So what if AOL profits off of reducing my spam load?
How would this reduce ads for V|aGRa and "st0ck updates"? If these break through spam filers already, then they will still break through the spam filter now. And if the spam filter blocked them before, it will still block them now. As far as I can tell all this does is let paying companies bypass the spam filter. This only means more spam in the inbox, not less. Their spam filter will not suddenly become stronger, and it won't suddenly put fear into the hearts of spammers--if they got through before, they'll still get through now. And it won't suddenly begin putting legit emails behind walls--well, not anymore than it already does. In fact, yes it kind of will, because legitimate mass emails, like subscription newsletters and whatnot, will now have to pay, and many won't do it.
I don't see how this will help with spam at all. Illigitimate spammers will not be affected by this at all.
You're confusing "famous" amongst its users, and "famous" amongst users of products within its market.
For example, do you know anything about horse riding equipment? I don't. I couldn't tell you a good brand saddle from a bad one. But, amongst people that ride horses, there are a few brands that are famous. Other brands might only be known within small horse-riding communities. If a brand is well known within the whole horse riding community, then it's "famous" even though the public outside of the horse-riding community doesn't know the brand. A brand would not be famous if only the horse riding community in Podunk, TX knew the brand well.
In the end, it's up to a judge or jury to decide whether or not BiTorrent is "famous." As for me, I think they're pretty well known the world over amongst people that download stuff, not just amongst their users. For example, I don't use BiTorrent.
Here's the thing, man, I don't have time to get into all of it. But I can refer you to the Lanham Act where this is all set forth. You're looking too much at one factor, not giving any weight to other factors. You'll see what I mean in a minute. 15 USC 1127 "The term 'dilution' means the lessening of the capacity of a famous mark to identify and distinguish goods and services, regardless of the presence or absence of--(1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion."
Do you see why I say that it shouldn't matter that a dairy which started stamping "BiTorrent" on milk jugs doesn't compete directly against BiTorrent? "regardless of the presence... of competition... or likelihood of confusion."
But now you're saying, "But BiTorrent isn't a famous mark!" Maybe not in your mind, but "famous mark" is a defined term in the Lanham Act. To determine if a mark is "famous" you look at the factors set forth in 15 USC 1125(c)(1). The factors are distinctiveness, duration of use, duration and extent of advertising, geographic trading area, channels of trade, degree of recognition in those channels, extent of use of similar marks, registration. The statute says that these are factors that may be used, but it doesn't say all must be strong, and it doesn't say that any particular one is overriding. What you do is look at the factors as a whole, see how BiTorrent fairs overall, and then decide if the mark is strong.
Distinctiveness: BiTorrent has the strongest level of distinctiveness. This factor will play heavily in their favor. Even if you saw BiTorrent on milk, you would think, "they didn't just make that up and happen to pick the same name." It's tough for a second user to use an "arbitrary" mark innocently.
Duration of use: not that long.
Advertising: not much
Geographical extent: the world over
Channels of trade: they market to computer geeks.
Recognition within those channels: they are really well known among computer geeks all over.
Use of mark by others: Never used before BiTorrent made it up.
Registered: I don't know. But most likely it was; almost everyone registers anymore.
It's up to a court to decide if the mark is famous, but I would say it is even though they haven't been around that long and haven't advertised much (as far as I know). It seems to me that BiTorrent got to be really well known amongst people that are heavy computer users very quickly and without advertising. This speaks to their quality, and all of the other factors weigh in their favor. Imagine there was a fur coat manufacturer called "XanXang" and sellers of fur coats hadn't heard of the name. That mark isn't "famous." But imagine if "XanXang" was well known among fur coat sellers. This mark may be famous even though the average Joe had never heard of XanXang. The factors for "famousness" don't ask if people outside of the market know the name.
You're asking me to comment on a scenareo where the mark is used in a different market. As you can see, the "famousness" factors only work to decide if a mark is famous in one market; it doesn't ask if the mark is famous to people who don't use computers. It asks if the mark is well known among people who use this type of stuff. Once it's famous, dilution laws protect the mark in all markets--"regardless of competition." This is because of the purpose of anti-dilution laws. When I hear BiTorrent, the Lanham gives BiTorrent the right to make it so I don't have to stop and think "is this person talking about the milk, or the file downloading service?"
"What about "Fry's" grocery versus "Fry's" Electronics? I guess the marks weren't deemed "famous" enough.
Ok, now for one last punch at what I was really arguing in the first place. The Lanham Act states in 15 USC 1125(c)(2) that if the perso
Sure it does (to a degree anyway--there are always other factors to take into account). It's possible that another company might pick a similar arbitrary name innocently in a whole different market, but they have something going against them. The mark is presumptively strong because the name is arbitrary. In other words--the chances of someone in a different market just randomly picking the name "BiTorrent" is ultra-slim. So there's a presumption that the name is not duplicated merely by chance.
For an example, there was a case where a gas station/store called "Ha-Ha" located in California. "Wa-Wa," a gas station/store that has several locations in the NJ, PA, MD area sued becaue of the name similarity. Wa-Wa won even though the markets were completely different. This was because the "Ha-Ha" name was sufficiently similar to the arbitrary "Wa-Wa" name. The Ha-Ha people weren't able to overcome the presumption that their use was non-innocent.
First, I should note a few things. I am not a lawyer. I am a lowly law student who doesn't know much, but I am taking my second course regarding intellectual property.
You're correct to a degree, but you have to understand that Federal law supercedes the state law in the same area. So California doesn't try to regulate in the areas where federal law does, their laws merely take over where the federal laws take off. So, you need to take into account the entire body of federal law which disallows dilution (there's a whole Act on dilution, and not just in cases of fraud), confusion, etc., and then, when in California, add their laws to the mix (when they don't conflict).
Fraud using another company's mark is presumptively illegal. So that much was correct.
Here's how you can know the laws aren't all about fraud. Imagine someone who has never heard of some company called "Coca-Cola" and the person very innocently, and non-fraudulently decided to produce a whole grain cereal called "Coca-Cola." This person would still be violating copyright law because of dilution laws.
