The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.
In Miller v. California, the United States Supreme Court held that the First Amendment did not protect obscene speech, and that such speech could be banned by the government. However, the test for whether speech is obscene is so broad that very little pornography is subject to regulation. According to Wikipedia (since I'm too lazy to look it up on Findlaw), the three prongs of the test are:
* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, * Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, * Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).
If each if these prongs is met, then the work is obscene and may be banned.
In contrast, in Ferber v. New York, the Supreme Court held that child pornography is never protected by the First Amendment, regardless of whether it is obscene. The rationale being that the government has a compelling interest in preventing the sexual exploitation of children, and that by its nature child pornography causes injury to the children involved in its production.
So, in brief: child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene. Whorely was convicted under an obscenity statute, rather than a child pornography statute.
Tell your tech writers not to copy and paste specs or other internal documents.
Or if they do, have them save the copies without metadata. I'm not a betting man, but the odds are, your company didn't share your customer's secrets with its competition. The potential liability is too big and too obvious. Instead, I'd wager someone tried to save time by cutting and pasting one document into another as a template. The tech writer then modified the template to address the new client's needs and emailed it off. The new client then opened up track changes and read the specification information from the original document.
This wouldn't be the first time that "secure" information leaked out because someone failed to scrub a document's metadata or failed at redaction.
Do you rent your home? Do you lease your car? If you do, you have property rights in those things even though your property right will expire. At common law, a leasehold conveyed rights nearly identical to fee simple ownership (though subject to the time limits of the lease). As long as you have complied with the terms of your lease, a court will protect your lease rights against all comers (including the lessor), until the term of the lease expires. Copyright and patent law derive from common law property principles. Those principles have been inherent to the concept since the 1700s.
As has been pointed out by another poster, if we're looking at the natural order, then any concept of ownership is irrelevant unless you also have the strength to back it up. The State is merely the receptacle for its citizen's strength, which is why we fight property battles in court rather than in the street.
The problem isn't in treating intellectual property as property, the problem comes when it is treated as perpetual property. Unlimited copyright actually undermines the purposes of copyright and patents. The purpose of IP law is to promote creativity by allowing people to borrow ideas. That's why copyrights and patents are supposed to be limited in duration. The goal is to strike a balance between incentive to create (a limited period of exclusive control) and intellectual growth (fostered by allowing unfettered copying).
Do you rent your home? Does the bank have a mortgage? These are examples of situations where two individuals share rights of dominion and control over the same piece of property. Similarly, by contract, you have bartered away some of the property rights associated with ownership of your cellphone in exchange for a reduced price.
But you still own it, and the courts will enforce your ownership of the phone (which you purchased) over my ownership of it (when I take it from you).
Within this legal framework, I suggest that you'll find that your ownership of your cellphone is no different than your ownership of software you've written. The idea of ownership of ideas and inventions is grounded in property principles and has been for hundreds of years.
This is where the problem starts. Once we can agree on this point, then we can move forward. The problem is that the sides of this debate define property differently. Many people define property as tangible stuff that they own. Other people define property as stuff that the courts will enforce your right to control.
The right to control is the most basic property right, so it makes sense that some folks will use that definition. But most people deal with the right in the context of their house, their clothes, or their car, but not in the context of ideas or expressions.
Until we agree on a meaning, the sides will be talking past each other.
Having brought a similar challenge to Microsoft's use of an anti-piracy statutory damages provision, I can only wish Ms. Barker good luck. The U.S. District Court for the District of Colorado issued a brief, two page ruling which essentially said that Congress has the power to impose big statutory damages because "the statutory damages remedy recognizes the difficulty in quantifying the harm that may result from the illicit distribution of [the subject of Microsoft's lawsuit] which may be used in the sale of non-Microsoft products to the confusion of the public and damage to Microsoft's goodwill and business reputation. These statutory damages are comparable to those available for copyright infringement under 17 U.S.C. s 504(c)."
