing them and placing them on your harddrive via the internet.
It seems that it would depend on how the law defines "physical medium" in the internet age. Now that information flows across physical mediums in a transitory nature, the concept of what is a "copy is much less clear".
Are the packets a "copy" as they travel over the internet? Do they not become a copy until they arrive on your harddrive?
Would it make a difference if allofmp3.com uploaded it to you on the fly, without saving the reencoded copy on their server?
If this becomes widely used, it won't matter.
RIAA will lobbying and/or litigation to make sure that this becomes illegal.
Of course, they still have to catch you.
Shame shame shame.
I wonder what the source of "codecs downloadable for $64" is??? The press release states:
Customers upgrading from the previous version of Turbolinux Desktop can purchase 10F for $64.
Hmmmmmm.
All they say is that it is capable of playing Windows Media files, by using its own "Turbo Media Player" which works with xine.
My guess is that "Turbo Media Player" is nothing more than a front-end for xine (ala Totem), with xine doing all the work.
It's already possible to play Windows Media files in Linux... this is nothing new at all.
The thing about Cyberlink ProDVD is kind of interesting, but definitely not on the same newsworthiness scale as a Linux distro licensing MS technology would be.
Shame on you Slashdot editors... shame shame shame !
If I had mod points, yadda yadda yadda...
People seem to think that either they have no obligation to acknowledge Linux/Open Source at all, or they are total scumbags for not doing so.
Of course there is no advertising clause in the GPL. But it is in bad taste to ignore the people who helped create what you are selling.
That's why in movies the producers put "Thank You" credits at the end. They usually aren't required, but it's good for business.
In 100 years, when every computer is run on GPLed software, noone will care whether you acknowledge the open source community or Linux itself. But right now, at this stage in its development, it really is crass to refuse to do so.
Instead, I am replying to a slashdot article on my laptop.
You see, my school is very tech-savvy. The reading carousels have ethernet ports.
I am easily distracted by the computer, and I'm a grad student! I hope these 5th and 6th graders have a lot of discipline... ha!
No, Mozilla definitely does not install spyware on your computer. Most spyware is added on as part of software that you did intend to install.
However, the default Windows install does include some things that Spybot will pick up.
It does enjoy an elevated status, but when your lawyer waives the privilege... you've got a malpractice claim. Privilege is very important. But it's easy to waive.
The general rule is that disclosure to any third party destroys the privilege. The attorney can maintain the privilege while allowing nonattorneys to handle documents if those nonattorneys are necessary to get the work done. But those nonattorneys carry the same duty as the attorney. If they release the information, the privilege is gone.
I didn't mean to imply that the Pentagon Papers case is conclusive at all. On the contrary, the nature of that case is that it provides no standard for the lower courts to follow, since the majority could not agree on one.
Yes, the First and Sixth Amendments are coequal, but when they conflict, they must be balanced. Rather than prevent the press from publishing information that it has legally acquired, the Supreme Court usually looks at alternative methods of preserving the defendant's rights, such as voir dire. According to the Supreme Court, it's good enough if you get 12 jurors to say that they will examine the case with an open mind.
Nebraska Press Ass'n v. Stuart is a good case that deals with the balancing of a criminal defendant's rights and the freedom of the press. It doesn't deal specifically with attorney-client privilege.
Since I haven't read the order, I don't know on what basis the judge in this case made her decision. But I suppose another way of looking at it could be as an assertion of a property right. Jones Day might be arguing that since they own the documents, the newspaper has no right to do anything with them, and must simply return them. It seems to me that that sort of reasoning would not run afoul of the First Amendment.
Isn't there something wrong with this picture?
But when it comes to the privacy and free speech rights of American civilians, he could give a shit. Say, why do we have soldiers again?
Funny me, I always thought it was to protect our Freedoms(tm).
Their definition apparently doesn't include someone who signed up for an account a month ago and has only made one post so far.
Not in the United States it isn't. If your lawyer even inadvertently releases privileged information, you lose the privilege. That is a basic rule of evidence here.
In other words, you cannot even have a judge exclude the evidence from your trial... much less have him issue an injunction against someone who isn't even a party in the case.
In any event, there is no automatic right for the press to publish whatever they happen to find. You should read the decision in the Pentagon Papers case to get a feel for some of the considerations that have to be taken into account.
