That's not actually true. The Federal Arbitration Act makes it nearly impossible to invalidate an arbitration clause. It preempt state laws and mandates enforcement of arbitration agreements. Another thing that it does is make it nearly impossible to appeal an arbitration award. That means that if the arbitrator makes a mistake of law or ignores facts, you cannot correct the errors.
It's time we all sit back and remember the first rule of dealing with cops. They do not have any obligation to tell you the truth. The courts give them a pass because criminals lie.
Note: if you lie to the police, the odds are good that you will be charged, because lying to the police is a crime.
When did she consent to let you look at her body whenever you want? When did she consent to let you observe her sexual relationship with her boyfriend? Do you feel like just because you've seen a woman naked, you have the right to walk into her home whenever you want? Do you have the right to invite your friends into her bathroom while she showers?
She didn't consent to have those particular pictures which she shared with her boyfriend disseminated to you. She did consent to have a different image presented on the magazine.
Ah, but I get it now. It's because of the way she dressed in the X-men, isn't it. Oh, because of the way she dressed on the magazine. Once a woman has done that, or its equivalent, her consent no longer matters.
Let's take this a piece at a time. First, contributory negligence is a tort doctrine, not a criminal doctrine. Second, the doctrine of contributory negligence has fallen by the wayside in most American jurisdictions. It was a shitty doctrine used by wealthy industrial interests to avoid having to pay for the injuries they caused. Third, the doctrine of contributory negligence applies to situations where both actors are negligent. Guess what? The hackers who publicized the photos didn't accidentally plug in their own usernames and passwords and suddenly find themselves in possession of naked photos of dozens of women. They didn't accidentally publish those photos to 4chan and reddit. This was intentional conduct. Which means the doctrine of contributory negligence wouldn't even come into the equation. Fourth, the doctrine of contributory negligence was tempered by the "last clear chance" doctrine. That means that, as between the two parties to the civil suit, if both were at fault (i.e., negligent), then the one who had the last clear opportunity to avoid the accident is at fault. Here, the ones who had the last clear opportunity to avoid the "accident" would be the ones who hacked into the accounts.
People are also entitled to expect others to follow the law and to act reasonably. That's one of the perks of civilization. You seem like the kind of guy who believes that people who get hurt in car crashes should have known better before getting on the highway, or maybe that women have a responsibility to keep their ankles, wrists, and heads covered.
None of the women who were targeted by the people who did this consented to have their pictures publicized. That's really the end of the blame analysis.
The problem, of course, is that the celebrities did not consent to the theft of their pictures. Right. I mean, implicit in your phrasing is that these women consented to the distribution of their nude photographs.
So if, by transmitting anything on the Internet, you consent to its disclosure and use by others, you would have no problem posting your credit card number, CVV number, expiration date, and home address posted here, right? You've used Amazon before, so you've already consented to the dissemination of that information.
The odds are that the people behind this behavior aren't 13-year olds. Likely, they're men in their 20s and 30s who think that women have no right to sexual autonomy. IOW that women exist merely to provide men with sexual gratification (except the ugly ones--they're not sure how to deal with those women). But whatever their ages, if they did this, they should go to jail. It is criminal. It is hateful. What other motivation is there to invade someone's privacy like that? Seriously. If you lose your wallet and I find it, what's the proper response? A) Look at your drivers license and try to return your wallet; or B) post your credit card information all over the internet? The fact that you were negligent in losing the wallet doesn't give me the right to take shit that doesn't belong to me.
Right, until the moment that it goes from being a single shoplifter to a shoplifting ring or a high value shoplifter. At that point, public resources do get spent on the investigation, because it becomes worthwhile. Here, you've got a case involving someone breaching the security on not just one, but dozens of accounts. This, then, falls into that later category.
Not sure where you live, bud, but in most jurisdictions, being a peeping tom is a crime. Moreover, in many jurisdictions, you peep, you get tagged as a sex offender.
That's great for the anti-vaxers and their kids, but once the vax rate drops low enough, even vaccinated kids can catch these diseases. So no, they don't die because they believed it and acted on it. They die because other people believed it and acted on it.
And trespass into a computer network. Which is what the statute was intended to discourage.
Oh, and there was that whole downloading journal articles from a business that makes its money from charging people to view them. I'm pretty sure there's something in the U.S. code about that.
Look, I don't agree with what the U.S. Attorneys did in this case, but let's be honest. Aaron Swartz was willfully and intentionally committing at least two felonies. He was doing it because he believed that we, as a people, would be better off if the information he was accessing was freely available to everyone. That's a noble goal. I agree with him.
