As a lawyer, I'm not surprised by this outcome. I admit to not closely following this case. But from what I've read, her defense arguments were really weak. Oddly enough, Ars Technica says it best:
A vigorous defense from Kiwi Camara and Joe Sibley was not enough to sway the jury, which had only to find that a preponderance of the evidence pointed to Thomas-Rasset. The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer's Ethernet port. When combined with the facts about her hard drive replacement (and her failure to disclose those facts to the investigators), her "tereastarr" username, and the new theories that she offered yesterday for the first time in more than three years, jurors clearly remained unconvinced by her protestations of innocence....
The case is a reminder that in civil trials, simply raising some doubt about liability is not enough; lawyers need to raise lots of doubt to win the case, and Camara and Sibley were unable to do so here.
I really can't emphasize that last part enough. Winning a civil trial isn't about being "right" in any objective sense. It's about convincing normal people. If your explanations (technical or otherwise) go over their heads or seem implausible, you will lose. If the jury senses any sort of deception or dishonesty, you will lose. Sometimes if they just plain don't like you, you will lose. Clearly erroneous results can get overturned on appeal, but may cases are close enough calls that an appeal won't help.
On the facts above, I'd have found her liable too. It was clearly her computer with a username she commonly used. That creates a reasonable inference that she used Kazaa on it. While there are many ways for her to rebut this presumption, the flimsy conjecture offered doesn't cut it. Especially if she seemed less than forthright.
That said, the damages award is completely insane. I'd have given nominal damages, enough to hurt but not crippling (on the order of $100-500 per song - yes, below the statutory minimum of $750). It will get reduced on appeal, but not to that level. Maybe something on the order of a few thousand per song. My guess is that the jury really disliked her dishonesty and smacked her for it with huge damages.
I won't criticize her lawyers since I don't know all the details. Maybe these were the best arguments they had. Maybe their client chose to use this defense against their recommendations. Undoubtedly the news reports distorted the story. Whatever the case, the defense was really weak. This verdict was predictable.
I know Perl inside and outside. Last year I learned Python, and currently I'm reading a book on Ruby. But that doesn't make me forget Perl, so why not use it when it fits the problem being solved. Additional languages are new tools to add to your toolbox, but they don't remove your old tools. Why stick with one language when you can use all of them as you see fit?
Absolutely, use the best tool for the job. I used Perl for about 4-5 years. Did a lot of text processing, network programming, and system administration tasks with it. Some were throw away scripts, others stuck around for a while.
Then I picked up Python. Over the next year a funny thing happened. I began using Perl less and less. Python was just so easy and clean and structured. I didn't need cpan because the standard library did 98% of the job for me. As I learned more Python, it became the best tool for the job. Even quick throw away jobs. I stopped thinking about cryptic undeclared variables and tripping over $ @ % distinctions. Python just worked. Whenever a script morphed into something beyond it's original purpose, the transition was effortless. It's been about 4 years and I haven't looked back.
I didn't give up Perl because my toolbox was full. I gave it up because it's no longer the best tool for any job. YMMV.
my previous suggestions that a death penalty be imposed for hardcore spammers.... The characteristics that indicate they have no moral boundaries to commit crimes, elude and evade security measures, hack into private computer systems and create networks of compromised computer systems used to create hell on a global scale, are the same characteristics of mass murderers.
We don't execute people for how they think, we execute for what they do.
Spam doesn't kill people. It's a huge nuisance, but at worst it disrupts communications. Hacking computers can be destructive, but we already have crimes in place to deal with that.
You're talking about imposing death for economic loss. That goes way beyond the definition of cruel and unusual in any civilized country. Until a spammer actually kills someone, you can't possibly justify taking their life. Dangerous, sure. Lock them up, demand treatment for their mental deficiencies, ok. But taking their life for thoughtcrime? Now that's scary.
Your point about generic words is dead-on. I intentionally oversimplified that part.
Once discounted - their simularities end abrubtly, one is cardboard, the other electronic, one requires players in the same room, the other stretches across the globe, and even astronauts can participate. Its a completely different product - like bicycles and airplanes really.
And a movie with images and sounds is completely different than a book of printed words. But if the movie derives from a copyrighted book without permission, it infringes. The medium is irrelevant; the amount and type of expression taken are all that matter. I've taken copyright law from a world-renowned scholar. Trust me on this. Better yet, read Nimmer's treatise on copyright.
Again, I don't know what Scrabulous actually took, just that there is plenty of potential for liability.
The publics interest in the merely functional detail is protected by patent law. (Right patent law protects the public from monopolies on ideas)
That's quite backwards. Patents don't protect the public interest in functionality at all. Rather, patents award exclusive control over functionality meeting specific criteria: novel, non-obvious, useful inventions. Certain domains are not covered: natural phenomena, abstract ideas, and laws of nature, along with inventions not meeting the criteria. And once a patent expires, its inventions fall to the public domain. But to say patent law protects these things is like saying a broken lock protects public access to a door. Or that burglars protect burglar alarms.
Trademarks are excluded from antitrust - only with respect to the actual logo - not the shape, form, and function.
Trademarks can protect any distinctive non-generic elements. Words, images, shapes, sounds (Intel inside), and even colors have been trademarked and successfully defended. Form and function would usually not qualify, and I don't know of any case where they've been trademarked. But I would not say it's completely impossible, just extremely unlikely. In this particular case, you're right, Hasbro has no trademarks on the form and function of Scrabble. Not that it matters.
This case turns on behaviors taken AFTER the take-down notices. Scrabble is now competing in the same market, and yet customers prefer Scrabulous over Scarabble. Presumably the market is aware of the differences, and making a choice.
Scrabulous can't use market preference as a defense. You can't write your own graphics program, call it Photoshop, and then say "But your honor, it outsells Adobe's Photoshop". Trading on Scrabble's mark puts Scrabulous in the wrong regardless of what the market does. Again, I don't know what Scrabulous did to possibly infringe Scrabble's trademarks. But the very name seems likely to cause confusion, a key element of trademark infringement. In fact, market preference is more likely to hurt Scrabulous than help, as it could show evidence of confusion.
Same with copyright. The idea of the game itself is not copyrightable. If that's all Scrabulous took they're off the hook. But the graphic elements of Scrabble could be copyrighted, the same as any other artwork. It's more than just copying the logo, which would be a trade dress issue. Any creative expression embodied in the look of the tiles, the board, etc can be copyrighted. The rules themselves aren't protected in substance, but copying them word-for-word from Scrabble would certainly land you in trouble. Whatever Scrabulous did, market preference has no bearing.
On the other hand Scrabble is clearly trying to exercise a monopoly interest in an existing customer base. In such cases, the victim has right too, and they ought to counter-file for protection.
