Understood, Falcon, but I think David's point was that this should be changed, such that "doing business in XX jurisdiction" is no longer sufficient, and instead the main criterion for choosing a litigation forum would be "having a principal place of business" (i.e. David's "main presence") in that jurisdiction.
Capn: "Belay that, Gunny! Triple-shot 'em instead. And prepare full broadsides both starboard and larboard, and call in the marines from the tops to help man the guns. We'll come about and hit 'em with both sides, reloading as we go -- now that the fog has cleared and we can see the size of this behemoth, it's clear that it'll take a while to get through that thick hull. An extra ration of grog to the crew that first punches through!"
I agree. But, as soon as you engage in this argument, you've already lost. That's my point. You've taken the RIAA's bait, and allowed them to frame the debate.
Aha. An excellent point, and a fine argument.
Copyright infringement is currently illegal. Instead of debating how many sales are lost to downloads or how the high price of music leads to piracy--arguments based on the premise that piracy is not as bad as the RIAA says--we should be focused on positive arguments for copyright reform. If we want to change the law, we have to give the politicians a reason to.
Therein lies the bugaboo -- the only compelling reasons, for the politicians, currently have to do with the wads of cash and free lunches that the RIAA and member companies provide.
Which points to the underlying malaise of the whole US political system: how do we re-align the interests of the political class with the interests of the country as a whole, and of the citizens (i.e. humans, not corporations) in particular?
I have no real ideas that don't involve some degree of bloodshed (which is depressing to me, as I'm generally a pacifist). Johnsonav, do you have any thoughts? You seem a sharp mind; I'm interested if you have any feasible solutions at hand.
Yay for reasonableness! Too often it seems that practicality is forced to take a back seat behind ideology, theology, and various other -ologies... "getting the job done", now *that's* more like it.
For additional effect you may prefix a language construct which could only be defined as a pre-offensive such as "fucking".
Hopefully we will soon update our finest Oxford dictionaries to include these useful and flexible language constructs and terms.
Meanwhile, on the other side of the puddle, we already have this useful word fully incorporated in our official lexicon, even to the point of being included in English language lessons, such as this one (though the atrocious spelling might also be indicative of something...).
The useful and versatile F word is one of the few that may be used in just about every major grammatical category -- sometimes even all in the same sentence.
Precisely my thinking, too. But apparently the prosecution took a different tack of trying to prove 'unjust enrichment' by Microsoft on the premise that the low-end machines labeled "Vista Capable" were somehow deliberately overpriced. As you note though, the parties standing to benefit there are *not* Microsoft, but rather the hardware vendors.
Not a smart move by the prosecution, in my view, especially since it has cost them their class-action status.
There's also the wrinkle that the customer has to notice that they've been harmed. Slashdotter v1 brought up this very salient point here with regard to deceptive USB marketing to shift low-end mobos obsoleted by the arrival of USB 2.0. I doubt most run-of-the-mill consumers would have understood the difference between "USB 2.0" (formerly "USB 1.1" and only 12mbps) and "USB 2.0 high speed" (formerly "USB 2.0" and 480mbps), and many probably would not have understood enough to realize they were being swindled.
So yes, this was a case of deceptive marketing, and the customer was harmed (by paying more for obsolete hardware), so technically there was a crime committed -- but if the customer doesn't notice the harm, what then?
And so we have economic parasitism. Not surprising in the least, but good to be aware of.
That's not "certified public accountant" in the subject line, but rather "Consumer Protection Act".
I questioned exactly the same line of reasoning in this post, and fellow slashdotter and lawyer-in-training pdabbadabba was kind enough to explain what s|he had found in this follow-up.
The upshot of it all is that it apparently *is* legal to market deceptively, provided no one is injured (or, in more practical terms, no one *notices* they are injured).
Here you go. The PDF linked in the article shows the actual email thread, including the "I now have a $2100 email machine" money quote by MS executive Mike Nash.
The fact that they had to pay more for a machine that was Vista capable, when the basic machines weren't Vista capable (yet labeled as such) is a big part of that argument.
