I'm not sure I understand what you're trying to say. In law, arguments are made via analogy. When writing a brief the basic format is this: in case X the court ruled Y because of facts Z. In the instant case, facts A are similar to facts Z therefore this court should rule Y because case X is controlling.
If you go into court and argue the facts with no analogy to prior cases you won't win. Even in cases of first impression you will analogize your facts to anything even remotely related.
The previous announcement smacked of legal/PR. This guy is director of incubation. I doubt they talk much. MS probably panicked and did a knee-jerk reaction and then, after some thought, decided on a different way forward.
Maybe. The DMCA specifically allows circumvention in some circumstances. The most applicable one:
"Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace"
But, you say, Steam is not a dongle so not applicable. Again, maybe. US law is not so rigid. Is Steam DRM more like a dongle or does this exception require an external physical box to plug in to the computer to be applicable? I don't see any "external physical box" language so we'd go to a consideration of factors of just what makes a dongle a dongle and its use. I won't go through the whole analysis, the point is that to meet this exception one would only have to present a case that Steam is like a dongle for the purposes of the DMCA. And if Steam goes dark due to bankruptcy and there is no way it's ever coming back, I think that would easily be met.
You are correct. Some lawyers build their careers off the ability to create a job description that no American can meet. Usually the company knows the person they want to hire and so the lawyer writes a generic sounding job description but is really targeted. There are rules against this, but hey, who's checking?
That's not the issue in this case. Ms. Menagh died three months after the fact by unrelated issues. Why would Juliet be saddled with guilt for something she didn't cause. She did cause injury to Ms. Menagh but did not cause the death.
I read an article yesterday that claimed the case against the parents was denied; however, I can't find the article and having read the actual opinion I don't see how it could even be true. Justice Wooten frames the issue as: "The sole issue before the Court is whether an infant aged four years, nine months, is non sui juris, incapable of negligence as a matter of law, under the facts presented." I retract and correct my statement about the court's decision. I presume the case against the Breitman and Kohn parents is still valid as well as against Juliet Breitman.
The judge simply ruled that four year olds are not automatically immune to civil suit for negligence. It's an arbitrary line, but there needs to be one. If not four then why five or six or seven? Children cannot be granted blanket immunity due to age so the courts have placed the threshold at four. Children that age are not treated the same as adults and proving negligence in this case will be hard.
This was not an issue of first impression, though. Justice Wooten cites plenty of cases on point and decided that this case was not substantially different enough to break precedent.
First, the US has not ratified this convention and therefore does not have to abide by it. A case could be made that the convention merely codified customary international law but the judge in this case wasn't in a position to decide that.
Second, you left out the first sentence of Article 40 which states: "Children who are accused of breaking the law. .." This is a civil case and not criminal. The child is not charged with breaking any law just with acting in a negligent manner which harmed a person. Art. 40 is a regulation on criminal trials and not civil.
You must live in Louisiana. In English Common Law you follow precedent unless you can satisfactorily distinguish the instant case from prior cases. If you use your personal "judgment" to adjudicate that is judicial activism. Judicial review of incompetent legislation is usually handled by the Supreme Court of any state unless there is an egregious violation that the court needs to correct. Legislation is not at issue here so I'm not sure why you think the judge should have done this. Judicial assessment of a merit-less suit, I'll assume you mean failure to state a claim, is a job for the trial court. This was an interlocutory appeal to decide who could be sued. The judge could only decide that issue and could not, sua sponte, decide the case should go away.
Judges do judge, but they can only adjudicate very specific issues within a very strict rule set. They cannot do whatever they want. Judge's may decide only the issue that is before them. Dismissing the case was outside the scope of his authority.
This was an intermediate court decision to decide whether or not the case can proceed against both the parents and the child. The plaintiffs did sue the parents. The judge tossed that case but let the claim against the child proceed. He effectively killed it.
And this is a civil case. You are found liable, not guilty, and there is never any jail time only monetary compensation.
Previous rulings have held that there is a sliding scale of responsibility between 4 and, I believe, 12. At four a child is presumed to not be capable of fully understanding their actions so it is on the plaintiff to prove that this particular four year old did understand. A very tough task indeed. At 12, the burden is on the defense to prove that this particular child could not understand his/her actions.
The big decision in this case was that the parents cannot be sued. Now the plaintiff is going to have to prove that a four year old on her training wheeled bike, racing another child, was cognizant of the ramifications of her actions of riding on the sidewalk. Good luck with that.