Abusing a monopoly position is antitrust law. Trademarks and copyrights are clear exceptions to antitrust, allowing exclusive power over creative expression and business marks. The only way Hasbro runs afoul of antitrust law is by misusing their copyrights and trademarks to harass Scrabulous with frivolous claims. That's a tough legal standard to meet. Hasbro's lawyers are too smart to fall into that trap.
I don't buy your Premise that Scrabulous has been infringing on any "Copyrights", simply because their product duplicates the form and function of a long expired patent.
That is not my premise. I don't know what elements Scrabulous copied other than the name. I'm merely pointing out a number of things Scrabble could have protected with trademarks or copyright that Scrabulous could be infringing. Expired patents notwithstanding.
If the court concludes that the differences between a cardboard-n-wood game, and an electronic - internet power game having similar look and feel IS a diminuative difference - then this decision could be cited in every X-on-the-Internet patent as equally dissmissing the key feature of "Novelty".
Except it doesn't work that way. 1) This is a district court, their decision doesn't establish precedent. 2) If affirmed on appeal, it only sets precedent with the 2nd circuit (NY, VT, & CT). Other circuits can and will ignore it. 3) Patent cases are consolidated under the Federal Circuit. All patent cases use the Fed Circuit's rules, regardless of which state the court sits in. So does the PTO. 4) The decision would have to go all the way to the Supreme Court for it to bind the Fed Circuit. This case doesn't raise any constitutional issues, making the chance of that zero. 5) Even if it did, the Court would narrowly tailor their decision to copyright and/or trademark law. The standards for novelty in copyright and patents are completely different. A broad pronouncement encompassing patents would be unheard of.
If I were Scrabulous, I would counter sue for infringement on the new EA Scrabble version, on the grounds that the similarities between EA Scrabble and Scrabulous are greater than the similarities between Scrabble-the-Board-Game, and Scrabulous.
And you would lose. If Scrabulous copied protected expression from Scrabble, they created an infringing derivative work. If they used Scrabble's trademarks in a way likely to cause confusion, they infringed Scrabble's mark. Either way, it doesn't matter how much new stuff Scrabulous added. They are on the hook. If I steal your tv and use it to feed orphans, does that absolve me? Of course not.
Speaking as someone that is competitive, the only way we are going to 'win' as a culture or species is by branching off this rock.
The ultimate competitor is Conan the Barbarian. He disagrees wholeheartedly on what's best: "To crush your enemies, see them driven before you, and to hear the lamentations of the women."
Speaking as a realist, your space "game" is, like most games, nothing but a self-serving endeavor. Space is a harsh mistress and gravity wells chew up energy faster than Kobayashi at Nathan's hot dog contest. Space colonization will never be economical. Pretending that we can somehow "conquer" space and "win" is a fool's errand. Humanity is stuck on this rock and there's nothing anyone can do about it. Space faring will never be more than a pasttime for a small handful, like expeditions to Everest. Win? Bah. Self-indulgent tomfoolery, nothing more.
The real "win" is much closer to home. So few people share in the blessings of freedom, security, longevity, medical care, and economic opportunity. Extending those to the entirety of humankind does infinitely more good than flinging a few thrill-seekers out on joyrides around the block.
The only way to insure that our culture survives is to make sure we make it into space before or at least at the same time as everyone else.
"But mom, why can't I juggle chainsaws on a tightrope unicycle above Niagara Falls? All the guys are doing it!" Give it up. No one is going to establish a self-sufficient long-term presence off this planet. Can't be done. May as well abandon your childish notions of continuity now. People die, cultures die, species die, end of story. Life's a bitch.
This article does little to convince me of Google wrongdoing, but a lot to remind us why business model patents make no sense and ought to be done away with.
Funny, I get exactly the opposite impression. If any business method deserves patenting, it would be paid-search. Sure the concept seems obvious is hindsight. But how many search engines went bust in the 90s? Altavista, Lycos, Infoma, Ask Jeeves, Dogpile, and that's just off the top of my head. Some of those companies are still around, but they never made much money off search itself. It took quite awhile for Overture to hit on the right paid-search business model. It didn't really take off until Google perfected it after 2000.
Sounds like a non-obvious idea with great market value: exactly the type of idea patents are designed to protect. You can quibble over whether such things should be patentable (and I think they should), but once you accept that they currently are patentable, paid search is a perfect example of a good patent. The only reason the jury disallowed any of '361 patent claims was on procedural grounds: Overture filed after the 1-year deadline. But for that, the patent is perfectly legitimate.
As long as a representative group does, transparency holds.
No. I've already mentioned that it's groups or individuals in the society fighting against others, that characterises interests in an election - it is not a "us vs. government" case.
And that's exactly my point. With enough competing groups, every interest has a check on it. Neocons winning elections? Peaceniks scour the code. Big oil supporting candidates? Here come the Sierra Club inspectors. My argument has precisely nothing to do with "us" vs "government" - a false dichotomy if ever there was one.
Verifiability has to be distributed, basically at least one person from each party and/or candidate, plus a number of independent - as in not obviously invested in any party and/or candidate - observers have to be present and verify the results per polling station.
Two points:
Which parties are so small they can't find one qualified computer-trained verifier among their number? Even the Amish aren't so technologically illiterate - they choose to live without much modern technology, but have shown themselves perfectly willing and capable of doing so when the need arises.
Your first rant attacks computerized voting of any kind. I'm keenly aware that entirely computerized voting with no audit trail is a bad idea. But a verifiable paper trail solves my problem and yours: voting machine prints marked ballot, user inspects and deposits, immediate results from electronic tally, hand count of paper ballots for "official" results. Voila, instant verifiability.
"Wait!" you say. "You said expert-only verification was fine, but (computer-aided) paper ballots breaks that rule. What kind of bait-and-switch is this?" Sure, in the above example, everyone can verify the vote. But suppose the printed ballot were in ancient greek or hexadecimal or esparanto. Now only "experts" who know those languages can verify the vote. Yet the system remains secure because anyone can learn how to audit it.
Which is a long-winded way of saying: thanks for proving my point. The problem with purely computerized voting where the only tallies are bits in the ether isn't that everyone can't verify the vote, it's that no one can. Once you make the vote auditable by a sufficiently diverse class of anyones, the problem disappears. Competing interests keep everything in check.
The absolute worst is to erect barriers by using computerised systems. Using computers reduces the number of people verifying from tens of thousands to a group less than 50 - even if that - because under current conditions it's zero.
The numbers depend entirely on system specifics. Some systems are zero, which is bad. Many systems are $LARGE_NUM, which is good. As I said, the key criteria is that the class of people able to audit and verify the system must be open, meaning anyone can freely join with training. Computers are not the problem - closed systems are.
