"I'd like to hear a lawyer inform us as to how much of it has any reflection whatsoever in case law."
Case law shmase law. 4th Amendment provides protection against "unreasonable searches and seizures." The question is a balancing test of two parts (from Terry v State of Ohio, 392 US 1):
1. Nature and extent of the governmental interest involved
2. Whether there is justification for the police's invasion of the suspect's personal security by searching the suspect for weapons in the course of the investigation.
A wiretap IS a search and the problem is many people seem to feel the government can just trump it... thank you patriot act. (that was sarcasm)
what you have to remember is the rule, since the beginning of the use of common law jurisprudence (16th Century England) is that to use deadly force, you must first back down AND you must believe the person is going to hurt you. the whole not backing down thing puts a whole new spin on it that, frankly, scares me.... especially after living with my 88 year old great aunt for the summer who used to forget i was living there sometimes. kinda makes you wonder.
you can never kill over property and you must back down before using deadly force (unless you're in florida, which just passed the worst law in the history of juriprudence ever). and it's a heat of the moment thing, not something you can later do.
If you read the literature (crap) that comes with the CD, i bet you that it has an agreement written by some lawyer (hey maybe me in like 2 years) that says "by inserting this cd in your computer you agree to let us install the software." while this statement may be unconscionable (and therefore bad and therefore unenforceable), it may also be ok. it depends on the judge and the jurisdiction.
the "click here if you agree" EULA's have been met with a resounding chorus of "they don't matter and they don't mean you agree" so who knows.
either way i like all the bad press Sony is getting, it will stop others from doing this.
Technically spyware isn't a virus. A virus replicates itself, this isn't. It's an absurdly fine line (which Congress will soon obliterate, believe me) which makes it hard.
From Merriam-Webster's online dictionary (m-w.com) "4 : a computer program usually hidden within another seemingly innocuous program that produces copies of itself and inserts them into other programs and that usually performs a malicious action (as destroying data)"
It doesn't (a) copy itself (b) insert itself into other programs nor (c) perform malicious action. Annoying isn't thesame as malicious. I'm not defending them, I'm just saying it will take a creative attorney to get this off the ground.
The main reason there aren't lawsuits yet is for there to be a lawsuit, there must be actual loss (often referred to as "harm"). There really isn't any. The only other way to sue would be under trespass of chattel (basically entering a computer without the OK, "chattel" is all personal property or [for the layman] all property that isn't land or a building), whereas the software would be "trespassing" the computer. it's pretty hard to allege because you WILLINGLY run the CD. California will probably be a test run. Either way, Sony is gonna get their asses kicked over this by consumers.
And for those wondering, I'm a second year law student at The Dickinson School of Law of The Pennsylvania State University.
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"I'd like to hear a lawyer inform us as to how much of it has any reflection whatsoever in case law."
Case law shmase law. 4th Amendment provides protection against "unreasonable searches and seizures." The question is a balancing test of two parts (from Terry v State of Ohio, 392 US 1):
1. Nature and extent of the governmental interest involved
2. Whether there is justification for the police's invasion of the suspect's personal security by searching the suspect for weapons in the course of the investigation.
A wiretap IS a search and the problem is many people seem to feel the government can just trump it... thank you patriot act. (that was sarcasm)
what you have to remember is the rule, since the beginning of the use of common law jurisprudence (16th Century England) is that to use deadly force, you must first back down AND you must believe the person is going to hurt you. the whole not backing down thing puts a whole new spin on it that, frankly, scares me.... especially after living with my 88 year old great aunt for the summer who used to forget i was living there sometimes. kinda makes you wonder.
you can never kill over property and you must back down before using deadly force (unless you're in florida, which just passed the worst law in the history of juriprudence ever). and it's a heat of the moment thing, not something you can later do.
How is Mars Attacks! not on this list? Such a travesty. That movie was a cinematic masterpiece! yeah... im joking. don't worry.
If you read the literature (crap) that comes with the CD, i bet you that it has an agreement written by some lawyer (hey maybe me in like 2 years) that says "by inserting this cd in your computer you agree to let us install the software." while this statement may be unconscionable (and therefore bad and therefore unenforceable), it may also be ok. it depends on the judge and the jurisdiction. the "click here if you agree" EULA's have been met with a resounding chorus of "they don't matter and they don't mean you agree" so who knows. either way i like all the bad press Sony is getting, it will stop others from doing this.
Technically spyware isn't a virus. A virus replicates itself, this isn't. It's an absurdly fine line (which Congress will soon obliterate, believe me) which makes it hard. From Merriam-Webster's online dictionary (m-w.com) "4 : a computer program usually hidden within another seemingly innocuous program that produces copies of itself and inserts them into other programs and that usually performs a malicious action (as destroying data)" It doesn't (a) copy itself (b) insert itself into other programs nor (c) perform malicious action. Annoying isn't thesame as malicious. I'm not defending them, I'm just saying it will take a creative attorney to get this off the ground.
The main reason there aren't lawsuits yet is for there to be a lawsuit, there must be actual loss (often referred to as "harm"). There really isn't any. The only other way to sue would be under trespass of chattel (basically entering a computer without the OK, "chattel" is all personal property or [for the layman] all property that isn't land or a building), whereas the software would be "trespassing" the computer. it's pretty hard to allege because you WILLINGLY run the CD. California will probably be a test run. Either way, Sony is gonna get their asses kicked over this by consumers. And for those wondering, I'm a second year law student at The Dickinson School of Law of The Pennsylvania State University.