By looking at the rules for when courtroom proceedings may be recorded and broadcast and determining (a) whether there's any argument that might allow it, (b) whether any party has made that argument, and (c) whether irreparable harm and/or undue influence would result from allowing it.
In this particular case, the buck stops at (b). There is a set of exceptions to the no recording rule, but no one has made a request that is couched in one of the allowable exceptions. Assuming that the defendants did make such an argument convincingly, the judge would have to look at (c) quite carefully. In this case, it's pretty much 50/50, and that means the court (the current trial judge notwithstanding) would likely err on the side of caution and refuse the request.
There's really nothing so special about this particular case that suggests that live streaming would do anything other than introduce prejudicial external pressure on one party. Capitol Records and its RIAA brethren certainly deserve public scorn...but no party in a legal action deserves prejudicial influence other than what they themselves bring to the table. Everyone deserves the same protections from demagoguery; the more reviled the party, the more important the court does what it can to ensure propriety.
But you again ignore the fact that the jurors are present in the room: they have no need to watch the broadcast.
Who's talking about the jury watching the broadcast of the proceedings? Only you. I'm talking about the media coverage it would inevitably and uncontrollably spawn.
I guess it could, but you are the only one saying it would.
It's a foregone conclusion. No one has time to spend six to eight hours a day for several weeks listening to the sound of papers shuffle. You have no idea how incredibly boring a civil trial is.
In this case, if you have any doubts about what a witness might say, you simply won't call them. Any deviations from what they said before trial and what they say on the stand, you do as you are doing to me: you attack, you misrepresent, you dismiss, whatever it takes to render the testimony moot to both sides.
You've missed the point entirely for the second time now. You don't always have the option to do those things and still present your case. There is no weighing to be done that makes a delay of a few weeks worth more than having witnesses destroy any chance at a fair trial. You pretend to care about fairness, making idiotic claims out of nothing more than pure ignorance of what actually happens in a real courtroom, and you take a point saying that we should embrace a policy that permits unprecedented levels of witness misconduct and simply roll with it. That's one of the biggest "fuck you" to a fair trial you can give, short of issuing the decision in advance of the arguments.
For stiff fees, of course.
Not really, no.
2. easy and widespread access to the system would make this transparently obvious
There already is easy and widespread access to the system. You can walk into just about any courtroom. The media can report on any ongoing trial. The parties are free to talk to the media afterward. You're free to view the entire transcripts and records afterward. Broadcasting the actual trial in its entirety doesn't do a damn thing to improve access; if anything, it hinders it--people simply don't have the capacity to listen to weeks of testimony if they're not involved.
3. and that permitting the exposure of said flaws is not in the system's interest
And again, there is no shortage of opportunities to expose "said flaws". A live broadcast certainly wouldn't make them more apparent, unless the flaw you speak of is the plodding pace of trials and the inefficiency of linguistic communication. In order for the existing system to conceal these grave problems, you'd need a conspiracy beyond that which humans are capable of.
It's call an "index".
You can't index a live broadcast in any meaningful sense.
You're either trolling or an idiot. Either way, you're just making yourself look bad at this point.
Your entire argument is without merit. It proceeds from the onset from a false premise.
By "broadcast", one presumes "what's actually happening" will be made transparently obvious.
No, because the actual proceedings in the courtroom are not the complete picture. Stipulations, preliminary motions, and other issues dispensed with would not be covered, nor would jury deliberations. You neglect entirely the fact that the bulk of public involvement with the broadcast would be presented through the media, which is the issue you're responding to.
Your markedly unparallel response speaks for itself. Undue media influence comes from the media's having the broadcast at their disposal.
Even today, the Court specifically orders jurors to ignore the media for exactly this reason.
An order not enforceable when the level and quantity of media presentation rises to this level. Look no further than the OJ trial.
I have to wonder how broadcast can possibly "contaminate" the jury
Think CNN "election night", but the subject matter is a courtroom proceeding. Pundits, soothsaying, lay "analysts", the entire parade of the court of public opinion. The unrestricted flow of amateur opinions, formed on nothing resembling legal proof or an understanding of the principles, issues, and factual disputes in play, quickly comes to exert undue influence.
here is one: the transcript alone doesn't record things like facial expressions of witnesses and so forth.
The jury was present to observe "things like facial expression". That's kind of the whole point of having a jury. They don't need a video to see what they can look at directly with their own eyes.
What the hell? No one puts anyone on the stand until they know exactly what they are going to say.
Trust me when I say you never know what a witness is going to say on the stand. You can only hope, prepare, and make your best selections. All of this occurs before trial. You cannot control what influences your witness between the last time you speak and the day they are called to testify. Given the opportunity to review the testimony of others and other proceedings in the trial, witnesses will have a unique and unprecedented way to change their testimony.
It's not hard to see at all, though you try your hardest to be ignorant of it. A witness, W2 listens to previous testimony by W1, and though you as the attorney are counting on the variation of the events by W2, W2 hears W1 and decides to revise her version of events to match more closely. The case is blown. Or you have a hostile witness who does not actually want to testify, who then arranges to contradict earlier testimony, equally blowing the case based on knowledge they're not supposed to have.
My guess is that courts do not want their proceedings broadcast live because it would regularly reveal just how dirty, illogical, and biased the entire apparatus really is.
A truly bizarre contention when you consider that the transcripts are all already available.
Most people never set foot in court,
Including quite plainly yourself.
The entire scheme is supported only by the unquestioned belief of these people that it is "fair" and "equitable", and any step that may give rise to concerns in this population about the administration of justice will be resisted by the administrators themselves: judges, lawyers, clerks, etc.
You're alleging an absolutely ludicrous conspiracy among clerks, court reporters, attorneys for both sides, defendants and parties found liable, jurors, judges, random members of the public present in the courtroom, bailiffs, members of the media, experts, and witnesses to defraud the public with sham proceedings. Not only is such massive coordination across millions of c
Would an open trial mean that a person could go in with a dicta phone and record the trial anyway?
No. Recording of any kind is prohibited without the express authorization of the judge.
I've seen plenty of excerpts from American trials on the news.
These are either culled from completed trials or obtained by professional journalists with media passes, who are then authorized to make limited recordings for the news, the exact rules for which vary from jurisdiction to jurisdiction.
Do you have to be a member of the press or get consent to film or record?
Short answer: yes. Long answer: no, but you need a compelling reason to get the judge's permission to do so, and the judge in nearly every jurisdiction in the country is bound by local, state, or federal rules of court and/or procedure that carefully circumscribe the conditions under which permission to record/broadcast may be granted. The judiciary occasionally makes its own proceedings available in appellate cases, which are commonly made available publicly (in California, for instance, appellate oral arguments are frequently made available online). Cases involving the government are sometimes televised at the government's request. Other than the judiciary and the government being granted permission, in practice only the media gets authorization, and at the trial level, it is an extremely narrow authorization.
Appeals are more widely broadcast/streamed because there are no juries, no witnesses, and much of the sensitive factual matter is left undisturbed, so the proceedings involve the issues of law and are less susceptible to interference from the media/public.
1. The trial was by far the most publicized trial in American history and makes a poor reference point, as the extreme outlier. 2. Only a small portion of the actual trial was broadcast. Most of what you recall is media coverage and punditry. 3. The trial judge was strongly criticized for allowing that level of media interference (and specifically for the improper influence the media had in the proceedings--precisely the problem with the concept of allowing recording devices in the courtroom). 4. The parties did not seek appellate review of the judge's decision to allow partial broadcasting. 5. The OJ trial was in California and not New York, where different local rules apply. 6. The OJ trial did not conform to standard procedure in Los Angeles, California, or the nation.
All in, a succinct showing of the rarity of broadcasting even portions of trial proceedings, the problems and ill consequences of doing so, and the overstepping of media coverage lines. The OJ trial quagmire is exactly why we have never had the practice of broadcasting trials.
Ideally this is great, until you have a justice system that continues to be unfair. In this kind of a case, then the judgement is made public, and then people end up thinking something is illegal when it isn't.
This doesn't make any sense whatsoever.
Broadcasting the trial doesn't make court more "fair"--it simply can't. The judge is still in charge, whose only actual fear is the appellate court above him, and the jury still deliberates in private. Nothing about having more people watching makes anything more "fair".
As to people "ending up thinking something is illegal when it isn't", such a result has absolutely nothing to do with broadcasting the proceedings. What exactly are you referring to?
I would love to know what "higher values" are served by closing this trial like this
The trial isn't closed. There is still a record, the courtroom is still open to members of the public, and both the trial and the result are covered by the media.
A closed proceeding is one in which access is restricted, no record is made or the record is entirely sealed, and the media has no access to any information on the matter. None of that is true here.
You vastly overstate the situation and egregiously misunderstand both the mechanics and the impact of this decision. We don't generally broadcast trials and never have. There are many reasons why we shouldn't. It is not as though all trials conducted in the past have been closed because no one has ever broadcast the entirety of the trial. I mean, really now. The very fact that you are reading and commenting on this story is proof that a public trial is ongoing.
I hear the phrase used from time to time, but I just can't seem to apply the metaphor to a civil court proceeding in my head. What, precisely, do you see as the negative implications of broadcast?
