You're right that non-PhDs can certainly do PhD-level work from time to time. But how do the rest of us know whether to trust the work without expert-level knowledge ourselves? Allowing us to know who to trust to make technical claims is part of the function of the academic degree as a social institution. Peer-review serves a similar purpose. So, yes, I think lay people generally should ignore the contributions of people without "credentials" until someone with credentials can give it their seal of approval (note that this does not mean I think that non-credentialed researchers should be ignored by the credentialed, only by laypeople), not because they are sure to be worthless, but because most of us just have no tools with which to evaluate the work other then just looking to the letters behind the author's name. Sad but true.
So, I agree with your criticism of his implied claim that non-credentialed scientists can never contribute to advanced fields. But I think the thrust of his article (and, even, of the quote you selected) is quite correct.
That may be, but I'm guessing that you'd still rather the elected legislature (whether you see them as responsive or not) make these sorts of laws than the judiciary. Would you have really been happier if the courts had said "this is really an issue for the legislature but we don't trust them so we're going to make up new laws from the bench"?
That holding would be either instantly struck down by a higher court, or would mean the end of representative democracy in the US.
Right, of course the key fact that Ars ignores is that the defenses that the court says it would have been receptive to were incompatible with the actual facts of the case.
The court's thoughts here are what's called "dicta" (as opposed to the "holding"). While a holding is binding precedent, dicta is merely "persuasive". So, if a space shifting case were to come before another court in the same jurisdiction, they would feel some pressure to comport with this court's way of thinking, but could ultimately decide to ignore it of they disagreed.
IANAL; I suspect the parent isn't a lawyer either.
Try again...
I'm not sure what your point is. If it's that courts do enforce penalty clauses, then perhaps yo should read the first sentence of the page you linked to:
Penal damages... are invalid under the common law.
Oh, and "I don't know, I didn't read the terms" is not a valid answer to the question. If you don't know, find out. If you don't know and the answer is "yes, it did", then you're failure to know is your own fault.
This is true. But there is another avenue worth pursuing: even when parties explicitly stipulate what the remedy for a breach of contract is within the contract itself, courts can be persuaded to review it to make sure that the remedy is a reasonable one given the damage caused by the breach. If not, it might be deemed a "penalty clause" which courts do not like to enforce.
So, part of the inquiry will probably be: is being banned from the XBL network a remedy that is appropriately tailored to remedy the damages caused by the breach? Maybe the answer will be "yes" if it can be shown that most modded XBoxes are used to cheat and that kicking cheaters off is a reasonable remedy.
But a court might also be persuaded to look more closely; typically, they will require that the remedy be tailored to the degree of breach. So the fact that modding for innocent reasons is not distinguished from cheating/piracy might be grounds for no enforcement of the provision.
Judicial scrutiny will be all the more strict because they're looking at an EULA (or, generally, contracts of adhesion) than when the terms were actually bargained over.
No. This is ridiculous. I understand the argument that it is foolish to live below sea level. In principle, I agree. But the reason that people lived there in this case is that the government made it possible end encouraged it through the construction of levees. But meanwhile, even as people are moving in and setting up their lives, the Corps of Engineers is digging this canal and then, later, failing to do what is needed to prevent it from becoming a hazard to the residents. We all know what happens next.
I'm all for a measure of personal responsibility, but in this case people were only living there because the government built levees and said they would hold. The government wanted people to live there, encouraged its development, all while putting them in danger by building this shoddy canal. That, my friends, is what you call negligence.
I'm going to demand a citation here too, I'm afraid, because I think this is false (though oft-repeated). I have now been through two liberal arts programs at three different public liberal-arts colleges without detecting a hint of this pervasive relativism that people talk about. If anything, my experience is that there is an intense backlash against it. (Which I suppose might indicate that there used to be a strong relativist vein in the academy which has now lost a lot of influence.)
In fact, I took a course once called "Special Topics in Ethics: Moral Relativism" which was essentially a semester of nothing but relativist bashing.
I would really like to see legal reforms that create new "specialist" branches of experts who exist only to explain the significance of particular areas to the court without actually taking sides in cases (e.g. Technology, Science, High-End Accounting, etc).
This sounds a lot like the expert witness system we have now. (They're not neutral, but both sides get to use them). The problem is that a lawyer still has to know that an expert is needed.
