I had more than a few pairs of pants with pockets eaten through by keys. After eliminating all but the most essential keys, I bought a leather key wallet. The wallet protects your pocket lining from the keys, and pretty much silences them. I would opt for the kind with plain hooks instead of the latching kind because they're simpler and far less likely to break. This is the old-fashion solution and strikes me as far more elegant than a carabiner.
That's not even remotely true. Most major metropolitan school districts in my state (California) cater mostly to the mediocre, and offer advanced classes to some kids who are better at following instructions, and minimal training to problem kids. The control ought to be more fine-grained than this. The problem kids, for example, are all just lumped together, even if no rational person would think that prudent. For example, at one school I know of, the mentally disabled kids are placed with kids who are just too far behind other kids of the same age, and both groups are blended with kids who are just disciplinary issues, with no ability on the part of the teacher to deal with each situation in an appropriate way.
Thanks, standardized testing!
Of course, the modern purpose is something quite different now. For example, in California, we get Penal Code Section 1170(a) which says, in part:
The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.
Whether this sort of thing has any tendency whatsoever to reduce crime is subject to debate.
I wonder if that's what the RIAA has. They've got the business guys and the lobbyists to put weight on the lawmakers, but when it comes to applying the law itself, they've hired a bunch of guys who are the equivalent of an MCSE with a mail-order diploma? Not having direct experience in litigation with RIAA's lawyers, I shouldn't say. Sadly, however, as foolish as some positions seem, not all judges are equal to the task of sorting the rubbish. What I find annoying in my own law practice against similarly well-heeled opponents, is the great reluctance of the bench to sanction some kinds of lawyers or parties for abuse of the judicial system.
I would very much love to see NYCL get a dismissal or considerable sum of cash as a sanction as a result of time wasted on egregious tactics.
Not only that, but Schultz didn't really found Starbucks. He joined 11 years after the company was started, then started his own company based on his experience with espresso in Milan. Afterward, he created Il Giornale, and eventually acquired Starbucks, and changed his own company's name... It's all right here:
Sure the judge could deny the motion and feel that plaintiffs should be entitled to some pretrial discovery.
But he's under no requirement to do so, especially since the plaintiffs have zero evidence to begin with.
Bear in mind that the plaintiffs need more than "surmise" and "conjecture" to defeat a summary judgment motion, they're supposed to have at least some hard core evidence.
I think the case law is fairly clear, even if counsel didn't find it, that a Plaintiff who states a prima facie case (haven't looked, but by now counsel blew Rule 12(b) time requirements) has a due process right to conduct discovery. The cases all pretty much say that the language of the Rules is that way so that moving parties who have a complete defense, like immunity (or state secrets...) can move for it without being put through discovery because discovery will not shed further light on the situation. Not so here.
Regarding "surmise and conjecture," you're right, but the purpose of discovery is to get beyond that. Your interpretation of the Rules would have dire consequences for parties in other kinds of actions which I think you would not like to see. Imagine applying that rule to a case in which Plaintiff's decedent was crushed to death by blue ice from an airline jet. Would you think it fair if the airline moved for immediate summary judgment, without discovery? Just about any res ipsa negligence case could be disposed of this way by summary judgment, and the default corporate mantra of "deny everything" would carry the day.
Summary judgment is more appropriate after Discovery. I've seen judges do lots of stupid things, but for that reason, I think that RIAA should win this motion unless their attorney is asleep at the switch. I'm willing to bet you a beer, in fact. You have to fly to L.A. to get it, though. If I lose the bet, I'll have to fly to New York, I suppose.:-)
That's not to say counsel is a "moron." Tactically, it's a nice move - it puts RIAA on the defensive, and that would be the posture I would like to carry through to trial. "David v. Goliath" as a trial theme has a lot of resonance. But if this motion is the stone that slays the giant, I think he'll take a few staggering steps before crashing to the ground. And that's as it should be.
In light of your experience (which outweighs my own), I'll revise my claim: Defendant should not win this motion for reasons of fairness, as perverse as that sounds in this particular instance. The threat of bad precedent alone leads me to that conclusion, much as it pains me to say RIAA should win anything. In this case, I hope Defendant loses this battle, but rallies to win the war.
I think you'll have to try to find any actual lies contained in Plaintiff's pleadings. Circumstantial evidence is still admissible. By itself, I agree that the IP address evidence isn't conclusive, but it's something, and in the absence of other facts, it's not unreasonable to target your attention in that direction.
If someone spammed you from 192.168.0.55 (for example, obviously), wouldn't you strongly suspect the person who owned the account to which that IP address was assigned (dynamic or static) is the spammer? Assuming you could give the spammer a legal kick to the groin, wouldn't that be a logical starting point?
It is clear the RIAA's intent is "Discovery only for annoyance, embarrassment and oppression".
What makes you say this? I don't see that it's clear. Plaintiff's lawyers are zealously advocating on behalf of their client. More importantly, they are arguing a legally correct position. If they find infringing files on Defendant's computer, that may be evidence against him. In his deposition, he can explain who else had access to his network (open wireless?) and other facts that will present Plaintiff with a clearer picture of what's going on. In the process, they might find some other likely target and dismiss against Defendant (which is why Rule 26's informal disclosure can be helpful), or perhaps Defendant will yield knowing that Plaintiff used the discovery process to find enough information to make settlement attractive.
I agree with you that complying with RIAA's discovery process could be burdensome for Defendant. Turning over his entire computer or network for the duration of a lawsuit is unhelpful and clearly excessive. If I were the judge, I'd appoint a someone as a "special master" to send an expert on-site. The expert can look at the network equipment, check its configuration and see if any logs exist on it (most consumer routers make this pretty unlikely). Then the geek can make a couple mirror images of the hard drive(s), and give copies to both parties. I assume there's a way to find a discovery compromise that minimizes burden to Defendant.
Do you think it would be more fair if Defendant's could get an award of reasonable attorney fees from RIAA or MPAA if the Defendant prevails in the lawsuit? (Then you wouldn't have to worry as much that the mere filing of the lawsuit would permanently harm an innocent party.)
The misspellings in the pleadings are of no consequence under the doctrine of idem sonans. Reading these pleadings suggests two combatants in the Amphitheatrum Flavium, armed with sporks--someone will inevitably be the victor, but not before much hilarity ensues.
P.S.: Since Defendant made an issue of the incorrect spelling of his name ("Paule" instead of "Paul"), both parties attorneys may want to consider the doctrine of idem sonans and get over it. The misspelling of his name is probably SBC's fault, but in any case is irrelevant, even if somewhat embarrassing. It's exactly as if someone said "Linucks is better than Windoze 98." Rife with misspellings, but we all know what the person meant and, more importantly, we know that the proposition is indubitable.
