I am not a lawyer, but the opinion seems clear that the legislature -- by statute -- can provide exemptions to the general rule against non-compete clauses.
And also, because this is a California Supreme Ct decision it doesn't necessarily encompass Federal claims.
Furthermore, most states use a (common law) three part test. So don't expect this to spread into your state unless your state's legislature passes something like section 16600. Thus, there is seems like there is still the possibility for forum shopping for situations that involve multiple states...
Dock the iPhone where the trackpad would be, to lower manufacturing costs. Could use the iPhone's screen so that the trackpad would be more than just input, it would be a second display.
And they could just price blanket licensing in such a way that I would want to just pay $40 a month for convenient access to unlimited, DRM-free content.;-)
It would be amazing what the recording industry would accomplish if they would just make the honor system, a system they are stuck with, look like a compelling option. Most people are more than happy to spend money on music.
Very sorry for getting started on the wrong foot. We appear to disagree on whether the FCC was delegated the authority to do what it is doing, how much authority it has beyond that, the extent this action would fit in those boundaries. No worries.
The FCC can make law within the bounds of its enabling act. Rulemaking and orders have the force of law. The FCC can't pass a rule that forces ignorant people to actually learn about the law before they speak, but they can create an order to punish Comcast, and they can make rules regarding network neutrality. You can go read the enabling act at: http://law.onecle.com/uscode/47/151.html
If it is arrogant to point out how wrong you are, then anyone with any education must seem arrogant to you. I guess that's the "liberal elite" hate we see from Republicans. Your statements are just as annoying as someone who comes to Slashdot apparently not knowing shit about computers, but still wants to talk like they do. Do yourself a favor and stop seeing knowledge as arrogance. It's not my job to coddle your ignorance.
And in regards to whether the "real legislature does not believe that network neutrality is existing law", there again you are clueless. Go read up on Antitrust law (tying), or the policy statement in section 230 of the CDA. Congress has been quite clear, throughout its history, that preserving competition is more important than preserving competitors, and that the Internet in particular deserves preservation as a free market.
Tiered or capped bandwidth is not the problem here. Net Neutrality is the problem.
The most fundamental way to distinguish between the two is that violations of Net Neutrality will lead to tying between different relevant markets, a critical Antitrust concern.
Tiered or capped bandwidth ALREADY EXISTS at Comcast, and has been around since the days of Compuserve and timeshared systems.
AT&T in the 1980s could charge you for every minute you were on the phone, but they sure as hell couldn't tell you that you could only call their preferred pizza delivery services. I hope you can see why that matters.
I'm going to assume for the moment that you do not have a legal education. Please correct me if I'm wrong.
The FCC is -- and should be -- both an enforcement and legislative arm of the Government. This is because it is an ADMINISTRATIVE body created by CONGRESS. Congress delegated [limited] rulemaking and ordermaking power to the FCC. That's not unusual: go look at the Enabling Acts of the other administrative agencies who handle a huge chunk of the rest of the way our Government functions. The Supreme Court has upheld the Constitutionality of agencies like the FCC again and again.
Now as to whether Net Neutrality is "already law", you would need to define what you mean by "law". Court made law? Statutes? Agency rules/orders? You do see the title of this, "FCC Votes to Punish Comcast" right? Guess what -- that's the action of the law. You may think the "law" is purely statutory, but then you'd be leaving out the Constitution, administrative bodies, common law, executive orders.
But hey, it's not surprising for me to see a subject line like "The Republicans Are Correct" spouted by someone who appears to know little about the law.
Not that I agree with this, but I believe that a patent is considered property for the purposes of the 5th Amendments "Just Compensation" clause. Given that, patent holders may be able to sue the Government for "taking" the patent back.
(I am not a lawyer, and certainly not a Takings expert; just a random thought.)
The thing with the steak/restaurant analogy is that the product (the steak) isn't a platform that ties later purchases to it. Apple is effectively tying an entire market (the Mac OS application market) to its hardware. Its apples and oranges, no pun intended. (Cf. U.S. v. Microsoft)
Part of the OS is released under the BSD license. Virtually all OSX applications require non-BSD licensed libraries.
I understand it may seem counterintuitive, but the idea of US Antitrust law is to protect competition, not competitors. Protecting Apple is secondary to protecting competition. In as much as Apple is foreclosing an entire market (hardware to run Mac OS X) by its monopoly in another market (Mac OS X as an application platform), the argument could be made that competition (and thus the consumer) is being hurt.