Interference on three grounds, for starters:
1. Media meddling, hounding, and general drowning out of what's actually happening. It's like televising the halftime team strategy meeting--it can't help the team do any better, it can only stir the pot in the audience, worsening the integrity of the event, inviting disruption and distraction in the courtroom, and resulting in the passage of bad information to the public. Look no further than the submitter's awful commentary on this administrative matter for the kind of undue influence exerted; they're willing to throw the baby out with the bathwater just because the party "benefiting" immediately happens to be a corrupt corporate regime, rather than looking at the whole picture.
2. Jury contamination. Extensive media coverage makes it nearly impossible for the jury to act based on the narrow parameters for which they are assembled; the kinds of journalistic advocacy composed outside the courtroom unfairly prejudice the jury's understanding as the case is fully presented to them in court. A good legal team knows the proper balance of what to present and what to handle outside of the jury's presence--and preliminary proceedings, stipulations, and rules of evidence are manifestly not followed by bloggers or even professional journalists.
3. Witness tampering. Witnesses are supposed to present their testimony as preserved by their role in the proceedings, outside the influence of the media. Detailed and verbatim recordings of proceedings, aired immediately, make it nearly impossible to rely on witness testimony. Witnesses not only have a general idea of how the trial is advancing, but have the specific opportunity to craft their testimony around earlier testimony that court procedures go to great lengths to keep away from witnesses.
You can go on from there into a whole litany of issues about advocacy, representation of clients, and so on.
I'm only able to see the advantage of greater transparency.
How does broadcasting the proceeding as it happens add to transparency, as opposed to making the record available after the fact, as is normal practice? It merely increases exposure, which is not itself a virtue. There's a reason that you don't publish drafts of scholarly works in most cases, unless you're circulating it for input. That's exactly the same reason you don't put out incomplete pieces of the trial.
It's really not a situation involving more or less transparency--it's about PR. The defendants want to stir the pot and have the case tried in the court of public opinion, where it's obvious they will win. The RIAA labels are about as unsympathetic as you get. It doesn't make the process any more fair, open, transparent, or accountable to broadcast trials. Any of those issues will appear in the transcripts and trial records, and if they're not in the transcript, they wouldn't be in the broadcast. It just makes the public shitstorm easier to build in any given case, and the courts are intentionally supposed to be insulated from that.
I also have trouble with the idea that this is an important enough issue to warrant an extraordinary writ.
There are few things more serious than the bounds of discretion of a trial court. The review and the opinion isn't about broadcasting the trial, it's about the judge's application of the rules of court. Failure to apply the law correctly is more or less the only reason for reversal in civil appeals.
or even particularly novel
Really? Do you know of any trials broadcasted live in their entirety?
It's incredibly rare; it's outright prohibited in criminal trials, and in most places, civilly, as well, subject t
Correct. More to the point for laypeople, the prohibition on "advisory" opinions (rooted in the fact that American jurisprudence requires a "real case or controversy") extends only to the practice of providing opinions on issues not ripe for litigation or where there are no parties before the court asserting an injury/requesting relief.
This is an actual case, being litigated in a real court. It does not meet the requirements for the issuance of a writ of mandamus, which makes the question one that is likely to escape review. Issuing an "advisory" component for the purpose of assisting practitioners and courts likely to face the same question in the near future doesn't implicate the problem the advisory opinions rule was meant to prevent. Cf. Canada, whose Supreme Court can offer their advice before the fact when questioned by Parliament; US courts cannot respond in this same way to Congress.
In short, the rule prevents the courts from expending resources on hypotheticals--not on elaborating its own procedures and authority in an issue within an actual case that might otherwise evade direct review.
It's a question of courtroom discretion, not one couched in the facts of a specific set of copyright infringement actions. The irreparable bias of the summary writer is highly problematic here; no professional judge or attorney would approach this question with such hamfisted incredulity. The legal questions here are administrative, not based on the parties. Anti-RIAA sentiment has no place contaminating the entire subject here.
The local court rule as written does not grant such broad authority to the judge; the appellate court was correct. Courtroom proceedings are not normally permitted to be broadcast while they are occurring, subject to limited exceptions in local rules. The risks of prejudicial effect are entirely too high. No applicable exception was referenced by the trial court, and therefore the general ban on broadcasting must be upheld.
I thought only the federal government is allowed to tax interstate commerce.
No, that is not the case. The Commerce Clause grants Congress the right to regulate interstate commerce, which includes the right to tax interstate commerce federally, but it does not deny the states the right to regulate the subject matter as well. As long as the states do not fall foul of Congressional regulation, they may do as they please, as sovereign powers.
Has this kind of "use tax" been challenged in court on Constitutional grounds?
That's the general gist of the Dormant Commerce Clause--state actions that burden interstate commerce despite not being barred by Congressional law. Such laws are stricken, but only those that are discriminatory.
A law collecting a tax that is identical to one collected of in-state sales is not discriminatory. It is equal treatment.
The current system relies on self-reporting for out-of-state purchases, because California doesn't have access to business records and business operations in Florida. Florida also has no obligation to collect taxes for California, and vice versa. California residents, however, are subject to a sales tax on personal property acquisitions, just as residents of Florida are. Crossing state lines to avoid this tax wasn't a huge issue before the Internet, because of the expense and time required.
However, with sites like Amazon offering low prices and no direct collection of taxes, in-state sales moved out of state, and neither state is generating the sales tax revenue they should be. There is a real need to fix this, but the solution is complicated due to huge variations in collection schemes.
Frankly, I believe the answer is a federal flat tax of, say, 5% on Internet purchases, regardless of both state of origin and state of purchase. Tax would be forwarded to the state based on the billing address, and the state would determine how to distribute those funds to state/municipal levels.
No. You must offer evidence they lied. They must offer evidence they told the truth if they're asserting "truth" as a defense. If the evidence they told the truth is less than your evidence that they lied, the defense fails and they are held liable for defamation.
"Proof" is what happens at the end of trial, not the beginning. If you are accused of defamation, you cannot simply claim you told the truth and sit down and do nothing--you must offer persuasive evidence corroborating your assertion. Proof in a civil trial is a comparison of two sets of evidence; you can only raise an affirmative defense in the event that the initial burden is met.
The party claiming that it is a lie has a considerably easier job in meeting its evidentiary burden. "Proving" they lied requires near-zero evidence if the other party doesn't have any evidence that they're telling the truth.
If they want to sit back and do nothing, they're not raising a defense. They're calling for the state equivalent of a 12(b)(6). That will almost never be granted solely on an issue of failure to assert falsity in the claim, because it requires virtually no evidence at all to satisfy the burden.
If what you're saying were true, then I would be taking serious legal risk if I (for example) claimed to experience diarrhea after eating a chalupa.
Only if you made publicly defamatory remarks about Taco Bell by asserting it was their fault, and by doing so damaged Taco Bell's reputation.
Taco Bell could claim I lied, and I would have no evidence to the contrary.
If you have no evidence that Taco Bell gave you diarrhea, then yes. But if Taco Bell did cause you to have diarrhea, you would have evidence of that fact.
Sounds like the burden is on the plaintiff, not the defendant.
It is, and in order to raise an affirmative defense, that burden must first be satisfied--you're clearly completely unfamiliar with the concept of burden of proof or the concept of legal proof in general. If Taco Bell asserts that they did not give you diarrhea, at a minimum, all they have to do to prove that is make the assertion, assuming you have no evidence to the contrary.
The applicable evidentiary standard is preponderance of the evidence. That means their evidence must simply make it more likely than not that the condition exists. They can point to their ingredient selection standards, restaurant preparation procedures, and the fact that there are no other allegations of illness caused by that location on the day in question. That's sufficient proof with no countervailing evidence.
The burden then shifts to you--they claim it's not true, and the court asks you what evidence you have that the statement was true, because you're asserting in your response an affirmative defense, which the previous poster correctly flagged as being one that must be proven by the movant. You have zero evidence that Taco Bell caused an injury? Summary judgment for the plaintiff. Take a look at Bagwell Their evidence outweighs yours. In the case of word against word, the plaintiff in a defamation action wins.
Let's look at the Second Restatement, sections 581A and 613. "At common law the majority position has been that although the plaintiff must allege falsity in his complaint, the falsity of a defamatory communication is presumed." The bare allegation of falsity is sufficient proof in this context to shift the burden to the defendant. This rule has changed as a result of increased First Amendment protections, such that the plaintiff must refer to some evidence supporting the assertion. The sufficiency of the evidence must simply lead to a reasonable inference. It need not be proved by clear and convincing evidence or beyond a reasonable doubt.
You may want to rethink your own perception of reality.
No, because if the defendant believed that to be the case, then there would not have been any motive for him to make the statement. Clearly, it was meant in a pejorative sense and intended to cause pain, intimidation, frustration, and generally harass the other student.
It's not about whether there's anything "wrong" with being gay--obviously, there isn't--it's about whether the allegation caused injury, and that's a much different question with a closeted individual. Fraudulently signing someone up on a "singles" website might well be defamatory to a married person, even though there's nothing wrong with being single. Accusing someone of being Jewish when they aren't might be, too, though there is nothing wrong with being Jewish.
The question, as with all offenses, is whether the perpetrator or liable party broke the law. Showings of actual harm have a very low bar--stealing a single apple from a million-acre orchard owned by a multi-billion dollar corporation is very different from stealing a single apple from a single, impoverished family's tree, but both are actual harm, of exactly equal value in determining whether the offense occurred. The place where it makes a difference is in sentencing or awarding damages, which is a separate question.