The parties have a right to conduct pre-trial discovery. See, for example, Federal Rules of Civil Procedure, Rules 26-37. See also, Federal Rules of Civil Procedure, Rule 56, which allows the Plaintiff to simply file affidavits from its investigators, along with the subpoenaed information, showing that the ISP states that Defendant was using the relevant IP address at the relevant time and that he was allowing others to infringe on copyrighted material owned by Plaintiff. If all these things are set out, RIAA will probably win, since this should probably be enough evidence to show that there exists "a genuine issue as to any material fact" (Rule 56(c)) or at least convince the court to permit discovery before hearing the Motion for Summary Judgment.
Rule 56 provides that summary judgment motions can be made at any time primarily because some defenses can be asserted such that it would be unfair to subject the defendant to the cost and burden of the discovery process, for example an immunity defense. A motion which doesn't assert some legal defense, but instead relies on the lack of a developed factual record is premature before the parties have engaged in discovery. Courts deny these kinds of motions all the time. See, for example, Behrens v. Pelletier, 516 U.S. 299 (1996)("The court also denied petitioner's summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery.")
Moreover, Rule 56(f) clearly permits the District Court to deny the motion or to continue the motion until after discovery.
Defendant is going to lose this motion. Tactically, it's questionable whether this is a good idea - if the court continues the motion, it may expedite discovery and fast-track the case. On the other hand, if Defense counsel thought she was going to win on this motion, she's a moron. FWIW, she's been a lawyer in Illinois for less than two years. Draw your own conclusions.
It's clear from the discussions here on/. that most of the commentators, as usual, haven't read any of the documents actually linked to in the summary. Basically, RIAA says everything I've said, but provides better authority (my comment would be clearly better, if only I was billing someone $250/hr to write this...;-) for the proposition that the parties have a right to discovery before Summary Judgment Motions are heard. Moreover, the case they cite for this proposition, Celotex is well known to even neophyte civil litigators. (Except, of course, for Defendant's counsel.)
What's most interesting about this whole thing is not that Defendant will lose this motion, but that Defendant is probabl going to get his case set on an expedited schedule, have his deposition taken, and then fight over the inevitable discovery compliance motion RIAA will file when Defendant tries to avoid allowing an expert to examine his hard drive to see whether he actually downloaded the tunes, or ripped them as he stated under oath. Defendants have lots of legitimate reasons not to want to allow someone to inspect their hard drive, of course, so it will be interesting to see how the court strikes a balance between Defendant's privacy in irrelevant data with Plaintiff's right to discovery.
Well, obviously, whatever pre-lawsuit inquiry they've done in that case was really screwed up. In fact, I'd bet that some low-level flunky lost their job over it.
Based on what I recall of how they can investigate these things, RIAA, MPAA, BSA, etc. hire firms who man their P2P clients all day and try to ferret out IP addresses. Then they have to go to the usual places to figure out who controls the block of IP addresses and hit the ISP up for information. Possibly, they are using (or misusing) subpoenas to obtain records identifying the ISP's customer. At least, that's how I'd look into doing something like that if I were them.
If you're aware of any good descriptions of exactly how they investigate these things, I'd love to know. But in the examples above, it seems more likely to be a case of mistaken-identity (or even a total identity cock-up), rather than a case of an audio file that turned out to be public domain or something like that. In other words, a real infringing file (because someone was going to have to testify that they downloaded Britney_Spears.mp3 to kick the whole thing off. The file is not where they screwed up.
I don't deny that mistakes happen. In these cases you mention, it was very embarrassing to RIAA, and the lawyers did the right thing by seeking dismissal when the truth came to light. That's as it should be.
Personally, this area of litigation is interesting to me. But I think RIAA is barking up the wrong tree with its enforcement schemes. The real problem is finding a method of getting people to pay for your product, instead of stealing it. It's simply not the case that it's an easy problem for them to solve, especially as far behind in the game as they are.
Yes, copyright violations are explicitly forbidden; but not every MP3 represents a copyright violation.
That is true, but RIAA's lawyers are not suing people for downloading or sharing non-infringing files. They are going after users after verifying that one of their members' works is being copied. I'm not a supporter of RIAA by any means, and I also understand that some lawyers are better and/or more honest than others. But there are many mechanisms to block truly frivolous lawsuits in the early stages of litigation in the American system. See, e.g. Federal Rules of Civil Procedure, Rule 11.
Additionally, in civil actions, such as a lawsuit filed by RIAA, the Plaintiff (that is, RIAA) has the burden of proving, by a preponderance of the evidence, that the infringement occurred.
If the US courts still work anything like the UK courts on which they were modelled, decisions in one court can set precedents. If enough people claim "fair use" and win, the scope of fair use will be widened.
We still use stare decisis, but in this country, Fair Use is not a judicially created doctrine - it's statutory, and therefore cannot really be widened beyond the scope provided for in the text... at least, it won't be by the kinds of people who typically become Federal judges in this country. And even if the scope could be judicially expanded, Congress could simply rewrite the applicable Code sections (or eliminate them altogether). And don't think our Congress doesn't know who is giving them money...
Also, there are two things very wrong with the US legal system.
Only two? Study further! You'll find many more!
Our rules on attorney fees are somewhat inconsistent. Generally, the rule is that each party bears their own costs unless the law provides for a recovery of attorney fees. In many kinds of civil actions, a prevailing party can recover attorney fees. But the law varies from state to state, in state court actions. Some federal civil actions also allow for recovery of attorney fees by the prevailing party. The harshness of these rules is somewhat softened by the fact that many attorneys will represent plaintiffs on contingency (that is, the lawyer gets paid from Plaintiff's recovery, if any).
What you really shoud understand is that most cases in the United States will settle before trial, and in fashioning a settlement agreement, parties often decide the issue of attorney fees themselves.
Despite all that, I do agree with you that it's inequitable, but for the following reason: it's plain that one can only really get "justice" (such as it is) if one can afford it. As a practical matter though, making attorneys wait until a case is resolved to get paid would not be very fair to the attorney, who in many cases, isn't going to risk working for free for the simple reason that he or she can't afford that. It's not true that all attorneys are wealthy. Burdening them is not the solution.
I'm not sure what a truly fair legal system would look like - I'm too busy routing around the damage caused by idiots to think about that one.;-)
I agree with you, somewhat. First, however, copyright violations are explicitly forbidden, so that argument does not seem terribly relevant.
However, the people currently in control of the federal government (as opposed to the governments of at least some of our states), are people who have decided that they prefer safety to liberty, and are perfectly willing to trade most or all of the latter for the illusion of the former. In this Faustian bargain, they will end up with neither - which is only just, as Benjamin Franklin famously (in the U.S., at least) observed.
There is a simple word for this, naturally: cowardice.
