You can also get attorney's fees under the California law:
"(a)(1) In addition to any other remedies provided by this article or by any other provisions of law, a recipient of an
unsolicited commercial e-mail advertisement transmitted in violation of this article, an electronic mail service provider, or the Attorney
General may bring an action against an entity that violates any provision of this article to recover either or both of the following: (A) Actual damages.
(B) Liquidated damages of one thousand dollars ($1,000) for each
unsolicited commercial e-mail advertisement transmitted in violation
of Section 17529.2, up to one million dollars ($1,000,000) per
incident.
(2) The recipient, an electronic mail service provider, or the
Attorney General, if the prevailing plaintiff, may also recover
reasonable attorney's fees and costs.
California Business & Professions Code sec 17529.8
I was able to make the poll tonight minutes before it closed. According the poll manager (or whatever their title is) the computers were down for approximately.5 hours before "some kid" came and fixed the system.
I inserted this card into the machine and the appropriate (ahem... Libertarian) ballot appeared on the screen. Techwise, it was actually pretty cool, but my experience this morning left me uneasy. I was lucky I was able to vote after getting stiffed this morning - I almost wasn't able to because of a technical glitch!
Although I was well prepared for the issues and candidates for this election (I live in San Diego County), I was not aware that my district was switching over to electronic voting. When I arrived at the poll, all the booths were empty and there was a line out the door. I noticed the new "Diebold Voting Systems" election booths.
"The computers crashed," I was told. There were three poll monitors, all on cell phones, trying to get through to somebody - anybody - to help them reboot.
Once they got through, I couldn't hear everything that was said, but I did hear the words "OK, now I see 'Windows CE' - what should I do?" I left. I am going back now. I hope I get to vote.
It is simply - although not always a simple - business decision: can you make more money advertising to free eyeballs or is your information unique and in enough demand that you can make more money off subscriptions?
We have a surf report site that started off as a free advertising-based site. It was was never profitable despite being hugely popular. When the decision was made to turn it over to a subscription-based model, of course we lost a lot of eyeballs, but we went to instant and continuing profitability.
I don't know about "for as long as," and I don't think these two scenarios are wholly analagous - but you can regulate "unsolicited commercial email" (spam that sells stuff) more stringently because it is "commercial speech."
I think it's an easy argument to say that filter-evasion techniques are, in most instances, fraudulent, and as such outside the protection of the First Amendment.
Your sarcasm is noted - of course there is no case holding that activists can come into your home uninvited.
However, there is plenty of case law that hold that freedom of political expression outweighs the minor inconvenience of hearing/reading that expression.
"The government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)
The distinction between laws burdening and laws banning speech is but a matter of degree, and the government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.
I would think, when weighing the burden on the listener in this case, that the "bundle of rights" you have in your real property is far more significant than that of your email inbox. I think the latter would be scrutinized in a way more analogous to digital cable channels. In such a case, the First Amendment is much more protective of the speaker. See, for instance, U.S. v. Playboy Entertainment Group, Inc., 120 S.Ct. 1878.
Yeah, I was wondering if it was only for counter-claims. I didn't see that it was clearly worded that a person could name a class when instituting a new suit. But I didn't look through the rest of the FRCP either;)
Is it possible for me to form and sue on behalf of a class, and name another class as the defendant?
No, you cannot name a "class" as defendants, no such animal. However, you can name a very large number of defendants (though they will not called a "class" no matter how many you name).
Although the rules for class actions differ from state to state, and from state to federal, I am quite certain that no jurisdiction entertain the possibility of a "class" of defendants.
I would like to sue on behalf of everyone who has received a penis-enlargement spam and did not respond to it.
California consumers have the right to sue spammers directly and get their attorneys fees paid! See B&P code 17529.8(a)(1):
"In addition to any other remedies provided by this article or by any other provisions of law, a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this article, an electronic mail service provider, or the Attorney General may bring an action against an entity that violates any provision of this article to recover either or both of the following: (A) Actual damages. (B) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of Section 17529.2, up to one million dollars ($1,000,000) per incident. (2) The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs."
I would seek damages against the class of individuals who received this spam and did respond to it.
You will have to read the statute to see if it will fit, but if I were to assign this a Fark tag, it would be "Unlikely."
Happy suing!
Equal Time Rule
on
Superbowling
·
· Score: 2, Interesting
And this has nothing to do with the first amendment, CBS is a corporation, the first amendment only applies to the government.
This is an overly simplistic statement. The electromagnetic spectrum is a public resource. It is thus subject to less First Amendment protection than other mediums and subject to more government regulation.
There are First Amendment considerations at issue, such as the Equal Time Rule, which in essence, "a station which sells or gives one minute to Candidate A must sell or give the same amount of time with the same audience potential to all other candidates for the particular office."