As with most things in the law, we can only make arguments for either side and compare those argument's merits. In the end the result will probably still be baffling.
> by that logic civil contracts could never do anything that is unconstitutional
You're on the right track. The thing is that courts will refuse to enforce a contract that is indentured servitude (violates 13th Am). They will refuse to enforce a housing covenant that prohibits the resale of a home to non-African-Americans. Etc. The courts do draw a line as to where there enforcement of private law (contract) tramples constitutionally-guaranteed rights.
Contracts cannot violate the constitution in certain conditions because then the courts would be an instrument that violates the constitution. That's where I believe First Amendment, in particular when related to Fair use, should be: protected from abrogation via Contract law. I don't believe I'm alone in that assessment.
But as you point out, the courts do exactly the opposite in some cases. In my opinion, the courts should be consistent in doing nothing to deny people constitutional rights. For example, in my jurisprudence, a person would not be able to sign a private contract that allowed the Government to enforce an order violating their 4th amendment rights of search and seizure.
The argument I would make is that Apple has a monopoly in the relevant market of hardware that runs Mac OS X operating systems de jure (by virtue of copyright, trademark, patent, and trade secrets), as well as a de facto monopoly just looking at the ~100% share. By tying the market of Mac OS X operating systems (and thus the entire Mac application market) to their hardware, they seek to extend their monopoly out into a different relevant market and thus unreasonably restraint competition. But I'm not a lawyer yet, so.../grain-of-salt.
Two things: 1) fair use -- as I was pointing out -- is a Constitutional thing; statutes and private law (contracts like EULAs) should not override the Constitution, in so much as the courts are state (Fed/State) actors in enforcing them. Other EULA terms, such as telling you whether student / noncommercial, or rights to return products, etc. -- those aren't constitutional. The court, by enforcing them, doesn't override the basic compact between citizen and the Government. Fair use is the only thing that makes Copyright constitutional given the First Amendment (see Sony v. Betamax) 2) whether the software can or cannot be returned has been a factor, but not the definitive basis, of the majority of circuits that enforce shrink-wrap terms 3) The FCC's jurisdiction is an entirely different matter, and the DMV is State (not Federal) so your conclusions are not on point 4) The DMCA also cannot override fair use, as it is a statute and a statute cannot override the constitution.
But the big thing you're missing here is the antitrust issues. The Court has held that a photocopier manufacturer could not tie service of the photocopier in a particular manner, and I think the facts are analogous to this situation. Apple would be on firmer ground if they didn't sell the OS separately from the hardware, but because they want to cash in on upgrades they have perhaps gotten themselves into a bind.
(I am not a lawyer, but I have a year left of law school. This is not legal advice, just observations and opinion.)
In so much as WoW/Glider is a district court opinion, it has a nonbinding, advisory effect. If it was an appellate opinion, it's only limit to that circuit (a few states.)
Shrinkwrap licenses are not a slam dunk. They're better than browse-wrap or even click-wrap, but the circuits are split on them if I recall correctly. They may also be held invalid for being substantively and procedural unconscionable. (I would think especially so in this particular case.)
In particular, shrinkwrap licenses that purport to limit fair use are not a slam dunk. The first amendment is the fount of fair use (Sony v. Betamax) and thus of constitutional dimension. While the first amendment is only binding on government actors, the court itself is a government actor, adn therefore by enforcing a fair-use limiting contract (the EULA) the court is essential depriving fair use 1st amendment rights. That's the argument at least. I think its' the right one. We wouldn't want the court to eforce contracts to permit slavery (13th amendment), and I think limiting free speech is particularly dicey. But hey, it happens ALL THE TIME with contracts (nondisclosure for example.) I just don't think it's right for the courts to enforce it.
The biggest problem here for Apple is monopoly issues and tying, which I see Psystar counsel has wisely raised. (You can be a monopoly of a more restricted relevant market than just OSs in general..)
I think you just described "mootness", not "ripeness."
Ripeness is a prudential rule (i.e. court-created) that the court uses to basically say that not enough is understood about the pros and cons of a particular ruling for stare decisis at the appellate level.
Sometimes the court invokes Ripeness when the counsel (or facts) are judged to be not adequate for a good decision. e.g. defense counsel sucks, or the facts suck, or whatever.
