Your point is valid, but I'd just like to note that us Americans don't actually have to go the public library to access newspaper archives. It can all be done remotely through the public libraries website. Maybe I am mistaken, but I would think most people interested in the New York Times are actually American.
Good luck getting expert attorneys at $200 an hour. In a lot of markets in the U.S., the billing rates for lawyers that just graduated from law school are at or above $200 per hour.
Litigation is ridiculously expensive. Large patent suits can easily cost over a $1 million per year (lawyers, experts, etc). It is good to be a law student.
It really doesn't matter if there is a high crime or misdemeanor; the impeachment process is not justiciable. If someone is impeached and convicted, they are gone; the courts won't hear appeals (Nixon v. U.S.).
I did read the act that I cited. I also noted the exception. I was simply noting preemption concerns. I did not look up the Washington statute or any case law interpreting such statute or on point for if it was preempted; I didn't take the time. I believe that I made that perfectly clear in my post.
Also, the statute preempts states from prohibiting spam. Prohibiting "falsity or deception" is not prohibiting the sending of the commercial spam itself, but is regulating the content of the commercial speech. I think that's an important distinction; state law can't prohibit spamming; it can only prohibit spam from containing false and deceptive language (within the confines of 1st Amendment protection for commercial speech).
Hence, I did read the law. I didn't research the Washington statute, but I think that was obvious from my post; I didn't have the time to do so then. Furthermore, my post was correct. Washington cannot prohibit spam; regulating the content of spam is a very different matter. Your information was very helpful, so thank you for researching the information. However, you didn't need to be a prick in posting it.
Parent should be modded up. The Washington State Act might be preempted by Federal law (under the Supremacy Clause of the Constitution). The pertinent part of the CAN-SPAM Act is below. The Washington Act would be preempted unless it isn't specific to e-mail or prohibits "falsity or deception." However, any part that is regulating the use of electronic mail to send commercial messages (hence, spamming) is preempted. So, parent would be right in that you'd have to make a claim under the CAN-SPAM Act.
15 U.S.C. Section 7707(b) State law
(1) In general
This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.
(2) State law not specific to electronic mail
This chapter shall not be construed to preempt the applicability of--
(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to acts of fraud or computer crime.
The article and comments talk about state judges being elected. This is the case in many states (and I'm assuming that Washington is one of them after reading the article). However, not all states elect their judges. Some follow the process of advice and consent (like the Federal government), and others states use the Missouri Plan. Under this system judges are appointed (w/ consent I believe). Then at elections you can vote either yes to keep them as a judge or no to get rid of them. No, almost no judge is ever fired this way, but is possible when something egregious happens. For the most part it works like the federal system, though.
I'd have to look up some case law in your state, but oftentimes such punitive clauses are invalid as unconscionable. Yours doesn't appear to be such one, but that is possible legal grounds for the judges decision. Usually this occurs where there is a set default penalty for breaking the contract no matter how far into they are (same amount if they default at beggining and you are out nothing or if they default right before their last payment).
A know a lot of the statements on this board will be about how the patent system needs to be overhauled. Many of the comments are rightfully so, while others are based on a misunderstanding of patent law, and others are because of how the PTO grants patents (and because of how the Federal Circuit interprets Patent Law, which often seems to be contrary to the Supreme Court).
I would like to point out though, that just because Verizon wins on its patent suit against Vonage, does not mean that the court has to issue an injunction, i.e., shut it down. An injunction is an equitable remedy. It is not automatically issued in a patent suit (which the Fed. Cir. was recently reversed by the Supreme Court, in eBay, Inc. v. MercExchange, L.L.C. (2006)). The standard for an injunction is the same in any suit. The court must look at the following factors: (1) irreparable injury, (2) if remedies at law are inadequate (i.e., monetary damages), (3) balance of hardships, and (4) the public interest.
While it is true that in most patent cases, a permanent injunction is true, but this case appears to be one where the fourth factor should play a much larger role than normal. if a permanent injunction is granted millions of Vonage customers could be without phone service overnight; this is especially bad considering the emergency uses of a telephone. So this could be a case where the court will not issue a permanent injunction, or will at least give time for Vonage customers to switch over to elsewhere or give Vonage time to implement a non-infringing system.
