In some instances, state substantive statutes can apply in federal court if the cause of action giving rise to the lawsuit is a state statute and the federal court has jurisdiction only through diversity of the parties. However, since this case arises out of copyright, there is federal subject matter jurisdiction rather than diversity jurisdiction, so you're right: a Massachusetts statute should not apply in this case.
That would be terrible to have juries look over only the transcript. While you rightfully recognize that juries are susceptible to emotional please, you miss the fact that the primary function of the jury is to determine who is trustworthy. You cannot hope to determine trustworthiness without observing body language.
There's a reason Courts of Appeals are not allowed to make factual findings: it's because they cannot adequately determine the trustworthiness of testimony from the record alone.
These invisible creatures are "nerds," and the special equiment used is not actually so sophisticated. All one has to do is walk into a room where one suspects these nerds are habitating and announce PICARD WAS A BETTER CAPTAIN THAN KIRK.
In the US, we have a game called "bullshit." Basically, you have the players who take turns laying down cards. First player lays down any number of aces he has in his hand, while announcing how many and placing them face down. The next player does it with twos, the next with threes, and so on. If you think someone is lying (by laying down more cards or by laying down cards other than the given face value assigned to him this round), you yell "bullshit" and reveal his cards. If he's caught, he takes the whole pile that has been laid down so far. If he's truthful, the "bullshit" caller takes the pile.
First to run out of cards wins. When you get to kings, start back over at aces. Bullshit.
Absolutely nothing about our financial systems should be secret.
I don't understand this sentiment. If someone creates a model that predicts where the oil futures will go based on past performance in similar circumstances, you think that person should be required by law to reveal his model? Wouldn't that make it nearly impossible to make money in the stock market (as everyone would gravitate to one or two models endorsed by the big boys, and the only buying and selling would be people looking to begin investing in blue chips for the long haul or retiring from the market completely), thus reducing investment in companies, thus reducing funding, thus reducing R&D, thus reducing innovation? Sure, it might make VC funding more important, but that would lock out the small investors even more than they are now.
So, in other words, speech is not completely protected because it can do harm; the harmful parts of speech are not protected. Thus, speech is not completely protected by the First Amendment. We have no quarrel.
You're just being idiotic, and I think you know it.
Well, I was just playing devil's advocate.
I took a free speech class in law school, and I argued for the most liberating interpretation of the Free Speech Clause. I still came down against true threats as unprotected speech (burning crosses across the street from a black family, making a webpage "KILL THESE PEOPLE" with a list of abortion doctors and their children's schools, etc.), but I did argue that public nudity ought to be protected as expression save for public health concerns.
I think obscenity ought also to be protected; I never heard a good argument against it in law school that didn't resort to "society shouldn't have to support things it finds morally objectionable," which, as you are aware, is completely antithetical to what the First Amendment is all about.
Of course, some people think the Free Speech Clause is all about prior restraint and nothing else, but I think that's bunk.
I'm of the mind that in a free society, you don't get to decide what other people enjoy, providing whatever they enjoy does not involve minors or other people that cannot provide reasonable consent
Can you defend why you think it's OK to infringe on the freedom of speech when it affects minors and those who cannot provide effective consent? It sounds like you're cherrypicking, too.
My point is that everyone cherrypicks. Unrestrained freedom of speech would permit murder and child rape. The founding fathers obviously did not intend this meaning, despite writing that the freedom of speech shall not be infringed.
I doubt they'll do prison time. I suspect this because they copped a plea to get their sentence down to a year and a day, and a sentence of a year and a day is typically imposed (rather than something shorter) because this is the minimum sentence that makes the defendant still qualify for alternative punishment (I forget the federal term of art, but it something evocative of the more famous "parole"--there is no parole for federal law, however).
next stop is to the supreme court where this will be sorted out
I'm not so sure about that. The Supreme Court has consistently held that obscenity is not protected under the First Amendment. This rule stretches back to the 1800s.