I said the perp "feels shamed due to personal and professional failings and feels that he is unable to provide for his family."
I think that incarceration and being know around the world as "Spam King" might be sufficient to 1) show personal and professional failings and 2) might engender feelings that one is unable to provide for ones family. We don't know where he hid his assets. He could have put them all into offshore accounts. He could have bought dinner at Morton's every night. Hell, he could have paid cash for his house and cars.
I'd still argue he fits the profile for a family annihilator type murderer.
Narcissism is actually a good term for it. From what I've read about mass murderers, that's an excellent descriptor. Shortly after the Virginia Tech shootings, there was an editorial in Newsweek (not the most reliable magazine, I know) that discussed that our culture has failed to understand the shooters in these cases. We often want to try and understand their conduct by imagining them to be tortured, depressed loners. While there is an element of truth to that (in that there is some indication that they tend toward the depressive), this analysis overlooks the narcissistic traits that drive their behavior. It is not enough for these people to kill themselves. Anyone can commit suicide. They feel the compulsion to commit their suicide in a way that will force others to have to confront it. As a result, they commit suicide by killing others first. This may explain why Cho, Harris, and Klebold took such great efforts to document what they were doing. If you don't leave a detailed enough "suicide note," you won't make the national news.
Specifically, let me call out the following information: "The majority of victims and perpetrators involved in homicide/suicide incidents were non-Hispanic white."
However, the study (which deals with all kinds of murder-suicides, rather than what is referred to as a "Family Annihilator" murder) notes that "the percentage of African Americans involved in homicide/suicide incidents is higher than their representation in participating states (approximately 16.7% in both years)."
However, other studies have found that "A significant shift in the characteristics of location, perpetrators, and victimology of such events between the two cohorts is demonstrated: events changed from urban, multiple victim events with a majority of white perpetrators to rural, dyadic events in which victims did not live with perpetrators, the majority of whom were black." Murder-Suicide in Central Virginia: A Descriptive Epidemiologic Study and Empiric Validation of the Hanzlick-Koponen Typology.
Adjusting for the differences in murder-suicide types, we can infer that the multiple victim family event is more common among whites than blacks.
This is not a normative statement. I cannot explain the reasons why these men do what they do. I can hypothesize, as I have done, but at the end of the day, the data supports the conclusion that white men are more often the perpetrators of this kind of violence then black men. Sadly the perpetrators of these crimes are rarely available for post-event interviews.
I'm not a forensic psychologist, or an epidemiologist. I have read some reputable secondary sources on this subject in the course of working in my field and am relying on the experts for that information, much in the way that I rely on experts in explaining the intricacies of stellar fusion or string theory. If you care to provide contrary data, I would be more than happy to review it and revise my understanding of this kind of homicide.
Hey, I have seen no causative explanation for why it is more common among white males.
However, given that the American middle class skews more toward Caucasian, I can speculate that anxiety about falling out of that socio-economic group gnaws more heavily upon members of that ethnic group. But that's idle speculation.
Statistically, it's mainly white males who perpetrate these crimes. In addition, and I did leave this out of my previous point, it tends to be middle class and upper middle class heads of household who perpetrate these kinds of crimes.
I can't believe a father would really kill his innocent little child.
This kind of murder-suicide is a relatively common experience (murder-suicides being highly uncommon events in the first place). Customarily, they are committed by Caucasian men. The shrinks and the profilers believe that this particular type of murder is an insidious relative of a "vanilla" suicide. The male figure feels shamed due to personal and professional failings and feels that he is unable to provide for his family. In a state of depression he determined to kill himself. However, the basis for the suicidal impulse is the fear of being unable to care for the family, a result guaranteed by the suicide. Therefore, the perpetrator, as "patriarch" decides to commit suicide for the entire family. That way, he can prevent them from dealing with the consequences of his failings and his suicide. These cases often appear in connection with financial failures.