But--if you engage in an act of civil disobedience, you have to be willing to accept the consequences, whatever they may be. That's the tradeoff--you get to break the law with a clear conscience, but you also suffer the punishment to demonstrate the injustice of the law. To say that Mr. Swartz ought not have been punished, or that his punishment should be minimal because we like what he was doing is to say that the ends justify the means. If I were to access a server room at your bank to access information that is valuable to you--like the 1s and 0s that represent your bank balance--I suspect you wouldn't be so forgiving, even if I were moving those 1s and 0s to help the poor or the sick.
I do think the prosecutors should have exercised their discretion in a less overbearing way. It makes me sad and furious that a brilliant young man is dead. But we don't do ourselves any good by glossing over the facts and minimizing what was and is at stake. Aaron Swartz wanted us to change the way we think about "intellectual property." He envisioned a world in which the work of human minds was freely available to enrich the lives of everyone. Where one person's brilliant thoughts could spark genius in minds years and miles from the source. He did so in a legal climate that inflicts draconian civil and criminal punishment on people who try to make that dream a reality. And he did it by flouting the very laws he wanted changed.
He didn't just trespass, he flipped the bird to the Federal Government. But then, when confronted with the reality that the U.S. Attorneys were going to treat him in the exact same way they treat every "criminal" they see, day after day, he realized he'd bitten off more than he could chew. And he killed himself. I don't know how to respond to the situation, because I'm mad about the whole thing. I'm mad at my government for its stupidity and heavy handed tactics, but I'm mad at Aaron Swartz for not having the courage to stand and fight or to be a political prisoner and a symbol. Hell, I'm even mad at myself for lacking the courage he had. But I'm really frustrated with the idea that we should gloss over what actually happened. The only way we can learn from what went wrong is to look at it with clear eyes.
It's not a change if it is how things already are.
In every jurisdiction within the U.S., a judge can, upon motion, enter summary judgment for one party or the other. Summary judgment can be entered if there is no genuine issue of material fact, and one party is entitled to win as a matter of law. There is no trial.
In many jurisdictions in the U.S., if the judge concludes that the case is frivolous, groundless, or vexatious, the judge may then enter an award of attorney fees for the winning party, even without a trial. However, if there are counterclaims . . . in other words, if the prevailing party is suing the losing party for other matters, then a trial is necessary, because the losing party may still have a valid defense.
But the trial doesn't continue if the judge tosses the case. It just ends. However, if (big if) the case is frivolous, groundless, or vexatious, then the judge can award attorney fees in many U.S. jurisdictions.
No one continues litigating to rack up attorney fees under the existing system.
While I generally agree with what you're saying, your post is not entirely accurate.
The truth is that a losing plaintiff often ends up with substantial expenses. While his lawyer may be on a contingency fee, his expert is likely barred from working on contingency. That means the engineer, doctor, economist, or general contractor whose testimony is key to the case is charging the plaintiff hourly for his or her work on the case. Most states prohibit plaintiff's lawyers from absorbing those costs (due to concerns about champerty and maintenance). That means that even though the case may be close, that losing plaintiff may end up on the hook for tens of thousands of dollars in costs.
So the little guy can end up bankrupt simply by losing a close case.
Actually, in the United States, barring a contract or statute to the contrary, the rule is that each party pays its own attorney fees.
In many jurisdictions, there are statutes that permit the judge to award fees if the case is groundless, frivolous, or vexatious. A few states have statutes that permit an award of fees if the defense is groundless, frivolous, or vexatious (but nobody ever thinks about that side of the equation).
If the original case is "tossed," then judgment enters for the defendant, and the case is over (unless there are counterclaims, or only some of the plaintiff's claims were tossed). A court cannot continue to hear a case that has been fully resolved (where there are no remaining claims between the parties), because there is no longer a case or controversy before it. I am not aware of any system in which the defendant must continue incurring fees in the hopes of making a losing plaintiff pay them. That's a catastrophically stupid way to run a legal system.
Obviously written by someone who has no experience with the legal system.
Look, the fact of the matter is that litigation necessarily involves disputed facts. I say you violated your non-compete, you say you didn't. You say I appropriated your trade secrets, I say I discovered them independently. That's why we have juries, to help establish an "official" set of facts.