And, yes, it's too bad if the prosecution here did not think to ask the obvious questions you raise. (But remember, the defense doesn't have to prove that he didn't use a proxy, etc. The burden of proof is on the prosecution to show that he did.) But fear not, a new generation of lawyers is coming up through the law schools as we speak that is much more fluent in these issues. Take my word for it, I'm one of 'em.
Because the transaction is not complete until you accept the license. The exchange is actually structured so that you get to use the product in exchange for money and acceptance of the terms (which you usually manifest by using the software, breaking the seal, etc.). That your acceptance comes in two stages chronologically doesn't matter. You are put on notice that this is the structure by the mere indication that there are more terms on the outside of the box.
You'd be surprised how many interesting ways there are to "sign" a contract. (And isn't that the way it should be? If I offer to give you $100 if you walk across the Brooklyn bridge, shouldn't you be able accept that offer just by walking across? The law will enforce this contract as well.) Actual signing of a name only happens in the formation of a small minority of the contracts in the world.
Shentino is right; as far as the shrinkwrap issue goes, that contract would be fine. That's why we also have rules against unconscionable provisions.
OK, I happily grant that a stuck key is a major issue. But giving her a new MacBook Pro as compensation for the Apple repair department's failure to fix the key is phenomenal customer service any way you slice it.
Let us know what happens next time you have a stuck key on your Dell (or whatever). I'll bet they will not give you a new Adamo.
Call me a fanboy if you want, but you might be interested to know that I just bought my first Mac (literally) four days ago. So, either I can't be a fanboy, or you must concede that Apple is doing something right if they've already made a fanboy out of me.
I likewise appreciate your civility. (Conceding a point is certainly a lost art around here!) I really do mean it when I say (as I've said elsewhere) that your English is very excellent. I know that you aren't seeking my stamp of approval on your English skills, but I want to make clear that I don't mean to criticize your English-speaking ability generally. And you are certainly not the first person I've met who found the "American" usage of the word "American" irritating. In fact, Americans who learn Spanish are always taught to take pains to always call the US "Los Estados Unidos" instead of "America" in order to avoid offending the locals (and they will get offended).
I'm sure your English is excellent; I don't mean to suggest otherwise. But remember, the point we are debating is not an obscure one to a native speaker of english (particularly in the US); nobody, virtually regardless of education, would use the word "America" the way you do.
That's really all there is to say. But, since you seem to believe that your English is also better than mine, I should point out, for the sake of emphasizing my own credibility, that I am not an "average" native English speaker. I am, rather, a law student at a top-ten American law school. That may not say a lot about my competence in a lot of areas (physics, for example) but it does say quite a bit about my mastery of the English language.
The "who"/"whom" distinction, by the way, is one a lot of people get wrong including, I'm sure, myself from time to time. Fortunately, it is so rarely used (certainly in the US and, I think, the UK as well) that it usually sounds stranger to a native speaker when someone gets it right than when someone gets it wrong; for the vast majority of situations it is unnecessarily formal. (In fact, I can't think of a single situation when it would be desirable to use it; even in a courtroom it would probably just sound pretentious.)
I know you probably won't believe me, but I feel I should give you a friendly warning: to any native speaker of English, particularly of US English, you are badly and obviously mistaken. Take it from someone who not only is quite well educated in the english language formally, but who is a native speaker of English who has lived his life surrounded by other native speakers. Your mistake is understandable since english is not your first language, but please, consider yourself corrected.
I want to reiterate that I agree with what you've said about the possibly ugly origins of the usage of the word. But that doesn't change the fact that, to a native English speaker, your views on the meaning of the word "America" are, at best, very revisionary. Worse, using the word "America" in the way you prefer in a conversation with a native speaker will certainly lead to systematic confusion (much like the confusion that sparked this very conversation).
Yes, insofar as it fails to capture actual usage. Though I would point out that what I claim to be the most common usage is indeed listed as #3. My only quarrel with the entry is in its ordering.
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You're right that non-PhDs can certainly do PhD-level work from time to time. But how do the rest of us know whether to trust the work without expert-level knowledge ourselves? Allowing us to know who to trust to make technical claims is part of the function of the academic degree as a social institution. Peer-review serves a similar purpose. So, yes, I think lay people generally should ignore the contributions of people without "credentials" until someone with credentials can give it their seal of approval (note that this does not mean I think that non-credentialed researchers should be ignored by the credentialed, only by laypeople), not because they are sure to be worthless, but because most of us just have no tools with which to evaluate the work other then just looking to the letters behind the author's name. Sad but true.