Of course I don't know all the facts of this case (or most of them or even a small portion of them), so this is just a though. Who knows if the court or appellate court will agree with me. On a different note, it is possible that the Supreme Court could in the future take a patent case (which hopefully they will start doing more often) and reverse State Street Bank and possibly get rid of business method patents (which are the cause of much criticism of U.S. patent law). Such a move was hinted at by a minority of the court in a recent case where the Supreme Court decided not to hear a case (said the writ of certiorari was improvidently granted), esentially because the lawyer did not raise the correct objection below (that the subject matter was unpatentable, Section 101) (Laboratory Corp. of America Holdings v. Metabolite laboratories, Inc. (2006)).
People in the U.S. drive hundreds of miles a day too. Those people need to move closer to their work; that or they drive for or as a part of their livelihood.
Manual selection? I think that is common on european cars, but in the U.S. most automatics do not have such an option. I believe some of the more expensive cars have such a feature, but I've never driven one.
I never knew the Brits pronounced z as zed. What do you call a place where you play football? I call it soccer and a soccer field.
Also, I had never heard an American use the word "yanks" or "yankees" to refer to something other than the baseball team. Obviously, I had heard non-American english speaking people use it to refer to Americans. Then I moved to the South, where people constantly use "yankee" as a derogatory term for northerners. I wonder if Southerners are offended when British people call them yankees.
Typically, an appeal doesn't have to be granted, but is automatic. Now appeal to the Supreme Court isn't automatic, but to a Court of Appeal is. Of course this is a state issue, which I'm not 100% sure about.
Why would someone license patent technology for perpetuity when the patent only lasts 20 years from filing or 17 years from issue? That doesn't seem to make much sense; once the patent term is over there is no need to continue paying royalties. I guess this just might be the price one pays to be able to use the technology before the term expires.
Yep, fair use is an affirmative defense to copyright infringement in the U.S. It is broader than "fair dealing" or whatnot that Europe has, which is why some say we aren't in compliance with the Berne Convention. The U.S. though sees copyright as providing an economic incentive to create, while Europe sees it more as a natural right tied to the personality of the creator. This is why the Europe has much broader moral rights than the U.S. (once again some claim we aren't living up to the Berne Convention).
I see fair use as a pretty good doctrine though. It allows for such things as time-shifting, which might not otherwise be allowed without it. Possibly contintental europe has more exceptions within their copyright law (I'm not sure). This might just be a distinction between a common law legal system and civil law. I'm sure nobody here cares about this rambling though.
Well, I guess I can't read. It says Michael Jones, the Chief Technologist, sent the request. Usually, a cease and desist letter would be sent from a lawyer though.
I was just about to make the same comment. Good request Google lawyers; nice job choosing your words carefully. Normally, I wouldn't care, but considering that in legal documents the phrasing can mean everything, I would expect more from my lawyer. Hopefully, this guy isn't writing their contracts.
Calling a public figure gay in America would almost likely not be libel because of the protections afforded by the first amendment and the Supreme Court's past precedents. Under New York Times Co. v. Sullivan, a public figure would have to prove that the comment was false and that it was made with actual malice. Here there might be problems with proving it false (note, truth isn't a defense anymore - the plaintiff has to prove it). Also, it is extremely difficult to prove actual malice.
You may have some points on some of your questions. A ban of anonymous political speech would almost definitely be ruled unconstitutional by the Supreme Court though.
I think that is a bad analysis. It is true that in the end the only true way to enforce "striking down" a law may be military force. However, the Supreme Court can strike down a federal or state law because of constitutional reasons and it doesn't have an enforcement arm. Its rulings are almost always listened to (some exceptions though) because of the constitutional system and respect in the U.S.
The WTO cannot strike down a law for the simple reason that it does not have such authority (as the Supreme Court does in certain cases). Its authority is that given to it by the agreements entered into by countries (GATT and all those Rounds that came after). It has the authority to rule that a law is in violation of the WTO requirements. The losing country will come into compliance, agree to compensate the winner, or if not, the winner will be permitted to retaliate.
Hence, by saying it is in violation of international law, one means that it is contrary to an agreement entered by the United States. The agreement sets up consequences for its violation. The law isn't void as against international law though. I would analogize it to saying that the U.S. is simply in breach of its contract (possibly not the best analogy).
