On May 10, 2004 the Court issued a temporary restraining order (the "TRO") against defendant Ironport Systems, Inc. dba SPAMCOP.NET, Inc. ("Defendant") on behalf of OPTINREALBIG.COM, LLC ("Plaintiff"). Defendant has objected to the TRO and sufficiently explained why its objection came after the issuance of the Court's order. It was not through gamesmanship on the part of Defendant, but rather issues of timing. The Court's order and Defendant's opposition crossed each other in the e-filing system. Having read and considered Defendant's opposition only for the purpose of determining whether or not to maintain the TRO, the Court finds that the legal issues raised are more complicated than they originally appeared and that the Court has a number of questions regarding the facts. Because of this, the Court finds that the balance of hardships and the interests of justice favor dissolution of the TRO and expediting the hearing on the preliminary injunction. This is to give both parties a full and fair opportunity to be heard on the issues, to give the Court sufficient time to deliberate on these issues, and to issue a judgment on the merits expeditiously so that the prevailing party shall obtain the relief necessary to prevent irreparable harm. United States District Court For the Northern District of California
The Court wishes to clarify that the TRO was not a determination of the merits of this case. The Supreme Court "has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies." Weinberger v. Romeo-Barcelo , 456 U.S. 305, 312 (1982). The limited record usually available on such motions renders a final decision on the merits inappropriate. Brown v. Chote, 411 U.S. 452, 456 (1973); see also, Paragould Music Co. v. City of Paragould , 738 F.2d 973, 975 (8th Cir.1984); Laurenzo v. Mississippi High School Activities Ass'n, 708 F.2d 1038, 1043 (5th Cir.1983) (student who challenged a rule which made him ineligible to play baseball not a prevailing party because finding on the merits was not required for the issuance of an injunction pending appeal); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1315 (1980) (TRO allowed plaintiffs to vote on absentee ballots but was in no way a determination on the merits); cf Nitz v. Otte, 87 F.3d 1321 (9th Cir. 1996) (unpublished) (noting that the issuance of a TRO did not constitute a proceeding of substance on the merit). In contrast, a federal proceeding may be deemed to have passed beyond the " embryonic stage" if the federal court has conducted extensive hearings on a motion for a preliminary injunction. Adultworld Bookstore v. City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir.1985). The Court is aware, however, that Federal Rule of Civil Procedure 65(b) provides that a TRO may issue ex parte to preserve the status quo. Having reviewed Defendant's opposition and considered the facts brought forward by it, the Court questions whether the terms of the TRO actually preserved the status quo or altered it by requiring Defendant to take proactive steps to limit the recipients of the complaints and to list the names of those complaining. Because in such situations, the Court must be "extremely cautious," Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D.Cal. 1995), the Court dissolves the TRO and expedites the hearing on the preliminary injunction. For the foregoing reasons, IT IS HEREBY ORDERED THAT the Temporary Restraining Order of May 10, 2004 is DISSOLVED. Plaintiff shall serve and file a motion for preliminary injunction no later than May 12, 2004. Defendant shall serve its reply no later than May 13, 2004. Plaintiff shall serve and file a reply no later than May 14, 2004. The parties shall appear before the Court on
While sensors are an interesting idea, would it not perhaps be preferable to provide mobile GPS units that can be signed out free of charge?
This would eliminate time involved in maintaining/replacing sensors in remote locations, is purely voluntary, and provides much more useful data than a single point in the wilderness at time x.
While Sasser is the worm making the news in relation to the LSASS exploit, it's easy to lose sight of the three Gaobot variants that are *also* using the exploit and is quite frankly, a lot nastier.
I just hope the other variants don't get lost in the hype about Sasser, or ISP's and security folks are going to have much bigger problems on their hands than slowed computers rebooting a lot.
I think this could become an interesting point as things move forward. If I have copies of music on my local system and leave F&PS open (as is the default with older versions of Windows), am I then guilty of distributing the content?
It starts coming down to intent. If we take it a step further, and I have an ftp server available but secured with a single username/pass combo and someone guesses it or otherwise gains access... does that mean I'm distributing? Or does it mean someone ELSE is downloading....
Most P2P applications will simply hunt out your media and share it. Will the law now make users responsible for how their software is configured, when it's the application providers who are setting the defaults?
It's going to be some interesting times, that's for sure.
Orson Scott Card - Enders Game Basically anything by this author is worth reading. William Gibson - Neuromancer Burning Chrome Virtual Light Neal Stephenson - Snow Crash - A Young Ladies Illustrated Primer Daniel Keys Moran - The Armageddon Blues David Brin - The Uplift War Gregory Binford and David Brin - Heart of the Comet There are many, many good science fiction authors out there. These are just a few of my personal favourites:)
I have to say, I've read every one of his books so far and enjoyed them all. Some more than others. He seems to fall down a little at the end of the first trilogy, but they were still excellent books I happily recommend. His collection of short stories found in Burning Chrome are stunning. If you really want to get an idea where Gibson came from, read that book. It is an excellent resource in showing his growth as an author. Enjoy the books folks.
Slashdot Mirror
The TRO has already been dissolved.