Thus, if CBS runs an ad for one candidate, they must offer the same time to other candidates. I don't know how this would affect running a purely "anti-candidate" ad which positively endorses no specific candidate. But it might give rise to the right of the "anti-candidate" to give a rebuttal.
As I mentioned in another post, just the packets traveling though Virginia is not enough contact with the state to allow them to assert jurisdiction over the spammers. The spammers have to:
1) "Reasonably anticipate being hailed into the forum state"
2) "Purposefully avail" themselves of the forum state's laws
3) Have "minimum contacts" with the forum state
Without this, suing them in state court would violate their due process rights. Yes, even spammers have rights...
The state of Virginia can assert jurisdiction over those seeking to market or sell products to its citizens. There is a "minimum contacts" test to determine whether the entity has done enough to come within the state's power, but that is another civil procedure story...
However, you are not wrong, in that because this is an issue of interstate commerce, the US congress may preempt the states' regulation of spam. I am wondering the same thing here in California, because the new federal anti-spam law may preempt the new state anti-spam law which will become effective 1/1/04.
But preemption is not automatic. For example, there is both a Federal and California state law against junk faxes and telemarketing calls that don't begin with a natural human voice. A person could elect to sue under either state or federal law or both.
... into the 14th Amendment of the Constitution. Modernly, it was recognized by a right to possess pornography within one's home, to use contraceptives, and more sharply, the right to engage in homosexual activity, state statutes to the contrary notwithstanding. These decisions were all based on an implicit recognition of a right to privacy.
It may not say the word "privacy" in the Constitution, but if the Supreme Court finds a right there anyway, it might as well say it...
That means some sort of usage fee -- tolls. The problem with old-style tolls is that the transaction costs were too high (i.e. there's always a backup at the tollbooth). What we need is anonymous, electronic cash-based tolls.
That's called a gas tax, which is pretty much a precise usage fee, wouldn't you say?
And it already comprises almost half of the price of a gallon of gas here in Cali.
The difficulty lies in the fact that a cable operator - like a telephone operator and unlike the UPS analogy given above - is a "natural monopoly." That means it would be unnecessary and burdensome on the public to have five different companies laying cable to your wall.
How, then, to create competition in market governed naturally by a monopoly?
The way it has been done in the telephone market is to give incentives to the RBOCs to open their network for competitors to "piggy back" on. Their reward is that once they have met certain criteria in opening their own networks for competitors to use, the RBOCs are allowed to enter the inter-LATA (long distance) market and even the intra-LATA markets in other regions.
I am not sure of the technical issues, but this might be a way of introducing competition to the cable modem market as well.
Boston College and MIT challenged the RIAA's subpoenas on narrow technical grounds, arguing that the RIAA had filed its subpoenas in Washington, DC, instead of Massachusetts.
Generally, actions brought in federal court must be brought in the state where the defendant resides or where the cause of action arose. So although technical, it is a legitimate defense.
Slashdot Mirror
"(a)(1) In addition to any other remedies provided by this article or by any other provisions of law, a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this article, an electronic mail service provider, or the Attorney General may bring an action against an entity that violates any provision of this article to recover either or both of the following:
(A) Actual damages.
(B) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of Section 17529.2, up to one million dollars ($1,000,000) per incident.
(2) The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs.
California Business & Professions Code sec 17529.8
I was able to make the poll tonight minutes before it closed. According the poll manager (or whatever their title is) the computers were down for approximately .5 hours before "some kid" came and fixed the system.
I inserted this card into the machine and the appropriate (ahem ... Libertarian) ballot appeared on the screen. Techwise, it was actually pretty cool, but my experience this morning left me uneasy. I was lucky I was able to vote after getting stiffed this morning - I almost wasn't able to because of a technical glitch!
"The computers crashed," I was told. There were three poll monitors, all on cell phones, trying to get through to somebody - anybody - to help them reboot.
Once they got through, I couldn't hear everything that was said, but I did hear the words "OK, now I see 'Windows CE' - what should I do?" I left. I am going back now. I hope I get to vote.
We have a surf report site that started off as a free advertising-based site. It was was never profitable despite being hugely popular. When the decision was made to turn it over to a subscription-based model, of course we lost a lot of eyeballs, but we went to instant and continuing profitability.
Other surf-related sites have made the same realization.
I think it's an easy argument to say that filter-evasion techniques are, in most instances, fraudulent, and as such outside the protection of the First Amendment.
However, there is plenty of case law that hold that freedom of political expression outweighs the minor inconvenience of hearing/reading that expression.
The distinction between laws burdening and laws banning speech is but a matter of degree, and the government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.