Here's what's wrong with dilution. Imagine we had a world like the one you describe. The person above would be allowed to produce their cereal. Two things would happen; first, I would go to the store and say, "when did Coca-Cola start making cold cereal?" Later, when I discover the cereal is not made by the soft drink company, when I saw the name "Coca-Cola," I would stop for a minute and say, "which one? The cereal or the soda?" That is name dilution. There is no fraud, the cereal company is not making people spend less on soda (or pajamas), but it is nonetheless illegal. That's dilution, and it's illegal. (strict liability)
Yeah, mod parent down. Everything he said is wrong. Trademark is intel prop. And If I made a movie called "Revenge of the BiTorrent," I would still be liable under trademark law, not copyright law. The whole deal about me suing BiTorrent users for distributing my movie is irrelevant.
Ummm, this is wrong. For brands that are sufficiently strong, you can't use their name for anything. There are lots of factors to take into account, but you picked some particularly strong trademarks which make your example incorrect. This is because: imagine I start producing pajamas that say Coca-Cola on them. Even though Coca-Cola is a soft drink company, their trademark is so strong that if I made Coca-Cola pajamas somebody could perfectly reasonably think that the soft drink company distributed those pajamas. Because confusion is likely, my use of the trademark is illegal even though the goods are different. This is called "dilution" of a trademark.
BitTorrent doesn't have the strength Coca-Cola does, but it does have some things on it's side--for example the name is quite arbitrary, well known amongst the same type of people that would use these other "BiTorrent" things, and most of all *the impostors were intentionally trying to make money off BiTorrent's good name.*
I used to think this as well. But then I thought about it a little harder--enamel can only come back out of solution when our saliva gets more basic if there is dissolved enamel in our saliva. Because we swallow and spit, and our body just naturally replaces our saliva constantly, there we lose the dissolved enamel. So then when saliva gets more basic again, there's no dissolved enamel around to redeposit on your teeth. Note also that our saliva isn't actually "alkaline," someone else was saying that the pH is 5.5 when our saliva starts dissolving our enamel. I think that sounds right (I was thinking it was 4.5 before). And looking around on google just now it appears that saliva can get above 7, but I get the feeling that for most people it is between 6 and 7. So not really "acidic" in the sense that this acid can kill anything (I hope that other guy's post got modded away), but not really "alkaline" either.
You're wrong, chap, but you're also right. Eating less sugary foods saves the day. But your reasoning was wrong. Our tooth enamel becomes soluble at any pH more acidic than about 4.5. When our tooth enamel dissolves, we set ourselves up to get holes all the way through the enamel. As I understand it, our bodies have no way of replacing enamel once its gone. And enamel is what keeps our teeth from getting infected. Our poor gums are sensitive too, though, as you noted. But there's more.
So the thing to do is keep our moth more basic than 4.5 (normal is about 5, I think). But the sugars that you noted get digested by the bacteria in our mouth, and then the biproduct of the digestion is lactic acid. This increases the acidity in out mouth (or decreases the pH). If you brush well enough that you have no bacteria in there, then you can eat all the sugar you want to no detriment. But most people have some bacteria in there, so we need to brush it out. But there's even more.
Toothpaste is designed not only to be all bubbly and tasty, but to make our mouth more basic (raise the pH) as well. That's why there is sodium flouride in toothpaste. The flouride ion attaches to the free hydrogen ions that are making our saliva acidic. But keeping our mouths alkaline still can't save our enamel that's already gone. It sounds to me like this new technology maybe kind of can though...
When I installed IE7, it seems to have completely replaced my IE6. I thought, since it was beta, it wouldn't do this. I have no idea how to make it not remove IE6--maybe it's as easy as just changing a directory on install, but I don't recall getting that option. So be really careful before you install IE7 because really it's nothing special. I use Opera myself.
In other news, Google recently purchased Dell, the world's largest manufacturer of personal computers. The combined company will be called Doogell (the 'e' pronounced similarly to that in 'Dell').
And in other other news, Google plans to purchase General Motors, General Electric, my house, and 2 of my children.
Ummm, I don't know about where you come from, but where I come from "speech" does not equal "communication." I do think that all speech is done with the purpose of communication, and it is done in a variety of ways--the spoken words, pictures, writing on a jacket, etc. However, I do not think that all communication is speech. I think I would call speech a subset of communication.
Further, I believe it is possible to regulate communication without regulating speech.
You will cringe at such a thing. You will say, "you just told me that speech is a subset of communication. If communication is regulated, then obviously speech, being a subset thereof, will necessarily be regulated as well."
I will refute this by example. I use an alarm clock that I don't have to set. It is set by GPS signals from satellites. In other words, some GPS satellite *communicates* with my clock to set the time. For a long time the DoD did not allow civilian use of their satellites. I'm sure glad they changed their mind because otherwise, on your logic, I would be bringing a suit on First Amendment grounds! "You are regulating communication! My clock has every right to communicate with that satellite--it's freedom of speech!"
Obviously that's foolish. That is certainly an example of a regulation of communication that is not a regulation of speech. If that was all the government regulated, then it would be regulating communication without regulating speech.
Now you will argue--but the FCC does regulate speech because they regulate airwaves that have speech in them. That still seems like a misrepresentation to me. If you are correct, then the government is already overstepping its bounds in other areas. For example--the mail. Congress was expressly told to regulate the mail. But, as you noted, the First Amendment trumps anything from earlier in the Constitution that conflicts with it. Therefore, where the First Amendment conflicts with Congress's power to regulate the Postal Service, the First Amendment wins.
Well, is there any question but that the mail is filled with speech? In letters, magazines, books, etc. But it is highly regulated. Are you going to run into court with a Free Speech case? No--doing so would be stupid. Regulation of the mail is not regulating speech, it is just regulation of how and whether the speech gets from one place to another. Now, if the post office censored mail, that would be a regulation of speech.
Well, the FCC doesn't regulate speech either. Just like the mail, it is merely regulating how and whether the speech gets from one place to another.
Now you will argue--that's fine for mail; it's expressly authorized to regulate mail, it isn't expressly authorized to regulate "communication." That's where my prior argument comes into play--nearly all communication is commercial in one way or another. Either it's using a commercial service (telephone), or it's only purpose is for advertising (radio). So regulating those airwaves it just regulating commerce. Speech is carried on those waves too? Yes, but regulating communication is not necessarily regulating speech.
I think we all know that anyone who wants to can talk to another person over the telephone, radio, internet or face to face about anti-American ideas. The FCC just tells you what frequencies to use when doing so. If something gets to be a regulation of speech (like if they relegating your fascist radio show to a frequency below the dial), then bring a suit. Of course, knowing you, you're probably one of those wacko conspiracy theorists that is convinced all of the courts are in on this too. But remember, these are the same courts that said a jacket with "F the draft" is protected speech.