I'm not saying either is the case here; it's just a dodge for the court.
I think the prudential standing rules should be unconstitutional, but given that deciding constitutionality is the courts domain, I don't see them giving this power up.
I wouldn't be surprised if the statute is found unconstitutional as void for vagueness, as it criminalizes a very vague actus reus, exceeding authorized access.
In the U.S., people are supposed to be able to know what the law is. (Accepting, for the moment, that they may need an attorney's help.) Criminalizing a terms of use violation hands off the legislation of criminal law to private parties, who may do a really crappy job of being clear of what is legal or not.
I'm not a lawyer, but I play one on TV. (R)
Perhaps they're waiting for NASA to weigh in
on
Water Ice On Mars
·
· Score: 2, Insightful
Although I agree with you in principle, I think it might be due to the anticipation of NASA's announcement, which could do away with the "according to scientists [working on the project]" caveat.
The subtext that I read under all of this is: the Gov't can frame you any time, any place, for a crime that -- merely in its charging -- will destroy the target's life. But the converse is ALSO true -- this opens the door for crime groups to frame Gov't officials (and blackmail them and citizens alike.)
Child abuse is (not surprisingly) viewed as among the most awful crimes in our society. As a parent, part of me is glad the Gov't is protecting us from predators. But the civil libertarian in me is shocked by the potential for abuse here.
Web browsers, operating systems, etc. -- they are buggy and ripe for abuse. Even the one's the Government is using. Judges, FBI agents, etc. We are ALL at risk here of abuse of this sort of sting investigation.
The people I've known involved in law enforcement and government work are good people. I have to think this just hasn't been thought through.
At the other extreme, this is a warning shot by an already criminal administration (e.g. domestic spying) to intimidate its critics.
We live in "interesting times", to quote a Chinese curse.
Slashdot Mirror
... we'll need an army of Chris Hansens and a mountain of beartraps. God help us.
Hype the headline a little more, will ya?
I am not a lawyer, but the opinion seems clear that the legislature -- by statute -- can provide exemptions to the general rule against non-compete clauses.
And also, because this is a California Supreme Ct decision it doesn't necessarily encompass Federal claims.
Furthermore, most states use a (common law) three part test. So don't expect this to spread into your state unless your state's legislature passes something like section 16600. Thus, there is seems like there is still the possibility for forum shopping for situations that involve multiple states...
Dock the iPhone where the trackpad would be, to lower manufacturing costs. Could use the iPhone's screen so that the trackpad would be more than just input, it would be a second display.
Maybe.
True.
And they could just price blanket licensing in such a way that I would want to just pay $40 a month for convenient access to unlimited, DRM-free content. ;-)
It would be amazing what the recording industry would accomplish if they would just make the honor system, a system they are stuck with, look like a compelling option. Most people are more than happy to spend money on music.
Intellectual property may be a different beast, but the fact is I made an overstatement. Thanks for pointing out the error. Sorry about that.
Very sorry for getting started on the wrong foot. We appear to disagree on whether the FCC was delegated the authority to do what it is doing, how much authority it has beyond that, the extent this action would fit in those boundaries. No worries.
The FCC can make law within the bounds of its enabling act. Rulemaking and orders have the force of law. The FCC can't pass a rule that forces ignorant people to actually learn about the law before they speak, but they can create an order to punish Comcast, and they can make rules regarding network neutrality. You can go read the enabling act at: http://law.onecle.com/uscode/47/151.html
If it is arrogant to point out how wrong you are, then anyone with any education must seem arrogant to you. I guess that's the "liberal elite" hate we see from Republicans. Your statements are just as annoying as someone who comes to Slashdot apparently not knowing shit about computers, but still wants to talk like they do. Do yourself a favor and stop seeing knowledge as arrogance. It's not my job to coddle your ignorance.
And in regards to whether the "real legislature does not believe that network neutrality is existing law", there again you are clueless. Go read up on Antitrust law (tying), or the policy statement in section 230 of the CDA. Congress has been quite clear, throughout its history, that preserving competition is more important than preserving competitors, and that the Internet in particular deserves preservation as a free market.
Tiered or capped bandwidth is not the problem here. Net Neutrality is the problem.
The most fundamental way to distinguish between the two is that violations of Net Neutrality will lead to tying between different relevant markets, a critical Antitrust concern.
Tiered or capped bandwidth ALREADY EXISTS at Comcast, and has been around since the days of Compuserve and timeshared systems.