Also, I believe that WTO panel decision was appealled to the Appellate Body setup by the DSU within the WTO. That decision held that the U.S. essentially could ban online gambling b/c of an exception that allows them to do such things for "public health and moral" (I think that is the quote). However, that defense was rejected b/c the law wasn't applied non-discriminatorily, since it allowed online placing of bets for horse racing. Subsequently, the U.S. changed the law and it is being challeneged once again.
Mein Kampf isn't legally banned, at least not in the U.S. where that would be unconstitutional. I'm pretty sure you can buy it on Amazon and probably in many bookstores. Now maybe some libraries refuse to hold it. Also, there is no good reason to ban a book. Now, maybe its banned in Europe, as they do tend to limit speech more than the U.S., where we don't limit hate speech.
Actually, the United States is not a member to any international, multilateral, or bilateral treaties on the recognition of foreign judgments (it is on recognition of arbitral awards - the Geneva Convention). That isn't to say you can't enforce foreign awards, but it will be based upon domestic law and not treaty law. See http://travel.state.gov/law/info/judicial/judicial _691.html/. What the domestic law is, I am not sure and don't have time to research.
Good post altogether. I just want to knitpick though. A third of the government is not dedicated to deciding constitutionality. The Judicial Branch does much more than constitutionality - such as enforcing statutory laws that are constitutional.
Also to the other poster, a law prohibiting the yelling of fire in a crowded theatre is not unconstitutional. I think you lost out on this argument a long time ago. The first amendment does have its limits. Heck, and remember originally it was just the federal government who couldn't limit speech. The states originally could until the 14th Am. incorporated it.
I'm not sure that I'd call it english. They are english words, yes, but that's about it. Randomly picking words out of a dictionary doesn't create a sentence.
Treaties can be ruled unconstitutional. The Constitution is the supreme law of the land. For example, a treaty could not change the Constitution since to do that the amendment process has to be used. However, after a very brief search, I cannot find any cases of a treaty being ruled unconstitutional. I imagine the courts would be reluctant to do this and would interpret them in a way to avoid constitutional questions.
Also, I don't think the League of Nations is a good example. From what I remember, there were political reasons for that not being ratified. Either way, of course Congress can refuse to ratify a treaty because it believes it is unconstitutional. However, just because Congress says something is unconstitutional doesn't mean it actually is. The Supreme Court is the interpreter of the Constitution and has the final say.
Slashdot Mirror
Your point is valid, but I'd just like to note that us Americans don't actually have to go the public library to access newspaper archives. It can all be done remotely through the public libraries website. Maybe I am mistaken, but I would think most people interested in the New York Times are actually American.
Good luck getting expert attorneys at $200 an hour. In a lot of markets in the U.S., the billing rates for lawyers that just graduated from law school are at or above $200 per hour.
Litigation is ridiculously expensive. Large patent suits can easily cost over a $1 million per year (lawyers, experts, etc). It is good to be a law student.
It really doesn't matter if there is a high crime or misdemeanor; the impeachment process is not justiciable. If someone is impeached and convicted, they are gone; the courts won't hear appeals (Nixon v. U.S.).
Also, the statute preempts states from prohibiting spam. Prohibiting "falsity or deception" is not prohibiting the sending of the commercial spam itself, but is regulating the content of the commercial speech. I think that's an important distinction; state law can't prohibit spamming; it can only prohibit spam from containing false and deceptive language (within the confines of 1st Amendment protection for commercial speech).
Hence, I did read the law. I didn't research the Washington statute, but I think that was obvious from my post; I didn't have the time to do so then. Furthermore, my post was correct. Washington cannot prohibit spam; regulating the content of spam is a very different matter. Your information was very helpful, so thank you for researching the information. However, you didn't need to be a prick in posting it.
15 U.S.C. Section 7707(b) State law
(1) In general
This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.
(2) State law not specific to electronic mail This chapter shall not be construed to preempt the applicability of--
(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to acts of fraud or computer crime.
The article and comments talk about state judges being elected. This is the case in many states (and I'm assuming that Washington is one of them after reading the article). However, not all states elect their judges. Some follow the process of advice and consent (like the Federal government), and others states use the Missouri Plan. Under this system judges are appointed (w/ consent I believe). Then at elections you can vote either yes to keep them as a judge or no to get rid of them. No, almost no judge is ever fired this way, but is possible when something egregious happens. For the most part it works like the federal system, though.
