Isn't punishment prescribed by law (punitive damages) a matter of the state even when pursued? It would seem that enforcement of the punitive damages would be a prosecution by proxy and have to include the hand of the state.
The BFI, INC. V. KELCO DISPOSAL, INC., 492 U. S. 257 (1989) shouldn't stand the light of day when congress is assigning punitive damages. What the court rules was ignoring that. When the government assigns a punishment (punitive damages) with an intent, they become an active participant in the case and the 8th should then apply.
In the BFI case, they only considered if it was criminal or civil in suit and found that the 8th applies to government actions. The term Punitive implies punishment which should require a criminal due process in order to apply it. The court found that BFI raised no relevant objection to the charge on punitive damages in it's trial.
Now, just to show I'm not a crack pot, here is the section 1a of the sylibus you linked to.
" The primary concern which drove the Framers of the Eighth Amendment was the potential for governmental abuse of "prosecutorial" power, not concern with the extent or purposes of civil damages. Nothing in English history suggests that the Excessive Fines Clause of the English Bill of Rights of 1689, the direct ancestor of the Eighth Amendment, was intended to apply to damages awarded in disputes between private parties. Pp. 492 U. S. 264-268."
Civil cases are about making wrongs right and the damaged whole again. when the government assigns punitive punishment by law, they are prosecuting by proxy to avoid abuses of the public. This is because the punitive nature goes beyond awards to make the damaged whole again.
Anyways, the argument is just that, but I believe it to be sound and should hold up and be consistent with the BFI case because the application of the law went beyond compensation and awards to direct punishment which the government does have a direct intention in if by prosecution by proxy. This is evident with the Justice department weighing in on the Thomas case, if they didn't have a concern, it wouldn't have happened. It's prosecution by proxy and follows beside the BFI aspect.
The two are not directly comparable. Downloading the music is not what she was sued over and is not a violation of copyright law. Copying and distributing it is which is what she went on trial for.
A more apt comparison would be her making CDs and selling them on the street corner instead of shoplifting.
It's worse then you think. Copyright laws and terms have been dictated by international treaties since the mid 1970's. Sure, we negotiated those treaties but it's a world wide effort. Even the DMCA is a combination of two WIPO treaties.
No, a copyright is the exclusive right. If Alice took the right from Bob, it would mean that Alice could use the law to prohibit Bob from doing various things with the work. It is obvious, though, that if Alice unlawfully makes a copy of a sound recording Bob has the copyright to, that Bob can still do as he pleases with the sound recording, license it to others, etc.
I think you are missing the forest for the trees and the stream that runs through it. The exclusive right in copyright is controlling the copying and distribution of a copyrighted work. If Alice is making unauthorized and illegal (the two are not automatically applicable) copies of the work, does Bob still have the exclusive control over copying and distribution? The fact that he still can is irrelevant because his exclusive control is gone when someone else takes it for their own benefit (whatever that may be).
So the right isn't stolen. Rather, the right is infringed upon, rather like if Alice trespassed onto Bob's land (which violates Bob's right to exclude others, but doesn't impact ownership), or if the government unconstitutionally censored Alice.
Infringement is a past tense of stolen. It follows the lines of conversion theft and is in the same legal construct as theft. In conversion, you are not necessarily deprived of your usage either.
It is hard to imagine a way in which a copyright could be stolen. I suppose it might be possible via fraud, but in normal everyday life it just doesn't happen. Copyrights are infringed upon a great deal, but it just isn't the same.
It is the same from a legal perspective. That's what we need to focus on here.
The desire for accuracy when describing these issues is probably why the law itself refers to it as infringement, and not as theft, and why attempts to use anti-larceny statutes against copyright infringers have fallen flat at the highest levels.
I agree that is probably why larceny has failed, however, conversion holds true.
I think you don't know what I know. The comment was a bashing on the mods who modded you down, not an attack on you.
The zealots say the science is settled, that it's a fact and undeniable, the article says this discovery paves the way to understanding how the sun affects Earth and its atmosphere, You comment joked about their attempts to ban everything that's detrimental to the earth as they know it (or at least that's how it is perceived), that is why you were modded Flamebait.