The reality is that the best cases settle out of court before trial. Hell, in the U.S. over 97% of cases resolve prior to trial. That's because if it's a slam dunk case on liability and damages, the defendant (or his insurer) will pay to end the lawsuit. On the other hand, if the case is obviously frivolous, the plaintiff or his lawyer will dismiss the case as that becomes clear. Plaintiff's lawyers don't generally enjoy spending hours and hours of time that could be put to productive uses working on B.S. cases. We'd really prefer to take cases that have a chance of turning into revenue.
This means that the cases that are most likely going to go to trial are the rare close ones. These are generally cases where there is evidence on both sides, and no clear, slam dunk winner. In other words, these are the cases that most need a jury's input so that the parties can at least resolve their disputes and move forward.
A loser pays system does nothing to eliminate frivolous claims or defenses. It just further punishes a person who had an intractable dispute and was wrong about who the facts favor.
Not really. At $150,000 for willful infringement, and 330,000 copies, he's looking at $49,500,000,000, in damages. (SRC: 17 U.S.C. 504(c)(2)).*
That's about 1/3 of Hollywood's combined gross for every movie released 1996 and 2012 (as of last weekend). (SRC: http://www.the-numbers.com/movies/)
No due process problem with that.
--AC
*Actually, the statutory damages are per work, not per infringing act, so the real number would be reduced to reflect the number of titles he copied, not the number of copies he made).
Generally speaking, because the drafters did not explain what they meant by the term "commerce" when they drafted the Constitution, and the Court has interpreted Congressional power to regulate commerce between the States as encompassing the channels, instrumentalities, and activities of interstate commerce.
Slashdot Mirror
That's not actually true. The Federal Arbitration Act makes it nearly impossible to invalidate an arbitration clause. It preempt state laws and mandates enforcement of arbitration agreements. Another thing that it does is make it nearly impossible to appeal an arbitration award. That means that if the arbitrator makes a mistake of law or ignores facts, you cannot correct the errors.
It's time we all sit back and remember the first rule of dealing with cops. They do not have any obligation to tell you the truth. The courts give them a pass because criminals lie.
Note: if you lie to the police, the odds are good that you will be charged, because lying to the police is a crime.
The honesty street is one way.
--AC
When did she consent to let you look at her body whenever you want? When did she consent to let you observe her sexual relationship with her boyfriend? Do you feel like just because you've seen a woman naked, you have the right to walk into her home whenever you want? Do you have the right to invite your friends into her bathroom while she showers?
She didn't consent to have those particular pictures which she shared with her boyfriend disseminated to you. She did consent to have a different image presented on the magazine.
Ah, but I get it now. It's because of the way she dressed in the X-men, isn't it. Oh, because of the way she dressed on the magazine. Once a woman has done that, or its equivalent, her consent no longer matters.
--AC
You don't know shit about the law, do you?
Let's take this a piece at a time. First, contributory negligence is a tort doctrine, not a criminal doctrine. Second, the doctrine of contributory negligence has fallen by the wayside in most American jurisdictions. It was a shitty doctrine used by wealthy industrial interests to avoid having to pay for the injuries they caused. Third, the doctrine of contributory negligence applies to situations where both actors are negligent. Guess what? The hackers who publicized the photos didn't accidentally plug in their own usernames and passwords and suddenly find themselves in possession of naked photos of dozens of women. They didn't accidentally publish those photos to 4chan and reddit. This was intentional conduct. Which means the doctrine of contributory negligence wouldn't even come into the equation. Fourth, the doctrine of contributory negligence was tempered by the "last clear chance" doctrine. That means that, as between the two parties to the civil suit, if both were at fault (i.e., negligent), then the one who had the last clear opportunity to avoid the accident is at fault. Here, the ones who had the last clear opportunity to avoid the "accident" would be the ones who hacked into the accounts.
People are also entitled to expect others to follow the law and to act reasonably. That's one of the perks of civilization. You seem like the kind of guy who believes that people who get hurt in car crashes should have known better before getting on the highway, or maybe that women have a responsibility to keep their ankles, wrists, and heads covered.
None of the women who were targeted by the people who did this consented to have their pictures publicized. That's really the end of the blame analysis.
--AC
The problem, of course, is that the celebrities did not consent to the theft of their pictures. Right. I mean, implicit in your phrasing is that these women consented to the distribution of their nude photographs.
So if, by transmitting anything on the Internet, you consent to its disclosure and use by others, you would have no problem posting your credit card number, CVV number, expiration date, and home address posted here, right? You've used Amazon before, so you've already consented to the dissemination of that information.