Correct. The term you are looking for is jus cogens. International law is usually laterally oriented with nobody above anyone else, even the UN, but war crimes, piracy, genocide, and torture are acts that every nation has an erga omnes obligation to follow. Being victorious allows you to defend your actions, but does not grant immunity due to sovereignty. Unfortunately, nobody ever actually holds anyone accountable for these things.
That doesn't necessarily mean that companies will compete. All they need do is not invade each others territory. They can then strangle, over charge, and under serve their market while reaping in huge profit. Sherman Act anti-trust problem, you say? Good luck damn near proving your case at the pleading stage. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
This court decided the case using the Lanham Act which is the law plaintiff chose. If a name is now a "commercial interest" it isn't defined that way by the Lanham Act. Use a different law if you want to sue. The court can only rule on the evidence presented and the law plaintiff invokes. The court does not state that there is no "commercial interest" in their name, just that plaintiff has no "commercial interest" in her name as defined by the Lanham Act. Again, plaintiff chose the Lanham Act. The court did not rule on this case after invoking the Lanham Act sua sponte.
A "commercial interest" is not just whatever someone thinks it is. To maintain an action under the Lanham Act you must meet the definition of a "commercial interest" as used/implied by the Act. The court tells you what that means in the opinion.
Stayart’s argument hinges on the claim that by virtue of her extensive activities, her name has commercial value. These include: humanitarian efforts on behalf of baby seals, wolves and wild horses; what she describes as “scholarly posts” on a website; two poems that appear on a Danish website; and genealogy research. To determine whether a person or entity has standing under 43(a), we look at whether they have “a reasonable interest to protect” in a commercial activity. Dovenmuehle, 871 F.2d at 700; accord Stanfield v. Osborne Ind., Inc., 52 F.3d 867, 873 (10th Cir. 1995). Indeed, standing to assert a 43 claim is limited to a “purely commercial class of plaintiffs.” Berni v. Int. Gourmet Rest. of Am., 838 F.2d 642, 648 (2d Cir. 1988) (quotation omitted). While Stayart’s goals may be passionate and well-intentioned, they are not commercial. And the good name that a person garners in such altruistic feats is not what 43 of the Lanham Act protects: it “is a private remedy for a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor.” Made in the USA Found., 365 F. 3d at 281 (quotation and brackets omitted). We addressed a similar scenario in Dovenmuehle where we held that, under the Lanham Act, relatives who had no commercial interest in their family name did not have a reasonable interest to protect in the trade name “Dovenmuehle, Inc.,” and thus lacked standing to sue. Dovenmuehle, 871 F.3d at 700.
Court opinions are not black boxes. If you want to know why the Judge decided a certain way then read the opinion. It will tell you everything you need to know about that very specific case. If you want to know about "but what ifs" you'll have to look at other cases or look to dicta. Courts don't go on long tangents of hypotheticals.
Ok, dolts, here it is. "God does not play dice." Einstein. Therefore QM is not dice, or in other word chance. Scientists believe everything is odds, probabilities, in other word chance. QED a scientist, therefore atheist, must reject QM, Einstein, the guy hit in the head with the apple, Galleo, and Mel Brooks.
I'm sure you didn't understand that because it's very high brow. So here's a story that isn't a low brow car analogy (but does include a race car vroom vroom).
"It's just like the story of the grasshopper and the octopus. All year long the grasshopper kept burying acorns for winter while the octopus mooched off his girlfriend and watched TV. Then the winter came, and the grasshopper died, and the octopus ate all his acorns and also he got a race car. Is any of this getting through to you?"
So, um, well I guess that clears everything up. That's why you should always wear briefs, not boxers, when visiting Mongolia.
I prefer, "a game show format contest would be in order."
1. The Discovery Channel and it's affiliate channels MUST have daily television programs at prime time slots based on Daniel Quinn's "My Ishmael" pages 207-212 where solutions to save the planet would be done in the same way as the Industrial Revolution was done, by people building on each other's inventive ideas. Focus must be given on how people can live WITHOUT giving birth to more filthy human children since those new additions continue pollution and are pollution. A game show format contest would be in order.
This guy missed his calling. He should have been an internet meme generator.
Slashdot Mirror
I'm not sure I understand what you're trying to say. In law, arguments are made via analogy. When writing a brief the basic format is this: in case X the court ruled Y because of facts Z. In the instant case, facts A are similar to facts Z therefore this court should rule Y because case X is controlling.
If you go into court and argue the facts with no analogy to prior cases you won't win. Even in cases of first impression you will analogize your facts to anything even remotely related.