These same people tend to now populate the courts, but with the added vice of intellectual dishonesty so that the rights expressly granted to the citizenry in our Constitution are simply interpreted out of existence; any who dare acknowledge them are branded as "judicial activists" or traitors.
But don't give up hope, world: we have a rich heritage of eventual rejection of the kind of nincompoopery you see in our federal government today. Let us hope we reject them soon.
SpamAssassin could actually save your job.
Alternatively, with sufficient supples of bandwidth and Mountain Dew, one of these employees ought to just do a cut & paste job on the e-pink slip (like so)... then spam the whole Radio Shack domain with it. Why not fire everyone, and score some kind of FuckedCompany record?;-)
Some companies rely on physical security alone to protect data. I worked for a major wireless phone carrier after college. There were at least three different systems used for various functions performed by lowly customer service reps. One of the systems involved plain old telnet to a *nix system which allowed one limited ability to retrieve information from the switch (e.g., ESN/MIN) and to sometimes change information there, depending on the privs assigned to your user account.
Obviously, anyone who managed to get physical access could get lots of passwords for various levels of users on that system (thanks for using telnet!), and leverage that to get additional privs on that system. I also know for a fact that the sysadmins at the company were idiots.
Sorry if I gave offense. I didn't mean that you'd ever done anything wrong. Just that some people had previously suggested doing the wrong thing. I should have been more specific.
Still, regardless of the company's dispute resolution "process" you have the right to bail out and seek other recourse if their system is too cumbersome. Based on what you've seen, it's fair to say at least some companies provide a process designed to force you to capitulate. That's what the courts are for - effective problem resolution when reasonable discourse fails.
No one likes litigation. That's why I suggest making a few reasonable attempts to resolve the issue informally. But it beats months in customer service hell. The system was provided, because the messy alternative (beating the AT&T CEO like a rented mule) isn't socially acceptable or economically efficient. Small claims is great because (a) no lawyers, and (b) it's cheap.
If you do ever have to use the court system to address a wrong, remember that you can be polite, yet firm, in your dealings with the opposing side. In fact, rude or unreasonable behavior makes judges feel like the offending party is wasting their time. And if you've seen the lines at the court... the judge most likely stand for it. Just make sure you're in the right before you pull the trigger on your small claims action.
Why did you wait 8 months to resolve it with scores of "managers." Part of the problem with these never-ending issues are that customers rarely know their rights, rarely know how to sufficiently document their complaints, and rarely know what else to do, other than to throw tantrums at the sales outlet.
First, making threatening telephone calls and disturbing the peace at a sales outlet, no matter what your justification might be, is probably a crime where you live. You don't have the right to do it. And, if you do that sort of thing, you're nothing more than an asshole who makes his|her ignorance the problem of some innocent party. What did the poor sales person or rep you're abusing do to you?
Instead of being a jerk, use the system we have in place to deal with disputes in a peacable, fair way. It's called the court. That's what you pay taxes for, so you don't have to commit crimes to get satisfaction when you've been wronged or plagued by someone else's negligence. This is the process I successfully used to get $1,000.00 back from MCI for a billing error:
Start with your phone call. Be polite. Stick to facts. If you have a foundation for your theory, tell them that. E.g., "I think it might be cloned because here's a call from San Francisco, and three minutes later, I'm supposedly making a call from New York." Get the rep's first name and an extension, or employee i.d., or something so this person can later be identified. Write this down with your pen and paper, or type it out while you are talking Write their response down. If this doesn't resolve the problem, ask to talk to a "manager or anyone who has authority to deal with this issue." Document the time you spend with this person, e.g., 12 minutes.
When you get the "manager" repeat your brief facts and the basis for any reasonable conclusions you've drawn. Write down their response. Suggest a reasonable resolution you can live with. A "reasonable resolution" is not a lifetime of free service. It's something rationally related to resolving your problem so you're not holding the bag on costs. If a problem cost you a hundred dollars and 12 minutes of time on calls, ask for a hundred dollars credit and 12 minutes of free airtime, etc. Write down your offer and their response.
If that doesn't resolve the problem, stop escalating it at that point. Politely thank the manager for his/her time, and ask them if they can provide you with an address so you can send a letter. If they refuse, document that. If they provide an address, write it down.
Now look at your bill for a customer service mailing address, or check the web. Save the bill with the address and/or print out the website. If you can't find an appropriate address, check with your local Secretary of State website and look up the address and name for their registered agent for service of process. Print and save that.
Now compose your letter. Address it to all of the following: the address provided by the CS manager, if any; the customer service address from your bill or web, if any; and the registered agent for service of process. (Pick one address as the main address, and just cc to the others).
As you write your letter, remember that you intend to show this letter to a judge if necessary, and write accordingly. Proof-read and revise as necessary so you don't look like an idiot if this goes to court. Open the letter with a brief explanation of your problem. Tell them you are disputing the billing for the charges, and enclose copies of the bills (if you don't have them, go to the web, or have customer service mail you copies). Hilight the charges to make it easy for them to help you.
Now tell them that you first informed (name of CS rep and extension or id) at (time, date) of this exact problem. Briefly state his response and that you found it to be unsatisfactory. Now tell them you spoke to a manager. Do the same i.d. routine, and basically repeat that you told him/her the problem and that they could not satisfactorily resolve it. Tell them
That's how I read it, too, but it's still illegal to circumvent, or attempt to circumvent, copy protection schemes (however weak, worthless, harmful or malware-like) placed by the copyright holder to protect a copyrighted work.
Provided that she was accurately quoted and that this article is what the law firm relied on in terminating her, I don't see how anyone can blame the firm for firing her.
The first time I worked on a case in which there was press interest, my boss gave me some good advice. He said, "[oclawgeek], you can talk to the press if you think it will help the client. But just remember to be careful what you say. Talking to the press is like playing with fire. Sooner or later, you're going to get burned."
If there are laws I believe are wrong, I will break them.
That's the problem right there. Surely this lawyer knows violating copyright laws is a misdemeanor... in other words, criminal activity. And then she told a reporter, on the record, that she feels justified breaking laws she doesn't like.
It would have been surprising if she lost a job for publishing a law review article on the dangers of DRM. Lawyers are professional advocates, and trained to see more than one side of an issue--that's what makes them effective. No IP boutique that wants to stay in business would get rid of someone for their scholarly or professional views, so long as they maintain their ability to be zealous advocates for their clients.
This lawyer didn't do that, however. Instead, she did something that undermines her credibility and authority, damaging her ability to perform as an advocate for her IP-owning clients, or any other client, for that matter.
Attorneys lose the opportunity to do certain things which are incompatible with being an officer of the court. One of the things that's not compatible with your duty as an officer of the court is law breaking. Nor should an attorney advocate that others break the law. Yet that's exactly what she did. Attorneys who do these things have very little credibility.