The odds are that the people behind this behavior aren't 13-year olds. Likely, they're men in their 20s and 30s who think that women have no right to sexual autonomy. IOW that women exist merely to provide men with sexual gratification (except the ugly ones--they're not sure how to deal with those women). But whatever their ages, if they did this, they should go to jail. It is criminal. It is hateful. What other motivation is there to invade someone's privacy like that? Seriously. If you lose your wallet and I find it, what's the proper response? A) Look at your drivers license and try to return your wallet; or B) post your credit card information all over the internet? The fact that you were negligent in losing the wallet doesn't give me the right to take shit that doesn't belong to me.
--AC
Right, until the moment that it goes from being a single shoplifter to a shoplifting ring or a high value shoplifter. At that point, public resources do get spent on the investigation, because it becomes worthwhile. Here, you've got a case involving someone breaching the security on not just one, but dozens of accounts. This, then, falls into that later category.
--AC
Sex crimes are not limited to penetrative sex. In most jurisdictions, peeping toms get tagged with criminal charges.
--AC
Not sure where you live, bud, but in most jurisdictions, being a peeping tom is a crime. Moreover, in many jurisdictions, you peep, you get tagged as a sex offender.
--AC
Here's an example of why we should not be as trusting as Bennett: http://www.innocenceproject.org/understand/False-Confessions.php
--AC
They also don't have to tell you the truth when they speak to you.
You, OTOH, face serious penalties if you are not completely truthful when you speak to them.
--AC
Great. Problem's solved. The deficit has significantly decreased in the past two years. Hell, it's down 35% since last year. Yay. Problem solved.
--AC
That's great for the anti-vaxers and their kids, but once the vax rate drops low enough, even vaccinated kids can catch these diseases. So no, they don't die because they believed it and acted on it. They die because other people believed it and acted on it.
--AC
Unless you sign a written contract providing for arbitration, see 9 U.S.C. 1, et seq.
--AC
Tinder.
--AC
Yeah, gunwalking. That sounds really bad. The facts, however, are a bit different than had been reported initially.
This is an illuminating read: http://features.blogs.fortune.cnn.com/2012/06/27/fast-and-furious-truth/
--AC
And trespass into a computer network. Which is what the statute was intended to discourage.
Oh, and there was that whole downloading journal articles from a business that makes its money from charging people to view them. I'm pretty sure there's something in the U.S. code about that.
Look, I don't agree with what the U.S. Attorneys did in this case, but let's be honest. Aaron Swartz was willfully and intentionally committing at least two felonies. He was doing it because he believed that we, as a people, would be better off if the information he was accessing was freely available to everyone. That's a noble goal. I agree with him.
But--if you engage in an act of civil disobedience, you have to be willing to accept the consequences, whatever they may be. That's the tradeoff--you get to break the law with a clear conscience, but you also suffer the punishment to demonstrate the injustice of the law. To say that Mr. Swartz ought not have been punished, or that his punishment should be minimal because we like what he was doing is to say that the ends justify the means. If I were to access a server room at your bank to access information that is valuable to you--like the 1s and 0s that represent your bank balance--I suspect you wouldn't be so forgiving, even if I were moving those 1s and 0s to help the poor or the sick.
I do think the prosecutors should have exercised their discretion in a less overbearing way. It makes me sad and furious that a brilliant young man is dead. But we don't do ourselves any good by glossing over the facts and minimizing what was and is at stake. Aaron Swartz wanted us to change the way we think about "intellectual property." He envisioned a world in which the work of human minds was freely available to enrich the lives of everyone. Where one person's brilliant thoughts could spark genius in minds years and miles from the source. He did so in a legal climate that inflicts draconian civil and criminal punishment on people who try to make that dream a reality. And he did it by flouting the very laws he wanted changed.
He didn't just trespass, he flipped the bird to the Federal Government. But then, when confronted with the reality that the U.S. Attorneys were going to treat him in the exact same way they treat every "criminal" they see, day after day, he realized he'd bitten off more than he could chew. And he killed himself. I don't know how to respond to the situation, because I'm mad about the whole thing. I'm mad at my government for its stupidity and heavy handed tactics, but I'm mad at Aaron Swartz for not having the courage to stand and fight or to be a political prisoner and a symbol. Hell, I'm even mad at myself for lacking the courage he had. But I'm really frustrated with the idea that we should gloss over what actually happened. The only way we can learn from what went wrong is to look at it with clear eyes.
--AC
What the parent said. Also, this: http://blog.patrickrothfuss.com/category/heifer-international/
Pat's a big geek, and he's an author with a big geeky fan base. So giving to Worldbuilders is a geeky pursuit.