It is apparent you don't listen to the same radio that I do. Let me play a little game here (I'll keep it simple, for your sake):
Why do we have radio?
To listen to music, news, and Rush Limbaugh.
Why is music, news, and Rush on the air--just for charity purposes?
No, they do it for money.
How do they get their money?
Advertizers--the advertizers pay money to the station, and the station plays advertisements for the company.
Do people like the advertisements?
Usually not, I change the station during commercials.
Then no one hears the commercials?
Well, a commercial spot is worth more money if the radio station can get people to listen to it. So the radio plays music, news, or something people will listen to and then inserts commercials.
Is there any other funding for radio?
NPR is funded through charity, sometimes stations are owned by schools. But most stations are funded through advertising.
Would you go so far as to say that without radio with advertising, there probably wouldn't be popular radio?
There would be subscription radio; they use encrypted signals, like satellite radio.
So, we either get free radio with advertisements, or if we don't want advertisements we have subscription radio?
Yes.
Ok--that was it for the game. I think it is well established that free radio is not out there for communication, it is out there to make money for advertisers. Now let's think about the advertisers. I'm listening to the radio right now, there is an advertisement for a new movie. The movie ad is put on by MGM, based in either Florida or California (I'm not sure which). This is definitely an advertisement that was made in one state, and played in another for business purposes. That's interstate commerce.
What about the radio company. Do you think the station you listen to is self run? Almost none are anymore. Eclipse, Clear Channel--these are huge companies that own stations in many states. They work with those huge advertizers to get their ads heavily broadcasted. Would this radio companies exist without the advertising? Not in their current form.
What about Howard Stern, who is no longer on free radio. When he was, was he only played in New York, where he was based? No, he was played accross the country.
In sum--radio, which is not done primarily for First Amendment rights, but for advertising--is clearly a commercial enterprise. And it is clearly an interstate commercial interprise. (You might note that commercial speech is in a different category than normal speech. Speech that is done for money is not as well protected as speech done for personal purposes. And it is well this way, otherwise it would be legal for advertisers to lie).
Further, it is not the speech that is regulated--not any more than speech is regulated in the town square (which is a whole nother debate), merely the means by which it is diseminated.
And even further, you are worried about the FCC regulating the airwaves in airplanes--the companies that will use these waves will be large interstate companies, like Verizon and Qwest (feasible, smaller companies could control some of the airwaves, but only a very large company would have the means necessary to actually make use of the airwaves). And will the FCC be listening in the the phone calls made on these airwaves to make sure there is no cussing? No. Will they be watching where you surf on the internet to make sure you don't look at porn? No--though you're really weird if you do that on an airplane.
So, in sum, the FCC doesn't regulate speech, or communication, merely how that speech is communicated. And it does so by regulating huge interstate companies involved purely in commerce (Verizon doesn't care about your free speech rights, only money).
The majority of your response argues a point againt which I didn't stand. As for the part against which I did argue--that the "necessary and proper" clause gives congress powers that aren't specifically listed--you seem to take a stance in line with that of the Articles of Confederation. In fact, you seem to give no meaning whatsoever to the necessary and proper clause. If it means anything at all, it must mean that it gives Congress powers that are not specifically delineated under Article 1, Section 8. Your line here: "I also said that one of the powers under the Constitution is for the Federal to enact laws to allow it to complete those other enumerated powers." seems to show agreeance with that position of mine. I'm not arguing where it is that Congress "Crosses the line," I'm merely arguing the point that you just said right there. What I'm arguing against is the specific wording that you used: "I said they have no power other than the enumerated powers." I think that's a bad word choice. You try to save it by calling the necessary and proper clause a "power of Congress." So really, I'm just arguing against your choice of words--if serving a delineated function requires doing something that is not specifically listed, then I would say that the Necessary and Proper Clause therefore gives power to do things that are not specifically listed. You say that the necessary and proper clause is specifically delineating this needed power, and it is therefore delineated.
Do you see that? It's a difference in word choice? Well, maybe not. I get the feeling that you're just one of those people that says something extreme to get a rise out of people, then you say things to condition the extremity of the first statement. In the end you end up arguing with people that ultimately agree with your real position but disagree with the unconditioned more exreme statement.
Here, I'll point it out to you using your last paragraph:
"I said they have no power other than the enumerated powers. [this is the "extreme" positional statement] There is no other intelligent way to read the Constitution than that.[here's a filler statement] They explicitly state just that. [here's an assertion without a reference. This is common among assertions] I also said that one of the powers under the Constitution is for the Federal to enact laws to allow it to complete those other enumerated powers. [here is the statement that conditioned your original statement. This is the one that showed your views are actually not as extreme as your first statement made it sound] The Federal has unconstitutionally enact [sic] many laws that do not operate to support their role in the Constitution, and, frequently, work against other rights specifically reserved to the People." [an assertion against which I never argued. In fact I was the first to point out my disagreement with the passing of the Civil Rights Act]
Now for this "Lawyers don't see a problem, well, they get rich as a result; they're not likely to speak out." You can become a lawyer, you know. You can go to law school. In fact there are lawyers out there that fight exactly for the cause that you speak of--"they don't get any respect," you might think. Well, affirmative action cases didn't make it to the Supreme Court pro se--there were lawyers arguing that the plans were unconstitutional (and, in fact, they've made it a long way. Most affirmative action plans are outlawed now, but a few notable cases squeak through). I'm positive you can find an association of lawyers arguing each of the views which you espouse. If you think lawyers "just don't care" then fix that. Go and do!
Well, I do have a little "initiative," so I actually can respond to a few of those things where you say our country has "fallen." I am in a class right now called "Taxation of Individual Income"--we just read a case from the early 20's when the federal income tax rate was 75%. Now the whole question about what Congress has the power to do got really sticky in New Deal era--"The switch in time that saved nine," but this 75% income tax rate was prior to the liberal court that allowed such "atrocities."
"Our education is a travesty." A higher percentage of our citizens can read now than were able to read when congress was more subdued.
"Unstable currency." Ummm, have you ever spent a day in Mexico or Canada? Ask them if they'd prefer dollars or their native currency when you pay for something. They'll jump at the dollars--they'll even take a hit on the exchange rate (before I go to these places I like to know the latest exchange rate so they don't rip me off) just to get the US dollar.