The point I was making is that given all the relevant data, you comment intruded on their religion and it seems to be one of the only ones accepted here so you were modded down for making an obvious joke.
SO when you take a copyrighted work and distributed it without the copyright owners consent, the legal right to exclusively control the copying and distribution of that work is still in tact and functioning? Nothing has been taken away?
Read that carefully, exclusively is what the law says and it does not mean more people then the copyright owners.
A library is a legally recognized institution that loans- not gives content away. Get a P2P network recognized the same way, and the same rules would apply.
In fact, that might be a good idea to do. A digital library operated for the benefit of society would negate a lot of people's usage of P2P but there needs to be a way to control the access so there is a relative "borrow" instead of giving away of distributed works.
My own understanding is that "taking" refers to a physical objects, and as such, abstract things like ideas, designs and exclusivity do not apply.
Actually, no, this is a wrong understanding derived from the misconception of taking something from another. If I stop you from owning a gun or voting or participating in speech, I took your rights. Depending on how I did that, I could be stealing but theft is a matter of legal construct and is not entirely obvious to conventional perception without the legal construct being in place. There is a term called theft of services and another Criminal_conversion that resolves to taking the ability to use something from someone, even if they weren't going to. This also covered physical and intangible property like legally constructed rights as in copyright.
No, it isn't. You still haven't lost the ability to do your own manufacturing.
Her is your confusion showing through again. The right is not to do my own manufacturing, it's to exclusively control the copying and distribution of the materials. Whether I can still do it or not is irrelevant as I have the ability to limit you from doing the same.
The only situation where I might agree something was taken from you is if I really managed to take the ability to manufacture it away from you, for instance by somehow fraudulently getting the copyright transferred to me, not only making me able to manufacture your cell phone design, but making it illegal for you to do that at the same time.
We can all choose to remain ignorant or uninformed. It's like leading a horse to water and not being able to make him drink. Agreeing with me is not what you need to do. Understanding the legal constructs involved, how they are applied, and what that means is. Now I explained it best I can, if you still don't agree, then read the laws and case law yourself because they are legally binding despite anything either of us say.
So long my copying your cell phone's design doesn't somehow stop you from making them, I will never agree there's theft involved. It's copyright infringement.
You may not agree with the prosecution and conviction that could come later either. But it wouldn't make it disappear from reality either. It's a matter of law, not what either of us want to agree to. If you disagree, you will have to get the laws and legal constructs changed.
Should I remind us of the TARP legislation and the democrats crying about government money going to pay bonuses when is was in the legislation they passed and they are the ones who put it in the damn thing in the first place.
Being in congress is a status symbol for some. It isn't about what's done, it's about what they can claim they did. Even when they hopelessly fail like Ted Kennedy's HMOs created in the 1960's in which he is decrying as the reason for needing government health car right now. That's pretty trust worthy when they guys planning on fixing the mess is the ones who created it.
Being pro-corporate is not a bad thing. Everyone needs jobs. Being pro corporate above and beyond the health of society is. Don't be fooled into thinking the government should be anti-corporation because that will just leave you unemployed like a good bit of America is right now.
This is because congress and judiciary doesn't really follow the constitution. If they did, welfare would be gone, social security would be gone, Public health care would be a state issue as the federal government has no authority in it.
Anyways, the term excessive, just like reasonable, and many other terms of importance in the constitution has been changed over time. This is in order to get around that pesky requirement for changing the constitution. It's now a living document that means nothing if an angle can be found. It's sad but true, at least for some.
HI troll, err I mean the_macman, didn't you know that no matter how corrupt or glaringly obvious that something is wrong, you will be modded a troll because no one can insult Obama, that's only allowed for republicans.
You have to be more tactful and say their is your "hope and change". Or was it "hope for change"? and like finding a couple pennies when you want to get a soda from the machine, it's the "change that matters".
1. If President Obama's rules are being applied, the six or more ex-RIAA attorneys were recused from dealing with this case, and had nothing to do with the brief.