I'd have to look up some case law in your state, but oftentimes such punitive clauses are invalid as unconscionable. Yours doesn't appear to be such one, but that is possible legal grounds for the judges decision. Usually this occurs where there is a set default penalty for breaking the contract no matter how far into they are (same amount if they default at beggining and you are out nothing or if they default right before their last payment).
Sorry about that.
A know a lot of the statements on this board will be about how the patent system needs to be overhauled. Many of the comments are rightfully so, while others are based on a misunderstanding of patent law, and others are because of how the PTO grants patents (and because of how the Federal Circuit interprets Patent Law, which often seems to be contrary to the Supreme Court). I would like to point out though, that just because Verizon wins on its patent suit against Vonage, does not mean that the court has to issue an injunction, i.e., shut it down. An injunction is an equitable remedy. It is not automatically issued in a patent suit (which the Fed. Cir. was recently reversed by the Supreme Court, in eBay, Inc. v. MercExchange, L.L.C. (2006)). The standard for an injunction is the same in any suit. The court must look at the following factors: (1) irreparable injury, (2) if remedies at law are inadequate (i.e., monetary damages), (3) balance of hardships, and (4) the public interest. While it is true that in most patent cases, a permanent injunction is true, but this case appears to be one where the fourth factor should play a much larger role than normal. if a permanent injunction is granted millions of Vonage customers could be without phone service overnight; this is especially bad considering the emergency uses of a telephone. So this could be a case where the court will not issue a permanent injunction, or will at least give time for Vonage customers to switch over to elsewhere or give Vonage time to implement a non-infringing system. Of course I don't know all the facts of this case (or most of them or even a small portion of them), so this is just a though. Who knows if the court or appellate court will agree with me. On a different note, it is possible that the Supreme Court could in the future take a patent case (which hopefully they will start doing more often) and reverse State Street Bank and possibly get rid of business method patents (which are the cause of much criticism of U.S. patent law). Such a move was hinted at by a minority of the court in a recent case where the Supreme Court decided not to hear a case (said the writ of certiorari was improvidently granted), esentially because the lawyer did not raise the correct objection below (that the subject matter was unpatentable, Section 101) (Laboratory Corp. of America Holdings v. Metabolite laboratories, Inc. (2006)).
Not all Americans; just most of us.
People in the U.S. drive hundreds of miles a day too. Those people need to move closer to their work; that or they drive for or as a part of their livelihood.
Manual selection? I think that is common on european cars, but in the U.S. most automatics do not have such an option. I believe some of the more expensive cars have such a feature, but I've never driven one.
I never knew the Brits pronounced z as zed. What do you call a place where you play football? I call it soccer and a soccer field. Also, I had never heard an American use the word "yanks" or "yankees" to refer to something other than the baseball team. Obviously, I had heard non-American english speaking people use it to refer to Americans. Then I moved to the South, where people constantly use "yankee" as a derogatory term for northerners. I wonder if Southerners are offended when British people call them yankees.
Typically, an appeal doesn't have to be granted, but is automatic. Now appeal to the Supreme Court isn't automatic, but to a Court of Appeal is. Of course this is a state issue, which I'm not 100% sure about.
Why would someone license patent technology for perpetuity when the patent only lasts 20 years from filing or 17 years from issue? That doesn't seem to make much sense; once the patent term is over there is no need to continue paying royalties. I guess this just might be the price one pays to be able to use the technology before the term expires.
Yep, fair use is an affirmative defense to copyright infringement in the U.S. It is broader than "fair dealing" or whatnot that Europe has, which is why some say we aren't in compliance with the Berne Convention. The U.S. though sees copyright as providing an economic incentive to create, while Europe sees it more as a natural right tied to the personality of the creator. This is why the Europe has much broader moral rights than the U.S. (once again some claim we aren't living up to the Berne Convention). I see fair use as a pretty good doctrine though. It allows for such things as time-shifting, which might not otherwise be allowed without it. Possibly contintental europe has more exceptions within their copyright law (I'm not sure). This might just be a distinction between a common law legal system and civil law. I'm sure nobody here cares about this rambling though.
