Any true Conservative should have no problem with this decision. This is a perfect example of a party asking a court to create new law and the court refusing. There is binding precedent mandating this outcome and the court properly came to this decision. Now, there still remains the question whether Limbaugh is a true Conservative, but I'll leave that to others to fight over.
Media Companies sued File Sharing Company. File Sharing Company claimed they were not facilitating copyright infringement because their product/service has "substantial non-infringing uses" and they cannot control their user's actions. Court Agrees. Everyone is happy in/.land until SCOTUS takes up the case in October.
As someone else pointed out, Napster was equally available for non-infringing uses. MP3 can be used to encode non-protected material just as easily as protected material. Further, it was trivial to add an.mp3 extension to your text, video, or other file and use Napster to exchange those.
More importantly, and thankfully, Congress cannot extend copyright rights to "infinity + 1" though it may seem they are trying at times. The Constitution says that copyright and patent monopolies may be granted for limited times. Limited is a very fuzzy term, as the Eldridge case showed, but at the very least they can only extend incrementally in limited terms forever, and I think people will eventually get tired of that and do something.
Would you please explain to me why "the most activist" appellate court just issued a highly restrained opinion refusing to expand the scope of contributory and vicarious infringement? If the 9th Circuit were truly activist they would have caved in to the demands of MGM and the others and issued a ruling inconsistent with present statuory law, creating new positive law from the bench. This court is not activist, it is merely more liberal than many courts, just as the 4th Circuit is more conservative than most. Disagreement with the opinion is not an adequate basis for labeling a court "activist."
Actually, I think in most states continued employment is not sufficient consideration for a non-compete clause. The theory is that it's unduly coercive because of the unequal bargaining power of the parties when one party controls the ability of the other to earn a living. Now, if you don't already have a contract and are employed at will, then your employer certainly could require a contract as a condition of continued employment and a non-compete clause as a condition of a contract, but if you already have a contract then some additional consideration is required for a non-compete to be valid and refusal to agree to a non-compete will not likely be viewed as justification for the employer to breach the existing contract and terminate your employment.
I'm not familiar with the details, but it may have been that Borland did not have non-compete clauses in its employment agreements or that they thought it would be more (lucrative|effective|publicity-generating) to go after MS for interfering with contractual relations or whatever it was they claimed.
That's exactly what I'm saying. If the engineer either was stupid enough to agree with the clause or thought it was a good bargain, he agreed to not work in the proscribed areas and that agreement should be enforceable. As for caselaw info, here's a quote from a 2002 unpublished Minnesota (the state where Seagate has brought suit, so this is a statement of the controlling law) decision with cites to the cases controlling the issues:
The bar is high for enforcement of noncompete agreements. Such agreements partially restrain trade by limiting the right of a party to work and earn a livelihood. Bennett v. Storz Broad. Co., 270 Minn. 525, 533, 134 N.W.2d 892, 898 (1965). Noncompete agreements are enforced only to the extent reasonably necessary to protect a legitimate business interest. Id. at 534, 134 N.W.2d at 899. Courts look upon such contracts with disfavor and scrutinize them with care. Freeman v. Duluth Clinic, Ltd., 334 N.W.2d 626, 630 (Minn.1983); Nat'l Recruiters, Inc. v. Cashman, 323 N.W.2d 736, 740 (Minn.1982); Bennett, 270 Minn. at 533, 134 N.W.2d at 898.
Noncompete agreements are invalid unless bargained for and supported by adequate consideration. Nat'l Recruiters, 323 N.W.2d at 740. A noncompete agreement signed after employment commences is presumed unenforceable unless clearly ancillary to the employment agreement or supported by adequate additional consideration. Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 164 (Minn.App.1993) (citing Nat'l Recruiters, 323 N.W.2d at 740). This requirement reflects the fact "that employers and employees have unequal bargaining power," especially after employment has commenced. Sanborn Mfg. Co., 500 N.W.2d at 164. When the employer fails to inform prospective employees of noncompetition agreements until after they have accepted jobs, the employer "takes undue advantage of the inequality between the parties." Nat'l Recruiters, 323 N.W.2d at 741. Continued employment is not sufficient consideration for a noncompetition agreement. Id. at 740.