I have top secret footage that proves Canada has elite spies in the highest of positions in the New York am news radio industry.
http://www.youtube.com/watch?v=zYa2s1xY7xY
It's the Erie Doctrine. Basically, Federal court applies the laws of the state.
http://en.wikipedia.org/wiki/Erie_doctrine
The previous announcement smacked of legal/PR. This guy is director of incubation. I doubt they talk much. MS probably panicked and did a knee-jerk reaction and then, after some thought, decided on a different way forward.
http://www.msnbc.msn.com/id/40166219/ns/technology_and_science-tech_and_gadgets/
Why? Who knows. Does it really matter?
Or, he could very well serve as a Patrick Swayze in Roadhouse.
No, it's not legal (DMCA)
Maybe. The DMCA specifically allows circumvention in some circumstances. The most applicable one:
"Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace"
But, you say, Steam is not a dongle so not applicable. Again, maybe. US law is not so rigid. Is Steam DRM more like a dongle or does this exception require an external physical box to plug in to the computer to be applicable? I don't see any "external physical box" language so we'd go to a consideration of factors of just what makes a dongle a dongle and its use. I won't go through the whole analysis, the point is that to meet this exception one would only have to present a case that Steam is like a dongle for the purposes of the DMCA. And if Steam goes dark due to bankruptcy and there is no way it's ever coming back, I think that would easily be met.
You are correct. Some lawyers build their careers off the ability to create a job description that no American can meet. Usually the company knows the person they want to hire and so the lawyer writes a generic sounding job description but is really targeted. There are rules against this, but hey, who's checking?
That's not the issue in this case. Ms. Menagh died three months after the fact by unrelated issues. Why would Juliet be saddled with guilt for something she didn't cause. She did cause injury to Ms. Menagh but did not cause the death.
I read an article yesterday that claimed the case against the parents was denied; however, I can't find the article and having read the actual opinion I don't see how it could even be true. Justice Wooten frames the issue as: "The sole issue before the Court is whether an infant aged four years, nine months, is non sui juris, incapable of negligence as a matter of law, under the facts presented." I retract and correct my statement about the court's decision. I presume the case against the Breitman and Kohn parents is still valid as well as against Juliet Breitman.
The judge simply ruled that four year olds are not automatically immune to civil suit for negligence. It's an arbitrary line, but there needs to be one. If not four then why five or six or seven? Children cannot be granted blanket immunity due to age so the courts have placed the threshold at four. Children that age are not treated the same as adults and proving negligence in this case will be hard.
This was not an issue of first impression, though. Justice Wooten cites plenty of cases on point and decided that this case was not substantially different enough to break precedent.
First, the US has not ratified this convention and therefore does not have to abide by it. A case could be made that the convention merely codified customary international law but the judge in this case wasn't in a position to decide that.
Second, you left out the first sentence of Article 40 which states: "Children who are accused of breaking the law. . ." This is a civil case and not criminal. The child is not charged with breaking any law just with acting in a negligent manner which harmed a person. Art. 40 is a regulation on criminal trials and not civil.
You must live in Louisiana. In English Common Law you follow precedent unless you can satisfactorily distinguish the instant case from prior cases. If you use your personal "judgment" to adjudicate that is judicial activism. Judicial review of incompetent legislation is usually handled by the Supreme Court of any state unless there is an egregious violation that the court needs to correct. Legislation is not at issue here so I'm not sure why you think the judge should have done this. Judicial assessment of a merit-less suit, I'll assume you mean failure to state a claim, is a job for the trial court. This was an interlocutory appeal to decide who could be sued. The judge could only decide that issue and could not, sua sponte, decide the case should go away.
Judges do judge, but they can only adjudicate very specific issues within a very strict rule set. They cannot do whatever they want. Judge's may decide only the issue that is before them. Dismissing the case was outside the scope of his authority.
This was an intermediate court decision to decide whether or not the case can proceed against both the parents and the child. The plaintiffs did sue the parents. The judge tossed that case but let the claim against the child proceed. He effectively killed it.
And this is a civil case. You are found liable, not guilty, and there is never any jail time only monetary compensation.
Previous rulings have held that there is a sliding scale of responsibility between 4 and, I believe, 12. At four a child is presumed to not be capable of fully understanding their actions so it is on the plaintiff to prove that this particular four year old did understand. A very tough task indeed. At 12, the burden is on the defense to prove that this particular child could not understand his/her actions.
The big decision in this case was that the parents cannot be sued. Now the plaintiff is going to have to prove that a four year old on her training wheeled bike, racing another child, was cognizant of the ramifications of her actions of riding on the sidewalk. Good luck with that.
No, you are just misreading the quote. The judicial or alternative proceedings refers to criminal matters, not civil.