We've been trying to put the Aurora to use for years. Back in the 60's, my father spent a lot of time in Homer, Alaska working on a Stanford Research Institute project to determine whether we could use the Aurora Borealis as a distant early warning system to detect Soviet transpolar ICBM launches. The theory was that, because the Aurora was a big electromagnetic storm, tossing a large hunk of ferromagnetic metal through it would cause a disruption that could be detected over the horizon.
I don't what the ultimate results of the project were (though I suspect that it was not successful since we didn't use the aurora for that purpose), but Dad fell in love with the environment and the community up in Alaska. The place had such an impact that he made my mother promise to move there before they got married. That's why I grew up with this as the view from my bedroom window.
Except that Dark Matter as we currently understand it is not simply matter that's "in the dark." Under current cosmological theory, regular baryonic matter, makes up only a small fraction of the universe, with dark matter (i.e., non-baryonic matter) making up some of the rest and dark energy making up approximately 70%.
So while this object contributes to some of the missing mass in the universe, it's probably not the kind of thing that properly would be called dark matter.
If it is, we're going to have to reevaluate the age of the universe.
Theoretically speaking, it should take longer than the current estimated age of the universe for a star to go through the evolution to red giant to white dwarf to black dwarf.
And if you're still following this after this much time, Wizards has finally clarified their position. It's available at EN World.
mxyzplk, FYI, I've submitted a story here about it, and in an attempt to be fair I do state that we can't tell whether a miscommunication between WotC and Orcus caused the furore, or whether WotC has changed its position as a result of that furore.
Well, yes and no. Technically, they're employees of an administrative agency within the executive branch. Administrative agencies can combine the roles of all three branches (rule making, enforcement, and adjudication) into a single specialized unit. Some agencies only fill two roles. Judges, such as the BPAI members are "administrative law judges." However, the Constitution defines what powers our government can exercise. The jurisdictional defects aren't cured by the fact that the ALJs are within the executive branch. As judges, their power flows from the Constitution. If they lack authority to do an act, because, for example, they aren't properly appointed, then they still lack jurisdiction.
You want the short version? Inferior officers are those who exercise significant authority pursuant to the laws of the United States. These judges are charged with the authority of reviewing patent decisions. That is a significant exercise of power.
In addition, jurisdiction refers to a court's ability to hear a particular case. Any action taken by a court lacking jurisdiction is a nullity. If these appointments were made in violation of the Constitution, then these courts lacked jurisdiction to address the issues presented to them. Jurisdiction is an issue that can be raised at any time in a legal proceeding, even during an appeal.
Finally, the issue is already out of the Federal District Court, and in front of the Supreme Court on a Petition for Cert. Article III gives the Supreme Court original jurisdiction over "all cases affecting ambassadors, other public ministers and consuls." The patent judges involved are "public ministers." Because the Supreme Court has original jurisdiction (meaning that it is the only court in which jurisdiction is proper), the federal appellate courts were never involved. The federal appellate courts' jurisdiction is regulated by statute, which the Constitution permits (and in fact requires).
Oh, and the circuit courts don't get to certify actions for review. The Supreme Court, and only the Supreme Court, decides what cases it will hear. Otherwise, the courts of appeal could simply refuse to certify any of their decisions for review, thereby avoiding the possibility that the Supreme Court would ever reverse them.
Slashdot Mirror
It's a bad summary.
The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.
In Miller v. California, the United States Supreme Court held that the First Amendment did not protect obscene speech, and that such speech could be banned by the government. However, the test for whether speech is obscene is so broad that very little pornography is subject to regulation. According to Wikipedia (since I'm too lazy to look it up on Findlaw), the three prongs of the test are:
* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
* Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
* Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).
If each if these prongs is met, then the work is obscene and may be banned.
In contrast, in Ferber v. New York, the Supreme Court held that child pornography is never protected by the First Amendment, regardless of whether it is obscene. The rationale being that the government has a compelling interest in preventing the sexual exploitation of children, and that by its nature child pornography causes injury to the children involved in its production.