Libel does require emotional injury and/or damage to one's reputation. If the statement is made specifically to expose a person to hatred, contempt, or ridicule (as here), then the need to show injury is very limited. Showing that is easy. A person may not be embarrassed about being gay but still harmed about an attempted forced outing.
All of that ignores the essential first step: there has to be proof the kid is, in fact, gay.
It is the case. The party asserting the defense must provide evidence supporting their assertion (the truth of the matter, in this case).
If you print that Joe Clark is embezzling money from a company, and then Joe Clark sues you for libel, you have to offer evidence that he was, in fact, embezzling money to support your claim that you published information you knew to be true. Joe Clark only has to assert that the statement is not true and support it with evidence more compelling than your own. If you don't offer any evidence, then Joe Clark's bare allegation trumps yours, and you lose. If you submit some evidence, but Joe Clark submits more or more persuasive evidence, you still lose.
If you didn't know it was true, didn't have any facts to support its truth, and published it anyway, your act was one of defamation. The defense of truth to libel actions protects publication of damaging news stories where there is a good faith belief that they are true and reasonable objective evidence to support that belief.
If that were true, no person could ever make any negative claim about anyone without having legal proof in hand.
Not legal proof, merely sufficient evidence to support the proposition.
Clearly, that is not the case.
Whatever you and the moderators to your previous comment are smoking is clearly interfering with your perception of reality.
Instead of increasing everyone's connection charges by $5-10, they are increasing the gluttonous top 10% by a larger amount ($50-100). Works out the same, and most people end up paying less than they would without the plan. You can argue the merits of whether they really need to raise $x million more per year, but that's beside the point--they decided to do it. The only question is where they're going to get that money: an incremental increase for everyone or a more substantial increase for the problem users.
Of course nominal prices are never going to be reduced. That wouldn't ever make sense. It's only a question of who pays the increase, not whether it's coming.
I paid $59 in 1999 for my 3Mbit cable connection. That's $77 in 2009 dollars. I'm paying $30 for 6Mbit today. That's substantially cheaper, thanks to speed improvements--not price reductions. Caps are inevitable when competition for resources increases. There's always a middle stage where demand explodes and technology doesn't have an immediate answer. Time Warner's cap levels suck, sure, but it's a pond that's being overfished. People simply don't need to be so voracious and so miserly. The bottom 80% should not be forced to pay to keep up.
I'd rather know my cap and pay for my usage. If you want to download five, six, seven times what I do, you should be willing to pay for your proportionally greater use of resources. I have no interest in paying for "unlimited" access when 200GB is a cap I won't hit for the foreseeable future. I don't want to pay $10 extra for that ability so that a few users don't have to face the real costs of their consumption.
Yes, that's exactly right. The difference being that most books sold at retail are not distributed under special terms, because statutory copyright is sufficient for their purposes.
Sometimes, there are special provisions, and they are enacted and memorialized at the most accessible stage for two-way interaction. This is far more common in specialized and technical publishing. Standard practice for different forms of works varies. Books, paintings, sculptures, musical works, sound recordings, software, maps each have something different about their normal commercial terms. Whatever your intent was in shuffling words in an ill-formed response, you've yet again fallen wide of the mark. Yet again, you focus on content several steps ahead of where your analysis lies.
In your pathetic attempt to satirize, you simply conveyed truth. Your ability to read a book is based on your direct visual observation of its physical manifestation and the fact that a bare copyright notice is usually the only condition set by the owner upon distribution. Scan, photocopy, digitize, translate or otherwise reproduce the book and you've exceeded your rights. Violate specific terms incumbent on the distribution of that book to you (special circumstances and technical fields--for the most accessible example, review copies subject to close-hold, NDA, non-transfer, and other provisions), and you've exceeded your rights.
When you come across a piece of software with a bare copyright notice and no other terms, and when you can use your eyes and your brain to read the disc and process the software, you can claim that your physical property rights have been impinged and that you didn't sign them away in your acquisition of the copy.
In case it isn't clear in context, steps 1-4 are the premise (explanatory background information) and steps 5-7 are the actual actions among the three parties (execution).
Cellular service is a service. A copy of a copyrighted work is a good, not a service, unlessly specifically contracted out otherwise.
That is precisely why it's an illustration. I put it into a scenario where the constituent parts are easier to grasp than the layering of copyrighted works in commercial transactions.
You can't make an analogy between the two as if they were equivalent or even very comparable because they're incredibly different concepts.
Wow are you dense. The contents of the intangible right are not at issue in the question. The mechanical operation of the purchases is the same. Regardless of what is behind the agreement (whether it's a contract for service, access to a copyrighted work, an ODM agreement for patent widget fabrication, or anything else), the stages, components, and consequences of the purchase are the same. If it suits your purposes better, you can replace the cellular service with a gift card providing a metered amount of access to a database service (a la Lexis) of copyrighted works. This is not an everyday kind of construct, however, so it isn't readily accessible for illustrative purposes.
The point of quoting First Sale Doctrine is because, again, First Sale Doctrine is about:
You're quoting, but still not understanding.
Although the original First Sale Doctrine was spelled out over resale, clearly "do whatever they want to that copy" includes the right to *use* a copy.
No. Pay attention to what you copied and pasted, for crying out loud: "copyright protects [...] the content inside a book"--the use of that content is governed by copyright and any use falling inside one of their exclusive rights is theirs to do and to authorize. Your use of the material object is not limited; your use of the content is.
Even without First Sale Doctrine, it is patently absurd to think it's a "promo[tion] of the arts and sciences" for copyright holders to sell copies of a work without allowing the copy owner to ever use said copy.
Again, you fail utterly in interpretation. A copyright holder is not required to wield his copyright in a manner that is productive to the arts and sciences. The copyright itself is the means by which the arts and sciences are promoted under the incentive rationale employed by United States copyright law. Utility is not a concept of copyright; it is strictly a concept of patents. Courts do not determine, as a general rule, whether a copyrighted work is aesthetically valuable, useful to society, or being used to further society's interest--this is in fact directly contradictory to the premise of a copyright: to further the creator's interests while in effect, and then to enrich the public domain and further the arts and sciences at the end of its term.
The sale of a box good is not a license agreement.
No kidding.
The whole point of First Sale Doctrine was because, again, there have been attempts to enforce contracts after sale. First Sale Doctrine has specifically been invoked to nullify sections of SLA, after being agreed to, when they prevent resale.
And when you want to nullify an anti-resale term within an SLA, you can start talking DFS.
But, a SLA is not inherently necessary to using a program.
No, but that's not the question. SLAs are not mandatory. If one is employed, however, as an element of the distribution of the work, and the conveyance of rights, it is, like any other contract, binding.
Because in every step, from CD to disk to ram to cache to cpu instruction translation, section 117 covers the making of an adaption of a lawful copy of a copyrighted work.
Only after becoming the copy owner--purchasing the bo
Well, your interpretation is inherently flawed. By your logic, the program that displays the EULA would itself be copyright infringement because section 117 hasn't applied yet and you haven't agreed to whatever EULA is necessary to run the installer.
No, again, it's just your reading that is flawed. The installer launches and presents its terms; if they are accepted, the work is copied and installed. If they are declined, the installer exits. No one would benefit from refusing to allow the installer to run in RAM.
But, First Sale Doctrine clearly applies to the point that one can't try to force a contract upon people after purchase.
DFS protects the material property rights of customers. It does not and never has worked in this roundabout contortionist fashion you describe. You purchase an item; you may resell that item unless you have specifically agreed in advance that you won't resell it. First Sale refers to the distributor's right of first sale; it does not "cut off" any ongoing relationship. Post-sale restrictions have nothing to do with DFS, unless that putative restriction is an ex post facto denial of resale rights.
One doesn't just buy "the box". One buys the box and the contents, obviously including a copy of a computer program legally obtained.
One does buy the box and its contents, namely, a copy of the work protected from its point of manufacturing by included license terms, embedded on a plastic disc and stored with associated paperwork. The software's distribution is in full contemplation of an SLA that comes with it. Conveyance of rights does not occur until the terms are accepted. Up until that time, you are in possession of a set of material goods and not a copy of the work as understood by the Copyright Act. You can only assert ownership of the copy if the owner has conveyed a set of rights to you. The owner of software protected by an SLA, whether proprietary or open source, expressly does not authorize a distribution under any other terms.
This is really fairly easy to illustrate. When you buy one of those plastic cards with cellular service minutes loaded onto it, you are the owner of a plastic card, worth about six cents, that you paid $50 for. If you choose to agree to the terms of use of the cellular service, you can use it and retrieve what you mutually agreed was worth roughly $50. Applying a parallel restriction to DFS in copyright, you can resell that card after you buy it; after the right of first sale is enjoyed as to that physical object, it can be used, manipulated, and divested as any other physical object, but only your interest can be transferred--you can't give away more than you had. If you don't agree to the terms, that little plastic card has all the value of a (very ineffective) paperweight.
You don't get more than is authorized simply by the act of handing over money.
The adapted installer is used *only* for the purpose of utilizing the program, by allowing the install to continue. The only way that logic doesn't hold is if the adaption isn't necessary because one can agree to the EULA.