Correct. The term you are looking for is jus cogens. International law is usually laterally oriented with nobody above anyone else, even the UN, but war crimes, piracy, genocide, and torture are acts that every nation has an erga omnes obligation to follow. Being victorious allows you to defend your actions, but does not grant immunity due to sovereignty. Unfortunately, nobody ever actually holds anyone accountable for these things.
That doesn't necessarily mean that companies will compete. All they need do is not invade each others territory. They can then strangle, over charge, and under serve their market while reaping in huge profit. Sherman Act anti-trust problem, you say? Good luck damn near proving your case at the pleading stage. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Yep, we rule.
This court decided the case using the Lanham Act which is the law plaintiff chose. If a name is now a "commercial interest" it isn't defined that way by the Lanham Act. Use a different law if you want to sue. The court can only rule on the evidence presented and the law plaintiff invokes. The court does not state that there is no "commercial interest" in their name, just that plaintiff has no "commercial interest" in her name as defined by the Lanham Act. Again, plaintiff chose the Lanham Act. The court did not rule on this case after invoking the Lanham Act sua sponte.
A "commercial interest" is not just whatever someone thinks it is. To maintain an action under the Lanham Act you must meet the definition of a "commercial interest" as used/implied by the Act. The court tells you what that means in the opinion.
Stayart’s argument hinges on the claim that by virtue
of her extensive activities, her name has commercial
value. These include: humanitarian efforts on behalf of
baby seals, wolves and wild horses; what she describes
as “scholarly posts” on a website; two poems that
appear on a Danish website; and genealogy research.
To determine whether a person or entity has standing
under 43(a), we look at whether they have “a reasonable
interest to protect” in a commercial activity. Dovenmuehle,
871 F.2d at 700; accord Stanfield v. Osborne Ind., Inc.,
52 F.3d 867, 873 (10th Cir. 1995). Indeed, standing to
assert a 43 claim is limited to a “purely commercial class
of plaintiffs.” Berni v. Int. Gourmet Rest. of Am., 838 F.2d
642, 648 (2d Cir. 1988) (quotation omitted). While
Stayart’s goals may be passionate and well-intentioned,
they are not commercial. And the good name that a person
garners in such altruistic feats is not what 43 of
the Lanham Act protects: it “is a private remedy for a
commercial plaintiff who meets the burden of proving
that its commercial interests have been harmed by a
competitor.” Made in the USA Found., 365 F. 3d at 281
(quotation and brackets omitted). We addressed a
similar scenario in Dovenmuehle where we held that,
under the Lanham Act, relatives who had no commercial
interest in their family name did not have a
reasonable interest to protect in the trade name
“Dovenmuehle, Inc.,” and thus lacked standing to sue.
Dovenmuehle, 871 F.3d at 700.
Court opinions are not black boxes. If you want to know why the Judge decided a certain way then read the opinion. It will tell you everything you need to know about that very specific case. If you want to know about "but what ifs" you'll have to look at other cases or look to dicta. Courts don't go on long tangents of hypotheticals.
Ok, dolts, here it is. "God does not play dice." Einstein. Therefore QM is not dice, or in other word chance. Scientists believe everything is odds, probabilities, in other word chance. QED a scientist, therefore atheist, must reject QM, Einstein, the guy hit in the head with the apple, Galleo, and Mel Brooks.
I'm sure you didn't understand that because it's very high brow. So here's a story that isn't a low brow car analogy (but does include a race car vroom vroom).
"It's just like the story of the grasshopper and the octopus. All year long the grasshopper kept burying acorns for winter while the octopus mooched off his girlfriend and watched TV. Then the winter came, and the grasshopper died, and the octopus ate all his acorns and also he got a race car. Is any of this getting through to you?"
So, um, well I guess that clears everything up. That's why you should always wear briefs, not boxers, when visiting Mongolia.
I prefer, "a game show format contest would be in order."
1. The Discovery Channel and it's affiliate channels MUST have daily television programs at prime time slots based on Daniel Quinn's "My Ishmael" pages 207-212 where solutions to save the planet would be done in the same way as the Industrial Revolution was done, by people building on each other's inventive ideas. Focus must be given on how people can live WITHOUT giving birth to more filthy human children since those new additions continue pollution and are pollution. A game show format contest would be in order.
This guy missed his calling. He should have been an internet meme generator.
http://www.gallup.com/poll/3742/new-poll-gauges-americans-general-knowledge-levels.aspx
That's nothing, 20% still believe the sun revolves around the earth and 25% believe we got our independence from a country other than Britain.