So, in brief: child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene. Whorely was convicted under an obscenity statute, rather than a child pornography statute.
--AC
Tell your tech writers not to copy and paste specs or other internal documents.
Or if they do, have them save the copies without metadata. I'm not a betting man, but the odds are, your company didn't share your customer's secrets with its competition. The potential liability is too big and too obvious. Instead, I'd wager someone tried to save time by cutting and pasting one document into another as a template. The tech writer then modified the template to address the new client's needs and emailed it off. The new client then opened up track changes and read the specification information from the original document.
This wouldn't be the first time that "secure" information leaked out because someone failed to scrub a document's metadata or failed at redaction.
--AC
It was also very much based on Dune II.
--AC
Do you rent your home? Do you lease your car? If you do, you have property rights in those things even though your property right will expire. At common law, a leasehold conveyed rights nearly identical to fee simple ownership (though subject to the time limits of the lease). As long as you have complied with the terms of your lease, a court will protect your lease rights against all comers (including the lessor), until the term of the lease expires. Copyright and patent law derive from common law property principles. Those principles have been inherent to the concept since the 1700s.
As has been pointed out by another poster, if we're looking at the natural order, then any concept of ownership is irrelevant unless you also have the strength to back it up. The State is merely the receptacle for its citizen's strength, which is why we fight property battles in court rather than in the street.
The problem isn't in treating intellectual property as property, the problem comes when it is treated as perpetual property. Unlimited copyright actually undermines the purposes of copyright and patents. The purpose of IP law is to promote creativity by allowing people to borrow ideas. That's why copyrights and patents are supposed to be limited in duration. The goal is to strike a balance between incentive to create (a limited period of exclusive control) and intellectual growth (fostered by allowing unfettered copying).
--AC
Do you rent your home? Does the bank have a mortgage? These are examples of situations where two individuals share rights of dominion and control over the same piece of property. Similarly, by contract, you have bartered away some of the property rights associated with ownership of your cellphone in exchange for a reduced price.
But you still own it, and the courts will enforce your ownership of the phone (which you purchased) over my ownership of it (when I take it from you).
Within this legal framework, I suggest that you'll find that your ownership of your cellphone is no different than your ownership of software you've written. The idea of ownership of ideas and inventions is grounded in property principles and has been for hundreds of years.
--AC
Define property.
This is where the problem starts. Once we can agree on this point, then we can move forward. The problem is that the sides of this debate define property differently. Many people define property as tangible stuff that they own. Other people define property as stuff that the courts will enforce your right to control.
The right to control is the most basic property right, so it makes sense that some folks will use that definition. But most people deal with the right in the context of their house, their clothes, or their car, but not in the context of ideas or expressions.
Until we agree on a meaning, the sides will be talking past each other.
--AC
Having brought a similar challenge to Microsoft's use of an anti-piracy statutory damages provision, I can only wish Ms. Barker good luck. The U.S. District Court for the District of Colorado issued a brief, two page ruling which essentially said that Congress has the power to impose big statutory damages because "the statutory damages remedy recognizes the difficulty in quantifying the harm that may result from the illicit distribution of [the subject of Microsoft's lawsuit] which may be used in the sale of non-Microsoft products to the confusion of the public and damage to Microsoft's goodwill and business reputation. These statutory damages are comparable to those available for copyright infringement under 17 U.S.C. s 504(c)."
Good luck Ms. Barker.
--AC
I said the perp "feels shamed due to personal and professional failings and feels that he is unable to provide for his family."
I think that incarceration and being know around the world as "Spam King" might be sufficient to 1) show personal and professional failings and 2) might engender feelings that one is unable to provide for ones family. We don't know where he hid his assets. He could have put them all into offshore accounts. He could have bought dinner at Morton's every night. Hell, he could have paid cash for his house and cars.
I'd still argue he fits the profile for a family annihilator type murderer.