The test that they use is three-part (the Miller test):
the work appeals to the prurient interest of a member of the community
depicts/describes, in a patently offensive way, sexual conduct or excretory functions[2] specifically defined by applicable state law
andthe work fails the SLAPS test (by lacking all manner of Scientific, Literary, Artistic, or Political Speach) as based on a national standard
Note that child pornography is not protected under the First Amendment because it is, as a matter of law, obscenity.
I am not a lawyer. I am not your lawyer. This is not legal advice.
P.S. Were you always so patronising, or is that something they teach you at law school?
I actually was not being patronizing. I'm genuinely interested in educating people about copyright law on Slashdot since it's painful for me everytime I read some halfcocked theory of "how the law works." I've learned a lot of science from Slashdot over the decade or so I've been here, and I'd like to give back. If you read patronization into my comments, then that's a problem you've got with yourself (perhaps an eagerness to view all lawyers as terrible people?), I'd wager. I do, however, sometimes speak rudely here; but it's only to those who themselves speak like they know so much about the law when they don't, and give very bad information to others. But here I was not doing so.
And beats me why the judge wrote it the way he did. It's possible that the judge just got the law wrong. If Usenet.com has a ton of users and traffic, then it wouldn't be surprising to me at all if he gets reversed on appeal because he only had constructive knowledge, which means the "substantial noninfringing use" defense would be open to it.
However, as I said, I didn't read the case. I'm not particularly interested in it since (1) there's no precedential value of the decision and (2) I'm cramming for the bar exam. So I may be completely wrong abou the facts of the case.
Still, as I hope has been clear from (especially) my last post, I'm more concerned with sharing general copyright law doctrine and less about analyzing this case, which is quite possibly very unimportant.
Not to mention the subset of those who are bug chasers. Fucking ridiculous practice, if you ask me. People who attempt to get as many STIs as possible.
it is a question that does deserve to be considered
Not in a country that still believes in the Eighth Amendment. No. No it absofuckinglutely doesn't. I'm pretty sure intentionally infecting people with a deadly virus constitutes "cruel and unusual punishment."
Yes, and I don't see why a microkernel is inferior to a monolithic kernel or vice versa--that's why I've got a law degree (taking the bar in less than a month) and am not working on Hurd or Linux). Nevertheless, I will attempt to explain it to you because I think this is an interesting area of copyright law that makes a ton of sense once you think about it.
First off, copyright liability has nothing to do with tortious negligence, and you shouldn't try to put them in the same box. But if someone is your employer and while working you run over someone and injure them, yes, the employer would likely be held liable under the doctrine of respondeat superior (vicarious liability). The policy is to encourage employers to exercise judgment in whom they hire. If you punish an employer for hiring someone who is a dangerous driver, employers will more effectively screen out applicants who aren't qualified. This is especially important when you realize that the injured person will likely not receive adequate compensation for medical bills from a pizza delivery boy.
As for the "continuing relationship" in this case:
It's basically this: In copyright law, there is a doctrine of secondary liability. Basically, people who facilitate copyright infringement can be held responsible for copyright infringement. This hopefully sounds fair to you. If you help someone do something bad, the facilitator should be viewed as morally culpable for something, right?
Now, one type of secondary liability is called "contributory liability." To prove contributory liability in infringement cases, you must show (1) material contribution to the infringement in the form of providing the methods, means, software, services, etc. to commit the infringement, and (2) knowledge of the infringement.
Now the Betamax case came along in 1984 and said that when a manufacturer of something used to infringe has constructive knowledge of infringement (basically, the manufacturer knows some infringement may be occurring, but doesn't know specific instances of the infringement like "today Jon made a copy of Land Before Time"), if the device has "substantial noninfringing use" then that is a sufficient defense against a claim of contributory infringement--the manufacturer is off the hook.
The Napster case came along in the early 2000s (2001?) and said that when a service has actual knowledge of infringement (e.g., the RIAA tells Napster "hey, Jon is sharing XXX song, which is infringing on my copyright), then the "substantial noninfringing use" defense does not apply.