A good idea, but I don't think that's the argument. Actually reading TFA (I know, I know), it sure sounds like the judge is saying that the prosecution is arguing that the low-end machines labeled as "Vista Capable" were somehow deliberately overpriced, thereby leading to 'unjust enrichment' for Microsoft. If so, this really seems like a royal screw-up for the prosecution, since it's your version of the argument that makes much more sense (at least to me, but IANAL).
When I first heard about the case, my assumption about the main thrust of the argument (since proven wrong) was that consumers were put through undue hassle and extra expense in having to replace the extrememly low-end and basically unusable "Vista Capable" machines. I always thought it was more of a classic "bait and switch", with the user being deliberately misled into buying something different from what was being described. Even if unjust enrichment were required for such a legal argument, it would thus come not from the overpricing of labeled machines, but from the purchase of additional replacement machines to achieve the actual level of functionality advertised by the labels. Is anyone taking this tack?
Also, does this mean that any deceptive labeling is now legally okay, provided that the labeled merchandise is not overpriced? That seems a very dubious legal outcome...
Reading TFA, it sounds more and more like an egregious prosecutorial cock-up. As pdabbadabba notes below, the knuckleheaded prosecution argument is apparently that the "Vista Capable" machines were deliberately overpriced. IANAL, but simply logically speaking, it would seem to make more sense to argue that the labeling program was misleading, requiring lots of hassle and possible extra expense for consumers to return and / or replace the low-end, barely-usable "Vista Capable" machines with something that actually worked. Ah, well...
I'm confused by the judge's comment -- I thought the whole issue was *not* that users paid higher prices for "Vista Capable" machines, but rather that they bought such machines that were not actually capable of running Vista.
Simply in terms of gross earnings, the music companies make peanuts compared to some other very big industries being negatively impacted by all this anti-piracy hullabaloo (sure, corporations probably don't pirate music, but this DRM and filtering and other BS all carry a cost for anyone working online). Are they just that much better at lobbying? Have they somehow nobbled all the right people? What gives?
Presumably, this sandboxing is what SELinux is all about? I dabbled with it some in Fedora 9, enough to become quite frustrated with the minimal docs I was able to find. I may have to give it another good look-see...
So then the issue with a buffer overrun is that the intruder potentially gains access with the permissions of the running process, is that it? And XP is toast simply because Microsoft is brain-dead when it comes to understanding a proper division of access rights? What about Vista -- I know there's UAC, but I seem to recall reading about crackers finding automated ways to get around UAC...?
Again, I am baffled, horrified, but somehow not surprised that a static file reader apparently has access to *everything in the system* under Windows...
I'm rather dismayed and horrified that operating systems don't already do this -- but then, reading TFA, I notice that "the flaw could be exploited on systems running Microsoft's Windows XP SP3", and suddenly it all makes sense, in a depressingly mediocre sort of way. The very concept that a reader program, for what are supposed to be static files, could pwn the whole OS is both flabbergasting, and par for the Microsoft course.
OTOH, TFA doesn't mention if this is remotely possible on Linux -- am I correct in thinking that Linux *does* sandbox applications at least a bit more effectively than Windows? Simply thinking through the cleaner division of administrative rights, I would think it does, but can anyone more knowledgeable about buffer overruns confirm that Linux is safer?
When you install software you ALWAYS have to check the I AGREE box.
I seem to recall some installations where simply holding down the spacebar during install is enough to move on through the dialogs without having to do any mousing at all.
And sure, fine, at some point someone apparently clicked I AGREE. However:
There's no proof at all that the I AGREE button was actually ever clicked. It is certainly possible that someone might find a way to install the software without ever actually clicking through any EULA.
Has there even been any agreement? Is it clear and provable in *any* explicit way that the I AGREE button was indeed clicked?
There's no proof at all that the person actually using the software (i.e., the "end user" of the "end user license agreement") was the one to click through the EULA.
Who exactly has agreed? Is it clear in *any* explicit way *who* the parties to this supposed contract actually are?
There's no proof at all that the terms were read (I sincerely doubt with every fiber of my being that the vast majority of people *ever* read through the entirety of any EULA).