"you have no State representation in the Federal." This is where you really show where you're lacking. The very congress that you are telling me is overreaching is the state representation. In fact, in one of those branches, they're even called "Representatives." The Senate used to be less representative because the House picked them, but that was repealed long ago, and now even they represent us directly since we vote for them.
In other words, if you have problems with Congress overreaching, write to your state Representatives in the House and the Senate, because they are the ones doing the overreaching!
You state at the beginning of your comment that this bloating has come from a loose reading of what is "necessary and proper" under the Commerce clause, but move down your comment to the section where you actually list the so-called bloating. Medicare, Medicaid, Welfare, Social Security--none of these are founded on the commerce clause. They're all based in the spendings clause. Note that these programs may be bloated, but no one questions they're Constitutionality (except people like you that don't seem to understand) because they are founded on the Spendings Clause. No one questions whether or not the Federal Government may spend its money as it pleases--the states may deny the money, if they choose, and do whatever they want. I have actually heard recently some debate about whether they're going too far with the No Child Left Behind Act Since, but it still won't get knocked down--the Spendings Clause is pretty powerful. Note again that our Federal Income Taxes are much lower than they've been in years, even than the 70's and 80's, and the government still has these money-based programs.
Now, don't get me wrong--I do thing Congress has taken this whole "necessary and proper" thing too far. Heck, as much as I agree with a fight against racism, most of the Civil Rights Act is totally based on an overly broad reading of what is "necessary and proper" under the commerce clause. But I wasn't arguing that Congress hadn't "gone to far." I was arguing against your statement that Congress has no powers outside the listed powers. Since it is quite settled that they do, and you implicitly acknowledged that in the third paragraph of your reply. All I am saying is that the necessary and proper clause, for example, gives congress the power to charter a bank if they'd like. This power is not found in the Constitution or it's Amendments; in fact it was a power that was in the Articles of Confederation and removed. A very conservative justice (John Marshall) saw that it was necessary and proper in order to carry out congress's responsibility to regulate currency. So, you are correct that these "necessary and proper" powers must be used to carry out a listed power, but what you don't seem to understand is that the "necessary and proper" power might have nothing to do with that delineated power--just like the chartering of a bank is definitely not "regulatin
This is the second time I've heard this today! Guys--read McCulloch v. Maryland. This was written a long time ago. Or even better--Read US v. Darby which states that the 10th Amendment is "but a truism." Above all, get your facts straight on the debate surrounding the necessary and proper clause. There is no one in the debate--not even the strict constructionists--that argue the only powers of the federal government are specifically listed in the constitution. The reason for that is because the text of the constitution specifically says Congress has powers that aren't listed--that's what the necessary and proper clause is all about! The debate centers not on whether there is such power, only around how much power Congress has outside of the listed powers.
Seriously, the FCC, Medicaid, Medicare, the EPA...these things aren't all totally unconstitutional. If the answer was as clear as you think it is, then Congress has no power to design any of these agencies, and they should all have been struck down by the courts years ago.
Normally I don't reply to my replies, but this one needs a reply. I do know what the constitution says--I haven't merely read it, I *studied* it last semester. I'm a law student--I have a copy next to my computer at this very moment, and I usually have one with me at all times, since I have a copy on my PocketPC as well. As I noted in my reply, the Constitution does not say that the only powers the federal government has are listed in the Constitution. No where does it say that. In fact it says just the opposite in the "Necessary and Proper" clause of Art 1, Sec. 8 (the same section you were referring to in your reply; read the last clause). My ConLaw book had a whole chapter on this!
The Articles of Confederation said that the only powers available to the fed government were listed in the Articles, but this is one of the very reasons the Articles of Confederation were rejected--they couldn't account for new developments, like, for example, the discovery of the ability to communicate by means of radio waves.
So, I assume you are well read when it comes to the Articles of Confederation, but don't tell me what's in the Constitution if you don't know what's in it yourself. Get your nose out of a dead document, and read the one our country uses now (Might I recommend the last clause of Art. 1, Sec. 8).
Because I can see you're high in spirits, but lacking in smarts, I assume you'll still have a tough time understanding why that ambiguous"Necessary and Proper" clause gives powers outside of the "enumerated powers" (those are the ones that are listed; "unenumerated powers" are the unlisted ones--hey look, those powers you said Congress doesn't have, they have a name!!), I gave you the Wikipedia link explaining this. Note that even "strict constructionists" agree that the necessary and proper clause gives congress powers that are not enumerated in the text in certain circumstances. See McCulloch v. Maryland for more information (the constitution doesn't specifically say congress can incorporate a bank, but it gets to anyway because it's necessary to regulate currency).
I use google to search wikipedia. The search function in wikipedia isn't real good
Word. If only it had the wonderful "did you mean...?" function that Google has. I use that as my most accessable spellchecker anymore. But often I am looking up something that I don't know how to spell, so I have to find the right spelling in Google, and then look that up in Wikipedia.
Sorry to break into a troll, but I think that I don't understand this last comment. What makes the FCC's self-imposed jurisdiction over the "airwaves" unconstitutional? I realize that the text of the Constitution doesn't mention where control of the "airwaves" lies, but we do know that without "controlling" purveyors of services by means of electromagnetic radiation we would have havoc. (I can see it now--I build a radio tower, then the competition builds a more powerful tower right next to mine sending signals at the same frequency). So, with it settled that someone must control the airwaves--if it isn't the federal government it is the state governments. Certainly neither the federal nor state governments "owned" bands of frequency, but who did? No one--or rather, everyone did--the "people" did. So it seems rational that either the federal or state government must need to "control" the use the radio communication. One of the jobs of the federal government is to regulate commerce, making any laws necessary and proper toward that purpose. It can be argued that use of radio waves do not constitute interstate commerce--though that would be tough to argue considering how easily radio commerce crosses state lines (especially when it's being used in an airplane)--but imagine if radio communication was under regulations of state law. Remember--you're imagining states regulating this as we are talking about this under the topic of an article about airplanes using airwaves. "Sorry passengers, due to the regulations of Nebraska, we will need to turn off cell phone and internet usage for the next hour. After that, you'll be able to use cell phones, but Missouri allows quite high charges for use of internet in the air space so keep that in mind." The different state laws would be very hard to work with. Additionally--radio is often used to communicate commercial messages accross state lines (remember that the majority of radio is on the air serving commercial purposes--this is obvious on just about any FM station besides NPR). Having already covered the fact that it makes good sense to regulate the airwaves, and it makes more sense for the federal government to perform that regulation rather than state governments. Now what of the FCC's self-imposed jurisdiction over the airwaves? They did that a long time ago. If that were wrong, the body who gets final say in what the FCC does and does not regulate would have said that the FCC does not regulate airwaves. Instead, Congress reinforced that self-imposed jurisdiction using its lawmaking power. That means the very government that should regulate the airwaves that made the body that regulates "communication" agreed when the FCC when it decided that it regulates communication. In sum--this all seems very constitutional to me.