So, I agree with your criticism of his implied claim that non-credentialed scientists can never contribute to advanced fields. But I think the thrust of his article (and, even, of the quote you selected) is quite correct.
Right. And, usually, when it does happen it is widely criticized.
That may be, but I'm guessing that you'd still rather the elected legislature (whether you see them as responsive or not) make these sorts of laws than the judiciary. Would you have really been happier if the courts had said "this is really an issue for the legislature but we don't trust them so we're going to make up new laws from the bench"?
That holding would be either instantly struck down by a higher court, or would mean the end of representative democracy in the US.
Right, of course the key fact that Ars ignores is that the defenses that the court says it would have been receptive to were incompatible with the actual facts of the case.
The court's thoughts here are what's called "dicta" (as opposed to the "holding"). While a holding is binding precedent, dicta is merely "persuasive". So, if a space shifting case were to come before another court in the same jurisdiction, they would feel some pressure to comport with this court's way of thinking, but could ultimately decide to ignore it of they disagreed.
Because his knowledge and impressions of Eufloria are not dependent on his knowledge of the Civ franchise?
IANAL; I suspect the parent isn't a lawyer either.
Try again...
I'm not sure what your point is. If it's that courts do enforce penalty clauses, then perhaps yo should read the first sentence of the page you linked to:
Penal damages ... are invalid under the common law.
Oh, and "I don't know, I didn't read the terms" is not a valid answer to the question. If you don't know, find out. If you don't know and the answer is "yes, it did", then you're failure to know is your own fault.
This is true. But there is another avenue worth pursuing: even when parties explicitly stipulate what the remedy for a breach of contract is within the contract itself, courts can be persuaded to review it to make sure that the remedy is a reasonable one given the damage caused by the breach. If not, it might be deemed a "penalty clause" which courts do not like to enforce.
So, part of the inquiry will probably be: is being banned from the XBL network a remedy that is appropriately tailored to remedy the damages caused by the breach? Maybe the answer will be "yes" if it can be shown that most modded XBoxes are used to cheat and that kicking cheaters off is a reasonable remedy.
But a court might also be persuaded to look more closely; typically, they will require that the remedy be tailored to the degree of breach. So the fact that modding for innocent reasons is not distinguished from cheating/piracy might be grounds for no enforcement of the provision.
Judicial scrutiny will be all the more strict because they're looking at an EULA (or, generally, contracts of adhesion) than when the terms were actually bargained over.
No. This is ridiculous. I understand the argument that it is foolish to live below sea level. In principle, I agree. But the reason that people lived there in this case is that the government made it possible end encouraged it through the construction of levees. But meanwhile, even as people are moving in and setting up their lives, the Corps of Engineers is digging this canal and then, later, failing to do what is needed to prevent it from becoming a hazard to the residents. We all know what happens next.
I'm all for a measure of personal responsibility, but in this case people were only living there because the government built levees and said they would hold. The government wanted people to live there, encouraged its development, all while putting them in danger by building this shoddy canal. That, my friends, is what you call negligence.
LOL.
James Madison University, The University of Virginia, and The University of Michigan.
I'm going to demand a citation here too, I'm afraid, because I think this is false (though oft-repeated). I have now been through two liberal arts programs at three different public liberal-arts colleges without detecting a hint of this pervasive relativism that people talk about. If anything, my experience is that there is an intense backlash against it. (Which I suppose might indicate that there used to be a strong relativist vein in the academy which has now lost a lot of influence.)
In fact, I took a course once called "Special Topics in Ethics: Moral Relativism" which was essentially a semester of nothing but relativist bashing.
It must be so awful to be a major nuclear power and yet be so terrified of any kind of real or imagined insult.
It's actually pretty awful for the rest of us too when you think about it...
The notion that all nations and cultures have equal value...[is] nothing new with Obama.
[CITATION NEEDED]
I would really like to see legal reforms that create new "specialist" branches of experts who exist only to explain the significance of particular areas to the court without actually taking sides in cases (e.g. Technology, Science, High-End Accounting, etc).