The ballot box is clearly visible for all the observers...and you verify that the numbers you have in your hand match the numbers they have used. People also verify whether the tally adds up correctly.
Key word: observers. Who observes? Not everyone. A few representatives from each group. Under my system it's the same. It just takes more to qualify as an observer.
I might add that your observers exclude people too: the blind, the infirm, the decrepit, the heavily medicated, narcoleptics, the lazy, the apathetic. Anyone who can't pay sufficient attention to the ballot box and counting process can't observe. The requirements in my system are higher, but the principle is exactly the same.
Now try to compare this to electronic voting and try to
The whole fucking point of an election is that it has to be transparent and auditable. By transparent and auditable we don't mean to an electrical engineer and a computer scientist, but to a sane adult citizen!
How would you go on about auditing a voting machine, even if the design is open? You'd have to either trust a government or civilian organization to do the auditing or do the auditing yourself, requiring months if not years to verify the design and then verify that the machine you got in the voting district behaves like it is designed to behave! This raises the verifiability bar many orders of magnitude above simple pen and paper.
It doesn't matter if everyone can verify, only that anyone can verify. Say you have a complex voting machine only understandable with a computer science education. As long as such education is open to all, the system works. Not everyone has to invest the months or years it takes understand the system. As long a representative group does, transparency holds.
How many people really understand the way paper voting works: the lock boxes, unique ballots, authentication, secure storage & transport, multiple representative counting, etc? Very few. And yet the system works because anyone can learn about and verify these things.
A sufficient population of "experts" open to all can guarantee transparency. Co-opting a diverse population of tens or hundreds of thousands of experts, each with different backgrounds and agendas, including ones devoted to democratic ideals above individual politics, is simply not feasible when one whistleblower can bring it all down. Especially when the whistleblower need not be an expert when the corruption takes place.
NAFTA has been used to fuck over the American worker.
By providing cheaper goods and services? Expanding the markets for domestic products? Raising our standard of living (as well established by numerous studies of open trade)? Sign me up!
Tax breaks for companies moving to Mexico, where rampant pollution and labor abuses aren't a problem.
Like the US was 80 years ago? Yes it's unfortunate the entire world doesn't have developed standards of living. Meanwhile, those factories spur the local economy and raise Mexican standards of living. What, did you think the Mexicans were being shackled and forced to work there? It's a crappy job by our standards, but gives them an opportunity that didn't exist before. As their economy grows, they raise their living standards and are better off. As are we.
When dollars and goods can cross borders without hindrance but people can't, then the wealthy will move factories to the next desperately poor country as soon as workers start getting comfortable in the first.
Open borders? Are Americans really clamoring to follow those factories down to Mexico? To substantially lower their living standards and work conditions? Could have fooled me. I'd have thought they'd rather stay here and get new jobs at American wages.
And that is really the heart of the anti-NAFTA crowd. They think unskilled factory workers are entitled to cushy, high-paying, middle-class, union jobs just because their daddies had them. Unfortunately time marches on. There are BILLIONS of third-world poor chomping the bit to participate in the global economy and eat our lunch. Their efforts will inevitably make the world a far richer place, in both the literal and figurative sense. Walling ourselves off from the this rising tide will only starve us of its benefits. Economic isolation went out with mercantilism for good reason. It doesn't work.
Yes, this means you have to obtain new skills and find new jobs to maintain your standard of living. Get over it.
This "corporate fat-cat raiders stealing up all the profits" is a canard. Company does well, stock goes up. Who benefits? Our pension funds. Our retirement plans. Our mutual funds. Our money market accounts. Our real estate values. Every single person in America benefits. Corporate profits are what support the lifestyle we've come to expect.
Capital will chase poverty across the globe, and everyone but the filthy rich will suffer.
Capital will chase poverty around the globe. And each place will become less poor in the process. (Rough) equilibrium will eventually set in. Getting there will cause some growing pains, but trying to hold it back is like attacking the ocean with a bucket. Too many third-world people are tired of being dirt poor to let some first-world ninnies louse it up for them.
I can only assume you make over $200,000 per year,
You're too high by almost an order of magnitude. But I hope to change that some day.
and simply don't have the same interests as I and the rest of the working class.
Half my family is working class. Forgive me for saying that you don't know your own interests. You assume a static world, where things can continue as they are forever. I don't blame you, I blame our educational system. Economics simply must be taught in high school.
Yes programming is an essential skill. I've taught a number of undergrad programming courses to all sorts of majors. Programming is mostly just structured thinking. It's a valuable skill that translates to many areas. Any complex plan benefits from basic algorithmic knowledge.
Two semesters of programming ought to be mandatory for every science major, just like calculus and physics. That includes social sciences. I'd recommend it for everyone, but wouldn't require it for the humanities.
First you have to ask what the purpose of your degree is. Are you preparing these students for graduate work? Preparing them for employment in the field? Giving them a general education which they'll employ in other fields?
The answer determines what tools you should teach them. Teach what is relevant to the destination. For grad work & research, I'd guess Matlab would be appropriate. I don't know what practicing physicists outside academia use (are there any?). For general employment, I'd suggest c or python. C is ubiquitous and interfaces with everything, but it's a bit clunky these days. Most people don't need to delve to that level. Python isn't that widely used (unfortunately), but it's a very clean and powerful language/platform. It's an excellent tool for teaching basic programming concepts without messy syntax, complex data structures, and arcane minutiae getting in the way. With a solid foundation in python, students should be able to apply those lessons to other languages on their own.
Sure we can. We simply withdraw from the onerous copyright treaties.
Easier said than done. Not such a good idea anyway. The U.S. benefits far more from international harmonization than anyone else. Don't throw out the baby with the bathwater.
And let's remember, these treaties were used to do an end-run around the proper legislative process in the US; instead of open debate amongst representatives who have to answer to their constituents, we got a fait accompli.
That's the power of the executive: to conduct foreign relations and enter treaties. It's not like they operate in a vaccuum; there are plenty of opportunities for input and negotiation. Does the process include everyone? No, certainly not. But giving more people a voice at the table makes more sense than rewriting the Constitutional powers.
On top of that, TRIPS is not self-executing. Congress still has to enact laws giving life to the treaty. There's a second chance for negotiation and compromise.
Remember, Berne et al requires the intolerable life+50 copyright term as a minimum (the US is currently at life+70).
I agree, life + X is the worst way to define a copyright term. If I were in charge I'd change it in an instant. But I'm not, and many countries have already agreed on this scheme. Participating in the established process is a much better avenue to change than calling on everyone to start from scratch.