AT&T in the 1980s could charge you for every minute you were on the phone, but they sure as hell couldn't tell you that you could only call their preferred pizza delivery services. I hope you can see why that matters.
I'm going to assume for the moment that you do not have a legal education. Please correct me if I'm wrong.
The FCC is -- and should be -- both an enforcement and legislative arm of the Government. This is because it is an ADMINISTRATIVE body created by CONGRESS. Congress delegated [limited] rulemaking and ordermaking power to the FCC. That's not unusual: go look at the Enabling Acts of the other administrative agencies who handle a huge chunk of the rest of the way our Government functions. The Supreme Court has upheld the Constitutionality of agencies like the FCC again and again.
Now as to whether Net Neutrality is "already law", you would need to define what you mean by "law". Court made law? Statutes? Agency rules/orders? You do see the title of this, "FCC Votes to Punish Comcast" right? Guess what -- that's the action of the law. You may think the "law" is purely statutory, but then you'd be leaving out the Constitution, administrative bodies, common law, executive orders.
But hey, it's not surprising for me to see a subject line like "The Republicans Are Correct" spouted by someone who appears to know little about the law.
(Law student.)
But can it run Q*bert? ???
Not that I agree with this, but I believe that a patent is considered property for the purposes of the 5th Amendments "Just Compensation" clause. Given that, patent holders may be able to sue the Government for "taking" the patent back.
(I am not a lawyer, and certainly not a Takings expert; just a random thought.)
*boggle* !
The thing with the steak/restaurant analogy is that the product (the steak) isn't a platform that ties later purchases to it. Apple is effectively tying an entire market (the Mac OS application market) to its hardware. Its apples and oranges, no pun intended. (Cf. U.S. v. Microsoft)
Part of the OS is released under the BSD license. Virtually all OSX applications require non-BSD licensed libraries.
I understand it may seem counterintuitive, but the idea of US Antitrust law is to protect competition, not competitors. Protecting Apple is secondary to protecting competition. In as much as Apple is foreclosing an entire market (hardware to run Mac OS X) by its monopoly in another market (Mac OS X as an application platform), the argument could be made that competition (and thus the consumer) is being hurt.
As with most things in the law, we can only make arguments for either side and compare those argument's merits. In the end the result will probably still be baffling.
Cheers.
(Disclaimer: I am not a lawyer, yet.)
> by that logic civil contracts could never do anything that is unconstitutional
You're on the right track. The thing is that courts will refuse to enforce a contract that is indentured servitude (violates 13th Am). They will refuse to enforce a housing covenant that prohibits the resale of a home to non-African-Americans. Etc. The courts do draw a line as to where there enforcement of private law (contract) tramples constitutionally-guaranteed rights.
Contracts cannot violate the constitution in certain conditions because then the courts would be an instrument that violates the constitution. That's where I believe First Amendment, in particular when related to Fair use, should be: protected from abrogation via Contract law. I don't believe I'm alone in that assessment.
But as you point out, the courts do exactly the opposite in some cases. In my opinion, the courts should be consistent in doing nothing to deny people constitutional rights. For example, in my jurisprudence, a person would not be able to sign a private contract that allowed the Government to enforce an order violating their 4th amendment rights of search and seizure.
(I am not a lawyer, yet.)
So it's another color/colour thing, this time in reverse.
At least us Yanks could be consistent for once, eh?
The argument I would make is that Apple has a monopoly in the relevant market of hardware that runs Mac OS X operating systems de jure (by virtue of copyright, trademark, patent, and trade secrets), as well as a de facto monopoly just looking at the ~100% share. ... /grain-of-salt.
By tying the market of Mac OS X operating systems (and thus the entire Mac application market) to their hardware, they seek to extend their monopoly out into a different relevant market and thus unreasonably restraint competition.
But I'm not a lawyer yet, so
Two things:
1) fair use -- as I was pointing out -- is a Constitutional thing; statutes and private law (contracts like EULAs) should not override the Constitution, in so much as the courts are state (Fed/State) actors in enforcing them. Other EULA terms, such as telling you whether student / noncommercial, or rights to return products, etc. -- those aren't constitutional. The court, by enforcing them, doesn't override the basic compact between citizen and the Government. Fair use is the only thing that makes Copyright constitutional given the First Amendment (see Sony v. Betamax)
2) whether the software can or cannot be returned has been a factor, but not the definitive basis, of the majority of circuits that enforce shrink-wrap terms
3) The FCC's jurisdiction is an entirely different matter, and the DMV is State (not Federal) so your conclusions are not on point
4) The DMCA also cannot override fair use, as it is a statute and a statute cannot override the constitution.