Can those rules actually be followed? I mean the DOJ shouldn't be weighing in on a civil case in the first place but what would you do when you know you bosses have a certain position and they are refrained from acting for some reason outside their own? I mean you still report to them, you still rely on them for performance reviews, raises and so on to some extent. You still have to worry about the boss retaliating in some way, can you really isolate them?
You should really just read the laws on this. There are specific exemptions for libraries and legitimate archival. That sort of makes your comment uniformed at best.
The problem here is the generic take without permission equal stealing ideology we have all been taught. If you take something that doens't belong to you without permision or a right to do so, people consider that stealing.
Where this breaks down is that the copyright hold has no control over you obtaining the materials. The only control they have is over who and how or when it is distributed. This control is a construct of law so downloading is not stealing because someone gave you permission to take the object (no matter how artificial it is). Now if you are the one distributing, it is stealing because you are taking the exclusive right to control reproduction and distribution (regardless of how intangible the property is) that was granted by the legal construct.
So in one instance, there is theft, in the other there is not. But you have to remember, the copyrighted materials are not what is stolen, those are the vehicles which the legal rights are attached. What is stolen is the right to be in control to the extent the law allows. And yes, if you took my control over the copying and distribution of something, I am out that concept just like I would if you took my cell phone or TV or car.
Public and private are distinct legal concepts within concepts. The confusion here is that people are wanting to claim that because they can control admission to the event, it's private. That's probably right, it's a private event. However, in the terms of privacy it's a different standard and being a private event doesn't necessarily maintain an expectation of privacy and can be very public in those terms.
The problem here is people without proper consideration of the law or concepts of the intricacies in it. You can stand outside the event's borders and take photo graphs of anything you can see and there isn't a thing they can do about it. You can sit inside the events and take photo's of everything and there isn't a thing they can do about it unless trademarks and copyright come into play. Major League Baseball, probably one of the most arcane in regards to rules like this, can't do a damn thing about someone taking pictures of people in the stands at one of their parks. The rules for privacy when covering something in plain sight often follow the rules a cop needs for probable cause but a little less stringent for public people. This is how tabloids get away with using telephoto lenses a mile away to take pictures of celebrities on private beaches, private parties, and so on. They, just like the police, can even go to the air and see over privacy fences.
Public and private are separate in terms of admission verses privacy. Under the Current US rules concerning privacy, if I can see you and you are not inside your home (which is sort of questionable too depending on if the curtains are closed or not) then your actions become public. This is how tabloids get away with anchoring a boat of the coast of a private Island or beach and taking photos of celebrities, this is also how people can take photos of the PGA event from outside their controls and the PGA has little control over it. Even the police will not be able to do anything. Trademark and copyright might come into play but that's a case for a civil lawsuit, not criminal enforcement.
Don't confuse two very distinctly different concepts of the law.
Your comment was marked flamebait because with the article's wording "The discovery that nanoflares play an important and perhaps dominant role in coronal heating paves the way to understanding how the sun affects Earth and its atmosphere" along with your mocking the global warming zealots attempts of banning all things that don't fit their world hit too close to home.
The science is settled BTW, we already know all there is to know about how the sun warms the Earth and what causes global warming. Any information contrary to what is currently known and pushing the agenda is psudosciense and any semi-intelligent comment will be modded down by the Global Warming trolls. This is slashdot, what do you expect when science rules only when it agrees with their point of view.
Oh... Sorry, I mistook your statement as one of those "Clinton did it" from when people started berating Bush's actions. Of course to Bush's defense on those, the courts never considered them unconstitutional and in some cases (executive privilege) rules in the administrations favor.
Yep, and when the supreme court got involved, he was shot down bigger then shit when he actually did it.
But two wrongs don't make a right does it? Or if one president ignores the constitution, is it open game for all the others after him? I would really hate to think that it's open season and anything goes now. Kind of gives the "rule of law" no rules wouldn't it?
Misinformation is the best compromised information. It wouldn't take long to see that something was compromised, especially if they were monitoring access well enough to know it happened. Issuing new orders in the field and changing battle plans is something the military is relatively good at. Compromised information may actually be an objective here.