It's not surprising she lost a job. What's surprising is that anti-DRM people blame the law firm and the "greedy lawyers," who fired her, rather than point the finger at the person responsible for those statements.
What do you expect of a nation that can't even properly spell theatre or colour? Our society has been hijacked by the mob -- an illiterate puritan mob.
You appear to understand these devices pretty well.
As for how they fit into the system, most attorneys should be uncomfortable with the pronouncements which are essentially those of the deus ex machina. If the defendant isn't allowed to look behind the curtain see the Wizard for himself, or expose him to the jury, then the government ought not be able to use his pronouncements, either. That's basic fairness. It's also well entrenched in the legal system in the United States (though we can quibble about how well this policy is implemented in particular instances).
Trials aren't so much games of words as the lawyer's ability to present a story to the jury in a way that's consistent with the law. The jury's province is narrowly drawn to considering only those facts which are legally relevant to the law at hand (rather than vague notions of "justice") and which are produced in an appropriate way.
Few, if any, non lawyers understand the history of the rules of evidence, but for the most part, the rules are designed to provide fairness. The problems come when one branch of the government tries to circumvent what's otherwise a fair playing field by monkeying with the presumptions and proof requirements.
1. Field Sobriety Tests. The FST's are pretty unreliable as they are now. It's well documented that law enforcement officers seldom have the appropriate training or tools to properly perform some tests such as the "horizontal gaze nystagmus" test. In fact, in some states, officers can't even testify about some tests because of their lack of expertise. The main problem with FSTs is that some of them are cloaked in a false mantle of scientific reliability, which is absolutely not the case.
The other problem with FSTs is that, even though there are some standardized tests recommended at the federal level, even in a local area (i.e., one county in one state) you'll have a huge divergence of tests administered by police officers. Police officers sometimes make up their own tests.
The tests are also, obviously, totally subjective. The officer decides whether you "pass" or "fail" and there's often very little in the way of pretense that the officer hasn't already decided the outcome before you even take the test.
2 & 3. Instrument Testing. In some states, now, the legislatures have crippled the appropriate state agencies, making it much more difficult to regulate the use, maintenance, and testing of these devices. People should be outraged at how poorly the agencies handle this, but of course, they aren't. Officers also routinely fail to abide by regulations for the administration of tests. I have seen people who should never have been charged forced to spend thousands of dollars on attorney fees, all because the officer was more interested in getting a conviction than in learning the truth about the subject's blood alcohol level.
3. License Hearings. In my state, these are little more than a joke. Yes, it is sometimes treated like a deposition of the police officer. But the defendant is well served by that, because your average DMV hearing officer is about as good at their job as their retail counterparts in the licensing division are--which is to say, very, very poorly. If they had real administrative law judges deciding the hearings, the system would be more fair and attorneys would have incentive to focus on the license action because in many more cases, the evidence will provide an honest trier of fact with reasons not to suspend a license.
Most of the DMV hearing officers I have heard of are shockingly biased, ignorant of the law, and see no problem with either of those things.
That system is indeed, badly broken.
5. Trial. Trials are, by their nature, imperfect. Not usually because the rules are skewed, but because human beings are imperfect. They probably are the best we can do. On the other hand, trials also reflect the policies of the communi
Before you consider this, it's necessary to understand that in nearly all, if not all, jurisdictions, there are two ways to be convicted of a DUI: (1) driving under the influence of alcohol; and (2) driving with a blood alcohol content of X.
As the defense bar gets better at defending against the junk science promoted by "tough on crime" legislators, the laws grow ever more draconian. In some states, like California, the prosecutor is entitled to take advantage of all sorts of evidentiary presumptions, including the presumption that if your blood alcohol level is at or above 0.08 percent as tested on an approved breath analysis instrument, your blood alcohol content is actually at or above 0.08 percent. These presumptions were necessary at every step, because the defense bar was successful in its efforts to demonstrate for juries how unreliable the "science" of the government really was.
When you can't win on facts, change the rules.
There are a lot of assumptions to challenge when it comes to breath analysis. The underlying "science" is based on a fifty-year old model of how air interacts with blood and how alcohol in alveolar (so-called "deep lung") air can be measured. The hypothetical "average person" doesn't exist, and these "instruments" are not calibrated to account for all of the variable characteristics of a subject that could affect the blood alcohol content. None of this means anything, though, if the evidentiary presumptions all favor the government.
Innocence until guilt is proven is a quaint but outmoded concept now. Due process in DUI cases is little but a legal fiction these days.
The lawyers in the current case are arguing not for the public release of code, but for a defendant's right to see whether the machine even handles the junk science properly, and if the companies that make these machine won't produce the records, the defendant will not get a dismissal - the court simply will not allow the jury to hear the evidence of the test results.
As a practical matter, without the benefit of those test results, the prosecutor's job is very much more difficult. becuase the jury will then have the opportunity to examine the police officer's role in having performed the field sobriety tests correctly (they often aren't), his bias (e.g., his having decided defendant was "drunk" before even administering the tests) and all of the other issues.
In other words, all these defense attorneys are fighting for is a fair trial for the defendant. You can't really call it fair if the defendant isn't allowed to exercise his constitutional right to challenge -all- of the evidence against him, can you?
Bah! It's an admission by silence! (And who says lawyers have no sense of humor? Or am I harming the cause here?;-)
But seriously, I can't claim it's an enlightened discussion (well, perhaps your half qualifies) since I don't practice in IP. I had exactly one course on this stuff in law school. Lots of fun, but it's not going to pay my rent.
Yeah, that'd be one way. But they need not even have done that - simply indicating their intentions up front would've done the trick.
This is strictly a police issue: how can we (the legitimate emulation community, including [for the moment] UltraCade) get their auctions canceled, their webspace yanked, their PayPal accounts closed, etc.? And this has nothing to do with trademark law. In fact, bringing in this unrelated body of law only confuses the issue.
(I betray my cowardice by logging in...;)
Well, it seems likely that they'd be able to get a temporary restraining order that would ripen into a default judgment at some point in time. Enforcement might be a problem, but if you have a court order in hand, you should probably be able to get webspace yanked and so on. I'm not researching this or anything, just thinking on it in a public forum. They could still try this strategy, pending the resolution of what promises to be a protracted trademark dispute.
But if they're not showing up in court, the only thing the trademark does is, maybe, convince ISPs based on a mere letter (rather than court order) to avail themselves of the safe harbor provisions of the DMCA to take down a site or auction. That is a little bit cheaper in the short term.
Or do they just figure the MAME developers won't protect their interest?
Policing the arena is, as you point out, the big problem. But a trademark is no more effective in the longterm than a bogus trademark registration - at least in the U.S. Under the CA B&P Code, you can get your attorney fees back for getting your TRO.
The only possible advantage I see in the trademark hocus pocus is its decidedly international flavor.