New York Times v. United States (aka the Pentagon Papers case) held that the New York Times and Washington Post could not be enjoined from publishing confidential information. That's all it held, since the majority could not agree on a standard.
I quote from Justice Black's opinion, as he was one of the majority, "The history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints."
Justice Douglas, "[The First Amendment] leaves no room for governmental restraint on the press."
Justice Brennan, "[T]here is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. . . [S]uch cases may arise only when the nation 'is at war.'"
Justice Stewart, "I cannot say that disclosure of any of [the documents] will surely result in direct, immediate and irreparable damage to our Nation or its people. . . I join the judgments of the Court."
Justice White placed emphasis on the fact that the case involved a prior restraint, against which the First Amendment provides especially strong protections. He stated that had it been a case of subsequent criminal punishment, he might have gone the other way, depending on the gravity of the national security interests involved.
Those are the five justices who made up the majority for that decision. Nothing in their opinions indicates that a prior judicial restraint could be validly applied against the press in anything but the most dangerous of circumstances, if ever.
Now, Justice Harlan does give a nice long list of factors that he would have prefered the court to have addressed. But Justice Harlan was one of the dissenters, NOT part of the majority, and his opinion is therefore not the law.
I recently briefed this case for one of my classes, but it's really not even applicable to the situation, as it deals with national security. An area where the government has MORE, not less power to abridge First Amendment rights.
Whatever rights the state of California provides (regarding attorney-client privilege), those rights are superceded by the First Amendment of the United States. Federal law--especially Federal constitutional law--is supreme over state law.
I'm not an American, but IMNSHO what Novak did by publishing was wrong and quite possibly treasonous, especially since it appears he was acting as a tool of oppression rather than an independent journalist.
Novak is an example of what the press is allowed to get away with in this country... I didn't think it was right for him to do that either... but our opinions are not always consistent with the law.
They have not explicitly stated that they are going after any open source projects yet.
They have bought some patents in order to make money by suing people... why would you sue someone who has no money?
It would be different if they actually had a product. If that were they case, open source would be their competition... but in this case, why should they care about the Gimp?
NF: Would a free software program that stores images in JPG format, like the GIMP, be violating your IP rights by using JPG?
Noonan: That's a difficult question, I don't have the answer to that. I have to defer that to our legal team.
Of course, just to be safe, it might be wise for the GIMP developers (as well as all other open source image processing projects which use JPG) to volunteer to donate a percentage of their revenues to Forgent Networks.
This was placed at the end of the interview.
My impression is that these were not Noonan's words, but the closing statement of the interviewer... a writer for an open source oriented web site, who obviously has a sense of humor about the issue...
Do a google for "bob novak" and "valerie plame" if you want some examples of a journalist receiving information that was provided to him illegally. The provider of the information broke the law (much like the leak at Jones Day). But Mr. Novak did not break the law in receiving the information... he merely listened. The press has no obligation to shut its eyes or hang up the phone merely because it knows that the person communicating with it has broken the law.
The fact that the informant broke the law does not follow the information in order to somehow make the newspaper guilty.
This is all the fault of the defendant and his lawyers.
The whole point of there being an attorney-client privilege is that both the attorney and the client have to keep the information private.
Apparently, someone at Jones Day has committed malpractice. That is not the newspaper's fault. It is Jones Day's fault, and it is Diebold's fault for hiring Jones Day.
If a newspaper can publish the name of a rape victim which it obtains through legal means, I fail to see why it should not be allowed to print information about Diebold.
In my opinion, Diebold's activities are of far more interest to the public than the name of a rape victim.
Can the second machine cross-reference the bar code AND the text? Maybe only random intervals would be enough to insure nothing funny going on.
I am thinking about righting my Secretary of State about this.
I was asking a question not making a statement. Please forgive me for offending your sense of obviousness.
SMARTYPANTS... Splplpplpl!
I'm all for open source... love it.
And I don't trust Diebold anymore than the next guy.
But is open source really appropriate for this situation? Especially for a voting system that works on "very inexpensive PC hardware".
Wouldn't it be very easy for someone to patch the software in a bad way and recompile it before installation?
I assume this has been thought of already, but I can't figure out how to prevent that kind of danger.