Also, an objective could be a new types of field reediness evaluation. I can't imagine this not being followed up with strict access controls and knowing who is posting changes, perhaps deliberate changes, could effectivly evaluate the quality of training and point to any particular trouble spots before a combat situation ensues. Imagine a platoon looking at obviously wrong information several months after training but also several months before a combat rotation. You would know where and what to fine tune in addition to normal mission preparedness. A lot of potential issues or problems could be addresses before they happen.
No, I am implying that if there is a moral code, it should be universal otherwise someone will always find the exception that leaves you out. You cannot justify racism in one extend and claim it is wrong in another. Prejudice is either wrong or it isn't, there is no grey area when race and a few other things are concerned.
Slashdot Mirror
Isn't punishment prescribed by law (punitive damages) a matter of the state even when pursued? It would seem that enforcement of the punitive damages would be a prosecution by proxy and have to include the hand of the state.
The BFI, INC. V. KELCO DISPOSAL, INC., 492 U. S. 257 (1989) shouldn't stand the light of day when congress is assigning punitive damages. What the court rules was ignoring that. When the government assigns a punishment (punitive damages) with an intent, they become an active participant in the case and the 8th should then apply.
In the BFI case, they only considered if it was criminal or civil in suit and found that the 8th applies to government actions. The term Punitive implies punishment which should require a criminal due process in order to apply it. The court found that BFI raised no relevant objection to the charge on punitive damages in it's trial.
Now, just to show I'm not a crack pot, here is the section 1a of the sylibus you linked to.
" The primary concern which drove the Framers of the Eighth Amendment was the potential for governmental abuse of "prosecutorial" power, not concern with the extent or purposes of civil damages. Nothing in English history suggests that the Excessive Fines Clause of the English Bill of Rights of 1689, the direct ancestor of the Eighth Amendment, was intended to apply to damages awarded in disputes between private parties. Pp. 492 U. S. 264-268."
Civil cases are about making wrongs right and the damaged whole again. when the government assigns punitive punishment by law, they are prosecuting by proxy to avoid abuses of the public. This is because the punitive nature goes beyond awards to make the damaged whole again.
Anyways, the argument is just that, but I believe it to be sound and should hold up and be consistent with the BFI case because the application of the law went beyond compensation and awards to direct punishment which the government does have a direct intention in if by prosecution by proxy. This is evident with the Justice department weighing in on the Thomas case, if they didn't have a concern, it wouldn't have happened. It's prosecution by proxy and follows beside the BFI aspect.
The two are not directly comparable. Downloading the music is not what she was sued over and is not a violation of copyright law. Copying and distributing it is which is what she went on trial for.
A more apt comparison would be her making CDs and selling them on the street corner instead of shoplifting.
It's worse then you think. Copyright laws and terms have been dictated by international treaties since the mid 1970's. Sure, we negotiated those treaties but it's a world wide effort. Even the DMCA is a combination of two WIPO treaties.
I think you are missing the forest for the trees and the stream that runs through it. The exclusive right in copyright is controlling the copying and distribution of a copyrighted work. If Alice is making unauthorized and illegal (the two are not automatically applicable) copies of the work, does Bob still have the exclusive control over copying and distribution? The fact that he still can is irrelevant because his exclusive control is gone when someone else takes it for their own benefit (whatever that may be).
Infringement is a past tense of stolen. It follows the lines of conversion theft and is in the same legal construct as theft. In conversion, you are not necessarily deprived of your usage either.
It is the same from a legal perspective. That's what we need to focus on here.
I agree that is probably why larceny has failed, however, conversion holds true.
I think you don't know what I know. The comment was a bashing on the mods who modded you down, not an attack on you.
The zealots say the science is settled, that it's a fact and undeniable, the article says this discovery paves the way to understanding how the sun affects Earth and its atmosphere, You comment joked about their attempts to ban everything that's detrimental to the earth as they know it (or at least that's how it is perceived), that is why you were modded Flamebait.
The point I was making is that given all the relevant data, you comment intruded on their religion and it seems to be one of the only ones accepted here so you were modded down for making an obvious joke.