What exactly has been agreed to? Is it clear in *any* explicit way that *both* parties actually have agreed to anything?
There's no proof at all that the terms were understood (I sincerely doubt even more that the vast majority of people ever could fully understand all the deliberately obtuse and impossibly convoluted legalese that most EULAs appear to be written in, without spending an inordinate amount of time researching the law).
Again, what exactly has been agreed to? Is it clear in *any* explicit way that *both* parties *understand* what it is that they are ostensibly agreeing to?
Sure, there have been numerous court cases dealing tangentially with the issue of EULAs, and touching upon various aspects of EULAs. However, given the very real and extremely huge holes of as-yet-untried questionables regarding the legal standing of EULAs, it is disingenuous to say either 1) that EULAs are indeed wholly legally binding, or 2) that EULAs are indeed wholly not legally binding. The true nuts and bolts of EULAs, as they pertain in their entirety to general contract law, not just as they pertain in part to specific aspects of specific cases, have not yet been tested in court.
In mentioning the installation of a second sound card, I am not advocating any particular workaround, but rather merely repeating the suggestion made in the original article posting and quoted in the summary at the top of the page. The OP describes possibly installing a second card, and inasmuch as doing so could conceivably be construed as willfully attempting to circumvent Windows' DRM measures, even if unsuccessful, it would appear to run afoul of the provisions stipulated in the DMCA.
For that matter, your suggestion of a second computer to get around sound card crippling imposed by the OS could also be construed as a willful circumvention of DRM. Taking this Gedankenexperiment to its extreme, the DMCA could theoretically be applied to legally prevent people from owning or possibly even operating more than one computer or other recording-enabled audiovisual device. How wonderfully Orwellian...
A better suggestion would be encouraging people to vote with their wallet and not give Microsoft the business.
While certainly a commendable course of action, it bears recognizing that a legislative revision is most certainly in order even if not at the level of a constitutional amendment, as it is currently, and rather ridiculously, a federal offense to work around such DRM, even if no copyright violation takes place. So, ostensibly, under the terms of the DMCA, even the act of installing a second sound card to try to get around this obnoxious and unconscionable crippling imposed by Microsoft, which impedes even the copying of a user's self-produced media, would itself comprise "circumvention" and put such a user at odds with the law. This is truly a ridiculous and untenable state of affairs.
Slashdot Mirror
Understood, Falcon, but I think David's point was that this should be changed, such that "doing business in XX jurisdiction" is no longer sufficient, and instead the main criterion for choosing a litigation forum would be "having a principal place of business" (i.e. David's "main presence") in that jurisdiction.
Cheers,
Capn: "Belay that, Gunny! Triple-shot 'em instead. And prepare full broadsides both starboard and larboard, and call in the marines from the tops to help man the guns. We'll come about and hit 'em with both sides, reloading as we go -- now that the fog has cleared and we can see the size of this behemoth, it's clear that it'll take a while to get through that thick hull. An extra ration of grog to the crew that first punches through!"
Cheers,
Aha. An excellent point, and a fine argument.
Therein lies the bugaboo -- the only compelling reasons, for the politicians, currently have to do with the wads of cash and free lunches that the RIAA and member companies provide.
Which points to the underlying malaise of the whole US political system: how do we re-align the interests of the political class with the interests of the country as a whole, and of the citizens (i.e. humans, not corporations) in particular?
I have no real ideas that don't involve some degree of bloodshed (which is depressing to me, as I'm generally a pacifist). Johnsonav, do you have any thoughts? You seem a sharp mind; I'm interested if you have any feasible solutions at hand.
Cheers,
... with several families picnicking on the lawn.
Cheers,
Yay for reasonableness! Too often it seems that practicality is forced to take a back seat behind ideology, theology, and various other -ologies... "getting the job done", now *that's* more like it.
Cheers,
Meanwhile, on the other side of the puddle, we already have this useful word fully incorporated in our official lexicon, even to the point of being included in English language lessons, such as this one (though the atrocious spelling might also be indicative of something...).