You still haven't overcome the fact that the owner has not yet conveyed any legal rights to you. You are in possession at that point of what is essentially an option to assert an interest in the copyrighted work, if you agree to the terms incumbent in the work (or if you arrange alternative terms with the owner). Even moving past that, the adapted installer is not necessary, as the installer is designed to install the software. No modification is an essential step in utilization and 117 would not protect you.
The only way that logic doesn't hold is if the adaption isn't necessary because one can agree to the EULA. But, clearly that is at odds with First Sale Doctrine which was specficially enshrined because of previous situations with attem
Say this to yourself as many times as it takes to sink in:
License and license agreement are two separate concepts. License and license agreement are two separate concepts. License and license agreement are two separate concepts.
A license is not a contract. A license agreementis a contract. Software "licenses" in nearly all cases are, in fact, license agreements (hint: anything that requires assent, a return promise, or an affirmative subsequent action on the part of the recipient requires a contract) containing a license. Often, and admittedly confusingly, a license agreement is called a "license", but it is in fact much more than a mere license.
A license is a grant of rights, within a defined scope and term. A license agreement is a set of contractually enforceable conditions, requirements, prerequisites, and other terms that surround the license grant.
Funny thing about copyright law in respect to computer programs... I have the right to make any copies needed to run it on my computer already.
Funny thing about you armchair lawyers...you don't have any reading comprehension skills.
If you are in possession of a lawful copy, section 117 permits the making of copies "essential" to its lawful use in a computer. The history of this section springs from a series of cases covering the issue of the operations of a computer system and the copying of protected works from a form of permanent storage media (e.g. the hard drive) into the computer's cache and RAM such that operations could be performed, which were considered non-transitory and thus fell under the copyright holder's 106 rights to prohibit. The major case in this line, of course, being Peak. The Copyright Act was amended to correct this unintended side effect (since computer software had not been contemplated in 1975 during the original drafting), creating what is today 17 USC 117.
It does not come into effect until you are the authorized, lawful owner of an installed copy of the software, which of course returns you to section 101 definitions and the copyright holder's conveyance of rights to users. The owner has the sole right to do and to authorize the making and distribution of copies per section 106. They have authorized distribution conditional to acceptance of specific business terms. Section 117 is an exception to their authority with regard to the reproduction right (meaning that they cannot prevent you, once becoming a lawful copy owner by an authorized distribution, from making the necessary copies inside your computer to operate the software), but it is not a limitation on that authorized distribution right.
The text of section 117 reads as follows: "Notwithstanding the provisions of section 106, it is not an infringement for the [lawful] owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the [lawful] utilization of the computer program in conjunction with a machine and that it is used in no other manner" (emphasis added)
Making modified copies for the purpose of bypassing binding terms placed on the initial conveyance of rights from the copyright owner to the putative copy owner (i.e. distribution) does not fall under section 117 because it is (a) used in an "other manner" and (b) performed by a person who has not complied with the terms of distribution and who is therefore not the copy owner as defined in section 101 (NB: they remain, however, the lawful owner of the box that contains the copy and its related components).
So, if I bypass the installer and uncompress the files to my computer, that's perfectly legal
No, because you have no right to make the initial reproduction, having failed to agree to the terms incumbent on distribution, and your modification of the software in order to run without requiring this step is further a derivative work, the preparation of which is expressly forbidden by law without permission, which is not provided by, again, failing to agree to the terms.
Just get a felt tip marker and write on your screen (or if it isn't glass then overlay some clear plastic). Draw lines over clauses you don't like and initial them.
And you give notice of those changes to the owner, how? The Offeror approves of those changes, where?
"By providing access to (service), company agrees to the terms of this contract".
They can't agree to what you are not, in fact, presenting to them. What you're saying is the same as taping a "contract" to the gas pump that says you don't have to pay if the gas pump operates, filling up, and driving away.
The reason gas stations don't do anything without electronic authorization is not because they were cleverly outsmarted with no legal recourse, but simply because fighting over commodities is a massive investment in time and money far exceeding the cost of losses.
Wait a month, then send them a bill, then a past-due notice, then by certified mail a letter saying they have '30 days' to pay before you go to small claims court. Ok, you'll lose in court but it will still be awesome. Maybe they won't show up and you'll get a default judgement
You can't get a default judgment on an invalid demand. You can't send someone a bill, show up in court, and then be awarded a default judgment because the other party ignored your fairy tale fabrication. You would have to show that a contract existed, an impossibility.
You can easily print out the terms, either from installers where this is feasible or from the owner's website, or use a paper copy provided, modify those terms with a pen, and send them back before installing the software. Include a supersession clause to replace the stock SLA and wait for their response. It's a contract. You're free to negotiate better terms for yourself in place of the owner's initial offering, but the owner has to endorse those terms. Their stock packaged SLA comes with their assent, since it's their offer of terms, which you can accept or decline.
Until both parties agree on a set of terms, though, the user is really just sitting on a fairly expensive bit of paper and plastic. The user still has first sale rights, of course, so they can sell that collection of paper and plastic to someone else (of course, if it's been altered from its factory-new state, it depreciates in value quite rapidly), but the user at some point wants to access the value of that purchase, and that is a conveyance of rights guarded by the owner and not surrendered except by license, conditioned on license agreement.
If you want something that belongs to another party, but you don't want to do business with that party, you can either suck it up or you can do business with a lawful competitor.
There's a little thing called willful ignorance, not to mention the fact that you are then creating an unlawful derivative work, which is an infringing use, and that absent the license agreement, no ownership in the copy has been conveyed to you, which gives you no right or recourse.
You can't rip out a copyright notice and then declare it doesn't exist, and whether you yourself or a third party does the same with an agreement, you are indicating three things: (1) awareness of its existence and its terms, (2) your subjective belief that it would or could be valid if you agreed to it, and (3) an intent to bypass, evade, and otherwise cheat your way into legal possession, knowing that such possession would not be authorized by the owner.
It is not a situation where you have managed to avoid agreeing to terms due to an oversight or mixup on the part of the offeror, which is clearly what you're thinking of--a case where you "forgot" to sign your cell phone term commitment and the salesman happened to miss it. In that case, you would not be bound by its terms (but you still would have to enter an agreement when the error was discovered, especially if it was demonstrated that you knew there was a term commitment involved in the price, or you can be held liable for your unjust enrichment). This case doesn't even rise to that level.
I would assume, of course, that if I incorporated parts of it into a completely new work, with significant changes, I would hold copyright over the new work -- but, obviously, the original public domain work would remain so.
If it's a completely new work, it can't incorporate an existing work. If you are contemplating the production of a derivative work, if the derivation is itself copyrightable (not usually a problem with software), then you would hold the copyright in the derivative work. This would not restore any measure of control over the prior work.
I'll take your word for that. I always found it odd, of course -- is there really an implied warranty on any piece of software in the first place, that every disclaimer must say "no warranty"?
Yes. It's called an implied warranty because it's unstated, and if you create a product of commercial use (whether sold or given away), it is presumed that it carries all applicable implied warranties. Lay people tend to gloss over the point, and developers in particular, because they assume that "oh, everyone knows there's no liability for software bugs". The reason for this is because all commercial software specifically disclaims all warranties and all civil liability to the full extent that it can be disclaimed in any given jurisdiction. Nothing is released unto the public "as is" unless it's labeled that way.
Of course, I would assume that for other countries, it would be relatively easy to draft a license which is functionally equivalent to public domain.
License and public domain are mutually exclusive. You can write an exceptionally permissive license, but the function of public domain is total surrendering of control, which a license by definition is not.
The question becomes what your purpose is in retaining a copyright for any period at all. This is why you have to sit down with an attorney--what is it that you want to do for 15 years that requires a copyright, and is what you want to do, in fact, a license or a license agreement (the GPL is in fact the latter, as are proprietary SLAs). The BSD and MIT licenses are much closer to true licenses in the legal sense, whereas the GPL's active participation requirement must be bound by assent. You must accede to the conditions and perform an overt act in order to qualify for the license grant. It's a true license only as long as you are not modifying or distributing. That's far too subtle a distinction for most people to grasp, though, even most attorneys working outside the field. Again, it's a worthwhile hour to spend.
I imagine it will. But that is also part of the point -- freedom of speech means freedom to say things very offensive to me. Similarly, freedom to use my work includes freedom to use it in ways I don't approve of, and intensely dislike.
Yes, and that's what everyone says in the beginning. You would not believe the number of people who then stumble across something that "crosses the line" a few years later and come back crying, hoping there was some loophole. It's a good intention, but as an advocate on your behalf, an attorney is going to challenge you to make sure that you really will be able to live with having absolutely no control, no right of attribution. Someone else can take credit for all the work, and unless you can pin civil fraud on them (which is a whole 'nother can of worms), there's nothing you can do to force them to retract the claim.
If you're certain that's what you want and you're willing to live with the consequences of truly no control, more power to you. But it does tend to be something that doesn't quite have the mileage in reality that it does in rhetoric for most people.
The essential problem there is when we have licenses which really are functionally equivalent, but incompatible. For example, the Gnu Free Documentation License is probably functionally eq
RTFA. The surgical process isn't claimed; the polymer muscle and its actuation system are. Just like there are patents on surgical tools and prosthetics, there's a patent for the EAP system.
The only people who would be prevented from receiving such a treatment are people who will have nothing to do with patents at all, in which case they'd never even be in the hospital in the first place.