But the big thing you're missing here is the antitrust issues. The Court has held that a photocopier manufacturer could not tie service of the photocopier in a particular manner, and I think the facts are analogous to this situation. Apple would be on firmer ground if they didn't sell the OS separately from the hardware, but because they want to cash in on upgrades they have perhaps gotten themselves into a bind.
(I am not a lawyer, but I have a year left of law school. This is not legal advice, just observations and opinion.)
In so much as WoW/Glider is a district court opinion, it has a nonbinding, advisory effect. If it was an appellate opinion, it's only limit to that circuit (a few states.)
Shrinkwrap licenses are not a slam dunk. They're better than browse-wrap or even click-wrap, but the circuits are split on them if I recall correctly. They may also be held invalid for being substantively and procedural unconscionable. (I would think especially so in this particular case.)
In particular, shrinkwrap licenses that purport to limit fair use are not a slam dunk. The first amendment is the fount of fair use (Sony v. Betamax) and thus of constitutional dimension. While the first amendment is only binding on government actors, the court itself is a government actor, adn therefore by enforcing a fair-use limiting contract (the EULA) the court is essential depriving fair use 1st amendment rights. That's the argument at least. I think its' the right one. We wouldn't want the court to eforce contracts to permit slavery (13th amendment), and I think limiting free speech is particularly dicey. But hey, it happens ALL THE TIME with contracts (nondisclosure for example.) I just don't think it's right for the courts to enforce it.
The biggest problem here for Apple is monopoly issues and tying, which I see Psystar counsel has wisely raised. (You can be a monopoly of a more restricted relevant market than just OSs in general..)
Just my opinion, as a non-lawyer.
I think you just described "mootness", not "ripeness."
Ripeness is a prudential rule (i.e. court-created) that the court uses to basically say that not enough is understood about the pros and cons of a particular ruling for stare decisis at the appellate level.
Sometimes the court invokes Ripeness when the counsel (or facts) are judged to be not adequate for a good decision. e.g. defense counsel sucks, or the facts suck, or whatever.
I'm not saying either is the case here; it's just a dodge for the court.
I think the prudential standing rules should be unconstitutional, but given that deciding constitutionality is the courts domain, I don't see them giving this power up.
... how much money is generated from approving obviously inaccurate stories like this?
I'd say this is a new low for Slashdot, but I could go back a few years and probably be proven wrong.
I wouldn't be surprised if the statute is found unconstitutional as void for vagueness, as it criminalizes a very vague actus reus, exceeding authorized access.
In the U.S., people are supposed to be able to know what the law is. (Accepting, for the moment, that they may need an attorney's help.) Criminalizing a terms of use violation hands off the legislation of criminal law to private parties, who may do a really crappy job of being clear of what is legal or not.
I'm not a lawyer, but I play one on TV. (R)
Although I agree with you in principle, I think it might be due to the anticipation of NASA's announcement, which could do away with the "according to scientists [working on the project]" caveat.
The subtext that I read under all of this is: the Gov't can frame you any time, any place, for a crime that -- merely in its charging -- will destroy the target's life. But the converse is ALSO true -- this opens the door for crime groups to frame Gov't officials (and blackmail them and citizens alike.)
Child abuse is (not surprisingly) viewed as among the most awful crimes in our society. As a parent, part of me is glad the Gov't is protecting us from predators. But the civil libertarian in me is shocked by the potential for abuse here.
Web browsers, operating systems, etc. -- they are buggy and ripe for abuse. Even the one's the Government is using. Judges, FBI agents, etc. We are ALL at risk here of abuse of this sort of sting investigation.
The people I've known involved in law enforcement and government work are good people. I have to think this just hasn't been thought through.
At the other extreme, this is a warning shot by an already criminal administration (e.g. domestic spying) to intimidate its critics.
We live in "interesting times", to quote a Chinese curse.
> "Never ascribe to malice what can be explained by incompetence"
... but that saying holds little wisdom, in my opinion.
It could be incompetence in this case
There are plenty of competent, malicious criminals out there. In fact, some of them are called Politicians.