I can't cite precedent right now, but I can tell you that non-compete clauses are generally valid and have survived both jury trial and appellate review. That said, such clauses must typically be appropriately limited in scope. They cannot prevent employment for excessive time periods, two years is likely to be found not to be excessive. They cannot prevent employment in businesses unrelated to the former company's core business. Since Seagate and WD both make hard drives, I don't think that one will be a problem either. As for such clauses being UnAmerican, nothing could be further from the truth. It's a classic example of American thinking, use your power to prevent the competition from horning in on your resources, human or natural.
How the hell does this crap get moderated interesting? It's nothing but total bullshit. It doesn't matter whether a EULA is enforceable, the copyright act gives MS the exclusive right to copy and distribute their copyright protected works. The only way you are going to acquire the right to do the same from MS is through a license agreement of some sort. If you don't agree, you don't have any right.
So, let me get this right. Linux isn't ready for the desktop because most users will require someone with technical knowledge to help them with the install but windoze is ready for the desktop because it comes preinstalled? Linux isn't ready for the desktop because it can be (though isn't necessarily) more difficult to install hardware but windoze is ready because "the techs at the shop better make damn sure it works before giving it to you."? So, what you're really saying is that windoze is ready for the desktop because you can pay people to make it work for you but Linux isn't because people will make it work for you for free? That makes zero sense.
I didn't do any heavy lifting. I don't know when the last time was you installed Debian Sarge, but it was probably the easiest installation I've ever performed. It's almost easier than installing Windoze XP. The only thing that requires thought is selecting which packages you want to install, which is only not a problem on Windoze because it doesn't come with anything of substance nor does it give you a choice abou what to install or not.
As far as configuring devices and setting up shortcuts, the XFree86 autoconfigure worked just fine and the only "setting up of shortcuts" I did was dragging mozilla and evoltion from the KDE menu to the desktop, something they would have been capable of themselves.
You're dead on. I recently installed Debian for my 8 and 10 year old sisters because they had tinkered with their Windoze install and acquired so damn much malware that it was irreparably broken. Did they have to learn how to use a single CLI tool? No. I put shortcuts to Mozilla and Evolution on their desktops and showed them how to find the games menu and they're off and running. They haven't been able to break anything yet and their only comments have been about how wonderful all the new games are.
I think it's useles to say that Linux is or isn't ready for the desktop without indicating who will be using the desktop. For your average webmonkey doing nothing more than browsing, playing java/flash games and sending an occasional email, Linux is more than ready.
How about porthole and portagemaster? They're not quite as nice as, say, synaptic but they let you browse through your portage tree and easily select packages to merge.
That's all well and good, but you can't look at these things in a vacuum. If Sveasoft is requiring membership to access the code and are placing requirements on membership that are contrary to the GPL, they are acting in violation of the GPL. They cannot give you a license and later claim that, by exercising the rights granted to you under that license, you have violated a separate license you were required to obtain in order to receive the GPL'd code. To do so is to place additional restrictions on the distribution of GPL licensed code and should result in the termination of Sveasoft's rights under the GPL.
The problem with this line of thinking is that Sveasoft has no license to distribute the unmodified GPL'd portions of the source under any license other than the GPL. They can do whatever they want with their code, but if it's code they've obtained under the GPL and modified their only choice is to distribute under the GPL or not to distribute.
The way I look at it, if a contract says something must be done in a reasonable amount of time and one party wants to complain that the ting was not done in a reasonable amount of time, it should be up to the complaining party to prove that it was unreasonable rather than requiring the non-complaining party to prove it was reasonable. Either way, however, TSG should lose on this one.
So the virus initially acts as a keylogger then, once the user has typed in the password for something else, the virus forks off a process to kill the firewall and goes to work.
When I was using Norton Personal Firewall it would reverify everytime an executable changed. Therefore, if you get another prompt and you haven't updated, you can assume something untoward is going on.
I'm using the WPA supplicant and authenticator from hostap with FreeRADIUS and it's working beautifully. The setup is a little opaque, but once it's working it's very easy to maintain.
I'm not sure of all the details. I'm a grad student and my school has successfully maintained their own network to keep the undergrad IT folks out of their hair. From my understanding of the system, the school has a local Windows Update server and they perform the typical scanning for critical updates that those servers do before allowing authentication. Access is restricted to only the Novell and Lotus Notes systems until authentication is completed. Authentication is done by trapping http requests and redirecting to the authentication server. If you want to use something else, like IRC or FTP, you have to open your browser and authenticate before you can get past the firewall.