All those people who want shorter terms than that must necessarily support their country withdrawing from these treaties. So the anti-treaty sentiment is stronger than you might think.
Yeah, people are really beating their plowshares into swords over that one.
So long as copyright registration is but the most minor of hurdles (contact information for the applicant, a couple of copies of the work for the Library of Congress, a token fee), it will serve to make the copyright system available to help those who want it, while letting the public benefit from the works of authors who don't care about copyrights in the first place.
It's irrelevant. The TRIPS agreement harmonizes intellectual property laws worldwide. It incorporates most of the Berne Convention on copyright, which requires no formalities (e.g. registration) to obtain a copyright. Since the U.S. is a signatory to TRIPS (in fact, the driving force behind it), our hands are tied. We can't require registration even if we want to.*
* well, almost. Technically TRIPS/Berne forbids formalities on foreign authors. We can make U.S. authors jump through whatever hoops we want. But putting stricter requirements on U.S. authors simply won't fly.
** or we could decide to ignore that provision of TRIPS altogether. We've been known to to do that on occasion, but it's very unlikely to happen here.
Economically, the most sensible solution is an auction of this type, for the reason that the auction winners will be the enterprises who are able to pay the most, under the principle that the reason they are able to pay the most because their goods and/or services provide or are likely to provide the greatest value to the market, and ultimately, society. Thus, you end up with the most economically efficient allocation of the spectrum.
Your entire post is basically correct. However, the key phrase above is that winners are likely to provide the greatest public benefit. That assumption may be unwarranted.
It's more more accurate to say that the winners are those who extract the most benefit for themselves. This may come from selling new services to the public, benefiting everyone. Or it may come from entrenched providers buying up the spectrum and sitting on it to stifle competition. Here the public gains nothing. In this particular market, I have a feeling the latter scenario is much more likely.
I highly recommend Spolsky's User Interface Design for Programmers as a place to start. It's short and to the point, with about a dozen guiding principles to make your UI practical. It's a light and fast read, yet substantial enough to get you off and running.
The value of their shares should be down in the single digits right now based on their income -- a P/E from 15-20 would be much more reasonable.
Investors aren't stupid. P/E isn't the end-all, be-all of company performance. It's just one measure of income. In steady, low-growth markets, PEs around 15-20 traditionally make sense. But in high-growth markets, investors bet on future rather than current earnings. P/Es can be much higher because an expanding market brings higher income even when the company's market share remains steady. It's the stock market version of "a rising tide lifts all boats".
What was Google's P/E ratio at the time of their IPO? My back of the envelope calculation says 78. As we all know, anyone who invested in Google at that time has become a penniless fool. I mean, who wants a 500% return in 3.5 years?
Whether Yahoo fits the profile of a high-growth company is another issue. But you can't dismiss Yahoo as overpriced based soley on their P/E.
The description in the summary about asking the judge not to read it is grossly misleading. The linked filing is nothing but a run-of-the-mill procedural issue.
What normally happens in court is a petitioner files a Motion, the respondent files a Response, and finally the petitioner files a Reply. Then the judge decides the issue. These are the procedural rules of litigation. The petitioner isn't allowed to make new arguments in the Reply. All their arguments must be made in the initial Motion so that the respondent has a chance to address them in the Response. The Reply gives the petitioner a final chance to address the respondent's Response arguments.
Here's what happened: University filed a motion to quash. RIAA filed their Reply. University filed a Response, which (according to the RIAA) contains new arguments. The second linked filing by the RIAA says hey that's unfair. Either ignore the new arguments that we didn't get to address, or give us a chance to address them (the Surreply in the first link). It's a perfectly legitimate request. If the University included new arguments, they broke the rules here. Either way, it's no big deal. The judge will most likely just consider the RIAA's Surreply in deciding the motion to quash. No harm, no foul. It happens all the time in civil litigation.
Dell will need to address this, and offer these dellbuntu boxes at lower price. the OS is free! if they need to include a price to cover support costs, it should still not be equal to or greater than the cost of including Vista!
OS licensing costs are the least of Dell's concerns. Ubuntu can be more expensive than Windows on the same hardware for any number of reasons. Support costs can be higher due to platform issues (e.g. usability, familiarity), personnel availability, or simple economies of scale. Manufacturing costs can be higher if producing, locating, configuring, or tuning suitable drivers involves more work than Windows, where Dell's vendors are more likely to internalize the cost themselves. Likewise with assembling, testing, shipping, etc.
Introducing more variance in any process usually results in higher costs. Simple economics.
So if he's in favour of fair use, isn't installing software also fair use (and not copying)...
No. In the U.S., "fair use" is not a right but a defense to infringement. Infringement is performing an act exclusively reserved to the copyright holder without permission — namely, copying, distributing, preparing a derivative, or publicly performing the work (17 U.S.C. 106). Normally these acts make you liable. "Fair use" says "Yes I did one of these things without permission, but it's ok because X allows me to" where X is a judicially recognized exception like research, commentary, criticism, education, parody, etc (it's an open-ended category).
Installing software is not fair use. Fair use depends on context: the same action can be fair use in one instance but not in another. It's more of an implied license. Installing software from (say) CD onto your hard disk creates another copy of it, as does loading it into RAM for execution. Creating copies is an exclusive right. Since the copyright holder knows (and in fact intends) that you make these copies to use his software, he has implicitly given you permission by authorizing the creation of the initial copy (on CD or whatever).
Yes copyright law is hopelessly obsessed with individual "copies". When you bolt pre-industrial artistic protections onto a functional digital medium, dumb things are bound to happen. Personally I can't wait for software to be distributed on a device (perhaps flash-based) which gets executed in situ (i.e. no additional copies made). That's just gonna blow some courts mind.
...and so trying to force people to accept an EULA when installing software (by claiming it's necessary to obtain a copyright license for the copying made during installation) is baseless.
A EULA is not necessary but it is enforceable. As I said, the software requires permission to install and use. In the default state (no EULA) this permission is implied. A EULA is just a set of terms supplementing the default, implied contract. Post-sale term additions to any contract are perfectly valid within certain guidelines (reasonable notice, opportunity to reject, nothing unconscionable, etc). The case law is long settled on this. So in summary, you are right that a EULA is not required for copyright purposes, but they are perfectly justified under contract law.
Yes it is hairbrained. If evidence isn't admissable in court, it isn't admissible for a reason, specifically because it has been deemed -- over years of experience -- to be unreliable. --Sam
No, actually, the rules of criminal evidence were developed to give the defendant ample opportunity to defend himself, not unfairly prejudice the jury, keep the police in line, and a whole host of other reasons, including reliability. Some evidence that isn't admissible in a criminal trial is perfectly acceptable in a civil trial. Some things that don't fly in a civil trial are fine for an immigration or welfare hearing, and even more stuff gets in when contesting a speeding ticket.