This highlights a key point: If UltraCade legitimately wanted to use the MAME trademark as it alleges, why didn't they bring this up with MAME before now? If I wanted to be a guardian angel and spend resources protecting your rights, I think I might mention that plan to you at some point. The post-hoc nature of this justification severely limits its credibility.
The elegant way to do this would have been to negotiate a license of the sort that would convey standing on them for such actions. What they've really done, as you again pointed out, is to say "We don't really care about the potential negative impact this has on the rightful developers - their rights aren't important to us, because they're just a bunch of open-source goodniks doing this for free and can't afford the lawyers to stop us."
It'd be fun to see one of UltraCade's lawyers put in an appearance here.:-)
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I had more than a few pairs of pants with pockets eaten through by keys. After eliminating all but the most essential keys, I bought a leather key wallet. The wallet protects your pocket lining from the keys, and pretty much silences them. I would opt for the kind with plain hooks instead of the latching kind because they're simpler and far less likely to break. This is the old-fashion solution and strikes me as far more elegant than a carabiner.
That's not even remotely true. Most major metropolitan school districts in my state (California) cater mostly to the mediocre, and offer advanced classes to some kids who are better at following instructions, and minimal training to problem kids. The control ought to be more fine-grained than this. The problem kids, for example, are all just lumped together, even if no rational person would think that prudent. For example, at one school I know of, the mentally disabled kids are placed with kids who are just too far behind other kids of the same age, and both groups are blended with kids who are just disciplinary issues, with no ability on the part of the teacher to deal with each situation in an appropriate way. Thanks, standardized testing!
The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.
Whether this sort of thing has any tendency whatsoever to reduce crime is subject to debate.
Not only that, but Schultz didn't really found Starbucks. He joined 11 years after the company was started, then started his own company based on his experience with espresso in Milan. Afterward, he created Il Giornale, and eventually acquired Starbucks, and changed his own company's name... It's all right here:
http://www.starbucks.com/aboutus/CPA-140%20CompanI think the case law is fairly clear, even if counsel didn't find it, that a Plaintiff who states a prima facie case (haven't looked, but by now counsel blew Rule 12(b) time requirements) has a due process right to conduct discovery. The cases all pretty much say that the language of the Rules is that way so that moving parties who have a complete defense, like immunity (or state secrets...) can move for it without being put through discovery because discovery will not shed further light on the situation. Not so here.
Regarding "surmise and conjecture," you're right, but the purpose of discovery is to get beyond that. Your interpretation of the Rules would have dire consequences for parties in other kinds of actions which I think you would not like to see. Imagine applying that rule to a case in which Plaintiff's decedent was crushed to death by blue ice from an airline jet. Would you think it fair if the airline moved for immediate summary judgment, without discovery? Just about any res ipsa negligence case could be disposed of this way by summary judgment, and the default corporate mantra of "deny everything" would carry the day.
Summary judgment is more appropriate after Discovery. I've seen judges do lots of stupid things, but for that reason, I think that RIAA should win this motion unless their attorney is asleep at the switch. I'm willing to bet you a beer, in fact. You have to fly to L.A. to get it, though. If I lose the bet, I'll have to fly to New York, I suppose. :-)
That's not to say counsel is a "moron." Tactically, it's a nice move - it puts RIAA on the defensive, and that would be the posture I would like to carry through to trial. "David v. Goliath" as a trial theme has a lot of resonance. But if this motion is the stone that slays the giant, I think he'll take a few staggering steps before crashing to the ground. And that's as it should be.
In light of your experience (which outweighs my own), I'll revise my claim: Defendant should not win this motion for reasons of fairness, as perverse as that sounds in this particular instance. The threat of bad precedent alone leads me to that conclusion, much as it pains me to say RIAA should win anything. In this case, I hope Defendant loses this battle, but rallies to win the war.
I think you'll have to try to find any actual lies contained in Plaintiff's pleadings. Circumstantial evidence is still admissible. By itself, I agree that the IP address evidence isn't conclusive, but it's something, and in the absence of other facts, it's not unreasonable to target your attention in that direction.
If someone spammed you from 192.168.0.55 (for example, obviously), wouldn't you strongly suspect the person who owned the account to which that IP address was assigned (dynamic or static) is the spammer? Assuming you could give the spammer a legal kick to the groin, wouldn't that be a logical starting point?
What makes you say this? I don't see that it's clear. Plaintiff's lawyers are zealously advocating on behalf of their client. More importantly, they are arguing a legally correct position. If they find infringing files on Defendant's computer, that may be evidence against him. In his deposition, he can explain who else had access to his network (open wireless?) and other facts that will present Plaintiff with a clearer picture of what's going on. In the process, they might find some other likely target and dismiss against Defendant (which is why Rule 26's informal disclosure can be helpful), or perhaps Defendant will yield knowing that Plaintiff used the discovery process to find enough information to make settlement attractive.
I agree with you that complying with RIAA's discovery process could be burdensome for Defendant. Turning over his entire computer or network for the duration of a lawsuit is unhelpful and clearly excessive. If I were the judge, I'd appoint a someone as a "special master" to send an expert on-site. The expert can look at the network equipment, check its configuration and see if any logs exist on it (most consumer routers make this pretty unlikely). Then the geek can make a couple mirror images of the hard drive(s), and give copies to both parties. I assume there's a way to find a discovery compromise that minimizes burden to Defendant.
Do you think it would be more fair if Defendant's could get an award of reasonable attorney fees from RIAA or MPAA if the Defendant prevails in the lawsuit? (Then you wouldn't have to worry as much that the mere filing of the lawsuit would permanently harm an innocent party.)
The misspellings in the pleadings are of no consequence under the doctrine of idem sonans. Reading these pleadings suggests two combatants in the Amphitheatrum Flavium, armed with sporks--someone will inevitably be the victor, but not before much hilarity ensues.
P.S.: Since Defendant made an issue of the incorrect spelling of his name ("Paule" instead of "Paul"), both parties attorneys may want to consider the doctrine of idem sonans and get over it. The misspelling of his name is probably SBC's fault, but in any case is irrelevant, even if somewhat embarrassing. It's exactly as if someone said "Linucks is better than Windoze 98." Rife with misspellings, but we all know what the person meant and, more importantly, we know that the proposition is indubitable.
I doubt Defendant will prevail.
The parties have a right to conduct pre-trial discovery. See, for example, Federal Rules of Civil Procedure, Rules 26-37. See also, Federal Rules of Civil Procedure, Rule 56, which allows the Plaintiff to simply file affidavits from its investigators, along with the subpoenaed information, showing that the ISP states that Defendant was using the relevant IP address at the relevant time and that he was allowing others to infringe on copyrighted material owned by Plaintiff. If all these things are set out, RIAA will probably win, since this should probably be enough evidence to show that there exists "a genuine issue as to any material fact" (Rule 56(c)) or at least convince the court to permit discovery before hearing the Motion for Summary Judgment.