--AC
Correction: It was Time (a much more reliable source). Here's the link: http://www.time.com/time/magazine/article/0,9171,1612688,00.html.
--AC
Narcissism is actually a good term for it. From what I've read about mass murderers, that's an excellent descriptor. Shortly after the Virginia Tech shootings, there was an editorial in Newsweek (not the most reliable magazine, I know) that discussed that our culture has failed to understand the shooters in these cases. We often want to try and understand their conduct by imagining them to be tortured, depressed loners. While there is an element of truth to that (in that there is some indication that they tend toward the depressive), this analysis overlooks the narcissistic traits that drive their behavior. It is not enough for these people to kill themselves. Anyone can commit suicide. They feel the compulsion to commit their suicide in a way that will force others to have to confront it. As a result, they commit suicide by killing others first. This may explain why Cho, Harris, and Klebold took such great efforts to document what they were doing. If you don't leave a detailed enough "suicide note," you won't make the national news.
--AC
Here's some data for you:
http://injuryprevention.bmj.com/cgi/content/full/12/suppl_2/ii33
Specifically, let me call out the following information: "The majority of victims and perpetrators involved in homicide/suicide incidents were non-Hispanic white."
However, the study (which deals with all kinds of murder-suicides, rather than what is referred to as a "Family Annihilator" murder) notes that "the percentage of African Americans involved in homicide/suicide incidents is higher than their representation in participating states (approximately 16.7% in both years)."
However, other studies have found that "A significant shift in the characteristics of location, perpetrators, and victimology of such events between the two cohorts is demonstrated: events changed from urban, multiple victim events with a majority of white perpetrators to rural, dyadic events in which victims did not live with perpetrators, the majority of whom were black." Murder-Suicide in Central Virginia: A Descriptive Epidemiologic Study and Empiric Validation of the Hanzlick-Koponen Typology.
Adjusting for the differences in murder-suicide types, we can infer that the multiple victim family event is more common among whites than blacks.
This is not a normative statement. I cannot explain the reasons why these men do what they do. I can hypothesize, as I have done, but at the end of the day, the data supports the conclusion that white men are more often the perpetrators of this kind of violence then black men. Sadly the perpetrators of these crimes are rarely available for post-event interviews.
I'm not a forensic psychologist, or an epidemiologist. I have read some reputable secondary sources on this subject in the course of working in my field and am relying on the experts for that information, much in the way that I rely on experts in explaining the intricacies of stellar fusion or string theory. If you care to provide contrary data, I would be more than happy to review it and revise my understanding of this kind of homicide.
--AC
In two seconds of googling, I was able to locate this:
http://www.springerlink.com/content/t64u02292024k516/
I'm sure additional research could lead to additional information, but I have a hearing to get to this afternoon.
--AC
Hey, I have seen no causative explanation for why it is more common among white males.
However, given that the American middle class skews more toward Caucasian, I can speculate that anxiety about falling out of that socio-economic group gnaws more heavily upon members of that ethnic group. But that's idle speculation.
Statistically, it's mainly white males who perpetrate these crimes. In addition, and I did leave this out of my previous point, it tends to be middle class and upper middle class heads of household who perpetrate these kinds of crimes.
--AC
I can't believe a father would really kill his innocent little child.
This kind of murder-suicide is a relatively common experience (murder-suicides being highly uncommon events in the first place). Customarily, they are committed by Caucasian men. The shrinks and the profilers believe that this particular type of murder is an insidious relative of a "vanilla" suicide. The male figure feels shamed due to personal and professional failings and feels that he is unable to provide for his family. In a state of depression he determined to kill himself. However, the basis for the suicidal impulse is the fear of being unable to care for the family, a result guaranteed by the suicide. Therefore, the perpetrator, as "patriarch" decides to commit suicide for the entire family. That way, he can prevent them from dealing with the consequences of his failings and his suicide. These cases often appear in connection with financial failures.