My guess (as I don't care too much to read this opinion while studying for the bar) is that the court's discussion of "ongoing relationship" is code for "Usenet.com has actual knowledge of infringement." If this is true, Usenet.com most assuredly provides the means to infringe. Thus, both prongs of contributory infringement are satisfied and Usenet.com is liable for infringement by its users.
However, it's possible that the court has made a mistake and Usenet.com doesn't have any way of knowing if specific infringement is occurring on its servers. There is precedent at the Circuit Court level somewhere (maybe even the 2d Cir., which would mean the judge got the decision wrong here) that when a service provider has so many millions of files passing through it every day that there is no possible way of having knowledge of specific infringement (unless the RIAA/MPAA actually told them about a specific file on Usenet.com that was infringing), then contributory liability does not exist.
Do you still need clarification? I'm sure I've left something out, since typing this is tedious in such a small INPUT box. Feel free to ask. I cannot give you legal advice, but I can explain the intricacies of copyright law cases as a general matter and can explain court rulings.
I am not a lawyer. I am not your lawyer. This is not legal advice.
No. You're willfully misconstruing both what the judge said and what the caselaw is.
Memorex would be perfectly fine under Betamax. This case has 100% nothing to do with your hypothetical. If you'd even bothered to read the Slashdot blurb at the top, you'd realize your hypothetical is not affected one iota by this ruling. Let me quote it for you:
Bear noted that Usenet.com differed from Sony in that the sale of a Betamax recorder was a one-time deal, while Usenet.com's interaction with its users was an ongoing relationship.
You see that "ongoing relationship" talk? Yeah, there's no ongoing relationship between Memorex and the bootlegger.
That's a very fair assessment of the current law of contributory infringement (contributory infringement is a subset of secondary infringement, with the other major one being vicarious infringement, and "inducement" being classified as a subset of contributory infringement or merely a subset of 2dary infringement, depending on whom you ask) dealing with the Betamax "substantial noninfringing uses" defense.
There is a contour to the "service" part of the analysis that has to do with actual knowledge vs. constructive knowledge of there being infringement occurring on your service. But I won't get into that here.
As the root word is "copyright," the conjugation is "copyrighted." "Copywritten" is the participle and past tense of "copywrite," which means "to write the text of an advertisement."
The "ongoing relationship" has everything to do with contributory infringement and nothing to do with fair use. Betamax has nothing to do with fair use and everything to do with contributory infringement. Basically, Betamax set out "substantial noninfringing use" as a defense to contributory infringement. However, in the Betamax case, there was not an ongoing relationship between Sony (the Betamax manufacturer) and the user (dude who records TV shows).
In Napster, the Ninth Circuit held that the Betamax defense was only available to instances where there is not an ongoing relationship. However, it's not so simple. Napster really stands for the proposition that when the service is "still helping out" the direct infringement to a certain degree, the substantial noninfringing use test does not apply. A more clear way for me to characterize this is that where there is "actual knowledge of infringement," Sony does not apply. Where there is merely "constructive knowledge of infringement," Sony does apply (you know some occurs, but don't know what specific instances are infringing). Basically, it is analogous to something like this situation: -a company where you drop off materials and employees of the company make copies for you could be contributorily infringing (the company KNOWS of actual infringing action) -a company that has copy machines for you to use where YOU make the copies is NOT contributorily infringing (the company knows some people may infringe, but it's not aware of specific infringing actions)
A Betamax machine is like the second case. Napster is like the first case.
I'm not familiar with Usenet.com's service (although from what I've read, it's not USENET), so I can't venture a guess as to whether the judge got Usenet.com's participation wrong. However, it would all come down to whether Usenet.com has actual or constructive knowledge of infringement on its service. Actual knowledge, via Napster, may be acquired by being informed by copyright owners or through copyright infringement detection mechanisms (like Google has for YouTube).