My school has taken a similar route, however, we're not pushing patches onto end users, but requiring that they authenticate and verifying that they're up to date before letting them out into the wild. If they fail the verification they're provided resources to update their computer, but we don't push the patches without their consent.
I was just going to mod you down, but I think it's important to, once again, clarify the misconception you (any many others) seem to have regarding the "McDonald's Coffee Lawsuit." The large punitive damages award in that lawsuit had nothing to do with whether a warning was provided that the coffee was hot or whether the woman knew that the coffee was hot. It had everything to do with the fact that McDonald's maintained their coffee at an unsafe temperature, knew the temperature to be unsafe, and failed to remedy that problem. That is often called wanton disregard for the consequences of your actions or gross neglegence. Further, the excessive punitive damages award was significantly reduced on appeal.
As for your "what's a scrollbar" argument, I doubt it would fly very far as it's likely that the user would have to operate a scrollbar to obtain the software they're installing if the software was obtained from a website. It's an interesting argument, but it assumes that the opposing party is just going to roll over and say, "gee, you don't know what a scrollbar is. Ok, we're not going to challenge that. You win." Not likely.
But what about the schizos like me who use emacs for coding and vim for minor editing or browsing files? I've already remapped capslock to ctrl, what do I do for esc?
Or, in the case of a computer program (which is what we're discussing, isn't it), when 17 U.S.C. 117 applies and the owner of a copy of a computer program has a right to create a copy if that copy is temporary and necessary to use the program or is a backup copy, notwithstanding the exclusive right of the copyright owner to make and distribute copies.
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Any true Conservative should have no problem with this decision. This is a perfect example of a party asking a court to create new law and the court refusing. There is binding precedent mandating this outcome and the court properly came to this decision. Now, there still remains the question whether Limbaugh is a true Conservative, but I'll leave that to others to fight over.
Media Companies sued File Sharing Company. File Sharing Company claimed they were not facilitating copyright infringement because their product/service has "substantial non-infringing uses" and they cannot control their user's actions. Court Agrees. Everyone is happy in /.land until SCOTUS takes up the case in October.
More importantly, and thankfully, Congress cannot extend copyright rights to "infinity + 1" though it may seem they are trying at times. The Constitution says that copyright and patent monopolies may be granted for limited times. Limited is a very fuzzy term, as the Eldridge case showed, but at the very least they can only extend incrementally in limited terms forever, and I think people will eventually get tired of that and do something.
Would you please explain to me why "the most activist" appellate court just issued a highly restrained opinion refusing to expand the scope of contributory and vicarious infringement? If the 9th Circuit were truly activist they would have caved in to the demands of MGM and the others and issued a ruling inconsistent with present statuory law, creating new positive law from the bench. This court is not activist, it is merely more liberal than many courts, just as the 4th Circuit is more conservative than most. Disagreement with the opinion is not an adequate basis for labeling a court "activist."
Actually, I think in most states continued employment is not sufficient consideration for a non-compete clause. The theory is that it's unduly coercive because of the unequal bargaining power of the parties when one party controls the ability of the other to earn a living. Now, if you don't already have a contract and are employed at will, then your employer certainly could require a contract as a condition of continued employment and a non-compete clause as a condition of a contract, but if you already have a contract then some additional consideration is required for a non-compete to be valid and refusal to agree to a non-compete will not likely be viewed as justification for the employer to breach the existing contract and terminate your employment.
I'm not familiar with the details, but it may have been that Borland did not have non-compete clauses in its employment agreements or that they thought it would be more (lucrative|effective|publicity-generating) to go after MS for interfering with contractual relations or whatever it was they claimed.
I can't cite precedent right now, but I can tell you that non-compete clauses are generally valid and have survived both jury trial and appellate review. That said, such clauses must typically be appropriately limited in scope. They cannot prevent employment for excessive time periods, two years is likely to be found not to be excessive. They cannot prevent employment in businesses unrelated to the former company's core business. Since Seagate and WD both make hard drives, I don't think that one will be a problem either. As for such clauses being UnAmerican, nothing could be further from the truth. It's a classic example of American thinking, use your power to prevent the competition from horning in on your resources, human or natural.