Slashdot Mirror
By looking at the rules for when courtroom proceedings may be recorded and broadcast and determining (a) whether there's any argument that might allow it, (b) whether any party has made that argument, and (c) whether irreparable harm and/or undue influence would result from allowing it.
In this particular case, the buck stops at (b). There is a set of exceptions to the no recording rule, but no one has made a request that is couched in one of the allowable exceptions. Assuming that the defendants did make such an argument convincingly, the judge would have to look at (c) quite carefully. In this case, it's pretty much 50/50, and that means the court (the current trial judge notwithstanding) would likely err on the side of caution and refuse the request.
There's really nothing so special about this particular case that suggests that live streaming would do anything other than introduce prejudicial external pressure on one party. Capitol Records and its RIAA brethren certainly deserve public scorn...but no party in a legal action deserves prejudicial influence other than what they themselves bring to the table. Everyone deserves the same protections from demagoguery; the more reviled the party, the more important the court does what it can to ensure propriety.
Good god, man. You are totally lost.
But you again ignore the fact that the jurors are present in the room: they have no need to watch the broadcast.
Who's talking about the jury watching the broadcast of the proceedings? Only you. I'm talking about the media coverage it would inevitably and uncontrollably spawn.
I guess it could, but you are the only one saying it would.
It's a foregone conclusion. No one has time to spend six to eight hours a day for several weeks listening to the sound of papers shuffle. You have no idea how incredibly boring a civil trial is.
In this case, if you have any doubts about what a witness might say, you simply won't call them. Any deviations from what they said before trial and what they say on the stand, you do as you are doing to me: you attack, you misrepresent, you dismiss, whatever it takes to render the testimony moot to both sides.
You've missed the point entirely for the second time now. You don't always have the option to do those things and still present your case. There is no weighing to be done that makes a delay of a few weeks worth more than having witnesses destroy any chance at a fair trial. You pretend to care about fairness, making idiotic claims out of nothing more than pure ignorance of what actually happens in a real courtroom, and you take a point saying that we should embrace a policy that permits unprecedented levels of witness misconduct and simply roll with it. That's one of the biggest "fuck you" to a fair trial you can give, short of issuing the decision in advance of the arguments.
For stiff fees, of course.
Not really, no.
2. easy and widespread access to the system would make this transparently obvious
There already is easy and widespread access to the system. You can walk into just about any courtroom. The media can report on any ongoing trial. The parties are free to talk to the media afterward. You're free to view the entire transcripts and records afterward. Broadcasting the actual trial in its entirety doesn't do a damn thing to improve access; if anything, it hinders it--people simply don't have the capacity to listen to weeks of testimony if they're not involved.
3. and that permitting the exposure of said flaws is not in the system's interest
And again, there is no shortage of opportunities to expose "said flaws". A live broadcast certainly wouldn't make them more apparent, unless the flaw you speak of is the plodding pace of trials and the inefficiency of linguistic communication. In order for the existing system to conceal these grave problems, you'd need a conspiracy beyond that which humans are capable of.
It's call an "index".
You can't index a live broadcast in any meaningful sense.
You're either trolling or an idiot. Either way, you're just making yourself look bad at this point.
Your entire argument is without merit. It proceeds from the onset from a false premise.
By "broadcast", one presumes "what's actually happening" will be made transparently obvious.
No, because the actual proceedings in the courtroom are not the complete picture. Stipulations, preliminary motions, and other issues dispensed with would not be covered, nor would jury deliberations. You neglect entirely the fact that the bulk of public involvement with the broadcast would be presented through the media, which is the issue you're responding to.
Your markedly unparallel response speaks for itself. Undue media influence comes from the media's having the broadcast at their disposal.
Even today, the Court specifically orders jurors to ignore the media for exactly this reason.
An order not enforceable when the level and quantity of media presentation rises to this level. Look no further than the OJ trial.
I have to wonder how broadcast can possibly "contaminate" the jury
Think CNN "election night", but the subject matter is a courtroom proceeding. Pundits, soothsaying, lay "analysts", the entire parade of the court of public opinion. The unrestricted flow of amateur opinions, formed on nothing resembling legal proof or an understanding of the principles, issues, and factual disputes in play, quickly comes to exert undue influence.
here is one: the transcript alone doesn't record things like facial expressions of witnesses and so forth.
The jury was present to observe "things like facial expression". That's kind of the whole point of having a jury. They don't need a video to see what they can look at directly with their own eyes.
What the hell? No one puts anyone on the stand until they know exactly what they are going to say.
Trust me when I say you never know what a witness is going to say on the stand. You can only hope, prepare, and make your best selections. All of this occurs before trial. You cannot control what influences your witness between the last time you speak and the day they are called to testify. Given the opportunity to review the testimony of others and other proceedings in the trial, witnesses will have a unique and unprecedented way to change their testimony.
It's not hard to see at all, though you try your hardest to be ignorant of it. A witness, W2 listens to previous testimony by W1, and though you as the attorney are counting on the variation of the events by W2, W2 hears W1 and decides to revise her version of events to match more closely. The case is blown. Or you have a hostile witness who does not actually want to testify, who then arranges to contradict earlier testimony, equally blowing the case based on knowledge they're not supposed to have.
My guess is that courts do not want their proceedings broadcast live because it would regularly reveal just how dirty, illogical, and biased the entire apparatus really is.
A truly bizarre contention when you consider that the transcripts are all already available.
Most people never set foot in court,
Including quite plainly yourself.
The entire scheme is supported only by the unquestioned belief of these people that it is "fair" and "equitable", and any step that may give rise to concerns in this population about the administration of justice will be resisted by the administrators themselves: judges, lawyers, clerks, etc.
You're alleging an absolutely ludicrous conspiracy among clerks, court reporters, attorneys for both sides, defendants and parties found liable, jurors, judges, random members of the public present in the courtroom, bailiffs, members of the media, experts, and witnesses to defraud the public with sham proceedings. Not only is such massive coordination across millions of c
Would an open trial mean that a person could go in with a dicta phone and record the trial anyway?
No. Recording of any kind is prohibited without the express authorization of the judge.
I've seen plenty of excerpts from American trials on the news.
These are either culled from completed trials or obtained by professional journalists with media passes, who are then authorized to make limited recordings for the news, the exact rules for which vary from jurisdiction to jurisdiction.
Do you have to be a member of the press or get consent to film or record?
Short answer: yes. Long answer: no, but you need a compelling reason to get the judge's permission to do so, and the judge in nearly every jurisdiction in the country is bound by local, state, or federal rules of court and/or procedure that carefully circumscribe the conditions under which permission to record/broadcast may be granted. The judiciary occasionally makes its own proceedings available in appellate cases, which are commonly made available publicly (in California, for instance, appellate oral arguments are frequently made available online). Cases involving the government are sometimes televised at the government's request. Other than the judiciary and the government being granted permission, in practice only the media gets authorization, and at the trial level, it is an extremely narrow authorization.
Appeals are more widely broadcast/streamed because there are no juries, no witnesses, and much of the sensitive factual matter is left undisturbed, so the proceedings involve the issues of law and are less susceptible to interference from the media/public.
I seem to recall the OJ trial.
1. The trial was by far the most publicized trial in American history and makes a poor reference point, as the extreme outlier.
2. Only a small portion of the actual trial was broadcast. Most of what you recall is media coverage and punditry.
3. The trial judge was strongly criticized for allowing that level of media interference (and specifically for the improper influence the media had in the proceedings--precisely the problem with the concept of allowing recording devices in the courtroom).
4. The parties did not seek appellate review of the judge's decision to allow partial broadcasting.
5. The OJ trial was in California and not New York, where different local rules apply.
6. The OJ trial did not conform to standard procedure in Los Angeles, California, or the nation.
All in, a succinct showing of the rarity of broadcasting even portions of trial proceedings, the problems and ill consequences of doing so, and the overstepping of media coverage lines. The OJ trial quagmire is exactly why we have never had the practice of broadcasting trials.
Ideally this is great, until you have a justice system that continues to be unfair. In this kind of a case, then the judgement is made public, and then people end up thinking something is illegal when it isn't.
This doesn't make any sense whatsoever.
Broadcasting the trial doesn't make court more "fair"--it simply can't. The judge is still in charge, whose only actual fear is the appellate court above him, and the jury still deliberates in private. Nothing about having more people watching makes anything more "fair".
As to people "ending up thinking something is illegal when it isn't", such a result has absolutely nothing to do with broadcasting the proceedings. What exactly are you referring to?
I would love to know what "higher values" are served by closing this trial like this
The trial isn't closed. There is still a record, the courtroom is still open to members of the public, and both the trial and the result are covered by the media.
A closed proceeding is one in which access is restricted, no record is made or the record is entirely sealed, and the media has no access to any information on the matter. None of that is true here.
You vastly overstate the situation and egregiously misunderstand both the mechanics and the impact of this decision. We don't generally broadcast trials and never have. There are many reasons why we shouldn't. It is not as though all trials conducted in the past have been closed because no one has ever broadcast the entirety of the trial. I mean, really now. The very fact that you are reading and commenting on this story is proof that a public trial is ongoing.
I hear the phrase used from time to time, but I just can't seem to apply the metaphor to a civil court proceeding in my head. What, precisely, do you see as the negative implications of broadcast?