I don't think I'm alone on this, but I switched from Firefox to Opera because, when I click on the shorcut it opens almost instantly. Firefox seems to take about 10-12 seconds to open unless I had opened it earlier. Sometimes I use Firefox when I need some extra features available through extensions.
Also, although I don't think the filters on Opera's email client work well, I use it anyway because I like that I can have the email panel open and it only takes up about 2 inches on the left side of the screen. So I don't have to have two separate windows open, and I can see my email while I'm browsing (unlike Firefox/Thunderbird or the Mozilla Suite).
Having tried many browsers, Opera is my browser of choice. Accordingly, I think Google made a good move. Let's hope they don't wreck it!
Perhaps I'm mistaken, but for some reason I thought each of these companies (well, perhaps not Sun) has a division that already does what RAD does, but with much better funding.
Slashdot Mirror
How would this reduce ads for V|aGRa and "st0ck updates"? If these break through spam filers already, then they will still break through the spam filter now. And if the spam filter blocked them before, it will still block them now. As far as I can tell all this does is let paying companies bypass the spam filter. This only means more spam in the inbox, not less. Their spam filter will not suddenly become stronger, and it won't suddenly put fear into the hearts of spammers--if they got through before, they'll still get through now. And it won't suddenly begin putting legit emails behind walls--well, not anymore than it already does. In fact, yes it kind of will, because legitimate mass emails, like subscription newsletters and whatnot, will now have to pay, and many won't do it.
I don't see how this will help with spam at all. Illigitimate spammers will not be affected by this at all.
You're confusing "famous" amongst its users, and "famous" amongst users of products within its market.
For example, do you know anything about horse riding equipment? I don't. I couldn't tell you a good brand saddle from a bad one. But, amongst people that ride horses, there are a few brands that are famous. Other brands might only be known within small horse-riding communities. If a brand is well known within the whole horse riding community, then it's "famous" even though the public outside of the horse-riding community doesn't know the brand. A brand would not be famous if only the horse riding community in Podunk, TX knew the brand well.
In the end, it's up to a judge or jury to decide whether or not BiTorrent is "famous." As for me, I think they're pretty well known the world over amongst people that download stuff, not just amongst their users. For example, I don't use BiTorrent.
Do you see why I say that it shouldn't matter that a dairy which started stamping "BiTorrent" on milk jugs doesn't compete directly against BiTorrent? "regardless of the presence ... of competition... or likelihood of confusion."
But now you're saying, "But BiTorrent isn't a famous mark!" Maybe not in your mind, but "famous mark" is a defined term in the Lanham Act. To determine if a mark is "famous" you look at the factors set forth in 15 USC 1125(c)(1). The factors are distinctiveness, duration of use, duration and extent of advertising, geographic trading area, channels of trade, degree of recognition in those channels, extent of use of similar marks, registration. The statute says that these are factors that may be used, but it doesn't say all must be strong, and it doesn't say that any particular one is overriding. What you do is look at the factors as a whole, see how BiTorrent fairs overall, and then decide if the mark is strong.
It's up to a court to decide if the mark is famous, but I would say it is even though they haven't been around that long and haven't advertised much (as far as I know). It seems to me that BiTorrent got to be really well known amongst people that are heavy computer users very quickly and without advertising. This speaks to their quality, and all of the other factors weigh in their favor. Imagine there was a fur coat manufacturer called "XanXang" and sellers of fur coats hadn't heard of the name. That mark isn't "famous." But imagine if "XanXang" was well known among fur coat sellers. This mark may be famous even though the average Joe had never heard of XanXang. The factors for "famousness" don't ask if people outside of the market know the name.
You're asking me to comment on a scenareo where the mark is used in a different market. As you can see, the "famousness" factors only work to decide if a mark is famous in one market; it doesn't ask if the mark is famous to people who don't use computers. It asks if the mark is well known among people who use this type of stuff. Once it's famous, dilution laws protect the mark in all markets--"regardless of competition." This is because of the purpose of anti-dilution laws. When I hear BiTorrent, the Lanham gives BiTorrent the right to make it so I don't have to stop and think "is this person talking about the milk, or the file downloading service?"
"What about "Fry's" grocery versus "Fry's" Electronics? I guess the marks weren't deemed "famous" enough.
Ok, now for one last punch at what I was really arguing in the first place. The Lanham Act states in 15 USC 1125(c)(2) that if the perso
Sure it does (to a degree anyway--there are always other factors to take into account). It's possible that another company might pick a similar arbitrary name innocently in a whole different market, but they have something going against them. The mark is presumptively strong because the name is arbitrary. In other words--the chances of someone in a different market just randomly picking the name "BiTorrent" is ultra-slim. So there's a presumption that the name is not duplicated merely by chance.
For an example, there was a case where a gas station/store called "Ha-Ha" located in California. "Wa-Wa," a gas station/store that has several locations in the NJ, PA, MD area sued becaue of the name similarity. Wa-Wa won even though the markets were completely different. This was because the "Ha-Ha" name was sufficiently similar to the arbitrary "Wa-Wa" name. The Ha-Ha people weren't able to overcome the presumption that their use was non-innocent.
Thank you, yes. My teacher would have slapped me for that one.
First, I should note a few things. I am not a lawyer. I am a lowly law student who doesn't know much, but I am taking my second course regarding intellectual property.
You're correct to a degree, but you have to understand that Federal law supercedes the state law in the same area. So California doesn't try to regulate in the areas where federal law does, their laws merely take over where the federal laws take off. So, you need to take into account the entire body of federal law which disallows dilution (there's a whole Act on dilution, and not just in cases of fraud), confusion, etc., and then, when in California, add their laws to the mix (when they don't conflict).