There is no one single set of evidentiary rules appropriate for every context. This isn't a criminal conviction, hence the rules need not necessarily be the same. Even a criminal trial lets in more evidence when tried before a judge (i.e. defendant waives right to jury trial), as judges are presumed to be less susceptible to the prejudicial and inflammatory effects of certain evidence.
Apologists for the law will of course claim being put on the list isn't punishment and therefore doesn't qualify for criminal protections.
Only in your strawman dreams. People who understand the Law, whether or not they support this law, will say of course the list is a form of punishment. Just like a speeding ticket is punishment. Neither of them are the same type of punishment as a criminal conviction. Different tools for different tasks. And this law's intent is not merely (or even primarily) to punish. Its primary intent is to disseminate information about the behaviors of these people so that the community can protect itself. Not a particularly good or fair way to do it, but nonetheless that's the goal.
But these are exactly the kind of uses the Constitution forbids.
Easy to say, not so easy to show. Can you point to exactly which clause or amendment forbids this law and why? This isn't some pissing contest. Courts tend to heavily frown on imprecise hand-waving "the constitution forbids it!" type arguments. What you think the constitution says and what it actually says are two different things. I've already discussed and dismissed why this law doesn't violate the due process clause. If you care to point out any others, I'll take a look at them too. In the meantime, please spare us your guesswork.
Yes, criminal conviction is a high bar. It's that way for a reason. If the state can't get over that bar, they lose; if they get to take action against the accused anyway (or without even trying), then all the protections in the criminal justice system have been eliminated.
The state has many remedies, and for good reason. Criminal conviction is just one of them, it's not mutually exclusive with any others. If a jury doesn't convict you of drunk driving, does that excuse you from paying the speeding ticket you were pulled over for? Just because the state can't throw your ass in jail doesn't mean they are (or should be) powerless. Shaping society requires many concurrent approaches.
The protections of statutes of limitations, evidentiary rules, etc are so high because the penalties for a criminal conviction are astronomical. Civil fines have much lower protections because the stakes are so much lower. This law is somewhere in the middle. Does it strike the right balance? I don't know, but I would at least weigh the harm to the individual, the safeguards against mistakes, and the benefits to society from knowing who these offenders are before reaching my decision. We can disagree where the result falls without decrying the end of the criminal justice system as we know it.
So.. you are saying that because something cant be proven, we can sidestep the whole "is it true or not" part?!
No, reread my post. I never said people we aren't sure about should be placed on the list. I'm just pointing out that there are different standards of proof. What passes for a law in physics would never be accepted as a mathematical one.
A criminal conviction is a very high standard. Sometimes evidence is excluded from a trial simply because of how the police obtained it, not based on its merit. This promotes the societal goal of making sure the police follow the rules, at the expense of letting some guilty individuals go free. It's a great system, but it's not perfect. This is just one example where the Ohio law might fill in the cracks; see my previous post for more. And please note that I never said I'm in favor of this law.
As for double jeopardy concerns, think of it this way. Just because a jury finds you not guilty of drunk driving doesn't excuse you from paying the speeding ticket you got that night. The law has many remedies, each with different kinds of safeguards.
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As a lawyer, I'm not surprised by this outcome. I admit to not closely following this case. But from what I've read, her defense arguments were really weak. Oddly enough, Ars Technica says it best:
I really can't emphasize that last part enough. Winning a civil trial isn't about being "right" in any objective sense. It's about convincing normal people. If your explanations (technical or otherwise) go over their heads or seem implausible, you will lose. If the jury senses any sort of deception or dishonesty, you will lose. Sometimes if they just plain don't like you, you will lose. Clearly erroneous results can get overturned on appeal, but may cases are close enough calls that an appeal won't help.
On the facts above, I'd have found her liable too. It was clearly her computer with a username she commonly used. That creates a reasonable inference that she used Kazaa on it. While there are many ways for her to rebut this presumption, the flimsy conjecture offered doesn't cut it. Especially if she seemed less than forthright.
That said, the damages award is completely insane. I'd have given nominal damages, enough to hurt but not crippling (on the order of $100-500 per song - yes, below the statutory minimum of $750). It will get reduced on appeal, but not to that level. Maybe something on the order of a few thousand per song. My guess is that the jury really disliked her dishonesty and smacked her for it with huge damages.
I won't criticize her lawyers since I don't know all the details. Maybe these were the best arguments they had. Maybe their client chose to use this defense against their recommendations. Undoubtedly the news reports distorted the story. Whatever the case, the defense was really weak. This verdict was predictable.
Absolutely, use the best tool for the job. I used Perl for about 4-5 years. Did a lot of text processing, network programming, and system administration tasks with it. Some were throw away scripts, others stuck around for a while.
Then I picked up Python. Over the next year a funny thing happened. I began using Perl less and less. Python was just so easy and clean and structured. I didn't need cpan because the standard library did 98% of the job for me. As I learned more Python, it became the best tool for the job. Even quick throw away jobs. I stopped thinking about cryptic undeclared variables and tripping over $ @ % distinctions. Python just worked. Whenever a script morphed into something beyond it's original purpose, the transition was effortless. It's been about 4 years and I haven't looked back.
I didn't give up Perl because my toolbox was full. I gave it up because it's no longer the best tool for any job. YMMV.
We don't execute people for how they think, we execute for what they do. Spam doesn't kill people. It's a huge nuisance, but at worst it disrupts communications. Hacking computers can be destructive, but we already have crimes in place to deal with that.
You're talking about imposing death for economic loss. That goes way beyond the definition of cruel and unusual in any civilized country. Until a spammer actually kills someone, you can't possibly justify taking their life. Dangerous, sure. Lock them up, demand treatment for their mental deficiencies, ok. But taking their life for thoughtcrime? Now that's scary.
Your point about generic words is dead-on. I intentionally oversimplified that part.
And a movie with images and sounds is completely different than a book of printed words. But if the movie derives from a copyrighted book without permission, it infringes. The medium is irrelevant; the amount and type of expression taken are all that matter. I've taken copyright law from a world-renowned scholar. Trust me on this. Better yet, read Nimmer's treatise on copyright.
Again, I don't know what Scrabulous actually took, just that there is plenty of potential for liability.
That's quite backwards. Patents don't protect the public interest in functionality at all. Rather, patents award exclusive control over functionality meeting specific criteria: novel, non-obvious, useful inventions. Certain domains are not covered: natural phenomena, abstract ideas, and laws of nature, along with inventions not meeting the criteria. And once a patent expires, its inventions fall to the public domain. But to say patent law protects these things is like saying a broken lock protects public access to a door. Or that burglars protect burglar alarms.