From dissolution of ex parte TRO:
On May 10, 2004 the Court issued a temporary restraining order (the "TRO") against defendant
Ironport Systems, Inc. dba SPAMCOP.NET, Inc. ("Defendant") on behalf of OPTINREALBIG.COM,
LLC ("Plaintiff"). Defendant has objected to the TRO and sufficiently explained why its objection came
after the issuance of the Court's order. It was not through gamesmanship on the part of Defendant, but
rather issues of timing. The Court's order and Defendant's opposition crossed each other in the e-filing
system.
Having read and considered Defendant's opposition only for the purpose of determining whether or
not to maintain the TRO, the Court finds that the legal issues raised are more complicated than they
originally appeared and that the Court has a number of questions regarding the facts. Because of this, the
Court finds that the balance of hardships and the interests of justice favor dissolution of the TRO and
expediting the hearing on the preliminary injunction. This is to give both parties a full and fair opportunity to
be heard on the issues, to give the Court sufficient time to deliberate on these issues, and to issue a
judgment on the merits expeditiously so that the prevailing party shall obtain the relief necessary to prevent
irreparable harm.
United States District Court
For the Northern District of California
The Court wishes to clarify that the TRO was not a determination of the merits of this case. The
Supreme Court "has repeatedly held that the basis for injunctive relief in the federal courts has always been
irreparable injury and the inadequacy of legal remedies." Weinberger v. Romeo-Barcelo , 456 U.S. 305,
312 (1982). The limited record usually available on such motions renders a final decision on the merits
inappropriate. Brown v. Chote, 411 U.S. 452, 456 (1973); see also, Paragould Music Co. v. City of
Paragould , 738 F.2d 973, 975 (8th Cir.1984); Laurenzo v. Mississippi High School Activities Ass'n, 708
F.2d 1038, 1043 (5th Cir.1983) (student who challenged a rule which made him ineligible to play baseball
not a prevailing party because finding on the merits was not required for the issuance of an injunction
pending appeal); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928, 100
S.Ct. 1315 (1980) (TRO allowed plaintiffs to vote on absentee ballots but was in no way a determination
on the merits); cf Nitz v. Otte, 87 F.3d 1321 (9th Cir. 1996) (unpublished) (noting that the issuance of a
TRO did not constitute a proceeding of substance on the merit).
In contrast, a federal proceeding may be deemed to have passed beyond the " embryonic stage" if
the federal court has conducted extensive hearings on a motion for a preliminary injunction. Adultworld
Bookstore v. City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir.1985).
The Court is aware, however, that Federal Rule of Civil Procedure 65(b) provides that a TRO may
issue ex parte to preserve the status quo. Having reviewed Defendant's opposition and considered the
facts brought forward by it, the Court questions whether the terms of the TRO actually preserved the status
quo or altered it by requiring Defendant to take proactive steps to limit the recipients of the complaints and
to list the names of those complaining. Because in such situations, the Court must be "extremely cautious,"
Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D.Cal. 1995), the
Court dissolves the TRO and expedites the hearing on the preliminary injunction.
For the foregoing reasons,
IT IS HEREBY ORDERED THAT the Temporary Restraining Order of May 10, 2004 is
DISSOLVED. Plaintiff shall serve and file a motion for preliminary injunction no later than May 12, 2004.
Defendant shall serve its reply no later than May 13, 2004. Plaintiff shall serve and file a reply no later than
May 14, 2004. The parties shall appear before the Court on
While sensors are an interesting idea, would it not perhaps be preferable to provide mobile GPS units that can be signed out free of charge?
This would eliminate time involved in maintaining/replacing sensors in remote locations, is purely voluntary, and provides much more useful data than a single point in the wilderness at time x.
Just my two bits CDN.
While Sasser is the worm making the news in relation to the LSASS exploit, it's easy to lose sight of the three Gaobot variants that are *also* using the exploit and is quite frankly, a lot nastier.
I just hope the other variants don't get lost in the hype about Sasser, or ISP's and security folks are going to have much bigger problems on their hands than slowed computers rebooting a lot.
Or if you just want to focus on the security updates, I tend to prefer
;)
#glsa-check -l |grep [[N]]
and then run glsa-check -t [advisory number]
The brave of course can just do a glsa-check -f advisory_number without testing
I think this could become an interesting point as things move forward. If I have copies of music on my local system and leave F&PS open (as is the default with older versions of Windows), am I then guilty of distributing the content?
It starts coming down to intent. If we take it a step further, and I have an ftp server available but secured with a single username/pass combo and someone guesses it or otherwise gains access... does that mean I'm distributing? Or does it mean someone ELSE is downloading....
Most P2P applications will simply hunt out your media and share it. Will the law now make users responsible for how their software is configured, when it's the application providers who are setting the defaults?
It's going to be some interesting times, that's for sure.
It's about behaviour, not patches.
Orson Scott Card - Enders Game Basically anything by this author is worth reading. William Gibson - Neuromancer Burning Chrome Virtual Light Neal Stephenson - Snow Crash - A Young Ladies Illustrated Primer Daniel Keys Moran - The Armageddon Blues David Brin - The Uplift War Gregory Binford and David Brin - Heart of the Comet There are many, many good science fiction authors out there. These are just a few of my personal favourites :)
I have to say, I've read every one of his books so far and enjoyed them all. Some more than others. He seems to fall down a little at the end of the first trilogy, but they were still excellent books I happily recommend. His collection of short stories found in Burning Chrome are stunning. If you really want to get an idea where Gibson came from, read that book. It is an excellent resource in showing his growth as an author. Enjoy the books folks.