--AC
We've been trying to put the Aurora to use for years. Back in the 60's, my father spent a lot of time in Homer, Alaska working on a Stanford Research Institute project to determine whether we could use the Aurora Borealis as a distant early warning system to detect Soviet transpolar ICBM launches. The theory was that, because the Aurora was a big electromagnetic storm, tossing a large hunk of ferromagnetic metal through it would cause a disruption that could be detected over the horizon.
I don't what the ultimate results of the project were (though I suspect that it was not successful since we didn't use the aurora for that purpose), but Dad fell in love with the environment and the community up in Alaska. The place had such an impact that he made my mother promise to move there before they got married. That's why I grew up with this as the view from my bedroom window.
--AC
Of course, I'm from Alaska, where we joke that someday we'll cut Alaska in half and make Texas the third largest state in the union.
--AC
I'm trying to find the fairness doctrine part of the letter, and frankly, I'm having difficulty.
--AC
I'll third this. Tunnel in the Sky is an excellent novel for pre-teen boys, especially if they have any interest in scouting.
--AC
I have all of the above.
The PS3 makes a fine blu-ray player. But most of my gaming takes place on the Xbox 360 or Wii.
None of them suck. They just feed different interests.
--AC
Except that Dark Matter as we currently understand it is not simply matter that's "in the dark." Under current cosmological theory, regular baryonic matter, makes up only a small fraction of the universe, with dark matter (i.e., non-baryonic matter) making up some of the rest and dark energy making up approximately 70%.
So while this object contributes to some of the missing mass in the universe, it's probably not the kind of thing that properly would be called dark matter.
--AC
If it is, we're going to have to reevaluate the age of the universe.
Theoretically speaking, it should take longer than the current estimated age of the universe for a star to go through the evolution to red giant to white dwarf to black dwarf.
If it is a black dwarf, that'd be flipping cool.
--AC
I can confirm at least one sale to an attorney.
--AC
And if you're still following this after this much time, Wizards has finally clarified their position. It's available at EN World.
mxyzplk, FYI, I've submitted a story here about it, and in an attempt to be fair I do state that we can't tell whether a miscommunication between WotC and Orcus caused the furore, or whether WotC has changed its position as a result of that furore.
--AC
Well, yes and no. Technically, they're employees of an administrative agency within the executive branch. Administrative agencies can combine the roles of all three branches (rule making, enforcement, and adjudication) into a single specialized unit. Some agencies only fill two roles. Judges, such as the BPAI members are "administrative law judges." However, the Constitution defines what powers our government can exercise. The jurisdictional defects aren't cured by the fact that the ALJs are within the executive branch. As judges, their power flows from the Constitution. If they lack authority to do an act, because, for example, they aren't properly appointed, then they still lack jurisdiction.
--AC
You want the short version? Inferior officers are those who exercise significant authority pursuant to the laws of the United States. These judges are charged with the authority of reviewing patent decisions. That is a significant exercise of power.
In addition, jurisdiction refers to a court's ability to hear a particular case. Any action taken by a court lacking jurisdiction is a nullity. If these appointments were made in violation of the Constitution, then these courts lacked jurisdiction to address the issues presented to them. Jurisdiction is an issue that can be raised at any time in a legal proceeding, even during an appeal.
Finally, the issue is already out of the Federal District Court, and in front of the Supreme Court on a Petition for Cert. Article III gives the Supreme Court original jurisdiction over "all cases affecting ambassadors, other public ministers and consuls." The patent judges involved are "public ministers." Because the Supreme Court has original jurisdiction (meaning that it is the only court in which jurisdiction is proper), the federal appellate courts were never involved. The federal appellate courts' jurisdiction is regulated by statute, which the Constitution permits (and in fact requires).
Oh, and the circuit courts don't get to certify actions for review. The Supreme Court, and only the Supreme Court, decides what cases it will hear. Otherwise, the courts of appeal could simply refuse to certify any of their decisions for review, thereby avoiding the possibility that the Supreme Court would ever reverse them.
--AC