Interference on three grounds, for starters:
1. Media meddling, hounding, and general drowning out of what's actually happening. It's like televising the halftime team strategy meeting--it can't help the team do any better, it can only stir the pot in the audience, worsening the integrity of the event, inviting disruption and distraction in the courtroom, and resulting in the passage of bad information to the public. Look no further than the submitter's awful commentary on this administrative matter for the kind of undue influence exerted; they're willing to throw the baby out with the bathwater just because the party "benefiting" immediately happens to be a corrupt corporate regime, rather than looking at the whole picture.
2. Jury contamination. Extensive media coverage makes it nearly impossible for the jury to act based on the narrow parameters for which they are assembled; the kinds of journalistic advocacy composed outside the courtroom unfairly prejudice the jury's understanding as the case is fully presented to them in court. A good legal team knows the proper balance of what to present and what to handle outside of the jury's presence--and preliminary proceedings, stipulations, and rules of evidence are manifestly not followed by bloggers or even professional journalists.
3. Witness tampering. Witnesses are supposed to present their testimony as preserved by their role in the proceedings, outside the influence of the media. Detailed and verbatim recordings of proceedings, aired immediately, make it nearly impossible to rely on witness testimony. Witnesses not only have a general idea of how the trial is advancing, but have the specific opportunity to craft their testimony around earlier testimony that court procedures go to great lengths to keep away from witnesses.
You can go on from there into a whole litany of issues about advocacy, representation of clients, and so on.
I'm only able to see the advantage of greater transparency.
How does broadcasting the proceeding as it happens add to transparency, as opposed to making the record available after the fact, as is normal practice? It merely increases exposure, which is not itself a virtue. There's a reason that you don't publish drafts of scholarly works in most cases, unless you're circulating it for input. That's exactly the same reason you don't put out incomplete pieces of the trial.
It's really not a situation involving more or less transparency--it's about PR. The defendants want to stir the pot and have the case tried in the court of public opinion, where it's obvious they will win. The RIAA labels are about as unsympathetic as you get. It doesn't make the process any more fair, open, transparent, or accountable to broadcast trials. Any of those issues will appear in the transcripts and trial records, and if they're not in the transcript, they wouldn't be in the broadcast. It just makes the public shitstorm easier to build in any given case, and the courts are intentionally supposed to be insulated from that.
I also have trouble with the idea that this is an important enough issue to warrant an extraordinary writ.
There are few things more serious than the bounds of discretion of a trial court. The review and the opinion isn't about broadcasting the trial, it's about the judge's application of the rules of court. Failure to apply the law correctly is more or less the only reason for reversal in civil appeals.
or even particularly novel
Really? Do you know of any trials broadcasted live in their entirety?
It's incredibly rare; it's outright prohibited in criminal trials, and in most places, civilly, as well, subject t
Correct. More to the point for laypeople, the prohibition on "advisory" opinions (rooted in the fact that American jurisprudence requires a "real case or controversy") extends only to the practice of providing opinions on issues not ripe for litigation or where there are no parties before the court asserting an injury/requesting relief.
This is an actual case, being litigated in a real court. It does not meet the requirements for the issuance of a writ of mandamus, which makes the question one that is likely to escape review. Issuing an "advisory" component for the purpose of assisting practitioners and courts likely to face the same question in the near future doesn't implicate the problem the advisory opinions rule was meant to prevent. Cf. Canada, whose Supreme Court can offer their advice before the fact when questioned by Parliament; US courts cannot respond in this same way to Congress.
In short, the rule prevents the courts from expending resources on hypotheticals--not on elaborating its own procedures and authority in an issue within an actual case that might otherwise evade direct review.
It's a question of courtroom discretion, not one couched in the facts of a specific set of copyright infringement actions. The irreparable bias of the summary writer is highly problematic here; no professional judge or attorney would approach this question with such hamfisted incredulity. The legal questions here are administrative, not based on the parties. Anti-RIAA sentiment has no place contaminating the entire subject here.
The local court rule as written does not grant such broad authority to the judge; the appellate court was correct. Courtroom proceedings are not normally permitted to be broadcast while they are occurring, subject to limited exceptions in local rules. The risks of prejudicial effect are entirely too high. No applicable exception was referenced by the trial court, and therefore the general ban on broadcasting must be upheld.
I thought only the federal government is allowed to tax interstate commerce.
No, that is not the case. The Commerce Clause grants Congress the right to regulate interstate commerce, which includes the right to tax interstate commerce federally, but it does not deny the states the right to regulate the subject matter as well. As long as the states do not fall foul of Congressional regulation, they may do as they please, as sovereign powers.
Has this kind of "use tax" been challenged in court on Constitutional grounds?
That's the general gist of the Dormant Commerce Clause--state actions that burden interstate commerce despite not being barred by Congressional law. Such laws are stricken, but only those that are discriminatory.
A law collecting a tax that is identical to one collected of in-state sales is not discriminatory. It is equal treatment.
The current system relies on self-reporting for out-of-state purchases, because California doesn't have access to business records and business operations in Florida. Florida also has no obligation to collect taxes for California, and vice versa. California residents, however, are subject to a sales tax on personal property acquisitions, just as residents of Florida are. Crossing state lines to avoid this tax wasn't a huge issue before the Internet, because of the expense and time required.
However, with sites like Amazon offering low prices and no direct collection of taxes, in-state sales moved out of state, and neither state is generating the sales tax revenue they should be. There is a real need to fix this, but the solution is complicated due to huge variations in collection schemes.
Frankly, I believe the answer is a federal flat tax of, say, 5% on Internet purchases, regardless of both state of origin and state of purchase. Tax would be forwarded to the state based on the billing address, and the state would determine how to distribute those funds to state/municipal levels.
No. You must offer evidence they lied. They must offer evidence they told the truth if they're asserting "truth" as a defense. If the evidence they told the truth is less than your evidence that they lied, the defense fails and they are held liable for defamation.
"Proof" is what happens at the end of trial, not the beginning. If you are accused of defamation, you cannot simply claim you told the truth and sit down and do nothing--you must offer persuasive evidence corroborating your assertion. Proof in a civil trial is a comparison of two sets of evidence; you can only raise an affirmative defense in the event that the initial burden is met.
The party claiming that it is a lie has a considerably easier job in meeting its evidentiary burden. "Proving" they lied requires near-zero evidence if the other party doesn't have any evidence that they're telling the truth.
If they want to sit back and do nothing, they're not raising a defense. They're calling for the state equivalent of a 12(b)(6). That will almost never be granted solely on an issue of failure to assert falsity in the claim, because it requires virtually no evidence at all to satisfy the burden.
Armchair lawyers. Worthless.
If what you're saying were true, then I would be taking serious legal risk if I (for example) claimed to experience diarrhea after eating a chalupa.
Only if you made publicly defamatory remarks about Taco Bell by asserting it was their fault, and by doing so damaged Taco Bell's reputation.
Taco Bell could claim I lied, and I would have no evidence to the contrary.
If you have no evidence that Taco Bell gave you diarrhea, then yes. But if Taco Bell did cause you to have diarrhea, you would have evidence of that fact.
Sounds like the burden is on the plaintiff, not the defendant.
It is, and in order to raise an affirmative defense, that burden must first be satisfied--you're clearly completely unfamiliar with the concept of burden of proof or the concept of legal proof in general. If Taco Bell asserts that they did not give you diarrhea, at a minimum, all they have to do to prove that is make the assertion, assuming you have no evidence to the contrary.
The applicable evidentiary standard is preponderance of the evidence. That means their evidence must simply make it more likely than not that the condition exists. They can point to their ingredient selection standards, restaurant preparation procedures, and the fact that there are no other allegations of illness caused by that location on the day in question. That's sufficient proof with no countervailing evidence.
The burden then shifts to you--they claim it's not true, and the court asks you what evidence you have that the statement was true, because you're asserting in your response an affirmative defense, which the previous poster correctly flagged as being one that must be proven by the movant. You have zero evidence that Taco Bell caused an injury? Summary judgment for the plaintiff. Take a look at Bagwell Their evidence outweighs yours. In the case of word against word, the plaintiff in a defamation action wins.
Let's look at the Second Restatement, sections 581A and 613. "At common law the majority position has been that although the plaintiff must allege falsity in his complaint, the falsity of a defamatory communication is presumed." The bare allegation of falsity is sufficient proof in this context to shift the burden to the defendant. This rule has changed as a result of increased First Amendment protections, such that the plaintiff must refer to some evidence supporting the assertion. The sufficiency of the evidence must simply lead to a reasonable inference. It need not be proved by clear and convincing evidence or beyond a reasonable doubt.
You may want to rethink your own perception of reality.
No, but thanks for playing.
No, because if the defendant believed that to be the case, then there would not have been any motive for him to make the statement. Clearly, it was meant in a pejorative sense and intended to cause pain, intimidation, frustration, and generally harass the other student.
It's not about whether there's anything "wrong" with being gay--obviously, there isn't--it's about whether the allegation caused injury, and that's a much different question with a closeted individual. Fraudulently signing someone up on a "singles" website might well be defamatory to a married person, even though there's nothing wrong with being single. Accusing someone of being Jewish when they aren't might be, too, though there is nothing wrong with being Jewish.
The question, as with all offenses, is whether the perpetrator or liable party broke the law. Showings of actual harm have a very low bar--stealing a single apple from a million-acre orchard owned by a multi-billion dollar corporation is very different from stealing a single apple from a single, impoverished family's tree, but both are actual harm, of exactly equal value in determining whether the offense occurred. The place where it makes a difference is in sentencing or awarding damages, which is a separate question.