--AC
It's not a change if it is how things already are.
In every jurisdiction within the U.S., a judge can, upon motion, enter summary judgment for one party or the other. Summary judgment can be entered if there is no genuine issue of material fact, and one party is entitled to win as a matter of law. There is no trial.
In many jurisdictions in the U.S., if the judge concludes that the case is frivolous, groundless, or vexatious, the judge may then enter an award of attorney fees for the winning party, even without a trial. However, if there are counterclaims . . . in other words, if the prevailing party is suing the losing party for other matters, then a trial is necessary, because the losing party may still have a valid defense.
Your proposed system is not a change . . . .
--AC
But the trial doesn't continue if the judge tosses the case. It just ends. However, if (big if) the case is frivolous, groundless, or vexatious, then the judge can award attorney fees in many U.S. jurisdictions.
No one continues litigating to rack up attorney fees under the existing system.
--AC
While I generally agree with what you're saying, your post is not entirely accurate.
The truth is that a losing plaintiff often ends up with substantial expenses. While his lawyer may be on a contingency fee, his expert is likely barred from working on contingency. That means the engineer, doctor, economist, or general contractor whose testimony is key to the case is charging the plaintiff hourly for his or her work on the case. Most states prohibit plaintiff's lawyers from absorbing those costs (due to concerns about champerty and maintenance). That means that even though the case may be close, that losing plaintiff may end up on the hook for tens of thousands of dollars in costs.
So the little guy can end up bankrupt simply by losing a close case.
--AC
Actually, in the United States, barring a contract or statute to the contrary, the rule is that each party pays its own attorney fees.
In many jurisdictions, there are statutes that permit the judge to award fees if the case is groundless, frivolous, or vexatious. A few states have statutes that permit an award of fees if the defense is groundless, frivolous, or vexatious (but nobody ever thinks about that side of the equation).
If the original case is "tossed," then judgment enters for the defendant, and the case is over (unless there are counterclaims, or only some of the plaintiff's claims were tossed). A court cannot continue to hear a case that has been fully resolved (where there are no remaining claims between the parties), because there is no longer a case or controversy before it. I am not aware of any system in which the defendant must continue incurring fees in the hopes of making a losing plaintiff pay them. That's a catastrophically stupid way to run a legal system.
--AC
Obviously written by someone who has no experience with the legal system.
Look, the fact of the matter is that litigation necessarily involves disputed facts. I say you violated your non-compete, you say you didn't. You say I appropriated your trade secrets, I say I discovered them independently. That's why we have juries, to help establish an "official" set of facts.
The reality is that the best cases settle out of court before trial. Hell, in the U.S. over 97% of cases resolve prior to trial. That's because if it's a slam dunk case on liability and damages, the defendant (or his insurer) will pay to end the lawsuit. On the other hand, if the case is obviously frivolous, the plaintiff or his lawyer will dismiss the case as that becomes clear. Plaintiff's lawyers don't generally enjoy spending hours and hours of time that could be put to productive uses working on B.S. cases. We'd really prefer to take cases that have a chance of turning into revenue.
This means that the cases that are most likely going to go to trial are the rare close ones. These are generally cases where there is evidence on both sides, and no clear, slam dunk winner. In other words, these are the cases that most need a jury's input so that the parties can at least resolve their disputes and move forward.
A loser pays system does nothing to eliminate frivolous claims or defenses. It just further punishes a person who had an intractable dispute and was wrong about who the facts favor.
--AC
Not really. At $150,000 for willful infringement, and 330,000 copies, he's looking at $49,500,000,000, in damages. (SRC: 17 U.S.C. 504(c)(2)).*
That's about 1/3 of Hollywood's combined gross for every movie released 1996 and 2012 (as of last weekend). (SRC: http://www.the-numbers.com/movies/)
No due process problem with that.
--AC
*Actually, the statutory damages are per work, not per infringing act, so the real number would be reduced to reflect the number of titles he copied, not the number of copies he made).
I know there's something in there about regulating something between the States.
What could it be?
Oh yeah, the Commerce Clause. Article I, Section 8.
And do you really want your medical devices and/or pharmaceuticals to be manufactured in the state with the lowest level of safety regulation?
--AC
Generally speaking, because the drafters did not explain what they meant by the term "commerce" when they drafted the Constitution, and the Court has interpreted Congressional power to regulate commerce between the States as encompassing the channels, instrumentalities, and activities of interstate commerce.
--AC