The useful and versatile F word is one of the few that may be used in just about every major grammatical category -- sometimes even all in the same sentence.
(And, lest I miss out on the Meme Train:)
Also, fuck you. :)
Especially if they got Vern Fonk to do the commercials:
"Savings never tasted this good!"
"Dance! Shipoopi!"
Cheers,
c
Hey, now! When we'd muck about on the old VAX in college, that was definitely not a bug, that was a *feature*!
Cheers,
Precisely my thinking, too. But apparently the prosecution took a different tack of trying to prove 'unjust enrichment' by Microsoft on the premise that the low-end machines labeled "Vista Capable" were somehow deliberately overpriced. As you note though, the parties standing to benefit there are *not* Microsoft, but rather the hardware vendors.
Not a smart move by the prosecution, in my view, especially since it has cost them their class-action status.
Cheers,
There's also the wrinkle that the customer has to notice that they've been harmed. Slashdotter v1 brought up this very salient point here with regard to deceptive USB marketing to shift low-end mobos obsoleted by the arrival of USB 2.0. I doubt most run-of-the-mill consumers would have understood the difference between "USB 2.0" (formerly "USB 1.1" and only 12mbps) and "USB 2.0 high speed" (formerly "USB 2.0" and 480mbps), and many probably would not have understood enough to realize they were being swindled.
So yes, this was a case of deceptive marketing, and the customer was harmed (by paying more for obsolete hardware), so technically there was a crime committed -- but if the customer doesn't notice the harm, what then?
And so we have economic parasitism. Not surprising in the least, but good to be aware of.
Cheers,
That's not "certified public accountant" in the subject line, but rather "Consumer Protection Act".
I questioned exactly the same line of reasoning in this post, and fellow slashdotter and lawyer-in-training pdabbadabba was kind enough to explain what s|he had found in this follow-up.
The upshot of it all is that it apparently *is* legal to market deceptively, provided no one is injured (or, in more practical terms, no one *notices* they are injured).
Ain't the law grand? :-/
Cheers,
Here you go. The PDF linked in the article shows the actual email thread, including the "I now have a $2100 email machine" money quote by MS executive Mike Nash.
Cheers,
A good idea, but I don't think that's the argument. Actually reading TFA (I know, I know), it sure sounds like the judge is saying that the prosecution is arguing that the low-end machines labeled as "Vista Capable" were somehow deliberately overpriced, thereby leading to 'unjust enrichment' for Microsoft. If so, this really seems like a royal screw-up for the prosecution, since it's your version of the argument that makes much more sense (at least to me, but IANAL).
Cheers,
When I first heard about the case, my assumption about the main thrust of the argument (since proven wrong) was that consumers were put through undue hassle and extra expense in having to replace the extrememly low-end and basically unusable "Vista Capable" machines. I always thought it was more of a classic "bait and switch", with the user being deliberately misled into buying something different from what was being described. Even if unjust enrichment were required for such a legal argument, it would thus come not from the overpricing of labeled machines, but from the purchase of additional replacement machines to achieve the actual level of functionality advertised by the labels. Is anyone taking this tack?
Also, does this mean that any deceptive labeling is now legally okay, provided that the labeled merchandise is not overpriced? That seems a very dubious legal outcome...
Curious,
Reading TFA, it sounds more and more like an egregious prosecutorial cock-up. As pdabbadabba notes below, the knuckleheaded prosecution argument is apparently that the "Vista Capable" machines were deliberately overpriced. IANAL, but simply logically speaking, it would seem to make more sense to argue that the labeling program was misleading, requiring lots of hassle and possible extra expense for consumers to return and / or replace the low-end, barely-usable "Vista Capable" machines with something that actually worked. Ah, well...
Cheers,
I'm confused by the judge's comment -- I thought the whole issue was *not* that users paid higher prices for "Vista Capable" machines, but rather that they bought such machines that were not actually capable of running Vista.
What gives?
Simply in terms of gross earnings, the music companies make peanuts compared to some other very big industries being negatively impacted by all this anti-piracy hullabaloo (sure, corporations probably don't pirate music, but this DRM and filtering and other BS all carry a cost for anyone working online). Are they just that much better at lobbying? Have they somehow nobbled all the right people? What gives?