Libel does require emotional injury and/or damage to one's reputation. If the statement is made specifically to expose a person to hatred, contempt, or ridicule (as here), then the need to show injury is very limited. Showing that is easy. A person may not be embarrassed about being gay but still harmed about an attempted forced outing.
All of that ignores the essential first step: there has to be proof the kid is, in fact, gay.
That can't be right.
It is the case. The party asserting the defense must provide evidence supporting their assertion (the truth of the matter, in this case).
If you print that Joe Clark is embezzling money from a company, and then Joe Clark sues you for libel, you have to offer evidence that he was, in fact, embezzling money to support your claim that you published information you knew to be true. Joe Clark only has to assert that the statement is not true and support it with evidence more compelling than your own. If you don't offer any evidence, then Joe Clark's bare allegation trumps yours, and you lose. If you submit some evidence, but Joe Clark submits more or more persuasive evidence, you still lose.
If you didn't know it was true, didn't have any facts to support its truth, and published it anyway, your act was one of defamation. The defense of truth to libel actions protects publication of damaging news stories where there is a good faith belief that they are true and reasonable objective evidence to support that belief.
If that were true, no person could ever make any negative claim about anyone without having legal proof in hand.
Not legal proof, merely sufficient evidence to support the proposition.
Clearly, that is not the case.
Whatever you and the moderators to your previous comment are smoking is clearly interfering with your perception of reality.
A delay in RAISING the prices *is* a reduction.
Instead of increasing everyone's connection charges by $5-10, they are increasing the gluttonous top 10% by a larger amount ($50-100). Works out the same, and most people end up paying less than they would without the plan. You can argue the merits of whether they really need to raise $x million more per year, but that's beside the point--they decided to do it. The only question is where they're going to get that money: an incremental increase for everyone or a more substantial increase for the problem users.
Of course nominal prices are never going to be reduced. That wouldn't ever make sense. It's only a question of who pays the increase, not whether it's coming.
I paid $59 in 1999 for my 3Mbit cable connection. That's $77 in 2009 dollars. I'm paying $30 for 6Mbit today. That's substantially cheaper, thanks to speed improvements--not price reductions. Caps are inevitable when competition for resources increases. There's always a middle stage where demand explodes and technology doesn't have an immediate answer. Time Warner's cap levels suck, sure, but it's a pond that's being overfished. People simply don't need to be so voracious and so miserly. The bottom 80% should not be forced to pay to keep up.
I'd rather know my cap and pay for my usage. If you want to download five, six, seven times what I do, you should be willing to pay for your proportionally greater use of resources. I have no interest in paying for "unlimited" access when 200GB is a cap I won't hit for the foreseeable future. I don't want to pay $10 extra for that ability so that a few users don't have to face the real costs of their consumption.
Yes, that's exactly right. The difference being that most books sold at retail are not distributed under special terms, because statutory copyright is sufficient for their purposes.
Sometimes, there are special provisions, and they are enacted and memorialized at the most accessible stage for two-way interaction. This is far more common in specialized and technical publishing. Standard practice for different forms of works varies. Books, paintings, sculptures, musical works, sound recordings, software, maps each have something different about their normal commercial terms. Whatever your intent was in shuffling words in an ill-formed response, you've yet again fallen wide of the mark. Yet again, you focus on content several steps ahead of where your analysis lies.
In your pathetic attempt to satirize, you simply conveyed truth. Your ability to read a book is based on your direct visual observation of its physical manifestation and the fact that a bare copyright notice is usually the only condition set by the owner upon distribution. Scan, photocopy, digitize, translate or otherwise reproduce the book and you've exceeded your rights. Violate specific terms incumbent on the distribution of that book to you (special circumstances and technical fields--for the most accessible example, review copies subject to close-hold, NDA, non-transfer, and other provisions), and you've exceeded your rights.
When you come across a piece of software with a bare copyright notice and no other terms, and when you can use your eyes and your brain to read the disc and process the software, you can claim that your physical property rights have been impinged and that you didn't sign them away in your acquisition of the copy.
In case it isn't clear in context, steps 1-4 are the premise (explanatory background information) and steps 5-7 are the actual actions among the three parties (execution).
Cellular service is a service. A copy of a copyrighted work is a good, not a service, unlessly specifically contracted out otherwise.
That is precisely why it's an illustration. I put it into a scenario where the constituent parts are easier to grasp than the layering of copyrighted works in commercial transactions.
You can't make an analogy between the two as if they were equivalent or even very comparable because they're incredibly different concepts.
Wow are you dense. The contents of the intangible right are not at issue in the question. The mechanical operation of the purchases is the same. Regardless of what is behind the agreement (whether it's a contract for service, access to a copyrighted work, an ODM agreement for patent widget fabrication, or anything else), the stages, components, and consequences of the purchase are the same. If it suits your purposes better, you can replace the cellular service with a gift card providing a metered amount of access to a database service (a la Lexis) of copyrighted works. This is not an everyday kind of construct, however, so it isn't readily accessible for illustrative purposes.
The point of quoting First Sale Doctrine is because, again, First Sale Doctrine is about:
You're quoting, but still not understanding.
Although the original First Sale Doctrine was spelled out over resale, clearly "do whatever they want to that copy" includes the right to *use* a copy.
No. Pay attention to what you copied and pasted, for crying out loud: "copyright protects [...] the content inside a book"--the use of that content is governed by copyright and any use falling inside one of their exclusive rights is theirs to do and to authorize. Your use of the material object is not limited; your use of the content is.
Even without First Sale Doctrine, it is patently absurd to think it's a "promo[tion] of the arts and sciences" for copyright holders to sell copies of a work without allowing the copy owner to ever use said copy.
Again, you fail utterly in interpretation. A copyright holder is not required to wield his copyright in a manner that is productive to the arts and sciences. The copyright itself is the means by which the arts and sciences are promoted under the incentive rationale employed by United States copyright law. Utility is not a concept of copyright; it is strictly a concept of patents. Courts do not determine, as a general rule, whether a copyrighted work is aesthetically valuable, useful to society, or being used to further society's interest--this is in fact directly contradictory to the premise of a copyright: to further the creator's interests while in effect, and then to enrich the public domain and further the arts and sciences at the end of its term.
The sale of a box good is not a license agreement.
No kidding.
The whole point of First Sale Doctrine was because, again, there have been attempts to enforce contracts after sale. First Sale Doctrine has specifically been invoked to nullify sections of SLA, after being agreed to, when they prevent resale.
And when you want to nullify an anti-resale term within an SLA, you can start talking DFS.
But, a SLA is not inherently necessary to using a program.
No, but that's not the question. SLAs are not mandatory. If one is employed, however, as an element of the distribution of the work, and the conveyance of rights, it is, like any other contract, binding.
Because in every step, from CD to disk to ram to cache to cpu instruction translation, section 117 covers the making of an adaption of a lawful copy of a copyrighted work.
Only after becoming the copy owner--purchasing the bo
Well, your interpretation is inherently flawed. By your logic, the program that displays the EULA would itself be copyright infringement because section 117 hasn't applied yet and you haven't agreed to whatever EULA is necessary to run the installer.
No, again, it's just your reading that is flawed. The installer launches and presents its terms; if they are accepted, the work is copied and installed. If they are declined, the installer exits. No one would benefit from refusing to allow the installer to run in RAM.
But, First Sale Doctrine clearly applies to the point that one can't try to force a contract upon people after purchase.
DFS protects the material property rights of customers. It does not and never has worked in this roundabout contortionist fashion you describe. You purchase an item; you may resell that item unless you have specifically agreed in advance that you won't resell it. First Sale refers to the distributor's right of first sale; it does not "cut off" any ongoing relationship. Post-sale restrictions have nothing to do with DFS, unless that putative restriction is an ex post facto denial of resale rights.
One doesn't just buy "the box". One buys the box and the contents, obviously including a copy of a computer program legally obtained.
One does buy the box and its contents, namely, a copy of the work protected from its point of manufacturing by included license terms, embedded on a plastic disc and stored with associated paperwork. The software's distribution is in full contemplation of an SLA that comes with it. Conveyance of rights does not occur until the terms are accepted. Up until that time, you are in possession of a set of material goods and not a copy of the work as understood by the Copyright Act. You can only assert ownership of the copy if the owner has conveyed a set of rights to you. The owner of software protected by an SLA, whether proprietary or open source, expressly does not authorize a distribution under any other terms.
This is really fairly easy to illustrate. When you buy one of those plastic cards with cellular service minutes loaded onto it, you are the owner of a plastic card, worth about six cents, that you paid $50 for. If you choose to agree to the terms of use of the cellular service, you can use it and retrieve what you mutually agreed was worth roughly $50. Applying a parallel restriction to DFS in copyright, you can resell that card after you buy it; after the right of first sale is enjoyed as to that physical object, it can be used, manipulated, and divested as any other physical object, but only your interest can be transferred--you can't give away more than you had. If you don't agree to the terms, that little plastic card has all the value of a (very ineffective) paperweight.
You don't get more than is authorized simply by the act of handing over money.
The adapted installer is used *only* for the purpose of utilizing the program, by allowing the install to continue. The only way that logic doesn't hold is if the adaption isn't necessary because one can agree to the EULA.