Trademarks can protect any distinctive non-generic elements. Words, images, shapes, sounds (Intel inside), and even colors have been trademarked and successfully defended. Form and function would usually not qualify, and I don't know of any case where they've been trademarked. But I would not say it's completely impossible, just extremely unlikely. In this particular case, you're right, Hasbro has no trademarks on the form and function of Scrabble. Not that it matters.
Scrabulous can't use market preference as a defense. You can't write your own graphics program, call it Photoshop, and then say "But your honor, it outsells Adobe's Photoshop". Trading on Scrabble's mark puts Scrabulous in the wrong regardless of what the market does. Again, I don't know what Scrabulous did to possibly infringe Scrabble's trademarks. But the very name seems likely to cause confusion, a key element of trademark infringement. In fact, market preference is more likely to hurt Scrabulous than help, as it could show evidence of confusion.
Same with copyright. The idea of the game itself is not copyrightable. If that's all Scrabulous took they're off the hook. But the graphic elements of Scrabble could be copyrighted, the same as any other artwork. It's more than just copying the logo, which would be a trade dress issue. Any creative expression embodied in the look of the tiles, the board, etc can be copyrighted. The rules themselves aren't protected in substance, but copying them word-for-word from Scrabble would certainly land you in trouble. Whatever Scrabulous did, market preference has no bearing.
Abusing a monopoly position is antitrust law. Trademarks and copyrights are clear exceptions to antitrust, allowing exclusive power over creative expression and business marks. The only way Hasbro runs afoul of antitrust law is by misusing their copyrights and trademarks to harass Scrabulous with frivolous claims. That's a tough legal standard to meet. Hasbro's lawyers are too smart to fall into that trap.
That is not my premise. I don't know what elements Scrabulous copied other than the name. I'm merely pointing out a number of things Scrabble could have protected with trademarks or copyright that Scrabulous could be infringing. Expired patents notwithstanding.
Except it doesn't work that way. 1) This is a district court, their decision doesn't establish precedent. 2) If affirmed on appeal, it only sets precedent with the 2nd circuit (NY, VT, & CT). Other circuits can and will ignore it. 3) Patent cases are consolidated under the Federal Circuit. All patent cases use the Fed Circuit's rules, regardless of which state the court sits in. So does the PTO. 4) The decision would have to go all the way to the Supreme Court for it to bind the Fed Circuit. This case doesn't raise any constitutional issues, making the chance of that zero. 5) Even if it did, the Court would narrowly tailor their decision to copyright and/or trademark law. The standards for novelty in copyright and patents are completely different. A broad pronouncement encompassing patents would be unheard of.
And you would lose. If Scrabulous copied protected expression from Scrabble, they created an infringing derivative work. If they used Scrabble's trademarks in a way likely to cause confusion, they infringed Scrabble's mark. Either way, it doesn't matter how much new stuff Scrabulous added. They are on the hook. If I steal your tv and use it to feed orphans, does that absolve me? Of course not.
The ultimate competitor is Conan the Barbarian. He disagrees wholeheartedly on what's best: "To crush your enemies, see them driven before you, and to hear the lamentations of the women."
Speaking as a realist, your space "game" is, like most games, nothing but a self-serving endeavor. Space is a harsh mistress and gravity wells chew up energy faster than Kobayashi at Nathan's hot dog contest. Space colonization will never be economical. Pretending that we can somehow "conquer" space and "win" is a fool's errand. Humanity is stuck on this rock and there's nothing anyone can do about it. Space faring will never be more than a pasttime for a small handful, like expeditions to Everest. Win? Bah. Self-indulgent tomfoolery, nothing more.
The real "win" is much closer to home. So few people share in the blessings of freedom, security, longevity, medical care, and economic opportunity. Extending those to the entirety of humankind does infinitely more good than flinging a few thrill-seekers out on joyrides around the block.
"But mom, why can't I juggle chainsaws on a tightrope unicycle above Niagara Falls? All the guys are doing it!" Give it up. No one is going to establish a self-sufficient long-term presence off this planet. Can't be done. May as well abandon your childish notions of continuity now. People die, cultures die, species die, end of story. Life's a bitch.
Funny, I get exactly the opposite impression. If any business method deserves patenting, it would be paid-search. Sure the concept seems obvious is hindsight. But how many search engines went bust in the 90s? Altavista, Lycos, Infoma, Ask Jeeves, Dogpile, and that's just off the top of my head. Some of those companies are still around, but they never made much money off search itself. It took quite awhile for Overture to hit on the right paid-search business model. It didn't really take off until Google perfected it after 2000.
Sounds like a non-obvious idea with great market value: exactly the type of idea patents are designed to protect. You can quibble over whether such things should be patentable (and I think they should), but once you accept that they currently are patentable, paid search is a perfect example of a good patent. The only reason the jury disallowed any of '361 patent claims was on procedural grounds: Overture filed after the 1-year deadline. But for that, the patent is perfectly legitimate.
And that's exactly my point. With enough competing groups, every interest has a check on it. Neocons winning elections? Peaceniks scour the code. Big oil supporting candidates? Here come the Sierra Club inspectors. My argument has precisely nothing to do with "us" vs "government" - a false dichotomy if ever there was one.
Two points:
Which parties are so small they can't find one qualified computer-trained verifier among their number? Even the Amish aren't so technologically illiterate - they choose to live without much modern technology, but have shown themselves perfectly willing and capable of doing so when the need arises.
Your first rant attacks computerized voting of any kind. I'm keenly aware that entirely computerized voting with no audit trail is a bad idea. But a verifiable paper trail solves my problem and yours: voting machine prints marked ballot, user inspects and deposits, immediate results from electronic tally, hand count of paper ballots for "official" results. Voila, instant verifiability.
"Wait!" you say. "You said expert-only verification was fine, but (computer-aided) paper ballots breaks that rule. What kind of bait-and-switch is this?" Sure, in the above example, everyone can verify the vote. But suppose the printed ballot were in ancient greek or hexadecimal or esparanto. Now only "experts" who know those languages can verify the vote. Yet the system remains secure because anyone can learn how to audit it.
Which is a long-winded way of saying: thanks for proving my point. The problem with purely computerized voting where the only tallies are bits in the ether isn't that everyone can't verify the vote, it's that no one can. Once you make the vote auditable by a sufficiently diverse class of anyones, the problem disappears. Competing interests keep everything in check.
The numbers depend entirely on system specifics. Some systems are zero, which is bad. Many systems are $LARGE_NUM, which is good. As I said, the key criteria is that the class of people able to audit and verify the system must be open, meaning anyone can freely join with training. Computers are not the problem - closed systems are.