Well, I guess I can't read. It says Michael Jones, the Chief Technologist, sent the request. Usually, a cease and desist letter would be sent from a lawyer though.
I was just about to make the same comment. Good request Google lawyers; nice job choosing your words carefully. Normally, I wouldn't care, but considering that in legal documents the phrasing can mean everything, I would expect more from my lawyer. Hopefully, this guy isn't writing their contracts.
Calling a public figure gay in America would almost likely not be libel because of the protections afforded by the first amendment and the Supreme Court's past precedents. Under New York Times Co. v. Sullivan, a public figure would have to prove that the comment was false and that it was made with actual malice. Here there might be problems with proving it false (note, truth isn't a defense anymore - the plaintiff has to prove it). Also, it is extremely difficult to prove actual malice.
You may have some points on some of your questions. A ban of anonymous political speech would almost definitely be ruled unconstitutional by the Supreme Court though.
I think that is a bad analysis. It is true that in the end the only true way to enforce "striking down" a law may be military force. However, the Supreme Court can strike down a federal or state law because of constitutional reasons and it doesn't have an enforcement arm. Its rulings are almost always listened to (some exceptions though) because of the constitutional system and respect in the U.S. The WTO cannot strike down a law for the simple reason that it does not have such authority (as the Supreme Court does in certain cases). Its authority is that given to it by the agreements entered into by countries (GATT and all those Rounds that came after). It has the authority to rule that a law is in violation of the WTO requirements. The losing country will come into compliance, agree to compensate the winner, or if not, the winner will be permitted to retaliate. Hence, by saying it is in violation of international law, one means that it is contrary to an agreement entered by the United States. The agreement sets up consequences for its violation. The law isn't void as against international law though. I would analogize it to saying that the U.S. is simply in breach of its contract (possibly not the best analogy). Also, I believe that WTO panel decision was appealled to the Appellate Body setup by the DSU within the WTO. That decision held that the U.S. essentially could ban online gambling b/c of an exception that allows them to do such things for "public health and moral" (I think that is the quote). However, that defense was rejected b/c the law wasn't applied non-discriminatorily, since it allowed online placing of bets for horse racing. Subsequently, the U.S. changed the law and it is being challeneged once again.
Mein Kampf isn't legally banned, at least not in the U.S. where that would be unconstitutional. I'm pretty sure you can buy it on Amazon and probably in many bookstores. Now maybe some libraries refuse to hold it. Also, there is no good reason to ban a book. Now, maybe its banned in Europe, as they do tend to limit speech more than the U.S., where we don't limit hate speech.
Actually, the United States is not a member to any international, multilateral, or bilateral treaties on the recognition of foreign judgments (it is on recognition of arbitral awards - the Geneva Convention). That isn't to say you can't enforce foreign awards, but it will be based upon domestic law and not treaty law. See http://travel.state.gov/law/info/judicial/judicial _691.html/. What the domestic law is, I am not sure and don't have time to research.
Good post altogether. I just want to knitpick though. A third of the government is not dedicated to deciding constitutionality. The Judicial Branch does much more than constitutionality - such as enforcing statutory laws that are constitutional. Also to the other poster, a law prohibiting the yelling of fire in a crowded theatre is not unconstitutional. I think you lost out on this argument a long time ago. The first amendment does have its limits. Heck, and remember originally it was just the federal government who couldn't limit speech. The states originally could until the 14th Am. incorporated it.
I'm not sure that I'd call it english. They are english words, yes, but that's about it. Randomly picking words out of a dictionary doesn't create a sentence.
Treaties can be ruled unconstitutional. The Constitution is the supreme law of the land. For example, a treaty could not change the Constitution since to do that the amendment process has to be used. However, after a very brief search, I cannot find any cases of a treaty being ruled unconstitutional. I imagine the courts would be reluctant to do this and would interpret them in a way to avoid constitutional questions. Also, I don't think the League of Nations is a good example. From what I remember, there were political reasons for that not being ratified. Either way, of course Congress can refuse to ratify a treaty because it believes it is unconstitutional. However, just because Congress says something is unconstitutional doesn't mean it actually is. The Supreme Court is the interpreter of the Constitution and has the final say.