Fraud using another company's mark is presumptively illegal. So that much was correct.
Here's how you can know the laws aren't all about fraud. Imagine someone who has never heard of some company called "Coca-Cola" and the person very innocently, and non-fraudulently decided to produce a whole grain cereal called "Coca-Cola." This person would still be violating copyright law because of dilution laws.
Here's what's wrong with dilution. Imagine we had a world like the one you describe. The person above would be allowed to produce their cereal. Two things would happen; first, I would go to the store and say, "when did Coca-Cola start making cold cereal?" Later, when I discover the cereal is not made by the soft drink company, when I saw the name "Coca-Cola," I would stop for a minute and say, "which one? The cereal or the soda?" That is name dilution. There is no fraud, the cereal company is not making people spend less on soda (or pajamas), but it is nonetheless illegal. That's dilution, and it's illegal. (strict liability)
Yeah, mod parent down. Everything he said is wrong. Trademark is intel prop. And If I made a movie called "Revenge of the BiTorrent," I would still be liable under trademark law, not copyright law. The whole deal about me suing BiTorrent users for distributing my movie is irrelevant.
Ummm, this is wrong. For brands that are sufficiently strong, you can't use their name for anything. There are lots of factors to take into account, but you picked some particularly strong trademarks which make your example incorrect. This is because: imagine I start producing pajamas that say Coca-Cola on them. Even though Coca-Cola is a soft drink company, their trademark is so strong that if I made Coca-Cola pajamas somebody could perfectly reasonably think that the soft drink company distributed those pajamas. Because confusion is likely, my use of the trademark is illegal even though the goods are different. This is called "dilution" of a trademark.
BitTorrent doesn't have the strength Coca-Cola does, but it does have some things on it's side--for example the name is quite arbitrary, well known amongst the same type of people that would use these other "BiTorrent" things, and most of all *the impostors were intentionally trying to make money off BiTorrent's good name.*
You don't use calculus in your everyday life?!
wait
I used to think this as well. But then I thought about it a little harder--enamel can only come back out of solution when our saliva gets more basic if there is dissolved enamel in our saliva. Because we swallow and spit, and our body just naturally replaces our saliva constantly, there we lose the dissolved enamel. So then when saliva gets more basic again, there's no dissolved enamel around to redeposit on your teeth. Note also that our saliva isn't actually "alkaline," someone else was saying that the pH is 5.5 when our saliva starts dissolving our enamel. I think that sounds right (I was thinking it was 4.5 before). And looking around on google just now it appears that saliva can get above 7, but I get the feeling that for most people it is between 6 and 7. So not really "acidic" in the sense that this acid can kill anything (I hope that other guy's post got modded away), but not really "alkaline" either.
You're wrong, chap, but you're also right. Eating less sugary foods saves the day. But your reasoning was wrong. Our tooth enamel becomes soluble at any pH more acidic than about 4.5. When our tooth enamel dissolves, we set ourselves up to get holes all the way through the enamel. As I understand it, our bodies have no way of replacing enamel once its gone. And enamel is what keeps our teeth from getting infected. Our poor gums are sensitive too, though, as you noted. But there's more.
So the thing to do is keep our moth more basic than 4.5 (normal is about 5, I think). But the sugars that you noted get digested by the bacteria in our mouth, and then the biproduct of the digestion is lactic acid. This increases the acidity in out mouth (or decreases the pH). If you brush well enough that you have no bacteria in there, then you can eat all the sugar you want to no detriment. But most people have some bacteria in there, so we need to brush it out. But there's even more.
Toothpaste is designed not only to be all bubbly and tasty, but to make our mouth more basic (raise the pH) as well. That's why there is sodium flouride in toothpaste. The flouride ion attaches to the free hydrogen ions that are making our saliva acidic. But keeping our mouths alkaline still can't save our enamel that's already gone. It sounds to me like this new technology maybe kind of can though...
But at least yesterday one of the first posts gave this link:t ails.aspx?name=Win32%2FMywife#Aliases
http://www.microsoft.com/security/encyclopedia/de
Note that this link provides a REMOVAL TOOL. I guess Microsoft doesn't have some sort of conspiracy against unpaying customers after all.
When I installed IE7, it seems to have completely replaced my IE6. I thought, since it was beta, it wouldn't do this. I have no idea how to make it not remove IE6--maybe it's as easy as just changing a directory on install, but I don't recall getting that option.
So be really careful before you install IE7 because really it's nothing special.
I use Opera myself.
In other news, Google recently purchased Dell, the world's largest manufacturer of personal computers. The combined company will be called Doogell (the 'e' pronounced similarly to that in 'Dell').
And in other other news, Google plans to purchase General Motors, General Electric, my house, and 2 of my children.
Ummm, I don't know about where you come from, but where I come from "speech" does not equal "communication." I do think that all speech is done with the purpose of communication, and it is done in a variety of ways--the spoken words, pictures, writing on a jacket, etc. However, I do not think that all communication is speech. I think I would call speech a subset of communication.
Further, I believe it is possible to regulate communication without regulating speech.
You will cringe at such a thing. You will say, "you just told me that speech is a subset of communication. If communication is regulated, then obviously speech, being a subset thereof, will necessarily be regulated as well."
I will refute this by example. I use an alarm clock that I don't have to set. It is set by GPS signals from satellites. In other words, some GPS satellite *communicates* with my clock to set the time. For a long time the DoD did not allow civilian use of their satellites. I'm sure glad they changed their mind because otherwise, on your logic, I would be bringing a suit on First Amendment grounds! "You are regulating communication! My clock has every right to communicate with that satellite--it's freedom of speech!"
Obviously that's foolish. That is certainly an example of a regulation of communication that is not a regulation of speech. If that was all the government regulated, then it would be regulating communication without regulating speech.
Now you will argue--but the FCC does regulate speech because they regulate airwaves that have speech in them. That still seems like a misrepresentation to me. If you are correct, then the government is already overstepping its bounds in other areas. For example--the mail. Congress was expressly told to regulate the mail. But, as you noted, the First Amendment trumps anything from earlier in the Constitution that conflicts with it. Therefore, where the First Amendment conflicts with Congress's power to regulate the Postal Service, the First Amendment wins.