Key word: observers. Who observes? Not everyone. A few representatives from each group. Under my system it's the same. It just takes more to qualify as an observer.
I might add that your observers exclude people too: the blind, the infirm, the decrepit, the heavily medicated, narcoleptics, the lazy, the apathetic. Anyone who can't pay sufficient attention to the ballot box and counting process can't observe. The requirements in my system are higher, but the principle is exactly the same.
It doesn't matter if everyone can verify, only that anyone can verify. Say you have a complex voting machine only understandable with a computer science education. As long as such education is open to all, the system works. Not everyone has to invest the months or years it takes understand the system. As long a representative group does, transparency holds.
How many people really understand the way paper voting works: the lock boxes, unique ballots, authentication, secure storage & transport, multiple representative counting, etc? Very few. And yet the system works because anyone can learn about and verify these things.
A sufficient population of "experts" open to all can guarantee transparency. Co-opting a diverse population of tens or hundreds of thousands of experts, each with different backgrounds and agendas, including ones devoted to democratic ideals above individual politics, is simply not feasible when one whistleblower can bring it all down. Especially when the whistleblower need not be an expert when the corruption takes place.
By providing cheaper goods and services? Expanding the markets for domestic products? Raising our standard of living (as well established by numerous studies of open trade)? Sign me up!
Like the US was 80 years ago? Yes it's unfortunate the entire world doesn't have developed standards of living. Meanwhile, those factories spur the local economy and raise Mexican standards of living. What, did you think the Mexicans were being shackled and forced to work there? It's a crappy job by our standards, but gives them an opportunity that didn't exist before. As their economy grows, they raise their living standards and are better off. As are we.
Open borders? Are Americans really clamoring to follow those factories down to Mexico? To substantially lower their living standards and work conditions? Could have fooled me. I'd have thought they'd rather stay here and get new jobs at American wages.
And that is really the heart of the anti-NAFTA crowd. They think unskilled factory workers are entitled to cushy, high-paying, middle-class, union jobs just because their daddies had them. Unfortunately time marches on. There are BILLIONS of third-world poor chomping the bit to participate in the global economy and eat our lunch. Their efforts will inevitably make the world a far richer place, in both the literal and figurative sense. Walling ourselves off from the this rising tide will only starve us of its benefits. Economic isolation went out with mercantilism for good reason. It doesn't work.
Yes, this means you have to obtain new skills and find new jobs to maintain your standard of living. Get over it.
This "corporate fat-cat raiders stealing up all the profits" is a canard. Company does well, stock goes up. Who benefits? Our pension funds. Our retirement plans. Our mutual funds. Our money market accounts. Our real estate values. Every single person in America benefits. Corporate profits are what support the lifestyle we've come to expect.
Capital will chase poverty around the globe. And each place will become less poor in the process. (Rough) equilibrium will eventually set in. Getting there will cause some growing pains, but trying to hold it back is like attacking the ocean with a bucket. Too many third-world people are tired of being dirt poor to let some first-world ninnies louse it up for them.
You're too high by almost an order of magnitude. But I hope to change that some day.
Half my family is working class. Forgive me for saying that you don't know your own interests. You assume a static world, where things can continue as they are forever. I don't blame you, I blame our educational system. Economics simply must be taught in high school.
Yes programming is an essential skill. I've taught a number of undergrad programming courses to all sorts of majors. Programming is mostly just structured thinking. It's a valuable skill that translates to many areas. Any complex plan benefits from basic algorithmic knowledge.
Two semesters of programming ought to be mandatory for every science major, just like calculus and physics. That includes social sciences. I'd recommend it for everyone, but wouldn't require it for the humanities.
First you have to ask what the purpose of your degree is. Are you preparing these students for graduate work? Preparing them for employment in the field? Giving them a general education which they'll employ in other fields?
The answer determines what tools you should teach them. Teach what is relevant to the destination. For grad work & research, I'd guess Matlab would be appropriate. I don't know what practicing physicists outside academia use (are there any?). For general employment, I'd suggest c or python. C is ubiquitous and interfaces with everything, but it's a bit clunky these days. Most people don't need to delve to that level. Python isn't that widely used (unfortunately), but it's a very clean and powerful language/platform. It's an excellent tool for teaching basic programming concepts without messy syntax, complex data structures, and arcane minutiae getting in the way. With a solid foundation in python, students should be able to apply those lessons to other languages on their own.
Easier said than done. Not such a good idea anyway. The U.S. benefits far more from international harmonization than anyone else. Don't throw out the baby with the bathwater.
That's the power of the executive: to conduct foreign relations and enter treaties. It's not like they operate in a vaccuum; there are plenty of opportunities for input and negotiation. Does the process include everyone? No, certainly not. But giving more people a voice at the table makes more sense than rewriting the Constitutional powers.
On top of that, TRIPS is not self-executing. Congress still has to enact laws giving life to the treaty. There's a second chance for negotiation and compromise.
I agree, life + X is the worst way to define a copyright term. If I were in charge I'd change it in an instant. But I'm not, and many countries have already agreed on this scheme. Participating in the established process is a much better avenue to change than calling on everyone to start from scratch.
Yeah, people are really beating their plowshares into swords over that one.
It's irrelevant. The TRIPS agreement harmonizes intellectual property laws worldwide. It incorporates most of the Berne Convention on copyright, which requires no formalities (e.g. registration) to obtain a copyright. Since the U.S. is a signatory to TRIPS (in fact, the driving force behind it), our hands are tied. We can't require registration even if we want to.*
* well, almost. Technically TRIPS/Berne forbids formalities on foreign authors. We can make U.S. authors jump through whatever hoops we want. But putting stricter requirements on U.S. authors simply won't fly.
** or we could decide to ignore that provision of TRIPS altogether. We've been known to to do that on occasion, but it's very unlikely to happen here.
Your entire post is basically correct. However, the key phrase above is that winners are likely to provide the greatest public benefit. That assumption may be unwarranted.
It's more more accurate to say that the winners are those who extract the most benefit for themselves. This may come from selling new services to the public, benefiting everyone. Or it may come from entrenched providers buying up the spectrum and sitting on it to stifle competition. Here the public gains nothing. In this particular market, I have a feeling the latter scenario is much more likely.
I highly recommend Spolsky's User Interface Design for Programmers as a place to start. It's short and to the point, with about a dozen guiding principles to make your UI practical. It's a light and fast read, yet substantial enough to get you off and running.
Investors aren't stupid. P/E isn't the end-all, be-all of company performance. It's just one measure of income. In steady, low-growth markets, PEs around 15-20 traditionally make sense. But in high-growth markets, investors bet on future rather than current earnings. P/Es can be much higher because an expanding market brings higher income even when the company's market share remains steady. It's the stock market version of "a rising tide lifts all boats".