I would think, when weighing the burden on the listener in this case, that the "bundle of rights" you have in your real property is far more significant than that of your email inbox. I think the latter would be scrutinized in a way more analogous to digital cable channels. In such a case, the First Amendment is much more protective of the speaker. See, for instance, U.S. v. Playboy Entertainment Group, Inc., 120 S.Ct. 1878.
Actually, there are more like 10 - 100 trillion cells in the human body :)
Yeah, I was wondering if it was only for counter-claims. I didn't see that it was clearly worded that a person could name a class when instituting a new suit. But I didn't look through the rest of the FRCP either ;)
I stand corrected. Thank you for pointing that out!
Is it possible for me to form and sue on behalf of a class, and name another class as the defendant?
No, you cannot name a "class" as defendants, no such animal. However, you can name a very large number of defendants (though they will not called a "class" no matter how many you name).
Although the rules for class actions differ from state to state, and from state to federal, I am quite certain that no jurisdiction entertain the possibility of a "class" of defendants.
I would like to sue on behalf of everyone who has received a penis-enlargement spam and did not respond to it.
When I get the time, I am seriously going to start a spamlaw practice, but until then I must refer you to federal law ("Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003") and California law - "Restrictions On Unsolicited Commercial E-mail Advertisers" - Business and Professions Code 17529 et. seq..
California consumers have the right to sue spammers directly and get their attorneys fees paid! See B&P code 17529.8(a)(1):
"In addition to any other remedies provided by this article or by any other provisions of law, a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this article, an electronic mail service provider, or the Attorney General may bring an action against an entity that violates any provision of this article to recover either or both of the following:
(A) Actual damages.
(B) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of Section 17529.2, up to one million dollars ($1,000,000) per incident.
(2) The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs."
I would seek damages against the class of individuals who received this spam and did respond to it.
You will have to read the statute to see if it will fit, but if I were to assign this a Fark tag, it would be "Unlikely."
Happy suing!
This is an overly simplistic statement. The electromagnetic spectrum is a public resource. It is thus subject to less First Amendment protection than other mediums and subject to more government regulation.
There are First Amendment considerations at issue, such as the Equal Time Rule, which in essence, "a station which sells or gives one minute to Candidate A must sell or give the same amount of time with the same audience potential to all other candidates for the particular office."
Thus, if CBS runs an ad for one candidate, they must offer the same time to other candidates. I don't know how this would affect running a purely "anti-candidate" ad which positively endorses no specific candidate. But it might give rise to the right of the "anti-candidate" to give a rebuttal.
1) "Reasonably anticipate being hailed into the forum state"
2) "Purposefully avail" themselves of the forum state's laws
3) Have "minimum contacts" with the forum state
Without this, suing them in state court would violate their due process rights. Yes, even spammers have rights ...
However, you are not wrong, in that because this is an issue of interstate commerce, the US congress may preempt the states' regulation of spam. I am wondering the same thing here in California, because the new federal anti-spam law may preempt the new state anti-spam law which will become effective 1/1/04.
But preemption is not automatic. For example, there is both a Federal and California state law against junk faxes and telemarketing calls that don't begin with a natural human voice. A person could elect to sue under either state or federal law or both.
It may not say the word "privacy" in the Constitution, but if the Supreme Court finds a right there anyway, it might as well say it...
For some reason, that little pop-ups blocked counter gives me such satisfaction...
That's called a gas tax, which is pretty much a precise usage fee, wouldn't you say?
And it already comprises almost half of the price of a gallon of gas here in Cali.
And, since IAL, my attorney's fees will be substantially lower.
The plural of "radius" is "radii" - why would you think it was "radiii"?
The difficulty lies in the fact that a cable operator - like a telephone operator and unlike the UPS analogy given above - is a "natural monopoly." That means it would be unnecessary and burdensome on the public to have five different companies laying cable to your wall. How, then, to create competition in market governed naturally by a monopoly? The way it has been done in the telephone market is to give incentives to the RBOCs to open their network for competitors to "piggy back" on. Their reward is that once they have met certain criteria in opening their own networks for competitors to use, the RBOCs are allowed to enter the inter-LATA (long distance) market and even the intra-LATA markets in other regions. I am not sure of the technical issues, but this might be a way of introducing competition to the cable modem market as well.
Cocky after one year of surfing? Keep surfing, it won't be long until mother ocean humbles you.
No need to put the engine on the board. Towing is all you need to surf the biggest, gnarliest waves on the planet.
It is time like this that the liberals will be grateful for Scalia and Thomas. {Link goes to Scalia's opinion in Kyllo v. US.)
Generally, actions brought in federal court must be brought in the state where the defendant resides or where the cause of action arose. So although technical, it is a legitimate defense.