Rule 56 provides that summary judgment motions can be made at any time primarily because some defenses can be asserted such that it would be unfair to subject the defendant to the cost and burden of the discovery process, for example an immunity defense. A motion which doesn't assert some legal defense, but instead relies on the lack of a developed factual record is premature before the parties have engaged in discovery. Courts deny these kinds of motions all the time. See, for example, Behrens v. Pelletier, 516 U.S. 299 (1996)("The court also denied petitioner's summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery.")
Moreover, Rule 56(f) clearly permits the District Court to deny the motion or to continue the motion until after discovery.
Defendant is going to lose this motion. Tactically, it's questionable whether this is a good idea - if the court continues the motion, it may expedite discovery and fast-track the case. On the other hand, if Defense counsel thought she was going to win on this motion, she's a moron. FWIW, she's been a lawyer in Illinois for less than two years. Draw your own conclusions.
It's clear from the discussions here on /. that most of the commentators, as usual, haven't read any of the documents actually linked to in the summary. Basically, RIAA says everything I've said, but provides better authority (my comment would be clearly better, if only I was billing someone $250/hr to write this... ;-) for the proposition that the parties have a right to discovery before Summary Judgment Motions are heard. Moreover, the case they cite for this proposition, Celotex is well known to even neophyte civil litigators. (Except, of course, for Defendant's counsel.)
What's most interesting about this whole thing is not that Defendant will lose this motion, but that Defendant is probabl going to get his case set on an expedited schedule, have his deposition taken, and then fight over the inevitable discovery compliance motion RIAA will file when Defendant tries to avoid allowing an expert to examine his hard drive to see whether he actually downloaded the tunes, or ripped them as he stated under oath. Defendants have lots of legitimate reasons not to want to allow someone to inspect their hard drive, of course, so it will be interesting to see how the court strikes a balance between Defendant's privacy in irrelevant data with Plaintiff's right to discovery.
Well, obviously, whatever pre-lawsuit inquiry they've done in that case was really screwed up. In fact, I'd bet that some low-level flunky lost their job over it.
Based on what I recall of how they can investigate these things, RIAA, MPAA, BSA, etc. hire firms who man their P2P clients all day and try to ferret out IP addresses. Then they have to go to the usual places to figure out who controls the block of IP addresses and hit the ISP up for information. Possibly, they are using (or misusing) subpoenas to obtain records identifying the ISP's customer. At least, that's how I'd look into doing something like that if I were them.
If you're aware of any good descriptions of exactly how they investigate these things, I'd love to know. But in the examples above, it seems more likely to be a case of mistaken-identity (or even a total identity cock-up), rather than a case of an audio file that turned out to be public domain or something like that. In other words, a real infringing file (because someone was going to have to testify that they downloaded Britney_Spears.mp3 to kick the whole thing off. The file is not where they screwed up.
I don't deny that mistakes happen. In these cases you mention, it was very embarrassing to RIAA, and the lawyers did the right thing by seeking dismissal when the truth came to light. That's as it should be.
Personally, this area of litigation is interesting to me. But I think RIAA is barking up the wrong tree with its enforcement schemes. The real problem is finding a method of getting people to pay for your product, instead of stealing it. It's simply not the case that it's an easy problem for them to solve, especially as far behind in the game as they are.
That is true, but RIAA's lawyers are not suing people for downloading or sharing non-infringing files. They are going after users after verifying that one of their members' works is being copied. I'm not a supporter of RIAA by any means, and I also understand that some lawyers are better and/or more honest than others. But there are many mechanisms to block truly frivolous lawsuits in the early stages of litigation in the American system. See, e.g. Federal Rules of Civil Procedure, Rule 11.
Additionally, in civil actions, such as a lawsuit filed by RIAA, the Plaintiff (that is, RIAA) has the burden of proving, by a preponderance of the evidence, that the infringement occurred.
We still use stare decisis, but in this country, Fair Use is not a judicially created doctrine - it's statutory, and therefore cannot really be widened beyond the scope provided for in the text... at least, it won't be by the kinds of people who typically become Federal judges in this country. And even if the scope could be judicially expanded, Congress could simply rewrite the applicable Code sections (or eliminate them altogether). And don't think our Congress doesn't know who is giving them money...
Only two? Study further! You'll find many more!
Our rules on attorney fees are somewhat inconsistent. Generally, the rule is that each party bears their own costs unless the law provides for a recovery of attorney fees. In many kinds of civil actions, a prevailing party can recover attorney fees. But the law varies from state to state, in state court actions. Some federal civil actions also allow for recovery of attorney fees by the prevailing party. The harshness of these rules is somewhat softened by the fact that many attorneys will represent plaintiffs on contingency (that is, the lawyer gets paid from Plaintiff's recovery, if any).
What you really shoud understand is that most cases in the United States will settle before trial, and in fashioning a settlement agreement, parties often decide the issue of attorney fees themselves.
Despite all that, I do agree with you that it's inequitable, but for the following reason: it's plain that one can only really get "justice" (such as it is) if one can afford it. As a practical matter though, making attorneys wait until a case is resolved to get paid would not be very fair to the attorney, who in many cases, isn't going to risk working for free for the simple reason that he or she can't afford that. It's not true that all attorneys are wealthy. Burdening them is not the solution.
I'm not sure what a truly fair legal system would look like - I'm too busy routing around the damage caused by idiots to think about that one. ;-)
I stand corrected. It's the morons who vote that way, who prefer safety to liberty. My mistake. ;-)
I agree with you, somewhat. First, however, copyright violations are explicitly forbidden, so that argument does not seem terribly relevant. However, the people currently in control of the federal government (as opposed to the governments of at least some of our states), are people who have decided that they prefer safety to liberty, and are perfectly willing to trade most or all of the latter for the illusion of the former. In this Faustian bargain, they will end up with neither - which is only just, as Benjamin Franklin famously (in the U.S., at least) observed. There is a simple word for this, naturally: cowardice. These same people tend to now populate the courts, but with the added vice of intellectual dishonesty so that the rights expressly granted to the citizenry in our Constitution are simply interpreted out of existence; any who dare acknowledge them are branded as "judicial activists" or traitors. But don't give up hope, world: we have a rich heritage of eventual rejection of the kind of nincompoopery you see in our federal government today. Let us hope we reject them soon.