What was Google's P/E ratio at the time of their IPO? My back of the envelope calculation says 78. As we all know, anyone who invested in Google at that time has become a penniless fool. I mean, who wants a 500% return in 3.5 years?
Whether Yahoo fits the profile of a high-growth company is another issue. But you can't dismiss Yahoo as overpriced based soley on their P/E.
The description in the summary about asking the judge not to read it is grossly misleading. The linked filing is nothing but a run-of-the-mill procedural issue.
What normally happens in court is a petitioner files a Motion, the respondent files a Response, and finally the petitioner files a Reply. Then the judge decides the issue. These are the procedural rules of litigation. The petitioner isn't allowed to make new arguments in the Reply. All their arguments must be made in the initial Motion so that the respondent has a chance to address them in the Response. The Reply gives the petitioner a final chance to address the respondent's Response arguments.
Here's what happened: University filed a motion to quash. RIAA filed their Reply. University filed a Response, which (according to the RIAA) contains new arguments. The second linked filing by the RIAA says hey that's unfair. Either ignore the new arguments that we didn't get to address, or give us a chance to address them (the Surreply in the first link). It's a perfectly legitimate request. If the University included new arguments, they broke the rules here. Either way, it's no big deal. The judge will most likely just consider the RIAA's Surreply in deciding the motion to quash. No harm, no foul. It happens all the time in civil litigation.
OS licensing costs are the least of Dell's concerns. Ubuntu can be more expensive than Windows on the same hardware for any number of reasons. Support costs can be higher due to platform issues (e.g. usability, familiarity), personnel availability, or simple economies of scale. Manufacturing costs can be higher if producing, locating, configuring, or tuning suitable drivers involves more work than Windows, where Dell's vendors are more likely to internalize the cost themselves. Likewise with assembling, testing, shipping, etc.
Introducing more variance in any process usually results in higher costs. Simple economics.
You raised two separate issues here:
No. In the U.S., "fair use" is not a right but a defense to infringement. Infringement is performing an act exclusively reserved to the copyright holder without permission — namely, copying, distributing, preparing a derivative, or publicly performing the work (17 U.S.C. 106). Normally these acts make you liable. "Fair use" says "Yes I did one of these things without permission, but it's ok because X allows me to" where X is a judicially recognized exception like research, commentary, criticism, education, parody, etc (it's an open-ended category).
Installing software is not fair use. Fair use depends on context: the same action can be fair use in one instance but not in another. It's more of an implied license. Installing software from (say) CD onto your hard disk creates another copy of it, as does loading it into RAM for execution. Creating copies is an exclusive right. Since the copyright holder knows (and in fact intends) that you make these copies to use his software, he has implicitly given you permission by authorizing the creation of the initial copy (on CD or whatever).
Yes copyright law is hopelessly obsessed with individual "copies". When you bolt pre-industrial artistic protections onto a functional digital medium, dumb things are bound to happen. Personally I can't wait for software to be distributed on a device (perhaps flash-based) which gets executed in situ (i.e. no additional copies made). That's just gonna blow some courts mind.
A EULA is not necessary but it is enforceable. As I said, the software requires permission to install and use. In the default state (no EULA) this permission is implied. A EULA is just a set of terms supplementing the default, implied contract. Post-sale term additions to any contract are perfectly valid within certain guidelines (reasonable notice, opportunity to reject, nothing unconscionable, etc). The case law is long settled on this. So in summary, you are right that a EULA is not required for copyright purposes, but they are perfectly justified under contract law.
Yes IAAL student.
No, actually, the rules of criminal evidence were developed to give the defendant ample opportunity to defend himself, not unfairly prejudice the jury, keep the police in line, and a whole host of other reasons, including reliability. Some evidence that isn't admissible in a criminal trial is perfectly acceptable in a civil trial. Some things that don't fly in a civil trial are fine for an immigration or welfare hearing, and even more stuff gets in when contesting a speeding ticket.
There is no one single set of evidentiary rules appropriate for every context. This isn't a criminal conviction, hence the rules need not necessarily be the same. Even a criminal trial lets in more evidence when tried before a judge (i.e. defendant waives right to jury trial), as judges are presumed to be less susceptible to the prejudicial and inflammatory effects of certain evidence.
Only in your strawman dreams. People who understand the Law, whether or not they support this law, will say of course the list is a form of punishment. Just like a speeding ticket is punishment. Neither of them are the same type of punishment as a criminal conviction. Different tools for different tasks. And this law's intent is not merely (or even primarily) to punish. Its primary intent is to disseminate information about the behaviors of these people so that the community can protect itself. Not a particularly good or fair way to do it, but nonetheless that's the goal.
Oh and one more thing:
Easy to say, not so easy to show. Can you point to exactly which clause or amendment forbids this law and why? This isn't some pissing contest. Courts tend to heavily frown on imprecise hand-waving "the constitution forbids it!" type arguments. What you think the constitution says and what it actually says are two different things. I've already discussed and dismissed why this law doesn't violate the due process clause. If you care to point out any others, I'll take a look at them too. In the meantime, please spare us your guesswork.
The state has many remedies, and for good reason. Criminal conviction is just one of them, it's not mutually exclusive with any others. If a jury doesn't convict you of drunk driving, does that excuse you from paying the speeding ticket you were pulled over for? Just because the state can't throw your ass in jail doesn't mean they are (or should be) powerless. Shaping society requires many concurrent approaches.
The protections of statutes of limitations, evidentiary rules, etc are so high because the penalties for a criminal conviction are astronomical. Civil fines have much lower protections because the stakes are so much lower. This law is somewhere in the middle. Does it strike the right balance? I don't know, but I would at least weigh the harm to the individual, the safeguards against mistakes, and the benefits to society from knowing who these offenders are before reaching my decision. We can disagree where the result falls without decrying the end of the criminal justice system as we know it.
No, reread my post. I never said people we aren't sure about should be placed on the list. I'm just pointing out that there are different standards of proof. What passes for a law in physics would never be accepted as a mathematical one.
A criminal conviction is a very high standard. Sometimes evidence is excluded from a trial simply because of how the police obtained it, not based on its merit. This promotes the societal goal of making sure the police follow the rules, at the expense of letting some guilty individuals go free. It's a great system, but it's not perfect. This is just one example where the Ohio law might fill in the cracks; see my previous post for more. And please note that I never said I'm in favor of this law.
As for double jeopardy concerns, think of it this way. Just because a jury finds you not guilty of drunk driving doesn't excuse you from paying the speeding ticket you got that night. The law has many remedies, each with different kinds of safeguards.