Wow, a troll mod for pointing out the law and what is says. This is why I love slashdot, the mod point go to push opinions and not facts.
For those of us who do understand words, your link does not coincide with current law.
SO when you take a copyrighted work and distributed it without the copyright owners consent, the legal right to exclusively control the copying and distribution of that work is still in tact and functioning? Nothing has been taken away?
Read that carefully, exclusively is what the law says and it does not mean more people then the copyright owners.
A library is a legally recognized institution that loans- not gives content away. Get a P2P network recognized the same way, and the same rules would apply.
In fact, that might be a good idea to do. A digital library operated for the benefit of society would negate a lot of people's usage of P2P but there needs to be a way to control the access so there is a relative "borrow" instead of giving away of distributed works.
Actually, no, this is a wrong understanding derived from the misconception of taking something from another. If I stop you from owning a gun or voting or participating in speech, I took your rights. Depending on how I did that, I could be stealing but theft is a matter of legal construct and is not entirely obvious to conventional perception without the legal construct being in place. There is a term called theft of services and another Criminal_conversion that resolves to taking the ability to use something from someone, even if they weren't going to. This also covered physical and intangible property like legally constructed rights as in copyright.
Her is your confusion showing through again. The right is not to do my own manufacturing, it's to exclusively control the copying and distribution of the materials. Whether I can still do it or not is irrelevant as I have the ability to limit you from doing the same.
We can all choose to remain ignorant or uninformed. It's like leading a horse to water and not being able to make him drink. Agreeing with me is not what you need to do. Understanding the legal constructs involved, how they are applied, and what that means is. Now I explained it best I can, if you still don't agree, then read the laws and case law yourself because they are legally binding despite anything either of us say.
You may not agree with the prosecution and conviction that could come later either. But it wouldn't make it disappear from reality either. It's a matter of law, not what either of us want to agree to. If you disagree, you will have to get the laws and legal constructs changed.
They are all complicit, especially the congress and democrats.
Should I remind us of the TARP legislation and the democrats crying about government money going to pay bonuses when is was in the legislation they passed and they are the ones who put it in the damn thing in the first place.
Being in congress is a status symbol for some. It isn't about what's done, it's about what they can claim they did. Even when they hopelessly fail like Ted Kennedy's HMOs created in the 1960's in which he is decrying as the reason for needing government health car right now. That's pretty trust worthy when they guys planning on fixing the mess is the ones who created it.
Being pro-corporate is not a bad thing. Everyone needs jobs. Being pro corporate above and beyond the health of society is. Don't be fooled into thinking the government should be anti-corporation because that will just leave you unemployed like a good bit of America is right now.
No, not really.
This is because congress and judiciary doesn't really follow the constitution. If they did, welfare would be gone, social security would be gone, Public health care would be a state issue as the federal government has no authority in it.
Anyways, the term excessive, just like reasonable, and many other terms of importance in the constitution has been changed over time. This is in order to get around that pesky requirement for changing the constitution. It's now a living document that means nothing if an angle can be found. It's sad but true, at least for some.
HI troll, err I mean the_macman, didn't you know that no matter how corrupt or glaringly obvious that something is wrong, you will be modded a troll because no one can insult Obama, that's only allowed for republicans.
You have to be more tactful and say their is your "hope and change". Or was it "hope for change"? and like finding a couple pennies when you want to get a soda from the machine, it's the "change that matters".
Can those rules actually be followed? I mean the DOJ shouldn't be weighing in on a civil case in the first place but what would you do when you know you bosses have a certain position and they are refrained from acting for some reason outside their own? I mean you still report to them, you still rely on them for performance reviews, raises and so on to some extent. You still have to worry about the boss retaliating in some way, can you really isolate them?
You should really just read the laws on this. There are specific exemptions for libraries and legitimate archival. That sort of makes your comment uniformed at best.
The problem here is the generic take without permission equal stealing ideology we have all been taught. If you take something that doens't belong to you without permision or a right to do so, people consider that stealing.