Well, is there any question but that the mail is filled with speech? In letters, magazines, books, etc. But it is highly regulated. Are you going to run into court with a Free Speech case? No--doing so would be stupid. Regulation of the mail is not regulating speech, it is just regulation of how and whether the speech gets from one place to another. Now, if the post office censored mail, that would be a regulation of speech.
Well, the FCC doesn't regulate speech either. Just like the mail, it is merely regulating how and whether the speech gets from one place to another.
Now you will argue--that's fine for mail; it's expressly authorized to regulate mail, it isn't expressly authorized to regulate "communication." That's where my prior argument comes into play--nearly all communication is commercial in one way or another. Either it's using a commercial service (telephone), or it's only purpose is for advertising (radio). So regulating those airwaves it just regulating commerce. Speech is carried on those waves too? Yes, but regulating communication is not necessarily regulating speech.
I think we all know that anyone who wants to can talk to another person over the telephone, radio, internet or face to face about anti-American ideas. The FCC just tells you what frequencies to use when doing so. If something gets to be a regulation of speech (like if they relegating your fascist radio show to a frequency below the dial), then bring a suit. Of course, knowing you, you're probably one of those wacko conspiracy theorists that is convinced all of the courts are in on this too. But remember, these are the same courts that said a jacket with "F the draft" is protected speech.
It is apparent you don't listen to the same radio that I do. Let me play a little game here (I'll keep it simple, for your sake):
Why do we have radio?
To listen to music, news, and Rush Limbaugh.
Why is music, news, and Rush on the air--just for charity purposes?
No, they do it for money.
How do they get their money?
Advertizers--the advertizers pay money to the station, and the station plays advertisements for the company.
Do people like the advertisements?
Usually not, I change the station during commercials.
Then no one hears the commercials?
Well, a commercial spot is worth more money if the radio station can get people to listen to it. So the radio plays music, news, or something people will listen to and then inserts commercials.
Is there any other funding for radio?
NPR is funded through charity, sometimes stations are owned by schools. But most stations are funded through advertising.
Would you go so far as to say that without radio with advertising, there probably wouldn't be popular radio?
There would be subscription radio; they use encrypted signals, like satellite radio.
So, we either get free radio with advertisements, or if we don't want advertisements we have subscription radio?
Yes.
Ok--that was it for the game. I think it is well established that free radio is not out there for communication, it is out there to make money for advertisers. Now let's think about the advertisers. I'm listening to the radio right now, there is an advertisement for a new movie. The movie ad is put on by MGM, based in either Florida or California (I'm not sure which). This is definitely an advertisement that was made in one state, and played in another for business purposes. That's interstate commerce.
What about the radio company. Do you think the station you listen to is self run? Almost none are anymore. Eclipse, Clear Channel--these are huge companies that own stations in many states. They work with those huge advertizers to get their ads heavily broadcasted. Would this radio companies exist without the advertising? Not in their current form.
What about Howard Stern, who is no longer on free radio. When he was, was he only played in New York, where he was based? No, he was played accross the country.
In sum--radio, which is not done primarily for First Amendment rights, but for advertising--is clearly a commercial enterprise. And it is clearly an interstate commercial interprise. (You might note that commercial speech is in a different category than normal speech. Speech that is done for money is not as well protected as speech done for personal purposes. And it is well this way, otherwise it would be legal for advertisers to lie).
Further, it is not the speech that is regulated--not any more than speech is regulated in the town square (which is a whole nother debate), merely the means by which it is diseminated.
And even further, you are worried about the FCC regulating the airwaves in airplanes--the companies that will use these waves will be large interstate companies, like Verizon and Qwest (feasible, smaller companies could control some of the airwaves, but only a very large company would have the means necessary to actually make use of the airwaves). And will the FCC be listening in the the phone calls made on these airwaves to make sure there is no cussing? No. Will they be watching where you surf on the internet to make sure you don't look at porn? No--though you're really weird if you do that on an airplane.
So, in sum, the FCC doesn't regulate speech, or communication, merely how that speech is communicated. And it does so by regulating huge interstate companies involved purely in commerce (Verizon doesn't care about your free speech rights, only money).
Do you see that? It's a difference in word choice? Well, maybe not. I get the feeling that you're just one of those people that says something extreme to get a rise out of people, then you say things to condition the extremity of the first statement. In the end you end up arguing with people that ultimately agree with your real position but disagree with the unconditioned more exreme statement.
Here, I'll point it out to you using your last paragraph: "I said they have no power other than the enumerated powers. [this is the "extreme" positional statement] There is no other intelligent way to read the Constitution than that.[here's a filler statement] They explicitly state just that. [here's an assertion without a reference. This is common among assertions] I also said that one of the powers under the Constitution is for the Federal to enact laws to allow it to complete those other enumerated powers. [here is the statement that conditioned your original statement. This is the one that showed your views are actually not as extreme as your first statement made it sound] The Federal has unconstitutionally enact [sic] many laws that do not operate to support their role in the Constitution, and, frequently, work against other rights specifically reserved to the People." [an assertion against which I never argued. In fact I was the first to point out my disagreement with the passing of the Civil Rights Act]
Now for this "Lawyers don't see a problem, well, they get rich as a result; they're not likely to speak out." You can become a lawyer, you know. You can go to law school. In fact there are lawyers out there that fight exactly for the cause that you speak of--"they don't get any respect," you might think. Well, affirmative action cases didn't make it to the Supreme Court pro se--there were lawyers arguing that the plans were unconstitutional (and, in fact, they've made it a long way. Most affirmative action plans are outlawed now, but a few notable cases squeak through). I'm positive you can find an association of lawyers arguing each of the views which you espouse. If you think lawyers "just don't care" then fix that. Go and do!
"Our education is a travesty." A higher percentage of our citizens can read now than were able to read when congress was more subdued.
"Unstable currency." Ummm, have you ever spent a day in Mexico or Canada? Ask them if they'd prefer dollars or their native currency when you pay for something. They'll jump at the dollars--they'll even take a hit on the exchange rate (before I go to these places I like to know the latest exchange rate so they don't rip me off) just to get the US dollar.
"you have no State representation in the Federal." This is where you really show where you're lacking. The very congress that you are telling me is overreaching is the state representation. In fact, in one of those branches, they're even called "Representatives." The Senate used to be less representative because the House picked them, but that was repealed long ago, and now even they represent us directly since we vote for them.
In other words, if you have problems with Congress overreaching, write to your state Representatives in the House and the Senate, because they are the ones doing the overreaching!