That is not true. For example, your body requires more energy to process a gram of protein than it does to process a gram of carbohydrates, and both of those macronutrients are approximately four cal. per gram. It certainly does matter what type of calories you're inputting.
Slashdot Mirror
In some instances, state substantive statutes can apply in federal court if the cause of action giving rise to the lawsuit is a state statute and the federal court has jurisdiction only through diversity of the parties. However, since this case arises out of copyright, there is federal subject matter jurisdiction rather than diversity jurisdiction, so you're right: a Massachusetts statute should not apply in this case.
Just a minor correction: "in camera" means "in chambers," not "no recording." I made a similar mistake my first year of law school.
That would be terrible to have juries look over only the transcript. While you rightfully recognize that juries are susceptible to emotional please, you miss the fact that the primary function of the jury is to determine who is trustworthy. You cannot hope to determine trustworthiness without observing body language.
There's a reason Courts of Appeals are not allowed to make factual findings: it's because they cannot adequately determine the trustworthiness of testimony from the record alone.
I and B tags have been deprecated across the web for maybe a decade now. The whole separation of content and structure and appearance paradigm.
And I suspect you are aware of this trick, but none of the sysadmins at GS are aware of this trick.
These invisible creatures are "nerds," and the special equiment used is not actually so sophisticated. All one has to do is walk into a room where one suspects these nerds are habitating and announce PICARD WAS A BETTER CAPTAIN THAN KIRK.
The resulting chatter will prove their existence.
In the US, we have a game called "bullshit." Basically, you have the players who take turns laying down cards. First player lays down any number of aces he has in his hand, while announcing how many and placing them face down. The next player does it with twos, the next with threes, and so on. If you think someone is lying (by laying down more cards or by laying down cards other than the given face value assigned to him this round), you yell "bullshit" and reveal his cards. If he's caught, he takes the whole pile that has been laid down so far. If he's truthful, the "bullshit" caller takes the pile.
First to run out of cards wins. When you get to kings, start back over at aces. Bullshit.
I don't understand this sentiment. If someone creates a model that predicts where the oil futures will go based on past performance in similar circumstances, you think that person should be required by law to reveal his model? Wouldn't that make it nearly impossible to make money in the stock market (as everyone would gravitate to one or two models endorsed by the big boys, and the only buying and selling would be people looking to begin investing in blue chips for the long haul or retiring from the market completely), thus reducing investment in companies, thus reducing funding, thus reducing R&D, thus reducing innovation? Sure, it might make VC funding more important, but that would lock out the small investors even more than they are now.
So, in other words, speech is not completely protected because it can do harm; the harmful parts of speech are not protected. Thus, speech is not completely protected by the First Amendment. We have no quarrel.
I don't understand how a video is speech but the underlying acts are not speech.
Does a theatrical production not qualify as speech until it is videotaped?
Well, I was just playing devil's advocate.
I took a free speech class in law school, and I argued for the most liberating interpretation of the Free Speech Clause. I still came down against true threats as unprotected speech (burning crosses across the street from a black family, making a webpage "KILL THESE PEOPLE" with a list of abortion doctors and their children's schools, etc.), but I did argue that public nudity ought to be protected as expression save for public health concerns.
I think obscenity ought also to be protected; I never heard a good argument against it in law school that didn't resort to "society shouldn't have to support things it finds morally objectionable," which, as you are aware, is completely antithetical to what the First Amendment is all about.
Of course, some people think the Free Speech Clause is all about prior restraint and nothing else, but I think that's bunk.
Can you defend why you think it's OK to infringe on the freedom of speech when it affects minors and those who cannot provide effective consent? It sounds like you're cherrypicking, too.
My point is that everyone cherrypicks. Unrestrained freedom of speech would permit murder and child rape. The founding fathers obviously did not intend this meaning, despite writing that the freedom of speech shall not be infringed.
I doubt they'll do prison time. I suspect this because they copped a plea to get their sentence down to a year and a day, and a sentence of a year and a day is typically imposed (rather than something shorter) because this is the minimum sentence that makes the defendant still qualify for alternative punishment (I forget the federal term of art, but it something evocative of the more famous "parole"--there is no parole for federal law, however).