You still haven't overcome the fact that the owner has not yet conveyed any legal rights to you. You are in possession at that point of what is essentially an option to assert an interest in the copyrighted work, if you agree to the terms incumbent in the work (or if you arrange alternative terms with the owner). Even moving past that, the adapted installer is not necessary, as the installer is designed to install the software. No modification is an essential step in utilization and 117 would not protect you.
The only way that logic doesn't hold is if the adaption isn't necessary because one can agree to the EULA. But, clearly that is at odds with First Sale Doctrine which was specficially enshrined because of previous situations with attem
Say this to yourself as many times as it takes to sink in:
License and license agreement are two separate concepts.
License and license agreement are two separate concepts.
License and license agreement are two separate concepts.
A license is not a contract. A license agreement is a contract. Software "licenses" in nearly all cases are, in fact, license agreements (hint: anything that requires assent, a return promise, or an affirmative subsequent action on the part of the recipient requires a contract) containing a license. Often, and admittedly confusingly, a license agreement is called a "license", but it is in fact much more than a mere license.
A license is a grant of rights, within a defined scope and term. A license agreement is a set of contractually enforceable conditions, requirements, prerequisites, and other terms that surround the license grant.
Funny thing about copyright law in respect to computer programs... I have the right to make any copies needed to run it on my computer already.
Funny thing about you armchair lawyers...you don't have any reading comprehension skills.
If you are in possession of a lawful copy, section 117 permits the making of copies "essential" to its lawful use in a computer. The history of this section springs from a series of cases covering the issue of the operations of a computer system and the copying of protected works from a form of permanent storage media (e.g. the hard drive) into the computer's cache and RAM such that operations could be performed, which were considered non-transitory and thus fell under the copyright holder's 106 rights to prohibit. The major case in this line, of course, being Peak. The Copyright Act was amended to correct this unintended side effect (since computer software had not been contemplated in 1975 during the original drafting), creating what is today 17 USC 117.
It does not come into effect until you are the authorized, lawful owner of an installed copy of the software, which of course returns you to section 101 definitions and the copyright holder's conveyance of rights to users. The owner has the sole right to do and to authorize the making and distribution of copies per section 106. They have authorized distribution conditional to acceptance of specific business terms. Section 117 is an exception to their authority with regard to the reproduction right (meaning that they cannot prevent you, once becoming a lawful copy owner by an authorized distribution, from making the necessary copies inside your computer to operate the software), but it is not a limitation on that authorized distribution right.
The text of section 117 reads as follows:
"Notwithstanding the provisions of section 106, it is not an infringement for the [lawful] owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the [lawful] utilization of the computer program in conjunction with a machine and that it is used in no other manner" (emphasis added)
Making modified copies for the purpose of bypassing binding terms placed on the initial conveyance of rights from the copyright owner to the putative copy owner (i.e. distribution) does not fall under section 117 because it is (a) used in an "other manner" and (b) performed by a person who has not complied with the terms of distribution and who is therefore not the copy owner as defined in section 101 (NB: they remain, however, the lawful owner of the box that contains the copy and its related components).
So, if I bypass the installer and uncompress the files to my computer, that's perfectly legal
No, because you have no right to make the initial reproduction, having failed to agree to the terms incumbent on distribution, and your modification of the software in order to run without requiring this step is further a derivative work, the preparation of which is expressly forbidden by law without permission, which is not provided by, again, failing to agree to the terms.
Just get a felt tip marker and write on your screen (or if it isn't glass then overlay some clear plastic). Draw lines over clauses you don't like and initial them.
And you give notice of those changes to the owner, how? The Offeror approves of those changes, where?
"By providing access to (service), company agrees to the terms of this contract".
They can't agree to what you are not, in fact, presenting to them. What you're saying is the same as taping a "contract" to the gas pump that says you don't have to pay if the gas pump operates, filling up, and driving away.
The reason gas stations don't do anything without electronic authorization is not because they were cleverly outsmarted with no legal recourse, but simply because fighting over commodities is a massive investment in time and money far exceeding the cost of losses.
Wait a month, then send them a bill, then a past-due notice, then by certified mail a letter saying they have '30 days' to pay before you go to small claims court. Ok, you'll lose in court but it will still be awesome. Maybe they won't show up and you'll get a default judgement
You can't get a default judgment on an invalid demand. You can't send someone a bill, show up in court, and then be awarded a default judgment because the other party ignored your fairy tale fabrication. You would have to show that a contract existed, an impossibility.
You can easily print out the terms, either from installers where this is feasible or from the owner's website, or use a paper copy provided, modify those terms with a pen, and send them back before installing the software. Include a supersession clause to replace the stock SLA and wait for their response. It's a contract. You're free to negotiate better terms for yourself in place of the owner's initial offering, but the owner has to endorse those terms. Their stock packaged SLA comes with their assent, since it's their offer of terms, which you can accept or decline.
Until both parties agree on a set of terms, though, the user is really just sitting on a fairly expensive bit of paper and plastic. The user still has first sale rights, of course, so they can sell that collection of paper and plastic to someone else (of course, if it's been altered from its factory-new state, it depreciates in value quite rapidly), but the user at some point wants to access the value of that purchase, and that is a conveyance of rights guarded by the owner and not surrendered except by license, conditioned on license agreement.
If you want something that belongs to another party, but you don't want to do business with that party, you can either suck it up or you can do business with a lawful competitor.
There's a little thing called willful ignorance, not to mention the fact that you are then creating an unlawful derivative work, which is an infringing use, and that absent the license agreement, no ownership in the copy has been conveyed to you, which gives you no right or recourse.
You can't rip out a copyright notice and then declare it doesn't exist, and whether you yourself or a third party does the same with an agreement, you are indicating three things: (1) awareness of its existence and its terms, (2) your subjective belief that it would or could be valid if you agreed to it, and (3) an intent to bypass, evade, and otherwise cheat your way into legal possession, knowing that such possession would not be authorized by the owner.
It is not a situation where you have managed to avoid agreeing to terms due to an oversight or mixup on the part of the offeror, which is clearly what you're thinking of--a case where you "forgot" to sign your cell phone term commitment and the salesman happened to miss it. In that case, you would not be bound by its terms (but you still would have to enter an agreement when the error was discovered, especially if it was demonstrated that you knew there was a term commitment involved in the price, or you can be held liable for your unjust enrichment). This case doesn't even rise to that level.
I would assume, of course, that if I incorporated parts of it into a completely new work, with significant changes, I would hold copyright over the new work -- but, obviously, the original public domain work would remain so.
If it's a completely new work, it can't incorporate an existing work. If you are contemplating the production of a derivative work, if the derivation is itself copyrightable (not usually a problem with software), then you would hold the copyright in the derivative work. This would not restore any measure of control over the prior work.
I'll take your word for that. I always found it odd, of course -- is there really an implied warranty on any piece of software in the first place, that every disclaimer must say "no warranty"?
Yes. It's called an implied warranty because it's unstated, and if you create a product of commercial use (whether sold or given away), it is presumed that it carries all applicable implied warranties. Lay people tend to gloss over the point, and developers in particular, because they assume that "oh, everyone knows there's no liability for software bugs". The reason for this is because all commercial software specifically disclaims all warranties and all civil liability to the full extent that it can be disclaimed in any given jurisdiction. Nothing is released unto the public "as is" unless it's labeled that way.
Of course, I would assume that for other countries, it would be relatively easy to draft a license which is functionally equivalent to public domain.
License and public domain are mutually exclusive. You can write an exceptionally permissive license, but the function of public domain is total surrendering of control, which a license by definition is not.
The question becomes what your purpose is in retaining a copyright for any period at all. This is why you have to sit down with an attorney--what is it that you want to do for 15 years that requires a copyright, and is what you want to do, in fact, a license or a license agreement (the GPL is in fact the latter, as are proprietary SLAs). The BSD and MIT licenses are much closer to true licenses in the legal sense, whereas the GPL's active participation requirement must be bound by assent. You must accede to the conditions and perform an overt act in order to qualify for the license grant. It's a true license only as long as you are not modifying or distributing. That's far too subtle a distinction for most people to grasp, though, even most attorneys working outside the field. Again, it's a worthwhile hour to spend.
I imagine it will. But that is also part of the point -- freedom of speech means freedom to say things very offensive to me. Similarly, freedom to use my work includes freedom to use it in ways I don't approve of, and intensely dislike.
Yes, and that's what everyone says in the beginning. You would not believe the number of people who then stumble across something that "crosses the line" a few years later and come back crying, hoping there was some loophole. It's a good intention, but as an advocate on your behalf, an attorney is going to challenge you to make sure that you really will be able to live with having absolutely no control, no right of attribution. Someone else can take credit for all the work, and unless you can pin civil fraud on them (which is a whole 'nother can of worms), there's nothing you can do to force them to retract the claim.
If you're certain that's what you want and you're willing to live with the consequences of truly no control, more power to you. But it does tend to be something that doesn't quite have the mileage in reality that it does in rhetoric for most people.
The essential problem there is when we have licenses which really are functionally equivalent, but incompatible. For example, the Gnu Free Documentation License is probably functionally eq
RTFA. The surgical process isn't claimed; the polymer muscle and its actuation system are. Just like there are patents on surgical tools and prosthetics, there's a patent for the EAP system.
The only people who would be prevented from receiving such a treatment are people who will have nothing to do with patents at all, in which case they'd never even be in the hospital in the first place.