You state at the beginning of your comment that this bloating has come from a loose reading of what is "necessary and proper" under the Commerce clause, but move down your comment to the section where you actually list the so-called bloating. Medicare, Medicaid, Welfare, Social Security--none of these are founded on the commerce clause. They're all based in the spendings clause. Note that these programs may be bloated, but no one questions they're Constitutionality (except people like you that don't seem to understand) because they are founded on the Spendings Clause. No one questions whether or not the Federal Government may spend its money as it pleases--the states may deny the money, if they choose, and do whatever they want. I have actually heard recently some debate about whether they're going too far with the No Child Left Behind Act Since, but it still won't get knocked down--the Spendings Clause is pretty powerful. Note again that our Federal Income Taxes are much lower than they've been in years, even than the 70's and 80's, and the government still has these money-based programs.
Now, don't get me wrong--I do thing Congress has taken this whole "necessary and proper" thing too far. Heck, as much as I agree with a fight against racism, most of the Civil Rights Act is totally based on an overly broad reading of what is "necessary and proper" under the commerce clause. But I wasn't arguing that Congress hadn't "gone to far." I was arguing against your statement that Congress has no powers outside the listed powers. Since it is quite settled that they do, and you implicitly acknowledged that in the third paragraph of your reply. All I am saying is that the necessary and proper clause, for example, gives congress the power to charter a bank if they'd like. This power is not found in the Constitution or it's Amendments; in fact it was a power that was in the Articles of Confederation and removed. A very conservative justice (John Marshall) saw that it was necessary and proper in order to carry out congress's responsibility to regulate currency. So, you are correct that these "necessary and proper" powers must be used to carry out a listed power, but what you don't seem to understand is that the "necessary and proper" power might have nothing to do with that delineated power--just like the chartering of a bank is definitely not "regulatin
Seriously, the FCC, Medicaid, Medicare, the EPA...these things aren't all totally unconstitutional. If the answer was as clear as you think it is, then Congress has no power to design any of these agencies, and they should all have been struck down by the courts years ago.
The Articles of Confederation said that the only powers available to the fed government were listed in the Articles, but this is one of the very reasons the Articles of Confederation were rejected--they couldn't account for new developments, like, for example, the discovery of the ability to communicate by means of radio waves.
So, I assume you are well read when it comes to the Articles of Confederation, but don't tell me what's in the Constitution if you don't know what's in it yourself. Get your nose out of a dead document, and read the one our country uses now (Might I recommend the last clause of Art. 1, Sec. 8).
Because I can see you're high in spirits, but lacking in smarts, I assume you'll still have a tough time understanding why that ambiguous"Necessary and Proper" clause gives powers outside of the "enumerated powers" (those are the ones that are listed; "unenumerated powers" are the unlisted ones--hey look, those powers you said Congress doesn't have, they have a name!!), I gave you the Wikipedia link explaining this. Note that even "strict constructionists" agree that the necessary and proper clause gives congress powers that are not enumerated in the text in certain circumstances. See McCulloch v. Maryland for more information (the constitution doesn't specifically say congress can incorporate a bank, but it gets to anyway because it's necessary to regulate currency).
I use google to search wikipedia. The search function in wikipedia isn't real good
Word. If only it had the wonderful "did you mean...?" function that Google has. I use that as my most accessable spellchecker anymore. But often I am looking up something that I don't know how to spell, so I have to find the right spelling in Google, and then look that up in Wikipedia.
yeah, maybe Google should buy Wikipeida.
Sorry to break into a troll, but I think that I don't understand this last comment. What makes the FCC's self-imposed jurisdiction over the "airwaves" unconstitutional? I realize that the text of the Constitution doesn't mention where control of the "airwaves" lies, but we do know that without "controlling" purveyors of services by means of electromagnetic radiation we would have havoc. (I can see it now--I build a radio tower, then the competition builds a more powerful tower right next to mine sending signals at the same frequency). So, with it settled that someone must control the airwaves--if it isn't the federal government it is the state governments. Certainly neither the federal nor state governments "owned" bands of frequency, but who did? No one--or rather, everyone did--the "people" did. So it seems rational that either the federal or state government must need to "control" the use the radio communication. One of the jobs of the federal government is to regulate commerce, making any laws necessary and proper toward that purpose. It can be argued that use of radio waves do not constitute interstate commerce--though that would be tough to argue considering how easily radio commerce crosses state lines (especially when it's being used in an airplane)--but imagine if radio communication was under regulations of state law. Remember--you're imagining states regulating this as we are talking about this under the topic of an article about airplanes using airwaves. "Sorry passengers, due to the regulations of Nebraska, we will need to turn off cell phone and internet usage for the next hour. After that, you'll be able to use cell phones, but Missouri allows quite high charges for use of internet in the air space so keep that in mind." The different state laws would be very hard to work with. Additionally--radio is often used to communicate commercial messages accross state lines (remember that the majority of radio is on the air serving commercial purposes--this is obvious on just about any FM station besides NPR).
Having already covered the fact that it makes good sense to regulate the airwaves, and it makes more sense for the federal government to perform that regulation rather than state governments. Now what of the FCC's self-imposed jurisdiction over the airwaves? They did that a long time ago. If that were wrong, the body who gets final say in what the FCC does and does not regulate would have said that the FCC does not regulate airwaves. Instead, Congress reinforced that self-imposed jurisdiction using its lawmaking power.
That means the very government that should regulate the airwaves that made the body that regulates "communication" agreed when the FCC when it decided that it regulates communication.
In sum--this all seems very constitutional to me.
I don't think I'm alone on this, but I switched from Firefox to Opera because, when I click on the shorcut it opens almost instantly. Firefox seems to take about 10-12 seconds to open unless I had opened it earlier. Sometimes I use Firefox when I need some extra features available through extensions.
Also, although I don't think the filters on Opera's email client work well, I use it anyway because I like that I can have the email panel open and it only takes up about 2 inches on the left side of the screen. So I don't have to have two separate windows open, and I can see my email while I'm browsing (unlike Firefox/Thunderbird or the Mozilla Suite).
Having tried many browsers, Opera is my browser of choice. Accordingly, I think Google made a good move. Let's hope they don't wreck it!
Perhaps I'm mistaken, but for some reason I thought each of these companies (well, perhaps not Sun) has a division that already does what RAD does, but with much better funding.