This sounds a lot like the expert witness system we have now. (They're not neutral, but both sides get to use them). The problem is that a lawyer still has to know that an expert is needed.
And, yes, it's too bad if the prosecution here did not think to ask the obvious questions you raise. (But remember, the defense doesn't have to prove that he didn't use a proxy, etc. The burden of proof is on the prosecution to show that he did.) But fear not, a new generation of lawyers is coming up through the law schools as we speak that is much more fluent in these issues. Take my word for it, I'm one of 'em.
It only counts as prior art if they come up with an implementation. Just having an idea is not enough.
It doesn't kick in until next week.
I think there's some variation; I've always preferred "stopped watch" myself.
Because the transaction is not complete until you accept the license. The exchange is actually structured so that you get to use the product in exchange for money and acceptance of the terms (which you usually manifest by using the software, breaking the seal, etc.). That your acceptance comes in two stages chronologically doesn't matter. You are put on notice that this is the structure by the mere indication that there are more terms on the outside of the box.
You'd be surprised how many interesting ways there are to "sign" a contract. (And isn't that the way it should be? If I offer to give you $100 if you walk across the Brooklyn bridge, shouldn't you be able accept that offer just by walking across? The law will enforce this contract as well.) Actual signing of a name only happens in the formation of a small minority of the contracts in the world.
Shentino is right; as far as the shrinkwrap issue goes, that contract would be fine. That's why we also have rules against unconscionable provisions.
Sorry. Posted as AC by mistake.
OK, I happily grant that a stuck key is a major issue. But giving her a new MacBook Pro as compensation for the Apple repair department's failure to fix the key is phenomenal customer service any way you slice it.
Let us know what happens next time you have a stuck key on your Dell (or whatever). I'll bet they will not give you a new Adamo.
Call me a fanboy if you want, but you might be interested to know that I just bought my first Mac (literally) four days ago. So, either I can't be a fanboy, or you must concede that Apple is doing something right if they've already made a fanboy out of me.
I likewise appreciate your civility. (Conceding a point is certainly a lost art around here!) I really do mean it when I say (as I've said elsewhere) that your English is very excellent. I know that you aren't seeking my stamp of approval on your English skills, but I want to make clear that I don't mean to criticize your English-speaking ability generally. And you are certainly not the first person I've met who found the "American" usage of the word "American" irritating. In fact, Americans who learn Spanish are always taught to take pains to always call the US "Los Estados Unidos" instead of "America" in order to avoid offending the locals (and they will get offended).
I'm sure your English is excellent; I don't mean to suggest otherwise. But remember, the point we are debating is not an obscure one to a native speaker of english (particularly in the US); nobody, virtually regardless of education, would use the word "America" the way you do.
That's really all there is to say. But, since you seem to believe that your English is also better than mine, I should point out, for the sake of emphasizing my own credibility, that I am not an "average" native English speaker. I am, rather, a law student at a top-ten American law school. That may not say a lot about my competence in a lot of areas (physics, for example) but it does say quite a bit about my mastery of the English language.
The "who"/"whom" distinction, by the way, is one a lot of people get wrong including, I'm sure, myself from time to time. Fortunately, it is so rarely used (certainly in the US and, I think, the UK as well) that it usually sounds stranger to a native speaker when someone gets it right than when someone gets it wrong; for the vast majority of situations it is unnecessarily formal. (In fact, I can't think of a single situation when it would be desirable to use it; even in a courtroom it would probably just sound pretentious.)
I know you probably won't believe me, but I feel I should give you a friendly warning: to any native speaker of English, particularly of US English, you are badly and obviously mistaken. Take it from someone who not only is quite well educated in the english language formally, but who is a native speaker of English who has lived his life surrounded by other native speakers. Your mistake is understandable since english is not your first language, but please, consider yourself corrected.
I want to reiterate that I agree with what you've said about the possibly ugly origins of the usage of the word. But that doesn't change the fact that, to a native English speaker, your views on the meaning of the word "America" are, at best, very revisionary. Worse, using the word "America" in the way you prefer in a conversation with a native speaker will certainly lead to systematic confusion (much like the confusion that sparked this very conversation).
Yes, insofar as it fails to capture actual usage. Though I would point out that what I claim to be the most common usage is indeed listed as #3. My only quarrel with the entry is in its ordering.