Confused,
Presumably, this sandboxing is what SELinux is all about? I dabbled with it some in Fedora 9, enough to become quite frustrated with the minimal docs I was able to find. I may have to give it another good look-see...
Cheers,
So then the issue with a buffer overrun is that the intruder potentially gains access with the permissions of the running process, is that it? And XP is toast simply because Microsoft is brain-dead when it comes to understanding a proper division of access rights? What about Vista -- I know there's UAC, but I seem to recall reading about crackers finding automated ways to get around UAC...?
Again, I am baffled, horrified, but somehow not surprised that a static file reader apparently has access to *everything in the system* under Windows...
Cheers,
I'm rather dismayed and horrified that operating systems don't already do this -- but then, reading TFA, I notice that "the flaw could be exploited on systems running Microsoft's Windows XP SP3", and suddenly it all makes sense, in a depressingly mediocre sort of way. The very concept that a reader program, for what are supposed to be static files, could pwn the whole OS is both flabbergasting, and par for the Microsoft course.
OTOH, TFA doesn't mention if this is remotely possible on Linux -- am I correct in thinking that Linux *does* sandbox applications at least a bit more effectively than Windows? Simply thinking through the cleaner division of administrative rights, I would think it does, but can anyone more knowledgeable about buffer overruns confirm that Linux is safer?
Curious,
... not least because someone earlier in the film had mentioned that they already had viable fusion.
Meh.
I feel compelled to chime in here.
I seem to recall some installations where simply holding down the spacebar during install is enough to move on through the dialogs without having to do any mousing at all.
And sure, fine, at some point someone apparently clicked I AGREE. However:
Has there even been any agreement? Is it clear and provable in *any* explicit way that the I AGREE button was indeed clicked?
Who exactly has agreed? Is it clear in *any* explicit way *who* the parties to this supposed contract actually are?
What exactly has been agreed to? Is it clear in *any* explicit way that *both* parties actually have agreed to anything?
Again, what exactly has been agreed to? Is it clear in *any* explicit way that *both* parties *understand* what it is that they are ostensibly agreeing to?
Sure, there have been numerous court cases dealing tangentially with the issue of EULAs, and touching upon various aspects of EULAs. However, given the very real and extremely huge holes of as-yet-untried questionables regarding the legal standing of EULAs, it is disingenuous to say either 1) that EULAs are indeed wholly legally binding, or 2) that EULAs are indeed wholly not legally binding. The true nuts and bolts of EULAs, as they pertain in their entirety to general contract law, not just as they pertain in part to specific aspects of specific cases, have not yet been tested in court.
In mentioning the installation of a second sound card, I am not advocating any particular workaround, but rather merely repeating the suggestion made in the original article posting and quoted in the summary at the top of the page. The OP describes possibly installing a second card, and inasmuch as doing so could conceivably be construed as willfully attempting to circumvent Windows' DRM measures, even if unsuccessful, it would appear to run afoul of the provisions stipulated in the DMCA.
For that matter, your suggestion of a second computer to get around sound card crippling imposed by the OS could also be construed as a willful circumvention of DRM. Taking this Gedankenexperiment to its extreme, the DMCA could theoretically be applied to legally prevent people from owning or possibly even operating more than one computer or other recording-enabled audiovisual device. How wonderfully Orwellian...
Cheers,
While certainly a commendable course of action, it bears recognizing that a legislative revision is most certainly in order even if not at the level of a constitutional amendment, as it is currently, and rather ridiculously, a federal offense to work around such DRM, even if no copyright violation takes place. So, ostensibly, under the terms of the DMCA, even the act of installing a second sound card to try to get around this obnoxious and unconscionable crippling imposed by Microsoft, which impedes even the copying of a user's self-produced media, would itself comprise "circumvention" and put such a user at odds with the law. This is truly a ridiculous and untenable state of affairs.
Can you elaborate on that at all? How is the word "methods" being used in the patent brief such that it does not include the medical procedure?