SpamAssassin could actually save your job. Alternatively, with sufficient supples of bandwidth and Mountain Dew, one of these employees ought to just do a cut & paste job on the e-pink slip (like so)... then spam the whole Radio Shack domain with it. Why not fire everyone, and score some kind of FuckedCompany record? ;-)
Some companies rely on physical security alone to protect data. I worked for a major wireless phone carrier after college. There were at least three different systems used for various functions performed by lowly customer service reps. One of the systems involved plain old telnet to a *nix system which allowed one limited ability to retrieve information from the switch (e.g., ESN/MIN) and to sometimes change information there, depending on the privs assigned to your user account. Obviously, anyone who managed to get physical access could get lots of passwords for various levels of users on that system (thanks for using telnet!), and leverage that to get additional privs on that system. I also know for a fact that the sysadmins at the company were idiots.
Sorry if I gave offense. I didn't mean that you'd ever done anything wrong. Just that some people had previously suggested doing the wrong thing. I should have been more specific.
Still, regardless of the company's dispute resolution "process" you have the right to bail out and seek other recourse if their system is too cumbersome. Based on what you've seen, it's fair to say at least some companies provide a process designed to force you to capitulate. That's what the courts are for - effective problem resolution when reasonable discourse fails.
No one likes litigation. That's why I suggest making a few reasonable attempts to resolve the issue informally. But it beats months in customer service hell. The system was provided, because the messy alternative (beating the AT&T CEO like a rented mule) isn't socially acceptable or economically efficient. Small claims is great because (a) no lawyers, and (b) it's cheap.
If you do ever have to use the court system to address a wrong, remember that you can be polite, yet firm, in your dealings with the opposing side. In fact, rude or unreasonable behavior makes judges feel like the offending party is wasting their time. And if you've seen the lines at the court... the judge most likely stand for it. Just make sure you're in the right before you pull the trigger on your small claims action.
Why did you wait 8 months to resolve it with scores of "managers." Part of the problem with these never-ending issues are that customers rarely know their rights, rarely know how to sufficiently document their complaints, and rarely know what else to do, other than to throw tantrums at the sales outlet. First, making threatening telephone calls and disturbing the peace at a sales outlet, no matter what your justification might be, is probably a crime where you live. You don't have the right to do it. And, if you do that sort of thing, you're nothing more than an asshole who makes his|her ignorance the problem of some innocent party. What did the poor sales person or rep you're abusing do to you? Instead of being a jerk, use the system we have in place to deal with disputes in a peacable, fair way. It's called the court. That's what you pay taxes for, so you don't have to commit crimes to get satisfaction when you've been wronged or plagued by someone else's negligence. This is the process I successfully used to get $1,000.00 back from MCI for a billing error: Start with your phone call. Be polite. Stick to facts. If you have a foundation for your theory, tell them that. E.g., "I think it might be cloned because here's a call from San Francisco, and three minutes later, I'm supposedly making a call from New York." Get the rep's first name and an extension, or employee i.d., or something so this person can later be identified. Write this down with your pen and paper, or type it out while you are talking Write their response down. If this doesn't resolve the problem, ask to talk to a "manager or anyone who has authority to deal with this issue." Document the time you spend with this person, e.g., 12 minutes. When you get the "manager" repeat your brief facts and the basis for any reasonable conclusions you've drawn. Write down their response. Suggest a reasonable resolution you can live with. A "reasonable resolution" is not a lifetime of free service. It's something rationally related to resolving your problem so you're not holding the bag on costs. If a problem cost you a hundred dollars and 12 minutes of time on calls, ask for a hundred dollars credit and 12 minutes of free airtime, etc. Write down your offer and their response. If that doesn't resolve the problem, stop escalating it at that point. Politely thank the manager for his/her time, and ask them if they can provide you with an address so you can send a letter. If they refuse, document that. If they provide an address, write it down. Now look at your bill for a customer service mailing address, or check the web. Save the bill with the address and/or print out the website. If you can't find an appropriate address, check with your local Secretary of State website and look up the address and name for their registered agent for service of process. Print and save that. Now compose your letter. Address it to all of the following: the address provided by the CS manager, if any; the customer service address from your bill or web, if any; and the registered agent for service of process. (Pick one address as the main address, and just cc to the others). As you write your letter, remember that you intend to show this letter to a judge if necessary, and write accordingly. Proof-read and revise as necessary so you don't look like an idiot if this goes to court. Open the letter with a brief explanation of your problem. Tell them you are disputing the billing for the charges, and enclose copies of the bills (if you don't have them, go to the web, or have customer service mail you copies). Hilight the charges to make it easy for them to help you. Now tell them that you first informed (name of CS rep and extension or id) at (time, date) of this exact problem. Briefly state his response and that you found it to be unsatisfactory. Now tell them you spoke to a manager. Do the same i.d. routine, and basically repeat that you told him/her the problem and that they could not satisfactorily resolve it. Tell them
That's how I read it, too, but it's still illegal to circumvent, or attempt to circumvent, copy protection schemes (however weak, worthless, harmful or malware-like) placed by the copyright holder to protect a copyrighted work.
:-)
Provided that she was accurately quoted and that this article is what the law firm relied on in terminating her, I don't see how anyone can blame the firm for firing her.
The first time I worked on a case in which there was press interest, my boss gave me some good advice. He said, "[oclawgeek], you can talk to the press if you think it will help the client. But just remember to be careful what you say. Talking to the press is like playing with fire. Sooner or later, you're going to get burned."
Words to live by.
If there are laws I believe are wrong, I will break them.
That's the problem right there. Surely this lawyer knows violating copyright laws is a misdemeanor... in other words, criminal activity. And then she told a reporter, on the record, that she feels justified breaking laws she doesn't like.
It would have been surprising if she lost a job for publishing a law review article on the dangers of DRM. Lawyers are professional advocates, and trained to see more than one side of an issue--that's what makes them effective. No IP boutique that wants to stay in business would get rid of someone for their scholarly or professional views, so long as they maintain their ability to be zealous advocates for their clients.
This lawyer didn't do that, however. Instead, she did something that undermines her credibility and authority, damaging her ability to perform as an advocate for her IP-owning clients, or any other client, for that matter.
Attorneys lose the opportunity to do certain things which are incompatible with being an officer of the court. One of the things that's not compatible with your duty as an officer of the court is law breaking. Nor should an attorney advocate that others break the law. Yet that's exactly what she did. Attorneys who do these things have very little credibility.
It's not surprising she lost a job. What's surprising is that anti-DRM people blame the law firm and the "greedy lawyers," who fired her, rather than point the finger at the person responsible for those statements.
What do you expect of a nation that can't even properly spell theatre or colour? Our society has been hijacked by the mob -- an illiterate puritan mob.
You appear to understand these devices pretty well.
As for how they fit into the system, most attorneys should be uncomfortable with the pronouncements which are essentially those of the deus ex machina. If the defendant isn't allowed to look behind the curtain see the Wizard for himself, or expose him to the jury, then the government ought not be able to use his pronouncements, either. That's basic fairness. It's also well entrenched in the legal system in the United States (though we can quibble about how well this policy is implemented in particular instances).