I'm not so sure about that. The Supreme Court has consistently held that obscenity is not protected under the First Amendment. This rule stretches back to the 1800s.
The test that they use is three-part (the Miller test):
Note that child pornography is not protected under the First Amendment because it is, as a matter of law, obscenity.
I am not a lawyer. I am not your lawyer. This is not legal advice.
I actually was not being patronizing. I'm genuinely interested in educating people about copyright law on Slashdot since it's painful for me everytime I read some halfcocked theory of "how the law works." I've learned a lot of science from Slashdot over the decade or so I've been here, and I'd like to give back. If you read patronization into my comments, then that's a problem you've got with yourself (perhaps an eagerness to view all lawyers as terrible people?), I'd wager. I do, however, sometimes speak rudely here; but it's only to those who themselves speak like they know so much about the law when they don't, and give very bad information to others. But here I was not doing so.
And beats me why the judge wrote it the way he did. It's possible that the judge just got the law wrong. If Usenet.com has a ton of users and traffic, then it wouldn't be surprising to me at all if he gets reversed on appeal because he only had constructive knowledge, which means the "substantial noninfringing use" defense would be open to it.
However, as I said, I didn't read the case. I'm not particularly interested in it since (1) there's no precedential value of the decision and (2) I'm cramming for the bar exam. So I may be completely wrong abou the facts of the case.
Still, as I hope has been clear from (especially) my last post, I'm more concerned with sharing general copyright law doctrine and less about analyzing this case, which is quite possibly very unimportant.
Not to mention the subset of those who are bug chasers. Fucking ridiculous practice, if you ask me. People who attempt to get as many STIs as possible.
Not in a country that still believes in the Eighth Amendment. No. No it absofuckinglutely doesn't. I'm pretty sure intentionally infecting people with a deadly virus constitutes "cruel and unusual punishment."
I've never heard of GNU/HIV.
I have heard of GNU/leprosy, what with the open sores and all...
Yes, and I don't see why a microkernel is inferior to a monolithic kernel or vice versa--that's why I've got a law degree (taking the bar in less than a month) and am not working on Hurd or Linux). Nevertheless, I will attempt to explain it to you because I think this is an interesting area of copyright law that makes a ton of sense once you think about it.
First off, copyright liability has nothing to do with tortious negligence, and you shouldn't try to put them in the same box. But if someone is your employer and while working you run over someone and injure them, yes, the employer would likely be held liable under the doctrine of respondeat superior (vicarious liability). The policy is to encourage employers to exercise judgment in whom they hire. If you punish an employer for hiring someone who is a dangerous driver, employers will more effectively screen out applicants who aren't qualified. This is especially important when you realize that the injured person will likely not receive adequate compensation for medical bills from a pizza delivery boy.
As for the "continuing relationship" in this case:
It's basically this: In copyright law, there is a doctrine of secondary liability. Basically, people who facilitate copyright infringement can be held responsible for copyright infringement. This hopefully sounds fair to you. If you help someone do something bad, the facilitator should be viewed as morally culpable for something, right?
Now, one type of secondary liability is called "contributory liability." To prove contributory liability in infringement cases, you must show (1) material contribution to the infringement in the form of providing the methods, means, software, services, etc. to commit the infringement, and (2) knowledge of the infringement.
Now the Betamax case came along in 1984 and said that when a manufacturer of something used to infringe has constructive knowledge of infringement (basically, the manufacturer knows some infringement may be occurring, but doesn't know specific instances of the infringement like "today Jon made a copy of Land Before Time"), if the device has "substantial noninfringing use" then that is a sufficient defense against a claim of contributory infringement--the manufacturer is off the hook.
The Napster case came along in the early 2000s (2001?) and said that when a service has actual knowledge of infringement (e.g., the RIAA tells Napster "hey, Jon is sharing XXX song, which is infringing on my copyright), then the "substantial noninfringing use" defense does not apply.