Where this breaks down is that the copyright hold has no control over you obtaining the materials. The only control they have is over who and how or when it is distributed. This control is a construct of law so downloading is not stealing because someone gave you permission to take the object (no matter how artificial it is). Now if you are the one distributing, it is stealing because you are taking the exclusive right to control reproduction and distribution (regardless of how intangible the property is) that was granted by the legal construct.
So in one instance, there is theft, in the other there is not. But you have to remember, the copyrighted materials are not what is stolen, those are the vehicles which the legal rights are attached. What is stolen is the right to be in control to the extent the law allows. And yes, if you took my control over the copying and distribution of something, I am out that concept just like I would if you took my cell phone or TV or car.
Public and private are distinct legal concepts within concepts. The confusion here is that people are wanting to claim that because they can control admission to the event, it's private. That's probably right, it's a private event. However, in the terms of privacy it's a different standard and being a private event doesn't necessarily maintain an expectation of privacy and can be very public in those terms.
The problem here is people without proper consideration of the law or concepts of the intricacies in it. You can stand outside the event's borders and take photo graphs of anything you can see and there isn't a thing they can do about it. You can sit inside the events and take photo's of everything and there isn't a thing they can do about it unless trademarks and copyright come into play. Major League Baseball, probably one of the most arcane in regards to rules like this, can't do a damn thing about someone taking pictures of people in the stands at one of their parks. The rules for privacy when covering something in plain sight often follow the rules a cop needs for probable cause but a little less stringent for public people. This is how tabloids get away with using telephoto lenses a mile away to take pictures of celebrities on private beaches, private parties, and so on. They, just like the police, can even go to the air and see over privacy fences.
Public and private are separate in terms of admission verses privacy. Under the Current US rules concerning privacy, if I can see you and you are not inside your home (which is sort of questionable too depending on if the curtains are closed or not) then your actions become public. This is how tabloids get away with anchoring a boat of the coast of a private Island or beach and taking photos of celebrities, this is also how people can take photos of the PGA event from outside their controls and the PGA has little control over it. Even the police will not be able to do anything. Trademark and copyright might come into play but that's a case for a civil lawsuit, not criminal enforcement.
Don't confuse two very distinctly different concepts of the law.
Your comment was marked flamebait because with the article's wording "The discovery that nanoflares play an important and perhaps dominant role in coronal heating paves the way to understanding how the sun affects Earth and its atmosphere" along with your mocking the global warming zealots attempts of banning all things that don't fit their world hit too close to home.
The science is settled BTW, we already know all there is to know about how the sun warms the Earth and what causes global warming. Any information contrary to what is currently known and pushing the agenda is psudosciense and any semi-intelligent comment will be modded down by the Global Warming trolls. This is slashdot, what do you expect when science rules only when it agrees with their point of view.
Oh... Sorry, I mistook your statement as one of those "Clinton did it" from when people started berating Bush's actions. Of course to Bush's defense on those, the courts never considered them unconstitutional and in some cases (executive privilege) rules in the administrations favor.
Yep, and when the supreme court got involved, he was shot down bigger then shit when he actually did it.
But two wrongs don't make a right does it? Or if one president ignores the constitution, is it open game for all the others after him? I would really hate to think that it's open season and anything goes now. Kind of gives the "rule of law" no rules wouldn't it?
Misinformation is the best compromised information. It wouldn't take long to see that something was compromised, especially if they were monitoring access well enough to know it happened. Issuing new orders in the field and changing battle plans is something the military is relatively good at. Compromised information may actually be an objective here.
Also, an objective could be a new types of field reediness evaluation. I can't imagine this not being followed up with strict access controls and knowing who is posting changes, perhaps deliberate changes, could effectivly evaluate the quality of training and point to any particular trouble spots before a combat situation ensues. Imagine a platoon looking at obviously wrong information several months after training but also several months before a combat rotation. You would know where and what to fine tune in addition to normal mission preparedness. A lot of potential issues or problems could be addresses before they happen.
No, I am implying that if there is a moral code, it should be universal otherwise someone will always find the exception that leaves you out. You cannot justify racism in one extend and claim it is wrong in another. Prejudice is either wrong or it isn't, there is no grey area when race and a few other things are concerned.