Trials aren't so much games of words as the lawyer's ability to present a story to the jury in a way that's consistent with the law. The jury's province is narrowly drawn to considering only those facts which are legally relevant to the law at hand (rather than vague notions of "justice") and which are produced in an appropriate way.
Few, if any, non lawyers understand the history of the rules of evidence, but for the most part, the rules are designed to provide fairness. The problems come when one branch of the government tries to circumvent what's otherwise a fair playing field by monkeying with the presumptions and proof requirements.
1. Field Sobriety Tests. The FST's are pretty unreliable as they are now. It's well documented that law enforcement officers seldom have the appropriate training or tools to properly perform some tests such as the "horizontal gaze nystagmus" test. In fact, in some states, officers can't even testify about some tests because of their lack of expertise. The main problem with FSTs is that some of them are cloaked in a false mantle of scientific reliability, which is absolutely not the case.
The other problem with FSTs is that, even though there are some standardized tests recommended at the federal level, even in a local area (i.e., one county in one state) you'll have a huge divergence of tests administered by police officers. Police officers sometimes make up their own tests.
The tests are also, obviously, totally subjective. The officer decides whether you "pass" or "fail" and there's often very little in the way of pretense that the officer hasn't already decided the outcome before you even take the test.
2 & 3. Instrument Testing. In some states, now, the legislatures have crippled the appropriate state agencies, making it much more difficult to regulate the use, maintenance, and testing of these devices. People should be outraged at how poorly the agencies handle this, but of course, they aren't. Officers also routinely fail to abide by regulations for the administration of tests. I have seen people who should never have been charged forced to spend thousands of dollars on attorney fees, all because the officer was more interested in getting a conviction than in learning the truth about the subject's blood alcohol level.
3. License Hearings. In my state, these are little more than a joke. Yes, it is sometimes treated like a deposition of the police officer. But the defendant is well served by that, because your average DMV hearing officer is about as good at their job as their retail counterparts in the licensing division are--which is to say, very, very poorly. If they had real administrative law judges deciding the hearings, the system would be more fair and attorneys would have incentive to focus on the license action because in many more cases, the evidence will provide an honest trier of fact with reasons not to suspend a license.
Most of the DMV hearing officers I have heard of are shockingly biased, ignorant of the law, and see no problem with either of those things.
That system is indeed, badly broken.
5. Trial. Trials are, by their nature, imperfect. Not usually because the rules are skewed, but because human beings are imperfect. They probably are the best we can do. On the other hand, trials also reflect the policies of the communi
Before you consider this, it's necessary to understand that in nearly all, if not all, jurisdictions, there are two ways to be convicted of a DUI: (1) driving under the influence of alcohol; and (2) driving with a blood alcohol content of X. As the defense bar gets better at defending against the junk science promoted by "tough on crime" legislators, the laws grow ever more draconian. In some states, like California, the prosecutor is entitled to take advantage of all sorts of evidentiary presumptions, including the presumption that if your blood alcohol level is at or above 0.08 percent as tested on an approved breath analysis instrument, your blood alcohol content is actually at or above 0.08 percent. These presumptions were necessary at every step, because the defense bar was successful in its efforts to demonstrate for juries how unreliable the "science" of the government really was. When you can't win on facts, change the rules. There are a lot of assumptions to challenge when it comes to breath analysis. The underlying "science" is based on a fifty-year old model of how air interacts with blood and how alcohol in alveolar (so-called "deep lung") air can be measured. The hypothetical "average person" doesn't exist, and these "instruments" are not calibrated to account for all of the variable characteristics of a subject that could affect the blood alcohol content. None of this means anything, though, if the evidentiary presumptions all favor the government. Innocence until guilt is proven is a quaint but outmoded concept now. Due process in DUI cases is little but a legal fiction these days. The lawyers in the current case are arguing not for the public release of code, but for a defendant's right to see whether the machine even handles the junk science properly, and if the companies that make these machine won't produce the records, the defendant will not get a dismissal - the court simply will not allow the jury to hear the evidence of the test results. As a practical matter, without the benefit of those test results, the prosecutor's job is very much more difficult. becuase the jury will then have the opportunity to examine the police officer's role in having performed the field sobriety tests correctly (they often aren't), his bias (e.g., his having decided defendant was "drunk" before even administering the tests) and all of the other issues. In other words, all these defense attorneys are fighting for is a fair trial for the defendant. You can't really call it fair if the defendant isn't allowed to exercise his constitutional right to challenge -all- of the evidence against him, can you?
Bah! It's an admission by silence! (And who says lawyers have no sense of humor? Or am I harming the cause here? ;-)
But seriously, I can't claim it's an enlightened discussion (well, perhaps your half qualifies) since I don't practice in IP. I had exactly one course on this stuff in law school. Lots of fun, but it's not going to pay my rent.
Yeah, that'd be one way. But they need not even have done that - simply indicating their intentions up front would've done the trick.
Agreed.
- The Law Geek
This is strictly a police issue: how can we (the legitimate emulation community, including [for the moment] UltraCade) get their auctions canceled, their webspace yanked, their PayPal accounts closed, etc.? And this has nothing to do with trademark law. In fact, bringing in this unrelated body of law only confuses the issue.
;)
:-)
(I betray my cowardice by logging in...
Well, it seems likely that they'd be able to get a temporary restraining order that would ripen into a default judgment at some point in time. Enforcement might be a problem, but if you have a court order in hand, you should probably be able to get webspace yanked and so on. I'm not researching this or anything, just thinking on it in a public forum. They could still try this strategy, pending the resolution of what promises to be a protracted trademark dispute.
But if they're not showing up in court, the only thing the trademark does is, maybe, convince ISPs based on a mere letter (rather than court order) to avail themselves of the safe harbor provisions of the DMCA to take down a site or auction. That is a little bit cheaper in the short term.
Or do they just figure the MAME developers won't protect their interest?
Policing the arena is, as you point out, the big problem. But a trademark is no more effective in the longterm than a bogus trademark registration - at least in the U.S. Under the CA B&P Code, you can get your attorney fees back for getting your TRO.
The only possible advantage I see in the trademark hocus pocus is its decidedly international flavor.
This highlights a key point: If UltraCade legitimately wanted to use the MAME trademark as it alleges, why didn't they bring this up with MAME before now? If I wanted to be a guardian angel and spend resources protecting your rights, I think I might mention that plan to you at some point. The post-hoc nature of this justification severely limits its credibility.
The elegant way to do this would have been to negotiate a license of the sort that would convey standing on them for such actions. What they've really done, as you again pointed out, is to say "We don't really care about the potential negative impact this has on the rightful developers - their rights aren't important to us, because they're just a bunch of open-source goodniks doing this for free and can't afford the lawyers to stop us."
It'd be fun to see one of UltraCade's lawyers put in an appearance here.