My guess (as I don't care too much to read this opinion while studying for the bar) is that the court's discussion of "ongoing relationship" is code for "Usenet.com has actual knowledge of infringement." If this is true, Usenet.com most assuredly provides the means to infringe. Thus, both prongs of contributory infringement are satisfied and Usenet.com is liable for infringement by its users.
However, it's possible that the court has made a mistake and Usenet.com doesn't have any way of knowing if specific infringement is occurring on its servers. There is precedent at the Circuit Court level somewhere (maybe even the 2d Cir., which would mean the judge got the decision wrong here) that when a service provider has so many millions of files passing through it every day that there is no possible way of having knowledge of specific infringement (unless the RIAA/MPAA actually told them about a specific file on Usenet.com that was infringing), then contributory liability does not exist.
Do you still need clarification? I'm sure I've left something out, since typing this is tedious in such a small INPUT box. Feel free to ask. I cannot give you legal advice, but I can explain the intricacies of copyright law cases as a general matter and can explain court rulings.
I am not a lawyer. I am not your lawyer. This is not legal advice.
No. You're willfully misconstruing both what the judge said and what the caselaw is.
Memorex would be perfectly fine under Betamax. This case has 100% nothing to do with your hypothetical. If you'd even bothered to read the Slashdot blurb at the top, you'd realize your hypothetical is not affected one iota by this ruling. Let me quote it for you:
You see that "ongoing relationship" talk? Yeah, there's no ongoing relationship between Memorex and the bootlegger.
That's a very fair assessment of the current law of contributory infringement (contributory infringement is a subset of secondary infringement, with the other major one being vicarious infringement, and "inducement" being classified as a subset of contributory infringement or merely a subset of 2dary infringement, depending on whom you ask) dealing with the Betamax "substantial noninfringing uses" defense.
There is a contour to the "service" part of the analysis that has to do with actual knowledge vs. constructive knowledge of there being infringement occurring on your service. But I won't get into that here.
As the root word is "copyright," the conjugation is "copyrighted." "Copywritten" is the participle and past tense of "copywrite," which means "to write the text of an advertisement."
The "ongoing relationship" has everything to do with contributory infringement and nothing to do with fair use. Betamax has nothing to do with fair use and everything to do with contributory infringement. Basically, Betamax set out "substantial noninfringing use" as a defense to contributory infringement. However, in the Betamax case, there was not an ongoing relationship between Sony (the Betamax manufacturer) and the user (dude who records TV shows).
In Napster, the Ninth Circuit held that the Betamax defense was only available to instances where there is not an ongoing relationship. However, it's not so simple. Napster really stands for the proposition that when the service is "still helping out" the direct infringement to a certain degree, the substantial noninfringing use test does not apply. A more clear way for me to characterize this is that where there is "actual knowledge of infringement," Sony does not apply. Where there is merely "constructive knowledge of infringement," Sony does apply (you know some occurs, but don't know what specific instances are infringing). Basically, it is analogous to something like this situation:
-a company where you drop off materials and employees of the company make copies for you could be contributorily infringing (the company KNOWS of actual infringing action)
-a company that has copy machines for you to use where YOU make the copies is NOT contributorily infringing (the company knows some people may infringe, but it's not aware of specific infringing actions)
A Betamax machine is like the second case. Napster is like the first case.
I'm not familiar with Usenet.com's service (although from what I've read, it's not USENET), so I can't venture a guess as to whether the judge got Usenet.com's participation wrong. However, it would all come down to whether Usenet.com has actual or constructive knowledge of infringement on its service. Actual knowledge, via Napster, may be acquired by being informed by copyright owners or through copyright infringement detection mechanisms (like Google has for YouTube).
That is not true. For example, your body requires more energy to process a gram of protein than it does to process a gram of carbohydrates, and both of those macronutrients are approximately four cal. per gram. It certainly does matter what type of calories you're inputting.
Dragon Ball Z strikes again