How the hell does this crap get moderated interesting? It's nothing but total bullshit. It doesn't matter whether a EULA is enforceable, the copyright act gives MS the exclusive right to copy and distribute their copyright protected works. The only way you are going to acquire the right to do the same from MS is through a license agreement of some sort. If you don't agree, you don't have any right.
So, let me get this right. Linux isn't ready for the desktop because most users will require someone with technical knowledge to help them with the install but windoze is ready for the desktop because it comes preinstalled? Linux isn't ready for the desktop because it can be (though isn't necessarily) more difficult to install hardware but windoze is ready because "the techs at the shop better make damn sure it works before giving it to you."? So, what you're really saying is that windoze is ready for the desktop because you can pay people to make it work for you but Linux isn't because people will make it work for you for free? That makes zero sense.
As far as configuring devices and setting up shortcuts, the XFree86 autoconfigure worked just fine and the only "setting up of shortcuts" I did was dragging mozilla and evoltion from the KDE menu to the desktop, something they would have been capable of themselves.
I think it's useles to say that Linux is or isn't ready for the desktop without indicating who will be using the desktop. For your average webmonkey doing nothing more than browsing, playing java/flash games and sending an occasional email, Linux is more than ready.
Except for Photosop on Linux. If you can afford Photoshop you can afford Crossover Office.
How about porthole and portagemaster? They're not quite as nice as, say, synaptic but they let you browse through your portage tree and easily select packages to merge.
That's all well and good, but you can't look at these things in a vacuum. If Sveasoft is requiring membership to access the code and are placing requirements on membership that are contrary to the GPL, they are acting in violation of the GPL. They cannot give you a license and later claim that, by exercising the rights granted to you under that license, you have violated a separate license you were required to obtain in order to receive the GPL'd code. To do so is to place additional restrictions on the distribution of GPL licensed code and should result in the termination of Sveasoft's rights under the GPL.
The problem with this line of thinking is that Sveasoft has no license to distribute the unmodified GPL'd portions of the source under any license other than the GPL. They can do whatever they want with their code, but if it's code they've obtained under the GPL and modified their only choice is to distribute under the GPL or not to distribute.
The way I look at it, if a contract says something must be done in a reasonable amount of time and one party wants to complain that the ting was not done in a reasonable amount of time, it should be up to the complaining party to prove that it was unreasonable rather than requiring the non-complaining party to prove it was reasonable. Either way, however, TSG should lose on this one.
So the virus initially acts as a keylogger then, once the user has typed in the password for something else, the virus forks off a process to kill the firewall and goes to work.
When I was using Norton Personal Firewall it would reverify everytime an executable changed. Therefore, if you get another prompt and you haven't updated, you can assume something untoward is going on.
I'm using the WPA supplicant and authenticator from hostap with FreeRADIUS and it's working beautifully. The setup is a little opaque, but once it's working it's very easy to maintain.
I'm not sure of all the details. I'm a grad student and my school has successfully maintained their own network to keep the undergrad IT folks out of their hair. From my understanding of the system, the school has a local Windows Update server and they perform the typical scanning for critical updates that those servers do before allowing authentication. Access is restricted to only the Novell and Lotus Notes systems until authentication is completed. Authentication is done by trapping http requests and redirecting to the authentication server. If you want to use something else, like IRC or FTP, you have to open your browser and authenticate before you can get past the firewall.
My school has taken a similar route, however, we're not pushing patches onto end users, but requiring that they authenticate and verifying that they're up to date before letting them out into the wild. If they fail the verification they're provided resources to update their computer, but we don't push the patches without their consent.
As for your "what's a scrollbar" argument, I doubt it would fly very far as it's likely that the user would have to operate a scrollbar to obtain the software they're installing if the software was obtained from a website. It's an interesting argument, but it assumes that the opposing party is just going to roll over and say, "gee, you don't know what a scrollbar is. Ok, we're not going to challenge that. You win." Not likely.
But what about the schizos like me who use emacs for coding and vim for minor editing or browsing files? I've already remapped capslock to ctrl, what do I do for esc?
Or, in the case of a computer program (which is what we're discussing, isn't it), when 17 U.S.C. 117 applies and the owner of a copy of a computer program has a right to create a copy if that copy is temporary and necessary to use the program or is a backup copy, notwithstanding the exclusive right of the copyright owner to make and distribute copies.